Summary: The Council delayed in explaining to Mr and Mrs X the requirement for a mental capacity assessment for their son D. The Council then agreed to proceed without an assessment due to the family’s concerns. It also failed to respond promptly to that aspect of their complaint. The Council agrees to acknowledge its failings here and pay Mrs X a sum which recognises the additional distress and anxiety its delay caused.

The complaint

1. Mrs X (as I shall call her) complains that the Council delayed in finding suitable respite for their adult son B at a time when her late husband needed surgery.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I considered the information provided by Mrs X and by the Council. I spoke to Mrs X. Both parties now had the opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

5. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
6. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

What happened

7. Mr and Mrs X were primary carers for their adult son D, who has a learning disability. D lived at home and attended a day centre for several days a week.
8. In April 2022 Mr and Mrs X asked the Council to arrange respite care for D as Mr X had been diagnosed with cancer and needed surgery. A social worker met Mr and Mrs X and noted that Mr X was asking for a temporary placement for D in June/July as he would be in hospital and receiving treatment which would make him weak and unable to share the care of D with Mrs X.
9. The social worker’s notes of the meeting list the following tasks:

“Referral to LD Nurses to be made

(Mr and Mrs X) to discuss advocacy with (D) and contact (advocate) in order to gather (D)s views of support plan and future plans.

Temporary placement for June/July to be discussed with management and explored due to risk of carer breakdown/need for emergency placement June/July

Request has been made for fifth day at (day centre)”.

10. On 19 April Mr X emailed the social worker to say he now understood his treatment would last 4 weeks, not one, and would start mid-July. The social worker replied on 17 May with an apology for the delay. She asked for confirmation the temporary placement would need to start mid-July.
11. Mr X replied that he had understood from their meeting in April she would proceed in sourcing a placement as well as arranging an extra day centre session: he said it seemed no progress had been made on either and he was under ‘discreet pressure’ from his consultant to agree to surgery as soon as possible but said he could not do so until D’s future was secured. He said a start date of the end of July would be realistic.
12. On 30 May the social worker emailed Mr X again to say the Council would have to complete a mental capacity assessment for D in respect of a planned move to temporary accommodation. She also said after discussion it had been decided that an extra day at the day centre would not be appropriate as D would already be in a placement where his needs were being met and the aim would be to reduce attendance especially in the likelihood of a long-term projected move to Supported Living.
13. Mr X replied on 9 June. He said her email had introduced a new element, the mental capacity assessment, which they had not been told about before and which had now been shared with them some 7 weeks after they understood a placement was being sought. He said that previous experience suggested D would become disruptive as soon as a move was mentioned, and they were concerned that in their current state of health neither he nor Mrs X were strong enough to cope with his behaviour. The social worker replied that she had mentioned previously that a change of accommodation would require the completion of a mental capacity assessment: “It is the case that a Mental Capacity Assessment would need to take place for any change of accommodation, which includes a temporary placement.”
14. Following further expressions of concern by Mr X, the Council says it agreed “that we would be able to revert to information recorded in the Support Planning process and could revisit once (D) had moved into a temporary setting.”
15. A start date of 15 August for the respite placement was agreed. The Council says the social worker completed her review of the support plan on 7 July and sent a referral to the Council’s placement team. The placement team sent the referral to the placement Mr X had requested on 20 July: on 27 July the placement refused it. The Council offered an alternative placement and Mr X agreed although he said they had withdrawn D from this placement the previous year. He said the reason why they had requested the first placement was because they knew at the time there were vacancies: he said the delay over the apparent need for a capacity assessment had cost them the preferred placement. The Council points out the first placement did not provide the rationale for its decision not to offer a place.
16. D moved into the placement on 26 August.

The complaint

17. On 22 September Mr X complained to the Council about the delay, and the intended withdrawal of D from day services. He said the delay had meant he had cancelled two prospective dates for surgery with an ‘as yet unknown’ impact on his prognosis, and had difficulty contacting the social worker by telephone or email.
18. He also said that once D had entered his temporary placement they had been told his day centre attendance should be phased out. He said this was contrary to the advice of his advocate and his mental health nurse. Mr X also raised an issue relating to a previous complaint. The Council says in accordance with the Care Act it had met its statutory duties and responsibilities by commissioning a 24 hour residential placement, and is not required to fund the day centre.
19. The Council says, “The letter sent 22 September 2022 was acknowledged and the customer was advised we would not respond at that time, as whilst some issues were new there was also a cross over with the ombudsman investigation. The customer sent in a further letter on 8 November 2022 raising some new concerns and referring to the letter dated 22 September 2022 and reiterating the issues raised within this letter. This letter was acknowledged on 17 November 2022 and responded to 25 November 2022, it was considered that the matters within the letter of 22 September 2022 had been addressed at this stage.”
20. The Council did not address this aspect of the complaint until November 2023 despite reminders from Mrs X in March and July 2023. Mr X sadly died in May 2023.
21. The Council replied to Mrs X and said “I understand within the complaint letter from September 2022 you referred to the matter of delays after March 2022, we apologise this was not responded to specifically in the response dated 25 November 2022 - at the time it was thought this was a continuation of the ongoing Ombudsman Case and the reason for the delay was the same hence not being referenced separately.”
22. The Council says “It is acknowledged that there were some further delays which cannot be excused during this period for which the Complaints team apologise.”
23. Mrs X complained to the Ombudsman.
24. The Council says there were two issues that led to the delay in its ability to start the sourcing for a suitable residential placement for D. It says the first of these was Mr X’s reluctance to agree a mental capacity assessment for D before his move to temporary accommodation. It says in the end it was agreed to proceed with the information it already held. It says the second matter was the “delay in ECC being informed of the start date for the placement which is essential for sourcing”. It says for private sector care homes to confirm their availability the Council has to give exact dates.

Analysis

25. The Council did not explain to Mr and Mrs X at the initial meeting in April that it would need to undertake a mental capacity assessment before it could arrange the placement. The Council corrected this on 30 May. The clear understanding of Mr and Mrs X was that the social worker would start sourcing a placement straight after that meeting. There is no mention in the meeting notes about a mental capacity assessment, so although the social worker said she had discussed this previously, in my view that was insufficient in the context of this placement. That was fault which caused injustice of raised expectations and subsequent confusion and disappointment.
26. The other aspect of the delay cited by the Council was the lack of an exact starting date. Again my view is that was not properly explained. Mr X had suggested a timescale but it was up to the Council to ensure an exact date could be pinpointed. Instead there was a delay of five weeks and then another two weeks before the whole message was conveyed. It is not possible to say now whether the preferred placement would have been available by the time the Council contacted it but the view they had lost that placement because of the Council’s delay added further to Mr and Mrs X’s disappointment. There was also the material injustice that Mr X could not agree a date for urgent surgery before the Council made proper arrangements.

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Agreed action

27. The injustice to the late Mr X cannot now be remedied but the Council will, within one month of my final decision, apologise to Mrs X for the distress and anxiety caused initially by the delay in arranging a suitable placement, and secondly for the way in which it delayed responding fully to the complaint.
28. Within one month of my final decision the Council will also offer the sum of £750 to Mrs X to recognise the distress caused to herself and the late Mr X by the delay and confusion surrounding the arrangement of the placement, and a further £250 to recognise the additional frustration caused by the complaint handling.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed this investigation on the basis that there was fault on the part of the Council which caused injustice to Mr and Mrs X. Completion of the recommendations at paragraphs 27 and 28 will remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman