Summary: Mr B complains about the Council’s delayed assessment of his son’s needs when he moved from children to adult care services. Mr B also complains the assessment itself did not involve them. And the Council tried to force him to take a direct payment. The Council also delayed responding to his complaint. Our decision is there was fault by the Council. The Council has agreed to our recommendations for remedies it should make.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains about the Council’s assessment of his son’s (Mr C) needs when he transitioned from children to adult services. He says:
• the assessment was inadequate and not based on any input from them. It took incorrect information from other sources, resulting in a reduction in support;
• the Council tried to force him to take direct payments, which were unsuitable for them. It did not suggest alternatives or contact its children services team to ask how it had been commissioning the support; and
• the Council significantly delayed its response to his complaint.
2. Mr B says the matter has caused him significant distress, and has caused Mr C confusion and upset. He wants the Council to pay Mr C for the missed support and him for his distress. He also wants the Council to be held accountable and to make clear in its records its report was not accurate.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr B;
• made enquiries of the Council and considered its response;
• spoken to Mr B;
• sent my draft decision to Mr B and the Council and considered their responses.

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What I found

Legal and administrative background

Transition from children to adult care services

6. When a child reaches 18 years old, they are legally an adult and responsibility for meeting their needs moves from a council’s children services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
7. Statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18.
8. If transition assessment and planning is carried out as it should be there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, a council must continue providing the services under children’s legislation until the adult care is in place or until it decides the young person does not have eligible needs.
9. The Care Act 2014 and the Children and Families Act 2014 enable local authorities to continue providing children’s care and support services to young people between the ages of 18 and 25 who have Education, Health and Care (EHC) Plans. The transition assessment may decide that continuing children’s services are the best way to meet the young person’s needs. Children’s and adult services must work together, and must agree any decision to continue children’s services past the age of 18.

Care Act assessments

10. 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. 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.
11. 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.

Personal Budgets

12. Everyone whose needs a council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
13. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

14. Direct payments are monetary payments made to individuals who ask for them to meet some or all their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

What happened

Background

15. Mr C was born in May 2005, so was due reach his 18th birthday in 2023. He has multiple care needs and disabilities. He has not been attending school since 2020 and has an EHC Plan. In 2021 Mr B and Mr C moved to the County from a neighbouring area.
16. After Mr C moved, the Council’s Children and Young People Service (CYPS) agreed to fund a package of care delivered by a personal assistant employed by an organisation (Organisation 1). The personal assistant was the carer who had supported Mr C before his move. They travelled to assist Mr C in the County.

The referral to Adult Social Care

17. Around October 2022, the Council’s CYPS referred Mr C to its Adult Social Care (ASC) team for an assessment before his transition to adult services.
18. A social worker from the Council’s ASC team first contacted Mr B in January 2023. The social worker asked Mr B some questions then about Mr C’s needs. She also checked other available records.
19. The Council has a record of the social worker carrying out assessments in April and the first week of May. This record notes:
• the family would like the support from Organisation 1 to continue. This was important, as Mr C did not cope well with change;
• the substantial amount of support Mr B provided Mr C. It noted he prioritised Mr C’s needs over his own. And Mr B was asking for little in the way of paid support, despite Mr C’s significant care needs;
• a recommendation that Mr C’s support continued as it had been when CYPS was funding it. And the Council provide this by a direct payment to allow Mr C to pay for Organisation 1’s personal assistant;
• Mr B said he would prefer not to have to manage Mr C’s direct payment, due to all the other support he provides. So the social worker would request that a third party manage the direct payment.
20. Mr B says they were not involved in these assessments and did not receive any record of them. The Council’s case records have no entries between 26 January and 11 May. However, Mr B did forward the Council a copy of an email the social worker sent him at the end of April. In this she advised she had completed her assessment and did not expect there to be any concerns from management about the care and support package she was requesting.
21. The Council says the social worker who had been involved in Mr C’s assessment was then off work on unplanned leave. So its duty team was involved in completing the assessment.

The discussions about funding

22. In the second week of May the Council wrote to Mr B offering a direct payment. Mr B said he did not want to go down that route. He said he saw no reason the Council could not continue to provide the support itself, as it had been doing when Mr C was a child. The Council replied that ASC could not do this, as it worked under a different framework from CYPS. If it was to directly provide care, it would need to be from a provider on its approved list and would have to be via a tender process. Receiving a direct payment was the way to avoid that option.
23. As Mr B said he did not want a direct payment, the Council officer then dealing with the matter enquired with the Council’s ASC brokerage team if it could fund the care in the way CYPS had done. The officer also noted the urgency, due to Mr C’s upcoming birthday. The brokerage team’s response was it could not just make an exception for a provider, as it had to follow procurement law. It advised of options, but concluded by saying the only way to guarantee Mr C could keep the same provide was to have a direct payment.
24. Mr B complained and shortly after, Mr C had his 18th birthday.
25. As Mr B had said he did not want a direct payment, the Council began to search for providers. It did not tell Mr B until, at the beginning of June, a duty officer telephoned Mr B with an offer of a Council commissioned package of care, from a new provider. In response to this telephone call, Mr B emailed the Council expressing his anger at the call and that the Council:
• was proposing to reduce the hours of care Mr C received;
• was asking them to accept a direct payment if they wanted to keep the same provider;
• was not honouring what the social worker had previously advised (see paragraph 20); and
• had delayed, given he had made the request well before Mr C’s 18th birthday.
26. A manager in the ASC team spoke to Mr B. She advised she would see if the was any way to make an exception, due to Mr C’s circumstances. The Council’s brokerage team confirmed to the ASC manager there was no way its procurement process allowed it to make an exception. At the end of the month the manager relayed that information from to Mr B.
27. Mr B responded to say he continued to disagree with the Council’s analysis. But, if the Council agreed to not charge him for a managed direct payment account, he would agree to that arrangement while the complaint was resolved.

The second assessment

28. The Council also agreed to carry out a further assessment of Mr C’s care needs, due to Mr B’s assertion the social worker had not involved them in the earlier one. The records of the assessment note ASC agreed:
• for a continuation of the support provided by Organisation 1; and
• to pay the managed account fee for an agency to manage the direct payment.
29. The Council sent Mr B a copy of this assessment in mid-August.
30. Mr C received no support from Organisation 1 from his 18th birthday until early September.

The complaint

31. The Council has a complaint response dated 21 September. Mr B says he did not receive the response until December. It:
• explained why it could not provide the support from Organisation 1 as a Council commissioned account;
• was clear the service Mr C received “…was not timely nor the level we would aim for”;
• said it would work to make sure it would provide timely services in future. And it would contact people within two weeks when an officer was off unexpectedly.
32. Mr B complained to the Ombudsman. In response to my enquiries, the Council advised:
• its service had updated its Preparing for Adulthood guidance to include a way of tracking young people to ensure they do not fall under the radar;
• of reasons for its complaint response delay, which included delay by the commissioning team and the investigating officer.

Was there fault by the Council?

Delay and the first assessment

33. There was a delay in ASC considering Mr C’s care needs. It first contacted Mr B in January 2023, but did not seem to do anything further until the end of April. That delay meant, when the social worker was unexpectedly absent from work, not much time remained before Mr C’s birthday in which to arrange the package of care.
34. I accept Mr B’s statement the social worker did not visit them or contact them again, when completing her assessment. The Care Act says an assessment must involve a service user and carer and keep them informed. That did not happen, which was fault.

Funding

35. When a new officer contacted Mr B, he made clear he was not willing to manage a direct payment. Given the support Mr B provides Mr C, it was understandable that he did not want to also have to manage a direct payment.
36. The Council says there was no way, due to procurement rules, that it could provide the care by a Council managed account. I do not fault it for that view. And I do not agree with Mr B the Council tried to force him to have a direct payment. It was always offering a commissioned service. I understand why he was reluctant to take that option, due to the need to change provider. But it was an option that was available.
37. However, continuity of care was important to Mr C. The records of the April (disputed) assessment note that. The Council could have earlier considered the option of paying for a managed account, given the urgency of the situation and arranging it. The Council took too long to consider this opinion. That was fault.
38. The different Acts also allow councils’ children services to continue to provide care after a young person turns 18. The Council does not seem to have considered that option. That might have been a different way to overcome the funding issue. To have not considered this option was fault.

Care provision after Mr C’s 18th birthday

39. The fact Mr C has care needs is demonstrated by all the assessments. But Mr B says Mr C’s package of care stopped at his 18th birthday and did not start again until over three months later.
40. Where an adult package of care is not in place when a young person reaches 18 the guidance says the care provided by children services should continue. That care should only end when ASC begin to provide care, or it decides the young person did not have eligible needs.
41. I would have expected some part of the Council to have ensured there was no break in Mr C’s provision. It has not sent me any record that any of its officers, at any point in this process, considered this issue. That was fault.

Complaint response

42. There was also fault in a delay in the Council responding to Mr B’s complaint.

Did the fault cause an injustice?

43. The effect of the faults I have identified are that Mr C was without provision for around three months. Given Mr B says Mr C does cope well with change, this will likely have been distressing to him.
44. It was also likely distressing to Mr B. The delay deprived Mr B of any respite from his caring role. It will also have caused him avoidable stress and frustration and unnecessary time and trouble. These injustices demand their own remedy.

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Agreed action

45. The Council has agreed that, within a month of my final decision it will take the following actions.

Mr C

46. As a symbolic recognition for the faults, it will pay Mr C:

• £1500 for the provision he missed due to the faults identified.
• £300 for the avoidable distress he was put to.

Mr B

47. As a symbolic recognition for the faults, it will pay Mr B:
• £300 for the missed respite from his caring role;
• £200 for the frustration and stress the faults caused him;
• £150 for the avoidable time and trouble he was put to.
48. The Council has also agreed that, within a month of my final decision, it will review the complaint and provide a report on any lessons it has learnt.
49. The Council should provide us with evidence it has complied with the above actions.
50. Mr B asked that the Council’s records were altered to make clear the April assessment was not accurate. I have reviewed the Council’s records and they already demonstrate Mr B’s concern about the content of that document. So on this point, no further action is needed.

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Final decision

51. I uphold the complaint. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman