Summary: The Council acknowledges it failed to provide the appropriate service for Mr and Mrs X’s son B and offers to reimburse Mr and Mrs X for the additional expenditure they incurred paying for private providers in the interim. The Council also failed for a long time to communicate properly with Mr and Mrs X. The Council will also now offer an additional amount to recognise the frustration caused by its delay and lack of appropriate contact.

The complaint

1. Mr and Mrs X (as I shall call them) complain the Council delayed in commissioning a suitable service to meet their son B’s eligible assessed needs. As a result they paid a considerable amount for private social care provision to meet his needs.

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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 the Council and Mr X and made additional enquiries. Both the Council and Mr X had the opportunity to comment on an earlier draft statement before I reached a final decision.

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What I found

Relevant law and guidance

5. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
6. Everyone whose needs the 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 council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. 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.

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.

What happened

7. B is a young adult with a learning disability. In 2021 while living at home with his parents he attended a college on a daily basis. B had an Education Health and Care Plan (ECHP). Mr and Mrs X said B was exhausted by the travelling and it would be better if it was a residential placement during termtime.
8. The Council assessed B’s eligible social care needs in December 2021. The assessment concluded, “Following completion of this assessment 07/12/2021and, in accordance to the Care Act 2014, (B) has eligible support needs resulting from a mental impairment … It is my opinion that allocation to a worker in … the Learning disability team is required to work with (B) and his family meet those eligible needs not being met by college, his buddy workers and college.”
9. No progress was made at all until May 2022. Mr X emailed the assessing social worker in December and January but without any response. The case was reallocated in May 2022. The new social worker made some amendments to B’s assessment and noted on the records, “these updates will be added and saved in the week commencing 6 June 2022. Discussions around Ways into Work referral, SAIL referral and respite consideration. All of these things to be explored after Education have made a decision on Residential Education Provision.”
10. The Special Educational Needs (SEN) team contact the social worker to ask if the Council would support a residential placement for B. The social work team manager replied that it would not.
11. In August the social worker emailed Mr X suggesting “Ways into work, respite, Support & Advice for Independent Living (SAIL), support being delivered in the morning”, but her email recalled that when discussed in their assessment these options were declined. The social worker went off work on long-term sickness absence later in August.
12. Another social worker (not allocated to the case) communicated with Mr and Mrs X in the next few months. Mr and Mrs X had appealed against the SEN decision not to include residential provision in B’s EHCP.
13. The Council was due to discuss B’s case at a support planning meeting in September 2022 but that was cancelled due to an extraordinary bank holiday and rescheduled to October. Mr X emailed the adult social care team at the end of October and said, “I have heard nothing. In the interim, the residential places at (B)’s college have apparently been filled and he remains without social care support”. He requested “A clear plan to provide the social care that (B) needs without further delay” and an update from the October meeting.
14. The social worker apologised for the delay in updating Mr X and asked if he wanted her to look for alternative accommodation for B until the question of a residential college placement was resolved. Mr X responded that the best outcome for B was a residential placement at college and it was not in his interests to move elsewhere first: “We are not only awaiting provision from last December’s assessment, but also the outcome of the SEND Tribunal.”
15. Mr X wrote to the Council expressing concern about the continuing delay and requesting compensation for the Council’s delay in making the appropriate provision. The team manager replied that it was not something she could authorize and in any event she disagreed there had been maladministration. She said there had been a delay but that was caused by the desire to seek a residential placement which was not available.
16. In November 2022 another social worker was allocated to the case. In January 2023 she completed another assessment. Mr X explained he was now paying for a private “buddy” scheme for B. Although the Council agreed funding for respite support, the social worker was unable to source a provider with availability. The Council says the social worker did not know the buddy service Mr X was paying for was one which the Council could commission.
17. The support planning group met in March and agreed the social care funding element of B’s college placement. The Council says, ‘SEN requested the parents were not told yet as SEN had things to sort at their end in relation to the tribunal”. When Mr X requested an update from the meeting the Council told him it was still awaiting the outcome from SEN to the support planning group. It was not until 17 May that the Council confirmed to Mr X that the residential placement had been agreed.

The complaint

18. Mr X complained again formally to the Council in July 2023 about the delays in putting in place the support which had been agreed in December 2021.
19. The Council responded in August. The service manager said she realized that a lack of communication had been a theme over recent months. She said she had reviewed the way the Council had not shared with Mr and Mrs X the outcome of the March support planning group for some months. She said “I believe that the LID Team should have further queried the request from SEN and escalated this matter for decision from senior management as it was inappropriate to keep you waiting. I am sorry that you did not receive regular communication and updates and the team reflect that they should have let you know what we were doing and maintained open communication with you. I appreciate that this may have caused you and (B) additional frustration and stress and would like to apologise for that”.
20. The service manager also apologized that the social worker had not realized the buddy service could have been commissioned by the Council but instead had spent some time trying to source other providers. She agreed to reimburse the costs Mr X had incurred from February onwards if invoices were provided.
21. The service manager also apologized for the lack of response to emails.
22. Mr X asked the Council again to consider compensation or reimbursement for the period of time in 2022 when B had not had the provision the Council had identified was appropriate to meet his needs. The Council responded that it stood by the negative response it had given in October 2022.
23. Mr X complained to the Ombudsman.
24. The Council says it accepts that there has been fault “in not providing the service in a timely fashion…. The County Council also recognises that the relationship between Adults’ Health and Care and Special Educational Needs (SEN) could be improved and the Locality Service Manager is engaging in meetings to support with this”.
25. The Council also acknowledges there were shortcomings in the service it provided. It says however that the locality services manager acknowledged Mr X’s request for compensation, asked him to provide her with receipts and said she would discuss it with her head of department “which regrettably she did not so”.
26. Mr X points out that the locality manager did in fact respond to his request and refused it. The Council now says it believes this is a misunderstanding: that the locality services manager was discussing a request for compensation in respect of maladministration, not reimbursement of costs. It says it remains open to resolving this issue.
27. Mr X says from January 2022 to January 2023 - from the initial assessment through to the period for which the family has already been reimbursed - the costs total £3,900. He adds, “this provision was for 6 hours every other weekend. (B)’s budget was for 8 hours per week and 22 hours per week in college holidays. £3,900 at £25 per hour equates to 156 hours of support over 13 months. However, HCC has assessed (B) as eligible for 598 hours of annual support. (13 weeks x 22 hours, 39 weeks x 8 hours). I therefore maintain that as well as reimbursement of our out-of-pocket expenses, (B) should receive some compensation for lost provision.”
28. Mr X adds that B still does not have a care and support plan or personal budget in line with the legislation, although these were requested a year ago.

Analysis

29. The Council acknowledges there were significant shortcomings in the way it handled this matter.
30. There was a significant delay before the Council finally agreed funding for the provision it had assessed as an eligible need in December 2021.
31. Different Council departments failed to communicate properly with each other and with Mr and Mrs X.
32. The social worker failed to understand that the Council could have commissioned the provision Mr X was paying for.
33. It was quite wrong for the Council to delay telling Mr and Mrs X the outcome of the February 2023 meeting for so long.
34. It was either pure semantics or willful misunderstanding on the part of the Council to argue the difference between compensation and reimbursement for provision Mr X had paid for.
35. The cumulative effect of those failings was a long period of confusion, distress and anxiety while the family waited (often without any communication) to see what the Council would put in place. In addition of course B missed out on the provision he was assessed as needing. It is now up to the Council to remedy the injustices.
36. There has also been a delay in providing a care and support plan for B, with a personal budget.

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Agreed action

37. The Council will consider the expenses submitted by Mr X and agree their reimbursement within one month of receiving them.
38. Within one month of my final decision the Council will offer the sum of £1000 to B in recognition of missed provision and a further £1000 to Mr and Mrs X in recognition of the distress and anxiety its delays and inactions caused to them.
39. Within one month of my final decision the Council will also offer £500 to Mr X in recognition of the frustration caused by its poor complaint handling.
40. The Council is already reviewing the way in which its departments communicate and within one month it will provide me with evidence of the outcome of those discussions.
41. The Council will also ensure the provision of a care and support plan and personal budget in line with the legislation.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed this investigation. There was fault by the Council which has caused injustice which will be remedied by the completion of the recommendations in paragraphs 37 to 41 above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman