Summary: Mrs X complains the Council has failed to meet the need for respite breaks since the start of 2022, when it agreed to fund 28 overnight respite breaks a year. The Council has been at fault over its planning for overnight respite for Mrs X’s son. There has also been service failure over the failure to provide all his planned respite breaks in 2022 and 2023. The Council needs to apologise and make a symbolic payment to the family for the additional pressures it has put upon them.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to meet the need for respite breaks since the start of 2022, when it agreed to fund 28 overnight respite breaks a year.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3.  
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mrs X’s advocate;
• discussed the complaint with Mrs X’s advocate;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Mrs X’s son, Mr Y, has complex needs arising from physical and learning disabilities. He is a young adult (under 25) who does not communicate verbally. He uses a wheelchair and needs two people to hoist him when transferring him to other pieces of equipment. He can slide off his wheelchair and move around on his bottom. His behaviour can be challenging. He lives at home with his parents and siblings. The home is overcrowded. Mr Y shares a room with one of his siblings, who meets his needs at night.
7. An occupational therapy assessment from July 2021 said a portable hoist should only be used in an emergency, if there was no ceiling hoist and then only if Mr Y was calm, as he had the ability to make a hoist tip over. It said if he was to stay at care home A, run by care provider 1:
• Staff would need further training and experience of managing him to provide the type of interaction he needed, otherwise he would be difficult to manage, and his challenging behaviours would intensify; and
• Mr Y would need:
1. a bespoke large shower chair;
2. a ceiling track hoist in a bedroom and in the living room;
3. the use of two bedrooms, one with a low bed and a ceiling hoist, and another with a rise and fall bed and a ceiling track hoist.
8. However, the occupational therapist told care provider 1: “If you are thinking that the portable hoist could be used with [Mr Y] in the interim until the ceiling track hoists are in installed, then would say given his family’s desperate need for respite, the benefits might outweigh the risks, but I wouldn’t recommend it for long term”.
9. In October 2021 Mr Y got a bigger wheelchair, as he had put on weight. However, he continued to use a smaller wheelchair as his mobility vehicle was not large enough to carry him in the larger wheelchair.
10. In February 2022 Mr Y went to care provider 2’s supported living service for overnight respite. While he was there, staff had an accident when using a mobile hoist. Mr Y was uninjured, but the staff supporting him were. Care provider 2 said it could not meet Mr Y’s needs unless it had a rise and fall safe space, so the hoist could be slid under the bed to prevent tipping. It said the Council would have to provide the equipment, as it did not need it for anyone else. It also told the Council it needed three people to meet Mr Y’s personal care needs. Care provider 2 mainly supports children but it also supports people during the transition period to adulthood (18 to 25 year olds).
11. A manual handling risk assessment confirmed the size of Mr Y’s wheelchair (28 inches). It identified problems pushing him in the wheelchair outside because of their combined weight (25 stones). It also noted that the wheelchair was only just narrow enough to fit through the doors of the educational establishment he was attending. The assessment confirmed the need for a ceiling hoist for transfers, including to/from a shower chair.
12. In March the Council spoke to Mr Y’s family about him moving to supported living accommodation. It noted their home was overcrowded and that two family members needed to be present when he was at home. His family raised concerns about people being mistreated in supported living accommodation and did not want to explore it further.
13. In April Mr Y’s family told the Council they were disappointed that he could not attend the supported living service for overnight respite anymore. The Council said it would look at sourcing overnight respite from care provider 1.
14. In May the Council told Mr & Mrs X it had contacted care provider 1 about supporting Mr Y and it had agreed to assess him. They told the Council they were unhappy about the lack of overnight respite.
15. In July the Council updated Mr Y’s care and support plan to provide for 28 overnight respite stays in care home A. It also provided for Mr Y to attend care provider 1’s day centre two days a week during the summer holiday. It said Mr Y was hoisted into a shower chair at home when his hair and body were being washed.
16. From 29 July Mr Y started attending the day centre two days a week. His family left the larger wheelchair for his use at the day centre until they had a mobility vehicle large enough to transport him in it.
17. On 3 August Mr Y had an overnight stay at care home A.
18. From mid-September Mr Y started attending college four days a week. He continued going to the day centre one day a week. He had a further overnight stay at care home A.
19. In October Mr Y had a two-night stay at care home A. He stopped going to college but started attending the day centre three days a week.
20. In November Mr Y stayed for a further two nights at care home A.
21. In January 2023 Mrs X complained that Mr Y had not had any overnight respite since November 2022. She said stays had been cancelled because of damage to the roof. The Council updated Mr Y’s care and support plan to provide for:
• 28 overnight stays in care home A;
• attending the day centre three days a week.
22. The updated care and support plan repeated what is said in the previous plan about hoisting Mr Y into a shower chair at home when his hair and body were being washed. The updated plan said staff at care home A and the day centre supported Mr Y in this area, but did not explain how they would do this.
23. In February Mr X told the Council Mr Y’s behaviour at the day centre was becoming more challenging. He said he had a carpet burn after staff restrained him. Care provider 1 told the Council staff restrained Mr Y when his behaviour escalated because they had tried to manage his behaviour in a communal area, rather than in a private area (as they had done previously). The Council said they should continue to manage his behaviour as they had done previously. Mr Y’s family got a larger mobility vehicle which was big enough to accommodate the large wheelchair. His family had been using a smaller wheelchair when taking him to the day centre and the care home in the old mobility vehicle.
24. In March it was agreed that care provider 1 could use hand over hand restraint if less restrictive de-escalation measures did not work. Mr Y spent four nights at care home A. Mr & Mrs X took him there in the large wheelchair for the first time. It then became apparent that the wheelchair was too large for the care home’s doors, so Mr & Mrs X had to fetch the smaller wheelchair.
25. When Mr Y returned home, Mrs X raised safeguarding concerns, as he had a wound to his bottom, bruising to his ankles and had not been bathed while he was there. Within the context of its safeguarding enquiries, the Council decided Mr Y could not return to care home A unless additional adaptations were made.
26. Mr Y stopped going to the day centre in April but started going again in May.
27. However, in June he transferred to a different day centre run by care provider 2. He continues to go there three days a week.
28. In July Mrs X’s advocate complained to the Council about the lack of overnight respite care and asked it to recompense them. When the Council replied it said:
• It had agreed to waive all charges for Mr Y’s stays at the care home, as a gesture of good will, but he would have to pay for all current and future services.
• The Council had no duty to provide transport (while the family waited for a larger mobility vehicle). It understood their preference was to use his own mobility vehicle. They had the option of transporting Mr Y in his smaller wheelchair and transferring him to the larger wheelchair for use during the day.
• While the Council had a duty to ensure assessed needs were met, it had no duty to provide any particular service to do so. Mr & Mrs X had had regular opportunities for breaks, including three days a week of day care since his education stopped in September 2022.
• His parents’ preference was for respite to constitute of both daytime opportunities and overnight breaks. The Council remained committed to providing this, but it needed to balance this with its duty of care to Mr Y and others. Care home A was the only available option to meet Mr Y’s needs. However, his stay in March 2023 raised new issues (the larger wheelchair), which required further works before he could return there, but this had not been explored as his parents did not want him to return there but wanted to explore alternative overnight breaks
• Mr & Mrs X had turned down offers to explore other ways of providing short breaks.
• Care home A was only made aware on Mr Y’s visit in March 2022 that he had a larger wheelchair. It asked for him to use his smaller wheelchair, which was only used when moving him from his designated room to other parts of the building, as Mr Y preferred to self-mobilise on the floor and had access to a hoist.
• The occupational therapist knew Mr Y could not access bathing facilities at care home A as there was no ceiling hoist and because of the risks associated with using a mobile hoist. During Mr Y’s two day stay at care home A, his personal care needs were met by an all over bed wash and applying cream. In March 2002 it became apparent that personal care was a real trigger for him, which meant staff could not safely deliver it on occasions, which had implications for his skin integrity (particularly during warmer months). He would therefore need access to bathing facilities during a stay over more than two nights.
• The safeguarding enquiry concluded the injuries to Mr Y’s skin were not due to neglect but unsubstantiated.
29. Mrs X was not satisfied with the Council’s response, so her advocate asked the Council to review it. When the Council replied in October, it said:
• It did not accept that compensation was due as the issue of access to overnight respite would have been resolved by funding further works at the care home, such as widening the doorway and providing equipment to access bathing facilities. But Mr & Mrs X did not want Mr Y to return to the care home. It had told them identifying alternative placements may take a long time because of the complexity of Mr Y’s needs.
30. The Council updated Mr Y’s care and support plan. It said:
• the overnight respite was ending on 27 October;
• overnight respite was “very much needed” as his sibling needed regular breaks from providing overnight support;
• a multidisciplinary team was continuing to explore suitable respite options for Mr Y;
• Mr Y would continue to attend care provider 2’s day centre three days a week;
• Mr Y’s personal budget was £300 a week.
31. The updated care and support plan said Mr Y was becoming more resistant to showering at home, possibly due to his size and the comparatively small space available for showering. It said staff at the day centre were supporting Mr Y on a 3:1 basis with personal care as he did not like this support. It said Mr Y had had some issues with skin integrity, including a sore bottom, so he needed through personal care to reduce the risks. It also said an updated moving and handling plan had been requested to help inform care providers about Mr Y’s need for support with bathing and personal hygiene.
32. The Council updated Mr Y’s care and support plan again in November. While it continued to confirm the need for overnight respite care, this was removed from the list of commissioned services. The three days a week at the day centre remained. The Council also increased Mr Y’s personal budget to £358.26 a week.
33. The Council says when Mr Y stays at care provider 2’s care home, three rooms are reserved for his use, one is used to store the bedroom furniture, and another is used for the height adjustable bed used to deliver personal care. It has funded equipment and adaptations at the care home to meet Mr Y’s needs:
• Tracking hoist
• Boxing in a sink
• Stable door to the room
34. The Council has confirmed it is willing to fund the further work and equipment needed to make care home A suitable for Mr Y’s need. It says this is subject to an assessment by an occupational therapist but is likely to include:
• Widening the necessary doors to fit the large wheelchair;
• Equipment needed to provide access to a bath or shower
35. When responding to my enquiries, the Council said:
• It had offered to commission care provider 1 or another care provider to provide daytime respite from Mr Y’s home to access the community. It said it had also offered Mr & Mrs X direct payments to employ personal assistants to do this. But Mr & Mrs X did not want this.
• Care provider 2 did not ask it to fund anything directly but “suggested they could not meet [Mr Y’s] needs due to lack of equipment”. It had since contacted care provider 2 about supporting Mr Y but the lack of equipment was not the only reason it served notice. It was unable to meet his needs because of their complexity and the fact care provider 1 supported children which “heightens the risks associated with [Mr Y] encountering smaller children”.

Is there evidence of fault by the Council which caused injustice?

36. Mr Y has complex needs which means he needs bespoke services. The evidence shows Mr Y should not have been sent to care provider 2’s supported living accommodation. This is because it was using a mobile hoist which should only be used in an emergency. While there is no doubt the family had an urgent need for respite, that was not in itself an emergency. There is no prospect of Mr Y returning to the supported living accommodation, as it provides support for children as well as young adults.
37. Mr Y has had a larger wheelchair since October 2021. This was reflected in the manual handling risk assessment from 2022. However, it appears he only used the larger wheelchair while he was at the day centre until he got a mobility vehicle large enough to carry him in it in February 2023. This resulted in insufficient consideration being given to the larger wheelchair. The Council needs to accept some fault over this.
38. The Council arranged overnight respite for Mr Y at care home A without first ensuring it had all the equipment in place to meet all his needs (a shower chair). Mr Y’s care and support plan did not address how his need for help with washing would be met at care home A. The occupational therapy assessment from 2021 confirmed the need for a bespoke shower chair. The failure to provide one was fault by the Council. The Council says Mr Y was to have a body wash while at care home A, but this did not take account of his needs over a longer stay. The problems he experienced when he went to stay at care home A for four nights were down to a lack of planning by the Council. However, the Council has now commissioned a moving and handling plan to inform care providers of Mr Y’s needs, which should ensure there is no lack of clarity about what is needed to meet them.
39. The Council has assessed Mr Y as needing overnight respite. It has a duty to meet that need. Since early 2022 there have been significant periods when that support has not been available. During 2022 and 2023 Mr Y has spent nine nights in overnight respite care, out of a planned 56 nights. The failure to provide all the overnight respite up to the middle of 2023 was a service failure. This caused injustice to Mr Y’s family who were put under additional pressure by meeting his needs without enough respite. Overnight respite is important for the sustainability of his current care arrangements, not least because Mr Y shares a room with a sibling. The Council’s offer of additional daytime support does not address that need. However, it has confirmed that it is prepared to pay for the equipment/adaptations care home A needs so it can accommodate Mr Y safely. It is for the family to decide whether to accept that. The Council’s offer would have brought the service failure to an end around the middle of 2023. This means it is no longer accountable for the ongoing lack of overnight respite care.

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Agreed action

40. I recommended the Council within four weeks:
• Writes to Mr & Mrs X apologising for the failure to meet Mr Y’s need for overnight respite care and pays them £2,000.
41. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation on the basis there has been fault and service failure by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman