Summary: Mr X complained the Council failed to provide a daycare centre placement for his disabled daughter. He also complained the Council failed to respond to his requests for a placement and funding. Mr X says his daughter has missed out on social interaction and stimulation offered by the daycare centre. We found fault by the Council regarding its response to Mr X, but no fault regarding the daycare placement. The Council has agreed to provide an apology to Mr X to address the injustice identified.

The complaint

1. Mr X complained the Council failed to provide a daycare centre placement for his disabled daughter. He also complained the Council failed to respond to his requests for a placement and funding. Mr X says his daughter has missed out on social interaction and stimulation offered by the daycare centre. He would like the Council to agree to the placement and provide the necessary funding.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome; if there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. 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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What I have and have not investigated

6. I have exercised discretion to investigate Mr X’s complaint dating back to June 2022. This is because Mr X has made his complaint on behalf of his daughter who is unable to make the complaint herself, and the complaint relates to events dating back to June 2022.

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How I considered this complaint

7. I discussed the complaint with Mr X and considered the information he provided.
8. I made enquiries to the Council and considered the information it provided.
9. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Legislation and guidance

10. 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.
11. 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 personal budget must always be enough to meet the person’s care and support needs.
12. 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.

(Care and Support Statutory Guidance 2014)

13. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.

The Mental Capacity Act 2005

14. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
15. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
16. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
17. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
18. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

Background

19. Mr X says his daughter, Y, is highly and complexly disabled and requires significant care and support. Mr X shares parental care of Y with Y’s mother, Ms Z. Y’s living arrangements are divided between staying with Mr X and Ms Z, separately, for several weeks at a time. Mr X and his partner provide care for Y during the times she stays with them.
20. Y has a care and support plan provided by the Council, with care paid for by direct payments. Ms Z is the person nominated to manage the direct payments on behalf of Y, as a mental capacity assessment determined Y does not have capacity to manage her own finances. Mr X and Ms Z do not hold a lasting power of attorney for Y.
21. Mr X and his partner receive payment as carers from Y’s personal budget via direct payments for the times Y stays with them.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. In June 2022, Mr X told the Council he would like Y to attend a nearby day centre during the weeks Y was staying with him. Mr X said he would like Y to receive some social stimulation.
24. Mr X contacted the Council again in August 2022. He said he felt let down by the Council because no-one had contacted him about his request for Y to attend the day centre. The Council told Mr X that Y’s social worker no longer worked there.
25. Mr X contacted the Council again in September 2022 and said he needed a social worker to action his request for Y to attend the day centre. Mr X said he felt extremely let down by the Council as he had been waiting for two months for someone to contact him. The Council contacted Mr X a few days later and apologised for the delay. The Council said it had asked a manager to look at allocating someone to review Mr X’s request.
26. That same month, the day centre contacted the Council and provided confirmation of the cost of Y's potential attendance. On the same day, a social worker called Mr X to introduce themselves as the person dealing with Y’s case. Mr X raised several issues with the social worker, including his request for Y to attend the day centre to promote social interaction.
27. Mr X contacted the Council a few days later regarding the issues he had raised. Mr X repeated his view that he considered Y would benefit from some social interaction.
28. The Council responded in October 2022 and apologised that no-one had got back to him. It said the social worker was no longer in post and the Council had not yet been able to appoint another. The Council said it had asked other teams for support and to oversee Mr X’s concerns. It said it would need to contact Ms Z (as the manager of Y’s direct payments) when the Council was in a position to move forward.
29. Mr X spoke to the Council later that month. The Council said Y’s support plan was due to be reviewed. It said it had spoken to Ms Z who advised the Council that she was not keen on the idea of Y attending the day centre. Mr X said he was aware of Ms Z’s views but said he would provide transport to and from the day centre and would be available while Y was in attendance.
30. In late October 2022, the Council told Mr X it would review Y’s care and support plan.

What happened next

31. The Council began its review of Y’s care and support plan in November 2022. The Council invited Mr X to attend meetings to discuss the care plan with it and relevant professionals.
32. During this period, Mr X told the Council he was frustrated because it had not resolved the issues he had raised, and because the social workers involved with Y’s case had changed again.
33. In December 2022, Mr X complained that nothing had happened regarding his request for Y to attend the day centre. Mr X asked when the Council would appoint a new social worker and when a review would take place to allow Y to attend the day centre.
34. In February 2023, an independent advocate was allocated to provide support for Y. At about the same time, the Council told Mr X it had appointed a new social worker to Y’s case.
35. In early March 2023, the Council agreed to hold a meeting to discuss Y’s best interests regarding her care and support plan.
36. In late March 2023, Mr X told the Council he considered Y’s primary need was to have some social contact at the day centre.
37. At about the same time, the Council held another meeting to discuss Y’s best interests. Shortly after, in April 2023, Mr X attended a meeting with the Council and other professionals to discuss Y’s continuing healthcare.
38. The Council provided its complaint response in late April 2023. It said a new social worker had been appointed to Y’s case, as well as an advocate. The Council acknowledged a difference of opinion between Mr X and Ms Z as to whether Y should attend the day centre and said Ms Z was currently against this option. The Council said it was seeking to engage with all parties to try and reach an outcome that was in Y’s best interests.
39. In July 2023, the Council carried out a care needs assessment for Y. It recognised Mr X and Ms Z both shared parental care and stated any agreement for day services that fell under a direct payment were for both parents to discuss and agree.
40. Mr X attended a meeting in August 2023 with Y’s advocates and other involved professionals, to discuss Y’s best interests. The meeting included exploring the role of the Court of Protection and acknowledged that Ms Z’s thoughts on day services should be gathered.

Mr X’s complaint

41. Mr X complained to the Council in November 2023. He said he had been asking the Council to approve a placement at the day centre since June 2022. He also complained that his requests for updates had received no response.
42. The Council responded in January 2024. It said the responsibility for ensuring Y’s care arrangements are robust lies with the authorised person who manages the direct payments. It said any changes to the care arrangements or funding were dependent on a full review of the situation, including a reassessment of Y’s needs. The Council said it was in the process of engaging with the authorised person and said it would seek Mr X’s input as part of the review.
43. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.
44. Analysis – Mr X’s complaint the Council failed to respond to his requests.
45. Mr X complained the Council failed to respond to his requests for a placement and funding at the day centre. I have reviewed the Council’s records, including the correspondence between Mr X and the Council. Mr X initially requested a placement in June 2022; the Council did not agree to carry out a reassessment of Y’s care and support plan (to see if the placement was appropriate) until the end of October 2022. This period of four months to respond to Mr X’s request is evidence of delay, and I have found this to be fault causing frustration to Mr X.
46. After October 2022, the evidence indicates the Council liaised with Mr X as part of the assessment process. I acknowledge Mr X’s comments that the social workers involved with Y’s case changed several times during this period. I also acknowledge Mr X chased up progress with the Council as the care needs assessment was not concluded. However, the evidence does not demonstrate the Council failed to respond to Mr X after October 2022.

Mr X’s complaint the Council failed to provide a daycare placement for Y.

47. The evidence provided indicates:
• The Council said it would consider the daycare placement as part of a care needs assessment.
• The Council was in contact with Mr X and Ms Z regarding the assessment, as both parties share parental care of Y.
• The Council acknowledged a differing opinion between Mr X and Ms Z regarding Y’s attendance at the day centre.
48. The evidence indicates the Council took account of Mr X’s and Ms Z’s views as part of the care needs assessment. The evidence also indicates the Council has taken appropriate action in terms of its consideration regarding the role of advocates for Y, and the Court of Protection when the issues raised have not been resolved.
49. The Council says it is continuing to engage with both parties and will consider Mr X’s request for a daycare placement as part of the ongoing review. There is no evidence to indicate the Council’s decision-making process regarding this matter is flawed, and I therefore cannot question the decision itself. As a result, the Council is not at fault regarding this aspect of the complaint.

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Agreed action

50. To address the injustice to Mr X, the Council has agreed to take the following action within one month of the final decision:
1. Provide a further apology to Mr X regarding the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have found fault regarding the delay in responding to Mr X and the Council has agreed to provide an apology to Mr X. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman