Summary: There was fault by the Council because it delayed carrying out an annual review of Mr K’s care. The Council has agreed our remedies for the injustice. There is no evidence of unremedied injustice about Mr K’s long term plan, and about carers support for Mrs K.

The complaint

1. Mrs K complains on behalf of her disabled adult son Mr K that the Council has not provided enough support for him to begin to live in his own home with carers to support him. She would like to move out of the family home, with a full package of care in place for Mr K. She has asked for an increase in care hours (24 hours a day every weekend instead of every other weekend) to enable her to get a team of carers in place to progress the transition.
2. Mrs K also complains the Council has not completed a carer’s assessment and has not responded regarding her query about how she may use a carer's card.

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The Ombudsman’s role and powers

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. 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

5. 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).
6. Mrs K complained in February 2024 that she has tried for years to get her son’s support increased. Mrs K’s complaint is late, and I do not see there are good reasons to consider matters before January 2023.

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How I considered this complaint

7. I have discussed the complaint with Mrs K and considered the information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Mrs K and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant legislation and guidance

Care Plan

8. 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.

Reviews

9. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Mental Capacity Act

10. 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.

Best interest decision making

11. 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.
12. 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.

Background

13. Mrs K lives with her adult disabled son Mr K, who has learning difficulties. The Council assessed Mr K’s needs and provided a support package for his care during weekdays. Mrs K is Mr K’s carer, and she also works full time.
14. Mrs K does not have Lasting Power of Attorney or court appointed deputyship in order to make decisions on Mr K’s behalf.
15. In July 2022 Mrs K told the Council her long term plan was to move out of her home and for Mr K to remain on his own home with an increased 24 hour package of care.

What happened

16. In January 2023 the Council agreed to provide day and night care for Mr K every other weekend for 21 weeks a year. The Council provided this via a direct payment.
17. In May 2023 Mrs K asked the Council for care for Mr K every weekend. The Council met with Mrs K in June 2023. The Council’s notes of the meeting show the social worker manager advised Mrs K it would not be possible for the Council to provide support every weekend. Mrs K asked who she could raise this with. The manager said Mrs K could make a complaint. Mrs K said she would like Mr K to live on his own one day with support. The Council suggested they considered supported living placements. But Mrs K said this was unsuitable for Mr K.
18. In July 2023 Mrs K complained to the Council that:
• There had been no planning by the Council. She had advised it she would like to move out and for Mr K to live in his home alone with support. But the Council had not considered this and had not planned anything.
• She had asked the Council to provide care every weekend as she wanted to work towards him living at home with support. The Council said it would need to hold a Best Interests Meeting to decide whether it was in Mr K’s best interests to remain at home on his own. But the Council had not progressed this.
• She had asked the Council to review Mr K’s care plan because it did not meet his needs, but it had not done so.
• The Council took a long time to respond to her queries.
19. The Council did not reply to Mrs K’s complaint within 25 working days in accordance with its targets.
20. In September 2023 Mrs K emailed the Council and said she had not had a reply to her complaint. She said she had been unable to move forward with her plans for Mr K.
21. In mid November 2023 the Council replied to Mrs K’s complaint. It partially upheld most of her complaints. It said that:
• It said it would need to discuss Mrs K’s plans in a Best Interests meeting. This would likely take place when she had progressed the plan and had timescales in mind. It noted she had made several requests for support every weekend for Mr K. The social worker manager had not escalated this to a senior manager. It said the annual review was now due and so it could consider care and support every weekend. Mrs K could ask the Council to escalate the matter to senior managers after the review if she was dissatisfied with any decisions.
• It noted Mrs K said the number of care hours were not sufficient and this was having a negative impact on her working life. It said it was clear Mrs K was struggling. The Council said that it would address this in its annual review and it apologised to Mrs K.
• The Council did not consider that it took a long time to respond to Mrs K.
22. Mrs K complained to the Ombudsman that the Council’s response was not correct:
• She knew what was in her sons best interests and the Council had not responded to her request or arranged a best interests meeting.
• She asked why the social work manager had not escalated her request almost six months earlier to a senior manager. She said it was not respite care she needed but increased care and support hours.
• The Council was wrong to say she was struggling. It was the Council’s lack of support that was the problem and its failure to plan ahead.
• She said she had waited for a year for the Council to respond to her request for increased hours
23. In response to my enquiries the Council said that it did not consider Mrs K’s plan to leave her home was imminent. She has clarified in July 2024 this would possibly be in the next 1-2 years.
24. The Council said it does not have notes on its system regarding the social work manager discussing Mrs K’s request for more care hours at the weekend with senior managers. It also said that it appeared the social work manager was considering the Council’s “Short Break (Respite) Policy” February 2023 in response to Mrs K’s request for more care hours.
25. The policy states at 5.1 that the Council can offer short breaks in various ways such as short breaks at home or self directed support such as direct payments or managed care packages. The Policy states
• The usual allocation for a Short Break will be 14 – 28 nights per year.
• Exceptionally, a person’s circumstances will require an increased allocation which can be authorised by Senior Management.
26. The Council explained the reason for its delay in responding to Mrs K’s complaint between July and November 2023 was due to officers being on leave and seeking and checking responses from other officers. It also said it had responded within 6 months in accordance with the Statutory regulations about responding to adult social care complaints.
27. The Council completed its annual review in August 2024 and notified Mrs K that there was no substantive change to Mr K’s needs. In October 2024 it advised Mrs K it had considered her request for extra hours at the weekend but it did not agree this. However, it said it would arrange a best interests meeting within the next 8 weeks.

Analysis

28. I considered there was fault causing injustice to Mrs K by the Council because it:
• Did not refer Mrs K’s request for increased weekend hours to a senior manager as requested in July 2023. Instead, in November 2023 it said it would consider this in the annual review process. Mrs K was understandably frustrated as she was no further forward.
• Delayed carrying out the annual review due November 2023 completing it in August 2024. While the Council has referred to Mrs K not responding as part of the reason for delays, it appears there was also delay on the part of the Council. Mrs K had to chase up a response on her request for increased hours in September and October 2024.
• Delayed responding to Mrs K’s complaint of July 2023 until November 2023. It did not apologise for its delay in its response.
29. While I consider there were delays by the Council causing frustration and uncertainty for Mrs K, I note the Council has not agreed to the extra provision Mrs K requested. Therefore, Mr K has not missed out on provision due to the delays.
30. I have not seen evidence of fault by the Council in its decision not to increase the number of hours to cover every weekend. The Council increased weekend care hours in January 2023 as respite care in accordance with its Short Breaks (Respite) Policy. The Council has explained it was not yet at the point where it considered it was necessary to provide 24 hours care every weekend. As Mrs K’s intention was to move out in 1-2 years, it would consider this closer to the time. At that point it would hold a best interests meeting.
31. Councils have a duty to meet current unmet eligible needs for care and support, not future needs. I do not consider there is fault here. The Council will consider Mr K’s needs when Mrs K confirms when she will move out.

Carer’s support

32. The Council assessed Mrs K as Mr K’s carer. In January 2023 it agreed to a direct payment of £300 for Mrs to use for leisure or relaxation or to improve her health and wellbeing. This was payable via a carer’s card which Mrs K could use.
33. In July 2023 Mrs K complained that The Council had not provided her with sufficient support as a carer. It had not provided sufficient information.
34. In early September 2023 Mrs K asked the Council whether she could use the carer’s card to go on holiday. The Council replied on 20 September that Mrs K could use the carer’s card to pay for a holiday.
35. In November 2023 the Council responded to Mrs K’s complaint. It said it had completed a carer’s assessment and provided a carer’s budget. It provided signposting information to carers’ groups and apologised it had not given this information earlier.

Analysis

36. There is no fault by the Council regarding the use of the carer’s card. The Council confirmed that Mrs K could use the card for a holiday in September 2023 shortly after she queried this.
37. There was fault causing injustice by the Council regarding its failure to give signposting information about carers’ groups. The Council’s apology is a suitable remedy for the injustice caused by this fault.

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Agreed action

38. Within one month of my decision the Council has agreed to
• apologise for the frustration, uncertainty and time and trouble Mrs K was put to due to its delays considering the review of Mr K’s care and support and delay responding to her complaint.
• Pay £150 to Mrs K as a symbolic payment to recognise the frustration and uncertainty it has caused due to its delays.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault by the Council causing injustice to Mrs K. It has agreed to remedy this and so 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