Summary: The Council was at fault for the delay in reviewing Mr X’s adult son, Mr Y’s, needs assessment and care and support plan and for failing to provide overnight respite. It also delayed responding to Mr X’s complaint. This caused Mr X and other family members significant frustration and distress and meant they had to provide unpaid support, without a break, for an extended period. The Council has agreed to apologise to Mr X and make payments to Mr X and other family members. It has also agreed to provide evidence of the improvements it made following Mr X’s complaint including to ensure outstanding cases are reviewed and that there are plans to mitigate risks where reviews identify delays in providing services.

The complaint

1. Mr X complained the Council:
1. failed to arrange respite care for his adult son Mr Y. He says the family identified two potential respite placements which they informed the social worker of in October 2022 but the social worker failed to take any action until 2024, by which time they were not available;
2. failed to update Mr Y’s care and support plan despite agreeing to do so in early 2023; and
3. significantly delayed responding to the complaint.
2. Mr X says this meant him and other family members received no respite from their caring roles and were caused significant frustration by the Council’s delays.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.

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What I found

The relevant law and guidance

Needs assessment and care and support planning

8. 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.
9. 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.
10. 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.

Direct payments

11. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. Where the person does not have the mental capacity to request a direct payment, an authorised person can do this for them. Direct payments enable people to arrange their own care and support to meet those needs.
12. Councils must be satisfied the person can manage the direct payment and the payment is being used to meet the person’s needs. Direct payments must not be used to pay for care from a close family member living in the same household unless the council decides this is necessary. (Care and Support (Direct Payments) Regulations 2014).

Mental capacity

13. 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.
14. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
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.

What happened

17. Mr Y is a young adult with autism, who has severe communication difficulties and sensory issues. He lived at home with his mother who provided him with a significant amount of support. His father Mr X lived separately and also provided care and support to Mr Y. During 2023 Mr Y attended a day care placement two days a week and college three days a week.
18. I have considered what happened from January 2023 until October 2024 when Mr Y moved to a residential placement. I have provided some earlier information as relevant background. The following is a summary of the main events relevant to this complaint.
19. The Council completed Mr Y’s care needs assessment in April 2022, so it was still relevant in 2023. The assessment noted respite and support options needed exploring so Mrs X could continue to support Mr Y at home. It noted he required a mental capacity assessment to determine the extent to which he could contribute to decisions about his care. It noted he required overnight respite once a week plus five days a week of day services/college and additional hours of support. In November 2022 the Council acknowledged it needed to explore activities for college holidays.
20. In December 2022 the Council contacted respite provider B (which was out of the Council’s area) and respite provider C, both of which Mrs X had visited. Respite provider B had limited availability but said it may be able to offer some weekdays. Respite provider C was full. The social worker updated Mr X. The Council’s notes say it contacted all its in-house respite providers.
21. The Council contacted respite provider B again in April 2023. It advised it had no availability.
22. The Council completed Mr Y’s care and support plan in November 2023 which included two overnight respite sessions a week and two to one respite during college holidays for three days a week.
23. Mr X complained to the Council in December 2023. He complained they had received no overnight respite and had no contact or reviews in over a year.
24. In January 2024, Mr Y’s social worker contacted Mr X and asked to review the care package. Mr X responded that he was reluctant to discuss anything if it was not in writing. He wanted to know if the Council had found Mr Y an overnight respite placement yet. The social worker responded that respite provider B had no availability and respite provider C was extremely limited.
25. In February 2024 the social worker told Mr X that respite provider C said it could not meet Mr Y’s needs.
26. The Council responded to Mr X’s complaint in March 2024. It said that since the COVID-19 pandemic respite had been significantly impacted. It said it had given the family direct payments so Mr Y could attend respite in another council’s area but this stopped in November 2022 when Mr and Mrs X withdrew him from the service. It had explored respite provider B and respite provider C in late 2023. It agreed Mr Y’s review was overdue and apologised. It agreed to carry out a new assessment to provide a true representation of Mr Y’s current needs.
27. Mr X responded to the Council in March 2024 and explained that attendance at the previous respite placement stopped as one staff member took Mr Y into the community with another user when Mr Y required two to one support. Mr X reiterated they required overnight respite as Mr X woke regularly during the night and meant he and Mrs X were sleep deprived.
28. The social worker contacted Mr X again in April 2024 asking to meet to discuss Mr X’s needs. A meeting was arranged for May 2024.
29. A manager met with Mr X in May 2024 to discuss his concerns. Following this they emailed Mr X. Throughout the email they referred to Mr Y using the wrong name. They apologised for the difficulties Mr X had faced and said they would ensure the Council improved communication with him and Mrs X in future. They said the social worker would contact Mr X and agree a date to review Mr Y’s care and support plan, there would be an agreed plan regarding direct payments and how these could be used to support Mr Y and they assured Mr X that respite would be available before the end of July 2024.
30. The Council emailed Mr X in June 2024 that it understood his complaint was resolved following the meeting.
31. In June 2024 the social worker met with Mr X to start reviewing Mr Y’s needs assessment. Mr X explained he had left his job to provide additional support for Mrs X, and Mrs X’s mother provided further support during school holidays when respite was not available. Mr Y’s sister Ms Z also provided supported outside of school hours. At the meeting the social worker agreed family who did not live with Mr Y could be paid support hours through direct payments. Ms Z received direct payments for some of the support she provided to Mr Y. Following this Mr X and the social worker corresponded further regarding the amount of support Mr Y required. Mr X said Mr Y only slept around four hours a night and needed supervision when awake.
32. Mr X contacted the Council in July 2024 and said he was still dissatisfied with the complaint response. He said, no respite had been offered and Mr Y’s reassessment was not completed. Mrs X had returned over £20,000 of funding to the Council from the direct payment account as she had not been able to use it. The family were providing a significant number of unpaid hours of support.
33. The social worker sent Mr X the needs assessment and draft care and support plan in August 2024. This noted Mr Y needed two to one support in the community. It noted he attended college three days a week and day care once a week. It recommended one night a week of respite and two days a week of day services plus an additional 25 hours a week of support. The social worker asked Mr X if he and Mrs X required a carer’s assessment.
34. The Council sent Mr X a final complaint response in September 2024. It acknowledged that due to safeguarding concerns and the breakdown in the relationship Mr Y could no longer use the respite provision which ended in November 2022. It said the social worker followed up on the concerns raised about that provision but it accepted this was not communicated to Mr X in a timely manner. It apologised.
35. It accepted the delay in reviewing Mr Y’s care and support plan impacted the opportunity to get respite. It accepted there was no clear or consistent follow up of the approaches to respite provider’s B and C and no other services were approached. It acknowledged there were significant shortcomings in the support provided to Mr X and Mr Y. It offered a payment of £500 each to Mr X, Mrs X, Mrs X’s mother and Ms Z for the additional support and respite they offered to Mr Y. It accepted there were failings in the complaints process and offered £100 to acknowledge the time and trouble this caused.
36. The Council set out the action it was taking to address the delays. It said it had set improvement recommendations including clear management oversight of cases in the Young Adults Team, regular reviews of outstanding care and support plans and reviews with a clear plan of action to mitigate potential risks associated with delays.
37. It said Mr Y had now had a new needs assessment and a care and support plan was undergoing last minute amendments. It said the Council would organise Mr Y’s respite by the end of September 2024.
38. The Council sent Mr Y’s needs assessment to respite provider C to consider. It responded later that month that it could not assist. The assessment was sent to another provider. Mr X asked the social worker what other options there were.
39. Day care providers for the college holidays were unsuccessfully consulted. Ms Z agreed to provide some paid support during the October 2024 college holidays but did not want to continue doing so in 2025. The social worker responded that based on the assessment none of the Council’s respite provisions could meet Mr Y’s needs so the Council was approaching external providers. They had also been unable to find a day centre provision but one provider was interested in assessing Mr Y. They suggested Mr Y consider supported living.
40. The Council completed Mr Y’s care and support plan in November 2024. This included: 20 hours of personal assistant support during college term time and 40 hours a week in the college holidays; two days a week of day care in college term time and three days a week in the college holidays; and 52 nights of respite per year.
41. In early December 2024, following an incident at home, the Council arranged for Mr Y to stay in a residential care unit for emergency respite. Mr Y currently remains at the placement and visits home at weekends.

Findings

42. Mr Y’s care plan included weekly overnight respite care for Mr Y. Throughout the period I investigated, Mr Y did not receive any overnight respite. The Council also failed to ensure Mr Y received the support set out in his care and support plan during college holidays. During 2023, there were significant delays in the Council taking action to identify suitable respite providers which was fault. This was also hampered by a lack of provision that could meet Mr Y’s needs. The Council assured Mr X in July 2024 and again in September 2024 that it would arrange respite. The Council’s failure to provide this was fault.
43. The statutory guidance sets out that care and support plans should be reviewed at least every 12 months. The Council delayed reviewing Mr Y’s needs assessment and care and support plan, despite agreeing to do so. Mr Y’s needs assessment in place in 2023 was dated April 2022. Mr Y needs and behaviours had changed in that time. This delay caused uncertainty over whether, had this happened sooner, respite providers may have been more willing or able to support Mr Y.
44. When it carried out the review the Council also agreed that due to the exceptional circumstances, family members who did not live with Mr Y could be paid to provide support. The delay also leaves Mr X with a sense of uncertainty over whether the Council might have agreed to do this sooner had the review been held earlier.
45. In its September 2024 response to Mr X’s complaint, the Council set out the actions it intended to take to address delays and prevent recurrence of the faults in future. I am satisfied the recommendations it made are suitable service improvements. I have recommended it provide evidence so that we can be satisfied that it has completed these actions.
46. The Council significantly delayed responding to Mr X’s complaint. This was fault and added to Mr X’s frustration. In its final complaint response, the Council acknowledged the delay in reviewing Mr Y’s needs assessment and that this may have contributed to the lack of respite. It also acknowledged the Council had not done enough to identify suitable respite for Mr Y.

Injustice

47. Although Mr X is the complainant, we have the power to investigate matters coming to our attention during an investigation if we think a member of the public has or may have suffered an injustice as a result; and we can also make recommendations to remedy any injustice caused to them by council fault. Mrs X, Mrs X’s mother and Ms Z were also impacted by the Council’s faults.
48. The Council offered to pay Mr X, Mrs X, Mrs X’s mother and Ms Z £500 each to acknowledge the injustice they were caused. It also offered to pay Mr X £100 to acknowledge the impact the delays in the complaints process had on him.
49. The failure to arrange overnight respite had a significant impact on Mr and Mrs X and their caring roles. The Council’s repeated assurances that respite would be arranged added to their frustration. The impact on Ms Z, Mr Y’s sister, was mitigated to some extent by the Council agreeing to pay her to provide some hours of support to Mr Y during 2024. Mrs X’s mother also provided unpaid support during college holidays, but to a lesser extent that Mr and Mrs X.
50. Mr X says he was unable to work for some of this period due to the need to support Mr Y and Mrs X in her caring role. Our role is not to assess economic loss or award compensation. Such payments are best resolved by the courts. However, we can make symbolic payment to acknowledge the impact of the faults identified. I am satisfied the remedy offered to Mrs X’s mother and Ms Z by the Council was appropriate to acknowledge the impact of the fault. I have recommended an additional remedy for Mr X and Mrs X as £500 does not remedy their injustice fully. I have also recommended the Council increase the symbolic payment it offered to Mr X to recognise the impact of its poor complaints handling, given the length of the delay.
51. The lack of overnight respite placed Mrs X and Mr X under significant pressure and ultimately is likely to have contributed to Mr Y needing to move to a residential placement. Mr X says the family want Mr Y to return home. If Mr or Mrs X have concerns about Mr Y’s current placement and where he should live, they should discuss this with the Council. It is open to them to complain to the Council and then us if they are unhappy with the situation. In reaching any decision on where Mr Y should live in future the Council should consider Mr Y’s mental capacity and follow the best interests’ process.

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Agreed Action

52. Within one month of the final decision the Council has agreed to:
1. If it has not done so already, pay Ms Z and Mrs X’s mother £500 each to acknowledge the additional unpaid care they were required to provide because of the Council’s fault.
2. Apologise to Mr X and pay him and Mrs X £1000 each, which is inclusive of the £500 each it has already offered, to acknowledge the significant impact the lack of respite for Mr Y had on them. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
3. Pay Mr X £200 (inclusive of the £100 it has already offered) to acknowledge the frustration caused by the delays in responding to his complaint.
4. Provide details of the action it has taken, in line with the recommendations it made in responding to Mr X’s complaint in September 2024, to ensure in the Young Adults Team:
1. there is clear management oversight of cases;
2. reviews are carried out of outstanding care and support plans; and
3. reviews include a clear plan of action to mitigate potential risks associated with delays in providing services.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I find fault causing injustice which the council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman