Summary: Mr D complains the Council has failed to properly assess and meet his care needs, communicate with him and respond to his complaints. The Council has accepted fault in failing to complete a care needs assessment for Mr D, communicate with him, and deal with his complaints. The Council has agreed to apologise to Mr D, make him a symbolic payment, assess his needs; and provide him with a personal budget. It will also consider whether it should repay any costs Mr D has incurred because of the Council’s delay and make service improvements.

The complaint

1. Mr D complains the Council has failed to both assess and meet his social care needs. Mr D says the Council has also failed to properly communicate with him and deal with his complaints.
2. Mr D says because of the Council’s failures he has had to pay privately for care and for those acting on his behalf in pursuing the Council.

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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. Mr D does not have capacity to act on his own; and documentary evidence is available to make a finding on the complaint. I have therefore exercised the Ombudsman’s discretion to investigate the complaint even though it is late. My investigation will focus on what happened since the Council’s decision to reduce Mr D’s care package.

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How I considered this complaint

7. I considered evidence provided by Mr D’s representatives, the “Representatives" and relevant law, policy and guidance.
8. The Representatives and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

Assessment

9. 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. 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.
10. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

11. 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.

Personal Budgets

12. 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. (Care and Support Statutory Guidance 2014)

Complaints

13. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

14. Mr D has complex care needs and Acquired Brain Injuries (ABI). The Council funded a home support package for Mr D of three/four care calls every day. On 24 November 2021 the Council withdrew funding for Mr D’s care. The Representatives asked the Council for a reassessment of Mr D’s care needs. The Council did not respond to the Representatives’ formal requests for a reassessment or properly engage in communication with them. This included a complaint and a letter before action.
15. While the Council took some action to assess Mr D and advised the Representatives that Mr D had eligible needs it did not conclude the assessment or provide Mr D with a personal budget.
16. The Representatives made a further formal complaint on 17 June 2024 and received an incomplete unsubstantive Stage 1 response in July. The Representatives asked the Council to escalate the complaint to Stage 2 of the complaints procedure but this did not occur.
17. Mr D has used interim compensation payment awards to fund his care. This money is not solely intended to pay for care but also for Mr D’s case management, therapies, and housing costs. Mr D’s Representatives say he has remained eligible for Council funded care despite the compensation payment.
18. In response to our enquiries the Council:-
1. has accepted it delayed from 2021 in reassessing Mr D’s care needs. It has now completed a care assessment and set a personal budget for Mr D. The Council says the complexity of Mr D’s needs, and staffing pressures which reduced capacity delayed completion of the assessment;
2. says it will consider refunding Mr D’s care costs once it has finalised his personal budget;
3. accepted it did not follow its complaints procedure and progress Mr D’s complaint to stage two of its procedure.
19. Since my enquiries the Council has completed Mr D’s care assessment and support plan. The support plan includes four hourly calls a day and a further five hours of weekly care which Mr D can use flexibly for shopping and visiting friends.
20. In addition the Council has:
• appointed “an Advanced Practitioner within the team to take a lead role in ensuring Care Act assessments are completed in a timely manner and in accordance with both Council expectations and statutory responsibilities.” Performance is now monitored weekly by Service Managers and any cases that raise concern are flagged to enable timely intervention and appropriate support;
• completed a complaints policy review this is to ensure all team members are fully aware of their responsibilities and understand the procedures outlined within the policy;
• provided staff training from two agencies to enhance staff knowledge and understanding of ABI to provide valuable insights and professional development for the team;
• “Lived Experience Engagement” - Service Managers are actively seeking an individual with lived experience of ABI to speak with the team and deepen their understanding of the real-life impact of ABI and inform more empathetic, person-centred practice;
• an Advanced Practitioner who will lead a team-wide learning set focused on Mr D’s case to facilitate shared learning and promote continuous improvement in practice;
• an Advanced Practitioner who has delivered a presentation to the team on the qualities of effective supervision, both from the perspective of the supervisor and the supervisee. The session emphasised the importance of high-quality supervision in supporting staff development and service delivery.
21. The Representatives say Mr D has found the situation stressful as at times it was unclear whether he would have sufficient funds to pay for his care.

Is there fault causing injustice?

22. The Council failed to reassess Mr D’s needs, provide a personal budget and support plan. This is not in line with the Care Act and the Care and Support Statutory Guidance and is fault.
23. The Council did not escalate or adequately respond to Mr D’s complaint. This is not in line with Local Authority Social Services and National Health Service Complaints (England) Regulations 2009) and is fault. These Regulations also say councils should only have a single stage complaint process. I therefore find fault in the Council’s two stage process.
24. Because of the faults identified and the four year delay in reassessment; it is more likely than not, Mr D has had to meet the cost of his care needs, some if not all if which, were the responsibility of the Council. Mr D has also incurred extra deputy and solicitor costs to support him with challenging the Council.
25. Mr D has had potential financial loss and the distress of uncertainty that his care needs could not be met because of lack of funding. Due to Mr D’s ABI these have had a greater impact and caused him anxiety.

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Action

26. During my investigation the Council has taken some action. However I do not consider these are sufficient to remedy the injustice caused. The Council has agreed to the added actions below.
27. Within one month of the final decision the Council will:
1. apologise to Mr D for the Council’s delays in assessing him and the distress this has caused him;
2. make Mr D a symbolic payment of £500 for the distress the Council’s actions have caused him;
3. reimburse and back date his care costs which the Council should have funded. This should be net of charges Mr D would have had to pay;
4. consider how the Council will account for Mr D’s added legal and deputy fees for the work incurred in pursuing the Council for a reassessment;
28. Within three months of the final decision the Council will:
1. Provide evidence it has carried out the actions it has said it will take as set out in paragraph 20 including:-
1. action to prevent delay in care assessments;
2. action to ensure the complaint process is followed;
3. staff training to increase awareness and knowledge of acquired brain injury;
4. use of staff supervision to improve staff performance.
2. review and amend accordingly the Council’s social care complaints policy so it is in line with Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice. I have now ended my investigation and closed the complaint on the basis of the above agreed action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman