Summary: The Council was at fault as it failed to meet Mr X’s eligible unmet social care needs. This caused Ms X avoidable distress because she had to provide informal care and Mr X distress because he missed out on social and community activities which Ms X is not in a position to support him with. The Council will issue an apology, make symbolic payments to reflect the distress, re-contact possible providers and complete the review of Mr X’s care and support plan.

The complaint

1. Ms X complained for her relative Mr X and in her own right. She said the Council failed to provide care and support to meet all Mr X’s needs.
2. Ms X said this had a negative impact on Mr X as he could not access the community. It also affected her because she had no choice but to provide care for the 22 hours the Council failed to provide and she had no time off to engage in a private and social life of her own. Ms X said this breached her human rights.

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The Ombudsman’s role and powers

3. We may investigate complaints made on behalf of someone else if they have given their consent. Where a person cannot give consent, we can investigate a complaint if we consider they have a suitable representative (Local Government Act 1974, section 26A(1) and (2), as amended)
4. Mr X has learning disabilities. Based on information from Ms X and the Council’s case records, we are satisfied he cannot give informed consent to bring this complaint or consent to her being his representative. His learning disabilities likely mean he does not understand the issues. We consider Ms X to be a suitable representative.
5. 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)
6. 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(1), as amended)

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What I have and have not investigated

7. The timeframe for my investigation is June 2024 to February 2025. The earlier date is when Mr X’s community support provider changed to the Council’s in-house service. The later date is when Ms X complained to the LGSCO.
8. As I have set out in paragraph 12, our role is not to determine breaches of a person’s human rights. So my decision does not say whether there has been a breach of human rights as this is for the courts. Instead, I have considered whether the Council had regard to Ms X’s human rights in its dealings with her.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

11. The European Convention on Human Rights (ECHR) sets out the fundamental rights and freedoms that everyone in the UK is entitled to including the respect for private and family life. The Human Rights Act requires all local authorities and other bodies carrying out public functions to respect and protect individuals’ rights. Article 8 of the ECHR protects a person’s right to respect for private and family life and their home and correspondence.
12. Our remit does not extend to making decisions on whether there has been a breach of the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
13. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:

• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

14. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
15. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Accessing work, training, education
• Developing and maintaining family or other personal relationships
• Making use of facilities or services in the community including public transport and recreational facilities or services
• Carrying out caring responsibilities the adult has for a child.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2

16. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. (Care Act 2014, sections 24 and 25)
17. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
18. Direct payments (DPs) are cash payments a council gives to an adult or their agreed representative to enable them to arrange care and support themselves.

What happened

19. Mr X has eligible care and support needs and receives a DP from the Council. This is used to provide care and support in the home. Ms X is paid as Mr X’s personal assistant (PA) using the DP. As well as the DP, the Council has agreed funding for 40 hours a week of support for Mr X to access the community to engage in recreational, social and leisure activities. I refer to this funding for 40 hours as ‘community support’ in this statement.
20. Mr X’s community support was previously provided by a specialist provider commissioned by the Council.
21. In June 2024, the Council arranged for its in-house service to provide Mr X’s community support. The in-house service started providing 12 hours of community support in the second week of June and 18 hours from the beginning of September. The in-house service did not have any capacity for the remaining 22 hours. Ms X told us she has had no choice but to step in and provide informal care for the remaining 22 hours that were not commissioned.
22. The Council has provided a spreadsheet of providers it approached between July and December 2024 for Mr X’s community support that the in-house service could not deliver.
23. The Council told Ms X the providers it contacted either declined, did not respond or had no capacity. One offered to show Ms X round its facility. Two other providers were suitable.
24. Ms X told us she asked the Council to set up a meeting with one of the providers the Council had identified, but this was not pursued because the provider did not have any drivers and the Council did not consider other transport options.
25. Ms X complained to the Council about the same issues she has raised with us. The Council’s response said it partially upheld Ms X’s complaint because there was a gap in community support based on the arrangements set out in Mr X’s current care and support plan. The response went on to say:
• It would continue to look for a provider who could offer the remaining 22 hours of community support.
• It could also explore supported living for Mr X, but it recognised this was not a preferred option given the changes this would involve for him.
• There had been missed opportunities to look at Mr X’s overall support and the Council was proposing to do a care and support plan review.
• It acknowledged the difficulties Ms X was facing. It was difficult to separate her two roles: as Mr X’s paid PA and her role as Mr X’s mother and informal carer. It would like a holistic review of the care and support plan considering the Council’s duties to meet eligible needs and to support informal carers.
26. Unhappy with the Council’s response to the complaint, Ms X complained to us.

Findings

27. The Council was at fault because it has a legal duty to meet Mr X’s eligible unmet care and support needs. There was a gap in community support provision with only 12 hours provided by the in-house service between June and August 2024, rising to 18 hours from September 2024. This means a significant amount of community support was not made available for Mr X for the period I have considered (June 2024 to February 2025).
28. The Council made attempts to seek providers between July and December 2024, but these attempts were not successful for reasons which were not always within the Council’s control. In addition, there were no further attempts to seek providers in January and February 2025. This was fault because of the legal duty to ensure Mr X’s eligible unmet needs were met, although the Council was seeking to review Mr X’s care and support plan meantime. This caused Mr and Ms X avoidable distress.
29. The Council’s complaint response shows it considered Ms X’s rights as an individual. It recognised the impact of its inability to commission all Mr X’s community support and suggested a holistic review of the care and support plan. This was a partial remedy. I have made some additional recommendations for the Council in the next section.

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Agreed Action

30. Within one month, the Council will:
1. Issue a written apology to Ms X. 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 I have recommended.
2. Make Ms X a symbolic payment of £250 to reflect the avoidable distress caused by having to provide informal care for Mr X against her wishes.
3. Make Mr X a symbolic payment of £250 to reflect he has not received all his community support.
31. The Council has been taking various actions since the complaint was submitted to the LGSCO including searches to find a care provider for Mr X. Within two months, the Council will:
1. Re-contact the five care providers who have recently expressed an interest in providing Mr X’s community support and offer the family dates for Mr X to meet with and be assessed by those providers.
2. Re-offer an additional direct payment to be used for Mr X’s community support (either using a suitable agency or by recruiting a PA. As Mr X already has a DP representative and the Council’s personal budget support service are already managing an existing DP on Mr X’s behalf, there are no obvious barriers to this. The personal budget support service can also offer advice and guidance on recruiting a PA if needed.
3. Re-offer any other available service that would meet Mr X’s community support needs.
4. Complete the review of Mr X’s care and support plan, making any revisions as necessary to ensure all Mr X’s eligible care and support needs (community needs) are met. If Ms X is unhappy with the outcome of the care and support plan review or with the care and support plan review process, she will need to make a fresh complaint to the Council. If she remains unhappy once the Council has responded, it is open to her to approach us with a new complaint.
32. Mr X and those involved with supporting him do not have to take up points 31(b) or (c) in the previous paragraph. They are available options.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman