Summary: Dr X complains the Council has failed to provide her daughter with the support she has been assessed as needing. The Council has failed to meet all her daughter’s needs, causing avoidable distress. The Council needs to apologise, involve Dr X in assessing her daughter’s needs and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Dr X, complains the Council has failed to provide her daughter with the support she has been assessed as needing.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Dr X;
• discussed the complaint with Dr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Dr X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Dr X’s daughter, Miss Y, has autism and a significant learning disability. She lives in supported living accommodation, where she receives support meeting her assessed needs, including accessing the community, from a care provider. She has a mobility vehicle which support workers drive for her.
7. Miss Y’s November 2019 assessment says she has challenging behaviour which can make her a risk to others (biting, gauging) and to herself (hand biting). It says she had settled in well at the day centre and was having fewer “incidents”, on average one a week. It says Miss Y does not respond well to change, so any change in accommodation or day support could have a detrimental effect on her wellbeing.
8. In March 2020 she was attending a day centre five days a week. When the country went into lockdown because of COVID-19, the day centre closed.
9. According to the Council’s records, in July Miss Y was doing well at home but there had been “an increase in behaviour which is to be expected”. The care provider asked about the timescale for returning to day services. The Council said it could not give a time frame but asked for Miss Y’s care plans, risk assessments and incident reports for the past 12 months. It prepared a case for its Complex Case Board for Miss X to return to the day centre. The plan had been for the Board to consider this in July but for some reason this was put back to September.
10. In September the Council held a best interests meeting to decide whether it was in Miss Y’s best interests to return to the day centre. The care provider was concerned the placement would breakdown if Miss Y did not return to the day centre. The record of the meeting says alternative activities and support strategies (recommended by a learning disability nurse) had not been successful. Miss Y was showing “increasing behaviours of concern” (biting, agitation, distressed unable to focus on activities) and was “fixated” on returning to the day centre. Everyone agreed it was in her best interest to do so.
11. The Complex Case Board agreed Miss Y could return to the day centre two days a week.
12. The Council updated Miss Y’s care and support plan. This says she would receive five hours of 2:1 support at the day centre for two days a week. It also says the attendance five days a week ended “due to a health investigation. [Miss Y] returned to day centre following this but the service was not reinstated. Her attendance is now impacted by COVID-19 guidelines but the funding needs to be reinstated. There is no confirmed date for her return".
13. Miss Y returned to the day centre on 7 October.
14. On 30 March 2021 the Council arranged to visit Miss Y at home for a “review” and to discuss “ongoing incidents”. The care provider felt an increase in day care was needed. There is no record of the visit itself in Miss Y’s case notes.
15. Dr X complained to the Council on 9 August about the failure to reinstate Miss Y’s day services to five days a week.
16. Miss Y’s social worker noted they were waiting for a Complex Case Board decision on an increase in day care.
17. On 6 October the Council told Dr X the Complex Case Board had agreed to increase Miss Y’s attendance at the day centre to three days a week.
18. When the Council replied to Dr X’s complaint on 11 October 2021, it said:
• when day services reopened they had reduced capacity because of the need to socially distance and other infection control measures;
• it had prioritised those living alone, without support, and those living with family who worked;
• in April it asked the care provider for incident reports for a joint funding application to the NHS;
• between April and August it waited for date for a Care Programme Approach review (led by the NHS), which was rearranged twice;
• the Complex Case Board told Miss Y’s social worker on 27 September about its 15 September decision to increase her day centre attendance to three days a week on an interim basis; and
• it had reassessed Miss Y and provided appropriate support. It did not intend to review her three days a week at the day centre but would do so in 12 months, or earlier if her needs changed.
19. On 27 October the Council contacted the Care Provider to check when it could accommodate Miss Y’s increased attendance at the day centre. Dr X says the increase has not been implemented. The Council has not updated Miss Y’s care and support plan to reflect the increase.
20. When responding to my enquiries in February 2022, the Council said the most recent assessment was the one carried out in 2019. It said another assessment was in draft and being completed. Dr X says the Council has not involved her in reassessing her daughter’s needs.

Is there evidence of fault by the Council which caused injustice?

21. 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. The review will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment.
22. When the Council assessed Mis Y‘s needs in 2019 it agreed she needed to attend the day centre for five days a week to have them met. That was not possible during the first COVID-19 lockdown in 2020 through no fault of the Council. Nor was the Council at fault over the fact access to day services had to be limited when the lockdown was lifted. Continuing restrictions relating to COVID-19 meant such services could not reopen with the same capacity they had before the pandemic.
23. The Council has periodically reviewed Miss Y’s needs. However, it is unclear how it can be satisfied it is meeting her needs when she is not attending the day centre five days a week. Its records show other strategies and activities were trialed, but they were unsuccessful. They also show the plan had been for Miss Y to return to the day centre five days a week. The fact that has not happened and the impact this has had on her, mean there has been a significant change in her circumstances, which should have prompted the Council to reassess her needs in 2020. The failure to do so is fault by the Council.
24. When the Council wrote to Dr X in October 2021, it said it had reassessed Miss Y’s needs. But there is no evidence it had done that. The Council says it has nearly completed an assessment. It appears it has not involved Dr X in that process. Any assessment which did not seek to involve Dr X would be flawed. The Council needs to rectify this and complete an assessment with some urgency, involving Dr X in the process.
25. The Council has been slow to respond to requests for additional support for Miss Y. It took three months before she was able to return to the day centre two days a week. It took six months to agree she could go three days a week. It appears this has never been implemented. These are faults by the Council. It means the Council has not been meeting all Miss Y’s needs, which has had a significant adverse impact on her.

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Agreed action

26. I recommended the Council within four weeks:
• writes to Dr X acknowledging and apologising for its failings;
• pays Dr X £250 for the time and trouble she has been put to in pursuing the complaint and the distress caused by its handling of the reassessment of her daughter’s needs;
• completes an assessment of Miss Y’s needs and update her care and support plan, involving Dr X in the process;
• arranges for a senior manager involved in Miss Y’s case to meet her to get to know her better; and
• shares this decision with the Cabinet Member with responsibility for adult social care.

The Council has agreed to do this.

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Final decision

27. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman