London Borough Of Barnet (19 011 268)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 15 Jan 2021

The Ombudsman's final decision:

Summary: Mr K complains about a delay in reviewing his support needs. And that the Council refused to agree to provide the support he needs to care for his son. We cannot decide whether Mr K needs all the support he requests. But we do uphold the complaint, because the Council did not provide any extra support when it could not agree a revised support plan with Mr K. The Council has agreed to our recommendations.

The complaint

  1. The complainant, whom I shall refer to as Mr K, complains the Council:
  • delayed carrying out a review of his care and support needs;
  • failed to issue a revised care and support plan following a review, despite having all the information it needed; and
  • delayed making a direct payment to him, that supported his parenting role.
  1. Mr K says this meant he was not able to receive the care he needed to look after his son and this caused him avoidable distress.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr K;
    • made enquiries of the Council and considered its response;
    • spoken to Mr K; and
    • sent my draft decision to Mr K and the Council and invited their comments.

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What I found

Legal and administrative background

The Care Act, Regulations and statutory guidance

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
  2. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
      1. The needs must arise from or be related to a physical or mental impairment or illness.
      2. Because of the needs, the adult must be unable to achieve two or more of the following:
  • managing and maintaining nutrition;
  • maintaining personal hygiene;
  • managing toilet needs;
  • being appropriately clothed;
  • being able to make use of the adult’s home safely;
  • maintaining a habitable home environment;
  • developing and maintaining family or other personal relationships;
  • accessing and engaging in work, training, education or volunteering;
  • making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
  • carrying out any caring responsibilities the adult has for a child.
      1. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
  1. Where local authorities have determined that a person has eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates with a copy of its decision.
  2. Councils must take all reasonable steps to agree a support plan with the service user. If it cannot agree a plan, the council should state the reasons for this and the steps which must be taken to ensure the plan is signed-off.

Complaints

  1. Adult Social Care complaints have a statutory procedure. The relevant Regulations have a list of issues which a council is not required to deal with under the statutory procedure. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, as amended, Regulation 8)
  2. The Council also has a formal (corporate) complaints process for services not covered by the Adult Social Care (and some other) complaint procedures. The Council’s complaints procedure says it is for when residents want to complain that the Council had:
  • not treated them with courtesy or fairness;
  • not provided services of an acceptable standard;
  • failed to provide a service; or
  • taken action the user was unhappy with.

What happened

  1. For several years the Council has been providing Mr K with a package of care for support needs he has, due to his disabilities.
  2. Mr K has a son, who in 2019 was six. Mr K’s son lives with his ex-partner. In April 2019 a court granted Mr K access to his son at the weekends. The court order had a schedule of contact – to start, this was during the day, on alternative weekends. From mid-July this extended to include overnight stays.
  3. On 15 May, Mr K contacted the Council asking for a review of his care and support plan, to include the support he would need to care for his son when he visited.
  4. Mr K had not heard from the Council, so he contacted it again on 5 June. He spoke to a social worker and arranged a meeting on 13 June to review his care and support plan. The social worker visited Mr K and carried out a review and completed an interim care and support plan. It noted:
    • Mr K’s care needs had not changed, but his circumstances had;
    • Mr K’s son would begin to stay over at his flat from mid-July;
    • the Council agreed an interim package of care to cover two weekends in July when Mr K’s son was due to visit;
    • Mr K would keep a diary of what care his son could carry out himself; and
    • they would meet again to review the package of care at the end of July, shortly after the second visit.
  5. A later note from the social worker records Mr K had provided the Council with the court document about contact with his son.
  6. On 8 Mr K July telephoned and emailed the Council. He advised:
    • the support plan was incorrect;
    • he wanted an earlier review;
    • he wanted the support plan in place as soon as possible;
    • he wanted 24 hour care and support to help him look after his son; and
    • he did not want to keep a log of his son’s activities, as he did not want to put his son under undue pressure.
  7. The social worker advised the earliest she could re-visit Mr K was at the end of July. At that meeting, and in a follow up email, the social worker requested further information from Mr K about his son’s care needs – a breakdown of tasks he needed help to carry out with his son, including timings.
  8. Later, the social worker emailed Mr K advising him she would like to visit with her manager to finish the care and support plan. Mr K refused, saying the Council had all the information it needed.
  9. In early October, a social work manager contacted Mr K asking him to set out how long tasks took. She gave a suggested increase in hours and asked if it would be adequate? Mr K’s response advised he needed full time support during the day for help with his parenting role. And he would get support at night from his family.

The complaint

  1. In mid-August, Mr K asked to complain, as his view was the review was taking too long.
  2. After some delay, at the end of September, the Council advised Mr K it would not take a statutory (Adult Social Care) complaint from him, as its view was his complaint was a request for an additional service. In October Mr K asked to complain again. He also contacted the Ombudsman. We asked the Council to consider the complaint from Mr K, under its corporate procedure.
  3. After further contact with the Ombudsman, in December 2019, the Council responded to Mr K’s complaint. It advised him:
    • it accepted that, to enable him to fulfil his parenting role, Mr K had care and support needs;
    • he had not provided a breakdown and had refused requests for a meeting; and
    • it proposed a meeting with a manager to resolve the issue of the support he needed.
  4. Mr K’s response was that a plan was agreed in June. So they did not need another meeting. He requested the Council send him a new care and support plan.

The later review

  1. In February 2020, the Council reallocated Mr K’s case for a review. The outcome of the review was that the Council:
    • agreed to provide funding for Mr K’s parenting role for an average of 17 hours per week (reflecting the fact Mr K’s son visited him every two weeks);
    • in its closure summary for the review, noted it needed Mr K to provide a detailed summary of the exact support he needed with his parenting role. He and his carer needed to keep a detailed breakdown of the support Mr K needed. The Council would review the care and support plan in six months;
    • agreed to backdate the revised care and support plan to August 2019.
  2. Mr K says in the period between August 2019 and February 2020 his son continued to visit him. But the Council was not providing any extra support for his extra care needs in that period. He says ‘…I was struggling to make payments for care…’.

The Council’s response to the Ombudsman’s enquiries

  1. Mr K complained again to the Ombudsman in February 2020. Our investigation was delayed by a pause in our casework, due to the start of the COVID-19 pandemic.
  2. We did ask the Council for information later in the year. In response to my enquiries, the Council advised it:
    • did not dispute Mr K’s son could not be left alone. But the Council’s role is not to look after Mr K’s son. Rather it is to support Mr K in his parenting role;
    • had tried to support Mr K to breakdown the tasks he needs support with;
    • apologised that it did not put in place any extra provision after it could not agree a revised plan with Mr K;
    • had reviewed how in future, it could be aware of cases that it had not progressed, or that had outstanding issues. And It had introduced weekly ‘insight reports’.

Was there fault by the Council?

Care and support needs assessments

  1. Support for caring responsibilities is one of the Care Act’s eligible needs. So it was right for Mr K to request support in his parenting role. But I agree with the Council that it was not bound to take it as given that Mr K needed support for the whole time his son was with him. Its noted its role was to support Mr K’s extra needs, not to look after Mr K’s son.
  2. That was something Mr K disagreed with – his view was it was reasonable for the Council to fund a carer to attend during all his daytime hours when his son was with him. Whether Mr K is correct with that view is not something for the Ombudsman to decide. But I cannot criticise the Council for wanting to assess this. So I cannot uphold that part of Mr K’s complaint.
  3. Mr K’s view is the Council had made a plan in June and had all the information it needed. But the June plan was interim. The Council noted it wanted to review the provision after the interim measures it put in place. I cannot fault the Council for wanting to do that.

Disputes about care needs

  1. The Care Act expects councils to take all reasonable steps to reach agreement with the service user over the care and support plan. In this case, this was difficult because Mr K had strong views about the care the Council should provide. But if a council cannot resolve a dispute, it should issue a plan that it considers meets eligible needs, even without the agreement of the person.
  2. On that basis, the Council should have issued a revised care and support plan setting out the extra support it would provide – from the end of July 2019’s interim plan. The failure to do so was fault.

The time before the overnight stays began

  1. Mr K notes his son had been visiting him since April. He contacted the Council in mid-May and it visited him in mid-June. That was a slight delay.
  2. And after the Council had visited, Mr K gave it a copy of the court order. That order notes Mr K’s son was already making daytime visits to him – four weekends after the date Mr K first contacted the Council (although one was too soon after the contact to be significant). The Council’s records and review are silent on asking Mr K anything about any care and support needs he might have had for those weekends. The Council should have, at least, considered whether Mr K had increased care needs for those earlier visits. To not have a record of considering this was fault.

The complaint

  1. The Council disputes whether Mr K’s complaint fell under the statutory adult social care complaint procedure. I am unsure why it reached that view, as it does not meet any of the exclusions set out in the relevant Regulations. But, in any case, by the Council’s own definition, it did meet its corporate procedure. So the Council should have taken a complaint from Mr K earlier. This led to a delay in considering the issue and reaching the resolution it did in February 2020. That delay was fault.

Did the fault cause an injustice?

  1. I am pleased to see that, when the Council looked again at Mr K’s care and support needs, it agreed to backdate the interim support plan to August 2019 – immediately after the end of the previous plan. That goes some way to remedying the injustice to Mr K.
  2. But the period when Mr K did not receive any support for his caring role will have led to some avoidable hardship – Mr K explains he needed to find funds to pay for carers from elsewhere. The delay in taking a complaint will have amplified this distress.

Agreed action

  1. I recommended that, within a month of my final decision, the Council:
    • write to Mr K apologising for the fault I have identified;
    • make Mr K a symbolic payment of £200 in recognition of his avoidable stress, and uncertainty caused by the failure to put in any increase and the delay in considering his complaint; and
    • remind its adult social care complaints team that complaints that do not meet the statutory Adult Social Care criteria may still be valid corporate complaints.
  2. The Council has agreed with these recommendations.
  3. I also note the advice the Council has given about a new report it has introduced. This addresses some shortcomings in its processes that this complaint has highlighted.

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Final decision

  1. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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