Summary: Ms X complains the Council delayed in authorising an increase in her son’s personal budget and, despite accepting responsibility for that delay, has still not implemented the increase. The Council has failed to take effective action since August 2022 to ensure all the son’s care needs are met. This has caused avoidable distress to Ms X and escalating stress, as more responsibility for meeting his needs has fallen on her. The Council needs to apologise, pay financial redress and take action to ensure all the son’s needs are met.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has delayed in authorising an increase in her son’s personal budget and, despite accepting responsibility for that delay has still not implemented the increase. She says this has resulted in her continuing to provide support, as the care provider she had lined up in 2022 no longer has capacity and has a long waiting list for support.

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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)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms 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 Ms X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Ms X’s son, Mr Y, has complex needs. He lives at home with his family. He receives support under Section 117 of the Mental Health Act 1983, having previously been sectioned under Section 3 of the Act. His support is funded by the Council and the NHS. The Council has assessed Mr Y as needing 24-hour support, because he experiences regular seizures during the day and at night.
6. Mr Y’s March 2022 care and support plan provided for:
• 28 hours to meet his need for support with daily living needs £307
• 24 hours for day activities (2:1 support three times a week for four hours) £263
• 42.5 hours for respite care paid for by the NHS £466
7. This suggests Mr Y’s personal budget was at least £1,036 but the care and support plan does not identify the final personal budget. Mr Y received his personal budget as a direct payment, which a support service managed and was used to employ PAs to support him. The care and support plan said:
• Ms X supported her son from 08.00 to 13.00 each day
• Mr X supported him from 13.00 to 08.00 the next morning 6 days a week
• Mr Y’s sister supported him from 13.00 to 08.00 one day a week
• Ms X also provided support at night if Mr Y had a seizure
• PAs provided other support
8. On 9 August the Council noted there was a surplus of £25,306 in Mr Y’s direct payment account, but also noted payments were outstanding.
9. Around this time a PA left who provided nine hours of support a day. Ms X says she e-mailed the Council about the PA leaving. There is nothing in the Council’s records to say when this happened. Ms X says the PA left because they found a job which paid more.
10. On 27 September Mr Y’s social worker told Ms X they had completed a form for the support service to advertise for another PA. Ms X said it would take a while for a new PA to get to know her son and understand his needs. The social worker noted Ms X had not given a clear answer about sending the form to the support service.
11. On 28 September the social worker told Ms X they had asked the support service to advertise for a replacement PA. However, the e-mail the social worker sent to a colleague on 6 December (see paragraph 19 below), suggests the advert was put on hold. Ms X said getting someone from a care agency would not work, as in the past they had sent different care workers who did not understand her son.
12. On 5 October Ms X told the social worker she had contacted an autism charity about providing a PA to work with her son.
13. On 18 November Ms X told the social worker the autism charity had offered a care worker to support her son twice a week for four hours at £28 an hour.
14. On 22 November the social worker e-mailed Ms X saying:
• £28 an hour was above the direct payment hourly rate of £11.50 for a PA;
• Ms X would have to pay anything above £11.50 an hour, if employing a PA;
• if the autism charity registered as a care agency on the Council’s framework, it would pay £16.43 an hour.
15. The social worker asked Ms X to provide the contact details of the person she spoke to at the autism charity, so they could check if it was willing to sign up to the Council’s framework.
16. Ms X did not receive the e-mail, through no fault of the Council, so she e-mailed it on 22 November saying the autism charity would start supporting her son on 24 November. She said she had received no response from the social worker about funding and did not therefore know whether the Council had approved it. In their second e-mail dated 22 November, the social worker told Ms X there was a surplus in her son’s direct payment account. However, they repeated what they had said in the earlier e-mail about the limits on funding (£11.50 an hour for a PA or £16.43 for a care agency on its framework). They said Ms X would have to make up any difference.
17. Ms X e-mailed the Council on 23 November, saying:
• She could not get a PA for £11.50 an hour, as the Council had not helped her advertise for one in the last three months.
• £16.43 an hour was less than the going rate for a care agency.
• The autism charity, which had offered to provide eight hours of care a week for £28 an hour, was the only care agency willing to support her son, so it was not a matter of “choice”.
• It was not her responsibility to top-up her son’s personal budget (which she could not afford to do), when she was already providing an excessive amount of unpaid care.
18. Ms X contacted the Council on 24 November saying she wanted to speak to her son’s social worker, but had only been able to get through to their answer machine. The Council has no record of the social worker’s call to Ms X. However, the social worker uploaded a further copy of the second e-mail sent on 22 November along with Ms X’s e-mail of 23 November. The social worker told Ms X they had responded to her e-mail on 23 November. They also said the Council would arrange for the support service to place another advert for a PA.
19. On 29 November the Council upheld Ms X’s complaint about the social worker saying in a professionals’ meeting that her behaviour was like Munchausen Syndrome, which had been recorded in the minutes of the meeting and circulated to the attendees and Ms X. The Council apologised for the upset caused by circulating the social worker’s opinion in the minutes of the meeting. It agreed to add a note to the minutes of the meeting saying the comment should not have been recorded and circulated. It did not agree to pay financial redress or to assign a different social worker for Mr Y, as they had a good understanding of his care and support needs. Ms X asked the Council to review its response as she was not satisfied with it. In January 2023, after reviewing its response, the Council offered to pay Ms X £100 for the upset and distress at had caused. In other Council records, an officer noted the social worker’s opinion should have been redacted from the minutes sent to Ms X.
20. On 6 December the Council agreed to spend a further £180 advertising for a new PA. Ms X told the social worker she had still not received the e-mail they claimed to have sent on 23 November. She also said the advert the social worker had told her would be placed on 24 November was not on the support service’s website. She said she was providing 24-hour care for her son when he needed 2:1 support. She asked how the Council expected her take part in a review of her son’s needs, when she could not leave him. Ms X says her son gets distressed if present when people are talking about him.
21. The social worker told a colleague a form (for advertising for a PA) was on the Council’s system from 23 September, but Mr Y’s family had said not to go ahead, later changing their mind.
22. On 7 December Ms X asked the Council what was happening about the advert for a PA, as it had not yet been placed. The social worker sent Ms X a copy of their e-mail of 22 November, saying it had been sent on 24 November, and told her funding for an advert had been agreed and the relevant forms sent to the support service.
23. On 8 December the Council noted Mr Y’s direct payment account contained a surplus of £31,000, £20,000 of which would be returned to it.
24. Ms X complained to the Council on 14 December about the social worker:
• Sending an e-mail on 23 November 202 which never arrived.
• Ignoring her request to send a paper copy of the e-mail on 6 December 2022.
• Ignoring an urgent request to contact her.
• Delaying advertising for a new PA.
• Preventing her from using the autism charity to support her son and telling her to pay top-up fees of £98 a week.
• Forcing her to provide unpaid care for her son.
25. When the Council replied to Ms X’s complaint in February 2023, it said:
• It apologised for telling her an e-mail sent on 22 November had been sent on 23 November 2022, and for not posting a copy to her as requested on 6 December.
• It invited her to provide evidence of when a request for contact had been made which the social worker had not responded to.
• It apologised for a delay in authorising a new PA, but said it had been waiting for information from Ms X (which had now arrived). The social worker had told her she could use money in Mr Y’s direct payment account, but the Council would only pay £11.50 an hour for a PA, or £16.43 if a care agency provided someone and Ms X would have to pay the excess if the autism charity was used (having been added to its framework). It had agreed an extra £180 to advertise for a new PA.
• It apologised for the delay in providing updates on her son’s care. It said this was not intentional, as a manager had to agree a request for an increase in a care package. It said it had been waiting for information from the support service.
• Ms X had not provided evidence to support the claim that she had been blocked from contacting the social worker. It noted she had now provided the social worker with a different e-mail address, which had resolved the problem with receiving their e-mails.
26. On 13 February Ms X asked the social worker for an update on the advert for a PA. The social worker said they were waiting to hear from the support service.
27. On 13 March the support service asked the Council for a breakdown of Mr Y’s support hours, so it could do a costing to recruit a PA. The Council confirmed the hourly rate of £11.50.
28. On 24 March the support service again asked the Council for a breakdown of Mr Y’s care package. There is no record of the Council responding.
29. On 11 May the Council noted there was a surplus of £19,700 on Mr Y’s direct payment account, £5,000 of which had to be returned to it.
30. On 9 June the Council contacted the autism charity about supporting Mr Y to access the community. The charity said it could provide two people for two hours a week at £28 an hour “for a short period”.
31. When the social worker spoke to the support service on 14 June, they said they had missed a request for information. The support service said another PA had given notice in November 2022. Ms X says the PA had been supporting her sons for two days and at night on a regular basis. On 20 June the social worker told Ms X the person the support service had asked to deal with her son’s case had left after a short period of time. They said they had to wait for the support service to process the advert. They said they had applied for funding for the autism charity.
32. When the Council replied to Ms X’s complaint in June, it said:
• It apologised for a significant delay in authorising her son’s care, which it had told her it would arrange on 24 November 2022.
• It denied asking Ms X to pay a top up of £95 a week before arranging her son’s care.
• It apologised for the upset and distress caused by the delay in authorising her son’s care. It had now agreed to pay £28 an hour for support from the
• autism charity.
33. In July the support service told Ms X she could not be employed as her son’s PA, as she is registered as the employer.
34. On 11 August the support service told the Council it had been waiting for Ms X to respond to a request to arrange a time to discuss the advert for a new PA. The Council told Ms X what the support service had said. It also said she could not be employed as a PA as she lives in the same household as her son. Ms X said she wanted to be employed under the exceptional circumstances criteria. She accused the social worker of ignoring her. She said the social worker had defamed her in writing and needed to sort the problem out. She said the social worker had failed to arrange support so she and Mr X could attend a review meeting, and had failed to arrange support from the autism charity. There is nothing in the Council’s records to explain why it has not arranged support from the autism charity.
35. The Council’s records show it has been trying to arrange a review of Mr Y’s needs. Ms X has said she cannot attend a review when there is no one else to look after her son.

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

36. There are significant gaps in the Council’s records, which make it difficult to work out what happened. Some of its records are misleading, for instance implying an e-mail sent on 22 November 2023 and been a response to an e-mail Ms X sent on 23 November. Other information in its records is inaccurate, for instance saying the family had not given the go ahead for an advert to be place in 2022, when that was not the case. The failure to keep adequate records is fault by the Council.
37. A PA left in August 2022. Since then Mr Y has not received all the paid support he has been assessed as needing. It appears the additional burden has largely fallen on Ms X. The Council took no action to recruit another PA until the end of September. In December the social worker told a colleague an advert had been on the system in September, but the family said not to go ahead. However, there is nothing in the Council’s records to support the latter claim. On the contrary, Ms X repeatedly asked about progress. It is unclear why the Council needed to approve funding for a £180 advert when there was a significant underspend on Mr Y’s direct payment account. The whole process appears to have been overly bureaucratic with multiple stages which only served to slow progress. The Council’s records also indicate a lack of effective communication between it and the support service, resulting in no advert being placed. These are further faults by the Council.
38. When Ms X told the Council in November 2022 that the autism charity could support her son, it said she would have to make up the difference (£93 or £132 a week). Ms X said she could not afford to pay a top-up. By this time Mr Y had been without a significant part of his support for over three months. The Council gave no regard to this or the impact it was having on Ms X. It should have reviewed Mr Y’s care and support plan and considered the need to increase his personal budget to ensure he received the support he needed. It took another seven months for the Council to agree to pay the autism charity £28 an hour, but it then failed to arrange any support for Mr Y.
39. The relationship between Ms X and the social worker was poor before the events I have investigated took place. However, the failure to provide effective support in recruiting a new PA or to commission care from the autism charity has made matters worse.

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Agreed action

40. The Council has agreed to take action to remedy the injustice it has caused:
• Within four weeks it will:
1. write to Ms X apologising for the faults I have identified and pay her £2,000;
2. consider assigning different officers to work with Mr Y, with a view to rebuilding the relationship with Ms X;
3. ensure officers are aware the complaint about the minutes of the multi-disciplinary meeting was upheld because the social worker’s opinion was included in them and circulated to others, not because it had not been redacted from the copy sent to Ms X.
• Within ten weeks it will:
1. take action to ensure Mr Y’s care needs are fully met;
2. take action to ensure officers make complete and accurate records in future;
3. consider what action to take to make the process of recruiting a PA more streamlined and less bureaucratic:
4. identify the action it is going to take to ensure communication between it and the support agency is improved and that the recruitment of PAs is not delayed in the way it was for Mr Y.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman