Summary: Mr X says the Council failed to properly investigate his complaint regarding day care costs incurred by him on behalf of his son, Mr Y. Mr X also says the Council failed to respond to his request for additional provision for Mr Y. The Council has not completed a review of Mr Y’s care and support plan since July 2021. This is fault and has caused Mr X distress and a financial injustice. The Council has agreed to apologise, review Mr Y’s care and support plan, refund day care costs from July 2022 and make a symbolic payment to remedy the injustice caused.

The complaint

1. Mr X says the Council has failed to properly investigate his complaint regarding day care costs incurred by him on behalf of his son, Mr Y. Mr X also says the Council failed to respond to his requests for nighttime and Sunday afternoon care for Mr Y.
2. Mr X says this has caused him a significant financial injustice.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(i), as amended)

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What I have and have not investigated

7. Mr X says he has been funding his son’s day care provision since 2017. He complained to the Council about this in July 2023 and to the Ombudsman in November 2023. have exercised discretion to investigate this complaint from July 2022.

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How I considered this complaint

8. I considered the information provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response.
9. Mr X and the Council had the opportunity to comment on my final decision. I considered all comments before reaching a final decision.

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What I found

Relevant legislation and guidance

Care Plan

10. 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.
11. 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.

Section 117 aftercare

12. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act.
13. Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for. Aftercare can include:

• Administration of medication for a mental disorder
• Social work
• Domiciliary services
• Day centres
• Psychiatric treatment
• Residential care
• Supported living or extra care housing (but not ordinary accommodation

What happened

14. Below is a brief chronology of key events. It is not meant to show everything that happened.

Background

15. Mr Y is an adult man who has a moderate intellectual disability and mental health diagnosis. Mr Y has lived in his current supported accommodation (the Provider) since September 2020.
16. Mr Y is under a section 117 order and therefore all his aftercare is provided free of charge. This is referenced in his care plan.
17. Mr X manages Mr Y’s financial affairs and holds an enduring power of attorney for this.
18. Mr Y’s care plan was reviewed in June 2021. Mr X attended the review virtually. The package of care agreed at the review comprised of 35 hours 1:1 support; 70 core hours support and seven sleep in nights.
19. In January 2022, the Council was aware the Provider had arranged taster sessions for Mr Y at a day centre. It was agreed that if these sessions went well, Mr Y could attend the day centre three days a week.

Key events from July 2022

20. In October 2022, the Council became aware of a timetable of day care activities for Mr Y that had been implemented by the Provider. The timetable included attendance at the day centre, approximately three times per week.
21. In July 2023, Mr X contacted the Council. Relevant to this investigation he said he had been paying for Mr Y to attend the day centre, but these costs should be covered under section 117 aftercare. He also requested nighttime care and Sunday afternoon care for Mr Y. Mr X did not receive a response to his email and contacted the Council again a week later. Mr X chased the Council again in early August.
22. On 9 August, Mr X complained to the Council about the lack of response to his emails. The Council responded to Mr X informally but did not address the issues he had raised. In a further email Mr X said he had paid over £17,000 in day care costs over six years. The Council agreed to review the information Mr X had provided.
23. In September, Mr X complained to the Council again.
24. On 2 November, Officer B wrote to Mr X and apologised for the delay in responding to him. Officer B said it had reviewed Mr Y’s file and day care and payment for Mr Y’s night care were part of his care and support package and any shortfall in payment would be something the Council would need to address. Officer B said the Council would prioritise a review of Mr Y’s care plan and consider Mr X’s request for additional care.
25. The next day, the Council responded to Mr X’s complaint. The Council apologised to Mr X for the delay in responding to his email and complaint. The Council said it had reviewed Mr Y’s support plan from 2021 and it did not include day care provision and there was no record of an agreement to fund day care. The Council said if Mr X had any records that suggested otherwise, he should share them with the Council. The Council suggested a review of Mr Y’s care plan would identify if day care should be funded in the future. The review would also address Mr Y’s night care and Sunday afternoon care.        
26. Mr X said Officer B had accepted responsibility for day care. He said he was entitled to a reimbursement of these costs as Mr Y was under a section 117 order.
27. The Council responded to Mr X and explained that if day care was agreed as part of the care and support relating to section 117 aftercare, it would expect this to be covered by the Council. However, its records did not show this was ever agreed. The Council said a review would establish whether there was any evidence that would justify an historic repayment and if day care was needed this could be included for future payments. The Council referred Mr X to the Ombudsman.

Analysis

28. It is not the role of the Ombudsmen to carry out an assessment of Mr Y’s needs or to say what his care plan should be. I can only investigate whether the Council has provided the care as set out in the plan.
29. The Council does not dispute that section 117 aftercare can include attending a day centre but says there was no agreement in the plan for this provision. The care plan relevant to Mr X’s complaint and this investigation was updated following a review in July 2021.
30. The guidance states the Council should have completed a review of Mr Y’s care plan in July 2022, which was 12 months since his previous review. The Council is at fault for not completing a review of the plan. Had the Council completed a review on time, it is more than likely that day care provision would have been discussed. My reason for saying this is because, the Council would have been aware Mr Y had been attending taster sessions since January 2022 and therefore it is more than likely this would have been discussed as part of Mr Y’s ongoing care and support needs.
31. Furthermore, on the balance of probabilities, I consider the Council would have made the decision to include day centre provision in Mr Y’s care plan in July 2022. My reason for saying this is because the taster sessions ultimately led to Mr Y attending the day centre regularly each week, which the Council was aware of.
32. The Council’s fault has caused Mr X an injustice because he has been paying for Mr Y’s day care costs since July 2022, when this should have been free of charge in accordance with his section 117 aftercare. The failure to complete a review has also meant Mr X is left with uncertainty around his request for nighttime and Sunday afternoon care for Mr Y.
33. I have also considered the Council’s communication with Mr X about the issues he raised. There were delays in responding to Mr X’s emails and conflicting information provided by Officer B and the formal complaint response. This was fault. It is concerning that Officer B told Mr X that day care was part of Mr Y’s care plan. The Council’s complaint response clarified this was incorrect. However, the poor communication caused Mr X confusion and uncertainty and added to his distress.
34. I have also found fault with the Council’s handling of Mr X’s complaint. Mr X made a formal complaint in August 2023. The Council issued its final response almost three months later. The delay was fault and caused Mr X avoidable time and trouble pursuing the Council for a response.

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Agreed action

35. Within one month of my final decision the Council will:
1. apologise to Mr X for the injustice caused by the faults identified in this statement;
2. complete a review of Mr Y’s care and support plan, including future day care provision, nighttime, and Sunday afternoon care;
3. determine how much Mr X has paid in day care costs since July 2022, and refund this amount to him; and
4. pay Mr X £250 for the injustice caused by poor communication and complaint handling.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have found fault by the Council causing an injustice to Mr Y and Mr X. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman