Summary: Miss B complained the Council did not respond when she asked it to change how she received care and support, so she could receive a direct payment to employ a personal assistant. We upheld her complaint, finding the Council failed to undertake a timely review of Miss B’s care and support plan despite having several opportunities to do so. We also found when Miss B complained, the Council wrongly said she was not co-operative with her care. These faults resulted in Miss B not receiving care better suited to meet her needs and caused unnecessary distress. The Council has accepted these findings. To remedy Miss B’s injustice, it has agreed to apologise, provide her with a symbolic payment and an updated care and support plan. It will also carry out a learning exercise to understand why it did not carry out the care and support review sooner.

The complaint

1. Miss B complained the Council did not respond when she asked it to change the care she received, provided by a care agency, as it was not meeting her needs. Miss B said she wanted the Council to provide her instead with a direct payment to employ a personal assistant. When later Miss B complained, she said the Council wrongly suggested she was unco-operative with her care.
2. Miss B said because of the above, the Council did not provide her with suitable care and support. So, it failed to fully meet her care needs and this meant she did not make the progress she wanted to, in improving her independence and life skills.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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. 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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How I considered this complaint

6. Before issuing this decision I considered:

• Miss B’s complaint to the Ombudsman and any supporting evidence she provided;
• Miss B’s complaint to the Council and its reply, which pre-dated our investigation;
• information provided to us by the Council in reply to enquiries;
• any relevant law or Government guidance referred to below;
• any relevant guidance published by this office referred to below.

7. I also gave Miss B and the Council chance to comment on a draft version of this decision statement. I took account of any responses they made to the draft before finalising the decision statement.

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What I found

Relevant Legal & Administrative considerations

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support.
9. The assessment decides if someone has eligible needs. There is a three-stage test. First, a person’s needs must arise from, or be related to, a physical or mental impairment or illness.
10. Second, because of their needs, a person must be unable to achieve two or more of ten outcomes. These include matters such as the ability to manage their own nutrition or personal hygiene. It also includes the ability to access and engage in work, training or education and being able use facilities or services in the local community including public transport.
11. Third, the assessment must decide whether there will be a significant impact on the adult’s wellbeing, if they cannot achieve those outcomes.
12. If the Council decides someone has eligible needs it should next set a personal budget. This is the money needed to provide care services to meet the eligible needs.
13. The Council should then draw up a care and support plan, involving the person needing care. This should include the needs identified by the assessment, whether they meet the eligibility criteria and how the council plans on meeting those needs. It should also include details of the personal budget.
14. There are different ways for the Council to meet someone’s care needs. It can directly commission care; i.e., arrange and pay for it from the person’s personal budget. For example, by arranging for a care agency to provide care in someone’s home.
15. Or a person receiving care can choose to have their personal budget as a direct payment. These are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to ask for them. If they do so, the council should support them to use and manage the payment properly.
16. However a person receives care and support, the council may ask them to make a financial contribution from their income, following a financial assessment.
17. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government statutory guidance says councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. Also, that councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
18. The Council has its own enablement care service. This provides personal care to adults living in their own houses and flats. The service aims to help people to improve their independence following an accident or decline in their health for up to six weeks.

The key facts

19. Miss B is a single adult who lives alone and has ADHD, autism and a physical health condition.
20. In March 2023 Miss B contacted the Council and asked for support with her care needs. At first the Council provided some support to her through its enablement service, which Miss B told me she benefited from. She found the service flexible about the times it would visit her and she saw two care workers regularly who came to know and understand her needs. But as noted above, Miss B could only receive this service for a few weeks.
21. So, in July 2023, the Council completed an assessment of Miss B’s needs to consider her longer term care needs. The assessment recorded Miss B saying she struggled with activities of daily living. She highlighted problems in preparing for and keeping appointments. Miss B also said she had difficulties budgeting and with transport. She said she struggled to complete information online. Miss B also suggested she needed support in the morning to help her establish routine with her personal care.
22. The Council assessed Miss B had eligible care needs in five areas:

• to make use of facilities in the community;
• to access work, training or education;
• to keep a habitable home environment;
• to manage and maintain nutrition; and
• to maintain personal hygiene.

23. The Council drew up a care and support plan which explained how it would meet those needs. This said Miss B would receive two visits a day from a support worker, sent via a Care Provider. Care workers would visit for an hour in the morning during a fixed one-hour time slot and 30 minutes in the evening, seven days a week. During the morning visit, care workers would support Miss B with her personal care routine. That visit would also help Miss B “with forms or attending appointments” and “supporting to acquire independence and assistance with budgeting and arranging transport”.
24. The care and support plan recorded that Miss B had asked about receiving a direct payment to manage her own care through employing a personal assistant. The Council recorded that Miss B “requires a commissioned care package pending completion of PA process”. Miss B’s care from the Care Provider began in September 2023. The care and support plan included a review date in mid-November 2023.
25. The Council’s case notes record Miss B making several enquiries about her care and support between September and November 2023. These went to its ‘Gateway’ service that is the first point of contact when it receives enquiries to its adult social care services. The notes include two reports from November 2023:

• first, where Miss B told the Council that she continued to struggle to attend medical appointments, meetings and other activities;
• second, where Miss B said she wanted to have a personal assistant to help manage her appointments in the community.

26. In early December 2023 Miss B called again wanting to know more about how she could move away from having calls from the Care Provider “and transition to self-care”. Miss B noted she had cancelled some calls from the Agency and wanted to talk to a social worker about her options moving forward.
27. In response the Council recorded passing Miss B’s case to a local social work team to carry out a review of Miss B’s case.
28. In March 2024 Miss B had further contact with the Council where she asked about giving notice to the Care Provider and having a direct payment to buy care using a personal assistant. The Council recorded that it would send her information in the post about direct payments.
29. From the outset when Miss B began to receive care via the Care Provider, she would sometimes cancel visits or decline care when the support worker arrived. She told me the Care Provider would attend at a fixed time when she did not always need care. Also, that it could not provide a consistent cohort of care workers, so often Miss B had to work with new staff who did not know her needs as well. The Council recorded Miss B calling it next in June 2024, when she made these points. While the Care Provider alerted the Council on many occasions when Miss B cancelled care which grew more frequent over time.
30. In July 2024 the Council began a review of Miss B’s care and support plan. A social worker recorded telephoning Miss B, who expressed dissatisfaction the Council had not responded sooner to her requests. The social worker recorded Miss B wanted to make a complaint. They said they would call Miss B again before the end of the month to arrange the review.
31. Miss B made a complaint the same day. She said she needed extra support to access the community and had asked for this repeatedly. Miss B said the Council had not responded to her earlier requests.
32. The social worker recorded phoning Miss B again later in the month. They received no reply and could not leave a message. I did not find a record they tried to contact Miss B directly again, but in August they spoke to the Care Provider which agreed to arrange a joint visit. During that conversation the Care Provider advised Miss B often rejected visits. It said she was independent in completing activities of daily living, except for needing some prompting and supervision at times. The Care Provider said it had no concerns about Miss B’s ability to manage her personal care or her home conditions.
33. The Council arranged the review for September 2024, but before then, Miss B asked for an advocate to support her. She made this request three times before the review date. The Council continued to visit anyway, when Miss B had no advocate in place. Consequently, Miss B declined to complete the review. At this point the Council suspended Miss B’s care package with her consent. It also contacted an advocacy service that went on to support Miss B.
34. Also in September 2024, the Council replied to Miss B’s complaint. It said that it was “uncertain of your grounds of complaint”. That while Miss B referred to wanting extra support, she had cancelled or refused care visits. It went on to say that if Miss B could maintain her “health and wellbeing for periods of time without support” then it had to review her care “as a matter of urgency”. It said this was to ensure it used public funds appropriately after “considering your choice not to engage with the support on offer”.
35. In October 2024, Miss B’s advocate reported to the Council that Miss B wanted a personal assistant rather than a care agency supporting her with regular visits. It reported she wanted her care to feel less rushed and to receive support “more relevant to her daily life”.
36. The Council completed a review of Miss B’s care needs and care and support plan in December 2024. During this investigation, it told us that it proposed offering Miss B a direct payment so she could work with a personal assistant of her choice. Miss B told us the Council had said the same to her. However, the Council had not confirmed its proposals in writing nor given Miss B an updated care and support plan.

My findings

Was the Council at fault?

37. When Miss B first contacted the Council for support, she had no complaint with the service it provided. She said how helpful she found its enablement service.
38. I understood the Council could only offer that as a short-term option. Correctly therefore it went on to complete a needs assessment with Miss B and drew up a care and support plan following that.
39. I questioned how much co-production went into that document. Care and support plans are documents which both the Council and person needing care should draw up together. In this case, clearly Miss B had concerns about the plan from the outset, as the Council recorded her preference for a direct payment. It also recorded she wanted care from a personal assistant. The Council did not record why it could not support this at the time, nor put any wheels in motion to make this happen if Miss B preferred it.
40. I accepted its plan still promised support for Miss B to meet her various needs. But I struggled to see how, at the proposed time of day, and for the proposed duration, a care worker could help Miss B with so many varied tasks. The plan focused much more Miss B’s personal care needs (such as encouraging her in her morning washing and haircare routines and so on), than the needs arising specifically from her neurodiversity. In particular, when Miss B struggled with attending appointments, forms, budgeting and so on.
41. That said, I accepted care planning is never an exact science. It is sometimes only with the benefit of hindsight that a care and support plan turns out not to best fit the needs of the person who receives care. That is why Government guidance puts an emphasis on councils reviewing care and support plans within the first eight weeks and at least annually after that.
42. The Council recorded that it intended to review Miss B’s care and support plan in November 2023. Had that taken place, then despite my concern expressed above, I doubt Miss B would have complained. But the Council did not complete a review of Miss B’s care plan for another 13 months. I found it at fault for this delay, because:

• first, there was no record the Council tried to review Miss B’s plan in November 2023 as it said it would;
• second, there was no record the Council began a review in response to Miss B’s contacts in November and December 2023. This was despite referring her case to a local social work team to carry out such a review;
• third, it took no further action in March 2024 when Miss B asked again about ending her existing care plan and moving on to a direct payment. That contact should have prompted an urgent review given Miss B’s earlier contact;
• fourth, it took no action in response to the increasing numbers of care visits Miss B either cancelled, or declined;
• fifth, after the Council began the review process in July 2024, it was slow to act. I cannot see it tried to contact Miss B more than once in August 2024 to progress the review.

43. I had a further concern the Council later tried to complete its review, despite knowing of Miss B’s request for an advocate. I appreciate that when Miss B asked for an advocate, the review had become well overdue. So, the Council possibly realised the need for urgency at that point. But I was not clear this motivated its decision to proceed. This was because there was no record of how the Council considered Miss B’s request. So, did it instead try to conduct a review without seeking advocacy because it did not think Miss B needed an advocate. It should have recorded its thinking and told Miss B why it planned to proceed. Not doing so was also a fault.
44. I had a further concern the Council let more than a month pass without confirming to Miss B the outcome of the review. I made no further finding of fault given the point at which I issued draft findings, but I remained concerned at the prospect of further drift and delay.
45. Finally, I considered the Council’s response to Miss B’s complaint. She complained the Council had not responded to her when she had asked for changes to her care and support. The Council’s notes reflected Miss B had made several such requests. But in its response the Council failed to acknowledge those contacts. It then went on to draw the negative inference that Miss B was unco-operative in her care, or else might not need care and support and implied she caused the Council to waste scarce finances.
46. I considered this was unfair. I did not consider the facts showed Miss B unco-operative with her care. Instead, she had a care and support plan that was never a good fit for her needs. The reasons she often declined care were linked to this fundamental problem which she had alerted the Council to months before. I found it regrettable the Council spent money for so long on a commissioned service Miss B did not need or want. But as I set out above it missed multiple opportunities to review Miss B’s care before July 2024, and so it must shoulder most of the blame for this. I noted Miss B did not object when the Council suggested suspending the Care Provider’s service which further showed her willingness to work with the Council. I considered the Council’s response to Miss B’s complaint was so wrong in tone and content it merited a further finding of fault.

Did the faults cause injustice?

47. I considered the consequence of the Council not carrying out a timely review of Miss B’s care and support plan was:

• first, a loss of opportunity for her to receive direct payments to make her own care and support arrangements. This had lasted for 14 months and continued at the time we issued this decision;
• second, I considered there was also some loss of provision for Miss B. It was not possible to quantify this. But I considered any direct payment arrangement was likely to result in Miss B not only having more control over her care and support, but what that care and support consisted of. She had consistently asked for support more focused on helping her with appointments and aspects of daily living she struggles with because of her neurodiversity. I considered if Miss B had received a direct payment sooner, this would have better enabled this.

48. I considered the consequence of the Council’s response to Miss B’s request for an advocate, and its poor complaint response, caused unnecessary distress to her.

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Agreed action

49. The Council has accepted the findings set out above. It has agreed that to remedy the injustice caused to Miss B, within 20 working days of this decision it will:
1. provide an apology to Miss B, accepting the findings of this investigation (see also paragraph 50);
2. make a symbolic payment to Miss B of £850 (see paragraphs 51 and 52);
3. issue its updated care and support plan to Miss B and set out clearly the next steps explaining how she can now receive her personal budget as a direct payment.
50. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance when making its apology to Miss B.
51. The symbolic payment agreed awards Miss B £200 for not having the opportunity to have more control over her care and support. In addition, she will receive £500 in recognition of the 14 months of inadequate care and support she has received. Finally, she will receive a further £150 in recognition of her distress.
52. The Council will make the symbolic payment separate to any direct payment arrangement it sets up with Miss B. While Miss B may choose to use the payment to buy in additional care, it is not to replace, or part of, any funds she should receive moving forward to meet her care needs.
53. The Council has also agreed to try and improve its service following this complaint. Within two months of a final decision, it will complete a review to understand the reasons it did not review Miss B’s case sooner despite the opportunities it had, listed in paragraph 42. The review should consider if this resulted from one-off human or systems error or was indicative of any wider problems it has. For example, in reviewing care and support plans after they are first agreed or when it receives reports indicating it should bring forward the review of a plan. It has agreed to share the outcome of this learning review with this office and explain if it proposes to make any changes to its processes or procedures to prevent a repeat.
54. The Council will provide us with evidence when it has complied with the above actions.

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Final decision

55. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss B. The Council accepted these findings and agreed action that I considered would remedy that injustice. Consequently, I could complete my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman