Summary: Mrs D complains the Council has failed to meet her adult daughter’s care and support needs since February 2019. The Council has accepted there was fault and apologised. It has agreed to make a payment to Mrs D and her daughter to remedy the injustice caused.

The complaint

1. Mrs D complains the Council has failed to meet her adult daughter’s needs since February 2019.
2. She says as a result her daughter has become more insular, obsessive and ritualistic, causing the family to become more isolated and having to put their lives on hold.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I spoke to Mrs D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Care Act 2014 (‘the Act’)
• The Care and Support Statutory Guidance (‘the Guidance’)
8. I sent Mrs D and the Council my draft decision and considered the comments I received.

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What I found

Care and support needs

9. The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. The Guidance sets no timescales for completion of the process. Councils must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
10. Councils must provide a care and support plan that sets out what needs the person has, what they want to achieve, what they can do by themselves or with existing support, and how their needs will be met.

Meeting care and support needs

11. The Act says if a person’s needs meet the eligibility criteria, the council must meet those needs. Councils are not required to meet any eligible needs which are being met by a carer and they must consider how the person’s family or friends could help them meet their needs.
12. The Guidance says there are a number of ways a council may meet a person’s needs. These include services, such as homecare and equipment, arranged by the council. Needs may also be met using universal services and by putting a person in contact with a local community group or voluntary sector organisation.
13. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget is the money the council has worked out it will cost to arrange the necessary care and support for that person. A personal budget can be administered as a direct payment (DP). These enable people to commission their own care and support to meet their eligible needs.

What happened

Background

14. Mrs D's adult daughter, Miss M, is severely autistic. She is non-verbal with learning difficulties, complex needs and challenging behaviours. After leaving school in 2018 the Council could only identify a social care placement for Miss M. It then withdrew her education, health and care (EHC) plan. Mrs D later appealed to the SEND Tribunal about this decision.
15. Miss M has direct payments to fund a support worker to enable her to access the community for 18 hours per month. She was also known to the specialist behavioural team. Miss M had been assessed as needing five days a week social care support. Following visits to several providers in 2018 none could be found locally which could meet Miss M’s needs. Mrs D complained to the Council about a lack of suitable services to support Miss M. This was the subject of a previous Ombudsman investigation. The Ombudsman found the Council had failed to meet Miss M’s needs from July 2018 to January 2019.
16. In October 2018, Miss M started to attend a social care provider two days a week. This placement broke down in January 2019.

Care and support provision in 2019

17. Mrs D met the Council to discuss Miss M’s social care provision on 11 February 2019. It was agreed that the current placement was no longer suitable and other options would be explored. Another provider (Provider W) had previously said its environment would not be suitable for Miss M, but the Council agreed to approach Provider W again to discuss the possibility of a bespoke package.
18. The Council offered to increase the direct payments, but Mrs D said this would not be helpful. They had been unable to use overnight respite as Miss M would not be able to cope with it, and they were having difficulty using the existing direct payments as Miss M’s behaviours had escalated and it was unsafe for the worker.
19. The Council assessed Miss M’s care and support needs. The assessment says she needed supervision and support at all times to ensure she remained safe. Miss M also required 2:1 support with staff who were trained in behaviour management and autism, and a service with a base as she struggled to cope for long periods in the community. As she could become violent during transport, she required a minibus with two escorts and a driver and could not tolerate long journeys.
20. The assessment said it was important Miss M accessed day services as she was becoming more rigid in her routine at home and it would become increasingly difficult to get her to transition into services the longer she was not accessing these. It noted that, as Miss M was not accessing any services, all her needs were being met by her parents. Mrs D wished for Miss M to have an educational placement.
21. The assessment says the Council was working with Provider W to determine if a bespoke service could be provided. These discussions started in May 2019 but Provider W said it had no capacity to take Miss M.
22. The Council arranged for Mrs D to visit Provider X, a specific autism education and social care provider, in April and May 2019. After the visit, Mrs D said she did not consider it was suitable for Miss M. She said the young people were too isolated and she had concerns about the travelling distance of at least an hour each way. In response to my draft decision, the Council said Provider X therefore did not assess Miss M.
23. There is a case record in June 2019 which shows the Council had approached in total seven providers, in addition to the placement which had broken down. None had been able to meet Miss M’s needs.

Mrs D’s complaint

24. Mrs D complained to the Council in June 2019 that it was failing to meet Miss M’s needs as no suitable providers were available locally.
25. The Council accepted it had had difficulty in identifying provision and apologised. It set out the attempts it had made to find suitable providers and noted that overnight respite and increased direct payments had been offered.
26. The Council said Provider W had agreed to re-assess Miss M, but there was currently a waiting list. A further provider, Provider Y, had recently been identified. It had assessed Miss M and was to start provision in July 2019.
27. The Council told Mrs D “the introduction of appropriate services for Miss M also requires some flexibility on your part, as the provision available does not allow for an extensive choice and requires you to allow assessments to be undertaken by potential providers to establish if need can be met.”
28. Mrs D remained dissatisfied and complained to the Ombudsman. She said the system was letting the family down as the lack of services meant Miss M was being pushed into unsuitable services. She took issue with the Council’s comment and said she had been flexible and open minded about the provision. Mrs D said Miss M needed specialist provision for younger people in the Council’s area, with staff trained in autism, challenging behaviours, and sensory issues.

Events following Mrs D’s complaint

29. In July 2019 Provider Y assessed Miss M and she visited. The service then closed unexpectedly two weeks later.
30. The SEND Tribunal upheld Mrs D’s appeal on 17 July 2019. The Tribunal ordered the Council to maintain Miss M’s EHC plan. It ordered the Council to hold an annual review within six weeks of the hearing and to issue a new EHC plan two weeks after the review. The Tribunal suggested special educational needs provision could be made in a social care setting, if a suitable one could be found.
31. The annual review was held on 29 August 2019, but a final EHC plan has not yet been issued. The Council says this is because it had been searching for a suitable provider and awaiting information from social care services and speech and language therapy.
32. An education provider, Provider Z, started working with Miss M in October 2019. The Council was awaiting an updated assessment from Provider Z before issuing the final EHC plan. In response to my draft decision, Mrs D said this provision had started to break down and had not re-started after Christmas.

My findings

33. Where councils have determined that a person has eligible care and support needs, they must meet those needs. The Council has accepted that it was unable to meet Miss M’s social care needs after her placement broke down in February 2019.
34. I have reviewed the case records and considered whether there was any drift or avoidable delay by the Council in searching for provision for Miss M. In February 2019 the Council said it would contact Provider W, but it did not do so until May 2019. The Council arranged for Mrs D to visit to Provider X in April 2019, but I can see no reason why this could not have been arranged sooner. I therefore find there was fault as there was delay in taking action after February 2019.
35. Whilst the Council was trying to commission a service for Miss M, it was fault not to have met her care and support needs. It has caused injustice to Miss M and her family as they were affected by the lack of support. I consider the injustice caused is more significant because Miss M has now, in effect, been out of services since July 2018. She has become more rigid and isolated, affecting Mrs D’s ability to use the personal assistant for respite, and it will be harder to get her back into a service.
36. The final EHC plan has not yet been issued. This is fault as the Tribunal ordered it to be issued two weeks after the annual review, i.e. by 12 September 2019. This has caused injustice to Miss M as her SEN provision has not been put in place, although I acknowledge some assessment and provision with Provider Z started on 3 October 2019.
37. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. I have instead considered the impact on Miss M and Mrs D of missing out on services.

Agreed action

38. Within a month of my final decision, the Council has agreed to pay Miss M and Mrs D £500 each to acknowledge the impact on them of the failure to meet Miss M’s needs from February 2019 to October 2019.

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Final decision

39. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman