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Knowsley Metropolitan Borough Council (19 017 047)

Category : Adult care services > Other

Decision : Upheld

Decision date : 22 Mar 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complained that the Council has failed to provide suitable day care provision for their disabled son, Mr Y, since he left school in 2018. They also say it has failed to support them as carers and they have had no respite for over a year. We find the Council gave contradictory information to Mr and Mrs X about Mr Y’s proposed placement causing distress and uncertainty. It also failed to offer them a carer’s assessment despite being aware they were caring for Mr Y full-time. As a result, they suffered the uncertainty of not knowing whether any help could have been offered. In recognition of the injustice caused, the Council has agreed to apologise to Mr and Mrs X and make a payment.

The complaint

  1. Mr and Mrs X complain that the Council:
    • has failed to provide appropriate day care provision for their adult son, Mr Y, since he left school in 2018;
    • agreed that T could attend a placement three days a week but went back on that agreement;
    • subsequently agreed that the placement could go ahead but failed to provide suitably experienced staff to export Mr Y to and from the placement; and
    • has failed to provide appropriate support to them as carers.
  2. Mr and Mrs X say that, because of the Council’s failings, Mr Y has not received suitable local education and day care provision since leaving school and has become socially isolated. They have also become socially isolated because of lack of respite and have suffered significant avoidable stress and upset.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. I have considered all the information provided by Mr and Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
  2. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Assessment

  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. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. Where local authorities have determined that a person has eligible needs, they must meet these needs.

Carer’s assessment

  1. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
  2. The Care Act 2014 makes clear the local authority may meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs, and how the Council will meet them.

Direct payments

  1. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.

Key facts

  1. Mr Y is a young adult who left school in July 2018. He has profound physical and learning disabilities and epilepsy. He needs full support in all aspects of his life because of his physical health and developmental delay. He lives with his parents, Mr and Mrs X, who are his carers.
  2. In July 2017 the Council contacted Mr and Mrs X to complete a transitional assessment for Mr Y who was due to leave school the following summer and transition to adult social care.
  3. In November 2017 there was a school review attended by the social worker and Mr and Mrs X. They agreed to visit potentially suitable daytime provision for Mr Y including a specialist college and two day centres. The Council completed a carer’s assessment for Mr and Mrs X and gave them advice.
  4. In January 2018 the social worker spoke to Mrs X who confirmed they had visited the day centres and, although the visits went well, they needed time to consider their options.
  5. In April 2018 the Council agreed to fund three days per week at a specialist college and two days per week at a day care centre (Day Centre B). The social worker telephoned Mrs X to advise her of this. Mrs X asked whether a place was available at her preferred day centre and the social worker explained there was limited capacity within day services at the time and, given the current situation, two days at Day Centre B was positive. Mrs X asked what the alternatives would be if they did not accept the place. The social worker explained the Council could make a direct payment which Mr and Mrs X could use for other activities in the community. Mrs X agreed to talk to Day Centre B’s manager but said she felt her preferred day centre was more appropriate for Mr Y.
  6. In June 2018 Mr Y’s education, health and care plan (EHCP) was issued. It named the college he was due to start attending in September 2018.
  7. Mr Y began attending Day Centre B in August 2018 on a trial basis. On 7 August 2018 Mrs X telephoned the social worker stating she did not believe the centre met Mr Y’s needs because the other people attending were much older than him.
  8. On 10 September 2018 Day Centre B’s manager contacted the Council saying Mr Y’s transition was progressing well but a formal start date would be delayed as they were waiting for health information from Mr Y’s consultants.
  9. In October 2018 Mr and Mrs X wrote to the Council saying they had visited the day centre several times and did not feel it was an appropriate placement for Mr Y. He had not attended since the trial but was still attending college three days a week. Mr and Mrs X said they wanted Mr Y to attend another day centre, Day Centre C, which was better suited to his needs.
  10. During November and December 2018 Mr and Mrs X contacted the education department expressing concerns about the way Mr Y was being cared for at college.
  11. In December 2018 the social worker sought funding for Mr Y to attend Day Centre C two days per week including transport. The funding panel did not agree funding for the full cost of the placement. Its view was that Day Centre B was a suitable placement and the request to transfer to Day Centre C was preference rather than an ability to meet Mr Y’s assessed need. So, it agreed to make a direct payment to Mr and Mrs X equivalent to funding for Day Centre B and they could top up the difference and arrange attendance at Day Centre C if they wished. The Council wrote to Mr and Mrs X in January 2019 confirming this.
  12. In January 2019 there was an early review of Mr Y’s EHCP because of the concerns raised by Mr and Mrs X about the college. Mr and Mrs X then withdrew Mr Y from the college. The Council offered him a place at another college but Mr and Mrs X considered this would not meet his assessed needs as set out in his EHCP. So, they decided to seek adult social care provision instead.
  13. In February 2019 the NHS assessed Mr Y for continuing healthcare funding (CHC). It decided he was not eligible for CHC but did have health needs that warranted a package of support jointly funded by the Council and the NHS. It was agreed that a joint care plan would be drawn up.
  14. In March 2019 the Council told Mr and Mrs X the NHS had agreed to jointly fund the placement at Day Centre C together with an escort to support Mr Y with the journey. Mr and Mrs X asked whether transport costs were included. The Council says it told them that, although agreement had been reached with the NHS to fund a higher cost day centre together with an escort, there was no provision to fund transport within the current care plan.
  15. In June 2019 the service manager wrote to Mr and Mrs X saying he was satisfied Day Centre B would meet Mr Y’s assessed eligible needs under the Care Act 2014. He said the NHS had agreed to contribute towards the cost of the care package but this did not change the Council’s duty to offer services suitable to meet a person’s assessed needs taking account of public expenditure. He said the Council would not commission Day Centre C but would offer a direct payment equivalent to the cost of Mr Y attending Day Centre B together with transport and Mr and Mrs X could use this to purchase provision at Day Centre C and make independent travel arrangements. They would need to pay the difference in cost.
  16. In July 2019 Mr and Mrs X wrote to the Council complaining that, although joint funding for Day Centre C had been agreed between the Council and the NHS, they had now received a letter from the service manager stating that the Council would not fund Mr Y’s attendance at Day Centre C after all.
  17. The Council responded at stage 1 of its complaints procedure. It agreed Mr Y could attend Day Centre C and that it would provide transport and an escort.
  18. In August 2019 a taxi company agreed to provide transport. The Council explored several options to provide an escort to travel with Mr Y including: home-care agencies; a PA via a direct payment; or a family member travelling with Mr Y or taking him to the day centre themselves. Mr and Mrs X did not wish to consider the latter two options because Mrs X has health issues and Mr X often has to support Mr Y during the night and would be too tired. So, it was agreed the Council would source a care agency. However, this proved to be difficult.
  19. In September 2019 Mr and Mrs X complained that Mr Y was due to start Day Centre C on 23 September but the Council had not arranged an escort. The Council explained a wheelchair accessible taxi had been secured but the taxi company could not provide an escort. It accepted it would not be appropriate to ask Mr and Mrs X to provide the escort service and it said the social worker was trying to find a care worker from a care agency who could support Mr Y in the mornings at home and then travel with him in the taxi as his escort.
  20. In October 2019 a social worker was asked to continue with efforts to source a care agency to provide an escort and to work with health colleagues to establish an epilepsy protocol to determine the risk of an escort not administering medication if Mr Y had a seizure but calling 999 instead. The social worker was asked to discuss this with the family because the administration of medication in the event of a seizure was the primary obstacle in sourcing a suitable escort. Mr and Mrs X say this was never discussed with them. However, they point out that Mr Y’s care plan confirms rescue medication must be given at the first sign of a seizure and 999 should only be called if the seizure persists after the second dose of medication. Waiting for ambulance personnel to administer the medication would put Mr Y at risk.
  21. In November 2019 a care agency agreed to act as an escort for Mr Y. However, the carers provided had no experience in dealing with seizures and no training in administering rescue medication. Mr and Mrs X were unhappy with this and raised the issue with the care provider. It decided to withdraw its involvement as it did not have staff with the appropriate experience to support Mr Y.
  22. In January 2020 Mr and Mrs X made a further complaint about lack of progress.
  23. Following this the Council submitted a further request to more than 20 providers operating in the area but, because of COVID-19, day service provisions were suspended in March 2020.
  24. The Council has now sourced another care agency and training but this is on hold until COVID-19 restrictions are lifted and the day service provision reopens.

Analysis

Failure to provide appropriate day care provision for Mr Y

  1. Mr and Mrs X say the Council has failed in its duty under the Care Act 2014 to promote Mr Y’s “participation in… education, training or recreation” and his “social well-being” and he has become socially isolated. They say the placement at Day Centre B was not suitable for Mr Y because most of the service users were considerably older than him and the activities were not appropriate for his needs. They say the Council chose the day centre only because it had capacity and gave no consideration to its suitability.
  2. The Council accepts Day Centre B was not Mr and Mrs X’s first choice but says there was limited capacity in day centres at the time. A place was available at Day Centre B and the Council was satisfied it would meet Mr Y’s assessed needs for care and support. It says it was informed by the manager of the centre that Mr Y was offered a range of activities to join in with.
  3. The Council assessed Mr Y’s needs and both officers and the panel were satisfied that Day Centre B could meet those needs. I accept Mr and Mrs X disagree with officers’ view on this but there are no grounds for the Ombudsman to question their professional judgement. It is not for the Ombudsman to decide whether the provision was suitable. Mr Y was only attending the day centre two days per week, so it was not intended to meet all his needs. Some of his needs, for example the outcome of developing and maintaining personal relationships, could be met by the college Mr Y attended three days per week with people his own age.
  4. In December 2018 the panel agreed to make a direct payment to Mr and Mrs X equivalent to funding for Day Centre B so they could top up the difference and Mr Y could attend Day Centre C if they wished. There are no grounds to criticise this.
  5. The fact that the Council later agreed to jointly fund Day Centre C does not alter this. There was a change of circumstances in that the NHS completed a CHC assessment. This informed the decision to fund a placement at Day Centre C because it considered it would better meet Mr Y’s health needs. This does not mean that Day Centre B did not adequately meet those needs.
  6. Mr and Mrs X decided to remove Mr Y from the college because they felt it was unsuitable and did not meet his educational needs as set out in his EHCP. The Council offered Mr Y a place at another college but Mr and Mrs X did not consider this college offered a suitable curriculum for Mr Y. They feel the Council’s offer was merely for reasons of capacity. However, they accept that to attend a college offering a suitable curriculum, Mr Y would have to go outside the borough which would involve too much travelling.
  7. Mr and Mrs X could have made an application to the Special Educational Needs and Disability Tribunal about the suitability of the education provision offered by the Council. We will not normally investigate a complaint where someone can appeal to a tribunal unless we consider it would be unreasonable to expect them to do so. The appropriate procedure at the time would have been for Mr and Mrs X to make an application to the Tribunal, so I will not pursue this issue further.

Revocation of the agreement that Mr Y could attend Day Centre C

  1. Mr and Mrs X say the Council agreed Mr Y could attend Day Centre C three days a week but then went back on that agreement.
  2. In March 2019 the Council advised Mr and Mrs X that the NHS had agreed to jointly fund Mr Y’s placement at Day Centre C together with an escort.
  3. In June 2019 the service manager wrote to Mr and Mrs X stating that, although the NHS had agreed to contribute towards the cost of the care package, the Council would not commission Day Centre C but instead would offer a direct payment equivalent to the cost of Mr Y attending Day Centre B which they could use to purchase provision at Day Centre C. They would need to pay the difference in cost.
  4. This contradicted the information Mr and Mrs X had previously been given. This was fault and caused Mr and Mrs X distress and uncertainty and put them to the time and trouble of making a formal complaint to resolve the matter.

Failure to provide a suitable escort

  1. I am satisfied the Council has made several attempts to arrange an escort for Mr Y but has been unable to do so because care providers will not agree to act as an escort unless they are able to call 999 rather than administering medication if Mr Y has a seizure. Understandably, Mr and Mrs X would not be happy with this. As a result, the social worker had discussions with health colleagues to arrange training for escorts on administering medication. Training was arranged for February 2020 but the provider withdrew before the training could take place.
  2. The Council has contacted many other providers but has been unable to progress the matter further because of COVID-19 which meant day service provisions were suspended in March 2020. It has now sourced a care agency but cannot deliver the training until COVID-19 restrictions are lifted and the day service provision reopens.
  3. I find no fault by the Council in this regard.

Failure to provide appropriate support to Mr and Mrs X

  1. The Council completed a carer’s assessment in November 2017. It has completed no formal carer’s assessments since then but says officers have been in regular contact with them to arrange suitable care and support for Mr Y which meets both his needs and provides respite for Mr and Mrs X.
  2. While I accept this, it has not been possible for the Council to find an escort to enable Mr Y to attend the day centre. So, he has not been attending any provision since February 2019 and Mr and Mrs X have received no respite from their role as carers during this time.
  3. The Council says it was open to Mr and Mrs X to request a carer’s assessment, but it has no record of them doing so. It has now agreed to offer them a new carer’s assessment to establish whether there is any other support it can offer.
  4. While I accept Mr and Mrs X may not have requested a new carer’s assessment, the Council should have offered one when it became clear Mr Y was not attending day centre or college to establish whether it could offer them any support. Failure to do so was fault and caused Mr and Mrs X a significant injustice as they have the uncertainty of not knowing whether any help could have been offered. I cannot say what support the Council may have been offered or whether Mr and Mrs X would have accepted it, so I will recommend a remedy for the uncertainty caused by the Council’s failure to offer an assessment.

Agreed action

  1. In recognition of the injustice caused to Mr and Mrs X, the Council has agreed that, within one month, it will:
    • apologise to Mr and Mrs X for the fault identified above;
    • pay them £250 in recognition of the injustice caused by its failure to offer a new carer’s assessment; and
    • pay them a further £150 for the distress and time and trouble caused by the contradictory information it provided between March and June 2019 concerning funding for Day Centre C.

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Final decision

  1. I find the Council was at fault in that it:
    • gave contradictory information to Mr and Mrs X about Mr Y’s placement at Day Centre C; and
    • failed to offer Mr and Mrs X a new carer’s assessment.
  2. I do not uphold the remainder of Mr and Mrs X’s complaints.
  3. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman

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