Decision : Upheld
Decision date : 13 Sep 2017
The Ombudsman's final decision:
Summary: There was fault in the Council’s handling of D’s transition from residential accommodation and the interim provision it put in place. This caused him and his family injustice. The Council has agreed to recommendation that it should make an apology and financial remedy of £1500.
- Mr and Mrs A complain about the support provided by Hertfordshire County Council (“the Council”) in relation to their son (who I will call D). They complain that:
- D was evicted from residential accommodation without enough notice or planning;
- The agency the Council commissioned to provide support workers to D at home was inadequate;
- The Council’s poor communication with a new agency meant it cancelled the service;
- The Council used an outdated needs assessment when exploring potential care providers and residential placements for D;
- There have been unnecessary delays in securing a social tenancy for D;
- The Council’s communication with them has been poor and its response to their complaint was unsatisfactory.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I discussed the complaint with Mrs A and considered the information she provided.
- I reviewed the documents the Council supplied for my investigation. This included a chronology of work with the family, D’s care and support assessments, records of meetings and responses to my particular enquiries. I also sought information from Dacorum Borough Council about D’s housing.
- I took account of relevant legislation and guidance. I sent a draft version of this decision to the Council and Mr and Mrs A and invited their comments on it. I have taken into account these comments.
What I found
- Under the Care Act 2014, local authorities have a duty to assess any adult who may be in need of care and support. If an assessment finds a person has eligible needs that arise from a physical or mental disability and affect their well-being in key areas, the local authority must meet these needs through a support plan. If there are any changes in the person’s needs or situation that affect the appropriateness or content of the plan, the local authority must conduct a review. (Care and Support Statutory Guidance, 13.18)
- Local authorities can meet needs by commissioning services from private providers, for example care agencies or residential settings. However, they retain the duty to meet the individual’s care and support needs, and are therefore ultimately responsible for the quality of these services. When contracting providers, local authorities must be satisfied they can meet a person’s specific needs and have sufficient staff and resources.The Act also gives local authorities the role of ensuring there are enough good quality care providers to meet the needs of adults in their area. (Care and Support Statutory Guidance, Chapter 4)
- Local authorities can charge a contribution for services they provide, which is determined by a financial assessment. Hertfordshire’s policy on charging is to compare the assessed contribution with the total cost of services for the week and pass on the lower charge to the service user.
- D is now 23 years old. He has severe autism, a learning disability and challenging behaviour. The Council has worked with him and his family since he was a child. It currently supports them through its 0-25 Together service, which aims to provide a smooth transition for young people with disabilities from children’s to adult social care services. D has a social worker to oversee his provision and monitor his well-being.
Notice from residential accommodation
- From October 2015, D lived in a residential setting. The manager of the accommodation and D’s social worker were generally positive about his time there. However, Mrs A had concerns about the support and stimulation he received.
- Following several incidents with other residents, the manager decided D would do better in his own accommodation, with live-in support. In February 2016 the manager gave verbal notice for D to leave, during a meeting with his parents and professionals. The Council says the original notice period was three months (its standard expectation for social care providers). Mrs A says they were not given a timescale and all present agreed D needed a well-planned transition.
- Between March and June, D’s social worker made referrals to several residential accommodation providers for young adults with learning disabilities and autism. She identified one potentially suitable placement but it was outside the county so Mr and Mrs A turned it down. They felt it was very important for D to stay close to his family and regular activities, as advised by his psychiatrist and specialist nurse. The Council identified another potential residential setting, which was in the county. After considering it, Mrs A decided it could not meet D’s needs. The Council also made referrals to care agencies to provide support workers for D at home and in the community. However, most providers responded that they could not offer the level of care he needed.
- The Council sent potential providers a copy of D’s needs assessment, which his social worker updated between April and May 2016. The assessment states that D has exceptional needs in all domains (personal care, managing at home, relationships, work, training and education and accessing the community) if unsupported by his family and requires “a lot of support” in the same areas when with his family. According to the assessment, D poses a medium risk to himself and others, has unpredictable bouts of physical and verbal aggression and needs to be supervised at all times in the community. The assessment notes that support workers have been able to manage D’s behaviour in the residential setting but are concerned that, without the same support and personal behaviour management plan, his incidents of challenging behaviour will increase.
- The social worker’s analysis was that D required long term residential care or a supported living environment. The assessment records that he has received 1:1 care in his current accommodation. It does not specify whether he needs carers on a 1:1 or 2:1 basis in any future arrangement.
- Due to the difficulties identifying a suitable alternative placement or support agency for D, he was still in the residential accommodation by May. Following a physical incident with another resident and support worker, Mrs A emailed the social worker expressing concerns that the accommodation manager would bring forward his leaving date. This did not happen until D was involved in another incident in early June, after which the manager told the Council he must leave in 12 days.
- The Council secured a placement with a respite care provider but Mr and Mrs A were unhappy with the location (Mr A has a police background and knew of crime in the area). Having not identified a suitable alternative, the Council agreed to arrange support workers for D at home, as an interim measure.
June – September 2016: Agency X and the search for alternative provision
- D went home on 17 June. The same needs assessment remained in place. However Mrs A says it was now out of date, as D needed two support workers. She took unpaid leave to care for him.
- The social worker completed a care and support plan for D. This was largely based on his previous residential environment. It states he may need 2:1 care and refers to the importance of providing constant supervision to manage his behaviour, which may place others at high risk of physical harm.
- On 21 June the Council agreed to fund 47.5 hours of care per week from support workers, on a 1:1 basis, from 8am to 5.30pm each weekday. The Council arranged this through a care agency it routinely uses for supporting young adults, which it says is a major provider in the area (Agency X). It also agreed to fund two days a week at a day centre providing outdoor activities.
- When commissioning care, the Council’s standard practice is to share their assessment and support plan with the proposed provider, to ensure it can meet their individual needs. The provider then completes its own assessment before deciding whether it can take on the care package. However, the Council’s records do not show whether this process was followed with Agency X in D’s case.
- The care package started on 29 June. Mrs A says the support worker who came for the first half of the week worked well with D. However, on 7 July a different worker took D out and he got involved in an altercation with another man, ran away and hit the worker as he was trying to get him back into the car. Mrs A believes this would not have happened if D’s assessment had been updated to show he needed 2:1 care.
- No support worker came the next day and the care was intermittent from this point. On 15 July Agency X told the Council it planned to meet Mr and Mrs A, as it believed D may need 2:1 support and it was struggling to identify enough workers. The Council again offered Mr and Mrs A the respite placement for D in the area they were unhappy with, which they refused.
- The support worker who had a good relationship with D continued to come for the first part of the week but nobody attended on the other days. When the worker was away for the first two weeks of August, the agency could not arrange cover but did not inform Mrs A until she called to ask why nobody had arrived. According to Mrs A’s records, D only had care from the agency for four days in August.
- The Council continued to send Mrs A invoices for D’s care package. This was because his day care alone cost more than the assessed contribution. However Mrs A says that when no carers arrived, D was also unable to attend his day activities, so he received no services at all.
- Mrs A could not return to work as planned and remained on unpaid leave. She struggled to care for D without support, due to his significant needs and aggressive episodes. She kept the Council informed about the problems with Agency X and the social worker contacted another agency (Agency Y) about taking on the care package. This agency specialises in support and supervision for young people with challenging behaviour.
- The Council also continued to approach other potential residential accommodation providers, as well as care agencies that could potentially support D in a council property. The social worker recorded that she had contacted around 30 providers but only three were suitable. One was the in-county residential provider identified in June. Mrs A agreed to visit with the social worker but maintained her view that it was not suitable. Another was the out of country residential setting which Mr and Mrs A had previously declined. After visiting, Mrs A accepted it could meet D’s needs. However, when it completed its own assessment, the provider decided the placement would not be suitable for him. The third was the in-county provider in the area Mr and Mrs A felt was unsafe, which they continued to refuse.
- Mrs A and D also visited an alternative respite centre suggested by the Council, and his social worker sent a copy of his needs assessment. However, Mrs A says she and the unit manager agreed it was not suitable, as it could not provide 2:1 support and had an open-door policy. D liked the unit and wanted to stay there, so he was upset and agitated for two days. Mrs A believes this could have been avoided if the needs assessment had been updated.
- D’s social worker and the team manager met Mr and Mrs A several times to discuss the problems with arranging suitable care and accommodation for him. This included a meeting in mid August with D’s medical professionals and the manager of Agency X, who confirmed they could longer provide the package. Mr and Mrs A expressed their deep unhappiness with the service the agency had provided, the residential options the Council had explored and the respite provision it had offered. They said they now wanted D to live in a council property with 2: 1 support from another agency (Agency Z). Following consultation, the Council agreed to commission this service to provide 24-hour support to D in his own home. However, the agency could not commit to working with D until he had permanent accommodation.
- During the meetings, Mrs A highlighted her concerns about D’s needs assessment. The social worker updated it August. The new assessment contains most of the same information but includes new details about D’s behaviour following his return home. It records his level of need in all domains as exceptional, both alone and with his family, and has more details about how support workers should deal with aggressive episodes. According to the assessment, D is supported with a 2:1 staff ratio in the community (although this was not actually happening). It concludes that D requires full-time care on a minimum 1:1 basis, with consistent carers. The support plan did not change.
- Agency X ended its contract due to the breakdown in the relationship with Mr and Mrs A but later agreed the carer who worked well with D could attend for the first part of the week. This continued until the end of August, after which the carer was no longer available.
September 2016 onwards: Agency Y and long-term options
- Agency Y was due to start providing an interim care package to D on 1 September, so Mrs A could return to work. Records show this was agreed in principal but not confirmed by the Council, which Mrs A believes was due to miscommunication and staff absence. The agency then employed the carers elsewhere.
- The Council offered to arrange support from an outreach service for young adults with challenging behaviour. The service assessed D in early September and said it could provide 2:1 support from Monday to Friday. Mr and Mrs A declined this support as they felt the carers could not meet D’s needs. Mrs A took more unpaid leave to continue caring for him.
- Between September and December the Council contacted more providers of residential accommodation and supported living services, but did not identify any clear alternatives for D. According to the Council, Mrs and Mrs A decided not to pursue the package with Agency Y, as they had some concerns about the consistency of its workers, due to the distance they would need to travel. Instead, Mrs A worked with a new agency to try to recruit support workers directly. However they could not find anybody suitable.
- In November the Council agreed to provide direct payments to Mrs A for the care she was providing to D. It paid her around £630 per week, based on 47.5 hours of care, and backdated the payments to 20 June. This was outside its normal procedure, which does not allow direct payments to people within the same household. The Council says it continued to offer other services but Mrs A preferred to keep the direct payments. Mrs A refutes this and says she wanted to return to work but continued caring for D because there was no suitable alternative.
- The Council also agreed to fund 14 days of respite care for D up to January. Mrs A says the placements offered were unsuitable apart from one provider. The Council booked a place for D there but he refused to go, so Mrs A cancelled all further respite. The only respite she was able to take up was on Tuesdays when she attended a course.
- In December, D ran away from Mrs A when they were out and hit her. He also became very agitated one evening at home, which led to his younger sister locking herself in the bathroom. D’s psychiatrist made a safeguarding referral to Children’s Services but they decided there was no need for any further action.
- Following these incidents, the Council arranged for Agency Y to support D with two workers for 11 hours per day from Monday to Friday. This started in January. Mrs A says that, if the Council could put this in place so quickly, it should have done so earlier. The Council says Mrs A decided to pursue other options and receive the direct payments, but by December she accepted that she could no longer care for D herself. She says she made this decision not through choice but through lack of any acceptable alternative.
- The Council continued Mrs A’s direct payments for two weeks after Agency Y started, up to 20 January. It agreed the agency would support D until he moved into Council accommodation. This arrangement is still in place due to complications in securing a social tenancy. Mrs A says the service from Agency Y is better, though she has raised some concerns with the Council about the quality of carers, which it addressed.
- Mrs A applied for D to join the housing register for their local borough council (Dacorum) in August 2016. Dacorum accepted the application but did not award medical priority or agree D needed an extra bedroom for carers. His social worker then asked the Housing Panel to consider D as a special case. In September, panel members decided D should not be on the housing register as he lacked capacity to sign a tenancy agreement and they felt he needed supported accommodation.
- Mrs A appealed against this decision and a senior manager wrote to her with the outcome in October. He acknowledged Dacorum’s current allocations policy did not allow for cases like D’s and accepted he needed a two-bedroom property. However, he agreed with the Panel that D could not hold a tenancy directly and suggested Mr and Mrs A apply for authority to do so on his behalf.
- The Council’s legal department advised Mrs A to apply to the Court of Protection for this, which she did. She still is waiting for the order. Dacorum will then offer D a property. Mrs A feels the delay could have been avoided if both councils had worked together earlier and the social worker had told her about the Court of Protection.
- D has remained living at home but unfortunately his behaviour has become more challenging and he has seriously assaulted Mrs A. She and the Council now accept the most appropriate placement for him is the out of county residential unit they previously considered. The unit has agreed to offer D a place and he is due to move there in July. However, Mrs A says the past year has been extremely challenging and distressing for the whole family, which could have been prevented with better planning and support from the Council.
- Mrs A complained to the Council in September about its handling of D’s case from February. She forwarded a copy of letter she sent her MP, with details of the problems to date.
- The Service Manager responded in November. She acknowledged Agency X had been unreliable and could not provide the agreed hours. She said D’s complex needs meant there were limited providers available and noted that Mr and Mrs A had refused placements that were out of the county. She said the Council was exploring other options and had provided direct payments as an emergency measure, outside its normal policy.
- Mrs A was unhappy with the response, as the manager did not address every point or apologise directly. She did not accept that she had refused out of county placements, as the only one offered decided it could not meet D’s needs at that time. She took her complaint to the Ombudsman.
Analysis: Was there fault causing injustice?
- I am satisfied that both the Council and Mrs A knew from February that D needed to leave his accommodation. However, while the overall notice period was more than three months, the lack of progress in making alternative arrangements up to June, and the short timescale given by the manager from this point, undermined the carefully planned transition that all had agreed was needed.
- The ongoing difficulties in finding D a suitable residential or supported living placement suggests that even a longer notice period would not have been enough to avoid his returning home as an interim measure. However, given his complex needs and behaviour, it was important for an appropriate support package to be in place before this happened.
- I consider that more effective planning, and greater co-operation between the Council and residential manager, could have ensured there was enough time for thorough consultation with Agency X about D’s needs and whether it could meet them. The evidence indicates that any discussion and information sharing that did take place was inadequate as, after little over a week, it became clear it could not actually fulfil the package. While I recognise this followed the incident on 8 July, it should not have been wholly unexpected, as D’s needs assessment and support plan state that he is prone to physical aggression and may require 2:1 support.
- Agency X and the Council are both responsible for agreeing a package the agency could not manage. It subsequently failed to provide care for most of the contracted period, so the Council did not fulfil its duty to meet D’s support needs. Therefore, I find fault with the Council in relation to its planning for D’s move from residential accommodation and for the problems with the support package. The uncertainty, disruption and gaps in provision during this period caused D and Mrs A injustice.
- Once Agency X acknowledged it could not meet D’s needs, the Council had a responsibility to arrange suitable alternative provision. On the balance of probabilities, I accept that miscommunication from the Council was the main reason Agency Y did not start working with D from September. However, the Council arranged an alternative agency, which Mr and Mrs A declined, and the records available suggest they chose to pursue other options until the incident in December. So, while the Council was at fault for losing Agency Y in September, I have not found it responsible for the ongoing gap in provision until January.
- The assessment and support plan in place for D until August did not fully reflect his circumstances following his return home, but they were detailed enough to give potential accommodation, support and respite providers a good idea of his needs and risks, and the August assessment was not substantially different. Therefore, while the assessment should have been updated sooner, I have decided that, on the balance of probabilities, this would not have changed the outcome when approaching providers.
- However, both the May and August assessments are unclear about the number of support workers D requires. They both refer to him receiving care on a 1:1 basis, but the support plan states he may need 2:1. The Council should have made a considered decision about this and been consistent in the assessment and support plan. The evidence suggests the lack of clarity on this point led to further delay and uncertainty for Mrs A and D.
- The complications with D’s housing are very unfortunate, but this was unforeseen even by Dacorum Borough Council’s Housing Service. The Council worked with Dacorum to pursue Mr and Mrs A’s preference for supported living for D, and provided relevant information for his housing application and the Court of Protection process. Therefore, I have not found fault here.
- It has clearly been very difficult to find residential accommodation or support agencies that can meet D’s needs. It is understandable that Mr and Mrs A also have particular conditions, which excludes some options including the respite care that was offered. However, overall, I am satisfied the Council has demonstrated it has enough suitable provision to comply with its responsibilities under the Care Act 2014. The key problem appears to have been determining the right option for D and making the necessary arrangements with providers. While there have been unacceptable gaps in the provision, the Council has addressed this to a degree by offering respite and providing direct payments. Nevertheless, paying Mrs A as a carer was not an equivalent service, and the whole family has experienced distress and disruption. In addition, I consider Mrs A was justified in deciding to refuse the respite care offered.
- The Council’s response to Mrs A’s complaint did not fully address all of the matters she raised or offer an apology. Given the serious nature of these issues and the impact on D and the family, a more detailed and timely response would have been helpful. Therefore, I have found fault with the Council’s complaints handling.
- The Council has agreed to apologise for the faults identified in this decision statement.
- The Council has agreed to fulfil its offer to refund the service-user contribution for the days D was without a carer and also unable to attend day activities.
- The Council has agreed to pay Mr and Mrs A a financial remedy of £1500. This is to acknowledge the additional stress and inconvenience caused by the delays and problems with the support package, the impact of the disruption and inconsistency on D, and the increased risk of harm to him and the family. The remedy also takes account of Mrs A’s time and trouble in pursuing her complaint.
- The remedy should be completed within four weeks of teh date of this decision.
- I have identified fault in the planning of D’s move home from residential care, the lack of clarity about his specific support needs, the poor service from a commissioned agency, delay in arranging suitable interim provision and the Council’s response to Mrs A’s complaint. This has caused Mrs A and D significant injustice.
- As the Council has agreed to my recommended action, I can complete my investigation.
Investigator's decision on behalf of the Ombudsman