Decision : Upheld
Decision date : 17 Jan 2019
The Ombudsman's final decision:
Summary: Miss X complains the Council failed to meet her disabled adult son, Mr Y’s care needs for more than two years after he reached age 18, causing her to have to care for him full-time and restricting her ability to work. The Council has agreed to pay Miss X a sum of over £40,000 in recognition of the injustice caused.
- The complainant, whom I shall call Miss X, complains the Council has failed to provide or pay for the social care her disabled adult son, Mr Y needs since April 2016 and that it failed to do what it promised in responding to her complaint.
The Ombudsman’s role and powers
- 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)
- 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 read Miss X’s complaint and spoke to her on the telephone. I made written enquiries of the Council and considered the documents it sent in reply. I took account of the Council’s duties under the Care Act 2014. I spoke to officers of the Council when they called me. I shared a draft of this decision with both parties and invited their comments. Both parties told me they accepted the draft decision.
What I found
- Mr Y turned 18 in April 2016. His last care plan before his 18th birthday showed he had care needs for which the Council made direct payments to Miss X while he was a child.
What should happen?
- Under the Care Act 2014, councils with social care responsibilities must arrange transition from children’s services to adults’ services for those service users who are likely to have continuing needs. Councils cannot withdraw services where there remains an assessed need. Where a person receives direct payments, a council can substitute a commissioned service instead where it is not satisfied they are using the direct payments correctly.
What happened and was it fault?
- In early 2016, the Council contacted Miss X, telling her she had not sent in bank statements and it would need to stop direct payments. I have reached no view whether Miss X had supplied the information the Council asked for as it is not relevant to my finding. But I have seen no evidence that she responded to the warning.
- On 4 February 2016, the Council held a transition panel meeting for Mr Y. The notes of this meeting stated Mr Y needed an adults’ assessment “urgently” as he was only a few weeks short of 18. There was no suggestion that his needs had lessened or ended. I find the Council at fault for failing to plan for Mr Y’s transition in enough time when it was clear he was likely to have continuing needs.
- On 4 March 2016, the Council’s records show it stopped the direct payments for Mr Y. It did not replace them with a commissioned service and it had not reassessed him. I therefore find the Council at fault for withdrawing the direct payments and leaving Mr Y with unmet needs that were still there from his previous assessment.
- The Council wrote to Miss X on 27 April 2016. It said Mr Y would now be assessed by adults’ services ready for his 18th birthday. But Mr Y was already 18 by 27 April 2016 and the Council had already left him without services.
- The Council assessed Mr Y on 5 December 2016. It found he had no need for services. This assessment is at odds with the previous assessment and the next assessment, both of which found Mr Y had significant needs. When an officer from the service area called me before I wrote the draft decision, she said she was not sure why this assessment had found no needs. I take the view this assessment failed to identify clear needs the Council accepts Mr Y had in 2016 and still has. This was fault.
- During the period from April 2016 to March 2018, the Council’s correspondence with Miss X shows it considered various needs Mr Y had, included possible disabled adaptations to the family home.
- Miss X complained on 31 March 2018 about the difficulties she was having because of the lack of care provision or direct payments as well his exclusion from school. She said she had had to care for Mr Y 24 hours per day and was unable to work, instead receiving only a carer’s allowance.
- The Council replied on 23 April 2018. Miss X was not satisfied and complained again. On 28 June 2018, the Council accepted it had been at fault and apologised, saying a social worker would be in touch in due course to arrange a further assessment. Miss X complained to us, saying there was no definite commitment by the Council to a timescale. When the officer from the service area called me, she said the Council had been too slow to offer remedy when it had been clear from the complaint it had been at fault.
- The Council completed the reassessment of Mr Y’s needs on 21 September 2018. This found he needed 35 hours of care support per week to allow Miss X to work, provide via a weekly direct payment to her of over £400.
- In October 2018, while it was dealing with my enquiries, the Council paid a sum of over £40,000 into Miss X’s bank account. In its response to my enquiries, it said this was in recognition of the sum it would have paid her in direct payments since April 2016. It also added £1400 for harm, risk, distress and time and trouble.
- The Council’s failure to plan in good time and its withdrawal of direct payments without replacing them with a commissioned service left Miss X to care for Mr Y largely unaided for more than two years. It also prevented her being able to work. I have no doubt that Miss X met most if not all of Mr Y’s care needs, so the injustice caused was largely to her.
- The financial remedy the Council has offered (and already paid) to Miss X is unusually large. However, owing to the difficulties the loss of service caused Miss X, it is appropriate. I also welcome the Council’s offer to send Miss X a formal apology.
- The Council’s payment and its apology is sufficient to remedy Miss X’s personal injustice.
- However, to prevent a repeat of these events, the Council will also arrange staff training within three months of this decision to ensure all staff are aware of:
- the need to plan in good time for the transition of children with social care needs to adults’ services where these needs are likely to continue; and
- the need to maintain services necessary to meet a young person’s assessed needs at age 18 until those needs change, regardless of any internal boundaries between children’s and adults’ services.
- I have upheld the complaint and closed the case as the Council has agreed to take the actions recommended to ensure no repeat of the fault found.
Investigator's decision on behalf of the Ombudsman