Decision : Upheld
Decision date : 05 Oct 2018
The Ombudsman's final decision:
Summary: There was no fault in the Council’s exploration of options for respite care arrangements, although there was minor fault in arranging the handover of care to an agency. There was also fault in its failure to respond to the complainant at a crucial time, which caused her distress. The Council has agreed to apologise for this and issue guidance to its staff.
- This complaint is made jointly by two complainants, to whom I will refer as Ms C and Ms D. Ms C is mother of Ms D, who is disabled and has complex care needs.
- Ms D turned 18 in May 2018. Ms C complains that about the Council’s management of Ms D’s transition to adult services, and how this has affected the arrangements for respite care.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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 reviewed Ms C’s correspondence with the Council and its responses, and information about the different respite care options which have been explored.
- I also sent a draft copy of this decision to both parties for their comments.
What I found
- Ms D lives at home with Ms C, who acts as her carer. Before Ms D turned 18, she would stay at a local facility for six nights each month, to provide respite for Ms C. However, this facility is not registered to provide services for adults.
- In July 2017, the Council began its transition planning for Ms D. Between then and December, the Council and Ms C explored two options for Ms D’s continued respite. One of these was to enquire whether Ms D’s current facility might be able to continue providing services to her after her 18th birthday. The other option was a local facility for adults with care needs, for which respite care stays could be booked.
- Unfortunately, it was decided that the current facility could not continue to provide services to Ms D, due to its registration. Ms C had also visited the adult facility, and had decided that it was not suitable for Ms D’s needs. The Council and Ms C then explored a number of other options.
- On 29 January 2018, Ms C made a complaint to the Council due to the slow progress which had been made. The Council responded on 9 February.
- In February, a care agency was identified as a being a possible suitable option. The agency assessed Ms D and agreed that it could work with her.
- In April, the Council discussed possible options for respite accommodation with the care agency.
- The Council arranged for carers from the agency to attend Ms D’s school, her current facility and to accompany her in the community for several ‘shadow shifts’ in May. This was for the carers to meet Ms D and learn about her needs.
- The Council also liaised with the agency at this time to identify accommodation for Ms D’s respite care. Two options were identified, which the intention that each would be tried to determine which was most suitable.
- However, the Council experienced problems with booking accommodation for mid-week respite care. It suggested to Ms C that she and her other daughter could leave the family home and stay at a hotel, at the Council’s expense, for these nights, leaving Ms D at home with the carers. Ms C agreed to this.
- Ms C had sent several further emails of complaint to the Council, and on 9 May it collated these into a single formal complaint. The Council responded to Ms C’s complaint on 25 May.
- Ms C then made a complaint to the Ombudsman on 5 June.
- Since her complaint, Ms C has reported a number of problems with the suitability agency and accommodation bookings. This has led to a breakdown in respite care arrangements. Ms C complains that she has had difficulty contacting the Council to discuss these problems.
- Ms C has raised several different issues as part of her complaint. But, fundamentally, they appear to flow from a single point – that of her dissatisfaction with the options available to her for respite care for Ms D.
- It is unfortunate that Ms D could not continue to make use of her existing respite facility once she had turned 18. It appears that she was settled here, and that the family had an established routine which worked well. However, the facility’s registration allows it only to cater for those under 18.
- The Council has explained that, between July and December 2017, it explored the possibility of extending Ms D’s care at the existing facility past her 18th birthday, as one option.
- This appears to have been the best option for all concerned, at least in the short term, as it would have represented the least disruption to Ms D’s routine. It is unfortunate that the registration issue could not be negotiated, but it is positive that the Council explored this anyway.
- This said, I must question whether this option would have been sustainable. Even if an extension were agreed, it would presumably not have been indefinite, and so Ms D would still inevitably have faced disruption to her routine. So it may not have proved the best option, in the longer term.
- The other option being explored at that time was a local specialist respite facility catering for adults. The Council says that it is suitable for Ms D’s needs, and that it had capacity.
- Ms C visited the adult facility in September 2017. She says that she was not satisfied that it was appropriate for Ms D, as she saw older adults there and considered there to be a lack of stimulation for Ms D. She has unequivocally rejected it as an option for Ms D’s respite care.
- The Council has explained that, although the facility caters for a range of age groups, there are days when the client group present is younger. The facility also has separate, annexed accommodation, which would potentially be available for Ms D’s stays; although Ms C has also visited this and again considers it unsuitable.
- Again, it is unfortunate that it took until December 2017 before this option was ruled out. This left a relatively short timeframe for the exploration of other options.
- The Council has provided me a list of the options which have been explored. Apart from the two respite facilities I have mentioned, it also considered:
- A Shared Lives placement, which is where the service user visits another person or family’s home. The Council says it made a referral in January 2018, but it was rejected because there was no suitable placement for Ms D.
- Another respite facility, which is approximately 30 miles from Ms C’s home. Ms C deemed this too far.
- The construction of an annexe at Ms C’s home, where Ms D could stay with a carer during her respite. Ms C determined this to be unsuitable, as Ms D would be confused about the fact that she could not enter the main home.
- A carer staying with Ms D at Ms C’s home, while Ms C and her other daughter go to alternative accommodation. This has been attempted on a number of occasions, but it has proved difficult to secure the alternative accommodation due to capacity, particularly during busy periods.
- A carer taking Ms D to one of two facilities – a caravan owned by a mental health charity, and a respite facility in a different county area. The Council says that this has the option which has worked best, but has still presented problems, as the caravan bookings have been unreliable, and the respite facility is too far to use on weeknights, as Ms D must return to go to school the following morning.
- It is clear that there is no perfect solution to this question. The Council considers that the local adult facility is the most viable option. It has explained several times why it believes this to be the case. However, Ms C has also explained why she does not consider it suitable.
- I cannot resolve this impasse. The role of the Ombudsman is not to adjudicate on differences of opinion between complainants and authorities. It is to determine whether the authority has followed the correct procedure in making its decisions.
- In this case, I cannot see fault in the Council’s actions. It accepted, despite its own view, that Ms C did not wish to use the local facility. It worked with Ms C to establish and explore a number of alternatives.
- Ms C considers it fault that the Council has been unable to provide an option which is to her satisfaction. But I do not agree. The Council has a limited set of resources on which to draw, and these must cater for people with a wide range of needs. Ideally, one option would suit Ms D perfectly, but I do not consider it fault that the Council has been unable to meet her preference.
- Moreover, the Council remains of the view that the local facility is a suitable option.
- I understand that Ms C holds a different view. But there is no suggestion of any insurmountable obstacle to Ms D using the facility – it caters for her age group, and can apparently manage her needs. Ms C’s opposition is a matter of preference. She is entitled to this view, but I cannot uphold a complaint on this basis alone.
- In such circumstances, the Council has a duty to explore other options. But it has done so. Unfortunately, none has proved to be a stable and sustainable arrangement, for reasons which are outside of the Council’s control.
- Ms C also complains about delays in the carers meeting Ms D. She says that, because of Ms D’s condition, it is important for her to familiarise herself with new people. If not, she may become anxious and engage in challenging behaviour.
- The Council says it made the referral to the agency on 21 February, and the agency responded positively on 1 March. The agency’s ‘shadow shifts’ then began on 2 May.
- I am unaware of what arrangements needed to be made before these shifts could begin, or whether there was a question of capacity by the agency. However, the Council has itself conceded that it would have been better to have arranged more of these shifts before the agency took over Ms D’s respite care. As it was, they commenced only shortly before Ms D turned 18, and despite the fact that the agency’s involvement had been confirmed for more than two months by that point.
- I therefore consider there to have been some fault in this. However, it is difficult to gauge what level of injustice this fault may have caused. I have not seen any suggestion that the handover to agency actually failed because of the delays in arranging the shadow shifts.
- Ms C says that, since the agency has taken over Ms D’s respite care, she has experienced several problems with missed sessions. This has escalated to the point where she has gone a number of weeks without any respite care at all.
- There appears to be number of reasons for these problems. The Council has referred to difficulties with the availability of carers and of accommodation, which has been particularly acute during the summer holiday period.
- I do not underestimate the impact that this has had on Ms C. Ms D has complex and constant needs, and the breakdown of the arrangements has left Ms D without the much-needed rest periods the respite care should afford her.
- But it is difficult to lay the blame for this on the Council. Ms C considers that the problems she is now experiencing have been caused directly by what she considers to be the poor handling of the transition process, such as the delays in putting provisions in place.
- But, as I have described, none of the options available to the Council was without its problems. It has attempted to compromise, but the arrangement which was eventually agreed – Ms D being cared for at home while her mother and sister left, or being taken to the caravan and respite facility outside the county area – appears inherently unstable.
- I do not consider it fault by the Council that it has not proven to be a reliable option; nor can I see how this option would have been any more reliable if arrangements for it had been made sooner.
- Ms C also complains that she has had difficulty contacting the Council at various points since the transition work began. In particular, she says that she had to wait for two weeks for a response from the Council when she reported the total breakdown of the respite arrangements over the summer holidays, after my investigation began.
- The Council has conceded that it did not respond promptly to every contact Ms C made with it, although it says that there were no “significant” gaps in its communication with her.
- The matters at the heart of this complaint have taken place over a period of more than a year. There is no practical way for me to comprehensively assess the timeliness of the Council’s communication with Ms C through that time, given the number of separate contacts this would represent.
- However, I do note Ms C’s attempted communication with the Council of 21 August, in which she reported that she was approaching crisis point because of the breakdown in respite arrangements. The social worker to whom she wrote responded on 5 September, to say that she had been unable to answer due to being on leave. Ms C replied to say that she had not received an out-of-office autoreply to notify her of this.
- I do consider this to be fault. Council staff are obviously entitled to take leave, and so it is inevitable that a person’s appointed social worker will not always be available. But, given the possibility of urgent problems arising in their absence, such as those mentioned by Ms C, it is very important for covering arrangements to be made in such circumstances.
- I cannot say that a prompter response by the Council would have prevented the breakdown of the respite arrangements. As I have said, the arrangement appears to have been inherently unreliable, for reasons outside of the Council’s control.
- But I am satisfied that failure to respond quickly caused distress to Ms C, which is an injustice.
- Ms C’s complaint rests fundamentally on the Council’s inability to provide her with a respite care arrangement for Ms D which meets her preference.
- While this is unfortunate, I do not consider it to be the result of fault. The Council considers that there is a suitable and reliable option for Ms D’s respite. While Ms C does not want this option, I would only be able to uphold her complaint if there were an objective reason why Ms D could not use the facility.
- In the absence of this, it is a matter of opinion, and I cannot uphold a complaint on this basis alone. The Council has explored a number of other options, and although none of these has proved reliable, there is no reason to believe this is the Council’s fault.
- I have found fault with the delay in arranging handover shifts for the agency carers, as these could have begun sooner. But it is not clear that this caused any tangible injustice. I do not consider that the problems Ms C has subsequently experienced with the agency can be linked to this delay.
- I have also found fault in the Council’s communication with Ms C, particularly the two-week delay in responding to her email during the summer holidays. I am satisfied that this caused considerable distress to her.
- Within one month of the date of my final decision, the Council has agreed to:
- Write a formal letter of apology to Ms C for the failure to respond more promptly to her, when she reported the breakdown of respite care arrangements during the summer holidays; and
- Circulate a reminder to relevant staff of the importance of activating their email autoreply function during periods of leave, with a message directing the recipient to an alternative point of contact.
- I have completed my investigation with a finding of fault causing injustice.
Investigator's decision on behalf of the Ombudsman