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London Borough of Bromley (18 012 871)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 29 May 2020

The Ombudsman's final decision:

Summary: Mrs B complains about planning for her adult son, Mr C, when he moved to a residential care placement. We uphold the complaint finding fault in how the Council planned for Mr C’s move. This caused injustice as distress and in unnecessary time and trouble to Mrs B. The Council has accepted these findings. At the end of this statement we explain the action it has agreed to take to remedy this injustice.

The complaint

  1. I have called the complainant ‘Mrs B’. Her complaint concerns adult care services provided by the Council for her disabled son, ‘Mr C’. In brief, Mrs B complains of multiple failings in care planning for Mr C from October 2016 onward, as he moved from one residential placement to another. This investigation also considers the Council’s handling of Mrs B’s complaint made originally in August 2018 and its communications with Mrs B more generally.
  2. Mrs B says because of the Council’s poor care planning, Mr C did not receive enough support to meet his needs after moving to a new residential care placement in July 2017. Mrs B says failings in communications together with flaws in Mr C’s care planning ultimately contributed to a breakdown in Mr C’s residential care placement in June 2019.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  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. 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. Before reaching this decision I took account of the following:
  • Mrs B’s written complaint to the Ombudsman and any supporting information she provided.
  • The Council’s reply to Mrs B’s complaint and other correspondence exchanged before we began our investigation.
  • Information provided by the Council in response to our enquiries.
  • Relevant law and guidance as referred to in the text below.
  • Comments provided by Mrs B in response to a draft decision statement setting out my proposed findings. The Council also had chance to comment on these. It said in response that it accepted the draft findings and did not comment further.

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What I found

Relevant Legal Considerations

  1. The Care Act 2014 and associated Regulations (the Care and Support (Eligibility Criteria) Regulations 2014) set out eligibility criteria for adults with care and support needs to receive support from their local social services authority. Authorities must consider how a person’s needs affect their ability to achieve relevant outcomes. Also, in turn, how this impacts on their wellbeing. To have needs which are eligible for support a three-stage test applies.
  2. First, the adult must have needs that arise from or are related to a physical or mental impairment or illness.
  3. Second, because of the needs, the adult must be unable to achieve two or more of the following outcomes:
  • managing and maintaining nutrition;
  • maintaining personal hygiene;
  • managing toilet needs;
  • being appropriately clothed;
  • being able to make use of their home safely;
  • maintaining a habitable home environment;
  • developing and maintaining family or other personal relationships;
  • accessing and engaging in work, training, education or volunteering;
  • making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
  • carrying out any caring responsibilities the adult has for a child.
  1. Third, where the adult cannot meet any of these outcomes, there must likely be a significant impact on their well-being.
  2. Where a council has assessed an adult has a need for services based on the criteria above, it must draw up a care and support plan. The Care and Support Statutory Guidance says, among other things, that a care and support plan must include:
    • the needs identified by the assessment;
    • whether, and to what extent, the needs meet the eligibility criteria;
    • the needs the authority is going to meet, and how it intends to do so;
    • a personal budget; this is the amount of money the Council calculates needed to provide the care and support the adult needs.
  3. The Care and Support Statutory Guidance says: “It is vital that the process used to establish the personal budget is transparent so that people are clear how their budget was calculated, and the method used is robust so that people have confidence that the personal budget allocation is correct and therefore sufficient to meet their care and support needs. The allocation of a clear upfront indicative (or ‘ball-park’) allocation at the start of the planning process will help people to develop the plan and make appropriate choices over how their needs are met”. It says: “An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process”.
  4. Local authorities cannot lawfully meet health needs that are the responsibility of the NHS. Although they can meet health needs that are incidental or ancillary to part of a package of health and support (Section 22 of the Care Act 2014 applies). The Care and Support Statutory Guidance stresses the need for organisations to work together, for example to avoid delays in assessments of need.

Background

  1. Mr C is a young adult who was 21 at the beginning of the events covered by this complaint, which I have taken as August 2016.
  2. Mr C is disabled. He has moderate to severe learning disabilities. His disability affects the muscles around his mouth and throat. It causes problems with swallowing, feeding and talking, making his speech difficult to understand.
  3. The Council has managed Mr C’s case through its adult social care services, which has its own team to support learning disabled adults. The Council has kept Mr C’s case open to a case manager throughout the events covered by this complaint, although the identity of that individual has changed over time.

Chronology of key events

  1. I have taken the beginning of events as August 2016 as this is when Mrs B first contacted the Council about transition planning for Mr C from July 2017. At the time Mr C lived in a residential placement that provided both his social care and education. He was due to leave that placement by summer 2017.
  2. The Council’s first response to Mrs B said that it was too soon for the Council to begin planning Mr C’s transition but offered reassurance this would be done in good time. Mrs B did not agree and escalated her correspondence to senior officers of the Council. In exchanges during September 2016 they also sought to reassure Mrs B that transition planning for Mr C was in hand and would begin before the end of the month.
  3. At the end of September 2016, the Council appointed a new case manager to Mr C’s case, whom I will call ‘Officer Y’. In October 2016 they began an assessment of Mr C’s needs which completed in December 2016. While the assessment remained outstanding the Council records Mrs B raising with Officer Y the prospect of Mr C moving into a house with other learning disabled adults. The Council’s case notes show Officer Y discussed the idea with senior officers who suggested in principle the Council could agree to this arrangement.
  4. If the arrangement went ahead then those living in the house would need support. Mrs B asked about receiving a direct payment to buy in care for Mr C. Officer Y’s notes from December 2016 say they understood Mrs B would reject any care provider arranged by the Council. Mrs B wanted a direct payment to exercise control over buying in Mr C’s care and wanted an idea of what amount she would receive. Officer Y received advice to provide Mrs B with an ‘indicative budget’.
  5. Officer Y recorded in mid-December saying to Mrs B she would provide her with an indicative budget once her assessment of Mr C’s needs completed. Officer Y explained to Mrs B that once they had set an indicative budget they would ask the Council’s brokerage team to try and identify care providers who could meet Mr C’s needs. Officer Y’s notes indicate that Mrs B wanted the Council to provide an indicative budget immediately and repeated this request several times, although Mrs B says this was not the case and understood an indicative budget could not be given immediately. Officer Y’s notes said they found Mrs B “really demanding” and caused her to feel “overwhelmed”. Officer Y also recorded feeling “threatened” that Mrs B was “mentioning going down legal routes to get what she wants”. Mrs B considers this description unfair saying she has become frustrated at times with the Council but not acted in a threatening or intimidating way.
  6. By January 2017 Officer Y’s assessment of Mr C’s needs had completed. It found Mr C had a need for care services as he could not meet several of the outcomes set out in the Care Act 2014. It recorded Mr C’s abilities in various areas; for example, to what extent he could meet personal care needs such as washing, dressing or toileting. The assessment appears based mainly on historic information on the Council’s records about Mr C’s needs and what Mrs B told Officer Y.
  7. Officer Y’s manager considered the Council needed more information to inform how the Council would support Mr C moving forward. They told Officer Y to provide Mrs B with information including that the Council:
  • wanted to have a specialist nursing assessment of Mr C’s speech and language needs;
  • wanted more information about the cost of services to Mr C at his current placement and what that covered;
  • would share with her the Council’s policy on personal budget and how it calculates indicative budgets;
  • would invite her to regular transition planning meetings.
  1. Officer Y recorded speaking to Mrs B after receiving this advice. The Council notes say Mrs B continued to express unhappiness the Council had not set a budget for Mr C’s care. Officer Y said they felt “rushed” into completing their assessment because they were having to manage Mrs B’s anxieties. The note indicates Officer Y ended the call because of Mrs B’s “negativity”. Mrs B says Officer Y did not set out the information in paragraph 24 and there is nothing in the Council notes to suggest it gave this information to her..
  2. Mrs B further spoke to managers in the adult care service in January 2017. They sought to reassure her again that transition planning for Mr C was being undertaken in good time.
  3. By mid-January 2017 Mrs B had re-considered if a supported living placement would best suit Mr C. The first indication of this are notes referring to Mrs B wanting the Council to consider a residential placement, which I will call ‘RCP1’. Mrs B said she wanted an assessment for Mr C’s suitability for that accommodation to complete before the end of the month.
  4. In other correspondence in January 2017 the Council set out its position to Mrs B that the NHS should fund speech and language therapy for Mr C.
  5. At the end of January 2017, a ‘high needs review’ of Mr C’s case took place at his then residential placement. Mrs B attended along with representatives from the Council (including Officer Y) and from the care provider. The notes of that meeting confirm that Mrs B was now pursuing wanting Mr C to live in a residential placement. There was some discussion about Mr C living in supported living accommodation instead. The minute records Mrs B saying she “had not ruled this out” but she had concerns if a supported living placement could provide Mr C with enough support. The care provider commented that Mr C wanted interaction with adults. Two employees working with Mr C said they considered he needed residential care in the future as they felt he was “happiest” in a residential setting and it would be “detrimental if he was not in the same environment in the future”.
  6. Attached to the record of the meeting were various written statements. These included one from Mr C’s key worker at the residential placement. It explained Mr C’s difficulties with speech affected his ability to communicate with others. It also noted he received regular physiotherapy to prevent a risk of injury associated with his disability. It referred to Occupational Therapy, physiotherapy and speech and language therapy all providing guidance to support his sensory needs, physical wellbeing and communication needs. A psychologist working with Mr C noted he suffered anxiety at times and said over the coming year he should receive “support as appropriate”. A speech and language therapist set out the detailed support Mr C received and continued needing in this area. This was to meet his communication needs and in support with eating and drinking skills. An Occupational Therapist similarly set out the work they did with Mr C and recommended he needed a continued package to help support his independence.
  7. The meeting notes show all present recognised the importance of Mr C continuing to receive speech and language therapy for his communication needs. The notes record Officer Y saying that speech and language therapy “would be paid through social care in the future”.
  8. Officer Y completed their amended assessment of Mr C’s care needs in February 2017. This added comments from the care provider on their perception of Mr C’s needs. I noted there were not significant divergences between what Mrs B said about Mr C’s care needs and the care provider. The assessment noted the consideration given to Mr C living in a supported living setting and that Mrs B now expressed doubts about that and wanted to look at residential care. The assessment did not indicate the Council had a view about which setting would best meet Mr C’s needs.
  9. By February 2017 Mrs B had decided to instruct solicitors because she was unhappy with the time taken to agree a budget or placement for Mr C’s care from summer 2017. Into March 2017 she also contacted managers of the service wanting progress on whether Mr C could move to ‘RCP1’.
  10. In late March 2017 Mr C’s case went to the Council’s Practice Review Group (PRG). This is a group of senior officers within the Learning Disability service that meet to “review and approve where appropriate requests for new care packages or changes to existing packages of financial support”. Its terms of reference refer to the need for a “transparent” personal budget process “so that people are clear how their budget was calculated”. The PRG is there “to give people confidence that the personal budget allocation is correct and sufficient to meet their eligible unmet care and support needs”.
  11. The minute of the PRG refers to Officer Y wanting “approval for the Brokerage Team to begin looking for alternative accommodation in order to meet [Mr C’s] assessed needs”. It also says, “I am also seeking an indicative personal budget for care based on [Mr C’s] assessed need”. The commentary with the proposals suggested Mrs B was still considering the supported living proposal. But that she “wanted to see what her options are”. Officer Y said they believed Mr C’s needs could be met in supported living. But they did not know what this would cost without knowing the needs of other tenants moving into the house. The proposal also noted that in January 2017 Mrs B had identified RCP1 as a placement which might suit Mr C’s needs.
  12. The PRG recorded its decision that it “agreed brokerage to commence looking for alternative accommodation to meet assessed needs. PRG are unable to set an indicative personal budget without further exploration of accommodation and care and support needs”.
  13. In March 2017 the Council solicitor wrote to Mrs B’s solicitor and provided some explanation for where care planning had reached. It said the Council wanted more detail around Mr C’s needs for psychological input, speech and language therapy, occupational therapy and physiotherapy. It was also still assessing what accommodation Mr C needed.
  14. After the PRG meeting the Council changed Mr C’s case manager to Officer Z. A note on the case from Officer Y says they had been trying to arrange an assessment to determine Mr C’s capacity. This was to consider to what extent he could participate in decisions around his care. But the assessment did not take place and the Council did not pursue this subsequently.
  15. At the end of March 2017 Mrs B’s solicitor sent the Council a ‘pre action protocol’ letter, a precursor to taking judicial review proceedings. The letter said:
  • the recently completed needs assessment of February 2017 was inadequate as it did not set out all the views of professionals at the High Needs Review; it did not contain detail of Mr B’s need for psychological input, speech and language therapy, occupational therapy and physiotherapy; all of which the high needs review had identified;
  • other parts of the assessment would benefit from further comment to set out the extent of Mr C’s needs; for example, further comment on Mr C’s needs in the area of ‘maintaining family or personal relations’;
  • the needs assessment had failed to identify what accommodation Mr C needed; it inaccurately described Mrs B wanting a supported living placement for Mr C, not the residential placement at RCP1;
  • the assessor had failed to provide a copy to Mrs B and invite her comments;
  1. To avoid judicial review proceedings, Mrs B’s solicitor asked the Council:
  • to review or re-assess Mr C’s needs;
  • to urgently arrange for RCP1 to carry out an assessment of Mr C’s needs as it was unlikely to have vacancies after the end of April 2017.
  1. Council notes and emails sent by Officer Z say that in April 2017 they provided Mrs B with information about care providers who might meet Mr C’s needs. The Council says this was a list of around 14 providers – both supported living and residential care providers – all within one hour of the family home (with one exception). Officer Z asked if Mrs B wanted to visit any of those. Mrs B disputes she received details of this many providers.
  2. In the first week of April 2017, Mrs B’s solicitor sent a second letter to the Council. This again pressed the Council to arrange an assessment for Mr C by RCP1. It also noted the Council had sent Mrs B details of various other potential placements. It explained why in six cases it felt the suggested placements were probably unsuitable for Mr C. It cited reasons such as distance, location, size and the provider’s description of services.
  3. The Council replied saying it would “revisit its assessment” of Mr C’s needs within two to three weeks. It said this would consider what accommodation Mr C needed. The letter did not indicate the Council’s view on RCP1 but it is evident from the papers I have seen that RCP1 proceeded to assess if it could meet Mr C’s needs around this time. Mrs B’s solicitor wrote another letter to the Council urging consideration of this placement. They said that Mrs B had not and would not refuse an assessment by another provider, but so far the Council had not identified one that was suitable. They noted conversations with providers suggested by the Council had shown they had little awareness of Mr C’s needs as the suggested placements were unsuitable for him.
  4. Before the end of April 2017 Mrs B’s solicitor sent a second pre-action protocol letter. The letter expressed frustration the Council had not completed its re-assessment of Mr C’s needs, confirmed its intention in respect of the placement at RCP1 or drawn up a care and support plan. It noted Mrs B’s understanding that Officer Z expected RCP1 to draw up a care and support plan. It said the Council should consider the RCP1 placement without further delay and prepare a support plan for Mr C.
  5. Around the same time the solicitor sent this letter Officer Z kept notes of a telephone conversation with Mrs B. They explained the Council had concerns about Mr C moving to RCP1. It had not been assessed by the care home regulator, the Care Quality Commission. It had not provided references or explained the breakdown of its care costs. Officer Z tried to discuss with Mrs B, the prospect of Mr C moving to supported living instead. The notes say Mrs B was “oppressive to the process” with an “aggressive” tone and manner, something she again disputes. In comments in an email sent shortly afterwards to Officer Z’s manager, Mrs B had explained she had only considered supported living initially as she had not identified a suitable residential placement, which she believed RCP1 was.
  6. In further correspondence in May 2017, the Council reiterated its concerns about the suitability of placement RCP1. In a letter sent to Mrs B’s solicitor in mid-May it raised further concerns about the size of the property and that noise might cause anxiety to Mr C. It also questioned if RCP1 had users with needs which might conflict with Mr C and said it did not provide one-to-one care which it understood Mrs B wanted for Mr C (while also questioning if he needed that). I saw no communications after this letter which suggested Mrs B still wanted to pursue a placement for Mr C at RCP1. But from late May 2017, her correspondence referred instead to an alternative residential placement which I will call RCP2 (one Mrs B says she had first considered in January 2016). I noted that by May 2017 Mrs B had arranged for RCP2 to complete an assessment of Mr C’s needs.
  7. Records show this was around the same time Officer Z completed their reconsideration of Mr C’s assessment of needs. This added more detail to the assessment completed in February 2017. For example, it contains more detail about Mr C’s needs around communication, eating and drinking and personal care. It also considered his awareness of fire safety and his need for transport. It did not significantly change the Council’s view of Mr C’s eligibility for care and support. It found without support he could not meet nine of the ten outcomes set out in paragraph 10 (the previous assessment having found he could not meet eight of the ten outcomes).
  8. Contemporaneous emails also show Officer Z saying around this time they had updated an action plan for Mr C, showing “additional detail around how his needs can be met”. I asked the Council for a copy of Mr C’s ‘action plan’ and for versions of the plan showing changes over time. In response the Council told me the action plan was a dynamic document and it was not possible to recover earlier versions. I understand the copy it has sent to me is therefore the most recent.
  9. The action plan sent to me by the Council is dated July 2014 and has an end date set for November 2014 as well as a review date in 2020. It comments on Mr C’s needs in the areas of communication, bathing, washing, cleaning, meal preparation and so on. While the document reflects some of the commentary in Mr C’s May 2017 assessment of needs it also has differences. For example, the May 2017 assessment of need says Mr C had learnt to self-medicate, but the ‘action plan’ says he cannot. The plan also refers to Mr C ‘starting college’ in 2014 and referring to that placement in the future tense. It does not mention RCP2 or how that provider might meet Mr C’s needs. All the costings in that document appear to refer to the cost of Mr C’s care in 2014.
  10. In May 2017 Mr C’s case went back to the PRG. In a supporting document, Officer Z recommended Mr C needed a residential placement. Their paper set out the proposed cost to the Council of RCP2. However, it is not clear if all the information in Officer Z’s paper went to the PRG in May, as the form was updated with notes appended dated June 2017. The record says the PRG agreed the placement.
  11. On the same day Mrs B’s solicitor wrote again to the Council. They said the latest assessment from the Council contained similar gaps as before. There was “insufficient detail as to [Mr C’s] needs in respect of psychological input, speech and language, occupational therapy and physiotherapy needs and there is no real analysis or assessment of what accommodation [he] will require”. They urged progress and agreement on Mr C moving to RCP2.
  12. In response, the Council said it must follow procedure before it could agree to Mr C moving to RCP2. It said his psychological, speech and language, occupational therapy and physiotherapy needs were “health needs and not funded by social care”. The Council also said it was further revising Mr C’s assessment of needs. It said Mrs B had failed to co-operate with suggestions of other suitable placements made by the Council.
  13. Mrs B’s solicitor responded with another letter in June 2017, pointing out there was now only around a month until Mr C’s current placement came to an end. While they remained concerned at the needs assessment they said they wanted the Council to focus on agreeing a placement for Mr C at RCP2. It said the Council had failed to identify any alternative placement for Mr C.
  14. By mid-June the Council indicated its agreement to Mr C moving to RCP2. But it had not agreed the cost of care. It had concerns the care provider was charging for ‘health needs’ which the NHS should meet.
  15. In mid-July 2017 the Council agreed to Mr C’s placement beginning at RCP2. This would be with effect from the following week. He moved in during mid-August, staying with Mrs B in the meantime. Mrs B later explained he could not move in straight away as his room needed decorating.
  16. Mrs B’s solicitors continued to write to the Council about the care envisaged for Mr C at RCP2, sending a further ‘pre-action protocol letter’. It said the Council had not allowed for ongoing support from therapists working with Mr C such as speech and language. It said the Council had not drawn up a care and support plan for Mr C. The failure to identify a suitable placement sooner also resulted in a delay in making ongoing education provision for Mr C.
  17. By August 2017 Officer Z began advising Mrs B that they would respond to her concerns around Mr C’s placement via its solicitor. In mid-August the Council again said that it considered Mr C’s speech and language therapy was a health need. The letter from the Council also referred to Mr C having an ‘action plan’ which was his care and support plan.
  18. Mrs B’s solicitor continued to challenge the Council on its approach to agreeing speech and language therapy, sending another pre-action protocol letter. They said such therapy would be incidental or ancillary to meeting care needs and so the Council could provide it under Section 22 of the Care Act 2014. The solicitor also said Mr C’s action plan was not a substitute for a care and support plan.
  19. In response the Council said RCP2 would develop its own support plan with Mr C. It said for six weeks the Council would fund extra time for a key worker to work with a speech and language therapist to support Mr C with communication. The letter denied that in January 2017 the Council had agreed to fund speech and language therapy.
  20. Further correspondence through solicitors followed. Mrs B’s solicitor sent another pre-action protocol letter. It again pressed for the Council to recognise Mr C needed speech and language therapy for his communication. It noted he already received some of this therapy via the NHS but only for his dysphagia (difficulty swallowing).
  21. In response the Council said it would consider further how the need would be met. It now suggested the therapy could form part of Mr C’s education needs.
  22. In October 2017 the Council completed another assessment of Mr C’s needs. The assessment said Mr C had settled in well at RCP2. It found since moving to RCP2 he received:
  • a mixture of 24 hour shared support, shared waking night support and 1:1 support hours;
  • he received support for personal care, washing, toileting, dressing, laundry, shopping, meal preparation, supervision with eating, to access the community including day services and activities;
  • ‘classroom style sessions’ for activities with up to six residents at a time;
  • 1:1 support for personal care including dressing and grooming; eating and drinking and attending swimming.
  1. Notes suggest that Mr C continued to receive speech and language therapy after moving to RCP2. However, there continued to be discussion about the extent of the need and whether Mr C needed an NHS assessment. Mrs B points out the speech and language therapy was not formalised until February 2018 when Mr C received an amended education, health and social care plan (EHCP). I noted the social care section contained within a version of Mr C’s EHCP plan dated May 2018 has no details of any care and support plan or personal budget.
  2. I noted from June 2018 concerns around Mr C’s anxiety levels. There was discussion between Council and RCP2 about whether Mr C needed more 1:1 care. Around this time Mrs B asked the Council to clarify “exactly what care package [Mr C] is being funded for”. Officer Z said they needed advice before they could respond. I have seen o subsequent response to this enquiry.
  3. I noted also around this time there was some correspondence around how RCP2 met Mr C’s education needs. In brief, the EHCP formulated that Mr C’s education needs would follow a 38 week timetable. But that left 14 weeks when Mr C had less structured timetabling. Mrs B was unhappy with what she perceived as a lack of support during these weeks.
  4. In November 2018 Mrs B met with Officer Z and the Care Provider. There is no note of that meeting on the Council’s case record. She has provided me with a recording of some of that meeting. During that meeting Mrs B asked the Care Provider and Council to set out what 1:1 support Mr C received. She did not receive a clear response from the Care Provider. There was also lengthy discussion around the support Mr C could receive during holiday periods. Officer Z for the Council said that it did not need to fund more care as it paid for Mr C to receive full-time support from the care provider. The Care Provider offered some advice on what activities continued for Mr C during holiday periods. It also agreed to consider more activities for Mr C and the Council offered some assurance it would consider these.
  5. In April 2019 Mrs B set out her understanding of what Mr C’s care package comprised based on her record of that meeting. In response Officer Z said: “We will not provide a breakdown of support as it is based on the original support plan that was put in place from the formal offer in 2017 and the education provision is in addition to that”. She also revisited the issue of Mr C’s support during holiday periods.
  6. In May 2019 I noted Mrs B again asking the Council to provide a copy of Mr C’s care and support plan; a request which Officer Z passed on to RCP2. Around this time RCP2 also contacted the Council to say it was providing 1:1 care for Mr C for which it was not receiving funding.
  7. Mr C’s placement at RCP2 broke down around June 2019. This followed Mr C experiencing increased anxiety. Changes in his behaviour caused by this increased anxiety led RCP2 to say it could no longer meet Mr C’s needs. In a letter to Mrs B explaining the breakdown of the placement a manager from the RCP2 service attributed the change in Mr C’s presentation to environmental factors.

Mrs B’s complaint

  1. Mrs B made a complaint about the Council’s transition planning for Mr C in August 2018.
  2. In November 2018 the Council said it had not replied to Mrs B’s complaint because of the complexity of the issue being raised and because the complaint was only one strand of its correspondence with Mrs B. It was also dealing with a complaint about another matter and an appeal Mrs B had made to a tribunal about the education element contained in Mr C’s EHCP.
  3. We reminded the Council of the need to reply to Mrs B’s complaint but it did not do so until June 2019.
  4. Mrs B’s complaint encompassed the following. She said the Council:
  • delayed in completing an assessment of need for Mr C after October 2016;
  • had not included Mr C’s need for psychological intervention, speech and language therapy and occupational therapy; nor had it considered what type of accommodation Mr C would need;
  • had not provided timescales for its assessment;
  • failed to provide her with an indicative budget, a support plan, details of the ‘panel decision process’ (a reference to the PRG), or details of the transition process;
  • attempted to reduce Mr C’s package of support; especially Mr C’s need for speech and language therapy, physiotherapy and occupational therapy;
  • did not consult her or her husband sufficiently in its assessments or care planning;
  • did not liaise with its education service to find out sooner how Mr C’s needs would be met;
  • did not consult adequately with prospective care providers;
  • did not set a personal budget for Mr C’s care;
  • communicated poorly.
  1. In its response the Council defended its adult care service. In summary it said:
  • it did not consider there had been any unreasonable delays in its assessments; it noted it had agreed Mr C could move to RCP2 before his previous placement ended; it had complied with Mrs B’s preference.
  • its assessments were of suitable quality and took account of Mrs B’s views;
  • it defended the choices given to Mrs B for alternative accommodation placements for Mr C;
  • it had sought to keep Mrs B informed of the transition process and liaised with her solicitor when appropriate;
  • it had been unable to provide an indicative budget because Mrs B proposed Mr C attend residential settings outside of the Borough;
  • it had followed all due process in care planning for Mr C.
  1. However, the Council recognised it had not dealt well with Mrs B’s complaint. It apologised for the delay in its reply and paid her £300 in recognition of her time and trouble.

My findings

On the Ombudsman’s jurisdiction

  1. This complaint raises two issues relevant to the Ombudsman’s jurisdiction. The first is the question of time. Mrs B’s complaint asks us to consider events that took place more than 12 months before she complained to the Ombudsman.
  2. Mrs B first expressed dissatisfaction with the progress of planning for Mr C’s transition in Autumn 2016. She did not make a complaint to the Council about this until nearly two years later. However, in the meantime Mrs B had many contacts with the Council which I consider service requests and which reflected an evolving situation. It was not until summer 2017 that Mr C’s accommodation became settled and not until the autumn that some of the details of his care package were agreed on. So, I do not think it unreasonable Mrs B chose to make her complaint after that, which she did within 12 months. Her complaint alleged a series of actions or inactions by the Council over the time when Mr C transitioned to RCP2.
  3. Therefore, I do not consider that in August 2018 Mrs B’s complaint was late. Or else there are good reasons to exercise discretion to consider individual events more than 12 months old at that point, given the context set out above. After that time, we will not penalise Mrs B for the delay in her complaint being answered by the Council.
  4. The other jurisdictional issue is that of the ‘alternative remedy’. As explained in the narrative of events above, Mrs B instructed solicitors to help her in her dealings with the Council. They in turn, on several occasions, sent ‘pre-action protocol’ letters to the Council which are a necessary precursor for judicial review proceedings. A judicial review is an action taken in the High Court which challenges the lawfulness of a decision or action taken by a public body, including local authorities. It can be used for example, as was threatened here, to try and require a council to review its assessment of someone’s social care needs. It is therefore a potential ‘alternative remedy’ to resolve a complaint.
  5. However, the process of judicial review does not begin until the applicant applies for review at the High Court. Sending pre-action protocol letters does not mean the alternative remedy was used. So, we retain discretion to investigate such complaints.
  6. I have decided to exercise such discretion here. The evidence Mrs B‘s solicitors sent pre-action protocol letters might suggest Mrs B could have used the alternative remedy of judicial review to pursue her complaint instead. But I am satisfied on balance it is not reasonable to have expected this. First, we would not normally expect a complainant to resort to judicial review given the cost and uncertainty involved in the process.
  7. Second, from the narrative of events I find Mr C’s circumstances changed over time. This meant the various pre-action protocol letters changed in the face of both the Council, and at times Mrs B, changing their position on matters raised in that correspondence. The nature of the judicial review ‘threat’ therefore changed also over time. I am not persuaded Mr C’s circumstances ever became fixed to the point where it would be reasonable for me to say at that moment Mrs B should have pursued judicial review instead of making further service requests or submitting a complaint.

On the substance of issues raised

  1. I consider this complaint highlights a series of failings by the Council’s adult care service in how it planned for Mr C’s move from his accommodation that ended in July 2017.
  2. I do not consider it was unreasonable for the Council to begin its planning for Mr C in October 2016, when it began the process of assessing his needs. However, I note it had earlier promised Mrs B the process would begin in September. Nothing significant turns on the delay but it would undermine Mrs B’s faith in the Council that it did not keep to its word. So while a minor fault, the Council’s failure to keep its word here was still a fault.
  3. I also find the Council’s first assessment of Mr C’s need flawed. I consider the Council reasonably applied itself to the question of whether Mr C’s needs met the threshold for support services set out in the Care Act and associated regulations. It could have said more in places, but this was not where I consider the key deficiencies in the Council’s planning lay. The assessment did not address two critical issues which are recurring themes in this complaint. First, what support did Mr C need to provide him with a holistic package of care to include consideration of matters such as speech and language therapy. Second, what type of accommodation would Mr C need from July 2017. The Council’s own notes on where its care planning had reached in January 2017 show that it too recognised its assessment did not go far enough in establishing Mr C’s needs.
  4. The delay in addressing these matters was not significant at this stage. The high level needs review which took place for Mr C in January 2017 was the opportunity to get Mr C’s care planning on track. The notes of that review are helpful. They make clear the extent of support Mr C received from a range of services (speech and language therapy, physio, occupational therapy, psychology). They also show professionals considered a need for those services continuing. The review also set out the views of those working with Mr C that they felt he would probably need a residential placement moving forward. This was also clearly Mrs B’s view from that time, even though she had earlier expressed an interest in Mr C moving to supported living.
  5. The review should therefore have focused the Council’s mind on those matters highlighted in paragraph 85:
    • on the need for its planning to consider how Mr C would receive the various specialist services moving forward;
    • on what type of accommodation Mr C needed.
  6. Yet I find the Council took no clear position on these matters in the months that followed. On the first of these points the Council was at fault as follows.
  • Giving a contradictory message about whether it would fund Mr C’s speech and language therapy beyond July 2017. The minutes of the January 2017 review clearly recorded Officer Y giving a commitment it would. Yet, later the Council took a different position and even denied Officer Y ever giving that commitment, despite this record.
  • Failing to set out clearly how it distinguished health needs. It is clear from all the paperwork I have seen that Mr C has difficulties communicating speech because of his disability. There are multiple references to the difficulties this can create between Mr C and those supporting him, as they can struggle to understand him and he struggles to make himself understood. It is evident at least some of the speech and language therapy Mr C received in January 2017 was to help bridge those difficulties. It was therefore integral to how Mr C would receive care that he had support staff who could understand him. But there is no evidence the Council ever applied itself properly to the question of whether this was a health or care need. Similar considerations might apply when considering the detail of other therapeutic support Mr C received.
  • I accept the Council might reasonably have still taken the view that some of this therapy or other services Mr C received (such as physio) were more properly described as health needs. A council should not pay for health services as it is unlawful for it to do so. But where such care may be in a ‘grey area’ it must still consider how else those needs will be met. Its responses to Mrs B and her solicitor gave little recognition of Mr C’s needs. The tone of the correspondence was adversarial with a lack of focus on Mr C’s needs. I find no evidence that its case managers made any attempts to communicate with health service bodies to identify how Mr C’s needs would be met moving forward, despite the Council identifying a need for this in January 2017. The Council failed to work with other agencies therefore to ensure there was a plan for all Mr C’s needs to be met.
  1. On the second point the Council was at fault as follows.
  • Failing to acknowledge Mrs B’s changing view on the accommodation Mr C needed. Failing also to acknowledge the view of staff supporting Mr C at his residential placement in January 2017 who expressed clearly that they thought Mr C needed another residential placement. When the Council’s PRG considered Mr C’s case in March 2017 it received no balanced assessment of the different accommodation choices for Mr C. Officer Y said they thought Mr C’s needs could be best met in a supported living setting but provided no reasoning for that position. They provided no analysis either of any evidence which might have suggested residential accommodation more suitable instead. The PRG could make no meaningful decision on how Mr C’s planning would progress in these circumstances, which is why it failed to do so.
  • Failing to clearly identify accommodation that it thought could meet Mr C’s needs. I recognise the Council sent Mrs B details of accommodation providers around the beginning of April 2017. However, its suggestions were disparate in terms of the type of accommodation, cost and location. They reflect the lack of focus in the Council’s planning as it had still not carried out a proper evaluation of whether it considered Mr C needed a residential placement or supported living. I have seen no evidence it ever identified a specific placement or placements it thought suitable for Mr C. Saying it considered them all suitable would clearly be wrong as that is akin to saying the Council had no view about whether Mr C needed a residential or supported living placement, small or large, with one client group or another and so on. The other obvious point to make here is that it was getting late in the day to identify a suitable placement for Mr C.
  1. Related to the above are other faults in the Council’s planning for Mr C’s move.
  • First, while the Council has referred to having an ‘action plan’, the document I saw was not fit for purpose as such. I would expect an action plan to clearly set out who would be doing what to plan for Mr C’s move and by when. What I have seen is not a document that reflects this sort of information. It would have been significantly out of date even in 2017 and provides no insight on the Council’s planning for Mr C other than to reinforce the lack of focus I have identified above.
  • Second, at no point did the Council set an indicative budget for Mr C’s care. The Council gave contradictory messages to its care managers about whether they could do this. However, the statutory guidance is clear that the Council should set such a budget. I recognise this may appear harder before a decision is taken on what accommodation a user of services needs. But an indicative budget is exactly that. The Council can qualify such information on the understanding that it will need to identify a suitable placement which may cost more or less. Or that costs of care in supported living may vary dependent on the needs of other users.
  • Third, the Council never drew up a care and support plan for Mr C. This is a fundamental requirement set out in the care and support statutory guidance. It is the basic document that sets out how someone’s needs for care and support will be met. The need for a care and support plan was pointed out repeatedly by Mrs B’s solicitor yet the Council evaded the point in its replies. I cannot see that it ever produced one. The Council has also failed to supply a copy of Mr C’s 2017 care and support plan either when asked by me or Mrs B. It has instead produced the ‘action plan’ which may contain elements of what should be in a care and support plan but is clearly not the same and so is not fit for purpose as such. Care providers will want to do their own care planning. The Council’s care and support plan will inform that. So, care providers own care plans are not the same either.
  • Fourth, part of any care and support plan should identify the personal budget for care. The Council is unable to produce any clear record of what personal budget it set for Mr C’s care before or after he moved in July 2017. This is why I presume it has been unable to subsequently provide a clear and straightforward answer to Mrs B’s later enquiries about this point.
  • Fifth, one voice that I find silent in the paperwork around Mr C’s transition is that of Mr C. I cannot see where the Council sought to involve him in his assessment of his needs or in choices around where his needs should be met. From what I have read I am unclear the extent to which Mr C may have capacity to make decisions around his care. But on balance I think it likely he could take some part in these decisions. I consider it a serious omission the Council failed to gather Mr C’s views in this process. It should have provided an advocate to help Mr C if this was difficult. I have no doubt that Mrs B sincerely advocated for accommodation for Mr C that she considered in his best interests. But the Council should have ensured any decision took account of Mr C’s wishes. He is an adult and must not be shut out of decisions around his care.
  1. There was also further fault in the Council’s complaint handling in this case. The delay in replying to Mrs B’s complaint was unacceptable.
  2. It is evident from its communications with Mrs B, her solicitors and this office the Council considers that any difficulties it has had in care planning for Mr C can at least in part be attributed to Mrs B’s actions. I recognise the notes on this case paint a picture that sometimes Mrs B may have placed excessive demands on Council officers. Although I also note she challenges the descriptions of her. My impression is that from the outset of events Mrs B had some mistrust of the Council and wanted a high degree of control over Mr C’s care planning. Whether because of this or through her presentation at times, the evidence suggests officers struggled to establish a good working relation with Mrs B.
  3. Having listened to a recording of the November 2018 meeting, which may be indicative of Mrs B’s manner I would describe it as forthright and at times a little pernickety. But any challenge this approach causes for officers must be offset by Mrs B also being courteous to listen to others and seeking solutions to issues where she felt Mr C’s care plan could be improved. It was evident Mrs B became more frustrated as she failed to get clear answers to straightforward questions.
  4. If I assume this is typicaI, I can understand Mrs B may have appeared to officers at times to be overly fussy or demanding in the exercise of control she wanted over Mr C’s care. But they must also remember she is a parent who was doing what she thought best for her son’s care. When someone has little trust in the Council, any flaws in its service can become magnified. The Council would do well to reflect on some basic principles of administrative good practice which while no magic cure, can help to build better relations if adhered to. For example, the principle of openness and transparency which has been lacking at times in this case despite the terms of reference of its PRG.
  5. I observe that where someone in Mr C’s position has an ongoing need for services, if there is an adversarial relationship between their strongest advocate and the Council that is unlikely to result in a smooth or efficient delivery of services. Both sides can become entrenched in believing the other is not acting in the best interests of the user who is then caught in the middle. Both sides can adopt fixed positions that appear disrespectful to the other.
  6. But it is also evident from the list of failings above that Mrs B had every cause to complain here. While I find the Council’s assessments of Mr C’s needs satisfactory, the care planning around these assessments was deficient in many regards. I note for example, that after Mr C moved to RCP2 Mrs B repeatedly asked the reasonable question about what care the Council was paying for, which it failed to answer. Anyone would become frustrated in those circumstances. So, I find little mitigation for the Council’s faults in Mrs B’s actions.
  7. Those actions also do not detract from the injustice its faults have caused. I consider first that Mrs B had to expend far too much time and trouble in pointing out the obvious shortcomings in the Council’s planning for Mr C. She then experienced unnecessary frustration and distress in the Council’s failure to grasp those shortcomings or address them.
  8. In terms of the impact on Mr C I note that despite what had gone before a place was found for him at RCP2 when his previous placement ended. I have no view on whether Mr C could have moved in straight away. But even if he had done so that move would have been rushed. Given Mr C’s needs, which include references to his anxiety, then clearly an earlier decision on his future would have been preferable. Although I also note here that Mrs B did not suggest RCP2 as an option until May 2017. I find the Council offered cogent reasons why it questioned if her earlier preference for RCP1 was suitable for Mr C. So, I do not take issue with that. I therefore consider at the earliest the Council could not have agreed and arranged the details of Mr C’s move to RCP2 until June 2017.
  9. But there were other consequent outcomes from the Council’s faults. First there was the dispute about how Mr C’s need for speech and language and other therapy would be picked up when he moved. Even though Mr C continued to receive this, considerable uncertainty hung over this provision into 2018. This was a further source of unnecessary distress to Mrs B.
  10. Second, even to this day uncertainty remains about what care the Council expected RCP2 to provide to Mr C and what it was paying for. The lack of a care and support plan remains a serious omission. I consider that uncertainty did not help when Mr C’s placement began to fail.
  11. However, I cannot go as far as to say the failings led to the failure of the placement. This investigation has not tested to what extent Mr C’s needs were met during non-education weeks at RCP2. It has not tested how Mr C’s anxiety manifested itself or how it was responded to and managed over time. Nor if there is any link between these two. I have only explored the question of whether there is evidence that failings in care planning in 2017 led to the events in 2019. I do not consider I can make a causal link. This is because of uncertainty around these matters and after giving weight to the care provider’s own comments on the reasons for the breakdown in Mr C’s placement. It clearly saw Mr C’s anxiety linked to environmental factors beyond its control.
  12. I consider Mrs B suffered further injustice as a result of the poor handling of her complaint by the Council. However, I consider the Council acknowledged that satisfactorily and made a payment which properly reflected the time and trouble caused to her.
  13. Finally, given my concern about the lack of Mr C’s voice in the paperwork surrounding his move to RCP2, I have considered how I can ensure it is heard more clearly in the future. I cannot say that any decisions taken in this case have been contrary to his wishes but there should be no such doubt in the future about Mr C’s ability to participate in decisions around his care.

Agreed action

  1. The Council has accepted the findings of this investigation. To remedy the injustice caused by this complaint it has agreed that within 20 working days of this it will:
      1. offer an apology to Mrs B accepting the findings of this investigation;
      2. pay Mrs B £500 in recognition of the additional distress and time and trouble identified during this investigation (had the Council not already made an award of £300 then I would be recommending a higher amount);
      3. set out in writing to Mrs B how the Council proposes to improve its relations with her in the future; this is on the understanding that Mr C will continue to need care and support, the Council will want to consult with Mrs B about that and she will want such consultation; I suggest the Council consider certain standards for contact which might include considerations on their nature and frequency; it should also clearly explain what documents it proposes sharing with her including improved care planning documents as set out in the further recommendations below; the Council may alternatively consider approaching an independent mediation service for agreement on how communications can be improved, if Mrs B consents to such an approach.
      4. give a written commitment that its future care planning will involve Mr C; it should ensure all future care planning records his capacity to make or participate in decisions around his care; it should ensure he has access to independent advocacy.
  2. The Council has also agreed to consider what wider lessons it can learn from this complaint. Within three months of a decision on this complaint it has agreed to review the following as a minimum (the Council is always welcome to consider what further work may be needed):
      1. its care and support planning to ensure that all users of services to whom it provides services under the Care Act 2014 have a care and support plan on their case file; I expect the Council as a minimum to want to audit a representative sample of the users in its learning disability service to see which have an up to date care and support plan on their records; as part of the annual review of users’ care it should ensure such documents are drawn up; the Council will need to consider what internal advice and training it may need to revise and arrange to ensure relevant staff know of their duties in this area.
      2. its transition planning when young adults are moving from one care setting to another; for example, from one residential placement to another, or from home to residential or to supported living or any combination of the above; it should consider introducing ‘action plans’ that clearly set out who will do what and by when, which can be shared with users of services so there is clarity and transparency about the process;

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Final decision

  1. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs B and Mr C. The Council has agreed a remedy for this injustice that will provide a fair outcome to both. Consequently, I can complete my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman

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