Decision : Upheld
Decision date : 10 Jan 2022
The Ombudsman's final decision:
Summary: Ms D complains on behalf of her adult son, Mr F about the way the Council dealt with his transition from children's services to adults' services in 2020. The Council has accepted there were delays in assessment; these caused injustice to Ms D and Mr F which warrants a financial remedy. There was no fault in the care and support assessments and plans. Fault in complaint handling caused time and trouble for Ms D.
- Ms D complains on behalf of her adult son, Mr F that the Council:
- Failed to plan for his transition from children's services to adults' services in 2020.
- Delayed assessing his care and support needs.
- Failed to put a care and support package in place from July 2020.
- Carried out a flawed assessment that contains inaccurate information, did not take into account Mr F's wishes and feelings, and was not agreed by him.
- Arbitrarily cut his care and support package by over 60%, resulting in a package that is insufficient to meet his needs, particularly in relation to accessing work or training.
- Failed to assess her needs as her son's carer.
- Did not deal with her complaints properly.
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)
- 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)
- 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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I spoke to Ms D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
- The Care and Support Act 2014
- The Care and Support Statutory Guidance 2014 (“the Guidance”)
- The Special Educational Needs and Disability Code of Practice: 0 to 25 years 2015
What I found
Relevant law and guidance
Special educational needs
- A young person aged 19 to 25 with special educational needs (SEND) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place.
- The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
Ceasing an EHC plan
- If a young person reaches their 25th birthday before their course has ended, the EHC plan can be maintained until the end of the academic year in which they turn 25. The SEND Code of Practice says it is important that a young person’s exit from an EHC plan is planned carefully, to support smooth transitions and effective preparation for adulthood.
Care and support needs
- Under the Care Act 2014 councils must carry out a social care needs “transition” assessment for the young person where there is likely to be a need for care and support after they turn 18. There is no set age to carry this out.
- The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. Councils are not under a duty to meet any needs that are being met by a carer. The person's needs and how they will be met must be set out in a care and support plan.
- Councils should involve the person in the assessment and take all reasonable steps to agree the plan with the person. If a person disagrees with the care and support plan, they may complain to the council.
Personal budget and direct payments
- Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. A personal budget must always be an amount enough to meet the person's care and support needs. It comprises the amount a person must contribute to that cost and the amount the council must contribute.
- The council should share an “indicative” budget with the person, and anybody else involved, at the start of care and support planning. The final amount of the personal budget will be confirmed when the care and support plan is agreed.
- A personal budget can be administered as direct payments to enable people to commission their own care and support.
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.
- The Council has a single stage procedure for complaints about adult social care. It aims to reply in ten working days.
- I have set out below a summary of the key events leading to Ms D’s complaint but this is not meant to show everything that happened or reflect all the correspondence between Ms D and the Council.
- Mr F has a diagnosis of autistic spectrum disorder, moderate learning difficulties and speech, language and communication needs. He also has a physical disability.
- The Council issued an EHC plan in May 2018, when Mr F was 24 years old. This named a college outside the Council’s area. Mr F started at the college in September 2018 and moved in to shared lives accommodation nearby. The college says Mr F was therefore supported with a 24-hour curriculum.
- Mr F’s college placement was due to end in July 2019. Ms D and the college wrote to the Council in the spring suggesting Mr F carry on with a support programme at the college. Ms D says she did not receive a response. I have seen no evidence an annual review of Mr F’s EHC plan was held at the college in 2019.
- On 24 July 2019 the Council wrote to Ms D to advise it was ceasing the EHC plan as Mr F had now turned 25 and his college placement had ended. (Mr F had no right of appeal to the SEND Tribunal about this decision as he was over 25.)
- A referral was made to the Council’s transitions team for an assessment of Mr F’s care and support needs. An assessment was completed in July 2019 and the social care transitions team approved funding for a further year’s placement in the college’s support programme and in the shared lives accommodation. Ms D says this was emergency funding approved as there was no other care package in place because the assessment had not been done in time. Mr F’s personal budget for 2019/20 was £93,354.
2020 care and support assessments
- The Council reviewed Mr F’s care and support needs in January 2020. This found that Mr F wished to continue with the craft he had been pursuing at college, which he was passionate about and skilled in. Mr F wished to return to his home in the Council’s area after the college placement ended that year. A care and support package would therefore be needed from July, though I have seen no evidence one was developed at this stage.
- The coronavirus lockdown started on 23 March. Mr F was unable to attend college and he moved into Ms D’s home outside the Council’s area. There is evidence that telephone welfare checks were made by the Council during lockdown, but there was no review of Mr F’s needs until virtual review meetings were held on 17 and 29 June.
- On 1 July Ms D sent the Council her summary of Mr F’s “needs and barriers” and proposals for support. This said the craft he was pursuing was vital for his mental wellbeing, was a trade that was a possible form of future employment and a catalyst for his independence. Ms D therefore asked for a personal budget for Mr F for:
- Four days a week care and support.
- Four days per month of private studio hire, facilitated by two providers she had identified; these studios were outside the Council’s area.
- Support for transport to those studios and accommodation whilst working there.
- Respite breaks with the previous shared lives provider.
- Two days per month support to pursue supplementary crafts, either with local providers or at home.
- Support to engage in craft related supported employment.
- three one-hour visits a day to support him with meals and personal care;
- two seven-hour days a week to support access to employment or training; and
- one seven-hour day a week to support access to social activities.
Ms D’s complaint
- Ms D made a formal complaint on 16 September 2020 that there was no care package or care plan in place.
- Ms D also complained the assessment had not considered Mr F’s needs, and the Council had not responded to her concerns about it. She said the plan was insufficient as it did not give Mr F support 24 hours a day. She noted the previous plan equated to 252 days per year of support; this had now been reduced to 91 days per year, but Mr F’s needs had not changed.
- Ms D complained that the plan ignored Mr F’s desire to carry on with his trade, as the Council had refused to fund the studio hire and support, thereby ignoring his wishes and feelings, and the plan made no reference to how Mr F’s desired outcomes in respect of the trade would be achieved.
- The Council held a complaint resolution meeting on 18 November with Ms D, the college and the shared lives provider. Ms D asked for the support hours and direct payment to be increased to what Mr F had been receiving whilst at college. She also asked for Mr F to be provided with mentoring support to stabilise his mood. She said this was necessary because of the distress caused to Mr F by the delay in putting a care package in place. She then sent the Council her suggested changes to the care and support plan.
- Following the meeting, the social worker noted there would need to be a re-assessment to determine if Ms D’s changes should be incorporated into the plan. She proposed the direct payments could be used to provide an interim package of mentoring support, to be reviewed in six months. She also said Mr F needed to be assessed at his home in the Council’s area and queried how a care package could be put in place for an address where Mr F was not living.
- The Council replied to Ms D’s complaint on 23 December 2020. It said it considered the care and support plan was sufficient to meet Mr F’s needs. It apologised there had been a delay in transition planning when Mr F was leaving college, that the 2020 care and support assessment had not been done sooner and that no care package had been in place from July 2020.
- Ms D remained dissatisfied and wrote to the Council again in January 2021. She came to the Ombudsman in April 2021 after she had had no response. The Council sent a further reply to Ms D on 11 May following contact from us. It apologised for the delay and repeated its earlier complaint response.
Events following Ms D’s complaint
- Following a financial assessment, Mr F’s contribution to the cost of his care package was determined to be £35.85 per week. The Council started to put in place a direct payment of £525 per week to be backdated to 12 September 2020. It said Ms D could act as Mr F’s personal assistant as his official address was different to hers. Ms D refused to accept the payment or pay Mr F's contribution whilst her complaint was being considered by the Ombudsman. This was because she considered that whilst the care and support plan was not agreed, it was unclear how Mr F’s needs would be met and how the direct payments should be used.
- It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the Council's role. Our role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the Council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a person disagrees with its decision, or outcome of an assessment.
- I have therefore considered how the Council assessed Mr F’s needs and produced the care and support plans in 2020.
- The Council has accepted that the 2020 care and support assessment was delayed and that this meant there was no care package in place when Mr F left the college support programme in July 2020. This was fault and the Council has already apologised for this. Mr F requires structure and routine and it takes time for him to adapt to changes. Uncertainty about what was happening after he left college therefore caused him anxiety and distress.
- I also find it was fault for the Council not to review Mr F’s needs when he moved in with Ms D in March 2020. I appreciate that the Council was continuing to fund his placement at the college and shared lives provider, and that it was Mr F’s choice not to return due to his concerns about the risks of COVID-19. Nonetheless, it was a significant change in his circumstances that I consider the Council should have reviewed sooner than June 2020.
- Following the June review, the Council decided not to put a care package in place in July and August 2020. This was because it considered this to be a short period, Mr F was due to go abroad for part of the time and a week’s respite was provided. I do not find any fault in this decision as such, but I consider that if the review had been done in April 2020 the Council may have made a different decision about the support to be provided for Mr F whilst he was living with Ms D. I consider the delay in reviewing therefore caused uncertainty and stress to Ms D, as she cannot know what support may have been provided.
- The Council reviewed Mr F’s needs in June and September 2020. The assessments are comprehensive and detailed. They describe Mr F’s needs and Ms D’s views about the support he needed. Mr F and Ms D were involved in the process. The care and support plan completed in October 2020 sets out how Mr F’s needs will be met, the indicative budget and the final personal budget. This is all in line with the care and support statutory guidance and I find no fault in the way the assessments were carried out or the plan written.
- When Ms D complained about the plan the Council met with her to discuss her concerns and re-considered the plan. It decided the care and support plan was sufficient. It is for the social worker to make a professional judgement about whether Mr F required 24-hour care, and the Council found Mr F’s needs could be met with 42 hours of personal assistant care per week. It was entitled to make this decision. As there is no evidence of fault in the way the assessment was carried out, I cannot challenge this no matter how much Ms D disagrees.
- Ms D complains the Council refused to fund support for Mr F to pursue his trade. However, the Council is not required to do so. To meet Mr F’s eligible needs the Council must enable him to access employment or training. It determined it could do this with two days of personal assistant support; this is a professional judgement it was entitled to make. Ms D says the social worker was not properly qualified to judge what support Mr F needed in his trade; but that is not the decision the social worker is making. The Council must consider what social care support Mr F needs to access employment opportunities. The statutory guidance says, in determining how to meet needs, the Council is entitled to take into reasonable consideration its own finances and budgetary position. It is therefore not fault for the Council to decide it would not fund Mr F’s studio hire, providers, accommodation and so on.
- Ms D says the care and support plan is insufficient, so she has refused to accept it or the direct payments. The Council must take all reasonable steps to agree a care and support plan with the person, but it must make its own decision about how it will meet a person’s eligible needs. It was therefore not fault for the Council to issue a care and support plan that Ms D did not agree with. It was her choice to not accept the direct payments offered and there is no requirement for the Council to now pay them, as the support they would have funded cannot be provided now.
- The Council should have sent the draft care and support plan to Ms D before it sent it to its panel for approval. In my draft decision, I considered this fault had not caused any injustice as it was likely the panel would have approved the plan even if Ms D had seen it first. In response, Ms D said if she had seen the plan before it went to panel she could have amended misunderstandings in it about the proposals for Mr F to continue to access his trade. Whilst I consider that not seeing the plan in advance caused Ms D some uncertainty about whether it might have been different and contributed to her concerns about it, I note that once she complained the Council re-considered the plan and did not amend it. I therefore cannot say the Council would have approved a different plan. I do not consider Ms D was caused significant injustice.
- I have seen no evidence of a carer’s assessment being carried out in 2020. This was fault and has caused Ms D further uncertainty and distress as she does not know whether she could have received support as a carer.
- There was delay in responding to Ms D’s complaints. She first complained in September 2020 but the resolution meeting was not held until 18 November and the formal response was not sent until 23 December. I appreciate there was ongoing correspondence with Ms D throughout, but I find this was delay.
- The Council has a single stage complaints procedure for complaints about adult social care. This means Ms D could have come to the Ombudsman when she received the December 2020 response. However, the Council dealt with the complaint through its corporate complaints’ procedure, and therefore advised her to escalate her complaint to a second stage. When she did so, in January 2021, it did not respond. This is fault and it caused time and trouble to Ms D as she had to come to the Ombudsman to pursue her complaint but was unable to come sooner.
- When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance says remedy payments for distress are normally a moderate sum of between £100 and £300.
- Within a month of my final decision, the Council has agreed to:
- Apologise to Ms D and Mr F
- Pay Mr F £300 to acknowledge the uncertainty and stress he was caused by the delay in assessing his care and support needs
- Pay Ms D £300 to acknowledge the uncertainty and stress she was caused by the delay and by the failure to carry out a carer’s assessment
- Pay Ms D £100 to acknowledge the time and trouble she was put to because of fault in complaint handling.
- Review its standard wording for complaint responses and how it determines whether to use the adult social care or corporate complaint procedure.
- There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman