Summary: Mr B complains on behalf of his adult son, Mr F, about the way the Council managed his transition to adult social care and that it failed to provide him with care and support from July to September 2021. We have found fault which has caused injustice to Mr B. The Council has agreed to apologise and make a payment to acknowledge the distress caused.

The complaint

1. Mr B complains on behalf of his adult son, Mr F, that the Council:
1. did not consult with Mr F or his parents when it approached an adult social care provider in October 2020, which amounted to disability discrimination.
2. delayed Mr F’s transition from children’s to adult social care services and did not follow its preparing for adulthood protocol.
3. failed to properly assess Mr F’s care and support needs in 2021 and did not involve the family in the assessment.
4. pressured the family to place Mr F in unsuitable day care.
5. failed to provide Mr F with care and support from July to September 2021.
2. Mr B says as a result of the lack of respite the family was caused immense stress and financial difficulties as he had to give up work.

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What I have investigated

3. I have investigated all of Mr Bs’ complaint, as set out above. I have also considered in this decision statement a separate complaint he made that the Council failed to provide a children’s social worker when Mr F was under 18. The Council responded to this complaint in its investigation report of March 2022, in relation to Mr F’s education.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. If we are satisfied with an organisation’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

9. I spoke to Mr B about his complaint and considered the information he sent and the Council’s response to my enquiries.
• The Care Act 2014
• The Care and Support Statutory Guidance 2014 ("the Guidance")
10. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Transition from children’s to adults’ social care services

11. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. Assessments of the child’s needs should take account of the needs of the whole family.
12. When a child reaches 18 years of age, they are legally an adult and responsibility for meeting their needs moves from the council’s children’s services to its adults’ services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
13. The Care Act 2014 says councils must carry out a social care needs “transition” assessment where there is likely to be a need for care and support after the young person turns 18. There is no set age to carry this out but the intention is that it is done to determine what services the child will need when they turn 18. The statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18. The child does not need to be receiving children’s services to have a transition assessment.
14. The assessment must identify all the young person’s needs for care and support and identify the outcomes the young person wishes to achieve. The assessment should also consider whether the carer is able to continue in their caring role after the young person turns 18. Councils are not under a duty to meet any needs that are being met by a carer. The assessment must be person-centred, proportionate and involve any carer that the adult has, or any other person the individual might want involved.
15. If, following the assessment, the local authority is going to meet the person’s needs under the Care Act after they are 18, it must create a care and support plan and produce a personal budget. This needs to be done early enough that the package of care and support is in place at the time of transition.
16. If transition assessment and planning is carried out as it should be there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, the council must continue providing the services under children’s legislation until it is in place or until it decides the young person does not have eligible needs.
17. The local authority must take all reasonable steps to reach agreement with the person for whom the care and support plan is being prepared. If the plan cannot be agreed with the person, or any other person involved, the council should set out the steps it will take to ensure that the plan is agreed. This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved. If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure.

The Council’s preparing for adulthood protocol

18. The Council’s policy for young people who may need social care support as an adult says:
• the children’s worker will continue to be the named worker until the young person is aged 18, although a social worker from the adult services young adults’ team will be introduced.
• by the age of 17.5 at the very latest the young adults’ worker will finalise the adult care and support plan.
• adult provision will be commissioned from age 18.

Best interest decisions

19. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. Any act done for, or any decision made on behalf of, a person who lacks capacity must be in that person’s best interests.
20. Where local authorities identify that an adult is unable to engage effectively in the assessment process independently, it should seek to involve somebody who can assist the adult in engaging with the process and helping them to articulate their preferred outcomes and needs as early as possible.

Complaints procedures

21. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:
• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

22. The Council’s Adult Social Care Complaints policy says complaints can be dealt with as informal concerns. When a formal complaint is registered the Council aims to send a response within 25 working days unless it decides to commission an independent investigator. In that case the response may take three months or longer.
23. If a complainant remains dissatisfied with the response the policy says there may be a meeting or a senior manager review. The review should be completed within three months but can take longer.

What happened

24. Mr F is a young adult with severe autism and learning disabilities. He is non-verbal and can have challenging behaviour. He lives with his mother, Ms Y, who is his main carer. His father, Mr B, lives separately but is also involved in Mr F’s care. Mr F was attending a special school and had an Education, Health and Care Plan (EHCP). There was also a child in need plan.
25. I have seen evidence that in July 2019, when Mr F was 16 years old, the children’s social worker referred him to the Council’s adults with learning disabilities team. The Council says he was then put on a waiting list to be allocated an adult social worker when he was nearer 18. This referral says Mr F was receiving children’s social care support for community activities provided by his school during term time and for nine hours per week during school holidays, plus 26 nights respite per year.
26. There was an annual review of Mr F’s EHCP in February 2020 which Ms Y attended but Mr B did not. At this review it was agreed that Mr F’s EHCP should be maintained until July 2021. The May 2020 child in need plan says Mr F had been referred to adult services and that he was no longer receiving support from children’s social care.
27. In June 2020, when Mr F was 17, the children’s social worker spoke to Ms Y. There is some dispute about what was discussed. Ms Y says the social worker called her to say she was leaving, and that it may not be helpful to allocate a new children’s social worker as Mr F was so close to moving to adult services. Ms Y could call adult services for support. The Council says Ms Y agreed to the suggestion not to allocate a new children’s social worker, so there was no parental agreement to have children’s social care support.
28. Following this call Mr F’s case was closed to children’s social care. The plan was for him to be referred to the young adults’ team for an assessment. The children’s social worker then left the Council. An internal email from October 2020 shows that the young adults team intended to start looking for adult care and support to be in place for Mr F after July 2021.
29. The Council considered Mr F’s education provision. The papers for the relevant panel say: “Parental preference is for Mr F to be able to remain at [the school] … where there will also be a fully planned transition for Mr F to move to [Provider X] in July 2021.” The education team consulted with Provider X which provides education and social care day opportunities for adults with disabilities including autism. Provider X said it could provide support to Mr F for three days a week. The Council then agreed to fund Mr F’s education at his school until July 2021. Mr B has made a separate complaint about Mr F’s education and the EHCP process.
30. Mr F turned 17.5 in December 2020 but he had not yet been allocated to an adults’ social worker. Ms Y called the Council in January 2021 as she was concerned about what was going to happen after July 2021 when Mr F was due to leave school. I have seen no evidence that adults’ services took any action at that point. Ms Y called again in April 2021 and Mr F was allocated to Social Worker 1.

First assessment

31. Social Worker 1 met Ms Y and Mr F at his school in early May 2021 to carry out an assessment. Mr B was not involved. Social Worker 1 told Ms Y that the assessment was completed and Mr F would be referred to a social care provider for five days a week support. A “cease to maintain” an EHCP letter was sent to Ms Y and Mr F on 2 June 2021. Social Worker 1 then left the Council and Mr F’s case was allocated to Social Worker 2. The care and support assessment was sent to Ms Y and a referral was made for a capacity assessment.

Second assessment

32. Mr B contacted the Council. He was concerned about the quality of the assessment and that he had not been involved. Social Worker 2 agreed to re-do the assessment and arranged to meet Ms Y and Mr B with the school’s headteacher. She also sent Mr B some leaflets about adult care and support assessments and care plans.
33. The meeting took place on 1 July 2021. There is a dispute about its purpose. The Council says it was a continuation of the care and support assessment. Mr B says that it was an introductory meeting. The note of the meeting says Mr B:
• Was concerned about the process the Council had been following, given Ms Y had been asking for support since January and he had had to give up work to provide support to Mr F.
• Considered the first assessment was inadequate and had not involved all relevant carers or professionals.
• Did not consider the leaflets sent by Social Worker 2 were relevant or suitable information and advice.
• Wanted social care provision to be determined before the EHCP could be finalised.
• Requested five days a week respite over the school summer holidays.
34. The note also include details of Mr F’s needs and how he was supported by Ms Y and Mr B.

Consultation with provider

35. Following the meeting, the assessment was amended and the Council contacted Provider X to see if it could support Mr F.
36. Mr B visited Provider X but he had concerns about whether it was suitable for Mr F. Mr B says, amongst other concerns, it was surrounded by an electric fence and razor wire which would put Mr F at risk. An internal email says Provider X had declined to take Mr F. On 21 July Provider X told the Council’s education team it could not determine whether it could meet Mr F’s needs without him visiting and being assessed, but Mr B had not considered the environment to be suitable.
37. Mr B asked the Council whether, if Provider X proved unsuitable, it could support Mr F with a holiday. Social Worker 2 said that holidays could not be funded but a direct payment to pay Mr B to support Mr F could be considered. I have seen evidence the Council approached other social care providers to try to secure respite for Mr F during July and August but none could meet Mr F’s needs.

July – September 2021

38. The Council decided to withdraw the cease to maintain notice and agreed to continue Mr F’s education until December 2021.
39. Mr F’s case was allocated to Social Worker 3. Mr B raised concerns about the amended care and support assessment on 18 August. He said the meeting on 1 July had not been an assessment and not everyone had been involved. He sent a list of inaccuracies or incomplete information in the assessment and said Provider X had said it could not meet Mr F’s needs. Mr B wanted Mr F to remain in education until July 2022 and would not consider moving him to day care until then. He asked for overnight respite once a fortnight and weekend respite.
40. An assessment to see if Mr F was eligible for NHS funded care was started but then cancelled as Mr F was not receiving any social care services. In December 2021 the Council agreed to fund Mr F’s education until July 2022. No respite was provided in July or August 2021. Mr F says the Council did not send a new care and support plan until April 2022.

Mr B’s complaint

41. Mr B complained on 12 September that:
• The Council had failed to put care and support in place for when Mr F turned 18 or any respite for the summer holiday.
• Social Worker 2 had failed to respond when Ms Y called in January 2021 or to later emails and had not responded properly when asked about the Preparing for Adulthood protocol, instead sending links to irrelevant leaflets.
• The care and support assessment completed in May 2021 was inadequate.
• The Council did not inform them for two weeks that Social Worker 1 had left.
• The 1 July meeting had not been an assessment and the amended care and support assessment continued to be inadequate. It was inaccurate, omitted a lot of detail, contained the Council’s outcomes for Mr F rather than his own or his parents and the care plan was for 50 weeks per year day care even though Mr F had an EHCP for education for 39 weeks a year
• The Council had completed the assessment without assessing Mr F’s capacity.
• The Council had tried to bully the family into sending Mr F to Provider X, did not provide information about other facilities and did not put Mr F forward for other placements.
42. Mr B said as a result the family was facing financial hardship as he had had to give up work and sell his van to support Mr F. Ms Y had been prescribed anti-depressants and the family had no trust in adult services.
43. On 28 September the Council’s stage one response said the Council had been unable to work within the preparation for adulthood protocol timescales due to COVID-19. The 1 July meeting was arranged because Mr B had asked for a re-assessment so the Council had assumed he knew the meeting was an assessment. Assessments were not conducted in a single meeting but were based on a number of conversations. It asked Mr B to say which parts of the assessment were poor.
44. The Council’s stage two response on 2 November said it had nothing further to add to its response in relation to Mr B’s complaint about Social Worker 2. It added to this on 18 November and sent a stage three response on 2 December. This said the Council would remind staff of its expectations in relation to transition, assessments and communication with families.
45. The Council replied to the rest of Mr B’s complaint on 5 November. It said it had not been possible to source overnight respite due to COVID-19, other options had been offered to Mr B but had been declined. The care plan had originally been done in May 2021 when it was expected Mr F would be leaving education in July 2021 so would have needed 50 weeks social care support from then. The Council would further update the care and support assessment and contact other providers.

My findings

46. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the council's role. The Ombudsman's 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 service user disagrees with its decision, or outcome of an assessment.
47. There was fault in the Council’s transition planning for Mr F. The Guidance says transition assessments must be done, even if a child is not receiving children’s social care support. There is no set age, but the Council’s protocol says a transition assessment should have been done by the time Mr F was 17.5 years old, i.e. December 2020. The Council did not start the assessment until May 2021. The Council says this was due to the pandemic and that the timescales in its protocol should have been updated but it accepted a delay in allocating an adult’s social worker in its 5 November 2021 complaint response. I find it was fault to not allocate a social worker or carry out the assessment sooner than May 2021.
48. The delay meant the Council did not have enough time to source suitable care providers before Mr F was originally due to leave education in July 2021, or to provide respite during the school summer holiday. This was exacerbated as Mr F’s complex needs meant there were limited services suitable for him. I have seen that the Council contacted several potential providers in July and August 2021 but due to the limited time it was unable to put services in place to support Mr F from July to September 2021. This is service failure.
49. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
50. The Council closed Mr F to children’s social care when he was 17. Whilst he was not receiving social care services, the Council’s protocol says the children’s worker should have been Mr F’s named worker until he turned 18. Whilst the Council cannot compel a person to accept services under S17 and is not required by law to allocate a social worker to a child in need, my view remains that closing the case was fault as it was not in line with the Council’s protocol.
51. I have seen no evidence there was a reply or action taken to progress Mr F’s transition assessment after Ms Y contacted the Council in January 2021. This was fault.
52. Mr B complains the Council did not consult with Mr F or his parents when it approached Provider X in October 2020, which amounted to disability discrimination. The Council took this action as part of the EHCP process so I will not comment on it here as Mr B has made a separate complaint about that.
53. I have seen that, in relation to social care, the Council contacted Provider X in July 2021. Mr B did not consider it was a suitable placement and following his visit Provider X said it could not take Mr F. Mr B says the Council bullied him and Ms Y into agreeing to use Provider X. I have not seen evidence of bullying; at the time Provider X was the only provider that had said it may be suitable for Mr F so it was right for the Council to pursue this as an option. When it became clear it was not suitable the Council contacted other providers and also offered direct payments, which Mr B was entitled to decline. I do not find fault.
54. Mr B complains the Council did not provide him with the information and advice required by the Care Act 2014. Social Worker 2 sent this information on 29 June 2021. Whilst this did not address Mr B’s questions and concerns about the delay in transition planning, I do not find fault as she sent the information required by the Care Act.

The care and support assessments

55. Mr B was not involved in the May 2021 care and support assessment. As he provides regular support to Mr B, this was fault. I have not seen the original assessment as it was amended several times, but I have seen the list of concerns Mr B raised about it and note that the Council amended it twice, so my view is it was flawed.
56. Mr B complains the 1 July meeting was not an assessment. I do not find fault here. The Council was entitled to use information it obtained in that meeting to inform its care and support assessment. That Mr B continued to be dissatisfied with the quality of the assessment is not evidence of fault in the 1 July meeting. I note the assessment was further amended in October 2021.
57. The Council did not assess Mr F’s capacity until October 2021. This was fault. The Council should have assessed Mr F’s capacity to be involved in his care and support assessment and decisions about his care at the time of the original transition assessment.

Did the fault cause injustice?

58. Mr B and Ms Y were caused injustice by the lack of care and support provided to Mr F from July to September 2021. The April 2022 care and support plan says Mr F should have two overnight respite sessions each week and three days of day care. Instead, Ms Y had no respite and Mr B had to provide more support than he normally would.
59. Mr B says he had to give up work. I cannot say that this was solely caused by the lack of respite in the summer as he gave up work in April. Nor can I say that he would not have stopped working if respite had been in place. Nonetheless, there was a significant impact on him and Ms Y for two months as they were left without support, causing distress and financial difficulties.
60. The failure to involve Mr B in the May 2021 assessment also caused him to feel excluded by the Council and to then mistrust it and to be unclear what the plan was for Mr F’s support.
61. Mr B says Mr F became more challenging over the summer as he was left unstimulated without community activities or day services to attend. I therefore consider Mr F was also caused injustice.
62. I do not find that the delay in carrying out a capacity assessment caused injustice. This is because Ms Y and Mr B continued to act as Mr F’s advocates throughout the process.
63. 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. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
64. The Ombudsman’s guidance on remedies says that a remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified.

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Agreed action

65. Within a month of my final decision, the Council has agreed to:
• Apologise to Mr B and Ms Y and pay them £500 each to acknowledge the distress caused by lack of respite for Mr F from July to September 2021.
• Pay Mr F £250 to acknowledge the lack of opportunities he had during the summer.

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Final decision

66. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman