The investigation

The complaint

1. Mrs B says the Council has repeatedly failed Ms C and Mrs B since they raised concerns about Ms C’s social care in August 2017. Mrs B says:

• the Council started a safeguarding investigation into the care provider supporting Ms C and found organisational abuse but failed to recognise the impact on Ms C;

• problems continued because the Council failed to re-assess Ms C following the change in circumstances with deterioration in her mental health and increase in her seizures;

• the Council did not add to Ms C’s care and support plan so the new care provider could not provide the required support and stopped the service;

• care providers said they were not able to get information or responses from the Council;

• the Council failed to complete the actions it agreed following a complaint in 2018;

• the Council has failed to meet Ms C’s educational needs for the last four years even though there is an Education, Health and Care plan in place; and

• Mrs B complained in 2020 the Council was failing to keep Ms C safe, the Council instigated a safeguarding investigation, which Mrs B says upheld her concerns.

2. Mrs B explains the impact on Ms C has been huge, she cannot put it into words. Mrs B says Ms C is not the person she once was, she has lost her positivity, confidence, and self-belief. Ms C is wary of people because of these experiences. Ms C experiences flashbacks and cannot go to certain areas of the city where her previous support workers took her. Ms C has depression, has had suicidal thoughts, and now has support from mental health services, which she never needed before these issues. Mrs B directly attributes the decline in Ms C’s mental health with the Council’s failures. Ms C has been without an education for the past four years. She should have now been at the point she would be at university or in employment. Ms C still has ambitions to study, but shortly will be of an age where the Council will no longer have to provide her with any support in that area.

3. Mrs B has also been greatly affected, seeing the decline in her daughter’s wellbeing and worrying she enabled that. Mrs B has needed counselling support. Mrs B feels the Council ‘gas lighted’ her by constantly having a narrative that any difficulties she was experiencing was because of having a disabled child, rather than accepting any part in it. Mrs B feels heartbroken that things could have been different and believes it will take many years to rebuild Ms C to anything like the person she was before these events.

Legal and administrative background

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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 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). We decided to exercise discretion to investigate the issues back to 2017 because Mrs B raised the issues at the relevant time, and believed the Council was acting on them. Because of the Council’s continued failure, she has had to complain again.

Assessing and meeting needs

6. 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 services to its adult 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.

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

9. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Direct payments

10. Direct payments are monetary payments made to individuals who ask for one to meet some or all their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council has a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Top-ups

11. Councils should not have a ‘set amount’ or ‘ceiling’ of what it will pay for a particular type of care. The council must be able to meet the person’s needs within their personal budget and must offer at least one suitable and available option to meet needs within budget. If the council cannot then it will need to up its budget accordingly.

12. An individual can choose a more expensive provision and be asked to pay a top-up. That is the difference between the amount the care provision could be purchased for and the cost of the provider they have chosen. This must be a genuine choice, and not forced on someone because of a lack of available suitable provision. There are limited circumstances where the person using the service can pay the top-up, it usually must be paid by a third party with their agreement. That is because the person using the service will have been assessed as to how much they can financially contribute towards their care, and would not have surplus income to pay extra.

Safeguarding

13. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Education

14. An Education, Health and Care (EHC) plan is for children and young people aged up to 25 who need more support than is available through special educational needs support.

15. EHC plans identify educational, health and social needs and set out the additional support to meet those needs.

16. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

17. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. We consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;

• check the provision at least annually via the review process; and

• investigate complaints or concerns that provision is not in place at any time.

The Ombudsman’s guidance on remedies

18. Where fault has resulted in a loss of educational provision, we will usually recommend a financial remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.

How we considered this complaint

19. We produced this report after examining relevant documents and speaking with the complainant.

20. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

Social care

21. Ms C is a young adult with epilepsy and sight impairment. She has a package of care which is jointly funded by the Council and the NHS Clinical Commissioning Group. Ms C cannot manage her epilepsy with medication and has various types of seizure which might require different actions to keep her safe.

22. The Preparation for Adulthood Team supported Ms C because she was aged between 18-25 with an EHC plan. This team is within the Children and Families Services area of the Council but works with adults applying adult social care legislation and policies.

23. The Council has assessed Ms C has eligible care needs and provides direct payments for Ms C to employ someone to meet her needs.

24. Toward the end of 2017 Ms C had problems with the company providing her care support. Ms C became increasingly withdrawn until she told Mrs B her care workers had been disclosing intimate and confidential details about other service users, unloading their personal problems on Ms C, and she was not receiving the support she should. Ms C felt angry and disrespected at the way the care staff treated her, and worried care staff may also be breaching her confidentiality. Mrs B asked to change the care provider. The Council conducted a review of the care support, changed care provider, and started a safeguarding investigation.

25. The review stated the issues with the care provider had a severe psychological impact on Ms C’s mental health and led to depression and the need for counselling. The change in care provider was working well but the impact from the previous support showed in Ms C’s motivation. The support plan states Ms C had a deterioration in her mental health and has a diagnosis of depression which can be directly linked to the actions of her previous provider.

26. The Council asked Ms C to pay a top-up for the new care support because it was more than the Council would pay. We have seen evidence Ms C made payments totaling £605.12 to the care provider.

27. In February 2018 the Council held a meeting with Mrs B about the safeguarding investigation. It is unclear what happened during this meeting, the Council says there were difficulties with the process. The Council says the social worker got it wrong, caused confusion, accepted gaps in her learning, and apologised. Mrs B asked the Council to remove the social worker (social worker A) from Ms C’s case. The Council agreed to this and changed to social worker B, but asked social worker A to complete some tasks to support social worker B. The Council did not tell Ms C or Mrs B that social worker A would still be involved in the case, so they were upset when they found this out.

Mrs B’s complaint to the Council: social care

28. Mrs B made a formal complaint about the Council’s delay implementing Ms C’s increased support plan and in the safeguarding investigation. The Council accepted delays and produced an action plan.

• Social worker B to create a communication plan with Mrs B and Ms C.

• Social worker B to meet with [Ms X, an NHS employee] to review health’s contribution to the support plan no later than 10 May 2018.

• The current 10-hour package will continue to be honoured until the proposed support plan is approved by health.

• Social worker A (under the guidance of social worker B and supervision of a manager) will complete and share with Mrs B and Ms C the enquiry form and present the document to the safeguarding unit to request an independent chair no later than 18 May 2018.

29. We do not have evidence of the outcome of the safeguarding enquiry and any action plan produced. The Council says the final outcomes meeting was held in December 2018, 16 months after the safeguarding concern was raised. The Council confirms it found the care provider abused Ms C.

30. At the start of 2020 Mrs B complained to the Council again. Mrs B said Ms C’s care plan and assessment of need was neglectful, dangerously uninformed and posed a danger to Ms C. Mrs B asked the Council to review/reassess Ms C’s care and support needs and complete a safeguarding investigation into the Council’s actions. Mrs B said the Council knew its poor service had a negative impact on Ms C, but it did nothing to prevent the continuation of poor service delivery. Mrs B says the Council’s poor service put Ms C at serious risk of harm and caused her psychological, emotional, and physical harm. Mrs B says the Council was aware of the risks and failed to keep Ms C safe.

31. The Council’s response acknowledged there were significant gaps in its service, it had missed promised deadlines and communicated poorly with Mrs B. The Council had not completed the action plan it produced in 2018. The Council said it had failed to provide clinical information to the 2018 safeguarding enquiry which might have affected the outcome. It had substantiated abuse by the care provider but said Ms C could have stopped the abuse by speaking up. The Council apologised for the considerable upset caused to Ms C by these comments. The Council found that despite Mrs B chasing it since 2018 it had not produced and provided a new care and support plan for Ms C until June 2020.

32. The Council acknowledged Mrs B and Ms C had chased it for progress, but the Council deflected and avoided the matter. The Council did not act appropriately to progress Ms C’s care and support, and did not communicate properly with Mrs B and Ms C. The Council apologised and said it had changed its structure and management to improve services in this department.

33. The Council’s safeguarding enquiry of its actions concluded in June 2021. The Council found failures in its process to follow up the actions it agreed in its 2018 complaint response. The Council explained it was getting a new system to record complaints which would help to ensure it completed agreed actions. The Council accepted it needed to improve its case recording to make sure it was keeping timely and accurate records and was auditing files to inform what improvements it could make. The Council accepted its Preparation for Adulthood Team has limited knowledge of adult social care legislation as the team sits within Children’s Services. The Council was proposing to ensure young adults are always supported by workers with relevant experience and knowledge of adult law and was awaiting approval of this by Councillors. The Council also said its staff could not be experts in all health conditions, and do not receive training on epilepsy. The safeguarding enquiry concluded with the following recommendations.

• The workforce development strategy needs to consider how workers can gain a general understanding of different conditions which affect adults, such as epilepsy, visual impairment and specific mental health conditions. Where training is offered this should involve, as far as possible, people who have lived experiences.

• The adult social care supervision policy is due to be reviewed. This review should be informed by an audit of supervision records.

• Lack of clear and timely communication has been a factor in both complaints and in difficulties Ms C has experienced since then with two different social workers. A communication plan should be created with Ms C. It would be beneficial to involve Sheffield Health and Social Care NHS Foundation Trust in the creation of this plan.

• Ms C is an adult who is likely to have long term needs for care and support and her needs will best be met within adult services. The Preparation for Adulthood Team and relevant Locality Team should begin the process of a seamless and phased handover as soon as possible.

• Mrs B has spoken about the need for all the different professionals involved in supporting Ms C to communicate with one another. If agreed by Ms C, it should be possible for Ms C’s allocated worker to arrange a meeting with all these different professionals to encourage them to work together to help Ms C achieve her goals for the future.

34. The Council invited Mrs B and Ms C to be part of its Safeguarding Customer Forum to help improve services and develop training.

35. Ms C now lives in her own flat and employs her mother and sister as her personal assistants. Ms C’s family have a unique understanding of her epilepsy, how to manage her different seizures, and keep her safe. This is helping Ms C to rebuild her confidence and self-worth.

Education

36. Ms C attended college which she enjoyed, and she hoped to go to university. Ms C had an EHC plan. At college Ms C had a one-to-one support worker who would read out the lesson rather than Ms C having to read lots of information and was with Ms C for her safety should she have a seizure. The college made adaptations such as additional time for work and exams.

37. Following the issues with the care provider Ms C’s seizures increased and she had anxiety and depression and could not attend college.

38. The Council says the college did not provide adequate support which resulted in a failure by the college to maintain learning.

Mrs B’s complaint to the Council: Education

39. Mrs B says the Council failed to review Ms C’s EHC plan and offer any alternative education or support. Mrs B says the Council did not properly review the EHC plan between 2016 and 2021. Ms C has been without education provision since September 2017, despite repeatedly asking for a review and asking for an alternative method of provision such as lesson content provided electronically so she could study at home. Mrs B feels Ms C still could have had an education, even if it had to be provided differently. Ms C’s 2017 social care review says she decided to take a year out of college because of the issues with her care provider. Mrs B says Ms C did not decide to take a year out, she decided to decline a place to study at college, but still wanted to engage in education in an alternative format. Mrs B made a formal complaint to the Council in early 2021 following lots of missed opportunities to complete the required review.

40. The Council accepts it failed to regularly fulfil its statutory duties. The Council says:

• the EHC plan reviews, if conducted, were late, badly planned, and inefficient;

• it failed to ensure reports were prepared, agreed and presented to inform decision making; and

• it failed to work effectively with the named education placement to address failings, which resulted in a long period without suitable provision being provided.

The Council acknowledged its failings caused great distress and anxiety.

41. The Council apologised to Mrs B and Ms C. The Council said it would conduct an effective EHC plan review, agree an educational offer, and establish a transition to adulthood plan to provide continuity of education and progression for Ms C. The Council says it can provide support under an EHC plan until July 2022, which is to the end of the term after Ms C turns 25.

42. The Council said it would review its systems, processes and procedures to improve service and prevent recurrence of such failings.

43. Ms C is now studying Mathematics and English with one-to-one support in her lessons. Ms C and the Council have agreed a pathway plan to higher education.

Conclusions

44. We are pleased to see the Council has accepted its failings in this case, has apologised, and is reviewing and changing its procedures.

45. The Council:

• provided poor care support to Ms C via a third-party provider who did not act professionally and who the Council found abused Ms C;

• delayed completing the safeguarding investigation into the actions of the care provider;

• said Ms C could have ended the abuse by speaking up sooner;

• wrongly applied the law so asked Ms C to pay a top-up for her care support;

• communicated poorly with Mrs B;

• failed to complete its 2018 action plan;

• failed to adequately review Ms C’s EHC plan and offer suitable provision between the January 2017 review and the 2021 review. Although it conducted a review in 2019 and had a draft plan for Ms C to study Mathematics and English, it did not offer this provision until March 2021; and

• failed to provide adequate support to enable Ms C to maintain an education.

46. Where we find fault, we must consider if it has caused injustice.

47. The Council failed Ms C with her social care and educational support for a prolonged period. This failure happened when Ms C was feeling particularly vulnerable having been abused by the provider of her care, and when transitioning to adulthood. The Council failed Ms C when she was most in need of support and continued to fail her for a considerable period. This has had an impact on Ms C’s mental health, and on Mrs B’s mental health. It has also delayed Ms C’s progression in her education and working life.

48. We cannot know whether had the Council reviewed Ms C’s EHC plan when she stopped attending college, what the outcome of that review would be. However, the Council says the college failed to provide adequate support, which could have been highlighted and rectified by review. Ms C has now returned to studying, and this likely would have happened much sooner had the Council completed a proper review.

49. Having some stability in education at a time Ms C’s mental health was impacted by failures in care support, might have reduced her anxiety and depression, and given her an alternative focus.

50. The Council knew in 2018 it had failed Ms C. Despite creating an action plan to improve its service, it failed to act and improve. The Council delayed its safeguarding and care planning, and its actions made Ms C’s situation worse. When the Council completed its safeguarding it ‘victim blamed’ Ms C by saying she could have spoken up to stop the abuse. Mrs B had much time and trouble trying to get the Council to take the correct action. The Council failed this family for years.

51. Both Mrs B and Ms C have had counselling for their depression caused by these events. Mrs B feels part of the process that failed her daughter.

52. When the Council agreed the change of care provider in 2017 it should not have asked for any top-up if there was only one provider available and suitable to meet Ms C’s care and support needs. The Council cannot show it offered a care provider within Ms C’s personal budget and accepts it should not have asked for a top-up in this circumstance. The Council will refund anything the family has paid for this. The Council explains it has since changed its practice, and now has a mandatory training course for all relevant staff.

53. It is worrying that Council staff working with young adults did not know the relevant laws to properly support them, simply because they were based in a Children’s Services team. The Council must ensure its staff have the relevant knowledge to provide the appropriate support. This is something it has worked on since these events.

Recommendations

54. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

55. In addition to the requirement above and the actions it is already taking, to acknowledge the significant impact on Ms C and Mrs B, we recommend the Council:

• refund £605.12 which Ms C wrongly paid towards her care support, plus interest on this amount based on the retail price index;

• pay both Mrs B and Ms C £1,500 each to recognise their distress, and the time and trouble Mrs B has had trying to get the Council to put things right over many years;

• pay Ms C £500 a month for every month where the Council failed to provide her with education, from September 2017 until the current provision was put in place;

• consider any discretion to provide educational support to Ms C beyond the age of 25, to support her completing any course she is undertaking. Write to Ms C to explain what it has decided in terms of post-25 support and its reasoning. If the Council cannot provide this from its education budget, perhaps it can from its adult social care budget; and

• provide us with evidence of the actions it has taken to improve its services following the learning from this complaint.

Decision

56. We have completed our investigation on the basis there is fault causing injustice, which can be adequately remedied by the above recommendations.

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