Summary: The Ombudsmen found fault by a Council’s social care assessment process and the support provided to a carer. The Council has already accepted the fault and agreed to pay £300 to recognise the anxiety and distress caused by the fault. The Ombudsmen has not found fault by an NHS Trust relating to the mental health support it offered. There was no fault with the Council’s complaint handling.

The complaint

1. Mr and Mrs K are complaining about the care and support provided to them, and Mr D, by Torbay Council (the Council) and Devon Partnership Trust (the Trust) following their move back to the area in December 2014.
2. They complain that:
1. The Council failed to adequately assess Mr D’s complex needs when the family moved back to the area and did not provide appropriate social care services to meet these needs.
2. The Council failed to ensure Mr D had appropriate support for his learning disabilities, such as a specialist learning disabilities social worker.
3. The Council failed to provide support to Mr and Mrs K in their capacity as carers for Mr D.
4. The Council unreasonably delayed helping Mr K to register as a care provider to provide care for Mr D.
5. The Trust failed to provide Mr D with appropriate psychiatric and mental health support when Mr and Mrs K asked for this in August 2015. They say this remains the case over three years later.
6. The Council failed to investigate their complaint appropriately. Mr and Mrs K say the officer who led the investigation was not impartial and failed to interview key staff. They also say the investigation was unreasonably delayed.
3. Mr and Mrs K say Mr D has been left without appropriate social care and mental health support (such as regular medication reviews) since the family moved back to the area.
4. Mr and Mrs K say they have been caused great distress by the failure of the Council and Partnership Trust to support them. They say they have also incurred financial hardship as they had to stop working to care for Mr D.
5. Mr and Mrs K would like the Council and Partnership Trust to acknowledge and apologise for their mistakes and take action to prevent similar problems occurring in future. They would also like to receive financial compensation in recognition of their distress and lost earnings.

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The Ombudsmen’s role and powers

6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
9. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify their involvement, or
• it is unlikely they could add to any previous investigation by the bodies, or
• they cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a review or appeal.

10. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
11. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)

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How I considered this complaint

12. In reaching this decision, I took account of the information Mr and Mrs K provided to the Ombudsmen. I made enquiries of all the Council and the Trust and took account of the documents and comments they provided, including relevant medical and social care records.

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What I found

Legal and administrative context

Community Care Assessment - post Care Act 2014

13. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
14. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.
15. The Council’s policy for assessing an individual is 28 days from the point of referral.

Carer’s Assessment

16. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
17. Where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Complaint regulations

18. The complaints procedure for councils and NHS organisations is set out in the Local Authority Social Services and NHS Complaints (England) Regulations 2009 (the complaint regulations). The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the council or NHS is able to make a complaint about that decision and have the complaint handled by the council or NHS.
19. Under the complaint regulations there is a duty to investigate complaints properly and in a way that will resolve them efficiently. The responsible body must send the complainant a written response as soon as reasonably practicable after completing the investigation. The complaint regulations set out this should within six months unless a longer period is agreed. If the responsible body does not meet this time frame, it must tell the complainant why and send a response as soon as reasonably practicable.

Background

20. Mr D has severe learning difficulties. As children, Mr D and Mr K were foster brothers. Since then, they have maintained a close relationship. As an adult, Mr D lived in residential care until 2010. He then moved in with Mr and Mrs K and their family.
21. Mr K and his family moved from Devon to a different area in February 2014. However, this did not work out as well as they had hoped and they moved back to Devon in December 2014.
22. Mr and Mrs K sent a referral for ongoing services to the Council. It received this on 26 January 2015. The Council sent Mr and Mrs K a self‑assessment questionnaire on 24 February. They returned this the following week. The Council said it did not have capacity in its learning disability team to take Mr D’s case and it therefore transferred his case to its generic adult social care team. The Council allocated the case and started a Care Act assessment on 14 April 2015.
23. On 24 April Mrs K told the Council she felt intimidated by the social worker. She made a complaint to the Council. It recorded Mrs K did not wish to engage with professionals until the complaint was resolved.
24. The records show the Council referred Mr D to the mental health team at the Trust on 13 May 2015. The records show the Trust contacted Mrs K to arrange a preliminary assessment, but she declined this. Mrs K said she was going through a complaints procedure with social care and assured the Trust that Mr D was ‘ok’. She said his only distress was caused by the social worker discussing possible changes in front of him.
25. In May 2015 the Council raised a safeguarding concern with Children’s Services. This was because of a social worker’s concerns that Mr and Mrs K had left their children in the care of an inappropriate adult (Mr D). The social worker also noted Mrs K was overstretched in terms of caring responsibilities. A Safeguarding strategy meeting was convened on 27 May 2015. No further action was taken.
26. On 29 June 2015 a multidisciplinary meeting discussed how best to support the family. The Trust agreed to visit the family to complete a preliminary assessment.
27. A psychiatrist and an assistant practitioner from the Trust visited Mr D in July 2015. The records show they discussed Mr D’s medication and the support that was available. The Trust noted Mr and Mrs K were providing excellent care for Mr D and they agreed to complete a ‘guide to a good day’ document. This document was to help build a picture of Mr D so mental health professionals had a knowledge and understanding of his needs should he have a crisis.
28. On 10 August 2015 another social worker took on Mr D’s case and visited him at home to continue the assessment process. The Council put an interim package of care in place, based on the assessment started in April, of £169 a week. The social worker completed a Continuing Healthcare (CHC) Checklist. This showed Mr D needed a full assessment.
29. On the evening following the social worker’s visit, Mr D smashed his bedroom up and injured himself and Mr K. Mr and Mrs K say this was because all the people talking about him at the meeting earlier that day had confused and scared Mr D.
30. Mrs K emailed the Trust on 17 August to set out some problems with Mr D’s behaviour and the relationship with his new social worker. She also asked the Trust for advice about medication. The assistant practitioner met Mr and Mrs K and Mr D on 3 September. The records show they discussed the medication concerns.
31. On 11 November 2015 the Trust closed Mr D’s involvement with the mental health intensive assessment and treatment team. The records show the ‘guide to a good day’ had been completed and shared. The assistant practitioner recorded Mr D was ‘fine’ when he last spoke to the family. The records do not show any further contact from the family or social worker until October 2016.
32. The CCG completed a CHC assessment on 25 October. A nurse practitioner from the Trust met with those completing the assessment to provide mental health input. The CHC assessment found Mr D was not eligible for CHC funding. However, the CCG agreed to part-fund Mr D’s care with Council on a 50/50 basis. Mr D’s care plan remained as assessed by the Council
33. In December 2015 the Council agreed Mr D’s care plan and support. It agreed funding of £497 a week and backdated this to 5 January 2015.
34. On 19 January 2017 Mr D’s GP contacted the Trust to ask for advice about medication. The Trust arranged a medication review for 1 March. However, on 20 February Mrs K contacted the Trust and advised they just wanted to discuss Mr D’s medication with a consultant psychiatrist. The Trust arrange a telephone review with a consultant psychiatrist on 20 March.
35. The records show the consultant psychiatrist liaised with Mr and Mrs K regularly over the next few weeks. Mr D attended a face-to-face appointment on 13 April with the assistant practitioner. He discussed Mr D’s medication and reported back to the psychiatrist. The psychiatrist did not change Mr D’s medication but the mental health team agreed to stay in contact to monitor the medication and how Mr D tolerated this.
36. On 14 June 2017 following feedback from the family, Mr D stopped some of the medication he had been taking. The Consultant Psychiatrist increased the dosage of his antidepressant medication with a plan to follow-up after a week.
37. The records show the Trust were in contact with Mrs K on a regular basis throughout June, July and August. On 10 August 2017, Mrs K reported all was well, she had no concerns about Mr D’s mental health, and agreed the Trust’s involvement was no longer needed. The records show Mrs K said they would contact the Trust or Mr D’s GP if they wanted support.

Analysis

Assessment

38. Mr and Mrs K complain the Council failed to adequately assess Mr D’s complex needs when the family moved back into the area in 2015 and therefore did not provide appropriate social care services to meet these needs. They say the Council failed to ensure Mr D had appropriate support for his learning disabilities, such as a specialist learning disabilities social worker.
39. The Council acknowledged its service did not have capacity to take on Mr D’s case within its Learning Disability Team so the generic social care team dealt with his case. Given Mr D’s complex needs due to his learning disabilities, this means the most appropriate team did not deal with his case and his assessment. The Council restructured the Learning Disability Team in June 2015 and it was absorbed within the adult social care team. However, the Council took long longer than the 28-days set out in its policy to assess Mr D after receiving a referral. I do not consider it was responsible for all the delays. Notwithstanding the reasons Mr and Mrs K have given, they declined to engage with services between April and August 2015. This however was already outside the Council’s own service standard. This is fault.
40. Mr and Mrs K say Mr D reacted badly to the assessment process. However, it is difficult to say whether this would have happened with a different social worker, as there was a history of him not engaging well with other health and social care professionals. After August 2015 when Mr and Mrs K agreed to engage with the service again, the Council completed an assessment and put a package of care in place.
41. The Council has already acknowledged the fault in its complaints responses and apologised to Mr and Mrs K. It also acknowledged fault in that it should have made interim payments for Mr D’s care from the time it was told about him moving back into the local area. It backdated these payments to the 5 January. I consider this addresses the financial injustice. However, Mr and Mrs K said the delay in the Council paying the money meant they struggled financially, which has caused them unnecessary anxiety and distress.

Carers’ support

42. Mr and Mrs K complain the Council failed to provide support to them in their capacity as carers for Mr D. They say the Council unreasonably delayed helping Mr K to register as a care provider for the purposes of providing care to Mr D.
43. The records show Mrs K sent a carer’s self-assessment to the Council in March 2015. She received a payment of £200. A carer’s assessment for Mr K was not completed until August 2015. The Council said this would have been picked up sooner if the family had not decided to stop engaging with the social worker completing Mr D’s assessment. Given the Council completed a carer’s assessment in August 2015 when a new social worker took over the case, I accept the Council’s view. It could not progress an assessment where a carer was not engaging with the process. Once Mr K became a paid carer, he no longer qualified for a carer’s assessment. The Council completed a further carer’s assessment for Mrs K in November 2017.
44. The records show the Council offered Mr and Mrs K help and support, and it arranged carer’s assessments in line with the Care Act, when they engaged with the process. I do not find fault in this regard.
45. In terms of the Council helping Mr K to become a registered carer, the Council considered this request under its Direct Payment Policy. It said it needed to consider whether a family member living in the same household could be paid to meet Mr D’s needs under exceptional circumstances.
46. The records show the Council considered Mr D’s specific circumstances along with his care needs in reaching a fair decision. The outcome is not disputed. It then provided Mr K with information about the steps he needed to take to be a self‑employed personal assistant. I find no fault with the decision making, but it was not reasonable for this process to have taken so long. I consider the delays were sufficiently long to be fault.
47. The Council has already accepted this fault and apologised to Mr and Mrs K. In terms of injustice, the Council continued to pay direct payments during this time. While the Council has apologised, it is clear from the complaints and correspondence that Mr and Mrs K spent considerable time and effort asking about and chasing the decision. This was at a time they had been trying to progress Mr D’s care planning and manage his behaviours. I consider the uncertainty caused by the delays added to Mr and Mrs K’s distress.

Mental health support

48. Mr and Mrs K complain the Council/Trust failed to provide Mr D with appropriate psychiatric and mental health support when they had requested this from August 2015.
49. The records show the Trust responded to the Council’s referral in May 2015. However, Mrs K declined support from the Trust. It responded again the following month when a multidisciplinary meeting felt Mr D would benefit from support from the mental health team. A consultant psychiatrist reviewed Mr D and discussed his medication with Mr and Mrs K. The records also show the Trust put in place measures to quickly support Mr D if he had a mental health crisis or needed support. Mr and Mrs K did not contact the Trust following his appointment in September 2015 and therefore it closed Mr D’s case.
50. Although the Trust contributed to Mr D’s CHC assessment, it had no further involvement in Mr D’s care until January 2017 when his GP asked for advice about medication. A psychiatrist from the Trust spoke with Mrs K and subsequently arranged a medication review. A face-to-face appointment with the assistant practitioner was arranged in April 2017 and they reported back to the psychiatrist. The records show there was ongoing discussion between the Trust and Mr and Mrs K about medication until August 2017. At this point the family confirmed they did not need further support, but they could access this through Mr D’s GP if needed.
51. The evidence shows the Trust provided Mr D with support when this was sought and arranged medication reviews for him in a timely manner. I consider it is evident the Trust was open to providing support when Mr and Mrs K, and other professionals asked for this. There is no indication Mr and Mrs K asked the Trust for any further support Trust between November 2015 and 2017. I therefore do not consider the Trust failed to provide support when this was requested. I find no fault with its actions in this regard.

Complaint handling

52. Mrs and Mrs K complain about the Council’s failure to investigate their complaint appropriately. They say the officer leading the investigation was not impartial and failed to interview key staff. They also say the investigation took too long.
53. There has been a lot of correspondence between Mr and Mrs K and the Council about Mr D’s care. I have limited my consideration of this issue to the correspondence that was dealt with through the Council’s complaints procedure about the issues considered in this case.
54. Mr and Mrs K complained to the Council on 19 July 2017. This included a list of 93 questions about Mr D’s care from 2010 to 2017.
55. The Council acknowledged the complaint and provided monthly updates until it sent a response on 6 October 2017. The response answered four of the questions and asked for further information about the remaining questions as these related to events that had happened more than a year previous. As such these were out of time under the Complaint Regulations.
56. Mr and Mrs K wrote back to the Council on 11 October. They explained they complained late because they had only just become aware of some of the matters they were complaining about.
57. The Council accepted the reasons for bringing the complaint late and agreed to respond to Mr and Mrs K. The Council sent updates to Mr and Mrs K advising them the response was taking longer due to the complexity of the issues raised and unexpected staff absences. It sent a response in March 2018 and addressed the remaining questions.
58. The evidence shows that although it may not have been to Mr and Mrs K’s satisfaction, the Council investigated all issues they raised as a complaint. The Council took a relatively long time to respond to the complaint, but it kept Mr and Mrs K regularly updated with the reasons for the delays. I consider it is reasonable to accept the complaint on 11 October to restart the time as the Council had previously considered the additional issues to be out of time. This was in line with the Complaint Regulations.
59. With regards to the concerns about impartiality, the local resolution stage of the complaints procedure is the organisation’s opportunity to respond to the concerns. I would therefore expect individuals connected to the events complained about to be involved or consulted in this process. The Council explained to Mr and Mrs K they could seek an independent view by bringing their complaint to the Ombudsmen. I consider this was appropriate.
60. Mr and Mrs K did not consider the Council interviewed all relevant key staff. The Council explained in its response that because some issues were about events that happened a number of years ago, many of the staff no longer worked for the Council.
61. If the Council could use records to respond to the concerns, it is reasonable not to track down ex-employees during its investigation. If the Council considered it could not address a particular issue, or it was serious enough, or likely to add value to the outcome of a complaint, then it may be appropriate for the Council to consider making further enquiries with former employees. However, the Council’s response does not suggest it had difficulty in responding to all questions/concerns apart from one with the information it had available.
62. The one issue the Council could not respond to was about an individual’s telephone discussion with another local authority in 2014. There was no record of this call. Even if the Council had contacted the individual it is unlikely their recollections of a telephone call over three years earlier would be accurate or help resolve the complaint. I do not consider it was fault to not contact the individual in this case. I have therefore not found fault by the Council in relation to its complaint handling.

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Agreed actions

63. The Council has already accepted faults with delays in backdating payments, not arranging interim payments and delays in progressing Mr K becoming a paid carer. It has apologised for the distress these faults caused. However, I do not consider this fully acknowledges the impact of the faults on Mr and Mrs K.
64. I consider the injustice is linked for all the faults identified. Mr and Mrs K not having their finances and payments arranged caused them worry and distress. The Council has therefore agreed to pay Mr and Mrs K £300 in recognition of the anxiety and distress caused by the faults identified. This will be paid within one month of the date of the Ombudsmen’s final decision.

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Decision

65. I found fault with the time taken by the Council to complete an assessment for Mr D when he moved back to the Devon area and with the time taken to help Mr K register as a self-employed carer for Mr D. The Council has already accepted the faults and apologised. However, I have recommended a financial payment in recognition of the personal injustice to Mr and Mrs K caused by the faults.
66. I did not find fault by the Trust about the support it offered when Mr and Mrs K, and other professionals asked for help or advice about Mr D’s mental health care.
67. I have not found fault with the Council’s complaints handling.
68. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

Information passed to another council

69. Mr and Mrs K complained that Council officers made unfounded and groundless accusations about their family in 2014 that led a different council to pursue a benefit fraud investigation. Mr and Mrs K say they only found out about after they saw some documents from the Council in 2017.
70. I consider an investigation by the Ombudsmen is unlikely to be able to establish fault by the Council.
71. The other council’s investigation found no evidence of wrongdoing by Mr and Mrs K. However, the Council’s officers involved had a responsibility to take action if they believed fraud was a possibility based on the information available to them at that time. In this case, the Council was sufficiently concerned to pass its concerns to the other council to investigate further. While I accept Mr and Mrs K consider the information the Council passed on was inaccurate, we are unable to substitute our judgement for that of the officers involved.
72. Additionally, it is important to note that around five years have passed since these events took place. This would have an impact on our ability to investigate effectively as the recollections of those involved are likely to have faded over time. This is exacerbated by the fact the Council (as explained in the complaint response of 28 March 2018) has only limited records about this matter.

Safeguarding referral

73. Mr and Mrs K complained a social worker made an unnecessary child safeguarding referral in May 2015 based on inaccurate information. They believe the social worker did this because they had made a complaint.
74. The children’s services team at the Council considered the referral and after discussing the matter with the professionals involved and Mrs K, decided the referral did not meet the threshold for a full investigation.
75. The Council’s primary responsibility was to Mr and Mrs K’s children. The officers involved with the family had a responsibility to report their concerns if they believed the children to be at risk. While the safeguarding process can be very upsetting, it is an essential part of the protections set out in law to ensure children are protected from abuse. On this basis, an investigation would be very unlikely to find fault on the part of the social worker for making the referral.

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Investigator's decision on behalf of the Ombudsman