Decision Date: 7 November 2022
Mr B complained on behalf of his brother, Mr D, and their parents.
Mr D had cerebral palsy and a learning disability, needing daily care. Mr B, the complainant, was Mr D’s younger brother. Mr B had made a number of complaints about the Council’s handling of Mr B’s care since Mr B turned 18 but also in relation to matters from a decade before during his childhood. and hence the need to set out the history here.
Mr B complained that the Council failed to provide proper care and support for Mr D and in that failure, the family were placed under both physical and emotional strain. Specifically, he complained that the Council failed to:
(a) arrange a transition from the children’s services to adult services;
(b) make professional referrals for assessment and care services;
(c) respond to the family’s request for care services;
(d) conduct a thorough needs assessment;
(e) produce a lawful care and support plan addressing all of Mr D’s eligible needs;
(f) provide support to meet all of Mr D’s eligible needs; and
(g) appoint an advocate, when it was clear that there had been some difficulties in the family’s understanding of the situation.
The Ombudsman set out in the report the reasons that this complaint was not considered to be late, despite some matters dating back to 2007.
Up until the time of transition, all of Mr D’s needs were being met by his parents (Mr and Mrs Y) in the family home. They also cared for Mr D’s siblings, one of whom (Mr C) was disabled, and his elderly grandmother. As a child Mr D received some social services and special educational needs input from the Council.
April 2007 – Social worker referred Mr D, at 17, to adult care services and again in August 2007. Mr D was allocated an adult care services social worker by December 2007 but no assessment of his adult care and support needs had been made.
April 2008 – After a home visit, the social worker said that Mr D’s father had informed the social worker that the family only wanted day-care activities during school holidays and did not require assistance with Mr D’s personal care or daily living needs. The social worker was going to return for an assessment, as agreed by Mr Y.
July 2008 – The Council wrote to Mr and Mrs Y just asking them to get in touch with the learning disability team if they wanted help. The letter stated they had tried without success to contact them for an assessment and would close the case if they did not hear from them within 14 days; however the couple could contact them in the future if they needed to.
August 2009 – An urgent referral was made for transition support for day activities and attending college the following month. The council said they had a transition worker to act as an interpreter and assist engagement. But despite acceptance by the Council, they did not act upon it at that time.
September 2009 – The Council was contacted by a charity informing them they needed to do an assessment for support that Mr D required with going to college and whilst at home. The Council said it spoke with Mr Y who told them the family could meet all of Mr D’s needs and only needed help with equipment.
January 2010 – A detailed needs assessment of Mr D was carried out, after the Council and a worker from charity visited the family to explain options. Mr D was assessed as having substantial or critical needs in all domains under Fair Access to Care Services, except those relating to relationships and education and he was said to need support for 47 hours per week.
November 2010 to July 2011 – There were issues about a budget allocation and a number of home visits were made by Council with an interpreter. It was noted that the interpreter commented that Mr Y had communicated well in English. Nothing happened.
End of January 2012 – The Council closed Mr D’s case, after a carer support worker informed them Mr D had not attended any activities since he finished college. The Council had written to Mr Y and said it did not hear back about arranging an appointment.
September 2012 – Mr Y and Mr B (who was now 18) asked the Council to assess Mr D and Mrs Y as his carers and for further assistance in arranging further education for Mr D.
October 2012 – Mr B asked for an urgent assessment.
December 2012 – The Adult Transitions team started an assessment and were chased by the family in early 2013 and a social worker was allocated to the case that month.
April 2013 – a home visit was arranged. On the day the social worker reminded Mr Y about the visit, Mr Y informed them that he would be out and was unable to confirm when they should visit. Council subsequently had a conversation with Mr Y later that month about Mr D’s college. After Council had no contact from the family, they closed Mr D’s case in July 2013.
March 2014 – The Council became involved after a concern was raised by the A & E department about the family’s ability to care for Mr D at home and his accessing the community. The Hospital had noted Mr D’s frustration and self-injurious behaviour when he was unhappy. The Council did not consider this to be a safeguarding issue but rather a care management issue and recommended Mr D be referred by the hospital for another assessment.
Mr B sought the Council’s help in securing college for Mr D, after he had left one, and also asked for respite provision. Following an assessment it was decided by the Council that Mr D’s needs could be met by attending a day centre (DC1) for four days. No carers’ assessment was carried out for Mr or Mrs Y.
Mr D initially attended college two days a week until January 2016, when four days became available. At that time, he was still on a waiting list for a taxi service, which he required. At a review meeting, Mr B asked that Mr D be enabled to attend DC1 on Fridays but there was no availability. No information was recorded in the review as to how Mr D’s needs were being met at home on the days he was not at DC1 or whether Mr and Mrs Y were able to continue their caring roles.
May 2016 – Mr B asked the Council for a day centre place for five days a week as Mrs Y was struggling on Fridays. Transport to the centre was still not available. The Council noted this was urgent as there was a risk of carer breakdown. The following month the Council sent Mr B information about making a complaint.
August 2016 – The Council started another assessment, when a place became available for Fridays at a different day centre (DC2). The Council approved a place although transport to the centres was still not available.
Mr D started receiving direct payments to pay for his care and support needs in late 2016, which were managed by Mr B.
July 2018 onwards
Mr D received direct payments for a personal assistant to support him for five hours a week. An organisation to help the family manage the direct payments was arranged by the Council, however the family did not use it. The Council additionally funded a place for Mr D to attend a day centre for five days a week.
In July 2018 there was a joint assessment of Mr C (Mr D’s disabled sibling) and Mr D by occupational therapists who recommended bathroom adaptations through a Disabled Facilities Grant (DFG) and that a stair rail be provided for Mr D. The family’s step was also fixed after Mr D’s therapist stated an engineer should consider replacing it. The Council agreed to provide stair rail and processed an application for a DFG in Mr C’s name for bathroom adaptations.
The occupational therapy services assessed Mr and Mrs Y. Mr B supported his parents for this and informed them that his father’s joint pain and strain on his back were getting worse from caring for Mr D. The therapist concluded that planned adaptations to the home would lessen the strain.
September 2018 – A review meeting in relation to Mr D’s care plan and direct payments took place with Mr B, Mr D’s day centre manager, Mr D’s key worker and social worker. It was confirmed that Mr D required support with all outcomes listed in the Care Act 2014 (as set out in the report). Thefamily asked for regular breaks to enable them to continue to care for Mr D at home. The reassessment was completed in October 2018, but no changes were made to the care plan; the family was sent a copy of the assessment.
Mr B told that Council that Mr D’s care package was not working and in November 2018 another reassessment took place. Mr B expressed concern that the family would be unable to cope much longer. A new support plan was developed increasing Mr D’s direct payments by 25 hours per week for personal assistant support and 28 short breaks a year. This was to start at the end of December 2018.
The Council told the family they had not used any direct payments since July 2018 and Mr D had not paid his contribution into the account, following a review. Mr B informed the Council that he was not told how to use direct payments. The social worker explained the process and noted that Mr B was in contact with an organisation who supported people to manage direct payments.
The review team made an urgent referral for a carer’s assessment for Mr B and for an advocate to be assigned to the family, sending a copy of the new assessment to the family, asking for comments.
In January 2019 – Mr B contacted the Council as Mr D had not received the promised increase in direct payments. The Review team agreed the increase was to be paid before the end of the month and was to be backdated to the end of December 2018. Mr B asked for it be backdated to the day of reassessment in November 2018. The Council agreed to consider adjusting to this date if Mr B provided records of payments the family had had to make for Mr D’s care.
Mr B made another referral to the occupational therapy service for his parents as he was concerned about the health impact on them manually handling Mr C and Mr D. Due to difficulties arranging a home visit, the service wrote to Mr B in March 2019, asking if he still wanted an assessment. Mr B expressed he was unhappy with the therapist’s communication and asked that the referral should be reassigned. This was done and the assessment completed in April 2019. The Assessment concluded there was no concern about the manual handling by Mr D’s parents, and the suitability of property would be addressed in DFG application. A list of community organisations Mr B and his family could access for help and support were sent to Mr B, asking if the review team should contact any of them on his behalf.
March 2019 – Mr B commented on Mr D’s care plan. He stated Mr D was not receiving any therapy (i.e. speech and language) and that two personal assistants were required with further hours needed. The Review team told Mr B they had considered this and concluded the existing care plan met Mr D’s needs. Mr B detailed a further one to two extra hours were required Monday to Friday and an extra twelve to sixteen hours at the weekend. The Review team remained of the view that the new care plan met Mr D’s care needs.
Mr B informed Council that without the extra support sought there was a risk of carer breakdown or injury and they needed to consider Mr D’s feeding, changing and emotional needs. The Occupational therapy service assessed and recommended a step lift, shower chair and level access shower all be replaced. Further they would liaise with the children’s service (as the application was being made in Mr D’s younger sibling’s name (Mr C)) about the DFG and adaptations to family bathroom and reception rooms.
May 2019 – a feasibility report was conducted by the Council’s step lift contractor for the new step lift. Mr B agreed to the suggested work and was told it would be completed in July 2019.
June 2019 – Mr B told the Council they needed to increase the care package. The Council confirmed its confidence in the assessment in November 2018, that it was accurate and met the needs of Mr D and family. The Council told Mr B if there had been any changes to Mr D’s circumstances, to contact adult and communities access point (ACAP). Mr B contacted them and requested a review. The family’s advocate told the Council Mr B wanted nine more hours as his parents’ health was poor.
September 2019 – The family’s advocate contacted Council asking for review of Mr D’s care package and told them the family had waited three to four months for Mr D even to be allocated a social worker for reassessment.
October 2019 – Mr B met Mr D’s social worker and explained the family struggled with their caring roles and had no equipment in place to support them. There was a risk of carer breakdown. He requested a temporary increase in Mr D’s package while the extension and adaptations to property were completed.
November 2019 – the occupational therapy service completed a further assessment of Mr D following Mr B’s request. Fresh concerns were raised by Mr B in relation to manual handling but he was told they would be dealt with by the major adaptations to be completed through the DFG.   
December 2019 – reassessment completed, which increased personal assistant support to 40 hours a week and a list of community activities his parents could attend themselves, was sent.
What was found
(A) Arranging transition from children’s services to adult services
The ombudsman found there was no fault by the Council’s children’s services team as they had referred Mr D to adult care services in plenty of time and followed up referrals until a social worker had been allocated. However the report stated that the adults’ department took too long to arrange a home visit for an assessment, by which time Mr D was already an adult.
The Ombudsman found that despite difficulties in contacting Mr D’s parents, the Council were under a duty to assess Mr D’s needs for social care when he turned 18 because they were aware of his need for care and support (Section 47 National Health Service and Community Care Act 1990). There was no evidence that Council had considered whether Mr D had ever made a capacitated decision to refuse assessment or that they had considered whether Mr D lacked capacity under the Mental Capacity Act 2005.
There was fault in closing Mr D’s case based on the difficulties contacting his parents.
However the ombudsman found on a balance of probabilities that the faults in transition from children’s services to adult did not cause a significant injustice, the reasons for which are set out in the report.
(B) Making professional referrals for assessment and care services
The ombudsman found that the Council had made referrals when appropriate and referred Mr D’s parents to other organisations that might help or should have helped, when it should have done so and found no fault in this respect.
(C) to (G) Responding to family’s request for assessments, care services, care and support plans to meet eligibility needs and appointment of an advocate
During the period of August 2009 to June 2018
Ombudsman found that the Council were aware that Mr D may well have social care needs and that he lacked capacity to decide about his care and support. There was therefore a duty on their part to assess his needs unless it was not in his best interests. Instead they delayed assessment until January 2010 and then failed to put in place any care and support despite his needs being in the critical eligibility band. It was found this delay was fault on the part of the Council.
The Ombudsman also found it was then wrong for the Council to close Mr D’s case based on some evidence that Mr Y had refused to engage with the offered assessment, when it had not considered what was in Mr D’s best interests. It was pointed out that Mr Y did not have a power of attorney for health and welfare and was therefore not able to make decisions related to this on Mr D’s behalf. The Council could have instructed an Independent Mental Capacity Advocate (IMCA) if they were unable to ascertain the information required from the parents.
The ombudsman found the Council repeatedly at fault for delay and/or closing Mr D’s case in 2011, 2012 and 2013. The Council was also found to have failed to:-
- action Mr B’s request for an assessment of Mr & Mrs Y as carers;
- provide the support they assessed Mr D needed from January 2010, which resulted in Mr & Mrs Y having had to provide informal care for significantly longer, putting them at risk of carer strain or breakdown;
- assess the needs of Mr D when they were alerted by the Hospital about his needs not fully being met at home;
- consider appointing an independent advocate for Mr D between August 2008 and June 2018. This was fault since the Council knew Mr D lacked capacity to make decisions related to social care; his parents either would not or were unable to engage meaningfully in his needs assessments and care planning; and no one else could represent and support him informally until Mr B was himself old enough to do so.
- provide accessible and adequate information about adult social care services to Mr and Mrs Y.
- to re-assess Mr D’s care needs or offer his parents proper carers’ assessments, as they were aware from previous assessments he may have care and support needs and in that failure, it was further fault.
- offer a carer’s assessment to Mr Y in September 2015 after Mr B requested an assessment of Mr D’s care and support needs. This was fault and further the Council relied on information about Mrs Y not needing one, from Mr B, rather than enquiring directly, and these were faults also.
- consider if it was in Mr D’s best interests to seek alternative provision while waiting for vacancies at DC1. This was fault.
- provide transport to DC1 even though this provision was part of his care and support plan.
- start an assessment, but instead waiting three months despite knowing there was a risk of carer breakdown: this delay was fault because of the urgency of the situation
- consider Mr D’s Article 8 rights under the Human Rights Act appropriately, given they were told on numerous occasions his social interaction needs were not being met. This was fault.
The ombudsman said there were many missed opportunities to assess the needs of Mr D and his parents as carers, all of which were faults by the Council. Had these faults not occurred, then the family may have received more support. However the injustice caused to Mr D between April 2015 and January 2016, whilst attending college was significant. There was a lack of social activities outside the home resulting in him being stuck in his room which would lead to episodes of screaming and hitting himself in frustration. This failure of the Council to promote Mr D’s wellbeing and independence, the Ombudsman concluded, was likely to have had a substantial and long-term adverse effect and caused him avoidable distress.
The ombudsman accepted that Mr Y may have contributed to his own distress and inconvenience by evidence of reluctance to engage with social services prior to September 2015, but not beyond that point. Despite the Council’s duties under the Care Act, they did not engage with him, which resulted in Mr Y not being assessed as a carer.
The Council also failed to speak with Mrs Y, despite her role in providing most of the day to day care and attempting to ascertain her views, wishes and needs. This resulted in Mrs Y not having her needs assessed over many years. This was fault on the part of the Council and resulted in the impossibility of knowing if she would have got support earlier, had there been an earlier assessment.
The Ombudsman found that despite the Council’s failure to provide Mr D transport to DC1, this did not cause Mr D injustice as his parents stepped in to do this. However in this failure, the parents found an additional task and expense they had to take on which they should not have had to shoulder.
From July 2018
The ombudsman concluded that Mr B’s request for regular breaks should have been looked at in the review which took place in October 2018. Failure to do so was fault and further the extra support allocated in the review in November 2018 should have started earlier as there had been no significant change in circumstances between those months. This was also fault and the family missed out on 5 short breaks and 200 personal assistant support hours. This fault put additional pressure on the family.
Whilst the ombudsman did find the Council at fault for delay in the review requested in July 2019 it did not cause injustice as the support was for whilst works were to be carried out, however those works had not yet started.
The ombudsman found no fault with the community opportunities review team or the occupational therapy services.
The ombudsman found as a result of the faults, injustice was caused to Mr D and his parents and agreed the following action and remedies: –
- The Council apologised to Mr D and his family for the faults from July 2018;
- It arranged for Mr D to have an extra 200 personal assistant support hours;
- It arranged for Mr & Mrs Y to have an extra five short breaks.
- In relation to the injustice from 2007 to June 2018 identified, it made a symbolic payment of £2500.00 for Mr D’s use;
- To remedy the injustice to Mr Y, an apology to him for the impact of the faults and to acknowledge the uncertainty and transport problems since 2015, it would pay the symbolic sum of £200.
- To remedy the injustice to Mrs Y, an apology to her for the impact of the faults, it would pay the symbolic sum of £500 to acknowledge:-
- the deprivation of her opportunity to be heard and get her needs assessed; and
- the distressing uncertainty how things may have been different for her and Mr D.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
This complaint highlights the impact and consequences of not getting transition from children’s services to adults’ services sorted out. The law relating to transition is set out in s.58 of the Care Act and Para 16.7 of the Care and Support Statutory Guidance. Para 16.7 makes it clear how individualised and child centred it should be.
“16.7 Transition assessments should take place at the right time for the young person or carer and at a point when the local authority can be reasonably confident about what the young person’s or carer’s needs for care or support will look like after the young person in question turns 18. There is no set age when young people reach this point; every young person and their family are different, and as such, transition assessments should take place when it is most appropriate for them.”
Crucial to the finding of fault in this case was that the Council were well aware of Mr D’s needs for care and support and therefore they had an unavoidable duty to assess his needs when he turned 18, if not before.
The Ombudsman found that no injustice was caused by the fault, for the reasons set out in the report.
Duties to support adults who choose to continue caring for their children into adulthood, are not well understood. Here the duties the Council owed to Mr D’s parents, as carers, were not actioned as they should have been. They should have been offered assessments (s.60 Care Act 2014) before Mr D became an adult, as well as information about services at the outset. Had the Council not failed in this respect, and provided that support at the outset, the impact and difference that that could have made for this family is not able to be guessed at.
The Mental Capacity Act 2005 is the legal framework for acting and decision-making for people who lack the mental capacity to make particular decisions for themselves. This Act (and the Code of Practice 2007) sets out the principles that a person (in this case, the Council) should apply when dealing with someone who may lack capacity to make decisions for themselves.
This complaint highlights the failure of the Council to have considered whether Mr D had ever, himself, made a capacitated decision to refuse an assessment. The LGO could see no evidence of their concluding, after properly applying the cognitive building blocks for capacity to the facts, that Mr D either had or lacked capacity to decide about an assessment.
We do not agree that at that point a best interests decision was required, however: we think this is an example of how the duty to do a s9 needs assessment – if one doubts a person’s capacity to refuse – is still in place, under the Care Act.
This might just be another way of querying how could it ever be in someone’s best interests not to assess them for their entitlement to care services, but it does matter, to our mind, that one keeps the principles for deciding capacity apart from the process to be followed if the action being considered needs protection under s5 – which an assessment does not – because it doesn’t involve touching anyone, restricting anyone or depriving anyone of their liberty! And an assessment doesn’t NEED consent; it’s just that it can be refused – but only if one has capacity.
The discharge of the function does not depend on a best interests decision because the duty in s9 provides the lawful authority for the determination of a person’s needs, and in particular, those of a person lacking in capacity, as the State’s honouring of non-discrimination and Human Rights principles!
The Mental Capacity Act 2005 created the role of the Independent Mental Capacity Advocate (IMCA) whereby Councils may instruct an IMCA to support someone who lacks capacity to make decisions where no-one else is available to take that role. In this case, the Council closed Mr D’s case on numerous occasions, as a result of what they said was a lack of engagement from Mr Y. They didn’t question whether Mr Y was an appropriate person, for that informal supporting role, and just closed the case and the doorway to assessment for Mr D. Clearly, if they had proceeded with assessment, a Care Act advocate would have done a decent job, and enabled the Care Act process to be completed much sooner.
The law relating to carers’ transition assessments is set out at s60 of the Care Act 2014 and there is a statutory duty on the part of the Council, that they must assess a carer where they believe it would significantly benefit them when they are aware that the carer of the soon-to-be-adult is likely to need support in their caring role. The Council failed the parents in this respect on numerous occasions and more significantly, Mrs Y.
The report brings out the need to talk to carers directly to ascertain their views and needs, rather than relying on that information coming from someone else or failing to consider the need at all. In this complaint, the Council failed to engage with Mrs Y and just relied on Mr Y for all aspects of information giving, even though he was not the main carer; and despite the fact that they were of the view that Mr Y was not engaging with them. Instead, report’s account of the saga reads as if Mr Y’s non-engagement was convenient to the council.
The Council failed to consider appointing an Advocate for Mr D for a period of nearly ten years (August 2008 – June 2018), failing to balance respect for the parents’ ongoing willingness to care, with reacting properly to the parents’ apparent inability to engage with processes Mr D was entitled to. This aspect of the complaint was partly historic; however, the injustice was still acknowledged within the payment of £2500 to Mr D. Normally, the Ombudsman will only go back a year from the facts of the underlying complaint.
This report is an example where the Ombudsman has used the full scope of the CLAE’s powers available to look at decades-old historical issues when they might otherwise have refused due to the possibility of unavailable records, the passage of time and the possible unfairness in that. It was significant that the Ombudsman did not consider this matter to be late, despite repeated references to inconsistent stances from the parents and Mr B; we think that was because this case shows what can happen to people taking care of disabled relatives if they are not able to absorb information from the internet about the system.
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The full Local Government Ombudsman report on the actions of Birmingham City Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-anind-care-plan/19-012-