Summary: Mr X complained the Council failed to provide community access for his son Y in accordance with his care plan. He also says the Council failed to advise him about costs for activities at the day service that Y attends. We have found fault with the Council for failing to provide male carers to support Y with accessing the community. The Council has already offered to pay Mr X £1000 to remedy the injustice caused. We consider this to be an appropriate remedy. We have also found fault as we are unable to investigate the way in which the Council considered respite provision because relevant records are not available.

The complaint

1. Mr X complains that:

1. the Council failed to make respite payments for 2016, 2017 and 2018;
2. his son (Y) had no male support workers to assist with community access for 27 weeks and Mr X and his daughter had to provide this support; and
3. the Council failed to advise him about costs for activities at the day service that Y attends.

2. Mr X says they have not received the correct support and he has struggled to cope with caring responsibilities which has impacted his own health and well-being.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke to Mr X about his complaint and considered all the information he provided. I made enquiries of the Council and considered its response.
7. I sent Mr X and the Council a copy of my draft decision and invited their comments. I considered the comments I received before reaching a final decision.

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What I found

8. Y is a young adult with a diagnosis of autism and learning disabilities. Mr X is Y’s main carer and his needs have been considered alongside Y’s in one joint assessment.
9. I started an investigation into Mr X’s complaint and asked the Council to provide me with a copy of its case records and evidence of actions taken in relation to the issues raised by Mr X. The Council was a victim of a cyber-attack in October 2020 and has been unable to provide copies of Y’s social care and health records and financial information. We are therefore unable to investigate Mr X’s complaint that the Council failed to provide respite care for three years. I can investigate Mr X’s complaint about lack of male carers and cost of day activities.

Male carers

10. The Council says that Y’s support plan completed in April 2017 and review completed in May 2018 identified that he should be supported by two male carers when going out into the community. The support agreed at the time was four hours per week. Due to non-availability of male care workers this support was provided by Mr X and his daughter, from 16 April 2018 to 21 October 2018.
11. The Council’s failure to provide provision in accordance with Y’s support plan is fault. The Council accepts this and has offered Mr X a good will payment of £1000. The Council said this was a “nominal amount to signify that the Council would have wished for a better quality of customer service to [Mr X and Y], particularly in relation to the issue of the need for male carers being endorsed by the social worker, when suitably trained carers of either gender would have been able to support his son”.
12. Because the Council has accepted fault it is not necessary for me to investigate this part of Mr X’s complaint any further. I must now consider whether the payment of £1000 remedies any injustice caused to Y and/or Mr X.
13. Y continued to access the community with support from Mr X and his daughter. Therefore, I do not consider he was caused a significant personal injustice by the lack of male carers.
14. There is no quantifiable loss to Mr X as he did not pay for extra services. He took it upon himself to support Y with accessing the community. Our financial remedies for non-quantifiable financial loss are symbolic payments, which serve as an acknowledgement of the distress or difficulties complainants have been put through. Our guidance says that payments range from £100 to £300. In cases where the distress was severe or prolonged, we can recommend a payment of up to £1000. Where fault by the Council exposed the complainant to the risk of harm (rather than actual harm) we can recommend a payment of up to £500 to acknowledge this.
15. A review of Y’s support plan was completed in March 2019 and identified that he relied on his parents to support him with daily living tasks but due to the impact this was having on his parents they could no longer complete his personal care and support him with community access for social activities. It was noted that Mr X had mobility issues and he was finding it difficult to manage Y’s increasing challenging behaviour. The Council has been unable to provide a copy of Y’s support plan for 2018, nevertheless, on the balance of probabilities, I have no reason to think that Mr X would not have raised similar concerns. Mr X told me the additional hours supporting Y caused him distress and impacted his physical and emotional health and wellbeing. I have no reason to doubt this.
16. Mr X provided this support for six months and I consider the impact on his health and well being was a combination of distress and risk of harm. In accordance with our guidance on remedies I consider the offer of £1000 by the Council is appropriate to remedy the injustice caused to Mr X.

Day Care

17. The care and support plan review carried out in March 2019 identified that Y would benefit from attending a day service so that he could be involved in activities. Mr X says he was not told that he would be responsible for paying the costs of activities and he has been charged £58.50.
18. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. We provide a free service but must use public money carefully. We can decide to discontinue an investigation if we decide, any injustice is not significant enough to justify our involvement.
19. The review does not state whether the cost of activities was explained to Mr X, but I would not expect it do so as it is an assessment of Y’s care and support needs. The Council has no access to records but has confirmed there would have been no contract in place for day services. This is because the standard agreement would specify the number of days per week of attendance and the daily or weekly cost. The contract would not refer to the cost of activities as it is accepted practice that these are met from the service users’ own money and agreed with the day service. Despite the lack of access to social care records, on the balance of probabilities, I find no fault by the Council here.
20. In response to my enquiries the Council said it contacted the day centre about Mr X’s complaint. The day centre said it advised Mr X that the family were responsible for paying for activities. Mr X disputes this. Because I was not there, it is not possible to say, even on the balance of probabilities, what was discussed between Mr X and the day service. Furthermore, Mr X’s complaint is about a cost of £58.50 and I do not consider this has caused him a significant injustice to warrant any further investigation.

Respite

21. While we have not investigated Mr X’s complaint about respite provision our inability to do so is caused by service failures by the Council as record keeping and the ability to investigate and respond to complaints are functions we expect authorities to maintain at all times. This service failure caused Mr X a significant injustice as he many never know whether he should have received a respite payment. The Council should apologise for this.
22. We will revisit this aspect of Mr X’s complaint in around 12 months’ time to decide whether any evidence has become available that means we could investigate the respite care. The Council and Mr X can return to us if new evidence becomes available in the meantime. It is however possible that the records may be irrecoverable.

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Agreed action

23. In recognition of the injustice caused to Mr X, within one month of this final decision the Council will:
1. apologise to Mr X; and
2. make a payment of £1000 to remedy the injustice identified in paragraph 16.

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Final Decision

24. I have found fault by the Council causing an injustice to Mr X. I have completed my investigation on this basis.

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Parts of the complaint that I did not investigate

25. For the reasons explained in paragraph 9, I have not investigated Mr X’s complaint about respite care.

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Investigator's decision on behalf of the Ombudsman