The Ombudsman's final decision
Summary: Ms C complains a day centre inappropriately cancelled her son’s day care provision. Ms C funded the day centre through a direct payment. The Council is therefore not responsible for the actions of the day centre. The Council acted properly when it was aware there were issues at the day centre.
The complaint
The complainant who I call Ms C complains about services provided to her son, who I refer to as Mr C. Ms C complains a day centre, the “Care Provider”, inappropriately and without warning cancelled Mr C’s day service which left him with no day care provision. Ms C complains the Care Provider failed to give proper reasons for the termination, look at other means of support such as from involved professionals; or provide sufficient evidence in response to her enquiries about how the day centre made its decision.
Ms C says the sudden ending of the day care provision caused Mr C trauma and a worsening in his behaviour which caused added stress to Ms C and her family.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
What I have and have not investigated I have not investigated the actions of the Care Provider. This is because Ms C used a direct payment to purchase the care and the Council was not responsible for the service. In these circumstances the law says the Ombudsman cannot investigate the complaint as it was not Council commissioned.
I have however investigated whether the Council acted appropriately in supporting Ms C before the Care Provider made the decision not to allow Mr C back to the centre.
How I considered this complaint
I spoke with Ms C and considered information she provided including her complaint. I made enquiries of the Council and considered its response. I considered:- Care Act 2014 and the associated Care and Support Statutory Guidance; the Ombudsman’s roles and powers detailed above.
Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Background information Mr C is autistic and lives with his parents and siblings. The Council support Mr C through a direct payment. This is money given to Mr C by the Council so he can choose how best to meet his eligible care needs. With the support of Ms C, Mr C arranged and paid for the day care from November 2020.
What should have happened Preventative duties The Care Act 2014 says when carrying out its care and support functions for an adult, councils must promote the well-being of the individual. A key focus is on preventing or delaying needs and therefore the need for care and support. This means supporting an individual to prevent their needs escalating so that they can keep well and independent, or aiming to reduce needs and help individuals regain skills.
Direct payments Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. The council still has the duty to ensure needs are met even if the person is doing this themselves through a direct payment. Where a person is unhappy with the care provider they have commissioned using their direct payment, their complaint is against the care provider, not the council.
Reviews Care and Support Statutory Guidance (CSSG) says reviews should be person-centred and outcome focussed. Care plans should be kept under regular review. They should cover the following elements: have circumstances or needs changed?
what is working in the plan, what is not working and what might need to change?
have the outcomes identified in the plan been achieved?
does the person have new outcomes they want to meet?
could improvements be made to achieve better outcomes?
What happened In June 2022 following day centre concerns about Mr C’s behaviour the Council held a Multi-Disciplinary Team (MDT) meeting. The MDT identified there were two episodes of challenging behaviour which had “triggers”. It also found the day centre managed the episodes without the need for physical intervention.
In August 2022 the day centre contacted the Council to say it wanted to end providing services to Mr C. Between August 2022 and June 2023 the Council held either MDT meetings or reviews of Mr C at the day centre. During this period Mr C’s behaviour became increasingly difficult for the day centre to manage and included physical aggression to staff. The MDTs set out a series of measures which included:- Looking at whether there was a physical trigger for the behaviour: checking Mr C’s blood; gaps in medication and ensuring there was no delay in repeat prescriptions; reviewing and assessing whether there were changes in Mr C’s epilepsy; assessing Mr C’s pain levels to see if this was an issue.
a psychiatric and medication review; involved and invited a nurse from the Community Learning Disability Team to all the meetings; actions the day centre agreed to take to try and minimize the behaviour. This included:- keeping a daily diary to communicate how Mr C had been that day and what activities would occur the following day so his parents could prepare him; changing staff members to those Mr C preferred; change of activities and locations to suit Mr C; using alternative forms of communication with Mr C such as pictures to tell him when there was a change to the scheduled activities or staff member; created a safe space for Mr C.
researched and provided a different safety belt for Mr C’s transport to the day centre.
The Council completed an MDT in June 2023. The day centre did not raise any major issues during the meeting; and the Council, as it had done at previous meetings, created an action plan.
On 28 July the day centre contacted Ms C and the Council to say it was ending Mr C’s placement and he could not return. This was because of an escalation in his behaviour which had affected both another service user and staff member. Ms C complained about this decision and the lack of notice. The Council asked the day centre to review its position. The day centre agreed to have a meeting with Ms C and the Council about the incidents and learning for future placements. However because of the seriousness of the incidents, the health and safety of staff members and other users of the service, were insistent Mr C could not return.
The day centre held a meeting with Ms C which did not resolve matters. Because of the lack of notice and the complex nature of Mr C’s needs it took some time before he could access another suitable service. The transition planning for this started in January 2024. During the intervening time Ms C says she has had stress and anxiety. Mr D has been without the same level and type of community support, and transition into a new placement will be difficult for him.
Was there fault causing injustice?
As stated above I cannot consider the actions of the day centre as this was not a Council commissioned service. I can however consider whether the Council could have done more to prevent or support the day centre when it was having issues in supporting Mr C.
I have considered the Council’s duties and have found no fault in its actions. This is for the following reasons:- it acted expediently and in direct response to concerns raised by the day centre and Ms C; involved other professionals for advice and to take follow up actions; the MDTs have a clear record of actions agreed and actions taken so there was oversight and continuity in support for Mr C; the Council involved Ms C and the day centre in its interventions; the MDTs were holistic and centred on Mr C’s needs; the day centre gave no notice to the Council. It therefore could not take any action to stop the termination. When it was aware it properly discussed the matter with the day centre to try and reach a resolution so Mr C could return.
Final decision
I have found no fault in the actions of the Council. I have now completed my investigation and closed the complaint.
Investigator's decision on behalf of the Ombudsman