The Ombudsman's final decision
Summary: Ms C complains the Council arbitrarily reduced and calculated her brother’s, Mr A’s, care hours which caused added stress to her father who is his main carer. The Council is at fault for failing to properly assess, communicate and provide an avenue for challenging care assessments. This has caused Ms C and her family distress, anxiety and time and trouble. To remedy the complaint the Council has agreed to remind staff about completing assessments in line with the Care Act and about communicating decisions. It will pay symbolic payments to Mr A, Ms C, and their father for the injustice the faults caused.
The complaint
The complainant who I call Ms C complains on behalf of her brother and father who I call Mr A and Mr B respectively. Ms C complains the Council:- failed to properly assess Mr A’s care needs and arbitrarily calculated his care hours; failed to communicate how it decided Mr A’s entitlement for care hours; forced Mr A to make a formal complaint rather than respond to requests for information; failed to provide Mr A with support to make a complaint and properly consider his complaint; failed to provide support to Mr B, who is Mr A’s main carer, and has his own needs; acted in a bullying and inappropriate manner when communicating with Mr A and his family.
Because of these failures Ms C says Mr A and his father have not received the support they were entitled to and needed. They have had the frustration and distress that Mr A has not received the care he needs, and Mr B’s health has worsened because of the extra caring responsibilities.
The Ombudsman’s role and powers
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether there is disagreement with the decision the organisation made.
This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.
We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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)
How I considered this complaint
I spoke with Ms C and considered information she provided. I made enquiries of the Council and considered its response. I also considered:- case notes, support plans, and care assessments; Care Act 2004 and the associated Care and Support Statutory Guidance.
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 A has a physical disability and needs support to live in the community. Since 2007 both the Council and the NHS have supported Mr A.
What should have happened Assessment Councils must complete assessments for any adult with an appearance of need for care and support. 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.
Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
Personal budget The Care and Support guidance says everyone must receive a personal budget as part of the care and support plan if the local authority is meeting their needs, either because the needs are eligible needs or because it has chosen to meet them.
The budget must be allocated “in a timely manner, proportionate to the needs to be met”.
People should be given an indicative budget at the start of care planning; this is adjusted when it becomes clear how the needs will be best met.
The process, often a RAS (resource allocation system), must be transparent also consistent and equitable without “arbitrary ceilings”.
Care Plan 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.
Where the LA is meeting some needs, but not others, it should clearly set out which needs it will meet and which ones it will not, explaining the rationale for its decision.
A council must also consider any needs being met by a carer; if the person has assessed eligible needs being met by a carer the LA should involve the carer in the process; provided the carer is able and willing to continue caring the LA is not required to meet those needs which the carer is meeting; this should be recorded in the plan so the LA can respond if there is a change in circumstances; where the carer has eligible needs, the LA should consider combining the plans (adult’s and carer’s) if both parties agree.
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. They enable people to arrange their own care and support to meet those needs. The council must ensure 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. (Care and Support Statutory Guidance 2014) Paragraph 12.29 Care and Support Statutory Guidance 2014 says, “If the person meets needs by directly employing someone, they will be responsible for all costs of employment including redundancy payments and this should be made clear to people as part of the information and advice process before a decision is made whether to request direct payments. The local authority must ensure that the direct payment is sufficient to meet these costs if it is appropriate for the adult to meet their needs by employing someone.”
Review of care and support plans 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. Reviews should be person-centred, and outcome focussed and involve the person, the carer and where feasible must consider an independent advocate. They are intended to identify if needs have changed, and a reassessment is needed.
Carer’s Assessment The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the council will meet them. It must also consider what the carer wishes to achieve in their day-to-day life. (Care and Support Statutory Guidance 2014) Safeguarding A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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) Complaints The Care Act says council’s complaint policies should ensure “those who make complaints receive, as far as reasonably practicable, assistance to enable them to understand the complaints procedure or advice on where to obtain such assistance.”
What happened Mr A received 86 hours of free NHS Continuing Health Care (NHS CHC) funding to meet his care needs. The Council administered a direct payment to provide the care. The Council has provided a Personal Budget Agreement which sets out the responsibilities of each party for a direct payment. This is dated and signed by Mr B in October 2019. It appears a single Personal Assistant (PA) provided all the care.
In November 2019 Mr A was no longer eligible for health funding and the Council became responsible for Mr A’s care. The Council agreed to continue the NHS CHC level of support while it completed assessments.
There is confusion about when the Council completed an overview assessment. The assessment document itself says it was completed in May 2020, the Council says the assessment was “started” in May 2020, and Ms C says there was no assessment at this time.
Ms C says after a serious incident the PA was suspended. Ms C wrote to the Council on 19 June to raise issues about the PA as a safeguarding alert. This left Mr A with no care. The Council responded to the safeguarding alert and spoke with Mr A and Mr B. It took no further action as both Mr A and Mr B felt there was no longer any risk as the PA had no further contact with them.
In July 2020 an occupational therapist completed a “functional assessment” of Mr A. The Council also completed a carer’s assessment of Mr B and a care overview assessment of Mr A. The overview assessment said Mr A needed two carers for transfers and had both day and nighttime care needs. It assigned an Indicative Budget of £661.96 to fund 24.5 hours of care. The Council says this was a generated outcome based on Mr A’s need for alternative accommodation in addition to the care. It says Mr A’s personal budget was £445.90 per week for 24.5 hours of care which it commissioned from a care agency.
The Council says at this point the direct payments continued alongside the care agency. The assessment identified Mr A was socially isolated and had lost many of his friends. The Council says it did not assign a budget for social activities due to controls imposed by COVID-19 and to limit the number of carers going into the property.
The assessment also identified Mr A’s living accommodation was not suitable to meet his needs. The Council discussed various alternatives with Mr A and Mr B, the homeowner, which included a through floor stair lift, or adapting a downstairs room to include an accessible bathroom. Mr B did not want adaptations at that time as he felt the disruption would be too much on top of his caring roles. Mr A said he would consider alternative accommodation as a last resort. The Council says it listened to, and followed Mr A’s wishes.
Mr B told the Council he was struggling to care for Mr A and his wife who had Alzheimer’s Disease. He said he was over 70 and in poor health. Mr B said he was doing more domestic tasks such as cooking because his wife was unwell. Mr B said he struggled to meet Mr A’s nighttime needs which included re-positioning; and help with faecal incontinence. The Council completed a carer's assessment and provided Mr B with a carer’s budget of £300 for the year. It also offered alternatives to cooking.
On 31 July the Council says it told Ms C that until there was a nominated person to manage the direct payment it was no longer appropriate and the care package would have to be commissioned from the Council.
In September 2020 Mr B’s GP contacted the Council expressing concerns about Mr B’s mental health. In October 2020 the Council increased Mr A’s care package by 12 hours to include social activities. In December 2020 following Ms C’s request to use an agency to employ a member of staff the Council told Ms C that Mr A could not have a direct payment. This was because there was no nominated person to manage the account. It advised Ms C to complain if she was unhappy and an officer agreed to send a complaints policy. The Council says it provided a complaints procedure but received no formal complaint at that time.
Following continued difficulties in manual handling for Mr A, and Mr B’s refusal to have major adaptations, Mr A agreed to look at alternative housing. Mr A asked the Council for help. The Council records that Mr A filled in housing application forms on 5 March 2021.
Ms C raised concerns about the suspended PA and asked the Council to help to resolve matters. The Council said that as the employer Mr A was responsible for dealing with employment issues; however after Ms C persisted it agreed to support in the process. The Council says that it went beyond its responsibilities to bring the matter to a resolution. In May 2021, the Council sought support from its legal team. In July 2021 Mr A said he no longer wanted a direct payment as there was no one available to support him to manage the payments. At this point Mr A’s mother was receiving end of life care and he told the Council he was depressed and needed support. The Council tried to help Mr A attend a local support group but this was unsuccessful as carers could not transport Mr A to the groups. The Council says Mr A had a Motability car which he could use with assistance. It did not however know of any agencies that could transport Mr A using his car.
In February 2022 the Council records Mr A’s wish to live independently and his need for socialisation. The following month officers visited Mr A to look at how to meet his social care needs and made some suggestions. On 2 March the Council records it was looking at supported living and would update Mr A on available places in the next couple of days. In June Mr A’s mother sadly passed away.
In July 2022 following concerns raised by Ms C about an unpaid tax bill, unconnected to the actions the Council was taking in relation to the suspended worker, it apologised to Ms C for the delay in dealing with matters arising from the suspended worker and the lack of communication. This delay however was caused by other agencies which was outside of the Council’s control.
Between November 2022 and April 2023 the Council records no contact between Mr A and the Council. At this point Mr A’s physical condition had worsened and the GP raised concerns with the Council. The Council reassessed Mr A’s needs.
Following several visits by both an occupational therapist and social worker, Mr B agreed to have adaptations made to the downstairs of the property. In May 2023 the Council increased Mr A’s personal budget to £731 to pay for 43 hours of care per week. This included four calls per day with two carers, two hours for shopping and housework; and six hours per week social time with carers doing activities with Mr A while he remained in bed. The Council reviewed the care package in June 2023 and increased the personal budget to £796.02, then £857.51. In July 2023 the Council increased the budget to £983.25 for 51.75 hours per week. The extra amounts were to pay for a fifth call for a carer to support Mr A with his breakfast and a pop in call twice a night for two nights during the week.
Ms C complains about the attitude of some officers and one in particular who she says has been rude and bullying. The Council does not agree and says the officer involved has been affected by the interaction with the family. It did however change the social worker. Ms C says she has an independent witness and would like an apology for the actions of the care worker.
The Council says because of Mr B’s behaviour working with him has at times been difficult. This has included Mr B’s attitude towards carers and officers; asking carers to carry out tasks which would put them and Mr A at risk; asking carers to complete tasks not in the support plan and getting upset when they refused; refusing to use equipment and to have major adaptations which would be valuable to Mr A.
Over the course of the complaint it has commissioned seven care agencies because of these difficulties. The Council says it also finds communication with Mr A difficult as he will often not return calls or respond to communication.
In response to a draft decision Ms C refutes that Mr B’s behaviour is difficult, she says the family have had carers who have supported the family for over ten years. Ms C says she finds these comments untrue and inappropriate.
Ms C also says Mr A’s lack of a response is not wilful but because of his communication and physical difficulties which sometimes affects his ability to use the phone.
Was there fault causing injustice?
Context Mr A has complex needs and during the complaint the care management of this case was made difficult because of:- the decrease in care from NHS CHC to the Council; employment issues; Mr B’s behaviour; Mr A’s living situation; Mr A’s mother’s health decline and eventual death.
In general the case recording evidences several officers supporting Mr A while navigating the complex situation.
May/July 2020 care assessment completed for Mr A and carer’s assessment for Mr B At first the Council provided the same package of care as NHS CHC. This was pending a reassessment. There was delay in completing the reassessment which is fault. I cannot however say this delay caused Mr A injustice as his care package continued at a higher level than it would have done had the Council reassessed earlier.
The reassessment coincided with Mr A having difficulties with his PA and the PA’s suspension. Ms C considers the decrease in care package was as a direct result of the Council having to fund the salary of the suspended worker and the commissioned care package. I have considered the chronology and do not believe this to be the case. The issues related to the PA were ongoing and at the time of the assessment the Council was not fully aware of the issues and the financial impact.
This assessment followed the Care Act guidance outlined above by completing both an assessment of need for Mr A and a carers assessment for Mr B. The officer assessed Mr A’s needs, completed a support plan, considered Mr A’s views, and set a personal budget to meet Mr A’s needs.
However, Mr A and Mr B told the officer about nighttime care needs. While the officer recorded these needs, they did not consider whether they were being appropriately met, and to what extent Mr B could continue supporting nighttime needs. I consider the failure to properly consider the nighttime needs as part of Mr A’s support plan and Mr B’s carer’s assessment is procedurally flawed and is fault. In response to my draft decision the Council refers to an occupational therapy assessment which informed the social work assessment. While this does provide some clarity it does not explain the Council’s decision making and how it concluded two nights of support was adequate.
The assessment did not include an allocation for social care. The Council says this was because of the restrictions imposed by COVID-19, and in response to my draft decision says there was an indicative budget for 24 hours which is the maximum allocated for someone needing residential care and therefore included social care hours. The Council therefore says it did consider Mr A’s social care needs.
The use of an indicative budget is a benchmark and a council must consider this in conjunction with a person’s needs. The figures are confusing as the indicative budget is more than the personal budget, presumably because Mr A did not want residential care. While there was email communication about the allocation of care hours the Council did not provide Mr A with an updated support plan until September 2020. This set out Mr A’s budget and what needs it met. This did not include social care needs. While I appreciate the difficulties caused by COVID-19 the Council still had a duty to meet assessed needs and while Mr A may not have been able to go out, his social care needs may have been met by other means. I consider the failure to properly consider Mr A’s social care needs is fault.
I therefore consider the 2020 assessments and support plan are flawed, and both Mr A and Mr B have the uncertainty they did not receive the care they should have.
Care assessment completed in June 2023 This assessment is thorough and like the 2020 assessment followed most of the Care Act guidance. However again I do not consider the assessor properly considered Mr A’s nighttime needs. The assessor agreed extra budget for a pop in call twice a night for two nights a week, but it is unclear how the assessor established this met Mr A’s nighttime needs and those of Mr B who remained responsible for meeting these needs on other nights. There is a suggestion Mr A could stay in soiled pads until morning carers attend. There is however no risk assessment about how this may affect Mr A both physical and mentally. I consider the failure to properly consider Mr A’s nighttime needs is fault. As a result, Mr A has the uncertainty he is not receiving the care he should and the potential impact on Mr B as Mr A’s main carer.
Carer’s assessment for Mr B The Council did not review Mr B’s carer’s assessment until 2023. This was despite:- a decline in Mr B’s wife’s health and her eventual death which meant he had to take on more of the caring roles both for his wife and Mr A; a decline in Mr B’s health and an increase in his age which made caring more difficult; his frequent sometimes desperate requests for help and support.
The failure to review or complete a new carer’s assessment in line with the statutory guidance outlined above is fault. On balance I consider it is more likely than not Mr B would have received more support. This is based on the Council assessing Mr B as having eligible carer needs in 2020 and that his caring role was greater because of the issues outlined above.
Issues related to the PA Ms C raised a safeguarding alert about the PA. The Council responded to the safeguarding alert but took no further action on the basis that Mr A felt the issues had been resolved and there was no risk to him. It would have been good practice to have formally told Ms C the outcome of her alert and would suggest this for future practice. However as the Ombudsman is unable to challenge a decision where there is no procedural fault I am unable to consider this element of the complaint further.
Ms C says the Council did not do enough to support Mr A with employment issues. The Council says Mr A was the employer and was responsible for dealing with any employment matters. It did however provide support after Ms C persisted. The Council was not at fault for failing to act straight away. The direct payment agreement sets out the responsibilities of all parties and clearly says the direct payment recipient is the employer and responsible for all employee matters. Once the Council accepted Mr A could not manage the employment matter on his own, in line with the Care and Support Statutory Guidance it provided support.
There was delay in the Council taking some action, but as stated in paragraph 40 above it was dependent on several agencies for advice. I therefore do not consider the delay is fault.
Communication The records show the Council were in regular communication with Mr A and Mr B, but the lack of return calls at times made it difficult for the Council to act.
The Council is at fault for failing to properly communicate decisions it made about changes of care and how it made decisions about these changes. This caused the family confusion and distress about the Council’s decision making. The lack of clarity also resulted in Mr A and his family being unable to properly challenge decisions the Council made.
The Council failed to keep Ms C updated on employment issues. This caused her time, trouble, and distress. The Council’s acknowledgement and apology is welcomed but I do not consider this is sufficient to remedy Ms C’s time and trouble.
Provision of services There was disparity between Mr A’s needs and Mr B not wanting major adaptations to his property to support meeting those needs. The Council discussed alternative accommodation with Mr A. The Council completed housing forms, but it does not appear the Council offered Mr A alternative accommodation, either supported living or suitable housing where his needs could be met with a care package.
In response to a draft decision on the complaint the Council says it does not hold housing stock and therefore had to liaise with the housing department and other separate housing associations to progress Mr A’s housing. It says despite repeated attempts it did not receive completed housing forms or responses from Mr A. I have not seen sufficient evidence of these efforts and therefore find the Council at fault for the delay in pursuing alternative accommodation.
I cannot say now whether, but for the faults identified the Council would have offered Mr A, alternative accommodation in the timescales available or that he would have accepted alternative accommodation. However there is evidence of Mr A asking the Council for an update on housing. I therefore consider he has uncertainty that but for the faults identified the Council would have provided him with alternative accommodation which more appropriately met his needs.
Complaints procedure The case records show Ms C, Mr A and Mr B made repeated complaints about the initial reduction and level of care provision. While there is evidence of the Council trying to resolve matters informally there is no evidence bar one entry of the Council inviting Mr A to complain. When the Council did suggest a formal complaint there is no evidence it provided Mr A or his family with the complaints procedure; or consider the support he may need to make a complaint.
This is not in line with the Care Act and is fault. Because of these faults Mr A lost an opportunity to complain in his own right and have his complaint considered earlier.
Attitude of officers I have considered the care records as a whole and have found nothing to suggest the attitude of officers involved were untoward. While I understand Ms C is upset by the officer’s conduct during a meeting, I cannot pursue this further.
This is because our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. As a publicly funded body we must also be careful how we use our resources.
When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. Ms C has not provided any evidence to support her claim the officer was rude. Although Ms C refers to the presence of an independent third party during the meeting in question, for the reasons explained above I do not consider it would be a proportionate use of public resources to make third party enquiries to obtain comments from that individual.
Agreed action
While I am aware, and have referred to above, the complex nature of Mr A’s care, the difficulties imposed by COVID-19, and the efforts made by the Council; it still had duties and responsibilities under the Care Act and the associated guidance. It did not always do this which significantly impacted on Mr A and his family.
I am aware Ms C would like Mr A’s hours of care increased to 2019 levels. As stated above the Ombudsman is unable to make a professional judgement on social care hours, our role is to look at whether there was procedural fault in the Council’s actions. I have found fault in the Council’s conduct and consider the actions below are suitable to remedy the complaint.
Within one month of the final decision the Council has agreed to:- apologise to Mr A, Mr B and Ms C for the failure to properly: assess needs; communicate clearly Mr A’s personal budget and what it was intended to meet; communicate decisions.
pay Mr A £1000, Mr B £1000 and Ms C £200. These are symbolic payments to acknowledge they were caused uncertainty, anxiety, time, and trouble; if it has not already done so reassess Mr A’s nighttime care needs.
Within three months of the final decision the Council has agreed to remind relevant officers and if appropriate provide training on: - completing assessments in line with the Care Act; completing and reviewing carers assessments; communicating important decisions in writing; updating people using services and their families about care decisions; referring people, and where suitable supporting people to access the complaints procedure.
The Council should provide us with evidence it has complied with the actions above.
Final decision
I have found fault in the actions of the Council which has caused injustice to Mr A, Mr B and Ms C. I consider the actions above are appropriate to remedy the injustice caused. I have completed my investigation and closed the complaint on this basis.
Investigator's decision on behalf of the Ombudsman