The Ombudsman's final decision
Summary: Mr X complained the Council misled him about the support hours Ms Y would receive following her move to an assisted living facility. We find the Council at fault for giving incorrect information to Mr X. The Council has agreed to apologise and make a payment to recognise the uncertainty caused.
The complaint
Mr X complains the Council reduced the level of care agreed for his daughter, Ms Y, without consulting or informing him. Mr X says this has caused him considerable distress and uncertainty as he did not have the relevant information when making decisions about Ms Y’s care.
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) 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)
How I considered this complaint
I spoke to Mr X about his complaint and considered information he provided. I also considered information received from the Council.
Mr X 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
Relevant law and policy The Care Act 2014 (the Act) is the legislation that sets out local authorities’ powers and duties in respect of adult social care services.
Sections 9 and 10 of the Act require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.
Where councils have determined that a person has any eligible needs, they must meet those needs. The person’s needs and how they will be met must be set out in a care and support plan. The plan should be proportionate to the needs to be met and should reflect the persons wishes, preferences and aspirations.
The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18) What happened I have summarised below some key events leading to Mr X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
Ms Y received care and support from the Council and had been in residential care. Mr X, who is an appointee for Ms Y and jointly responsible for her decision-making with Mrs X, told the Council he felt a move to a supported living facility would better allow her to pursue an active and fulfilling independent life.
Ms Y’s care and support plan at that time identified Ms Y needed assistance across all eligible needs. The plan noted Ms Y received support from care workers every day with all her daily living. It explained Mr and Mrs X provided support with making all decisions, managing finances, and outpatient medical appointments.
While Ms Y’s needs remained the same, the Council established that if she moved to her preferred supported living facility, costs of delivering that care with 1:1 care hours would increase. The Council discussed this with the assisted living facility who felt Ms Y’s support needs could be met with a mix of 1:1 and shared care hours, at a lower cost. However, Mr X expressed concerns at the idea of Ms Y losing 1:1 care hours.
Following further discussion with the assisted living facility and Mr and Mrs X, the Council wrote to Mr X in March 2022 to confirm it had approved funding for 32 shared and 58 1:1 care hours per week and 21 hours of night support once Ms Y moved into the assisted living facility.
Ms Y moved into the assisted living facility in August 2022.
The Council reviewed Ms Y’s care and support plan in November 2022. This noted carers felt Ms Y had settled in well and her support needs were being met.
During this meeting, Mr X was told Ms Y had actually been receiving 37.5 shared and 52.5 1:1 care hours as well as 21 night hours per week. It was noted the staff at the supported living facility said this was sufficient to meet Ms Y’s needs and there was no evidence Ms Y required more support than she was currently receiving. However, Mr X said he had only agreed for Ms Y to move into the assisted living facility based on the Council confirming she would receive 58 hours of 1:1 care per week.
The Council explained that after it confirmed the 1:1 and shared care hours Ms Y would receive, senior management had decided to review this at a consistent practice meeting. They had then decided Ms Y’s support needs could be met in a different way and changed the ratio of 1:1 and shared care hours. The Council said, having reviewed Ms Y’s care and support needs, it believed the package of care she had been receiving was sufficient and did not need to be changed at present.
The Council produced a new care and support plan for Ms Y in January 2024. This reflected the findings of the care assessment and accounted for a personal budget to meet Ms Y’s care needs. It recorded Ms Y would receive 52.5 shared and 37.5 1:1 care hours, with 21 hours of night support per week. The plan noted this had started from 23 July 2022.
Mr X complained to the Council saying he was unhappy it had reduced Ms Y’s 1:1 care hours without consulting him as this had a significant influence on his decision to move Ms Y to an assisted living facility. Mr X said he felt the Council had deliberately deceived him.
The Council responded to Mr X’s complaint, apologising for not having consulted him before changing Ms Y’s care hours. The Council said this was an oversight, but not down to deceit or secrecy. The Council said the care Ms Y was currently receiving was sufficient to meet her needs, but it would review this if things changed in the future.
Mr X asked the Council to review his complaint as it had never explained the reasons for changing Ms Y’s care hours or how it had reached this decision. Mr X said this decision was driven by cost rather than Ms Y’s care needs. Mr X said 58 hours of 1:1 care per week was a big factor in his decision-making. Mr X reiterated that he felt the Council had been dishonest and deliberately not informed him of its decision to reduce the 1:1 care hours. Mr X expressed concern that once more people moved into the assisted living facility, the staff capacity to meet Ms Y’s support needs within the shared hours would be reduced.
The Council responded to Mr X’s complaint explaining, while it had originally agreed 58 hours of 1:1 support per week, it had spoken to the assisted living facility and agreed 52.5 hours was sufficient to meet Ms Y’s needs. It apologised that this was not communicated with Mr X at the time but reiterated there was no deliberate deception. The Council said Ms Y’s current support needs were being met but it would keep this under review.
In response to our enquiries the Council said: It had not previously used the assisted living facility Ms Y moved into and so it decided to explore what care needs could be met with increased shared hours to avoid paying for voids.
It was wrong to have told Mr X there was an agreement in place for 32 hours of shared and 58 hours of 1:1 care, with 21 hours of night support per week. However, Ms Y’s support plan reflected the correct breakdown of shared and 1:1 hours.
Ms Y has actually been receiving 52.5 shared and 37.5 1:1 care hours, plus 21 hours of night support per week, as set out in her care and support plan. Any reference to 37.5 shared and 52.5 1:1 care hours has been in error.
Analysis Care packages are based on the needs of the individual and it is not the role of the Ombudsman to say what care and support is appropriate. Rather, we must consider the process the Council followed when deciding what package of care is sufficient for meeting someone’s assessed needs. We cannot find the Council at fault simply because Mr X disagrees with the care hours the Council has decided are appropriate to meet Ms Y’s needs.
The Council correctly assessed Ms Y’s care needs, what support she already had in place, and what support she needed. This assessment formed the basis of the Council’s discussions with the assisted living facility and the decision on how many 1:1 and how many shared care hours Ms Y needed. I do not find the Council at fault here.
The care assessment that was completed in November 2023 shows the carers at the assisted living facility felt Ms Y was receiving the right level of care and support. The carers would be best placed to assess if Ms Y needed any additional 1:1 hours and so, I cannot find the Council at fault for maintaining the support at the level Ms Y was receiving to that point.
I appreciate Mr X’s point that if more residents move into the shared living facility, the staff are likely to be more stretched in terms of the support they can provide within shared hours. However, I cannot find the Council at fault for issues that might occur in the future. If Ms Y’s support needs or circumstances change and can no longer be met within the assigned 1:1 and shared hours, the Council would be expected to review this at that point.
However, the Council had a duty to involve Mr X in its decision-making and to provide accurate and up to date information. The Council wrote to Mr X in March 2022 to confirm it had approved 58 hours of 1:1 and 32 hours of shared care, and 21 hours of night support per week. This was incorrect information, which is fault. Mr X was caused considerable uncertainty when he found out this was incorrect as Ms Y had already been in the assisted living facility and receiving different levels of care than he had been led to believe for around three months.
Once Mr X complained to the Council it told him Ms Y had actually been receiving 52.5 hours of 1:1 and 37.5 hours of shared care, and 21 hours of night support per week. However, this was also incorrect. Ms Y’s care and support plan set out the correct figures of 37.5 hours of 1:1, 52.5 hours of shared care, and 21 hours of night support per week, but the Council repeatedly gave Mr X the wrong figures. This is fault and caused considerable uncertainty for Mr X, which is injustice.
Mr X has said he believes the Council deliberately deceived him and he feels its decision-making was driven by costs, rather than what was right for Ms Y. I can understand Mr X’s concerns here, particularly as the Council continued to give incorrect figures even after he complained to it, but I have seen no evidence that this is the case. From what I have seen so far, the Council’s errors seem to be down to oversight rather than a deliberate attempt to mislead Mr X.
Agreed action
To recognise the injustice caused by the faults identified above, the Council has agreed to, within one month: Provide Mr X and Ms Y with a written apology for the injustice identified above; and Pay Mr X £350 to recognise the distress and uncertainty he would have been caused by the Council repeatedly giving him incorrect information about the care and support Ms Y was receiving.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I find the Council at fault for providing incorrect information about the support hours Ms Y would receive following her move to an assisted living facility. The Council has accepted the recommendations set out above and I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman