Decision : Upheld
Decision date : 11 Sep 2019
The Ombudsman's final decision:
Summary: Miss J complains about the Council’s handling of concerns about the care and support she receives. Miss J feels the Council is discriminatory as it will not cover her full hair care costs, which are higher because of her ethnicity. Miss J is unhappy with the quality of care she received from the Council commissioned care provider. Miss J also complains about the Council’s decision to refer arrears she owes for her care to a debt collection agency. The Council has accepted its handling was incorrect in Miss J’s case and has offered to reimburse her hair care costs and write off the arrears she owes. The Council has agreed to the Ombudsman’s recommendations to address the other faults identified.
- Miss J complains about the Council’s handling of her concerns about the care and support she receives. Miss J feels the Council is discriminatory as it will not cover her full hair care costs, which are higher because of her ethnicity. Miss J is also unhappy with the quality of care she receives from the Council commissioned care provider. She says carers are regularly late or are unable to provide all the hours of support she should receive to meet her needs. Miss J also complains about the Council’s decision to refer the care fee arrears it says she owes to a debt collection agency.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
- 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)
How I considered this complaint
- I have spoken to Miss J and considered the information she provided.
- I have considered the information the Council has provided in response to my enquiries and also taken account of information the Council publishes on its website about Equality and Diversity, its complaints procedure and the Leeds Homecare customer charter, which sets out the standard of service people should receive from care providers arranged by the Council.
- I have written to Miss J and the Council with my draft decision and considered their comments. I asked the Council to obtain comments from the Care Provider and I have considered its comments.
What I found
- Councils must complete a financial assessment to find out what, if any, financial contribution a person receiving care support can afford to make towards their care costs. A person’s weekly income should not go below the Minimum Income Guarantee set by the Government as a result of their contribution to their care costs.
- Councils can take disability benefits into account when deciding how much a person can contribute. If they do, they must discount any expenses that directly meet any disability related needs they are not meeting. This is disability-related expenditure (DRE).
- There is no set list of what should be considered as DRE as this will depend on the individual needs of the person. The Care and Support Statutory Guidance provides a list of examples for councils to include, but confirms the list is not exhaustive. The Council should include any reasonable extra costs directly related to a person’s disability.
- Miss J was diagnosed with rheumatoid arthritis as a child. She lives in an adapted property with her young daughter. Miss J’s health condition means she is unable to lift her arms above her shoulders and uses a wheelchair to get around.
- The Council has supported Miss J for several years with a complex care package. Miss J is supported in her home daily by a care agency (Reed Community Care) the Council has commissioned. Miss J receives 68 and a half hours of commissioned care per week to help with daily tasks such as personal care, cleaning, food preparation and caring for her daughter. Sometime in late 2017, the carer trained to meet Miss J’s full hair care needs moved to another post and was unable to continue supporting Miss J and her daughter.
- In November 2017, the Council completed a financial assessment to review the amount of DRE Miss J should receive and how much she should contribute towards her care costs. This assessment calculated Miss J’s contribution should be £18.09 per week based on her income. The Council advised Miss J it was unable to include her hair care costs of £25 per week as DRE because its policy only allows for hair washing at a maximum cost of £10 per week.
- Miss J contacted the Council to explain that her hair care costs were higher because of her Afro-Caribbean heritage. She said her health condition meant she was unable to maintain her and her daughter’s hair daily and had to get a hairdresser to wash and braid their hair weekly. Miss J explained the various stages involved in maintaining Afro-Caribbean hair to ensure it stayed clean and healthy, which included braiding to minimise the amount of daily upkeep and stress caused to the hair and scalp. Miss J asked the Council to reconsider the financial assessment which she said was discriminatory to her and other people of Afro-Caribbean origin.
- The Council responded to Miss J and explained that it understood from her most recent care and support plan that she did not require help to shower and wash her hair. The team manager responding to Miss J said they had consulted Miss J’s social worker and Afro-Caribbean colleagues to help gain a better understanding of the issue Miss J raised about hair braiding. The team manager noted from her colleagues that braiding was not required to maintain Afro-Caribbean hair and could therefore not consider this method of hairstyling as a DRE. While the team manager apologised for any offence caused, they concluded Miss J had not been discriminated against during the financial assessment and were unable to uphold her appeal against the decision to include her hair care costs as DRE.
- Miss J approached her Member of Parliament (MP) about this issue shortly after receiving the Council’s response. The MP wrote to the Council to ask it to reconsider its decision given Miss J’s view that braiding was the easiest and most practical way of managing and keeping her hair hygienic.
- The Council responded to Miss J’s MP and said there were enough hours in her care package to enable carers to meet her hair care needs in full. The Council explained that the commissioned care provider was finding it difficult to recruit carers with the skills to attend to all Miss J’s hair care needs. The Council advised the MP that Miss J’s social worker would be discussing with the care provider the possibility of training a suitable carer to meet this need, which it hoped would resolve the issue but could take some time to implement.
- Miss J contacted the Council again to express her dissatisfaction at the outcome of the financial assessment. Miss J told the team manager she found the comments in their previous response insulting and degrading. Miss J said the method the team manager had used to further their understanding of the issue was inappropriate and did not take account of Miss J’s individual needs or circumstances. Miss J also clarified that she could not wash her own hair and requested another appeal against the decision to refuse her hair care costs as DRE.
- The same manager responded to Miss J’s correspondence three months later. They apologised for the delay in responding and provided further answers to the concerns Miss J had raised. They explained the Council’s Charging Policy had been subject to an Equality Impact Assessment which did not identify evidence of an adverse impact on any group or individuals with protected characteristics. The manager went on to confirm they had seen the Council’s response to Miss J’s MP and suggested she should raise any concerns about the commissioned care provider meeting her hair care needs with her social worker. The manager upheld their decision not to cover Miss J’s hair care costs as DRE and signposted her to the Ombudsman if she remained dissatisfied.
- The Council wrote to Miss J when it received notification from the Ombudsman that she had escalated her complaint about the financial assessment. The Council apologised that Miss J was not given the opportunity to request a senior manager’s review of the financial assessment decision in line with the Council’s appeal procedure. The Council noted Miss J’s care and support plan included provision for carers to meet her hair care needs but understood the care provider had been unable to provide suitably trained carers to meet this need in full for some time. The Council accepted Miss J’s receipts showing her hair care costs and decided to allow the maximum £10 per week DRE for hair washing. The Council agreed to backdate the weekly DRE allowance for hair washing to the date Miss J was first invoiced to contribute to her care costs. It also confirmed her ongoing contribution to care costs would be reduced until her hair care needs could be met in full by her carers. The Council maintained it could not cover Miss J’s entire hair care costs as DRE.
Quality of commissioned care
- Miss J started to raise concerns with the Council about the commissioned care provider in November 2017. She reported problems with one carer being unreliable and another carer smelling of alcohol. Miss J also reported issues with carers regularly arriving late and leaving early. Part of Miss J’s care package is to support her with parenting. The delayed arrival of carers in the morning meant her daughter was often late for school and had to go to school without breakfast because carers did not have enough time to prepare this when they arrived. Miss J says she has had to rely on relatives to help with getting her daughter to school when carers have been late and there has been at least one occasion when her daughter was left waiting for over an hour after school to be collected.
- The Council and the care provider tried to resolve the issues Miss J had experienced with carers when it met with her in January and May 2018. The care provider’s investigation into a carer smelling of alcohol was inconclusive. The Council agreed for Miss J to bank hours of missed care to use when she needed more help with caring for her daughter during school holidays for example. Miss J stressed to the Council that she did not want her daughter to become a young carer as a result of the gaps in the support Miss J received from the care provider.
- In October 2018, Miss J had to raise concerns with the Council again as carers continued arriving late or missing appointments. Miss J provided the Council with her notes of the times and dates when there were issues with carers, which it referred to the care provider.
- Miss J contacted the Council again in February 2019 as she continued to have issues with carers. She listed times between August 2018 and the beginning of December 2018 when there had been problems with lateness, missed appointments or reduced hours of care. The care provider gave its comments in response to each occasion Miss J had recorded and tried to explain what had gone wrong. It had taken some carers off Miss J’s package as they could not reach her house at the time needed to take her daughter to school on time. The manager from the care provider said they had been in contact with Miss J from November 2018 to ensure her care needs were met over Christmas and New Year, which had been achieved without any issues. The manager said they had also started to monitor the hours of care Miss J received since January 2019.
- Miss J asked the Council for a review of her care and support plan to deal with the issues about her hair care and the quality of care. The Council arranged to meet with Miss J in March 2019 for the review. This meeting had to be rescheduled to May 2019 so that Miss J’s advocate was able to attend.
- The Council met with Miss J and two of the care provider’s managers in May 2019. The managers apologised to Miss J for the issues she had experienced with carers being late or missing shifts. Miss J had since met with the care provider to agree an amended schedule of support, so carers were clear on the tasks Miss J needed help with. One of the managers attending the meeting reported they were now speaking to Miss J by telephone at the beginning of every week and meeting with Miss J every fortnight to discuss and resolve any issues as they occurred. The care provider asked Miss J if she would prefer a larger pool of carers to cover shifts so there was less chance of missed hours or a small pool of carers who could provide consistency of support. Miss J said she would prefer a larger pool of carers so shifts were at least covered. The care provider’s managers confirmed they would be available to cover any shifts that were cancelled at short notice. The Council noted Miss J had accrued 123 hours of missed care between June 2017 and March 2019, which Miss J was able to use flexibly to provide more support on specific days if needed. Miss J was also able to discuss with the Council and care provider other areas where she might like support, for example for going on holiday or taking her daughter to swimming.
- Miss J stopped making payments towards her care costs in November 2017, when she first reported having problems with the commissioned care provider to the Council. The Council adjusted the amount Miss J owed in March 2019 when it agreed to allow the £10 per week DRE for hair washing. Miss J’s outstanding debt for care costs was reduced from £1,332 to £612. The Council referred the outstanding arrears to a debt collection agency who has since returned the matter to the Council as Miss J has refused to pay.
- Miss J feels the Council should not have instructed the debt collection agency to pursue her for a contribution to her care costs while she is in dispute with it about the quality of care she has received. She found the experience of agents visiting her property to collect the debt distressing.
Was there fault causing injustice?
- The Council has assessed Miss J and her daughter’s hair care, including braiding, as an eligible need in her care and support plan. When the care provider was no longer able to meet this need, Miss J’s asked the Council to agree for her hairdressing costs to be classed as DRE. Miss J’s request should have been referred to her social worker to initiate a review of Miss J’s care and support plan rather than a financial assessment of her contribution towards her care costs. The lack of a joined-up approach and communication between the financial assessment and adult social care teams in Miss J’s case meant this error was not identified sooner. This is fault and caused avoidable distress and frustration to Miss J.
- When Miss J appealed the Council’s decision to refuse her hairdressing costs as DRE, this should have been considered by a senior manager. The Council was at fault when the same officer reviewed and responded to Miss J’s appeals. The Council only realised and corrected this error when the Ombudsman notified it Miss J had escalated her complaint to us. The Council’s delay in identifying its error put Miss J to further inconvenience which could have been avoided.
- The Council’s DRE policy and the Care and Support Statutory Guidance both state that each person should be assessed on their individual needs and circumstances. There is no exhaustive list of items a council should include as DRE. The Council was at fault as it fettered its discretion when it refused to consider allowing a higher amount of DRE for Miss J’s hair care costs based on her individual needs and circumstances.
- The Council’s responses to Miss J’s appeals against the financial assessment included reference to research the Council undertook to better understand Afro-Caribbean hair care, which Miss J found offensive. The approach the Council took of asking Afro-Caribbean colleagues was fault as it failed to take account of Miss J’s individual needs and caused unnecessary distress and offence.
- There have been persistent issues with the hours of care Miss J has received since November 2017. It is disappointing that the Council and care providers’ earlier efforts to resolve the problems Miss J reported have been unsuccessful. The Council’s agreement for Miss J to bank the hours of care that has been missed will no doubt help as Miss J will be able to use those hours flexibly. This goes some way towards remedying the difficulties she and her daughter have experienced. The Council says Miss J has reported that things have improved since February 2019. The Council remains responsible for the care provider’s delivery of Miss J’s care package and needs to ensure it regularly monitors the effectiveness of the measures the care provider has now put in place to deal with any further missed, late or shorter visits in Miss J’s case. The hours Miss J has banked is considerable and concerted efforts need to be made to avoid this happening again.
- The Council’s financial assistance policy states it will pursue people who fail to pay the contributions towards their care costs and this action may include taking the individual to court to recover the arrears. Although the Council complied with its policy in Miss J’s case by pursuing the arrears, it is disappointing that more was not done to recognise the link between her non-payment and the issues she was experiencing with the quality of her care. The distress Miss J experienced from receiving contact and visits to her home from debt collection agents might have been avoided if the Council had resolved the issues she was having with her care sooner.
- The Council has said it made an error by continuing to send invoices for care costs to Miss J while the Ombudsman investigated her complaints. The Council identified this oversight when it received my draft decision. It has apologised to Miss J for the error and for the distress caused and highlighted the error to colleagues in relevant teams to help avoid repetition. While this is fault, the Council has already taken the steps I would have recommended to remedy the distress.
- The Council’s equality and diversity policy states it will deal with all complaints of discrimination, harassment or victimisation promptly and with sensitivity to all those involved. Miss J expressed concerns of discrimination in her appeals against the financial assessment decision. I would have expected the Council to have identified this as a complaint of discrimination and sought to deal with Miss J’s concerns in line with its complaints procedure. Separation of this issue and investigation by an officer independent of the team complained of may have given Miss J confidence that her concerns were being taken seriously and would be dealt with sensitively. The Council’s failure to do this added to Miss J’s distress and prompted her to ask her MP to intervene.
- The issues Miss J has had with missed and late care visits has also had an impact on her daughter. Miss J has said she is keen that her daughter does not become her young carer as she gets older. There is little evidence to show the Council has considered if it owes a duty to Miss J’s daughter under section 17 of the Children Act 1989 as a child in need. The Council should consider assessing whether Miss J’s daughter needs support as a young carer.
Council’s response to our enquiries
- We invite councils to consider an appropriate remedy to complaints when we make enquiries. The Council in Miss J’s case has accepted the faults described in paragraphs 30 to 35. It has offered to review Miss J’s care and support plan with a view to providing a direct payment to cover hair care costs, including braiding, for Miss J and her daughter. As part of this review, the Council has said it may reduce the hours of care Miss J receives by the equivalent amount to cover her and her daughter’s hairdressing costs. The Council will also cancel the DRE for hair washing as the entire cost of hair care will now be covered by a direct payment. The Council has also offered to reimburse the costs Miss J has already incurred in meeting her and her daughter’s hair care needs from when she first raised the issue on 25 November 2017.
- Because the Council allowed the £10 DRE for hair washing from 4 February 2019, it had already reduced the arrears Miss J owed for her care cost contributions by £760. The Council has said it will take this into account when calculating the reimbursement to Miss J for her and her daughter’s hair care.
- The Council has also offered to waive the remaining arrears of £612 Miss J owes towards her care costs. It says this is in recognition of the failure to resolve the issues with Miss J’s care and the time and trouble Miss J has gone to pursuing her complaint.
- While I commend the Council’s offer to remedy the injustice caused to Miss J, I do not consider this goes far enough. I have identified other faults with the Council’s handling that are not addressed by its proposals. I have detailed the further action I recommend the Council should take to address the remaining issues below.
- The Council has agreed to complete the following action in one month from the date of the final decision:
- make an apology to Miss J for the distress, time and trouble caused to her for the missed, late and shorter care visits and the handling of her and her daughter’s hair care needs;
- commence monthly monitoring of the care provider’s performance to ensure the measures it has put in place to address any concerns Miss J has with her care as they occur remain effective. The Council will review performance with Miss J after three months and continue to monitor monthly if necessary;
- issues a reminder to staff in the financial assessment team about the Council’s complaints procedure for dealing with complaints of discrimination; and,
- consider whether Miss J’s daughter needs to be assessed as a young carer and child in need under section 17 of the Children Act.
- The Council should also reimburse Miss J and her daughter’s hair care costs from 25 November 2017 and commence the review of Miss J’s care and support plan within one month of the final decision.
- I have completed the investigation and uphold Miss J’s complaint. Miss J has been caused an injustice by the actions of the Council and it has accepted my recommendations to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman