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Cornwall Council (18 018 350)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 28 Oct 2019

The Ombudsman's final decision:

Summary: Ms X complains on behalf of Ms Z that the Council delayed completing a care plan of her assessed eligible needs and in making payments. There was delay by the Council in this case and although Ms Z’s placement was secure due to the dedication of her carer, she did experience distress and anxiety as a result. A suitable remedy for the injustice cause by the fault in this case is agreed.

The complaint

  1. Ms X, on behalf of Ms Z, complains the Council failed to meet its statutory duty for vulnerable adults. It delayed in completing a care plan of her assessed eligible needs and making payments.
  2. Ms X says the delay caused uncertainty and anxiety for Ms Z.

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What I have investigated

  1. I have only investigated a complaint made on behalf of Ms Z about the delay in completing a care plan and making direct payments. I can only consider the injustice caused to Ms Z as a result of any fault by the Council and not the impact on anyone else including her carer, Mrs Y. I explain at paragraph 35 below what I have not investigated.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by the complainant’s representative;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with the complainant’s representative;
    • sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

  1. Ms Z is a disabled adult with autism who requires 24 hour care. Ms X, a solicitor is her legal representative and holds a Lasting Power of Attorney for Ms Z.
  2. Ms Z was living with a carer in a shared lives placement. The shared lives carer gave notice on the placement in January 2017 as she was moving to another area. Ms Z attends a day centre run by Mrs Y. Mrs Y had also provided respite care. It was agreed Mrs Y would become a shared lives carer and Ms Z would move to live with Mrs Y. Ms Z moved in March 2017 with the agreement of her family.
  3. The Council did not immediately carry out a new care assessment for Ms Z. In April Ms Z’s father asked the Council to provide an advocate to ensure she was properly represented and understood in all decisions about her living arrangements. Ms X says Ms Z needed a speech and language therapist to assist her. She found her own private therapist due to delay in one being appointed.
  4. In June 2017, Mrs Y was de-registered as a shared lives carer. Ms Z continued to live with Mrs Y. In July 2017, the Council completed a review of Ms Z’s care needs. It decided her needs remained the same but that it needed to look again at the situation because the care provision had changed.
  5. In August 2017, Mrs Y provides a copy of the tenancy agreement between herself and Ms Z and makes a claim for housing benefit.
  6. In September 2017, Ms X writes to the Council with details of the costs of Ms Z’s care which is being provided by Mrs Y. Ms X said the total care costs were £1,198.73 per week which included 39 night time hours, 72 day time hours, day centre fees and 48 days respite. The Council responded to Ms X saying the funding panel may not consider this viable as this level of care using a shared lives carer would be £778.22. The Council suggested Mrs Y may want to consider providing some care informally to reduce the cost of the package.
  7. The funding panel said it wanted evidence to show that all options for Ms Z’s care had been considered. It also wanted a cost/benefit analysis of each option. The Council contacted Ms X and asked if another meeting could be arranged to explore different options with Ms X in order to provide information for the panel.
  8. The Council visited Ms Z in October to discuss different care options and Ms Z’s understanding of her care and support needs. The Council took the view that Ms Z lacked capacity around her care and support needs. It did not conduct a formal capacity assessment to reach this view. This led into a discussion about deprivation of liberty because it was agreed that if Ms Z left the house someone would follow her.
  9. In November, Mrs Y contacted the Council about her caring role. She said she had been advised that any care she provided should be paid for. However she was prepared to accept the Council’s definition of formal and informal care in order to comply with the previous funding level provided to Ms Z. Mrs Y also said she did not need a carer’s assessment.
  10. The funding decision was escalated to senior management panel for consideration. The Council told Ms X that it now had enough information for the panel to make a reasoned funding decision but that there were outstanding social work interventions. The related to Ms Z’s understanding of her care needs and the potential deprivation of liberty. The Council said another meeting would be required.
  11. The funding panel made a decision on 15 November 2017. It did not agree to fund the direct payments but said a shared lives package should be offered. The decision was not notified to Ms X.
  12. Ms X contacted the Council on 27 November asking for the decision of the funding panel. She also sought clarity about what would be discussed with Ms Z at the further meeting arranged for the following week. The Council provided details of the issues they wanted to discuss with Ms Z.
  13. The case notes show Ms X telephoned the Council on the 30 November, the morning of the arranged meeting to discuss Ms Z’s understanding of her care needs. Ms X said she had not yet received the outcome of the panel meeting or a copy of the care plan as previously requested. She said the meeting could not go ahead unless this information was provided.
  14. The next entry on the case notes is dated 20 December and refers to a phone call to the duty social worker from a Council legal officer about funding issues. The next entry on the case notes is an email dated 13 February from a social worker to Ms X. In the email the social works says he is aware the Council has now issued a written funding decision and asks if they can now meeting to discuss the outstanding social work actions. On the basis of this information, I can only assume the requested information was not provided on 30 November and the meeting did not go ahead.
  15. The case notes indicate a new social worker was appointed in April 2018 and that following this a new assessment was being carried out. The issue of a community deprivation of liberty application was also still outstanding.
  16. Ms X made a formal complaint to the Council on 6 June 2018. The Council’s formal response was sent on 6 September 2018. Ms X’s complaint included issues relating to the day centre run by Mrs Y which are not part of this investigation. The Council did uphold a complaint about late payments.

Analysis

  1. Ms Z’s shared lives placement ended because the carer gave notice. The information provided shows the Council took action to find alternative care for Ms Z. Mrs Y was known to Ms Z and had previously provided respite care. It seems everyone was happy with the decision that Ms Z should live with Mrs Y and that she would be her carer.
  2. The information suggests Mrs Y was initially a shared lives carer. However, she was later de-registered which meant Ms Z’s placement would have to be financed differently. It seems the option was either to find another shared lives placement for Ms Z or to finance her placement with Mrs Y using direct payments.
  3. Mrs Y’s de-registration happened in June 2017. I do not have an exact date for when the Council agreed to make direct payments to Ms Z but it was sometime after November 2017. The evidence provided shows that no actual payments were made until 10 May 2018, over a year after Ms Z first lived with Mrs Y.
  4. I consider the time taken to agree and pay direct payments to be fault. The information provided shows Ms Z lived with Mrs Y for this whole period and that Mrs Y provided care even though she was not being paid. There is evidence to suggest some housing benefit may have been paid but it is clear that Mrs Y provided full time care for Ms Z for over a year without being paid.
  5. I have to consider how Ms Z has been affected as a result of this delay. As I am not investigating a complaint on behalf of Mrs Y I cannot consider how she was affected.
  6. The information provided indicates Mrs Y is a very dedicated carer and there is no evidence to suggest she ever said the placement would end because payments had not been paid. While Mrs Y did all she could to reassure Ms Z she would continue to care for her, I am satisfied the delay by the Council in finalising the financial arrangements caused anxiety to Ms Z. As she was involved in meetings with the Council and Ms X, she had an awareness that matters were not resolved. This could have been prevented if the Council had acted more quickly.
  7. The complaint also concerns the care planning process. Ms Z had a care plan in place when she moved from the previous shared lives carer. The document provided to me indicates this assessment was completed in 2015. The Council carried out a review of Ms Z’s care needs in July 2018.
  8. A council should review a person’s care needs on an annual basis. The documents provided in this case suggest this has not always happened. This is fault. However, no complaint has been made suggesting Ms Z’s eligible care needs have not been met. When I spoke to Ms X she was very complimentary about the care provided to Ms Z by Mrs Y. I am satisfied that there has been regular contact between Ms Z and the Council while the issues with funding were ongoing. There is nothing to suggest any concerns were raised on behalf of Ms Z about the care received.
  9. I note the assessment in July 2018 mentioned the need for a community deprivation of liberty assessment. This was an ongoing issue at the same time as the delay over the direct payments. It is not clear to me if this has been completed.
  10. It appears that there was a lack of case recording from November 2017 onwards. I cannot be certain about this as it could be that the notes are correct and reflect a lack of action during that period.

Agreed action

  1. To remedy the injustice caused to Ms Z as a result of fault by the Council, it should, within one month of my final decision:
    • Apologise to Ms Z;
    • Pay Ms Z £300 to recognise the anxiety she experienced by the Council’s delay;
    • Provide evidence to show it has resolved the deprivation of liberty issues; and
    • Take action to ensure case notes are properly recorded and staff have adequate training to ensure this happens.

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Final decision

  1. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Parts of the complaint that I did not investigate

  1. The complaint letter from Ms X mentions issues relating to the day centre run by Mrs Y. Her letter also refers to the impact the delay had on Mrs Y. I do not have any authority to consider a complaint from Ms X on behalf of Mrs Y. The Ombudsman may be able to consider how Mrs Y has been affected but she would need to make a separate complaint.

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Investigator's decision on behalf of the Ombudsman

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