Decision : Upheld
Decision date : 04 Sep 2019
The Ombudsman's final decision:
Summary: Mr D complains the Council failed to meet his care and support needs. The Ombudsman has found fault causing injustice. He Council has agreed to apologise and make a payment to Mr D to acknowledge the distress caused.
- Mr D complains the Council failed to meet his night time care needs from July 2018 to November 2018 and wrongly told him there was a ceiling on the amount of funding available for his care.
- As a result he had to privately fund care and fell and was caused pain at night. He says the situation has caused a lot of stress and inconvenience for him and family members. He now has little trust in his social worker and is concerned the Council will remove the temporary care currently in place.
- Mr D also complains about the way the Council dealt with his complaint. He says responses were late and his questions ignored.
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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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 considered the information Mr D sent to the Ombudsman, the Council’s response to my enquiries and:
- The Care Act 2014 (“the Act”)
- The Care and Support Statutory Guidance
- The Council’s procedure for adult social care complaints
What I found
- The Act requires local authorities to carry out an assessment 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.
- Where a local authority determines someone has eligible needs, it must meet those needs. Needs may be met through types of care and support which are available universally, for example, by putting a person in contact with a voluntary sector organisation.
Care and Support Plan
- The Act gives local authorities a legal responsibility to provide a care and support plan. The care and support plan should consider what 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 local authority must involve any carer the adult has. The support plan may 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.
- The Council’s process for complaints about adult social care services says a manager will either investigate the complaint or consider whether it should be investigated by someone independent of the service. The investigator will agree with the complainant a date when they will fully respond. If the complainant remains dissatisfied, a senior manager will review the response. They will aim to write to the complainant within 28 days.
- Mr D has cerebral palsy and requires care and support. He had been living with family in Council X’s area where he received direct payments to fund personal assistants.
- In July 2018 Mr D moved to the Council’s area and started living alone. He emailed the Council on 3 July 2018 requesting his care package be transferred. He said Council X had agreed to fund his direct payments for the first six weeks after his move. His personal assistants were continuing to provide the care set out in the care and support plan developed by Council X.
- A social worker visited Mr D on 1 August 2018 to assess his care and support needs. Mr D says he described his night time care needs that his family could no longer help with. This included helping him go to the toilet several times per night, repositioning him as he is unable to turn over without assistance, helping him when he was sick in the night, and helping him have a drink when necessary.
- The social worker produced a care and support plan which had a care package totalling 47.5 hours per week. This included 30 minutes of care each night for getting ready for bed.
- Mr D was concerned the package did not provide enough support during the night. He asked for funding for a carer to stay overnight for three nights a week, when he did not have family staying with him. On 25 September 2018, the social worker told Mr D that night care could not be funded as this would lead to the cost of Mr D’s care package exceeding the maximum ceiling of what is usually paid out for care, which was not in line with regulations.
- The Council proposed referring Mr D for an assessment for NHS continuing healthcare funding. It advised him to “make some savings from your community hours to pay for some night care in the meantime” and consult his GP about his night sickness, inability to turn over and his pain. On 5 October 2018, the Council clarified there was no ceiling on the funding for Mr D’s care package.
- Initially Mr D declined a NHS continuing healthcare assessment; he said it was the Council’s responsibility to meet his night care needs. He later agreed to it and he also contacted his GP. The Council referred Mr D to neurology, continence, and speech and language therapy services for assessment.
Mr D’s complaint
- Mr D complained to the Council on 9 October 2018 that it had failed to meet his night care needs. He also complained the Council had given him incorrect and contradictory information and had refused to answer his questions. He asked the Council to provide an emergency package of night care whilst he awaited the outcome of the continuing healthcare funding assessment. Mr D said he would take legal action if he had no response by 17 October 2018.
- Mr D noted the Council expected him to reduce his night care needs by approaching other services. He agreed to explore options and contact his GP but said he was not willing to over-medicate or use continence pads as he was not incontinent. Mr D said in the meantime he had eligible needs at night that were not being met. This left him in a vulnerable position; he had fallen whilst trying to go to the toilet alone, had been sick in bed with no help until the morning, and being unable to reposition himself had caused pain.
- Officer A wrote to Mr D on 16 November 2018 to say he would receive a response to his complaint in a week.
- On 28 November, Officer A responded to Mr D’s complaint. The Council accepted Mr D had eligible needs that affected him at night. The Council had asked Mr D to work with other professionals, but he had previously not co-operated, so the Council had been unable to carry out a full, holistic assessment of his needs. The Council agreed to fund night care three nights a week for three months, conditional upon Mr D co-operating with the assessments.
- Officer B wrote to Mr D on 30 November 2018 to say she would reply to his complaint by 21 December 2018. She wrote on 21 December confirming that Officer A’s earlier response had dealt with Mr D’s complaint.
- Mr D wrote to the Council on 18 January 2019. He said he was dissatisfied with the response and some of his queries had not been answered:
- Why was he told that there is a maximum ceiling of what is usually paid out for care?
- Why did his social worker avoid answering his questions and provide him with conflicting advice?
- Why had it taken so long to provide him with night care?
- What policy did Adult Social Care follow?
- Why had it taken so long to respond to his complaint?
- Why had he not received an apology for the mistakes that were made?
- The comment was retracted as soon as the manager became aware on 5 October 2019.
- The Council apologised for any confusion and failure to respond to Mr D’s emails
- Initially it was not clear that Mr D had gaps in his night care and Mr D had “wanted [time] to take in and think about what his holistic assessment would include”.
- The Council had followed the Care Act and its regulations.
- The Council apologised for the delay. It had prioritised putting in place Mr D’s temporary support and completing his holistic assessment.
- The Council had previously apologised to Mr D.
- The Ombudsman cannot decide what, if any, care and support a person needs. That is the Council’s role. My role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. I have therefore considered how the Council assessed Mr D’s needs and produced the care and support plan in August 2018.
- Mr D participated in the assessment. It describes his condition and says he is unable to mobilise independently without risk of falls and was eligible for care and support with all aspects of daily living. This includes personal care during the day and night. The assessment notes Mr D has digestive problems at night and needs support for personal care “frequently at nighttime”. There is no evidence of fault in the way the assessment was done.
- The care and support plan sets out the numbers of hours support Mr D required to meet his needs. This includes 30 minutes of help per night to undress and get into bed. There is no provision to support Mr D during the night. The plan does not make clear how the personal care night time needs identified in the assessment will be met.
- Given that in November 2018 the Council agreed to meet these needs three nights a week, I find there was fault in the care and support plan in August 2018 as it does not say how Mr D’s eligible night time needs will be met.
- The Council says it did not immediately fund night time care as it was carrying out a holistic assessment of Mr D’s needs, involving other professionals such as neurology. The Council should have met Mr D’s eligible needs whilst these assessments were being done. If Mr D’s needs changed following the involvement of other services, the Council could then re-assess him and change the care package if necessary.
- The Council failed to meet Mr D’s night care needs for three nights per week from July 2018 to November 2018. This has caused avoidable distress to Mr D; he had to privately fund some care and fell during the night.
- I realise Mr D is concerned the night care funding may be removed. The Council is entitled to re-assess his needs and review the care and support plan.
- The Council has accepted it was wrong to tell Mr D there was a limit to the amount funding it could provide for his care and support needs. I note it rectified this after ten days and apologised. I consider this is a proportionate remedy for the injustice caused.
- There was fault by the Council in the way it dealt with Mr D’s complaint. Whilst its procedure sets no timescales, it responded seven weeks after Mr D complained, which I consider to be too long, and its response did not deal with all of Mr D’s complaint. In addition, whilst Officer B also responded to Mr D’s complaint, there was no senior manager review after the Council became aware Mr D remained dissatisfied. This was fault. I note the Council has already apologised for the delay. However, Mr D had to chase the Council and seek help from an advocate to pursue his complaint, so I consider he was caused time and trouble.
- When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. I have instead considered the impact on Mr D of missing out on the night care.
- The Council has agreed to, within a month of my final decision:
- Apologise to Mr D and pay him £500 to acknowledge the impact on him of failing to meet his needs
- Pay him £100 to acknowledge the time and trouble he was caused
- There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman