Summary: Mr B complained about the actions of the Council associated with the provision and funding of care for his father, Mr C.
We find no fault in respect of Mr B’s complaint about the funding of care between March and June 2020. The Council has already accepted there was some fault in its handling of other aspects of Mr C’s case and that this caused injustice. An improved remedy has been agreed in respect of this.

The complaint

1. The complainant, whom I shall call Mr B, complained on behalf of his late father Mr C that the Council failed to provide him with appropriate social care and support. He also complains specifically about a telephone conversation with a social worker in June 2020 about his father’s care. Mr B considers the Council should provide a written apology from a senior manager for a failure to provide services, and reimburse the cost of care for the period 28 March to 2 June 2020 and pay compensation.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.

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How I considered this complaint

5. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of all of the information and evidence it provided in response.
6. Mr B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received in response before making this final decision.

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What I found

Legal and administrative information

Assessment of care needs

7. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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. It must also involve the individual and where suitable their carer or any other person they might want involved.

Care plan

8. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. 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.

Personal budgets

9. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. One of the ways in which a personal budget can be administered is as a direct payment. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.

Charging for social care services: the power to charge

10. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs.

Financial assessment

11. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care.

Third-party top-ups

12. Sometimes the full cost of the care chosen by the person is greater than the cost of the care the council has assessed in the personal budget. If a person chooses such care, the short fall between the personal budget and the full cost will have to be paid by a third party such as a relative or friend.

Background

13. On 27 July 2019, the Council received a referral for a social care assessment. On 8 August, the family contacted the Council about this: the family had arranged for Mr C to go into residential care for a couple of weeks. The Council said the case was awaiting allocation to a social worker and they would assess Mr C’s care needs once he was back in his own home. On 12 August, the family contacted the Council again: Mr C had only stayed in the care home until 11 August, and the family said it was now at breaking point and in urgent need of support. The Council’s record of this contact noted the case was awaiting allocation to a social worker, and a request that this be prioritised.
14. On 23 August 2019 the family called the Council again requesting urgent contact: the Council confirmed they would visit to assess Mr C’s needs on 28 August 2019.

First assessment of care needs

15. On 28 August 2019, a social worker visited to assess Mr C’s social care needs. Mr C wished to stay in his own home, and the family had arranged a live-in carer at a cost of £900 a week. The preliminary view of the social worker was that Mr C’s care needs could be met at home with three care calls a day. Mr B did not agree with this. He reported constantly being called to go to his father at night to attend to toileting issues.
16. Following the assessment visit Mr B made several calls to the Council, seeking a decision on funding of 24-hour care. The Council’s records of 4 September refer to a proposal for four to eight weeks live-in care with a view to reducing this to three care calls a day afterwards. As live-in care is not an option normally considered, this proposal was to be referred for agreement once costings were known. On 11 September, Mr C’s case was presented to the Council’s ‘prevention and enablement forum’, and recommendations included that the social worker should contact the health service about Mr C’s catheter issues and undiagnosed tremors; and that social worker should establish evidence from the current live-in carer of what was happening in respect of night-time care.
17. On the same day, 11 September, the Council visited to conduct a financial assessment. The following week the social worker visited to meet the live-in carer, and the assessment was updated to reflect the information gathered. The social worker’s view was Mr C’s needs could be met with four care calls a day, as night care was minimal: Mr C had said that three nights out of seven he struggled to sleep and needed to use the toilet more frequently; the live-in carer said he gets up at times in the night to support Mr C with his urine bag, and agreed Mr C had more good nights than bad ones. The social worker noted Mr C had agreed to consider a commode, which would mean he did need to disconnect his catheter bag and would reduce the risk of falls on walking to the toilet. The social worker updated Mr B with an indicative amount for direct payment.
18. Mr B was dissatisfied, and a complaint was made. At a meeting on 28 October 2019 the Council agreed that both Mr C and his wife, who also had care needs, should be allocated to the same social worker, and their needs reassessed. In the meantime a direct payment (DP) was agreed backdated to 27 July 2019, the date on which referral had been made for assessment. The weekly sum, including Mr C’s assessed contribution of £33, was £380.

Second assessment of care needs and increases in budget

19. On 19 November 2019, the assigned social worker reassessed Mr C’s needs. The assessment noted the view that needs could be met in a residential placement but were currently being met at home with live-in care, which was working well and Mr C wanted to continue with this. Care needs at this time were being partly funded by the DP, with the balance being paid as a top-up by the family. The Council noted that an increase in the DP amount was appropriate because Mr C met the criteria for a residential care placement but it was unable to place him due to the complexity of his needs (it was noted that he had had several placements which had not been successful, and his wish was to stay in his own home). The Council increased the DP to £591.75 a week, based on a residential care rate.
20. In January 2020 concerns were raised about the overnight carer being frequently disturbed and all care falling to that one carer. A review of Mr C’s needs was postponed as his wife was ill, and she subsequently passed away on 2 February 2020. The review meeting was further postponed due to restrictions imposed because of Covid19. The records note that Mr C was now on different medications which were said to be beneficial.
21. On 7 April 2020, the support plan noted the current plan was still appropriate and meeting Mr C’s needs, but due to an increase in the care provider’s fees an increased personal budget of £696.75 a week was agreed.

Changes of carer

22. Around this time, Mr C’s carer resigned from the agency which employed them. They were considering going on to work on a self-employed basis, but for contractual reasons they could not be re-employed by the family on that basis without penalty until September.
23. In the interim, Mr B therefore employed a temporary carer, X. However, this carer was not set up for self-employed work and was unable to provide the necessary paperwork in respect of his employment status. X was insisting on cash payments, and the sums which were accumulating in the DP account could not be used to pay him, and so Mr B was funding this himself. On 2 June Mr B contacted the Council to express his fears that X would not return from a planned period of leave on 11 June and if that happened Mr C would be left without care. On the same day, internal contact was made with brokerage seeking support to find a new care provider for Mr C. It was noted that the former carer could not be re-employed directly by the family until September, that Mr C currently had a DP of £696.75, and that Mr C’s family were no longer able to support him.
24. The Council found an agency which could provide appropriate support on a live-in basis at a cost of £1400 a week. The Council accepted this was a crisis situation and so agreement was sought for this, initially for a four-week period while any other options could be explored. However, the Council then established the cost for waking nights (where a carer is available day and night) would in fact be £3,500 a week, which it considered would not be sustainable for this type of care and support.
25. On 5 June 2020, the social worker called Mr B to discuss this. He subsequently complained about that call: I will return to this matter later in this statement.
26. On 8 June, Mr C’s case was allocated to a senior social worker. There was a further phone call with Mr B around his continued concerns that his father might be left without care from 11 June. Between 11 and 19 June, Mr C was in a residential care placement arranged by his family. He had been due to stay until 25 June, but he asked his family to bring him home. There was no carer in place as he was not due to be at home, and so the family arranged for a private carer to live-in until care sourced by the Council began on 25 June. Funding of £1400 a week was agreed.
27. The family subsequently complained about poor hygiene practices and other issues with the Council-sourced agency carer who had been in place from 25 June. The Council dealt with this as a safeguarding issue and the matter was referred the Care Quality Commission. The Council’s safeguarding enquiry was closed in August 2020, when the Council was satisfied with the provider agency’s actions which included re-training for this carer.
28. The care agency did not have anyone suitable as an immediate replacement, so the Council needed to look for another provider. A carer was found, and Mr B advised the Council he had someone who could support Mr C for a few days until the new carer could start. At review in August the care arrangements were said to be working well, and the funding agreement of £1400 a week continued.
29. Mr C passed away on 16 October 2020.

Mr B’s complaint about the telephone call on 5 June 2020

30. On 6 June, Mr B complained about the telephone call he had had with the social worker the previous day. He said the social worker had effectively said no to the care package requested, had told him he should think about the care Mr C needed, and had terminated the call. The Council says the social worker was upset at the anger being directed at her during the call, and spoke with her manager immediately afterwards about this. In its final response to the complaint the Council it had reviewed its case notes and emails exchanged between Mr B and the social worker, and was satisfied that the social worker did what was expected of her to support Mr B and his father.

Analysis

31. The telephone call referred to above was not recorded. In the absence of evidence in this matter I cannot reach a clear enough view on what happened to determine whether there was fault.
32. It is clear that Mr B was invested in seeking to ensure his father had appropriate care in his own home, in accordance with his wishes, and that this care was appropriately funded. In response to an earlier complaint, in 2019, the Council accepted:

• Communications with Mr B and his family had not led to clear or straightforward responses about the interventions the Council intended to take;
• There had been delay in allocating their parents’ cases to social workers;
• That Mr C had been caused distress during a social worker’s visit to gather information, because they did not involve him from the outset and he did not understand the reasons for the visit;
• That it had wrongly stated Mr B had declined to meet with DP team, which was not the case; and
• That its previous complaint response had not addressed all points.

33. The Council apologised for what it referred to as significant distress caused as a result.
34. Insofar as other matters are concerned regarding the Council’s actions in respect of the assessment of Mr C’s care needs and funding to meet those needs, the principal period Mr B is concerned with is 28 March to 2 June 2020: his desired outcome from his complaint is that the Council should reimburse costs incurred in that period and pay compensation.
35. Mr B and Mr C had both signed the Council’s agreement in respect of DPs, and in so doing agreed to carry out the responsibilities involved in DPs which includes ensuring DPs are used lawfully. In respect of self-employed carers, the agreement states the customer should request evidence that they are registered with HM Revenue and Customs as self employed for the specific type of work being undertaken. As noted above, DPs allow those in need of support to commission their own care and support to meet their eligible needs, and the carer in the period 28 March to 2 June 2020 was arranged by Mr B. The carer wanted cash payments and was not able to provide necessary documentation in respect of his self-employed status. So while the Council continued to pay into the DP account, as X could not verify his self-employed status to meet the requirements of the DP agreement, the Council was not liable to make funds available to meet his charges. It was therefore not at fault in refusing to reimburse Mr B for the sums paid to X in that period.
36. When Mr C passed away the DP account was closed. There were accumulated funds in the DP account which Mr B could no longer access. Mr B reports that consequently he has been unable to settle an outstanding invoice for residential care for the period 30 September to 16 October 2020, in the sum of £3,132.38. He has questioned why the Council has not paid this invoice. The Council cannot pay a residential home direct where there was DP in place, and it says that it has provided Mr B with an indemnity form to sign so that funds can be released to him to allow him to pay this outstanding invoice.

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Agreed action

37. In respect of the injustice referred to at paragraph 33 above, I recommended that within four weeks of the date of the decision on this complaint the Council pays Mr B £250.
38. The Council has agreed to my recommendation.
39. For the reasons given at paragraph 35, I make no recommendation for a payment in respect of the period 28 March to 2 June 2020.

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Final decision

40. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman