Summary: The Ombudsman finds fault with the Council for not fully explaining its brokerage system for care. This caused unnecessary uncertainty to the complainants. The Ombudsman does not uphold the complaint the Council did not provide advice and information about care for the complainant in emergency circumstances.

The complaint

1. The complaints, whom I refer to as Mr & Mrs X, complain the Council did not provide the support needed when issues arose with their care. They complain the Council did not review their care or provide alternative care choices, and instead offered direct payments to source their own care. Mr & Mrs X complain that due to their needs and rural location, the only care alternative was more expensive, and as a result they have incurred top up fees. They feel the Council should have reviewed their care, and alternative care offered, or their personal budget adjusted.
2. Mr & Mrs X also complain the Council’s care plan for Mr X did not include provision for emergencies. They complain the Council did not provide information and advice about what to do in an emergency, and as such, Mr X did not have suitable support when Mrs X was admitted to hospital.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have considered Mr & Mrs X’s complaint and the information provided by their representative, Mrs A. I have also considered information from the Council. I considered any comments submitted on my draft decision.

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What I found

6. Mr & Mrs X live together in their home and received a package of care from the Council, provided by a private agency.
7. In 2016 the agency providing care to Mr X changed to a new agency. Between March 2018 and May 2019, Mr & Mrs X’s representative, Mrs A, made regular contact with the agency to advise they were unhappy with the standard of care Mr & Mrs X were receiving. This included concerns such as unsafe moving of Mr X, Mr X receiving injuries during care, staff not treating Mr X with dignity and respect, and different staff providing care.
8. In May 2018 Mrs A told the Council the care Mr X was receiving was not suitable and the family did not feel it could continue. Mrs A asked for a change of provider or if Mr & Mrs X could be provided with live in carers. The Council suggested that a meeting be held to discuss the issues the family were experiencing.
9. In August and September 2018, Mrs A again said the family did not think the care being received by the agency was suitable and wished to change the provider. Mrs A had found an alternative provider the family wished to use and asked whether the family would be entitled to receive direct payments.
10. In March 2019 Mrs A again told the Council the family were unhappy with the care being received and wished to change their care to the new provider that they had sourced. A meeting was agreed with the Council.
11. The Council reviewed Mr & Mrs X’s care in April 2019. Mrs A was also present at the review. The Council recorded that all agreed the current agency support was not working for the family, and that a new provider was needed. Mr & Mrs X wished to move to a new provider that Mrs A had already sourced. This provider was more expensive than the Council would normally commission.
12. In March 2020 Mrs A complained to the Council on behalf of Mr & Mrs X. She complained the Council had not fully reviewed Mr & Mrs X’s needs before offering direct payments. Mrs A felt that a full review would have shown Mr & Mrs X were entitled to a higher level of support that could only be provided by the agency Mrs A had sourced due to their rural location and Mr X’s needs. Mrs A complained the Council should have paid for a higher level of care, instead of providing direct payments and the family paying the top up.
13. In the Council’s complaint response, it said it was clear when it met with Mrs A and Mr & Mrs X the decision to move to a provider at a higher rate was made by the family, and not by the Council. The Council did not agree the care package needed by the family was out of the remit of other agencies. It said that it could have provided the package through the Council brokerage system and would not be meeting the cost of the added top up.
14. The Council recognised the issues with the previous care provider had not been included in the latest assessment of Mr X’s need and had discussed with practitioners how better to include this in assessments. However, the Council also said the family had tried to resolve the issues with the agency rather than with the Council, and the Council could not address issues it was not aware of.
15. In May 2020, Mrs X was admitted to Hospital. She remained in hospital for seven days. On the day she returned home, Mrs X made a referral to the Council for more support. The Council contacted the family the day after Mrs X’s return and arranged for added care. In June 2020, the Council reassessed Mr & Mrs X’s needs it was agreed their support would be provided by a live-in care service.
16. Mrs A complained the family had to source care and support for Mr X whilst Mrs X was in hospital. Mrs X provided some of Mr X’s care and his plan did not include contingencies for emergencies where she could not provide this.
17. The Council advised that it was not aware of Mrs X’s hospital stay until Mrs A contacted the Council on the day of Mrs X’s return. If Mrs A had contacted the Council when Mrs A was admitted, the Council may have been able to provide interim support. At first the Council refused to pay for the support Mrs A sourced for Mr X. However, it did reverse this decision and paid a sum of money calculated to be the cost of the support that would have been provided.
18. Mrs A complains the Council should pay the full cost of the interim care, and the family suffered significant injustice because Mr X’s care plan did not have contingencies for emergencies.

Analysis

Mrs & Mrs X’s care changing to direct payments

19. I have reviewed the information provided by Mrs A on behalf of Mr & Mrs X and information from the Council. I can see that Mr & Mrs X’s needs were reviewed in April 2019, and that a discussion was had about what care was suitable. The review shows the support would have been eligible for brokerage to another Council commissioned agency, and that the family had already sourced another provider of their own choosing.
20. The Council remains of the view that it would have been able to meet the family’s needs and had at least four agencies that could have been used. However, I have reviewed the records provided by the Council and have not seen evidence that it directly discussed the brokerage system with Mr & Mrs X or their family, only that direct payments and entitlement amounts were discussed.
21. The family had previously used direct payments for Mr & Mrs X’s care and were familiar with how to pay the top up. I agree with the Council that although the review did not reflect the poor care from the previous agency, it did show that Mr X’s needs had not changed significantly. It is likely that Mr X’s needs could be met by another agency acting for the Council, but on balance, I am not convinced that Mr & Mrs X were provided with the information on how to utilise the brokerage system.
22. The Council records show that the family had chosen an alternative care agency prior to the review. This agency would not have been commissioned via the brokerage system. I am of the view that even if the family had the correct information about the brokerage system, it is likely they would have still chosen to use the agency they had already sourced themselves.
23. Therefore, I find fault with the Council for not providing satisfactory information to Mr & Mrs X about its brokerage system. This would have caused them uncertainty about whether they were entitled to additional care. However, it is my view this fault would not have impacted Mr & Mrs X’s care choices.

Lack of support for Mr X in emergencies

24. The Council is of the view the family knew how to contact the Council and had previously done so to raise concerns and discuss the care that Mr & Mrs X were receiving. It says that if it had been contacted when Mrs X was admitted to hospital, it could have provided support for Mr X. This is the reason the Council decided to reverse its decision and pay money amounting to the cost of support that would have been provided.
25. However, Mrs A complains that Mr X’s care plan did not account for such emergencies and the family did not know what to do. Mrs A complains that she had no option but to source support themselves and incur the cost.
26. During my enquiries, I asked the Council for any leaflet or information for service users explaining what to do in such situations. The Council could not provide this and said it expects contact to be made with the Council when such events happen.
27. Council records show that Mr & Mrs X’s family contacted the Council several times previously as Mr & Mrs X had been receiving care and support for several years. I understand that when Mrs X was admitted to hospital, Mrs A’s priority would have been to seek care for Mr X. However, I do believe it reasonable for Mrs A or another representative to have contacted the Council before Mrs X’s discharge and advise that both needed support. This would have allowed the Council to implement extra support.
28. Assessments and care plans for eligible need to provide support for circumstances as they present themselves. It is not reasonable for plans to consider circumstances which may or may not happen in the future. The Council re-reviewed Mr & Mrs X’s eligible care needs in June 2019. The support package was changed as it recognised their eligible care needs had changed since Mrs X’s hospital stay.
29. Therefore, it is my view the remedy provided by the Council of repaying a sum of money to for the support that would have been provided a suitable remedy in this case.

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Agreed action

30. Within 4 weeks of my final decision, the Council has agreed to

• Apologise to Mr & Mrs X
• Pay a symbolic payment of £150 to Mr & Mrs X in recognition of the uncertainty caused to them by not providing sufficient information about the care brokerage system.
• Remind staff to give clear and concise information about the brokerage system when discussing decisions to change to direct payments.

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Final decision

31. I have now completed my investigation. I find fault with the Council for not fully explaining its brokerage system to Mr & Mrs X. This caused them uncertainty about their care choices. I do not find fault with the Council for not providing information and support to Mr X while Mrs X was in hospital.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman