Summary: Mrs D complained the Council delayed providing her with a copy of her late husband’s care and support plan. She also complained the Council failed to provide her with adequate information on direct payments, unreasonably sought repayment of the remaining direct payments funds and failed to facilitate care to enable her late husband to be discharged from hospital. We find the Council delayed providing Mrs D with a copy of her late husband’s care and support plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs D complained the Council delayed providing her with a copy of her late husband’s (Mr D) care and support plan. She says that when the Council eventually provided it, it was full of errors and showed a misunderstanding of Mr D’s care needs. She also says the Council failed to provide her with adequate information on direct payments and it unreasonably sought repayment for some of the direct payments funds. Mrs D complained the Council failed to facilitate care to enable Mr D to be discharged from hospital.
2. Mrs D says the Council’s actions have caused her avoidable distress and upset.

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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. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

5. 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

6. I considered information Mrs D submitted with her complaint. I made written enquiries of the Council and considered information it provided in response.
7. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

8. Councils have a duty under the Care Act 2014 to provide a care and support plan for a person who has eligible social care needs. They must write a care and support plan that explains how to meet the person’s eligible care needs. The care and support plan may include a personal budget. This is the money a council says it will cost to cover the person’s eligible needs.
9. People can choose to have direct payments from councils to help to cover eligible care costs. Direct payments are monetary payments made to individuals 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. Councils have a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
10. Care and support plans must explain which care needs can be met by direct payments.
11. Schedule 3 of the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 makes provisions for the discharge of hospital patients with care and support needs.
12. The NHS must issue a notice to a council where it considers an NHS hospital patient receiving care may need care and support as part of a transfer from a medical setting.
13. On receiving an assessment notice, councils must assess the person’s care and support needs and (where applicable) those of a carer to determine whether the patient and carer have needs. Councils must then decide whether any of the identified needs meet the eligibility criteria. If so, they should confirm how they propose to meet any of those needs. Councils must inform the NHS of the outcome of their assessments and decisions.

What happened

14. Mr D suffered from a spinal injury and a chronic inflammatory lung disease. Mrs D spoke to the Council on 3 May 2019 and said Mr D needed help because of his deteriorating health. The Council agreed to assess Mr D.
15. The Council visited Mr and Mrs D at their house on 16 May. Mr D explained he needed extra support because of his health issues. Mr and Mrs D agreed they would prefer to have direct payments as they wanted to choose their own personal assistant. The Council said it would complete an assessment on Mr D to determine his eligibility.
16. The Council completed a care and support plan for Mr D on 23 May. It identified that he needed help for personal care seven days a week. This consisted of 45 minutes of help in the morning and 30 minutes in the evening. The Council allocated a personal budget of £90.73 per week.
17. The Council issued a direct payments contract on 15 June. Mrs D contacted it on 27 June and said she was unhappy with the wording of the contract as it had not yet completed a financial assessment. It agreed to delay payment until it had issued a new contract.
18. The Council completed a financial assessment on 28 June and determined that Mr D would not need to contribute towards the cost of the direct payments.
19. The Council issued a revised direct payments contract on 2 July. Mr and Mrs D signed it on 6 July. The contract stated:

• Mr D would receive an annual personal budget of £4,717.96.
• The personal budget should be spent to meet the outcomes from Mr D’s care and support plan.
• Mr and Mrs D would need to keep bank statements and proof of expenditure regarding the personal budget money.
• The Council would claim back any unused funds.

20. Mrs D called the Council on 16 July. She said she had found a personal assistant to help Mr D. She also said she had not been able to pay the personal assistant as she had not received any money. The Council agreed to chase its Monitoring and Payments team.
21. The Council called Mrs D on 22 July and confirmed the money would be paid by the end of the week.
22. On 5 August, the Council completed a review of Mr D’s care needs and the direct payments agreement. Mrs D said they benefitted from Mr D’s personal assistant’s help. She also said her neighbour had been helping Mr D while the personal assistant was on holiday. Finally, she said she kept a diary of all the support Mr D had received. The Council recorded that Mr D’s needs had not changed.
23. Mr D went into hospital on 9 November. The Council received a patient discharge needs assessment (PDNA) notification from the hospital on 18 November. This said that Mr D was ready for discharge and he needed his care and support needs to be assessed.
24. A social worker visited Mr D on 19 November. She noted he was not medically fit as he was still being monitored and was being given medication. She also noted the hospital would need to refer Mr D to the Council again when he was medically fit.
25. Mrs D called the Council on 29 November. She said a member of staff from the hospital told her the Council would not agree to an increase in direct payments for Mr D when he left hospital. She also said she had been paying her son to help with Mr D. The Council told her she could not use money to pay a family member unless it was previously agreed in the care and support plan. Mrs D said she had not received a copy of the care and support plan.
26. The Council contacted a member of staff at the hospital on the same day and requested a PDNA notification for when Mr D was medically fit for discharge.
27. The Council met with Mrs D, her son, and the discharge coordinator from the hospital on 2 December to discuss Mr D’s discharge from hospital when he was medically stable. Mrs D said Mr D would need three visits a day. The Council explained that as Mr D was in hospital, the direct payments not being used to pay for his care could be offset against the increased visits until a review could be carried out in the community. Mrs D also said she had been paying her son money to take time off work and support Mr D. The Council said unless it was in the care and support plan, it was not usual practice to pay family members. Mrs D and her son both said they had not received Mr D’s care and support plan.
28. The Council suggested using an intermediate care team to facilitate discharge until a review of Mr D’s care needs had been carried out. Mrs D declined this because of a previous bad experience.
29. Mrs D called the Council on 4 December and said she had not received Mr D’s care and support plan. She said she was using the direct payments to pay her son to go to the hospital three times a day. She said she was not told she could not pay a family member. The Council advised Mrs D to speak to the hospital ward about her concerns.
30. A manager from the Council called Mrs D on 4 and 5 December but she did not answer.
31. Mrs D called the Council again on 9 December. She said Mr D was still in hospital and the budget would not allow for his increased care needs. The Council explained it would need to review the matter prior to discharge.
32. A manager from the Council spoke to Mrs D later the same day. He explained that Mr D was still not medically fit for discharge and the Council had not received a PDNA notification from the hospital. He said he would contact the hospital to get a further update. Mrs D reiterated she had not received Mr D’s care and support plan. He apologised for this and said he would contact Mrs D when he had a further update from the hospital.
33. A Council officer went to the hospital on 10 December and spoke to the discharge coordinator. She said Mr D potentially met the criteria for discharge, but he would need a continuing health care package. Continuing health care is a care package for people who are not in hospital. It is funded by the NHS.
34. Mr D’s health deteriorated, and he sadly died on 20 December. The Council wrote to Mrs D on 24 December and asked for final returns, original bank statements and other relevant information relating to the direct payments agreement.
35. The Council phoned Mrs D on 17 February 2020 to discuss payment. She said she wanted a copy of the care and support plan before discussing the matter further. She received it on 19 February.
36. Mrs D complained to the Council. It spoke to her on 27 March to discuss her complaint. She said:

• She had been trying to get a copy of Mr D’s care and support plan for a while.
• Information in Mr D’s care and support plan was incorrect, including his name and his daily routine.
• She was frustrated the Council told her that £18.50 per hour for Mr D’s personal assistant was too much.
• The Council delayed facilitating care to enable Mr D to be discharged from hospital.
• Mr D’s personal assistant worked for six weeks without any pay.
• She told the social worker that her son would provide flexible support for Mr D, but this was not reflected in the care and support plan.

37. The Council issued its first response to Mrs D’s complaint on 11 June. It said:

• The social worker used incorrect names in Mr D’s care and support plan. It apologised and confirmed it had changed its approach and managers within the social care department now carry out quality assurance checks on assessments and care and support plans.
• It received a PDNA notification on 18 November 2019. A social worker went to see Mr D on 19 November 2019 and identified he was not medically fit for discharge and therefore she could not carry out the assessment.
• A manager spoke to Mrs D on 9 December 2019 and explained Mr D was not medically for discharge. He apologised that she was not given a copy of Mr D’s care and support plan.
• An officer spoke to the discharge coordinator on 10 December 2019. Mr D’s health had deteriorated, and social care could not meet his needs.

38. Mrs D remained unhappy with the Council’s response and referred the matter to stage two of its complaints procedure. She said information in Mr D’s care and support plan was wrong and she was made aware he could be discharged form hospital.
39. The Council issued a further response to Mrs D’s complaint on 7 July. It explained that it discussed giving Mr D support from the intermediate care team as a plan for discharge. However, discharge was not going ahead at that time because it had not received a further notification from the hospital. It also apologised for the delay in sending her the care and support plan and the mistakes in it. Finally, it said she did not need to provide returns to evidence the care provided because she had not previously seen the care and support plan. However, it would still raise an invoice for the unspent direct payments.
40. Mrs D and her son met with the Council on 19 August. She said she had obtained a medical letter confirming Mr D was fit for discharge on 15 and 29 November 2019. She also said she was concerned there was not enough money in the budget to allow Mr D to come home sooner.
41. The Council issued its final response to Mrs D’s complaint on 11 September. It said there were some entries on the hospital’s system that showed Mr D had made improvements. However, it could not facilitate discharge charge as it did not receive a further PDNA notification from the hospital after the initial referral was returned on 19 November 2019. It also said direct payments for personal assistants are calculated on a standard hourly rate. Finally, it said there was a delay in processing the direct payments agreement, but it resolved this by backdating the payment to the start date of 1 June 2019.
42. Mrs D remained unhappy with the Council’s response and referred her complaint to the Ombudsman.

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Analysis

43. The Council failed to provide Mrs D with a copy of Mr D’s care and support plan when he was alive. This is fault. The evidence shows Mrs D repeatedly asked for a copy of it in November and December 2019.
44. Mrs D says that when she received the care and support plan, it was full of mistakes and it showed a misunderstanding of Mr D’s care needs. She says Mr D did not need an evening visit to change his pyjamas and there was no reference to her son and neighbour providing additional support.
45. The Council has apologised to Mrs D for the delay and the mistakes in Mr D’s care and support plan. It says it has changed its process and managers within the social care department now carry out quality assurance checks on assessments and care and support plans. I welcome this step by this Council, but I consider it needs to go further in remedying Mrs D’s injustice.
46. The Council’s failure to provide Mrs D with Mr D’s care and support plan meant she had no clear indication on how to spend the allocated funds and how many hours had been allocated for the personal assistant to provide support. Mrs D’s complaint about not receiving adequate information about direct payments flows from her not being provided with a copy of the care and support plan.
47. There was also a discrepancy as to what Mrs D thought should have been in the care and support plan and what was. This clearly caused Mrs D distress and would have been avoided if the Council had shared a copy of it at the outset.
48. Mrs D says the Council unreasonably sought the remaining direct payments funds. Mrs D signed the direct payments contract on 6 July 2019, and this said the Council would claim back any unused funds. Therefore, the Council was not at fault and it acted in accordance with the contract.
49. The Council was not at fault regarding the discharge process. The Care Act 2014 makes it clear that the NHS must make a referral to a council when a patient is well enough to be discharged from hospital. The Council received the first notification on 18 November 2019, and it visited Mr D the following day. Mr D was still unwell and so the social worker explained to the hospital it would need to make another referral when Mr D’s health improved. The hospital did not make another referral, and therefore the Council could not complete a further assessment. The evidence shows the Council did remind the hospital about this process.

Agreed action

50. To address the injustice caused by fault, by 12 May 2021 the Council has agreed to:

• Make a further apology to Mrs D.
• Pay her £200 for the upset and frustration caused.
• Issue written reminders to relevant staff to ensure they are aware they should provide care and support plans to customers and their relatives without unnecessary delay.

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Final decision

51. There was fault by the Council, which caused an injustice to Mrs D. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman