Summary: The Council failed to properly assess Mrs C’s adult social care needs and failed to offer Ms B a carer’s assessment. This led to a potentially flawed support plan, and family having to meet many of Mrs C’s needs with no evidence they were willing and able to continue doing so. The family may have missed out on support they could have had as carers, Ms B’s health suffered as a result. The Council will apologise, pay Ms B £250, and provide staff guidance to improve future practice.

The complaint

1. The complainant, who I will call Ms B, says the Council failed to properly assess her mother (Mrs C’s) care and support needs. The Council failed to understand Mrs C’s needs were primarily health needs and failed to complete a Continuing Healthcare initial checklist until pressed to do so by Ms B. The Council’s poor support planning resulted in only two care calls per day which meant Mrs C’s medication could not be properly managed, and the Council had to contact the NHS to see if the medication regime could be changed. The Council did not properly understand and assess Mrs C’s fluctuating health needs and fluctuating capacity. The Council offered no assessment or support to Ms B as a carer.
2. Ms B says the failures in assessment meant Mrs C’s needs were not properly understood and catered for, and family struggled to pick up the slack without any support. Ms B, her Aunt, and her brother had to visit several times a day to help Mrs C with medication, incontinence, making and prompting to eat meals, and support through the night. The family each have their own health issues and difficulties and found it very stressful to manage.

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What I have investigated

3. I have investigated the Council’s actions from March 2019. The end of the statement explains the reasons why I have not investigated before this time.

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The Ombudsman’s role and powers

4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). If the person cannot give consent the complaint may be made by someone we consider is suitable.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended). Gemcare provided domiciliary care services on behalf of the Council to meet the Council’s adult social care duties.
7. 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)
8. 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

9. I considered:
• Information from Ms B in writing and over the phone.
• Information from the Council in response to my enquiries.
• The Care Act 2014 and associated statutory guidance.
• The National Framework for NHS continuing healthcare and NHS-funded nursing care.
10. Ms B 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

11. At the time of these events Mrs C lived alone with support from her family. Mrs C has Parkinson’s, which is a progressive neurological condition. Mrs C now lives in a residential care home.
12. In March 2019 Ms B contacted the Council asking for an assessment of Mrs C’s care and support needs. Ms B was going into hospital for treatment in June and would not be able to provide the usual support to her mother.
13. 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.
14. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
15. There are no timescales in law or guidance to say how quickly a council should arrange and complete an assessment. The Council carried out an assessment in April, within a month of the referral. This was of Mrs C’s care and support needs, but there was no assessment of Ms B’s needs as a carer, or of her brother or aunt.
16. The Council found Mrs C had needs in the following areas:
• Washing
• Toileting
• Dressing
• Eating and drinking
• Cleaning and laundry
• Going out of the house
• Medication
17. The Council assessed it could meet Mrs C’s needs with two care calls per day. One in the morning to help Mrs C shower and dress and encourage her to eat and drink at breakfast. And one in the evening to encourage Mrs C to eat and drink at dinner.
18. It is unclear how Mrs C’s toileting, medication, cleaning, laundry, getting out of the house, and medication needs would be met.
19. The Council knew Mrs C took medication at set times every three hours. The assessment document says the family were leaving the tablets on a sheet of paper with the times written on, and telephoning Mrs C to prompt her to take them. The Council explained for a care agency to help with prompts the medication would need to be either in a Blister pack or prescribed boxes. The Council records family are looking into a Blister pack for carers to support with the morning and teatime medication. Medication was not listed as part of the proposed service, so it is unclear how this need was to be met. The Council says family agreed to retain responsibility for medication, but this is not recorded on the Council’s records.
20. The assessment records Mrs C previously employed a cleaner to maintain her home, but found it distressing and so Ms B had been helping her since. It is not recorded whether Ms B was happy to continue meeting this need, especially given her forthcoming hospital stay and recovery. The assessment records family are helping Mrs C attend appointments and go out in the community. The Council has not recorded whether the family were happy to continue to meet this need.
21. The care package started in May 2019. A week later there was an incident with Mrs C’s medication. The Care Provider left out the wrong medication on the sheet of paper. Mrs C’s son visited and changed it before Mrs C wrongly took any of the tablets. After this incident, the Care Provider said it could not share the routine with the family, and the family took all responsibility for medication.
22. The Council e-mailed Mrs C’s GP to query the medication regime, and whether any other medication could be prescribed that is taken less frequently. If family were visiting every three hours this would not give them any respite from the caring role.
23. Mrs C’s sister contacted the Council and asked for four care visits a day so that the Care Provider could do the medication prompts throughout the day, though also said the family would prefer a different care provider. Mrs C’s sister told the Council that Ms B’s health had worsened because of the stress of being the primary carer. The Council explained it had contacted the GP regarding medication and that the Care Provider could no longer help with medication as it has a policy not to share a medication regime. The Council made no mention of alternative care providers.
24. The Council spoke with the GP and contacted Mrs C’s Parkinson’s nurse. The nurse said they would trial different medications and see if there was a routine that would be easier to manage. I do not know the outcome of this.
25. In June 2019 the Council completed a review of Mrs C’s care and support. The outcome of the review was that the care package remained the same. The Council completed a further review in July 2019 after which the care package was reduced to one visit at teatime. This was because Mrs C’s sister asked it to be cancelled as carers were not completing any tasks on a morning. The Care Provider confirmed Mrs C was independent on a morning and was up washed and dressed when they arrived. Family was usually present and had prompted medication.
26. In August 2019 the family cancelled the care package as did not feel it was working well. Two months later Ms B contacted the Council to again ask for help as the family were struggling to support Mrs C.
27. The Council started a care and support assessment at the end of February, which was completed in March 2020. The Council explains the delay was because of the number of cases waiting to be assessed and not enough staff to complete them. During this wait Ms B reports that Mrs C had three falls in her home.
28. The Council found Mrs C had eligible care needs. Mrs C was no longer able to shower herself and feared falling in the shower. Ms B was helping Mrs C to shower daily. The family felt they were at the point of carer breakdown and that Mrs C needed nursing care. Mrs C wished to remain living at home but did agree to a stay in a care home to give her family some respite from their caring role and to plan long term care needs on her return. The Council arranged a two-week respite stay at a residential care home.
29. The Covid-19 pandemic meant Mrs C stayed in the care home for longer than the planned respite. Mrs C’s stay became permanent.
30. In April 2020 the Council completed an NHS Checklist for Continuing Healthcare (CHC). Ms B says this was completed at her insistence. Following this the NHS completed a full assessment and accepted to meet Mrs C’s needs.
31. The NHS will meet all health and associated social care needs where the person is assessed to have a primary health need and is eligible for Continuing Healthcare (CHC). Determining whether someone has a primary health need involves looking at the totality of the relevant needs. If the majority of the person’s care is focussed on addressing and/or preventing health needs then it is likely to be a primary health need. But having a primary health need is not about the reason why a person needs care or support, or based on a particular diagnosis, it is about the level and type of their overall day-to-day care needs.
32. Examples of social care needs are:
• Managing and maintaining nutrition;
• Maintaining personal hygiene;
• Managing toilet needs;
• Being appropriately clothed;
• Being able to make use of the home safely;
• Maintaining a habitable home environment;
• Developing and maintaining family or other personal relationships;
33. There is a Checklist which is the NHS CHC screening tool and can be used in a variety of settings by many different practitioners, including trained council staff. This helps identify those who need a full assessment for CHC. The Council does not have to complete a Checklist where it is clear to Council staff it is not needed, but where appropriate this decision and its reasons should be recorded.
34. The Council says at the 2019 and 2020 assessment it did not think a CHC checklist was needed because of Mrs C’s assessed social care needs and limited NHS involvement.

Was there fault causing injustice?

35. The Ombudsman’s role is to consider if there was fault by the Council which has caused an injustice to the person complaining, or those they complain on behalf of.
36. The Council correctly identified Mrs C’s care and support needs in April 2019, but its assessment is flawed. It is unclear how all the identified needs will be met, and what needs the family has agreed to continue to meet. Given the reason for Ms B’s contact to the Council asking for help was because she would be going into hospital and not able to provide the same level of support to her mother, I would expect detail about how Mrs C’s needs for cleaning, laundry, toileting, medication and getting out of the house would be met.
37. The assessment is particularly unclear regarding how Mrs C’s medication needs will be met. There is mention of the Care Provider helping with this at the two care calls if medication is in Blister packs, which is a weekly pill box clearly displaying all medications at the time they are to be taken. However, the support plan does not list medication as a task the Care Provider will be covering. There clearly was some discussion with the Care Provider because it had laid tablets out on the sheet of paper the family used for medication. This was not in line with the care plan or the Care Provider’s policy not to share a medication regime with family. This is fault by Gemcare acting on behalf of the Council.
38. The Council knew Mrs C could be incontinent and wears continence pads. A care package of two calls per day could leave Mrs C sitting for a long time in soiled pads. It is likely the family were visiting in between, but this is not recorded in the Council’s assessment and it is not recorded that family were willing and able to provide support with toileting throughout the day and night. There is no mention of night-time needs within the Council’s assessment, and that is fault.
39. The Council failed to complete a carer’s assessment for any of the family members. Ms B and other family members told the Council several times that Ms B had her own health issues and was struggling as primary carer. The Council should have completed a carer’s assessment to see what support it could offer Ms B in her caring role, and whether it was sustainable for Ms B to continue to provide support at that level.
40. The Council’s fault in assessment and care planning led to the Care Provider leaving the wrong medication for Mrs C; luckily, she did not take it. But it meant the family lost trust in the Care Provider’s ability to properly support Mrs C. The poor assessment and care planning also meant the family had no choice but to continue meeting many of Mrs C’s needs, including the need for frequent medication prompts.
41. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The actions of the Care Provider regarding medication are potentially a breach of the Care Quality Commission’s fundamental standards regarding person-centred care and safety.
42. The Council acted in good faith by contacting Mrs C’s GP to see if any changes could be made to the medication regime to make supporting it less onerous. However, this is something that should have been covered in the assessment. Had there been a discussion the Council would have known to contact the Parkinson’s nurse rather than the GP, and it would not have come as a surprise to the family that the Council had sought medical advice on this issue.
43. Mrs C’s sister told the Council Ms B was struggling to support Mrs C and asked for four calls per day to prompt with medication and mentioned a change of care provider. The Council missed an opportunity here to explore whether an alternative provider could help with Mrs C’s medication regime as the current provider had said it could not. Because of this missed opportunity the family struggled on with supporting Mrs C.
44. The Council cancelled the care package on request of next of kin. The Council has no record of the actual request, who made it, or the reasons why. Ms B says she cancelled it because of the medication error and because the Care Provider was not prompting Mrs C to shower or to eat. It is more likely than not the reason the family cancelled the package was because they did not feel they were getting the benefit, not because they did not need it. There is no evidence the Council knew this. But even if the family did not explicitly tell the Council their reasons, I would expect the Council to question why they wished to cancel the package. The Council again missed an opportunity to explore whether an alternative provider could help, or whether the service could be improved, and trust regained. This fault meant the family struggled to meet Mrs C’s needs without any support. Only two months later Ms B contacted the Council again desperate for help.
45. There was then a delay in carrying out an assessment which meant the family struggled for longer than necessary to meet Mrs C’s care needs in the interim.
46. Ms B believes the Council should have completed the CHC Checklist and she should not have had to push for it. The Council says it did not consider it needed to complete the Checklist because Mrs C’s identified needs were social care needs. This was a professional judgement the Council was entitled to take, it considered the totality of Mrs C’s needs and found they were predominantly social care needs; I find no fault.

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Agreed action

47. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of the care provider, as well as fault by the Council, I have made recommendations only to the Council. To acknowledge the impact on Ms B and Mrs C, and to prevent future problems, the Council will:
1. Apologise to Ms B and Mrs C for its flawed assessment and care planning and apologise to Ms B for failing to offer a carer’s assessment.
2. Pay Ms B £250 to acknowledge her distress, time and trouble in continuing to provide care support to her mother for longer than necessary and without adequate support as a carer, and for the time and trouble pursuing the complaint.
3. Remind relevant officers that care and support assessments must meet the requirements of the Care and Support statutory guidance. Assessments must agree how a person’s needs should be met. Any needs that a carer is meeting should be clearly documented, and the Council should consider putting in place plans to respond to any breakdown in the caring relationship.
4. Remind relevant officers of the duty to offer carers’ assessments.
48. The Council will complete the agreed actions within one month of the final decision and provide evidence to the Ombudsman of its compliance.

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Final decision

49. I have completed my investigation on the basis the agreed actions are enough to acknowledge the impact on Ms B and Mrs C, and to prevent future problems.
50. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
51. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), I have shared this decision with CQC.

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Parts of the complaint that I did not investigate

52. I decided not to investigate issues prior to March 2019 because they are a late complaint, as described in paragraph five. Ms B confirmed she mainly put information in about events from 2018 for context and was happy for the Ombudsman to concentrate on events from 2019.

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Investigator's decision on behalf of the Ombudsman