Summary: Mr X complained about failings in the service and support he receives from the Council’s Adult Social Care service. There is no evidence of fault in the way the Council assessed Mr X’s care needs or developed his support plan. However the failure to notify Mr X of, or involve Mr X in, the financial assessment and the need for a contribution towards the cost of his support is fault. This fault has caused Mr X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complained about failings in the service and support he receives from the Council’s Adult Social Care service. In particular he complains the Council has:

• failed to properly assess his care and support needs and has wrongly reduced his package of care;
• failed to meet his assessed needs as the carers provided cannot speak or read English well enough to read and respond to his mail;
• wrongly ended his direct payments and has not reinstated them;
• unreasonably restricted his contact with the Council; and
• refused to provide, or support him in identifying, an advocate.

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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 an organisation’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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues and draft decision with Mr X;
• Mr X and the organisation 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 guidance and background information

5. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). 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.  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.
6. There are three main ways in which a personal budget can be administered, one of which is as a direct payment. (Care and Support Statutory Guidance 2014). 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.
7. Under the Care Act 2014, Councils have a duty to offer advocacy services where required (“if a person has substantial difficulty in engaging with their care needs assessment or care and support planning then the local authority must arrange for an independent advocate if there is no other relevant person to represent you”). The role of the advocate involves supporting people's active involvement in assessment, reviews and support planning, supporting people to understand information about processes, their rights, responsibilities and options, and supporting people to express their views. It does not include providing advice, making decisions for people, or providing physical support. Advocates are bound by the Care Act in the services they can offer.

What happened here

8. Mr X has a brain injury and is unable to read and write. He also has medical conditions which affect his mobility. The Council has previously paid him direct payments for seven hours a week to employ a personal assistant (PA) to support him. This ended in 2018 and the Council determined Mr X was not eligible for care and support.
9. The Council carried out a joint assessment to review Mr X’s care needs at his home in August 2020. This determined he was eligible for some support to manage his living activities and made a number of recommendations. These included: a referral to occupational therapy; a blitz clean of Mr X’s home to make it easier to maintain; the offer of a reading machine; consideration of a care package for shopping and maintaining the home; support to open a bank account and a referral to a befriending service.
10. The Council completed a care and support plan in October 2020 which provided one hour’s domestic support each week to tidy and clean Mr X’s home, and a one and a half hour shopping call each week. Mr X’s personal budget also included the cost of purchasing a reading machine and a blitz clean.
11. In November 2020 the Council carried out a financial assessment based on the benefits Mr X received. This determined Mr X’s contribution towards the cost of the acre package would be £25.04 each week. It is unclear when or how it communicated this to Mr X.
12. The Council reviewed Mr X’s care needs via telephone in January 2021. The records of this review note that Mr X did not feel he would benefit from a reading machine as it would be unable to interpret difficult terms or respond to letters. The records also note that a support package was in place, but Mr X had requested a care who spoke English well as he had difficulty understanding his current carer.
13. Following the review, Mr X’s social worker recommended a change of care provider due to the communication difficulties. They also recommended support from a support worker to assist Mr X with some urgent needs such as reading and responding to letters and liaising with housing, health providers and other services in the community.
14. The Council commissioned an organisation to assist Mr X with his correspondence, but Mr X’s relationship with the organisation broke down within a month.
15. The Council updated Mr X’s support plan and increased his support package by two hours each week for support with reading post and paperwork and helping him to write.
16. In May 2021 the Council received safeguarding concerns that Mr X was not receiving any care or support. The Council’s records show it contacted the care provider who confirmed care workers still attend Mr X twice a week and there were no concerns regarding entry. The care provider stated the care worker had supported Mr X in getting a calendar and this had improved his ability to allow access. They noted Mr X had requested some care workers did not attend but other staff were able to attend.
17. The Council visited Mr X at home to carry out a review in August 2021.The notes of this assessment state Mr X reported his current care worker was good and he was trying to build a relationship with them but would prefer to have a female care worker. As Mr X had not yet built a relationship with the care worker he did not want them to open or see his correspondence. This meant he missed important correspondence. Mr X requested a change of care agency.
18. The records also note a discussion regarding Mr X’s contribution towards his care. Mr X noted he had received invoices for £25.04 per week but had not been informed about this and had never paid for his care. The social worker advised Mr X that he had an annual financial assessment and as a result of an increase in his benefits he needed to contribute towards the cost of the care he received.
19. Following the review the social worker determined that Mr X was independent in most daily task and could access the community using his car. He still required domestic support and support with shopping and reading his post. Mr X had two hours support each week to assist him with his correspondence with the provision of a reading machine. However he was not receiving this support as he had refused the reading machine and would not allow the care worker to assist him with these tasks. The social worker concluded Mr X no longer required this support. They recommended Mr X’s package of care reduce to two hours per week.
20. In late September 2021 Mr X’s solicitors made a formal complaint to the Council. Via his solicitors Mr X complained:
• Mr X had not received any care or support since 17 September 2021 when a carer went shopping for him. As a result, he did not have any food in his home;
• The Council had completed a review of his care needs but had not provided him with the outcome;
• He had been verbally informed his care package had been reduced to two hours which was not sufficient to meet his needs;
• He had not been receiving his post for years and had not received any assistance with this;
• He had not been supported in reading his correspondence, which had caused him difficulties and he was now in debt;
• Carers sent to support him did not speak English; and
• He had not been supported by an advocate in the assessment process.
21. According to the Council’s records it did not deal with the solicitors correspondence as a complaint. It noted Mr X was offered food parcels which he refused. He was also provided with carers but turned them away. The Council noted a carer had visited on 28 September 2021 and offered a shopping trip. Mr X declined and asked the carer to return the following day. A social worker left a food parcel for Mr X on 29 September 2021.
22. In November 2021 the Council carried out a financial assessment, again based on Mr X’s benefits. This determined Mr X’s contribution towards the care would be £25.99 each week.
23. Mr X’s solicitors made a further complaint in December 2021. The complaints included:
• Mr X had not received any care since November 2021 as carers had not attended as set out in his care plan, or at all;
• The care agency would not respond to Mr X’s calls
• The carers who previously attended did not speak sufficient English to read his post or assist him with his correspondence. And that although his care plan stated carers would help him with correspondence, the carers had been told not to do this.
• Mr X was not involved in his assessments and he was not consulted about the times of the care calls in his support plan;
• The care agency is inflexible and will not arrange alternative times when Mr X has appointments;
• The social work team wrongly claimed Mr X was rude and abusive and placed communication bans on him. He had requested a change of social worker but the Council had refused.
• His care package was inadequate;
• The Council had refused his request for direct payments and instead put in place a service which was inadequate;
• The Council has refused to provide Mr X with an advocate; and
• The Council had posted a communication agreement through Mr X’s door which he did not agree with.
24. The solicitors made a further complaint in January 2022 stating Mr X had not received any care since before Christmas. He now had no food and had not eaten properly over the Christmas period. The solicitor noted the care agency had told the Council they had attended since Christmas but this was not correct. They understood the care provider had now handed back the care package but Mr X had not been informed of any alternative arrangements.
25. The Council’s response to the complaint confirmed there was an ongoing package of care in place for Mr X and that Mr X had at times not accepted care when the carers turned up. The care coordinator at the agency was the only person who would speak to Mr X as he had previously been abusive to staff. They had given Mr X their direct mobile number so he could contact them with any issues.
26. The Council acknowledged there had been some issues sourcing carers Mr X felt were appropriate. It had tried to source carers that were acceptable to him and could meet his needs. This had included sourcing alternative carers and agencies. It noted it had carried out face to face assessments with Mr X since 2019 and had agreed support plans with him. However, recently Mr X had been unwilling to meet with the Council to discuss care call times.
27. The Council also noted its social workers and duty workers had experienced abusive and challenging communications from Mr X and had limited communication with him. The Council was attempting to implement a communication agreement. Since 2020 Mr X had had three social workers and had objected to them all. The Council did not consider a further change of social worker would be appropriate.
28. The current care plan was based on the recent review and supported Mr X with correspondence, housework and collection of post. The Council considered the reading machine was an additional support to complement the service provided. It noted it had no evidence Mr X was not capable of considering information. Mr X was able to use a telephone and discuss issues with people who have corresponded with him.
29. In relation to Mr X’s request for direct payments the Council noted the agency it commissioned to support service users with direct payments was refusing to work with Mr X based on its previous experience of Mr X’s behaviour. However the Council confirmed it would be happy to discuss the option of direct payments with Mr X again.
30. The Council also noted that although it had not assessed Mr X as needing an advocate it had made a referral to an advocacy service. The service had refused the referral because of Mr X’s behaviour.
31. In addition the Council noted it had tried to limit Mr X’s communications and throughout 2019 this was supposed to be through his solicitor, but Mr X had continued to call his social worker and the duty service. The Council stated Mr X had continued to contact adult social care regardless of any restrictions and had not adhered to any proposed agreement. It stated the Council has a zero tolerance policy on abuse and while it will try to support Mr X it will not tolerate him abusing staff.
32. The Council then carried out a further review of Mr X’s support plan in late January 2022. Mr X does not appear to have been involved in this review. The records state the Council opened the review to enable double up carers for Mr X’s care package. This had been agreed as the current care providers were unable to support Mr X due to various challenges in meeting his care needs. The review noted Mr X had made frequent allegations of missed calls which the care agency disputed, stating they had attended but Mr X was not in. It also noted direct payments might have been the best option, but Mr X had had direct payments in the past and this had been unsuccessful. There is no record of the Council informing Mr X of the review or changes to his support plan.
33. A social worker carried out a further review of Mr X’s care needs with Mr X at his home in March 2022. The review noted the care agency had reported Mr X constantly refused to allow care workers into his home. He complained they did not speak English well enough to assist him and that when they turned up, Mr X turned them away.
34. The social worker noted Mr X was struggling with the support in place not meeting his needs. His needs were not just traditional care needs, he also needed support managing his daily life. They considered this would be best managed with direct payments.
35. However, the Council noted that a potential issue with direct payments was the client contribution. Mr X was reluctant to pay contributions and had in the past declined a service rather than pay the contribution. This would not be possible with direct payments. As the Council made the payment minus the contribution, there would only be enough money in the account if Mr X paid his contribution. The Council would need to ensure Mr X was aware of the contribution before making a referral for direct payments.
36. The social worker made a request for Direct Payments for seven and a half hours’ support each week. In the meantime, Mr X’s care package was increased to two and a half hour visits three times a week.
37. Mr X is unhappy with the Council’s response to his complaint and maintains the Council has failed to support him. He states that carers rarely attend and that when he notifies the Council he is told it will be passed on to his social worker or looked into, but no action is taken. Mr X states his social workers do not return his calls or follow through on agreed actions or support. He feels the Council ignores his requests for help and does not communicate with him.
38. In response to my enquiries the Council states Mr X has made a number of complaints that carers do not attend, but in the majority of cases carers did attend and entry was refused. The Council states it has checked with the current agency and there have been no incidents where the carer did not attend the visit. However they did not always gain access. It states Mr X has allowed carers access five times between 21 February 2022 and 1 June 2022.
39. The Council states that when carers are given access Mr X allows them to clean, go to the Post Office to collect his letter and read them to him, and to do some cooking. Mr X will only allow carers to cook if the carer is Jamaican. He will not allow carers to access and support with all of his paperwork and will choose what can be reviewed.
40. It states Mr X’s care package was increased to seven and a half hours per week with effect from 25 May 2022. It acknowledges there was a delay in implementing this and apologises.
41. The Council states it is happy to review Mr X’s care package with him. It would also be happy to discuss direct payments with Mr X again. It states the Council has progressed with the referral for direct payments but Mr X has refused to pay the client contribution. The Council states it has offered Mr X a new financial assessment and has informed him it will be difficult to proceed with a referral for direct payments without his agreement to a client contribution.
42. In addition the Council has reiterated it has not identified the need for an advocate as Mr X can advocate for himself.

Analysis

43. It is clear from the Council’s records that the Council has assessed and reviewed Mr X’s needs and there is a support plan in place for Mr X. Mr X was involved in these assessment and the majority of the reviews. The number of hours of support to be provided has changed following assessments and reviews and this is a matter of professional judgement. The Council’s records show how it determined the eligible needs and hours of support. When Mr X chose not to utilise the full support available, the Council reduced the support plan. As part of the package of care the Council has also offered Mr X a reading machine. Although Mr X does not want to use this machine, the Council is satisfied it would meet Mr X’s needs as part of his package of support.
44. Mr X and the Council have differing views on whether carers are carrying out the support specified in the plan. Mr X states carers do not attend and that when they do, they are unable or unwilling to provide the support he needs. On the other hand the care provider states that carers do attend but Mr X is often not at home or refuses access. And that when they do get access Mr X is selective in the support he will allow carers to provide.
45. The Council has commissioned several care agencies to support Mr X and there have been the same complaints and counter claims from Mr X and the care providers.
46. To try and resolve this impasse, the Council agreed to fund double handed visits. This does not appear to have resolved the dispute as Mr X maintains the carers do not visit while the care providers maintain carers are frequently turned away. This issue clearly needs to be resolved.
47. There appear to be a number of reasons why Mr X has turned carers away or declined support. This is a decision he is entitled to make and is not necessarily indicative of fault on the part of the Council. But Mr X has raised concerns that some carers are unable to speak or read English to a sufficient standard to be able to support him. We would expect the Council to ensure that carers are able to provide the support specified in Mr X’s support plan.
48. The latest assessment acknowledges that there are difficulties in meeting Mr X’s needs as he needs support managing his daily life, not just traditional care needs. The Council has offered to review Mr X’s support package with him and I consider this appropriate in the circumstances.
49. The social worker considered the support Mr X needs would be best met with direct payments. Although there have been problems with this in the past, the Council has made a referral to set up direct payments. Mr X would like direct payments as he feels this would allow him more control. He states that while he was initially unwilling to pay a contribution he has recently informed the Council he will now do so and would like the Council to set up direct payments.
50. There appears to be some confusion regarding this contribution as Mr X believes he is not charged a contribution for the commissioned service currently in place but would have to pay a contribution for direct payments. He also asserts he should be entitled to additional benefits to assist with this cost.
51. Although Mr X has been involved in the needs assessments, there is no evidence he has been involved in any financial assessments. The Council can charge for Mr X’s care, but we would expect it to involve Mr X in the financial assessment and to ensure that he understands the assessment and how the level of his contribution is calculated. There is no record of any discussion with Mr X regarding his finances or the need to pay a contribution, until he challenged this at the needs assessment in August 2021. The lack of clarity regarding Mr X’s financial assessment and the need to pay a contribution towards the cost of his support is fault.
52. I consider the Council’s offer to carry out a further financial assessment to be appropriate. Mr X is concerned there may be additional benefits he is entitled to but not receiving. This should be explored to ensure the financial assessment is accurate.
53. The Council’s response to my enquiries states there are no current restrictions on Mr X’s communication with the Council. It has however sent him a communication agreement outlining the behaviour it expects from him and confirms staff will end calls if they consider them inappropriate. The Council’s records show that communication with Mr X has at times been difficult and his comments and behaviour have been inappropriate. A communication agreement therefore appears proportionate.
54. The Council maintains it has not identified a need for an advocate to support Mr X. It has however arranged advocacy support for Mr X in the past. Mr X found this useful and would like this to be reinstated. Given Mr X’s inability to read and write and the difficulties in his relationship with the Council I consider support from an advocate or independent person would be useful in any future assessments and reviews of his support plan or finances, and discussions regarding direct payments.

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Agreed action

55. The Council has agreed to apologise to Mr X for the failure to explain and involve him in the financial assessments and for the delay in implementing the increase in care agreed in March 2022.
56. The Council has also agreed to arrange meetings with Mr X, supported by an advocate or independent person to:
• Review his support plan;
• Carry out a further financial assessment;
• Discuss what would be needed to reinstate direct payments and how this could be facilitated;
57. The Council should take this action within one month of the final decision on this complaint.

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Final decision

58. There is no evidence of fault in the way the Council assessed Mr X’s care needs or developed his support plan. However the failure to notify Mr X of, or involve Mr X in, the financial assessment and the need for a contribution towards the cost of his support is fault. This fault has caused Mr X an injustice.

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Investigator's decision on behalf of the Ombudsman