Summary: Mr X complained about the Council’s handling of his parents’ home care package and his complaints. There was fault in how the Council failed to review Mr X’s parents’ care plans and did not follow the correct safeguarding process when investigating some concerns about Mr X’s parents. The Council has already made some service improvements, and we have made further recommendations for it to address the personal injustice caused to Mr X.

The complaint

1. Mr X complained on behalf of his parents. He said the Council:
• since May 2021 failed to review his parents’ care plans, despite the family raising concerns about his parents’ condition deteriorating;
• in 2020 failed to act in a timely manner on safeguarding concerns it received about his parents;
• failed to issue care plans to his parents as required by section 25 of the Care Act 2014 and only relied on the support documents created by a home care provider commissioned by the Council;
• asked his parents to sign their support plans despite the fact they did not have the capacity to do so;
• issued invoices for care his parents did not receive;
• did not explain to him any financial reconciliations made to his parents’ accounts;
• failed to review his parents’ invoices after he raised concerns about paying for care his parents did not get; and
• delayed responding to his complaint about the errors in considering safeguarding concerns relating to his parents.
2. Mr X said this meant the Council failed to notice discrepancies in the care calls the commissioned agency was delivering to his parents and they potentially paid for care they did not receive. Mr X said he spent avoidable time and trouble in chasing the Council to investigate the discrepancies in its own and the agency’s records. Despite this the Council did not respond to all the points he raised in his complaint. He also said he worries about the potential number of calls that his parents should have received but did not, as this made them vulnerable to harm.
3. Mr X wanted the Council to apologise for not addressing all aspects of his complaint, review his parents’ account to make sure they did not pay for care they did not receive and accept that it did not manage the care plan process appropriately.

Back to top

The Ombudsman’s role and powers

4. 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)
5. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases.
7. In this case, the Council arranged and commissioned home care for Mr X’s parents. Therefore, we have treated the actions of the commissioned care agency, including any fault identified, as those of the Council.
8. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. 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)

Back to top

How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Care Act 2014

12. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan for adults with eligible care and support needs. These plans should be reviewed at least every twelve months.
13. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently.
14. The complaints regulations say if a complaint is about the actions of a care provider, councils must send the complaint to the provider as soon as reasonably possible.

Safeguarding

15. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42).

How the Council invoices for care it commissions

16. Where the Council arranges care for someone who funds this care themselves, the Council invoices them regularly for the cost of the care it arranged.
17. At the end of each year, the Council then compares the care the person received against the care it had commissioned and refunds any overpayments. If someone raises concerns during the year, the Council says it will investigate any discrepancies.

What happened

18. Mr X’s parents both have eligible care and support needs. The Council agreed to commission care for Mr X’s father in late 2019 and Mr X’s mother in early 2020. From early 2020, they were both to receive five visits per day and extra support with shopping. The Council arranged for a care agency to provide those services on its behalf. Mr X’s parents paid the Council for the full cost of their care.
19. In July 2021 Mr X took part in an online meeting with the Council to discuss his concerns about the care that his parents were receiving. In this meeting Mr X explained that he felt his parents’ condition had worsened, but when he contacted the Council he was unclear about the process he should use to escalate this. He also said that he was concerned that nobody at the Council was auditing the logs filled out by the carers. Mr X said that he noticed a deterioration in his parents’ condition, and as an example he said that his mother was found wandering out of the property and had to be brought back, which was not safe.
20. Between July and August 2021, Mr X complained to the Council about the following issues. He said the Council:
• did not consider the concerns he raised about the condition of his parents deteriorating and their care plans needed reviewing, and instead only relied on the information from the care agency;
• did not issue care plans for his parents, and relied on the ones provided by the care agency;
• did not notice the agency carers were not attending at the agreed times, and were cutting the visits short. As a result his parents received less care than they needed and were charged for the care they did not receive; and
• did not review his parents care plans and did not explain to him what the Council’s procedure and responsibilities were.
21. In early September 2021 Mr X contacted the Council again and said it issued invoices to his parents based on the care that it commissioned, without checking if they received all the hours of care. He said this meant that they had paid for care they did not receive. He also said that he looked at a small sample of invoices and found errors. He asked the Council to consider the invoices from the entire period the agency was providing care for his parents.
22. Although the Council acknowledged Mr X’s complaint in July 2021, it did not respond in detail until the end of September 2021. In its response, the Council said:
• it should have carried out annual reviews of his parent’s care plans;
• the care plans should have been signed by a designated member of the family if Mr X’s parents were found not to have capacity to sign them; and
• it asked the care agency to explain the discrepancies in the call times, and it was satisfied with its responses, but it should have explained this better to Mr X and his family.
23. The Council upheld most of Mr X’s complaint, apologised for these failures and explained it would review how it dealt with disputes about care timesheets and remind staff of the importance of carrying out timely reviews.
24. The following day Mr X emailed the Council and said that it had not addressed all the points of his complaint.
25. The Council explained Mr X could complain to the Ombudsman if he was not satisfied with the Council’s response. However, it said that Mr X had raised new issues about how the Council completed safeguarding processes in 2019 and 2020. The Council recorded this as a new complaint and said it would respond by November 2021.
26. In early November 2021 the Council responded to Mr X’s safeguarding complaint and said it found errors in how it responded to some of the safeguarding concerns Mr X raised. It said that some of the errors identified were:
• not raising the concerns in a timely manner;
• not closing the concerns in a timely manner;
• not informing the relatives of the outcomes; and
• recording multiple concerns on one safeguarding form, which made it difficult to follow.
27. As a result, the Council said it would share the lessons learnt with appropriate teams and discuss them at team meetings. These included:
• the need to record, process and complete all safeguarding concerns in a timely manner and advise the family of the outcome;
• all concerns should be recorded separately unless they relate to the same person alleged to have caused harm; and
• concerns raised about a couple should be recorded separately, or if recorded together it must be made clear which concerns relate to whom.
28. On the same day Mr X wrote back to the Council and said he welcomed the apology but was unclear about some of the findings of the safeguarding investigation. He said the Council failed to:
• explain why social workers failed to follow up on a safeguarding concern that was not closed;
• explain why the care provider did not respond to the Council’s enquiries in a timely manner; and
• fully address Mr X’s concerns about the carer still working for the agency after it had said they no longer did.
29. Three days later the Council responded to Mr X and provided more detailed explanations to the points he raised.
30. Mr X was not happy with the Council’s responses, and he complained to the Ombudsman.

Analysis

Reviews of care plans since May 2021

31. The Council assessed Mr X’s parents and decided that they had eligible needs; Mr X’s father around September 2019 and Mr X’s mother around March 2020. Section 25 of the Care Act 2014 says that because of this, the Council should have produced care and support plans for them, detailing how it was going to meet their eligible needs. Although the Council has provided copies of care plans it produced during this time, there is no evidence these were signed by Mr X’s parents or shared with them/their families at the time.
32. Section 27 of the Care Act 2014 says the Council must keep these care and support plans under a review. Section 13.32 of the Care and Support Statutory Guidance (CSSG) says the Council should consider carrying out a light touch review of the care and support plan 6-8 weeks after the initial agreement, and then the Council must review the care and support plan at least once every 12 months. The Council could review care and support plans more frequently than this, but it does not have to.
33. So, the Council should have considered a light touch review of Mr X’s parents’ care and support plans around May 2020 and should have done a full review in May 2021. The Council accepted it did not do this. This was fault.
34. Although the care agency had its own care plans with more details about how they provide the care Mr X’s parents needed, the Council still had a responsibility to decide what those needs were and to review them regularly.
35. When there is a change in circumstances that may indicate that someone’s care and support needs have changed, the Council should consider reassessing their eligible needs and review their care and support plan accordingly. The Council said that it did not reassess or review Mr X’s mother’s care plan because of the evolving nature of her condition. I am not satisfied this was a good reason not to reassess Mrs X’s parents’ needs when Mr X told the Council their needs had changed. The Council’s failure to consider a reassessment or carry out a review was fault.
36. This meant the Council did not issue revised care plans in line with the requirements of the Care Act 2014 following the changing condition of Mr X’s parents. The evidence the Council provided shows it was monitoring and reviewing the appropriateness of the care package for Mr X’s parents, however it was not always clear what decision the Council was making with regards to the care package in place at the time. This was fault.
37. Although there was fault in how the Council issued and reviewed Mr X’s parent’s care plans, we cannot say, even on balance of probabilities what would have happened had the Council done this properly. This is because we cannot say what changes, if any, the Council would have made to the care it commissioned at the time. However, I am satisfied these failures caused Mr X avoidable uncertainty about the suitability of care his parents received after he raised concerns in July 2021.
38. The Council said it did not refuse to review Mr X’s parents’ care plans when he asked about this in July 2021. During this meeting Mr X mentioned that he was concerned about the deteriorating condition of his parents, and specifically his mother who had begun to wander out of her home. Mr X said that he sometimes had to use video cameras to find out where his mother had gone and to bring her back.
39. In October 2021 the care agency reported a safeguarding concern as the carer had found Mr X’s mother wandering in the streets. This triggered a best interest meeting in which the Council considered if Mr X’s parents’ care package was still appropriate for the increasing needs they were presenting. Although Mr X did not raise a formal safeguarding concern when he raised the issue in July, I am satisfied the Council should have considered a review at that point. The failure to do so was fault.
40. It was at this time the Council once again considered Mr X’s parents’ capacity to make informed decisions about the care they were receiving. It decided that neither of them now had the capacity to decide how their care needs should be met, however they could voice their preferences which could be taken into account when making decisions about their care.
41. The Council missed an opportunity to act sooner on Mr X’s concerns when it did not consider his concerns about his mother’s condition in July 2021. This contributed to the uncertainty and frustration Mr X experienced.
42. The Council said it did not ask Mr X’s parents to sign any care plans, and that this may have been required by the commissioned agency. The agency created its own support plans for Mr X’s parents in October 2019 and during 2020. During a meeting in July 2021, the manager of the agency said that, at the time, they believed Mr X’s parents had the capacity to make decisions about how their care should be provided.
43. I am satisfied there was no fault with this approach as the evidence shows the Council and the care agency acted in line with the Mental Capacity Act. The Mental Capacity Act says that a person should be presumed to have the capacity to make a decision, unless there is a reason to believe otherwise. The Council and the agency considered Mr X’s parents capacity to make individual decisions at different times, and there is no evidence to suggest that Mr X’s parents lacked capacity to make decisions about their care in 2019 or 2020.

Safeguarding concerns in 2020

44. The Council accepted it did not follow the correct safeguarding procedure for some of the safeguarding concerns in relation to Mr X’s parents, in particular concerns from May and July 2020. This was fault.
45. This further contributed to Mr X’s uncertainty about the level of care his parents received as part of the Council commissioned services. However, there is nothing to suggest that the Council failed to protect Mr X’s parents from harm.
46. In its response to Mr X’s complaint the Council said that it would share its findings with relevant teams to ensure they are aware of the correct procedure to be followed.
47. The Council sent us records showing that in December 2021 the outcomes of Mr X’s safeguarding concerns were shared in a staff bulletin. Additionally, this was further discussed during individual team meetings.
48. We consider this to be a suitable remedy and because of this, we will not make any further service improvement recommendations about this aspect of Mr X’s complaint.

Invoices for care and financial reconciliation

49. Mr X said the Council failed to review his parents’ invoices after he raised concerns about paying for care his parents did not get.
50. The Council said that after receiving Mr X’s concerns, it compared the care logs and the agency’s invoices for a three-month period. It decided that there was a refund required and it emailed Mr X about this.
51. In response to our enquiries the Council said that it will carry out another reconciliation for the entire period the agency provided services to Mr X’s parents and decide if any further refunds are due.
52. I am satisfied this is a suitable remedy for any injustice to Mr X’s parents.

Delays in responding to Mr X’s safeguarding complaint

53. Following the Council’s September 2021 response to his complaint, Mr X raised further concerns about the Council’s handling of safeguarding concerns relation to his parents.
54. The Council did not these concerns until late October 2021 and this was only after Mr X chased the Council several times. I am satisfied this delay was fault which added to Mr X’s frustration.
55. However, the Council then investigated Mr X’s concerns, apologised and explained the action it would be taking to prevent similar things happening in future.

Back to top

Agreed action

56. Within one month of the date of the final decision statement, the Council will:
• carry out the financial reconciliation of Mr X’s parents’ care account to decide if there is a further refund due. The Council should communicate this to Mr X and explain how it had arrived at its decision;
• pay Mr X £200 to recognise the distress, frustration and unnecessary time and trouble he experienced in chasing the Council for answers to his complaints; and
• pay Mr X £300 to recognise the avoidable uncertainty the Council’s faults around care planning and safeguarding caused him.

Back to top

Final decision

57. I have completed my investigation. There was fault in how the Council failed to review Mr X’s parents’ care plans which has caused Mr X avoidable uncertainty and in how it investigated some safeguarding concerns. This caused Mr X avoidable time and trouble in chasing the Council for responses to his complaints.

Back to top

Investigator's decision on behalf of the Ombudsman