Summary: Ms J complained the care provided to her sister Ms L, by the Council commissioned care provider, was insufficient and the Council delayed in changing the care provider following her request to do so. The Council delayed increasing Ms L’s care package, did not have due regard to Ms L’s human rights and delayed in changing the care provider. The Council agreed to apologise to Ms L and pay her £750 to acknowledge the uncertainty and distress caused by the faults identified.

The complaint

1. Ms J complained the care provided to her sister Ms L, by the Council commissioned care provider, between March 2022 and June 2022 was insufficient and the Council delayed in changing the care provider following her request to do so. Ms J further complained the Council failed to properly consider her complaint about the matter. Ms J said the insufficient care caused distress and anxiety to Ms L and the delay caused frustration to Ms L and Ms J.

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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. I read the documents provided by Ms J and discussed the complaint with her on the phone.
5. I considered the documents the Council sent in response to my enquiries.
6. I spoke with Care Provider U on the phone.
7. Ms L, Ms J 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 legislation and guidance

The Care Act

8. Councils must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. ‘Wellbeing’ includes personal dignity and a person’s control over their everyday life. It must also involve the individual and where suitable their carer or any other person they might want involved. (The Care Act 2014, sections 9 and 10)
9. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support. The support plan must 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.
10. Councils should keep care and support plans under review. Government Care and Support Statutory Guidance says plans can be reviewed in three ways: a planned review; an unplanned review (usually due to a change in circumstances); and a requested review (when the person or another party asks for a review). Councils should review plans at least every 12 months to see if the person’s needs have changed and if a reassessment is needed.

The Human Rights Act

11. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, and respect for private and family life. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
12. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
13. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.
14. Article 8 is the right to respect for private and family life. Private life is a broad concept and covers things like the right to develop a personal identity and autonomy over an individual’s own lifestyle choices.
15. Article 14 of the Human Rights Act is about discrimination. Discrimination occurs when an individual is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified. Discrimination can also occur if an individual is disadvantaged by being treated the same as another person when their circumstances are different (for example if they are disabled or pregnant).
16. The FREDA principles set out the core principles of the Human Rights Act 1998 that underpin individuals’ basic rights;
• Fairness
• Respect
• Equality
• Dignity
• Autonomy

The Council’s brokerage system

17. The Council has a brokerage system in place for commissioning care providers. The Council sends the requirements of the care package to suitable providers registered in its brokerage framework. The care providers consider if they can meet the needs and, if so, they tell the Council the full cost of the care package. The Council decides which care provider it will commission to provide the care.

What happened

18. Ms L lives at home on her own and is in her 40s. She has a degenerative physical condition. Ms J is Ms L’s sister and represents Ms L when necessary. Ms L uses a wheelchair and needs help to move between her bed and her wheelchair. Ms L had previously arranged her own care. At the end of 2021 she asked the Council to arrange and commission her care package, which it did in November 2021.
19. The Council completed a needs assessment with Ms L in January 2022. It found that Ms L needed support in all areas of her life and 24-hour care.
20. The Council commissioned Care Provider U. Provider U wrote a care plan setting out how it would meet Ms L’s needs. It included making meals, supporting Ms L to eat and drink and to maintain a clean and tidy house.
21. Ms L had a number of falls while trying to use the toilet and shower in her home at the end of February 2022. An occupational therapist (OT) completed an assessment of Ms L’s needs and recommended a mobile hoist and sling so Ms L could continue to use the toilet and shower. The OT recommended the care package included a second care worker four times a day to help Ms L use the bathroom and get in and out of bed. The OT did not specify a time for the visits.
22. The Council arranged four additional care calls:
• two 30 minute calls in the morning and evening; and
• two 15 minute calls during the day.
23. Care Provider U contacted the Council on 10 March 2022 and told it the time for the care calls was insufficient. It said it needed 45 minutes in the morning and 30 minutes for the other three calls. The Council said it would not increase the care package.
24. Four days later the Council updated Ms L’s care plan. It recorded there would be four additional care worker calls as set out in paragraph 22.
25. Ms J asked the Council to increase the length of the calls on 15 March 2022 and for the last call to be moved back because Ms L was being put to bed at 7.30 pm which was too early. The Council said the allocated times seemed to be working well and Ms L was likely going through an adjustment period. Ms J repeated this to the Council two weeks later. The Council told Ms J to ask Care Provider U for a later bedtime call. Ms J contacted Care Provider U.
26. The Council contacted Care Provider U at the end of April and asked it to make the final care call later. The following day Care Provider U asked the Council to cancel the contract. It said ‘we cannot maintain a normal carer in place for her bed call because it takes so long, up to an hour and half for [Ms L] to go to bed. The morning call takes the same amount. We have asked for an increase and this has been declined. The only way we were able to deal with the situation was to have the carers who are finishing the day shift and night shift to double up. An outside carer will need to be paid for the full amount of time she stayed which is thrice the allocated time’.
27. On the same day, 21 April 2022, Ms L asked the Council to change the care provider. The following day the Council sent a notice to potential providers asking them to respond within four days.
28. The following day Ms L’s social worker arranged for Care Provider V to assess Ms L to see if it could meet her needs. Care Provider V agreed it could meet Ms L’s needs on 26 April 2022. It said the additional care calls needed to be 60 minutes in the morning, 45 minutes at bedtime and 30 minutes each for the two other calls. It told the Council how much it would cost on 10 May 2022.
29. The Council decided on 19 May 2022 because of the cost and level of care, it would ask other care providers to quote for Ms L’s package of care.
30. A further OT assessment of Ms L in May 2022 confirmed that two care workers were required every time Ms L needed to move between her bed, wheelchair or toilet. It did not state how long the care calls should take.
31. Ms J complained to the Council on Ms L’s behalf in May. She said:
• Care Provider U had told the Council in March the call times were too short to complete the tasks, she had also told the Council and asked for more time but the Council had never responded;
• she wanted to know how the Council decided how long the calls should take;
• she had asked the Council to change the care provider on 21 April 2022 and this had still not happened.
32. On 24 May 2022 Council records show it considered the care provided by Care Provider U was becoming ‘very unsafe’. The Council arranged for four care providers to assess Ms L’s needs. Care providers W and X assessed Ms L on 25 May 2022 and provided quotes. The Council confirmed with Care Provider U it would continue to provide care until a new provider was in place.
33. The Council arranged for Care Provider W to begin providing care to Ms L on 27 May 2022. Four days later the Council reviewed Ms L’s support plan again. It increased the care calls to 60 minutes in the morning, two 30 minute calls during the day and 45 minutes in the evening as Care Provider W said the calls needed to be longer.
34. The Council wrote to Ms L in June 2022. It said:
• Care Provider U did not state it could not complete the tasks in the time allocated and the times were decided based on the OT moving and handling report and assessments; and
• its brokerage system ensured all providers were given opportunity to see if they could meet a person’s needs.
35. In response to my enquiries Care Provider U could not supply the daily care records showing how it cared for Ms L on a day-to-day basis or how long the additional care calls lasted. Care Provider U said Ms L asked for written records, rather than electronic ones to be used and it agreed. It did not have a record of that agreement. Care Provider U told me Ms L refused to allow it to remove the written records from her home at the end of the contract.
36. Ms J states Care Provider U removed the written daily care records from Ms L’s home in two batches. The first in early May and the remainder were removed by the final care worker on the last day of the contract. Ms J provided me with a photograph of two pages of the care records covering 13 to 21 May 2022. The records are very sparse with no entries at all for some days. The only record mentioning Ms L being supported into bed was at 7.30 pm.

My findings

Insufficient care

37. Ms L had 24-hour care throughout the period under investigation. In March 2022 the Council introduced extra support for 1 hour and 30 minutes a day. There is no record of how the Council decided the time was appropriate. The Council increased the calls to 2 hours and 45 minutes a day in June 2022. There is no record of why the Council increased the calls or how it decided the timing was appropriate other than the new care provider said the calls needed to be longer. The Council’s failure to keep clear and comprehensive records is fault.
38. The statutory guidance states the Council should review the care and support plan where the person’s needs have changed or where the person, or their representative request one. Ms J, Ms L and Care Provider U all raised concerns that the allocated call times were insufficient and therefore the care was not meeting Ms L’s needs in March 2022. The Council did not complete a review or reassessment which is fault and not in line with the guidance.
39. The faults outlined in the two paragraphs above caused Ms L and Ms J frustration and uncertainty about whether the Council properly considered Ms L’s needs and whether her needs were being fully met.
40. Care Provider U cannot provide the daily records. It says Ms L kept the records. Ms J states Care Provider U took the records. I cannot make a finding on that point. However, the records I have available show Care Provider U told the Council the calls were not long enough in March 2022 and it could not meet Ms L’s needs. Ms L and Ms J repeatedly told the Council the calls were not long enough and did not meet Ms L’s needs. Ms L, an adult in her 40’s, was being put to bed at 7.30 pm because that was the time Care Provider U could provide two care workers. The Council increased the care calls by a further 1 hour and 15 minutes a day in May 2022, without any apparent changes in Ms L’s needs. The Council delayed in properly considering the issues raised by Ms L, her representative and the care provider. This is fault which causes uncertainty over whether her needs were being met and frustration that the Council was not acting on the concerns raised.

Human rights

41. The Council was aware Ms L was being put to bed at 7.30 pm in March 2022, it was also aware that Ms L did not want to go to bed at 7.30 pm. It did not request a later bedtime call until late April 2022. This delay was fault. When the care provider then decided to end the contract, the Council took no action to address Ms L’s concern about the early bedtime. Ms L should have been afforded the dignity and autonomy to make choice about her own bedtime. The Council did not give due regard to Articles 8 and 14 of the Human Rights Act, or the FREDA principles in its treatment of Ms L. This caused Ms L distress.

Changing the care provider

42. When Care Provider U and Ms L asked the Council to commission a new care provider the Council began its brokerage process. Care Provider V responded and assessed Ms L’s needs. Care Provider V told the Council the cost two weeks later. The Council took nine days to decide it was too expensive and then asked other providers to quote for Ms L’s care. It took seven days to arrange a new care provider from that point. The Council ensured Ms L’s care continued during this period but identified the care was becoming unsafe. The Council could have requested quotes from other care providers earlier. The Council was not proactive in finding an alternative provider in a timely way and allowed drift and delay in the brokerage process, which is fault. It caused Ms L frustration and distress as she was cared for by a provider she had asked to be removed for four weeks longer than necessary, and was put at risk of harm.

Council’s complaint response

43. The Council told Ms L Care provider U had not said it could not provide the care in the allocated time. That was not true, Care Provider U had told it so on 10 March 2022. The Council said the duration of the calls were based on the OT’s assessments, but there is no evidence that supports this. Ms J had complained about the delay in commissioning a new care provider. The Council did not respond to that and explained its brokering process. The Council’s response was inaccurate and did not fully respond to Ms J’s complaint. That was fault and caused Ms L and Ms J frustration.

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Agreed action

44. Within one month of this decision the Council will:
• Write to Ms L and apologise for the uncertainty and distress caused to her by the faults. It will pay her a symbolic amount of £750 to recognise the same; and
• Write to Ms J and apologise for the frustration and uncertainty caused to her by the Council’s faults. It will pay her a symbolic amount of £300 to recognise the same.
45. Within three months the Council will:
• remind relevant staff of the importance of keeping clear and accurate records about decisions on how long a care call should take in each individual’s circumstance;
• remind relevant staff of the statutory guidance about when a person’s care and support plan should be reviewed and provide guidance on how to recognise a request for a review;
• remind relevant staff of the FREDA principles and provide guidance on how the FREDA principles should be considered when commissioning domiciliary care; and
• ensure the brokerage process indicates the Council should proactively request quotes from more than one provider where a care package is complex or likely to be high cost, to minimise delay.
46. The Council will provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman