Summary: Miss X complained on behalf of her mother, Ms Y, about the quality of care provided by a Council-commissioned care provider and other decisions related to her care. The Council was at fault for poor record keeping, failure to deliver care in line with Ms Y’s care plan, and poor communication. It was also at fault for failing to complete a carer’s assessment with Miss X. There was no fault in the Council’s decision to not pay Miss X as a carer, or its decision to reduce and then reinstate Ms Y’s care hours. The Council agreed to apologise and pay Miss X £400 in recognition of the care provider’s failure to follow the care plan and the time and trouble and uncertainty caused by the faults.

The complaint

1. Miss X complained on behalf of her mother, Ms Y. Miss X says the Council-commissioned care provider failed to provide appropriate care to her mother between January and February 2022.
2. Miss X also complains the Council:
• Did not investigate her complaints about the care provided by care provider A and her concerns about being taken out by carers on an unplanned day, £10 going missing from Ms Y’s home, not completing actions in the Care Plan such as cleaning and feeding her mother and withdrawing care without notice.
• Commissioned an alternative provider in February 2022 but did not inform her of this.
• Provided no care to Ms Y between 28 February and 15 March 2022.
• Delayed in setting up direct payments after she requested these in January 2022 and about its decision that it could not pay her as Ms Y’s carer.
• Reduced the number of care hours her mother received under her Care Plan following a review of her needs in April 2022.
• Failed to conduct a Carer’s Assessment after it offered this to her in April 2022.
• Failed to send her copies of the assessments completed of her mother in 2022.
3. Miss X says the matter has caused distress, frustration and has impacted on both her and Ms Y’s physical and mental health and has left them financially disadvantaged.

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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. Part 3 of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 Local Government Act 1974; section 25(6) & (7) of the Act)
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
7. When considering complaints, if there is a conflict of evidence, 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.
8. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission.
10. 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

11. I spoke with Miss X about the complaint and considered information she provided.
12. I considered information provided by the Council.
13. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments received before I made a final decision.

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What I found

Background information

Safeguarding

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Assessment and care planning

15. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person 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.
16. If a person has eligible needs, a council must provide a care and support plan (or a support plan for a carer). The plan should consider what needs 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. When preparing a care and support plan the council must involve any carer the adult has. 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.

Carer’s assessment

17. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment 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.
18. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Direct payments

19. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them.
20. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
21. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. The council should consider the request as quickly as possible.
22. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)
23. The Council has a policy on direct payments – the “Adult Social Care Standard Operating Procedures”. It says where a third party is managing and requesting direct payments, they themselves cannot be a paid carer: “the suitable person/ nominated person may not be a paid carer or personal assistant, as this would be a conflict of interest”.

Care provision

24. 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.
• Regulation 12 is about safe care and ensuring people are receiving care that avoids them coming to harm or risk of harm.
• Regulation 17 is about good governance. This includes keeping accurate, complete and detailed records about people receiving care, including records of care provided and decisions made about care.

Lasting Power of Attorney

25. Health and Welfare Lasting Power of Attorney (LPA) gives the attorney(s) the power to make decisions about another person's (the donor’s) health and personal welfare, such as day-to-day care, medical treatment, or where they should live. Any decision must be in the person’s best interests.

What happened

26. Miss X has LPA for Health and Welfare for Ms Y.

Care provision between January and February 2022

27. Ms Y had a care plan and care package provided by the Council to meet her needs in her home. The care plan dated October 2021 outlined Ms Y would be visited for one hour at breakfast, 45 minutes at lunch, 30 minutes at dinner and 30 minutes at bedtime. There were additional hours for laundry and shopping (two hours per week) and social inclusion (three hours per week). The plan set out actions for care staff to complete through the day – this included providing personal care, food, cleaning, “meds prompting” and ensuring Ms Y’s safety.
28. The Council commissioned a local care provider, provider A, to deliver Ms Y’s care package on its behalf. In early February 2022, provider A says it gave Miss X and the Council notice that it would stop delivering Ms Y’s care at the end of the month.
29. In mid-February 2022 Miss X had concerns about the quality of care being provided and complained to provider A. She said:
• A carer had taken Ms Y out on a day she was not scheduled to leave home – with one carer taking her out and a different carer returning her;
• £10 was missing from Ms Y’s home;
• Carers had left rubbish on the floor and were not cleaning adequately;
• Carers had contacted Miss X directly to say they were unwell and asking Miss X to cover their visits; and
• Provider A had withdrawn their services after receiving a complaint about their service.
30. In late February 2022 Miss X also complained to the Council. She summarised the concerns above and said provider A had not responded to her complaint. She said provider A had called her on that day to inform her it was not returning to provide the care package the following day.
31. Provider A ceased providing the care package in late February 2022. The Council arranged another provider, provider B, who began the following day, but Miss X was unhappy with the carer’s performance and told the Council she would not accept carers from provider B after one day.
32. Care provider A responded to Miss X’s complaint in mid-March 2022. It said:
• It was sorry for the delayed response.
• It had found no evidence of £10 missing but offered a payment of £10 as a goodwill gesture.
• It apologised if there were instances where rubbish was not taken out or cleaning was not completed. It said its carers had reported to have followed the care plan which included cleaning the house and taking out rubbish.
• It had not been aware that a member of its staff had requested Miss X cover their shift during illness. It said this was against its policy, which says workers should call the care provider and the care provider would then send another worker. It said it was taking disciplinary action against the staff member.
• Community outreach could happen on different days depending on a variety of factors including service user mood. It found the main carer had been on leave and that two carers had been scheduled to visit – one for the morning and lunch visits and one for community outreach. It had sent a rota to Miss X the day before. It found the same carer that took Ms Y out of the home had returned her. It said the carers had met Ms Y before on shadowing days.
• It had withdrawn its offer of care because Miss X requested one of its care staff to be directly employed through direct payments and had asked staff to complete additional activities outside the care plan. It was also unable to meet her request for one carer to provide care 7 days per week and said it had informed her of the matter several weeks earlier.
33. Miss X says she did not approach the carer to provide direct care but spoke generally about direct payments with her.
34. In April 2022 Miss X submitted a further complaint to the Council about provider A. She said carers failed to complete work in the plan, said Ms Y had no clean clothes or food, that carers failed to attend on multiple occasions, left early and highlighted that Ms Y required assistance with medicine and personal hygiene. Miss X said she had to step-in to provide care to her mother not delivered by provider A, and that her own health needs impacted on her ability to do so.
35. In late April 2022 the Council responded to Miss X. It said it understood that the care concerns had been addressed directly by provider A.
36. In response to our enquiries, the Council said:
• It was unable to provide care logs for a 2-week period at the start of January as they had not been collected by the provider A.
• It had conducted a safeguarding review of the concerns raised by Miss X at the time and found that the same carer that took Ms Y out returned her home. It said there was no evidence of £10 being stolen, but that £10 had been offered as a goodwill gesture by provider A in any event.
• It had commissioned provider B to begin work immediately after care provider A ended, but Miss X rejected provider B after one day of attendance.
37. The Council provided 5 weeks and 2 days of care visit logs between mid-January 2022 to the end of February 2022.

My findings

38. I have reviewed the care logs and considered the standard of care provided to Ms Y.
39. The care logs indicate Ms Y was provided with appropriate care during visits including meal preparation, personal care, and safety checks. The carers generally stayed for the time Ms Y was entitled. However, the care logs were not always comprehensive. There is no record of the time Miss X complained about one carer taking Ms Y out of the home and another carer returning her. There are also several instances where there is no time recorded of when staff started or ended their shift. There were two weeks of records missing from the start of January.
40. The above is poor record keeping and is fault. This caused Miss X uncertainty about whether the care provided to Ms Y was consistent and in line with her plan.
41. Ms Y’s care plan also says she would be prompted for medication during all four visits. Only morning and evening visits record medication prompting, with eye drops sometimes being provided at lunch. There is no record of what medication Ms Y should have taken and when, so I cannot know if carers prompted Ms Y appropriately. This causes uncertainty about whether the carers prompted Ms Y to take her medication at each visit.
42. There are several times when no logs of visits were recorded. Miss X says she had to provide care to her mother on these occasions due to care staff calling her directly to say they were unwell or unable to visit. Provider A said it had not been aware their staff member was contacting Miss X directly to cover their shifts. It acted as soon as Miss X made it aware of the matter. This was an appropriate response. However, provider A did not apologise to Miss X for the fault.
43. The logs show staff regularly combined the two 30-minute evening and teatime visits into a single one-hour visit. This is against what is recorded in the care plan and is fault. The fault resulted in Ms Y not receiving the provision as detailed in her care plan such as a light snack on an evening or offering to take her to bed. It also meant she was visited later than planned after lunch so there was a longer gap between her meals and safety checks. However, despite this, there is no evidence the fault caused Ms Y to come to any harm.
44. Miss X told the Council she had to meet some of the Ms Y’s care needs including food shopping and said Ms Y had no clean clothes. The records show laundry was completed every week aside from the final week when provider A ceased their involvement. Therefore, on a balance of probability I consider it more likely Ms Y had clean clothes available. However, there are no records which indicate care staff used the allocated time in the plan to complete food shopping, only laundry. Due to the lack of records, I cannot know whether the care staff completed food shopping for Ms Y. This caused Miss X uncertainty about whether the carers were completing the task.
45. In addition, the care plan said carers would complete cleaning tasks at every visit. Miss X complained this was not undertaken to a good standard. The records are inconsistent with some visits recording cleaning and others not. I cannot say for certain whether the standard of cleaning was appropriate, but there is no evidence Ms Y came to harm in any event.
46. Miss X complained £10 was missing from her mother’s home. The care provider’s offer of a £10 goodwill payment to replace the missing money is appropriate to remedy any injustice Ms Y may have experienced and I will not investigate this matter further as it is unlikely further investigation will lead to a different outcome.
47. In addition, both the Council and the care provider have said they found the same carer returned Ms Y to her home as took her out. It is unlikely further investigation of this matter would achieve a different outcome and therefore I will not investigate this matter further.

Interim care & direct payments

48. After provider A stopped providing care, provider B was commissioned to deliver the care package in late February 2022. However, Miss X was unhappy and informed the Council she would not accept them after one day of provision. After provider B stopped, Miss X applied to the Council for a direct payment so she could organise and arrange Ms Y’s care herself. In the interim, Miss X provided care for Ms Y and employed carers who started in mid-March 2022.
49. In her complaint to the Council in April 2022, Miss X said she wanted to be paid for the work she had done as carer for Ms Y in March 2022 and ongoing care she was providing and complained no care had been provided by the Council.
50. The Council responded in late April 2022 and told Miss X it could not pay her for her work through direct payments because she holds LPA and this would be against government guidance and its policy.
51. Miss X said she later employed carers and received the first direct payment in late April 2022, backdated to mid-March 2022.
52. In response to our enquiries the Council said:
• It had received a request for direct payments in early February 2022 for which it provided information and advice on the process.
• It had been in communication with Miss X and in late March 2022 it re-sent information for the setup of direct payments.
• During the review in early April, it had discussed and answered Miss X’s questions about the process and scheme.
• Miss X had employed carers and therefore it backdated the direct payment to mid-March 2022 when they had begun.
• It had not conducted further investigation into Miss X’s concerns about care provider B’s actions as she had withdrawn consent for input after only one day.

My findings

53. When Miss X became unhappy with the care provided by provider A, the Council offered interim carers until direct payments could be organised. It was Miss X’s choice to refuse the alternative care offered whilst she organised direct employment of carers for Ms Y and to provide interim care herself. The Council was not at fault.
54. There was also no fault in the Council’s response to Miss X’s application for direct payments. Once the Council received the application it considered the matter, met with Ms Y and Miss X to answer their questions, and set up the payments which were appropriately backdated.
55. Miss X requested the Council pay her through direct payments as a carer for Ms Y. The Council considered the request, and decided it would not agree to pay Miss X. The Council’s policy states that it will not pay the person managing the direct payments as a carer as this would be a conflict of interest. Therefore, there was no fault in the Council’s decision not to pay Miss X as a carer for Ms Y.

Care plan review & assessment

56. In April 2022, Ms Y’s care plan was reviewed by the Council. The Council decided to reduce Ms Y’s package of care by one hour. Miss X appealed the decision and upon reviewing the matter the Council said it chose to reinstate the original hours.
57. Following the April review, Miss X requested a new social worker be allocated and a re-review of Ms Y’s circumstances take place. A new worker was allocated, and a re-assessment began shortly after. After the updated review, the Council increased Ms Y’s personal budget and provided a backdated payment for the difference between the previous assessment and the reassessment.

My findings

58. Miss X appealed the Council’s decision to reduce Ms Y’s package of care. The Council considered the appeal and decided to reinstate the original hours. We cannot question a Council’s decision unless there was fault in the way the decision was made. The social worker completed a review of Ms Y’s care package and concluded a reduced package of care was appropriate. Upon receiving the appeal, the Council chose to reinstate the hours and later increased Ms Y’s personal budget after a re-assessment. It also provided a backdated payment. There was no fault in the decision to reinstate the hours and no injustice to Ms Y in any event.

Information sharing

59. Miss X complained to the Council in February 2022 that care provider A did not provide sufficient notice before ending its involvement and raised concerns that the provider failed to give notice. She also said the Council failed to consider a Community Mental Health Team (CMHT) assessment as part of her mother’s Care Act assessment and that she had received no copies of the assessments or care plans.
60. The updated assessment of Ms Y’s care needs finalised in September 2022 shows the social worker did consider the assessment from the CMHT. It decided a referral was not needed but made recommendations about Ms Y’s accommodation. However, Ms X was not provided with a copy of this document.
61. In response to our enquiries the Council said provider A had provided sufficient notice, but the Council had not informed Miss X or Ms Y of this. The Council accepted its communication and information sharing could have been better and said it had now sent copies of the assessments to Miss X. It offered to write to Miss X and apologise for the lack of communication and offer £200 in recognition of the time and trouble she has taken to raise the concerns on behalf of Ms Y.

My findings

62. The Council commissioned another provider to begin in late February 2022. The Council did not inform Ms Y or Miss X of this change of provider. This is poor communication and is fault. This caused Ms Y uncertainty about the care she would be provided. It caused Miss X uncertainty about whether provider A had withdrawn its services because she had complained.
63. The Council accepted that it had not sent the completed assessments to Ms Y or Miss X. This is poor communication and is fault. This caused Miss X uncertainty about the care Ms Y would be entitled to and whether the Council had considered all factors, such as the CMHT assessment, in its decision making.
64. The Council’s offer to write an apology for its poor communication and pay Miss X £200 in recognition of the time and trouble she has taken to address the matter is an appropriate remedy for the injustice caused and in line with our guidance on remedies. The Council should now make this offer directly to Miss X.

Carer’s assessment

65. Ms Y’s care act assessment completed in April 2022 recommended Miss X be offered a carer’s assessment to understand the impact of her caring role and how the Council could support her. Miss X said no assessment was completed.
66. In response to our enquiries, the Council said the carer’s assessment had not been completed due to prioritising other care matters for Ms Y. However, it said the assessment should have been offered and completed and that it had contacted Miss X to arrange this.

My findings

67. Upon receiving a request for a carer’s assessment, the Council must conduct the assessment in a timely manner. It did not do so, and this is fault. The fault caused Miss X uncertainty about services and support she would be entitled to. The Council has said it will now offer to complete the assessment with Miss X, which is an appropriate action, but the delay offering Miss X this assessment had caused her frustration and uncertainty.

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Agreed action

68. Within one month of the final decision the Council will write to Miss X to:
• Apologise to her and Ms Y for provider A’s failure to provide care in line with the care plan by combining the tea and pm visits;
• Apologise to her for the frustration and time and trouble it caused when provider A staff called Miss X directly when they were unwell and failed to follow procedures. It should also apologise for the poor record keeping which caused her uncertainty about the care provided to Ms Y.
• Apologise to her for the uncertainty it caused when it failed to conduct a carer’s assessment about the support she would be entitled.
69. Within one month of the final decision, it will also pay Miss X £400. This is comprised of:
• A symbolic payment of £200 in recognition of provider A’s failure to deliver Ms Y’s care in line with her care plan.
• £200 for poor communication and time and trouble.
70. Within one month of the final decision, the Council will:
• Complete the carer assessment with Miss X and provide us with evidence it has done this.
• Remind relevant staff that when a request for a carer’s assessment is made, the assessment should be completed in a timely manner.
71. Within three months of the final decision, the Council will complete a quality monitoring review for provider A to ensure it is providing a sufficient standard of care in line with resident’s care plans and staff are reminded of the need to keep clear and appropriate records.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have completed my investigation. I have found fault and the Council has agreed actions to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman