Summary: Mrs X complained about the care provided to her daughter by the Council, delay with setting up direct payments, and its safeguarding investigations. There was fault with the Council not following part of its safeguarding policy but there was no injustice as the risk had been removed. We found fault as the Council did not meet her daughter’s needs consistently for a long period. It also delayed considering Mrs X’s needs as a carer. These faults caused Mrs X significant distress. There was delay in setting up direct payments which further caused uncertainty and frustration. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. The complainant, whom I refer to as Mrs X, complained the Council has failed to provide adequate care support for her adult daughter, whom I refer to as Miss Y. She has had to manage caring for her daughter’s complex needs on her own for over a year. She said this has caused stress, frustration and impacted upon her physical and mental health.
2. She also raised concerns with safeguarding investigations the Council carried out in relation to the care of her daughter.

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What I have and have not investigated

3. I have investigated the period from April 2021 (when a care agency placement broke down) to July 2022 (when the complaint was brought to us). Some of the issues have been ongoing and moved on since.
4. Mrs X’s complaint form referenced issues since 2020, including a safeguarding incident raised in March 2020. This is outside of the period outlined above. Due to the passage of time, investigation into this historic matter may not enable me to reach a sound, fair, and meaningful decision. There are no good reasons to consider it further now.

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The Ombudsman’s role and powers

5. 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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
7. 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)
8. 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)
9. 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

10. I discussed the complaint with Mrs X and considered her views.
11. I made enquiries of the Council and considered its written responses and information it provided.
12. Mrs X 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

Law and policy

Carers Assessment

13. 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 carers assessment. A carers assessment must seek to find out not only the carers 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.
14. As part of the carers assessment, the council must consider the carers 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

15. 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. If they do so, the council should support them to use and manage the payment properly.

Safeguarding

16. Whenever a council receives a complaint or allegation of abuse, it should keep clear and accurate records of the action taken. There should be a clear record of past incidents, concerns, risks, and patterns. (Care and Support Statutory Guidance, Section 14)
17. The Care Act 2014 and the Care and Support Statutory Guidance set out the Council’s safeguarding duties. Section 42 of the Care Act 2014 says councils have a statutory duty to safeguard adults.
18. The safeguarding duties apply to an adult who:
• has needs for care and support (whether or not the local authority is meeting any of those needs);
• is experiencing, or at risk of, abuse or neglect; and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
19. If a council decides the section 42 threshold is met, it must: ‘Make or cause to be made whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.’
20. Although the Council is the lead agency for making safeguarding enquiries it may need others to undertake them, such as health services. The Council keeps overall responsibility for leading the safeguarding process, and ensuring the body making the enquiries does so properly and the outcome is satisfactory. (Care and Support Statutory Guidance, Section 14)

What happened

Background

21. The Council provided me with Miss Y’s care records and associated documents. I have summarised below the key events. This is not intended to be a detailed account of everything that happened.
22. Mrs X has an adult daughter (Miss Y) she cares for. Miss Y has complex needs, is wheelchair bound and non-verbal. She lacks mental capacity to make decisions for herself. In June 2021, Mrs X was appointed by the Court of Protection as a Deputy for Miss Y’s Health and Welfare.

Care provided to Miss Y

23. From October 2020, Care Agency A provided home care to Miss Y. In April 2021, Miss Y had a new allocated social worker (SW). Case records state Mrs X phoned the SW, stating her own health needs had changed and asked for help to manage with Miss Y.
24. Care Agency A gave notice and its care ended in May 2021. Miss Y required 2:1 care with core support, hoisting and transfers and two shower calls per week. In July 2021, after contact with several agencies, the SW identified Care Agency B (“the Agency”) could provide the package of care for Miss Y’s needs.
25. This was discussed with Mrs X on a phone call. Mrs X stated she was interested in employing a team of Personal Assistants (PA) as someone she knew had offered their services to help care for Miss Y. From past experience, she felt working with agencies was difficult. With Miss Y’s very specific and complex needs, Mrs X was concerned with carers lacking in knowledge, experience, and competence. The SW said it was an option but to meet Miss Y’s urgent needs, it was not viable to get in place soon.
26. In mid-July 2021, the Agency’s package of care was approved at an internal Council decision making panel. It could not start promptly as it needed to replace workers who had left. There were delays as it struggled to recruit staff for the package.
27. In early September 2021, case records showed discussions with the SW and her manager as care was still not in place for Miss Y. They raised concerns about Mrs X having to manage the care herself. Mrs X had spoken to the SW about her struggle doing it on her own.
28. Miss Y had an annual allocation of overnight stays to give respite breaks to Mrs X. In light of this, Mrs X was offered a further nine nights, in addition to their normal entitlement.
29. At the end of September 2021, the Agency’s services for Miss Y began, staffed with three carers.
30. In November 2021, Mrs X raised issues with the Agency. Mrs X felt it was not working and carers had been inconsistent and unreliable.
31. In December 2021, Mrs X made a safeguarding referral against one of the carers (Carer D) who was removed from the package. Due to staff shortages, Mrs X was providing a lot of the care for Miss Y by herself again or with one carer.
32. In January 2022, case records show the SW mentioned the possibility of putting direct payments in place during a phone call. The SW agreed the Agency were not providing a satisfactory service.
33. In February 2022, a review meeting was held about Miss Y. The Agency were not covering showering calls as only a single carer was being sent. The SW contacted agencies to try and cover the showering calls.
34. The Care Plan dated February 2022 had direct payments included on the budget calculator about costs of support for Miss X. It stated “so [Miss Y] and her parents can pay for services that meet [Miss Y’s] needs – for services provided in the home and elsewhere”.
35. In April 2022, Mrs X informed the SW and the Agency she wanted to step back from her caring role and requested an extra member of staff in addition to the single carer who came. She asked that the shifts be cancelled if that was not possible. In response to my draft decision, Mrs X stated this was also due to the single carer often being inconsistent with attending shifts.
36. In May 2022, the SW made a referral to an organisation that managed direct payments, to set it up for Miss Y. The Agency had stopped attending to Miss Y since Mrs X’s message. Nothing had been organised since to staff the package.
37. In June 2022, the SW made contact with several providers to meet showering calls; none could take it on. Mrs X gave notice to the Agency.
38. Mrs X complained to the Council. This included concerns about safeguarding investigations by the Council, delay in direct payments, and the lack of appropriate care for Miss Y.
39. The Council responded:
• it was satisfied appropriate enquiries were made in its safeguarding investigation in 2021 in accordance with its duties under the Care Act 2014. Not upheld;
• it had considered PA support, but it had pursued finding an alternative care agency. It confirmed direct payments had now been agreed as the preferred option to commission Miss Y’s care. Partially upheld; and
• it acknowledged difficulties in finding suitable care options which caused disruption to the provision of care to Miss Y, impacting on both her and Mrs X. It recommended an apology. Partially upheld.
40. In July 2022, Mrs X complained to us. She added there was inaccurate information in the Council’s complaint response.
41. In speaking to Mrs X, she said when the Agency was proposed as the care provider for Miss Y in July 2021, she had reservations as she had prior experience of the agency having staffing issues. She said she had raised this with the SW but agreed to the care as the SW said it could be implemented straight away.
42. In her complaint correspondence, Mrs X said she was unable to make use of the extra nights respite due to Covid-19 restrictions.

Safeguarding

43. At the end of November 2021, Mrs X submitted a safeguarding form to the Council against one of the carers (Carer D) from the Agency. She had concerns of possible physical and psychological abuse towards Miss Y.
44. This was forwarded to the Council’s Safeguarding Duty Worker. They tried to call Mrs X the following day. They contacted the Agency who confirmed it had removed Carer D from Miss Y’s package. The Care and Quality Commission (CQC) was notified. Mrs X was spoken to about her concerns. It was concluded further work was needed under a Section 42 enquiry.
45. The SW discussed desired outcomes with Mrs X and made enquiries with professionals and others who worked with Miss Y. She shared this information with the Agency and asked it to do its own internal investigation.
46. The Agency confirmed to the SW it had completed its investigation and had proceeded with its disciplinary procedure against Carer D. It made recommendations for them and said they would not return to work with Miss Y.
47. At the end of December 2021, the Agency informed Mrs X of the outcome of its investigation via phone call.
48. In January 2022, the records state the SW confirmed the Agency would inform CQC of the outcome of its internal investigation. The Agency later told the SW that Carer D had since resigned.
49. The SW replied she would contact the Agency “in due course regarding the safeguarding Section 42 enquiry and outcomes”.
50. In March 2022, the SW emailed the Agency that she was about to conclude and close the safeguarding for Miss Y. She requested it to inform the Disclosure and Barring Service (DBS). Records stated Miss Y’s family had requested an update via letter, instead of an outcomes meeting.

Council’s response to my enquiries

51. In response to my enquiries, the Council confirmed a carers assessment for Mrs X was completed in August 2022 and reviewed in October 2022. It had first offered one in December 2021. Mrs X declined at the time as she had upcoming meetings with the care agency and her safeguarding concerns. The Council had offered a further two times before July 2022.
52. The Council said the delay in setting up direct payments between May and September 2022 was because of confusion about amounts being requested. It concluded this had been unnecessary as the funding was already available based on Miss Y’s assessed need.
53. The Council said there were difficulties in identifying a provider for consistent care related to availability, despite social workers trying their best. The Council confirmed no provider support has been in place for Miss Y since April 2022.
54. I reviewed the “Joint Multi-Agency Safeguarding Adults Policy and Procedures Summary, West Yorkshire, North Yorkshire and York, dated April 2018” and “York Safeguarding Adults Board Local Multi-Agency Operational Guidance for responding to Safeguarding concerns”.

Analysis

Miss Y’s care and carers assessment

55. It is clear that care provided to Miss Y by the Council has been inconsistent and fragmented since April 2021. 2:1 support has not been in place since November 2021, with no support for showering since April 2022. This is fault in the form of service failure as I recognise the attempts by the SW on several occasions, and there had been recruitment issues affecting the care sector.
56. While there was a lack of satisfactory care for her needs by the Council, in my view, this caused limited injustice to Miss Y. This is because Mrs X picked up the caring responsibilities for Miss Y by herself. However, this has resulted in significant injustice to Mrs X. She has had little to no support from the Council. This impacted on her health, well being and there was the risk of harm or injury to herself and Miss Y with the physical intensity required to care for her. The Council has acknowledged this failure to provide consistent care has been the cause of carer strain for Mrs X.
57. Mrs X asked the SW for support and help in April 2021 because of her own needs. A carers assessment was not offered to Mrs X until December 2021, eight months later. I commend the Council approving additional respite stays (although Mrs X wasn’t able to use them) however, in my view, this was not enough. There was the ongoing effect of carer strain for Mrs X along with the extent and complexity of Miss Y’s needs. This delay is fault, causing injustice to Mrs X. The Council should have taken action sooner for Mrs X to properly consider her wellbeing in an assessment.
58. In our published Guidance on Remedies, a symbolic payment can be recommended to acknowledge the impact of these faults, causing avoidable distress to Mrs X. When assessing distress, I considered the degree of inconvenience and frustration to Mrs X, with the severity and length of time involved. This also impacted on Mrs X’s relationship with, and caring ability for, Miss Y. This was reflected in the amount I recommended below.
59. The Council suggested a payment of £300 to acknowledge the distress to Mrs X. I did not consider this an appropriate remedy, for the reasons outlined above. As per Paragraph 6, I have acknowledged the actions of the Council as service failure because of circumstances outside of its control, rather than fault, however the injustice to Mrs X was still considerable.

Direct Payments

60. There was notable delay in the Council setting up direct payments for Mrs X:
• Mrs X said she asked the SW about using direct payments to employ her own PAs to care for Miss Y several times. The SW’s rationale in July 2021 was the Agency would be the most efficient way of ensuring Miss Y’s care and support needs were met. Whilst initially considered here, the care was not in place for another two months and further issues were identified with the Agency as time went on. There is no evidence of serious further consideration for the request for direct payments as an alternative means of sourcing the care.
• Mrs X formally requested for direct payments in January 2022. I have not seen evidence this has been put in place officially. The Council has already acknowledged fault with the reason for delay. I cannot say if appropriate care would have been sourced sooner if it were not for this, but this fault has caused uncertainty and frustration for Mrs X.

Safeguarding

61. After reviewing the safeguarding documents provided by the Council, I am satisfied the Council followed most of its policy after receiving the referral form by Mrs X. It made adequate enquiries within the timescales and made appropriate considerations as needed.
62. There was a three month gap between the SW saying they would update the Agency and the SW emailing to say she was going to close the safeguarding enquiry. There are no records to evidence what action, if any, had been taken in between. Mrs X said she did not receive an update from the SW. I have not seen the letter the Council said it would send to Mrs X about the closure decision.
63. I have also noted there was no clear evidence of closure. The Council should be the main lead and come to its own findings on the Agency’s investigation. There was no record of decision making to demonstrate this or to explain how it was fully satisfied the enquiry had been concluded effectively and if it sought evidence of a DBS referral. It did not follow its policy about the closure of an enquiry. This is fault, but there was no significant injustice to Mrs X or Miss Y. The risk had been removed promptly with no ongoing potential risk to Miss Y at the time.
64. I understand Mrs X was concerned if Carer D was still working in care however this is not something the Council has control over.

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Agreed action

65. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
66. Within a month of the final decision:
• Apologise to Mrs X for the failure in being able to find consistent and sufficient care for Miss Y over the last 18 months;
• Pay Mrs X £1000 as a symbolic payment to recognise the significant distress caused to her and the time and trouble she has taken to deal with this complaint;
• Pay Mrs X £300 to acknowledge the delay in setting up direct payments, causing uncertainty and frustration; and
• If it has not already done so, ensure direct payments are securely in place for Miss Y.
67. Within three months of the final decision:
• Issue reminders to appropriate staff to ensure they consider carrying out a carers assessment if it appears a carer may have any level of need for support; and
• Issue reminders to appropriate staff to ensure guidance and support is given when asked about direct payments and ensure proper consideration is given to these requests.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. I found the Council at fault which caused an injustice to Mrs X. The Council has agreed with the recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman