Summary: There was fault the Council did not ensure Mr X had care provision after his care provider stopped providing support at short notice. This was despite its best efforts to locate another care provider. This gap in care support however, caused Mr X and his mother, Mrs B, an injustice, and the Council have agreed to make a payment to them to fully recognise their injustice.

The complaint

1. Mr X said the Council was at fault because it did not do enough to prevent his care provider finishing their contract to provide care support to him. Mr X said this meant he had no care for a long period, while the Council tried to find another care provider.
2. Mr X also said the Council did not take a ‘person centred’ approach in its contact with him and there was a lack of communication.
3. Mr X said this left him feeling disempowered and had an impact on his family who had to step in and provide his care.

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The Ombudsman’s role and powers

4. 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)
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’. 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)
6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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What I have and have not investigated

9. Mr X has made other complaints about aspects of his care and support package, relating to a different time period. I have investigated the Council’s actions about his care provision leading up to and including the period between December 2021 and April 2022 only. I also looked at how it dealt with his complaint about this.
10. Mr X also complained about other concerns about his contact with the Adult Social Care team at the Council including;
• frequent changeover of social workers;
• it wrongly shared information with others;
• the conduct of a senior practitioner;
• it ignored an information request.
11. I will not investigate those matters. I have considered the Council’s response to Mr X’s complaint which included these matters above. From the evidence I have seen it appears to be a thorough examination of the issues with properly considered conclusions. The law provides us with discretion to not investigate where we believe we would reach the same conclusion as the Council.

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How I considered this complaint

12. I spoke to Mr X about his complaint and considered the information he provided.
13. I considered the documents the Council provided.
14. I considered relevant law and guidance in this area.
15. I have considered our Guidance on Remedies.
16. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

Care Plan

17. The Care Act 2014 gives councils 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 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.

Reviews

18. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the persons needs. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Council complaint procedure

19. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it has taken all the necessary actions; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

Background

20. Mr X lives alone and has a diagnosed learning disability. The Council provide a care package to meet his care and support plan. Mr X told me this amounts to 15 hours of support per week, which he said included help with shopping and preparing evening meals.
21. In June 2021, the Council reviewed Mr X’s care and support plan. At that time Company A were providing care for Mr X, and the weight of evidence says Mr X was happy with the care Company A was providing.

What happened

22. In early November, the Council carried out a review of Mr X’s care provision. This coincided with a decision by Company A to increase the number of carers who visited Mr X at each care visit. This decision then reduced the number of hours care provision it gave to Mr X.
23. According to the review report, Mr X put forward his views about this change in provision. Mrs B was also present at this meeting. The report reflects Mrs B felt Mr X would need to have the level of provision increased to fully meet his needs.
24. According to the notes, the Council recommended Mr X would need a full ‘care act’ assessment to clarify his level of need. It also said Mr X would need an assessment on his capacity including medication and finances. In her response to my draft decision, Mrs B said she had asked for this to happen in June, but I have not seen any evidence of this request.
25. Further, there is no documented evidence that Mr X or Mrs B were unwilling for Company A to continue providing Mr X with care provision, or that the Council needed to find a new care provider at that point. Mrs X has disputed this version of events saying she was unhappy for Company A to carry on providing Mr X with support.
26. In late November, the Council completed another review, saying that Company A were intending withdrawing from providing Mr X with care support at some point soon. The evidence shows Mr X also had a discussion with the Council, around this time, about finding a new care provider.
27. According to the case notes, in early December, the Council made a note that Company A had asked the Council to find another care provider for Mr X. It said this was because it could not provide all the care, including the social hours on Mr X’s care and support plan. It also said this was because of the number of complaints Mr X and Mrs B had made about their service.
28. Two days later, Company A contacted the Council saying it was withdrawing support immediately without giving the expected 90-day notice. It said it was doing this because none of the care workers it employed were willing to provide care to Mr X.
29. The Council contacted Mr X several days later to give him an update. It also told him it had put out a request for a new care provider and was waiting for feedback. It told Mr X it would have feedback on its request by mid to late December. The case notes suggest it confirmed Mr X’s family would support him while it was trying to locate another care provider. Mr X’s family do not agree this was their position.
30. I have seen the commissioning form the Council provided, dated in early December, coinciding with this call to Mr X. It identifies Mr X’s care and support needs in line with his earlier provision.
31. The Council’s case notes show it met with Mr X and Mrs B in mid-December. The Council said this visit was to begin the review of Mr X’s needs. It also said it would wait for further assessment work which a speech and language therapist and an occupational therapist were due to complete.
32. The Council also said if it could not locate a care provider, it was willing to consider making a direct payment to Mr X. Neither Mr X nor Mrs B were willing to take this option because they thought it was unmanageable for them.
33. In late December several care providers had declined to provide support in line with the Council’s request for care provision. The Council re issued its earlier request. The Council gave this update to Mr X who said he may consider taking a direct payment in the new year.
34. In January, the Council re issued its request for care provision on two more occasions, because it still had not had a response.
35. In early February, Company B contacted the Council saying it may be able to provide care support and the Council arranged a follow-on meeting for late February.
36. In March, Mr X met with representatives from Company B and the new care provider started providing care in early April.
37. The Council provided me with information about an assessment it carried out on Mr X in March 2022. The assessor noted that it was evident Mr X’s mental health had deteriorated.
38. In early May 2022, Mr X first made a complaint to the Council. He complained about the missing care provision and other matters, which I have not investigated.
39. Mr X said he met with the initial investigating officer about two weeks later. Mr X said after this, his advocate had to constantly chase the officer for updates, which were beyond the agreed deadlines. In late August they met with Mr X to discuss his complaint.
40. The investigator completed a report in late September and the Council sent Mr X two responses in late October and mid-November.
41. It said because at the time there was a care crisis across the country, this impacted on the Council’s ability to identify alternative care providers for its clients. It accepted there was a period where he had no support.
42. It also accepted it took too long to respond to his complaint and made an offer of a £150 remedy payment in recognition of his time and trouble.

My findings

Care Plan

43. Mr X said he had no care for a significant period, and he said this was partly because the Council did not step in to resolve issues effectively. I have not seen any evidence of fault here. The weight of evidence shows Mr X initially had no concerns about Company A.
44. When it said it was aware of concerns, the Council organised a meeting between Company A and Mr X including Mrs B, in early November. It said this was to try and resolve their concerns. This relationship then broke down and the care provider had no care workers who were willing to provide care support to Mr X. These are matters outside the Council’s control and I find on balance there was no fault in the Council’s actions here.
45. The Council then made continual efforts to locate another care provider. It also kept Mr X up to date and met with him to discuss contingency plans. Despite their best efforts the Council were unable to locate a care provider and there was a gap in Mr X’s care provision of four months. This is still a fault, because it had a duty to ensure care provision in line with Mr X’s care and support plan, however I would describe this as a service failure.
46. Our guidance says service failure is an objective and factual test of what happened in any set of circumstances. It says it does not involve any judgement about the Council’s intentions or specific flaws in policy or process. It also says this can be evident where an effective policy does not work because of an inability to recruit staff or other factors outside the Council’s control.
47. Mr X told me this lack of care support had a significant impact on him and his family, who had to provide him with the care he would otherwise have had. This fault was an injustice to him because of avoidable risk of an adverse impact on his wellbeing. It was also an injustice to Mrs B because of the avoidable inconvenience in her having to provide care.

Council complaint procedure

48. The Council accepted it had taken too long to deal with Mr X’s complaint and I believe the Council’s remedy offered of £150, is an appropriate remedy for his injustice here.

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Agreed action

49. Within one month of the date of my decision, the Council should pay;
• Mr X £200 for the avoidable risk of harm;
• Mrs B £200 for the avoidable distress and inconvenience caused.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. There was fault.

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Investigator's decision on behalf of the Ombudsman