Summary: There was fault because the Council took too long to assess Ms B’s care needs and arrange care. It continued to invoice her for several months for care she was not receiving. It also did not respond to her advocate’s request for changes to her care needs assessment, and did not consider her dispute about the invoices. This caused Ms B distress and frustration. She had to rely on friends and family for care, and she became isolated. The Council has agreed to my recommendations to remedy the injustice.

The complaint

1. Ms B is represented by a law centre advocate. Ms B complains that the Council:
• Failed to arrange her care September 2021 to February 2022, when an informal carer was hospitalised;
• Did not ensure that the care provided met her needs, and did not investigate her complaints about poor care including that the carer took a video call while she was undressed;
• Took too long to complete a needs assessment, and its assessment was inaccurate;
• Did not properly complete a financial assessment as it did not include all of Ms B’s disability related expenditure (DRE);
• Failed to make reasonable adjustments for Ms B’s disability when it made its financial assessment; and
• Wrongly invoiced Ms B for over £1,000.
2. Ms B says that the Council’s shortcomings left her distressed and her care needs unmet. She had to rely on family and friends for care, who tried their best to help her but could not always commit to this. Ms B describes that her focus was just getting from one day to the next. She could not go out of her house and became isolated. Ms B was left distressed and uncertain as to whether she would get help and also as to how to put things right. Ms B had to buy expensive ready meals (and has a special diet) as she had nobody to help her prepare meals.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)

• 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)

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)

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How I considered this complaint

5. I considered the information provided by Ms B’s representative. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties before issuing this final decision.

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What I found

The law and guidance

Care needs assessment

6. 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.
7. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
8. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)

Disability Related Expenditure

9. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay.
10. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

What happened

11. Ms B has a number of long-term health conditions which mean that she needs varying levels of support with all her personal care. She has chronic pain and poor mobility. Ms B cannot weight bear and she has falls. She cannot leave her home alone as she cannot use the external stairs (she needs to hold both handrails and the stairs are too wide to allow this).
12. Ms B was supported by a friend who lived with her and helped with her care needs. However, in September 2021, the friend was suddenly hospitalised. Ms B contacted her GP who suggested she call the Council to get a needs assessment and some home care. Ms B says she started to telephone the Council in September 2021, and it told her that it would put her on the waiting list for an assessment. The Council says it has no record of contact until a law centre advocate wrote to it towards the end of December 2021. The advocate asked the Council to assess Ms B’s support and care needs. The advocate tells me that they have four other clients who have contacted the Council and been told they are on a waiting list for an assessment, only to discover later that the Council has no record of their contact, and they are not on the waiting list.
13. The Council discussed Ms B’s needs with her over the telephone. It noted that she would require a more in-depth assessment, but in the meantime it would put in place one hour per morning to support her with personal care in her home.
14. However, the care did not start until 14 February 2022. The Council has explained that the delay was because no care providers had the capacity to meet Ms B’s needs. It says that 15 providers declined, it chased all those that did not respond, and contacted other providers. It escalated the situation to its manager and to the commissioning manager.
15. On 21 February, Ms B complained to the Council that a carer had arrived a 6am for a call that would normally happen at 10am, and also answered a personal video call which meant that Ms B, who was undressed at the time, was visible to the caller. She also explained that the carer had been late another day which meant she had to get herself ready as best she could for an appointment at home; was rude to Ms B; and had not been signing in and out on the care provider’s electronic system. Ms B had also complained to the care provider and asked it to send a different carer.
16. Ms B tells me she had the first care call on 14 February, the second on 15 February. On 16 February, the carer called over an hour after the agreed time and then did not provide any care. Ms B asked the care provider to send another carer due to the problems she was experiencing, but it could not and on 17 February, Ms B did not the carer to enter.
17. The care provider told the Council there was no other carer available for those hours, and that the electronic system had not been available to the carer but now was. It also explained the carer says she had answered the video call by accident, had ended the call and put the phone back. The care provider confirmed that it had disciplined the carer and retrained her on safeguarding.
18. The Council telephoned Ms B to discuss her concerns and relay to her what the provider had said. The notes of the conversation say that Ms B understood the video call was an accident but it still made her uncomfortable and the carer had not handled it well. They also discussed that the calls were not at the agreed times, and that the carer did not appear to know what support Ms B needed.
19. No carer attended Ms B’s home after 17 February. Ms B continued to rely on family and friends but had asked the Council to make direct payments so she could source care herself. The case notes show the Council raised concerns with the care provider as to the information given to carers about what was needed for each client, and about its availability for carers in the area. It also referred the issue of the carer accepting the video call to its commissioning manager as ‘poor practice’.
20. The Council’s case notes show that Ms B told the Council on 1 March that the provider had called to ask that the carer arrive earlier the next day. Ms B told them that she did not want that but also that a carer had not attended her since 17 February. The care provider did not seem to know that the carer had not returned.
21. The Council started its full assessment of Ms B’s care and support needs on 3 March. It has explained that it did not have capacity to complete the assessment sooner. It did however assess Ms B’s priority for an assessment on the basis of risk.
22. The Council decided that Ms B needed an occupational therapy assessment. At the same time, it referred Ms B for a financial assessment. The financial assessment took into account her DRE of batteries, a specialist chair, walking aids, cream/wipes, dietary needs and bedding, fuel allowance, clothing, incontinence equipment and additional washing expenses. The Council said that the only items not taken into account, for DRE, were supplements it thought Ms B could get on prescription.
23. The Council sent Ms B the completed financial assessment. However, on 31 March, the advocate wrote to the Council on Ms B’s behalf as she had not received the care assessment.
24. The case notes show that by June, the OT had completed her assessment. At the beginning of June, the advocate wrote again to the Council. On 16 June, the Council completed the full needs assessment. Ms B asked it to make some amendments, which it did. The Council decided that Ms B needed support of eight hours weekly.
25. Ms B’s advocate wrote to the Council on 18 July. It said the care assessment was inaccurate in several significant aspects. This included that it had not noted the severity of her conditions; that she cannot leave her property without support and how isolated this had made her; did not describe what care she currently had; or her strict dietary requirements. Overall, the advocate said it was not clear how the Council had arrived at a decision that one hour per day would be adequate.
26. In the meantime, the Council continued to bill Ms B for the care that had ended that February. Ms B, her social worker and her advocate had all contacted the Council about this, but it continued to send weekly invoices and payment reminders, and the total had accrued to over £1000. Ms B told the Council how distressing she found this, and that she was worried that bailiffs would call to collect the debt. Ms B told the Council that she no longer trusted it to deal with the financial aspect of her care properly, or to rectify problems within a reasonable time, and so she decided that to protect her mental health she did not want a care package to go ahead.
27. Ms B’s advocate made a formal complaint to the Council. The Council response says:
• It has no record of her contact in September 2021, and the contact began on 17 December 2021 when the advocate requested a care needs assessment. It made a ‘contact’ assessment of her care and support needs and arranged the care as needed. Therefore it assessed her appropriately and in good time.
• The care provider says the care ended on 2 March. However, the Council did not backdate the cancellation until 27 July. The charges were adjusted to the period from 21 February to 2 March and the new total was just under £100.
• The Advocate had in July sent a letter asking for substantive changes to the needs assessment, but it had not replied. The Council said that it would respond to her separately on this.
28. Ms B challenged that she should be charged care up to 2 March. She told the Council the care had ended on 17 February and it had told her that she would not be liable for charges until the financial assessment had been completed, and that it would waive charges due to the safeguarding incident.
29. The Council did not respond to the advocate’s comments on the care needs assessment.

Was there fault by the Council causing injustice to Ms B?

30. Although the Council has no record of Ms B’s telephone calls in September 2021, it is more likely than not that Ms B did contact it then, only resorting to the law centre advocate when she got no real response. The Council’s failure to act on Ms B’s telephone calls to it is fault. This meant that Ms B had to manage on the care she could get from her friends and it is likely that her needs were not properly met in that time.
31. I appreciate that the Council struggled to find a provider for Ms B’s care, that it was proactive in trying to arrange care, and referred the problem to its commissioning manager. However, the Council’s delay in arranging care was a service failure.
32. Soon after the care started, Ms B complained that the carer was calling late, had been rude to her, and had exposed her in a video call (albeit accidentally). The Council’s response to this was proportionate. It asked the provider to investigate and checked that its findings were appropriate. The case notes show that the Council not only relayed the findings to Ms B, but also to management within the Council to follow up on concerns about the provider’s capacity and operations. There was no fault in how the Council investigated Ms B’s complaint about the care she received.
33. Ms B also says the Council failed to make sure the care met her needs. However, it did not have sufficient opportunity to review this before the care stopped. Owe
34. The Council took too long to complete a proper assessment of Ms B’s care needs (which also would have considered whether the care provision arranged in February needed to be changed in any way). It took from September and December 2021 to March 2022 to start the assessment. I accept that it is for the Council to prioritise assessments and that the Council had discussed Ms B’s needs in December. However, Ms B’s needs were not insignificant, and the Council knew that she was not receiving care during that period of delay (between September and February). In these circumstances, I would expect the Council to complete the assessment more quickly.
35. The Council made the minor amendments Ms B asked. The advocate had also written on 18 July with more significant comments on the assessment. In its response to Ms B’s complaint, the Council said it would respond to the advocate’s letter about the assessment. It did not. It may be that the Council decided not to amend the assessment because Ms B said she did not want to continue with it as the process had exhausted her. However, in not replying the Council missed the opportunity to fully consider Ms B’s assessment, and potentially allow her to trust that suitable care could be arranged. In any case, if the Council considered that it should not make further amendments because Ms B did not want to continue with an assessment, it should have told the advocate that so that Ms B could make a fully informed decision about whether to continue. The Council has agreed my recommendation that it offer Ms B another care needs assessment. Ms B can accept or decline this offer as she feels is appropriate.
36. It was fault by the Council when it continued to invoice Ms B for care she was not receiving. It should not have taken from March to August to suspend and adjust the account.
37. The end date of the care is disputed. The Council has relied on information from the care provider’s daily logs, that the care ended on 2 March. Ms B says the care ended much sooner and she believes the daily logs have been fabricated. Ms B notes the logs say she ate cereal when she cannot, due to her special diet. The Council’s case notes show that Ms B spoke to the Council on 1 March because the care provider had telephoned about the timing of a carer attending. The case note at that time says the visits had stopped and the care provider did not appear to be aware of this.
38. As I understand it, the care provider operates an electronic case note system where the carer signs in using a QR code held at Ms B’s address, although this was not always available. I have considered whether I should investigate this issue further to try to establish whether the care continued or not, however, I am not persuaded that would be proportionate.
39. The Council reached a decision to charge up to 2 March based on the daily logs the care provider sent it. However, the Council should have investigated the end date of the care further in light of Ms B’s complaint.
40. The Council has agreed with my recommendation that it remedy the impact of the continued billing and debt recovery, which also takes into account the disputed amount.
41. The Council assisted Ms B with the financial assessment and there is no evidence that it expected her to complete this online. The Council says that it took into account Ms B’s DRE, and asked for information about the medication that she could no longer get on prescription but which was recommended by her consultant. Ms B says she sent this but it is not included in the information the Council has sent me. I have considered whether I should investigate this further. However as Ms B has asked not to continue with the financial assessment I have not made further enquiries. If Ms B accepts the offer of a further care needs assessment, it will also need to make a financial assessment.
42. Overall, there was fault by the Council as it did not properly respond to Ms B’s requests at key stages. The Council’s shortcomings meant that Ms B missed out on care to which she was entitled. She had to manage on the kindness of friends and family, and became isolated as she could not leave her home. The Council’s actions caused Ms B distress and frustration as she tried to get it to respond properly to her. In addition, Ms B has been left uncertain that had these faults not occurred she might have completed the assessment process and be receiving appropriate care.

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Agreed action

43. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
44. The Council will within one month of this decision:
• Apologise to Ms B for the faults identified;
• Make a symbolic payment to Ms B of £500 in respect of the loss of service when it delayed in arranging her care and assessing her needs;
• Make a symbolic payment to Ms B of £250 in respect of the distress, frustration and uncertainty she has suffered;
• Offer Ms B a fresh care needs assessment and if she accepts, a fresh financial assessment;
• Waive collection of the outstanding invoice in recognition that there is a genuine dispute over the end date of the care, and that in any case Ms B was invoiced far in excess of the care she received and the Council took too long to put this right;
• Confirm to Ms B in writing that it has waived the outstanding amount and that it will not make any further demands for payment.
• Review why it took so long to adjust the account when care ended and make improvements to how it handles this; and
• Share this decision with relevant staff, including those that are the telephone contact with the public.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman