Summary: There was fault in the Council’s failure to provide the support as set out in Mr and Mrs B’s care plan. The Council has agreed to apologise to Mr and Mrs B and pay them a financial remedy.

The complaint

1. Mr and Mrs B complain about the Council’s failure to provide the support that was set out in their care plan.

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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. 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)
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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What I have and have not investigated

5. I have investigated the complaints regarding the Council’s actions. I have not investigated the NHS’s actions as they are outside of the Ombudsman’s jurisdiction.

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How I considered this complaint

6. I have discussed the complaint with Mr and Mrs B. I have considered the information that they and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

7. The Care Act 2014 and the Care and Support Statutory Guidance 2014 (CASS Guidance) set out the Council’s duties towards adults who require care and support.

Duty to meet needs

8. 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.
9. Section 18 of the Care Act 2014 says a local authority has a duty to meet a person’s assessed eligible needs for care and support if certain conditions are met.
10. 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 and what care and support may be available in the local area. 

Services provided by the NHS

11. Section 22 says a local authority may not meet needs which are the responsibility of the NHS unless:
• doing so would be merely incidental or ancillary to doing something else to meet needs under those sections, and
• the service or facility in question would be of a nature that the local authority could be expected to provide.
12. The CASS Guidance also says:
• Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment.
13. To achieve this, local authorities should:
• shape the process around the person, involving the person and considering their experience when coordinating an integrated assessment.
• work with other professionals to ensure the person’s health and care services are aligned. This will require flexibility of systems where possible, for example when sharing information. It will also be strengthened by a culture of common values and objectives at frontline level - joint visits can be helpful here.

Application for NHS funding

14. Continuing healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist.
15. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making.
16. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care. The relevant integrated Care Board (ICB) will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.

Council’s medication policy

17. The Council’s policy on medication says care workers cannot administer diabetic or other injections.

What happened

18. I have summarised the facts insofar as they are relevant to Mr and Mrs B’s complaint.
19. Mr B and Mrs B are a couple who both have autism. Mrs B also has physical disabilities linked to underlying medical conditions. Mr and Mrs B are each other’s carers. They are also both entitled to a package of support from the Council.
20. In January 2022 the social worker started the process of re-assessing Mr and Mrs B’s needs for care and support. She asked Mr and Mrs B to fill in a self-assessment form, which they did and, in the following months, there was a lot of correspondence between the social worker and Mr and Mrs B to decide on what their needs were (the needs assessment) and how the needs would be met (the care plan).

Care plan – May/June 2022

21. The care plans were finalised in May/June 2022. The main provision was for Mr and Mrs B to have 3 hours apart from each other in the community, supported by a care worker. The assessments showed the strain that the caring roles placed upon Mr and Mrs B and this was made worse by the fact that they could not have time apart. The provision of time apart would give them a break from their caring roles.
22. One of Mrs B’s underlying medical conditions meant that sometimes she may need an emergency injection. Therefore the care worker who supported Mrs B should be trained in administering the injection. Mr B was able to administer the injection but he would not be available during their time apart.
23. The assessment noted that Mrs B had fluctuating needs linked to her medical conditions. When she was well, she was able to do more tasks, assisted by Mr B, than when she was unwell.
24. As Mr and Mrs B were each other’s carers, the Council put in place contingency plans which set out what would happen if one of them was unable to provide care, for example because of illness. The contingency plans were called ‘unwell plans’ and stated:
• Mr B’s unwell plans said he needed 4 x 15 minutes welfare checks to ‘initiate and motivate [Mr B] through personal hygiene, medication, nutrition and hydration tasks.’
• Mrs B’s unwell plan said she needed 4 x 30 minutes ‘to provide physical support through personal hygiene, toilet needs, mobilising, nutrition tasks’.

Search for a provider - June to November 2022

25. On 10 June 2022, the social worker sent the request for a service to the Council’s Brokerage team. The request was for a male care worker for Mr B and a female care worker for Mrs B. The care workers had to be autism trained. Mrs B’s care worker had to be trained in administering the injection for Mrs B’s medical condition.
26. The Brokerage team sent the request to its providers (care agencies) but received no offers. This situation continued in the following months and no provider was found.
27. On 17 October 2022, the social worker sent the request for a service to the Brokerage team again. The social worker started to ask Mr and Mrs B questions about the administration of Mrs B’s emergency injection. She questioned whether the care workers could administer this type of injection and whether the Council could fund the administering of the injection.
28. The social worker spoke to Mr and Mrs B on 4 November 2022 and said she was in discussion with the ICB around how Mrs B’s support should be commissioned.
29. The plan was for the social worker and Mrs B to update the CHC checklist in the hope that this would trigger a DST and then ultimately determine how Mrs B’s care package would be funded.

Request for the unwell plan to be activated – 7 November 2022

30. Mr B became ill with COVID-19 on 7 November 2022 and Mrs B rang the Council asking for the unwell plan to be activated.
31. The Council started to look for a provider, via its reablement team, which could provide the care and support set out in the unwell plan. The Council also contacted the NHS to see if its carers emergency scheme could be activated while the Council found a provider.
32. A Council officer spoke to Mrs B on 7 November 2022 and said that the reablement team had no capacity. The NHS’s carers emergency service started to provide support on 7 November 2022 but it was only able to provide support until the evening of 9 November 2022. The Council contacted providers daily but was unable to find one which could provide the service set out in the unwell plans.
33. The social worker spoke to Mrs B on 11 November 2022. Mrs B said Mr B still tested positive but was getting better slowly. The social worker said she had not found an agency to provide the support in the unwell plan. Mrs B said the ‘system is broken’ and ‘we’ll keep plodding on.’
34. On 13 November 2022 Mrs B tested positive for COVID-19 so she and Mr B were now ill.
35. On 20 November 2022 Mr B said the Council could stop looking for a provider for the unwell plans. He said they were in a ‘pattern of managing as a team with our own rehabilitation’.

Complaint – 10 November 2022

36. Mrs B made a complaint to the Council on 10 November 2022 and said:
• She was still waiting for the provision in her care plan to be put in place and this was partly caused by a dispute between Social Care and Health Services about the funding of the care provision.
• She and Mr B asked for the unwell plans to be activated in November 2022 and the Council failed to provide the support they were entitled to.
37. The social worker sent Mrs B’s CHC checklist to the ICB on 22 November 2022. The Council continued to look for a provider which could assist Mr B. The support plan was increased to 4 hours support each for Mr and Mrs B.

Response – 30 November 2022

38. The Council responded to Mrs B’s complaint and said:
• There was no dispute between Health Services and Social Care, but the Council said: ‘Our understanding of your health conditions and medications, including the injection, has become more detailed.’ Therefore, a new CHC checklist had been completed to decide whether Mrs B was entitled to NHS funded healthcare.
• In response to the complaint about the unwell plans, the Council admitted it had been unable to secure an agency to provide the support and apologised for this failure.

Further developments – December 2022 to January 2023

39. Mrs B sent an email to the social worker on 4 December 2022 and said:
• What would happen once the NHS funding was secured? Would this mean that the agency would be able to provide someone who was trained in administering the injection?
• She suggested that, until the problem was resolved, she and Mr B could go out with their respective care workers in the community, but stay close by, in case the injection was needed.
40. On 21 December 2022, Mrs B was informed that she was not eligible for a DST assessment for NHS funded healthcare.

Further complaint – January 2023

41. Mr and Mrs B escalated their complaint and the Council responded in January 2023 and said:
• It was still unable to find an agency that could provide a service.
• ‘Rotherham, like many other council areas, have found that private companies are experiencing challenges in being able to take on new packages… commissioning care packages is affected by the current care market which is a national not just a local issue.’
42. The Council also said in an email on 27 January 2023:
• ‘If you want to take the risks involved in going out alone, the choice is yours to make.’
43. However on 30 January 2023 the Council then said:
• ‘as we have understood from your GP, it would not be safe or appropriate for the council to commission a service to support [Mrs B] to go out without [Mr B].’

Developments after February 2023

44. On 14 February 2023 the ICB offered to fund 10% of Mrs B’s care package for three months and then to complete a DST.
45. In February 2023 the Council finally found an agency which could provide care and support to Mr and Mrs B (without the injection).
46. The Council explained this to Mr and Mrs B in an email dated 8 March 2023 and said:
• ‘[The agency] would still not be permitted to undertake health task/invasive tasks. This is because council funds are being used to purchase their support and the council cannot lawfully fund such health tasks.’
• ‘At the moment our medication policy does not have the appropriate agreements in place with health to enable carers to undertake administering of medications unless they are in a Nomad.’ (A Nomad involves pharmacy staff putting prescribed medication into a box so that it is clear what medication should be taken when).
47. Mr and Mrs B spoke to the social worker on 10 March 2023. Mrs B’s consultant had written a new care plan to be used by the care worker if the care worker was not allowed to administer the injection. If Mrs B needed the emergency injection, the care worker should call 111 and say certain words which should trigger an emergency response.
48. The Council’s manager said, on 16 March 2023 that, if Mr and Mrs B were willing to accept the risk involved in going out without each other, then they could make that choice. They would need to sign a risk assessment to confirm this.
49. On 20 April 2023 the social worker sent an email saying that section 22 of the Care Act prevented the Council from doing health care tasks and this was the reason why the care workers could not administer the injection. Mr and Mrs B rejected that argument and said the ‘sticking point’ was the Council’s medication policy not section 22.
50. There was then further delay because the Council and the care agency disagreed on the wording of the risk assessment/plan relating to the injection. However, I understand an agreement was eventually reached.
51. Mr and Mrs B started to receive the 4 hours support on 2 May 2023, but this was still on the condition that Mr B remained close so he could administer the injection. Mr and Mrs B started to receive the 4 hours support separately from 6 June 2023 onwards.

Further information

52. The Council made further comments in its response to the Ombudsman’s enquiries. In terms of the injection, it said that it had formed the view that the administration of the injection was the responsibility of the NHS and could not be undertaken by the local authority. It said: ‘Section 22 specifically prohibits local authorities from undertaking medical services where these fall to the NHS.‘ It accepted that the NHS could delegate health responsibilities to the local authority and, in places where there was such an agreement, local authority staff could undertake different actions. However, there was no agreement in place in Rotherham.
53. The Council also said, in its response to the draft decision, that it acknowledged the complexity of the interface between health and social care and the points at which the various legislative schemes overlap.
54. The Council said there was a lack of certainty in the area and it was of the view that the administration of injections fell outside its statutory scope, unless such functions were delegated to the local authority by an NHS partner. The care sector could potentially undertake such tasks if they were appropriately authorised to do so, underwent appropriate training, as identified by National Institute for Health and Care Excellence guidance, and were properly supervised. The Council said it continued with negotiations with health partners to determine how this can be moved forward.

Analysis

55. The Council started the assessment of Mr and Mrs B in January 2022 and the care plan was finalised around May 2022. The two main provisions in the care plan were:
• The provision of 3 hours (later 4 hours) support to Mr and Mrs B so that they could undertake separate activities.
• The activation of the wellness plans if either of them were unwell.

Provision of the time apart

56. Mr and Mrs B did not receive the 3 (later 4) hours support to spend time apart until almost a year later, May 2023. This was a significant service failure and fault.
57. I appreciate that most of this delay was caused by the Council’s inability to find a care agency which would provide the service. The Council has explained the difficulties it had in finding providers and said this reflected a national problem. I accept that may be the case.
58. However, the Ombudsman can say there was a service failure which caused an injustice to the complainant, even if there are no specific flaws in the Council’s policy or process and despite the best endeavours of the local authority concerned. 
59. This might be the case, for example, where external market factors (such as the availability of care agencies or care workers) prevent a statutory duty being delivered.
60. There was also some fault in the Council’s actions around the emergency injection, although this was not the main cause of the delay as I will explain later.
61. There was fault in the fact that the Council did not identify the problem with the injection until October 2022. The Council knew from January 2022 that Mrs B needed the injection and that she expected care workers to be trained in giving the injection. The social worker sent the referral to the Brokerage team in June 2022 on that basis. So, I do not understand why it took another 6 months for the Council to identify that there was a problem. The Council should have identified this issue much earlier and this was fault.
62. In terms of section 22, I agree with Mr and Mrs B that section 22 does not impose an absolute ban on care workers carrying out healthcare tasks, such as injections, as the Council suggested in some of its earlier correspondence so the Council’s communication on this could have been clearer.
63. Section 22 says councils may not meet needs which are the responsibility of the NHS. Section 22 also says councils can provide services normally reserved to the NHS if the services are merely incidental or ancillary to doing something else to meet needs (the quantity test) or the service or facility in question would be of a nature that the local authority could be expected to provide (the quality test).
64. Councils can set their own policies in that respect. I accept that the Council’s medication policy did not allow care workers to carry out injections and I accept that the Council could make that decision. I find no fault in that respect.
65. My concern was that the Council appeared to say that its hands were tied because of section 22 and therefore it could not deliver Mr and Mrs B’s care as set out in the care plan. That was not the case.
66. If it was the Council’s position that its care workers could not administer injections, then it was the Council’s problem to solve. The Council’s duty to provide the services in the care plan remained unchanged. Also, the CASS Guidance made it clear that in situations such as this one, Social Care had a duty to work with Health to find a solution.
67. I note the social worker submitted a further CHC checklist in November 2022 which was good practice. But the Council knew that, even if part NHS funding was agreed, this would still not solve its problem. The Council knew that, regardless of the funding, the NHS was unlikely to provide a nurse to follow Mrs B around on the off chance that Mrs B would need an injection.
68. I note that, in the end, it was Mr and Mrs B who had to provide the solution to the problem, by offering Mrs B’s consultant’s plan dated 10 March 2023 which said the care worker should ring 111 if Mrs B needed the injection. The Council agreed this as a way forward in March 2023. However, it meant that Mr and Mrs B had no other option but to accept some additional risk to Mrs B’s health.
69. As I pointed out earlier, the disagreement about the injection did not cause most of the injustice in terms of delay. The Council did not find an agency which could provide the service until February 2023 so even without the dispute about the injection, Mr and Mrs B would not have received a service until February 2023.

Unwell plans

70. There was also clear fault in the Council’s failure to provide any service to Mr and Mrs B from 9 November to 20 November 2022 as set out in their wellness plans. This again was linked to a service failure and the Council’s inability to find an agency which could provide the service.

Injustice and remedy

71. The aim of the Ombudsman’s remedy is to put the complainant in the position they would have been if the fault had not occurred. When this is not possible, we can recommend a symbolic payment to reflect the distress or difficulties the person has been put through because of the fault and any harm or risk of harm they suffered. The Ombudsman does not offer damages or punitive compensation.
72. I have taken into consideration the following factors. Although the care package was small, the failure to provide the package had a significant impact on Mr and Mrs B as it meant they did not have a break from their carer’s role and were unable to spend any time apart. Mr and Mrs B said this had a negative impact on their relationship. In addition, the failure to provide the care set out in the wellness plan was concerning as Mr and Mrs B were at risk of not having any care during that time. This placed them at risk of harm.
73. The Council has agreed to pay Mr and Mrs B £500 each to reflect the distress and risks caused by the failures in the provision of the care.

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Agreed action

74. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing for the fault I have identified.
• Pay Mr and Mrs B £500 each.
75. The Council should provide us with evidence that is has complied with the above actions.

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Final decision

76. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman