Summary: There was fault by the Council in complaint handling which caused avoidable time and trouble. The Council also delayed carrying out Ms X’s social care assessment and delayed responding to her request for extra care and support. The Council will apologise, make payments to reflect the avoidable distress, time and trouble and loss of care. It will also instruct social care staff to offer agency care when a customer’s care arrangement breaks down and to keep copies of draft assessments and care and support plans.

The complaint

1. Ms X complained:
1. There were no social care assessments when she was discharged from hospital in November 2020 and July 2021
2. The social care assessment in November 2021 did not consider her disabilities, symptoms or diagnoses.
3. Two assessments and care and support plans contained factual errors and were not complete. She provided amendments but these were not included.
4. The assessment and care and support plan were not updated or reviewed in 2022
5. There were delays in deciding funding for care and poor communication about the funding that had been agreed
6. She did not receive suitable support to set up and manage a direct payment when her Personal Assistant (PA) stopped working for her at the end of January 2022
7. The care agency commissioned by the Council did not have properly trained staff, did not work with her in a respectful way, refused to share key care documents and did not turn up for scheduled calls on several occasions.
8. The Council’s complaint response did not address the key issues and contained false information about the LGSCO.
2. Ms X said this caused avoidable distress, worsened her mental ill health and meant she did not have care to meet her needs. And, it meant her parents had to step in and provide additional unpaid care and support because of the Council’s fault.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended). Complaint 1(g) is about council arranged care. We can investigate A& K Homecare services (the Care Provider).
4. 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)
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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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

7. I have investigated the complaint although some parts are late. This is because the Council’s complaint response in 2023 wrongly said the LGSCO was closed due to COVID-19. This was the case for part of 2020, but we have been open since July 2020. Incorrect information from the Council about our procedures may have caused confusion about our usual timescales. Ms X was also unwell for some of the period she has complained about.

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How I considered this complaint

8. I considered Ms X’s complaint to us, the Council’s response and documents set out in this statement.
9. Ms X and the Council now have an opportunity to comment on this draft decision. I will take their comments into account before I make a final decision.

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What I found

What should have happened

10. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
11. An assessment should be carried out over an appropriate and reasonable timescale considering the urgency of needs. Councils should give the person an indicative timescale and keep them updated. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
12. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
13. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Accessing work, training, education
• Making use of facilities or services in the community
• Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)

14. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
15. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs. (Care Act 2014, section 26)
16. There are three ways to use a personal budget:
• As a managed account held by the local authority with support;
• As a managed account held by a third party with support;
• As a direct payment (a direct payment is money a person gives to a council to meet agreed needs). (Care and Support Statutory Guidance 2014)
17. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
18. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
19. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care. They say:
• People using care services should be treated with dignity and respect including ensuring privacy and autonomy. (Regulation 10)
• Care and treatment should be appropriate, meet a person’s needs and reflect their preferences. (Regulation 9)
20. The Council told me it does not keep copies of draft assessments and draft care and support plans. It says Ms X’s documents were redrafted several times and the system only retains the most recent version.

What happened

21. Ms X has a neurological disorder and mental health problems. Ms X told us she contacted the Council in November 2020 and asked for a social care assessment. The Council has no record of any contact from her in 2020.
22. The Council’s contact records indicate Ms X called the customer service centre in the middle of April 2021. She said she lived alone, she had some support from her parents with shopping, cooking and maintaining the home. She said she could maintain her personal care. She was advised to contact her GP and discuss a referral to the falls clinic and to contact Age UK and the Carers’ Trust.
23. Ms X went into hospital in July 2021. The hospital social work team referred Ms X to the Council’s social care team saying:
• She would benefit from support with meal preparation and personal care to reduce fatigue levels
• A social care package was more appropriate than reablement.
24. The Council told me Ms X said she was happy to wait until she was discharged for care to be put in place. This conflicts with what Ms X says in her detailed complaint.
25. The hospital also referred Ms X to the reablement service (which provides short term support to regain independent living skills). The reablement team declined the referral as Ms X had a long-term varying condition.
26. In October, a nurse from the mental health team referred Ms X to the Council’s Physical Disability and Sensory Service (PDSS) for an assessment.
27. A social worker from the PDSS carried out an assessment in October 2021. The assessment form included information from Ms X about her conditions, treatment and the help she needed. Ms X added information by email in January 2022. The assessor’s view was Ms X would benefit from twice daily support to help with personal care and meal preparation and to ensure she was safe and well. The outcome of the assessment was:
• Ms X was eligible for care and support in the areas of nutrition, personal hygiene, making use of facilities and making use of home safely.
• She needed a package of care of two care calls a day and one hour a week support to access the community for a walk to minimise isolation.
28. The care and support plan at the end of October 2021 set out Ms X’s outcomes and the support she needed under each outcome. The personal budget was £71 a week for two calls a day, morning and evening, to support Ms X by prompting her with personal care, support to make breakfast/evening meal, to check she had taken medication and to check she was safe. The personal budget did not include any funding for supported walks. The plan said Ms X was experiencing daily seizures and so it would be risky for a care worker to take her out.
29. The Council commissioned an agency, A&K Home Care Services Ltd (the Care Provider) to provide Ms X’s care and support in November and December 2021. We asked for its records of care to Ms X. It is no longer registered with the Care Quality Commission and despite contacting known addresses, it has not responded to requests for records.
30. Ms X contacted the PDSS team at the start of December. She said she wanted the Care Provider to end its service because a supervisor had upset her. Ms X spoke to a duty social worker and reported some of the concerns I have set out paragraph 33. She also said the Care Provider told her staff weren’t allowed to support her with cleaning, cooking or going out for a walk. Ms X said her parents would support her temporarily and she wanted to speak about having a direct payment at the upcoming review.
31. There was a review of the care and support plan in December 2021. The plan was amended to reflect Ms X’s email comments in January 2022 (see paragraph 33). Ms X asked for a direct payment so she could recruit a regular Personal Assistant (PA). Ms X’s mother said seven hours a week of care and support was not enough. The plan was for the social worker to make a referral to the direct payment team.
32. The second care and support plan of December 2021 gave a personal budget of £83 and said it was to support Ms X with meeting her outcomes. These included accessing the community.
33. Ms X sent the Council a detailed statement of her concerns about the Care Provider at the start of January 2022. In summary she said:
• Care workers panicked when she had health incidents and she heard them using inappropriate and discriminatory language and shouting, saying they could not cope.
• A senior member of the Care Provider’s staff said their care workers were not comfortable with her and said “I am getting very frustrated with you; I’ve explained it again and again. The more I’ve explained it, the more you seem not to understand it.”
• There were missed calls.
• Care workers did tasks for her rather than supporting her to do things for herself.
• She did cancel some calls, but this was only when she was ill or had family staying with her who could provide care.
• Care workers spoke in a different language in front of her.
• She asked for the Care Provider’s complaint procedure but they did not provide it so she didn’t know how to complain.
• Care workers did not wear masks correctly or sometimes at all. They often complained of long working hours and inadequate breaks.
• Their negative comments affected her health.
• The timing of the morning calls meant she was rarely prompted with personal care or breakfast. She was never asked about medication.
• Care workers often took food off her as she was trying to prepare it. She ended up getting microwave food because there was not enough time for care workers to support her to prepare a meal.
• She was concerned care workers did not have the right training.
34. The Council commissioned Penderels Trust (Penderels) to support Ms X to recruit PAs and for support with payroll and employment matters. The records indicate it supported Ms X to draw up an advert to recruit PAs and provided weekly ongoing support with email advice, support with adverts and at interviews and with direct payment administration like payroll.
35. The Council told me it received an email from Penderels to say Ms X's PA was in place from 6 January 2022.
36. In the middle of March, Ms X contacted the Council because the PA had left for a better paid job. She asked for a higher rate.
37. There was a second social care assessment which appears to have been started in March 2022. This assessment was longer (16 pages) and more detailed than the first assessment and included Ms X’s wishes about receiving NHS emergency care. The form contained information about appointments in 2023, what to do when Ms X was experiencing symptoms of her condition and the outcomes she wanted to achieve. There were additional eligibility outcomes: maintaining a habitable home, developing/maintaining relationships, accessing work/training. The indicative personal budget was £557. There was an increase in the direct payment to 20 hours a week. The budget included an allowance for respite care.
38. In June, Penderels advised the Council that recruiting a PA was difficult because of the hours, rural location and rate of pay. In July, Penderels told the Council there were still no applicants.
39. In August, there were two internal discussions about the case. The Council agreed 20 hours funding a week for a temporary period and then for the social worker to complete a review. There was agreement that Ms X’s parents needed respite built into her care package to allow them to have a break from the caring role.
40. The care and support plan starting at the end of October 2022 (and later amended) noted:
• Ms X had one PA briefly in January 2022 who left for a post with higher pay.
• A second PA started in October 2022 and left in February 2023 because of time commitments.
• An additional direct payment had been agreed to reflect that Ms X’s parents were providing significant support and needed respite care to prevent a breakdown in the caring role.
• Ms X could use the payment for agency care or extra PAs. She could have agency care until she could recruit a PA. the agreed support was 20 hours a week at the agency rate for a direct payment and two weeks a year of respite care at £1200 a week. The total weekly direct payment was £625.
41. Ms X said in her complaint to the Council that she had recruited a PA and also found a care agency and both had been supporting her since October 2022
42. Ms X was allocated a different social worker in November 2022.
43. Ms X sent the Council a detailed complaint the end of January 2023. The Council’s brief response in February did not say whether or not it upheld her complaint. Instead, the letter summarised what happened and said it could not address complaints about NHS and mental health services. The response went on to say:
• The LGSCO was not accepting complaints due to COVID-19. (The Council corrected this in a later letter to Ms X and apologised for misleading her.)
• She had been allocated a new social worker to complete a care and support plan.
• A referral was made to the PDSS in October 2021.
44. Penderels confirmed to the Council in February 2023 there had been PAs in place, but Ms X was struggling to keep them.
45. The Council’s records indicate an increase to the direct payment at the end of March 2023 (backdated to January). Ms X’s social worker emailed Penderels in May 2023 to say the Council had agreed an increase to the hourly DP rate.

Comments from Ms X

46. Ms X told us between November 2021 and August 2022 she tried to find a care agency she could work with. She said the Council did not give her any help at all and she found the agency herself. She said she had to build up trust slowly with this agency and gradually increase her hours due to her previous experiences with the Care Provider (A&K Home Care Services Ltd). She said she had the full 20 hours from March 2023.

Findings

There were no social care assessments when Ms X was discharged from hospital in November 2020 and July 2021

47. The Council has no record of any contact from Ms X or from a hospital in November 2020. There is no evidence for me to conclude the Council was aware Ms X needed or was asking for a social care assessment in November 2020, so I do not uphold this complaint.
48. The earliest contact from Ms X was a phone call in April 2021 when she was signposted to other services. This was fault. The information Ms X provided suggested she may be in need of care and support. Care and support does not just mean personal care. The threshold for an assessment in section 9 of the Care Act 2014 is a low one: a person just has to appear to need care and support. Signposting Ms X was an inadequate response, was not in line with section 9 and was fault.

The social care assessment in November 2021 did not consider her disabilities, symptoms or diagnoses.

49. The 2021 assessment form records Ms X’s health problems, her disabilities and symptoms. It does not need to be a comprehensive or lengthy document. The assessment is appropriate in length and detail and there is no fault.

Two assessments and care and support plans contained factual errors and were not complete. She provided amendments but these were not included.

50. The assessments and care and support plans have been redrafted and amended following comments from Ms X. The Council has not kept drafts so I cannot see what was added. It would have been helpful to identify the information added, but this falls short of fault. The Council is not required to add in every comment Ms X makes. The final versions of the documents show the Council has considered comments and included the most relevant information.

The assessment and care and support plan were not updated or reviewed in 2022

51. There was a review of the care and support plan in December 2021. The Council didn’t review the care and support plan in 2022. However, it carried out a fresh assessment and drew up a second care and support plan in October 2022. These documents had the same purpose as a review of the existing plan. I do not consider this was fault or that it caused injustice.

There were delays in deciding funding for care and poor communication about the funding that had been agreed

52. I uphold this complaint. The case was allowed to drift in 2022 and this was fault. Ms X’s mother raised the issue of seven hours being inadequate in the December 2021 review. And Ms X asked the Council to consider increasing the hourly rate in May 2022. The Council did not discuss the issue of hours until August 2022 and it did not implement the extra hours until October 20222. The hourly rate was not addressed until March 2023. The delay was fault because we expect councils to review care and support to decide if the care and support plan needs revising in response to a reasonable request.
53. Ms X did not have care and support in place between March and October 2022. The Council was aware this was due to low interest in the position of PA. It should have offered to find Ms X an alternative agency. The failure to do so was fault.

Ms X did not receive appropriate support to set up and manage a direct payment when her Personal Assistant (PA) stopped working for her at the end of January 2022

54. The records indicate Penderels supported Ms X to advertise for a PA but there was no response. There are detailed records of the regular support, advice and information Penderels gave Ms X. This means there is no fault. The issue was a lack of interest in the PA’s post which was not within its control.
55. The Council had a duty to meet Ms X’s eligible unmet needs. Penderels informed the Council of the low interest in the PA post several times. The Council should have offered to identify another agency and either commissioned that agency or provided Ms X with sufficient funding in her direct payment to pay for an agency. This was a failure to act in line with Section 18 of the Care Act 2014 and was fault.

The care agency commissioned by the Council did not have suitably trained staff, did not work with her in a respectful way, refused to share key care documents and did not turn up for scheduled calls on several occasions.

56. The Care Provider is no longer trading and has not provided records. Ms X has provided a detailed letter of complaint and a contemporaneous statement of her concerns. Relying on Ms X’s evidence, the Care Provider’s service was not in line with Regulations 9 and 10 of the 2014 Regulations because it was not respectful, dignified or person-centred. This was fault.

The Council’s complaint response did not address the key issues and contained incorrect information about the LGSCO.

57. The Council’s complaint response was too short, vague and did not identify, summarise or address the complaints. It gave out of date information about the Ombudsman, which was fault, although later corrected.

Injustice

58. On a balance of probabilities, had Ms X had a social care assessment within a reasonable timeframe, say May 2021, she would have been eligible for care and support and had a care and support plan in place by June 2021 had the Council acted within an appropriate timeframe. Care did not start until November 2021 so there was a delay of about six months. So there was a loss of about five months care in 2021, excluding July when Ms X was in hospital.
59. Ms X identified an agency herself but not until October 2022. I am satisfied she would have tried a different agency had one been offered to her sooner. There was a loss of care from when the Care Provider ended in December 2021 to October 2022 when a PA and second agency started.
60. The inadequate complaint response caused avoidable confusion and time and trouble escalating the complaint to us.
61. The Care Provider’s poor care service to Ms X caused avoidable distress as did the Council’s delays in reviewing and revising the care and support plan.

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Agreed action

62. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of the Care Provider, I have made recommendations to the Council.
63. Within one month of my final decision, the Council should:
• Apologise for the injustice described in the last section.
• Make Ms X a payment of £1500 made up of:
1. £1000 to recognise Ms X was without care to meet her eligible unmet needs for about five months in 2021 and about nine months in 2022.
2. £250 to reflect the distress caused by the delay in reviewing her care and the Care Provider’s poor service.
3. £250 to reflect the avoidable time and trouble caused by poor complaint handling.
• Make Ms X’s parents a payment of £2000 to reflect the additional unpaid care and support they provided during the period Ms X was without council-funded care and support.
• Instruct social care staff to ensure they offer agency care as an option as soon as a PA arrangement breaks down.
• Instruct social care staff to retain draft assessments and care and support plans on the case records where a person has asked for amendments.
64. The Council should provide us with evidence it has complied with the actions in paragraph 63.

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Final decision

65. There was fault by the Council in complaint handling which caused avoidable time and trouble. It also delayed carrying out Ms X’s social care assessment and delayed responding to her request for additional care and support. I have recommended an apology and payments for Ms X’s time and trouble, distress and to reflect the loss of care to which she had a legal entitlement. I have also made a recommendation to improve the Council’s service to minimise the chance of recurrence.
66. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman