Summary: There was fault by the Council. It cannot show that it properly considered its decision to alter Mrs B’s home care package. It did not act in good time on Mr B’s concerns around confidentiality and its complaints procedure was confusing. The Council’s shortcomings have caused Mr B distress and uncertainty. The Council has agreed to remedy the injustice caused.

The complaint

1. Mr B complains that the Council:
• First removed and then reduced the hours of care his wife can receive via her direct payments, and the amount of leave his can take as her paid carer;
• Failed to deal with his concerns about confidentiality when he suspected that an officer dealing with his wife’s care was related to him; and
• Wrongly allowed the person who had made the decision about his wife’s direct payments and care to deal with his complaint.
2. Mr B says that this is effectively a reduction in funding and he will have to pay for his wife’s care so that she can continue to receive care from trusted and familiar carers. Mr B says this is very important due to his wife’s dementia and the distress that a change in carers could cause her.
3. Mr B has told me that because the Council did not act in good time on his concerns about confidentiality, a member of his extended family now knows very intimate health details and this is extremely distressing to him. His mental health is now precarious and he has had to seek treatment for this.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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)

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How I considered this complaint

7. I considered the information provided by Mr B and discussed the issues with him. 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 all the comments received before issuing this final decision.

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What I found

The law and guidance

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.
9. 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.
10. Social Work England is an organisation which regulates social workers. It has published professional standards for all social workers in England. These say a social worker will consider where conflicts of interest may arise, declare conflicts as soon as possible and agree a course of action. (Professional Standard 2.7). The guidance accompanying the standards says ‘Potential or actual conflicts should be quickly identified and considered carefully with employers and a course of action agreed, including referring the person to another social worker’.
11. The Council’s complaint policy in operation at the time, said that most complaints will be investigated by a manager from within the services delivery unit, but also said that the manager will be from within the service delivery area, and independent of the service which is the subject of the complaint.

What happened

12. Mr B lives with his wife, Mrs B and her mother. Mrs B has complex needs including dementia. The Council’s assessments of her needs make clear that Mrs B can become very distressed if carers are not familiar or if she is unsettled with a carer.
13. Mr B was paid for 30 hours care per week via Mrs B’s direct payments. Mrs B also had care from a care provider for 15 hours per week. These helped her with various activities including accessing the community. Mr B tells me that the care from him and the care from known and familiar carers was working well. The Provider also contributed to the current care needs assessment, that the package was working well.
14. Mr B also cares for his mother-in-law at the house. Her care needed reviewing and so the Council decided to look at all the care needs within the household and Mr B’s needs as a carer.
15. Following this review, the Council decided that Mr B could provide all the care his wife needed in 28 hours per week and the external carers would no longer be needed. Mr B tells me that this came as a complete shock to him as his wife’s care package had been working so well.
16. Mr B asked the Council to review its decision. It met with him and went over all the care needed and the impact on Mr and Mrs B of no longer having the external carers. The Council reinstated the direct payments for the external carers at 15 hours per week.
17. However, the Council said that the care provider that Mrs B uses charges a much higher hourly rate than others in the area. The Council assesses the quality of care providers in its area and can commission carers to provide Mrs B’s home care. This would be at a lower rate than those Mrs B was using.
18. The Council gave Mr and Mrs B three options. It said:
• It could commission carers from a different provider for the existing hours of care; or
• Mrs B can pay for her current carers from her direct payment but the amount would buy fewer hours and this would mean a reduction in care provision, and the Council would then need to monitor the situation to make sure that Mrs B’s needs were still be met; or
• Mrs B could keep the same hours and the same carers but would need to top up the amount paid by the direct payments.
19. Mr B also pointed out that he uses the carers to cover him so that he can take annual leave. If they kept the same carers but the direct payments covered fewer hours, then Mr B would not be able to take the full entitlement of annual leave.
20. Mr B complained to the Council. He said that it was vital that Mrs B keeps familiar carers and the package was working well. Mr B also complained that prior to the meeting with the Council he had asked whether the officer leading the meeting could be related to him. After the meeting, he discovered that the officer was a relative. He said he is mortified that he shared very personal details with an extended family member.
21. The Council responded to his complaint. It said:
• It reinstated that Mrs B needs 15 hours of care from carers other than Mr B, but this must be moved to a different provider from the Council’s list; or they could use the equivalent direct payment money to buy around 8.5 hours of care from the current provider; or they could use the existing care provider for the same hours but would need to top up the direct payments.
• The officer had not known there was any family connection. The Council acknowledged that he had asked the Council in advance about this but it had not realised that he was expecting a response on that. It apologised to Mr B for this oversight. It said it would have been reasonable for Mr B to check this further when he got no response.
22. Mr B complained to the Ombudsman. He added that the same person that made the decisions about care also responded to his complaint and he felt this was not impartial.

Analysis

23. In response to my investigation, the Council has confirmed that it has not changed the direct payment due to the ongoing complaint. It explained that when it first set the direct payments amount, there was little choice of home care providers. It has sent me details from its files of conversations it had with Mr B advising him that in the future the level of payment would have to be reviewed as it was high.
24. The Council has told us it will assess the risk of moving Mrs B’s care to another provider once Mr B has decided his preferred option. It is right that the Council needs to ensure that care provided is good value. This means that it can take into account its own financial position and how it will meet the needs of local people. However, it must still meet Mrs B’s eligible needs, and the purpose of the risk assessment is to inform the Council’s decision. I would expect the Council to do the assessment before it decides whether to change the care package. This will allow it to properly consider the risks of Mrs B having less home care or a different care provider, and how these might be managed. Without the risk assessment the Council cannot say that it has properly considered the decision to change the care package and this is fault.
25. The Council failed to consider the impact of changing the care package on Mr B’s ability to take annual leave, as he would not have funds to pay the carers to cover his leave.
26. The Council’s failure to properly consider these decisions and base any changes on a risk assessment has caused Mr B significant distress. He is extremely concerned for his wife’s care and he says it has impacted on his own health.
27. The Council acknowledged that it should have considered the full implications when Mr B queried if the officer at the meeting could be a family member. I agree. Once Mr B had raised this it was for the Council to consider whether to include the officer would be a potential conflict of interest, or risk the integrity of the Council’s dealings. The Council made sure that the officer ended their involvement, but the Council’s failure to consider this before the meeting is fault. The Council apologised to Mr B but it was wrong to suggest that he should have followed this up himself. It was for the Council to act. It has caused Mr B distress as he worries there is potential for family members to know very personal details about him and his wife.
28. After the meeting the case was transferred to a different manager to oversee. The new manager was briefed on the situation and did not alter the Council’s decision to change the care package.
29. The Council says that its complaints policy allows a manager from within the service area to investigate complaints. However, the policy in place at the time also said that the manager should be independent of the service unit which is the subject of the complaint. When Mr B complained, the team leader of the service investigated the issues, and the new manager responded. So neither the team leader who investigated the complaint, nor the new manager who responded to it were independent of the service complained about. Having considered the complaints policy in place at the time, it was in line with the policy for the Council to deal with the complaint in this way. However, reference to a manager ‘independent of the service’ makes the policy confusing and, understandably Mr B expected the complaint to be investigated by a manager independent of the service, which did not happen. The conflicting wording of the policy was fault by the Council and left Mr B uncertain that it handled his complaint impartially. The Council has now altered its complaints policy to make clear that complaints will be investigated by a manager of the team complained about, unless there are clear reasons why this is inappropriate.

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Agreed action

30. The Council will within one month of the date of this decision:
• Apologise to Mr B for the fault identified and the impact on him and his wife. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Complete the risk assessment so that it can consider the potential risks of changing Mrs B’s care, and then use this to properly review its decision.
• Pay to Mr B a symbolic payment of £200 in recognition of the distress that its failings caused him.
• Share this decision with relevant staff and remind it that officers should act quickly on any potential conflict of interest or risk to integrity.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. There was fault by the Council causing injustice to Mr B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman