Summary: Ms X complained about the way the Council’s reablement team went about assessing her needs in 2022 and about various issues associated with her son’s care and her role as a carer. We found no fault with how the 2022 reablement assessment was conducted. However, we found there was a failure to respond to her complaint in January 2023 and delay in carrying out an investigation into direct payment issues. We recommended an apology and that the council took action. We also recommended both Ms X and the Council considered taking part in mediation.

The complaint

1. Ms X complains:
1. The Council’s adult Social Services department is responsible for historic abuse against her emotionally and financially. We understand this relates to care assessments undertaken by the Reablement Team in 2017.
2. The Council discussed the outcome of her Reablement assessments in front of her father at a meeting in 2019. This was a breach of confidentiality and caused embarrassment and distress.
3. The Council only agreed an additional four hours of additional support in 2017. Ms X believed she needed daily support with personal care.

4. In 2022 Ms X asked for further support. She did not agree it was reasonable for an assessment to be done by the Reablement team given the complaint she made about the negative experiences of this team.
5. During an assessment in 2022 a member of staff from the Reablement team caused her injury which left her traumatised.
6. The reablement team had already decided the outcome of the assessment before it took place and the report contained inaccuracies.
7. Since her original complaint, Ms X made a detailed complaint in January 2023 about the way the Council has dealt with her and her son. This includes concerns about safeguarding issues, blocking their use of advocates and conduct of meetings, refusal to deal with a mould issue, the conduct of carers, direct payments and the Council’s refusal to carry out an assessment for her when she had agreed limited access to her medical records. The Council declined to address this complaint because Ms X had engaged a solicitor with a view to pursuing legal action.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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).

Back to top

What I have and have not investigated

4. We generally expect complaints to be brought to us within 12 months of someone becoming aware of an issue. I have not investigated complaints a) b) and c) that Ms X has made. This is because they relate to events from 2017 to 2019. I have considered complaints about issues from 2022.
5. I note that Ms X’s home is a council property. Her son’s solicitor and Ms X’s complaint to the Council in January 2023 refers to mould and how this was addressed. We cannot investigate complaints, or those parts of complaints, that relate to the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended). For this reason, I have not made reference to this issue in my decision statement.

Back to top

How I considered this complaint

6. I spoke to Ms X and considered her complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Care and Support Statutory Guidance

8. The Care and Support Statutory guidance notes the Care Act promotes general wellbeing and supporting individuals to achieve desired outcomes. It also promotes working to delay or prevent care and support needs for as long as possible and supporting people to live independently where possible. This includes the use of reablement services.

What Happened

9. What follows is a summary of key events. It is not intended to be a detailed account of everything that happened. It will not set out all the events that occurred or all the information I have reviewed during my investigation.

Complaint d) whether it was reasonable for the Council’s reablement team to assess Ms X given previous negative experiences she had with that team.

10. As background to this complaint, Ms X told us about the key concerns she had following previous contact with staff from the Council’s reablement team.
11. In February 2022 Ms X asked the Council to provide additional support. A social worker (SW) from the Reablement Team visited her on 10 March to carry out an assessment of her needs.
12. At the assessment the SW noted Ms X was struggling to manage daily personal care because she had pain in her hands and reduced grip and strength.
13. Ms X’s son (referred to in this statement as Y) has a number of health conditions and receives a care from Personal Assistants (PAs) funded via Direct Payments. Ms X told the SW that Y’s PAs prepared meals for him and froze them. She had to heat the food up in the microwave. She stated, because of the issues with her hands, she struggled with this and it could be dangerous. On occasions she dropped things and she had burnt herself. After climbing stairs, the SW noted Ms X became dizzy. Ms X stated she struggled to balance when showering/drying herself and she was unable to apply a medicated pain patch that her doctor had prescribed.
14. The notes of the assessment appear to be detailed. The outcome of the referral was for the Council to provide reablement services to Ms X to assist her.
15. Ms X considered it was inappropriate for the Council to refer her to the reablement team because of previous negative experiences which she had with the team.

Complaint e) During an assessment in 2022 a member of staff from the Reablement team caused her injury which left her traumatised.

16. Ms X stated a member of staff had assisted her with a personal care matter which led to an injury to her. The Council told us no reablement staff member gave any assistance to Ms X with intimate personal care as Ms X had described. There are no records of any assistance with personal care being requested or carried out by the Council at the assessment in 2022.
17. Complaint f) The reablement team had decided the outcome prior to the assessment and the assessment report contained inaccuracies
18. The 2022 assessment of Ms X’s needs appears to be comprehensive. It reflects Ms X’s views in addition to setting out her practical care needs. The Council’s response to Ms X’s complaint in August 2022 explained it was necessary to assess someone’s needs before it could provide support. It explained the process and why the reablement team had been involved. In response to Ms X’s complaint the Council offered to review any inaccuracies she considered the assessment contained.

Ms X’s complaint in January 2023

Background

19. Ms X’s adult son, Y, engaged a solicitor who sent the Council a ‘Letter before Action’ on 5 December 2022. The letter before action alleged the Council had failed to conduct a review assessment for Y and that it had failed to provide Y with adequate care and support.
20. Within the letter, the solicitor noted Ms X was Y’s main carer, with assistance from PAs. It noted Ms X’s own health had deteriorated and her ability to continue performing her caring role was an issue.
21. The Council disputed the solicitor’s claim about Y’s care and support entirely. It stated a review of Y’s needs had been conducted in February 2022. The assessment noted Y required 38 hours of care and support. This had not changed since the February 2022 review.
22. I understand, prior to May 2022, Y’s care assessment had allowed for 4 hours of respite for Ms X. However, in May 2022 the Council carried out a carers assessment for Ms X. The outcome of which was £28 per week carers budget for Ms X rather than the previous 4 hours of respite care. The Council noted Y was not using all of the 38 hours of support available to him at that time.
23. I have not considered the solicitor’s allegations on behalf of Y, as this did not form part of the complaint that Ms X brought to the Ombudsman. However, I noted that, in addition to the key issues raised on behalf of Y, the solicitors:
• Expressed concern about the way in which Y’s advocate had acted. They stated broadly that the advocate lacked independence. The solicitor noted that recently, a new advocate had been appointed.
• Set out some concerns about the height of a toilet and the lack of level access to allow Y to access the garden.
• Set out concerns that a safeguarding process had resulted in limitations on Ms X’s use of Direct Payments to employ PAs for Y.

Ms X’s complaint in January 2023

24. Ms X complained to the Council on 18 January 2023. The complaint covered numerous issues about Y’s care and treatment by the Council. The Council acknowledged the complaint, but on 20 January it told Ms X it had been instructed by its legal team not to respond, as her case was currently under Judicial Review.
25. The issues Ms X raised echoed some of the points raised on Y’s behalf in December by his solicitor. These included:
• Advocacy; specifically that the Council was ‘blocking’ Y’s access to his advocate because the advocate told Y he was ‘not allowed’ to attend meetings with him.
• Ms X’s view that she should not have been investigated under safeguarding procedures and her view that reports about her amounted to a vendetta by certain individuals.
• Disagreement with investigations the Council was conducting into Ms X’s use of direct payments. Ms X complained that the Council took away a large excess of funds that had built up in Y’s Direct payment account, that the Council had failed to assist the family to find Personal Assistants (PAs) and that the Council had failed to pay PAs which had led to them challenging her for payment.
• Ms X also complained about the way an officer who was dealing with Y’s case had acted, complained about questions he asked Y and how he communicated with Y.
• The decision by an Occupational Therapist (OT) not to provide a raised toilet.

26. Ms X’s complaint letter also raised issues affecting her.
• She stated the Council was also blocking her advocate from working with her.
• The Council was refusing to do an assessment of her needs because she had only consented to the Council having limited (rather than full) access to her medical records.

Ms X’s accident/Change of Circumstances

27. In March 2023 Y’s solicitor began acting for Ms X as well as Y. The solicitor stated a moving and handling assessment for Y had noted Ms X had her own care needs and sought a needs assessment for Ms X. In their letter, the solicitor proposed conditions set by Ms X about how and where an assessment of her needs should be done.
28. In May 2023 the Council invited Ms X to attend for a carer review.
29. There was disagreement between the Council and Ms X about how it would be done. The Council proposed closing its file in July as Ms X was not engaging with the process. At this point a date for a carers assessment was agreed at the end of August.
30. In the months that followed, there was significant correspondence regarding Ms X’s decision not to allow all of her medical records to be shared with the Council and about arrangements for the carer assessment. One of the key issues was location. The Council suggested a neutral location because some social workers were not prepared to be filmed on CCTV which Ms X had inside her home. Ms X wanted the carers assessment at home.
31. In the days immediately prior to the August assessment Ms X’s solicitor told the Council it had not been able to contact Ms X recently and the August date may need to be moved.
32. In mid-September 2023 Ms X had an accident and broke her arm. The solicitors notified the Council that the accident significantly affected her mobility and her ability to provide support for Y. As at September 2023 Ms X had a package of care from the NHS following her injury.
33. Ms X’s solicitor sought an urgent carers assessment for 29 September, at Ms X’s home. The Council states in response that a carers assessment will be re-arranged when she had healed, but the support she provided to her son, Y could be discussed at an assessment planned for Y on 29 September.
34. Y’s assessment did take place on 29 September. This appears to have been a comprehensive review of Y’s support needs. The Council noted there was no record of Y needing overnight care in the past and it did not consider Y needed care and support at night. The Council noted that Y’s PAs had commented in February 2022 that there did not seem to be much actual support needed and they had been asked to do cooking, laundry and domestic work. The assessment included references to the situation following Ms X’s injury.
35. The Council provided evidence that it attempted to arrange a carers assessment for Ms X in mid-October. Ms X responded stating she would rather postpone this until she was fully recovered.
36. As at November 2023 Ms X complained to the Council that excess funds had been removed from Y’s Direct Payments Account without warning. In the correspondence that followed the Council asked Ms X who had authorised certain payments from the Direct Payments account that she had agreed. The Council sought clarity about how the funds had been used.
37. I understand that due to Ms X’s limited ability to perform her caring role, Ms X and Y had used funds that were in Y’s Direct Payments account to pay for more care hours. This included care overnight. Ms X’s solicitor questioned the Council’s insinuation that the funds had not been used properly and stated it was clear emergency funding would be needed when Ms X had her accident in September. The Solicitor challenged why an emergency review had not been done and funding had not been provided.
38. The Council’s response in November explained the Council had not removed funds from the Direct Payment account, rather, this had been spent on additional care services, which were not documented care needs in Y’s care plan. From November 2023 the Council stated it had re-issued the 38 hrs funding so Y’s needs could be met.
39. A Continuing Heath Care (CHC) assessment for Ms X was arranged for December but it did not go ahead. A case note on the Council’s records indicates this was because Ms X was not happy for it to proceed unless it was recorded. In December 2023 the Council wrote to Y and Ms X regarding the outcome of the Direct Payment monitoring/Audit. The Council explained the findings and stated Ms X needed to ensure a payment to her went through payroll.

Was there fault by the Council

40. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations, completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did, or explore every issue that is raised. It is with this in mind that I have considered Ms X’s complaint.

Ms X’s complaint July 2022

Complaint d)

41. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:

• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.

42. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits.
43. I understand Ms X had concerns about seeing the reablement team because of a previous incident. However, the Council was not at fault for arranging an assessment by the reablement team and looking to provide reablement support before considering long term care planning. This is a reasonable approach to try to maintain an individual’s ability to live independently.

Complaints e) and f)

44. The 2022 assessment of Ms X’s needs appears to be sufficiently detailed. It reflects views Ms X expressed and sets out her needs. While I understand Ms X may not have agreed with the Council’s approach, I do not consider there is evidence the outcome was pre-determined. When responding to Ms X’s complaint the Council offered to review any inaccuracies. There is no evidence that a staff member hurt Ms X in the course of the assessment conducted in March 2022. I have found no fault in respect of these elements of Ms X’s complaint.

Complaint g) response to Ms X’s Complaint January 2023

45. I have found the Council was at fault for not responding to Mrs X’s complaint in January 2023. While there are areas of cross-over with points made by her son’s solicitor in late 2022, Ms X raised complaints about some separate issues that related to her, rather than directly to her son’s care and support that his solicitor challenged. Also, while Y’s solicitor sent a pre-action protocol letter, no judicial review proceedings had begun. Where the Council had already commented on issues in correspondence with Y’s solicitor, it could have referred to this in its complaint response. It should have responded to other issues Ms X raised.
46. Although the Council did not agree to respond to the January 2023 complaint, I note the Council’s response to Y’s solicitor responded to some of the issues Ms X had raised. This limited the injustice caused to Ms X and Y.
• In its response to Y’s solicitor in December 2022 the Council stated it commissioned the advocacy service, but the advocates it provided were independent. It took note of general concerns which it would consider as part of its commissioning arrangements in future. However, as they act independently of the Council, it stated concerns about the service should be raised directly with the advocacy company. The Council provided the manager’s name to help Y and Ms X to do this.
• The Council reached a decision in December 2022 about the safeguarding issues it had been investigating since July 2022. It found there was no evidence to substantiate allegations of misuse of finances and medication or coercion by Ms X. However, there were ongoing concerns regarding Direct Payments and it stated consideration of these issues was ongoing and would be addressed separately.
• The Council also responded to concerns about the conduct of a social worker, refuting the allegations made about his conduct, which it stated were false and utterly unsubstantiated.
47. However, several issues were not considered by the Council as a result of the decision not to respond to Ms X’s complaint. Although the Council had confirmed the outcome of the safeguarding investigations, it does not appear to have responded to the concerns Ms X raised about the justification for the safeguarding investigation. I also found that the Council did not respond to Ms X’s comments about her concern that the Council had taken control of her son’s Direct Payment account and that non-payment of PAs by the Council had caused difficulties. The Council did not explain the OT decision not to agree to a replacement toilet for Y. I have recommended the Council reviews these areas and provides a response to Ms X’s concerns.

Other issues

48. I considered how the Council responded to Ms X’s accident. The injury she sustained was clearly a change of circumstances where it is more likely than not affected her ability to assist her son, alongside his PAs.
49. The Council did not carry out a carers assessment for Ms X until November 2023. However, it did carry out an assessment of Y’s needs on 29 September at which Ms X’s ability to provide care (alongside Y’s PAs) was discussed. As a result, there is evidence that the Council had considered this issue relatively soon after the incident occurred. On balance, I found this was sufficient to understand the impact of the injury to Y’s care, ahead of an actual carers assessment. I note the carers assessment had been offered on previous occasions but had not been taken up by Ms X for various reasons.
50. I found there was a delay in responding to and setting out the outcome of the monitoring of Y’s direct payments. I note that in September 2022 the Council offered a traditional care package, organised by the Council due to issues with PA recruitment it was investigating through safeguarding enquiries. This was turned down. In December 2022 in response to the safeguarding matter, the Council stated there was still a need to continue to consider the Direct Payment issues. The response to the Direct Payment issues was not responded to until November 2023. It appears these concerns were under investigation but not completed, throughout the majority of 2023. While I note a traditional care package was offered in 2022, it is not clear what, if any, advice was provided about the operation of the Direct Payment account during the ongoing investigation. The delay in resolving this issue and absence of clarity about the use of direct payments in the meantime added to a difficult relationship and potentially exacerbated confusion. It warrants an apology.
51. The relationship between Ms X and the Council appears to be significantly strained. Amongst other things, an example of this is the difficulty agreeing how, where and when assessments will be conducted. Due to Y’s needs and Ms X’s role as a carer, the Council and Ms X will have an ongoing relationship. As a result, I have recommended that both the Council, Ms X and Y consider engaging in mediation with a view to resolving differences and restoring a positive working relationship.

Back to top

Agreed action

52. Within four weeks of my final decision:
53. The Council agreed to apologise in writing to Ms X for the failure to respond to elements of her January 2023 complaint and for the delay in resolving the direct payments issue. The Council’s apology should adhere to our guidance on making apologies which can be found in our Guidance on remedy document online.
54. The Council should review Ms X’s complaint from January 2023 and respond to the concerns she raised about the instigation of safeguarding enquiries and the delay and manner in which the Council dealt with concerns about the use of the direct payment account. It should also respond to the concern raised about the Occupational Therapist’s assessment for a higher toilet. The Council should send an initial response directly to Ms X and to Y about these points within four weeks of my final decision. It should then follow timescales in its complaint procedures should she wish to escalate the complaint further.
55. I recommend that both the Council, Ms X and Y consider engaging in mediation with a view to restoring a positive working relationship.
56. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

57. There was fault by the Council.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman