Summary: Ms X, on behalf of her mother, Mrs Z, complained the Council failed to meet her care needs as it did not provide night-time care causing distress. The Council has not properly assessed whether Mrs Z has eligible night-time care needs and has provided contradictory information about what an additional five hours of direct payments were for. A suitable remedy is agreed.

The complaint

1. Ms X, on behalf of her mother Mrs Z, complains the Council failed to meet Mrs Z’s care needs as it did not provide night-time care.
2. Ms X says this has been distressing, and as she is also disabled, has impacted on both her and her mother.

Back to top

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. 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)
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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided; and
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

Back to top

What I found

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.

Direct payments

8. 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. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Key facts

9. This section sets out the key events in this case and is not intended to be a detailed chronology.
10. Mrs Z spent a period of time in hospital in September 2022. The hospital social worker was involved in the planning for Mrs Z’s discharge. The case notes show there was a discussion about Mrs Z’s needs on discharge and that this included her night-time toileting needs.
11. The Council sought information from healthcare staff about how Mrs Z’s night-time toilet needs were managed. The nurse said Mrs Z used pads at night and that her needs were manageable. The Council explained the different discharge pathways to Mrs Z. It said she could move to a short-term care home placement where there would be 24-hour care or return home with a package of care. It explained that if she returned home it was unable to provide any night-time care. Mrs Z was very clear that she wanted to return home.
12. Following Mrs Z’s discharge from hospital, the Council put in place a package of care which consisted of two carers attending four times per day. The Council says the four calls were 45 minutes in the morning and 30 minutes at lunchtime, teatime and tuck in. This package of care was provided by a care agency until the end of January 2023 when Mrs Z changed to direct payments to use her own personal assistants. When the direct payments began, a further five hours per week were provided for Mrs Z to use flexibly for other tasks including shopping.
13. The Council began an assessment of Mrs Z’s needs about four weeks after her discharge from hospital. The support plan produced in November 2022 provides details about how Mrs Z manages her toileting needs. It says she uses a commode which is next to her bed and that she needs someone to empty this regularly so the area is sanitary. It says Mrs Z’s toileting can be problematic and cannot be timed due to her inflammatory bowel disease. It says that she uses incontinence pads in case of accidental incontinence and she requires two carers to ensure safe transfers.
14. It the Council says that during this assessment, the social worker discussed the frequency of Mrs Z’s toileting needs during the night but key information was missing. The social worker sought information from specialist inflammatory bowel disease nurses about four months after Mrs Z’s discharge from hospital.
15. In response, the specialist nurses said they were happy to assist but had no recent assessments for Mrs Z. The information suggested Mrs Z was not engaging with the service but that it would send another appointment and offer assistance. The nurses did not provide any specific information to the social worker about whether Mrs Z’s condition could be managed using incontinence pads.
16. The social worker also requested a night service for a temporary period of two weeks in order to assess the need for night care. The enablement service said it had no capacity on its night team to offer any help. As an alternative, assistive technology was used in the form of movement sensors to monitor Mrs Z’s movements during the night.
17. The Council increased the length of the calls for Mrs Z meaning she receives a direct payment for 50.5 hours per week. In November 2023 the case notes show that Ms X told the Council the package of care was working well and she had no concerns.

Analysis

18. Mrs Z has a number of health conditions which limit her ability to look after herself. Her mobility is restricted and she requires dialysis three times per week as an outpatient. Mrs Z also has an inflammatory bowel disease meaning her bowel movements can be unpredictable and urgent. Ms X lives with her mother and has her own disabilities and care needs. While she assists with her mother’s care, she is not able to be a carer.
19. This complaint is about the failure to provide night-time care following Mrs Z’s discharge from hospital in September 2022. The Council says Mrs Z’s family initially agreed to provide night-time care but just a few days after she returned home, they told the Council they could not manage her needs and required assistance.
20. The Council has taken the view that Mrs Z’s night-time needs can be met by her using incontinence pads. It says it came to this view after using sensor monitoring to show how often Mrs Z needs the toilet at night.
21. Based on the evidence I have seen, I am not persuaded the Council has properly considered Mrs Z’s night-time needs. The November 2022 assessment mentions Mrs Z using a commode and that she requires two carers to ensure safe transfers. However, it does not say how Mrs Z will transfer safely to the commode at night without help. It also mentions that toileting can be problematic and cannot be timed due to the inflammatory bowel disease but doesn’t say how this can be managed at night. There is medical evidence which indicates Mrs Z can have up to 10 bowel movements per day. This could be what the Council means when it says toileting can be problematic.
22. The Council has a duty to assess Mrs Z’s needs, decide which needs are eligible for assistance and then take a view on how to meet these needs. The Council says it has done this by using the technology and deciding incontinence pads can be used at night. However, I am not persuaded the information set out in the November 2022 care assessment clearly shows it properly considered what the night-time needs are and how to meet them.
23. I have not seen any analysis of the motion sensor information and why the Council took the view this did not show any night-time care needs. Mrs Z requires two people to safely transfer to the commode or get to the toilet and so it is not clear how this factored into the Council’s analysis of the data. There is nothing to suggest consideration was given to how incontinence pads would be suitable all night for someone with an inflammatory bowel disease.
24. I have also taken account of the Council’s response to Ms X’s complaint dated 14 March 2023. In that letter the Council changed the finding on the complaint about night-time care from not justified to justified. It states “The Adult Social Care Directorate then put in place an additional 5 hours direct payment home care hours from 30/01/2023 to be used for care during the night for your mother”. Ms X says she had not received these extra five hours.
25. This is the first indication that the Council was accepting any night-time care needs and is in contradiction to other information it has provided about not providing any night-time care. I have not seen any explanation of why five hours was considered appropriate and what eligible needs this covered. This adds to the view that the Council has not properly considered what eligible night-time care needs Mrs Z has.
26. I consider this has caused uncertainty about whether Mrs Z has any eligible night-time care needs. It is not the Ombudsman’s role to take a view on whether there are eligible needs, this is a decision for the Council. The Council should therefore complete a new assessment of Mrs Z’s eligible needs and provide a clear explanation of its decision. It is not possible to now take a view on what the outcome would have been in November 2022 if the assessment had been properly taken. I am therefore recommending a payment for the uncertainty caused.
27. I do consider there was delay by the Council in providing help with shopping. This was not included in the package of care provided after Mrs Z was discharged from hospital in September 2022 and there is nothing to suggest this was given any consideration. Ms X raised this during a discussion in November 2022 and it was at this point the Council agreed to put in an extra five hours of flexible support each week. However, these extra hours were not actually provided until the direct payments started on 30 January 2023. This is fault.
28. As a result, Mrs Z missed out on five hours of care per week for at least two months. In response to my enquiries the Council said it was exploring a remedy of £150. I have not seen anything to suggest this payment has been made.

Back to top

Agreed action

29. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• make a symbolic payment of £150 to recognise the distress caused by the failure to provide the five hours of flexible care, unless this payment has already been made in which case the Council should provide evidence of the payment;
• complete a new assessment of Mrs Z’s night-time care needs and provide the reasons for the decision reached; and
• make a further symbolic payment of £300 to recognise the uncertainty caused regarding the night-time care needs.
30. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman