Summary: The Council’s decision to change Mrs X’s care agency despite the recommendation of a senior mental health nurse about consistency of care had a detrimental effect on her stability. The Council should review the way in which it responds to changing needs and consider how it exercises discretion over care choices to avoid the risk of giving the impression it has a blanket policy. It agrees to offer a proportionate amount to Mrs X and Ms A in recognition of the considerable anxiety they suffered during this time.

The complaint

1. Ms A (the complainant) complains about the way the Council insisted on a change of care provider to save money despite the advice of a mental health professional that Mrs X needed consistency of carers. She also complains about the Council’s response to her complaint about the new agency.

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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 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. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
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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How I considered this complaint

5. I considered all the information provided by the Council and by Ms A. I spoke to Ms A. Both parties had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

6. 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. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
7. 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.
8. 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.
9. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
10. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
11. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

12. 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.

What happened

13. Mrs X has dementia. Her husband was her primary carer until 2022 when he became ill and was unable to continue. Mrs X’s GP made a referral to the Council for a social care assessment for Mrs X in March 2022.
14. The case recording shows a conversation between the social care team and Ms A (who holds power of attorney for Mrs X) following the referral. The case notes are marked ‘urgent’: the text says Ms A explained family members were caring for Mrs X. The social care team explained to Ms A that as her parents would be self-funding it might be quicker to source care privately than ask the Council to arrange it. Ms X agreed to talk again in a few weeks when it would be clearer what the situation would be for Mr and Mrs X. The Council closed the case on 19 April after a further conversation when Ms A said at the moment the family was not looking for a long-term care package for Mrs X.
15. Mr X died in May. In August Ms A contacted the Council again. Mrs X had lost a considerable amount of weight and was unable to manage her own needs, reluctant to eat and forgetting to take her medication. Ms A said the family and a care agency were now providing two hours of care every evening to encourage Mrs X to eat and to provide company and reassurance. She said once probate was resolved for Mr X’s estate it was likely Mrs X would be self-funding but, in the meantime, Mrs X (although paying privately for care) was below the threshold at which she would be liable to pay.
16. The Council’s records show a file note on 26 August of a further phone call to Ms A to inform her the case was awaiting allocation. An officer spoke to the care agency on 3 October and was told of their concerns that Mrs X needed more care, and input from the social care team. On 10 November the allocated social worker arranged to carry out a needs assessment.
17. The social worker spoke to the care agency prior to her assessment of Mrs X. The agency explained they had now been asked to increase their hours to provide an hour call every day except for a midweek call of two hours. The agency manager also explained that a small group of 3 or 4 staff supported Mrs X so she didn’t become confused.
18. After the assessment the social worker spoke to Ms A. She said the rate being charged by the agency was “well above” the rate the Council usually paid for Direct Payments. Ms A said the agency carers had supported her mother well, were known to her and knew how to encourage her to eat: she added that having to change provider or use an agency with different carers at different times may impact on her well-being and could lead to a new deterioration of her food and fluid intake at lunch time.
19. The social worker asked the Council’s brokerage team to look for other agencies. A record of a management discussion about the case noted that Mrs X’s grandson currently supported her for two hours but added, “I would like this to be reviewed 6 weekly to try to reduce the cost of this evening visit incrementally, as (Mrs X's) wellbeing improves.” The note also says (Ms A) “may prefer to engage (the current care agency) long term via a Direct Payment, but this would not be in line with legislation, which requires us to meet identified needs in the most cost-effective way”. The Council put in place a temporary agreement to fund the current care agency “pending a more cost-effective option.”
20. In December Ms A contacted the social worker expressing frustration at the delays in setting up a care package for Mrs X. She pointed out that both she and the GP had contacted social care twice after Mr X died in May but nothing had happened until further contact in October. She said, “When Social services contacted me, they confirmed that her previous referrals were marked urgent by the GP, but this had not been updated on your systems which was an error so the referrals were not treated as urgent, and so this 3rd referral would be treated as urgent. So despite having had an urgent referral from her GP months before (Mrs X) (and I) was left to suffer, and continue deteriorating without the proper support.” Ms A also said that at the last meeting, the social worker had first suggested the possibility of 24-hour residential care, then said that she thought 4 hours domiciliary care a day was too much “as other people in a similar position get less than this” and she asked how those two statements were compatible.
21. Ms A also explained that the current care agency was careful to introduce Mrs X to new carers before they came on their own and kept to a very small group of known carers. She said she agreed to try the Council’s selected agency to provide care as long as it was only for one call a day at first to ensure that the introduction of new people did not undo all the good work which the current agency had achieved. She said “Whilst I appreciate your decision is based primarily on cost, mine must be based on the best interests and wellbeing of my mother”.
22. On 20 December the social worker spoke to an agency which said it could not currently provide a small group of workers. The social worker asked the brokerage team to accept this agency, Compkey, for the entire care package however.
23. On 20 December the mental health nurse assessed Mrs X. She telephoned the social worker the following day and said that Mrs X needed consistency of care. She said “being supported by the carers she knows well may facilitate (Mrs X) accepting care and help and also having a routine is very important to her”.
24. Ms A contacted the social worker on 21 December and said she did not agree to all the care calls being replaced after she had explained how detrimental this would be to Mrs X’s situation. She said they would trial one call a day. The social worker agreed to go forward on that basis at first.
25. On 29 December two members of staff from Compkey visited Mrs X unannounced to carry out an assessment and look round the house. Ms A contacted the social worker to say had Mrs X’s grandson not been there to reassure Mrs X she would have been in a worse state of panic than had happened. Ms A said she had not been told anything about the new agency or given any details at all.
26. The social worker apologized. She said the Compkey manager was very sorry and now realized it should have contacted Ms A first. Compkey began providing lunch-time care from the first week in January.
27. On 8 January Ms A contacted the social worker. She said the carers had been an hour and a half late on the first day. From then on, they had been consistently late and failed to provide the care (encouragement with food and drink) which was required, but instead had spent half the visit moving furniture and cleaning. No food or drink had been provided at all on some visits. One carer had insisted on locking the door when she left, leaving Mrs X in a state of panic. On one day 2 carers had stayed 2 hours and tried to give Mrs X her evening meal during that time (before 3.30 in the afternoon). Ms A said, “it is clear that mum’s wellbeing is already deteriorating as a result of this upheaval and extreme change in services provided. I am gutted to see my mum shaking again after a few weeks of no shakes.”
28. Although the social worker contacted Compkey and she and Ms A met the manager, Ms A emailed the social worker again and said she was concerned that her mum was being put at risk. She said there was “a consistent failure to encourage fluids. Lack of care/knowledge surrounding medications, inability to accurately record food/fluid intake and in my opinion the serious risk of harm to a woman who barely weighs 6 stone being given medications which must be given with food, on an empty stomach.” She said this was all able to be evidenced on cctv footage. She said in addition Compkey had only provided 656 minutes out of the 900 minutes it had been contracted for, which made their cost comparable to the preferred agency (which the Council said was too expensive) and yet the care was worse.
29. Ms A gave notice to Compkey. She asked the social worker for the complaints procedure. She said apart from the very detrimental effect on Mrs X, she had had to spend considerable amounts of time off work trying to support Mrs X at a time when the Council was anxious to continue the care package with Compkey and extend it so that the contract with the preferred agency could cease.
30. The Council’s records show the social worker raised some concerns about the Compkey carers as a safeguarding enquiry as there was a possibility of a medication error.

The complaint

31. Ms A complained to the Council in January 2023. She complained about the initial delay in arranging care, the way the social worker had tried to impose the different care agency and had done so for one care call a day despite Ms A’s repeated concerns about the effect on Mrs X. She said the carers had changed the care plan and failed to document correctly medication administration and in the end she had to refuse consent for them to enter Mrs X’s home.
32. The Council apologised that there had been “times in which the service provided has fallen below the standard we all aim and expect to provide.” It said the agency carers had been reminded to complete documentation correctly, to read care plans thoroughly, and to communicate clearly with families about changes in time slots.
33. Ms A pursued the complaint as she said there were unanswered concerns. The Council responded, apologizing that the initial assessment had taken longer than it would normally have done. It said despite her concern that the care plan agreed with Compkey had not been amended to include the mental health nurse’s assessment that Mrs X needed consistency of care and had a moderate, not a mild cognitive impairment, it was satisfied that “CompKey were appropriately approached to provide a package of care and the information provided to CompKey was sufficient in order to understand and meet your mother’s needs. I am also satisfied the Council adhered to legislation which advises needs must be met in the most cost-effective way.” It said “consistency of carers” was not a care and support need under the Care Act but said it took Mrs X’s wellbeing into account by agreeing the existing agency could continue for a month.
34. The Council also explained that following Ms A’s compliant, the Council’s quality monitoring service had assessed Compkey’s provision in terms of care provision, nutritional support and medication administration and asked the agency to produce an action plan to remedy deficiencies. It had also reminded the agency of “the importance of carers spending the allocated time with their clients where it is highlighted this can impact the person’s overall acceptance of ongoing care.” It offered Mrs X £250 and Ms A £100 in recognition of the identified failings.
35. Ms A complained to the Ombudsman. She said Mrs X had gone into a care home in April 2023 and had improved considerably due to the consistent care and regular encouragement to eat.
36. The Council says that by the time the mental health nurse had shared her assessment with the adult social care team, the care and support plan had already been issued to Compkey. It accepts that Compkey could not guarantee the same small number of carers as Ms A’s preferred agency but says efforts were made to keep the number of carers to a minimum.

Analysis

37. There was a delay until November 2022 before a social worker was allocated and contacted Ms A, despite the additional contact from the GP and the initial view that the case was urgent. That was fault which caused anxiety to Ms A.
38. Although the prevailing view was that Mrs X required consistency of care with a very small team of carers, as she had from the existing agency, the theme among the social care team discussions was one of reducing the costs of the care package and sourcing a cheaper agency. The Council says by the time it knew of the mental health nurse’s assessment it had already shared the care and support plan with Compkey but it had done so in spite of the knowledge that Compkey could not provide the consistency Mrs X needed. The Council says, in response to my draft decision, that it had to balance the mental health nurse’s views against “supporting evidence, budgetary constraints, and our legal duty to meet the needs of the entire population.” It says it was satisfied Compkey made efforts to minimise the number of carers as it had promised.
39. As the Council insisted on the trial care package from Compkey it remains responsible for the care that agency provided. There were errors even before the care began – an unannounced assessment visit which left Mrs X confused – which were compounded after the start of the care by late starts, failure to provide food and drink as required, medication errors and short calls. The more “cost-effective” care package turned out the same price as the existing care package arranged privately because of the number of short calls but resulted in worse care. The Council acknowledged the standard of care was poor.
40. In my view the Council should also consider the way in which it insisted on using this agency against the views of Mrs X’s family and existing carers and against professional advice about the importance of maintaining the constancy of care which had seen an improvement in her condition. Although I note the Council’s view that it fulfilled its duty to consider Mrs X’s wellbeing while considering the financial constraints and legal obligations it faced, the overriding impression left by the language used (see paragraphs 18 – 20 above) is that it placed more importance on the cost of the care package than on its knowledge of Mrs X’s wellbeing.

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Agreed action

41. Within one month of my final decision the Council will apologise formally to Mrs X and Ms A for the shortcomings identified here and the distress they caused.
42. Within one month of my final decision the Council will offer £500 to Ms A and an additional £500 to be used for Mrs X’s benefit.
43. The Council has provided some information about the actions it took following this complaint to consider the quality of the service provided by this agency.
44. Within two months the Council agrees to carry out a review and identify any learnings around maintaining wellbeing as concerns about the standard of care provided were raised.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed this investigation. I find there was fault on the part of the Council which caused injustice to Mrs X and Ms A, which can be remedied by the completion of the recommendations at paragraphs 41 to 44.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman