Summary: The Council commissioned care provider was at fault for the poor care it provided to Mrs X’s late mother, Mrs Z. The Council was at fault for the delay in arranging a respite placement for Mrs Z and for the failure to explore the option of direct payments to pay for the respite. It also failed to properly explore alternative options when Mrs Z wanted a long-term care home placement. The Council has agreed to apologise to Mrs X, make a payment equivalent to the direct payment for respite and a payment to acknowledge the distress, frustration and uncertainty she was caused by the Council’s faults.

The complaint

1. Miss Y complained on behalf of her relative Mrs X the Council:
1. did not offer the family suitable options to meet Mrs X’s late mother, Mrs Z’s care needs, including a direct payment, and they felt forced to accept the commissioned home care provider, MIDAS Care.
2. commissioned home care provider, MIDAS Care failed to provide Mrs Z with appropriate care and support which led the family to make a safeguarding referral.
3. delayed arranging suitable respite care when the family went away in March 2024. This led the family to have to privately fund a care home.
4. failed to arrange appropriate support for Mrs Z following the end of the respite placement. They say the personal budget was unfairly low which limited the care home options available, and the care home offered ‘required improvement' according to the Care Quality Commission so they did not consider it could meet Mrs Z’s needs.
2. Miss Y say these events caused them significant mental strain, time and trouble, and financial loss in having to pay privately for Mrs Z’s respite stay.

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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. 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, sections 24A(1)(A) and 25(7), as amended). In this case the Council commissioned MIDAS Care (the care provider) so we consider the care provider was acting on the Council’s behalf.
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(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I considered evidence provided by Miss Y and the Council as well as relevant law, policy and guidance.
8. I gave Miss Y, the Council and MIDAS care an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.

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What I found

The relevant law and guidance

Charging for care

9. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
10. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

11. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if the person can find someone else (a ‘third party’) to pay the additional amount, i.e. top up the personal budget.
12. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.

Safeguarding

13. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014).

CQC fundamental standards

14. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
• providers must make sure that people who use their services have adequate nutrition and hydration to aid good health. People must be provided with appropriate food and drink and any support they may need to achieve adequate nutrition (regulation 14)
• medicines must be supplied in sufficient quantities, managed safely and administered appropriately to make sure people are safe (regulation 12)

Direct payments

15. 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.
16. Direct payments cannot currently be used to pay for people to live in long-term care home placements. They can be used to purchase a short stay in care homes, provided that the stay does not exceed a period of four consecutive weeks in any 12-month period. This could be used to provide a respite break for a carer, for example (section 12.41 of the Care and Support Statutory Guidance)

Support by the care provider

What happened

17. Mrs Z lived in her own home. She had memory and cognition difficulties and received significant support from family members. Following a hospital admission Mrs Z returned home with a reablement care package (short term care funded by the Council or NHS to help someone get back to normal and stay independent) of four care calls a day. In November 2023, as the reablement package ended, the Council carried out a needs assessment. This recommended three care calls a day. The assessment recorded Miss Y was happy to help between care calls.
18. MIDAS Care, the care provider, agreed to support Mrs Z with personal care, a shower/body wash, household tasks and preparing drinks and meals.
19. In December 2023 the Council reviewed the care package. It noted the care package was going well and there were no real concerns. There were initial issues around the timing of care calls and whether Mrs Z had already eaten or not. The social worker agreed to emphasise the importance of meal support to the care provider. The review noted there were also issues around not showering Mrs Z but the family had contacted the care provider and it had addressed these issues.
20. In early February 2024 Mrs X contacted the care provider to report a care worker had opened the wrong week’s blister pack of medication and had not given Mrs Z her blood thinning medication.
21. In mid February Miss Y contacted the care provider to complain a care worker had forcibly spoon-fed Mrs Z and had failed to notice she had been sick in the bathroom. In a further call, the following week, the family raised concerns that a care worker had got Mrs Z ready for bed but left her downstairs. Mrs X was also receiving a high number of calls from the care workers.
22. In late February 2024 Miss Y again raised concerns about a mix up with Mrs Z’s blister pack and Mrs Z’s blood levels appeared to show she had received too much blood thinning medication. Miss Y made a safeguarding referral to the Council. In particular, she was concerned the care provider had failed to administer blood thinning medication appropriately. The Council decided a safeguarding investigation was not required but recommended a review of the care package. In early March the family reported the care provider had not given Mrs Z her blood thinning medication despite being advised to do so.
23. The family met with the care provider in early March to discuss Mrs X and Miss Y’s complaints. Alongside medication issues they raised further concerns that Mrs Z was given undercooked food, a care worker had cooked fishfingers in a microwave, Mrs Z’s pet was being overfed, care workers were not using the washing machine properly and were leaving calls early. The care provider agreed to carry out spot checks to keep an eye on the medication administration and to retrain staff on medication.
24. Following this the Council visited Mrs Z and reassessed her care needs. The assessment noted the issues raised about the care provider and the Council agreed to a two week respite period and a change of care provider. In mid March Mrs X raised further concerns about Mrs Z’s medication administration. The Council agreed to undertake a safeguarding investigation. Mrs Z started a period of respite in late March 2024.
25. The social worker raised quality assurance concerns which the Council’s quality assurance team referred to the care provider. It responded to the concerns raised and agreed the quality concerns took place. It advised it had apologised to the family and retrained staff.
26. Miss Y complained to the Council in April 2024 about the quality of care provided by the care provider and that the family were not informed about direct payments as an option to source their own care provider when Mrs Z’s care needs were assessed. She did not receive a response and so complained to us.
27. The Council upheld the safeguarding as substantiated in May 2024. It noted potential harm was caused due to medication errors and undercooked food. It noted staff changes could have contributed to the family’s complaints with short staffing and shadowing not being completed. The risk to Mrs Z was removed by her move to respite. It noted significant staff training was undertaken by the care provider with new staff being recruited.
28. Mrs Z died in August 2024.
29. The Council responded to Miss Y’s complaint in October 2024. It accepted it did not offer direct payments or discuss these at the review. It said due to the end of the reablement package direct payments could not be offered due to the lengthy process involved and the need to transfer from reablement without delay. If they had been suggested and the family were interested a referral would have been made for direct payments to be set up at a later date. It apologised that these were not discussed or offered.
30. It explained that the family had chosen the care provider out of two which were offered. It apologised if the care provider had caused the family distress and advised the concerns were being taken forward by its contract monitoring team.

Findings

31. The Council accepted in its complaint response that it was at fault when it failed to offer the option of direct payments. It has explained why this was not an option initially but its failure to provide any information about these meant the family did not have the option to consider moving to these when issues first arose with the care provider.
32. The Council’s safeguarding investigation upheld the family’s care quality concerns. In addition, the care provider in responding to the Council’s quality assurance form, accepted the quality concerns had happened. The faults in the support provided to Mrs Z included issues with medication administration, in serving undercooked food and in the timing of care calls. The failure to provide appropriate support with medication administration and with nutrition is not in line with the CQC fundamental standards of care.
33. These faults meant Mrs Z did not receive the support she should have. Mrs Z has since died so we cannot remedy any injustice caused to her by the care provider’s actions. However, Mrs X was caused distress and frustration in having to follow up the concerns and ensure Mrs Z was being cared for properly at a time when care workers were employed ostensibly to reduce the demands on her.
34. In response to the safeguarding and quality assurance concerns the care provider confirmed it had recruited and retrained staff and in response to a draft of this decision the care provider also explained the actions it has taken to prevent a recurrence of the faults identified. The Council said it will continue to monitor the care provider through its contract monitoring team so I have not made any recommendations for service improvements.

Respite care and long term placement

What happened

35. In early March 2024, the Council reassessed Mrs Z’s care needs. Mrs X requested a two week respite stay for Mrs Z from late March as she needed a break from her caring role. She raised significant issues with the support provided by the home care provider.
36. On 13 March 2024 the Council approved the assessment and sent a request to the brokerage team for the respite. Miss Y contacted the Council on 18 March to ask for an update as the respite stay was due to start on 21 March. On 19 March Mrs X told the Council Mrs Z was in hospital with a chest infection, but they wanted to proceed with respite. The Council called Mrs X on 20 March who confirmed Mrs Z was now back home and she again said they wanted to proceed with the respite stay. The Council identified a care home but Miss Y rang the Council to advise the care home would not accept Mrs Z due to her receiving blood thinning medication. The Council agreed to look again.
37. In the meantime, the family visited a care home local to Mrs X’s address, care home A, which could accommodate Mrs Z’s respite stay and Mrs Z went there for respite on 21 March. Miss Y spoke to the social worker four days later. The notes record Miss Y said she had spoken to the brokerage service and had filled in the paperwork for a top up which was £170. Miss Y said the broker had then advised there were other homes available but Mrs X was very distressed that it was not sorted sooner and wanted to view a home before Mrs Z moved in. The family then went ahead with care home A. The social worker noted they would clarify the situation regarding the top up and they arranged to visit Mrs Z at the care home to reassess her needs.
38. Mrs Z enjoyed her respite stay and requested to stay at care home A permanently. The social worker reassessed Mrs Z’s needs and recommended 24 hour care. They noted Mrs Z had settled well at care home A and it was the family’s preference that she remain there. They noted they explained there may be a top up as the Council would set the budget based on the most cost-effective placement to meet need. They stated that the assessed need was to be within a 10-mile radius of Mrs X’s home to ensure she was able to maintain a relationship with Mrs Z.
39. The social worker asked the brokerage team to look at the available care home options. The brokerage team contacted all contracted providers. It identified five potential care home options. The nearest available home was care home B which charged £603 a week. Care home A cost £1125 a week and so would need a substantial top up.
40. In early April 2024 the brokerage service says it spoke with Mrs X regarding the five options. It says Mrs X refused to discuss any alternatives to care home A. The Council says as Mrs X did not want to engage with the brokerage service further it did not have permission to share any documentation with the other care providers who had responded to the brokerage service.
41. The Council’s case notes record Miss Y called the social worker. They had visited care home B and were not willing to accept it. She felt they were being forced to accept a care home placement which was not adequate as the Care Quality Commission (the statutory regulator of care services) rated it as ‘requiring improvement’. Miss Y said they could not pay for the care at care home A and felt they were being bullied into a decision.
42. Miss Y emailed the Council. She asked whether direct payments would work out any better and whether this could be based on a care home in the area Mrs Z lived rather than Mrs X’s area. She said the other option was to take Mrs Z home with a care package. She said she was waiting for the brokerage service to call her back. Miss Y says she also spoke to care home B who were not totally sure they could meet Mrs Z’s needs and that it may take a couple of weeks to arrange District Nurses.
43. The social worker responded to Miss Y and said that as an alternative placement was offered, Mrs Z would be liable for respite costs if she stayed at care home A. They said they could request a direct payment for the respite but the Council would only contribute the price of the most cost effective placement (£603) less Mrs Z’s assessed care contribution of £103.96. They said the reasons given for staying at care Home A would not constitute an assessed need to stay there. Miss Y says there were no other placements offered. She says there was only one other care home mentioned which was further away with an even worse CQC report.
44. Mrs X spoke with the social worker the following week. She said she would be willing to enter into a contract with the care home and pay the top up to give her time to source an alternative placement. She said the family had paid £2000 for two week’s respite and could not afford another week. The social worker advised the Council would be unlikely to accept this as the care home was not affordable for the family. Mrs X also asked the Council to explore care home options near Mrs Z’s address. The social worker considered this could be seen as manipulating the personal budget.
45. Mrs X contacted the Council and asked to speak to the social worker. The notes record Mrs X stated the social worker was ‘aware of the current situation regarding her mother’s respite care ending on 11 April and the urgent need to get care or a placement for mum’. Mrs X says no other care home options were mentioned. The social worker advised they would contact the brokerage service to identify a care provider and that as an alternative Mrs X could have a budget of £603 a week to source her own care. Another home care provider, care provider C agreed to support Mrs X who returned home in mid April 2024 with a package of four care calls a day.
46. Later in April, the social worker told Miss Y that the request to consider the personal budget from Mrs Z’s address (where care home prices are higher) rather than Mrs X’s address had been refused.
47. Miss Y complained to the Council in April 2024. She did not receive a response and so Mrs X complained to us. She said she had contacted 12 local care homes but the cheapest one was £840 and they could not afford the top up.
48. Mrs Z died in August 2024.
49. The Council responded to Miss Y’s complaint in October 2024. It said care home B was the most cost effective option which could meet Mrs Z’s eligible needs and cost £603 a week. It said this and three other options were refused by the family. It said if the family chose a different care home above this budget it would be their choice but this would require a family top up and could not be funded by the Council.
50. Regarding the respite stay, the Council said the family were advised that once paperwork was completed and returned the broker would send it to the authorised officer for review. It said they were advised not to transport Mrs Z to care home A until it had reviewed and agreed funding. As care home A was not a Council contracted care home it did not agree the funding request so the family had decided to pay privately. It said it would not compensate the family for the respite stay.
51. Mrs X and Miss Y remained unhappy and complained to us.

Findings

52. The Council delayed identifying a respite placement for Mrs Z. When it did identify one, the day before respite was due to start, it failed to check whether it could support Mrs Z with her blood thinning medication. This was fault. The Council says other placements were available but given the family, reasonably, wanted to visit the care home before Mrs Z’s stay, and it was the day before the respite was due to start, they identified their own placement. The Council was not contracted with this care home and so was not willing to fund it. But it failed to properly explore the option of a direct payment which would allow the family to use the care home for the respite and pay the extra themselves. This was fault and meant Mrs X received no Council funding for the respite stay, despite the Council agreeing this was necessary to give Mrs X a break from her caring role.
53. When Mrs Z decided she would like to make her care home stay permanent, the Council acted appropriately and carried out a reassessment of her care needs. This recommended 24 hour care in a residential care home. The assessment recorded that the Council would fund the most cost effective care home to meet Mrs Z’s needs.
54. Care home A was significantly more expensive than the rate the Council was willing to pay. The Council is not required to pay the cost of a more expensive care home if there is another care home, within budget, with a place available that can meet the person’s needs. The Council was not at fault in deciding it would not pay for care home A. It also was not at fault in refusing to allow the family to pay a top up for care home A as the family had already expressed it was not affordable. However, Mrs X specifically asked if she could contract with the care home for a short period whilst she explored other options. The Council failed to properly explore whether it could support this through a direct payment to give Mrs X two weeks breathing space to make other arrangements (recognising the respite stay could not be funded for longer than four weeks using direct payments). This was fault and adds to Mrs X’s sense of frustration and uncertainty. The family managed to pay for one extra week of respite but could not afford to extend it further.
55. The Council was not at fault for setting the budget based on available care homes where Mrs X lived. The needs assessment recorded that Mrs X wanted Mrs Z to be within 10 miles of her home to enable her to visit regularly so it set the budget accordingly.
56. There is no evidence the Council properly explored whether care home B could actually meet Mrs Z’s needs. In addition, in its complaint response, the Council referred to three other options which were offered to meet Mrs Z’s needs. I have seen no evidence from the Council’s notes of the offer of any other care home but care home B. The Council’s records from the brokerage team noted the family would not accept or discuss another option than care home A. The adult social care notes make no reference to an offer of any other home but care home B and suggest the family would consider other options but did not want care home B. This leaves Mrs X with a sense of frustration and uncertainty over whether the Council may have been able to identify another suitable and affordable care home which could meet Mrs Z’s needs had it explored this further.
57. Mrs X and Miss Y raised their complaint with the Council in April 2024. It did not respond until October 2024, by which time Mrs Z had passed away. This delay was fault and added to their frustration.

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Agreed Action

58. Within one month of the final decision the Council has agreed to:
• apologise to Mrs X and pay her £500 to acknowledge the distress, frustration and uncertainty caused by the care provider and Council’s faults. 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.
• pay Mrs X £1500 which is approximately the amount the Council would have paid towards the three week respite stay had it provided direct payments.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. There was fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman