Summary: Ms X complained the Council delayed reviewing her care and support plan, took too long to put in place a direct payment and delayed responding to her complaint. We upheld the complaint. The review of Ms X’s care and support plan was already overdue when she requested it and the Council did not act promptly to complete the review or put in place the direct payment. The Council also took too long to respond to the complaint and failed to recognise it was at fault. The Council will apologise and make a symbolic payment and take action to minimise the chance of recurrence.

The complaint

1. Ms X complained the Council:
• Delayed reviewing her care and support plan and took too long to put in place a direct payment.
• Delayed responding to her complaint.
2. Ms X also complained Ability to Achieve (the Care Provider) which the Council commissioned, failed to provide her with safe and appropriate care.
3. Ms X said this caused avoidable distress and exacerbated her mental health condition and caused a financial loss because a third party paid for her care between May and September 2024.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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).
7. The Care Provider was commissioned to provide services under the Council’s duties in the Care Act 2014. We can investigate it.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

10. I investigated the complaints in paragraph one. I did not investigate the complaint in paragraph two because it concerns problems Ms X was having with the Care Provider’s staff between 2021 and 2023, before her regular support worker starting working with her. Those events are late with no reason for the delay complaining to us.

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

13. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
14. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
15. The Care Act explains the different ways a council can meet eligible needs by giving examples of services that may be provided:
• Accommodation in a care home or other premises
• Care and support at home
• Counselling and social work
• Information advice and advocacy

(Care Act 2014, section 8)

16. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
17. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
18. There are three ways in which a personal budget can be used:
• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party with support provided in line with the person’s wishes;
• As a direct payment (a direct payment is money a person gives to a council to meet agreed needs).
19. Care and Support Statutory Guidance says:
1. There is no defined timescale for completion of the care and support planning process. The plan should be completed in a timely fashion and it should not unduly delay needs being met. (Paragraph 10.84)
2. A council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Paragraphs 13.19-21 and 13.32)
3. Where needs are being met by a direct payment, the care and support plan should set out the needs to be met via the payment and the amount and frequency of the payments’ (Paragraph 10.36).
4. In practice it may be convenient to consider the request (for a direct payment) at the same time as a review of the care plan. In those cases, the review should be brought forward so as not to delay the consideration of the direct payment request’. (Paragraph 12.10)

What happened

20. Ms X has a mental health condition and has been receiving care and support from the Council for several years. She emailed the Council in April 2024 with a detailed list of concerns about the Care Provider. Ms X said she had not had a care and support review since March 2022 and her regular and trusted support worker had recently stopped working for the Care Provider. Ms X’s therapist also emailed the Council at the same time saying Ms X was having problems with the way the Care Provider was introducing new support workers and its communication was poor. The therapist went on to say unfamiliar support workers were showing up at unscheduled times and this seemed to be more about the provider’s needs than Ms X’s.
21. The Council’s duty social worker liaised with a manager from the Care Provider who said they were trying to introduce new staff to Ms X as her regular support worker was a bank worker and could not be guaranteed.
22. A social worker was allocated to Ms X’s case at the start of May and visited her. Ms X said she did not want to receive care from the Care Provider anymore and wanted to have a direct payment. Ms X said after the meeting she was worried the direct payment process would take months to sort out.
23. The social worker began a social care assessment in the middle of May. The records indicate Ms X was declining support from the Care Provider.
24. Ms X complained to the Council in May. Her main points were:
• Her regular support worker was removed just after she had complained.
• The Care Provider not delivering all the care in her care plan.
• The Council hadn’t responded to her request for the Care Provider to stop providing her care.
25. Hearing nothing from the Council, Ms X chased the complaints team in June.
26. There was little action to progress the direct payment request in June and July. The social worker and Ms X spoke about the Direct Payment (DP) support service in July. The social worker didn’t make a referral to the DP support service until the middle of August.
27. The Council completed the social care assessment for Ms X in July 2024. She remained eligible for care and support.
28. The Council’s care and support plan for Ms X of 15 August 2024 sets out her eligible needs, outcomes and the agreed support. The Council put in place a direct payment for 12 hours a week of care and support. It made the first payment in September 2024. The plan noted Ms X had identified a personal assistant.
29. Ms X complained to us in October. We asked the Council if it had replied to her complaint (in June, see paragraph 25). The Council sent us a response it sent the previous week, apologising for the delay. It said:
• The Care Provider had been delivering mental health outreach support for many years successfully against a clear specification.
• Its staff needed to be adequately trained and not overstep boundaries.
• It was disappointing the Care Provider had not responded to her complaint.
• Her request to Adult Social Care was dealt with as a request for a routine review. A social worker had already been allocated to conduct a review and had been in contact with her directly and indirectly 13 times before going on leave for a week. It did not uphold her complaint about a failure to respond in a timely manner to her request for a review.
• The DP request was actioned and put in place on 18 August.

Was there fault and if so did this cause injustice?

30. The Council should review a care and support plan every year and in response to a request. It appears Ms X’s care and support plan was already overdue a yearly review when she first requested one in April. The failure to complete a yearly review was not in line with the Care and Support Statutory Guidance and was fault. The failure to act promptly to review the plan in April was fault because it was not in line with the guidance I have set out in paragraph 19(b).
31. Ms X asked for a direct payment in May. She was entitled to make that request and was eligible to receive one. The Council should have acted promptly on receiving the request and the failure to do so was not in line with guidance as I have set out in paragraph 19 (c) and (d) which expects councils to consider a request for a DP at the same time as conducting a prompt care and support plan review.
32. Complaint handling was poor in Ms X’s case which was fault. There was undue delay and a failure by the Care Provider to respond. And the response by the Council failed to identify the key faults I have set out above which caused Ms X avoidable frustration.
33. Ms X suffered avoidable distress, frustration and a loss of opportunity to have the freedom and flexibility of arranging her own care as a result of the fault I have identified. There was however available commissioned care and support through the Care Provider which was available as an option, although not Ms X’s preference.

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Agreed Action

34. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the Care Provider and make the following recommendations to the Council.
35. The aim of our remedies is to try and put the person affected back into the position they would have been in but for the fault. If the Council had completed the care and support plan review promptly, there would still have been a transition period to set up the direct payment. I consider two months a reasonable timeframe for making the DP arrangements. So the delay is a period of two months where Ms X lost out on the opportunity of arranging her own care.
36. The Council will, within one month of my final decision:
• Apologise to Ms X for the distress, frustration and loss of opportunity caused by the 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 I have recommended in my findings.
• Make Ms X a payment of £500 to reflect her injustice.
• Remind the Care Provider it needs to respond to complaints in a timely manner.
37. The Council should provide us with evidence it has complied with the above actions.
38. Ms X asked us to recommend a refund of fees a third party paid on her behalf for care and support. I considered this, but paying for this care was not a result of the Council’s fault. Ms X had commissioned care available through the Care Provider. And as I have set out above, there would have been a two-month transition period even if the Council had acted without fault. Taking all this into account, there are no grounds to recommend the third party is refunded.

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Final Decision

39. I find fault causing injustice. I have recommended actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman