Summary: Mr X complained about a failure to respond to his concerns about a homecare provider and about a failure to carry out a proper review of Ms Y’s care and support plan or agree a direct payment. We upheld the complaint. There was a delay in changing provider, a failure to give an explanation about the response to potential safeguarding issues and a failure to communicate with Mr X about whether he could manage a direct payment for Ms Y. The fault caused avoidable confusion and distress. The Council will apologise, make a symbolic payment and take actions set out in this statement.

The complaint

1. Mr X complained the Council did not:
1. Take action in response to the concerns he raised about a home care agency, Heritage Care (the Care Provider)
2. Properly review his mother’s (Ms Y’s) care and support plan, revise it and generally didn’t act in her best interests when making decisions about her care and support
3. Put in place a direct payment (DP)
2. Mr X said this caused them avoidable distress and has limited Ms Y’s ability to attend group activities she enjoys.

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The Ombudsman’s role and powers

3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
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(i), as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I did and did not investigate

7. In complaining to the LGSCO, Mr X is acting as Ms Y’s representative. In line with the principles of the Mental Capacity Act 2005, we have assumed she has mental capacity to consent to Mr X representing her and she has signed a consent form to that effect. We normally expect a representative to complain to us within 12 months of the matter where the person affected has mental capacity.
8. The period I have investigated is January to December 2024. Complaint (b) is about care and support plan reviews from 2022. Anything before January 2024 is late with no good reason for the delay in complaining to us and so I have not investigated before January 2024. I have taken into account Mr X and Ms Y’s personal circumstances, but these did not prevent Mr X from submitting a complaint to us within 12 months of the review he was unhappy about.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

11. Our Principles of Good Administrative Practice set out our expectations of councils. We expect them to be open and accountable. This includes stating criteria for decisions and giving reasons for decisions and keeping proper and appropriate records.
12. A council must carry out an assessment for any adult ‘with an appearance of need for care and support’. (This is called a social care assessment). (Care Act 2014, section 9)
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. A council should review a care and support plan at least every year, upon request or in response to a change in circumstances (Care and Support Statutory Guidance (CSSG), paragraph 13.32)
15. If a council is satisfied circumstances have changed in a way that affects the care and support plan, it must revise the plan, taking all reasonable steps to reach agreement with the adult concerned about how to meet needs (Care Act 2014, section 27(4) and (5))
16. 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)
17. 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).
18. Where an adult has been assessed as lacking mental capacity to request a direct payment, an authorised person can request one on their behalf. (CSSG paragraph 12.16) The council must consider the person’s suitability with reference to five conditions in the Care Act and decide whether to provide a direct payment. Where refused, the person must receive written reasons for the refusal. (CSSG paragraph 12.18)
19. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
20. A council must carry out a carer’s assessment where it appears a carer may have needs for support. The assessment must include an assessment of the carer’s ability and willingness to continue in the caring role, the outcomes the carer wishes to achieve in daily life and whether support could contribute to achieving those outcomes (Care Act 2014, section 10.)
21. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34)
22. Where a person lacks capacity to make a decision, any decision made on their behalf should be taken in their best interests. There is a checklist of things to consider which includes the person’s past and present wishes and feeling and the beliefs and values which would influence them if they had capacity.

What happened

23. Ms Y has dementia and lives with Mr X who is her unpaid carer. The most recent social care assessment for Ms Y was in March 2022. It found she needed support with personal care, dressing, nutrition, toileting, maintaining the home and with maintaining relationships and making use of facilities in the community. The Council commissioned care in the home with the Care Provider.
24. In January 2024, the social worker spoke to Mr X about his concerns with the Care Provider’s staff. He wanted a change of care provider and to cancel the long once weekly call if a change of provider was not possible. He also said the evening call was useless and he could do the cleaning himself if care changed to a different agency. Mr X also said he agreed Ms Y needed more prompting in the mornings and so the duration of the call needed to increase from 30 to 45 minutes. The social worker spoke to the Care Provider which said Ms Y needed 45 minutes in the morning and asked for cleaning calls as the house needed cleaning.
25. The social worker spoke to Ms Y about her care package. Ms Y said she did not mind which care worker supported her. The social worker and Care Provider spoke. The Care Provider agreed to stop sending the member of staff Mr X was not happy with.
26. The records indicate at the end of February, the Care Provider asked if the morning call was going to be increased to 45 minutes.
27. In March 2024, there was a review of Ms Y’s care and support plan. This noted Mr Y was experiencing overwhelming mental stress due to family issues and the Care Provider not following his instructions and he wanted to change to a different care provider (to an agency that had previously supported Ms Y). The review record said:
• The social worker had spoken to Ms X and Ms X said she was happy with whichever care worker supporting her and if the relationship between Mr Y and a particular care worker had broken down, she did not mind a different worker. Mr Y was also not happy with the three-hour call (because he kept getting interrupted by the care worker asking him things) and also said the care workers didn’t do anything during the afternoon calls.
• The social worker spoke to the Care Provider and asked for a change of care worker. The social worker said if a change of care worker was not possible, the Council would consider a different agency.
• They discussed a 3rd party direct payment and the social worker agreed to send Mr X information abut this
• The afternoon 30 minutes support three times a week can be cancelled but Mr X would like to have two hours support per week with cleaning as he is struggling with his own physical and mental health.
• Mr X would like the support to change to a different agency for carer support (the three-hour weekly call) as he had their support in the past and informed that they were brilliant.
• The care package was to be changed to 30 minutes every morning, three hours support per week to give Mr X a break from his caring role and two hours cleaning support per week. Mr X can also explore a charity for help at home for the two hours cleaning support. A review needed to be completed within six weeks of carer support starting to establish if the morning call needs to be increased to 45 minutes.
28. In March, a second care provider confirmed it could start Ms Y’s care. The social worker sent direct payment paperwork to Mr X. The second care provider clarified it could only do the three-hour weekly call and this does not appear to have been pursued for reasons which are not in the records.
29. There was some email contact between the Care Quality Commission and the social worker in April 2024 after Mr X had reported concerns about the Carer Provider to the CQC.
30. In April, Mr X told the social worker he had found a new care provider. The social worker informed him it would not accept the Council’s rates.
31. Internal records indicate the Council approved funding for the morning call time increase from the end of April.
32. There appears to have been another review in June 2024, however there is no record of the review and the social worker did a note which said ‘review notes to be typed up.’ A referral to a different care provider was done in June.
33. The social worker visited Mr X and Ms Y to give them information about direct payments. By this time, relations between the Care Provider and Mr X had declined as Mr X said he could not stand its care workers. The agreed actions were for the Council to commission a different provider and for a referral to a direct payment support service to identify a PA.
34. Ms Y’s care and support plan of June 2024 set out Ms Y’s care and support needs, her desired outcomes/goals and the agreed funding which was for 45 minutes care each day in the morning and three hours a week accessing the community. The cost of this care, with a new care provider, was £167 a week.
35. A worker from a carer’s charity started providing advocacy support for Mr X. In August, social care sent the advocate a list of affordable care agencies.
36. In September, the social worker was de-allocated the case. A manager spoke to Mr X at the end of October. The manager noted Mr X’s views:
• The sitting service didn’t work and Mr X felt it should be replaced with a more flexible arrangement for Ms Y to use to attend the clubs she used to go to.
• Mr X asked for a different provider for the weekly long call and to continue with the current provider for the morning calls
• Mr X also asked about employing a PA.
37. Mr X complained to the Council in October 2024 about the matters he has raised with us and other matters. He told us he sent the Council evidence and information to back up his complaint to the Council including photographs of his mother with wet and unkempt hair and with a skin condition. He also sent us some additional documents setting out concerns with the Care Provider including with one care worker just sitting in Ms Y’s room with her for long periods and about staff not applying lotion to a skin condition.
38. A note of a supervision meeting in November says “son is still asking for a carer’s assessment and also would like a DP… he is not able to manage this and she lacks mental capacity so we would not be able to employ a PA as no one has Lasting Power of Attorney.”
39. The Council provided two complaint responses in December 2024 and January 2025. They said:
1. There were discussions between the social worker, Mr X and Ms Y which formed the basis of a review of the care and support plan. These discussions highlighted areas of disagreement which had not been resolved
2. Mr X did not agree with the level of care provided. He did not feel an increase in the morning call was necessary and he also felt the sitting service was not working. There is no evidence the longer morning care call had adversely impacted Ms Y.
3. Services had not been properly reviewed because of changes of care agency and a lack of progress in arranging new services
4. Everyone agreed Ms Y needed access to opportunities to socialise, however, there was an ongoing dispute about how to structure this
5. The Council could agree to a direct payment, but this would depend on sourcing a care agency or a PA.
6. It was hard to find PAs and unless he had one in mind, it was not likely to be a short-term option. Someone would need to administer the DP
7. He had returned the DP paperwork, but the Council had not made a decision about a DP
8. Overall the situation had become unnecessarily complicated
9. A mental capacity assessment was needed in respect of Ms Y’s capacity to make decisions about her care and support.
10. A carer’s assessment should be completed for Mr X and the Council was willing to do this.
11. The Council was also willing to do a social care reassessment for Ms Y. It will reallocate her case to a different worker.
12. The social worker spoke to the CQC in April 2024 and they closed their involvement. He needed to contact CQC if he had any further questions
13. Mr X had identified an agency, but it cost more than the Council was prepared to fund. A third agency was identified and commissioned in June 2024 while a PA was identified.

Action taken by the Council since Mr X’s complaint to the LGSCO

40. A new social worker took over Ms Y’s case in February 2025. They carried out an assessment of Ms Y’s mental capacity to make decisions about her care and support in March 2025. Mr X was present at the social worker’s visit. The outcome was Ms Y lacked capacity.

Findings

The Council failed to take action in response to the concerns Mr X raised about the Care Provider

41. Mr X reported a list of potential safeguarding concerns about the Care Provider’s staff including as failure to provide personal care, issues with the three-hour call and concerns about skincare when he complained to the Council. The Council’s complaint response referred only to its liaison with the Care Quality Commission. By the time Mr X formally complained, the Care Provider was no longer providing Ms Y’s care package and so she was not at risk of abuse. The Council should have been clearer in its complaint response that the matters Mr X raised had been dealt with by changing the provider and so it would not pursue a safeguarding investigation as Ms Y was no longer at risk. The complaint response did not give a clear enough explanation; it was not open or accountable and was fault causing avoidable confusion and distress.

The Council failed to properly review Ms Y’s care and support plan, revise it and generally didn’t act in her best interests when making decisions about her care and support

42. The Council completed a review of the care and support plan in March 2024. There were discussions with Ms Y, Mr X and with the Care Provider beforehand. It resulted in a change of provider and changes to call durations. There was a delay of three months in changing the provider and revising the care and support plan and funding and the case was allowed to drift. The Council accepted this in its complaint response, but the delay caused Mr X avoidable distress.
43. There was also a failure to write up the notes of a further review in June. This is poor record-keeping, was not open or accountable and is fault. There is no injustice as the care and support plan was revised in June to reflect the change in service provision the Council decided upon after the review.
44. The records indicate Ms Y had mental capacity to make decisions about her care and support during the care and support plan review in March 2024 and so best interests did not come into play. There has been a decline in Ms Y’s cognitive abilities and in 2025 (which is after the time I am investigating) she was assessed to lack capacity to make care and support decisions. I am satisfied the Council acted in line with the Mental Capacity Act and there is no fault.

The Council failed to put in place a direct payment

45. The Council has not been transparent with Mr X. He has expressed an interest in having a direct payment and the Council should have made a decision and told him in writing why if the answer was no. There was a failure to act in line with the Care and Support Statutory Guidance (paragraphs 12.16 and 12.18) and this was fault causing avoidable confusion.
46. Ms Y has now been assessed to lack mental capacity to make general decisions about her care and support. This would likely include a lack of capacity to manage a direct payment. So she would need a person to manage one on her behalf. An internal note suggests there is a view by council officers that Mr X could not cope with the responsibilities of managing a DP, however, I can find no record of him being informed of this. In fact, the Council has sent him DP paperwork which indicates it may have agreed a DP in principle – although it has not yet set one up. The Council’s communication has been confusing, contradictory and not transparent. This is not in line with our expectations and is fault causing avoidable distress and confusion.

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Agreed Action

47. Within two months of my final decision, the Council will complete the following actions. It will:
1. Issue a written apology to Mr X for his avoidable distress and confusion as I have described in the last section. 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.
2. Make Mr X a payment of £250 to recognize his distress.
3. Complete the outstanding actions from its complaint response, namely: a re-assessment of Ms Y’s care and support needs and where necessary a revised care and support plan. Decisions about care and support now need to be taken in Ms Y’s best interests as she has recently been assessed as lacking mental capacity.
4. Issue a written decision about whether Mr X can manage a direct payment for Ms Y (with support from a direct payment support service or via a managed account).
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman