Summary: There was fault in the way Mr C’s care plan was set up as it did not specify the time when the carers were meant to attend. As a result, the carers attended at different times and sometimes Mr C was out when the carers attended. The Council still charged Mr C for those visits which was also fault. The Council has agreed to apologise in writing and to repay Mr C for visits that did not take place for which he was charged.

The complaint

1. Mr B complains on behalf of his father in law, Mr C. Mr C received care at home from Direct Health care agency in West Bromwich. He says the agency charged Mr C for visits when he was out. He says the agency’s carers attended at erratic times which was why Mr C was often not in when the carer attended.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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, section 25(7), as amended)
4. If we are satisfied with a council’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 have discussed the complaint with Mr C and the Council. I have considered the documents that Mr C and the Council have sent and both sides’ comments on the draft decision.

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What I found

Law and guidance

Care Act 2014

6. The Care Act 2014 and the Statutory Guidance 2014 (updated 2017) set out the Council’s duties towards adults who require care and support.
7. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services.
8. The guidance stresses the importance of transparency in the communication between the Council and service users.

CQC regulations

9. The Care Quality Commission (Registration) Regulations 2009 - regulation 19 says care providers must give timely and accurate information about the cost of their care and treatment to people who use services.

What happened

10. Mr C is an elderly man who lives at home. He suffers from dementia and is alcohol dependent, but he has no mobility problems. He is a self-funder as he has assets over the threshold to be eligible for council funding. It is my understanding that the Council became involved while Mr C was in hospital. The Council assessed Mr C’s needs, set up the care plan and commissioned the care.
11. The social worker said Mr C needed carers to attend his home twice a day for fifteen minutes. Mr C needed assistance and prompting in taking medication, personal care and nutrition.
12. The care plan did not set a time for when the visits should be carried out except to say that one visit should be in the morning and one at teatime. Mr B says when the agency set up its care plan, it did not offer set times for the visits.
13. The agency started to provide care in 2016, but the complaint relates to the time between the end of February 2017 and November 2018.
14. The agency has an electronic recording system where the carer records the time when the visit started and when it finished. The carer also fills in a written record at the home.
15. Mr B contacted the Council on 4 September 2018. He said he had the electronic care record for the past month which showed that Mr C had received visits by carers twice a day. He said the electronic record did not match the written record. The electronic record included visits where Mr C was not at home when the carer attended. Mr B wanted to know whether the agency could charge for a visit when the carer attended, but Mr C was not at home.
16. The Council responded on 12 September 2018 and said the agency could still charge for such a visit as this would be classed as a short-notice cancellation. The only time when the agency would not charge was when the person cancelled the care for a short period, for example when they went into hospital or short-term care.
17. Mr B responded and said the problem was that the carers did not have set hours and the Council could not expect Mr C to be at home all day waiting for the carer to arrive. It was unfair to charge Mr C for missed visits when the carers came in late. The Council responded and said Mr C should raise this with the social worker and see if there was an alternative way of organising the care with the agency.
18. Mr B made a formal complaint on 27 September 2018. He identified 10 visits in July and August 2018 where Mr C had been charged for calls when he was out.
19. The Council reviewed Mr C’s care plan on 30 October 2018. Mr C’s family wanted a different care agency because of the difficulties they had encountered with the current agency. The Council considered direct payments, but then realised that Mr C was a self-funder and did not need direct payments. He was free to choose the agency he wanted and pay for it himself.
20. The family was informed of this and in November 2018, the Council ended the contract with the agency and the family started paying a different agency directly. Mr B says that the new agency attends Mr C’s home at set times every day and the number of missed calls has been greatly reduced.
21. The Council provided its response to Mr B’s complaint on 28 November 2018 and said:
• It admitted there were thirteen visits in the three months between July and September 2018 where the paper record showed no visit but the electronic record showed a visit and therefore a charge.
• It could not confirm that care was delivered on 12 of those visits.
• ‘There has been some variation in call times for both the morning and the tea time visit. Furthermore it is not clear that the agency had any specific discussions with [Mr C] or family members regarding when calls would be made, how they might be varied etc and he does not appear to have been provided with weekly rotas or other indication of call times for the week. I can see that this would make it more difficult for [Mr C] to plan his day and activities around these calls.’
• The agency had sometimes tried several times a day to see Mr C if he was not at home and there was still a cost to the agency if a carer went out but Mr C was not home.
• It offered a goodwill gesture of repayment of the 12 visits where care was not delivered.
22. Mr B was not satisfied with this response and he wanted the Council to compare the written records and the electronic records from February 2017 until November 2018 and reimburse Mr C for all the missed calls which he had been charged for.
23. The Council sent a further response on 25 April 2019 and said:
• ‘… visits made by care workers are logged via an electronic call monitoring system at the point of delivery from inside of the property. Where this is not possible, for example where a carer has called but your father was not at home, this is reconciled manually by the provider as there is still a cost to these visits’.
• ‘This information is then used to generate and adjust charges made, as well as payments to providers. From the information available, I am satisfied that any unlogged/missed visits have been accounted for and no further adjustments are needed.’
24. Mr B continued to question the Council. I have summarised his arguments and the Council’s responses. Mr B said:
• The Council had acknowledged that there were discrepancies between the written records and the electronic records. Therefore, the Council could not rely on the electronic records to find out whether the visit was missed or not.
• He referred to the Council’s own guidance which said it sent invoices every four weeks for the support costs. It then compared the invoices against the actual support provided every three months and would send a credit note against the personal budget if a person had been overcharged.
• Mr C should not be charged for missed visits when the underlying cause of this was the variance in attendance times by the carers.
25. The Council said:
• It acknowledged that call times were erratic but said there was still a cost if the carer attended, even if Mr C was not at home. Therefore, this would still show up as a charge on the electronic record.
• It referred to its previous response about the way the electronic records worked. It said that, if no care call was made and no data was submitted, then no payment was due and a credit note was provided.
26. I asked the Council some further questions as part of my investigation. I asked the Council to confirm whether it had checked the electronic record against the written record for the months between February 2017 until November 2018 and to provide evidence.
27. The Council said it had checked and cross referenced the written record and the electronic record for that period. It said that a total of 8.75 care hours (35 missed visits) had been identified as a result at a cost of £122. It said Mr C’s account had already been credited for this amount in the past.
28. I spoke to the manager at the Council. She said that Mr C had still been charged for short notice cancellations during that time, ie visits where the carer attended but Mr C was out. The 8.75 care hours were visits were the carer did not go out at all.
29. The Council could not provide me with the cross-referenced records as they had been returned to the agency. The manager could not say how many short notice cancellations had been included in the invoice.
30. The electronic record shows there were around 35 visits when the carer did not go out to visit Mr C. This corresponds to the 8.75 hours the Council has identified.

Analysis

31. Mr B says it is not fair that Mr C should pay for calls which did not happen. He also says the electronic records are wrong.
32. The Council acknowledges that the electronic record contains both visits where the carer went to the house and provided support and visits where the carer went to the house but did not provide support because Mr C was out. The Council’s position is that, if a visit did not happen because Mr C was not in, then the agency could still charge him as, in essence, it was Mr C’s fault for not being in the house. These are treated as short notice cancellations.
33. However, the Council says that, if a carer did not go out at all, then the agency could not charge for that. It checked the records for those instances and was satisfied that Mr C had received the relevant credits.
34. I have looked at the care records and the carers’ attendance times in the morning visits vary from 08.30 until 12 noon and the evening visits from 4.30 pm until 8.30 pm. That is a very wide time range.
35. The underlying problem, of course is the way Mr C’s original care plan with the agency was set up. As there were no set times for the carers to attend, Mr C was effectively asked to be around all day to wait for the carers. And, if he was not in, he was still charged for the visit. I am of the view therefore, that there was fault in the way the care plan was set up. There should have been a set time for the carers to attend.
36. The Council agrees with this and upheld the complaint to a certain extent in its letter as it said it was ‘not clear that the agency had any specific discussions with [Mr C] or family members regarding when calls would be made, how they might be varied etc and he does not appear to have been provided with weekly rotas or other indication of call times for the week. I can see that this would make it more difficult for [Mr C] to plan his day and activities around these calls.’
37. The Council’s view was that this failure to set a specific time was the agency’s fault, not the Council’s. For the purpose of this complaint it does not matter greatly whether the agency or the Council is at fault as the Council remains responsible for the agency’s actions as it commissioned the care.
38. My view is that both the agency and the social worker should have asked Mr C and his family what time the calls should take place and should have included set times in the care plan. The failure to do this was the underlying fault and contributed to the problems of the failed calls. If there had been set times, then I agree the agency could have charged for short notice cancellations. But I do not agree that the agency could charge for short notice cancellations if there were no set times. Mr C could not be expected to wait in all day in case the carer arrived.
39. There was also some fault in the record keeping and the communication about the invoices. Even if it was correct that a person could be charged for a visit where no care took place, the record should show the difference between a visit where the carer provided support and a visit where they did not enter the door. The communication from the Council was also not clear in how it was calculating the invoices.
40. Mr C has suffered an injustice because of the fault. The erratic times meant he did not know when the carers would attend and this contributed to the number of missed calls. In addition, he was then charged for the calls.
41. I have considered what the remedy should be. I recommend that the Council should repay Mr C for any short notice cancellations for which he was charged. I do not know how many short notice cancellations there were. If the Council can provide the amount (from its comparison with the written record) then it should refund this amount. If the Council is unable to provide the amount, then it should repay Mr C 7% of the fees as 7% was roughly the amount of short notice cancellations in the month of July, August and September.

Agreed action

42. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the agency, I have made recommendations to the Council.
43. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Mr B and Mr C in writing for the fault.
• Repay Mr C the cost of the short notice cancellations for which he has been invoiced or 7% of the fees between February 2017 and November 2018 (minus the amount it has already repaid for July, August and September 2018)

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Final decision

44. There has been fault in the Council’s actions and the Council has agreed to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman