Cornwall Council (20 001 282)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 15 Feb 2021

The Ombudsman's final decision:

Summary: Mr X complains about the way the Council dealt with the arrangements for his sister’s care, and its payment for the care he and his mother provided, during the period between the care packages it commissioned for her. The Ombudsman has found fault by the Council causing injustice. It has agreed to remedy this by making an apology and financial payments.

The complaint

  1. The complainant, who I am calling Mr X, complains on his and his mother, Mrs Y’s behalf. He is unhappy about the way the Council dealt with the arrangements for his sister, Miss Z’s care, and that it will not settle in full the invoice he submitted on his and Mrs Y’s behalf, for the care they provided, during the period between the care packages it commissioned for her.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have spoken to Mr X, made enquiries of the Council and read the information he and the Council have provided about the complaint.
  2. I invited Mr X, Mrs Y and the Council to comment on this draft decision. I considered their responses before making this final decision.

What I found

What should have happened

  1. Under the Care Act 2014, councils have a duty to assess adults who have a need for care and support. They must then provide a care and support plan setting out the services required to meet any eligible needs identified by the assessment. And if asked to do so, councils must arrange a care meet these needs.

What happened

  1. Miss Z has autism and learning disabilities. The Council arranged her care and its review of her care and support plan in January 2019 confirms Miss Z:
  • is at the severe end of the autistic spectrum, does not speak and communicates mainly by pointing, body language and facial expressions.
  • has epilepsy and chronic back pain which affects her mobility.
  • was living in supported accommodation with support from carers that know her very well.
  • always needs help with managing nutrition, maintaining personal hygiene, dressing and undressing.
  • needs someone to maintain a habitable home environment for her, and two people to help her get out and about.
  • support provision was assessed as 131 hours a week 1:1, and 19 hours 2:1 with an enhanced rate for sleeping due to broken nights.
  • has rituals which are important to her.
  • struggles to communicate pain and those supporting her need to be aware and vigilant about this.
  • has a good relationship with her family and support workers and this needs to be maintained.
  1. As at September 2019 Miss Z’s care package was provided by A. Mr X and Mrs Y asked for the care package to be transferred to B, another provider they had chosen. The Council agreed to the change. Mrs Y says they were told in September 2019 A had agreed to continue to provide Miss Z’s care package until 6 January 2020, when B would be ready to take this over.
  2. But on 19 November 2019 A gave notice to the Council ending their care contract on 8 December 2019.
  3. The Council’s adult social care team contacted Mr X and Mrs Y on 20 November 2019. They said B was not ready to provide the full care package for Miss Z until 6 January 2020 so there would be a period, from 9 December until 5 January, without a care package in place. The Council suggested a residential placement for Miss Z for this period, or limited support from A and B, agency staff with the family providing the further care needed.
  4. Mr X and Mrs Y were unhappy about the residential placement option because Miss Z had experienced abuse when living in a care home some years ago. Mrs Y complained to the Council on 6 December about the way the transfer of the care package was being managed and that arrangements for Miss Z’s care from 9 December had still not been completed.
  5. On 9 December the Council circulated a rota for Miss Z’s care until 5 January to A and B asking them to confirm the shifts they could do. It said it would use agency staff for some shifts and Mr X and Mrs Y had been copied in so they knew the remaining provision they would have to cover. The Council also referred to new care workers shadowing before working alone with Miss Z.
  6. B’s manager had a meeting with Mr X and Mrs Y on 9 December. He suggested Miss Z stay at a respite care placement during the week, with support from a trusted support worker. Mr X and Mrs Y decided not to take up this option.
  7. On 12 December Mrs Y told the Council she did not want agency staff involved with Miss Z’s care. She had been with Miss Z while agency staff were there and saw how distressed she was at having people she did not know caring for her. Mrs Y said she and Mr X would provide the care when familiar carers were not available.
  8. Mrs Y confirmed the position to the Council on 16 December. She said they had taken the decision not to use agency staff after seeing Miss Z’s distress. She and Mr X would look after her in place of agency staff as an emergency measure, but had been forced to do so by A and the Council who had known a safe transfer of care to B, with sufficient time for shadowing, could not be completed until January 2020. She told the Council they would put in a bill for their time.
  9. On 20 December B circulated the final care rota for the period until 5 January. B took on the full care package from 6 January 2020.
  10. On 14 February 2020, Mr X sent the Council details of the shifts he and Mrs Y had covered and an invoice of £4,725 for a total of 315 hours of care provided at £15 an hour. This included some periods when both Mr X and Mrs Y were caring for Miss Z together.
  11. The Council responded on 8 June 2020. It said Mr X and Mrs Y had been offered alternatives to providing Miss Z’s care themselves which they had declined. And her care plan did not require the level of 2:1 care they had provided.
  12. The Council offered to pay them £3,336,75 for 150 hours of day time support and 81 hours of sleep-ins, a total of 231 hours, including some periods of 2:1 support when Mr X or Mrs Y had provided care continuously for a whole day. This was based on agency staff hourly rates of £15.90 for day time care and £11.75 for sleep-in hours. The Council excluded 84 hours for other times when Mr X and Mrs Y were caring for Miss Z together.
  13. Mr X disputes the Council’s reasons for reducing the amount claimed. He says:
  • care by a stranger, with almost no experience of working with her, was very distressing for Miss Z and put her at risk.
  • B did not have enough staff of their own to provide the care package and agency staff would have been used if the family had not stepped in. The provider charges £15.90 p/hr so his rate of £15 is reasonable.
  • The Council did not give the family any support over the period they were caring for Miss Z. Mrs Y is in her seventies and has health issues. There were times when he needed to be with Mrs Y to provide her with support in caring for Miss Z. And there should also be provision for waking nights for Mrs Y’s sleep-in shifts.
  1. The Council has paid £3,336.75 to Mr X and Mrs Y, although Mr X told then he did not accept its offer. He says it should pay the balance of his invoice - £1,388.25.

Analysis - was there fault by the Council causing injustice?

  1. A gave the Council three weeks’ notice it would stop providing care for Miss Z on 8 December. It was the Council’s responsibility to ensure appropriate arrangements were in place to ensure Miss Z’s care needs would be met until B was able to take over the care package on 6 January 2020.
  2. Mr X and Mrs Y had told the Council why they felt a residential placement was not a suitable option. The evidence they provided suggests this would have been disruptive and distressing for Miss Z. The Council knew B did not have enough carers ready to take over the full care package until 6 January, and A would only provide limited support from 9 December, which left it with its only other suggestion of care by staff from an agency used by B for the shifts A and B were unable to cover.
  3. I have not seen any evidence of further consideration by the Council about Miss Z’s care arrangements after its initial contact with Mr X and Mrs Y on 20 November 2019.
  4. The Council knew about Miss Z’s particular needs from the care and support plan and the January 2019 review. I have not seen any evidence the Council considered the impact on Miss Z of suddenly having a number of new people caring for her, and also the risk to her of being cared for by carers who had not been given time to get to know her and understand her routines and non-verbal communication.
  5. I consider this was fault by the Council. It missed the opportunity from 19 November to 8 December to plan for agency staff to be introduced to Miss Z, shadow the current carers and develop a relationship and an understanding of her complex needs. Because of this, when Mrs Y expressed her concern on 12 December about the distress and confusion being cared for by new agency staff was causing Miss Z, there was no alternative to care being provided by Mr X and Mrs Y in place of unfamiliar agency staff.
  6. The Council’s failure to properly plan for Miss Z’s care during the transition period had a significant impact on Mr X and Mrs Y, causing them injustice.
  7. The Council has paid Mr X and Mrs Y £3,336.75 for 231 hours of care they provided for Miss Z, which would otherwise have been undertaken by agency staff.
  8. It is positive that the Council has taken steps to remedy the hours Mr X and Mrs Y spent caring. However, I do not consider the remedy provided by the Council, based on the hours and rates which would have been paid to agency staff, adequately reflects the additional time and trouble, inconvenience and distress it faults have caused Mr X and Mrs Y.
  9. My view is the Council should make further financial payments, in addition to that already made, to remedy the injustice. In assessing an appropriate amount, I have taken into account the following:
  • Mr X and Mrs Y had to make arrangements, at short notice, to spend significant amounts of time caring for Miss Z over a four week period. They provided a total of 315 hours of care – over 78 hours a week.
  • Mr X and Mrs Y are not professional carers, and were placed under avoidable stress by having to provide a relatively specialist level of care
  • Mrs Y is in her seventies and has health issues
  • They do not live with Miss Z and had to travel from their own homes to provide care, including nine sleep-ins.
  • In view of the extent of Miss Z’s needs and physical care required and Mrs Y’s health, at times Mr X and Mrs Y supported each other with Miss Z’s care.
  • The care plan provides for an enhanced sleeping rate due to broken nights. Mr X has told us Mrs Y did not take painkillers for her medical conditions on sleep-ins to be alert in case Miss Z had a fit or woke during the night.
  • Mr X and Mrs Y spent significant amounts of time discussing Miss Z’s care with the Council, A and B from 20 November to 20 December.
  • Mrs Y in particular was caused considerable distress and worry about the uncertainty and Council’s lack of planning for Miss Z’s care.

Agreed action

  1. To remedy the injustice caused by the above fault the Council has agreed it will, within four weeks from the date of our final decision:
  • Apologise to Mr X and Mrs Y for the upset its fault caused.
  • Pay Mr X a further amount £500 to reflect his time and trouble and inconvenience.
  • Pay Mrs Y £650 to reflect her time and trouble, inconvenience and distress.
  1. These figures are a symbolic amount, based on the Ombudsman’s published Guidance on Remedies.

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Final decision

  1. I have found fault by the Council causing Mr X and Mrs Y injustice. I have completed my investigation on the basis with Council will take the above action as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman

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