Summary: We have completed our investigation. The Council was at fault. It has agreed to apologise to Mrs X and recalculate the care fees owed. It will make a symbolic payment to Mrs X to recognise time, trouble and risk of harm. The Council will ensure its staff are aware of the relevant guidance that informs service users about the financial implications of care.

The complaint

1. Mrs X complained about how the Council handled the Care Act 2014 needs assessment process for her deceased husband.
2. Mrs X complained about the care received by the Council commissioned care provider and the provider’s conduct. She said the financial implications of the care were not explained to her properly by the Council and this led to financial hardship.
3. Mrs X also complained about complaint handling and poor communication by the Council. She said fault by the Council impacted both her and her husband negatively.

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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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
6. On the broader point, we cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
7. 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)

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What I have and have not investigated

8. I exercised my discretion to consider matters that took place from late November 2022 (when the care act needs assessment took place) to January 2023, and the related complaint handling. I have not considered matters before this date in November 2022. These matters are late.
9. I have investigated how the Council conducted the care act assessment for Mr X in November 2022 and how care was delivered thereafter. I have investigated how the Council communicated with Mrs X about the financial cost of care, and how it handled her complaint.

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How I considered this complaint

10. I considered the complaint and information provided by Mrs X.
11. I made written inquiries of the Council and considered its response along with relevant law and guidance.
12. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
13. Mrs X and the Council had the opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

14. Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 set out arrangements for the discharge of hospital patients with care and support needs.
15. In the Council area, the local offer for patients being discharged from hospital is called Home First. Delivered by a variety of NHS clinicians, Home First is designed to enable people to receive short term support in their home, reducing time spent in hospital. Should people require longer term support they are referred for an adult social care assessment, alongside a financial eligibility assessment.
16. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
17. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
18. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
19. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
20. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
21. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
22. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.
  (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

23. This is not a record of everything that happened. The following facts are key to the investigation of Mrs X’s complaint.
24. Mr X had dementia, a cardiac condition and other health issues. Mrs X, his wife, looked after him.
25. In May 2022 Mr X was discharged from hospital. Short term domiciliary care was organised by the Home First team and delivered at home by care provider B.
26. At the end of November 2022, the NHS told Mrs X the care provider had to change as the short-term support for Mr X was about to end.
27. Mrs X was unhappy about this however agreed to an adult social care assessment for Mr X.
28. An NHS social care assessor conducted an adult social care assessment on behalf of the Council.
29. The social care assessor briefly met Mr X because at the time Mr X was being attended to by carers. Mrs X said the assessor said they would return to spend more time with Mr X, but that this did not happen.
30. Mrs X, due to Mr X’s capacity, informed most of the assessment. Mrs X and the assessor talked about the financial cost of care, but no written information was given to Mrs X. The care required by Mr X was agreed with Mrs X.
31. The social care assessor produced a care act needs assessment and a care act support plan for Mr X. They also referred Mrs X for a financial assessment with the Councils brokerage team.
32. The Council booked the care for Mr X. A few days later the care provider changed to care provider C.
33. A meeting took place at Mrs X’s home the day after the care started.
34. Mrs X reported several issues to the social care assessor and care provider C about the care. She said care provider C did not have a copy of Mr X’s care plan. The standard of care and the capacity of the carers to meet Mr X’s needs concerned her.
35. Mrs X was told social care would contact her in December. This did not happen.
36. Care continued during December.
37. At the start of January 2023 Mrs X contacted the Council as she was concerned about the cost of care and had not yet received a financial assessment form.
38. The day after she called the NHS team who carried out the social care assessment. She reported several issues with care provider C had not been resolved. Mrs X wanted to change the care provider. The Council were informed about this, by the NHS team.
39. The Council sent Mrs X a financial assessment form to complete. It asked Mrs X to return it within two weeks. It invited Mrs X to contact it should she have any questions.
40. About one-week later Mrs X cancelled Mr X’s care. She wrote to the Council at the same time to tell it she did not consent to a financial assessment. She signed a form to this effect.
41. In February the Council sent Mrs X an invoice for care delivered to Mr X from December 2022 – January 2023.
42. The Council said it sent Mrs X a copy of the care act needs assessment and care and support plan, at this time. Mrs X did not receive this.
43. In March 2023 Mrs X complained to the Council. She disputed the money she owed for Mr X’s care. She continued to complain about the standard and quality of care Mr X received.
44. In August 2023 Mrs X wrote again to the Council. She had not received a complaint response.
45. In January 2023, Mrs X wrote a third time to the Council, asking for a complaint response. The Council made its stage one complaint response to Mrs X at the end of January 2024.
46. The response was detailed and covered many points raised by Mrs X. In summary, the Council:
• Apologised for copies of the assessment not being shared with Mrs X until several months after it happened,
• Acknowledged it should have shared information about the costs of care with Mrs X, in writing, on the day of the assessment in November 2022,
• Apologised for a lack of follow up contact in December 2022,
• Assured Mrs X of the standards of care expected, and
• Explained the financial assessment procedure, its usual practice and some parts of the fees owed.
47. Some of the complaint points were upheld, others were not. No remedy was offered.
48. Mrs X was unhappy with the Council’s response.
49. The Council made a second and final response to Mrs X in April 2023. It offered to waive some of the care fees owed. It said this reflected time spent delivering care to Mr X. Some of the calls to Mr X did not take as long as planned.
50. Mrs X complained to the Ombudsman.

My findings

51. The Council accepted fault in how it handled the initial communication with Mrs X about the financial implications of care. The Council should have left written information with Mrs X on the day of Mr X’s assessment. It did not. This was fault by the Council.
52. Had the Council left written information with Mrs X on the day of the assessment details about set up fees for example would not have come as a surprise to Mrs X.
53. However, I cannot find fault that would cause significant injustice to Mrs X. While she would have benefited from understanding costs properly, sooner, the cost of care was non-negotiable.
54. Mrs X had the option to complete a financial assessment. When she received the paperwork, she declined to do so. Mrs X had the option to contact the Council to ask for longer to complete the forms, if she needed or wanted to. In fact, we would have criticised the Council for not suggesting a deadline for returning information, as the financial assessment should be completed and considered without delay.
55. Finer details of the care costs may be in dispute, for example, a setup fee. When someone declines a financial assessment and says they will pay for care themselves, the Council has the right to charge a set-up fee.
56. The Council offered to waiver part of the fees owed by Mrs X, to reflect the time spent by care provider C delivering care to Mr X, and not the proposed time frames. The Council said analysis of time spent with Mr X, showed an under delivery by care provider C.
57. The evidence I reviewed was confusing. Records of care delivery, by care provider C, were unclear. I could not find evidence of four calls per day being delivered to Mr X throughout the entire period.
58. Mrs X confirms four calls a day took place on most days. However, she complained care staff did not always sign in and out accurately, sometimes, not at all.
59. The Council, when questioned about this, said it had not provided complete records in its response to my enquiries. It said four calls a day were delivered.
60. Incomplete data hindered my investigation. In reviewing the evidence provided to me by the Council, I could not understand the amount it proposed to waiver. However, I found a discrepancy within the records that suggested the calculation of under delivery was wrong.
61. The Council, when questioned about this, confirmed this to be true. The under delivery of care was incorrectly calculated.
62. I cannot find fault with the social care assessor not spending longer with Mr X when it carried out the assessment at the end of November. Not only were carers present at the time, but Mrs X had explained Mr X’s needs, and the Council did not dispute her account. It was noted that Mr X was not communicative at times. It was clear that Mrs X was acting as his representative when organising care.
63. It is not clear why Mrs X did not receive a copy of Mr X’s support plan and assessment sooner. The Council records are confusing. In February it noted paperwork had been sent to Mrs X. This did not happen. In June it noted again paperwork had been shared. This was, it seems, only due to Mrs X contacting the Council again. The Council should have acted sooner and shared a copy of the documents promptly. This was fault by the Council.
64. We would expect the Council to provide care provider C with a copy of the care act needs assessment and support plan, before care started. This is usual practice. There was no evidence on file to suggest this happened. This was fault by the Council.
65. The Council were obliged to carry out a review of the needs assessment and support plan, annually, if things had not changed, or, when health and support needs changed.
66. The day after the care started the Council visited Mrs X at home with care provider C. It tried to resolve Mrs X’s concerns. The lack of follow up contact from the Council was poor. It assured Mrs X it would contact her. It did not. Mrs X tried to contact care provider C and found it difficult to do so.
67. The period of care provided to Mr X by care provider C was short, in total approximately 6 weeks. Therefore, I cannot criticise the Council for not carrying out a formal review during this time. However, it has already been noted that the Council should have contacted Mrs X during December, as promised, and did not.
68. Mrs X raised concerns about the quality of care being delivered to Mr X. There is currently no evidence to suggest concerns were raised by other professionals involved in Mr X’s care, about this. I cannot find fault in the evidence I have reviewed.
69. The Council did not carry out a carers assessment for Mrs X. Instead, it said it considered Mrs X’s needs as part of Mr X’s care and support needs assessment. While this has not been raised as a complaint point, by Mrs X, I have identified this as fault as part of this investigation.
70. I found little evidence of Mrs X’s needs being properly considered. Mr X had complex care needs that had an impact on Mrs X both physically and mentally. One of Mr X’s care calls was scheduled to allow Mrs X to rest. From this information alone, it would suggest the physical toll caring for Mr X, was having on her.
71. The Council should have considered Mrs X’s needs as a carer. Failure to properly consider Mrs X’s needs was fault by the Council.
72. The complaint response from the Council was thorough. It was detailed and addressed most of Mrs X’s points. The delay, however, in responding at stage one was significant. The Council said it took a long time to collate evidence because it had to consult partner agencies. Despite this, the Council should not have taken 10 months to make a response at stage one. Mrs X should have been regularly updated. She was not. Delay in making a complaint response was fault by the Council. Mrs X went to unnecessary time and trouble to get a response from the Council. She should not have had to do this.

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Action

73. Within four weeks of receiving a final decision, the Council will take the following action:
• Apologise to Mrs X in line with our guidance on Making an Effective Apology. 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.
• Recalculate and prepare a replacement invoice for Mrs X that considers the under delivery of care properly,
• With Mrs X’s consent, work collaboratively with her to agree a manageable payment plan,
• Make a symbolic payment of £250 to Mrs X to recognise the risk of harm to her, through loss of service experienced, when she did not receive a carers assessment, and subsequent support plan,
• Make a symbolic payment to Mrs X of £250 to recognise the poor complaint handling, and her time and trouble in chasing the Council for a response.
74. Within twelve weeks of receiving a final decision, the Council will:
• Share learning from this investigation with the relevant teams,
• Ensure the relevant teams are issued with reminder guidance on giving clear information about the need to make a financial contribution towards care. Ensure this includes the necessity to do this at the first available opportunity, and to do so in writing,
• Ensure the relevant teams are issued with reminder guidance on the process to be followed when considering carer’s needs, and the necessary documentation to be completed to evidence this.
75. The Council will provide us with evidence it has complied with the above actions.

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Decision

76. My investigation is complete. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman