Summary: Ms X complained the Council failed to ensure her son, Mr Z, received appropriate care, and also failed to complete his mental capacity assessment and care and support reassessment. The Council was not at fault in relation to these matters. However, it is at fault for delaying in making a decision about the most appropriate action to take to progress the case. It should take steps to prevent any further drift occurring.

The complaint

1. Mrs X complained the Council:
1. failed to ensure her son, Mr Z received the correct care from care workers or that they respected his wishes about the care he wanted;
2. failed to carry out and complete an adequate care and support reassessment and mental capacity assessment with Mr Z and failed to listen to his wishes;
3. changed the details in Mr Z’s mental capacity assessment between the one sent by the social worker and the subsequent one sent by the team manager;
4. obtained details of Mr Z’s GP even though she did not provide it with these details;
5. has not ensured its staff members have the correct training to deal with Mr Z who is severely autistic.
2. Ms X says that she is frustrated that the Council has failed to listen to her or Mr Z’s wishes.

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What I have investigated

3. I have investigated complaints 1a to 1d). I explain why I have not investigated complaint 1e) at the end of this decision statement.

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The Ombudsman’s role and powers

4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council or care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. We have powers to investigate adult social care complaints where local councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. In this case, the Council arranged and commissioned Mr Z’s care. Therefore, we treat the actions of the care provider as if they were the actions of the Council.
7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome

(Local Government Act 1974, section 24A(6))

9. 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

10. I considered the information provided by Ms X.
11. I made enquiries of the Council and considered the information it provided. This included complaints correspondence, copies of Mr Z’s draft care and support plan and the notes from the mental capacity assessment.
12. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

What happened

13. Mr Z is an adult with autism. He has had a care and support plan for several years. Ms X has lasting power of attorney for him for health and welfare. This means that if Mr Z did not have the mental capacity to make decisions about matters relating, for example, to his care, Ms X can make them on his behalf.
14. Mr Z’s care plan states that he should receive one hour of support a day to meet his care needs. This used to be provided by Care Provider A.
15. In June 2020 Ms X informed Mr Z’s social worker that she had stopped Care Provider A from supporting Mr Z. She said this was because the care workers:
• were not using PPE correctly;
• did not respect Mr Z’s wishes around matters such as whether he wanted a shower; and
• failed to stay for the whole hour.
16. On 21 July, Care Provider B began to provide care for Mr Z. On 29 July, Ms X stopped the care and told the Council she would provide Mr Z’s care on an informal basis until a new care provider had been identified. Ms X said she had stopped the care package because she was concerned about the care worker’s use of PPE and she did not believe Mr Z was getting value for money from his contributions to the costs of his care.
17. In its response to my enquiries, the Council said it explained to Ms X that Mr Z’s contributions were based on his income and not the number of hours of personal care he received. It explained his contribution was towards Mr Z’s complete package of care. The Council said they could discuss what other services Mr Z could access to meet his eligible needs at his August review meeting.
18. Ms X cancelled the August review meeting. As a result, the Council sent Ms X a letter stating concerns that the adult social care team had been unable to visit Mr Z.
19. Discussions around a suitable date took place. The social worker submitted a request for an independent advocate (IMCA) to support Mr Z during his assessments. Following various changes to the date, the care and support reassessment and mental capacity assessment took place in December.
20. The mental capacity assessment determined Mr Z did not have capacity to make decisions at that time about his care.
21. The care and support reassessment proposed Mr Z receive care two days a week at a day care centre and overnight respite provision.
22. Ms X was unhappy and complained to the Council. She was unhappy with its initial response and made a second complaint.
23. In its two responses, the Council made the following points:
• it had passed Ms X’s concerns about Care Provider A to its quality team to consider if further action was required;
• Mr Z’s social worker would speak to Care Provider B about the issues Ms X had raised;
• the Council’s daily notes recorded Ms X had provided details of Mr Z’s GP;
• some minor details on Mr Z’s mental capacity assessment report unconnected to the assessment itself had changed but this was because different officers had run the report off the computer;
• the social worker had spoken with Mr Z at the care and support reassessment and the mental capacity assessment and so had been able to capture some of his wishes. Furthermore, the support package suggested by the social worker was only one option and the Council would be happy to consider Ms X’s and Mr Z’s views; and
• the Council wished to complete Mr Z’s care and support review but had delayed doing so because Mr Z’s social worker had been off work and the Council felt it would be better to wait for their return because Mr Z was familiar with them. The social worker had now returned and would contact Ms X to arrange to finish the outstanding assessments.

Response to my enquiries

24. During my investigation, the Council informed me that Ms X had broken off communication with the Council. As a result, it had been unable to complete Mr Z’s assessments.
25. The Council stated it had investigated Ms X’s concerns about Care Provider A which said:
• Mr Z’s usual care worker spent around 30-35 minutes with him. This could be verified by electronic time stamps;
• Ms X had sometimes asked care workers not to interact with the family and to leave soon after tasks were finished. At other times, Ms X had asked care workers to stay longer and they had tried to interact more;
• it had offered to carry out other tasks as there was spare time, but this had always been refused by Ms X;
• Ms X always cancelled the Saturday and Sunday visits and when care workers tried calling, Ms X had complained; and
• records evidenced one agency worker only stayed around 10 -12 minutes. The Care Provider had taken appropriate action over this issue.
26. The Council said it found Care Provider A’s response satisfactory and closed the investigation.
27. The Council said it had spoken to Care Provider B which said:
• Ms X had agreed it only took around 10 minutes to shower and dry Mr Z;
• the care worker had offered to support Mr Z in other ways so Ms X could have a break but Ms X said Mr Z did not need any other support from the Care Provider.

My findings

Actions taken by the Council relating to Care Providers A and B

28. Ms X raised issues about both Care Providers. The Council investigated her complaints about Care Provider A proportionately and found no concerns with the service it had offered. This decision was evidence based. There was no fault in the Council’s actions.
29. In relation to Care Provider B, the Council said it would discuss Ms X’s concerns at the next review meeting. Ms X ended her involvement with Care Provider B and did not attend the review. I cannot hold the Council responsible for her decision and, because the service had stopped, it was not at fault for not pursuing the issues she had raised.

Incomplete assessments and failure to take Mr Z’s wishes into account

30. The Council began the process to reassess Mr Z’s mental capacity and his support needs. It met with Mr Z and Ms X in person and the notes for both reassessments record Mr Z’s wishes were recorded.
31. Because Mr Z is happier when he is familiar with people visiting the house, when the social worker took time off work, the Council paused the completion of the assessments. In doing so it considered the individual needs of Mr Z. There was no fault in the Council’s actions.
32. Ms X has now decided not to engage with the Council. As a result, the Council is unable to complete Mr Z’s assessments. Under these circumstances, I do not find fault with the Council for not completing them.
33. However, the Council has allowed the situation to drift since December 2020 and remains uncertain whether Mr Z’s eligible care needs are being met appropriately. This failure to act is fault.
34. The Council should now review Mr Z’s case and take whatever action it considers appropriate. Until this has taken place, it is not possible to determine whether the fault has caused Ms X and Mr Z an injustice.

Change in details in Mr Z’s mental capacity assessment

35. The Council has explained to Ms X why some of the details in Mr Z’s mental capacity assessment changed when different officers sent her a copy. The changes were minor and resulted from the different ways the officers accessed the assessment electronically.
36. The Council has explained what happened to Ms X, apologised for any confusion or distress this caused her and said it will examine its systems to prevent reoccurrences. We could not add anything meaningful to the Council’s response. Therefore, I will not investigate this matter further

Council obtained details of Mr Z’s GP even though she did not provide it with these details

37. I will not investigate this matter further. It is unlikely I would find fault and additionally, any injustice is not significant enough to justify our involvement.

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Agreed action

38. Within three months of the date of the final decision, the Council has agreed to assess Mr Z’s case to enable it to determine the most appropriate action required to progress matters.

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Final decision

39. There was fault but it is not possible to determine whether this caused Ms X or Mr Z an injustice. The Council had agreed to my recommendation and so I have completed my investigation.

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Parts of the complaint that I did not investigate

Complaint 1e) Autism training for staff

40. I will not investigate this complaint because it has already been considered by the Ombudsman and no fault was found. Ms X argues that this decision is out of date because since then a specific autism training programme has become mandatory. This is not the case and there has been no changes to the relevant legislation since we made our decision.

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Investigator's decision on behalf of the Ombudsman