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Calderdale Metropolitan Borough Council (19 004 821)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 28 Sep 2020

The Ombudsman's final decision:

Summary: The Council is at fault as it poorly communicated with Miss Y, did not involve her in decisions about her care, wrongly stopped her direct payments and delayed in carrying out a care act assessment. As a result, Miss Y was denied care and support for approximately 19 months. The Council has agreed to remedy this injustice by making a payment of £500 to Miss Y and reimbursing the costs of support she paid for during this period.

The complaint

  1. Miss X complains on behalf of Miss Y. She complaints the Council:
  • Did not properly involve Miss Y in discussions and decisions when her care provider gave notice;
  • Did not properly involve Miss Y when carrying out a review of her care and support plan and did not take account of her wishes and preferences when considering a care package.
  • Wrongly considered Miss Y had refused care and wrongly stopped her direct payments which has left her without care since January 2019.
  • Delayed in allocating a new social worker which the Council agreed to do in May 2019.
  • Delayed in considering Miss Y’s and her representative’s complaints.

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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. 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.
  3. 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:
  • Considered the complaint and the information provided by Miss X on behalf of Miss Y;
  • Discussed the issues with Miss X;
  • Made enquiries of the Council and considered the information provided;
  • Invited Miss X and the Council to comment on the draft decision.

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What I found

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
  2. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
  3. The Care and Support statutory guidance provides that a person should be actively involved and given every opportunity to influence the planning and control of their care and support plan. The plan should be person centred.

What happened

  1. Miss Y has a number of mental and physical health conditions. Miss Y was in receipt of direct payments to employ carers to support her with domestic tasks and social support including accessing the community for 9.5 hours per week. Miss X works for a support agency and is Miss Y’s representative.
  2. In August 2018, a social worker, officer A contacted Miss X to arrange a meeting with Miss Y to discuss her direct payments and to arrange a care act assessment. In this letter officer A said the assessment was required for Miss Y’s direct payments to continue and her service from the Council would be placed in jeopardy if they were unable to complete the assessment.
  3. Officer A and officer B, direct payments, met with Miss X and Miss Y. There is no record of officer A carrying out a care act assessment for Miss Y. The Council’s records show they discussed Miss X having an Individual Service Fund (ISF) to be overseen by Miss X’s agency and assist Miss Y in managing her care. The Council’s records note Miss X would provide costings and then officer A would discuss the cost with the management team. Miss X provided the costings in early September 2018. There is no evidence to show officer A gave any further consideration to the option of an ISF for Miss Y.
  4. In October 2018 officer A notified Miss X and officer B that he had not been able to arrange a mental health assessment for Miss Y so he had arranged a suitable care package with the Council’s shared lives service. The service would contact Miss Y to carry out an assessment. Shared lives is a scheme where carers may share their homes with people requiring care and support.
  5. There is no record to show why officer A considered this would be suitable for Miss Y or to show he discussed this option with Miss X and Miss Y to see if she wanted this type of care. As I understand it Miss Y was unaware officer A was considering shared lives option before the service contacted her.
  6. Officer A also referred to considering a managed service in an email to officer B.
  7. In November 2018 Miss Y’s care provider gave notice to officer A that it was ending its service to Miss Y. I understand Miss X was aware of the notice but the care provider, nor Council, notified Miss Y.
  8. Officer A proposed a meeting with Miss X and Miss Y and the care provider. Miss X sent an email to officer A expressing concerns about the way the meeting was being organised as it showed no understanding or knowledge of Miss Y. As I understand it officer A had asked Miss X not to disclose the reasons for the meeting to Miss Y. Miss X also raised concerns that officer A was proposing to reduce Miss Y’s personal budget if she did not accept shared lives and asked why Miss Y was not given the opportunity to choose which service she received.
  9. Officer A advised he and his manager considered Miss Y’s care package to be excessive and felt her care could be achieved through shared lives.
  10. Officer A met with Miss X and Miss Y and the care provider in December 2018. The care provider explained the reasons for ending the service. The Council’s record of the meeting notes it had offered shared lives to Miss Y. It also notes officer A considered Miss Y’s care package was generous in comparison to that offered to other service users so should be reduced to 6 hours per week.
  11. Officer A produced a care and support plan for Miss Y but there is no evidence Miss Y was involved in drawing up the plan.
  12. The record of the meeting noted the Council would end Miss Y’s direct payments from early January 2019 at the end of the care provider’s notice period. The record notes this was because no service was being provided.
  13. In May 2019 the Council advised Miss X’s colleague by email that a social worker from the Community Mental Health Team would be allocated to Miss Y to carry out an assessment. Officer C, social worker, carried out the assessment in February 2020 and, as I understand, is working with Miss X and Miss Y to complete Miss X’s support plan. The assessment considered Miss Y was eligible for support and suggested her outcomes could be met by nine hours of care per week. The assessment notes Miss Y preferred the support agency to provide the care. I understand this is not possible as it does not meet the Council’s contracting criteria.
  14. The Council’s records show Miss X and Miss Y contacted it on a number of occasions between January 2019 and February 2020 to pursue the care act assessment. The records note Miss Y was often distressed during the calls.

Complaint

  1. In January 2019 Miss Y wrote to the Council to request a new care act assessment. She also complained that officer A had disregarded her views and choices about her care and did not tell her about the purpose of the meeting in December 2018. The Council did not respond to Miss Y so Miss X made a further complaint in July 2019. The Council responded in September 2019 and did not uphold Miss Y’s complaint. It said another social worker had been allocated to Miss X to carry out a care act assessment.
  2. In response to my enquiries, the Council has said:
  • Miss Y was included in discussions about her care;
  • There is no record of why officer A did not pursue the ISF. However, officer C explored this option but concluded it was not a viable as the support agency cannot contract with the Council as it does not meet the criteria to do so
  • Officer A explored other potential providers who could support Miss Y via a managed service. Miss Y made it clear she would not accept care for any providers she had previously received care from which limited the available options. Officer A therefore explored Shared Lives as an option for Miss Y and discussed with Miss Y.
  • It acknowledged officer A was not able to adapt his style of communication to meet Miss Y’s needs which added to her frustration with him. Officer A was not proactive in facilitating a referral to mental health services for Miss Y.
  • Direct payments were stopped as another care provider had not been identified and Miss Y was not prepared to providers she had received care from in the past.
  • It has experienced difficulties in recruiting to mental health social worker posts based in the community mental health team and operated by the mental health trust. Negotiations took place with the mental health trust to enable a social worker with appropriate mental health experience to be allocated to Miss Y but the timeframe was not within the Council’s control.
  • It acknowledges the Council took an inordinate amount of time to deal with Miss Y’s complaint due to a staffing restructure. A full team is in place to mitigate against a similar situation occurring.
  • It acknowledges the Council’s practice has fallen short of its expectations and the distress caused to Miss Y, particularly the lack of direct care since the care provider gave notice. The Council offers £500 to Miss Y to acknowledge the distress.
  1. Miss Y says the Council’s decision to stop her direct payments has caused significant distress to her. It has left her without care, causing isolation and her mental and physical health to decline.

My assessment

Involvement of Miss Y in discussions and decisions when her care provider gave notice and when carrying out a review of her care and support plan

  1. The Council’s communication with Miss Y was poor. The case notes show the Council did not directly inform Miss Y that her care provider had given notice. The Council should have been clear with Miss Y that the care provider had given notice and the purpose of the meeting in December 2018. The lack of transparency caused distress and frustration to Miss Y.
  2. The statutory guidance provides that councils must involve the service user in decisions about their care and care and support planning should be person centred. The evidence shows the Council did not involve Miss Y in its decisions about her care following the care provider giving notice and the care and support planning. There is no evidence to show officer A pursued the ISF as agreed following his meeting with Miss X and Miss Y or inform them if it was not a viable option.
  3. Officer A pursued the option of shared lives without consulting Miss X and Miss Y to explore whether this was a suitable option for Miss Y. The Council has said officer A also considered a managed service but there is no evidence to show he consulted Miss X and Miss Y on this option. The Council has said Miss Y discounted care providers who she had previously used but there is no evidence to show the Council discussed these care providers with Miss Y as an option for her care. As a result the care and support planning in 2018 was not person centred which denied Miss Y control of her care. This also contributed to the communication difficulties between Miss Y and the Council and caused distress to her.
  4. The Council is also at fault in proposing to reduce Miss Y’s direct payments from 9.5 hours to 6 hours per week. The Council had not properly carried out the care and support planning with appropriate input from Miss Y. So, its decision to reduce the direct payments seems arbitrary and there is no evidence to show why the Council considered Miss Y’s needs met and outcomes achieved with the reduced direct payments. I note the Council now considers Miss Y requires a personal budget of 9 hours per week which suggests the proposed 6 hours per week would not be sufficient.

Decision to stop Miss Y’s direct payments

  1. The Council is at fault for stopping Miss Y’s direct payments. The Council has said it stopped the direct payments as Miss Y’s care provide had given notice and another care provider had not been identified. But Miss Y had eligible needs and without direct payments she could not employ other care providers. There is no evidence the Council considered the risks to her of withdrawing the direct payments and leaving her without support. There is no evidence to show the Council considered and consulted Miss Y on other options for her care at this time. This is fault and as a result Miss Y was denied care for approximately 19 months.

Delay in carrying out a further care act assessment between January 2019 and February 2020.

  1. Miss Y requested another care act assessment in January 2019. There is no evidence to show the Council acted on this request. Miss Y had care and support needs so it is likely the Council would have arranged an assessment if it had acted on her request.
  2. The evidence shows the Council told Miss X in May 2019 that it had allocated a social worker to carry out a care act assessment. It did not carry out the assessment until February 2020. This is fault.
  3. The Council has a duty under the Care Act to carry out an assessment for anyone with the appearance of care and support needs and within a reasonable timeframe. The Council can delegate the carrying out of the assessments to another organisation, in this case the mental health trust. But it cannot delegate its responsibility to ensure assessments are carried out within a reasonable timescale and to ensure a person’s social care needs are met. I note the Council’s position that it had staffing issues and it did not have control over the delay by the mental health trust in allocating a social worker. The mental health trust was carrying out a function on behalf of the Council so the delay in allocating a social worker is fault by the Council. A delay of 13 months in allocating a social worker and carrying out a care act assessment would be excessive in most circumstances. It was particularly excessive in Miss Y’s case as the Council was aware she had eligible needs and no support in place.
  4. I am aware that Miss Y’s assessment was not completed until July 2020 because of the coronavirus outbreak. However, Miss Y would have had support during this period if the Council had not wrongly cancelled her direct payments and delayed in carrying out a care act assessment. So I have taken account of this period when considering the injustice to Miss Y.

Complaint

  1. The Council has acknowledged it significantly delayed in dealing with Miss Y’s complaint. I welcome the steps taken by the Council to prevent such delay from recurring.

Injustice to Miss Y

  1. The Council’s poor communication and failure to involve Miss Y in decisions about her care meant she did not have sufficient control over her care, caused significant distress to her and impeded her ability to make informed decisions about her care. The Council’s decision to stop her direct payments and delay in carrying out a further care act assessment meant Miss Y was left without care for around 19 months. Miss Y had to purchase support from another organisation which should have been provided via her direct payments. In view of the latest care act assessment, it is likely the Council would have provided a personal budget of 9 hours per week if had not wrongly ceased the direct payments.
  2. The Council has offered £500 to Miss Y to acknowledge the distress caused to her. This is a proportionate remedy for the distress caused to her. However, the Council should also reimburse Miss Y the cost of support she has purchased which would have been in her care and support plan and paid for by direct payments had the Council not stopped the direct payments.

Agreed action

  1. The Council will:
      1. Send a written apology to Miss Y and make a payment of £500 for the distress caused by its poor communication, failure to involve her in decisions about her care, wrongly stopping her direct payments and delay in carrying out a care act assessment.
      2. Reimburse Miss Y for the cost of support she has purchased since the date her direct payments were stopped until the Council reinstates a care package. This should be the support which would have been in her care and support plan to be purchased with her direct payments.
      3. Review procedures to ensure the delays experienced by Miss Y in allocating social workers, including those from the mental health trust, and carrying out care act assessments do not recur. The Council should explain to the Ombudsman the action taken to improve its practice in this area.
  2. The Council should take the action at a) and b) within one month of my final decision and the action at c) within three months of my final decision.

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Final decision

  1. The Council is at fault as it poorly communicated with Miss Y, did not involve her in decisions about her care, wrongly stopped her direct payments and delayed in carrying out a care act assessment. As a result, Miss Y was denied care and support for approximately 19 months. The Council has agreed to remedy this injustice by making a payment of £500 to Miss Y and reimbursing the costs of support she paid for during this period. This is a sufficient and proportionate remedy so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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