Summary: There was fault by the Council which took too long to set up a direct payment for Ms X so she could choose her own care provider. This caused avoidable frustration and meant she had to receive care from two agencies despite raising repeated concerns about the quality of those agencies. To remedy the injustice, the Council will apologise and refund fees.

The complaint

1. Ms X complains for her sister Ms Y about London Borough of Tower Hamlets (the Council) and two care agencies acting on its behalf, Unique Personnel (UK) Limited, (‘Unique’) and Diversity Care Ltd (‘Diversity’). She complains there was:
1. A failure to arrange appropriate care for Ms Y after identifying concerns about (providing unknown carers, not providing healthy meals, delay in times, failure to keep accurate records of medication given);
2. A failure to provide regular carers and
3. Poor communication.
2. Ms X says this caused her and Ms Y avoidable stress and anxiety, inconvenience and time and trouble. Ms X also says Ms Y was placed at risk of harm because of late fluids and food and medication not being given correctly. She wants the Council to reimburse the payments Ms Y has made towards the cost of her care.

Back to top

The Ombudsman’s role and powers

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. 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)
5. 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)

Back to top

How I considered this complaint

6. I considered Ms X’s complaint to us, the Council’s response to her complaint and documents described later in this statement. Ms X, the Council and both agencies had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

7. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
8. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
9. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk of abuse. These enquiries are called ‘safeguarding enquiries’. (Care Act 2014, section 42)
10. Direct payments are cash payments a person uses to arrange their own care. Statutory guidance says a council must have a swift process in place to respond to requests for direct payments (Care and Support Statutory Guidance, 12.10)

What happened

11. Ms Y has physical disabilities arising from a stroke and diabetes. She also has a visual impairment. She is eligible for care and support from the Council. During the relevant period, the Council arranged and funded Ms Y’s care by commissioning Unique and Diversity to provide visits to Ms Y in her home.
12. In January 2019, Ms X emailed the social worker to report concerns about Unique not sending regular carers and carers being late. The social worker called Unique which explained Ms Y’s regular carers were on leave and the carer for the previous day had been late as another client was unwell and needed an ambulance. Unique said it would not charge for the visit. The social worker spoke to Ms X and said Ms Y could change to having her care funded by a direct payment.
13. There was an initial review of Ms Y’s care and support plan in January 2019. The record of the review indicates Ms X and Y were concerned carers were changing at the last minute and Unique did not tell them and Ms Y was late to her day centre because a carer was late to a call. The social worker contacted Unique which said it recognised their responses could be better.
14. There was another review of the care and support plan in February. Ms X and Ms Y asked for a direct payment to be managed by a payroll company. They had chosen a new agency. Ms Y said Unique’s carers were often late, leaving her without meals. She wanted to pick her own agency using a direct payment.
15. An internal email in the middle of March indicates Unique were ‘under embargo’ meaning the Council was not giving them any new care packages because of concerns about the quality of service. The social worker had emailed the Council’s brokerage team to say Ms X reported further concerns about Unique’s carers not arriving at all and about getting no reply when she called Unique’s out of hours telephone line.
16. The Council agreed Ms Y could have a direct payment in March and at the end of March, Ms X and Ms Y signed a direct payment agreement.
17. Ms Y’s care and support plan of April 2019 sets out her care needs and the support required to meet those needs. The plan included a timetable of visits and costs. The plan noted a new agency was going to deliver Ms Y’s care and set out the costs.
18. Ms X completed a council feedback survey about care. She said that Unique was disorganised, did not answer the out of hours phone and kept inaccurate records including drug charts.
19. It appears senior council officers were made aware of the survey. The Council’s commissioning team were told about Ms X’s concerns and a social worker phoned Ms X to let her know.
20. In May, a social worker emailed the payroll service to ask when the new agency could start. There are no records of a response.
21. At the end of June, a duty officer noted Ms X had called to say she had cancelled Unique the previous day as they were still sending unknown carers. Ms X reported she had come to stay with Ms Y to look after her, but now needed to leave. The duty officer said the only option was to reinstate the care with Unique and the Council would not arrange residential care which had been requested.
22. It appears a different agency, Diversity, started caring for Ms Y at the end of June. It is unclear from the records why Ms X and Ms Y’s preferred agency (a different agency) did not take over. Ms Y complained to the Council at the start of July.
23. At the start of July, a social worker emailed the brokerage team to ask if Unique had done a report as previously agreed, about Ms X’s complaint about carers. Unique’s safeguarding report to the Council said:
• Ms X was unhappy with Carer A, but Ms Y was happy with her.
• Carer A was late on one occasion in May and they had apologised for this.
• The other regular carer (Carer B) took two weeks leave and the office arranged cover with two other regular carers (Carer A and another, Carer C). The office told Ms Y who said she would make other arrangements. The office reported this to the Council’s duty team.
24. The preferred agency contacted the Council asking for a copy of the care and support plan saying it needed this to start providing a service to Ms Y
25. In the middle of July, in an internal email, the social worker asked why it was taking to long for the payroll service to switch to Ms X and Ms Y’s preferred agency. The answer is not clear from the records. The Council told us that the delay was because it was switching contracts from one payroll service to another.
26. Also in the middle of July, an internal email between council officers referred to a complaint by Ms X about Diversity, alleging:
• carers served out of date food to Ms Y,
• carers left dirty clothes left on the draining board,
• carers were not filling in logs to say they had prompted Ms Y’s medication and
• carers were not completing laundry and shopping correctly.
27. Internal notes suggest the direct payment started on 17 July and before that date, the Council was still commissioning Ms Y care.
28. The Council’s response to Ms X’s complaint said:
• There was a long delay in transferring Ms Y’s care from commissioned care to a direct payment. This was because of a backlog and a change to the direct payment provider
• She decided to cancel Unique as they were intending to send replacement carers which she felt were not reliable. There was a two-day delay in Diversity starting. The Council was sorry for this
• The Council offered to arrange another agency in April but Ms X refused
• The Council asked Unique to follow up her concerns about their care and was awaiting feedback
• The duty team’s communication was not at the standard expected and the Council was sorry for this.

Comments from the Council and agencies

29. The Council told me it was managing concerns about Unique through a systemic safeguarding review which the commissioning team oversaw and this resulted in the Council’s contract with it being terminated. The Council also told me that as Ms Y’s care transferred to a new provider, it felt the concerns raised about Diversity were less of an issue for Ms Y. The Council told me it accepted there may have been a wider public interest in looking at the issues under a safeguarding enquiry.
30. Diversity told me:
• Its staff completed a risk assessment at a meeting with Ms X at the start of July which was the earliest date she was available. Ms X pointed out food past its expiry date in Ms Y’s fridge ,asking for staff to check and not serve any out of date items to Ms Y and instead to throw it away. Diversity said this food was not bought by its staff and they were instructed to throw out of date food away;
• It did not receive a complaint from Ms X until three weeks after its service to Ms Y ended, through the Care Quality Commission. It could not respond fully to the complaints as the records were not in Ms Y’s home.

Was there fault?

Complaint a: There was a failure to arrange appropriate care for Ms Y after identifying concerns about two agencies (providing unknown carers, not providing healthy meals, delay in times, failure to keep accurate records of medication given)

31. The Council agreed Ms X could have a direct payment to organise Ms Y’s carers in February 2019 and issued a direct payment agreement in March. It then took until the middle of July to start the direct payment. Taking four and a half months to start a direct payment was not timely and was fault and not in line with Care and Support Statutory Guidance, 12.10. The Council should have ensured there was a smooth, streamlined and prompt process in place from when it agreed the direct payment to starting to pay it.
32. Ms Y raised concerns about carers’ timeliness, staff changes, communication, record keeping and general standards of food hygiene with regard to the service Ms X was receiving with Unique. And, the Council already had wider concerns about Unique because it stopped commissioning new care packages with it. I am satisfied the Council took appropriate steps to address concerns about Unique through a systemic review which resulted in the contract with it being terminated. But Ms X did not receive care of a standard she was entitled to expect from Unique and so this was still a fault.
33. Ms Y also raised concerns about Diversity (including poor food hygiene and record keeping). There is no evidence those latter concerns about Diversity, specifically, were considered or addressed by the Council either through contract monitoring or safeguarding. This was not in line with section 42 of the Care Act and was fault.

Complaint b: There was a failure to provide regular carers

34. Care agencies cannot guarantee to provide regular carers and so I do not uphold this complaint. This is because there are always going to be times when regular carers are not available to work. However, it was fault not to tell Ms X and Ms Y that replacement carers were being sent. Unique accepted its communication was poor in this respect.

Complaint c: There was poor communication (failure to advise social worker was on leave, failure to follow up complaint)

35. The Council acknowledged in its complaint response that its duty team’s communication was not of the standard it expects and apologised. This was an appropriate remedy for the fault.

Did the fault cause injustice?

36. The delay in setting up the direct payment meant Ms Y had council-commissioned care for longer than she wanted, depriving her of choice and control over her care arrangements and meaning she had to stay with agencies which provided a poor standard of care despite raising concerns about the quality of the service being provided.
37. The failure to investigate and respond to Ms Y’s concerns about Diversity’s poor quality of care caused frustration.

Agreed action

38. 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 two agencies, I have made recommendations to the Council.
39. The Council will, within one month:
• Apologise
• Refund Ms Y the contributions she made towards the cost of her care between January and July 2019 when the direct payment started.

Back to top

Final decision

40. There was fault by the Council which took too long to set up a direct payment for Ms X so she could choose her own care provider. This caused avoidable frustration and meant she had to receive care from two agencies despite raising repeated concerns about the quality of their care. To remedy the injustice, the Council will apologise and refund fees.
41. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman