Norfolk County Council (20 013 437)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 26 Sep 2021

The Ombudsman's final decision:

Summary: Mrs X complains the Council’s adult social care department provided a poor level of service, causing distress to her and her brother. We find fault by the Council causing injustice. We recommend it provide an apology and explanation to Mrs X, pay her £300 for distress and take action to prevent recurrence of the delay in funding direct payments.

The complaint

  1. Mrs X complains the Council:
    • pressured her to move her mother, Mrs Y, to a care home, focusing on cost rather than how best to meet her needs.
    • delayed arranging payment for carers, including herself, for five weeks.
    • provided a poor service including:
        1. failing to ensure it arranged payments correctly;
        2. refusing to carry out a home visit to complete the care assessment;
        3. contacting her brother, Mr Z, at work without warning;
        4. contacting the care agency, questioning the family’s truthfulness;
        5. failing to keep in contact as agreed; and
        6. failing to send a complaint acknowledgement or provide her right to a review.
  2. Mrs X says she and Mr Z have suffered distress due to the pressure to move their mother to a care home and she has spent time chasing and complaining to the Council.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. 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. (Local Government Act 1974, section 24A(6))
  4. 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 spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
  2. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Care Act statutory guidance

  1. A care assessment must be person-centred, involving the individual and any carer that the adult has, or any other person they might want involved.
  2. An assessment must seek to establish the total extent of needs before the local authority considers the person’s eligibility for care and support and what types of care and support can help to meet those needs.
  3. Eligibility determinations must be made on the basis of an assessment, and cannot be made without having first carried out an assessment. Once the council has decided on eligibility, and decided whether it will meet the person’s needs, it must then carry out a financial assessment if it wishes to charge the adult.
  4. The financial assessment may in practice run parallel to the needs assessment, but it must never influence an assessment of needs. Councils must inform individuals that a financial assessment will determine whether they pay towards their care and support. But this must have no bearing on the assessment process itself.

Council’s Adult Social Care Complaints Process

  1. The Council sets out its complaints process on its website.
  2. It will acknowledge receipt of a complaint within five working days and say when it expects to respond.
  3. It will try to respond within 15 working days where possible. However, depending on the complexity this may take longer. It will normally finish any investigation and respond within six months. 
  4. If a complainant is unhappy with its response they can contact the Council again. The Council will review the response and comments and decide if the service needs to do more to put things right. However, if it believes the service has done all they reasonably can do it will confirm this.
  5. If a complainant remains unhappy they can contact the Ombudsman.

What happened

  1. In early January 2021 Mrs Y returned home after a hospital stay.
  2. The Council’s social worker spoke to Mrs Y and her family to discuss her needs and start a care assessment.
  3. The Council’s case note of 15 January shows the social worker explained if Mrs Y continued to need 24 hour care she would need to move into a care home or the family would have to pay the difference between the cost of a care home and live in carers.
  4. On 25 February the Council’s panel decided Mrs Y should continue with her current care package for three months. The Council recorded this was to allow for a full reassessment of Mrs Y’s needs, further opportunities for Occupational Therapy interventions, an examination of the sustainability of the care package at home, and an exploration of more cost-effective use of the direct payments.
  5. On 6 April the Council reassessed Mrs Y.
  6. On 30 April the panel agreed for Mrs Y’s care to continue at home for next 12 months with a 6 and 12 month review. This was to allow for ongoing consideration of alternative, more cost effective ways to meet her care and support needs. If having investigated any available alternatives, the practitioner felt none would be appropriate taking into account her needs, outcomes and the impact on her wellbeing, they should evidence this within the care and support plan.

Mrs X’s complaint

  1. On 23 February Mrs X complained:
    • they had to get carers in urgently to support Mrs Y on release from hospital when her and Mr Z were ill. The Council did not arrange funding for a few weeks leaving her to chase this.
    • the Council told them it would consider the cost of a care home against the cost of home care. But cost should not be the driving factor.
    • the Council contacted Mr Z at work without warning, putting him on the spot about whether he could provide care for Mrs Y.
    • the Council queried with the care agency how much care she and Mr Z provided.
    • the Council refused to visit Mrs Y at home to carry out the assessment.
    • The Council did not pay her for providing care immediately and she had to chase this; there was five week delay in payment.
    • She wanted Mrs Y to remain at home but was still awaiting the Council’s decision.
  2. On 25 February the Council emailed Mrs X to confirm it had passed her complaint to the complaints team.
  3. The Council responded on 4 March. The Council:
    • apologised for the delay in deciding on care and in arranging payment.
    • explained care would continue for three months to allow time for further assessment and to ensure the long-term care arrangements could meet Mrs Y’s future needs, were sustainable, and in her best interest.
    • Offered £150 for the time and trouble in bringing the complaint and £150 for stress arising from its delay.
  4. On 8 March Mrs X contacted the Council again as she did not understand why there was any question over her mother’s care arrangements. The care plan had worked well for many years. She said she found its offer of money patronising; she just wanted to ensure her mother had care in place to remain at home.
  5. The Council responded on 10 March. It confirmed its earlier response was its final response and signposted Mrs X to the Ombudsman.
  6. In response to enquiries the Council said:
    • The County Panel identified the plan was financially led and not needs led. This resulted in the proposed plan being implemented for three months while the Care Act assessment and care and support planning were carried out in a Care Act compliant way. It appreciates this caused uncertainty for Mrs X, but this action was appropriate given the circumstances. The Council could not agree to the care and support plan on a long-term basis until satisfied it had carried out the assessment correctly. 
    • Having reviewed the case it has improved its training offer to new practitioners starting at the Council. The Quality Assurance Team is working on providing new updated training videos in the key recording aspects of a Care Act assessment. It has also provided one-to-one mentoring with the Practice Consultant Social Worker who authorised the plan in this case, to ensure she understands the expectation of both the Care Act and the Council.
    • It previously accepted and apologised for the delay in paying wages into the Direct Payment account. It took correcting actions to ensure funds would be available for the next three months. It was to discuss the matter of ensuring funds are available in Direct Payment Accounts at the Northern Locality’s practitioners meeting on 27 July.
    • It was the Council’s policy during this stage of the national lockdown (January – March 2021) to only make home visits when there was a risk of significant harm to the service user. This was not the situation in Mrs Y’s case.
    • It needed to speak with Mr Z about care as he was the advocate for Mrs Y. It was unaware of his working hours. At the time it needed to explore all care options to ensure Mrs Y was kept safe while Mrs X was unavailable due to illness.
    • It had no record of a call to Mrs Y’s care agency and the relevant employee has since left the Council.
    • It accepts communication with Mrs X could have been better and would like to apologise for this.
    • It acknowledged the complaint on the 25 February and has provided a copy of this acknowledgement.
    • An alternative social worker reviewed the case on 31 March.
  7. In comments on a draft of this decision Mrs X said:
    • It felt like the Council was trying to fob her off by offering compensation. It did not take any accountability or provide any form of explanation. However, she does feel the Council should recognise the time and effort she has spent trying to resolve issues.
    • There was no issue with the Council seeking views of family but it called Mr X without arranging a suitable time and put him under pressure to agree to something on the spot.
    • The Council could simply deny holding records to avoid a finding of fault. The care agency could confirm the Council’s conversation.
    • She had to chase up an acknowledgement to her complaint and she had to find out about the Ombudsman herself as the Council did not refer her.
    • She would really appreciate a full explanation of why as a family they had to endure all that they did. This was one of the worst times of their lives. They were worried about her mother and both her and her brother were really ill. She had to make many calls from her bed when she was really too ill to do so.
    • When she recovered she had to look after her mother. It took two months to nurse her back to health. They had to deal with all this stress on top. Both the carers and herself had no pay for 5 weeks. This was tough when everyone has bills to pay.

Findings

  1. The Council’s case notes show that within days of Mrs Y returning home from hospital and before completing a care assessment, the Council was considering moving Mrs Y to a care home or only providing funding up to the cost of a care home. This is fault. The Council had to establish Mrs Y’s needs first and then decide how her needs could best be met. The care assessment should have been needs led and not influenced by finances.
  2. The panel recognised a further assessment was needed. Following this, the panel agreed for care to continue at home with a 6 and 12 month review. I note Mrs X is satisfied with this.
  3. The Council has recognised it did not follow the correct approach initially, and it has since provided further training to relevant staff. I am satisfied with this action. However, Mrs Y and her family also suffered avoidable distress and uncertainty pending the reassessment. And Mrs X wants to understand how this happened.
  4. The Council accepts it delayed arranging payment for carers. This is fault. I am satisfied the delay would have caused Mrs X some distress and inconvenience. I note the Council apologised and offered a financial remedy, in line with our guidance on remedies. However, it did not explain how this happened or outline any action to prevent recurrence.
  5. The Council does not have to carry out a care assessment in person, it is sometimes appropriate to do this by phone. And the Council has given reasons as to why it did not visit Mrs Y at home, namely due to the national COVID-19 pandemic. I find no fault.
  6. The Council should seek views from family when carrying out a care assessment or when arranging care. It may also ask if family are able and willing to provide care. While I recognise an unexpected phone call may have been inconvenient and put Mr X on the spot, I find no fault by the Council.
  7. The Council may gather relevant information to support a care assessment from a care agency. This could include asking how much care the agency or others provide to the service user. I note the Council has no record that any call was made to the care agency and the relevant staff member has left. I do not consider it proportionate to make enquiries of the care agency on this, as there is not enough evidence of fault to justify further investigation.
  8. The Council’s case notes show there was a poor level of communication between the social worker and Mrs X, with Mrs X having to spend time chasing up matters or seeking clarity. I consider this amounts to fault. Mrs X suffered further distress as a result.
  9. I am satisfied the Council acknowledged Mrs X’s complaint and responded promptly. Upon her further complaint the Council confirmed its previous response was final and referred her to the Ombudsman. It was open to the Council to reach this conclusion in line with its complaints process. I therefore find no fault.

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Agreed action

  1. To remedy the injustice set out above I recommend the Council carry out the following actions:
  2. Within one month:
    • provide Mrs X with a written apology and an explanation for the faults identified; and
    • pay Mrs X £300 in recognition of the distress suffered by her and her family.
  3. Within three months:
    • identify why there was a delay in arranging direct payments and inform the Ombudsman of any action taken to prevent recurrence.
  4. The Council has accepted my recommendations.

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Final decision

  1. I find the Council at fault, causing injustice. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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