Summary: Ms X complained the Council failed to provide her with adequate care and support. We found fault with the Council for failing to complete a suitable review of Ms X’s care needs and delays in providing direct payments. The Council agreed to our recommendation to backdate Ms X’s care fees for her missed therapy support, apologise to Ms X and pay her £300 for the distress and inconvenience caused. The Council also agreed to provide training to staff about the importance of accurate record keeping.

The complaint

1. Ms X complained the Council failed to provide her with adequate care and support.

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The Ombudsman’s role and powers

2. 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)
3. 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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How I considered this complaint

4. I have:

• considered the complaint;
• considered the correspondence between Ms X and the Council, including the Council’s response to his complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation.
• Considered Ms X’s comments on the draft findings.

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What I found

Relevant legislation

5. Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person’s finances.
6. The statutory guidance at part 6 says a council must consider “the total extent of a person’s needs” before it “considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting those needs will help the adult achieve their desired outcomes”.
7. After assessing the total extent of a person’s needs, the council should consider which are eligible needs under the Care Act 2014. The guidance says councils must consider whether:
1. The adult’s needs are due to a physical or mental impairment or illness.
2. The adult’s needs mean they cannot achieve one or more specified outcomes.
3. As a consequence of being unable to achieve one or more of the specified outcomes there is, or is likely to be, a significant impact on the adult’s wellbeing.
8. Where the council decides someone has eligible needs, it must produce a care and support plan explaining how to meet them. 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 is available locally.
9. Where the council is meeting some needs, but not others, the care and support plan should clearly set out the total care needs, which needs the carer will meet, the Council will meet and how it will meet the outstanding needs. The council should give the person a personal budget to meet the eligible needs identified in the care and support plan.

Scope of investigation and relevant background information

10. I shall deal with what I consider to be the main points of concern. There is an extensive amount of correspondence between Ms X and the Council. It is neither necessary nor expedient to detail all this here. I have considered the information and this has informed my decision making.
11. During this investigation Ms X has raised ongoing issues. I have limited my investigation to events between October 2020 and February 2022.

Care assessments

Initial assessment

12. Ms X is in her fifties. In 2016 she retired from work because of illness.
13. Before retirement Ms X previously worked within the department now responsible for dealing with her care. She says that although the management in the department has changed she still knows some staff still in post. Ms X’s initial needs assessment was undertaken by a team in another area. Ms X believes it would have been better if her case had remained with that team.
14. The Council confirms it allocated Ms X’s case to a team in another area, and that team completed the initial assessment and a subsequent review. Following this it thought it suitable to transfer the case back to the current team. The Council says there are no practitioners within the team that worked with Ms X.
15. I do not find fault with the Council’s decision to bring Ms X’s care assessments back into its own area. The Council took suitable steps to get an out-of-area team to complete Ms X’s initial assessments to prevent any conflicts of interest. The Council decided to bring the matter back into its area based on there no longer being any practitioners that worked with Ms X. This is a decision the Council was entitled to make.
16. Completion of the first assessment out-of-area gave the Council a starting point to work from for future assessments. The Council has not significantly diverged from this initial assessment since bringing the matter back into its own area. Since the Council’s reassessments are consistent, although with changes over time, with the initial assessment there is no injustice to Ms X in transferring Ms X’s case back to its own team.

Care reassessments

17. Following meeting with Miss X in November 2020 to review her care needs, the Council completed a reassessment of Ms X’s care needs in February 2021. The assessing officer proposed adjustments to Ms X’s direct payment equivalent to 9 and half hours a week support, plus a contingency element. Ms X disputed the outcome saying the Council had not included a therapy she requires, which I will refer to as the Therapy. Ms X’s attendance at the Therapy is recorded on the assessment, and that it helped maintain her back strength. The Council did not include it as an eligible need in the care and support plan.
18. In May 2021, the Council promised to review Ms X’s request for the Therapy as part of her care plan.
19. The Council completed a review of Ms X’s needs in July 2021 but made no adjustments for her request for the Therapy.
20. Ms X sought extra support from the Council’s care providers in August 2021 and September 2021 which it provided. Ms X complained to the Council about the care provided in both instances.
21. A social worker completed a review of Ms X’s needs on 28 October 2021 resulting in a reassessment of her care plan in January 2022. This shows Ms X’s needs were unchanged. The care and support plan records Ms X would receive a direct payment to fund 9.5 hours support a week. The Council’s in-house care provider continued to provide support on weekends.
22. On 23 March 2022, the Council agreed to provide extra funds for the Therapy at 2 hours per week. The Council increased Ms X’s direct payments and backdated this to 22 February 2022. The Council sent an updated care plan to Ms X.
23. It is not the Ombudsman’s role to decide what services a person is entitled to receive. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly.
24. The Council has, for the most part, been consistent in its decision making about the level of provision for Ms X's care needs. The Council has assessed Ms X’s care needs suitably and determined what it considers a suitable level of support for Ms X. As explained in paragraph 16, the Council’s reassessments have also been consistent with the initial assessment completed by a different team. I do not find fault with most of the Council’s assessments of Ms X.
25. However, Ms X directly queried the lack of provision for the Therapy sessions on 4 February 2021. Ms X considered she needed this support as part of her care plan. The February 2021 care plan acknowledged that Ms X accessed the Therapy sessions. The Council said that Ms X attended the Therapy “during the week, this helps maintain her back strength”.
26. The High Court has confirmed that an individual’s wishes are not the same as their needs and wishes are not the paramount consideration. A council has to have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
27. While Ms X said she wanted the Therapy as part of her care plan the Council had no obligation to provide this. But, the Council should have had due regard to Ms X’s wishes. The Council promised in May 2021 to review Ms X’s request for the Therapy. However, the Council’s records show no reference to the Therapy again until the care review in 2022.
28. In the care review of 2022, the Council said Ms X had presented information about why the Therapy sessions were beneficial to her and provided a recommendation from a spinal surgeon following her surgery in 2014. The Council also accepted that an osteopath had recommended the same.
29. The further information from Ms X resulted in the Council agreeing to fund two hours of support for her the Therapy sessions. The Council says it did not previously include this support in Ms X’s care plan because it was not clear who was prescribing the Therapy and why this was required.
30. I do not find fault with the Council for failing to provide funding for Ms X’s Therapy before it received evidence to support this treatment. But, I do find fault with the Council failing to have due regard to Ms X’s wishes and failing to review her request for the Therapy funding until the 2022 review. The Council promised to review this in May 2021 following Ms X’s contact in February 2021 but failed to do so. This is fault.
31. The evidence the Council considered in 2022 would have been available to the Council in 2021 had it completed its review at this time. This is because Ms X had surgery in 2014 and the spinal surgeon recommended the Therapy. The Council used evidence that would have been in 2021 to decide it should provide the funding in the 2022 care plan. Had the Council completed this review sooner, it would have reached the same conclusion based on the same evidence. The Council should backdate the Therapy funding to 4 February 2021 when Ms X queried this.

Provision of care

32. The domiciliary care agency providing Ms X’s care gave notice to end service provision from 30 October 2020.
33. Ms X discussed the notice to quit of her care agency with the Council. During her discussions with the Council, Ms X told the Council did she not want carers seven days per week and instead asked for care on Tuesdays, Fridays and Sundays. Ms X asked the Council to provide a replacement care agency and advised of a care agency she would not consider.
34. Ms X found a new care agency to provide her care for when the previous care agency support stopped. Ms X told the Council about this.
35. Ms X agreed for the previous care agency to provide shadow shifts. The Council approved funding for 5.25 hours per week for these shadow shifts on 27 October 2020 at £95.81 per week. The Council extended this funding until 25 November 2020.
36. A social worker visited Ms X on 23 November 2020 to complete a review of her care needs. Ms X’s advocate was present. I have had sight of the notes of the meeting. The social worker found Ms X upset as the new care agency had given seven days’ notice to end care provision. Ms X wanted the care agency to continue until she had found a personal assistant to support her.
37. The new care agency served notice after three weeks that it would end its provision of care on 30 November 2020. Ms X says she has no real understanding why. Ms X requested the social worker contact the care agency to establish the reasons for giving notice. The social worker contacted the care agency who said its carers had left Ms X’s property in tears and refused to return.
38. The care agency agreed to continue to provide care for two days per week until 14 December 2020.
39. Ms X contacted the social worker to say she had agreed a private arrangement with a friend to provide her with support on Wednesdays and Sundays. She told the social worker she would prefer 1.5 hrs per day care to be provided by a personal assistant five days a week, and that her friend would provide support two days.
40. The Council explained to Ms X there was a possibility of a gap in care provision after cessation of the current arrangement. Ms X initially told the Council she would go without care but later retracted this. The Council offered Ms X its in-house care provider, but Ms X declined this. However, following the inability of Ms X or the Council to source an alternative, Ms X agreed to the Council’s in-house care provider on 8 December 2020.
41. The Council’s in-house care provider provided care to Ms X on three days a week from 15 December 2020 until 23 April 2021. Ms X’s friend also provided two days of care per week.
42. Ms X says she was left without care for four days over Christmas 2020. She has no understanding why this happened. The Council records confirm Ms X did not receive a visit on 22 December 2020, the reason for which is not recorded. The Council has a record dated 23 December 2020 which says the in-house care provider was “booked to do Tues, Fri and sat but for this week I only need a visit on Fri”. The Council says this implies Ms X did not want a visit on 22 or 26 December 2020. Ms X received a visit on 25 December 2020.
43. On 15 February 2021 Ms X contacted social services to say the way it (social services) was managing her care was causing her stress and this was having a detrimental impact on her health. She said she no longer needed it to source care as she had found a personal assistant to work Monday to Fridays, and that a care agency would provide care over weekends. She said she needed a contingency plan for sickness and holidays.
44. Ms X’s personal assistant started work on 19 April 2021. The Council’s in-house care provider agreed to continue providing care on Saturdays as Ms X could not find a personal assistant or care agency to provide weekend care.
45. On 1 November 2021 Ms X contacted the Council to say her personal assistant would be unavailable on 2 and 3 November 2021, that she had no contingency plan and would be without care. The Council’s in-house care provider agreed to cover the dates. Ms X contacted the Council on three occasions in November 2021 to complain about carers. Ms X complained again in December 2021 saying the carers lacked knowledge about her needs and medical conditions.
46. Ms X submitted a further three complaints about care staff in January 2022.
47. In February 2022, Ms X’s personal assistant contracted Covid-19. Ms X asked social services if the Council’s in-house care provider would be able to provide her with temporary support. By 11 February 2022, Ms X informed the Council she had recruited a second personal assistant and no longer required support from the Council’s in-house care provider on the weekend. A few days later she complained a carer had called at her home unexpectedly to pick up a folder.
48. Much of Ms X’s complaint about the provision of care relates to allegations Ms X and carers/agencies made about each other. It is simply not possible to investigate such matters. Ms X says she does not understand why carers did not address the alleged issues and/or why care agencies did not raise the issues with her at the time they arose.
49. The evidence provided by Ms X and the Council shows a repeated breakdown in relationships between Ms X and different care agencies. Ms X has requested not to be provided care by certain care agencies while other care agencies have withdrawn their services from Ms X. As detailed in paragraph 48, it is not possible to investigate the reasons why care arrangements have broken down in this manner.
50. The Council has shown that when care arrangements have broken down it has taken suitable steps to put in place new care arrangements. When the Council could not source a new care agency, it put in place care from its in-house team. The Council has also shown it was reactive to Ms X’s input on her care such as her desire to seek a personal assistant instead of a care agency.
51. The Council has, in general, provided suitable and responsive care to Ms X’s needs. I do not find fault for how the Council has responded to Ms X’s changing care circumstances in general.
52. However, the Council missed a care visit on 22 December 2020. The Council’s records around this missed visit are unclear. One set of records says the care visit for 19 December 2020 should be cancelled and care would resume on 22 December 2020. While another record says Ms X does not need a care visit on 22 December 2020 and this would resume on 25 December 2020. This is poor record keeping from the Council. This poor record keeping has caused Ms X to miss a care visit on 22 December 2020. This was fault.
53. While Ms X has also complained about changes in her social worker, the Council has advised it does not necessarily keep the same social worker allocated to a person. The Council says service users do not have ongoing input from social workers. It allocates social workers when action is required, and it will not always reallocate the same worker after a period time a case has been closed.
54. The Council has shown that it provided suitable input for Ms X’s care when it was needed. While Ms X may be dissatisfied with the changes in social workers, I do not find fault with the Council for this.

Direct payments

Accrual of debt in 2020

55. In April 2018 Ms X began receiving direct payments from the Council to purchase domiciliary care services.
56. Ms X told the Council in December 2020 that a care provider had told her of an unpaid invoice for £1,500. Ms X said this payment was outstanding because of a lack of money in her direct payments account.
57. The care and support plan records show an outstanding invoice of £468.23 owed to a care agency. This invoice was for care Ms X received between 31 October 2020 and 14 November 2020, which should have been paid from Ms X’s direct payments. The Council agreed to make a one-off payment to cover this cost.
58. The Council provided Ms X with direct payments to pay her care costs. It was Ms X’s responsibility to pay her care costs through her direct payments. The Council provided Ms X with her direct payments up to, and past 14 November 2020, at the correct amount. I do not find fault with the Council for Ms X accruing a balance with a care agency for unpaid care fees. I also do not find fault with the Council for deciding to cover the outstanding fees as a one-off payment. The Council used its discretion to make this payment which worked in Ms X’s interest.

Stopping of direct payments

59. Following the cancellation of Ms X’s care provision by her care provider on 14 December 2021, the Council ended Ms X’s direct payments for her care. The Council started direct payments on 19 December 2020 for the costs of recruiting a personal assistant for Ms X.
60. While Ms X’s provision with her care provider ended and the Council provided care through its in-house care provider, the Council only provided three days of care to Ms X. Ms X continued to source care from outside the Council’s care provider through a private arrangement two times a week.
61. Given the stop in direct payments to Ms X, Ms X spent her own money funding her care from December 2020 until April 2021.
62. On 8 April 2021, Ms X’s advocate contacted social services to ask that it reimburse Ms X the money she had paid funding her care between January 2021 & April 2021 amounting to about £700.
63. The Council wrote to Ms X in July 2021 confirming she would be reimbursed. The records show the Council paid Ms X £792 on 26 July 2021.
64. The Council has acknowledged that stopping the direct payments in December 2020 was fault. This fault caused Ms X financial difficulty as she needed to fund her own care on the days the Council’s in-house care provider was not providing this. While the Council has now repaid the outstanding direct payments, Ms X was left without this money for six months.
65. The Council has also acknowledged that its records do not provide any details about why it stopped the direct payments. This is a further recurrence of poor record keeping as outlined in paragraph 52, this is fault.

Restarting direct payments

66. The records show Ms X would receive a direct payment to fund 9.5 hours per week care from 19 April 2021, to pay for her personal assistant. Ms X also received a commissioned service from the Council’s in-house team for weekend care.
67. Ms X’s brother contacted social services on 11 May 2021 to say Ms X had not received any direct payment and could not pay her personal assistant. The Council processed a payment on 18 May 2021 before putting in place a full backdated payment on 14 June 2021. The Council made regular monthly payments from this point.
68. The Council has corrected this error and provided backdated payments to Ms X covering all underpaid direct payments since 19 April 2021.
69. But, the Council was at fault for failing to reinstate Ms X’s direct payment on 19 April 2021 as scheduled. This meant Ms X could not pay for the care provision arranged to replace the Council’s in-house care provider. This caused Ms X financial difficulty and stress over a 8-week period.

Current provision

70. In February 2022, Ms X told the Council she was looking to recruit a second personal assistant to replace the Council’s care provider. The Council says Ms X received support from the direct payment support service to advertise for a second personal assistant.
71. Records show the Council agreed to additional funds for Therapy on 23 March 2022 and that it increased Ms X’s direct payment accordingly. The Council sent an updated care plan to Ms X. Ms X’s current direct payment provides 11 hours of support a week for 9 hours of care and 2 hours of support for the Therapy sessions.
72. As explained in paragraph 11 our investigation is limited to October 2020 to February 2022. Should Ms X have issues with her current care plan she would need to raise this with the Council first.

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Agreed action

73. Within one month of the Ombudsman’s final decision the Council should:
• Provide Ms X with a backdated payment for the funding for the Therapy support from 4 February 2021 to 22 February 2022.
• Provide Ms X with an apology and a payment of £300 for the stress, distress and inconvenience caused through the missed care visit on 22 December 2020, delayed direct payments and general inconvenience caused in having to chase the Council in this matter.
74. Within three months of the Ombudsman’s final decision the Council should:
• Provide training to its staff about the importance of record keeping.

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Final decision

75. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman