Summary: Mrs X complained on behalf of herself and her husband about the way the Council handled his care needs and direct payments, which pay for his care. She also complained about the quality of care provided, and the Council’s handling of her complaint. Mrs X said they suffered financial hardship. She said the faults caused unnecessary distress and stress, cost her time and trouble, and had a significant impact on Mr X’s physical and mental health. Largely we find the Council at fault, and the fault caused Mr and Mrs X injustice. The Council has agreed to apologise and make a payment to them to reflect the injustice caused.

The complaint

1. The complainant, who I refer to here as Mrs X, complained on behalf of herself and her husband, Mr X, who has care needs. She complained about the way the Council handled Mr X’s care needs and direct payments, which pay for his care. Specifically, Mrs X complained that:
1. the Council failed to put a care package in place on Mr X’s discharge from hospital, meaning he was placed in residential care unnecessarily for two months;
2. the Council failed to provide an adequate reassessment of Mr X’s care needs, and failed to put in place an adequate care package, for his return home from residential care;
3. the Council failed to continue to allow Mrs X to be paid by direct payments to continue providing Mr X’s care at home;
4. the Council delayed reinstating direct payments;
5. the care provider provided poor quality care that did not meet the terms of the care package;
6. the Council failed to address the part of Mrs X’s complaint about the poor quality of care; and,
7. the Council failed to respond to Mrs X’s complaint until she threatened legal action.
2. Mrs X said the poor quality of care directly resulted in Mr X’s hospitalisation, which was avoidable. She said Mr X was in residential care unnecessarily for two months. She said this has had a significant impact on Mr X’s physical and mental health. Mrs X said she suffered financial hardship as a result of the Council failing to continue paying her through direct payments. She said the Council’s actions and inactions have caused unnecessary distress and stress, cost her time and trouble, and caused a breakdown of trust. She also said the impact of the stress and distress had a disproportionate effect on her physical health because she was recovering from major surgery during this time.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
8. 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)
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

How I considered this complaint

11. Mr X has given written consent for his wife, Mrs X, to represent this complaint on his behalf. I therefore consider Mrs X is a suitable person to represent this complaint on Mr X’s behalf.
12. I considered the information and documents provided by Mrs X, the Council, and the Care Provider (Passionate About Care Ltd). I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
13. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

Back to top

What I found

What should have happened

Care provision and assessment of care needs

14. Sections nine and ten of the Care Act 2014 (‘the Act’) say where it appears to a council that an adult may have care and support needs, the council must assess that person to see if they do have care and support needs, and if they do, what those needs are. The Act gives local authorities a legal responsibility to provide a care and support plan to meet the identified care and support needs.
15. The High Court said 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))
16. The council is ultimately responsible for meeting the person’s care needs. If another party – for example, a care provider – is involved in providing care, they are acting on the council’s behalf, facilitating meeting that person’s care needs.

Direct payments

17. Direct payments are monetary payments made to people who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice, and control by enabling people to commission their own care and support to meet their eligible needs.
18. The 2009 Direct Payment Regulations say direct payments cannot be used to pay for care from a close family member living in the same household, except where the council determines this to be necessary.
19. The Care and Support statutory guidance says direct payments are designed to be used flexibly and innovatively. It says councils should not place unreasonable restrictions on the use of a direct payment, as long as it is being used to meet eligible care and support needs.
20. The Care and Support (Direct Payments) Regulations 2014 say councils should audit or review direct payment accounts at least annually. These Regulations say that when a council reviews direct payments, it must involve the adult and any carer they have. The Regulations also say the council must take all reasonable steps to reach agreement with the adult concerned as to the outcome of the review.

CQC Regulations

21. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
22. Regulation 17 says records about a person’s care and treatment must be kept and be fit for purpose. To be fit for purpose, records must be “complete, legible, indelible, accurate and up to date”.

The Council’s complaints procedure

23. The Council’s complaints procedure says it will respond to complaints about adult social care within 20 working days. It says in some exceptional cases it may be necessary to go beyond that timeframe. It says if this is the case, the Council will inform the complainant.

What happened

24. Mr X has significant care and support needs and is a wheelchair user. He lives at home with his wife, Mrs X. In 2012, the Council agreed that Mr X could use part of his direct payments to pay for Mrs X, a trained medical professional, to provide some of his care. The Council considered this an exceptional circumstance. This was reviewed and allowed to continue in 2015 and 2017.
25. In June 2021, Mr X’s GP made a referral to the Council to reassess Mr X’s care package. The Council made an appointment to visit Mr X in early September, but Mr X was admitted to hospital the day before. Also at that time, Mrs X was told the date for surgery she was due to have. At that point, Mr and Mrs X asked the Council for help because Mrs X would not be able to provide Mr X’s care until mid-November as she would be recovering from surgery.
26. The Council did an assessment of Mr X’s care and support needs the day after he was admitted to hospital. The Council began looking for increased care from care agencies.
27. In late September, Mr X was discharged from hospital to a nursing home. The Council did another care and support needs assessment in early October, while Mr X was at the nursing home. This assessment identified the need for Mr X to have 35 hours’ care per week.
28. The social worker doing that assessment told Mrs X that the Council could not find the paperwork showing that it had agreed Mrs X could be paid for providing Mr X’s care through his direct payments. The social worker said Mrs X did not meet the Council’s criteria.
29. In mid-October, the social worker told Mrs X that Mr X would receive 35 hours’ care per week for six weeks while the Council established a long-term support plan. The social worker said direct payments are not permanent, and care packages can be changed to make sure the person receives the right care.
30. In late October, the social worker emailed Mrs X saying she was aware Mr X was “very anxious to return home”. For this reason, the social worker proposed alternative options for Mr X’s care at home: three care visits per day, either through his direct payments or the Council could commission the care. If the Council commissioned the care, it would pause his direct payments.
31. The social worker said once Mr X had returned home, they could discuss future options to meet his care needs. The social worker also said she would undertake a full review of his care and support needs when Mr X went home.
32. In mid-November, Mr X went home. A care agency, Passionate About Care Ltd (who I refer to as ‘the Care Provider’), began providing Mr X with 35 hours’ care per week.
33. In mid-December, the Council reassessed Mr X’s needs. It found it was necessary for Mrs X to provide some of Mr X’s care. The Council agreed this would be paid for through his direct payments.
34. In January 2022, the Council finalised the administration of Mr X’s direct payment account. A few weeks later, Mr X went back into hospital.
35. In late-January, Mrs X complained to the Council.
36. In late-March, Mrs X sent the Council a letter before taking legal action. She complained that the Council withholding Mr X’s direct payments had caused financial hardship. She complained that the Council had not responded to her complaint.
37. Shortly after, the Council sent its complaint response. It apologised for the significant delay responding to Mrs X’s complaint. The Council said it was clear that the social worker did not follow direct payment guidance, and this resulted in the social worker advising Mrs X that she could no longer receive wages (through Mr X’s direct payments).
38. The Council said it had continued to pay into Mr X’s direct payment account, so the social worker’s advice was not an accurate reflection of what happened. It recognised that this resulted in non-payment for four and a half months, which caused financial hardship to Mrs X, on top of Mr X’s deteriorating condition. The Council apologised for this.
39. The Council told Mrs X it would deliver training to practitioners on direct payments. It apologised for the inconvenience and distress caused by the delay responding to her complaint.
40. Mrs X then brought her complaint to the Ombudsman.

Analysis

Care package

41. Mrs X complains that the Council failed to put a care package in place on Mr X’s discharge from hospital, meaning he was placed in residential care unnecessarily for two months (part a of the complaint).
42. Mrs X wanted the Council to provide a care package at home from mid-September (when she had her surgery) to mid-November (when she was well enough to provide his care again). She says the Council failed to do this.
43. The Council says when Mrs X called the Council in early September, it suggested arranging a short-term placement for Mr X to meet his care needs while Mrs X recovered. Council records, which include information from the hospital, show that a respite placement at a nursing was discussed with Mrs X and she agreed to this.
44. Further to this, Council records show that a hospital staff member visited Mr X on the ward and explained what Mrs X had agreed to. Records show that Mr X agreed to the temporary nursing home placement.
45. As I have said above, the High Court said 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.
46. In this case, the Council suggested a temporary placement in a nursing home for Mr X while Mrs X recovered from surgery. This is how the Council assessed Mr X’s needs would best be met in the short-term. This is a decision the Council is entitled to make. Further, I find Mr and Mrs X agreed to this. Mrs X says she agreed to short-term respite because she felt it was not safe for Mr X to return home at that point. For these reasons, I do not find the Council at fault.

Reassessment of care needs and care package

47. Mrs X complains that the Council failed to provide an adequate reassessment of Mr X’s care needs, and failed to put in place an adequate care package, for his return home from residential care (the nursing home) (part b of the complaint).
48. The social worker assessed Mr X’s care needs in October, while he was in the nursing home. The social worker assessed that Mr X needed 35 hours’ care per week to meet his care needs.
49. Mrs X feels the social worker failed to properly assess Mr X’s needs because he needs 24-hour care, cannot feed himself or drink on his own, and cannot be left on his own.
50. The Council says when Mr X went home, there were discussions with Mr and Mrs X about an immediate increase in support to meet his needs. The Council says it agreed in mid-December that Mr X’s needs had increased and it immediately changed his care and support plan. This updated plan consisted of a mixture of direct payments, to pay Mrs X to provide some of Mr X’s care, and commissioned support.
51. I have considered the Council’s assessment of Mr X’s needs before he came home from the temporary nursing home placement. As I have said above, social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. I find no fault in how this assessment was completed because I find the assessment considered all of Mr X’s needs. I therefore find the Council’s actions were in line with the statutory guidance.
52. I find Mr X’s care plan addressed the care and support needs identified in the assessment. I find the Council put in place a care package it considered would meet Mr X’s needs on his return home. For this reason, I do not find the Council at fault.
53. As I have said above, we cannot question the outcome of decisions (in this case, the assessment decision on Mr X’s care needs, and the resulting care and support plan) if there was no fault in how the decisions were made. Therefore, I cannot challenge the merits of these decisions, or the content of the care package that was put in place for Mr X’s return home.
54. Mrs X says the social worker said at the October assessment that she would reassess Mr X’s care and support needs when he came home from the nursing home placement. Mrs X says this never happened. I do not agree. I find the Council reassessed Mr X’s care and support needs in December.
55. As I have said above, in mid-October, the social worker told Mrs X that Mr X would receive 35 hours’ care per week for six weeks on his return home, while the Council established a long-term support plan. Mr X returned home in mid-November. In mid-December (fewer than six weeks after his return home), the Council reassessed Mr X’s needs. At this point, the Council agreed that Mr X needed a mixture of care, to be provided in part by Mrs X (through direct payments) and in part through care commissioned by the Council. I find this was the reassessment.
56. I find the Council put in place a short-term package of care for six weeks while it established a long-term support plan. I find the Council needed time to see what Mr X’s long-term support needs were, now he was at home. We would not expect this to be done immediately, and I do not find the Council delayed reassessing Mr X’s needs. For this reason, I do not find the Council at fault.
57. Mrs X says after Mr X came home they contacted the social worker asking for a reassessment. She says they got no response. Mrs X says they wrote to the Council in late-November with their concerns about this. She says the Council did not answer this. Evidence that Mrs X provided shows that the social worker responded to Mrs X’s request three days later. I find this is evidence of good practice. I address Mrs X’s concerns about poor communication below (paragraph 106).

Direct payments

58. Mrs X complains that the Council failed to continue to allow her to be paid by direct payments to continue providing Mr X’s care at home (part c of the complaint).
59. Mrs X says that at the October assessment of Mr X’s needs, the social worker said she would discuss direct payments when Mr X returned home. Mrs X says that she could not access wages from Mr X’s direct payments until the end of December.
60. In its complaint response to Mrs X, the Council acknowledged that the social worker did not follow the guidance on direct payments. It recognised that this resulted in the Council incorrectly advising Mrs X about payments to her from direct payments. The Council recognised that it should have given Mrs X options to either take annual leave or be given a retention payment.
61. The Council recognised that this resulted in non-payment to Mrs X which caused her financial hardship, on top of the stress of Mr X’s deteriorating condition. The Council apologised for this.
62. I find the Council at fault for failing to give accurate advice to Mrs X on what payments she could receive during that time. I agree with the Council that this caused Mrs X financial hardship which caused unnecessary distress, and uncertainty, which is injustice.
63. I am satisfied that the Council has made a payment to Mrs X to remedy this injustice. I am also satisfied the Council has delivered practitioner training about direct payments. I find this is a suitable service improvement.
64. Mrs X complains about the Council’s decision to stop allowing Mrs X to be paid by direct payments.
65. The Council accepts that in 2012 it allowed Mrs X to be paid through Mr X’s direct payments to provide some of his care under ‘exceptional circumstances’. I believe this is because of Mrs X’s professional medical history.
66. In October, Mrs X told the Council she was worried that it had lost the original paperwork about this decision. She also said the Council had regularly reviewed the situation and allowed it to continue.
67. In response, the social worker said the Council’s records indicated that this arrangement was only agreed temporarily in 2012. She added that, “all provisions of care and support are subject to change at review or following a change of circumstances”.
68. As I have said above, direct payments are designed to be used flexibly and innovatively. The guidance says councils should not place unreasonable restrictions on the use of a direct payment, as long as it is being used to meet eligible care and support needs.
69. The Regulations say that when annually reviewing direct payments, councils must involve the adult and any carer the adult has.
70. The social worker’s email implied that the Council was reviewing Mr X’s direct payments in its review of how it would meet his care needs. I have seen no evidence that the Council did review Mr X’s direct payments when he came home from the nursing home placement.
71. Further, if the Council had reviewed Mr X’s direct payments at that time, it should have included Mr and Mrs X in its review. It would be fault if the Council had reviewed Mr X's direct payments and not included Mr and Mrs X in the review.
72. The Council’s evidence shows an internal Council discussion in early November (before Mr X came home) about whether Mrs X’s care provision was ‘necessary’. A month later, the Council decided – in its December reassessment – that it was necessary.
73. When Mr X returned home, Mrs X was well enough to return to work as Mr X’s carer. I can see no good reason for the Council’s decision to stop allowing Mrs X to be paid through direct payments for providing some of Mr X’s care at home. I find the Council’s decision not to reinstate Mrs X seemingly failed to take account of the historic context of her acting as Mr X’s carer.
74. I find the Council’s decision placed unreasonable restrictions on Mr X’s use of direct payments. Therefore, I find the Council’s decision was not in line with the guidance. This is fault.
75. I find this fault caused Mr and Mrs X unnecessary distress and uncertainty, which is injustice.

Delay reinstating direct payments

76. Mrs X complains that the Council delayed reinstating her payments for providing Mr X’s care through his direct payments (part d of the complaint). She also complains that the Council delayed paying her what she was entitled to when Mr X was in the nursing home. She says the Council paid the amount owed but not until April 2022 after she threatened legal action.
77. Mrs X called the Council a week after Mr X returned home, asking to discuss direct payments. I have found no evidence that the Council responded.
78. The Council acknowledges that there was a delay reinstating Mrs X’s payments. It says this was due to a breakdown in communication between the social worker and Mrs X regarding the need for Mrs X to invoice the agency managing the direct payment account.
79. This is fault. The Council should have given accurate and specific advice to Mrs X about this, particularly given that the evidence shows the social worker knew about the financial hardship it was causing them.
80. I find this fault caused Mr and Mrs X injustice in that it caused unnecessary distress and uncertainty.
81. I also find the Council at fault for delaying paying Mrs X what she was entitled to. In mid-December, an internal Council email said the amount of money (presumably the amount Mrs X was entitled to) was yet to be signed off as the cost calculator had been filled in with incorrect figures.
82. Mrs X was entitled to certain payments when Mr X was in the nursing home in November 2021. The Council did not make this payment until April 2022 after Mrs X threatened legal action.
83. This is delay is fault. This fault caused Mrs X injustice in that it caused unnecessary distress and uncertainty.

Quality of care provision

84. Mrs X complains that the Care Provider, Passionate About Care Ltd, provided poor quality care that did not meet the terms of the care package (part e of the complaint). Mrs X complains that carers did not complete all the tasks needed to meet Mr X’s needs. She also complains the carers failed to attend on time and did not stay for their contracted hours.
85. I have seen the care logs. It is difficult to accurately say on how many occasions carers were late or did not stay for their contracted hours because sometimes carers forgot to check into the electronic system to say when they had arrived or left. Also, sometimes carers had trouble using their ‘scanners’.
86. Mr X should have received two and a half hours of care provision every day: one hour in the morning; 30 minutes at lunch; and one hour in the evening. The Care Provider provided Mr X’s care over 63 days (and one morning).
87. Two and a half hours per day multiplied by the 63 days (and including the one extra morning) equals 158 hours.
88. The care logs show that Mr X received just over 78 hours of care, which is half the amount of hours’ care Mr X should have received. This is fault. Mr X has significant care and support needs. I do not consider that his considerable needs could be met during every care visit when some visits were under 10 minutes. I have counted 18 visits of under 10 minutes.
89. I also find that carers were late. The Care Provider says it allows 30 minutes either side of the agreed visit time. Taking account of this 30-minute flexibility, I find that carers were late eight times. These range from 10 minutes late to 50 minutes late. The care logs also show no evidence of a care call on one occasion. This is fault.
90. I have also considered the handover notes between staff. These are generally very sparse. The notes often do not specify what care, if any, was actually given or what tasks, if any, were completed. There are no notes at all for a lot of visits.
91. During the period the Care Provider was providing Mr X’s care, he was meant to have 189 care visits. There are 147 visits where no care notes were logged at all. This means there were only 42 visits where the carer made notes, recording what care was given and what tasks were completed.
92. I also find 32 days where there were no care notes at all, some of them in blocks of up to four days at a time.
93. As I have said above, Regulation 17 says records about a person’s care and treatment must be kept and be fit for purpose. To be fit for purpose, records must be “complete, legible, indelible, accurate and up to date”. I do not find the Care Provider’s records of care visits were accurate or complete. This is fault.
94. As I have said above, if there is a conflict of evidence (or, as in this case, a lack of evidence), we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
95. Without evidence to show that all, or even some, of the care tasks were completed for each visit, I cannot find that Mr X’s care needs were met. I cannot properly establish that care was provided because of poor record keeping. This is fault.
96. I find this fault caused Mr X injustice in that it caused unnecessary, avoidable distress, undue significant stress, and frustration.
97. Mrs X says the poor quality of care directly resulted in Mr X’s hospitalisation, which was avoidable. I am not able to make a firm finding on this point because of the poor-quality care logs and the fact that Mr X had several hospital admissions during the course of these events.
98. The Council says it became involved in working with the Care Provider in August 2021 (three months before the Care Provider began providing Mr X’s care) after earlier complaints about poor quality care and missed care visits.
99. The Council says the Care Quality Commission (CQC) rated the Care Provider inadequate in September 2021. In August 2022, the CQC rated the Care Provider as requiring improvement. The Council says the Care Provider has provided an action plan to the Council. The Council says it will keep this under review and provide support as appropriate.

Failure to address a part of the complaint

100. Mrs X complains that the Council failed to address the part of her complaint about the poor quality of care (part f of the complaint).
101. The Council accepts that it did not respond to this part of Mrs X’s complaint.
102. This is fault, and the fault caused Mrs X injustice in that it caused uncertainty.

Failure to respond to the complaint

103. Mrs X complains that the Council failed to respond to her complaint until she threatened legal action (part g of the complaint).
104. Mrs X complained at the end of January 2022. The Council should have responded within 20 working days, according to its complaints procedure. The Council actually responded in April: six weeks late, and very shortly after Mrs X threatened legal action. This is fault.
105. The Council says the delay was due to significant operational pressures.
106. Mrs X complains about the Council’s general lack of response to their concerns about the management of Mr X’s care. Mrs X says this general lack of response added to their feelings of desperation at the time. While I have found at least one occasion where the Council failed to respond to Mrs X, I have also found instances where Mrs X said the Council failed to respond but she provided evidence which showed the Council responded promptly.
107. Mrs X felt she had no choice but to threaten legal action when the Council failed to respond to her complaint. The Ombudsman does not expect a complainant to have to resort to threatening legal action to get a response to a complaint.
108. I find this fault caused Mrs X injustice because of the time and trouble she spent, and the uncertainty it caused. I am satisfied the Council has apologised for this injustice.

Back to top

Agreed action

109. 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 find fault with the service of the Care Provider, I have made recommendations to the Council.
110. Within four weeks of this decision, the Council has agreed to apologise in writing to Mr and Mrs X for:
• the unnecessary distress and uncertainty caused by the delays (parts c and d of the complaint);
• the unnecessary, avoidable distress and undue significant stress and frustration caused (part e of the complaint); and,
• the uncertainty caused (part f).
111. Within four weeks of this decision, the Council has agreed to make a payment to Mr and Mrs X of £650. This is made up as follows:
• To remedy the unnecessary distress and uncertainty (parts c and d of the complaint), I recommend a payment of £200.
• To remedy the unnecessary, avoidable distress and undue significant stress and frustration caused to Mr X (part e of the complaint), I recommend a payment of £300.
• To remedy Mrs X’s time and trouble, and the uncertainty caused (part g of the complaint), I recommend a payment of £150.
112. I have considered the Ombudsman’s published guidance on remedies. I have taken into consideration, where appropriate, the lengths of time involved, the disproportionate effect on Mr and Mrs X given their circumstances at the time, Mr X’s vulnerability, and his significant care needs.
113. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

114. I have completed my investigation. I uphold parts c, d, e, f, and g of the complaint because I find fault causing injustice. The Council has agreed to take action to remedy to injustice caused.
115. I do not uphold parts a or b of the complaint. This is because there is no fault.

Back to top

Investigator's decision on behalf of the Ombudsman