Summary: Mrs Y complained the Council delayed in providing the care and support her terminally ill husband needed. She also says the Council failed to ensure he had uninterrupted access to bathroom facilities following a mistake with the installation of a Council funded stairlift. We find there was delay by the Council in assessing Mr Y. We also find that errors with the stairlift installation caused avoidable distress. The Council has agreed to apologise and make a symbolic payment of £500 for the distress caused.

The complaint

1. Complaint one: Mrs Y complains the Council failed to provide appropriate support for her husband, Mr Y, who had longstanding care and support needs. When support was put in place, Mrs Y says it was not suitable and did not meet his needs.
2. Complaint two: Mrs Y also complains the Council has failed to provide support to her as a carer and has not provided the adaptations needed to make their home accessible for Mr Y.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by their personal representative (if they have one), or someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
5. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. 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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What I have and have not investigated

7. I have not investigated any complaints Mrs Y has about the standard of care provided to Mr Y by care providers commissioned through direct payments. This investigation is about the actions of the Council under Part 3 of the Local Government Act, rather the actions of a care provider under Part 3a.
8. Mrs Y’s complaint dates to 2017 when she says the Council failed to assess Mr Y. I have not investigated what happened between 2017 and 2021 because Mrs Y has not presented any good reason why she could not complain at the time. However, I have exercised the Ombudsman’s discretion to investigate matters from 2021. This is because Mrs Y had a period of significant ill health, and I accept that it would have been difficult for her to complain at the time.

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How I considered this complaint

9. I considered evidence provided by Mrs Y and the Council as well as relevant law, policy and guidance.
10. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Summary of key events relevant to the complaint

11. In March 2021 a Community Psychiatric Nurse (CPN) made a referral to the Council for an urgent assessment of Mr Y’s care and support needs and a carer’s assessment for Mrs Y. The referral explained Mr Y’s significant and life-limiting health problems and the strain and carer burnout experienced by Mrs Y.
12. The CPN described it as “… complex situation. I have on numerous occasions attempted to encourage and implement an assessment of need, but they [Mr and Mrs Y] have declined”.
13. The following day, records show the Council discussed the referral and tried to call Mrs Y but noted “phone goes dead as soon as it rings”. The Council also left a voicemail for the CPN requesting a callback.
14. The records provided by the Council do not show any further contact from Mrs Y or the CPN to arrange an assessment between 2021 and 2023.
15. Mrs Y contacted the Council in March 2023 to say that she was due to have an operation, and she needed the Council to arrange support for Mr Y in her upcoming absence.
16. The records show the Council called Mrs Y the following day to arrange a carer’s assessment, but Mrs Y said she did not want one.
17. The Council carried out a Care Act assessment for Mr Y on 31 May 2023. Mrs Y expressed her frustration with the timescales and said she had needed to re-schedule her surgery until such time Mr Y has support in place. The assessment noted that Mr and Mrs Y: “expressed an interest in direct payments so they could have continuity”.
18. The Council decided that Mr Y had eligible needs which could be met with a care package comprising of three single-handed daily calls:
• Morning call for 30 minutes to help with personal care, breakfast and medication.
• Lunch call for 30 minutes to support with lunch and overseeing fluid intake.
• Evening call for 30 minutes to support with meal preparation and medication.
19. Mrs Y signed a direct payment agreement in July 2023 for £177.55 to be paid every week from 31 May 2023.
20. Mrs Y contacted the Council on 10 July 2023 to report that she had faced difficulty when trying to find a care agency with availability. The Council referred Mrs Y to one of its ‘village agents’ to support her with finding a provider.
21. The Council completed a review in September 2023 following Mrs Y’s discharge from hospital and the subsequent change in circumstances. Whilst Mr Y did not need any personal care, the Council suggested a ‘sitting service’ whereby a carer could sit with Mr Y for three hours each week to relieve pressure from Mrs Y.
22. Mrs Y said she continued to experience difficulties finding a suitable provider. She discussed the possibility of moving to a Council commissioned service. This would involve the Council finding and allocating a care provider to meet Mr Y’s assessed needs within the agreed personal budget.
23. After considering her options, Mrs Y told the Council she would like to remain on direct payments but to employ a Personal Assistant (PA) to help Mr Y in addition to the sitting service. The Council agreed and increased the personal budget to £228 per week for 10.5 hour of PA care and three hours of sitting.
24. The Occupational Therapy service (OT) received a referral in October 2023 to assess Mr Y’s living arrangements due to difficulties he experienced when transferring upstairs. On 9 October the OT placed Mr Y onto a waiting list for a stairlift assessment.
25. Around this time Mrs Y asked about funding for a downstairs toilet. She said the portable toilet currently in use was not fit for purpose because it leaked.
26. On 3 January 2024 the NHS also referred Mr Y for a stairlift.
27. The OT assessed Mr Y at home on 19 January 2024. Mrs Y said Mr Y’s mobility continued to decline and he struggled to get upstairs safely. Mrs Y converted the second bedroom into a lounge so Mr Y could live upstairs while waiting for the stairlift to be installed. The Council agreed to explore the option of a ‘toilet pod’ but said it would need to consider options for drainage.
28. The OT visited again with a representative from a toilet pod company. The contractor said a pod was feasible within the ‘lean-to’ area of Mrs Y’s home. Notes show the OT explained the DFG process. The OT agreed the pod was feasible and made a recommendation for its installation.
29. In February Mrs Y contacted the Council to express ongoing difficulties with finding care providers for Mr Y. The Council completed a review of Mr Y’s care needs on 15 February 2024 and recommended a change from direct payments to a commissioned service.
30. The following day the Council identified a care provider with availability to deliver Mr Y’s package of care. Records show the Council emailed the care provider to confirm that, whilst Mr Y had permanent oxygen therapy, Mrs Y handled this alongside all other medication needs.
31. Records show the commissioned care provider was due to deliver Mr Y’s care package from 26 February 2024. However, the care provider did not commence the care calls and Mrs Y reported this to the Council. The Council contacted the care provider who said that its staff could not start the calls until they had all received refresher training on oxygen use.
32. Mrs Y also reported concerns about the loss of a notebook used by the care provider which contained personal details. A manager from the care provider emailed Mrs Y to apologise and inform her of the “full investigation” it intended to complete.
33. Following the problems with the commissioned care provider, Mrs Y contacted the Council on 2 April 2024. The records show the Council agreed to source an alternative provider, but Mrs Y declined. The Council noted it would offer again in the next few weeks.
34. Mrs Y then asked for the direct payments to recommence. On 25 April 2024 the Council put Mr Y’s case to its ‘peer forum’ for discussion. Notes of that discussion say: “Given the carer breakdown risk, I am also happy for the sitting service to be increased for an additional 1 hour per week, a total of 4 hours to offer carer support and to ensure that [Mr Y] is supported…” and: “There is a complaint against the previous commissioned provider, raised by [Mrs Y]. This care provider never started, and [Mrs Y] would not agree, at the time, for another provider to be sourced”
35. In the meantime, the Council identified another possible care provider to commission from 30 April 2024. Mrs Y declined and said the proposed service was not suitable.
36. The Council updated Mr Y’s support plan to include direct payments for 9.25 hours per week to start again from 8 May 2024. The Council also completed a carer’s assessment on 23 May 2024 and concluded that: “[Mrs Y] needs carer support. This support has been included in [Mr Y’s] support plan to empower both [names removed] to employ a carer to sit with [Mr Y] while [Mrs Y] feels able to leave the home and have some time away”.
37. On 28 May 2024 Mrs Y emailed the OT to say the planned toilet pod was no longer needed as Mr Y mostly lived upstairs due to his declining health. Mrs Y also reported some problems with access to their bathroom following the recent stairlift installation. The OT apologised for the problems with the bathroom access and agreed to request the remedial work to be funded under a minor works grant.
38. The Council considered a request for extra direct payments but decided that: “[Mr Y] does not have a cognitive impairment, he understands the risks of falling if he gets up to walk around while his wife is out and there is a lifeline with falls detector in place”.
39. The OT visited Mrs Y again on 10 June 2024. Mrs Y again relayed the problems with the stairlift. They discussed various options, and the OT suggested the stairlift track probably needed to be changed.
40. Shortly after, Mrs Y emailed the Council to say she had found a care provider with availability to support Mr Y at the agreed rate of direct payments. The Council said it would review the direct payments in four weeks’ time.
41. On 27 June 2024 the OT visited Mrs Y who reiterated that she no longer needed or wanted a downstairs toilet pod due to Mr Y spending most of his time upstairs.
42. The Council completed the four-week direct payment review on 9 July 2024 and noted the care was working well. The Council agreed to backdate the direct payments to 17 June when the care started.
43. A District Nuse called the Council on 24 July 2024 to relay that Mr Y continued to have problems accessing his bathroom due to the restrictions caused by the stairlift. Mrs Y expressed to the Council that they could not remain in the house whilst remedial works took place. There are no records to show how the council responded to that contact.
44. The Council’s records include notes of a call with Mrs Y on 16 October 2024. During the call she explained that neither the commissioned services nor the Direct Payments worked for Mr Y. Mrs Y expressed that Mr Y does not like to receive personal care from anyone other than her. Mrs Y said her husband needed a reassessment.
45. The Council arranged an assessment which took place on 5 December 2024. Following this, the Council decided there were no changes to Mr Y’s long-term support. Mrs Y expressed a preference for a particular care agency which she said was suitable and met Mr Y’s needs. The agency charged a higher hourly rate than the one agreed in Mr Y’s support plan.
46. On 11 December 2024 the Council considered and agreed to Mrs Y’s request for increased Direct Payments, “… with the caveat that we will need to implement support due to current carer pressures, but with the aim that we have responsibilities to continue to source best valued care and support”.
47. Mrs Y told the Council the new agency agreed to start in the new year. However, following a decline in Mr Y’s health, the NHS agreed to provide Continuing Health Care (CHC) in February 2025 until Mr Y shortly after.

Complaint one

48. Mrs Y complained the Council did not act with sufficient urgency when she asked for an assessment of Mr Y’s needs. The records show the Council tried to contact Mrs Y in 2021 to arrange an assessment, but it could not reach her. The records do not show any attempts by Mrs Y to contact the Council again until 2023.
49. In March 2023 Mrs Y told the Council that Mr Y needed urgent support due to her own ill-health and an upcoming hospital admission. The records show the Council logged Mrs Y’s request as “urgent”. Despite this, the subsequent assessment happened 12 weeks later. Mrs Y said she needed to re-arrange her operation because of this delay. While the Care Act does not stipulate timescales for assessments, the statutory guidance says assessments must be, "carried out over an appropriate and reasonable timescale," and the timescales must be “appropriate to the urgency of the situation.”
50. Furthermore, if there is an urgent need, the law says councils can provide interim or emergency services before an assessment is complete (Care Act, Section 19(3)). This ensures people are not left at risk while waiting for formal processes.
51. There is no evidence to show the Council considered the possibility of arranging interim support for Mr Y pending a formal assessment of his eligible needs. In my view, this was necessary due to the urgent and time-limited nature of Mr and Mrs Y’s circumstances. The subsequent assessment happened 12 weeks after the request. I find the Council did not act with the agreed urgency and this is fault. As a result, the funding which the Council agreed on 31 May 2023 was in place later than it would have otherwise been, were it not for that fault. Whilst Mr Y has since died, and we cannot therefore recommend a symbolic remedy for him, it is my view that the delay caused avoidable and significant distress for Mrs Y during a period of significant difficulty and ill-health. The Council will apologise and make a symbolic payment.
52. Mrs Y complained the care and support arranged for Mr Y was not suitable and did not meet his assessed needs. For the reasons explained in paragraph five of this decision statement, we have not investigated Mrs Y’s complaints about the quality of any care funded by Direct Payments. This is because the Council did not commission that care and so cannot be held responsible for any complaints about the standard of that care.
53. During the periods when the Council was responsible for commissioning Mr Y’s care, my view is that there was some fault. The first care provider accepted the care package but later stated that its staff required additional training to meet Mr Y’s oxygen therapy needs. This was despite the Council having previously told the provider that staff would not be expected to assist with oxygen therapy. Additionally, the provider acknowledged misplacing a notebook containing some personal details of Mr and Mrs Y and issued an apology. In my view, this apology is a proportionate response to the inconvenience caused by the provider’s shortcomings.
54. There were times when Mrs Y expressed frustration with the direct payment process and the availability of care providers in the local area. The records show the Council proposed changing Mr Y’s care package to a commissioned service at times when Mrs Y said she could not find care providers. The Council also referred Mrs Y to an agent to help her with finding an appropriate provider. Therefore, I do not uphold this part of Mrs Y’s complaint.

Complaint two

55. The Council funded Mr Y’s stairlift through a non-means-tested discretionary loan as part of its 'Stairlift Fast Track Loan Scheme'. As the funding body, the Council was responsible for ensuring that the completed adaptations were suitable and met Mr Y’s needs. Photographs of the stairlift track clearly show it obstructed access to the bathroom door. Once the Council became aware of this, records show the OT contacted Mrs Y on several occasions between May and July 2024 to address the issue.
56. We asked the Council to provide evidence of the steps it took to ensure that Mr Y—a terminally ill person who relied on walking aids—had access to toilet and bathing facilities when his access was restricted following installation of the stairlift. The Council has confirmed it cannot locate any records in relation to any such discussions. This is a fault.
57. Therefore, we cannot determine whether the Council considered the need for additional support or equipment when the stairlift remained in situ and while the remedial works were ongoing. The Council now says it offered to provide a slimline walker and commode during the affected period. However, irrespective of this, we find the fault with the stairlift restricted Mr Y’s full access to his bathroom. This error was avoidable and caused distress and inconvenience. The Council will apologise and make a symbolic payment to Mrs Y. The payment is for Mrs Y because our guidance says we will not normally recommend a symbolic remedy for someone who has died in the same way as we might for someone who is still living.

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Action

58. Within four weeks of our final decision, the Council has agreed to:
• Apologise to Mrs Y for the fault we have identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay £500 to Mrs Y. This is a symbolic payment in recognition of the distress caused by fault.
59. The Council will provide us with evidence it has complied with the above actions.

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Decision

60. I find fault causing injustice for the reasons explained in this statement. The remedial actions listed above will provide a suitable remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman