Summary: Mrs X complained the Council failed to arrange emergency home care for her sister Mrs Y, leaving her without care. She also complained the Council did not ensure Mrs Y’s carers gave her appropriate support to eat, and dismissed her concerns. There was no fault in the Council’s response to Mrs Y’s care ceasing or its response to Mrs X’s complaint.

The complaint

1. Mrs X complains the Council failed to arrange adequate emergency home care for her sister Mrs Y when the agency providing her care stopped support in October 2018. She says the Council left Mrs Y without care.
2. Mrs X also complains the Council has not ensured Mrs Y’s carers appropriately support her to eat.
3. Mrs X says the Council has dismissed her concerns about these matters and that a social worker refused to call her back about them after a telephone call was terminated.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. 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

7. I spoke to Mrs X about the complaint and considered evidence she provided.
8. I asked the Council questions and considered its records.
9. I gave the Council and Mrs X the opportunity to comment on my draft decision.

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What I found

Care and support plans

10. The Care Act 2014 gives councils responsibility to provide a care and support plan for someone assessed as having eligible care needs. This should consider what the person can do by themselves or with existing support and what care and support may be available.
11. Councils should review care and support plans at least every 12 months and sooner if requested to do so. The person whose needs are being met should have a personal budget enough to meet their care and support needs. This can be administered by the council through a managed account, by a managed account held by someone else or through direct payments so the person can arrange their own care.

Council restrictions on contact

12. Councils can introduce and use policies to manage contact with individuals where they decide their contact is unreasonable. Councils should ensure any restrictions are proportionate to the circumstances and review restrictions regularly to ensure they are still appropriate.

Background to the complaint

13. Mrs Y has a range of care and support needs. She lives alone, supported by her ex-husband with some tasks. Her sister, Mrs X also supports her. The Council’s care and support plan explain what help she needs to keep living at home including a range of daily household and personal care tasks including preparing meals. The Council assessed Mrs Y as being able to feed herself with help from carers from time to time when necessary. Mrs X told me Mrs Y had been helped with feeding for several years. The Council considered Mrs X had capacity to make decisions about her care and support needs.
14. During 2017 the Council decided to put in place restrictions on contact from Mrs Y because of the amount and type of contact from her to council staff and care agencies that had provided her with care. It wrote to Mrs Y and explained that certain language and behaviour was not appropriate. It identified points of contact with the Council and explained if Mrs Y was abusive, staff would not engage and would end the call. It said Mrs Y should limit contact to one call per contact person per day.
15. The Council reviewed the contact plan after six months and wrote to tell Mrs Y the restrictions would remain in place. The Council decided Mrs Y had continued to leave multiple messages, some containing inappropriate abusive, derogatory and demeaning language. It reconfirmed contact arrangements and restrictions. It kept this under review.
16. During 2018 the Council carried out reviews of Mrs Y’s care and support plan. The plan said carers should assist and prepare meals as appropriate but that Mrs Y could feed herself. She should be helped if necessary to do so.
17. In June 2018, the Council carried out a risk evaluation for Mrs Y’s care. That was to assist care providers in deciding whether they could provide her with appropriate care. It said Mrs Y was likely to verbally abuse staff, and they should therefore be trained to stay safe, and if necessary leave the property, and tell management. It said Mrs Y had been told staff would not tolerate abusive behaviour. The plan said that if a care agency decided to stop providing care to Mrs Y, the Council would offer her emergency (out of home) respite and try to find alternative providers.
18. During September, Mrs X raised concerns with the Council about the adequacy of support for her sister’s feeding. The Council checked with the care provider. It confirmed carers observed Mrs Y was able to feed herself. Mrs X remained concerned the carers were not helping Mrs Y to eat enough. Later that month the care provider complained to the Council about Mrs Y constantly calling, using inappropriate language, leaving messages in and out of work hours.
19. In early October Mrs X called the social worker who told her the care agency was concerned it may have to stop providing Mrs Y with care because of her behaviour towards carers. The social worker explained that none of the agencies the Council had contacted were prepared or able to provide Mrs Y with care.
20. The social worker explained that the options, in the event this package ended, were Mrs Y could be given direct payments to buy her own carers, or the Council would arrange residential care for her. They discussed Mrs Y’s eating arrangements. The social worker said that assessments and care plans had found Mrs Y could feed herself, with help from carers if necessary.
21. Mrs X continued to raise concerns about Mrs Y not eating well and her needing more help to do so. The Council remained satisfied, based on feedback from carers, that the care plan’s advice to support with eating when necessary was appropriate. The social worker agreed to tell carers the importance of helping Mrs Y to eat when necessary. After Mrs X spoke with Mrs Y’s GP, concerned she was not being helped to eat, the Council contacted Mrs Y’s the doctor to check on the situation. The GP replied to say carers should routinely feed Mrs Y for four weeks, then review it to help her before a major operation. The Council informed the care agency who said they had concerns, given Mrs Y’s behaviour and sometimes refusal to accept help eating. It could not force her to eat.
22. During October Mrs Y’s carers sent the Council statements about her behaviour toward them. The care provider said it had serious concerns about Mrs Y’s behaviour including allegations of racist comments by her. It was having problems finding any carers wiling to visit Mrs Y. The Council spoke to Mrs X who asked for evidence of specific comments made by Mrs Y. The Council did not respond with detailed evidence, and instead gave her a summary.
23. In mid October on a Friday, the care agency told the Council it was not prepared to continue providing Mrs Y with care because she was racially abusive to a carer that morning. The social worker asked for records and was satisfied the evidence showed Mrs Y had shouted at carers and had used inappropriate, racially abusive language.
24. The Council said the social worker spoke to Mrs Y and offered to arrange respite care but she had refused.
25. The Council’s case records show it made a telephone call to Mrs X about what had happened, explaining it could offer emergency respite care (though Mrs Y had refused this) and that it would continue to look for another care agency. The call cut off. The case record show that was because of a loss of phone signal.
26. Email evidence shows the social worker contacted the out of hours team and Mrs X’s GP to alert them that no care was in place that weekend. Both emails refer to the Council having offered emergency respite to Mrs Y and that Mrs Y had refused the offer, and had capacity to make this decision. It also informed the police as Mrs Y had contacted them before in a similar situation.
27. The social worker consulted a manager. They risk-assessed the situation together. They decided Mrs Y could deal with many of her issues, had access to her phone for emergency services, had contact and visits from her ex-husband and was in regular telephone contact with Mrs X. In those circumstances, the Council decided the situation over the weekend was acceptable. It would continue to offer emergency respite whilst trying to find a longer term solution. They decided that as Mrs Y had refused respite and had capacity to make decisions about her care and support, they could not enforce emergency respite on her. Mrs X strongly disagrees that this was an acceptable situation because Mrs Y could not cope with important tasks such as emptying her commode. She also points out she was several hundred miles away that weekend and Mrs Y’s ex husband was also away.
28. A note also shows the Council contacted 13 care agencies about caring for Mrs Y. Of these six refused because of Mrs Y’s past contact with their staff, two were unable to provide the type of support Mrs Y needed and four had no capacity to do so.
29. The next day (Saturday) Mrs X contacted the out of hours team to try to find care. They arranged for emergency care from an enablement at home team for the weekend, starting that afternoon. The team later told the Council that having, by then, considered Mrs Y’s care notes and behaviour they would not be able to provide her with a service in future. Mrs X is extremely unhappy with this decision which she considers was discriminatory, given Mrs Y’s mental health.
30. After the weekend, the social worker called Mrs X about the Council’s work to find a new care provider. Mrs X said she was intending to complain about what had happened. The phone line cut out. Call records show she called the Council back. She said she left a voice mail message. She then emailed the social worker to say the phone line had cut out and the situation needed urgently resolving. She said she was angry Mrs Y had been left without care. The Council later emailed Mrs X to say they had found an agency prepared to provide care. Mrs X replied to confirm Mrs Y would accept this.

Mrs X’s complaint

31. Mrs X complained to the Council. She asked for proof Mrs Y had used racist language. Shortly afterwards the Council transferred Mrs Y’s case to its client support service as it decided the care package was stable.
32. The Council replied to Mrs X’s complaint. It referred to the previous problems experienced by Mrs Y’s carers. It explained her language and behaviour was unacceptable and that it had already put in place a contact plan because of it. It would not release the carer’s statements to Mrs X because it was information from a third party.
33. It said Mrs Y’s care plan said that Mrs Y could feed herself but that carers would help if needed. They could not force her to eat. Mrs X has never suggested carers should force Mrs Y to eat but that they help her at each mealtime.
34. Mrs X complained to the Ombudsman. She said the Council had failed to respond to an emergency care need or feed Mrs Y despite her health deteriorating. She said Mrs Y had refused respite care because she was afraid of going into a home. She wanted reassurance the Council would ensure emergency care in future. Mrs X told me the Council should have organised emergency home care because Mrs Y is incapable of caring for herself.
35. The Council’s response to my enquiries said Mrs Y has a history of abusive behaviour towards its staff and those of care agencies. In those circumstances, providing consistent care from a single provider had been difficult. She had left 60 voicemail messages for one provider, many that were inappropriate. Mrs X has not disputed or condoned Mrs Y’s behaviour but was asking for evidence of it.
36. It said when care breaks down, it always offers her respite care which Mrs Y had always declined. Sometimes Mrs Y’s ex-husband or others would support for a couple of days before it found an alternative provider. Mrs Y was able to move around her house, use her commode and get into and out of bed independently. Mrs X told me neither Mrs Y’s ex-husband or her have supported Mrs Y with key tasks such as cooking, feeding or emptying commodes.
37. It said therefore there had been gaps in Mrs Y’s care package but it had given her options for respite or direct payment.

My findings

Arrangement of emergency care

38. The Council decided Mrs Y had capacity to make decisions about her care and support. When the home care arrangement broke down in October 2018, Mrs Y refused emergency respite care.
39. As Mrs Y had refused emergency respite care the Council acted appropriately. It could not force a particular care arrangement on Mrs Y. It carried out a risk assessment and decided that, whilst not ideal Mrs Y had sufficient protective factors in place over the weekend. Mrs X strongly disagrees with this risk assessment, partly because she and Mr Y’s ex-husband were not available that weekend to assist Mrs X. The Council did not wrongly assume or refer to Mrs X or the ex-husband as being able to visit, but instead referred to the potential for telephone contact. Because the Council considered relevant factors, including Mrs X’s care plan before making the decision there is no administrative fault in how it was made.
40. The Council had no domiciliary care agencies prepared or able to provide care that weekend. The agency Mrs X found for the weekend later said it would not continue to provide her with care. There was no fault in the Council’s response.

Support for eating

41. The Council carried out care needs assessments and prepared a Care and Support Plan. This said Mrs Y needed help with eating from time to time. When Mrs X raised concerns, the Council checked with Mrs Y’s GP who said she should be fed for several weeks.
42. Care agencies recorded Mrs Y refusing help with eating. Because Mrs Y was found to have capacity to make decisions about care and support, she could not be forced to eat. Mrs X felt that not enough effort was made to encourage her. The available evidence cannot show what actually happened here. Given the reports of Mrs Y’s behaviour it is likely she was, on occasion, reluctant to eat. There was no fault in the Council’s actions to assess Mrs Y’s care needs and to work with her GP and care providers. It should continue to keep Mrs Y’s care needs under review through reviews of her care and support plan.

Complaint handling

43. Mrs X is sure the Council failed to respond to her properly in October when she called about the situation concerning Mrs Y’s loss of care. She has provided call records to show she tried calling the Council without reply. The social worker emailed back to confirm an agency was available. It would have been helpful to have called back as Mrs X requested but I cannot say the decision to email, confirming action taken was administrative fault.
44. After the weekend, the Council responded appropriately to the situation. It tried to find carers prepared to work with Mrs Y. Given her history this proved difficult but it did identify an agency, although this arrangement later broke down.
45. Mrs X demanded specific evidence from the Council to back up the allegations Mrs Y made racist comments. The Council shared the general nature of the carer’s statements with Mrs X. It did not share the statements themselves. It appropriately advised Mrs X about the option to make a Freedom of Information request.
46. I have read the statements and am satisfied the Council’s summary of their content was accurate. The Council had put in place appropriate restrictions on contact with Mrs Y and reviewed them according to its policy. The statements record behaviours that did not comply with the restrictions about behaviour and language. There was no fault in how the Council handled this matter.

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Final decision

47. I have completed my investigation. I have not found fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman