Surrey County Council (19 005 901)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 09 Dec 2019

The Ombudsman's final decision:

Summary: We uphold a complaint about failures in Mr D’s home care. The Council failed to ensure Mr D’s care was delivered in line with his eligible needs. Care was not in line with section 18 of the Care Act, which was fault causing avoidable distress. To remedy the injustice, the Council will apologise and pay Mr D £1000.

The complaint

  1. Mr A complains for Mr D about Field Lane (the Care Provider), an agency which provided Mr D’s care and support. Surrey County Council (the Council) arranged and funded Mr D’s care. Mr A complains:
    • Support hours were not delivered in line with the agreed care and support plan, including carers failing to attend and not staying for the contracted hours
    • One carer was emotionally/psychologically abusive
    • The Care Provider ended the service after he complained
    • The complaint responses were inadequate
    • Two staff at the Care Provider prevented Mr D from having an advocate at a review meeting.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. 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)

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How I considered this complaint

  1. I considered:
    • The Care Provider’s response to Mr A’s complaint
    • The complaint to us
    • Documents described in the next section of this statement
  2. The parties received a draft of this statement and I took comments into account.

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What I found

Relevant law and guidance

  1. If a council decides a person needs support, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether they meet any eligibility criteria and sets out how the council is going to meet them. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
  2. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs. (Care Act 2014, section 26)
  3. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
  4. The Care Act explains the different ways a council can meet eligible needs by giving examples of services that may be provided:
    • Accommodation in a care home or other premises
    • Care and support at home
    • Counselling and social work
    • Information advice and advocacy

(Care Act 2014, section 8)

  1. Statutory Guidance explains a council should review a care and support plan at least every year (Care and Support Statutory Guidance, Paragraph 13.32)
  2. The government’s document Valuing People, set out a person-centred approach to working with people with learning disabilities. The aim was to give this group more choice and control and to promote their independence. It is an approach to care planning that starts with the person. Services working with people with a learning disability are encourage to develop person centred plans with them.

What happened

  1. Mr D has learning disabilities and Mr A acts as his advocate. Mr D used to live with his partner. That relationship ended in 2017 and he moved into a rented flat in a different area. Although the Council could have transferred Mr D’s care to the council in that area, it did not. Instead, it arranged and funded Mr D’s care from October 2017 until April 2019 when the other council took over.
  2. The care and support plan for Mr D completed in October 2017 set out his eligible needs and outcomes and the support he required. It had Mr D’s personal budget. Mr D wanted the Council to arrange his care and it commissioned the Care Provider for 25 hours of support a week to help Mr D with personal care, assistance around the house and accessing the community.
  3. The person-centred plan of October 2017 for Mr D gave details of the care and support he needed. It described his interests, likes and preferences. The document was incomplete and was not updated and although set out Mr D’s needs, it did not set out goals or objectives; for the most part those columns were blank. And it did not set out how the Care Provider was going to support Mr D to access the community; the section with a daily timetable was blank.
  4. The Care Provider was contracted to support Mr D morning and evening on Monday to Friday and for two longer blocks of time on a Saturday and Sunday.
  5. In June 2018, there was a review of the care and support plan. Changes were to be made to it to include details of the groups and clubs Mr D wanted to attend. Mr A was added as Mr D’s advocate and Mr D was going to help Mr A identify groups and clubs. The social worker noted there was no reason to doubt Mr D’s capacity to say he wanted Mr A to be his advocate.
  6. In September 2018, the Care Provider asked the Council to review Mr D’s care and support plan as he only wanted two specific members of staff to support him.
  7. At the end of September, the Care Provider emailed Mr A following a meeting. Mr A gave the names of five staff Mr D was willing to have as staff to support him. Mr A noted there were times Mr D did not want to have support but he would say through the door that he was ok.
  8. In the middle of October, the Care Provider raised concerns that Mr D was not answering his door. It asked again for a review.
  9. At the start of November, the Care Provider said Mr D would only accept three workers and so it was having problems covering the rota.
  10. Also in November, there was a further review of the care and support plan. This took place without Mr A and with a member of staff from the Care Provider and Mr D. The social worker noted she had asked the Care Provider to arrange the review with Mr D, but on the day, when they arrived at Mr D’s flat, he was not aware of the review and was upset. Mr D spoke to Mr A on the phone. The social worker apologised to Mr D. It appears Mr D was ok with the review going ahead without Mr A. They discussed how Mr D was feeling about his care arrangements and it was noted the Care Provider only had 3 or 4 staff available to cover Mr D’s area. The outcome of the review was there would be changes to the care and support plan but to liaise with Mr A over these first.
  11. In January 2019, the Care Provider’s manager emailed the social worker to say it had received a formal complaint from Mr A about Mr D’s care and would be responding under its complaints procedure.
  12. There continued to be frequent problems with covering Mr D’s rota in January, February and March 2019. The manager of the Care Provider suggested they may give notice at the end of January.
  13. In February, there was a further review of the care and support plan with the social worker, Mr A and Mr D and staff from the Care Provider. Mr A said support workers were often watching TV or would be on their mobile phones. The social worker said that the support workers were supposed to be supporting Mr A to access the community. It was also noted Mr A was not always receiving all his support hours as the rota was not always filled. Mr A was noted to be anxious if he did not know in advance who would be supporting him. Mr A had found activities for Mr D to attend, but he needed support to go there and support to walk for 30 minutes to improve his mobility. They went through a new support plan. Mr D said a support worker (named) had said there was a camera in his flat watching him if he did not do his daily exercises. Attendees reassured Mr D this was not the case.
  14. The Care Provider gave notice to end Mr D’s care on 20 March. The Council was also liaising with the other authority about taking over funding responsibility for Mr D’s care. There was a handover of care between the new authority and the Council. The new authority intended to find a different agency to provide Mr D’s care.
  15. The Care Provider’s responses to Mr A’s complaint said:
    • Mr D was not being singled out. Mr D had given the names of five staff who he wanted to support him, but it was not practical for those staff to deliver his care due to other rota commitments
    • It had already identified a problem with covering Mr D’s hours before Mr A complained. Due to the number of staff Mr D had rejected and the distance from the Care Provider’s office, the company was not able to fulfil the hours it had been contracted for and the workers Mr D preferred only worked part time
    • There was no deliberate intention to exclude Mr A from the review in November. It was sorry he was not contacted in advance
    • Mr D should have been getting a copy of the rota in advance and it would ensure this happened in future
    • A manager spoke to the worker alleged to have said Mr D would lose his support, be evicted and that there were hidden cameras in the wall and about other statements Mr D alleged he had made. The worker denied making any of the statements. The worker had not worked with Mr D since August 2018.

Was there fault and if so did this cause injustice?

Support hours were not delivered in line with the agreed care and support plan, including carers failing to attend and not staying for the contracted hours

  1. I uphold this complaint. There is clear evidence in the records that the Care Provider was unable to cover shifts for Mr D for the period it contracted with the Council to deliver his care. I cannot say whether or not any of the shifts were shorter than they should have been as the Care Provider did not provide the workers’ timesheets. But I conclude that there was a failure to deliver all the care as agreed because of the frequent contacts from the Care Provider saying it could not find staff to cover Mr D’s shifts.
  2. The Council was required to meet Mr D’s eligible needs. It carried out this duty by commissioning the Care Provider. The evidence is Mr D’s needs were not consistently met and shifts were uncovered. And, there is also evidence that on occasion support workers were not delivering the care that they were supposed to (watching television, for example, was not on the care plan). This means Mr D did not receive the care he was entitled to. This was fault by the Care Provider which acted on behalf of the Council. I note also that sometimes Mr D refused support (although it appears from the records that this was only an occasional problem.)
  3. Not sending rotas in advance to Mr D was also fault which caused avoidable anxiety.
  4. I also note Mr D’s person centred plan was not updated and was not fully completed. This was an additional fault: I cannot see how support workers would know what they were supposed to be doing to support Mr D without a detailed and up to date plan. This caused avoidable uncertainty about what the up to date plan of care for Mr D was.

One carer was emotionally/psychologically abusive

  1. The Care Provider said in its complaint response that it interviewed the carer about the allegations and put them to the carer. The carer denied the allegations and was no longer placed on Mr D’s rota. I consider this was an appropriate response and there was no fault.

The Care Provider ended the service after Mr A complained

  1. I am satisfied the problems with covering the rota led to the Care Provider giving notice. This was the correct action to take given the lack of staff cover. There was no fault.

The complaint responses were inadequate

  1. I consider the Care Provider’s complaint responses addressed all the issues Mr D raised and apologised. But, as set out in paragraphs 28 to 31, I consider that the service to Mr D was not as it should have been. The complaint response should have recognised this and offered an appropriate financial remedy. So I uphold this complaint.

Two staff at the Care Provider prevented Mr D from having an advocate at a review meeting

  1. The Council had a duty to review Mr D’s care and support plan at least annually. The correspondence and records indicate that the social worker left it to the Care Provider to arrange the review in November and to contact Mr D and Mr A. The Care Provider did not do so. This was fault by the Council: Mr D had made a capacitated decision to have Mr A as his advocate. The Care Provider should have invited Mr A to the review and should have made it clear to Mr A that this was a review. I recognise it has apologised for this failing.

Agreed action

  1. 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 found fault with the service of the Care Provider/organisation, I have made recommendations to the Council.
  2. The fault I have identified caused Mr D avoidable anxiety and distress. He also missed out on services he was entitled to receive because of the Council’s failure to ensure his care hours were covered.
  3. I have taken into account that the Care Provider was in a different location from Mr D and that caused some logistical difficulties. But, the Council should have satisfied itself the Care Provider was able to cover the care hours before commissioning it. I have also taken into account that Mr D rejected a number of carers and this was not within the Council or Care Provider’s control.
  4. Having considered the above, I recommend the Council pays Mr D £1000 to reflect the significant gaps in his care provision and the failings in care described in the previous section. It should also apologise to Mr D. It should do so within one month of my final decision. The Council has accepted my recommendations.

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Final decision

  1. I uphold a complaint about failures in Mr D’s home care. The Council failed to ensure Mr D’s care was delivered in line with his eligible needs. Care was not in line with section 18 of the Care Act, which was fault causing avoidable distress. To remedy the injustice, the Council will apologise and pay Mr D £1000.
  2. I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. Mr A also complains the new council has reduced Mr D’s care package. I have not investigated that complaint because it is a complaint for that council. Mr A needs to complain to the second council.
  2. Mr A wants the Care Provider to be ‘struck off the register’. We have no power to do this. The Care Quality Commission is the regulator of adult social care services in England and it has legal powers to suspend and deregister care services. The LGSCO cannot do this. Nor can we bar individual care workers. That is for the Disclosure and Barring Service.

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Investigator's decision on behalf of the Ombudsman

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