Summary: Ms X complains about the care she receives from care providers, the way the Council handled her care provision, and the way the Council handled her complaint. She says this means her health is at risk, and conflict with carers adds to stress and depression. Largely, the Ombudsman does not uphold Ms X’s complaint. This is because we have found no fault. However, the Ombudsman upholds part of Ms X’s complaint on the basis that the Council did not ask Ms X if she needed any further reasonable adjustments when dealing with her complaint. This fault caused Ms X injustice. The Council has agreed to apologise to Ms X and review its complaints procedure.

The complaint

1. The complainant, who I refer to here as Ms X, complains that:
1. carers do not follow the care plan;
2. the Council has failed to provide care;
3. carers have a poor understanding of English, which creates a barrier between her and the carers;
4. the Council does not hold the care provider to account or ensure it carries out the agreed service improvements;
5. the Council has told her to complain to the care provider, but the Council is responsible for ensuring the quality of her care;
6. the Council is not supporting her to plan ahead, when she will need additional support as her health deteriorates;
7. the Council has not made appropriate reasonable adjustments for her; and,
8. the Council failed to handle her complaint properly.
2. Ms X says carers not following the care plan can increase the risk to her health because she is at high risk of infection. She says the conflict with carers adds to her depression and stress. She says she has been left in a state of constant meltdown, she dreads visits from her carers because she knows she will be ignored, and she is not coping. She says she has felt suicidal because of it.

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What I have investigated

3. I have investigated the part of Ms X’s complaint about two care providers which provided her care from April 2019 onwards. The last section of this decision statement explains my reasons for not investigating further back than that.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)

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How I considered this complaint

9. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
10. I have considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

What should have happened: the law, guidance and policies

Care and support planning

11. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support.
12. The Care and Support Statutory Guidance (regularly updated) says that local authorities must make sure that a care and support plan is appropriate to meet the person’s needs and is agreed by the person.

Care provision

13. The Care Act 2014 says that local authorities must meet an adult’s care and support needs if they meet certain eligibility criteria. This will usually be done through a care provider.

Reasonable adjustments

14. The Equality Act 2010 puts a duty on any body that carries out a public function. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
15. The duty is to make adjustments by taking steps to remove or prevent obstacles to accessing that service. If adjustments are reasonable, they must be made.
16. The duty is ‘anticipatory’. This means that a council cannot wait until a disabled person wants to use the service. Instead, they must think in advance about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, mobility impairment or a learning disability.
17. The Ombudsman can look at whether a council has considered making reasonable adjustments. We cannot decide if an adjustment is reasonable or if there has been a breach of law. This is something only the courts can determine.

Complaints procedure

18. The Council’s complaints procedure says where possible, complaints should be resolved quickly and informally.
19. It says independent social care providers have their own complaints procedures and complaints about care services should be directed to the care provider. It says there are some exceptions to this, which include when someone has already complained to the care provider but is not happy with the response.

What happened

20. Ms X has a number of health problems that mean she has spent a lot of time in and out of hospital. Her health problems also mean that she needs daily help from carers.
21. From November 2018, Ms X’s care was provided by Care Provider A.
22. Ms X complained to the Council that she was not happy with the care provided by Care Provider A. In January 2019, the Council met with Ms X and discussed her complaint. The Council sent its complaint response in February.
23. In March, the Council met with Care Provider A. They discussed what could be done to improve Ms X’s care. They agreed to implement a daily tick sheet for carers which showed exactly what carers needed to do in the mornings and evenings.
24. In April, Care Provider A decided it could no longer meet Ms X’s care needs and stopped providing her care. The Council then arranged for Care Provider B to take over Ms X’s care.
25. In August, Ms X formally complained to the Council about the care provided by Care Provider B.
26. In September, the Council and Care Provider B met with Ms X to discuss her complaint. The Council sent its complaint response to Ms X later in September. It gave a list of Ms X’s complaints and the actions Care Provider B would carry out to improve the service she received.
27. Ms X had complained that carers were not prompting her to take her temperature or medication. The agreed action was that Care Provider B would put in place a tick sheet for carers to sign at each visit after prompting Ms X to take her temperature and medication. The Council said that Care Provider B had done a training session for carers about how to use the tick sheet.
28. Ms X had complained about damage to a door done by a carer while vacuuming. The Council said Care Provider B will repair the door.
29. The Council said Ms X could call Care Provider B at any time to discuss any further issues or concerns. The Council said if Ms X had any queries about the complaint response, she should contact the Council.
30. In October, after Ms X was discharged from a period of time in hospital, her social worker visited her at home. This was a spot check to oversee the care she was being provided. Ms X raised a number of issues about her care provision. This included the door not being repaired yet, problems with carers not handing her the thermometer, and that she did not feel supported with managing her care.
31. The social worker asked Ms X what support she needed and suggested fortnightly meetings to discuss any issues. Ms X declined, saying she would contact the Council with her concerns. The social worker said he would meet with Care Provider B to discuss the issues Ms X had raised.
32. The social worker also asked if Ms X felt her care needs had changed and if any changes were needed to her care and support plan. The minutes of that meeting say Ms X said the plan was correct and no changes were needed following her hospital discharge.
33. Two weeks later, the social worker met with Care Provider B to discuss the issues Ms X raised. Care Provider B said the tick sheet for carers had been updated. It said it had made arrangements to repair Ms X’s door but then she went into hospital. It said it would action the repairs when she was discharged.

Analysis

Following the care plan

34. Ms X complains that carers do not follow the care plan (part a of the complaint). She says this was the case for both care providers.
35. I have seen blank tick sheets that both care providers implemented after Ms X complained. Both care providers’ tick sheets mirror the care plan and include prompting Ms X to take her temperature and medication.
36. I have not seen the tick sheets that were completed by carers. The tick sheets for both care providers were left at Ms X’s home. The Council says Ms X has refused to return the tick sheets to the care providers. Ms X confirms that she has the tick sheets at her home. Ms X has not provided me with copies of the tick sheets.
37. Without seeing the tick sheets, I am not able to make a finding on this part of the complaint.
38. Ms X complains that carers do not change gloves between tasks. This is part of her care plan. Care Provider B says carers are trained in infection control and briefed on correct infection control practice. It says Ms X’s carers are aware that she is at high risk of infection.
39. Changing gloves between tasks is not part of the tick list for carers to complete. For this reason, even with sight of the tick sheets, I would not be able to make a finding on this part of Ms X’s complaint. This is because I cannot determine whether carers are or are not changing gloves between tasks.
40. Ms X complains that carers do not carry out tasks the way she wants them done. This, in itself, is not significant enough to constitute fault. If tasks are completed but not to Ms X’s standards, this is not evidence of fault.
41. Ms X complains that tick sheets do not reflect the whole care plan. She gives an example that the tick sheet should have a weekly task to wash down the rubberised mattress cover. This is not in her care plan.
42. I find that the tick sheets appropriately reflect the care plan and the tasks that carers should be completing at each visit. I do not find fault here. If Ms X wishes additional tasks to be part of the care plan or the tick sheets, she can raise this with her social worker and/or Care Provider B.

Failing to provide care

43. Ms X complains that the Council has failed to provide care (part b of the complaint).
44. Care Provider A began caring for Ms X in November 2018. It stopped providing care for her on 6 April 2019. Care Provider B then took over providing care for Ms X on 15 April 2019. The Council says that between 6 April and 15 April, Ms X was away and therefore no care needed to be provided during that time.
45. I am satisfied that the Council has provided consistent care for Ms X, and there have been no gaps in care provision. For this reason, I do not find the Council at fault.
46. Ms X complains that Care Provider A withdrew their care because she complained about them, and the problems continued until they withdrew their care.
47. Care providers are entitled to end care provision if they are not able to provide the care a person needs. This is what happened here. Councils cannot force care providers to continue to provide care if that care provider does not feel able to meet that person’s needs. Councils must arrange appropriate care and in this case I find that the Council provided appropriate care as it should have. So, I do not find fault.

Carers’ English language skills

48. Ms X complains that carers have a poor understanding of English, which creates a barrier between her and her carers (part c of the complaint).
49. Ms X now has one regular carer, whose English skills she says are the best so far. Ms X complains mainly about previous carers.
50. Care Provider B says that carers have achieved appropriate levels of qualification within the field. It says that an English language and grammar test is part of its recruitment and interview process for all carers. Also, it says all carers have completed mandatory verbal and written training.
51. I do not find fault here.

Holding the care provider to account

52. Ms X complains that the Council does not hold the care provider to account or ensure it carries out the agreed service improvements (part d of the complaint).
53. Ms X says there have been meetings with her, the Council and the care providers but there have been no improvements. She says her door remains unrepaired.
54. The social worker did a spot check at Ms X’s home shortly after her discharge from hospital in October 2019. At this spot check, Ms X raised further issues. The Council met with Care Provider B two weeks later to discuss those issues.
55. Care Provider B said it had arranged to repair Ms X’s door but then she went into hospital (twice). It says when she is out of hospital it will arrange to repair the door. I do not find fault for this. The care provider needs to be able to access Ms X’s home to repair the door, and due to her frequent hospital admissions, it has not been able to.
56. I do not agree with Ms X that there have been no improvements. The Council’s response to Ms X’s complaint shows that it and the care providers have acted on each of her points of complaint.
57. I find that the social worker’s spot check shows the Council is appropriately monitoring the care provision and holding the care provider to account. I have seen a lot of communication between the social worker and the care providers which has resulted in improvements that Ms X asked for. For this reason, I do not find the Council at fault.
58. Ms X complains that the Council and care providers have not responded to her emails. I have seen no evidence of this, so I do not find fault.

Complain to the care provider

59. Ms X complains that the Council has told her to complain to the care provider, but the Council is responsible for ensuring the quality of her care (part e of the complaint).
60. Ms X says that if she goes to the care provider first, the Council will not be aware of the problems, so the care provider can “get away with” not improving its service.
61. As I have said in paragraph 19, the Council’s complaints policy says complaints about care services should be directed to the care provider. It also says someone can complain to the Council if they have already complained to the care provider but are not happy with the response.
62. I find this policy is appropriate. I find it is appropriate for the Council to direct Ms X to complain in the first instance to the care provider. This means that problems can be addressed in the first instance by the body delivering the care. The Council will retain oversight of care provision, and Ms X can still complain to the Council if she is unhappy with the response from the care provider.
63. I find no fault here.
64. Ms X complains that the Council has a duty to support her. When the social worker did a spot check at Ms X’s home, Ms X said she did not feel supported managing her care. The social worker asked what support she needed and offered fortnightly meetings. The Council says Ms X declined this, saying she would prefer to contact the social worker when she has concerns.
65. I find that the Council is appropriately involved in supporting Ms X to manage her care. I find that the Council is supporting Ms X in the way she wishes, which is for her to contact the social worker when she has a concern or complaint. For this reason, I do not find the Council at fault.

Planning for the future

66. Ms X complains that the Council is not supporting her to plan ahead, when she will need additional support as her health deteriorates (part f of the complaint).
67. Ms X says she has asked for changes to her care plan, but none have been made. She says her care plan has not been reviewed. She also complains that the Council has not involved medical professionals in her care planning.
68. The evidence I have seen shows that after each hospital discharge, the social worker has asked Ms X if she felt her needs have changed or if any changes needed to be made to her care plan. Each time, Ms X has said she is happy with her care plan and no changes need to be made.
69. I have seen communication between the social worker and hospital staff who have confirmed on several occasions that no changes needed to be made to Ms X’s care plan.
70. I have seen Ms X’s care plan and it has been appropriately reviewed and updated. The care plan refers to support Ms X receives and will receive in the future from the NHS, the local hospice and relevant charities. It also notes changes to managing Ms X’s care due to deteriorations in her health. There is an appropriate contingency plan in place.
71. The social worker has been in regular contact with the hospital and medical professionals dealing with Ms X’s treatment and healthcare. This is appropriate.
72. The Council says it tried to include Ms X’s GP and her oncologist in care planning but Ms X refused to give permission for them to share information with the social worker. If Ms X were to give permission for information to be shared, then more medical professionals would be involved in her care planning and planning ahead for her future.
73. I do not agree with Ms X that the Council is not supporting her to plan ahead. For all the reasons listed above, I do not find fault with the Council.

Reasonable adjustments

74. Ms X complains that the Council has not made appropriate reasonable adjustments for her (part g of the complaint). She says that the Council did not ask if she needed any reasonable adjustments. She says she did not feel properly supported through the process and feels the Council should have assisted her more.
75. The Equality Act says the duty to make adjustments is to take steps to remove or prevent obstacles to accessing that service. The duty is ‘anticipatory’.
76. As I have said, the Ombudsman cannot decide if an adjustment is reasonable or if there has been a breach of law. We look at whether a council has considered making reasonable adjustments.
77. The Council says it made certain reasonable adjustments for Ms X because the officers dealing with her complaint already had an established working relationship with her. These adjustments included face-to-face meetings, printed copies of information for her to read, and extra time with Ms X to make sure her complaints were understood. However, the Council accepts that it did not ask Ms X if she needed any further reasonable adjustments specifically for the complaints process.
78. It is positive that the Council made certain reasonable adjustments for Ms X in the first instance, taking into account her needs. However, I find that the Council should still have asked Ms X if she needed any additional adjustments for the complaints process. This is fault. I find this fault caused Ms X injustice because she could have asked for more support or different support than the Council was already providing. This was a missed opportunity.
79. The Council says it would not usually ask a complainant if they need reasonable adjustments. I find that this is not in line with its anticipatory duty under the Equality Act.

Complaint handling

80. Ms X complains that the Council failed to handle her complaint properly (part h of the complaint).
81. Ms X says that her first verbal complaints about both care providers were not treated as formal complaints at they should have been.
82. The Council’s complaints procedure says where possible, complaints should be resolved quickly and informally. I find that the Council is entitled to try and deal with complaints in this way. It could have been the case that resolutions put in place by the Council and/or the care providers could have resolved Ms X’s complaint to her satisfaction.
83. In both cases, the Council worked with the care providers to make changes and improvements to care provision. Ms X was not satisfied so the Council then dealt with her complaints through its complaints procedure. This is not fault. This is an appropriate way to try and deal with Ms X’s complaints and is in line with its complaints procedure.
84. Ms X complains that the Council’s complaint response does not address the issues she raised. I have seen the Council’s record of Ms X’s complaint, and its complaint response addresses each point of her complaint.
85. The Council says that each time Ms X has raised issues it has tried to meet with her to try and resolve the issues. It says it has always given Ms X the option of logging her complaints as formal complaints. I do not find fault here. I find that Council has dealt with Ms X’s complaints appropriately and in line with its complaints procedure.
86. It may be that Ms X was not happy with outcome of the meetings that were held about her complaints, and the Council’s complaint responses. This is not fault. Ms X took her complaint to the Ombudsman which is the appropriate action to take if she was unhappy with the Council’s complaint response.
87. Ms X says the Council provided inadequate information about the complaints procedure, her rights, and what she needed to do. She says the Council did not tell her about the complaints procedure.
88. I find that that the Council has supported Ms X through the complaints procedure by having meetings with her to discuss her complaint and the complaints procedure. This is over and above the usual way complaints are dealt with. I find this was appropriate. I also find that the Council has, at each stage, signposted Ms X appropriately to the next stage of the complaints process.
89. I find no fault with the way the Council handled Ms X’s complaints.
90. Ms X complains that the Council failed to properly minute a meeting with her. Having looked at the Council’s records, it seems that the Council minuted a meeting and then, when Ms X complained about it, amended the minutes to reflect her comments.
91. This is not fault. In any event, the Council amended the minutes once Ms X raised it, so I do not consider Ms X was caused any injustice.

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Agreed Action

92. Within six weeks of this decision, the Council has agreed to write to Ms X and apologise for not asking if she needed any further reasonable adjustments when handling her complaint.
93. The Council says it is in the process of reviewing its complaints processes and this will include considering its anticipatory duties under the Equality Act. The Council may wish to review its complaints procedure so complainants are asked in the first instance whether they need any reasonable adjustments. The Council has agreed to do this within three months of this decision.
94. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

95. I have completed my investigation. I uphold part g of Ms X’s complaint because I find fault causing injustice. The Council has agreed to take action to remedy this injustice.
96. I do not uphold parts a, b, c, d, e, f, or h of Ms X’s complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

97. Part of Ms X’s complaint is about a lack of support from the Council when she received direct payments. Ms X received direct payments between 2013 and September 2018. Ms X complained to the Ombudsman in September 2019.
98. As I have said above, the Ombudsman cannot investigate a late complaint. This is when someone takes more than 12 months to complain to us about something a council has done.
99. I note that Ms X had a complaint with the Ombudsman in 2018/2019.
100. I consider that reasonable opportunities existed for Ms X to have pursued this part of her complaint in a more timely fashion, and within the time limits laid down in law. I also consider that Ms X could have raised this part of her complaint with the Ombudsman during her previous complaint with us.
101. As such, I have decided there are no good reasons to exercise the Ombudsman’s discretion to investigate this part of Ms X’s complaint.

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Investigator's decision on behalf of the Ombudsman