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London Borough of Bromley (20 006 260)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 26 Mar 2021

The Ombudsman's final decision:

Summary: When arranging adult social care for a full cost payer, the Council failed to tell the person of the weekly administrative charge so they could make an informed decision on whether to incur this or arrange their own care. The care the Council arranged was poor, with the Care Provider regularly arriving late and the family having already met the needs of the person using the services. The family received little benefit from the care package they were paying in full for, and found it distressing to do the work of the care workers and never know when the care workers would arrive. The Council will waive the care charges and remind staff to give adequate information about paying for care.

The complaint

  1. The complainant, who I will call Mr B, says the Council provided unsatisfactory care to his mother, Mrs C. Late care calls meant Mr B’s father and his sister Mrs D had already done the work the care workers were employed to do. They would get Mrs C up on a morning and assist her to bed on an evening. Mr B’s father got distressed by this, especially if it was late at night and he struggled to manage this task alone. They are billed for the full cost of the care, which they say they received no benefit from. Sometimes two care workers would turn up, when the family had not given permission for this.
  2. Mr B is concerned about the information the Council gave about care costs; Mr B says his father did not realise there would be a charge. Mrs D says she knew there would be a charge, but the costs were never properly explained, for example she was unaware of the weekly administrative cost.
  1. The family promptly cancelled the care package because of the poor service, the bill, and because of concerns of theft by the care workers after money and property went missing from the house. Mrs D explains she was told she could not immediately cancel the care but was not previously made aware of notice periods. They feel the Council should not pursue the care costs, which has been very distressing for Mr B’s father. The family would like the care fees waived or reduced to take account of the lack of service.

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What I have investigated

  1. I have investigated concerns about the information the Council gave regarding care costs, and the standard of service by the Care Provider. The end of this statement explains the areas I did not investigate and why.

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The Ombudsman’s role and powers

  1. 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)

  1. Mrs C has died, we consider Mr B is suitable to bring the complaint.
  2. 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)
  3. Carby Community Care provided care support to Mrs C on behalf of the Council.
  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)
  1. 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

  1. During my investigation I considered:
    • Information provided by Mr B and Mrs D, including during a telephone conversation.
    • Information provided by the Council in response to my enquiries.
    • The Care Act 2014 and associated statutory guidance.
    • Information on the website of the Care Quality Commission (CQC).
  1. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Mrs C lived at home with her husband. Mrs C received care support in her home from Carby Community Care which the Council arranged and Mrs C fully funded. Mrs D lived nearby and would also help to support her parents. Mr B lived further away so could not offer regular care support.

Care charges

  1. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
  2. The Council should complete a financial assessment to work out what, if anything, the person must pay towards their care support. There is no timescale in which the Council must complete the financial assessment. We would expect in the interim the Council would provide the person using the service with some information about possible charges, perhaps by information leaflets explaining paying for care. The Council should also provide the person with an indicative personal budget, which is the total amount their care package is likely to cost.
  3. Mrs C initially received a free package of care after a period of illness. When the free service was coming to an end the family had to decide if they wanted to continue with care support. Mrs D says she knew they would have to pay for it but did not know there would be an additional administrative charge.
  4. The Council has provided no evidence of any information given to Mrs C, or any of her family on her behalf, to explain the possible charges before the care package started.
  5. The Council wrote to Mrs C 20 days after the care package started to confirm the charge for the care services following the financial assessment. The letter detailed an additional weekly charge of £4.85 to cover the Council’s costs of arranging the care.
  6. Mrs D promptly contacted the Council to cancel the care package, partly because of the administrative cost they were unaware of and because of the poor standard of care. The family did not think it was a service worth paying for, or that they were receiving any benefit from.

Standard of care

  1. 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.
  2. The CQC is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
  3. When the Council arranges care for someone, it remains responsible for the standard of that care as it has a duty to meet the person’s adult social care needs.
  4. When Mrs C was receiving the package of free care, she was very happy with the service, but says when the care package transferred to Carby Community Care the service went dramatically downhill.
  5. The Council arranged a care call in the morning and evening each day. The care workers were to help Mrs C get up, showered, dressed, support her toileting, clean the commode, breakfast, medications, snacks, drinks, and help her to bed. The care calls were scheduled for 9.30am and 8pm. Mrs C’s husband would provide her other meals.
  6. Mr B says the Care Provider rarely came on time. Mrs D explains the Care Provider could be up to three hours late, turning up at midday or 11pm. By which time Mrs D and/or her father had already got Mrs C up or helped her to bed. It was very difficult for Mrs C’s husband to support her alone and he found it very distressing. Especially if they were settled for the evening and then care workers turned up at 11pm. Mrs D explains they received no benefit from the care calls, the care workers were simply signing a book and then leaving.
  7. There is no evidence the Council or Care Provider told the family about any leeway in these timings. During the complaint investigation the Care Provider said if the calls were within an adequate time they would still charge for the calls. The Care Provider is no longer trading, so the Council has been unable to get any information regarding what is considered an ‘adequate time’ and whether Mrs C’s care calls met this criterion.
  8. The care package was for one care worker, but Mrs D says sometimes two would turn up. Sometimes care agencies might require this for staff training but should always have the permission of service users to send people they are not expecting. Mrs D says they were never asked and had not given permission for this. The Council cannot provide any evidence or explanation regarding this issue.

Was there fault causing injustice?

  1. 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. In this case there is a lack of evidence because the Care Provider has ceased trading and the Council cannot get a response to its requests for information.
  2. There is no evidence the Council told Mrs C, or anyone on her behalf, there would be an administrative charge for arranging her care package. The family say had they known this they would have arranged their own care package given they were full cost payers. I find it more likely than not this is the case given Mrs D promptly cancelled the care package after the letter confirming this charge. Therefore, Mrs C incurred a charge of £4.85 per week which she would not have done.
  3. I find it more likely than not the service provided by the Care Provider on behalf of the Council was poor. There is a lack of evidence to support whether care calls were missed, late, or provided the care as per the care and support plan. I base my views on a report by the CQC. The CQC completed a report at a time relevant to Mrs C’s care package. This highlighted complaints from service users around the timing of visits, and whistle blowers (staff from the company) said they could not complete their visits as scheduled. Rotas did not provide sufficient travel time between visits, so it was impossible to complete care calls on time. Communication from the Care Provider to its service users was poor, rarely telling them if calls would be late or missed.
  4. By the time the care staff arrived at Mrs C’s house, Mrs D or her father would have already supported Mrs C. So, Mrs C received no benefit from the service she was paying for. Mrs D promptly cancelled the care package which supports this finding.
  5. There is no evidence regarding two care workers turning up rather than one, but I find it more likely than not this did happen. It was fault of the Care Provider to send two care workers without permission of the service user. This was concerning for Mrs C and her husband.
  1. It was difficult and distressing for Mrs C’s husband to meet her needs and never know when care workers would turn up, sometimes late at night.

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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, I have made recommendations to the Council.
  2. To acknowledge the impact of the failings in this case, and prevent future problems, the Council will:
      1. Waive the full care charges for this care package on the basis Mrs C received little benefit from the care package, the poor service caused distress to the family, and the Council failed to advise of the administrative charge. The Council should provide a refund of any care fees paid for this package, and/or provide confirmation it has waived any outstanding charges.
      2. Remind staff of the importance of providing people using services, or a representative on their behalf, with information regarding paying for care, potential care charges, and the administrative charge where applicable. Information about the administrative charge will always be applicable where the Council is arranging care for someone who may be a full cost payer so it should ensure it draws attention to this so people can make an informed decision on whether to arrange their own care instead.
  1. The Council should complete the agreed actions within one month of the Ombudsman’s decision and provide evidence of its compliance.

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Final decision

  1. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mrs C’s family and prevent future problems.
  1. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), I have shared this decision with CQC.

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Parts of the complaint that I did not investigate

  1. I did not investigate concerns of theft by the care workers. That is a criminal matter and is for the Police to investigate/

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Investigator's decision on behalf of the Ombudsman

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