Summary: Miss X complained the Council continued to arrange an expensive care package that was neither wanted nor needed by her. The Council also failed to ensure she was represented at a meeting where this matter was discussed. We do not find fault with the Council’s actions in this matter.

The complaint

1. Miss X complains the Council continued to arrange an expensive care package that was neither wanted nor needed by her. The Council also failed to ensure she was represented at a meeting where this matter was discussed.
2. This caused significant distress and unnecessary expense.
3. Miss X is represented by her sister, Ms P, in making this complaint.

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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 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)
6. 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 someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
7. 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

8. I spoke with the complainant’s representative, Ms P, and reviewed the information she provided.
9. I made enquiries with the Council and reviewed the relevant law and guidance.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and policy

11. Under the Care Act 2014, councils have a duty to assess adults who have a need for care and support. They must provide a care and support plan setting out the services required to meet any eligible needs identified by the assessment. And if asked to do so, councils must arrange a care package.to meet these needs.
12. Councils can make charges for care and support services they provide or arrange. Councils must assess a person’s finances to decide what contribution, if any, they should make to the cost of their care.
13. A council may commission another organisation to provide care services on its behalf. However, the council remains responsible for those services and the actions of the organisation providing them.

Mental Capacity

14. The Mental Capacity Act 2005 says every adult has the right to make their own decisions and must be presumed to have capacity to make a decision unless it is established they lack capacity. Just because a person makes what look like unwise decisions, they should not be treated as lacking capacity.
15. There should be a reasonable belief someone lacks capacity before a mental capacity assessment is carried out. A lack of capacity cannot be established merely by reference to a person’s age, appearance, condition, or an aspect of their behaviour.
16. An assessment of a person’s capacity to agree to services is part of the care planning process and should be recorded in relevant documentation.

What happened

17. I have set out below a summary of the key events. But it is not meant to show everything that happened.
18. Several years ago, Miss X had a stroke. This affected her physical and mental capabilities. In October 2019, she was admitted to hospital. Whilst there, concerns were raised about her ability to manage at home and so discussions took place to consider whether she needed extra support in order to be safely discharged.
19. An assessment of Miss X’s mental capacity was carried out. This concluded Miss X lacked capacity to make decisions about her health and welfare. Leading on from this, a multi-disciplinary meeting decided the least restrictive option was for Miss X to return home with a trial package of care provided by a private care agency (“the Agency”). This was considered to be in her best interests. Miss X was opposed to this.
20. The Council arranged for Miss X to be supported by an advocate.
21. Miss X had sufficient financial resources to fund this care package herself. The weekly cost was approximately £500 per week.
22. Ms P reported problems to the Council in the first few days of the care package starting. She said Miss X was still sleeping in her wheelchair rather than going to bed and she had been left without any food.
23. The Council raised this matter with the Agency. It explained Miss X refused to engage with the carers and they had been told to leave. The Council asked the Agency to record what occurred going forwards so the situation could be monitored.
24. Shortly afterwards, the Council received a call from Miss X’s GP. He was concerned about her welfare at home. It was agreed the Council should arrange a multi-agency meeting (“the Meeting”) to discuss the situation.
25. In the meantime, the Council and the Agency went to visit Miss X to try and resolve the issues that had arisen.
26. The Council carried out a review in early December 2020, attended by Ms P, the Agency, the GP and the Council. It was agreed to reduce to care package in recognition of the lack of engagement, but that it should continue.
27. The Meeting took place in late January 2020. Miss X, Ms P and the advocate did not attend. Ms P says she had been waiting for dial-in instructions to be sent so she could attend remotely.
28. In March 2020, Miss X’s brother, Mr T, reported again there was no food in the house. In response, the Agency said it had left enough food for her but accepted its role was limited to observing Miss X rather then being able to provide any meaningful support due to her non-engagement.
29. On 24 March 2020, Ms P confirmed to the Council that Miss X was refusing any care support and that the arrangement should stop. The social worker disagreed initially but after a further request from Ms P, the Council cancelled the Agency’s contract. The Council agreed the risk posed to Miss X could be managed through informal care provided by her family instead.

The complaint

30. In March 2020, Ms P complained to the Council about the following matters:

• Carers having inappropriate conversations with Miss X about legal and financial matters.
• Carers disregarding shopping arrangements and not monitoring food intake. This had left Miss X “starving, weak and confused”.
• The social worker’s refusal to share Miss X’s care plan with Ms P as well as her generally unhelpful attitude.
• Miss X being invoiced for a service that she neither wanted nor received. Ms P said the carers were being paid “to just go in and sit down for 29.5 hours per week”.
• The Council sent invoices to Miss X causing her to be distressed, despite Ms P being her financial representative.
• Ms P said she would not pay the outstanding invoices.
• There were some irregularities between the hours charged and those recorded by carers.
• Ms P said Agency had exploited Miss X because of her vulnerability.
• The Council should not have gone ahead with the Meeting without Ms P or her advocate in attendance.

The Council’s response

31. The Council responded in October 2020. The Council made the following points:

• Miss X persistently raised the legal and financial issues with her carers that they then raised with Ms P. The Agency accepted this matter could have been addressed more appropriately through Miss X’s advocate.
• The Agency followed instructions about shopping arrangements and disposed of food on Miss X’s instruction.
• Miss X’s food and nutritional intake was heavily influenced by her specific habits and preferences.
• It was known at the start of the care package that Miss X’s engagement could be problematic. This was discussed at the Meeting and it was reduced slightly. But it was agreed it should continue for several reasons.
• The Council agreed it should not have sent invoices to Miss X and apologised for this error.
• Any discrepancies with the invoice should be raised directly with the Agency.

32. Ms P requested a meeting with council officers. She felt the Council’s response was inadequate and still felt that Miss X should not be charged for a service she did not want. This meeting took place in January 2021 during which Ms P set out her outstanding concerns about the care package and its cost, including discrepancies with the Agency’s billing.
33. In response the Council audited the Agency’s time sheets and invoices. It agreed there were some minor discrepancies, although not all to Miss X’s detriment. The Council agreed to refund a small amount. The Council did not feel an apology from the Agency was necessary because it felt the appropriate level of care had been offered. Similarly, the Council explained it could not agree to pay compensation for distress caused by allowing the service to carry on longer than necessary, but did agree there was a need for improved communication.
34. Dissatisfied with this response, Ms P brought her complaint to the Ombudsman.

Analysis

35. My role is to consider if the Council has followed the correct procedure and guidance for assessing and reviewing Miss X’s care and support needs. If I find the Council acted with fault, I must consider the impact of the fault and what the Council should do to address that impact.

Miss X’s care and support

36. From the evidence I have seen I am satisfied the Council following the correct procedures prior to Miss X’s discharge from hospital. It assessed her mental capacity and consequently made a best interest decision.
37. The care package was reviewed after a month, which again is what I would expect to see happen. It is clear problems quickly arose, particularly around food and Miss X’s non-engagement. But from the records I have seen, the Council was proactive in liaising with the Agency to try and find solutions. In my opinion these issues arose due to Miss X’s care and support needs rather than through fault by either the Agency or the Council.
38. Both the Agency and the Council have demonstrated they responded appropriately to the difficulties that arose during the course of providing the support package to Miss X. For this reason, I do not find fault with standard of care provided to Miss X

The Meeting

39. The Council arranged the Meeting after concerns were raised by the GP in early December 2019. While I accept there was a delay in this taking place, I have taken into account the fact it was over the Christmas period and the Council had just reviewed the care plan. For these reasons I do not criticise the Council for this delay.
40. I understand why Ms P wanted to attend the Meeting. She was frustrated by what was happening with Miss X and felt the Agency’s involvement was counterproductive. In her absence it was decided the Agency should continue. Ms P says she disagreed with this decision.
41. I am satisfied Ms P was invited to the meeting because Ms P says she was waiting for dial in instructions. On balance, it seems likely that there was some miscommunication about this, possibly due the Meeting being held at the GP surgery, but I do not find this amounted to fault.
42. Ms P was also concerned that Miss X’s advocate did not attend the Meeting. The advocate contacted the social worker the day after it had taken place asking whether a date had been arranged. I accept it could be assumed from this that he had not been informed.
43. Minutes from the Meeting were sent to Ms P and the advocate, so they both knew what had been discussed. I agree with the Council that they could have raised any concerns about the outcome after the Meeting, upon receipt of the minutes and there is no record of either doing so. I have not found evidence of fault here.

Continuing to provide and charge for a service that was not needed

44. Part of Ms P’s complaint is that Miss X was being charged for a service she neither wanted nor needed. She wants the Council to reimburse Miss X for what she paid for the Agency’s services.
45. The Meeting minutes recorded that the attendees thought the care package was still worthwhile because it provided structure for Miss X, despite noting that Miss X did not allow the carers to do anything for her. From this I am satisfied they were aware of the concerns that would have been raised by Ms P had she been at the Meeting.
46. While it is clear Miss X did not want carers in her home from the outset, the records show that despite this, the professionals involved decided it was in her best interest for the support to continue – both to monitor Miss X and provide structure and routine. Miss X has been properly assessed as not having capacity, and so this was a decision the Council was entitled to make. While I understand Ms P disagrees with this, the Ombudsman cannot interfere with such decisions so long as they are properly made. In this case, I am satisfied it was.
47. Ms P says she did not know she could cancel the arrangement with the Agency at short notice. In response to my enquiry about this, both the Agency and the Council have disputed this. I do not have any evidence to make a finding either way in this issue, but in any event this does not matter. As soon as Ms P informed the Council she and Miss X wanted the arrangement to stop, the Council cancelled the Agency’s contract within a few days. There was no fault in how the Council dealt with this matter.

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Final decision

48. I have not found fault causing significant injustice. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman