Summary: I have found no evidence of fault by the Council in the way it dealt with Mrs Y’s domiciliary care package

The complaint

1. Mr X complains that a care agency providing care to his mother, Mrs Y, on behalf of the Council terminated her care package without consultation or prior warning. Mr X says the Council failed to monitor the care agency and failed to investigate misleading statements it made about Mrs Y care needs.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. I have:

• considered the complaint
• considered the correspondence between Mr X and the Council
• made enquiries of the Council and considered the responses
• taken account of relevant legislation
• offered Mr X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

Back to top

What I found

Relevant legislation

5. The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s duties towards adults who require care and support.
6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.

Key facts

7. Mrs Y is a centenarian. She lives at home and previously received home care services from Night & Day Care agency for approximately eight years.

In March 2020 Mrs Y had a brief stay in hospital. Whilst in hospital she was assessed by an Occupational Therapist (OT). The OT recorded “the patient was assessed today (18/03/20) and feel she is ok with the current POC”. Social Worker to be informed of the need to re-start services”.

8. Mrs Y was deemed medically fit for discharge and needed to move from an acute hospital bed. Due to the pandemic specific discharge arrangements were in place across all Councils and the NHS to facilitate prompt discharge from hospitals.
9. A hospital social worker contacted the care agency to request Mrs Y care package be restarted with a last call on 17 March 2020. The care agency sent an email back the same day saying it had no capacity to restart Mrs Y’s care package. Usually care agencies are required to give two weeks’ notice to end a care package, this is not required if an agency ceases a care package due to capacity issues.
10. The care agency reported the hospital OT had informed it Mrs Y would need two carers.
11. The Council received a telephone call from the hospital’s discharge team on 17 March 2020 saying Mrs Y was medically fit for discharge, and she could return home with her existing level of care, but a change of provider was needed. It says a reassessment of a person’s needs is not carried out at the point of discharge when the request is for a restart of the same level of care. The hospital discharge team were unable to inform Mr X that the care agency would not be re starting the care package as his contact details were not on Mrs Y’s records.
12. When responsibility was transferred from the hospital assessment team back to the Council, the Council contacted the hospital to clarify the information provided by the care agency. It liaised with the hospital discharge co-ordinator who confirmed that the notes made by the OT showed no recommendation for two carers. The Council spoke with the care agency about reinstating Mrs Y’s care package and confirmed she needed one carer. The care agency continued to decline on the basis that it did not have capacity even for single handed package of care.
13. The Council says when a request for care services is declined, a referral to its brokerage team is made so a new care agency can be commissioned.
14. The Council commissioned a different care agency to provide Mrs Y’s care. The Council also allocated a social worker to review Mrs Y’s care needs. As part of the review the social worker contacted Night & Day care agency again to ask if it could reinstate Mrs Y’s care and confirmed Mrs Y needed only one carer. The agency declined again, saying it did not have capacity for even a single carer.
15. Mr X was unhappy that Night and Day did not inform him it was cancelling Mrs Y’s care package. He believes the care agency lied about the advice it had been given from the hospital OT and that this caused the cessation of a long-standing care package.
16. Mr X says the change in care agency caused Mrs Y great distress. She knew the carers well and considered them friends. English is not Mrs Y’s first language and most of her relatives and friends have either died or moved away. She is socially isolated and depended on the carers for emotional support. Mrs Y had a good relationship with a particular carer. The care agency told the Council that the carer in question had been allocated to another person and was therefore no longer available to support Mrs Y.
17. Mr X contacted Night & Day to ask it to visit Mrs Y because it provided private shopping and domestic services to Mrs Y. The newly commissioned care agency reported this back to the Council. The Council sent Mr X an email on 20 April 2020 to confirm the arrangement. It says Mr X did not respond. To ensure Mrs Y’s needs were met, the Council added a shopping and domestic call to Mrs Y’s support plan and cancelled the arrangement with Night & Day. The Council did not inform Mr X, it later apologised for this.
18. Mr X says the Council failed to take any action against the care agency, despite it confirming the information it provided to be incorrect.

Analysis

19. It is not the Ombudsman’s role to instruct the Council on its day-to-day business. The Ombudsman’s role is to consider if there is evidence of maladministration by the Council, and if it acted within the law and guidance.
20. In this case I find no fault by the Council.
21. Mr X believes the Council ‘allowed’ Night & Day care agency to terminate Mrs Y care package. The care agency is independent of the Council, as such the Council has no control over the decisions the care agency makes, unless there is a breach of the contractual agreement. Even in circumstances where there is a contractual breach, the Council has no legal powers to insist a care agency reinstate a person’s care.
22. The records show the Council contacted the care agency on more than occasion to reiterate that Mrs Y needed only carer, and to ask if it would reinstate the care package. The care agency refused saying it had reallocated Mrs Y regular carer elsewhere and it had no capacity to take on even a single-handed care package. The care agency was entitled to make this decision. The Council is not at fault here.
23. Mr X wanted the Council to hold the agency to account. The care agency made its decision and there was no basis on which the Council could hold it to account. In any event it is not possible to investigate a verbal conversation between the care agency and the OT. Whilst the OT’s records show she did not report two carers were required, the advice given verbally could not be verified. Each party will have their own interpretation and there could be no useful purpose in pursuing it.
24. In the absence of any contractual breach, the Council’s role is to ensure people with assessed eligible care needs are provided with care that meets those needs. In doing so it discharges its legal duty. In this case the Council ensured Mrs Ys’ needs were met. It may not have met Mrs X preference, but the law is clear that a person’s wishes are not the same as their needs and wishes are not the paramount consideration.
25. However, Mrs Y is particularly vulnerable, and it is understandable that she wanted carers that were familiar to her and with whom she enjoyed good relations. It is unfortunate the care provider could not reinstate the care package.
26. The Council acted properly and in accordance with the law.

Back to top

Final decision

27. I have found no evidence of fault by the Council in the way it dealt with Mrs Y’s domiciliary care package
28. It is on this basis; the complaint will be closed.

Back to top

Investigator's decision on behalf of the Ombudsman