Summary: Mr and Mrs X complained the Council arranged a care package for Mrs X between March and September 2021 that they had not requested and did not agree to, and that it failed to end the care package when they asked it to. Mr and Mrs X further complained the Council did not properly consider their complaint about it and a safeguarding matter. The Council failed to cancel the care package when requested to do so, and failed to communicate about its complaint handling. The Council agreed to apologise to Mr and Mrs X, cancel some of the outstanding care charges and pay them £300 each to recognise the distress caused to them.

The complaint

1. Mr and Mrs X complained the Council arranged a care package for Mrs X between March and September 2021 that they had not requested and did not agree to, and that it failed to end the care package when they asked it to. Mr and Mrs X further complained the Council did not properly consider their complaint about the matter and a safeguarding concern they raised about a care worker. Mr and Mrs X stated this caused them distress, the loss of their privacy and enjoyment of their home.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. If we are satisfied with an organisation’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

5. I read the documents provide by Mrs X and discussed the complaint with her and Mr X on the phone.
6. I considered the documents the Council sent in response to my enquiries.
7. Mr and Mrs X 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

Care and support

8. Councils must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and must also involve the individual and where suitable their carer or any other person they might want involved. It must carry out the assessments over a reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment. (Care Act 2014, section 9 and 10)
9. If a council identifies the person has eligible needs for care it has a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has.
10. A council has a duty to arrange care and support for those with eligible needs. A council can choose to charge for non-residential care following a person’s needs assessment. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.

Safeguarding

11. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Mental capacity

12. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision because they make an unwise decision.

Human Rights

13. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes respect for private and family life. The Act requires all councils to respect and protect individuals’ rights.
14. Not all rights operate in the same way. The right to a private and family life is a qualified right. This means that right can be interfered with (in certain circumstances) in order to protect the rights of others or wider public interest.
15. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

The Council’s complaints procedure

16. The Council’s complaints procedure states it will investigate within 25 working days but may need longer if it is complicated. It states it will provide its response in writing and explain how it will implement any learning from complaints.

What happened

17. Mr and Mrs X are in their 80’s and live at home together. Mrs X has some medical issues and finds it difficult to move around without support. Mr X provides support to Mrs X to help her meet all her daily care needs.
18. In March 2021 the Council received a safeguarding referral for Mrs X from a healthcare professional. It said that Mr X was her main carer and he had been taken to hospital following a medical incident. It said Mrs X was frail, used a zimmer frame to move around and had a history of frequent falls. She needed immediate support with all daily living activities in her husband’s absence.
19. The Council made some enquiries with a friend, and a neighbour of the family who both stated Mr X provided all Mrs X’s care needs and she could not be left overnight on her own. The Council also phoned Mrs X who stated she was being supported by friends but she did not know how long for and she needed support.
20. Mrs X states the information the friend and neighbour provided to the Council was incorrect and provided maliciously and she could manage on her own. Mrs X did not know why the friend and neighbour would provide malicious information.
21. Two days later the Council contacted Mrs X by phone. A social worker recorded they spoke on speaker with Mrs X’s friend present. Mrs X wanted a package of care and was aware she would need to pay for it. A different social worker spoke to Mrs X’s friend later that day. She stated Mrs X had a stairlift but needed support in using it and was unable to get to the door to let people in.
22. The Council arranged a key safe to be installed and for a community alarm service. The Council contacted Mrs X’s GP to understand her medications and arranged an emergency care package to start from 11 March 2021. The package consisted of four care calls a day. The care workers would assist Mrs X to get up, washed and dressed, to prepare meals, take medication and go to bed.
23. Mr X returned from hospital later in March 2021 and was still recovering from his medical episode. He was receiving support from the Council’s rehabilitation team however he cancelled it after two days as he stated he did not need it.
24. A different social worker completed the care act assessment with Mrs X at the end of March 2021 while Mr X was present. It recorded Mrs X was aware she was paying for her care. Mr X was her main carer and would be again when he recovered. She stated she also wanted Mr X to be provided care by her own care worker. Mrs X needed support with all activities of daily living and was taking 12 medications which she needed support to administer. The assessment recorded Mrs X had eligible care needs and they were being met by her package of care.
25. On the 20 April 2021 the social worker contacted Mrs X. Mrs X reported everything was well with her care and she was pleased with her care worker.
26. At the end of April 2021 the Council completed a financial assessment for Mrs X. It recorded Mrs X would pay the full cost of her care. The Council wrote to Mrs X and told her the amount she must pay from the start of the emergency care package and in the future.
27. On the 19 May 2021 the Council received an email from a health professional. It said Mrs X wanted to cancel the care package as Mr X had returned and was her carer. Mrs X had said the care package was invading their privacy. The Council spoke to Mr X who confirmed he could provide all the care for Mrs X.
28. On the 26 May 2021 the care provider visited Mrs X at home. She reported a care worker was rude and had been verbally aggressive. Mrs X stated she did not need a care package now Mr X was home. The care provider recorded it would change the care worker and inform the Council Mrs X wished to cancel the care.
29. In June 2021 Mr X was admitted to hospital and stayed for 6 days. He was discharged with rehabilitation care, which he cancelled after one week as he said he did not need it.
30. Mrs X again asked the Council to cancel the care package on 19 August 2021.
31. A Council social worker visited Mrs X a week later to complete a reassessment. It recorded Mrs X had capacity to make decisions and did not want a care package.
32. The social worker phoned Mr and Mrs X three weeks later and asked them how they would manage without the care package. Mrs X reiterated she did not want it. The Council said it would suspend the package and monitor the situation.
33. Mr and Mrs X complained to the Ombudsman in September 2021. They said the Council had been providing and charging them for a package of care they did not want or agree to. We wrote to the Council and asked it to consider the complaint.
34. The Council visited Mr and Mrs X at home a month later and discussed their complaint. It recorded a further safeguarding complaint against the care worker. It recorded Mrs X did not want a safeguarding enquiry but wanted the care to end. The Council decided it was in the public interest to investigate the complaint.
35. The Council told the care provider it had received a safeguarding concern. It asked the care provider to investigate.
36. The care provider completed its investigation at the end of December 2021. It recorded Mrs X asked to cancel her care package two months after it began. The care provider confirmed it had reviewed its records and spoken to the care worker, who had either explained the circumstances or denied the incidents happened as described by Mrs X.
37. The Council made further enquiries in March 2022 with the community alarm service and the NHS.
38. The Council held a safeguarding meeting with the care provider in April 2022. The meeting concluded the outcome was inconclusive. It said the allegations were Mrs X’s word against the care worker’s and could not be proven either way. It stated the care worker had been removed before the care package stopped. It decided to close the enquiry.
39. The actions from the enquiry were:
• the Council would write to the rehabilitation team manager about coordinating and communicating when other care agencies are involved;
• the care provider would provide refresher training for the care worker on medication administration, promoting choice, communication and accessing service users’ property; and
• the care provider would write an apology to Mrs X for the way she felt about the service.
40. The Council wrote to Mrs X in June 2022 and told her the outcome of its safeguarding enquiry. It explained there was insufficient evidence to make a finding. It told Mrs X what actions it and the care provider would take.
41. The care provider confirmed to the Council it had written to Mrs X, and arranged the relevant training.
42. The Council responded to Mr and Mrs X’s complaint about the care package in August 2022. It apologised for the delay and said it had to wait for the safeguarding enquiry to complete. It said:
• the care package was to meet Mrs X’s needs as described to the Council, she knew she would have to pay and agreed to accept the care package;
• it agreed Mrs X tried to cancel the package on 19 May 2021, but as Mr X had returned to hospital in June it was likely Mrs X would have needed the care package to be reinstated. Therefore, it was reasonable for the Council to leave the care package in place;
• it should have reviewed Mrs X’s care needs when she asked to cancel the care package; and
• it agreed to refund the care charges from 19 May 2021 until Mr X returned to hospital in June 2021, and from 20 August 2021 when the social worker completed the care review.

Additional information

43. The Council stated it holds quarterly contract monitor meetings to follow up recommendations from complaints. This case was due to be discussed in October 2022.
44. I requested the daily care records for Mrs X, the Council was not able to provide these as the care provider could not retrieve them.
45. Mrs X stated she had received recovery action letters from the Council for the care charges which caused her distress.

My findings

Did Mr and Mrs X request and agree to the care package?

46. The evidence shows Mrs X did request and agree to the care package in March 2021. The Council was not at fault when it initially arranged the care at that time.
47. The Council carried out an emergency assessment of Mrs X’s needs when it was requested to do so by Mrs X, a health professional and Mrs X’s friend. It considered the information available. The Council decided Mrs X had eligible care needs and arranged appropriate support to meet those needs. Although Mrs X now states she did not need it, the records show she requested support from the Council and accepted it. The Council later completed a full assessment with Mrs X which confirmed she needed and wanted the identified care at that time.
48. The records show two separate social workers told Mrs X she would need to pay for the care, and a third confirmed it with a friend supporting Mrs X. Mrs X acknowledged the charges and agreed to care being arranged. The Council also completed a financial assessment and sent Mrs X a letter confirming the charges for the care. There is no record of Mrs X disputing that at the time.

Did the Council cancel the care package when Mrs X asked it to?

49. The Council did not cancel the care package when Mrs X asked and that was fault. There is no evidence the Council had due regard to Mr and Mrs X’s right to a private and family life when it did not cancel the four care visits per day. The faults caused an invasion of their privacy and caused Mr and Mrs X distress.
50. Mrs X asked the Council and care provider to cancel the package twice in May, twice in August and once in September 2021. The Council already acknowledged it should have taken action when Mrs X first asked and refunded all but eight weeks of the charges after that date. It did not remedy any distress caused as a result of that fault.
51. The Council states Mrs X should pay the cost of the package between June 2021 and August 2021 as Mr X had returned to hospital and could not provide care to Mrs X. I am not persuaded by this argument for three reasons:
• There is no evidence the Council made that decision at the time of events or discussed it with Mrs X. Mrs X had previously arranged her own short-term support with friends. The Council’s justification of the charges is retrospective;
• Mr X was in hospital for six days and cancelled his own rehabilitation care one week after his discharge. Therefore, it is more likely than not the maximum time he could not meet Mrs X’s care needs was two weeks, not the eight suggested by the Council. As the Council has been unable to provide the care provider’s daily records there is no evidence Mrs X accepted the support offered by the care provider during that time; and
• The Council’s records show Mrs X had the capacity to make her own decisions about her care and support. The legislation is clear that people are entitled to make decisions even if they may be unwise. Mrs X said she wanted to cancel the package. There is no evidence Mrs X would have changed her mind about the package when her husband returned to hospital.
52. The Council should not have charged Mrs X for eight weeks care and doing so was fault. This caused Mr and Mrs X distress.

Did the Council properly consider the complaint and safeguarding matter?

53. The Council accepted Mr and Mrs X’s complaint in September 2021. It also opened a safeguarding enquiry as it decided it was in the public interest to do so. The enquiry was thorough and considered all the available evidence. This decision was not fault and the Council told Mrs X why it had completed the enquiry and its result.
54. However, there is no evidence the Council told Mrs X it would not investigate the complaint until after the safeguarding investigation was complete. Although the decision not to consider the two elements at once was not fault, the failure to inform Mr and Mrs X was fault and caused them frustration.
55. The Council did not take any action in its enquiry during January or February 2022. The Council closed the safeguarding investigation in April 2022 but did not inform Mrs X or start considering the other elements of complaint until June 2022. The delay was fault and caused Mrs X frustration.
56. During the time the Council was considering the complaints Mrs X received recovery action letters from the Council. The Council decided to put her complaint on hold until the safeguarding investigation concluded. Therefore, the Council should have put any recovery action on hold until it completed its investigations. Not doing so was fault, which led to Mrs X inappropriately receiving recovery action letters which caused her uncertainty and distress.

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Agreed action

57. Within one month the Council will:
• write to Mr and Mrs X, apologise and pay them £300 each to recognise the distress caused to them by the faults identified; and
• cancel the remaining care charges between June 2021 and August 2021 and end any ongoing debt recovery action for that period.
58. Within two months the Council will;
• provide evidence the actions identified in paragraph 39 have been completed;
• remind relevant staff to take timely action when someone requests to cancel a care package, even where it may be an unwise decision;
• remind staff considering safeguarding issues and complaints to ensure the complainant is aware when one element is put on hold for the conclusion of the other enquiry; and
• remind the care provider of the importance of keeping accessible records for people it has provided care to.
59. The Council will provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman