Summary: There was no fault in the assessment of Mrs Y’s care needs or in consultation about the assessment. There was delay in completing the financial assessment and a failure to provide a copy of the care and support plan and personal budget. There were also failures in record-keeping and communication during a safeguarding investigation. The Council will apologise and make payments described in this statement.

The complaint

1. Ms X complained on behalf of her mother Mrs Y, that North Yorkshire County Council (the Council) and Dignicare (the Care Provider/ CP) acting on the Council’s behalf:
• Failed to properly assess Mrs Y’s care needs and consult her family before starting care.
• Failed to provide Mrs Y care in line with her care and support plan.
• Delayed completing Mrs Y’s financial assessment.
• Overcharged Mrs Y for care between March and June 2021.
• Failed to follow safeguarding procedures and keep them informed following a report of theft of Mrs Y’s property.
2. Ms X said the Council’s actions caused her avoidable time and trouble complaining and caused Mrs Y financial loss, uncertainty and distress.

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The Ombudsman’s role and powers

3. 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)
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 have considered the information provided by Ms X and discussed the complaint with her on the phone. I have considered the Council’s response to my enquiries and relevant law and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

Relevant law, guidance and policy

7. Section 9 of the Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. Section 18 places a duty on councils to meet the adults needs if those needs meet national eligibility criteria. Sections 24 and 25 say where the council identifies care needs in line with national eligibility criteria, it will prepare a care and support plan that sets out how those needs will be met. The council can meet the person’s eligible needs by arranging for a care provider to provide care.
8. Local authorities must take all reasonable steps to reach agreement with the person for whom the care and support plan is being prepared. (Care and Support Statutory Guidance, Paragraph 10.83)
9. The Local Authority must give a copy of a care and support plan to the adult for whom it has been prepared, any carer that the adult has if the adult asks the authority to do so and any other person to whom the adult asks the authority to give a copy. (Care Act 2014, section 25(9))
10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences.
11. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should normally follow. CSSG says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging.
12. The council must provide intermediate care and reablement care, free of charge for up to six weeks.
13. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. If a person has more than the upper capital limit (£23,250) the council must meet their eligible needs if requested but they will be expected to pay the full cost of their care and will not receive financial assistance from the council.
14. Where a council assesses a person’s needs and agrees to provide care, it should set a personal budget in a care and support plan. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
15. The council should share an indicative amount of the personal budget with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. (Care and Support Statutory Guidance, Paragraph 11.6)
16. Section 42 of the Care Act 2014 requires each local authority make enquiries if it believes an adult with care and support needs is experiencing, or is at risk of, abuse or neglect. A safeguarding enquiry establishes whether any action needs to be taken to minimise abuse or neglect. The Council’s adult safeguarding procedures emphasise the importance of feedback. They say keeping the person who reported the concern should be kept informed and this is an essential requirement of the process. The Council’s procedures also say a safeguarding report should be evaluated to assess whether there are any gaps in evidence.
17. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

What happened

18. Ms X and her siblings, including a sister, Ms N, have joint powers of attorney (POA) for Mrs Y’s health and finances. In January 2021, Mrs Y fell and injured her shoulder. She stayed in hospital for a week till 28 January.
19. Mrs Y’s discharge assessment recommended a free 6-week reablement care package to help her with personal care (bathing, dressing) and meal preparation. The records show Mrs Y’s social care assessor (SCA) checked her recovery and care and support after she returned home.

Care Needs and Financial Assessments

20. On 24 February the SCA visited Mrs Y for a review of the reablement package. The records confirm Ms N was present and consulted about Mrs Y’s ongoing needs. Mrs Y told the SCA she wished to remain on the same package and Ms N also agreed.
21. The review found Mrs Y was eligible for longer-term care. It recommended one hour in the morning and thirty minutes in the evening. This was for help with personal care, meal preparation and encouragement with moving around at home. The SCA told Mrs Y and Ms N that the care would be chargeable, and a financial assessment was necessary. Mrs Y provided consent for the financial assessment and the SCA gave Mrs Y a leaflet with further information.
22. Mrs Y’s care needs assessment and care and support plan were completed on 4 March in line with the review’s recommendations. The support plan included details of Mrs Y’s care hours and the named CP. It also included an indicative and agreed personal budget with a start date of 5 March.
23. On 10 March the financial assessment officer (FO) emailed Ms N asking for bank statements. On 17 March, Ms N asked how to send the information. Ms N delivered the documents to the Council the next day.
24. On 6 May the FO completed the assessment Ms Y was found to be over the capital limit and was therefore responsible for the full cost of her care from 5 March.
25. On 11 May, Ms X emailed the FO to say they wished to remove the CP and make their own private arrangements. Ms X said this was because some of Mrs Y’s jewellery was missing and the carers did not attend at the set time which caused Mrs Y inconvenience. Ms X said they had accepted outcome of the financial assessment and wished to move on.
26. The FO gave Ms X an email address in case she wished to appeal the outcome of the financial assessment. Ms X replied that she would consider appealing after the final care invoice. There is no record of Ms X appealing.
27. Mrs Y received a care invoice on 25 May. Further invoices followed in June, July, and a final revised version in August for care received between 5 March and 6 June.

Safeguarding enquiry

28. Ms X said three of Mrs Y’s rings and a bracelet went missing from her home in March. Ms N mentioned it to a reablement officer who relayed her concerns to a manager.
29. A reablement team manager contacted Ms N for further details. There was an allegation of theft of the jewellery against one of the care workers. Ms N said they asked the CP not to send the care worker again and were filing a police report. The manager provided Ms N with the senior care co-ordinator’s (SCC) contact details so she could formally report the matter as a safeguarding concern.
30. In April, the SCC telephoned Mrs Y and discussed the missing jewellery. Mrs Y mentioned the name of a care worker she believed was responsible. Mrs Y told the SCC that Ms N had reported the matter to the police. Ms X said she and Ms N set a ‘trap’ by leaving some jewellery out while one of the care workers was around. The jewellery disappeared but when they reported it, the jewellery turned up in a different spot the following day. Ms X said this information was also provided to the Council. Later in the week the SCC visited Mrs Y and Ms N. Ms N showed him a photo of the missing jewellery and confirmed the police were investigating.
31. Ms X told me the police closed the case, but the SCC promised to explore the safeguarding issue. Ms X said the family did not receive further updates. She said a few weeks later a council officer called to say the case was closed.
32. The Council’s safeguarding records show:
• It undertook enquiries with the CP which had also investigated and rejected the allegation. The CP said many other care professionals visited Mrs Y at the time the jewellery disappeared. The CP queried what evidence the family provided to support the allegation as the care worker had not attended Ms Y’s property during the relevant period.
• The police confirmed Ms N reported a theft on 1 April, but no crime reference number was assigned. This was because Ms N said she would take the matter further once she had an update from other agencies.
• The enquiry officer discussed the case with the SCC. It noted Mrs Y was upset about the missing jewellery but had accepted nothing further could be done to identify when and how it went missing. To safeguard Mrs Y, the family had removed all jewellery and money from her home. The record says Mrs Y also did not want to progress the enquiry any further. The enquiry officer reviewed the file, decided no further action was necessary and closed the enquiry report.
33. The Council confirmed it investigated the trap incident mentioned in paragraph 29 (above). The SCC advised Ms N to report it to the police. However, the enquiry record does not set out how the Council pursued further enquiries with the CP about the trap incident. It also does not say if Mrs Y or Ms N were sent a formal enquiry closure letter and if their feedback was sought.

Ms X’s complaint and Council response

34. Ms X complained to the Council about the invoices being incorrect. She said the Council had not consulted with Mrs Y’s family and imposed the CP without giving them a choice, despite Mrs Y having a POA. Ms X said the invoice included days when care workers did not attend. Ms X also mentioned the family would have cancelled care earlier if the financial assessment was completed sooner.
35. In its subsequent responses, the Council said Mrs Y’s POA was consulted and agreed the care package. It also confirmed it completed safeguarding checks following the theft report. The Council reviewed the CP’s time sheets and accepted there was an error as Mrs Y had been overcharged 36 hours. The Council apologised and agreed to issue a new invoice. The Council said it conducted spot checks to check the accuracy of invoices and to prevent overcharging.
36. The Council sent Mrs Y a new final invoice. Ms X replied saying the Council’s invoice was wrong and sent her own breakdown. She said the Council included additional hours and Mrs Y should only pay what she owed. In its final response, the Council confirmed it was satisfied with its calculations and was unwilling to make any further amendments.
37. Ms X therefore approached the Ombudsman.
38. In response to our enquiries the Council:
• Could not confirm if it had provided Mrs Y or one of the POAs a copy of her care needs assessment, care and support plan or personal budget.
• Provided the CP’s daily attendance record which showed care workers frequently did not attend at the scheduled time. They also completed tasks in less time than assigned in Mrs Y’s care and support plan on about 30 occasions. The Council explained this was because Mrs Y was often able to complete certain tasks herself, or it took less time to help her. The records also showed 13 days of non-attendance and six care visits logged where only one minute of care was provided but tasks are recorded as completed. The Council said it kept in touch with Mrs Y and she was satisfied with the care provided but it only provided once example of when it did this.
• Confirmed it had not received any other complaints regarding the CP and potential overcharging.

Was there fault and did it cause injustice?

i) Failure to properly assess Ms Y’s care needs

39. I do not find the Council failed to properly assess Mrs Y’s care needs. The records show the Council reviewed Mrs Y’s care needs on 24 February. The care needs assessment and care and support plans were completed on 4 March. This was in line with Sections 9 and 24 of the Care Act 2014.

ii) Failure to consult Mrs Y’s family and provide a copy of Mrs Y’s care and support plan and personal budget

40. The Council records show Mrs Y requested continued care and Ms N, who is one of Mrs Y’s POAs was present during the review and agreed. I do not find any fault in relation to a failure to consult.
41. However, the Council was unable to confirm if it provided Mrs Y or her POA a copy of her care needs assessment, support plan and personal budget as required by section 25(9) of the Care Act 2014. This is fault. The Council also did not satisfy the requirements of Paragraph 10.83 of Care and Support Statutory Guidance which requires it take reasonable steps in reaching agreement. This meant Mrs Y and her POA were not fully aware of the care and support plan and potential costs. Having this information may have allowed them to make a more informed choice about whether to continue with the CP or make their own arrangements.

iii) Failure to provide Mrs Y care in line with her care and support plan

42. The CP’s daily attendance records show many occasions where care workers did not attend at the scheduled time and recorded completing tasks in significantly less time than allocated in Mrs Y care and support plan. It is difficult to reconcile the number of tasks said to have been completed on the attendance records within the CP’s time periods recorded. The Council said it was possible Mrs Y did not need as much assistance on these dates. However, it only provided one example of when it checked with Mrs Y she was satisfied with the care.
43. I note some of the attendance records have very short call durations of one minute and many other attendances are less than the scheduled time. It is hard to reconcile these call durations with the tasks which the care workers have recorded they completed. On balance, my view is records cannot accurately reflect what was actually done during a call lasting one minute. And on 13 occasions, scheduled calls were missed. It is likely Mrs Y’s care was not in line with her care and support plan and therefore did not meet her eligible needs. This was inconsistent with the Council’s duty in Section 18 of the Care Act 2014 and Regulation 9 of the 2014 Regulations. This was fault which caused Mrs Y distress and a risk of compromising her wellbeing.

iv) Delayed completing Mrs Y’s financial assessment

44. The FO took about six weeks to complete the financial assessment and notify Mrs Y. The assessment took longer than necessary and was fault which caused Mrs Y avoidable uncertainty and distress. It was not in line with Paragraph 11.7 of Care and Support Statutory Guidance which emphasises that people need to be informed about the charge before their care starts.
45. Mrs Y’s care continued during the financial assessment period, and she was charged for it. Ms X said the family would have cancelled the care if they had known the outcome earlier and avoided incurring costs. However, at the time she did not mention cost but said it was because of the missing jewellery and attendance issues. There are no grounds for me to recommend a full refund of charges.

v) Overcharged Mrs Y for care between 5 March and 6 June 2021

46. The Council admitted its first invoice was wrong and concluded it had overcharged Mrs Y by 36 hours, which is fault. It has apologised and issued a new invoice which is a partial remedy. However, this was a significant number of hours only corrected after Ms X sent emails and checked timesheets herself.
47. I find Ms X went to avoidable time and trouble to identify the billing errors. The Council has explained it has a process for checking the accuracy of the Care Provider’s claimed hours by conducting spot checks on providers. I am satisfied with this process. The Council has also reduced the final invoice to reflect overcharging in this case.

vi) Failed to follow safeguarding procedures and keep them informed following a report of theft of Mrs Y’s property

48. I find the Council dealt with Ms X’s report of Mrs Y’s jewellery going missing and possible theft as a safeguarding concern and opened a safeguarding enquiry. This was in line with its responsibility under Section 42 of the Care Act 2014. The SCC telephoned Mrs Y for information and visited her at home to reassure her.
49. The safeguarding enquiry officer contacted the CP and confirmed they had investigated concerns about the care worker allegedly stealing jewellery. The Council said the SCC asked Ms N to report the incident to the police as it was difficult to establish when the items had disappeared. The SCC then contacted the police to confirm the position. Mrs Y’s family removed her jewellery and money to avoid any future issues. When Mrs Y accepted there was nothing further that could be done, the enquiry officer confirmed Mrs Y did not wish to continue with the enquiry, and it was closed. These actions were in line with the Council’s safeguarding responsibilities so, there was no fault.
50. However, the Council’s records do not demonstrate how the Council looked into the ‘trap’ incident. The lack of information in the report about how the safeguarding enquiry addressed this issue is poor record keeping and not in line with the Council’s procedures which is fault. The records also indicate the enquiry outcome was only communicated to Ms N by telephone. My view is that information about the outcome of safeguarding should also have been confirmed in writing. This is in the spirit of the Council’s procedures which emphasise the importance of feeding back to the person who reported the concern. Its failure to do was fault causing avoidable uncertainty and confusion.

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Agreed action

51. 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 CP, I have made recommendations to the Council.
52. The Council should, within a month of our final decision:
• Apologise to Mrs Y in writing for each fault identified in this statement and for the impact on her.
• Reduce the final invoice by a further £200 to reflect the CP’s failure to meet Mrs Y’s eligible needs during care calls lasting one minute and on 13 occasions when care workers did not attend at all.
• Pay Ms X £150 to reflect the avoidable distress and time and trouble she spent checking invoices and pursuing her complaint.

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Final decision

53. I uphold some of Ms X’s complaints. There was no fault in the assessment of her mother Mrs Y’s needs or in consultation about the assessment. There was delay in completing the financial assessment and a failure to provide a copy of the care and support plan and personal budget. There were also failures in record-keeping and communication during safeguarding. The Council needs to apologise and make payments described in this statement.

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Investigator's decision on behalf of the Ombudsman