Summary: Mr C said the Council failed to provide the care he needed and communicated with him poorly. On the evidence seen, the Council was at fault for a failure to provide an occupational therapist’s appointment for a year. It was at fault for not wearing transparent masks when visiting Mr C. These faults caused Mr C injustice in the form of distress and poor care. We have recommended the Council apologise to Mr C, make a financial payment and service improvements. However, the Council is not at fault for its financial assessment of Mr C’s ability to pay for his care.

The complaint

1. The complainant, Mr C, said the Council was at fault for:
1. Unacceptable delay in providing him with an occupational therapist appointment to assess his bathroom.
2. Refusal to provide him with care from care workers without masks.
3. Failure to provide him with adult social care since April 2022.
4. Failure to ensure that he is housed in suitable accommodation, and
5. Failure to make allowance for health related expenditure when calculating his contribution to his own care.
2. Mr C says Council fault has caused him injustice in that he has had inadequate care and has been asked to pay too high a contribution towards that care.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. We consider whether there was fault in the way an organisation made a decision. If there was no fault in the decision-making process, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. 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.

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How I considered this complaint

9. I spoke to Mr C. I wrote an enquiry letter to the Council requesting further information. I considered all the evidence I had gathered alongside any relevant law and guidance before writing a draft decision.
10. Mr C and the Council had the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should happen

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
12. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

Charging for non-residential care

13. Councils have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)

How to assess financial contribution

14. 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. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
15. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

Disability Related Expenditure

16. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Reablement

17. The Council provides a free “reablement” service which provides support to adults who have lost skills or abilities due to ill-health, hospitalisation, a loss of confidence or disability. The reablement team will work for between one day and six weeks with those requiring the service to help them cope in their own homes.

What happened

18. Mr C lives in the Council’s area. He has mobility problems and suffers from Post-Traumatic Stress Disorder (PTSD).
19. Mr C says his bathroom is not suitable for his needs because of his mobility problems. He says he cannot use it without putting himself at risk. The Council’s records show that he requested adaptations to the bathroom in July 2021 and was put on the waiting list for an occupational therapist (OT) visit in late August 2021. The OT would check to see if the bathroom could be adapted.
20. In April 2022, Mr C had been assessed as requiring 10 hours of care and support weekly to help him with needs such as hygiene, dressing, shopping and social inclusion activities. This was provided by a domiciliary care company, Care Company A. This had been arranged by the Council. Mr C had a social worker who oversaw his case.
21. At the beginning of April 2022, Mr C had a dispute with his doctor and needed to change doctor’s surgeries urgently in order to get medicine prescribed. Unfortunately, at the time, his social worker had COVID as did his carer. This led to delays in dealing with his concerns.
22. On 7 April 2022, Mr C telephoned the Council saying he needed a new carer and a new social worker to help him with appointments. Four days later, on 11 April 2022, he contacted the Council and said he had complained to the Ombudsman as he had had no response to his many calls.
23. That day, a duty social worker contacted Mr C. Mr C said he was bed-bound because he was taking strong medication. He said his flat was dirty and he needed support and help with domestic tasks such as cleaning. The social worker said she would look into this for him and told him that the Council charged service users for domestic assistance such as cleaning.
24. On 12 April 2022, an officer looked into finding alternative domestic care and support for Mr C. It went to Care Company A which said that it believed Mr C’s normal carer was back at work after taking time off for COVID.
25. On 13 April 2022, two officers visited Mr C at home and said they would look into providing direct payments for Mr C to allow him to employ his own carer. Mr C says he did not agree with going to direct payments. Over the next week, the Council helped Mr C with finding alternative care visits over the bank holiday and with arrangements for a hospital visit. These were arranged through Care Company B.
26. On 19 April 2022, Mr C phoned the Council and asked for Care Company B to provide all his care from now on. A social worker, Officer O, contacted Mr C to tell him what the charge would be. Mr C was happy with the rate charged.
27. In late April 2022, Mr C went into hospital for approximately a week. He went home on 2 May 2022 and the Council provided reablement support. Mr C later said he did not want the reablement team to wear masks as it triggered his PTSD. The Council said the masks were necessary to prevent the spread of COVID. The Council offered to wear clear facemasks to which Mr C agreed.
28. Mr C also contacted the Council saying that his housing was unsuitable for him as it was mouldy and the bathroom was too small given his mobility problems. The Council offered him assistance with contacting his housing provider.
29. On 10 May 2022, Care Company B asked the Council to increase the amount of care Mr C received. It said ten hours was not enough as Mr C had many medical appointments, during which he needed support, which would sometimes take up all the time. Any time left over was not enough for shopping and cleaning. The Council refused. It said that, if necessary, Mr C could “borrow” hours from the next week and do shopping online.
30. On 11 May 2022, the Council records show Mr C asked to increase his care package to 20 hours per week. Mr C says he asked to his care package to 15 hours per week. He said he could not do online shopping as it was too expensive. He said he had no hours which could be used for social inclusion. He repeated this request on 17 May. A social worker told him this would be considered at a six-week review.
31. Mr C continued to refuse access to reablement workers if they wore facemasks. The Council said government guidance required them to wear masks.
32. Over the next month, Mr C continued to raise concerns with the Council about the number of hours care he received.
33. Mr C also continued to try to have adaptations made to his flat. To help with this, he would need a visit from an Occupational Therapist (“OT”). The Council says he had first raised this issue in July 2021. Mr C contacted the Council and pressed for a visit as soon as possible. An OT contacted him and said that he would be treated as a priority case but that there was a long waiting list.
34. On 9 June 2022, Mr C told the Council his freezer had been switched off by carers and his food was ruined. Officer O went to a food bank and collected food for him. Care Company B agreed to replace the spoiled food.
35. On 16 June 2022, Mr C contacted the Council and complained that he had received a bill for unpaid care charges from Care Company B. Officer O advised him to contact the Council’s finance department.
36. On 22 June 2022, the Council explained to Mr C’s housing provider why his housing was unsuitable. The provider put Mr C on the transfer list.
37. Mr C told the Council on 23 June 2022 that his flat had been burgled and clothing had been stolen. He complained that his carer had not provided any care the day before and said he would not pay the bill. Officer O contacted Care Company B which said it was aware of the allegations, which it denied. It said it would continue to provide care for Mr C. However, later that day, a company representative phoned Officer O to give one week’s notice to stop providing care for Mr C because he had made numerous false allegations against carers. Mr C said he made two allegations against carers. Mr C said he would not pay his bill.
38. At around this time, Mr C’s reablement care package was due to come to an end. Reablement officers were concerned that Mr C was in low mood and had no care. Reablement visits were therefore extended. Mr C said he was supported to attend medical appointments but not with personal care or housekeeping.
39. It was also at around this time that the Ombudsman wrote to the Council to tell it that we had decided to investigate Mr C’s complaint, which he had brought to us some time earlier without first complaining through the Council’s internal complaints process.
40. Again, at around the same time, the Council found another care company, Care Company C, which came to visit Mr C. The representative said its carers did not generally drive customers in their own cars but would accompany Mr C on public transport. Mr C said he would not take public transport.
41. It is clear that Mr C was in low mood in late June 2022. Officer O arranged a meeting between Mr C and mental health professional. The Council’s records show Mr C refused the meeting. Mr C disagrees.
42. Mr C now had no care. Officer O continued to try to source an alternative provider.
43. Reablement officers would, from time to time, arrive at Mr C’s flat wearing masks. He found this upsetting and refused them access. Officer O attempted to solve the issue with reablement.
44. On 11 July 2022, Officer O received a call from Care Company B about their unpaid bill.
45. On 12 July 2022, Mr C contacted Officer O and said his flat was now a mess as he had no care. Officer O was unable to help. On the same day, the Council’s mental health team said they could not support Mr C as he did not meet their criteria. Officer O protested. Later that day, she left her temporary placement.
46. The next day, a reablement manager phoned Mr C to say it would continue to provide one day’s support a week until a new care company was found,. It would also provide support for medical appointments. An officer accompanied Mr C on a visit to the doctors two days later and to many others over the coming months.
47. The Council found another care company, Care Company D which was due to begin providing care for Mr C. However, on 21 July 2022, the company contacted the Council to say a carer attended three times but Mr C would not admit them. Mr C disagrees.
48. Mr C contacted an MP to support him. He also contacted a housing charity to try to be moved to another council’s area.
49. On 25 July 2022, Mr C contacted the Council saying his calls had not been answered. Mr C’s new caseworker, Officer P, phoned him back. Mr C said reablement visits had stopped and he had received no care of any kind for two weeks.
50. Officer P contacted Care Company D and arranged for care to start in early August 2022. She also arranged a social inclusion shopping trip for Mr C on 26 July 2022 but Mr C said he did not feel up to going.
51. The next day, an OT visited Mr C at home and carried out an assessment. Her report was forwarded to Mr C’s housing company in early August 2022.
52. Carers from Care Company D carer began visiting twice daily in early August 2022. Mr C felt these visits were not long enough. Officer P asked for Mr C’s permission to ask for the visits to be longer. Mr C says he requested the carers attended for 40 minutes every two days as 20 minutes per day was not enough to meet his needs.
53. Later, Mr C’s reablement visits were reinstated. Mr C says this included one hour for shopping per week and support to attend medical appointments.
54. In October 2022, Mr C complained that the Council had failed to support him. He said his bed and his fridge had broken and he asked the Council to pay for new ones. The Council says it helped him apply for grants to fund these purchases. It also directed him to the Citizens Advice Bureau.
55. Mr C felt that Officer P was not providing him with sufficient support. He said it was her job to apply for grants on his behalf. The Council said that Officer P had applied for a grant he was entitled to apply for but had not applied for others as Mr C was disqualified as he had too high an income from his PIP payments and too much in savings. Mr C disagrees with this.
56. Mr C asked for another case handler. The Council offered him a social worker who, Mr C said, was unacceptable. He said he would seek legal advice.
57. In late October 2022, Mr C’s housing provider offered him alternative housing. This would have involved some expenditure which Mr C believed he could not afford. The Council carried out internal discussions and said that it would help him if necessary. Unfortunately, the property was not suitable.
58. In November 2022, the Council wrote off the debt Mr C owed to Care Company D which he had not paid. Mr C said he made some payment toward this.

Was there fault causing injustice?

Delay in occupational therapist appointment

59. Mr C first requested an OT appointment in late-July 2021. The OT visited him in late-July 2022. The Council has accepted this was an unacceptably long time.
60. The Council says that the causes of the delay were COVID-19 and a national shortage of OTs.
61. The Ombudsman has accepted that COVID-19 caused significant problems to councils and is understanding of the pressures they faced. However, we have also said it did not excuse councils of their duties and responsibilities.
62. The Ombudsman also accepts that there are shortages of qualified professionals in various fields. Again, while we understand the difficulties councils face, this does not excuse a failure to provide a service.
63. Therefore, while I accept that the Council faced pressures that made it difficult to provide the OT service to Mr C, this was a service failure and therefore fault. This fault caused Mr C injustice.

Failure to provide suitable accommodation

64. The Council does not provide Mr C’s accommodation. This is provided to him by a housing provider. As stated above, the Council was at fault for the delay in the OT appointment. This meant that Mr C’s request for moving could not be considered by his housing provider sooner. This was fault and it caused Mr C injustice.
65. I cannot say that Mr C would have received alternative housing by now had the Council acted more quickly. Mr C did not bid for any alternative housing. However, an earlier OT assessment would certainly have placed him in a better position to be rehoused.
66. In this case, because I cannot say what the result would have been had Mr C had an earlier OT assessment, I intend to make a recommendation based on the uncertainty and distress caused to Mr C by the failure.

Wearing masks

67. There were many occasions on which reablement officers attended Mr C’s house wearing masks. Mr C said he found this very upsetting as he had been attacked by people wearing masks in the past. He asked them to come without masks. The Council refused saying masks were necessary to stop the spread of COVID.
68. Mr C frequently refused officers entry. They agreed, after a while, to wear transparent masks but it is clear from the records that they did not always do so.
69. The Council has stated that there was government guidance in place at the time of the incident requiring officers to wear masks to prevent the spread of COVID. It was, therefore, unable to agree to Mr C’s demands that masks should not be worn. It failed, however, to stick to its agreement to wear transparent masks. This was fault.
70. This fault caused Mr C injustice in that he was upset. He says it increased his symptoms of PTSD and he attempted suicide. I acknowledge Mr C’s comments, however, there are a myriad of factors that play into a person’s wellbeing, and I cannot directly attribute any impact to the failure to wear transparent masks. The Council has apologised for its failures. This was an adequate remedy for the injustice caused.

Failure to provide care since April 2022

71. On the evidence seen, the Council has made efforts to provide care for Mr C. It found four care companies. It was not the Council’s fault that Mr C moved from Care Company A to Care Company B. Nor was it the Council’s fault that Care Company B terminated the contract with Mr C. Nor was it the Council’s fault that Mr C chose not to employ Care Company C.
72. During the period when Mr C had no care provider in place, the Council extended its reablement service, which should operate for six weeks at most, to run from early May to early September 2022.

Financial assessments

73. Mr C does not agree with the Council’s financial assessments which mean that he is required to pay a contribution of £89.46 per week towards the cost of his care. Mr C says this is excessive. The Council says this figure has been reached by applying the CRAG formulae.
74. Mr C says he has certain health-related expenditure which the Council does not take into account when making its calculations. He says he has tried other medications as an alternative but has had adverse reactions. Mr C says he needs to take CBD oil which costs him approximately £100 every two weeks.
75. The Council is aware Mr C has fibromyalgia and takes CBD oil to alleviate his symptoms. The Council’s position is that this is not a prescribed medicine and is therefore taken as a matter of choice. It cannot therefore factor the cost into its considerations. The Council has asked Mr C if he would consider discussing alternative treatments with his GP, but Mr C has refused.
76. I am satisfied the Council considered Mr C’s request for an allowance for CBD oil. This is an area of discretion for local authorities, and it is not for us to criticise discretionary decisions taken without fault. I appreciate Mr C will be disappointed but I have no grounds to criticise the Council’s approach.

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Agreed action

77. Within one month of my final decision the Council will:
1. apologise to Mr C for the faults identified in this statement; and
2. pay Mr C £400 for the injustice identified in paragraphs 63, 64 and 66 caused by the delay in completing an OT assessment.

Within two months of my draft decision the Council will:

3. explain the steps it has taken or intends to take to address the shortage of qualified OT’s and the impact this will have on waiting times for assessments.
3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

79. I have found fault by the Council causing an injustice to Mr C. The Council has agreed to my recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman