Summary: Mr and Mrs X complained the Council commissioned care provider failed to deliver the full hours of support they were contracted to provide to their relative Miss Y. The Council was at fault. It failed to ensure Miss Y received her full hours of support, failed to address Mr and Mrs X’s concerns in a timely manner and for poor quality care needs assessments and support plans. It has agreed to apologise, make payments and review Miss Y’s care and support plan. It has also agreed to remind officers to escalate concerns to complaints where appropriate. It has already taken appropriate action to address the care provider’s poor recording practices and the delays in the complaints process.

The complaint

1. Mr and Mrs X complained the Council commissioned care provider Heart and Hands South (the care provider) failed to deliver the full hours of support they were contracted to provide to their relative Miss Y. So she did not receive all the support she required and was charged for care she did not receive. In addition, they complained the Council delayed addressing their concerns which meant the situation continued for longer than it should have, causing them frustration.

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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. 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) In this case the Council commissioned the care provider to support Miss Y so we consider the Council is responsible for its actions.
4. 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.
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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

7. I have considered the information provided by Mr and Mrs X and discussed the complaint with them on the telephone. I have considered the Council’s response to our enquiries and the relevant law and guidance.
8. I gave the Council and Mr and Mrs X the opportunity to comment on a draft of this decision. I considered any comments I received in reaching the final decision.
9. 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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What I found

The relevant law and guidance

Assessment of needs

10. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. Where the council identifies “eligible” care needs 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.
11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months.

The Council’s complaints policy

12. The Council operates a two stage complaints process for adult social care complaints. At stage one complaints will be allocated to an officer independent of the situation to investigate and write a response with a target of 20 working days. At stage two, a manager in adult social care who has not previously been involved in the complaint or the originating incident may be appointed as an Independent Officer to investigate and respond within a target of 40 working days.

What happened

13. The following is a summary of what happened. It does not reflect all the contact and correspondence between the Council and Mr and Mrs X but refers to key events.
14. Miss Y has a learning disability and health conditions. She lives with her two sisters, one of whom also has a learning disability and who also receives support from the same care provider. Her sister, Miss W, provides support for both sisters. Mr and Mrs X are court appointed deputies for Miss Y’s property and finances. The Council financially assessed Miss Y as being required to pay for her full care costs.
15. A needs assessment completed in 2021 noted Miss Y required prompts to carry out personal care. She was unable to walk far and used a wheelchair for distances. It noted Miss Y’s sister Miss W provided her with support but had her own physical needs and was awaiting an operation and was finding it difficult to achieve the tasks she used to manage. It noted Miss W supported Miss Y with administering medication and with preparing food and drink.
16. Miss Y required support with maintaining and monitoring her personal care, attending medical appointments, household chores and structured social activities to engage in. Miss Y was assessed as needing 25 hours of support per week; two hours each morning, one hour 30 minutes each evening with an extra 30 minutes on one day of the week.
17. Mr X contacted the social worker in July 2021. He said the evening visit was too late and asked if this could be earlier. He also said he had anecdotal evidence that some sessions were only 15 to 30 minutes long when the minimum visit was one hour. He said a neighbour had raised this with him after timing a visit as 15 minutes long. He requested a meeting and asked for a copy of Miss Y’s care plan.
18. The social worker responded that the call time could not be changed at present due to the availability of the care workers. The social worker said the expectation was that the care provider provided the support hours they were funded for. They said they would discuss this with the care provider to ensure they were delivering what the Council was funding. The social worker said they would ask the care provider to leave a copy of the care plans at the property, so staff were aware of their responsibilities.
19. Mr X emailed the social worker in August 2021 and requested copies of the care provider’s time sheets as he had concerns around visits being short of the contracted time. He wanted to ensure they were paying for the correct number of hours. The social worker telephoned Mrs X asking which days needed checking. Mrs X said it was not specific days but a comprehensive review of all the days to have assurance Miss Y was being charged correctly.
20. Mr X contacted the Council again in December 2021. He said as Miss Y’s deputy he wanted to ensure Miss Y was only paying for the hours of support she received.
21. The social worker responded to Mr X later that month. They said if there were concerns about the hours worked the Council would be happy to look into this but there may be small changes to care packages due to a significant reduction in the number of care workers available to meet everyone’s needs.
22. Mr and Mrs X wrote to the Team Leader in early February 2022 reiterating their concerns about time keeping and said they had still not received copies of the care plan. They advised they had conducted a random sample of the worksheets completed by the care provider recording the start and end time for each visit. They found excess hours worked on five days but 15 days when staff worked less than the contracted hours. They found on some days there were no proper records. They said as deputies, payments required approval by the Court of Protection. Mr and Mrs X had not paid Miss Y’s care charges.
23. The Team Leader responded to Mr X. They advised the Council did not require the care provider to share time sheets with it, but it did follow up any concerns raised regarding non provision of support. They noted there was a degree of flexibility in place between Miss Y’s sister, Miss W, and the care provider. It said these changes were shared with the Council but not routinely with Mr X. If Mr X knew of any instances when support was not provided the Council would follow this up. They said they were satisfied the care provider was meeting Miss Y’s identified outcomes.
24. In February 2022, Mr and Mrs X’s MP also contacted the Council on their behalf with their concerns about time keeping and invoicing. The MP said they had a breakdown of timesheets they could share with the Council.
25. The Council wrote to the MP later that month. It noted the care provider had been working with some flexibility to support Miss Y and her sister. It asked for a copy of the timesheets and breakdown the MP referred to and advised the social worker had followed up the issues raised.
26. Mr and Mrs X responded to the Team Leader asking specific questions around why the Council had not checked the timesheets and how was it satisfied the correct hours were being worked. They requested a meeting with the social worker and care provider. They asked how the care hours were split between Miss Y and her sister. They said they could not pay the care charges until they were confident they were correct. Again, Mr and Mrs X requested a copy of the care plans.
27. The Team Leader responded to Mr and Mrs X. They said ‘the hours were commissioned as agreed on the provision’. The care provider would notify the Council if it could not meet its contractual obligations. They said the focus was on outcomes and these were being met. They advised if Mr and Mrs X wanted to see the timesheets this could be discussed at a meeting with the care provider. They considered it would not be practical or proportionate to process requests for all timesheets. They advised Mr and Mrs X to liaise with the social worker if they wanted to arrange a meeting with the care provider.
28. Mr and Mrs X wrote to the Team Leader in May 2022. They said they understood Miss Y and her sister received a combined care package of around 4 hours 30 minutes a day. They found on a significant number of days the care workers provided less than four hours of support.

Formal complaint and responses

29. Mr and Mrs X complained to the Council in September 2022 about the care workers not working their contracted hours. They complained they had raised this with the social worker and team manager but the Council had failed to address the issues.
30. The Council updated Mr and Mrs X in October 2022 that it had requested an audit of the hours of care provided to Miss Y. It said it had escalated the concern to stage two of its complaints procedure.
31. The Council responded to Mr and Mrs X’s complaint in November 2022. It advised it was satisfied Miss Y was well and was engaging with the support provided by the care provider. It said it had audited timesheets from the care provider for July 2021 to August 2022 and found a significant under delivery of the support hours it had commissioned, equating to 66% of the expected hours for Miss Y per week. It said the care provider reported using agency staff during this period, but there was no recorded evidence of this. It said the care provider considered delivery was higher than that suggested by the audit and so it had highlighted the importance of accurate record keeping with it and had asked it to review its procedures.
32. The Council apologised and acknowledged Mr and Mrs X may have felt disappointed this was not proactively identified sooner by the Council. It said the contract with the care provider was a spot contract (an individual contract to provide that care package) which resulted in a lower level of oversight. It said it would review bringing the support onto a formal County Council contract which would provide a greater level of oversight. It agreed to waive 66% of Miss Y’s care costs through to 1 December 2022 and said it would review Miss Y’s social care needs.
33. The Council’s complaint response went on to say it did not plan to change provider as it had no concerns about the quality of care. It confirmed the care provider had changed how it recorded the hours delivered and said it would review the records weekly for six weeks and then monthly until it was assured a robust system was in place. It would also look to see if other people supported by the provider were affected.
34. Mr and Mrs X responded and raised concerns about particular staff members and a lack of response to specific queries they raised in October 2022. They also sought information on what time the care workers would be attending as the time keeping was so variable Miss W was unable to go out alone as she was unsure if Miss Y and her sister would be supported. They also requested a day centre for Miss Y to attend and respite to give Miss W a break.
35. The Council responded in late December 2022. It said it would schedule a review of Miss Y’s care needs and this would be undertaken by a different social worker. It apologised that Mr and Mrs X did not have clarity on the care and support Miss Y received. It said it would send Mr and Mrs X a copy of the care and support plan and that respite/day centre support would be discussed at the review. It said it had addressed management concerns and taken action.
36. The Council wrote to Mr and Mrs X in January 2023 to follow up the outstanding points they raised and enclosed a copy of Miss Y’s support plan. It said it was satisfied there were sufficient hours in the plan to give Miss W a break from caring but the review would address this including consideration of more structured and formal respite.
37. Mr and Mrs X remained unhappy and complained to us.

Events since the complaint to us

38. The Council reviewed Miss Y’s care and support plan in March 2023. The assessment noted Miss Y received 25.5 hours support per week from the care provider. The Council updated the previous assessment. This included:
• Under ‘details of your medication,’ the assessment noted the care provider supported Miss Y with taking her medication. Under actions identified it stated ‘currently Miss W to continue supporting Miss Y by administering her medication properly and regularly’.
• Under ‘personal care,’ it stated Miss Y was unable to do personal care without a lot of prompts or support. Miss W prompted her, and when she could, supported Miss Y to shower. Under actions identified it stated ‘care package in place to support [Miss Y] in maintaining her personal hygiene. Carer to support her with showering every day’.
• Under ‘meals and nutrition,’ it noted the care provider provided full support with preparing daily meals and ensuring Miss Y ate a healthy and nutritious meal every day. Under actions identified it stated ‘Currently [Miss W] confirmed she is happy and able to continue providing the support in preparing healthy food and drink for [Miss Y]’.
• Under ‘social inclusion’, it stated the care provider supported Miss Y to access the local community and take her clothes and toiletries shopping and to the local country park or beach. She received one hour one day a week which did not include travel time. It noted they discussed Miss Y would like to go out more during the week and the possibility of a day centre and respite.
39. In response to an earlier draft of this decision the care provider has confirmed that it has never administered medication to Miss Y, that was Miss W’s responsibility. In addition, it says it supported Miss Y by making a home cooked meal to ensure Miss Y had a healthy, balance diet.
40. The assessment noted Miss Y currently received 45 minutes support in the morning with personal care and then one hour for household tasks and preparing meals, a 45-minute evening call to heat up/cook meal and wash dishes/tidy kitchen plus one extra hour a week to access the local community. This equates to 18.5 hours a week, which is much less than the 25 hours per week stated in the support plan.
41. The outcomes listed in the assessment summary were the same as in the 2021 assessment and were not updated.
42. As a result of the review the Council has amended Miss Y’s care package to 22 hours per week. It is also exploring day centre provision.

Council enquiry response

43. In response to my enquiries the Council said there was a culture of poor time recording by the care provider. It said there was not a regular pattern of under delivery but calls were cut short and on some days care was only provided in one episode not two. In addition, some calls were completed by agency staff and were not included in the audited records.
44. The Council has provided me with a copy of visit summaries which it says show the care provider has improved its time recording practice since December 2022. It said it does not have any concern about the under delivery of care hours or that support needs are not being met. It stated the care provider has not charged where calls were cancelled and the delivery is within the agreed number of hours which have been ‘right sized’ following the recent review.
45. Looking at the visit summaries the Council has provided, these show that over a period of 17 weeks, since December 2022, Miss Y received an average of 21 hours support per week.
46. The Council has confirmed it has visited the care provider and is satisfied with the recording systems now in place. It has confirmed that timely and recent reviews have taken place for all individuals in receipt of commissioned support from the care provider and it has not identified any concerns regarding its general delivery.
47. It says it has also introduced support in the learning disabilities service area to assist with managing and monitoring complaints. It says managers are now clearer on how to escalate concerns where there may be a delay in responding to complaints.

Findings

48. Mr and Mrs X raised concerns that care workers were not staying for their commissioned time. The Council said it spoke to the care provider but the Council failed to fully investigate Mr and Mrs X’s concerns and to address this. This was fault. When the Council audited the records, it found a 66% under delivery recorded in the time sheets. The Council has reduced the amount owed by Miss Y by 66% to reflect this so Miss Y was only charged for care the Council was satisfied she had received. This was appropriate.
49. Mr and Mrs X have not provided any evidence to show Miss Y’s care needs were not met during this time and there is no complaint about the quality of care that was delivered. However, Miss Y is unable to clearly express her own views and feelings. The Council assessed Miss Y as requiring 25 hours of support to meet her eligible care needs and she did not receive this. On balance it is likely Miss Y has missed out on support she was entitled to receive such as further opportunities for community involvement and social activities, given staff were only taking her out for one hour per week. In addition, it is likely, on balance, that Miss W was required to provide more support to Miss Y to make up for this shortfall.
50. The Council assessed Miss Y as needing 25 hours of care per week but I have seen no evidence the size of the care package was ever clearly communicated to Mr X. The Council delayed sharing the care and support plan with Mr X and failed to explain exactly how many hours of support Miss Y was supposed to receive or how care was split between Miss Y and her sister. This was fault because Mr X is Miss Y’s legal representative and it was difficult for Mr X to know exactly what support Miss Y should have been receiving.
51. Miss Y’s 2021 care plan lacked detail and did not clearly set out how the 25 hours of support she received per week were to be used, what support was to be delivered by the care provider and what support was provided by Miss W. This was fault. When the Council reviewed the care and support plan in March 2023 it failed to update it appropriately. There is confusion within the plan as to what support is still being provided by Miss W and what is now being delivered by the care provider. The updated plan also sets out that Miss Y is receiving 18.5 hours of care per week and not the 22 hours of care which the Council has said Miss Y now requires. This is fault.
52. Since December 2022, the Council has monitored the care provider’s time recording. The data the Council has provided to me shows on average Miss Y has received 21 hours of support per week. This was 4 hours less than the original commissioned care package and is still one hour less than the revised care and support plan suggests Miss X requires. This is fault.
53. Mr and Mrs X repeatedly raised their concerns about the hours worked. The Council failed to escalate this concern and treat it as a complaint. This was fault. This meant the issue first raised in June 2021 was not resolved until December 2022.
54. When Mr and Mrs X raised a formal complaint, the Council delayed responding to it. The Council has now taken action to improve its processes to ensure complaints are responded to more promptly. This was appropriate.
55. The data the Council has provided shows the care provider has improved its recording procedures and is now recording when care is provided and by whom. This is appropriate. However, given the data shows Miss Y has still not received the 22 hours of care per week she was assessed as needing, Miss Y may have been charged for more hours of support than she received.
56. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. The faults have impacted Miss W as well as Miss Y. On balance it is likely she has had to provide more care than she wanted to. The under delivery of hours is also likely to have impacted on her ability to have respite away from the home.

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Agreed action

57. Within two months of the final decision, the Council has agreed to:
1. Pay Mr and Mrs X £250 each to acknowledge the time and trouble and frustration they were put to by the Council’s delays and failure to respond appropriately to their concerns.
2. Pay Miss Y £500 to acknowledge the support it is likely she missed out on by the failure to provide her the hours of support the Council identified she required, to meet her identified eligible care needs.
3. Complete a reassessment of Miss Y’s needs ensuring the new assessment is up to date and is clear about what information within it is old and what is new and is clear on what Miss Y’s eligible care needs are and which of these will be met through support from the care provider. As part of the care and support plan it should work with the care provider to clearly set out the normal expected visit times and duration for Miss Y’s 22 hours of support across the week. It is acknowledged there may be variations due to staff availability and Miss Y’s appointments but this will enable Mr X to have a clearer idea of what support should be provided and will enable Miss W to plan her own time around the visits of the care provider.
4. Pay Miss W £250 to acknowledge the impact the faults will have had on her caring role and her ability to have respite.
5. Offer Miss W a carer’s assessment.
6. Review the charges for Miss Y’s care since December 2022 to ensure she is being accurately charged for the care she had been provided and provide a refund if Miss Y has been charged for more hours of care than she received.
7. Remind appropriate staff that when repeated concerns are raised it may be appropriate to treat the concerns as a formal complaint and to respond accordingly.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. The Council was at fault causing injustice which is has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman