Summary: Mr X complained the Council has wrongly reduced his care package based on inaccurate information and without due regard to his disability. He complains this is affecting his health and wellbeing. We found there is no evidence of fault in the way the Council re-assessed Mr X’s care needs and reduced his care plan. However, the delays in responding to Mr Y’s complaints is fault.

The complaint

1. The complainant, Mr X complained the Council has wrongly reduced his care package based on inaccurate information and without due regard to his disability.
2. The reduction in the care package means carers are having to rush to complete their duties and Mr X’s needs are not being met. He complains this is affecting his health and wellbeing.
3. Mr Y is assisting Mr X is raising this complaint.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr Y;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr Y;
• Mr Y 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

Legislation and guidance

7. The Care Act 2014 (the Act) is the legislation that sets out local authorities’ powers and duties in respect of adult social care services.
8. 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.
9. Where councils have determined that a person has any eligible needs, they must meet those needs. The person’s needs and how they will be met must be set out in a care and support plan. The plan should be proportionate to the needs to be met and should reflect the persons wishes, preferences and aspirations.
10. Section 27 of the 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. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

What happened here

11. Mr X lives at home on his own and has received a package of care for over 20 years. His care package was increased in 2018 following concerns about Mr X’s swallowing and choking when eating. Mr X received three visits a day, and each was extended by 15 minutes so that a carer could stay with him while he ate.
12. There is no evidence the care and support plan was regularly reviewed in the following years. However Mr X was happy with the care he received.
13. In May 2023 the care provider contacted the Council as they had difficulty covering Mr X’s tea time call. They asked the Council to review Mr X’s care and support plan as they felt he may not need the tea time visit. The care provider said Mr X had managed well when they had used their contingency plan to just provide morning and lunch time visits. When this happened they had extended the lunchtime call to prepare a teatime snack for Mr X.
14. In addition the care provider told the Council Mr X was independent in his eating and had never choked during any visit. They did not feel Mr X was at risk eating alone.
15. On 15 May 2023 the Council carried out review of Mr X’s care needs. A social care assessor discussed Mr X’s needs with him on the telephone. The assessment notes Mr X had a choking incident in 2018 which knocked his confidence and he felt he needed a carer present whilst he ate. Mr X confirmed he managed well now and had not had any further episodes as he eats a softer diet. However, Mr X was reluctant to decrease his care visits as he enjoyed the carer’s company while he ate and they washed his plate and cutlery.
16. The Council reduced Mr X’s care package with effect from 22 May 2023 on the basis Mr X no longer needed a tea time visit or required support with his eating as he was not at risk of choking. The Council’s records say it reviewed the plan in June 2023 and Mr X confirmed the new routine was working well.
17. However, Mr X contacted the Council in July 2023 to ask for the tea time call to be reinstated. He was unhappy carers now left him a cold snack when he would previously have been able to have something warm at tea time. The Council told Mr X it would not reinstate the tea time call just so that he could have a warm snack. It agreed to contact the care provider to see what alternative options it could offer as tea time snacks.
18. In August 2023 Mr X contacted the Ombudsman and asked us to investigate his concerns. We referred the matter back to the Council for it to investigate Mr X’s concerns under its own complaint process in the first instance.
19. Mr X contacted the Council again in early September 2023 and again asked for the tea time visit to be reinstated. The Council advised Mr X it could not increase his care package without completing a care assessment to determine his needs. Mr X did not initially consider an assessment was necessary, but subsequently requested a review of his care plan.
20. Mr Y also contacted the Council to raise safeguarding concerns about the risk of Mr X becoming dehydrated or choking as a result of the reduced care. Mr Y told the Council that on 14 July 2023 he had found Mr X unresponsive and that he had been admitted to hospital by ambulance. Mr Y was concerned that if he had not checked on Mr X, he would not have been found until the carers visited the following morning. Had that been the case, the situation could have been much worse.
21. The safeguarding team did not consider the matter met the safeguarding criteria. They referred Mr X to Speech and Language Therapy (SALT) for an assessment and to social care to carry out a face to face visit.
22. Mr Y chased the Council in late September and reported an instance where the care provider had missed the lunch time call and a manager had visited at 6pm. Mr X did not receive a hot meal that day, the care provider prepared a sandwich which Mr Y said led to Mr X have a bad coughing/ choking fit.
23. In October 2023 the Council contacted the care provider for details of the care they provided. The records note the care provider said they struggled doing all the tasks required in the morning visit since the time had been reduced. The care provider confirmed that during the lunch time visit they heated a meal, made a flask, and left fluids close to Mr X. They also prepared a tea of four Ryvitas and marmite. The care provider also confirmed carers sat with Mr X while he was eating if they had time.
24. A speech and language therapist visited Mr X on 19 October 2023, to carry out a swallow assessment. The notes of the visit say Mr X was able to get into a fairly adequate position to eat his meals, however, was likely to still be at choking risk with increased textures.
25. The SALT report recommended Mr X have a level 6 soft and bite sized diet and gave the following advice:
• Ensure fully alert/awake when eating and drinking.
• Prompt to sit in midline when eating and drinking (not leaning over to either side).
• Prompt to alternate food and drink during mealtimes to aid swallow.
• Avoid talking whilst they are chewing/swallowing.
• Monitor chest in case of any recurring infection.
26. The Council’s record show a social care assessor discussed the report and recommendations with the SALT. The SALT confirmed Mr X needed prompts to maintain an upright position when eating and to have a drink. But did not necessarily need someone sat with him as technology could be used to prompt Mr X.
27. Mr Y made a formal complaint to the Council in October 2023. Mr Y asserted the care provider lied to the Council when they said Mr X had never choked. He said incidents were logged in Mr X’s records and he had statements from Mr X’s carers confirming this. Mr X said he had also witnessed a number of choking fits where Mr X goes bright red, coughs and splutters then usually settles down. Mr Y also provided a letter from Mr X’s consultant asking the Council to consider reinstating the tea time visit as without it he would by managing by himself between midday and 9am the following day.
28. Mr Y said Mr X was not coping with the reduction in his care but was initially reluctant to complain as he was terrified he would lose all his care.
29. On 9 November 2023 the Council visited Mr X with the SALT to carry out a care assessment. The SALT’s notes of the visit record Mr X was initially anxious around eating after the choking incident in 2018 but his anxiety had eased. He said he liked the evening visit as it provided some companionship as otherwise he was by himself overnight for 20 hours.
30. The SALT reassessed Mr X’s swallow and advised a level 6 diet would reduce the choking risk, but they could not rule out that there may be potential aspiration risk. Mr Y had reported that Mr X was still coughing, even with a level 6 diet. The SALT advised Mr X his safest option was a level 4 puree diet, which Mr X declined. They noted Mr X demonstrated capacity to continue with level 6 diet, acknowledging potential aspiration risk, but with reducing choking risk by avoiding level 7 regular diet textures.
31. The care assessment noted Mr X had recently been discharged from hospital due to vomiting, and that Mr X said he had never been admitted to hospital due to his swallow. The assessment also noted two carers had written letters to say they felt Mr X’s tea time call should be reinstated. One of the carers had noted that Mr X was choking while eating. The Council contacted the care provider to confirm whether Mr X was coughing or choking while eating. The records show the carer confirmed Mr X was coughing and they had never had to assist Mr X during meal times or call the emergency services.
32. The assessment concluded the support Mr X was receiving was meeting his care needs. The assessor visited Mr X to discuss the outcome of the assessment. They suggested moving the lunch visit to a tea visit so that Mr X would not be so long between visits. Mr X was not keen on this as he struggled with eating late at night.
33. Mr X and Mr Y remained unhappy with the reduction in the care package.
34. Mr Y chased the Council for a response to his complaint. An officer, Officer 1 telephone Mr Y on 11 December 2023 to discuss his concerns. Mr Y told Officer 1 the reduction in the care package had caused Mr X and himself considerable stress and they were both now taking medication for this. The notes of the conversation show Mr Y raised concerns about Mr X’s hospital admissions, his safeguarding reports, the care provider lying in order to stop the tea time call and the SALT report which supported a carer being present when Mr X was eating. Mr Y also complained that the care assessor had responded angrily when he read the SALT report to them and had hung up on him.
35. Officer 1 agreed to review the records for Mr X’s hospital admission and the care assessor’s response and would then respond to Mr Y.
36. Mr X consultant’s arranged a Multi-Disciplinary Team meeting for 31 January 2024 to discuss Mr X’s needs. Mr X, Mr Y, Mr X’s GP, Officer 1, a community matron, and a district nurse attended this meeting. The GP’s records of the meeting note there was a lengthy discussion about Mr X and Mr Y’s concerns about the way the care package had been reduced.
37. The outcome of the meeting was that an increased package would not be agreed based on the most recent care assessment. It was acknowledged that there was a degree of risk with regard to Mr X’s swallow, although he eats and drinks at times when carers are not present. This was an acceptable level of risk and did not require a carer present at all times. The notes also record that Mr X declined an offer to attend a day centre.
38. Officer 1 then responded to Mr Y’s complaint on 1 February 2024. They apologised for the delay in responding and explained the original complaint forwarded via the ombudsman had been sent to the wrong team. Officer 1 said they had received it on 30 October 2023 but had been unable to speak to Mr Y until 12 December 2023.
39. Officer 1 confirmed they had considered Mr Y’s concerns and the additional information Mr Y had provided at the meeting on 31 January 2024 and responded to each in turn.
40. They noted that Mr X’s hospital admissions had been in relation to infections. And that the community matron had confirmed they would not have been preventable with a tea time call. Officer 1 also noted Mr X was able to seek assistance and had a careline in place to call for help in an emergency. Officer 1 confirmed the Council was unable to commission care as welfare checks in anticipation of infections.
41. In relation to Mr Y’s interactions with council officers, Officer 1 apologised for any offence caused by their choice of words. Officer 1 also confirmed they were present in the office on the day Mr Y spoke to the care assessor about the SALT report. They noted there was some confusion regarding the dates Mr X was in hospital and when the assessor had visited. Officer 1 understood Mr Y had become frustrated and the care assessor said they would end the call. The Council’s records showed Mr Y spoke to the care assessor again later that day and had a more productive discussion.
42. Officer 1 also considered Mr Y’s concerns about the care provider’s motivation for requesting a review of Mr X’s care needs. Although this triggered an annual review, which was significantly overdue, Officer 1 said it was not the foundation for the reduction in care. Information provided by the care provider was verified by the NHS and Mr X during the review.
43. Mr Y was not satisfied with this response and made a further complaint. He maintained the reduction in Mr X’s care package had put him at serious risk. Mr Y disputed the Council’s assertion that Mr X was coping with the reduced package. He asked for an independent investigation into the Council’s actions.
44. Mr Y wrote to the Council again on 22 March 2024, setting out his two specific complaints in more detail. His first complaint was the reduction in Mr X’s care package based on lies by the care provider who wrongly said Mr X could manage with two visits a day and never choked. Mr Y’s second complaint related to a cover up by Officer 1 and the care assessor. He asserted the care assessor had arranged a second SALT assessment as they were not happy with the findings in the first report. Mr Y noted both reports said Mr X should be monitored while eating due to the risk of choking. He felt the officers had used delaying tactics to stop him showing the that care package should not have been reduced.
45. The Council responded on 30 May 2024 and apologised for the delay in responding. It was satisfied its letter of 1 February 2024 responded to Mr Y’s concerns about the care provider. And that it had discussed the Council’s position regarding the reduction in Mr X’s care calls at the meeting on 31 January 2024. As such the Council did not intend to respond further.
46. As Mr Y remains dissatisfied he has asked the Ombudsman to investigate his complaint. Mr Y maintains the decision to reduce Mr X’s care package was based on misinformation from the care provider. And that the Council has ignored evidence from his carers about Mr X’s choking incidents. Mr Y now visits Mr X at lunch time each day and ensures he is there while he eats.

Analysis

47. The Ombudsman does not act as an appeal body. It is not the Ombudsman’s role to assess Mr X’s care needs, or to decide what his care package should include; that is the Council’s job. We look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
48. Mr X and Mr Y disagree with the Council’s decision to reduce Mr X’s care package, but I am satisfied the Council took account of all the relevant evidence and followed a proper decision-making process.
49. The Council should have reviewed Mr X’s care plan every year. However, it had not reviewed Mr X’s care plan since 2019. So while the review of Mr X’s care needs in May 2023 was prompted by the care provider, it was appropriate for the Council to review Mr X’s needs.
50. Mr X was involved in the review in May 2023 and was able to express his views and concerns. The records suggest Mr X wanted a tea time call as he enjoyed the company, rather than because of concerns about choking when he ate.
51. When Mr X and Mr Y raised concerns about the risk of choking the Council arranged a SALT assessment. This was an appropriate response. It also carried out a care assessment. The SALT assessment confirmed a potential risk of choking with highly textured foods, so a modified diet would be better. It made recommendations for while Mr X was eating and drinking but did not consider Mr X needed to be supervised while eating.
52. The care assessment refers to the statements from Mr X’s carers and notes they feel the tea time visit should be reinstated. The Council followed up on the carers account of Mr X choking while eating and established Mr X was coughing rather than choking.
53. While I recognise Mr X and Mr Y disagree with the decision to reduce Mr X’s care package There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.

However, the Council’s failure to follow its complaints process was fault. The Council’s complaint procedure says it will respond to complaints within 20 working days. We expect councils to adhere to their published policies and procedures but it failed to do so here. There were significant delays in responding to Mr X’s complaints.

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Agreed action

54. The Council has agreed to apologise to Mr X and Mr Y for the delays in responding to their complaints and the distress and frustration this caused them. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
55. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

56. There is no evidence of fault in the way the Council re-assessed Mr X's care needs and reduced his care plan. However, the delays in responding to Mr Y's complaints is fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman