Summary: Ms X complained about the Council’s failure to provide care to meet her assessed needs and related matters. We found the Council to be at fault. It took too long to provide care at the outset, told her to make her own arrangements when the Council could not find a suitable carer and took no action to respond to Ms X’s concerns about lack of parenting support. This led Ms X cancelling her care package and being without care she needed for several months. There was also fault by the care provider when it sent an email to the wrong address on behalf of Ms X. To remedy the injustice to Ms X, the Council has agreed to apologise, make a payment and take action to improve its service.

The complaint

1. Ms X complains about the Council’s failure to provide support for her eligible needs. Specifically, she complaints about:

• being forced to accept a direct payment when the Council was unable to source a suitable carer;
• failure to provide her with care support when she moved into temporary accommodation; and
• failure to provide meaningful support with parenting;

2. Ms X also complains about the actions of a care provider, Fresh Haven, (commissioned by the Council) that led to her car being impounded and sold.
3. Ms X says the Council’s failure to provide adequate support caused significant distress and financial loss.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. In this case the Council commissioned the care provider (Fresh Haven) to support Ms X, so we consider the Council is responsible for its actions.
7. 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.
8. Under our information sharing agreement, we will share the final decision with the Care Quality Commission (CQC).
9. 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

10. I have:

• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the relevant law and guidance;
• considered the Ombudsman’s Guidance on Remedies; and
• invited comments on a draft of this statement from Ms X and the Council, for me to consider before making my final decision.

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What I found

Relevant law and guidance

Care Act assessment and support plan

11. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support.
12. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.
13. To be eligible for care and support assistance the adult should be unable to achieve at least two of the specified outcomes below, due to a physical or mental impairment or illness.
14. These outcomes include but are not limited to:

• maintaining a habitable home environment; and
• carrying out any caring responsibilities for a child.

15. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment and how they will be met.
16. Statutory guidance says where a person has needs that can be met by various services (for example, children’s services), a council should not develop plans in isolation from other plans and should take a holistic approach. It says councils should have regard to all the persons needs and outcomes and seek to combine or integrate assessment and care plans, if appropriate. It says a council should consider a potential need to combine or integrate assessment or care planning early in the planning process.

Support for children – Children Act section 17

17. Councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Direct payments

18. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
19. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
20. The Council’s policy states direct payments may only be used to pay for arrangements to meet the needs specified in the support plan. They must also be used to purchase services which are safe, legal and which adequately safeguard and promote the person's welfare and well-being.

What happened

21. This is a summary of key events and is not intended to detail everything that happened.

Ms X’s care support

22. Ms X is a single parent who has care and support needs. I shall refer to her child as B. In November 2022, the Council carried out an assessment following her discharge from hospital and a short period of reablement care at home. The reablement service said, primarily, Ms X needed help to look after B.
23. Ms X was assessed as being eligible to receive six hours of support per week. Part of the support plan was to provide support to Ms X with her parenting responsibilities. The assessment recorded B was a child in need and children’s services were involved with the family and carrying out an assessment.
24. The Council says it was unable to source a care agency that would carry out this role because generally they were not insured or registered to provide direct care to children.
25. Because of this difficulty, Ms X says she was told the only way of getting support was for her to recruit a personal assistant via a direct payment. Miss X received money to pay for this care that she was unable to spend. Ms X says she received no help to recruit a suitable carer, she was just referred to a website that had no suitable carers.
26. Ms X told the Council she was struggling without any support.
27. In late January 2023, the Council arranged for a private care agency (the Agency) to provide support to Ms X. The Council has said this was only possible because Agency agreed it could only prompt Ms X with parenting tasks but could not provide direct childcare.
28. The Agency helped Ms X with personal care, looking after B, with housework and household administration. Contrary to what the Council told the Ombudsman, Ms X says the Agency did provide direct childcare.
29. The Council cancelled the direct payment in mid-February 2023. She was later asked to refund money that she had received. Ms X says this was unfair because that money was meant to help meet her care and support needs.
30. In March 2023, Ms X had to move home temporarily. The Agency said it could no longer assist Ms X because it did not cover that area of the city. The Council says it only became aware of this once Ms X told the Council she was struggling to cope with caring for B since the Agency left. She explained she did not have the energy to provide for his basic needs as well as her own. She explained she was unable to take B to nursery for several weeks.
31. The Council tried to source a care agency with the remit of providing Ms X with help every day to get her child ready, either for the day or at bedtime. Unfortunately, the Council faced the same problem as before with finding an agency that would provide direct childcare as well as support for Ms X.
32. An agency (Agency2) went to carry out an assessment at Ms X’s home. Agency2 raised concerns about B’s well-being because Ms X was in poor health and struggling to meet his needs. The Council’s records show a referral was made to children’s services “but this was declined”. A reason was not given.
33. Agency2 started supporting Miss X in early April 2023. The support plan was amended to say the carer would support Ms X to get B ready for the day and at bedtime. The carer would also supervise B while Ms was getting ready.
34. Ms X says she did not feel this was helpful. Because of her chronic fatigue, she says she needed direct childcare (as had been provided by the Agency), not just prompting to do certain tasks herself. Ms X asked the Council to provide direct childcare. The Council said this was not possible.
35. In mid-April 2023, a safeguarding concern was raised about B’s welfare due to Ms X’s deteriorating health and the impact this was having on her being able to care for B. It was suggested children’s services offer some support with parenting. A referral was made to the children’s team. Ms X was referred to a children’s centre because there was a waiting list for a children’s social worker.
36. At the end of April 2023, Ms X told the Council she wanted to cancel Agency2 because it was not meeting her needs. The Council explained services provided under the Care Act could not provide direct childcare. Ms X said she did not have the energy to challenge this decision because she was told the outcome would be the same.
37. Agency2 stopped providing support to Ms X in mid-May 2023, after serving its notice.
38. In July 2023, following further safeguarding referrals about B, the Council’s adult and children’s service worked collaboratively to find a care agency (Agency 3) that was able to provide direct childcare.
39. Ms X brought her complaint to the Ombudsman in September 2023. Specifically, she complained about:

• the Council’s failure to provide any support between December 2022 and January 2023 and between May and July 2023;
• being forced to try and sort out her own care arrangements via a direct payment, on the basis this was easier for the Council;
• the failure to provide support with direct childcare during Agency 2’s involvement, contrary to whet she had been assessed as needing; and
• the actions of the Agency when writing to the DVLA on her behalf (see below).

40. In response to the Ombudsman’s enquiries, the Council said:

• the adult services department made a “child in need” referral to the children’s service in January 2023;
• it made arrangements with the Agency once it became aware Ms X was unable to recruit a carer via the direct payment;
• it attempted to provide care to Ms X in January/February 2023 through the reablement service but it had no capacity; and
• the adult service department was unable to commission direct childcare. Discussions took place with children’s services in late January 2023. Children’s services would not become involved until there was an outcome from court proceedings about contact with B’s father or a deterioration in Ms X’s health.

The Agency and the DVLA

41. In January 2023, Ms X’s was told her car was at threat of being impounded because it was without an MOT. She says a care worker (the Carer), employed by the Agency, agreed to liaise with the DVLA to resolve the matter. This involved submitting information about Ms X’s personal circumstances to the DVLA by a certain date.
42. The Carer sent this information to an incorrect email address. Whilst this address included “DVLA”, the correct “gov.uk” suffix was not used. Instead, the Carer used “co.uk”. As the DVLA believed Ms X has not responded, it took enforcement action. Ms X’s car was impounded and sold. When Ms X made enquiries about what had occurred, she was told by the DVLA that the email address used by the Carer did not exist. From this, Ms X assumed the Carer should have received some form of non-delivery notification. The DVLA said it was not responsible for the loss incurred by Ms X.
43. Ms X complained to the Agency.
44. In response, the Agency said the Carer has done what she was asked to do by Ms X (i.e contact the DVLA). It said the loss of Ms X’s car was due to “shortcomings by the DVLA” and not the Agency.
45. The Council said it had no responsibility regarding the actions of the Agency when contacting the DVLA on Ms X’s behalf. It explained contacting government departments on behalf of service users was not covered by the contractual arrangements between the Council and the Agency.

Analysis

46. I will consider Ms X’s separate areas of complaint below.

Failure to provide Ms X with care support when she moved into temporary accommodation

47. The Agency stopped providing support to Ms X in March 2023. Agency2 took over in April 2023. The Council says it was unaware Agency2 had withdrawn its services and only knew when it was told by Ms X.
48. This should not have happened. The Council should have procedures in place ensure it is aware when a care agency can no longer support a client. I would expect the Council’s contract with the Agency to include robust contract termination protocols. The Council should not have to reply on service users to advise the Council they were not receiving a service, especially when it was cancelled by the Agency.
49. The Agency should have given the Council sufficient notice to allow a replacement service to be sourced. Failure to do so was fault. As the Agency was commissioned by the Council to provide a service, for the reasons set out a paragraphs five and six the Council remains responsible.
50. This led to Ms X being left without support for X weeks. This caused Ms X significant distress and frustration. This injustice requires a remedy (below).

Failure to provide meaningful support with parenting

51. At the heart of Ms X’s complaint lies the Council’s inability, from the outset, to source support that was able to meet Ms X’ assessed need around parenting. This led to:

• delay in providing a service;
• telling Ms X she had to accept a direct payment; and
• inadequate service provision, because Agency2 was only able to prompt Ms X, as opposed to direct childcare.

52. In my view, the Council acted with fault because it failed to take a holistic approach to Ms X’s situation as the law expects. This is because the adult service department restricted its enquiries to care agency’s that that provided care to adults. While I understand this is would be appropriate for the majority of their cases, as parenting can be an eligible social care need, it is inevitable that direct childcare may be a service the Council would have to provide.
53. This is confirmed by the fact the Council, when it properly discussed the case with colleagues in the children’s services department a solution was found. Ms X was provided with direct childcare from July 2023.
54. I acknowledge the adult team tried to engage with children’s services in January 2023. But this only led to a conversation about long term plans, not Ms X’s immediate need for support with her parenting responsibilities. It is not clear to my why this was not explored further at that time. It was only after several safeguarding concerns were raised about B did a proper conversation take place between the two Council departments.
55. I can see no good reason why this did not happen sooner, when Ms X was first assessed in November 2023. This was fault. This fault caused Ms X to go without proper support with parenting for several months, from when the care should have started around mid-December 2022 to July 2023 (apart from the period of time the Agency was providing support.
56. There was also fault by the Council for trying to place responsibility on Ms X for cancelling the care package in late April 2023. In my view she did so through frustration caused by the months she had been waiting for proper assistance, rather than by choice.

Failure to provide support to manage a direct payment

57. The law is clear that direct payments should only be given to service users who want to arrange their own care. Ms X is clear that she did not want to do this. She was ill and struggling to cope generally. I am satisfied this meant she wanted the Council to arrange care for her.
58. Ms X’s social worker recorded in the case notes that, “before Christmas, [Ms X and I] agreed a direct payment would be the best option to meet assessed needs because we were not able to commission a service to support her parental role which was the main need identified in my assessment along with admin/domestic tasks”. In my view this is evidence that direct payments were proposed because was the only way Ms X could get personalised care and support. This is contrary to what the law expects.
59. Had the Council adopted the correct approach from the outset and worked collaboratively with children’s services, there would have been no need to suggest direct payments. Failure to so do was fault.
60. I do not criticise the Council for asking Ms X to repay the direct payment she received. The contract signed by Ms X explained she would be expected to pay back any money she had not spent on care.
61. However, I am satisfied Ms X suffered avoidable frustration and distress having to go through the direct payment process unnecessarily. This injustice requires a remedy (below).

The Agency and the DVLA

62. In response to my enquiries the Council has said that contacting government departments was not covered by the contractual arrangement it had with the Agency. Because of this, the Council did not have any liability for Ms X’s loss.
63. This response does not reflect the position of Ombudsman. Paragraphs five and six (above) apply to this part of the complaint. If I find the Agency to be at fault, this becomes the responsibility of the Council.
64. Ms X’s assessment stated one of Ms X’s eligible support needs was “managing a habitable home environment”. The assessment recorded that Ms X “had difficulty with correspondence”. The resulting support plan allocated three hours per week be used flexibly to meet Ms X’s needs “as appropriate”. In my view this would include tasks such as dealing with Ms X’s correspondence, as mentioned in her assessment. In my view this does not exclude contacting government departments on behalf of Ms X. If the Agency had any uncertainty about whether this was a task they should perform, this should have been checked beforehand with the Council.
65. Because the Agency went ahead and contacted the DVLA, it was reasonable for Ms X to expect the email to reach its intended recipient.
66. The email sent by the Carer on behalf of Ms X was sent to the wrong address. This will have generated a “return to sender” message, that I can only assume was not picked up on. I have sent a test email to this address, and I received a return notification 24 hours later. This is evidence such an email would have been sent to the Carer, but not acted upon.
67. When Ms X complained to the Agency, the response was, in my view, defensive and unhelpful. She was told the fault lay with the DVLA and not the Agency. This was factually incorrect. Had the Agency checked the email properly, this would have been evident.
68. Because if this I am satisfied the Agency, and therefore the Council, acted with fault.
69. I must now decide what injustice, if any, was caused to Ms X. I have no evidence that, had the email been sent properly, that Ms X’s car would not have been impounded. Ms X had already committed an offence and so I cannot hold the Council wholly responsible for the loss of her car.
70. However, there is uncertainty that the outcome could have been different had the Agency carried out its role with due diligence. This uncertainty is the injustice here that requires a remedy (below).

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Agreed action

71. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Ms X.
2. Pay Ms X £250 to acknowledge the uncertainty that arose because of fault by the Agency when dealing with the DVLA on her behalf.
3. Pay Ms X £250 as a symbolic payment to acknowledge her avoidable distress and frustration caused by Ms X having to try and arrange her own care via direct payment.
4. Pay Miss X £1000 as a symbolic payment to acknowledge her distress and frustration caused by the Council failing to provide support that met her assessed needs for several months.
5. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly in respect of collaborative working between different Council departments. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.
6. Provide a copy of this decision statement to complaints officers to ensure they are aware of the Council’s ongoing responsibility when commissioning statutory services.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have found the Council to be at fault and the Council has agreed to take action to remedy the injustice to Ms X and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman