Summary: Ms Y complains about the Council’s mistakes in record keeping which impacted its care for her brother. We find the Council is at fault and caused Mr A an injustice. We also consider there is a fault with the time the Council has taken to respond to Ms Y’s complaint. The Council has agreed to apologise and make a payment to Mr A and Ms Y in recognition of this.

The complaint

1. Ms Y complains the Council wrongly added a sex offender warning to her brother (Mr A)’s) care notes. She says this led to care providers failing to provide Mr A with the care he needed, as they were reluctant to have any physical contact with him. Ms Y says this has impacted her brother’s mental and physical health.
2. Ms Y wants the Council to accept its fault caused a lack of care.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended).
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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What I have and have not investigated

7. I have not investigated any issues around General Data Protection Regulations as they are better directed to the Information Commissioner’s Office.

Law, Guidance, and Policy

The Care Act 2014

8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
9. 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. 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.
10. Section 42 of the Care Act applies when a local authority has reason to believe that an adult in its area has care and support needs. If there are safeguarding concerns, the local authority must make whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case, and if so, what and by whom.

The Care and Support Statutory Guidance 13.15

11. The Council is required to keep care plans under review. The first planned review should be an initial light touch review of the planning arrangements 6-8 weeks from sign off of the plan. This will provide reassurance to all parties that the plan is working as intended, and help identify teething problems.

The Council’s complaints procedure

12. The council says stage one complaints will be dealt with within 20 days of receipt of a complaint, and stage two responses will be provided within 25 days of request.

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How I considered this complaint

13. I have considered the information provided by Ms Y and by the Council, having regard to the relevant law, guidance and policy.
14. Ms Y and the Council have had the opportunity to provide their comments in response to this draft decision before the final decision was made.
15. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

What happened

16. Mr A lives at home with his family and has been assessed as needing care by the Council. His care needs were provided by Verrolyne Services Ltd UK (the Care Agency) from February 2022.
17. The Council’s care and support plan for Mr A stated he had needs which included having his stoma bag changed. This information was provided to the Care Agency, however, the Care Agency did not include changing Mr A’s stoma bag in it’s care plan.
18. In November 2022, Ms Y complained to the Council the carers were not changing Mr A’s stoma bag. She also complained the carers were often aggressive toward him and had been told “do not touch me” by various carers.
19. Ms Y said it had recently transpired the Council had wrongly included a warning in Mr A’s notes that he is a sex offender to the Care Agency. She complained this had caused the carers to be fearful of Mr A and this explained their reluctance to help him. Mr A ended the arrangement with the Care Agency in November 2022.
20. The Council responded to Ms Y’s complaint in September 2023. It said it took longer to respond as it was carrying out a Section 42 safeguarding enquiry. It said the delay was caused by having to await information from probation and other services as to whether the warning marker was wrong. It said the original marker was placed in 2012, making it more difficult to get the information it needed.
21. The Council found the warning marker had been applied wrongly. It corrected Mr A’s Care Plan and records and apologised.
22. The Council asked the Care Agency to carry out an internal review. The carers involved were spoken to, and each stated they had not changed Mr A’s stoma bag as it was not in his care plan. They also separately stated they had told Mr A ‘do not touch me’ as he had put his hand on their hand and, or shoulder while they prepared a hot drink for him. They said he had said he wanted to help but made them uncomfortable. None of the carers referred to the warning marker or and fears for their safety other than feeling awkward in the moment.
23. The Council told Ms Y it agreed Mr A’s care and support needs set out in his care plan had not been met by the carers. However, the Council did not accept the inaccurate warning marker caused the inadequate care provided to Mr A.
24. Ms Y disagreed that there is no direct link here and brought her complaint to the Ombudsman.

Analysis and findings

25. The Council’s Care and Support Plan of April 2022 states that Mr A needed carers to help change his stoma bag. The Care Agency’s care plan does not include this. The Care Agency’s internal investigation shows that carers did not change Mr A’s stoma bag as it was wrongly not included in its care service plan for Mr A. This is fault.
26. The Council’s Care plan of April 2022 says it will be reviewed in July 2022. I have not been provided with any evidence that this happened. If the review had taken place, the Council would have become aware that Mr A’s stoma bag was not being changed, and the issue could have been addressed sooner. As reviewing a new Care Plan after 6-8 weeks is a requirement under the Care and Support statutory guidance, failure to do this is a fault.
27. The injustice to Mr A here is that the Council did not discover that his stoma bag was not being changed by carers until November. Mr A’s part in this must be considered, in that he did not complain to the Council sooner. However, the responsibility here is the Council’s. Had it done what it should have, the injustice could have been addressed four months sooner.
28. The Council has accepted the warning marker on Mr A’s notes was wrong. This is a fault in the Council’s record keeping.
29. Both issues of fault have been accepted by the Council. The issue in dispute is whether the warning marker caused the lack of care.
30. No evidence has been provided to show the carers were aggressive toward Mr A, nor that they treated him differently because of the warning marker. It is not therefore possible to decide the warning caused the inadequate care.
31. Although the evidence I have been provided with does not link the incorrect marker to the care provided, there is injustice to Mr A. To find out that there have been records depicting him as a sex offender, incorrectly, would most likely have caused him distress.
32. The Council has taken steps to ensure the issues raised here are not repeated. It has carried out a review of its process and guidance on warning notes and identified flaws which may have allowed Mr A’s situation to happen. It has created a new protocol and guidance for employees, is seeking to strengthen oversight of warning markers by management and is setting up an annual review mechanism. As the Council has taken these steps, I am satisfied we do not need to make any further service improvement recommendations on this point.
33. The Council carried out a further Care Act review of Mr A’s needs and updated his Care and Support Plan.
34. Although the Council has taken appropriate action to improve its internal systems, it has not offered a recognition payment to Mr A in recognition of the distress and inconvenience caused by the faults identified.
35. The Council has failed to follow its complaints handling process. This is a fault in its service. The injustice here is to Ms Y as she has been put to unnecessary time and trouble. This should also be recognised by way of a symbolic payment.

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Agreed action

36. Within one month of the final decision, the Council will:

• apologise to Mr A and pay £500 to him in acknowledgement of the impact on him;
• apologise to Ms Y and pay £150 to her for the time and trouble she has been put to as a result of its complaint handling. The Council will ensure the apology complies with the Ombudsman’s guidance on apologies.

37. Within three months of the final decision, the Council will remind all relevant staff of the need to ensure that all care plans are reviewed 6-8 weeks after they are signed off, and of its complaints policy timelines.
38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. We find the Council is at fault and caused an injustice to Mr A and Ms Y. We have closed our file on the basis that the Council will apologise and make a payment to them both.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman