Summary: Choice Support Ltd, a care support agency commissioned by the Council, wrongly changed Y’s assessed support from 1:1 to 2:1. The agency further failed to act on requests by Y’s mother, Mrs X, for a change in the activity it was providing for Y. It also continued to charge Y travel costs as if he was still receiving 1:1 support. Thus, Y suffered some injustice through fault by the agency. The Council will refund part of Y’s financial contribution to both his care support and travel costs.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the actions of a care support agency contracted by the Council to provide three hours 1:1 support per week to her son Y, and about the Council's actions in investigating matters. In particular:
1. the agency changed Y's support plan from 1:1 support to 2:1 support, without any reference to Mrs X or to Y's social worker;
2. the agency did not act on Mrs X's request that it should provide a different activity for Y when he was unable to continue playing football;
3. the agency continued to charge transport costs for Y as if the support was still on a 1:1 basis; and
4. in investigating Mrs X's complaints about these issues, officers relied on what the agency said without requiring it to provide supporting evidence. There was also unreasonable delay in the complaint investigation

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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)

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)

3. If we are satisfied with a council’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

4. I have considered what Mrs X has said, together with information provided by the Council and the care support agency.
5. I have written to Mrs X and the Council with my draft decision and considered their comments.

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What I found

6. Following his annual review in March 2017, Y was continuing to receive three hours 1:1 support per week from the agency to enable him to play football and/or take part in other community activities appropriate to his age.
7. The agency later said this 1:1 support changed to 2:1 in April, after Y’s support worker left.
8. During the summer, Mrs X asked the agency for a change of activity because Y was suffering pain to do with his foot, which meant he was struggling with football. Mrs X said the staff member she spoke to said they would look into this and get back to her. But, she heard nothing further from the agency.

What happened

September 2017

9. In September, Mrs X asked Y’s social worker to give four weeks’ notice to the agency. She told the social worker that the agency had not acted on her request for a change of activity. So, Y could only watch the football, and had been brought home early. Mrs X said she believed the agency was still charging for 1:1 support, although not providing this.
10. Towards the end of the month, Mrs X raised her concerns with the Integrated Learning Disability Service Manager. She also cancelled the support from the agency with immediate effect. She felt it was pointless allowing this to continue when the agency was not addressing Y’s need for a change of activity.

October 2017

11. Early in October, the service manager told Mrs X he would ask someone to look into her concerns.
12. Mrs X made a formal complaint in mid-October. She said:
• support workers had continued to take Y to the venue where the football was taking place, even though his physical needs meant he could no longer play;
• she had asked for a different activity. But, although his assessment said Y should have 1:1 support, the agency had said Y could not change activity because he was sharing a support worker; and
• she had found out that no one had told support workers she had cancelled Y’s football. So, they had continued to take him anyway.
13. Complaints officers confirmed they had logged the complaint. They had asked the service manager to investigate and respond within 10 days, and 20 at most.

December 2017

14. Later in December, Mrs X asked the service manager if he had contacted the agency. She said the Council did not appear to be following its complaints procedure or managing her complaint properly.

Early to mid-January 2018

15. Following a further progress request from Mrs X in mid-January the service manager responded that at a recent meeting, the agency had said they reduced the cost accordingly when support was shared. He had asked them to check and confirm when they had reduced the bill for Y. The service manager clarified with Mrs X the detail of her complaint and the outcomes she wanted from this. She told the service manager:

• she could not remember who she had spoken to at the agency when she asked for a change of activity. But, they had not denied the call had taken place; and
• she wanted an apology, and reimbursement of Y’s contribution to that element of care provided by the agency.

16. During late January, there was an exchange of emails between the service manager and the agency manager. During the course of this, the agency manager provided further information to enable the service manager to understand what had happened. This included a spreadsheet showing how the agency had come to have 23.5 service hours banked for Y.
17. The agency manager:
• said the 2:1 support had begun at the beginning of April, due to a support worker leaving. They had included a reduction in charge for providing only a 2:1 service, instead of 1:1; so
• she confirmed there were undelivered hours because of Y not accessing the 1:1 service for three full hours; (ie undelivered hours that arose from the difference in the charge between 1:1 and 2:1 support.)

The initial complaint response

18. Also in late January, the service manager sent Mrs X a formal complaint response. He said he had met with the agency manager, and an acting team leader who had provided some of the support to Y. They had:
• acknowledged that the agency introduced 2:1 support because of staffing difficulties. But, they felt this was preferable to cancelling sessions, which would have been the alternative;
• said they did not feel it had compromised Y's support in any way, as he still took part in activities. In fact, the support worker was able to focus on Y, as other service users required less support;
• been clear that the initial assessment specified 1:1 support. But, they felt that Y's ability to have shared support was positive and reflected a growing confidence;
• banked the hours not provided, and used these on other occasions;

• agreed they only became aware that Y was struggling when Mrs X told them his foot was hurting him. However, once they were aware, they felt the session was still viable;
• said on most occasions Y was still able to take part, and they were clear they had discussed this with him;
• been unaware Mrs X had requested an alternative activity. They had no record of any staff member saying Y had to continue with football for the benefit of the other service user. They would be extremely concerned if anyone had made such a statement; and
• said sometimes there were changes in support workers due to ill health etc. They felt that usually Y knew the replacement staff member. But, they acknowledged they might not have always given Mrs X notice of this.

19. The service manager said he had concluded:
• there was a lack of communication. The agency should have discussed and agreed any changes in service delivery with Mrs X and Y’s social worker;
• the agency took a different view of the impact of shared support to Mrs X. Better communication would have allowed an exploration of these differences, and a decision that met Y's needs;
• that the agency’s staff had not made the shift to 2:1 support for the best reasons, and had not communicated this sufficiently well. But, they were concerned about Y, and believed the change was not detrimental;
• unless Mrs X had a written record of her request for a change of activity, this would remain a point of disagreement; and
• changes in staff were sometimes inevitable. But, again, the agency could have communicated changes to Mrs X more consistently
20. Finally, the service manager said that the agency would reimburse the Council for the cost of the banked hours of undelivered service. He anticipated this would also result in a small repayment to Y.

Late January 2018

21. At the end of the month, there was an exchange of emails between the service manager, complaints officers and Mrs X. This was about the complaint response, and Mrs X’s subsequent request for a meeting with officers. Mrs X:
• said the agency had no right to decide that 2:1 support did not compromise Y’s needs without consulting her or Y’s social worker. The agency had put its own needs first, rather than her son’s. It had provided a sub-standard service, and a slap on the wrist not good enough;
• asked for two named staff members from the agency to attend the meeting. She said one of these was the worker she had spoken to directly about her request for a change of activity, when he had arrived to collect her son for his support session. So, the agency could not say they knew nothing about her request; and
• said she felt Social Care needed to monitor and audit better the care providers they were endorsing.

February 2018

22. During February Mrs X and the service manager continued to discuss by email and in person the issues to be sorted out with the agency at their meeting early in March.
23. Mrs X said:
• the service manager should clarify that the refund of charges would be partial, and not for the full amount;
• she wanted the agency to reimburse Y for 50% of the transport costs it had charged him for a period to be negotiated;
• the agency should disclose when the period of shared transport had begun. She did not believe this was in April 2017. Y had told her the shared transport had been going on for years;
• Y had also lost about 30 mins of his allocated three hours per week because the shared transport meant support workers often picked him up late and dropped him off early.
24. The service manager replied that:
• they could clarify when the shared transport had started at the meeting. They could also pursue the fuel refund;
• the agency should verbally apologise, and follow this up in writing; and
• he would chase up the agency’s calculation of the recharge he had asked for. This was for hours of service not received, not quality of service.

The further complaint response

25. In a further complaint response, shortly after their meeting with the agency’s manager and acting team leader, the service manager said:
• the manager had acknowledged that communication had been poor. There was a lack of discussion prior to changes being made. Also, the agency’s office did not pass on information, including Mrs X’s request for an alternative activity;
• a key learning point was for the provider to discuss any proposed changes to a support plan with the family. Critically, the provider should also discuss proposed changes with the social worker responsible for approval of the plan;
• the manager had explained that while the rate per mile remained the same as if Y had travelled individually, the agency had adjusted the number of miles to reflect shared transport;
• Mrs X’s view that some explanation of this would have been helpful was a valid learning point;
• the manager had further acknowledged that shared support might on occasion have been provided prior to April 2017. But, she was also clear that any lost hours were banked and used at a later date; and
• he understood that Mrs X felt a degree of scepticism regarding the agency’s apology, and that no apology could alter past practice. But, in summary, he believed that learning points would be taken on board, and he had concluded his investigation.

March 2018

26. In late March, the agency manager confirmed to the service manager that the agency calculated shared hours by dividing the length of the shift in half and adding one hour. This was to pay staff an extra hour for supporting two people.

Outcomes and learning points

27. The service manager said:
• the agency had agreed it did not act on Mrs X’s request for a change of activity for Y when he was unable to continue playing football. It said this was because their local office did not pass on their request. Many different individuals were based there, all working for different departments. So, telephone calls could be overlooked or not passed on to the right department; but
• it said this was no longer the case. Three staff members now worked from the local office, all directly involved in outreach. If there was a call for a staff member who was not in the office, the person taking the call now ensured they sent an email directly to the staff member in question;
• the agency had further agreed it had changed Y's support plan from 1:1 to 2:1 support without any reference to Mrs X or Y's Social Worker. The agency acknowledged this was a failing, and that the change was due to staffing shortages rather than a change in need;
• it remained his view that the main learning point for the agency was that this issue would not have arisen, if they had properly discussed the proposed changes. The agency had assured him they had learned from the complaint;
• also, Social Care had revised its assessment and support planning so there was clarity about what it expected of service providers, and measurement of their performances. Contracts with new day service providers required input from service users and carers as part of governance arrangements. This was in addition to contract reviews;
• there was no record of what the agency manager had said about the transport charges for Y; ie that the number of miles was halved to reflect the sharing of transport between two people. But, copies of the invoices the agency had submitted should enable Mrs X to confirm or dispute what they said about this;
• at the meeting early in March, the agency produced and discussed their record of undelivered hours - 23.5 in total;
• he believed he had been clear about the issues and had confirmed these with Mrs X. The investigation covered all key points and following the agency’s response to his questions, he had arranged to meet with them and Mrs X early in March 2018;
• he had concluded there was insufficient evidence that the agency deliberately engaged Y in activity that he did not wish to engage in. He did not feel there was evidence they were acting fraudulently, either in terms of delivery of hours or transport arrangements; but
• he did think that staff availability determined Y’s activity, rather than any change in his needs.
28. Officers later confirmed the agency had repaid the Council for the 23.5 unused hours of service provision. The refund due to Y for his contribution to this overpayment amounted to £58.40.
29. Also, following the provision of further information by Mrs X, the Council accepted that:
• invoices showed the amount the agency had charged Y for transport had remained constant both before and after 2:1 support began. This supported Mrs X’s view that that the agency had not in fact made any adjustment for shared travel;
• in addition, the agency had invoiced for roughly double the distance Y was likely to have travelled; so
• it should apologise for not challenging what the agency had said on this point sufficiently strongly; and
• it should pay X the further sum of £180 that Mrs X considered the overcharge amounted to.

Was there fault and if so, was there injustice requiring a remedy?

Change from 1:1 to 2:1 support

30. Both the agency and the Council accept it was fault for the agency to change Y’s 1:1 support to 2:1 without reference to Mrs X and Y’s social worker. The agency has apologised verbally and in writing. Also, Social Care now has in place revised procedures to guard against similar occurrences in future.
31. I am unclear there was significant injustice to Y arising from this fault. In saying this, I have been mindful of Mrs X’s view that:
• Y suffered pain and discomfort through having to continue to play football, or lost out through only being able to sit and watch while others played; and
• he was still paying his financial contribution for 1:1 support.
32. But, the agency disagreed with Mrs X’s view. Staff members felt Y enjoyed the company of other service users and coped well with only 2:1 support. In the light of this disagreement, I cannot conclude that overall there was a negative impact on Y in terms of his wellbeing.
33. Also, the Council has calculated there is a refund of £58.40 due to Y because he was paying a contribution for 1:1 support, instead of the 2:1 support he was receiving.
34. I further note that Mrs X believes the 2:1 support had been happening on an organised basis for some considerable time, rather than just from April 2017 as the agency had said. I do not question what Mrs X says. But, in the absence of evidence in relation to this point, I cannot pursue matters further.

Failure to act on request for change of activity

35. The agency has not disputed that Mrs X did request a change of activity for Y. Staff members have explained why they think no one acted on this request. While this too was fault, I cannot conclude there was a significant negative impact on Y for the same reasons I have already set out above. It was open to Mrs X to continue with the support provided by the agency while pursuing her complaints, including her request for a change of activity. As the agency now has a procedure in place to ensure it acts on such requests in future, I will not pursue this issue.

Charging of transport costs on basis of 1:1 support

36. The agency said it was adjusting the transport charge Y was paying by retaining the same unit rate, but halving the number of miles charged for. But, the available evidence indicates this was not the case. This too was fault, as was officers’ failure to check the agency’s invoicing. But, the Council has agreed to refund the sum Mrs X believes Y was overcharged. So, I will not pursue matters further.

The complaint investigation

37. I am satisfied that otherwise the service manager appropriately asked the agency for explanations and evidence. But, it is simply the case that there was no evidence that could prove matters one way or the other in relation to some parts of Mrs X’s complaint.
38. There was delay of over two months in initiating the complaint investigation. This was undoubtedly annoying and frustrating for Mrs X. But, she had already cancelled the service the agency was providing. So, while this delay was fault, it did not significantly affect matters; ie the poor service she complained about was not ongoing. As I do not intend to investigate the substantive issues any further, I will not pursue this point either.

Agreed action

39. The Council has agreed to pay Y:
• the refund of £58.40; and
• the sum of £180 to reimburse him for the excessive number of miles Choice Support charged him for during the period when he was receiving 2:1 support.

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Decision

40. I have found that the Council acted with fault causing injustice to Y. But, for the reasons I have explained above, I have completed my investigation.
41. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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Investigator's decision on behalf of the Ombudsman