Summary: The Council failed to always respond to requests from a care provider for extra support for one of the people using its service. The Council failed to always respond to requests for reviews of that person’s support plan. The care provider increased support, even though the Council had not assessed extra support was needed. Although the Council did not always reply to correspondence, when it did complete reviews it did not find extra support was required, so will not pay for the additional support the care provider put in place. I find communication was poor, so raised the care providers expectations. The Council will apologise, pay £250 and remind staff to respond in a timely and thorough way.

The complaint

1. The complainant, who I will call Ms C, is the manager of a care provider (D). Ms C says the Council failed to take appropriate action when she asked the Council to provide extra support for a person who uses services (Ms E) as D could not manage Ms E’s needs under the existing care and support plan. D had to put in extra support in the best interests of the service user, other residents, and its staff, which the Council will not pay for. D felt it was getting nowhere with the social worker, so started to copy in the line manager but this did not help to resolve the issues. D made regular safeguarding referrals which the Council failed to properly investigate and respond to.
2. This went on for almost two years and was very stressful for Ms C. D had to make many claims on its insurance due to Ms E causing damage and injury, which doubled their insurance cost and almost put them out of business. The situation caused distress to Ms C, had a financial impact, and led to the breakdown of relationships with residents and their families. D sent an invoice to the Council for over £98,000 for extra support it put in place for Ms E; the Council refuses to pay. Due to the breakdown of relationships D felt no choice but to end Ms E’s placement, despite this ending Ms E’s continuity of care.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered:
• Information provided by Ms C, including during a telephone conversation.
• Responses from the Council to my enquiries.
• The Care Act 2014, and associated guidance.
• Responses from both parties to a draft of this statement.

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What I found

6. When a council is aware of someone in its area who may need adult care services it should complete an assessment of their needs; any eligible care needs should be detailed in a support plan. The support plan should include a personal budget, which is the amount available to meet the person who needs services eligible care needs. The Council should review care needs, and financial, assessments at least annually.
7. Ms C manages a care provider who I will refer to as D. The Council placed Ms E in D’s care for 24-hour residential care support, as detailed in Ms E’s support plan. Other residents also lived at D.
8. Between January 2016 and November 2018 Ms C was contacting the Council saying she had put in 1:1 support for Ms E because of behavioural issues; sometimes 2:1 support, asking for urgent reviews of Ms E’s support plan, and saying Ms E needed more support. When Ms C did not get responses from the social worker, she copied in his manager to correspondence.
9. The social worker only worked three days per week. At times they were on leave Ms C would have had the ‘out of office’ notification and could access the duty team in an emergency.
10. The Council did not specifically respond to Ms C’s correspondence but referred Ms E for psychiatry and psychology reviews regarding the challenging behaviours Ms C was reporting. The outcomes of those reviews were there was a robust behavioural support package in place to address behaviours, and to continue the same treatment. At one review there was a change to Ms E’s medication, which did improve her behaviour. There are no records suggesting extra support above the existing support plan was required.
11. Ms E spent time with her family on a weekend. The family told the Council it was aware D was seeking extra funding, but they were unaware of any clear increase in need or worsening in Ms E’s behaviour except for a short period following a return from holiday in June 2017.
12. There is no evidence the Council completed a review of Ms E’s support plan in 2016. The Council says it completed a review in January 2016. When Ms C asked for additional services for Ms E in February 2016 these had already been assessed the month before. The Council completed reviews in 2017 and 2018. The result of these reviews was that Ms E continued to need 24-hour residential care. The Council did not assess there was a need for 1:1 support.
13. Ms E sent an invoice to the Council for backdated support D had given Ms E since January 2016, the Council has refused to pay this as it never agreed the additional support.
14. In November 2018 Ms C served the Council notice to end Ms E’s contract. Despite its best efforts D could no longer support Ms E. The Council found an alternative placement and Ms E moved a month later. The invoice for extra support hours remains outstanding.

Was there fault causing injustice?

15. Ms C chose to increase Ms E’s support over and above Ms E’s support plan and contract for care the Council had with D. Ms C had genuine reasons for doing so; she was concerned about the safety of her staff, Ms E, other residents, and members of the public if they were out in the community. However, as the Council never assessed this extra support was needed it will not pay for it. The Ombudsman can not say this is fault. The contract between the Council and D allows a route for disputes, and this is open to Ms C to progress. The Ombudsman makes no finding on this contractual matter.
17. The Council says it completed a review in 2016, though has not provided the supporting evidence. It says it did not increase support when requested in February because it was already assessed in January. Reviews in 2017 and 2018 did not record that Ms E’s support plan needed to change, so it is more likely than not that had the Council conducted a review in February 2016 Ms E’s support plan would not have changed. Therefore, there is no evidence of injustice to Ms C.
18. There are instances where Ms C has asked the Council for extra support for Ms E or for a review, and I have no evidence the Council took any action in response. This is fault and causes injustice to Ms C in terms of frustration and raised expectations that the extra support D was providing would be funded.
19. In other instances the Council did take action and referred Ms E for psychiatry or psychology reviews. These reviews did not assess that any extra support was needed above Ms E’s existing support plan. The reviews gave D management strategies to deal with Ms E’s challenging behaviour.
20. The Council’s records show it knew D was providing support that was over and above Ms E’s support plan, as Ms C and D’s staff made it known in e-mails and reviews that they were providing 1:1 support. There is no evidence the Council managed Ms C’s expectations until August 2018 when it finally explained it would not fund that extra support as had not assessed it was needed. I find the Council could have explained this much sooner; the poor communication is fault. This raised Ms C’s expectations as she wrongly believed funding for the extra support was going to be forthcoming.
21. I have found no fault in the Council’s decision not to fund the requested hours, because there is no evidence it had agreed they were necessary. However, I make no finding in law about the contract terms. Ms C can take legal advice to find out whether there is any route for redress contractually.
22. Ms C could have mitigated her injustice by ending the contract sooner if D could not manage Ms E’s support under the support plan. I understand her reasons for not doing so; she was trying to act in Ms E’s best interests, but in doing so was not necessarily acting in the best interests of D, its staff and other residents.

Agreed action

23. To acknowledge the impact on Ms C, and to prevent future problems, the Council will:
1. Apologise to Ms C for not explaining the Council did not assess Ms E needed extra support above that named in her support plan until August 2018, and for failing to reply to correspondence asking for extra support or reviews. To acknowledge the distress, time and trouble it caused Ms C the Council will pay her £250.
2. Remind relevant staff of the importance of responding to correspondence from customers in a timely and thorough way, ensuring to answer any queries and manage expectations.
24. The Council should complete the recommended actions within one month of the Ombudsman’s final decision and provide evidence to the Ombudsman of its compliance.

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Final decision

25. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Ms C from the Council’s failures in communication.

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Investigator's decision on behalf of the Ombudsman