The Ombudsman's final decision:
Summary: Mrs C says the Council failed to find her suitable care, carried out an unlawful review of her needs and wrongly cut her personal budget. The Council was at fault for cutting the care package on the basis of a flawed assessment. The Council has since partially reassessed Mrs C and increased her budget. It has also arranged for an occupational therapist to assess her. The Council has agreed to apologise to Mrs C and pay her £500 in recognition of her distress.
- The complainant, Mrs C, says the Council, through its social care staff:
- Failed to carry out a proper safeguarding investigation into allegations of abuse and negligence she made against a care company;
- Failed to find suitable care for her, or make adequate efforts to do so, after the care company terminated their care agreement;
- Carried out an inadequate and partial review and reassessment of her needs in late 2016 and cut her personal budget when no cut was justified;
- Delayed in processing and finalising her care package; and
- Breached her confidentiality by contacting her GP directly;
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I use 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)
- 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)
How I considered this complaint
- I read the relevant materials. I made enquiries of the Council. I received a response. I considered this along with the relevant law and guidance.
- I sent copies of my draft to Mrs C and the Council for their comments.
What I found
- The Care Act 2014 introduced a requirement for councils to promote ‘wellbeing’ and “signifies a shift … to the concept of ‘meeting needs’…. The concept of meeting needs recognises that everyone’s needs are different …. authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into”. (Care and Support Statutory Guidance, Ch 1)
Care Act – Needs assessment
- If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
- A council should revise a care and support plan where circumstances have changed in a way that affects the care and support plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs. (Care Act 2014, ss 27(4) and (5))
- The care and support plan must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, s 26)
- The High Court has confirmed an individual’s wishes are not the same as their needs and their wishes are not the paramount consideration. A council must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council  EWHC 354 (Admin))
- A person with eligible care needs can have a council arrange care. Or, if they wish, they can arrange their own care using a direct payment. (Care Act 2014, s 31)
Care Act – review
- Those receiving Care Act assistance should have their services reviewed annually and their plans should be kept under review generally. The review process should be person-centred and outcomes focused.
- The review is intended to discover whether the person’s needs have changed in which case it may lead to a reassessment. The review must not be used as a mechanism to arbitrarily reduce a person’s personal budget. (Care Act s.27, Care and Support Statutory Guidance Ch.13)
Care Act – Adult safeguarding
- ‘Safeguarding means protecting an adult’s right to live in safety, free from abuse and neglect. It is about people and organisations working together to prevent and stop both the risks and experience of abuse or neglect, while at the same time making sure that the adult’s wellbeing is promoted including, where appropriate, having regard to their views, wishes, feelings and beliefs in deciding on any action. This must recognise that adults sometimes have complex interpersonal relationships and may be ambivalent, unclear or unrealistic about their personal circumstances.
- Organisations should always promote the adult’s wellbeing in their safeguarding arrangements. People have complex lives and being safe is only one of the things they want for themselves. Professionals should work with the adult to establish what being safe means to them and how that can be best achieved. Professionals and other staff should not be advocating ‘safety’ measures that do not take account of individual well-being, as defined in Section 1 of the Care Act.
- Safeguarding is not a substitute for providers’ responsibilities to provide safe and high-quality care and support’. (Care and Support Statutory Guidance ch.14)
Care Act – Market shaping
- The Care and Support Statutory Guidance (guidance to the Care Act) states; ‘The Care Act places new duties on local authorities to promote the efficient and effective operation of the market for adult care and support as a whole. This can be considered a duty to facilitate the market, in the sense of using a wide range of approaches to encourage and shape it, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. The ambition is for local authorities to influence and drive the pace of change for their whole market, leading to a sustainable and diverse range of care and support providers, continuously improving quality and choice, and delivering better, innovative and cost-effective outcomes that promote the wellbeing of people who need care and support.
- The market for care and support services is part of a wider system in which much of the need for care and support is met by people’s own efforts, by their families, friends or other carers, and by community networks. Local authorities have a vital role in ensuring that universal services are available to the whole population and where necessary, tailored to meet the needs of those with additional support requirements (for example housing and leisure services). Market shaping and commissioning should aim to promote a market for care and support that should be seen as broadening, supplementing and supporting all these vital sources of care and support.’ (Care and support Statutory Guidance, 4.1-4.3)
Care Act – Allocation of resources
- “There are many variations of systems used to arrive at personal budget amounts, ranging from complex algorithmic-based resource allocation systems (RAS), to more ‘ready-reckoner’ approaches. Complex RAS models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as in the case of deaf-blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS model is being used, local authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs” (Care and Support Statutory Guidance 2014, 11.23)
Council Policy on assessment - Principles
- The Council’s assessment policy says assessment is a person-centred process that will provide a picture of the person’s needs, strengths, preferences and desired outcomes to maintain or improve their wellbeing. It should be appropriate and proportional to the person’s circumstances and needs.
Council policy on assessment – Reviews
- A review will be person-centred and the outcome focused on meeting needs. The service user’s views will be considered along with those of any other person the service user wishes the Council to consider.
- Where the review identifies that the person’s needs have changed and the existing support plan does not meet their needs, a reassessment will take place.
- Where a change to a support plan is required but there has been no change in the level of need, the council will respond in a proportionate and reasonable way and modify the plan and the budget.
- Support plans can be revised following a review. The council will review support plans and ongoing direct payments at least every 12 months.
- The review will not be used as a mechanism to reduce the level of a person’s personal budget, unless it is required following a reassessment of needs.
Council direct payments guidance
- The Council’s ‘Guide to Direct Payments’ says that the Council will review direct payments after six months and then annually; ‘this is to ensure that you have enough within your budget to pay for your care and for the council to redeem any surplus funds’.
Nolan Principles of public life
- Councils are required to abide by the Committee on Standards Seven Principles of Public Life (known as ‘the Nolan Principles’).
- The third principle requires officers to be objective when taking decisions and to act impartially, fairly and on merit using the best evidence and without discrimination or bias.
- The fifth principle requires holders of public office to act and take decisions in an open and transparent manner. Information should not usually be withheld.
Council’s complaints process
- The Council’s complaints process is not rigidly defined. The Council undertakes to investigate complaints as quickly as it can rather than within a specified period.
- Mrs C has two adult children. Her son lives with her at the family home. She has a progressive condition which has left her needing daily assistance for some years. The Council has a duty to provide care for her.
- Mrs C has a direct payments (DP) arrangement with the Council. The Council pays money to her and she pays her carers. She used a care provider with additional care provided by her mother and daughter.
- In 2013, the Council carried out an assessment of Mrs C’s needs. The assessment found she needed assistance:
- Getting in and out of bed
- Dealing with personal hygiene, toileting, catheters
- Food preparation
- Getting in and out of her electric wheelchair
- Two hours care every morning to help her get up, carry out her morning routine and get dressed;
- Hydrotherapy once a week in a town ten miles away;
- Help with household chores;
- Assistance with social activities; and
Termination of care contract 2016
- In early June 2016, Mrs C raised safeguarding concerns about Provider P. At a meeting in June 2016, the Council agreed to carry out a retrospective safeguarding investigation into these allegations. Mrs C also complained that staff were not working but were instead using social media and planning for other work placements when they were being paid by her.
- On 11 August 2016, Mrs C and Mrs P, the owner of Provider P, held a service review meeting. Mrs P said she believed the arrangement was working well. Mrs C, when asked for comment on the service provided also said that the arrangement was, in general, working well but complained that one member of staff, a member of Mrs P’s family, was not performing her duties.
- This caused a falling out between the two. Mrs C says that Mrs P bullied her.
- A few days later, Mrs P told the Council that Mrs C was not using the care package correctly. She said that, of the morning allocation of two hours’ care, only 45 minutes were necessary for personal care. For the remaining time, Mrs C required staff to do housework, tidy up after her son and feed her pets.
- She said Mrs C was careless of the health and safety of staff, asking them to use a standing aid in a way Mrs P believed to be dangerous, and that she believed that, in fact, Mrs C could do much more for herself than she currently did.
- At the end of August, the Council spoke with Mrs C and Mrs P to try to resolve their dispute. A Council officer wrote to Mrs C setting out the care that she would receive from Provider P. He said he would review the arrangement in two weeks.
- However, after only a few days, Mrs P wrote to Mrs C giving two weeks’ notice of the termination of the care agreement. This left Mrs C without a care provider.
- As soon as she received the termination notice, Mrs C contacted the Council and asked it to organise alternative provision. The records show that Mrs C contacted the Council and that the Council accepted that a new provider would have to be found ‘as soon as possible’.
- At the time of this contact, was identified that Mrs C had not had her annual review. A social worker, Officer O, was appointed to carry out the review.
- Mrs C and the Council looked for alternative providers but neither could find a provider willing to provide two hours care in the morning for some time. As a result, Mrs C had to rely on her mother and daughter to provide the care.
- Mrs C also wrote to Mrs P stating that Provider P had provided her care for three years. She said Mrs P had said the plan was working well and the time allocated was appropriate at a review meeting a few weeks previously. She asked for an explanation. Mrs P did not reply.
- The Council was unable to find alternative care provision. It says, in its response to my enquiries, that local companies offered shorter care slots so would not take on the contract. It also says it asked its Crisis Response Team to provide the care needed but ‘there was no capacity’.
- In response to my enquiries, the Council says that Officer O, faced with a difficulty in finding Mrs C the care she needed, and having been informed by Mrs P that Mrs C did not require two hours care in the morning, decided to cut Mrs C’s morning care to one hour. This, the Council says, would make finding a provider easier and, Mrs C did not need the care anyway.
Meeting September 2016
- In late September 2016, Officer O met Mrs C to assist with the review of her care plan. Mrs C reports that Officer O was not familiar with her case or the contents of her existing care plan. She says that Officer O said the Council would cut her care because the Council could not afford to keep it as it was.
- The Council’s minutes show Mrs C complained about the breakdown of the care contract. Officer O said she was not there to take sides but to carry out a reassessment. She said this might reduce the level of care provided.
- Officer O reassessed Mrs C’s needs. She did not witness Mrs C’s morning care routine. In October 2016, she wrote to Mrs C telling her her personal budget was to be reduced to £400 per week. There was no CHC element in this sum.
- They had a further meeting in November 2016. Mrs C describes this meeting as a ‘brutal drilling down on the financial figures alone’. During the meeting, Ms D, a support worker for those with Mrs C’s condition, said Mrs C required two hours care each morning but this intervention was, Mrs C says, ignored.
- The Council accepts that it was at fault for a failure to assess whether Mrs C had any social needs at the September meeting. This, it says, led to much of the reduction in the budget.
- Mrs C said her needs had not decreased so she could not see how her care package had been reduced. Mrs C says Officer O was not familiar with her care plan and did not explore what outcomes she wanted to achieve, as is required by local and national guidance.
- The Council’s records say that Officer O ‘stated that [the Council] does not use the support plan to create the budget, the budget is created with the eligible funding available’.
- Mrs C told Officer O she had found an alternative provider but this company could only provide two mornings’ care per week, leaving the remainder of the duties with her mother and daughter which ‘was causing problems’. Officer O said she would try to find suitable care.
- Officer O also said Mrs C’s hydrotherapy was very expensive. Transport was costing £100 and therapy £35 each time. Officer O said that the Council might fund some of it but not all. She should try to find a cheaper local alternative.
- Since 2013, some £13,000 had accumulated in Mrs C’s direct payments account. Officer O arranged for £1,913 to be repaid to the Council leaving £11,000.
- Difficulties in finding a care provider continued. In November 2016, Mrs C told Officer O that she had found a temporary solution. She had found a company that could provide cover for two mornings per week which would help her mother and daughter until a full-time solution was found. In January 2017, the Council implemented the reduction of Mrs C’s direct payments to £400 per week.
- The Council says it continued to look for care for Mrs C but has not, to date, found any provider willing and able to care for Mrs C. Mrs C has since sourced three personal carers who, between them, assisted by family members, provide her care. Mrs C says the Council has told her it has no duty to find care for her because she is in receipt of direct payments and should source her own.
- In 2017, Mrs C continued to protest the cut in her personal budget but, throughout 2017, her weekly direct payments were £400 per week.
- Mrs C says that her expenditure did not decrease during that period as her needs remained constant.
- She had a surplus of about £11,000 in her direct payments account which reduced, throughout 2017, due to the shortfall in her direct payments.
- The Council appointed a second social worker to her case in July 2017 and, at the end of August 2017, she completed a second assessment. She calculated Mrs C’s personal budget at £579, £72.74 of which was funded by Continuing Health Care. This was backdated to August 2017.
- This budget, the Council says, cuts the amount allocated to be spent on personal care.
- Mrs C complained to the Council in September 2016 about bullying and abuse from Provider P. She complained formally to the Council in February 2017 about the reassessment. Her points of complaint were that:
- The Council had not carried out a proper assessment or review of her condition which was compliant with the Care Act. It did not engage with her needs in a ‘person-centred way’ and instead conducted a sham review the sole purpose of which was to cut her care. No changes in her condition were identified so there should have been no change to her care plan.
- Officer O twice tried to make Mrs C agree to the new personal budget without showing her support plan to her.
- Officer O contacted Mrs C’s GP during the review without her permission
Was there fault causing injustice?
Failure to review case in May 2016
- The Council had a duty to review Mrs C’s care annually. It should have reviewed it in May 2016. It did not do so. This was fault. However, it caused no injustice to Mrs C as her existing care package continued until the review occurred.
End of care contract – September 2016
- Relations between Mrs P and Mrs C broke down in August 2016. Mrs P says, in her letter to Mrs C giving notice of termination, that she was entitled to do so under the contract and I have seen no evidence that this was not the case.
- Provider P was not one of the Council’s approved carers and, even if it had been, the Council was still not at fault for the dispute between Mrs C and Mrs P or for the termination of the contract.
- The Council undertook, on at least two occasions, to investigate the safeguarding element of Mrs C’s complaint; that Mrs P had bullied her and put her at risk of physical harm. It has not, so far as I am aware, done so to date. Having said it would carry out an investigation, it should have done so. This was fault.
- It is difficult to see how investigating would be of use now. Time has passed and it is unlikely there were independent witnesses to any abuse so it would be hard for an investigation to reach meaningful conclusions. But Mrs C has suffered injustice in that the Council promised an investigation which did not occur.
Duty to find alternative care
- The Council had a duty to help Mrs C find alternative care. When Mrs C phoned the Council to say Provider P was terminating the contract in September 2016, a social worker told her it would find new care by 21 September when the contract ended. It did not do so and, Mrs C says, has not done so since.
- The Council says that it considered using its crisis team to provide care but did not have capacity. This is not a valid reason not to provide care. It has a duty to meet eligible needs.
- If it had no capacity in the crisis team, it should have found care from a private provider. The Council says no companies were willing to take on the longer care slot that Mrs C required. This is not a consideration. If the longer care slot was required, it should have been catered for.
- The Council was at fault. And the fault caused injustice. Mrs C was forced to rely on her aged mother and her daughter who is the mother to two small children. This, in turn, caused family problems.
- It would, of course, be reasonable to expect the family to provide emergency care in the short term but this is not what happened. Provider P terminated the care contract in September 2016. The Council has never found a carer for her.
Review August 2016
- The Council was at fault for the way in which Officer O conducted the review in autumn 2016 for the reasons set out below.
Failure to include social activity element:
- Officer O failed to include any social activity element in the budget she created in late 2016. This has now been included since the review in August 2017. This was not paid for 13 months.
- In response to my enquiries, the Council says ‘During the 2016 assessment, [Mrs C] was asked by the [Officer O] what support she might need with social activities. It is documented that [Mrs C] replied that family, friends and volunteers support her with some activities. [Officer O] did not pursue this line of questioning as part of the assessment, given this response and [Mrs C] did not elaborate further. [Mrs C] was therefore not assessed as having eligible needs for social activities at that time due to the response she gave and no budget was generated for this’.
- This was fault. Mrs C’s condition had remained more or less stable over the previous three years. There was no reason to suppose that her needs in any area had reduced. Officer O should have questioned Mrs C about the social care element or, if she did not, have left it as it had been.
Failure to organize any continuing healthcare element:
- Officer O did not organize any continuing healthcare element. This resulted in a loss of care valued at at least £67.47 per week for a period of 13 months (56.5 weeks).
- In response to my enquiries, the Council says, ‘There was an oversight at this point in that neither, [Mrs C], [Ms H] or [Officer O] had noted there was ongoing CHC funding for Physio exercises as a Delegated Healthcare task and this should have been incorporated into the Personal Budget. This was later picked up in October 2017 and rectified, and incorporated into the latest Personal Budget and Support plan. Funding was backdated to 30 August 2017’.
- This was fault but, as the CHC element has been backdated it has been remedied, in part at least. It is not clear why it was not backdated to August 2016, rather than 2017.
Decision to cut morning care without occupational therapist appointment
- Officer O did not refer Mrs C to an occupational therapist to assess her morning care requirements. Nonetheless, she cut the funding for it. The reason is not clear but it seems to have been either bias, in that it accepted Mrs P’s word over Mrs C’s without evidence, or the fact that shorter slots were more readily available. Neither of these is a relevant consideration for the reasons set out below.
- Officer O seems to have been, and, on the balance of probabilities, I find she was, unduly influenced by the evidence of Mrs P that Mrs C did not require her full two hours’ allocation every morning.
- The Council has a third Nolan Principle duty to investigate impartially; to bear in mind all relevant considerations when making a decision. Mrs P had, for three years prior to the termination of the contract, provided two hours care to Mrs P every morning. She had never, until their relationship had broken down, claimed that Mrs C was receiving too much care and in a review meeting in August 2016, she had said the contract was running smoothly.
- There was, therefore, reason to doubt Mrs P’s claim that Mrs C did not require the two-hour slot which was made. Officer O did not witness the care requirement herself nor did she cause an occupational therapist to do so. And yet, without either, she cut the care requirement. This, I find, was fault causing injustice.
- The Council says Officer O cut morning care to one hour because it would be easier to source. The Council cannot ration care on the basis of availability. If Mrs C needed two hours, the Council had to provide it. This was fault.
- At the time of the 2016 review, Mrs C said she did not see how Officer O could find her needs had lessened since her 2013 assessment as she suffered from a progressive disease and her needs had, if anything, increased since 2013. This is a legitimate argument. Where a service user suffers from such a disease, there must be a presumption that their needs remain, at least, constant, in the absence of good evidence to the contrary. The evidence of Ms D that the two-hour morning slot was required was ignored.
Cost cutting exercise:
- All of this leads to the conclusion that the review was, as the guidance says it must not be, a cost-cutting exercise. This was fault and it caused injustice.
- Mrs C complained again at the beginning of February 2017 about the cuts in her personal budget. The Council responded at the end of March. This response took seven and a half weeks or 53 days. This was too long and was fault though the response when it arrived was thorough.
- However, I have not found fault with the Council for its decision that Mrs C’s hydrotherapy was too expensive.
- The High Court has confirmed that the Council can provide care in a way that it thinks fit, not the way the service user wants it to be, particularly where the preferred care is expensive.
Direct payments surplus
- At the time of the 2016 reassessment, Mrs C had some £13,000 in her direct payments account; equivalent to 20 weeks payments.
- Councils should keep direct payments accounts under review and it is not normal for councils to allow more than six weeks surplus to accrue before repayment is required.
- In this case, Mrs C says that the £13,000 built up over a period of three years. This indicates that the Council was not reviewing the direct payments arrangement annually as is required by the Care and Support Statutory Guidance and the Direct Payments Regulations.
- This was fault but it did not cause Mrs C any injustice. In fact, the surplus allowed her care to continue during the period when her direct payments had been cut.
- The Council complains that Mrs C has been exceeding her personal budget since 2016. I do not accept this criticism. She says, and I accept, that she was spending what she was spending before the faulty assessment of late 2016. This assessment wrongly cut her personal budget and therefore Mrs C was not at fault for exceeding the new personal budget.
- The Council did not deal with Mrs C’s complaints within its service standards.
- I have concluded that the Council was at fault for its:
- Failure to Failure to assess Mrs C’s needs in May 2016;
- Inadequate assessment of her in September 2016;
- Failure to arrange social care or CHC elements to her package in 2016.
- Since my investigation began, the Council has carried out a further assessment of Mrs C’s needs. Mrs C has commented on the assessment saying that she needs two hours morning care. The Council says the assessment is not complete and it wants the occupational therapist to observe Mrs C’s morning routine. Mrs C does not agree that this is necessary.
- Within four weeks of the date of this decision, the Council has agreed to:
- Apologise to Mrs C for the errors it made in the handling of her case;
- Apologise to her for the failure to carry out a safeguarding investigation into Provider P.
- Pay her £500 in recognition of the distress it caused her, the time she spent and the trouble she was put to.
- I have found the Council was at fault and that the fault caused injustice. The Council has agreed actions to remedy this fault. I have closed my investigation.
Investigator's decision on behalf of the Ombudsman