North Yorkshire County Council (22 013 524)
The Ombudsman's final decision:
Summary: Mrs X complains about the provision of care provided to her daughter Y, during various periods between 2019-2022. Mrs X’s also complains the Council did not complete a safeguarding. We have concluded our investigation having made a finding of fault. During the period, there were occasions when care was not provided by Care Provider A, resulting in Mrs X and the family having to provide care to Y. The Council has agreed to our recommendations.
The complaint
- Mrs X acting on her behalf of her daughter Y, complains about the provision of care provided to Y during various periods between 2019-2022. Mrs X also complains the Council did not complete a safeguarding investigation in 2019 into a care agency providing care for Y. Mrs X would like to be refunded care fees, and an improvement in relationship with the Council. Mrs X would also like the Council to correct statements she says were false.
The Ombudsman’s role and powers
- 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
- We normally name 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 provider. (Local Government Act 1974, section 34H(8), as amended)
- We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Local Government Act 1974, section 26A or 34C)
- 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)
What I have not investigated
- I have not considered matters concerning the provision of care after the Council’s response in February 2022. This is because I have not seen evidence that any complaint after this period has been through the Council’s complaints process.
- I have not considered a complaint regarding statements made to Mrs X’s MP. This is because I have not seen evidence that any complaint relating to this matter has been through the Council’s complaints process.
How I considered this complaint
- I liaised with Mrs X and considered the information she provided. I also made enquiries to the Council and considered the information it provided in response. Mrs X and the Council will now have an opportunity to comment on my draft decision. I considered any comments made by Mrs X and the Council in response to my draft decision.
What I found
Relevant law and guidance
Care and support assessment and plans
- The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.
- The Guidance says the assessment must involve the individual and where suitable their carer or any other person they might want involved. (Care & Support Guidance, para 6.9)
- Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. The plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. The council must take all reasonable steps to agree the plan with the person it is for.
- If the plan cannot be agreed with the person, or any other person involved, the council may need to go back to earlier elements of the planning process. If a dispute still remains, it should direct the person to the complaints’ procedure. An adult with care and support needs may choose to refuse to have an assessment or decline support.
- Councils should keep care and support plans under review. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget.
Mental capacity
- At the time of the assessment of care and support needs, the council must establish whether the person has the capacity to take part in the assessment. The Mental Capacity Act 2005 says councils must presume that an adult has the capacity to make a decision until there is a reason to suspect that capacity is in some way compromised.
- If a council thinks a person may lack capacity to make a decision or a plan, it should carry out a capacity assessment. For example, it may assess whether the person has the capacity to decide whether family members should be involved in their care planning. (Care & Support Guidance, para 10.63) If it find the person lacks capacity to decide, it should make a best interest decision (as set out in the Mental Capacity Act) about who should be involved.
- If the person lacks capacity, the local authority must involve a person with lasting power of attorney (LPA) for property and financial affairs if there is one. Unless the person says otherwise, the attorney may make all decisions about the person’s property and finance even when the person still has capacity to make those decisions. The LPA must be registered with the Office of the Public Guardian before the attorney can make decisions for the person.
- Councils must arrange an independent advocate to facilitate the involvement of a person in their assessment and preparation of their care and support plan if the person would have substantial difficulty in being fully involved otherwise and there is no appropriate individual to represent the person’s wishes.
- If there is a conflict about whether a person has capacity to make a decision, or about what is in the person’s best interest, an application can be made to the Court of Protection. The Court of Protection may appoint a deputy to make decisions for people lacking capacity to make those decisions.
Safeguarding
- A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
Discretion to investigate
- Y, the complainant, has Elhers Danlos Syndrome and is non-verbal. Y’s mother, Mrs X, who has Court of Protection Deputyship for the health and welfare of Y, brings the complaint on her behalf. It is considered that Y lacks capacity throughout events in this complaint and so I do not consider this complaint out of time. On this basis, I exercised my discretion to investigate events back to 2019.
What happened
- I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
August 2019 – October 2019
- The evidence demonstrates that Mrs X had been in contact with the Council to discuss care and support arrangements ahead of their move to the area from Council B. It is understood that funding arrangements for Y are split between Council B, and the local CCG, 60% and 40% respectively and the funding will be provided for the first six weeks of Y moving, up to mid-November 2019. The Council confirmed that as Y has a Direct Payment, managed by Mrs X, she has control over sourcing agency support for Y.
- Between August 2019 - October 2019, there is ongoing dialogue between the Council, Council B, Mrs X and various care providers regarding arranging care and support for Y ahead of their move to the area. Mrs X remained wary that despite having contacted the Council ahead of their move, care and support would not be in place for Y.
October 2019
- Mrs X’s and Y’s move to the area is delayed, however it is noted that upon their move to the area in mid-October 2019 that Y has 24 hour care and support in place through Care Provider B.
- Later in October 2019, the Council make a referral to its Direct Payments Team, and a referral for a financial assessment to be completed. The Council also submits a further referral for an advocate for Y.
- Mrs X informs the Council that Y is unlikely to engage well with a male advocate and that additional time would be needed so Mrs X and Y would meet properly with the advocate ahead of any assessments. Mrs X informed the Council that she wishes to postpone the assessment until an advocate was available. The Council informed Mrs X the assessment would need to take place before it could go ahead with arranging any Direct Payments.
- The Council informed Mrs X that it had a statutory duty to undertake the needs assessment, which would assist in informing any Direct Payments arrangement, and that unless Mrs X assisted with facilitating the assessment, it would progress through safeguarding.
- Mrs X informed the Council that care and support she had arranged through Direct Payments had been challenging due to the carers experience, and that she urgently needed to source alternative care and support. Mrs X informs the Council that she has had to provide overnight care for Y. The Council informed Mrs X that it could provide emergency respite care for Y, but Mrs X rejected this proposal.
November 2019
- Mrs X confirms that she has been providing Y with interim care in the absence of agency carers through the Direct Payments
- In early-November, the Council visit Mrs X and Y to undertake the needs assessment. During this meeting, Mrs X confirmed that Y’s needs had not changed since the last assessment undertaken by Council B. Mrs X also confirmed it was her preference to continue with Direct Payments and to recruit a personal assistant for Y. The Council said it would update Y’s needs assessment as appropriate, and Mrs X confirmed that once she has the information she needs she will begin advertising for a personal assistant.
- Some days later, an emergency request for brokerage is made as it is reported that there has been a breakdown in Y’s current care arrangement. It is shortly confirmed after that care for Y provided by Care Provider B has been terminated with 14 days notice.
- Mrs X contacts the Council in mid-November to inform it that she does not have care for Y, as the carer from Care Provider B has called in sick. The Council inform Mrs X that if she is unable to manage without care in place, it can offer a respite placement in the interim, which Mrs X again refused.
- The Council also informed Mrs X that a further provider, Care Provider C, could provide support, but Mrs X had also refused. The Council reiterated that it continued to source care for Y. Mrs X informed the Council that once she had the relevant information, she could advertise for a personal assistant herself.
- Later in mid-November, the Council contacted Mrs X to inform her that it had still not been able to source an agency who has the capacity to provide support for Y. The Council again offered respite care in the interim which Mrs X again rejected. The Council note internally that four different care providers have reported no-capacity.
- The Council met with Mrs X and the Direct Payments agreement was signed. Mrs X also said she would reconsider care and support from Care Provider C, and requested the Council facilitate this as soon as possible as Y would be without care as of the following Monday.
- The Council liaised with Care Provider C who confirmed it had capacity to pick up the care package, however, it would require a week to undertake its own needs assessment and arrange support. The Council continued to contact other care providers, and Care Provider D confirmed it had capacity, but would only be able to begin in two weeks. The Council sought comment from Mrs X regarding whether Y would have care and support in place through family. The Council reiterated that respite care remained available should Mrs X want to accept.
- Toward the end of November 2019, Care Provider A confirmed it had capacity and carers on standby to attend at short notice. It is noted that it is Mrs X’s long term preference to recruit a personal assistant to care for Y, and that care from Care Provider A would likely be short term. The Council authorised the care package and suggested a review after 10 days to ensure that support was meeting Y’s needs. Care and support begin from Care Provider A shortly after.
December 2019
- In mid-December 2019, a review was undertaken with Mrs X. Mrs X raised concerns that a carer provided by Care Provider A appeared overworked and at times was often too tired to support during the night. Mrs X also noted that Y had been administered the wrong medication. An agreement was reached that carers would alternate shifts more regularly.
- The Council confirm it will again undertake a review in January 2020.
- In mid-December 2019, safeguarding concerns were put to Care Provider A for comment. Care Provider A provided comments to the concerns raised.
January 2020
- In January 2020, Mrs X raised a complaint to the CQC. Mrs X complained about care and support subtracted out by Care Provider A. Namely that the carer providing care and support for Y was unprepared, inexperienced and the care provided insufficient in meeting Y's needs. The Council confirmed it would undertake a further review in mid-January 2020.
- Later in January 2020, Care Provider A contacted the Council to provide an update. Care Provider A confirmed that it had not used the sub-contractor as described by Mrs X. Care Provider A assured the Council that it remained committed and confident it could continue to provide optimal care for Y.
- Mrs X raised concerns to the Council that Care Provider A were to send in a new carer who had yet to shadow nor meet Y. Mrs X expressed concern that there was significant risk that Y would reject the new carer. Mrs X also requested a copy of the care plan, so that she had a hard copy to give carers in the event it was required.
- The Council sought guidance from Mrs X on how she wished to proceed regarding the new carer undertaking shadowing. Mrs X said she wanted Y’s feelings to be acknowledged and that new carer’s coming in will have to be handled sensitively. Mrs X also advised the Council that she had received documentation for Y, but that this was not a care plan, and rather a hospital passport. Mrs X requested a copy of the online plan and enquired whether this differed from the written plan that had been provided.
- In mid-January, the Council wrote to the CQC to acknowledge receipt of a safeguarding concern. The safeguarding matters were that:
- Care had been sub-contracted by Care Provider A, and the carers that arrived did not have a DBS.
- The Carer left Y unattended, and Y was left in a vulnerable position where she almost hurt herself.
- The carer did not take breaks, and was visibly exhausted, thus contributing to the issues of insufficient care.
- A second carer also left Y unattended and did not follow correct protocol in setting alarms when Y was sleeping.
- Some days later, Mrs X wrote to the Council with amendments she wanted added to the care plan, namely that Y should not be left without support. The Council acknowledged Mrs X’s email, advising that there was a care plan in place, and that within the plan, it states that Y is to always be supported with 24 hour care. Mrs X wrote back to the Council that the plan in place was an interim provisional plan. The Council advised Mrs X that the information provided would be forwarded and changes made to the plan. The Council also informed Mrs X that it was investigating her concerns and progressing the matter under safeguarding.
- Mrs X informed the Council that she intended to raise a complaint if she was not sent a care plan that she could access, as the carer present on the day did not have a copy. The Council informed Mrs X that she had spoken with Care Provider A, and that the carer on duty had been briefed on the care plan, and that it was not Care Provider A’s policy to print care plans due to changing needs and confidentiality. The Council also informed Mrs X that Care Provider A had provided access details so the plan could be viewed.
- Care Provider A wrote to Mrs X to inform her that it had discussed and considered Y’s care needs following the initial assessment in November 2019. Care Provider said it had created a care plan which was accessible on its system to carers in real time. Care Provider A said should Mrs X and the family require access to the document, that it would be required to complete a capacity and consent form. Mrs X forwarded Care Provider A a copy of the Court Order, and again requested access to the care plan.
- On the same day, Mrs X raised a complaint to the Council. Mrs X complained that:
- Y did not have a Care Plan and the interim care plan was inaccurate.
- She had not been provided access to the care plan.
- The family had not been asked to contribute to the plan.
- Care Provider A did not have authority to produce a hospital pass.
- The interim plan had not been updated with additional information she had provided.
- There was no accessible care plan in the home.
- Y had been left unattended.
- The following day, Care Provider A wrote to Mrs X to confirm receipt of the Court Order, and that the family should now be able to access the system to see the care plan.
- Later in January, a planning meeting was held at Mrs X house. The meeting was arranged to discuss the safeguarding concerns that had been raised. Following the meeting, several actions were agreed, including to send Mrs X a copy of all risk assessment, to delete the current hospital passport, and to update and send Mrs X a copy of the care plan. It is also noted that the keeping safe plan is to be followed and reviewed in four weeks time.
- Toward the end of January, the Council visited Mrs X, who advised that she had still not received a copy of the care plan from Care Provider A.
February 2020
- In early-February, the Council contacted Mrs X to schedule a safeguarding outcomes meeting.
- In mid-February, the Council had a Direct Payments initial review meeting with Mrs X. It is acknowledged that Mrs X is experiencing difficult in recruiting PA’s, and that Care Provider A is currently providing support to Y. It is also noted that Direct Payments have been made to Mrs X to use family members for support.
- Later in mid-February, Mrs X contacted the Council to inform it that she would be without care for a day as there was no cover available from Care Provider A due to staff sickness. Mrs X also said the Council should consider getting another agency to reduce some of the burden on Care Provider A. The Council acknowledged Mrs X’s comments but said she had been made aware prior and that the carer would return the following day. The Council also said it did not endorse sourcing an additional care agency at this time as it was in the process of recruiting PA’s through an agency. Mrs X said that despite staff sickness, the care package should ensure there is contingency cover in place.
March 2020
- Later in early-March, the Council held an outcomes safeguarding meeting with Mrs X. The Council also met with Care Provider A. Following the actions listed in January, it is noted that the majority of the actions had been completed, and that one remained in progress. Demonstrated in the notes, it is agreed that the current safeguarding will close as concerns raised had been addressed and support is ongoing through case management. It is also acknowledged by the Council that Mrs X remained dissatisfied with the care provided by Care Provider A and that to move forward, support from another agency should be sought with support from Care Provider A to continue during the transition.
- Following the meeting, Care Provider A wrote to Mrs X to apologise that Mrs X had felt communication had broken down. Care Provider A also said it had sent Mrs X a copy of the care plan, but had removed some of the information, such as costings, as this was not relevant and would make the plan easier to digest and amend.
- Mrs X sought confirmation from the Council that it had informed Care Provider A that it would be phased out in preference of sourcing support from another agency. The Council informed Mrs X that it was agreed Care Provider A would continue as part of a transition whilst Mrs X was supported to recruit a PA. Mrs X said she had not agreed to this, and that Care Provider A were to be replaced. Mrs X informed the Council that Care Provider A were withdrawing from the contract and would not be providing care on the weekend. Mrs X said the Council needed to engage a replacement agency as a matter of urgency.
- The following day, Mrs X contacted the Council to inform it that there were no care arrangements in place for the following day. Mrs X expressed concern that Care Provider A may move to terminate the package at short notice.
- Later in mid-March, Mrs X wrote to the Council that Care Provider A said it would not be providing cover on the weekends. Mrs X reiterated that the Council should commission another care agency urgently. The Council began making enquiries to source a new care agency.
- Care Provider A contacted Mrs X to inform her that it had a new carer who would be able to cover weekend support, and sought confirmation on when would be an appropriate time for the carer to meet with Y. The Council also followed up in an email to get confirmation from Mrs X..
- Mrs X expressed dissatisfaction, stating that the Council had terminated the safeguarding process after it agreed to remove Care Provider A, which it no longer intended to do. The Council contacted over 15 different care agencies, three of which confirmed they had capacity for a 24 hour care package, with a team of 4-5 carers. The Council informed Mrs X that whilst it is considering alternative care agencies, such an arrangement is unlikely to be in place for the weekend. The Council said the situation was particularly challenging due to impact of COVID-19 on the care sector and care staff self-isolating. It is noted that Mrs X had met with a PA but considered the PA was not appropriate as they did not have the right experience. The Council requested that Mrs X continue to work with Care Provider A until a more permanent solution was in place.
- Later in mid-March, Mrs X wrote to the Council that she felt she was being harassed as she had received a printed copy of the care plan in the post. The Council also wrote to Mrs X following an update from Care Provider A that it had returned to a full team of 6 carers, and sent Mrs X details of the shadowing arrangements for new carers on the rota.
- Mrs X’s daughter, Z, wrote to the Council expressing further frustration with the circumstances, notably about the staffing arrangements and unknown carers coming into the property. Z also challenged the accounts given by Care Provider A and again said that the relationship had broken down. Z suggested to the Council it consider an alternative agency as a matter of priority. The Council acknowledged Z’s comments, and reiterated that it was considering alternative agencies, but the impact of COVID-19 meant that no agencies would be available to immediately pick up the package. The Council said its main priority was to ensure Y received the level of support she required.
- Toward the end of March, Mrs X enquired to the Council about who would be caring for Y during the night, as the carer who was scheduled was not appropriate. Mrs X also informed the Council that she would like to cancel any shadowing that was due to take place due to Y being unsettled after the weekend. Care Provider A informed Mrs X that if the carer was not allowed access, Y would be without care. Mrs X advised that she did not want the carer in the property due to a conflict of interest with recruiting the carer. Care Provider A provided its policy details about non-solicitation. The Council again contacted its brokerage team to source an alternative care agency. Mrs X requested that Care Provider A liaise with the Council in the first instance, rather than directly with her and the family.
- Toward the end of March, Mrs X complained to the Council, she complained:
- A safeguarding investigation had been improperly terminated and subverted. Mrs X said she had only agreed to terminate the safeguarding process if the Council replaced Care Provider A, which it did not.
- She had not been sent the minutes of the safeguarding meeting held earlier in the month.
- About the quality of care Y was receiving, as carers looking after Y had insufficient training and insufficient experience of working with Y’s needs. Mrs X described the provision of care as chaotic due to the number of carer’s that cared for Y. Mrs X also said that Care Provider A had lied about the experience of Y’s carers.
- There was no functional care plan in place, and that she was not able to access the care plan and daily log.
- Information had been obtained by Care Provider A without the appropriate consent, and that pictures of Y had been taken and posted without consent.
- All carers at Care Provider A could access Y’s file, regardless of whether they directly cared for Y.
- About Care Provider A’s complaints process.
- About the inability for Y to choose her careers.
- At the end of March, Mrs X contacted Care Provider A about whether it was suitable to send in a carer who was showing symptoms of the virus. Care Provider A did not respond. Mrs X contacted the Council who explained the carer had a known condition causing her to cough. Care Provider A informed Mrs X that the carer’s shift would be covered by a different carer.
- The Council note an update from care agencies it had contacted. It is noted that Mrs X had declined two care agencies due to the absence of a CQC inspection and not being a specialist in Autism.
- Mrs X advised the Council that Y had a high temperature and that carers were not wearing the appropriate PPE. Care Provider A noted that Y was not showing signs of COVID-19, and that Mrs X would not let the carers check Y’s temperature.
April 2020
- At the beginning of April, Z contacted the Council to request that the care package continue as normal, as family would not be able to support due to other commitments. Mrs X expressed further concern with one of the alternative care agencies the Council had engaged.
- Care Provider A informed the Council that 3 nights remained unallocated for the following two weeks. Mrs X wrote to the Council and Care Provider A that support would no longer be required beginning the following week for 7am-7pm, Monday to Friday.
- Care Provider A informed the Council that it would stop care from that day. Care Provider A said it could not continue to risk the safety of its staff due to Mrs X failing to inform it about who she had been in contact with. Care Provider A wrote to Mrs X to inform her it had formally terminated its contract with the Council. The Council wrote to Mrs X to inform her it was urgently sourcing an alternative care agency.
- Later in April, Mrs X sought an update from the Council, informing it that Z had been providing 24/7 care to Y. The Council provided the details of care agencies which could cover the care package. Mrs X advised the Council that she did not find them suitable due to a lack of expertise in autism and learning disability. The Council informed Mrs X that it considered the agencies suitable. The Council provided details of a further care provider, and Mrs X expressed interest in exploring the option further. Mrs X said the care provider followed up by stating it could no longer consider the package of care.
- In mid-April, Mrs X sought an update regarding a replacement agency following Care Provider A terminating its contract. Mrs X noted that two weeks had elapsed. Mrs X confirms that she has a carer employed 7am-7pm, Monday to Friday, and a carer employed 7pm-7am, Monday, Tuesday and Wednesday.
May 2020
- In mid-May, the Council said it intended to engage a provider to provide care through Direct Payments for Y. The Council confirmed the costings and called Mrs X to inform her that it had authorised a payment to be made into her account to secured the services of her chosen agency. Mrs X contacted the Council some days later for an update.
- By the end of May, Mrs X had secured full time care and support for Y using direct payments with Care Provider E.
July 2020
- In early-July, the Council contacted Mrs X to arrange a review of the care package, and to assess how things were progressing and whether there were any concerns that may need addressing. Mrs X declined to meet with the Council, citing that the arrangement was working and that she considered the support provided to be professional.
- The Council provided a complaint response to Mrs X, it said:
- It was agreed with Mrs X that Care Provider A would continue to provide support for Y until PA’s had been recruited, and that the safeguarding investigation would be closed as the main concerns could be addressed under an alternative process.
- Apologised to Mrs X for not providing the minutes to the safeguard meeting but confirmed these had been resent in March 2020.
- Confirmed that carers contracted by Care Provider A had the relevant experience, qualifications and DBS checks in place. The Council also said that Y’s rota did not reflect Mrs X’s assertions of a high number of carers supporting Y.
- Apologised to Mrs X for providing an inaccessible Care Plan, but said the absence of a hard copy had been addressed as part of safeguarding discussions held.
- The initial assessment undertaken gave Care Provider A consent to obtain and store information. However that Care Provider A acknowledged it should have sought further consent from Mrs X to hold information on its system, as she was a Deputy for Personal Welfare for Y. The Council also said that whilst it acknowledged all carers at Care Provider A could access files across the system, the system was monitored and that confidentiality could be assured through internal confidentiality agreements.
- Confirmed that other Daughter, Z, had been provided with login details to access the care plan, and that its records demonstrate the system had been accessed.
- Confirmed the details of Care Provider A’s complaints and incidents process and provided Mrs X with the relevant contact details.
September 2020
- The Council undertake a visit to Y, it is noted that Mrs X is happy with the support Y was receiving.
November 2020
- Y begins at College. Y begins attending for 6.5 hours – Monday to Friday, thus reducing the level of care Y requires outside of school hours.
March 2021
- In early-March, Mrs X contacted the Council to inform it about an incident involving Y at College concerning her being wet when she returned and having used scissors to cut her hair. Mrs X said the Council should consider the matter under safeguarding.
- The Council informed Mrs X that it was satisfied with the explanations provided by the College and it felt that raising a safeguarding would not make a difference to the actions taken, or outcome reached. The Council implored Mrs X to continue to monitor the situation with the College, and said it would review the situation and can revisit it should the risk not be managed safely.
- Toward the end of March, the Council wrote to Mrs X to inform her it would like to spend some time observing Y at College.
April 2021
- Toward the end of April, Mrs X contacted Care Provider E to express dissatisfaction with the length of notice she was receiving regarding staff availability.
- Care Provider E responded to Mrs X, noting several shifts in May that remained uncovered. Care Provider E provided Mrs X with a summary of the staff that had worked with Y since it commenced the package in May 2020, noting that many staff had left due to feeling uncomfortable in the family atmosphere.
- Mrs X contacted the Council to inform it that she would be without care for the night. The Council reiterated that Mrs X was in receipt of Direct Payments and she could source care and support herself, giving control over how Y’s needs are met. The Council queried whether Mrs X was asking it for support to source care but said it would take some time to source care through an alternative agency if that is what Mrs X wanted.
- Toward the end of April, the Council confirmed to Mrs X it was continuing to source care provision for the dates she had provided. Mrs X provided a list of the dates in May where she did not have cover and asked the Council for support.
May 2021
- In early-May, the Council wrote to Mrs X to inform her it had not yet secured cover for the dates provided. The Council said that residential respite care remained available to Y.
- The Council shortly after informed Mrs X it had sourced an agency to provide support for the dates that were not covered.
June 2021
- The Council held a direct payment review with Mrs X. It noted that Mrs X wished to move away from agency support and to directly employ her own team of PA’s to support Y.
- Mrs X expressed concern that with the summer holidays coming up, she may encounter difficult in recruiting staff to care for Y. The Council implored Mrs X to look into a specialist agency for recruiting self-employed carers and provided details. The Council also asked Mrs X whether she had considered residential respite for Y at College, Mrs X said she would consider it in the future. The Council agreed to increase the direct payment rate given the difficulties Mrs X was experiencing in recruiting PA’s.
- Mrs X asked the Council to arrange residential respite at the College.
September 2021
- At the beginning of September 2021, Mrs X contacted the Council to inform it she was without care, as a carer due to leave in two weeks had handed in a sick note for the remaining time. The Council approached its brokerage team to source support from an agency but informed Mrs X it was unlikely it would be in place at short notice. The Council also offered a short respite stay for Y. The Council contacted several agencies, most of which were unable to support. Care Provider A offered support but Mrs X declined this.
- Mrs X contacted the Council that she was unable to collect medication for Y. The Council provided Mrs X with alternative solutions to collect the medication. Shortly after, Mrs X wrote to the Council to request it change Y’s social worker. The Council responded that it was confident the social worker was working in Y’s best interests.
- The Council again spoke with the College about residential respite. The College said the arrangement would not be consistent and will only be if there is room available and sufficient staff available. Mrs X informed the Council she would not proceed with this.
- In mid-September, Mrs X wrote to the Council to say she did not have care in place 7am-9am - Monday to Friday, 3.30pm-7pm - Monday to Friday, and 8am-7pm – on alternate weekends.
October 2021
- In early-October, the Council summarised the agencies it had contacted to no avail, some of the agencies confirmed they did not have capacity, or the address was too far out. Some agencies the Council was not able to establish contact.
- In late-October, again the Council summarised the agencies it had contacted to no avail.
- In mid-October, Mrs X said she had employed a micro-provider to support Y over the last few weeks. Mrs X also said Z had sourced care which was due to begin in 10 days.
- Toward the end of October, the Council confirmed it had sourced support from a care agency to cover 7pm-7am – Saturday’s and Sunday’s.
November 2021
- In November, Mrs X wrote to the Council that she wanted Y’s social worker removed, and would no longer engage with them.
- In early-November, Mrs X informs the Council that Y does not have care in place for 7am-9am, 3.30pm-7pm – Monday to Friday the following week, and that there was no care in place from 8pm-8.30am on that day.
December 2021
- In mid-December, the Council confirm Care Provider F has capacity to provide support. Z informs the Council she and her familt have been providing care and support for Y for two full weeks and would be doing so until an arrangement was in place. Z expresses that the arrangement cannot continue due to other commitments.
January 2022
- In January 2021, Y’s new assigned social worker contacted Mrs X to introduce themselves.
- Mrs X confirms that the micro-provider has been providing care and support ad hoc, as weeks they have been available, and others they have not.
- Some days, later, Mrs X complained to the Council, she complained:
- Since September 2021, the Council had only offered one care agency to care for Y.
- The Council had asserted that it would only provide care if she gave up direct payments.
- Y had been without care since September 2021
- About the failure to carry out a needs assessment in 2019
February 2022
- In February 2022, the Council responded to Mrs X’s complaint. It said:
- It had contacted a large number of care agencies, most of which had not been able to meet Y’s needs, or did not have capacity. The Council also said that those which were able to meet Y’s needs and did have capacity, were offered.
- It refuted Mrs X’s assertions that it would only provide support if she gave up direct payments. The Council said it informed Mrs X it would continue to assist her in sourcing care for Y, however, if she would like it to take responsibility for sourcing and commissioning Y’s care, to let it know.
- It understood that Y had not been without care since 2021, as she has had night support.
Analysis
Provision of care
- Mrs X complains about the provision of care provided to Y during various periods between 2019-2022. I acknowledge that there are large amounts of correspondence between Mrs X and the Council throughout this period time, and matters are further complicated by the varying caring arrangements during this period. In any event, it follows that to consider the provision of care provided to Y during this period, I must consider what was in place during the various periods and whether any delay in arranging care has caused Y and Mrs X an injustice.
- Ahead of Y moving to the area, it is agreed that funding will continue from Council B for six weeks to allow the Council to conduct its own needs assessment to determine what action, if any, going forward. Six weeks from the date Mrs X and Y moved to the area, took the Council up to late November 2019. Y was in receipt of Direct Payments and so it was for Mrs X to arrange for care whilst the Council conducted its own needs assessment.
- Although Mrs X subsequently arranged for care and support for Y ahead of moving to the area, Mrs X expressed difficulty putting this in place for Y and had sought support from the Council. Although Y was in receipt of Direct Payments, thus giving Mrs X autonomy for managing Y’s care arrangements, it is clear that Mrs X did not feel supported by the Council. This is particularly relevant because it gives context to Mrs X frustration in an already challenging situation, and this would have impacted on Mrs X’s feeling that the Council were not taking accountability.
- In acknowledgement of Mrs X’s challenges arranging care, the Council offered Y emergency respite care should Mrs X not be able to source care for Y, but this was refused by Mrs X. This is again particularly relevant, because although Mrs X felt emergency respite care would not be suitable for Y, the Council’s offer demonstrates that care remained readily available. Mrs X informed the Council that there were times when she was providing care to Y, but Mrs X choice not to take up the offer of emergency respite care directly gave rise to a situation where she and the family would provide care and support to Y.
- When Mrs X informed the Council that Care Provider B had given notice, the Council offered a respite placement which was again refused by Mrs X. Following this, the evidence demonstrates that the Council engaged with several providers, some of which had the capacity, but which were refused by Mrs X when offered, before a care package was authorised by the Council at the end of November 2019 with Care Provider A.
- A care package is in place with Care Provider A from November 2019 to April 2020, before the contract was formally terminated. It should be noted that this period of care coincides with the COVID-19 pandemic. In any event, during this period, Mrs X raised various issues to the Council as described between paragraphs 40 to 74, some of which gave raise to a Safeguarding investigation that took place. I will consider the appropriateness of ending the Safeguarding investigation later in this decision, but this is further evidence that from Mrs X’s perspective, the care and support provided by Care Provider A was not without issue.
- The evidence demonstrates that Mrs X did not feel it was suitable for new carer’s to be entering the property without having met Y. Mrs X expressed that Y would reject the carer thus exacerbating the issue. I understand there were instances where Mrs X did not support Care Provider A’s arrangement to have carer’s shadow each other, and Mrs X’s resistance to this would have made providing care to Y more challenging.
- Mrs X raised a complaint in January 2020, and I understand that several of the issues were resolved when it met with Mrs X later that month. However, Mrs X complained that she had not received a copy of the care plan despite providing the information requested. Failure to provide a copy of the care plan to Mrs X amounts to fault.
- There is also an instance toward the end of February 2020 where staff sickness meant that Care Provider A did not provide care to Y. The Council said that Mrs X was given notice of this, but this does not absolve the Council of its responsibility to ensure care for Y. Mrs X rightfully stated that despite staff sickness, the care package should ensure there is contingency cover in place for Y. I do not consider this has caused Y a significant injustice, as there is no evidence that Y was not cared for due to the support network Y had in place through Mrs X and the wider family, but given the arrangement for Care Provider A to provide care to Y, this amounts to fault.
- The Safeguarding investigation was concluded in March 2020. The Council says it was closed as concerns raised had been addressed and support was ongoing through case management. Mrs X remains dissatisfied with how the safeguarding investigation was closed, and as stated in paragraph 115, I will consider this later in the decision.
- The evidence demonstrates that Care Provider A contacted Mrs X with further shadowing arrangements, but Mrs X cancelled this due to Y being unsettled. The evidence also demonstrates some further gaps in care in March 2020 when Mrs X considered the carer not suitable. However, I do not consider the Council at fault for this, as it was Mrs X decision not to allow access to the carer at the time, again giving rise to a circumstance where Mrs X and the family would have to care for Y.
- Care Provider A terminated the contract in early-April 2020 with immediate effect. Mrs X does not complain about the termination of the contract but it gives context to the challenging circumstances that Mrs X and Y faced. Mrs X confirmed the family had been providing care to Y, so I do not recognise a significant injustice to Y during this period, but there is an injustice to Mrs X and the family that they had to pick up care and support for Y that Care Provider A was otherwise providing, at short notice without any prior warning. This is fault by the Council.
- I also note that the Council offered two agencies to Mrs X within days of Care Provider A terminating its contract, which were both rejected by Mrs X. I can therefore not come to a view that any absence or delay in arranging care in the period shortly after the termination is attributable to the Council, as a care arrangement was offered to Y, but it was Mrs X’s choice not to go ahead.
- Care is formally in place via a Direct Payments arrangement from May 2020 and it is understood that the arrangement was working well, as evidenced from comments made by Mrs X. In April 2021, Mrs X expressed concern with notice she was given by Care Provider E, which she informed the Council about. Mrs X also informed the Council Y would be without care for a number of days in May 2021 but the evidence demonstrates the Council were able to arrange for care and support to be in place for these days, despite the Direct Payments agreement.
- Further issues arose when In September 2021, Mrs X contacted the Council to inform it that a carer providing care to Y had handed in their notice and was off sick for their notice period. The Council quickly engaged its brokerage service to source care and support for Y, and in the interim it again offered Y emergency respite care, which Mrs X declined. Despite Y having no formal care arrangement in place, I have not made a finding of fault; Y was in receipt of Direct Payments, and the Council offered a placement in emergency respite care which Mrs X declined. I understand that during this period, Mrs X and the wider family were providing ongoing care and support to Y.
- From the evidence available, I have not seen any occasion where Y has not had care, as this, when not provided directly by a care agency, has otherwise been provided by Mrs X and the wider family. In any event, the Council continued to engage with care agencies to little avail up to February 2022, whilst its offer of emergency respite care for Y remained available.
- I have not seen evidence that Mrs X asked to come away from a Direct Payments arrangement, which throughout much of the course of this complaint, has given Mrs X the responsibility for sourcing and engaging the services of a suitable provider herself. However, the evidence suggests a lack of accountability and clarity from the Council regarding its involvement through these events. I consider, given the difficulties Mrs X was having in sourcing suitable care, that there was an opportunity missed to take ownership and discuss the suitability of Direct Payments with Mrs X, and whether the Council should take responsibility for sourcing and commissioning care.
Closure of Safeguarding
- Mrs X complains the Council did not complete a safeguarding investigation in 2019 into a care agency providing care for Y.
- From the evidence available, I can see Safeguarding concerns were raised in December 2019, and formally to the CQC in January 2020. As per paragraph 21, a Council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect.
- In December 2019, the Council made enquiries with Care Provider A, who provided comments to the concerns raised. In January 2020, the Council agree to progress to a formal planning meeting the following week. Following the planning meeting, several actions were agreed as described in paragraph 54. The minutes from the Safeguarding Planning meeting were approved and sent to Mrs X, Care Provider A at the end of January 2020. The Council held an Outcomes review meeting in March 2020, which it says was split into two meetings, first with Mrs X and the second with Care Provider A.
- During the first meeting with Mrs X, it is noted that several of the actions previously agreed at the Planning meeting had been completed with some still in progress. The notes say that an agreement was reached to close under safeguarding as support can be addressed through complex case management. The Council notes also say that Mrs X remained dissatisfied and to move forward, another agency will be sought and Care Provider A will continue through the transition period.
- During the second meeting with Care provider A, the outstanding actions were discussed, and agreement reached to send any of the outstanding information that Mrs X had not yet received. It is again confirmed that the current Safeguarding will close as concerns raised could be addressed through complex case management.
- Mrs X rejected the Council’s version of events as described in the minutes of the meeting, stating that an agreement was reached to close the Safeguarding under the premise that the care package would be transferred to another care provider.
- The Council maintains that the agreement was to transition from Care Provider A, and that Care Provider A would support the transition to PA’s being recruited via Direct Payments. Whilst I acknowledge that Mrs X does not agree with this version of events, this is what the minutes from the meeting demonstrate, and I take this to be probable on balance.
Summary
- I note periods, such as in February 2020 and April 2020 where I attribute failings in the provision of care to fault with the Council. In other instances, I note the Council engaged alternative care agencies and offered respite care for Y, which Mrs X refused. There have been periods where Mrs X and the family have provided care to Y in absence of a care provider in place but that is not due to failings by the Council. The Council cannot assist Mrs X if she refuses the offers the Council have made and I would urge Mrs X to always engage with the Council to explore possible solutions.
- Through events in this complaint, I do not consider Y has been caused a significant injustice. This is because she has had the support of Mrs X, Z and the wider family where support has not been in place – at times indirectly through Mrs X’s choice to reject offers put forward for care. However, I do acknowledge an injustice to Mrs X, such as inconvenience and uncertainty, as at times she has had to provide care to Y due to staffing issues and the availability of carers at short notice, of which I attribute to fault by the Council.
- Given the fault and injustice described above, I have proposed recommendations to the Council.
Agreed action
- It is not possible for our service to go back and improve care for Y, but we can make recommendations which remedy injustice and improve services.
- As per our guidance on remedies, where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500, however, we can recommend higher payments to remedy distress where we decide it was especially severe and/or prolonged and/or taking account of personal vulnerability of those affected. Mrs X throughout events in this complaint was in receipt of care herself. I therefore find that it is suitable to recommend a higher payment in acknowledgement of the distress caused given the impact on Mrs X has been more severe.
- The Council will:
- Provide an apology to Mrs X and Y, to acknowledge gaps in care because of staff availability and Care Provider A ending its contract at short notice.
- Pay Mrs X an amount of £750 to acknowledge distress caused when the family had to care for Y due to staff availability and Care Provider A ending its contract at short notice.
- The Council should complete action points a and b within one month of the Ombudsman’s final decision.
- Further to the above actions, the Council will:
- Complete an internal review to establish clarity around processes where there is a Direct Payment in place. The purpose of the review should be to clearly set out the Council’s roles and responsibilities and establish a clear protocol where care has not been sourced through a Direct Payment arrangement. This is intended to benefit future service users, who may seek support from the Council whilst in receipt of a Direct Payment and add clarity to the process. The Council should provide the Ombudsman with a copy of any review it completes.
- Ensure Care Provider A has a clear protocol for the sharing of care plans, to ensure there is no delay, and that any actions required for it to share the care plan are actioned and begun without delay.
- The Council will complete action point c and d within two months of the Ombudsman’s final decision.
Final decision
- I have concluded my investigation having made a finding of fault. During the period, there were occasions when care was not provided by Care Provider A, resulting in Mrs X and the family having to provide care to Y. The Council has agreed to our recommendations.
Investigator's decision on behalf of the Ombudsman