Summary: We uphold complaints Miss Q has made about the service she received from a Care Provider (Abbots Care) which the Council contracted to provide care to her disabled child. We also find the Council failed to provide enough support to Miss Q after the Care Provider withdrew its service. These actions caused distress. The Council has accepted these findings. At the end of this statement, we set out action it will take to remedy this injustice to Miss Q as well as improving its service to avoid a repeat.

The complaint

1. Miss Q, who has a disabled child ‘R’, complained about the service she received from Council children services. Our investigation focused on the period March 2021 to July 2022 when Miss Q received support from the regulated home care provider, Abbots Care (the ‘Care Provider’). Miss Q said the Care Provider failed to provide an adequate service to R and then withdrew its service, leaving her with no support. While the Council went on to commission another care provider (that I refer to as ‘CP2’), it could not provide services for R immediately. In the time between, Miss Q did not find the Council responsive in letting her use direct payments to pay trusted adults to support her in caring for R.
2. Miss Q said because of these failings R did not receive the care they should have, causing them distress. Miss Q said the events caused her distress and had an impact on her physical and mental health. Miss Q also said pursuing her complaint put her to unnecessary time, trouble and expense.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We 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)
6. 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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)

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How I considered this complaint

8. Before issuing this decision statement I considered:

• Miss Q’s written complaint to the Ombudsman and any supporting information provided;
• a ‘complaint file’ comprising a complaint made by Miss Q through the statutory children services complaint procedure (see below for explanation);
• information provided by the Council in response to my enquiries;
• any relevant law or Government guidance referred to in this statement;
• any relevant guidance published by this office referred to in this statement.

9. I also gave Miss Q and the Council an opportunity to comment on this draft decision statement. I considered their responses before issuing this final decision statement.
10. Under information sharing agreements, we will now share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted) and the Care Quality Commission (CQC).

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What I found

Relevant legal and administrative considerations

11. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area by providing appropriate services for them. All disabled children are considered ‘children in need’.
12. Parents of disabled children can ask their council to give them a direct payment. This enables them to buy services (or sometimes goods or equipment) to meet the child’s needs. Those receiving direct payments must keep and submit records of their use.
13. The Children’s Act 1989 (and associated regulations) sets out a three-stage procedure for councils to follow when they receive complaints about children social care services. In summary:

• the first stage of the procedure is local resolution. Councils have up to 20 working days to respond;
• if unhappy with the reply, the complainant can ask for their complaint to progress to stage two. At this stage councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence. They will produce a report with findings, which the Council must respond to. The stage two process should complete within a maximum 65 working days;
• if the complainant remains unhappy at the end of stage two, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

Relevant CQC guidance

14. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. We take account of the standards and accompanying guidance when deciding if a Care Provider has acted with fault.
15. I consider the following fundamental standards relevant to this complaint:

• Regulation 9, which covers person centred care. This says providers should do everything ‘reasonably practicable’ to ensure care meets the needs of the person receiving care.
• Regulation 16, which covers receiving and acting on complaints. This includes ensuring responses to complaints and telling complainants what they can do next, if unhappy with the reply to a complaint
• Regulation 18, which covers staffing. This includes ensuring that staff receive training to interact appropriately with those using its service. There should also be sufficient staff to ensure the care provider meets the needs of those using services.

Chronology of key events

16. R is a child of secondary school age. They have a severe learning disability and complex physical health needs. The Council considers R a ‘child in need’ as defined by Section 17 of the Children’s Act 1989.
17. Because R has special educational needs, they have an Education, Health and Care (EHC) Plan. A June 2021 version of the Plan sets out the social care needed by R. In this, the Council said it would provide two care workers to meet R’s needs for 35 hours a week, plus eight hours every other weekend. The Council commissioned the Care Provider to provide this. In addition, Miss Q could claim a payment for up to 100 hours a year of short break (or respite) care.
18. At the beginning of March 2022, the Care Provider gave notice that it would stop providing care to R. In its letter to the Council advising its decision, it said this was because Miss Q:

• would only accept a small cohort of care workers and would ‘not accept’ unfamiliar care workers working with R;
• sent “a stream of emails which are often unclear, confusing and reflection of her own issues she is facing”;
• would not accept its replies to her complaints.

19. The Care Provider said in these circumstances it could not provide safe care to R and could not meet Miss Q’s expectations. It said it would stop providing a service to R from the beginning of June 2022.
20. Neither the Council nor Care Provider told Miss Q about the Care Provider’s decision straight away. Instead, she only learnt of it at a meeting the Council arranged between her and the Care Provider in mid-March, which an officer from the Council also attended. A recording of that meeting shows the Care Provider only told Miss Q of its actions when prompted by the Council officer around 20 minutes into the meeting. This was after it had invited Miss Q to set out her concerns about its service in some detail.
21. Before the end of March, the Council had identified ‘CP2’ to take over R’s care package. However, it could not do so immediately. Miss Q and the Council agreed CP2’s care workers needed to communicate with R. For that they needed training in a particular communication method used by R known as ‘Signalong’.
22. So, in May 2022 the Council asked the Care Provider if it could meet R’s needs beyond the beginning of June. The Care Provider said it could, but only if it had the available staff. Over the next two months the Care Provider sent multiple emails to Miss Q saying it did not have availability to send care workers to support R. It stopped providing care all together in mid-July 2022.
23. At the end of August 2022, CP2 began providing care to R. However, the Council says because of its failure, it did not contract with CP2 to provide personal care for R until mid-October.

Miss Q’s complaint

24. Miss Q made a complaint to the Council in June 2022. She complained the Care Provider:

• had delivered a poor quality of care to R; the company used too many care workers and did not always send care workers when agreed. Its care workers did not use Signalong;
• had given insufficient notice when cancelling R’s care package;
• had not responded to her complaints about its service.

25. In addition, Miss Q complained the Council:

• would not let her use direct payments or money for short breaks to help plug gaps in the service provided by Care Provider after it gave notice.

26. Concurrent to making her complaint, Miss Q also instructed solicitors who wrote a ‘pre-action protocol’ letter to the Council. The letter said Miss Q would seek a judicial review of the Council’s failure to provide R with adequate care. The Council replied to that letter, which it said also served as its reply to Miss Q’s complaint.
27. In its reply, the Council recognised Miss Q’s distress, inconvenience and upset arising from the Care Provider’s actions. It set out details of how CP2 would meet R’s needs. It said that meanwhile Miss Q could use her short break money as a direct payment to fund activities for R. It would also make a direct payment to enable Miss Q to pay a trusted adult who had supported her for two weeks.
28. In September 2022 Miss Q escalated her complaint. The Council appointed an independent investigating officer (IO) and independent person. In correspondence with the IO, Miss Q made clear her dissatisfaction with the Care Provider’s service.
29. The IO’s report, issued in February 2023 and later accepted by the Council, included findings, that the Council:

• had not adequately monitored R’s case through holding regular ‘child in need’ meetings;
• had delayed in responding to requests from Miss Q in April 2022 that she use short break payments to help fund activities for R and provide a temporary increase in direct payments.

30. The IO did not find the Council slow to replace the Care Provider, saying it had identified CP2 within a week of it giving notice. It said CP2 needed time before it could deliver care to R. Their report also said the Council had a complex and robust procedure in place to monitor the quality of care delivered by the Care Provider.
31. The IO asked the Council to apologise to Miss Q for the faults found and to ensure it arranged regular child in need meetings. They also recommended some improvements around communications with users of services if a care provider withdrew its services and improved record keeping. But they found no grounds to make further recommendations around Miss Q using direct payments or short break payments to meet R’s needs. Nor to recommend any payment to Miss Q for costs she incurred meeting R’s needs, saying there was no evidence for these. When the Council responded to the IO report it offered Miss Q a symbolic payment of £200 for her distress, but this was not subsequently paid to her.
32. Miss Q remained dissatisfied and so escalated her complaint to Stage Three of the complaint procedure.
33. The Stage Three Panel issued its findings in July 2023 having revisited those parts of the complaint not upheld by the IO. It found the IO’s report correct to say the Council had identified CP2 quickly. But it had not recognised the impact of the delay Miss Q and R experienced in receiving care, after the Care Provider gave notice.
34. The Stage Three Panel therefore recommended the Council provide an apology to Miss Q for this and suggested she receive a symbolic payment of £450. The Council agreed this and later made this payment to Miss Q.

Scope of our investigation

35. The statutory children’s complaints procedure should provide an independent, thorough, and prompt response to complaints. So, if a council has investigated something under the procedure, we will not normally re-investigate it.
36. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We can also consider how the Council has remedied any injustice caused to the complainant, identified during an investigation.
37. In this case I decided further investigation needed:

• to consider Miss Q’s concerns about the service delivered by the Care Provider before it gave notice in March 2022. I found this was always part of Miss Q’s complaint but only limited investigation into this matter took place during the Stage Two investigation;
• to consider the gap in service experienced by Miss Q after the Care Provider gave notice. While the Stage Three Panel recognised this had impacted negatively on Miss Q and R, there was no rationale for its suggested symbolic payment of £450. And I wanted to explore more the communications between Miss Q and the Council around her wish to use, and the use of, direct or short break payments to help support R.

38. I considered any investigation of the Care Provider’s service limited to events from January 2021. I considered any complaint about events before 2021 late, and there were no special reasons justifying investigating of those earlier events.
39. I found no need to reinvestigate events around the Care Provider giving notice to Miss Q. Investigation had already found there was an unacceptable delay in her learning of this.
40. My investigation also did not consider legal expenses Miss Q incurred when she asked solicitors to write to the Council in summer 2022. That letter said Miss Q intended seeking a judicial review of the Council’s actions. Asking the High Court to undertake a judicial review is an alternative to making a complaint. One difference between the two is that using a complaint procedure is free but judicial review incurs costs. Where a complainant begins the process of using judicial review (even if they do not go to Court), they do so in that knowledge. We do not usually expect councils to compensate complainants for that choice, given they will have had the alternative of making a complaint at no cost. I saw no reason to depart from that principle in this case.

Investigation of events pre-March 2022

41. I asked for copies of the Care Provider’s records. It sent me over a hundred emails it exchanged with Miss Q and the Council spanning several years. Among these, were emails showing Miss Q had made the following complaints after 1 January 2021:

• in February 2021, Miss Q complained about the actions of a named care worker, at the amount of new care workers introduced to R and not receiving staffing rotas. I noted the Care Provider replied to this. It did not offer any guidance to Miss Q on what she should do if unhappy with its reply;
• in May 2021, Miss Q made a complaint about a named care worker. I saw no reply to this;
• in July 2021, Miss Q complained at the Care Provider changing a rota at short notice and the availability of a preferred care worker. I noted in August 2021 the Care Provider drafted a reply to this complaint, but I did not see information confirming it sent this to Miss Q;
• In January 2022, Miss Q complained that she could not use hours of care owed to her by the Care Provider for times it had not attended. I saw no reply to this complaint.

42. In comments in response to my draft decision, Miss Q provided me a letter the Care Provider sent to her in August 2022. This identified the complaint made in July 2021 and said the Care Provider had put in place plans to review R’s care. This tallied with information provided to me, showing the Care Provider had asked for a meeting with the Council. It had also told Miss Q that its staff would receive training in Makaton (a language programme combining signs, symbols and speech used by children and adults with learning disabilities). Makaton is not the same as Signalong which has its own set of signs. However, it was still not clear it had replied to her complaint.
43. In addition, the August 2022 letter identified Miss Q had complained in September 2021 about care workers it had sent to support R, where matters “had not worked out”. It said, it had apologised for this. And a complaint made in October 2021 about introducing new care workers and a trusted care worker leaving. The August 2022 letter also identified a complaint made in December 2021, described in substantially similar terms to that I recorded as made in January 2022.
44. Finally, the August 2022 letter also recorded Miss Q making four complaints between March and July 2022 about the lack of regular cohort of care workers for R and failure to make provision.
45. I noted that as well as her contacts with the Care Provider Miss Q had contacted the Council directly at times. In October 2021 she told a manager in its service she was “very concerned” about various matters connected to the Care Provider’s service, “mainly the staff turnover”. The Council promised to look into this. I saw no evidence for what the Council did next, nor if it reverted to Miss Q on this matter.
46. Later, Miss Q copied the Council into an email to the Care Provider which expressed concern at how some care workers responded to some of R’s behaviour. She also referred to having several complaints outstanding. The Council promised to look into this. Again, I saw no evidence for what the Council did next.

Investigation around direct payment

47. I found in April 2022, in response to the Care Provider giving notice, there was an email exchange between Miss Q and the Council about direct payments. Miss Q asked if she could use the short break payments to meet R’s needs. And in June she told the Council she was using the direct payments she received for “plugging gaps” in the service.
48. In July 2022 there was a further exchange where Miss Q set out her understanding, she should receive eight hours a week direct payment. The Council said it was four hours a week. Later the same month there was another exchange when Miss Q said she was “beyond desperate” to receive more support.
49. In its general comments the Council asked me to note that its Head of Service has twice met with Miss Q (it provided no notes of these meetings). It said the Council had given apologies to Miss Q and agreed increased direct payments to her following those meetings. It said any failure to provide the care needed to R during events covered by this complaint did not arise from a “lack of effort” on its part.

My findings

The actions of the Care Provider

50. I had several concerns about the service provided by the Care Provider when delivering care to R. These were as follows:

• First, I could not say the Care Provider generally failed to provide a satisfactory level of care to R. But there were occasions when it failed to deliver the amount of care the Council contracted it to provide. In January 2022, Miss Q referred to the Care Provider owing R some hours of care, which showed this was the case. But I did not find there were frequent failures to provide care as opposed to sporadic instances.
• Second, I found it did not provide care to R through a consistent cohort of care workers. This would have provided R with a greater degree of stability and care workers used to their complex needs. I did not underestimate the challenges faced by the Care Provider in recruiting and retaining staff. And given the number of hours of care R needed it could not provide this through a small handful of staff. Arguably, Miss Q had unrealistic expectations about the size of the cohort needed. But Miss Q raised this matter regularly and I cannot see where the Care Provider set out how it would seek to meet R’s needs in a consistent way, in response to that.
• Third, another area where the Care Provider could have met R’s needs better was in its communications with them. I did not understand why the Care Provider sent care workers to learn Makaton when R uses Signalong, a similar communication system but with marked differences. I can see again from her correspondence with the Care Provider, that Miss Q made this point more than once. Yet, the Care Provider failed to effectively address it.

51. These concerns led me to think the Care Provider may not have consistently met the fundamental standards in the areas of person-centred care and staffing. And that therefore I had to find fault with the quality of care delivered to R by the Care Provider.
52. I considered some injustice must flow from this. I considered the Care Provider should have met R’s needs in a more person-centred way. They also received a lesser service than the Care Provider agreed to provide. These considerations also resulted in some avoidable distress for Miss Q.
53. There were also other shortfalls in the customer service provided to Miss Q by the Care Provider, as follows:

• First, it could provide no coherent record of its complaint handling. Miss Q made multiple complaints during 2021, but I identified only one reply that made clear it was a reply under the complaint procedure;
• Second, that reply was inadequate. Because while it answered Miss Q’s complaint, it did not provide her with any signposting on how she could take her complaint further.
• Third, there was no effective liaison with the Council to alert it to the complaints or its replies, nor those wider issues around R’s care which Miss Q’s complaints referred to.
• Fourth, it gave misleading information to the Council when it gave notice that it would no longer provide care to R. There was no basis for the statements that Miss Q sent “a stream” of unclear or confusing emails which reflected “her own issues”. I saw no email meeting that description. Nor that she “would not accept” replies to her complaint. This suggested a lack of reflection by the Care Provider on its handling of Miss Q’s concerns and complaints.

54. I made a second finding of fault therefore as Miss Q received an unacceptable service when she complained to the Care Provider, suggestive of a failure to meet the fundamental standard in responding to complaints. This caused further injustice to Miss Q as she could not effectively escalate her complaints resulting in avoidable distress as frustration. It also put her to unnecessary time and trouble later when she accessed the statutory complaint procedure.
55. I also noted with concern the way in which the Care Provider gave notice to Miss Q. This added further to her distress.
56. But the Council was also at fault here. Miss Q told it in October 2021 she was unhappy with the Care Provider, including its handling of her complaints. I found no evidence the Council took action to check with the Care Provider its awareness of her complaints or sought to investigate them itself. It therefore also missed opportunities to ensure Miss Q received a response to her individual complaints and to grapple with her underlying concerns. This too added to Miss Q’s distress, time and trouble.

The complaint about the gap in service and use of direct payments and short break funds

57. I found it hard to form a clear picture of what support the Council gave Miss Q in addition to the contracted hours of care it agreed with the Care Provider. In particular, around the direct payments she received (as distinct from the short break payments).
58. It was also difficult to form a clear picture of just what shortfall in care Miss Q experienced in 2022 after the Care Provider gave notice and before CP2 could take over the care package. Between March and October 2022, R’s care went through three phases. The first as the Care Provider ran down its package, often left Miss Q with limited or no support, especially from around late April / early May 2022. The second when it withdrew its support all together in July 2022. And the third from the end of August 2022 when CP2 began providing some support, but short of the care package R needed.
59. However, throughout all these phases R experienced a significant shortfall of care, being most acute during the second phase. R should have received an average 78 hours a week in support from care workers. Even being without such a significant amount of care for one week would place great strain on Miss Q. Yet she had several months where care was deficient, including several weeks with no support in place at all. Whatever efforts the Council made to try and plug these gaps it was a service failing and therefore a fault, there was this shortfall.
60. In the circumstances it was understandable Miss Q would want to try and get support wherever she could. She received some support caring for R from a trusted relative and another trusted adult. But unfortunately, I found the record again unclear about when these adults supported her, for how long and how she paid them. The Council agreed a one-off payment that enabled Miss Q to pay one of these adults via a direct payment for two weeks, which followed her initial complaint. But that is all I saw in the way of a record for the care arranged by Miss Q.
61. Otherwise, the Council appears to have accepted Miss Q could use her short break payment to also pay for care. But I lacked detail about if, when or how she used this.
62. I considered the above showed an inadequate engagement by the Council with Miss Q around how she could meet R’s care needs between March and October 2022. Miss Q could have been clearer about how she was meeting R’s needs. But the Council clearly knew of the difficult position the Care Provider had left her in. So, I considered it was fault it did not do more in response to events to check how she was meeting R’s needs, or what more it might to help.
63. At the same time, I also considered it fault the Council did not do more to try and agree with the Care Provider about what support it would provide to Miss Q until CP2 could take over. It let the Care Provider run down the support given to R and then stop it all together without trying intervention to prevent Miss Q being left without support. It also acknowledged delay in contracting with CP2 to begin personal care for R. This lack of engagement compounded Miss Q’s distress, arising from being left without care.

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Agreed action

64. The Council has accepted the findings set out above. It has agreed to provide a personal remedy to Miss Q and make service improvements to try and prevent a repeat. It will provide us with evidence when it has completed these actions.

Personal remedy

65. To remedy the injustice caused to Miss Q and R, the Council has agreed that within 20 working days of this decision it will:
1. apologise to Miss Q, accepting the findings of this investigation and taking account of the guidance we provide in our published guidance on remedies (section 3.2); Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to Miss Q of £1800.
66. I calculated the symbolic payment taking account of the Ombudsman guidance on remedies as follows:

• for the distress caused by the shortfall in care by the Care Provider before March 2022, Miss Q should receive £500;
• for the distress, time and trouble caused by the Care Provider’s poor customer service, Miss Q should receive £500;
• for the distress, time and trouble caused by the Council’s lack of responsiveness when alerted to the issues Miss Q had with the Care Provider she should receive £250;
• for the distress caused by the shortfall of care Miss Q experienced after March 2022 she should receive £1000;
• from this total of £2250, I took away the £450 paid to Miss Q during the earlier consideration of this complaint.

Service improvements

67. Within three months of this decision the Council has agreed:
1. It will undertake an audit of any clients for whom it contracts the Care Provider to provide care, to ensure the Care Provider is responding appropriately to any service requests or complaints it receives and recording these in line with its expectations. In particular, to ensure the Care Provider signposts complainants in its replies to complaints about what to do if they remain dissatisfied. It will advise us of its findings and any action taken, or that it proposes to take, further to this exercise.
2. To issue a reminder to all relevant staff of its expectations if a user of its services is left without care and they request it consider short-term measures to cover any deficit; for example, through an increase in direct payments or use of short break money. The aim should be to ensure there is a clear audit trail showing the Council has considered how to help its client and recorded with them what it has agreed and told them of any records it will need them to keep.

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Final decision

68. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss Q and R. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman