The Ombudsman's final decision:
Summary: Mr X complains about the decision of his daughter’s care provider to withdraw her residential placement. He complains Leeds City Council was powerless to hold the care provider to account. He also complains about the Council’s handling of his complaint. The Ombudsmen finds fault with the Council. We have recommended Leeds Clinical Commissioning Group, as commissioner of continuing healthcare, apologise to Mr X and his daughter, and to pay them a financial remedy.
- Mr X complains about Errol House’s (the care provider – owned by The Wilf Ward Trust) decision to withdraw his daughter’s, Ms B, residential placement. The residential placement was funded by Leeds Clinical Commissioning Group. He says this decision came four days after the care provider said it was committed to continuing delivering appropriate care for his daughter. Mr X also complains:
- Leeds City Council (the Council) was powerless to hold the care provider to account when it was not providing the care his daughter needed, and;
- about the delays in the Council’s handling of his complaint.
The Ombudsmen’s role and powers
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I spoke with Mr X and considered the information he provided.
- I made enquiries with the Council and Leeds Clinical Commissioning Group and considered the information they provided.
- I sent a draft decision to Mr X, the Council, Leeds Clinical Commissioning Group, and Wilf Ward Family Trust and considered their comments.
What I found
- Some people with long-term complex health needs qualify for NHS funding to support their health and associated social care needs. This is known as NHS continuing healthcare (CHC).
- The National Framework for NHS Continuing Healthcare (the Framework) notes that where an individual is eligible for CHC, Clinical Commissioning Groups (CCGs) have responsibility to ensure that effective case management is commissioned. Consideration should be given as to who is best placed to provide this function and clear responsibilities agreed. It states that it may be appropriate to secure this from the local authority who may have previous knowledge of the individual concerned or have staff with the skills and experience to undertake this function on behalf of the CCG.
- The Framework also makes clear that CCGs hold the statutory responsibility for commissioning NHS services for their populations, including CHC. While CCGs may reach arrangements with other organisations to carry out functions on their behalf, in all cases, they retain statutory responsibility.
- For the local authority to commission CHC on the CCG’s behalf, it requires a transfer of appropriate powers using section 75 of the NHS Act 2006.
- Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements. The NHS and councils remain liable for the exercise of their own functions.
- Ms B has complex needs. She suffers from epilepsy, autism, and learning difficulties. The CCG provides funding for Ms B’s health and social care needs through CHC. This is because she has a primary health need.
- For adults with a diagnosed learning disability, the cost of their support package is funded from a pooled budget which the Council and the CCG contribute towards.
- The Ombudsmen will consider, in a complaint involving the NHS and the council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and council work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility.
- In this case, Council and the CCG have a section 75 agreement. The agreement does not go into the specifics of who had responsibility to deliver certain functions. However, the CCG devolved the responsibility of sourcing placements for people with learning disabilities who receive CHC to the Council.
- The section 75 agreement also set out who was responsible for responding to a complaint. It noted that where a complaint wholly relates to one or more of the Council’s local authority functions, it shall be dealt with by the Council. Where a complaint wholly relates to one or more of the CCG’s NHS functions, it shall be dealt with by the CCG. Where complaints relate partly to one or more of the Council’s functions and partly to one or more of the CCG’s functions, then a joint response will be made to the complaint by the Council and the CCG.
- Ms B’s care and support needs are set out in her support plan. It set out that Ms B uses a specialist programme.
- In October 2015, the Council placed Ms B in Errol House (owned by The Wilf Ward Family Trust). The specialist programme required the care provider to take specialist training and attend workshops every six weeks.
The care provider and notice
- The care records showed the care provider raised concerns about its staffing levels in September 2016, December 2016, and January 2017. The records noted the residential placement had seven trained staff in December 2016 and five trained staff in January 2017.
- There is a record of the care provider raising an issue about Ms B’s family speaking in a different language in front of the support workers. The care provider told the Council that it made the support workers feel uncomfortable as they felt Ms B’s family was talking about them.
- In May 2017, the records showed Mr X raised concerns about the care provider not providing care as set out in Ms B’s support plan. In response, the care provider raised the issue of staffing and explained that trained support workers had left the service.
- In June 2017, Mr X raised concerns there were untrained support workers caring for Ms B. The care provider resolved this concern. In July 2017, the care records noted there were seven support workers trained on Ms B’s programme.
- The records showed Ms B’s family were very involved with her care and would raise concerns about the support provided if they felt it was not in line with her support plan.
- In April 2018, Mr X made two complaints about the care provider. The care provider investigated the complaints and responded in June 2018. Both of Mr X’s complaints were upheld.
- In its response letter, the care provider noted they were recruiting with the aim of achieving a wider team of around six to eight people trained to meet Ms B’s needs. The response also noted the care provider would work hard to improve the service B receives over the coming months.
- Four days after the care provider upheld Mr X’s complaint, the care provider served notice to end their care provision for Ms B. The notice period was 12 weeks. The reasons for serving notice were:
- The specialist programme had a considerable impact on their ability to keep staff. The intensity of family involvement also impacted on their ability to retain workers. This high turnover has impacted on the quality of support they could provide.
- They would be unable to recruit and keep staff due to the family’s demands.
- The relationship with the family had worsened and the care provider felt the input the family needed was unsustainable. The trust and confidence with the family had broken down.
- The service was not fully equipped and did not have the necessary resources for managing such an involved family relationship.
Mr X’s complaint
- The Council opened an investigation into Mr X’s complaint about the care provider’s decision to give notice in August 2018. The Council initially asked the team manager within the care management team to respond to the complaint. The Council said it did this as the team manager was already involved and had a good awareness of Ms B’s case.
- The Council did not progress the complaint investigation as the team manager was focused on maintaining Ms B’s placement and finding a suitable alternative. The Council said it therefore asked the care provider to respond to the complaint in November 2018.
- In November 2018, the care provider and the Council met with Ms B’s family to discuss the content of the notice letter. The care provider said they addressed all the family’s questions around the rationale for the notice. The Council could not provide any minutes of this meeting.
- The care provider responded to the complaint in December 2018. It noted that it had met with Ms B’s family and that no resolution had been reached.
- The Council kept Mr X updated on the delays to the complaint investigation up until the point it responded to the complaint. The Council responded to the complaint in January 2019. The Council’s response repeated the reasons outlined in the care provider’s notice letter. The response highlighted the remaining trained staff at the care provider were no longer prepared, or able, to continue providing the specialist programme to Ms B.
- In response to my first draft decision, Mr X said the care provider also failed to ensure Ms B was taken for her walks and swimming activities. Ms B’s care plan sets out her activity schedule. It noted the following schedule:
- Monday, Tuesday, Thursday – AVB programme and local community walk in the morning and afternoon.
- Wednesday, Friday – Swimming or community outing in the morning and AVB and local community walk in the afternoon.
The care provider and notice
- It is clear from the evidence the care provider had previously raised concerns about its staffing levels before June 2018. The care provider highlighted in December 2016 the ideal number of support workers was nine. The evidence showed the number of trained support workers varied between five and seven.
- While the care provider did bring up issues around staffing, it did not say that it would impact on its ability to provide Ms B with the care and support set out in her care plan, and specifically, the provision of the specialist programme.
- It is also clear from the evidence that Ms B’s family were very involved with the care of Ms B. The records showed Ms B’s family would raise concerns when the care provider made mistakes and would take action to get the correct care in place for Ms B.
- It is understandable why Ms B’s family would raise concerns where mistakes have been made or where they feel the care being provided was not in line with Ms B’s support plan. This would be reasonable for any family to do to ensure appropriate care is provided for their family member.
- There is only one entry in the care records which shows the care provider raised concerns about the actions of Ms B’s family. However, this was not to do with the amount of input they had or the volume of their communication with the care provider.
- Given the evidence that Ms B’s family have historically always been highly involved in the care of Ms B, it is difficult to understand why the family’s input became unmanageable in June 2018.
- The care provider provided a clear rationale for giving notice. It does not dispute that Ms B’s care needs have changed, rather than its ability to meet her needs have changed. The care provider said this was partly due to the lack of trained support workers and their difficulty in keeping trained support workers.
- The care provider said it only had three trained support workers left in June 2018. In December 2016, it had said the ideal number to support Ms B was nine. It is therefore understandable why the care provider felt it did not have enough trained support workers to provide Ms B with appropriate care.
- However, this does not mean it did not have to provide Ms B with care in accordance with her support plan. I can see the Council challenged the care provider and reminded it of its responsibility to provide the care as set out in Ms B’s support plan. This action was appropriate and demonstrates the Council was aware Ms B was not always receiving the support she needed in line with her support plan.
- I acknowledge the Council did try to ensure Ms B received the correct care and support. It offered to arrange for agency staff to fill in for the care provider when they were short staffed. This action was appropriate in the circumstances. However, the care provider did not accept the offer because the agency did not have any staff trained in Miss B’s specialist programme. Therefore, this was beyond the Council’s control.
- While the Council has tried to manage the situation as best it could, it nevertheless failed, at times, to provide Ms B with appropriate care in accordance with her support plan. The Council has acknowledged this, and this is fault.
- Further, having reviewed a small sample of the daily diary notes, the evidence demonstrates Ms B was not always taken for her walks or swimming on the days she should have, in accordance with her support plan.
- I acknowledge the evidence shows the care provider did provide Ms B with care and support in accordance with her support plan at times. It has not been necessary for me to work out the exact dates when Ms B received care that was not in line with her support plan. This is because the Ombudsman does not provide a remedy for each incident, but instead consider what injustice the fault (care not being provided in line with her support plan at times) has caused.
- I find the fault identified has caused Ms B an injustice. This is because she did not always receive the care she should have, as set out in her support plan.
- The fault also caused Mr X an injustice because he was inconvenienced by having to chase the Council and the care provider to ensure his daughter received the care set out in her support plan. It was also distressing for him to see his daughter not receive the care as set out in her support plan. The fault identified also caused an injustice to Ms B’s family. This is because it was distressing for them to see Ms B not receive the care as set out in her support plan.
- Although the Council was responsible for putting in place the care as set out within Ms B’s care and support plan, the Council was acting on behalf of the CCG (under the section 75 agreement). Therefore, any injustice caused by faults by the Council must be remedied by the CCG.
- CHC is a wholly NHS issue. As Mr X’s complaint was about CHC, the Council should have directed the complaint to the CCG to consider as per the section 75 agreement. This was not done and that was fault.
- However, I do not consider it unreasonable for the Council to have considered the complaint as it was best placed to address the complaint. This is because the Council managed Ms B’s placement. It was also more likely than not the CCG would have asked the Council to consider the complaint. Therefore, I do not consider the fault caused any injustice.
- The Council has accepted there was a delay in responding to Mr X’s complaint. This is fault. However, the Council has provided evidence it kept Mr X updated on the progress of the investigation between October 2018 and January 2019. This was appropriate in the circumstances.
- I find the delay caused Mr X an injustice because he did not receive a timely complaint response.
- To remedy the injustice caused by the faults identified, I the CCG has agreed to complete the following:
- Apologise to Ms B and pay her £700 in recognition of the fact her support plan was not always followed for seven months.
- Apologise to Mr X and pay him £500. This is to recognise the distress caused by the Council’s failure to provide Ms B with care in line with her support plan at all times. The payment is intended to reflect the injustice caused to all of Ms B’s family.
- I find fault with the CCG for failing to provide Ms B with care, at times, in accordance with her support plan. I also find fault with the Council for the delay in responding to Mr X’s complaint.
Investigator's decision on behalf of the Ombudsman