Summary: Mrs X complains on behalf of her mother Mrs Y that the Council failed to properly assess her care needs. She says it charged for care its reablement team provided, despite never explaining there would be a charge. The Ombudsman has found fault by the Council. It failed to communicate its decisions about charging for care. It also decided to end reablement care without a long-term package in place and did not provide alternative carers to Mrs Y. This caused an injustice to Mrs Y and Mrs X and the Council will remedy this by apologising, refunding some charges it imposed and reviewing its processes. There was no fault in the Council’s assessment of Mrs Y.

The complaint

1. Mrs X complains the Council has not provided a professional service since adult social services received a referral about her mother, Mrs Y, in 2018. Mrs X highlights the failure of allocated social workers to provide correct advice, provide a copy of her mother’s care plan and organise a suitable care provider for her. She also complains the Council has charged for reablement care despite her mother’s social worker saying it would be free and no formal payment agreement ever being signed.
2. Mrs X says the Council continues to demand payment of the charges and has also caused stress and worry to her and her mother.

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What I have investigated

3. Mrs X wrote to the Ombudsman setting out her complaint over several pages, including her observations and explanations about what happened. It is not possible to investigate every point raised by Mrs X. The Council has already accepted fault on some points in its own complaints process and I will not revisit those points. I have therefore selected those I consider central to the complaint and where I believe the available evidence is most likely to show whether there was fault or not.
4. These are that Mrs X:
1. Was unhappy with the Care Act assessments carried out by the first social worker. She feels he did not properly assess Mrs Y’s mobility;
2. Was not told about the charges for reablement care, never agreed to them and so should not have to pay them.
3. Says the Council was wrong to say she turned down Care Provider G.
4. Believes the Council failed in its duty to find carers for Mrs Y.

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The Ombudsman’s role and powers

5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. We cannot question whether a council’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)
8. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I spoke with Mrs X and read her complaint to the Ombudsman. I wrote to the Council to make enquiries and read the information it sent in response.
10. I also considered the Care Act 2014 and the statutory guidance which accompanies it.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Council duties

12. Sections 9 and 10 of the Care Act 2014 say councils must carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the council thinks an individual 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. It must also involve the individual and where suitable their carer or any other person they might want involved.
13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has and what they want to achieve. It should also consider what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
14. The Council provides a reablement service which assists a person to maintain or regain the ability to live independently. The law says intermediate care or reablement must be provided free of charge for up to six weeks. The guidance which accompanies the Care Act says councils should consider the consequences of ending the provision of such services: “Poorly considered exit strategies can negate the positive outcomes of preventative services, facilities or resources, and ongoing low-level care and support can have significant impact on preventing, reducing and delaying need.”
15. The Care Act places a duty on councils to promote the effective operation of a market in care services, so any person wishing to access services has various high-quality providers to choose from.
16. The law presumes a person has capacity to make a decision unless it is proved that he or she lacks capacity. The Council must assess someone’s ability to make a decision when their capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. Councils must also consider the views of others with an interest in the person’s welfare, such as someone holding lasting power of attorney for health and welfare. If there is a disagreement about whether a decision is in a person’s best interests which cannot be resolved, the matter may be referred to the Court of Protection to settle.

Overview of what happened

17. Mrs Y is an elderly lady with dementia who lives alone. Mrs X, her daughter, first asked for the Council to assess Mrs Y in September 2018. She asked for an appointment the following month and the Council says it assigned a social worker.
18. The social worker visited Mrs Y at home with Mrs X also present. In his assessment, the social worker noted Mrs Y could move safely around her home, although very slowly, and had a lifeline pendant to call for help if needed. The Council says Mrs Y and Mrs X asked for help with showering and cleaning. It says Mrs X said she would continue to support her mother but asked for a financial assessment to take place.
19. The financial assessment happened in November. The Council’s records suggest by this point Mrs X believed Mrs Y would need full-time residential care and had put her on the waiting list for a care home. The social worker visited Mrs Y again in December with Mrs X present. The Council says the result of the assessment was the same as before, with support needed for showering weekly. The social worker completed the support plan for the weekly care call shortly after the visit so the Council could begin looking for a care provider.
20. Mrs X became concerned that she could not continue to provide the same support to her mother. The Council offered to refer Mrs Y for occupational therapy and suggested an extra evening visit each day would be helpful. A new social worker was allocated and made a referral for added telecare services for Mrs Y. Mrs X then said she was happy for the Council to continue seeking support with one visit per week to provide Mrs Y with a shower.
21. In late December, Mrs X began dealing with some serious health complications. She told the Council she would be unable to support her mother for at least three months and felt her mother would be best in respite care.
22. The social worker visited Mrs Y at home in January 2019 to carry out a further assessment. Mrs X was not present this time. The assessment noted Mrs Y had very poor mobility and was unsteady on her feet. It said Mrs Y was determined to remain independent and would often decline offers of help.
23. The social worker found Mrs Y, “…showed some insight into her care needs” and viewed her to have the “capacity to understand her choices around care and welfare decisions.” However, Mrs Y told the social worker she would rather her daughter decide about her care.
24. The Council says because of the assessment carried out on this visit it arranged reablement care for Mrs Y. The social worker told Mrs X in a telephone call the reablement care would be for a maximum of 21 days. She also said there would be no charge until the reablement carers believed Mrs Y to be stable. The Council’s reablement charging policy says a person’s social worker will tell them the date any long-term care service will start and become chargeable.
25. The reablement care started on 15 January. Mrs Y signed a document which said there would be no initial charge for the service and a review would be carried out to discuss her long-term needs. It said she would be charged for the service from the date of the review. A box on the document had been ticked to say Mrs Y was receiving a ‘21 Day Reablement Service’.
26. On 28 January, the social worker told Mrs X the reablement service would be reviewing her mother’s care the following day and ‘will make the package of care stable at which point it becomes a chargeable service.’ The social worker told Mrs X reablement would not pull out until there was a care provider in place to take over.
27. The next day notes from reablement suggested suspending Mrs Y’s evening call for a couple of days to see how she managed without it. The worker also told Mrs Y a social worker may want to see her to talk about a long-term package of care and that “she may have to pay if the package of care was deemed stable.”
28. At the beginning of February, the social worker told Mrs X the reablement review would be completed over the coming weekend to see how Mrs Y got on without the evening call. The Council then moved Mrs Y on to a stable package of care. The review records say Mrs Y was told her care was now stable and she would be charged.
29. The reablement service continued to visit Mrs Y. The next time the Council spoke to Mrs X about her mother’s care package was in mid-March. It suggested the service would be reducing its visits as Mrs Y was quite independent. The social worker told her she would arrange to meet Mrs Y and complete a review. This is the first discussion in which Mrs X indicates she was aware of the cost of the care.
30. On 19 March, the reablement service told the social worker the service became chargeable on 3 February. The following day the social worker told Mrs X the reablement service had gone as far as they could with Mrs Y and had made the care stable. She said Mrs Y needed to be moved on to a long-term provider. The Council offered Mrs X a direct payment to commission her own care for her mother. Mrs X declined, saying she wanted to focus on her recovery and not have the additional stress of managing the direct payment.
31. The Council began looking for a long-term care provider to provide the daily care calls for Mrs Y at the beginning of February. In mid-March it found Care Provider G to do this. However, Mrs X declined the package because Care Provider G had been unsatisfactory in the past when supporting her to find a cleaner for Mrs Y.
32. The Council says it considered it had found a suitable like-for-like replacement and would not continue reablement care in the long-term. It decided to end reablement care from 26 March and told Mrs X Care Provider G would begin on 27 March. Mrs X said she did not want the care package.
33. The Council agreed to meet with Mrs Y, Mrs X and Care Provider G on 5 April to go through the care plan and address any concerns, so care could start on 10 April. However, on 2 April Care Provider G told the Council it no longer had capacity to take on Mrs Y’s care package. The Council says it put the package back out for bids on its tendering system. At the same time, it says it gave Mrs X a list of local care homes to consider for respite care.
34. Care Provider M bid for Mrs Y’s care package in April. The Council asked it to complete the necessary paperwork and it did so. Care Provider M offered dates for a meeting with Mrs X and the Council, but Mrs X asked for alternative dates. The Council started to explore that possibility, but Mrs X then emailed it to say she had concerns about Care Provider M and wanted to cancel the meeting. The Council made one further offer of an alternative care provider in mid-May which Mrs X declined. She asked the Council not to contact her or her mother again.
35. In April, the Council sent Mrs X a bill for £597 for the cost of the reablement care from 4 February to 22 March. It issued a further invoice for £63 in November for care provided from 22 to 27 March. Mrs X disputed the bill, saying she had never signed anything agreeing to pay, and complained to the Council. She was also unhappy with the manner the Council sent the second invoice several months after the first.

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Analysis

Failure to assess Mrs Y’s mobility

36. The Council has wide scope to apply professional judgement in carrying out a Care Act assessment, as long as it follows the correct process in doing it and properly records the result.
37. In this case, a social worker visited Mrs Y in October and December 2018. The Council has provided a Care Act assessment document dated 24 October. Mrs X was then providing daily support to her mother. The assessment suggests the social worker judged Mrs Y to have few eligible needs. He did recognise her mobility difficulties and that she had a telecare service available should she need help.
38. When Mrs X contacted the Council after the social worker’s second visit to raise concerns about her mother, the Council immediately made referrals to occupational therapy and telecare. I consider this was in response to increasing concerns from Mrs X about her ability to care for her mother. It was not fault for the first social worker not to have made these referrals following his assessment.
39. The records show that Mrs X did not want a care package to start until a financial assessment had been carried out. Once that was completed and Mrs X said she wanted the support with showering to begin, records show the social worker made a prompt referral to identify a care provider. Mrs X told the Council in mid-December she was happy with this proposed level of support.
40. When the second social worker carried out her own Care Act assessment in January 2019 the circumstances had changed. Mrs X was no longer able to provide the same support to Mrs Y. The written assessment contains much more detail than the earlier one, but I consider this reflects the change in the family’s circumstances and the increased support Mrs Y would need in her daughter’s absence.
41. I therefore do not find fault with the way the Council assessed Mrs Y’s mobility in the first assessment.

Charges for care

42. The Council says reablement may be extended up to and beyond six weeks if appropriate in line with the Care Act. It says charges will be applied once a package has been reviewed. However, the social worker told Mrs X at the outset that reablement would be provided for a maximum of 21 days. This was misleading and was fault.
43. I am concerned the Council asked Mrs Y to sign a document to confirm she understood it would charge for the reablement service once the initial period ended. Mrs Y’s capacity about her finances is unclear. Her very poor short-term memory is well documented. On one home visit in late March, a manager notes Mrs Y could not recall the gardener had been paid earlier in the visit. She could not remember that reablement carers had been visiting her, and on other occasions she could not recall conversations which had happened on the same day. There is no evidence social workers assessed her capacity to understand she would be charged for care. There is also no evidence the Council presented this document to Mrs X who holds power of attorney for Mrs Y’s finances. This was fault.
44. There is further fault in how the Council decided the reablement service was stable and moving to a chargeable service. The social worker pre-empted the result of the reablement review when she told Mrs X on 28 January that the care package was going to be made stable. The review had not yet taken place and so the result could not have been known. At the same time, the reablement service decided to suspend Mrs Y's evening calls to see how she coped. The package could therefore not be said to be stable.
45. The Council decided the package was stable by 3 February. The records show Mrs Y was told she would be charged for care. As above, it is unclear how the Council decided she had the capacity to understand the implications of this or that she was told how much she would need to pay. There is no evidence the Council communicated the result of the review to Mrs X. This was fault.
46. There was also a noticeable delay in raising an invoice for some of the charges. Despite the reablement care finishing in March the Council did not produce the invoice for the final week of care until over six months later. The Council has not provided a satisfactory explanation for the delay and so it is fault.
47. I consider the faults identified above caused an injustice to Mrs Y and Mrs X. It caused them uncertainty about the charges and when they would start, which meant they could not make informed decisions about Mrs Y’s care. It caused further upset when the additional invoice for care was sent so long after the care ended.
48. Aside from the fees, Mrs X says she also had concerns about the standard of care and would not have paid for it if she had known it was chargeable. I can only base any decision on the available records. These do not give me any reason to conclude the care provided was not acceptable.

Care Provider G

49. The evidence shows Mrs X did decline the services of Care Provider G at first. There is no evidence the Council discussed Care Provider G with Mrs Y. The Council had previously identified that Mrs Y had a degree of capacity about her care needs and it should have discussed long-term care provider choices with her. It did not and this was fault.
50. The Council decided to end the reablement service’s visits to Mrs Y by 26 March. However, on 21 March Mrs X agreed to meet with the Council and Care Provider G in early April to review the care plan and address any concerns she might have. The Council had previously assured Mrs X the reablement service would not pull out until there was a care provider available to take over. Given Mrs X had suggested she was now willing to consider Care Provider G it was fault for the Council to withdraw the reablement service before this meeting took place.
51. Care Provider G decided it could not deliver the package of care before the scheduled meeting took place. It was over a fortnight before the Council could offer an alternative provider. Mrs X declined this provider on 19 April. Again, there is no evidence the Council discussed this alternative provider with Mrs Y, despite her seemingly being receptive to Care Provider M when it visited her in error on 23 April. The records suggest the Council made one further offer of care and Mrs X later decided to commission care for her mother herself.
52. The Council told the Ombudsman it tried to engage with Mrs Y about long-term care provider choices, but by the time it came to do so Mrs Y would only defer to her daughter to decide on her behalf. However, Mrs Y’s deference to her daughter in decisions about her long-term care is recorded in a case note in January 2019. It was not a new behaviour. Given the Council had assessed Mrs Y as having eligible needs but there was a difference of opinion about how those needs should be met and Mrs Y was herself unable to make a decision, the Council should have considered carrying out a best interest assessment at this stage. It did not do so, and it left Mrs Y without care despite making a commitment to Mrs X that care would not stop before a long-term provider was found. This put Mrs Y’s welfare at risk.

Failure to find carers

53. The Council did provide carers through the reablement service and agreed to continue this while it sought a long-term package of care. There is evidence the Council was continually looking for care providers, including those which it did not already have a contract with. I have already found fault with the Council’s decision to end the reablement service which left Mrs Y without care and support.
54. I recognise the Council wanted to respect the views of Mrs X about Care Providers G and M. However, the Council had assessed Mrs Y as having eligible needs which it had agreed to meet. The Council does not appear to have considered whether ending the care without a long-term provider in place was in Mrs Y’s best interest. This was fault and left Mrs Y vulnerable as her assessed needs were not being met, and the Council was aware Mrs X could not meet them because of her continuing health difficulties. The timing of the care package ending is also concerning. The reablement care records suggest Mrs Y was becoming distressed during the care visits due to hearing loud music at night which was preventing her from sleeping.
55. The Council has a duty to promote a care market which offers a choice of high-quality provision. The Council admitted it was difficult to find providers to deliver care in the area Mrs Y lived. It told Mrs X Care Provider G was the only choice and ended the support from the reablement service when she turned it down. The Council could not offer a variety of high-quality providers for Mrs X and Mrs Y to choose from. This was fault.
56. The Council told the Ombudsman that at the time of this complaint, there was a high waiting list for care due to difficulties with staff recruitment and retention. In August 2019, the Council commissioned an additional 12 providers which decreased the waiting list. It is currently drafting a new Domiciliary Care Strategy which will look at how it supports care providers to recruit and retain quality staff to ensure a diverse and sustainable market.

Agreed action

57. Within one month of my final decision, the Council will:
• Write to Mrs X to apologise to her and Mrs Y for its poor communication about charging for care, its decision to end reablement care without a long-term care provider in place and its failure to provide alternative carers to Mrs Y.
• Remove the charges for the first six weeks of care delivered by the reablement service, from 15 January to 26 February. The charges for the remaining weeks should be reduced by half. This is to reflect the uncertainty caused by the Council’s faults.
• Remind social workers not to set arbitrary deadlines for the length of reablement provision. Officers should be clear the provision may be shortened or lengthened depending on the outcome of reviews.
• Ensure it tells service users and their representatives when a service from reablement becomes chargeable with the date charges will begin and where possible confirms this in writing.
• Ensure decisions about service users’ capacity are clearly documented and remind staff of the circumstances in which they should carry out best interest assessments.

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Final decision

I uphold parts b), c) and d) of this complaint. Mrs X and particularly Mrs Y have been caused an injustice by the actions of the Council and it will take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman