Summary: Mr X complains the Council has failed to meet his wife’s care needs, or his needs as her carer, by failing to respond adequately to a request for respite care in 2019. The Council has failed to produce and maintain a care and support plan for Mrs X, resulting in a lack of clarity over the sufficiency of her personal budget. The Council needs to review Mrs X’s care needs and produce a care and support plan setting out how it is going to meet them. It also needs to identify anyone else similarly affected and improve its working practices.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to meet his wife’s care needs or his needs as her carer by failing to respond adequately to a request for respite care in 2019.

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The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

5. Mrs X lives at home with her husband. She has an illness which has a significant impact on her ability to look after herself. She has received direct payments from the Council to meet her care needs for many years.
6. The Council’s September 2017 care and support review says Mrs X’s care package included:
• a care agency visiting in the mornings and evenings and providing an emergency toileting service;
• 1 carer visiting 18.30 to 20.00 Monday to Friday;
• 1 carer visiting 16.30 to 20.00 Saturday;
• 1 carer visiting 11.00 to 20.00 Sunday;
• 43 hours from the Independent Living Fund (ILF);
1. 11.00 to 18.30 Monday to Friday;
2. 11.00 to 16.30 Saturday;
3. 11.00 to 20.00 Sunday;
4. 2 waking nights a week – 21.30 to 09.00
7. It says Mrs X’s combined Council and ILF personal budget was £1,764 a week. Mrs X said she wanted more support so she could get up an hour earlier (08.00) each morning. Mr X said he wanted four weeks of respite a year. The review says:
• “Respite is requested with an increase to the current provision of 5 waking nights weekly x 4 at a cost of £747.50 per week a total of £2,990 an excess of £700 as at the discussed rate of £550 respite provision per week”;
• the care agency could “not meet the required support or costs - £125.00 per night from 22.00 to 07.00 hours”;
• a Panel would consider the request for extra funding.
8. The Council’s Panel turned down Mr X’s application for more support.
9. Although Mr X disputes this, the Council last assessed his needs as his wife’s carer in August 2018. The assessment says:
• Mr X is willing and able to continue caring for his wife;
• he is registered with Enfield Carers Centre (ECC);
• he does not receive a carer’s direct payment;
• he gets a respite allocation via the assessment of Mrs X’s needs.
10. It says Mrs X’s care package includes:
• 2 carers for 2 hours every morning;
• 2 carers for 1 ½ hours every evening;
• 4 hours emergency toileting every week;
• A privately engaged carer:
1. 18.30-20.00 Monday-Friday;
2. 16.30-20.00 Saturday;
3. 11.00-20.00 Sunday.
• 43 hours from the Independent Living Fund (ILF) to employ a carer:
1. 11.00-18.30 Monday-Friday;
2. 11.00-16.30 Saturday
3. 2 waking nights a week.
11. It says Mrs X had a total personal budget (direct payments and ILF funding) of £1,803.32 a week.
12. The Council considered Mr X’s needs against these outcomes:
• Managing and maintaining nutrition – Mr X does the shopping and has private carers prepare and cook meals;
• Maintaining a habitable home – Mr X has help from private carers with cleaning the home – Mrs X cannot be left alone so Mr X says he can only leave the home for short periods when carers are available;
• Developing and maintaining family relationships – with the support of formal carers Mr X can socialise with others but said he could not fully commit to his role as voluntary chair of an organisation;
• Accessing work, training, education or volunteering – Mr X is retired but volunteers as the chair of an organisation;
• Accessing facilities or services in the local community – no identified need;
• Any other caring responsibilities – not applicable.
13. The Council accepted the problems achieving four of these outcomes had a significant impact on Mr X’s physical, emotional and mental wellbeing. Mr X said he wanted more than four weeks of respite care a year for his wife and an extra waking night a week, to give him more of a break from his caring role. It appears the Council did not agree to this as it just advised Mr X about ECC’s refresher courses on manual handling, first aid and basic nursing skills.
14. On 24 January 2019 Mr X asked the Council for five nights of respite care at the end of January and five nights in the middle of February. The Council noted this was on top of the four weeks it had agreed and Mr X had already used.
15. The Council asked an Occupational Therapist (OT) to assess Mrs X “to determine where any efficiencies to day to day living can be made”. On 4 February the OT visited Mrs X with a Social Worker to reassess her. The Council’s record of the visit says Mr X was repositioning his wife every two hours at night. They discussed using a turning bed to reduce the need for a carer. Mr X agreed to ask the District Nurses to provide Mrs X with a Waterlow score identifying the risk to skin integrity.
16. On 4 March Mr X asked the Council to respond to his request for additional respite. He said this was needed to collect his grand children from abroad. The Council apologised for the delay in responding.
17. On 19 March the Council’s Brokerage Team confirmed the expected cost of 57 hours of daytime care (£815.67 at £14.31 an hour) and 23 hours of waking night time care (£345 at £15 an hour). The Council’s records say this would cost £1,160.67 a week and Mrs X’s personal budget was £1,989.10 a week. It is unclear why the Council based its estimate on 80 hours a week when Mrs X has been receiving 139.5 hours of care a week.
18. On 3 April the Council told Mr X by e-mail that its Panel had turned down his request for extra respite over the four weeks he had received during the 2018/19 financial year. Mr X told the Council he was relinquishing his role as his wife’s carer. The Council asked Mr X to confirm his wife would continue to receive care, prior to visiting on 10 April to assess her.
19. The OT visited on 10 April with a Social Worker to assess Mrs X. The Council’s record of the visits says she does not have a history of pressure sores. Mr X put this down to the support provided by him and carers. In January 2019 the District Nursing Team had given Mrs X a Waterlow score of 26 (which means there is a very high risk to skin integrity). Mr X was turning his wife every two hours at night but the OT said her airflow ripple mattress would be meeting her pressure care needs. Mr X asked for a turning mattress and the OT agreed to check with the District Nursing Team if one was required. The assessment says Mrs X:
• has no functional movement in her lower limbs and uses a hoist for all transfers;
• needs help eating/drinking as she no longer has movement in her hands or arms;
• has a live-in carer;
• receives 139.5 hours of care a week;
• agreed to trial a turning bed to reduce the need for turning by a carer overnight (Mr X was doing this five nights a week and a paid carer the other two nights);
• adjusting her position could help prevent blockages in her catheter.
20. The OT recommended trialling a turning bed.
21. The Council started a Care Act assessment in April and completed it in June. It visited Mr & Mrs X on 15 May to get information on how Mrs X was using her direct payments. Its record of the visit says there was no recommendation that she needed regular turning at night. The Council said it may have to place Mrs X in a care home if Mr X stopped caring for her. It said Mrs X’s personal budget was enough to cover respite care.
22. Mr X said he could not cope providing night-time care for his wife five days a week. The assessment says the Council was funding two waking nights of care a week. Mr X asked the Council to fund five waking nights a week.
23. On 23 May a Tissue Viability Nurse told the Council they would not assess Mrs X as she did not meet the criteria of having a chronic, non-healing wound. The Nurse said they would recommend repositioning someone who had developed pressures sores every two hours during the day and four hours at night, depending on individual circumstances. But this did not apply to Mrs X. The Nurse confirmed Mrs X’s ripple mattress would meet the need for redistributing pressure for someone at high risk.
24. The Council’s assessment says Mrs X needs support achieving these outcomes:
• managing and maintaining nutrition;
• managing toilet needs;
• maintaining personal hygiene;
• being appropriately clothed;
• making use of the home safely;
• maintaining a habitable home environment;
• developing / maintaining personal relationships;
• make use of public transport/other facilities.
25. This is because she relies on her husband and carers to do everything for her.
26. The assessment says Mrs X has a personal budget of £2,014.96 a week, which she was using to employ Personal Assistants (PAs) for 139 hours a week:
• two PAs for 2 hours each morning – 28 hours a week
• two PAs for 1 ½ hours each evening – 21 hours a week
• two PAs for 2 hours a week for emergency continence – 4 hours a week
• one PA for 2 waking nights a week – 23 hours a week
• one PA for nine hours each day to provide personal care and help around the home – 63 hours a week
27. The assessment says the personal budget could be managed by having a live-in carer with a second carer helping with transfers. It says the OT’s recommendations could help to determine the appropriate personal budget and whether waking night support was needed.
28. The Council did not produce a care and support plan for Mrs X.
29. On 11 June Mr X wrote to the Council. He said he would be taking the first part of his four-week annual respite from 22 June. He asked the Council to act accordingly so he could make the necessary arrangements. When the Council replied on 5 July it said the weekly direct payment of £2,014.19 was enough to meet the respite provision. It said only people with a category 4 non-healing pressure ulcer needed a turning bed, but this did not apply to Mrs X. It said Mrs X already had a pressure relieving mattress, which complied with the relevant guidelines.
30. Mr X complained to the Council in July about the lack of respite and the failure to provide a turning bed. When the Council replied in August it said:
• it was for Mr & Mrs X to decide how to spend her personal budget in support of her assessed needs;
• it had noted the average costs of a live-in carer was normally £600-£800 a week, but this was not a policy;
• Mrs X was paying her live-in carer £1,268.75 a week to work from 09.00 to 21.30;
• however, four invoices showed weekly rates of £1,363.00, £1,574.10, £1,860.30 and £1,800.00;
• another invoice showed the live-in carer had been working 24-hour shifts, which raised concerns about the standard of care;
• Mrs X’s weekly personal budget of £2,014.96 was sufficient to meet respite needs (if used in the most efficient and cost-effective way);
• it had not taken away the option of respite care, as Mrs X’s personal budget was enough to pay for this;
• it denied interfering in Mr X’s care arrangements for his wife;
• Mrs X’s GP had recommended the benefits of a turning bed. But the Tissue Viability Nurse said Mrs X did not qualify for an assessment and her alternating mattress met the need for redistributing pressure.
31. Despite being asked to do so, the Council has not provided a care and support plan for Mrs X.
32. Mr X says the carer who was living with them only did so while she looked for somewhere else to live. Because of COVID-19, they have had two carers living with them to shield Mrs X.

Is there evidence of fault by the Council which caused injustice?

33. This complaint has revealed some very poor working practices on the part of the Council.
34. Under section 24 of the Care Act 2014, where a council has a duty to meet needs, as is the case with Mrs X, it must produce a care and support plan. It is not clear when the Council last produced a care and support plan for Mrs X. But it is clear it has not produced one for several years. That is fault by the Council. This has resulted in a lack of clarity over the sufficiency of Mrs X’s personal budget.
35. When there is a dispute about the sufficiency of a personal budget the Council needs to reflect this in the care and support plan, setting out its view on how the personal budget could be deployed to meet eligible care needs.
36. Councils need to update care and support plans to reflect any changes to the way in which needs are met. Although the Council has steadily increased Mrs X’s personal budget (from £1,764 in 2017 to £2014.19 in 2019), it has failed to reflect this in a care and support plan.
37. Councils need to give people a personal budget which is sufficient to meet their eligible care needs. It appears the Council has over several years been giving Mrs X a personal budget to meet her weekly needs and has provided extra funding for respite which it has failed to document properly. That was fault by the Council. This has resulted in avoidable confusion over Mrs X’s personal budget and the need for respite care.
38. The Council has continued to refer to the ILF. This is unhelpful as the ILF ceased to exist in June 2015.
39. It is not for me to say what Mrs X’s care needs are or what her personal budget should be. Those are decisions for the Council to make. The Council needs to review Mrs X’s needs and produce a Care Act compliant care and support plan.

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Agreed action

40. I recommended the Council:
• within four weeks writes to Mr & Mrs X apologising for its failings and pays them £500 for the distress it has caused and the time and trouble it has put Mr X to in pursuing the complaint;
• within six weeks reviews Mrs X’s needs and produces a care and support plan explaining how they are to be met;
• by the end of November 2020:
1. identifies anyone else without an up-to-date care and support plan and produces a schedule for updating them;
2. identifies the action it needs to take to make sure everyone with eligible care needs has a care and support plan which is updated when changes are made.

The Council has agreed to do this.

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Final decision

41. I have completed my investigation as the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman