Summary: Mr C complained the Council failed to carry out an appropriate care review in November 2019 and failed to carry out any review in February 2020, as it had promised. As a result, he said the amount of support the Council allocated for his mother was not enough to meet her needs. We found there was fault in how the Council managed the case, which caused some injustice, for which the Council has agreed to apologise.

The complaint

1. The complainant, whom I shall call Mr C, complained to us on behalf of his mother, whom I shall call Mrs M. Mr C complained the Council:
• Failed to carry out a proper care review of his mother in November 2019. As a result, the Council failed to agree she needed an additional visit (bedtime call) per day, as well as support from a care worker during the night.
• Failed to carry out his mother’s care review, which it promised to do in February 2020.
• Has failed to agree, as part of his mother’s financial assessment, that the following should be treated as Disability Related Expenses (DRE):
1. The money she has to spend on incontinence pads.
2. The extra cost of her diet
3. The cost of additional laundry, extra clothes and heating.
2. Mr C also complained that, when he made a complaint to the Council, it was investigated and responded to by the same person that he was complaining about. He said this was not good practice as the investigation was not independent.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered the information I received from Mr C and the Council. I also interviewed two Council officers involved in the case and obtained information from the local Clinical Commissioning Group (CCG). I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received before I made my final decision.

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What I found

Relevant legislation and guidance

7. The Care and Support Act, along with its guidance, says that: where a council takes a person’s disability-related benefits into account, the council should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the council. Disability Related Expenses (‘DREs’) are costs a disabled person has because of their disability. They are an allowance in a financial assessment that reduces the charge a person pays for their home care.
8. Government guidance gives examples of DREs which include costs of any specialist items needed to meet the person’s disability needs, for example:
• specialist washing powders or laundry
• additional costs of special dietary needs due to illness or disability (the person may be asked for permission to approach their GP in cases of doubt)
• additional wear and tear to clothing and footwear caused by disability
• additional costs of bedding, for example, because of incontinence
• any heating costs, or metered costs of water, above the average levels for the area and housing type
• in other cases, it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase cost of continence pads, where these are available from the NHS
9. Some people with long-term complex health needs qualify for free social care arranged and funded by the NHS. This is known as NHS continuing healthcare (NHS CHC). If an assessment has determined a person is eligible for this, the NHS will be responsible for ensuring the person has a care package in place that meet their assessed needs.

What happened

Mrs M’s care review and support plan

10. Mrs M is in her 90s and lives with her son Mr C and his brother. The Council carried out a care review of Mrs M’s care support in November 2019. Before the care review, Mrs M had a care support package which consisted of 35 hours of support per week, by a Personal Assistant (PA). In addition, the Council supported Mr C in his role as his mother’s informal carer by allocating funds to enable him to pay the PA for 15 hours a week, so as to give him some respite from his role as carer.
11. Mr C says he is unhappy with his mother’s care review, which the Council carried out in November 2019. He says the social worker identified there was a need for more support in terms of an additional visit every day at bedtime, as well as support during the night.
12. Mr C says:
• His mother’s social worker first visited in July 2019 and had already obtained a lot of up-to-date information about his mother’s condition from her GP and other health professionals. The social worker was excellent and had also organised joint visits with Occupational Therapy, who were very helpful. The social worker also spoke to his mother’s Consultant Psychiatrist, the Community Matron and Palliative Care.
• The social worker told him, following the care review in November 2019, that his mother would need an additional bedtime visit and a night-time care worker. However, this never happened.
• He did not receive a copy of his mother’s care review and care plan.
13. Mr C also says his mother needs pad changes during the night. In relation to this, a record from September 2019 indicates the need for a female care worker to assist with this. The social worker said: “we were looking to provide female carers at times when (…) pad change is required, as it appears it falls on you and your brother”.
14. The Council carried out a care review of Mrs M in November 2019. The review form says that:
• Mr C is her main carer and organises his mother’s care, as she is bedridden.
• Mr C employs a personal assistant/carer to support his mother with personal care and any other support needed. He reported that one carer visits every day in the morning, and also as and when required.
• Mr C reported his mother suffers hallucinations at night, as a result of which his brother needs to provide re-assurance.
• Mr C also reported that his mother has personal accidents throughout the night.
• 24-hour care: feeding, toileting, showering and dressing.
• Mrs M displays aggression to unfamiliar care workers and Mr C said his mother's condition was deteriorating as she has Dementia.
• Mr C’s brother appears to need more support at night as his mother wakes and requires a change several times at night.
• “Mr C is happy with the direct payment support he is receiving at present. He is able and willing to continue with his caring role. He also declined carer's assessment and respite care in residential”.
• It identified the following changes needed to the care plan:
1. More support at night with personal care and managing toilet needs.
2. Needs night-time reassurance as anxious, unless Mr C’s brother was in the room. A second person to reassure her.
• Next review 2 March 2020.
15. Mr C told me he did not receive a copy of this assessment, and he did not decline the offer of a carers’ assessment. The Council has been unable to provide proof to me that it sent Mr C a copy of the needs assessment.
16. A Council record from December 2019 said that Mr C denied the offer of a carer assessment. It also said the social worker “strongly recommends Mrs M needs 50 hours per week”.
17. Mrs M’s care and support plan of December 2019 states that:
• Mr C said most of the care is in the morning when Mrs M needs a complete change of clothes and sheets as there is a problem of heavy soiling at night.
• The care worker supports with shower, dressing and transfer. Mr C supports with meal preparation and medication. He supervises and supports her in walking around the house and reading to her.
• She is often shouting out at night and Mr C’s brother offers waking night support as Mr C believes she would suffer anxiety if a stranger was hired to do this.
• Mr C says the GP has referred to his mother's condition as end of life and he therefore says he does not want to introduce any additional services.
• Adult Care and Support Plan:
1. Evening: “Assisted with evening meal and then supported to change for bed”.
2. Night: “Other son sleeps in adjacent room and also attends at night as waking night as shouts at night and may require a pad change”.
18. The Council told me that, while it agrees that night provision was discussed as part of the review, Mr C declined this (“additional services – see paragraph 17 above), saying he was happy with the support he was receiving (see paragraph 14 above). As such, the Council considered that family members had stepped in as Mr C stated they did not want a stranger to do so at night (see paragraph 17 above).
19. Following the care review, the Council increased his mother’s care support to 50 hours a week. It did this by ‘reallocating’ the 15 hours it previously paid to enable Mr C to have respite.
20. Mr C told the Council that his mother’s Personal Assistant (PA) moved in with them in March 2020 (before lockdown) to reduce the risk of Covid. The PA worked 50 hours a week, which is an average of 7 hours each day. He said there was no additional PA support during the night, because the Council failed to recognise this in the support plan and failed to allocate additional hours to cover this. However, he also said the PA could not work during the night as she already worked seven hours during the day. As such, it is not clear how the PA could have provided any additional support at night.
21. Mr C sent an email to the social worker in June 2020. In it, he said the social worker visited in February 2020 and said she would look into the increase in hours she had recommended at an earlier visit. However, Mr C said he had not heard from her since then. Mr C said the social worker also promised at this visit to do a review before 31 March 2020. The record of the visit, completed by the social worker, does not refer to those two action points being discussed or agreed. At the visit, the social worker told Mr C she had merged his Direct Payment of 15 hours with his mother’s Direct Payment.
22. The social worker responded to Mr C’s email and said:
• His mother was receiving 50 hours per week, and she had told this to him during her visit in February 2020.
• She was subsequently unable to visit and carry out a care review, due to lockdown. However, if he felt the hours allocated were not enough, he could send a breakdown of:
1. Tasks being performed by the care worker.
2. Length of time for each task
3. Shortfall in hours.

Mr C did not provide this breakdown.

23. The Council told me at the interview that it transferred Mr C’s 15 hours of respite care to his mother’s support package. The Council said it did this, because Mr C had told the Council at the care review that he was not using this specifically for respite, but to pay the PA to provide additional general support throughout the week. The Council said it explained to him early on that the PA doing 15 hours more work during the week relieves Mr C from his caring duties during those hours, thus providing respite to him.
24. The Council’s intermediate care team carried out a visit in June 2020, which concluded that Mrs M is fully dependent on one person with her daily living activities, mostly due to her dementia. Support with transfers and mobilising could usually be done by one person.
25. When Mr C made a complaint about the care review and its outcome, the Council offered Mr C in August 2020 to do a care review of his mother’s needs and Mr C’s own needs as her carer. In response, Mr C asked why another visit was needed, because:
• The social worker had all the information she needed and already identified there was no support at bedtime.
• She also already said that her manager had advised the social worker could arrange for carers at night.
26. The social worker told Mr C that she did not know what conversation Mr C was referring to, but again offered another care review. The Council says it made further attempts to carry out the care review. The social worker contacted Mr C during October 2020 but subsequently closed the case in November 2020, as Mr C did not accept the offer of a review.
27. Mrs M did have an assessment in October 2020 from the Intermediate Care Team. The record states that:
• She needed assistance with all activities of daily living.
• She needed support from one person to mobilise.
• She was well kept and well assisted and did not need any further input.
28. The Council allocated Mrs M’s case to a new social worker in January 2021. The social worker spoke to Mr C on the phone in February 2021 for a long time and told Mr C she would need to visit his mother with an Occupational Therapist.
29. The Council told me it also completed a separate carer’s review for and with Mr C on the same day. It states amongst others that: Mr C reported that he hardly has anytime to himself as he spends most of his time caring for his mother. Mr C reported his mother cannot be left alone and needs support all the time.
30. The Council subsequently proceeded with carrying out Mrs M’s care review.
31. Since then, the Council told me the CCG decided in May 2020 that Mrs M was eligible for NHS CHC from January 2020 onwards. According to information provided by the CCG, it told Mr C of this decision in May 2020. The decision meant that, from January 2020, the NHS would be responsible for ensuring that all of Mrs M’s needs would be met, and Mr C’s needs as her informal carer. As such, Mr C should have pursued matters related to his mother’s care support with the CCG. Mr C says he did not do this because he was not aware of the CCG’s decision that his mother had become eligible for NHS CHC. However, I found on the balance of probabilities, that Mr C would have been aware of the decision the CCG made following his appeal to the CCG and the meeting he attended in April 2020 where the CCG reviewed its earlier decision that she was not eligible. Mr C did not mention the CCG’s decision in his discussions with the Council or the Ombudsman, who were both unaware of this until recently.

Analysis

32. Mr C told me he did not receive a copy of his mother’s November 2019 care review, and he did not decline the offer of a carers’ assessment. The Council’s record states he declined a carer assessment, but the Council was unable to show it had sent Mr C a copy of the care review. This is fault, as the Council should share a copy of such reviews. The Council should apologise for this.
33. The November 2019 care review said there would be a review by 2 March 2020, which was before lockdown. However, the Council failed to do this. This date would have been before the lockdown. The Council should apologise for this.
34. The Council failed to discuss and sufficiently explain what had happened, what it considered, following the social worker’s initial needs assessment and recommendation to increase / provide night-time support. This is fault, for which it should apologise. However, the Council did offer in August 2020 to review Mrs M’s care, when Mr C made a complaint about this.
35. When Mr C became aware that he no longer had a personal budget himself to pay for any respite care support he felt he needed, it was clear that he did not agree with this. However, at this time, Mr C knew the Council was no longer responsible for meeting his or his mother’s needs (since January 2020). As such, he should have pursued matters with regards to this with the CCG; not the Council. The Council, being unaware of the CCG’s decision, offered Mr C a review of his mother’s needs, and his needs as her carer, in response to the complaint he made to the Council. This was the correct action by the Council to address this issue.
36. The social worker completed a carer assessment with Mr C over the phone in February 2021. However, it appears the social worker may not have mentioned to him at the time that she was carrying out a carer assessment or sent him a copy afterwards. This is fault.
37. If Mr C is unhappy with the amount of support he or his mother received from January 2020 onwards, he can make a complaint about that to the CCG.

Mrs M’s DRE

38. Mr C says his mother uses up to 7 or 8 pads per day. However, the NHS only provides four pads per day free of charge. Mr C says this means her pad can only be changed every six hours, which is not enough and would result in very heavy soiling, especially during the night. As such, his mother has to buy additional pads privately. Mr C has been discussing this with the NHS continence service for a long time, but he says they are not willing to provide more pads. As such, Mr C says the Council should treat the additional 3 to 4 pads his mother has to pay for as DRE.
39. The information Mr C has received from the incontinence service indicates they believe that the continence pads his mother receives are enough to prevent leakage and/or soiling the bed during the night.
40. The Council has said that:
• It will not treat the cost of Mrs M’s incontinence pads as DRE, because his mother can get this support for free via the NHS.
• It provides a standardised DRE award of £15 per week to Mrs M, which makes adequate provision for the expenses reported by Mr C.
41. Mr C complained the Council has refused to treat the additional costs related to his mother’s diet, as DRE. Mr C says his mother dietitians have recommended special foods, because she needs a high calorie diet. For religious reasons she is not allowed to have the protein drinks available on subscriptions.
42. In its complaint response in January 2020, the Council said it asked Mr C to provide evidence of any special food recommended by the Dietician, after which the Council would look into whether these result in additional costs. However, Mr C has not yet provided such evidence.
43. Mr C said that, due to his mother’s incontinence, she spends more on the cost of laundry, sheets and extra clothes. Mr C said the Council has failed to treat those costs as DRE.
44. In response, the Council has said it provides all clients with a DRE allowance of £15 a week:
• It has estimated that the extra cost of laundry would be around £3.85 a week. As such, the £15 a week is sufficient to cover that.
• The need for any additional clothing or sheets is also sufficiently covered within the £15 allowance.

Analysis

45. DRE guidance says a council does not have to allow items where a reasonable alternative is available at lesser cost. An example of this is the private purchase cost of incontinence pads where these are available from the NHS. The Council has said that Mrs M’s needs for incontinence pads can be met by the NHS incontinence service who provide pads free of charge. It has based this on the position from the NHS continence service, who has said so far that its pads can meet Mrs M’s needs. As such, I did not find fault in the Council’s decision not to treat the additional pads as DRE, because the NHS has said it can meet Mrs M’s needs free of charge. If Mr C disagrees with the NHS’s position, he should make a complaint to the NHS.
46. I did also not find fault with the Council’s decision not to allow any additional cost of Mrs M’s diet, as Mr C has not yet provided the specific evidence the Council needed to support this.
47. Furthermore, any additional cost for laundry, clothes or sheets can be covered from the £15 DRE weekly allowance the Council already provides.
48. In any case, the issue about the Council’s view on the disputed expenses is no longer relevant, because Mrs M’s care support is free of charge from January 2020 onwards. This means Mrs M does not have to pay a contribution from that date. However, the Council did not know this, because the CCG nor Mr C told them of the CCG’s decision to award NHS CHC. If Mr C seeks a reimbursement of the contributions his mother has paid for her care support, he needs to take up that matter with the CCG.

The way the Council dealt with Mr C’s complaint

49. Mr C said that, when he made a complaint to the Council, it was investigated and responded to on 25 August 2020, by the same officer who he was complaining about. He said this was not good practice as the investigation was not independent.
50. The Council says that:
• Complaints are passed to the individual teams to undertake enquiries and provide information in relation to the outcome of the complaint. This information is passed to the Head of Service in the form of a draft response, to consider and sign off. This process ensures that any investigation and enquiry, remains independent and factual.
• The responding officer in Mr C’s last five complaints were all different than the officer he was complaining about.
51. The officer concerned said that:
• He had only been involved in the issues complained of in an overarching managerial capacity. He was not directly involved in the issues.
• It was the role of the allocated social worker to address any ongoing care and support needs and any concerns Mr C or his mother had. Whenever a social worker needs support or guidance, they will first liaise with their line manager; the Senior Social Work Practitioner.
• He would usually not be involved, unless called upon to do so. He was not called upon on this occasion.

Analysis

52. I did not uphold this aspect of Mr C’s complaint. The officer who responded to the complaint was not directly involved in the decisions Mr C complained about at that time.

Agreed action

53. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology to Mrs M and her sons for those faults identified above where I identified that an apology should be provided.
• Remind social workers of the requirement to share a copy of their (draft) care assessments, reviews and care plans with clients.
54. The Council has told me it has accepted my recommendations.

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Final decision

55. For reasons explained above, there was fault with the Council’s actions.
56. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman