Summary: Ms C complained the Council has failed to meet her needs. The hours the Council allocated are not enough and she has not had support from a care agency since April 2020. The Ombudsman found fault with the actions of the Council. The Council has agreed to pay Ms C £3,640 for not receiving support since April 2020, and share the lessons learned with its staff.

The complaint

1. The complainant, whom I shall call Ms C, compalined that:
• The hours the Council has allocated to her are not enough to meet her needs.
• The care provider has charged for visits it failed to carry out.
• The Council has failed to arrange a care provider for her who has been able to provide the support identified in the care plan, since February 2020.
• She cannot afford the weekly contribution she has to pay towards the cost of her care package.

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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. 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)
4. 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)
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 Ms C and the Council. I shared a copy of my draft decision statement with Ms 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. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve.
8. If a council decides a person is eligible for care following an assessment, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person.
9. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the council of meeting eligible needs, the amount a person must contribute and the amount the council must contribute.
10. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). A person with eligible care needs can have a council arrange their care. Or, if they wish, they can arrange their own care using a payment the council gives them (‘direct payment’).

Ms C’s needs assessment: the amount of support hours

11. Ms C moved into the local area of the Council at the end of 2019 and contacted the Council in January 2020. Her needs assessment from January 2020 said she had longstanding physical and mental health issues, including damage to her spine and depression. It resulted in a support package of 7 hours a week of support with:
• Preparing breakfast and not drinks.
• Change the bedding.
• Shower
• (Un) dressing
12. Ms C said she received 27 hours of support a week before she moved to Durham and used it to employ her own Personal Assistant (PA), which gave her the flexibility she needed.
13. Ms C said says she is unhappy with some aspects of the needs assessment carried out in January 2020, which she says was carried out on one of her better days. Her comments include:
• She said she has good and bad days. She is unable to do most things on a bad day that she can do on a good day. On good days she can do most things herself, but on bad days she needs support with everything and stays in bed. On those days she cannot get out of bed at all and needs 3 to 4 hours of support per day to change sheets, wash, prepare food, get drinks, basically everything. However, she says the assessment failed to establish / ask:
1. How often she has a good or bad day on average.
2. In sufficient detail, within each outcome area, what she is not able to do on a bad day, as compared to a good day.
3. It is not clear how her needs on a bad day, when she cannot leave her bed, can be met by two 30-minute visits.
• It said “During our visit she was appropriately dressed”. However, Ms C says she was dressed in a pyjama on both occasions.
• It said her property was in a reasonable clean state at the time of the visit. However, Ms C says it was not and she has photos to support this. Ms C says she cannot keep her property clean as she should not bend, lift, stretch, twist & reach as this will worsen her condition, and it is often too painful to do any such household tasks. However, her care plan says she should hire a cleaning company.
• There is no support allocated for a PA to support her: when she goes on a walk with her dogs, goes shopping or to access the community (for instance to do an activity such as swimming). She needs a PA during these times because: her legs can suddenly stop functioning. This then means her PA has to support her to be able to get home safely. If away, the PA needs to go and get her wheelchair, put her in the wheelchair and make sure she gets back to the car and drive her home. She also falls frequently. She also needs PA then to drive and get her home from wherever she might be.
14. In response, the Council has said:
• It did not establish how often Ms C has a good or bad day.
• However, the social worker visited Ms C four times during January and February 2020, during which she discussed her needs and strengths in detail. She also communicated with the previous Council where Ms C had lived. The OT and the care provider all contributed to the assessment.
• The needs assessment and information provided by the care providers did not evidence there were days when Ms C was unable to get out of bed.
• As is usual practice, if the care provider felt the support hours were not enough on bad days, they would have contacted the social worker to discuss the issues and negotiate any changes as required.
• The records indicate that Ms C was visited on 8 / 16 / 22 January and 5 / 18 and 25 February 2020. It is only noted on 18 February that Ms C was dressed in her pyjamas. The assessment document states that Ms C was appropriately dressed and, considering all information, was able to dress independently.
• At the time of the visit, the social worker observed the house to be in a reasonable state. Care workers have provided some support with cleaning tasks. Ms C can hire a cleaning company if she wants to have any additional cleaning tasks completed. If her home conditions have changed, this will be identified through any reassessment.
15. Ms C disagrees and says the records from the care provider show there were days when care workers noted she was “in bed” in the morning and in the afternoon, which shows she was in bed all day those days.
16. The Council carried out an OT assessment in January and February 2020, which informed Ms C’s needs assessment. It also resulted in Ms C receiving equipment to support her. The assessment form says that:
• Ms C said that, on bad days, she does not get dressed at all but stays in pyjamas.
• Ms C struggled to stand in her kitchen when cooking, so the OT ordered a perching stool. She had a microwave and oven that she could use and would orders take away on bad days.
• The OT observed what she was able to do in terms of mobilising and saw that, on the day of the visit, Ms C was able to mobilise without walking aids.
• Ms C said she was at risk of falls if she moves or turns too quickly. She said she can fall / stumble easily as she has no feeling in her legs and her legs can just give away. As such, she wanted a PA with her when out and about so she would not have to be afraid to fall and be unable to get home.
• She can drive and access her car independently. On good days she will go to the shops in her car.
• Ms C said the, on bad days, she cannot get out of bed at all and will need assistance with personal care.
• She has developed a few local friends via attending a weekly local dog training course. She drives to this and all her appointments. Her neighbours help when needed. Ms C says she could only attend two or three times.
17. Ms C said she was unhappy with some aspects of the OT assessment, which happened on one of her better days. For instance, the assessment said she can walk her dogs daily, even though her needs assessment clearly says she cannot usually do that.
18. Ms C said the needs assessment did not accurately capture her needs. As a result, her allocated support hours are not enough to meet her needs. It has resulted in a care plan of two visits a day (morning and evening) to: prepare breakfast / hot drink, (un) dress, and change bedding. The Council advised Ms C to hire a cleaning company and arrange a private dog walking company (can’t afford).
19. Furthermore, her neighbour raised a concern about Ms C with the Council in March 2020. The email said he had witnessed that Ms C has bad days, sometimes. On one occasion they had to help Ms C to get back home when her legs gave away when she walked in the street.
20. A needs assessment from 2011, carried out by a council where Ms C lived before, resulted in 14 hours of homecare support. It clearly established how many days a week Ms C had a bad day (2 days) and what support Ms C said she needed during a good and bad day. It said that on a good day Ms C would only need support with commode emptying, but on a bad day she would need support with meals, transfers, washing, dressing and emptying the commode in the morning, at lunch and at teatime.
21. A review of the care records from March 2020 shows that:
• Carers would often find Ms C in bed, in the morning and afternoon.
• Care workers often recorded: Ms C was fine on arrival; and often noted she was in a good mood and chatting to staff and “no concerns”.
• On one occasion (18 March 2020) Ms C said she was in pain and could not get out of bed.
22. The Council organised a meeting on 17 March 2020 in response to Ms C’s concerns. According to the records:
• Ms C said a care package was not the right type of support for her. When she has a good day, the care workers do not do anything, which the care provider confirmed. Instead, Ms C said she wanted the flexibility of a PA to help her with personal care when needed, bathing, laundry, preparing meals, assisting with her dogs, shopping and cleaning. Ms C said the current arrangements had made her feel suicidal and she has had to rely on her neighbours for support on bad days.
• The Council said that Ms C advised she is bed bound 3 to 4 days a week, although there is no evidence of this having been witnessed. It offered Ms C the option of having a Direct Payment so she could hire a PA.
• The Council said it also offered a reassessment by the Principal Social Worker, because Ms C was unhappy with the outcome of the assessment. However, Ms C declined the offer. She said she would obtain medical reports from her consultants first and then contact the Council the Principal Social Worker to organise the reassessment. To date, Ms C has not told the Council that she wants a reassessment.
23. Ms C says:
• She declined the offer of a Direct Payment, because the efforts involved in finding, hiring a PA, and the ongoing admin, was not justified for a package of only 7 hours a week. Furthermore, it would have been very difficult to hire a PA etc. This was therefore not a reasonable / realistic option for her.
• The evidence of her having regular bad days can be found in the care worker notes, police report, emails from her and her neighbour, previous assessments etc.
• She did not accept the reassessment offered by the Council, because:
1. She had to wait for copies of her medical records and neurology reports, which she only received at the end of 2020.
2. A phone assessment would not have been able to accurately capture her needs.
3. Due to her anxieties and possible reactive depression, she cannot do it over the phone and would find it too difficult to accurately put her needs across.
4. Due to her anxieties and possible reactive depression, she needs an advocate present to support her.
5. She has lost faith in the Council.
24. In response, the Council said that:
• It provides Direct Payments for many service users who have a small care package and Ms C can receive support from the Direct Payments Team with recruiting a suitable person. The Council can also offer a managed account to those who are unable to manage their finances.
• Ms C told the Council in April 2020 that she had no objection to use skype or a video link, so her Advocate and Mental Health worker could be present for the reassessment. However, she still wanted to wait until she had received her medical records. She has not told the Council that she has mental health issues related to using the alternative assessment formats offered by the Council.
25. According to the records, Ms C said she did not want to use Skype because she would want it to be face to face with her CPN and her advocate present.
26. Furthermore, the Council has told me that it will involve its reablement service in determining Ms C’s level of need. This support is free of charge for up to six weeks and consists of a number of visits during the day.

Analysis

27. The Council carried out the correct steps in identifying her needs, which included visits to her home, talking to the care provider and involving an OT. However, I reviewed the needs assessment and found the following. When someone has fluctuating needs, it is important the assessment tries to establish and clearly record how often the client has a bad day, on average. Furthermore, the needs assessment document has to be clearer to what extent the client can achieve any of the outcomes on a good day, compared to a bad day. While the Council considered, in general, information obtained from the care provider over several weeks, the Council failed to sufficiently specify what its view was on the amount and frequency with which Ms C’s needs fluctuated and the impact (if any) these had on her support needs throughout the week. This is fault. The Care Act Guidance also states that, where fluctuating needs are apparent, this should be factored into the care plan, detailing the steps the Council will take to meet needs in circumstances where these fluctuate.
28. In response the Council has said that Ms C did not demonstrate fluctuating needs during the assessment process. However, the Council intends to prepare a briefing note for staff to share the lessons learned in respect of assessing service users who describe having fluctuating needs.
29. When it was clear that Ms C was unhappy with the way the assessment was carried out, and its outcome, the Council offered a direct payment (to enable Ms C to hire a PA) and proposed to carry out a reassessment by a different senior staff member. This was an appropriate outcome for her complaint and remedy any potential injustice. A reassessment could have addressed the above shortcoming and reviewed if Ms C needed more hours as a result. However, this assessment has not yet taken place because Ms C needed time to obtain medical records and has since then not asked the Council to start the reassessment process. If Ms C wants a reassessment to take place, which will consider whether she needs more hours, she needs to tell the Council.

The care support received from care agencies:

30. Ms C says that, between 6 February 2020 and 5 April 2020, the care provider failed to carry out 41 visits (almost half of all the visits). She said she has CCTV recordings as evidence. Furthermore, Ms C says:
• The care provider logged visits that were 1 or two minutes long, so it would look on the system that a visit happened. However, no visit took place.
• The care provider lied about her cancelling some visits. She has phone records to prove this.
• The care provider lied about carrying out some visits and she has CCTV images to evidence this.
31. The Council said in its complaint response that:
• Ms C told the Council on 28 February 2020 that she did not want support from care agency A, because it had complained about her dogs. As such, there was no homecare support in place between 29 January 2020 and 20 February 2020, when a new home care provider started.
• It investigated Ms C’s allegations at the time and found that care agency B cancelled 31 visits, totalling 16 and a half hours of care. Even though it invoiced the Council for these visits, the Council has not paid for these due to its investigation. The Council strongly reminded agency B not to charge for these in future.
• The relevant Commissioning Officer checked that the care provider’s business processes and staff training were of an appropriate standard. The Officer found that it looked in some cases as if visits happened that only lasted a few minutes. However, the provider explained it was due to its GPS system that identified a care worker in the vicinity of Ms C, rather than visiting her. The manager further clarified that carers manually enter their arrival and completion times on the system which is the actual record it uses.
• The Council asked Ms C to provide evidence (phone records, CCTV images) to enable the Council to investigate these. However, she has not provided these.
32. When questioned, the Council told me that while it has not carried out a wider audit yet to see if there are similar invoice irregularities by agency B with other clients, it will do so.
33. Care agency B handed in a notice to quit in March 2020, which meant it would stop its support on 2 April 2020. The Council contacted several providers in March 2020 and placed an advert of providers to respond to. However, no provider picked up Ms C’s care package.
34. Ms C told the Council in April 2020 that she had support now from quite a few neighbours with daily living tasks, shopping and having food delivered from the local pub. However, she asked the Council to find a new care agency. The Council has told me there is no evidence in the records that it subsequently tried to find another care agency.

Analysis

35. Care agency B, which was commissioned by the Council, failed to provide the care Ms C needed, as identified in her support plan, on at least 31 occasions. This is fault. Ms C has told me there are also a few visits where the care agency says the visit happened, but she has evidence it did not happen. If Ms C can provide any such evidence to the Council, the Council told me it will consider this.
36. The Council had already established that care agency B tried to charge the Council for support it did not provide. The Council confirmed that, following its investigation, it ensured it did not pay the agency more than the hours it actually provided. This did not result in a financial injustice to Ms C, because most of Ms C’s care costs were paid for by the Council.
37. The Council failed, from April 2020 onwards, to try and find a care agency to provide the care Ms C needed, as identified in her support plan. This is fault. While the Council had offered Ms C a direct payment before, it was Ms C’s right to refuse this offer and ask the Council to commission a care agency instead, which she had in April 2020.

Ms C’s assessed contribution

38. Ms C has told the Council that she cannot afford the contribution she has been asked to pay towards her care package.
39. In response, the Council has said that:
• It completed a financial assessment in February 2020, which calculated the contribution Ms C had to pay as £18 a week.
• Ms C appealed the assessment and said the Council had not considered certain expenses she has as Disability Related Expenditure. If it would, it would reduce her assessed weekly contribution. This included her personal debt; a privately sourced buddi system; wheelchair maintenance; the services of a gardener; her mobile phone and landline and the purchase of paracetamol.
• The Council asked Ms C in March 2020 to provide receipts for the buddi system, the wheelchair maintenance and the gardener, so it could consider these items of expenditure. However, it has still not received this.

Analysis

40. The Council has asked Ms C to provide evidence in relation to some of the costs she has asked the Council to consider as part of her financial assessment. If provided, these could reduce the contribution she has to pay. However, as of today, she has not provided this evidence. As such, I do not find fault with regards to this aspect of Ms C’s complaint.
41. If, once Ms C has provided the above, Ms C is still left with a weekly contribution that she says she is unable to pay, the Council should offer to review her overall incomings and outgoing to come to a view if Ms C’s contribution is affordable for her.

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Agreed action

42. When a council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of care agency B, I have made recommendations to the Council with regards to those.
43. I recommended that, within four weeks of my final decision, the Council should:
• Provide an apology to Ms C for the faults identified above and the distress these have caused her.
• Pay Ms C £150 for the 31 missed calls between 20 February and 5 April 2020.
• Pay Ms C £3,640 for not receiving any care support between April 2020 and April 2021.
• Share the lessons learned around assessing fluctuating needs with relevant adult social care staff / assessors.
44. I also recommended that, within eight weeks of my final decision, the Council should:
• Inform the Ombudsman of the outcome of the wider audit into the way care agency B invoiced the Council before April 2020.
45. The Council has told me it has accepted my recommendations.

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Final decision

46. For reasons explained above, I decided to uphold Ms C’s complaint.
47. 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