Summary: Ms C complained the Council has failed to arrange a care support package for her since July 2020. She says this resulted in significant distress, inconvenience and impacted her health, including her mental health. We have found fault with the Council not being able to find a care agency to support her, for which the Council has agreed to apologise and pay a financial remedy.

The complaint

1. The complainant, whom I shall call Ms C, complained the Council has failed to arrange and commission a new homecare provider for her, since her previous provider stopped providing her care at the end of June 2020. She said this has significantly impacted on her wellbeing and overall health.
2. Ms C also complained the care provider failed to follow the proper procedure for giving notice to her.
3. Ms C said the Council has also failed to properly deal with the complaint she made and ensure she has had an advocate in place to deal with the above.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I considered the information I received from Ms C and the Council. I also interviewed an officer of the Council.

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What I found

Relevant legislation and guidance

8. The Care Act 2014, and corresponding Statutory Guidance, says that where a council has determined that a person has any eligible needs for homecare support, the council must meet these needs.
9. It also says that councils: “must arrange an independent advocate to facilitate the involvement of a person in their assessment, in the preparation of their care and support plan and in the review of their care plan (…) if 2 conditions are met. That if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes and second, there is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer. The role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the council and other organisations”.
10. Furthermore, councils: “must form a judgment about whether a person has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate individual to support and represent them for the purpose of facilitating their involvement, then the council must arrange for an independent advocate to support and represent the person”. The four areas are: Understanding relevant information; Retaining information, Using or weighing the information as part of engaging, and Communicating their views, wishes and feelings.

What happened

The complaint about the way the care provider gave notice

11. Ms C has lived in extra care accommodation for several years. As of May 2020, she received:
• A 45-minute morning call to support her with personal care and a half hour call in the evening to assist with evening meals. This was provided by staff based at her accommodation complex. She also got a cleaning call once a week and support with having a bath twice a week.
• A 14½ hour per week care package from a homecare agency to support her with accessing the community and appointments, planning her days, and building skills.
12. The Council has described her needs and package (in her assessment of March 2019 and to a care provider in October 2020) as follows:
• Ms C wants to get into work and contribute to society; engage in meaningful social activities, become physically fitter, and receive support to structure her day and understand what is needed of her so that she knows what to do next. She would like to be able to do her own shopping (does not believe online shopping works for her) and cook her own meals, with support.
• Ms C needs one visit per day from a care agency Monday to Thursday as she usually drives to her partner’s home on Friday and stays for the weekend. However, if she has a medical appointment on a Friday, hours from Mon – Thurs need to be banked to support this. As such there is a need for some flexibility.
• Ms C struggles with executive functioning so needs support to:
1. Manage her correspondence & appointments.
2. Plan, accompany her to numerous medical appointments and act as an advocate at these, taking notes as she becomes easily overwhelmed with information from medical professionals
3. Plan meals and accompany her to food shopping.
4. Attend her voluntary work (Covid-19 restrictions permitting).
5. Attend online 'Journalism for Disabled People' Course and support her with that.
6. Accompany her for walks at nearby places of interest (often a car journey away)
7. Prompt her to take medication.
13. The care agency gave notice to the Council on 2 June 2020, that it would end Ms C’s care support on 30 June 2020, giving 4 weeks’ notice as per contract. Ms C’s social worker told the care provider he would continue to look for a new provider on the E-brokerage system and tell Ms C the provider would stop its support once a new provider had been found to take over the support.
14. Ms C says the care provider did not follow the procedure set out in the Individual Support Agreement (ISA), signed between her and the care provider in 2018. She said the agreement states the care provider should have informed her in writing of the decision to terminate the contract, which it failed to do.
15. The social worker told Ms C on 26 June 2020 that the provider would stop, and no new provider had been found yet. Ms C says this news distressed her a lot, as there would only be four days until she would no longer receive the 14 hours a week of support she needed.
16. The Council told me the care provider provided the correct amount of notice. However, Ms C’s social worker asked the agency not to tell Ms C yet, as he was concerned this would distress her. He had hoped to have a new provider in place by the end of the notice period, which would reduce her distress. On reflection, Ms C’s social worker realises he should have told Ms C at the time.

Analysis

17. According to the ISA, the care provider should have told Ms C in writing, and four weeks in advance, about its decision that it would stop its care support. The care provider did not do this.
18. It did not do this, because the Council told the care provider that it would tell Ms C once it had found a new care provider for her. The Council has acknowledged to me that it should not have done this and should have told Ms C of the care agency’s decision at the time.

The complaint about not having care agency support since July 2020

19. The Council told me it put Ms C’s details out to all its approved care providers via its eBrokerage system on two occasions. However, none of the care providers came forward to accept the package.
20. Several stakeholders and people involved in Ms C’s care (the Journalism Course organisers, Ms C’s partner) raised concerns about Ms C now being without the 14½ hours support she needed from a homecare agency. Furthermore, Ms C herself told the Council several times that she needed support to attend medical appointments and other places, she was depressed and anxious, her partner (who had his own support needs) had to support her during this time, and she had to use his support workers as well, which was making him feel stressed and overwhelmed and causing a lot of tension between them.
21. She continued to raise these issues with the Council. For instance, Ms C told her social worker in an email in August 2020 that:
• The whole of last week she did not leave her flat.
• She missed her operation last week for a third time.
• She missed a dietician and cardiology appointment. 
• She is Autistic and has ADHD and needs structure and routine. She feels she is not able to function properly as she has no routine. This is impacting her mental state, she cries a lot and is missing some meals.
• She is unable to maintain a balance between exercise and rest to help her manage her pain, due to her hyper mobility syndrome.
22. The SE Coast Ambulance Service raised a safeguarding concern in November 2020 saying Ms C had been having suicidal thoughts for a few months. She felt she was a victim of organisational abuse, and nobody gave her the help she needed. The ambulance described Ms C as: withdrawn and isolated. It reported that warden staff at the residential property said Ms C’s personality and behaviour had changed in the last 6 months, and crew had met Ms C before and the behaviour seemed different and concerning.
23. As a result of the above, Ms C says she felt very vulnerable, at risk and therefore unable to stay at her flat. She said she therefore had to spend a lot of time at her partner’s property, but she regularly told the Council she wanted to live at her own flat with the right support in place.
24. The Council reallocated Ms C’s case to a new social worker, who contacted her in March 2021. The social worker met with Ms C in April, when Ms C said she would return to her flat as soon as she felt safe there. She told her social worker in May 2021 that her main concern about moving back was that she had never received the outcome of the safeguarding concerns she had raised in 2020 with the in-house provider about her care. As such, she had no proper evidence and assurance that these had been addressed and steps had been taken to ensure they would not happen again. Ms C said she would need this information before being able to move back to her flat. This would then allow the Council to agree a support plan with Ms C and try and put an outside care agency in place. She did not accept verbal assurance from the manager of the in-house provider, that all incidents had been dealt with and that all staff understand her needs. The manager told Ms C’s social worker that some care workers are not prepared to support Ms C.
25. The social worker told Ms C in June 2021 that he has tried to find a care agency to temporarily support her at her partner’s property, but none of the agencies said they could.
26. Ms C moved back to her flat in June 2021, as she said she felt she could no longer stay with her partner. The in-house care provider restarted her support, and it appears it had a list of care workers to support her who Ms C liked. The social worker met with Ms C at the end of June and recorded he had put a request for support on E-brokerage with no response. He said he would ask the in-house provider to share the report they completed about Ms C’s safeguarding concerns. The social worker told Ms C at the end of July that the Council had still not found a care agency, but he would now contact agencies who are not on their E-brokerage list.
27. The in-house provider told the Council in September that it would give Ms C notice to leave. It said that after seven years, the relationship with Ms C had broken down and it was unable to meet her expectations. It told the Council mid-October there had been further issues with Ms C and repeated that it would have to give notice and stop support on 31 October.
28. Ms C told the Council on 24 November 2021 that a new care package could not be put in place without a needs assessment being completed as the one in use was not correct. As such, Ms C said the way forward would be to go through each past assessment and delete what is incorrect. As such, she had asked her social workers for copies two weeks ago. She said she cannot do it any other way due to her specific type of autism.
29. The Council told me that:
• It agrees it could have been more pro-active in trying to find a provider. The social worker placed Ms C’s support needs on its E-brokerage system twice. The social worker could have been more pro-active subsequently to call care agencies or follow up on E-brokerage.
• It was difficult to find a care agency to support her as her behaviour is complex due to her Autism and other associated difficulties. This can lead Ms C talking to staff in a manner which they find upsetting and agencies have found it difficult to find staff that will consistently work with her. Agencies have reported back that she can be demanding and hostile. The evidence provided by the last care agency also indicates that Ms C would ‘sack staff’ and this appears to be a consistent pattern.
• Some agencies could not provide the support she needed due to the flexibility she needed. As such it suggested to Ms C she could try and get a Personal Assistant via a Direct Payment, but Ms C declined saying she felt this would be too much for her to manage.
• Ms C lived in extra care housing and was therefore not completely without care as staff there continued to provide her with a level of support. They could support with medication, having a bath and do welfare checks. They would attend 2 to 3 times a day if needed.
• However, not having support workers around will have resulted in her life being more disorganised.
30. Ms C told me she asked the social worker in 2020 to send her a list of care agencies / contacts so she could try and contact them directly. However, she says the social worker did not respond to this.
31. Ms C said that, as a result of not having a care agency to support her, she has been unable to live a normal life since July 2020:
• She missed health appointments and tests. She said she does not have the skills to organise her life, update calendar appointments, communicate with the outside world (make health appointments etc). Her care workers would monitor her health, ensure she takes her medication and take action if needed. She had concerns about various health issues, including cancer, but did not have the support needed to pursue this.
• An operation had to be postponed three times. In the end she had to ask her mother to support her, with whom she has a very negative relationship.
• She felt unable to organise her day as there was nobody to remind her of things.
• She no longer had the support she needed to raise and chase concerns about her care with the in-house care provider.
• She regularly went hungry without the food she needed. She lost a significant amount of weight in a very short time as she could not go shopping; she is unable to do online shopping without support.
• She did not get any support to go and meet up with her friends.
• She did not get support to go swimming, which she needed for her physical health (condition).
• She forgot to do her own regular health checks, for instance checking her sugar level every day.
• At times, she took too much medication, or missed medication, to manage her ADHD, seizures, and migraines.
• She was often unable to move from her bed or sofa, get dressed etc because she needs a ‘body double’. ADHD body doubling is a practice where a person with ADHD works on and completes potentially frustrating / everyday tasks alongside another person. Without a body double they feel unable to do this.
• She was not able to leave the property and felt isolated / imprisoned.
• She lost her place on a journalism course, and access to a voluntary job that could have resulted in a paid position, as she needed support to participate in online sessions and carry out tasks in between sessions.
• She was no longer able to stay on top of her paperwork.
32. Ms C said she also had to spend most of her time at her partner’s property. While some of her needs at times were better met while staying there, because she was asking her partner’s support workers to help her as well, she said the living arrangement caused a lot of tension and stress between her and her partner.
33. The Council explained the care agency was not able to provide support to Ms C to attend her online Journalism course, because the care agency did not find that attending a journalism course was essential care, in light of strict government guidance about carers visiting the homes of others.
34. The journalism course provider told me that it will start a new course in May 2020 that Ms C can attend, if she is able to ensure she can complete the course. The course is subsidised and costs £200.

Analysis

35. Ms C has been without an external care support provider / agency since July 2020 (18 months). Available information shows this has significantly affected her ability to live her life as well as her wellbeing. The Council has indicated that part of this delay has been due to difficulties in discussing Ms C’s care needs with her. However, in the end, the Council has failed to find and offer a suitable care provider to Ms C throughout this period. This is fault. Although it has put her details on its eBrokerage system, I found the Council did not sufficiently actively contact care agencies for a long time, to try and maximise Ms C’s chances of finding a care agency.
36. Ms C was unable to continue the Journalism course because she did not have a care worker with her to support her. However, at that particular time, this was due to the care agency deciding that due to the heightened Covid-19 risks and strict rules in place, it could not justify having a support worker present indoors to support with a training course. Tis was a view the care agency was entitled to make.

The complaint about the way the Council dealt with her complaint

37. Ms C complained to us about the way the Council dealt with her complaint. She said that:
• The Council failed to provide her with an advocate to support her throughout the process and help her with reading and processing information and responding to correspondence. She said this left her at a disadvantage, whereby her voice was not fully heard as she was unable to complete any tasks that were required of her.
• It also failed to discuss the complaint with her in sufficient detail before it started its investigation, As a result, she was not able to clearly list all the issues she wanted to complain about and the Council did not investigate many of the concerns she had and wanted investigating.
• As a result, she was also not able to understand and respond to the email she received from the Council on 14 July 2020, in which it summarised the complaint she made the day before. The Council only gave her five days to respond.
• As such, the Council’s complaint response did not address all the issues she raised.
• The complaint investigator did not sufficiently investigate what impact the lack of support had on her wellbeing.
• The complaint response failed to clearly set out the conclusions reached and what actions the Council would do to remedy any shortfalls it had identified, going forward.
• She never got the opportunity to challenge the Council’s complaint response.
• The Council failed to make a record of the telephone discussions she had about the complaint on 4 and 7 September 2020.
38. I reviewed the records related to Ms C’s complaint, and found that:
• The Council should have been aware that Ms C had had needed and received advocacy support in the recent past, as well as support from support workers to deal with communication etc, where needed. It should also should have been aware of her condition and the reasonable adjustments that should be made when dealing / communicating with her. As such, the Council should have considered whether Ms C would need advocacy support to enable her to go through its complaint process. I have not seen evidence it considered this at the time, which is fault. However, if Ms C felt she needed advocacy support, she could have raised that when she submitted her complaint.
• Ms C had phrased her complaint, and the way it had impacted her, in very general terms, such “Breach of duty under s18 Care Act 2014 to provide services to meet my needs”. As such, and in light of her communication issues, the Council should have contacted her to discuss her complaint in more detail to sufficiently understand what needs she felt were not being met and how it had impacted her. It failed to do this which is fault. Ms C told me that, as a result, many of the things she wanted to complain about where not looked into.
• The Council set out Ms C’s complaint in an email dated 14 July 2020. The email gave her five days to respond. However, the Council should have been aware of Ms C’s difficulties in communicating. As such, it should have included the sentence: if you need more time, please let me know. However, this did not stop Ms C for asking for extra time if she felt she would need this, which she was able to do.
39. The complaint response of 21 August 2020 covered all the different complaints Ms C had raised. However, due to the lack of detail at the start of the investigation, the response also lacked sufficient detail. Furthermore, the response also failed to clearly state what the finding was with regards to each complaint aspect and what, if any, actions the Council would carry out going forward.
40. However, the Council gave Ms C sufficient opportunity to provide her comments. The complaint response letter said, at the end, that if Ms C was unhappy, she should let the Council know within 10 working days. However, it would again have been good practice to mention that, if needed, Ms C could ask for more time. In the end, the Council gave Ms C an additional three weeks to comment, which it extended on 18 September 2020.
41. The Council has acknowledged it failed to record the two telephone conversations it had with Ms C in which it discussed her comments.
42. It has told me that, with regards to the Ombudsman’s findings, it has already updated its complaints process to ensure it automatically offers people more time to respond to complaints if required.

The complaint about the lack of advocacy support for her

43. Ms C says she needs an advocate, because she has difficulty communicating, as well as explaining and remembering things, which all have an impact on her being able to fully take part in things.
44. At the interview, the Council told me that Ms C has been receiving advocacy support and benefits from this.
45. Ms C has been supported by an advocacy organisation that has been commissioned by the Council to provide advocacy support. However, Ms C told me she has been unhappy with the advocacy support she has received from the organisation.
46. Ms C says:
• The advocacy agency contacted her in August 2020. She feels she did not receive any appropriate support from her.
• The advocate told her she would not be able to do face to face visits due to Covid-19. Ms C said this was very challenging for her (Ms C) due to her communication difficulties by phone and email.
• Her current advocate started to work with her at the end of January 2021 and has been doing face to face visits.
47. The advocacy agency said that:
• The advocate was unable to carry out face to face sessions due to Covid-19. All advocates completed a Covid-19 Risk Assessment for their clients. Ms C’s advocate concluded that, while Ms C had some communication issues, she would be sufficiently able to communicate her views and wishes via alternative means such as telephone, email and video calling. The advocate had previously worked with Ms C and completed the assessment based on her knowledge of Ms C’s communication ability.
• The advocate sent Ms C a consent form in August 2020 and asked Ms C to sign this. The advocate needed Ms C’s consent to share information about her with other stakeholders. However, it took until November 2020, and various emails, until the advocate received the signed form. This was then followed by discussions between the advocate and Ms C about what support Ms C wanted and what the agency could provide.
• Ms C was unhappy the advocate could not meet and support her in person, and she asked for another advocate. Ms C received a response saying she could have another advocate but the need for remote support would remain.
• A new advocate was allocated in January 2021
48. Ms C says the advocate should have involved her in the Covid-19 risk assessment.

Analysis

49. 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.
50. The advocate should have provided an opportunity to Ms C to comment on the risk assessment, either by involving her or sharing a copy with her before finalising it. As such, Ms C was unable to provide any input and comments on it. However, I am unable to conclude this would have made a difference, as the advocate had worked with Ms C before and was therefore aware of her communication issues.
51. After August 2020, there was a delay with the advocacy support starting. However, this was due to a delay in the advocate receiving Ms C’s consent form. As such, the delay was not due to fault by the advocacy provider.
52. Ms C said she was unhappy with the advocate and was allocated a new one in January 2021. If Ms C is unhappy with the support she received from the new advocate, she needs to make a complaint about that to the advocacy provider or the Council, before the Ombudsman can consider this.

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Agreed action

53. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology to Ms C for the faults identified above and the distress these have caused her. It should also pay her £5,400 for the loss of support services and the impact this has had on her.
• Review the system through which it monitors and supervises the progress of cases and through which it (subsequently) escalates cases when needed.
• Find and offer support from a suitable care agency.
• Share the above lessons learned about complaints handling with the officer / team who handled the complaint.

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Final decision

54. For reasons explained above, I have upheld Ms C’s complaint.
55. 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