Summary: Mr X complained the Council maliciously failed to provide the care and support he needed since 2017. Mr X also complained the Council relied on a risk assessment that was based on inaccurate information and refused to amend it despite knowing the information was incorrect. Mr X said the Council colluded with other agencies to treat him with prejudice and discrimination. The Council failed to provide the reablement care it assessed that Mr X needed for six weeks in October 2022. There is no evidence this was done with any malicious intent. There is no fault in how the Council considered and updated its risk assessment. The Council agreed to apologise to Mr X and pay him a symbolic amount of £300 to recognise the distress the missed reablement caused him.

The complaint

1. Mr X complained the Council maliciously failed to provide the care and support he needed since 2017. Mr X also complained the Council relied on a risk assessment that was based on inaccurate information and refused to amend it despite knowing the information was incorrect. Mr X said the Council colluded with other agencies to treat him with prejudice and discrimination. Mr X said this left him without the required care, caused him to lose a transplant, a financial loss and distress. He wanted reassurance care would be put in place as needed in the future, the risk assessment would be reviewed and disciplinary action taken against staff involved.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. If we are satisfied with an organisation’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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What I have and have not investigated

8. I investigated events since April 2022 as that was the first relevant event within the 12 months before Mr X complained to us about the Council’s actions. I have not investigated earlier events as Mr X could have complained to the Council, and then to us about those matters sooner and there are no good reasons for us to investigate these matters now.

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How I considered this complaint

9. I considered the evidence Mr X sent to me and discussed the complaint with him on the phone.
10. I read the documents the Council provided in response to my enquiries.
11. Mr 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

Relevant legislation and guidance

Adult Social Care

12. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person 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. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
14. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, 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 must 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.

Intermediate Care and Reablement

15. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:
• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.
16. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Home from Hospital support

17. The Council’s home from hospital service is a free service providing up to six weeks support for people who are returning home after a stay in hospital. It provides different support depending on the person’s needs and includes (but is not limited to);
• help preparing meals;
• domestic help;
• paperwork assistance;
• making appointments; and
• identifying other relevant services for support

Safety summary

18. The Council’s Integrated Mental Health team uses safety summaries as part of its care planning to record information about risks posed to and from people using its services. The safety summary is used to understand the person’s risks and how they can be managed safely. The policy states the information in a safety summary should be co-produced with the service user and should be reviewed regularly. Any professional working with the person should update the safety summary with any issue they have identified.

Equality Act 2010

19. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
20. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
21. The protected characteristics referred to in the Act are:
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.
22. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

What happened

23. Mr X lives alone and has limited sight. He is registered as blind. Mr X also suffers from poor mental health and at the time of these events the Council’s integrated mental health team (IMH) was supporting him. Mr X had three operations on his eyes in 2022. The operations were conducted in a hospital several hundred miles from Mr X’s home resulting in a six-hour journey home.
24. The Council received a hospital discharge notification in April 2022 to inform it that Mr X was being discharged from hospital that day and may need care and support. Mr X also contacted the Council on the same evening. The Council identified that Social Worker R (SW R) from its IMH team was already supporting Mr X. SW R left a food parcel at Mr X’s property and arranged to contact him the next day to assess his needs. Mr X states this was not a food parcel but a loaf of bread.
25. SW R assessed Mr X’s needs the following day and confirmed he needed support twice a day to buy and prepare food and to administer eye drops. SW R completed a referral for the Council to arrange care to meet those needs. The records show that a care provider began providing the care for one call a day the following day, and increased to two calls three days later when it had capacity to do so.
26. The care provider stopped providing Mr X’s care ten days later, when it understood that he wished to cancel the care package. SW R contacted Mr X who stated he had not cancelled the care package but it was wasting people’s time. The Council’s record shows SW R understood that Mr X wanted to cancel the care package.
27. At the time that it arranged the care the Council had a safety summary document as part of Mr X’s care planning. This set out a summary of safety concerns including the risks posed to Mr X and the risks Mr X posed to himself and to others. It was populated with current and historic information from the Council’s records and from third parties.
28. Mr X contacted the Council and complained about the care and support he received when he left hospital. The Council confirmed this complaint with Mr X in May as:
• it failed to complete a care needs assessment when he left hospital he was left without care and support for four days;
• SW R had no knowledge or understanding of his needs and took no action;
• carer workers thought they should administer eye drops, when they should have been providing support to buy and cook food;
• Mr X did not intend to cancel the care package;
• the Council did not provide home from hospital care;
• a council officer had been rude during a phone call; and
• he disagreed with the safety summary which he could prove was false. Care workers did not need to attend in pairs, and it made the service more expensive.
29. The Council responded to Mr X in May 2022. It did not uphold his complaints and directed Mr X to us if he remained dissatisfied. It said:
• Social Worker R had acted appropriately and completed the care needs assessment at the earliest opportunity;
• the care agency and social worker both understood Mr X wanted to cancel the care package;
• there was no fault in the actions of the council officer during the call;
• the safety summary was based on historical and current information and was reviewed every six months.
30. Mr X was dissatisfied with the Council response and asked for a meeting so that he could play audio recordings he said would undermine the Council’s findings. He also raised further complaints that:
• it had charged him for care and support which should have been free reablement care;
• the practice of doubling up staff based on the safety summary was unfair, prejudicial and caused him financial hardship; and
• he wanted the Council to waive the charges and remove the need for double staffing on any visit.
31. The Council declined to meet with Mr X and stated it would review relevant recordings if Mr X provided them via email.
32. The Council responded to Mr X’s further complaints in July. It said SW R was unaware of the reablement care services, it should have provided this to Mr X free of charge, and it would waive the fees. It repeated its explanation of the risk assessment and did not uphold that element of Mr X’s complaint.
33. Council Officer S (Officer S) spoke to Mr X in July and agreed to request up to date information from a third party in relation to Mr X. The officer agreed to work with Mr X to update the safety summary. Officer S sent the request to the third party the same day.
34. Officer S contacted Mr X at the end of September to inform him the third party had declined to provide information. Officer S offered to work through the safety summary with Mr X to reflect the previously identified risks and ensure it contained accurate information. Mr X declined to do so.
35. The following day the third party confirmed to the Council the information on two points of the safety summary was correct.
36. Mr X had another operation at the beginning of October 2022. On day 0 the hospital informed the Council Mr X was being discharged that day and requested a needs assessment. Mr X contacted the Council after ten pm the same day and said he needed care and that he had fallen twice.
37. The following day (day 1) Social Worker T (SW T) contacted Mr X to inform him she would visit the next day (day 2) to complete a needs assessment. Mr X stated he had no food or access to food. SW T discussed options with Mr X for arranging food, including dropping food off to him. Mr X declined them all. The Council referred to the district nurses for support for Mr X with administering his eye drops.
38. Officer S called Mr X about the needs assessment on day 2. The Council records show Mr X wanted to be medically assessed before completing the needs assessment. The Council said it asked Mr X to recontact it when he was ready for it to complete the assessment. Council officers dropped off food at Mr X’s home for him in the meantime.
39. On day 4 the district nurses told the Council they would not be visiting Mr X that day.
40. On day 5 Officer S called Mr X about the needs assessment. The Council records show that Mr X stated he still needed care but would not agree if he had to pay for the care. Officer S discussed intermediate and reablement care with Mr X, which would be free. The Council agreed to provide care to Mr X for six weeks based on the previous support it had offered and the information it had gathered over the phone. It began seeking a care provider to provide four calls a day to support Mr X with medication administration, meal preparation and assistance with phone calls.
41. Two days later the Council had not been able to find a care provider. It referred Mr X to the home from hospital service on his request. A week later Social Worker U (SW U) contacted Mr X about his care, confirmed the home from hospital service was supporting him and delivered a food package.
42. Mr X contacted the Council in October 2022 and said:
• it failed to complete a care needs assessment when he left hospital in October 2022 and he was left without care and support for four days;
• council officers he had spoken to were rude, aggressive and dismissive and hung up the phone and his human rights had been infringed;
• it had told the third party he was a bariatric patient which was insulting; and
• he wanted a meeting to play the call recordings, and for it to offer care and support to meet his needs.
43. Mr X added further points of complaint in November 2022. He said:
• the safety summary was based on incorrect information; and
• Officer S had failed to take appropriate action to meet his immediate needs after he was discharged from hospital and provided false information about him to other services.
44. Officer S discussed Mr X’s care assessment with him again at the beginning of November. Officer S agreed the 6 weeks reablement care would be from when the care package started, not the discharge from hospital.
45. Four days later Officer S called Mr X to discuss his care needs. Mr X told Officer S he would not discuss it and not to contact him again until he had arranged a meeting with a senior manager to discuss the safety summary.
46. In mid-November the third party provided updated information for the safety summary. Officer S updated the document and called Mr X to tell him. Officer S said due to Mr X’s current behaviour with professionals and historic threats the recommendation for two members of staff for home visits would stand.
47. Officer S contacted Mr X and arranged a meeting with a senior manager in December to discuss his care needs and safety summary. Mr X phoned the police and said Officer S was harassing him. Mr X later cancelled the meeting with the senior manager.
48. The Council responded to Mr X’s complaint in February 2023. It said:
• it did a basic assessment on the available information as soon as possible and agreed reablement care. A lack of care workers meant it had not secured Mr X’s care package. It had offered food parcels in the interim;
• It had reviewed available calls and staff members were not rude, aggressive or dismissive in the calls but had ended the calls when necessary;
• It had informed the third party Mr X was a bariatric patient in error and apologised;
• the safety summary was based on information from the Council’s records, from self-disclosures and third-party information. It had amended it based on clarification provided by the third party. It had offered to co-produce the safety summary with him but Mr X had declined;
• Officer S had acted properly in trying to assess and meet Mr X’s needs and sharing information with other services; and
• it had arranged to meet Mr X to listen to audio recordings, and had also asked him to send any relevant ones via email for consideration, which he had not done.
49. The Council wrote to Mr X later that month. It set out the actions it had taken in trying to assess and meet his care needs. It said it had been unable to assess his care needs under the Care Act as he had not engaged with the assessments and so it was discharging him. It said that Mr X could refer himself back to the Council for any unmet social care needs.
50. Mr X provided me with a copy of some information from the third party. I have reviewed that document and it confirms that information in the safety summary was shared with the Council during a multi-agency meeting in 2011 by the third party.

My findings

Care needs in April 2022

51. In April 2022 the Council became aware Mr X may be in need of care. It had a duty to assess those care needs. The social worker provided a food parcel on the day Mr X returned from hospital and assessed his needs the following day. The care was arranged and in place within three days. There was no fault in the Council’s actions.
52. Mr X should have received this care free of charge as reablement care. The Council charged Mr X for that service and that was fault. The Council has already identified the fault and waived the fees. That is an appropriate remedy. I have not investigated this matter further as it is unlikely to result in a different outcome.

Care needs in October 2022

53. In October 2022 the Council was informed Mr X had been discharged from hospital and he arrived home after ten pm. It contacted him as soon as possible and arranged a needs assessment for the following day. The needs assessment was delayed while Mr X sought medical attention. The Council provided a food parcel in the interim and contacted eight care providers about Mr X’s immediate care package. When Mr X recontacted the Council it arranged for reablement care to be sourced without further delay. The Council attempted to complete a needs assessment within two days of it being requested and provided food parcels in the meantime. It began trying to arrange care within three days. There was no fault in the Council’s actions.
54. The Council records show Mr X wanted to be medically assessed before the needs assessment and would recontact the Council when he was ready. Mr X said the Council Officer said he should be medically assessed first and he did not want to delay the needs assessment. I was not party to the call and, without further evidence, I cannot make a finding on who delayed the needs assessment. However, I do not find that the delay caused Mr X any additional injustice as the Council could not identify a care provider to meet his needs as set out below.
55. Based on the information the Council had it decided that Mr X had eligible care needs, and that he required six weeks reablement care to meet those needs. The Council followed its process to procure a care provider to meet those needs but was unable to identify one. This was service failure and meant that Mr X’s needs were not met. The Council did provide food parcels and the home from hospital service which partially met Mr X’s needs, however his need for support with administering medication following an operation were not met.
56. Mr X was assessed as needing six weeks reablement care in October 2022. He also said he would not accept a care package if he had to pay for it, and reablement care is for six weeks only. It is now nine months since Mr X’s operation and the need arising for reablement care. I cannot say if Mr X still has unmet care needs. The Council tried to discuss Mr X’s care needs with him in November and December 2022 which Mr X declined. It has written to him to discharge him from the service and provided him with the details to contact if he has unmet needs. The Council was not at fault. It is open to Mr X to contact the Council about any ongoing care needs.

Safety summary

57. The Council completed a safety summary to understand the risk Mr X posed to himself and others. It contained information from the Council’s own records and information that was shared with it from other agencies.. Mr X first complained about it in April 2022 and stated the content was inaccurate. The Council confirmed the third-party information it held. It updated the safety summary with the updated information and offered to work with Mr X to ensure it was accurate in line with the policy. I have reviewed the safety summaries as part of this investigation. They reflect the information that was known to the Council at the times they were reviewed. There was no fault in the Council’s actions in how it obtained, recorded and amended the information.
58. The Council shared sufficient information about Mr X’s needs and risks to the care providers so they could establish if they could provide care. There was no fault in the Council’s actions.
59. Mr X complains that the double handed care identified because of the safety summary is more expensive and a breach of his human rights. We cannot question a council's decision if it is made without fault. As there was no fault in how the Council gathered and consider the information in the safety summary I cannot question the outcome.

Collusion and discrimination

60. Mr X complained the Council had colluded with other agencies to treat him with prejudice and discrimination. Although I have found service failure in the Council, I have not seen any evidence of collusion in the Council’s actions.
61. I have seen no evidence of discrimination or that the Council did not have due regard to its duties under the Equality Act. It communicated with Mr X by phone on a regular basis and offered to meet with him in person. The lack of care package was due to a shortage of care providers, and there is no evidence it was related to Mr X’s protected characteristic.

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Agreed action

62. Within one month the Council will:
• write to Mr X and apologise for the injustice caused to him by the Council being unable to meet his reablement care needs; and
• pay him a symbolic amount of £300 to recognise the distress caused to him by his unmet needs.
63. Within three months the Council will review its care commissioning arrangements and create an action plan of the actions it will take to improve the availability of care providers. The Council will provide us with a copy of that action plan.
64. The Council will provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I found fault, causing injustice and the Council agreed to my recommendation to remedy that injustice and avoid a recurrence of that fault.

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Investigator's decision on behalf of the Ombudsman