Summary: Mrs X complained the Council has delayed in assessing the change in her father, Mr Y’s care needs and has refused to backdate support to January 2023 when the care increased. As a result Mr Y has accrued care charges he cannot afford. The delays and failings in the way the Council dealt with Mrs X’s requests for additional care and support for Mr Y are fault. This fault has caused Mrs X and Mr Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council has delayed in assessing the change in her father, Mr Y’s care needs and has refused to backdate support to January 2023 when the care increased. As a result Mr Y has accrued care charges he cannot afford. This matter has also had an impact on Mrs X and Mr Y’s mental health and wellbeing.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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).
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
7. Mrs 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

Care and Support Plans

8. 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. 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.
9. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Direct payments

10. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

What happened here

11. Mr Y has received care and support since the summer of 2022. He initially received three 30-minute calls each day from Company 1 who are paid via direct payments which Mrs X manages.
12. In January 2023 Mr Y was unwell and needed additional care and support. Mrs X contacted the Council to ask for an increase in Mr Y’s care package to four calls a day. She says the Council agreed to the increase, which she then arranged directly with Company 1.
13. In March 2023 Mrs X contacted the Council again to request a further increase in the care package. On this occasion Mrs X asked to extend the morning visit. Mrs says she was told the matter would need to be referred. As she understood the previous increase had been agreed, she assumed this increase would also be agreed and asked Company 1 to provide the increased morning care. Mrs X says that not increasing the care in this way would have had a significant detrimental impact on Mr Y’s health.
14. Mrs X says she chased the Council for a response but did not hear anything until May 2023 when the Council allocated Mr Y’s case to a new social worker. The social worker then began an assessment of Mr Y’s needs in early June 2023.
15. In July 2023 Mrs X chased the Council for the increased direct payments so that she could pay the arears owed to Company 1. The Council told Mrs X it would not make backdated payments for the increases in Mr Y’s care which it had not agreed.
16. Mrs X made a formal complaint about the way Mr Y’s care had been handled. Mrs X maintained she had been told in January 2023 that she could increase Mr Y’s care package. She said Mr Y’s health would have deteriorated significantly without it and had it not been agreed she would have battled to ensure he received the increased care. Mrs X also asserted the Council’s records were incomplete as they did not include several calls in February and early March 2023 to discuss Mr Y’s care.
17. As part of the review of Mr Y’s care needs the social worker arranged for an Occupational Therapist (OT) to carry out a moving and handling assessment. They asked the OT to consider in particular the length of the morning call and whether two carers were required for each visit.
18. The OT spoke with both Mrs X and Company 1 and then visited to observe Mr Y’s morning call. They recommended 45-minute calls for morning, lunch and tea and 30 minutes for the evening call, each with two carers. The Council then updated Mr Y’s care and support plan to reflect the increase.
19. The Council responded to Mrs X’s complaint in September 2023. It noted Mrs X had called about Mr Y’s additional care needs in January 2023. It explained that if an increase in care is needed the advisor would pass on the details to the relevant area team to carry out a full review. The Council said the advisor would have told Mrs X the care package would not be increased until the review had been completed. It said there was no evidence Mrs X was advised she could proceed with increased care. It would not therefore backdate direct payments to January 2023 as the increase in care was not assessed or approved.
20. The Council acknowledged the request to re-assess Mr Y was not picked up in January 2023. It was not processed until 10 March 2023 when Mrs X contacted the Council again. It noted the advisor had informed Mrs X in March 2023 that the matter would be referred for assessment.
21. Mrs X was not satisfied with the Council’s response and questioned whether it had listened to the recordings of her calls in January 2023. She asserted the recordings would prove she was told the increase in care was approved. Mrs X also questioned why the Council took no action between January and March 2023. Or again between March and August 2023.
22. In addition Mrs X noted the Council had told her it was not liable for the increased care until an assessment had been completed and a new contract signed. However having completed the review and agreed the additional care in August 2023, the Council had contacted Company 1 directly to confirm the changes but she had still not been asked to sign a new contract. She questioned the inconsistency in the Council’s position regarding the need for a signed contract, and why it had contacted Company 1 when Mr Y’s care was arranged by direct payments, not through the Council.
23. Mrs X asserted that as the Council had now accepted Mr Y needed additional care it should recognise that he also needed it in January 2023 when his health was much worse. There is no record the Council responded.
24. As Mrs X remains unhappy with the Council’s position she has asked the Ombudsman to investigate her complaint. Mr Y has accrued significant arrears with Company 1 which he is unable to pay.
25. In response to my enquiries the Council says it does not have a specific policy for dealing with urgent requests for care. It has a priority system using red, amber, and green flags to reflect high, medium, and low priority. But the Council has not provided any details of the system criteria or timeframes for assessments.
26. Nor has the Council provided recordings of Mrs X’s calls in January and March 2023. Its retention policy says call recordings are stored for a minimum of six months but no longer than 12 months from the date of the call. The Council has not confirmed how long Mrs X’s calls were stored.
27. Its records show Mrs X called on 18 January 2023 to request an addition call each day and an officer returned Mrs X’s call the following day. The notes of this call record a discussion about Mr Y’s increased needs. The officer asked Mrs X whether Company 1 would have capacity to carry out the additional call. As Mrs X was unsure the officer contacted Company 1 directly. The officer then advised Mrs X Company 1 would be able to make the additional call.
28. The summary of this call says the officer advised Mrs X that as the care is paid for by direct payments the Council would not have any involvement in increasing or decreasing the actual package. The officer could request an increase in direct payments and if this is done Mrs X can increase the package.
29. A manager than agreed to transfer the request for a reassessment for an increase in the direct payment package to the area team.
30. The Council’s records of the calls in March 2023 show Mrs X requested an additional half hour for the morning call on 8 March 2023. Again an officer called Mrs X back to discuss Mr Y’s increased needs. The notes of this call do not record the advice given to Mrs X. They record the outcome as passing the case to the area team to request an increase in DP to accommodate the extended calls by carers.

Analysis

31. It is clear from the documentation available that there have been failings in the way the Council has dealt with Mrs X’s requests for additional care and support for Mr Y.
32. The Council says its advisors, when discussing Mrs X’s requests for increases in care, would have told her that Mr Y’s care package would not be increased until a review had been completed. However, there is no evidence the advisor did clearly explain this in either January or March 2023. Indeed in January 2023 the advisor contacted Company 1 to check whether they had capacity for the additional call and then confirmed to Mrs X that they could. They also said they would request an increase in direct payments.
33. In these circumstances it is not surprising that Mrs X believed her request for an additional call had been approved.
34. The lack of clarity regarding the process was then compounded by the delays in arranging an assessment /review of Mr Y’s needs. The Care and Support Statutory Guidance says an assessment should be carried out over an appropriate and reasonable timescale, taking into account the urgency of needs. We normally expect councils to complete assessments within four to six weeks, and to keep those involved informed throughout the process.
35. In this instance the Council’s records suggest it made referrals for a reassessment in January and March 2023, but neither was actioned promptly. When it did commence, the assessment then took over two months to complete.
36. The Council’s records show that during the assessment in June 2023 Mrs X asked to extend the morning and tea call. There is no record the officer questioned Mr Y receiving four calls a day. Following this visit, the officer contacted Company 1 to confirm they had capacity to increase the tea-time call and confirmed they would be increasing the direct payments to fund this.
37. The case records suggest the officer had not understood the history to Mr Y’s case, or Mrs X’s requests for additional support. They sought OT advice regarding Mr Y’s needs in late July/ early August 2023. The assessment was then completed on 10 August 2023 and the revised support package started on 14 August 2023.
38. I consider the delays in reassessing Mr Y’s needs amount to fault.
39. Having identified fault I must consider whether this has caused Mrs X and Mr Y a significant injustice.
40. The lack of clarity about how Mrs X’s requests would be considered, together with the delays in reassessing Mr Y’s needs mean that Mrs X was unable to make timely and informed decisions about Mr Y’s care. I am satisfied that had Mrs X been aware she could not increase Mr Y’s care without an assessment she would have proactively pursued the Council to ensure this was carried out promptly.
41. The Council’s failings have caused Mrs X distress, anxiety, and uncertainty and put her to unnecessary time and trouble in trying to resolve this matter.
42. I consider, on the balance of probabilities, that but for the delays in completing the assessments the Council would have increased Mr Y’s care and support package much earlier. And Mr Y would not have accrued the arrears in care charges that he has.
43. In the circumstance I consider the Council should provide back dated direct payments for the increase in care costs incurred between January and August 2023.

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Agreed action

44. The Council has agreed to:
• apologise to Mrs X and Mr Y for the failings and delays in the way it dealt with Mrs X’s requests for additional care and support for Mr Y. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• make back dated direct payments for the increased care costs Mr Y incurred between 19 January and 14 August 2023 in respect of the additional call each day and the extended morning visit;
• pay Mrs X £300 to recognise the distress, anxiety, and uncertainty she experienced as a result of the Council’s failings;
• provide training/ reminders to relevant staff of the need to provide clear advice and explanations of the process to be followed when an increased care package is requested. And of the need to fully document the advice given.
45. The Council should take this action within one month of the final decision on this complaint and should provide us with evidence it has complied with the above actions.

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Final decision

46. The delays and failings in the way the Council dealt with Mrs X’s requests for additional care and support for Mr Y are fault. This fault has caused Mrs X and Mr Y an injustice.

Investigator’s fault decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman