Summary: Mr X complains on behalf of Mr Y. He complains that the Council failed to arrange a care provider for Mrs Z to enable her to live in her own home and delayed in carrying out a care assessment. The Council was at fault as it delayed in carrying out a care needs assessment for Mrs Z and did not explore where she wanted to live when it eventually carried out the assessment. As a result, Mrs Z was prevented from returning home with a care package. The fault also caused distress and uncertainty to Mr Y which the Council has agreed to remedy by apologising and making a symbolic payment of £500 to him.

The complaint

1. Mr X complains on behalf of Mr Y. Mr X complains that the Council failed to arrange a home care provider for Mrs Z to enable her to live in her own home and delayed in carrying out a care needs assessment. As a result, Mrs Z had to remain living in a care home and incurred greater care costs than she would done if she had received home care. Mr Y was also caused significant distress as Mrs Z was unable to return home.

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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. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

6. 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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How I considered this complaint

7. I have:

• Considered the complaint and the information provided by Mr X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

8. 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.
9. 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.

What happened

10. The following is a summary of the facts relevant to my consideration of the complaint. It does not include everything that happened.
11. Mrs Z lived at home and received a home care package from a care provider. In July 2022, the care provider gave 28 days notice to end the care package.
12. The Council has provided information to show it sent requests for a care package for Mrs Z to care providers in its area on a number of occasions between July and September 2022. Mr Y also contacted the Council to advise he had made enquiries of an alternative care provider. Mr X has said the alternative care provider told Mr Y that it could provide care from early August. The alternative care provider subsequently declined to provide care for Mrs Z. The Council found another care provider who subsequently declined to provide care.
13. The Council’s records note that a social worker visited Mr Y and Mrs Z to discuss respite care in a residential care home. Mr Y initially declined respite care as Mrs Z wanted regular carers at home. Mr Y agreed Mrs Z should move to respite care as the Council had been unable to source a care provider for her.
14. In early August, Mrs Z moved to a care home for respite care. The Council’s records note that a social worker visited Mrs Z at the care home. The record of the visit notes Mrs Z said she was happy at the care home but she also wanted to go home. The Council’s record also show the social worker spoke to the care home manager who considered Mrs Z had issues with her short term memory but could manage with extra care at home. The Council extended Mrs Z’s stay at care home pending finding a care provider.
15. The Council sent further requests to care providers for a home care package for Mrs Z between August and mid September 2022. A care provider, who I shall call care provider A, advised the Council it may be able to provide a care package subject to its own assessment of Mrs Z. There is no evidence to show the Council explored the care package. The Council decided to carry out a reassessment of Mrs Z’s care needs as it considered her needs were increasing.
16. The Council’s records include a case summary from Mrs Z’s social worker. This said she was awaiting a GP memory assessment and to confirm if it was safe for Mrs Z to return home. The record also notes the social worker tried to contact Mr Y to discuss extra care housing but there was no response so the social worker left a voicemail. The record also stated that an assessment had been tried on two occasions but Mrs Z was not co-operative. The Council extended Mrs Z’s stay in the care home.
17. The Council needed to reallocate Mrs Z’s case to another social worker so the Council placed her on its waiting list. The Council has said it had a prioritisation process relating to risk and urgency due to the demand for care assessments. Mrs Z’s case was deemed to be low priority as she was in a safe environment.
18. The Council carried out a reassessment of Mrs Z’s care needs in May 2023. The Council’s records note the social worker tried to contact Mr Y by telephone to seek his views on Mrs Z’s needs but she was unable to do so. The social worker also sent an email to Mr Y explaining why she was trying to contact him and asking him to contact her. I understand Mr Y did not respond.
19. The care assessment noted Mrs Z was receiving end of life care and there would be a risk to her physical wellbeing if she returned home. The Council decided Mrs Z’s placement at the care home should be permanent.
20. In September 2023, Mr X made a complaint to the Council about a number of issues including that it had not found a care provider to enable Mrs Z to return home. The Council decided Mrs Z required an urgent reassessment of her care needs to see if she could return home with a package of care. The records note Mrs Z required a mental capacity assessment to determine if she had capacity to make decisions regarding her care and finances. A social worker tried to contact Mr Y without success on several occasions by telephone and email in October 2023 to arrange for him to be present during the reassessment.
21. The social worker visited Mrs Z in October 2023 but was unable to speak to her. The social worker sent further emails to Mr Y to ask him to contact her to discuss Mrs Z’s placement.
22. The Council’s records note the social worker visited Mrs Z in early November 2023. She concluded Mrs Z did not have mental capacity and that she should remain at the care home due to her health as moving her would be detrimental. The social worker was unable to contact Mr Y. The records also note the care home told her that it also had not been able to contact Mr Y. Mrs Z sadly passed away a few weeks later.
23. Mrs Z had outstanding care fees when she passed away. I understand the Council is seeking to recover the debt from her estate.
24. Mr X considers that the Council’s failure to source a care provider meant Mrs Z was forced to live in a care home and could not return home as she wished. This caused distress to Mrs Z and Mr Y. Mrs Z also incurred greater care costs as the care home placement was more expensive than a home care package would have been.

Analysis

25. On balance, I consider the Council took sufficient action to source a care provider to provide home care to Mrs Z between July and September 2022. The Council contacted providers on a number of occasions during this period. This included the care provider suggested by Mr Y.
26. But, on balance, I consider the Council was at fault for not exploring with care provider A whether it could provide a care package. Mrs Z’s preference was to return home so the Council should not have discounted this possibility even if her needs appeared to be increasing.
27. The Council then delayed in reassessing Mrs Z’s care needs. The Council attempted to reassess Mrs Z’s needs in October 2022 without success. But it did not carry out an assessment of Mrs Z’s care needs for a further seven months after her case needed to be reallocated. The Council has said the delay was due to significant demand and the priority for the allocation of cases was based on risk and urgency. The time taken to assess Mrs Z’s care needs is excessive and amounts to delay. The delay was caused by external factors so it is service failure and is fault.
28. I consider there is fault in how the Council carried out the care needs assessment in May 2023. There is no evidence in the assessment to show the Council explored with Mrs Z where she wanted to live. Mrs Z may have been receiving end of life care but the Council should still have sought her views on where she wanted to live. The assessment was therefore not person centred and the Council appears to have imposed its decision on Mrs Z. This is fault.
29. I am satisfied, on balance, the Council took sufficient action to contact Mr Y when carrying out the care needs assessment in May/June 2023 and in October 2023 when it tried to reassess Mrs Z’s care needs. The evidence shows the Council tried to contact Mr Y by telephone and email but he did not respond.
30. I asked the Council to explain what action it had taken to address the delays in carrying out care needs assessments and what the current average wait time is. It has not provided this information. The Council prioritised assessments but this is not evidence to show the action taken to reduce the significant delay in carrying out care needs assessments. The Council should provide an action plan or evidence to show how it is tackling the delays.

Injustice

31. I cannot know, on balance, if care provider A would have been able to provide a care package for Mrs Z even if the Council had explored if it could offer a care package for her.
32. On balance, I consider the Council’s delay in reassessing Mrs Z’s care needs prevented Mrs Z from returning home with a care package. I consider it is more likely than not that Mrs Z would have chosen to return home with a care package This is because she told a social worker in August 2022 that she wanted to go home despite being happy in the care home. Mrs Z was in a safe environment and her basic care needs were met. But the Council did not meet her individual need of being cared for in her own home.
33. I cannot say, even on balance, if the Council’s failure to explore with Mrs Z where she wanted to live in the care needs assessment of May 2023 prevented her from returning home. I cannot know if Mrs Z would have chosen to return home at this time.
34. It is likely Mrs Z’s care costs would have been less for a period of time if the Council had not delayed in carrying out the reassessment of her care needs. But it is evident that Mrs Z’s care needs increased between October 2022 and May 2023 when she started to receive end of life care. I therefore cannot know, on balance, if Mrs Z would have been able to remain at home for any length of time. I also note the Council considered Mrs Z to be a full cost payer form April 2023 as she owned a share in a second property. It is possible that the Council would have considered Mrs Z to be a full cost payer for a home care package given her share in the second property. So, I cannot say, even on balance, how long Mrs Z incurred greater care costs for or say how much those greater costs were.
35. The injustice to Mrs Z is significant but this injustice cannot be remedied as she has passed away. But Mrs Z being unable to return home, even for a short period, will have caused distress to Mr Y. Mr Y has also been caused some uncertainty as he cannot know how much less Mrs Z’s care fees could have been. The Council should remedy this injustice.

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Agreed action

36. That the Council will:
1. Send a written apology to Mr Y for the distress and uncertainty caused by the Council’s delay in assessing Mrs Z’s care needs which prevented her from returning home. 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.
2. Make a symbolic payment of £500 to Mr Y to acknowledge the distress and uncertainty caused to him.
3. Provide or draw up an action plan with timescales to show how the Council is or tackling the excessive times in carrying out care needs assessments. This is to reduce the time service users are waiting for their care needs to be assessed.
4. By training or other means, remind staff carrying out care needs assessments that such assessments should be person centred and fully involve the service user in decisions about their care.
37. The Council should take the action at a) and b) within one month and the action at c) and d) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman