Summary: There was delay by the Council in reviewing Ms Y’s care and support plan causing avoidable uncertainty. There was delay in complaint handling and a failure to provide a response, causing avoidable distress and time and trouble. The Council will make a payment, apologise, make a decision on funding and review procedures to minimise the risk of delay in future.

The complaint

1. Mr X complained:
1. The Council delayed carrying out a review of his mother Ms Y’s care and support plan in 2021. It did not complete the review until April 2022 and the outcome was an increase to her direct payment. However, the Council did not backdate the increase.
2. A review of the care and support plan in September 2023 did not capture the impact of Ms Y’s advancing dementia and there was a failure to increase the direct payment as a result.
3. There was a failure to provide physiotherapy.
4. The care and support plan did not include day trips or a day centre.
5. There was a failure to provide a list of personal assistants.
6. The Council did not complete a carer’s assessment.
7. He missed several weeks of respite care due to an inadequate carer’s assessment.
8. There was a failure to respond to his complaints of November 2023.
2. Mr X said the Council’s fault caused avoidable distress and a financial loss as he had to pay a care agency for additional care which the Council would not reimburse.

Back to top

The Ombudsman’s role and powers

3. 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.)
4. The rule about late complaints does not apply to complaints of injustice and fault affecting an adult who lacks mental capacity to complain and who has a representative complaining on their behalf.
5. 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)
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)

Back to top

How I considered this complaint

7. I considered the complaint to us, the Council’s response to the complaint and documents set out in this statement. I discussed the complaint with Mr X.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

9. A council must carry out an assessment for any adult ‘with an appearance of need for care and support’. (a social care assessment) (Care Act 2014, section 9)
10. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. Councils should give the person an indicative timescale and keep them updated. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
11. 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. (Care Act 2014, sections 24 and 25)
12. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
13. A personal budget can be taken as a direct payment (a cash payment made to the person or their representative).
14. A council must keep care and support plans under review generally and must carry out a review in response to a reasonable request by the adult (or their representative). A council may revise a care and support plan. Where circumstances have changed in a way that affects the plan, the council must, where appropriate, carry out a needs assessment and revise the plan accordingly, taking reasonable steps to reach agreement with the adult if there is a proposal to change how to meet their needs. (Care Act 2014, section 27)
15. A review should be completed as quickly as is reasonably practicable, in a timely manner and proportionate to the needs being met. Where there is an urgent need, councils should consider a temporary package. (Care and Support Statutory Guidance, paragraph 13.34)

What happened

16. Ms Y has dementia and lacks capacity to complain. Mr X brings the complaint on her behalf and in his own right.
17. Ms Y lives in her own home. Mr X lives nearby; he often stays with his mother and provides informal care. Ms Y is eligible for care and support and receives a direct payment which Mr X manages on her behalf.

2021

18. A social worker emailed Mr X in April to arrange a visit to Ms Y. The social worker mentioned an occupational therapist (OT) had told the Council Ms Y needed double-handed care due to a change in moving and handling equipment. The social worker said Ms Y may need a review of her care and support plan.
19. The OT also emailed Mr X saying she had contacted the Council to ask for two carers.
20. The social worker visited Ms Y and Mr X in May. The social worker left the Council shortly after the visit.
21. Mr X told us he emailed the Council’s adult social care team in August to ask for an update in progress. He told us that in response, he had contact from a different social worker, who visited them in November. But nothing came of the visit.

2022

22. Mr X complained to the Council in January about the lack of progress. He said Ms Y’s condition had declined and she needed additional time to complete personal care and with eating and drinking. He said meantime, he had arranged additional care at a significant cost and had a large bill.
23. In February, the Council responded to the complaint saying:
• It was sorry for the lack of contact after the first social worker retired; it should have prioritised Ms Y for a review and contacted him sooner following contact from NHS clinicians in June 2021;
• It was sorry for the delay completing Ms Y’s social care assessment. This had not yet been finalised and it needed to be presented to the funding panel for a decision on additional funding. The Council would update him once this was done; and
• He needed to give more information about the large bill he said he had to pay and provide a copy.
24. Mr X emailed the complaints team in February with copies of invoices totalling £3858.73 from the care agency for additional care he had paid for from Ms Y’s funds between January and November 2021. He explained there were insufficient funds in the direct payment account to pay the care agency’s invoices. The Council did not respond to Mr X’s email.
25. The Council’s funding panel approved an increase to Ms Y’s direct payment in April 2022, but it did not backdate funding. Mr X considers the Council should backdate the increase to when he asked for a review (April 2021).

2023

26. A social worker completed a review of Ms Y’s care and support plan in September. Below is a summary:
• Ms X needed two carers to support her;
• She could not feed herself; she needed to use a hoist for transfers and needed support with personal care and continence;
• She did not often open her eyes or mouth; her communication was reduced;
• She was having physiotherapy once a week;
• From the end of November 2022, the care package was double handed care: one hour in the morning, half an hour at lunchtime, half an hour at teatime and half an hour a week of cleaning;
• There was no change in need to the above care package; and
• Mr X was using a care agency to provide carers. The social worker suggested using personal assistants (PAs) who could speak Ms Y’s first language and he would get a list of PAs to explore.
27. Mr X was unhappy with the review summarised in the last paragraph and complained to the Council in September, saying it did not take into account Ms Y’s dementia had worsened. He raised the complaints (b) to (h) in paragraph one with the Council. The Council didn’t respond.
28. In November, Mr X complained to the Council saying Ms Y was still owed funds due to the Council’s delay in reviewing her care and support plan. He said he wanted the Council to backdate the increase in the direct payment to cover the period June 2021 to April 2022. The Council did not respond to Mr X’s email.

2024

29. Mr X complained to us in March 2024 saying complaint (a) had not been resolved and the Council had not responded to complaints (b) to (h). We asked the Council to say whether it had responded fully to Mr X’s complaints. The Council said it hadn’t responded to complaints (b) to (h) and said it would do so promptly.
30. The Council’s complaint response in June/July said:
• The review did not explore the impact of Ms Y’s dementia. This should have included how it affected him and his mother. A social worker would complete a re-assessment and would ask the agency to tell carers not to rush Ms Y when feeding her;
• Funding is not increased automatically each year. It is reviewed and may be changed depending on the individual case;
• Physiotherapy is an NHS service which the Council does not provide (Mr Y had arranged physiotherapy privately);
• Ms Y cannot weight bear and is nursed in bed. So a day centre isn’t appropriate or safe;
• It would tell ask the direct payment team to provide him with a list of PAs;
• There was an administrative error. The Council had completed two carers’ assessments (September 2023 and February 2024). It had not sent him copies and was sorry for this or actioned any carer’s support. It had enclosed copies with the complaint response. It offered Mr Y a payment of £200 to reflect the delay;
• It accepted there was a delay in setting up the carer’s direct payment for him and was sorry; and
• Social workers would be given guidance on how to upload and distribute documents promptly.

Information from the Council.

31. The Council told me:
• It was sorry for not replying to Mr Y’s email in February 2022 submitting invoices he had received from the care agency for the additional hours he had arranged and paid for (between April 2021 and April 2022). It was willing to pay the invoices (£3853.73) as a goodwill gesture, although it did not accept legal responsibility because the Council had not agreed increased funding for the period in question;
• Any further changes to care hours needed to be planned and agreed by the Council in advance; and
• The Council didn’t respond to Mr X’s complaint of November 2023 (see paragraph 27). It was confused and passed his letter to the adult social care team to review it.
32. The Council told me it had taken the following actions as agreed in its complaint response of June/July 2024:
• A re-assessment of Ms Y was done in June 2024, a draft copy sent to Mr Y in September. The outcome was Ms Y’s care needs had increased. Her case was going to be submitted to the funding panel for an increase in funding (in the next week);
• The Council doesn’t have a list of PAs, but it had given Mr X a list of agencies; and
• Mr X had received the £200 payment to acknowledge the missed respite care.

Was there fault and if so, did it cause injustice?

(a)The Council delayed carrying out a review of Ms Y’s care and support plan in 2021. It did not complete the review until April 2022 and the outcome was an increase to the direct payment. However, the Council did not backdate the increase

33. Reviews should be completed in a timely manner. Taking a year to complete a review is not in line with paragraph 13.34 of Care and Support Statutory Guidance and was fault.
34. The review was completed on the basis of Ms Y’s needs in April 2022 and not on the basis of her needs in April 2021. The delay caused avoidable uncertainty about what the outcome would have been had the review been prompt. I cannot say what Ms Y’s needs were in April 2021. The injustice caused is uncertainty. The Council has agreed to reimburse Mr X the private care he arranged. This is a remedy which more than reflects the uncertainty.

(b)A review of the care and support plan in September 2023 did not capture the impact of Ms Y’s advancing dementia and there was a failure to increase the direct payment as a result

35. I uphold this complaint. The Council agreed to do a fresh social care assessment as an outcome to his complaint to it, which is an appropriate remedy.
36. Mr X complained about the review in September 2023. The Council didn’t respond to his complaint until June/July 2024. The delay in responding was fault causing avoidable frustration and time and trouble.
37. The social care assessment took from June to September 2024 to complete. Including the delay in complaint handling described in the previous paragraph, this means the review and reassessment process for Ms Y has taken from September 2023 to November 2024. This is not a reasonable timeframe taking account the urgency of needs and is not in line with paragraph 6.24 of Care and Support Statutory Guidance. The Council says Ms Y’s needs have increased and she requires additional funding. As I have found in complaint (a), Mr X has uncertainty about what the outcome might have been had the Council acted without delay. Assessments and reviews are done on the basis of the person’s current needs and not past needs (at the time the request was made). I cannot say what Ms Y needs would have been in 2023 had the Council properly taken into account the impact of her advancing dementia, so the injustice is uncertainty.

(c)There was a failure to provide physiotherapy

38. I do not uphold this complaint. The Council isn’t required to provide health services.

(d)The care and support plan did not include day trips or a day centre

39. Ms Y cannot bear her own weight and the records indicate she doesn’t open her eyes or mouth. The Council is not required to provide a day centre or trips out as it would be unsafe for Ms Y in her current condition. There is no fault.

(e)There was a failure to provide a list of personal assistants

40. The Council agreed to provide a list and then said there was no list available and instead has provided a list of agencies. The Council’s information was incorrect and misleading which was fault causing confusion.

(f)The Council did not complete a carer’s assessment

41. The Council completed a carer’s assessment, but as Mr Y did not get a copy at the time of his complaint, he believed it hadn’t. The failure to send him the assessment was fault causing confusion. He now has a copy and this remedies any injustice. The Council confirmed as an outcome to Mr X’s complaint that it was providing guidance to social workers on uploading and sending out documents in a timely manner. This is an appropriate action to reduce the risk of recurrence.

(g)He missed several weeks of respite care due to an inadequate carer’s assessment

42. The Council upheld this complaint and offered a symbolic payment of £200 to reflect missed respite. This is an appropriate remedy for the injustice.

(h)There was a failure to respond to his complaints of November 2023.

43. The Council did not respond to Mr X’s complaint (or treat it as a service request requiring a response) which was poor communication and fault. This caused avoidable frustration. The Council has agreed to reimburse Mr X the money he seeks and this is an appropriate response.

Back to top

Agreed action

44. Within one month of my final decision, the Council will:
• Apologise for the avoidable uncertainty caused by the delays described earlier in this statement. 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.
• Reimburse Mr X £3858.73. this is to recognise the avoidable uncertainty caused by the delay reviewing Ms Y’s care and support and the avoidable time and trouble and distress pursuing the complaint. It is a higher payment than in our published Guidance on Remedies and is an appropriate amount to reflect the uncertainty caused be both periods of delay (April 2021 to April 2022 and September 2023 to September 2024/ongoing)
• Ensure the funding panel provides a decision on the request for additional funding which is due at the time of writing this statement and makes additional funding available and paid to Ms Y.
45. Within two months of my final statement, the Council will review its procedures for care and support plan reviews to ensure they are completed in an appropriate timescale. It will provide us with a copy of updated procedures.
46. The Council should provide us with evidence it has complied with the actions in paragraphs 44 and 45.

Back to top

Final decision

47. There was delay by the Council in reviewing Ms Y’s care and support plan causing avoidable uncertainty. There was delay in complaint handling and a failure to provide a response, causing avoidable distress and time and trouble. The Council has accepted my recommendations for a payment, apology, a decision on funding and a review of procedures to minimise the risk of delay in future.
48. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman