Summary: Mr X complained the Council is failing to meet his night-time care and support needs. There is no fault in the way the Council assessed Mr X’s care needs or proposed meeting these.

The complaint

1. Mr X complained the Council is failing to meet his night-time care and support needs. He says this is impacting upon his dignity and is causing him significant distress.

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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. 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)
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)

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How I considered this complaint

5. I have considered the information provided by Mr X and discussed the complaint with him. I have considered the information the Council provided in response to our initial enquiries including its case notes, Mr X’s assessment and support plan and the relevant law and guidance.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

7. 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.
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. 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.
9. The Care and Support Statutory Guidance says ‘The amount that the local authority calculates as the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan.’
10. The guidance also says, ‘In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position and must comply with its related public law duties.
11. Case law [R(on the application of McDonald) v RBKC 2011] sets out that a council could propose the use of incontinence pads to meet a night time toileting need. The judgement in this case set out that this could be justified on the grounds that it was necessary for the economic wellbeing of the borough and the interests of other service users and was a proportionate response to the appellant’s needs.
12. 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.

Background

13. Mr X has disabilities which affect his mobility and mean he needs support with most daily living tasks, including continence. He has a hoist for transfers and lives in a one-bedroom wheelchair accessible flat. Mr X received a direct payment equivalent to 12 hours of care per day and employed two personal assistants. Mr X had previously paid the personal assistants to support him through the night but stopped this in mid 2023. The Council says it never authorised overnight support but Mr X chose to use his direct payments for this.

What happened

14. The following is a summary of key events relevant to this complaint. I have considered what happened from November 2023 to November 2024.
15. In November 2023 Mr X’s social worker met with him, his advocate and his personal assistant. Mr X requested a review of his support hours as he considered his care needs were not being met, specifically his continence needs overnight. The social worker noted Mr X had discussed changing the times of care visits with his personal assistants (who generally supported him between 9am and 8pm) but he did not feel a later visit at night or earlier morning visit would address the issue as he often opened his bowels in bed when he was most relaxed and he often needed to empty his bladder overnight. Mr X said he was working with the Bladder and Bowel Service regarding his overnight continence needs and was trialling a convene sheath but this was not going well and he had to call the duty nurses out due to it coming off. Mr X’s personal assistant felt he required 24/7 support.
16. The social worker completed a needs assessment. They noted Mr X sometimes needed support at night and sometimes slept through. Historically he had used continence pads to meet his needs but did not wish to return to using them. Mr X’s personal assistant reported he was often wet through by the morning. Mr X also had an area of red skin around his groin area which the personal assistant felt was due to the convene. The social worker noted previous care assessments referred to Mr X having high levels of anxiety about being alone at night and that he had concerns for his safety if there was an emergency.
17. The social worker agreed to liaise with the Bladder and Bowel Service.
18. In May 2024 the social worker met with Mr X to discuss the possibility of a move to extra care housing but Mr X chose not to pursue this option.
19. In June 2024 Mr X employed a new care provider.
20. In June 2024 Mr X complained to the Council that it was not meeting his nigh-time care needs and requested a new social worker. The Council responded in late July. It agreed to transfer Mr X’s case to another team to review the social worker’s assessment and the issues Mr X had raised. It said it was concerned that despite everyone’s best efforts to complete an assessment and explore ways of meeting Mr X’s assessed needs it was unable to achieve a resolution. It proposed a meeting with Mr X to discuss his concerns.
21. Mr X contacted Adult Social Care in July 2024. He said his new care provider was more expensive and he did not have sufficient funds to pay this. He wanted to discuss his support at night. He said he had still not had an assessment. A social work team manager telephoned Mr X. They reiterated that the Council had assessed that Mr X could have his overnight care needs met in other ways than having a support worker overnight and said their manager had offered a meeting to discuss the issue and hopefully this could be arranged.
22. Mr X responded later that month. He said he had tried using a convene but it came off in the night leaving him soaked so he had to call 111. The care provider also contacted the Council. It said Mr X needed support overnight as they had attended that day and found him soaking wet and heavily soiled. Mr X’s GP also contacted the Council and said Mr X had longstanding problems with urinary continence. The GP said Mr X has had appropriate input from the Bladder and Bowel Service. In the circumstances extra care overnight would be appropriate due to the risk of bed sores. The Team Manager responded that at this stage the Council would not fund overnight care when it considered the need could be met with incontinence pads.
23. The Council reviewed his needs assessment and care and support plan. In the care and support plan dated late July 2024, the team manager noted that they considered Mr X’s continence could be managed by using incontinence pads which was something Mr X did not wish to consider. They suggested Mr X’s care needs could be met by live in care at a more affordable rate but this would need to be explored. They noted they had previously suggested extra care housing but Mr X did not want this as he was already living in an adapted property that met his needs.
24. The team manager noted Mr X did not want to move to extra care housing or to a residential home. They noted that if he had additional overnight support in his own home alongside what was already commissioned this would not be a fair and affordable option. The team manager noted ‘I feel that a live in care option would be the most fair and affordable however careful matching with a robust provider would be required’. To manage the risks to Mr X’s skin integrity from incontinence it noted ‘use of sensible care visits, incontinence pads, barrier creams, advice from Bladder and Bowel Service’. The plan noted Mr X required regular toileting as required and this could be met through personal care twice a day, enablers using the hoist as necessary and incontinence pads overnight.
25. The team manager spoke with Mr X in late July 2024. They asked Mr X to attend a meeting and noted he refused. They noted Mr X felt he had a right to overnight care to provide dignity with his continence. The team manager noted they felt this need could be met with incontinence pads and well timed early/late care visits. Mr X emailed the team manager following this. He said he did not want live-in care as he had a one bedroom flat and would get no privacy. In a further email Mr X said he did not want to change care providers and wanted 11-hour days and 9 hour sleep in nights. He said live in care would be an option, if provided by the current agency.
26. The team manager told Mr X they were looking to meet with his GP and the continence clinic which Mr X agreed to. Mr X also asked about meeting with the team manager and their boss. The team manager advised Mr X had refused the proposed meeting with them and their manager. They proposed continuing to communicate via telephone and email as they acknowledged Mr X found meetings stressful.
27. In late August the team manager met with Mr X’s GP, Mr X and his care worker. The Bladder and Bowel Service did not attend. The GP advised that continence pads managed overnight urinary incontinence but did not afford the skin protection from bowel incontinence which could lead to skin integrity problems. Mr X reported pads did not work for him and were not dignified. The notes record Mr X would call 111 or his personal assistants if he had bowel incontinence and they did respond. The team manager asked the care worker to keep track of how frequently this happened. They also said they would contact 111 for information.
28. Mr X complained again in September 2024 that the Council was not meeting his overnight needs. He complained the Council was only concerned about funding and not meeting his needs.
29. In mid September 2024 the care provider contacted the team manager. They reported both Mr X’s top and bottom sheets were wet that morning, and this was an ongoing problem. The team manager responded that managing Mr X’s overnight continence was ongoing without conclusion. They said Mr X had a direct payment to meet his assessed care and support needs and they had advised Mr X to arrange his final care visit as late as possible and his first as early as possible to assist with the situation. They also asked to know the frequency Mr X was requesting support out of hours. The care provider responded that it did 12 hour shifts supporting Mr X of 8-8 or 9-9 and so could not do a late call. They said they were called most nights, normally in the early hours of the morning.
30. In a further email the care provider reported Mr X was constantly wet in the mornings and his bottom was burnt. The manager responded that Mr X employed the care provider using direct payments. The manager did not consider the current model of care was supporting Mr X to manage his continence and that fuelling the conversation towards the need for overnight care was unhelpful as it was not an assessed need at present. Even if it was an assessed need, they said it could not be supported without providing waking night staff every night as there was nowhere in his house for staff to sleep. This would mean a package of 24 hour 1:1 support which would need considering from a fair and affordable angle. The manager asked the care provider and Mr X to look at how his hours could be used. They said Mr X was due to be allocated a worker in late October for a full review.
31. The care provider responded that Mr X required someone with him all day to support with the toilet, food and drinks. They said they took the package on as 12 hour days which is what they continued to do.
32. The team manager suggested to Mr X that he split his shift into two shifts with some independent time in between. Mr X said this would be of no help
33. In September, the team manager contacted the Bladder and Bowel Service so they could be clear on what provision could meet Mr X’s needs.
34. The Council responded to Mr X’s complaint in October 2024. It said it had offered a meeting but Mr X had declined this and suggested this was the best way of agreeing a way forward. It said it had tried to arrange a multi disciplinary meeting with Mr X, his care provider and the Bladder and Bowel Service but he, the carers and Bladder and Bowel Service had failed to turn up so little progress was made. It said the team manager was still following this up with the Bladder and Bowel Service. It said Mr X had the flexibility to commission care to meet his needs and reiterated if Mr X was assessed as needing 24 hour care it would need to consider the available options to support him; particularly the suitability of his property for live in or night time care. It believed the MDT approach taken by the team manager was appropriate.
35. On the same day, the team manager spoke with a nurse from the Bladder and Bowel Service who advised Mr X had tried various pads which had either not worked or not been accepted by Mr X. He used a urine bottle in the day which he needed support with and they had trialled a convene sheath system which was not successful despite trying six different types and sizes. The nurse said Mr X had limited use of his arms so needed one-to-one support during the day to use a bottle during all waking hours or he needed to be advised to use pads to meet his needs between support times. They noted that at night he wanted someone around to assist with the bottle. The manager considered Mr X’s overnight bladder management could be met using pads and well timed care visits but Mr X did not accept this.
36. The nurse said Mr X could not manage his bowel continence independently during the day or night. This frequently happened in the evening when he was most relaxed. He had called out the out of hours nursing service for support 11 times in four months. He had also called out his care workers. The team manager noted it would be helpful to have timings that Mr X had his bowel movements to see if there was a pattern to inform care visits.
37. In October 2024 Mr X said he no longer wanted to work with the team manager and the case was awaiting allocation to a social worker for an assessment.

Findings

38. It is not the role of the Ombudsman to decide what care and support a person needs. That is the Council’s role. Our role is to consider if the Council has followed the correct process in establishing Mr X’s needs, in line with the law and statutory guidance.
39. The Council assessed Mr X’s needs and recognised he needed support with managing his continence at night. It consulted Mr X’s GP and the Bladder and Bowel Service. There was some delay in the Council getting input from the Bladder and Bowel Service, but this was not as a result of fault by the Council. It also met with Mr X and his care workers and has continued to consider additional information about Mr X’s needs as it has received this. It has also requested specific information from the care provider regarding how often, and when, it finds Mr X soiled or wet though I have seen no evidence it has received this.
40. The Council has responded to Mr X’s complaints and proposed a multi-disciplinary approach to address Mr X’s needs. The complaint response to Mr X was inaccurate in that it said that Mr X and his care worker did not attend a meeting with the team manager when the records show Mr X and his care worker participated, although the Bladder and Bowel Service did not attend. However, this did not cause a significant injustice.
41. In deciding how to meet Mr X’s needs the Council can consider cost as a relevant factor and it is not fault to do so. The Council has suggested different ways in which Mr X’s needs could be met including a move to extra care housing, the use of incontinence products and that Mr X could use his direct payments more flexibly to meet his needs. It was not fault for the Council to suggest different ways in which Mr X’s need to manage his overnight continence could be met, although Mr X disagrees with the suggestions. It recognises live in care may be an option but that Mr X’s current accommodation is not suitable for this. There is no evidence of fault in the way the Council assessed Mr X’s needs or the level of support he requires.
42. The Council offered to reassess Mr X in late 2024. In doing so, it is for the Council to determine what support to provide in line with Mr X’s needs as assessed at the time.

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Final decision

43. I have completed my investigation. On the evidence considered the Council was not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman