London Borough of Croydon (23 014 682)
The Ombudsman's final decision:
Summary: Miss X complained about the Council’s actions relating to the care of a late family member, Mr Y. We found fault because of poor communication from the Council and inadequate record keeping by a provider working on its behalf. We also found fault because the Council took too long to complete assessments for both Mr Y and Miss X, which led to linked delays in organising direct payments for Mr Y’s care. This caused Miss X avoidable frustration and distress. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Miss X and provide reminders to relevant officers.
The complaint
- Miss X complains about the Council’s actions in relation to her late family member, Mr Y’s, care. She complains specifically that:
- the care delivered to Mr Y through the reablement package was below standard;
- the Council ignored her requests for support;
- the Council ignored her requests to set up direct payments and a virtual wallet;
- delays with setting up direct payments led to a delay in being able to organise appropriate private care for Mr Y;
- the Council initially refused to pay for respite care for Mr Y; and
- overall communication was poor.
- Miss X says this has caused her considerable frustration and distress and it impacted the quality of care Mr Y received.
The Ombudsman’s role and powers
- 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)
- 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)
- When considering complaints, if there is a conflict of evidence, 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.
- 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)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
What I have and have not investigated
- My investigation begins when Mr Y’s six-week reablement care package began in September 2023. My investigation ends when Miss X advised the Council she did not wish for it to provide any further support to the family in March 2024.
How I considered this complaint
- I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
- Miss X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.
What I found
Relevant information, policy and guidance
Lasting Power of Attorney
- The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
Fundamental standards of care
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include good governance (regulation 17). Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.
Intermediate Care and Reablement
- 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.
- 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.
Assessment
- 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.
- 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.
Carer’s Assessment
- Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
- As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014 (CSSG))
Care Plan
- 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.
Charging for social care services: the power to charge
- A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment.
Financial assessment
- Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
- People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home.
Personal Budgets
- Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
Direct payments
- 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.
- Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
- After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
- One of the ways a personal budget can be administered is as a direct payment. (Care and Support Statutory Guidance 2014)
What happened
- I have set out below a summary of the key events. This is not meant to show everything that happened.
- Miss X is representing a late family member, Mr Y, in this complaint. Mr Y had a range of health needs, some of which were age related. Miss X had LPA for finances and health and welfare for Mr Y.
- At the end of July 2023, Mr Y was admitted to hospital with a range of medical issues. At the time of his admission, he was able to mobilise using a walking frame and with the help of one carer.
- Before Mr Y’s discharge from hospital on 25 September 2023, the hospital made a referral to the Council for a package of reablement care. Mr Y was by now no longer able to mobilise without the use of a hoist and help from two carers.
- The Council organised a package of reablement care to begin on the day Mr Y was discharged. It was made up of two carers visiting four times per day, visits lasting between 30 and 45 minutes each. Visits should include general care such as washing, dressing, prompting for medication, personal care tasks and light cleaning.
- On 26 September 2023, internal emails show the Council was due to allocate the case to a social worker that day but had not done so as it did not have capacity. It hoped to allocate Mr Y a social worker over the next few days.
- The next day, a health and wellbeing officer working on behalf of the Council, Officer A, assessed Mr Y at home. Miss X was present. Officer A sent feedback and details of the visit to the care company who was delivering Mr Y’s reablement care package, Company A.
October 2023
- On 5 October 2023, Miss X contacted Officer A twice to report her concerns about some of the care being delivered to Mr Y by Company A, and the timings of its visits. Miss X said some visits were either too far apart or too close together and that as Mr Y had not received appropriate and timely personal care, he had been sat in urine and developed a pressure sore. Officer A emailed Company A after both visits to voice the Council’s concerns.
- The next day Miss X again contacted Officer A to report further concerns with Company A’s care. She stated she did not wish to use Company A any longer.
- On 8 October 2023, Miss X asked the Council’s finance team to arrange for Mr Y to have direct payments (DPs). She wanted to organise her own care package for him as she remained unhappy with the standard of care being delivered to Mr Y. Miss X made it clear she was finding the situation very challenging.
- The Council received a call from a local charity which was known to Miss X on 10 October 2023. This explained Miss X had been in contact with it and repeated how she was finding it very difficult to cope with the situation regarding Mr Y’s needs and the standard of care being delivered by Company A.
- The next day, the Council requested a change of care company via its brokerage team.
- On 12 October 2023, and after Miss X had provided updated information about Mr Y’s finances, the Council did a financial re-assessment. This calculated Mr Y was now under the threshold for financial assistance at this pre-assessment stage.
- Miss X contacted Officer A on 16 October 2023 to advise of more issues with Company A and that she felt she could not cope with the situation. Officer A shared this with various officers in the Council’s social care department.
- On the same day, a social worker from the Council, Officer B, confirmed to Officer A that a new care provider, Company B, would begin to deliver care the next day. She advised she had asked the DPs team to contact Miss X.
- On 18 October 2023, Officer A met online with Miss X and her advocate, Ms Z. Miss X was pleased with the new care company. The length of Mr Y’s daily visits was going to be increased, beginning 26 October 2023. Miss X was advised that DPs would be set up when Mr Y’s reablement package ended on 6 November 2023.
- Miss X contacted the Council again on 25 October 2023 to report concerns over the standard of care Company B was delivering to Mr Y.
- On the same day, Officer A emailed the social care department to ask what the next steps were to organise care for Mr Y as his reablement package ended soon. She asked whether she needed to create an adult support plan for him and present it to panel, or how else the procedure worked.
- On 26 October 2023, Miss X emailed various contacts at the Council. Miss X said she:
- was increasingly concerned with Company B’s care and listed various issues;
- was worried there were still no DPs in place;
- was concerned she would have to pay for carers from Mr Y’s funds when the reablement period ended;
- was concerned that despite speaking to social worker, Officer B, in mid-October and Mr Y’s financial assessment having been completed before this, nothing had yet been set up; and
- was aware her advocate, Ms Z, had tried to chase matters with Officer B that week but without success.
- Miss X emailed Company B on the same day to report multiple concerns she had with the standard of care being delivered and question whether the concerns she had already raised with it were being dealt with.
- On 27 October 2023, email communication between Officer A and Ms Z discussed the DP issue. Ms Z said she had communicated with the finance team and Officer B in the previous few days, about getting DPs set up. Officer B had not come back to her as promised.
- On the same day, Company B gave notice to terminate its involvement with Mr Y’s reablement package. It said that due to friction between carers and Miss X and disagreements over how care should be delivered, it no longer felt able to provide a service.
- On 30 October 2023, Company B stopped providing care to Mr Y. A third provider, Company C, began the next day.
- On the same day, Miss X emailed the Council’s finance team to ask for contact details of who she could email to get the DPs and a ‘virtual wallet’ set up. The finance team provided a link to an online portal for Miss X to access.
- Miss X then emailed both a DP email address for the Council and a general social care email address. She outlined the chases she had already made and again asked for an urgent response in getting DPs set up for Mr Y. She said she was unwilling to continue with any of the care providers organised and used by the Council.
November 2023
- On 1 November 2023, the Council’s brokerage team emailed Company C to confirm it should continue to provide care to Mr Y after the reablement period ended on 6 November, but under the remit of domiciliary care.
- On 6 November 2023, Company C gave notice that it would be ending its involvement with Mr Y’s care. It said this was due to his behaviour.
- On 7 November 2023, a different social worker from the Council, Officer C, became involved. Officer C asked for assistance in organising another care provider for Mr Y to begin when Company C ended.
- The new provider, Company D, called Miss X to introduce themselves on 10 November 2023.
- Miss X contacted Officer C on 15 November 2023. She was unhappy the DPs had still not been set up. Officer C confirmed Mr Y’s case had not yet been transferred to the relevant social care team but that the team would be arranging DPs for Mr Y. He also advised it could be a long process to organise DPs and the Council would keep the current arrangements in place with Company D until this was sorted out. Officer C confirmed this via email to Miss X and apologised for any lack of communication.
- On 21 November 2023, Miss X emailed Officer C to advise she had still not been given a named point of contact for Mr Y’s case. She also listed numerous concerns she had with the standard of care being delivered by Company D.
- Miss X complained to the Council on 22 November 2023.
- On 24 November 2023, Company D emailed the Council to advise it was giving notice to end its involvement.
- On 25 November 2023, Miss X emailed Officer C to ask why she was still waiting for contact from the relevant social care team.
- On 28 November 2023, the Council transferred Mr Y’s case so a social worker could be allocated. Miss X advised the Council she was placing Mr Y in respite care for four weeks from 5 December 2023 and that she wanted the Council to pay for this. The Council advised Miss X that an assessment would need to be carried out before anything like this could be agreed.
December 2023
- The Council responded to Miss X’s complaint on 4 December 2023. It listed some of the concerns Miss X had raised and advised the allocated social worker would discuss DPs with her. The Council said there was a process for funded respite care and encouraged Miss X to discuss this with the allocated social worker before taking any action. It confirmed it would not be able to financially support any respite placement as a Care Act assessment needed to be completed to identify Mr Y’s eligible care and support needs as per the Care Act 2014.
- The Council apologised and signposted Miss X to the Ombudsman.
- The Council allocated Mr Y a social worker on the same day.
- Mr Y spent four weeks in respite care through December 2023 and into January 2024.
- Mr Y’s allocated social worker visited him in the respite home on 11 December 2023.
2024
- On 29 January 2024, the Council agreed DPs of £925 per week towards Mr Y’s care with a start date of 14 February 2024, initially using the care agency who were at that time delivering care to Mr Y now he was back at home, Company E.
- On 5 February 2024, Miss X emailed the Council to advise she would reluctantly allow Company E to continue delivering care for Mr Y until he went back into respite care for two weeks whilst she was unavailable. She said Mr Y would then be cared for by carers she had organised and paid for via DPs.
- The Council carried out a carer’s assessment on Miss X and completed a Care Act assessment and care plan for Mr Y on 6 February 2024.
- Mr Y returned to respite care for two weeks between 11 and 25 February 2024.
- The Council made a referral to the relevant department to get support for Miss X to set up her own personal assistants (for Mr Y) on 22 February 2024.
- On 15 March 2023, the Council advised Miss X that her own carers could begin delivering care to Mr Y from 18 March 2024.
- At the end of March 2024, Miss X advised the Council she no longer wished to use its services for Mr Y’s care. She listed various reasons for this including concerns over the rate of hourly pay she could offer the carers and the difficulties and stress of managing the DPs herself.
Analysis
Background information
- Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment.
- However, if we consider the person who has complained to us has been adversely affected by the impact of that poor care on their relative, we may make a recommendation to remedy their own distress.
Reablement care
- Miss X complains the care delivered to Mr Y through the reablement package was below standard.
- In response to my enquiries, the Council said:
- it had been proactive in responding to Miss X’s concerns by changing provider from Company A to Company B;
- when Companies B and C had given notice to end their involvement, it acted swiftly to organise a new provider to deliver Mr Y’s care; and
- Officer A had been in regular contact with and followed up on Miss X’s concerns during the reablement period.
- I agree with all of these statements. I am satisfied, in the circumstances of this complaint, the Council acted swiftly to organise new providers when issues arose.
- In terms of the care delivered by Companies A, B and C during the reablement period, a difference of opinion is not evidence of fault.
- I have reviewed the daily care logs for the reablement period. It is clear that four visits were carried out each day to deliver care to Mr Y, with the exception of one day in the six-week period where three visits were made.
- There is clear evidence of care being delivered to Mr Y during these visits, broadly in line with what is set out in his reablement plan. On this basis and on the balance of probabilities, I am satisfied it is more likely than not that an appropriate level of care in line with that set out in the reablement plan was delivered to Mr Y for the majority of the period.
- In terms of Company C, its daily care notes were all handwritten. Handwriting on multiple entries was too difficult to read to properly understand what care had been delivered to Mr Y on that particular visit. On some visits, only the start time was recorded so it is impossible to know how long Mr Y received care against what was set out in his plan.
- The Fundamental Standards of Care state there should be accurate and contemporaneous records for each user. The lack of clear, easy-to-read notes and accurate timings is fault. I cannot remedy any injustice caused to Mr Y by this. There was an injustice to Miss X in that although the visits took place, there is an uncertainty as to what care was delivered on those individual visits which would have caused her avoidable distress and frustration.
Miss X’s requests for support
- Miss X complains her requests for support were ignored.
- The Care Act 2014 recognises the equal importance of supporting carers and the people they care for. Whilst there is no specific timeline for carrying out assessments, this must be done over a suitable and reasonable timescale and consider the urgency of any needs.
- I acknowledge there was support available to Miss X in terms of the Council providing reablement care to Mr Y, funding respite care for him, in the assistance offered by a member of the finance team and in particular, Officer A. I am satisfied, however, that in the circumstances of this complaint, the Council should and could have been more active in considering what support it could offer Miss X herself.
- The Council was aware from early-October 2023 that Miss X was finding the situation dealing with Mr Y’s care package very challenging. It was also aware of the effect Miss X said this was having on her mental health. This was further evidenced by Miss X involving an advocate to support her, Ms Z.
- Despite all of this, the Council did not complete a carer’s assessment on Miss X until the beginning of February 2024, four months after it became aware of her difficulties.
- The Council had a duty under the CSSG to carry out a carer’s assessment. I am satisfied, in the circumstances of this complaint, the Council was too slow to complete this despite it being very clear Miss X was distressed and her mental health was suffering. Not completing the assessment in a timely manner was fault. It meant that Miss X lost out on the opportunity to have her own support needs assessed much earlier and would have caused her avoidable distress and frustration. I have made a recommendation below to remedy this injustice.
Requests to set up direct payments and linked delays
- Miss X complains the Council ignored her requests to set up DPs or a virtual wallet and this led to delays in organising them which led to a delay in being able to organise her own carers for Mr Y.
- Miss X first asked the Council about DPs on 8 October 2023. Direct payments were not approved until the end of January 2024 with a start date of mid-February 2024.
- Evidence shows Miss X and Ms Z’s consistent requests to the Council to get the DP process underway. Evidence also shows various assurances from the Council that someone would be in touch or someone would discuss DPs with her.
- As part of my enquiries, I asked the Council to explain any delay in setting up DPs. Whilst the Council listed various events from the chronology of the case, I am satisfied it has not explained the delay in setting up DPs.
- The Care Act 2014 sets out that councils should carry out an assessment for any adult with an appearance of need for care and support. This should be carried out over a suitable and reasonable timescale. A financial assessment should also be completed.
- If an eligible need for help is identified, councils then have a legal responsibility to provide a care and support plan, involving any carers in the process. The support plan should include a personal budget which should explain how the money allocated will meet the identified needs. Following on from this, councils can organise DPs. Councils must consider requests for DPs at any time and have clear and quick procedures in place to respond to requests.
- The Council did not allocate a social worker to Mr Y’s case until 10 weeks after his discharge from hospital and around four weeks after his reablement care had ended. Evidence shows the Council intended to allocate the case a few days after Mr Y’s discharge from hospital and had not done this straight away due to ‘capacity issues’. This delay in allocating a social worker meant that although Mr Y’s interim financial assessment had been done, very little else happened in terms of care and support assessment and planning until the beginning of December 2023, when a named social worker was allocated to Mr Y’s case.
- Multiple requests for DPs to be organised therefore led to nothing as other elements of the care assessment and planning process were not underway. I have seen no evidence of any information about DPs and how they work being shared with Miss X or Ms Z.
- I acknowledge that the Council continued to offer and provide the same level of care to Mr Y after the reablement period had officially ended, free of charge to him and subsequently agreed to pay for respite care.
- However, in the circumstances of this complaint, I am satisfied the Council should have acted more quickly to begin the care and support assessment process by allocating a social worker to his case which would then enable the rest of the process to follow. This lack of timely action meant that DPs were then not set up until a significant time later than they had first been requested as the rest of the process had not been put in place. This is fault.
- As well as delays in other parts of the overall process, it meant that Mr Y’s needs were not assessed as soon as they might have been which delayed the opportunity for the family to know what his eligible care and support needs were for a significant time. I cannot now remedy any injustice to Mr Y. There was an injustice to Miss X in that her multiple requests did not lead to DPs being set up in a timely manner. This then created an avoidable delay in her ability to organise carers of her own choosing, despite her attempts to organise this very early on in the process. I have made a recommendation below to remedy this injustice.
Respite care
- Miss X complains the Council initially refused to pay for respite care for Mr Y.
- Shortly after when the reablement care package was due to end, Miss X told the Council she was placing Mr Y in respite care for four weeks. Whilst this was her choice to do so, the Council was clear in its complaint response to her that it would not be able to financially support any respite placement. It advised it would need to assess Mr Y’s eligible care and support needs. I am satisfied the Council was correct in its stance that it had no obligation to pay for respite costs for Mr Y.
- In response to my enquiries, the Council clarified it had considered the costs for respite care in a panel meeting at the end of February 2024. The panel agreed to retrospectively fund costs for the four-week respite stay.
- Evidence also shows the Council agreed to pay for Mr Y’s second period of respite care in February 2024, with Miss X contributing to costs through a third-party top up.
- I am satisfied there is no fault in the Council’s actions in initially refusing to pay for respite care.
Overall communication
- Miss X complains overall communication from the Council was poor.
- In response to my enquiries, the Council said officers had done their best to maintain regular contact with Miss X, as evidenced by case notes of emails and telephone calls. The Council did acknowledge there were some slight delays in responding to emails and telephone calls from when reablement care had been due to end and Mr Y’s case was officially moved to the social care team for his area in December of 2023.
- I have viewed the evidence on file. This shows communication between Officer A and Miss X was timely and appropriate, particularly around Miss X’s unhappiness with the standard of care delivered to Mr Y.
- The Council has already acknowledged delays in communication Miss X experienced when the reablement period ended. I agree with this. Miss X made multiple attempts to find out who Mr Y’s social worker was but received no definitive answer so had to chase again.
- In terms of communication regarding DPs and Miss X and Ms Z’s multiple requests to various people to try and organise this, I am satisfied communication was not as good as it could or should have been. The Council should have been more proactive in advising Miss X what the next steps would be and providing her with relevant information, in a timely manner.
- I am also satisfied that in the circumstances of this complaint, overall there was a lack of oversight on the Council’s part. Although Officer A tried to assist Miss X, she was not a social worker and did not have the necessary knowledge on how certain processes worked. Despite the social care department being aware of the case, it was still not always clear on who should be doing what and when it should be happening.
- This lack of timely communication and oversight is fault. It would have caused distress and frustration to Miss X. I have made a recommendation below to remedy this injustice.
Agreed action
- To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
- apologise to Miss X for the injustice caused by the identified fault;
- make a symbolic payment of £250 to Miss X to remedy the distress and uncertainty caused by the identified fault;
- remind relevant officers and managers of the Council’s duties linked to care planning in line with the Care Act 2014 and CSSG guidance, as outlined above;
- consider how it can allocate social workers in a timely manner to ensure continuity of service and communication so that care planning is not delayed; and
- remind relevant officers and managers of the need for clear and easy-to-read care notes to be completed by providers working on behalf of the Council.
- The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
- The Council should provide us with evidence it has complied with the above actions.
Final decision
- I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman