Summary: The Council was at fault for the way it delivered care to
Mr B for long periods between March and November 2021. Care visits were regularly too early, delayed or missed altogether, and – despite the Council’s best efforts – for two months Mr B had no weekend care at all. Because the lack of alternatives, the Council also left Mr B in a position where he felt he had to accept a direct payment. It has agreed to apologise and to make a symbolic payment to recognise
Mr B’s injustice.

The complaint

1. The complainant, whom I refer to as Mr B, has autism and chronic fatigue syndrome. In early 2021, he also suffered a stroke. He complains about how the Council managed the delivery of his care and support after he left hospital.
2. He specifically complains that:
1. The first care agency to deliver his care failed to provide an acceptable service. It regularly failed to tell him when carers would visit or did not send them at all.
2. After the first agency withdrew, the Council replaced it with a different agency which had staff more experienced in dealing with autistic customers. However, at the last minute the Council told him there would be a two-week gap between the old agency ending its support and the new agency starting. The Council provided no help or advice to him about this.
3. The problems with his care continued once the new agency started. It did not have enough carers, and this meant he still did not receive the agreed care. In the end, the Council started providing him with direct payments so he could arrange his own care. He did not want this but felt he had no alternative. This matter caused him stress.
3. An advocate, whom I refer to as Mr C, represents Mr B in making his complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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 considered information from Mr C and the Council.
8. I considered relevant parts of the Care Act 2014 and the accompanying care and support statutory guidance.
9. I considered the Ombudsman’s guidance on remedies.
10. Mr C 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

Complaint A: The first care agency

What should have happened?

11. Section 18 of the Care Act 2014 says that, if a council has assessed someone and decided they have eligible care and support needs, it must meet those needs.
12. When a council commissions another organisation to provide services on its behalf it remains responsible for those services. It also remains responsible for the actions of the organisation providing them.
13. The Council’s support plan for Mr B, written in March 2021, said he needed “continuity and consistency”. It said he would receive a rota which set out the times of his three visits each day, and the names of the carers. It said he would be told about any changes with 24 hours’ notice.
14. The support plan also said Mr B wanted a late ‘bedtime’ visit as he did not want to go to bed shortly after his evening meal.

What happened?

15. The first care agency commissioned by the Council (‘Silver Stars’) started looking after Mr B in mid-March 2021. It visited three times each day, and its records suggest the visits were intended to take place at 08:30 (‘morning’), 17:00 (‘teatime’) and 20:30 (‘bedtime’).
16. Silver Stars provided care to Mr B until late May. In that period:
• Mr B referred to a ‘rota’ on two occasions during conversations with carers.
• On a further two occasions, a carer turned up whom Mr B had not been expecting.
• On average, five morning or teatime visits a week failed to start within half an hour of the scheduled time, without Mr B being told in advance.
• On one occasion, a carer turned up on time for a bedtime visit and Mr B told her the visit was too early.
• Six visits were missed with no explanation (and without Mr B being told in advance).

My findings

17. Although I have not seen any copies of Silver Stars’ rotas for its visits to Mr B, its records suggest it had them and Mr B knew which carer to expect in advance. This was in line with his support plan.
18. Although Silver Stars did send carers to Mr B who were not on the rota, this happened very rarely – twice in over 200 visits. This did not cause Mr B a significant injustice and I will not comment further.
19. Silver Stars failed to complete six visits over an 11-week period. Although this was only a small minority of visits, Mr B was not told about the missed visits in advance, and I have seen no explanation for them. This was fault by the Council, which remained responsible for Mr B’s care even though it had hired Silver Stars to deliver it.
20. After the first fortnight, Mr B’s bedtime visits were almost always closer to 21:30 than the scheduled 20:30. But he wanted later visits, so he suffered no injustice and I will not comment further.
21. However, even ignoring the bedtime visits, Silver Stars’ morning and teatime visits still regularly failed to start within half an hour of the scheduled time. As
    Mr B was not told about premature or delayed visits in advance, I have found further fault with the Council.

Complaint B: The transfer between care agencies

What happened?

22. At the end of April 2021, Silver Stars told the Council that it intended to withdraw its support. It said it would stop visiting Mr B at the end of May.
23. Mr B had asked the Council to speak to one of his friends about his care and support. The Council contacted his friend and told her about Silver Stars ending its support.
24. The Council contacted 10 agencies and asked them to deliver Mr B’s care. In mid-May one of these agencies (‘You First’) agreed to assess Mr B. The Council asked it to speak to Mr B’s friend to arrange the assessment.
25. After its assessment You First told the Council that it could deliver all of Mr B’s care, but not for around three weeks. Mr B needed other support until then.
26. The Council spoke to Mr B about this, but he asked it to communicate through his friend, which it did. She said she would ask if anyone in the community could provide some of his care in the short-term until You First could start properly. She found two private carers the day after – the same day Silver Stars’ notice period ended.

My findings

27. The Council’s plan, which Mr B agreed with, was that a care agency would deliver his care. This was originally Silver Stars.
28. When Silver Stars said it would withdraw, the Council found another agency (You First) within a reasonable time. You First then told the Council there would be delays to its delivery of Mr B’s care. But it only did this two days before
    Silver Stars’ care ended.
29. Although this was short notice, the Council – with significant help from Mr B’s friend – arranged short-term care to bridge the gap in provision. This meant it successfully met Mr B’s needs.
30. The Council did not tell Mr B (or his friend) about the temporary changes to his care in good time; however, it only found out two days before. It told Mr B’s friend as soon as it knew.
31. The Council did not properly speak to Mr B about any of the changes to his care from late April to early June. But it discussed them with his friend. Mr B had asked the Council to do this, and he confirmed this preference just before the end of Silver Stars’ notice period.
32. I imagine the repeated (and short-notice) changes to Mr B’s care were upsetting and stressful for him, given his need for ‘consistency and continuity’.
33. However, for the reasons given above, I have found no fault with the Council’s communication with Mr B over this period. Its actions, in admittedly difficult circumstances, were reasonable.

Complaint C: The second care agency, and subsequent direct payments

What should have happened?

34. According to the care and support statutory guidance, councils should put people in control of their care. People must be genuinely influential in their own care planning.
35. Every care and support plan should be proportionate to the person’s needs and should reflect their wishes and preferences.
36. Direct payments are the Government’s preferred way of delivering personalised care and support. They provide independence, choice and control to people.
37. Councils must only provide direct payments if people ask for them. They must not force people to take direct payments against their will. Direct payments should not be the only way people can receive personalised care and support.

What happened?

38. Shortly after starting its care of Mr B at the end of May 2021, You First contacted the Council. It said it could not deliver all Mr B’s care for several days in June. At that point, Mr B’s friend was helping to find carers to deliver any missed care.
39. You First also said Mr B wanted his last visit of the day to be from 9:30 to
    10:30 pm (which he had not mentioned before it agreed to support him). It said its carers only worked until 10 pm. It said it would continue to do visits before 10 pm until the Council could find an alternative.
40. The Council spoke to Mr B’s friend, and said it was unlikely any of its contracted providers would deliver care past 10 pm. It gave her a list of ‘micro providers’ – a term used locally to refer to small, independent, community-based care and support services.
41. A few days later Mr B’s friend told the Council that she had struggled to arrange any formal care for You First’s missed visits. She said she had had to ask some of Mr B’s neighbours to be ‘on call’ in case he needed help.
42. In early July, You First told the Council that it would have to further reduce its support.
43. At that point the NHS was considering a residential rehabilitation centre for Mr B. The Council discussed this regularly with the NHS.
44. Shortly after, You First gave notice that it would be ending its support. It said
    Mr B had been unacceptably rude to a carer. The Council began searching for alternative providers.
45. A week later Mr B’s friend confirmed that she had been unable to find a micro provider (or anyone else) to help with Mr B’s care. She said You First had only done two-thirds of its visits that week, and she could not find anyone else to do the rest.
46. By that point the Council had asked 21 different agencies to deliver Mr B’s care, without success.
47. By early August, no new provider was in place and residential rehabilitation was not immediately available. Because of this, the Council decided it could only meet Mr B’s needs with a temporary place in a care home. It offered Mr B this. He refused.
48. By late August, Mr B, or one of his neighbours, had found a self-employed carer for weekdays. However, neither the Council nor anyone else found a carer to deliver Mr B’s weekend care until December.
49. Since then, Mr B has been happy with his care and support arrangements.

My findings

50. The Council was responsible for meeting Mr B’s assessed needs, and it decided You First would do so on its behalf. But You First regularly failed to deliver Mr B’s care.
51. Although Mr B’s friend helped by finding alternative carers, she reported being unable to cover all of Mr B’s visits, particularly towards the end of You First’s involvement.
52. This means Mr B did not receive all the care he needed before You First withdrew in mid-August 2021. Although it was You First’s failure to deliver the care, the Council remained responsible, and it was at fault for this.
53. After You First withdrew, Mr B did not receive any care for a short while. He then only received weekday care for around three months.
54. Although the Council offered Mr B a temporary place in a care home, this was neither proportionate to his needs nor something he wanted. Because of this, the offer was not consistent with the statutory guidance.
55. Mr B wanted care delivered to him at home, and the Council agreed to this. It then went to significant efforts to try and secure that care. However, there was nothing available for Mr B at that time.
56. The Council did not create the environment which led to a local shortage of carers, and it was not to blame for the lack of options for Mr B. Nevertheless, it had a duty to meet his eligible needs in full, and, despite its best efforts, it could not do so between mid-August and December 2021.
57. This was fault by the Council.
58. The statutory guidance says direct payments should not be the only way people can receive personalised care and support. It also says councils must only provide direct payments if people ask for them. But Mr B neither asked for direct payments nor had any alternatives available to him (apart from the unwanted offer of a care home place).
59. Again, this issue was caused by the lack of home care options for Mr B, and there was little the Council could do. But councils must deliver services in line with the statutory guidance, and on this point the Council did not do so. It was also at fault for this.

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Agreed actions

60. Within six weeks, the Council has agreed to:
• Write to Mr B and apologise for the areas of fault identified in this decision statement.
• Make a payment of £1,000 to Mr B to recognise his avoidable distress arising from not receiving a full care package for long periods in 2021.
• Provide us with evidence it has completed these actions.

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Final decision

61. The Council was at fault for the way it arranged care for Mr B between March and November 2021. The agreed actions remedy Mr B’s injustice.

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Investigator's decision on behalf of the Ombudsman