Decision Date: 29 September 2024
Summary
This was a complaint about two aspects of a care package: that the Council had not provided adequate safeguarding attention in preventing financial abuse to a man in the context of shopping and receipts; and separately, concerning repeated cancellations of support hours by the care provider which the Council’s commissioners failed to follow up.
What happened
Mr Y, Miss X’s son had a care package which included some direct payments with which he paid Miss X for input. The Council also provided him with a commissioned care package of 40 hours of one-to-one support per week from a care provider. His support took place at the day centre or via activities in the community and included transport.
Mr Y’s care plan noted he had no understanding of finances and required full support with all financial transactions. When support workers accompanied Mr Y on community outings, they brought his wallet with them, and helped him make payments and review the change received. The staff would then put the receipt in his wallet.
Mr Y visited a cinema with a support worker in April 2023. Mr Y had bought chocolate, but as the machine was out of order, he had not received a receipt.
As this was not the first instance of such an occurrence, whereby small sums of money had gone unaccounted for without a receipt, Miss X raised concerns and the Council required the care provider to conduct a safeguarding enquiry.
In June 2023, the care provider responded to the Council’s request, confirming that they were investigating Miss X’s concern and that during this time they had suspended a staff member. The Council wrote back, content that the risk had been minimised. It did remain concerned, however, that incidents before the cinema outing had not been explored, nor had the care provider provided the outcome of the enquiry to Miss X or itself.
Ultimately the Council conducted its own safeguarding enquiry. The Council found that Mr Y did not have a finance plan over recent years, but that the care provider had taken the necessary actions regarding the staff member and had taken additional steps to put risk reducing policies in place. The care provider also said it would refund the cost of the chocolate and work to establish a financial plan for Mr Y.
The refund was never received by Miss X. However, the Council closed the case, stating the outcome was that the risk had been adequately reduced.
The care provider provided a written conclusion of the findings of the investigation to Miss X, stating that the staff member in question would no longer support Mr Y and that a finance plan outlining how Mr Y’s expenditure was documented would be created and given to the family to approve.
A visit to the care provider by “an officer” [the report did not specify what kind of officer] in December 2023 also confirmed that Mr Y had a finance plan on record.
The Council received a complaint from Miss X regarding the outcome of the safeguarding investigation. It responded that it had considered the relevant information and was convinced that the care provider had completed the necessary actions.
However, Miss X persisted in her concern regarding the lack of a finance plan for Mr Y, whether that was one at all or an adequate one, and the Council finally responded in February 2024. Its position was that when Mr Y was last being reviewed in September 2023, it would have been brought to the attention of the social workers if he required any additional support regarding finance. At this stage during the review, the requirement had not been identified, it said, so the social worker was effectively relying on Miss X, as Mr Y’s appointee, to raise any concerns (which Miss X did). Upon recognising there was still no finance plan, in 2024, the care provider ensured one was put in place, which the Council monitored.
Due to a subject access request, Miss X was able to supply finance plans that evidenced that back in 2020, My Y had had a full finance plan which ensured he would be supported to give the right amount of money to the cashier, as well as receive and review change with the help of the staff, and to put the receipt into his wallet. [The report does not state whether this was part of the formal Care Act plan or the provider’s own plan for delivering that care plan….]
The LGSCO report [inexplicably going back in time without explaining why or whether the inconsistency was probed] says that the care provider had reviewed ‘the plan’ in June 2023 and again in January 2024 to make it more explicit that if a receipt was unavailable, to be noted in the communications book was the item purchased, its cost, and, where it was bought.
Separately, in February 2023, Mr Y’s sister communicated with the Council that there had been multiple instances whereby Mr Y’s support had been cancelled by the care provider because they were short staffed. This often happened at the last minute. In addition, Miss X also stated that she would not provide cover for the care provider when support had been cancelled as it disturbed her routine as well as Mr Y’s.
As a result, in March 2023 the Council’s Quality Monitoring Team (“the Team”) went to the care provider to enquire about the cancelled hours. The Team requested the details of all cancellations that occurred within the last three months, informed the care provider that they could utilise agency staff if need be, and that they needed to work towards reducing future cancellations by making contingency plans for low staffing.
However, in May 2023 and June 2023, the care provider told Miss X that there were a total of six further dates where they were unable to provide to Mr Y.
The Team made another visit to the care provider and found that they were using agency and bank staff if they were required and that their delivery of service was better.
In September 2023, the care provider notified Miss X of the closure of the day centre in November 2023 due to financial difficulties. Mr Y’s Council worker reviewed his support plan and found that there were still cancellations of his hours of support. The worker requested the care provider to inform Miss X when there were capacity issues.
The Council wrote to Miss X in October 2023 regarding the day centre’s closing, assuring her that they would focus on finding an alternative arrangement for Mr Y. They also informed her that they allocated a worker to support Mr Y whilst they found an alternative.
The Team also met with the care provider in October to figure out how they could satisfy their contractual obligation. It found that several key staff members were no longer employed by the organisation, so the Team requested that they investigate the possibility of redeploying staff from other areas. Later that month, the care provider contacted Miss X and informed her that it had been agreed with the Council that they would provide another six months of support.
In early November, Miss X contacted the care provider and the Council, stating that Mr Y’s support hours continued to be unmet. She enquired if Mr Y’s contracted 40 hours would be met during the six month extension and asked the Council to contact her regarding other options for Mr Y. The care provider responded that due to staff loss, agency workers were being used to cover slots, however, they were not able to meet the complex needs of some people at the day centre.
Miss X complained to the Council that it had not done its duty to find an adequate solution after her repeated statements that the care provider had cancelled sessions. This meant she was unable to have her time off as she had to cover sessions.
In December 2023, the Council responded stating that it had attempted to provide additional cover, but had been unable to do so and thus would pay Miss X for the instances where she had needed to provide cover when the care provider had cancelled at short notice.
The Council said that it had not been brought to its attention that the care provider had previously been unable to give support and that its focus remained on securing alternative support for Mr Y, rather than conducting quality investigations.
Council records evidenced that in December and January, the Council had contacted 17 potential care providers, but three of these had been refused by Miss X and the family as they were unsuitable due to the fact they were not specialists.
In February 2024, the Council said that despite the visits to the care provider, it was unaware of the additional cancellations until Miss X had raised concerns in late 2023. Thus, it had requested the care provider to inform it immediately after sessions had been cancelled. They had also contacted five autism specialist providers, but they could not provide support to Mr Y and offered direct payments to Miss X, but she refused them.
Throughout February and April 2024, there were multiple cancelled sessions. In mid-April, the care provider stopped supporting Mr Y. [Although the reason for cancellation is not specified in the report, given the six-month extension period began in October, it is likely to be that this marked the end of this extension period.]
In May 2024, the Council successfully found an alternative care provider which was contracted to give 12 hours of support to Mr Y. Pending increasing its capacity to deliver more hours, Miss X’s own paid hours of support were increased. [The report does not state whether 40 hours is still the number of hours required by the commissioned care package. However, this sentence makes clear that it is still more than 12.]
What was found
The care provider’s failure to inform the Council or Miss X following its safeguarding investigation was frustrating for Miss X and was found to be fault.
However, the LGSCO found that the Council’s own safeguarding investigation had been carried out appropriately and the concern had been appropriately addressed by the Council.
The LGSCO stated it was the care provider’s prerogative whether and how the staff member in question was disciplined. Therefore, the Council was not at fault.
The findings from the subject access request indicated that Mr Y had previously had a finance plan in 2020. This had been neglected in both the care provider’s and Council’s safeguarding investigations and it follows that staff were therefore not aware of it. This was fault.
After the safeguarding investigation, it was agreed that the care provider would implement a finance plan. This was completed; however, they did not inform Miss X, and therefore did not properly comply with the agreed recommendation that resulted from the safeguarding investigation. This was vexing for Miss X.
When the Council was initially informed of the support cancellations, the Team visited the care provider to monitor and question them. However, they did not inquire with Miss X whether there had been any subsequent cancellations (which there had been). Thus, the LGSCO found fault.
However, the Council was entitled to focus on finding alternative providers in late 2023 rather than continuing monitoring visits, as the care provider had already given notice of its closure to the Council. The LGSCO also said that the Council provided alternatives which Miss X was welcome to try. [However, the LGSCO could have gone further – when Miss X challenged the provider’s suitability as it was not held out as offering specialism in autism, the Council should have decided whether they thought that it was important to provide a specialist provider, or if they could safely conclude that the impact on the mother as a partly paid yet partly unpaid carer, was not so very great, and not a breach of the duty with regard to the size of the son’s budget.]
The LGSCO found that Mr Y did not suffer much injustice as his care needs remained met throughout the ordeal and he had the funds to pay for this. On the other hand, the cancellation of support hours meant that Miss X had to support Mr Y. This caused stress, as she was not able to take breaks from her role as carer. Accordingly, she had received some pay for the support she provided.
Within one month, the Ombudsman required the Council to apologise to Miss X for the frustration of the care provider’s failure to provide her with the findings of the safeguarding investigation and the suffering caused by the cancelled support visits and ensure that after monitoring visits the Team contacts services users to ensure that problems with care providers have been resolved.
Points to note for Councils, professionals, people using services and their carers, advocacy groups and members of the public
This report is effectively a report into service failure. With regard to cancelled hours, it shines a light on the nuance in the sector as to what amounts to a ‘quality’ issue, which may or may not be a breach of contract, as opposed to what amounts to a breach of the Council’s statutory duty to client and carer, which is the whole context for the contractual obligations imposed on a care provider, and what amounts to safeguarding (abuse or neglect).
The whole purpose of a contract as between a council with adult social services responsibility and providers working in the care sector is to ensure that the council discharges the duty to meet eligible unmet needs, if it is not wanting to provide for the service directly.
The essence of the contract is to deliver the content of the person’s care plan, which derives from a properly adequate assessment and eligibility decision. The provider is then bound in ordinary civil law terms to do what it’s agreed to do. If it can’t do that, it is in breach of contract to the council and the consequences then depend on the contract.
The breach has whatever significance the commissioning council has sought to ascribe to it in the written terms – serious breaches attract the right to regard the contract as terminated, and lesser breaches might trigger pre-determined compensation clauses to reflect that fact that the Council needs to meet the needs, even if the care provider cannot manage to do so.
This sort of contractual holding to account, however, hardly ever happens in our experience, probably because councils know that care providers cannot attract sufficient staff at the rate that the contracting council has chosen to pay; and whilst the service may have been agreed, before people’s remuneration expectations increased, no amount of punishment under the contract, or effort to ‘ramp up performance’ is likely to generate new willing staff out of nowhere, unless or until the fee being paid to the provider is raised.
That depends on central government’s own approach to funding social care, which is a political question, in the end.
In public law terms, however, a council is in breach of statutory duty when its providers’ services fail to deliver on the care plan. Here, not only was there an issue as to the delivery of the support hours, which would have been contracted for by the Council, but also the translation of needs (ie an apparent acceptance during assessment and reviews that the man needed support with the activity of engaging in financial transactions, safely), into a provider-side care plan.
We can’t explain how an officer confirmed that there WAS one in December 2023 if the provider ultimately acknowledged that there was still not one in 2024, or how nobody other than Miss X had the wit to look back to previous documentation and an era in which a proper plan had been in place and the LGSCO investigator did not enquire, but found fault on the provider’s part in that regard. We think it went further than that, we have to say.
When breach of the Care Act occurs, the result of that can range from irritation to untold harm to society, which is why there is no cause of action in compensation for it. Breach of statutory duty does not sound in damages, or negligence, as yet, even when harm is caused, in the current legal framework. Enforcing the duty via public law proceedings, or referring the illegality to the Monitoring Officer or using the complaints service, is all that can be done.
There is, however, the remedy of restitution, which is reimbursement of monies for labour by which a public body is unjustly enriched, there being no responsibility on a carer to work for free outside their contracted hours. And the Ombudsman must reflect that reality, as part of upholding a proper approach to remedies.
There is no mention of the mother as an ordinary ‘carer’ in this report, even though some of the time she was likely providing unpaid support to her son, outside of the hours of payment for care from her or the commissioned provider. All the report says is this: ‘When the care provider cancelled care hours Miss X had no alternative but to support Mr Y. This caused her frustration and meant she did not get respite from her caring role. However, she was paid for the support she provided.’
We struggle to tell from this section of the LGSCO report whether the money from the direct payment was used to pay Miss X for the extra hours she was obliged to put in, because the provider’s hours were commissioned directly by the Council; but we note that going forward, when the new provider was ultimately found it could only manage 12 hours a week. However, in the meantime, the number of hours of input for which the Council was properly paying to the mother, was increased.
The impact on her of the service failure is not considered separately in this report. It says that alternative providers were refused, by the mother, ‘as they were not autism specialists ‘… and it goes on to say that it was ‘open to Miss X to try these’.
In our view this was a very superficial approach to take the injustice suffered by the mother. Yes, she was being paid for some care, but the time when she was not supposed to be working was effectively her own free time and respite from that role, which was severely eaten into.
Section 10 of the Care Act provides discretion on the part of Councils to deem paid carers to be unpaid and thus as carers ‘proper’ for the purposes of the rights under the Act specifically FOR carers.
All of this would ideally be made explicit by the Ombudsman, but it falls to organisations like this one to ensure that legal principles do not simply evaporate into history.
We think that the investigator could have probed more to see whether it would have been fair to say that when she challenged the provider’s suitability, the Council (as the ultimately responsible care planner) should have considered whether it thought that it was important to provide funding for a specialist provider, and whether it paid the mother in the meantime for further hours, instead, or otherwise concluded that the impact on the mother as a partly paid, yet partly unpaid carer, was not so very great as to be ‘significant’ and not a breach of any duty regarding the appropriateness of the budget for the son or the absence of a carer’s assessment.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s North Northamptonshire Council (23 019 041) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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