Ombudsman seeing fewer ‘one-off mistakes’ with budget cuts influencing systemic failings in adult social care

Some councils responding to cuts by making changes to charging policies and financial assessments that are unlawful or conflict with statutory guidance, warns ombudsman

Photo: Local Government and Social Care Ombudsman

The local government and social care ombudsman has said he is seeing fewer “one-off mistakes” and insists errors within adult social care increasingly reflect problems with “systems, policies and the way procedures are being applied”.

Michael King’s comments follow the release of the ombudsman’s annual report on adult social care complaints, which found that recommendations to improve procedures or undertake staff training increased sharply by 20% in 2017-18, reflecting a change in the reason behind why errors are being made.

Meanwhile, the rate of complaints that were upheld continues to be high in comparison with other sectors at 62% – five percentage points higher than the local government average.

The ombudsman has called for local authorities and care providers to continue to work with him to promote “wider learning”, which he insists would help prevent bodies from repeating mistakes in the same area.

Types of errors changing

In May, King highlighted issues surrounding charging and financial assessments as he told Community Care some councils had been “washing their hands” of top-up fee arrangements.

He has since become increasingly concerned about the way some authorities are handling the need to balance the books by changing how they assess and charge for care, saying these changes were sometimes “unlawful” or didn’t “follow the [statutory] guidance”.

Recent ombudsman reports:

“I think we increasingly see complaints that are not the results of one-off errors, but system problems and I think that’s the other big thing for us to log,” he said.

“When I started in the ombudsman world 14 years ago, a lot of the complaints we looked at were an individual problem affecting a single person… [but] what we are looking at [now] are complaints that expose wider problems with systems, policies and approaches, and often that one complaint will expose an injustice to a much wider group of people.”

In particular, King made reference to an investigation completed earlier this year where an error in one person being overcharged for care services led to the ombudsman contacting 143 people who had been affected by the same mistake, and recommending a total repayment of over half a million pounds.

Councils should be spotting mistakes

Yogi Amin, national head of public law and human rights at law firm Irwin Mitchell, welcomed the learning points highlighted by the ombudsman’s annual report, but questioned whether councils should be doing more to spot their own mistakes rather than waiting for the results of independent investigations.

“My worry is that we see a number of authorities under budget pressures, [which] leads to the same themes coming up in different councils round the county where individual cutting back of packages or refusing to put in place increased packages in a timely manner is repeated again and again.

“If [there are] training issues and communication issues, then you would think the auditors within the council – not just the ombudsman – would pick [these] matters up quite quickly and not wait for the errors to be identified 12 months down the line with it impacting on individuals.”

Complaints and enquiries total rises again 

The ombudsman received 3,106 complaints and enquiries about adult social care, up slightly on last year when 3,061 complaints were filed.

It was the eighth consecutive year that the number of complaints had increased, with the volume of enquires rocketing by 169% since 2010-11, when the ombudsman was given extra powers to investigate registered adult social care providers.

The most common complaint concerned assessments and care planning, with 725  registered, up from 715 in 2016-17.

Enquiries about disabled grants facilities also rose slightly, from 57 to 71 complaints. However, just 56% of these were upheld, compared to 75% last year.

Most significantly, the number of complaints about charging rose by 9%, from 297 to 325. It was also this category that produced the highest uphold rate of all complaint types as 67% of registered issues were upheld – a two percentage point increase on the previous year.

Care providers affected by cuts

King emphasised it was not just local authorities who were making the wrong decisions in an attempt to reduce costs, but also care providers

Since 2010, the ombudsman has been able to investigate complaints about independent social care providers from people who fund their own care. In 2017-18, it received 442 complaints of this number, compared with 447 in 2016-17.

Despite little variation in the number of complaints it received, the ombudsman reported that the uphold rates for complaints about care providers increased by seven percentage points compared with last year, indicating that more errors were also being made by providers.

“These are systems where both care providers and local authorities are trying to increasingly square a circle, where they have more and more demand on the system but less and less resource and they are trying to find ways to redefine services and ration services to try and balance the books.

“That’s where we are seeing a lot of the problems these days; attempts to redefine policies and change approaches lead to problems [which] affect a much wider group of people.”

Changing the way it works  

King said the nature of his team’s work reflects the current stresses within the social care system as it increasingly investigates policies rather than individual mistakes.

He said he was looking to create a culture of shared learning, meaning that councils and care providers can learn from the mistakes of others to avoid repeat situations.

“We look at a small number of complaints, just the tip of the iceberg. If all we do is solve individuals problems for people one by one, that’s probably not a great use of public money.

“What we are trying to do is where we look at a complaint which has some deeper learning in it, we share that back with both the body who has made that mistake to show them how they can learn from the mistake or change [their] policies to avoid it happening again.

“But also, we try and share that with the wider sector to say ‘look, here’s a lesson that everybody can learn’.”

Ombudsman should have more resources

Amin pointed out that it was “worrying” that some service users had to wait months or, in some cases, over a year before getting justice.

In one example taken from the report, he highlighted how a couple had been separated for ten months due to lack of available home care and had to wait over a year after the start of their problems before a remedy was provided.

“If that was addressed in the legal arena, rather than the ombudsman looking backwards, we would be identifying that the authority had been breaching the person’s human rights under article 8 of the human rights convention [and] they would have had an automatic remedy through law and through the courts.

“It’s a real shame that we are highlighting these individual cases but only from a longer-term perspective looking back,” he said.

In light of this, Amin suggested the ombudsman should be given more resources to allow a quicker turnaround on investigations to offer faster remedy.

“I think there will be more enquires to the ombudsman due to the climate of cuts to social care, but also with an increase to the ageing population and cuts made to access to legal aid, leaving individuals [having] to turn to the ombudsman.

“The ombudsman needs more resources to deal with cases much quicker, they need to turn round the cases much, much quicker and be able to possibly have the power to give interim findings, so those individuals who are impacted upon see corrections are put in place quicker.

“Service users will certainly benefit from less disruption to their care packages and have less periods of time where their needs are left unmet.”

Words of advice

Appreciating the pressures placed on councils in recent years, King said he would continue to apply the same standards when investigating complaints. However, he did point out that many errors had occurred from service users being confused when interacting with local authorities and social care services.

“Most people who end up contacting the care system, do so in a moment of crisis in their life and often with no previous experience of what to expect. What they experience is a sector that’s riddled with jargon and quite complex rules and regulations which aren’t clearly explained to people and [they] struggle.”

The ombudsman offered two pieces of advice to local authorities and care providers about how they can avoid confusion and ensure service users were being given clear advice and instruction.

“One dimension of confusion is [that] people often are not sure who they are dealing with. Care is often delivered by a very complex range of different partnerships.

“One of the key starting points is that private providers, local authorities and the health bodies need to be exactly clear who the public are dealing with as there’s a lot of confusion there.”

He added that making the financial implications exceedingly clear to service users would also help to prevent errors from evolving into bigger problems.

“The financial assessment needs to set out, in very plain terms, what the costs of care will be and who will pay what. Often when we investigate, we see an incredible amount of confusion about the way in which a personal budget or a financial assessment has been set out.

“Don’t worry about offending people, you have to spell things out in absolutely plain terms. I [don’t] think we are seeing enough of that, particularly around charging.”

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