Summary: The Council delayed in completing Mr X’s support plan following a Care Act assessment, failed to advise him at the outset that direct payments could not be used to pay a relative to act as his personal assistant because she was living in the same household and reversed its agreement to backdate direct payments. In recognition of the injustice caused, the Council has agreed to make a payment to Mr X and his family.

The complaint

1. Mr X complains that the Council:
• Delayed in completing his support plan following a Care Act assessment in April 2022;
• failed to advise at the outset that direct payments could not be used to pay his daughter to act as his personal assistant because she was living in the same household;
• reversed its agreement to backdate direct payments for his personal assistant;
• failed to offer him alternative care options; and
• delayed in responding to his stage 2 complaint.
2. Mr X says these failings caused him and his family distress and his daughter suffered financial loss.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Assessment

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. 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.

Care Plan

9. 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.

Personal Budgets

10. 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.
11. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

Direct payments

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. 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.
13. 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.

Key facts

14. Mr X has significant care needs. He is bedbound and requires full assistance with all daily living tasks including washing and eating.
15. Mr X’s daughter, Ms Y, was carrying out most of his care with some assistance from her mother, Mrs X. On 7 April 2022 Ms Y contacted the Council requesting an urgent social care assessment to ascertain what could be put in place to support Mr X’s care and support needs.
16. On 29 April a social worker, Officer A, visited the family to begin a Care Act assessment. She considered that Mr X may have primary health needs and so, with his agreement, made a referral to Continuing Healthcare (CHC). It was discussed that Mr X did not want a care agency and wanted his care to be provided by his family. Ms Y was interested in being paid to be a full-time carer for her father.
17. On 13 May a multidisciplinary team meeting was held. Following the meeting the case was considered by the CHC panel which decided Mr X was not eligible for CHC funding. Accordingly, on 23 June the social worker submitted the support plan for approval. She sent an email to Ms Y saying “apologies for the delay in getting the referral completed. I am having to complete a full support plan and also get approval for you to be able to be the main PA from our service delivery manager”.
18. In July the service delivery manager deferred the decision on the support plan pending further information. She said she had concerns that Ms Y would be the sole PA without any contingency plan.
19. In September Officer A had a supervision meeting with her manager. The notes of the meeting state that the support plan would be re-submitted for approval by the Head of Service (HOS) because Mr X wanted to employ Ms Y to be his PA and she was living in the same household.
20. On 25 October Officer A sent an email to Ms Y apologising for the delay in contacting her. She said the Council remained concerned that the 63 hours of care proposed was more than a single carer would be able to provide alone. She asked Ms Y whether the family had been able to identify a second carer from the community who may be able to act as a second PA. She said that, once the family had found another potential PA, she would resubmit the support plan for. She said this would need HOS approval because Ms Y was living in the household with Mr X.
21. In November the notes of Officer A’s supervision meeting with her manager state that the plan was still to implement support via a PA but HOS approval was needed once a full support network was in place because PA’s could not manage the direct payment. They also discussed that, although Mr X had mental capacity, he did not have the physical ability to sign the direct payment agreement. The manager suggested a signature stamp.
22. On 29 November Officer A spoke to Ms Y. It was agreed that Ms Y would support Mr X to purchase a signature stamp so he could sign the direct payment agreement himself and manage his own direct payment. Ms Y said the family had now identified a second PA to support Mr X. Officer A’s notes of the conversation state “now that we have a plan, I advised that I need to get approval from Head of Service so that [Mr X] can have her and her mother as PAs as they all live in the same household".
23. The same day Officer A sent an email to the HOS requesting agreement to employ a member of Mr X’s household as his PA.
24. On 9 December Ms Y told Officer A that Mr X had been offered an adapted bungalow by the Council. She said she would continue to live in the family home and her parents would move to the bungalow when it was ready. Officer A explained that, in this situation, HOS approval was only required for Mrs X.
25. Officer A sent an update to the HOS explaining Mr X would be moving home and Ms Y would no longer be in the same household. So, approval was only needed for Mrs X to be a PA. The HOS raised concerns that, if Mr X owned a property he was not living in, he might not be financially eligible for a direct payment. She also questioned who would be meeting Mr X’s night care needs.
26. Officer A requested further information from Ms Y who explained she would still be providing night-time care after Mr X moved house as he would be living only a short distance from her address. She also confirmed that the flat she was living in was owned by her mother, not Mr X.
27. On 9 March Officer A contacted Ms Y explaining she was still awaiting approval from the HOS. She apologised that the matter had gone on for nearly a year with no change to their situation.
28. On 20 March Officer A told Ms Y she would visit Mr and Mrs X once they had moved to the new property and make any necessary changes to the proposed support plan before submitting it to management for approval.
29. On 29 March Mr and Mrs X moved to their new address. Ms Y remained in the family home but continued to support Mr X as his main carer.
30. On 13 April Ms Y complained about the delay in implementing the support plan and making direct payments.
31. On 5 May the notes of Officer A’s supervision meeting with her manager noted that Mr X’s needs were still being met informally and the HOS had deferred a decision pending further information about Mr X’s night needs.
32. On 15 May Officer A telephoned Ms Y saying the Council was still concerned about the sustainability of the support she and her mother were providing but she would resubmit the support plan for approval after discussions with district nurses to see whether the level of night care provided by Ms Y could be reduced. She explained that the Council did not usually fund night-time needs and this, together with other queries, had delayed approval of the support plan.
33. On 18 May the HOS approved the support plan having received further information about the level of night care Mr X required.
34. On 31 May Officer A telephoned Ms Y explaining the support plan had been approved from the date Mr X moved into his new property. Ms Y was unhappy that the direct payments had not been backdated.
35. On 19 June the HOS agreed the direct payment would be backdated to the date of the initial assessment. She stated, “I also accept that due to our delays, the family have been disadvantaged and the daughter provided the support during this period”.
36. On 27 July the HOS told officers that, having had access to more information, she had decided to only backdate the direct payment to 10 April 2023 when Officer A completed a re-assessment following Mr X’s move to the new property. This was because the Direct Payment Regulations require that there must be a special reason for employing any close family member who lives in the same household as the service user and the Council would only do this in exceptional circumstances when no other options were available to meet the care and support needs. She said the records showed Mr X was reluctant to accept any support outside of the family and a range of alternative options had been discussed with him, including Extra Care housing and a care package, which he declined. The HOS therefore concluded that Mr X had made an informed decision to refuse the alternative options offered.
37. Ms Y complained to the Ombudsman.

Analysis

Delay in implementing the support plan/direct payments

38. A Care Act assessment was started on 24 April 2022. The Council has explained that, because of the level of care Mr X required and his wish for his care to be delivered by his family, consultation was required across organisations and there were also detailed discussions about the direct payment process and how this would be managed. A decision was made on 23 June 2022 that Mr X would manage the direct payment with Mrs X supporting him with the financial assessment process only.
39. The Council would not normally agree a direct payment because Ms Y was living in the same household as Mr X because the Care and Support (Direct Payments) Regulations 2014 state “direct payments must be made subject to the condition that they must not be used to pay any person mentioned in paragraph (3) to meet the needs of the adult in respect of whose needs the direct payment is made”. Paragraph 3 includes “a person living in the same household as the adult who is the adult’s son or daughter”. However, Officer A requested an exemption to the Regulation and asked for HOS approval to make a direct payment because of the length of time that Ms Y had been Mr X’s main carer.
40. The HOS deferred the decision because of concern about carer strain given that Ms X was providing a significant number of hours support throughout the day and night time support and there was no contingency for her taking leave. There was also a question about the ownership of the flat once Mr X moved to alternative accommodation because he would not have been financially eligible for direct payments if he owned the property. A decision was not made until 18 May 2023.
41. I recognise it was a complex situation. However, the fact remains that there was a significant delay in reaching a decision on direct payments and implementing the support plan. The decision was made more than a year after the initial assessment took place. This was fault.
42. In an internal email dated 16 May 2023, the service delivery manager stated, “I totally understand why this complaint has been raised as things have drifted and I have to admit it went off my radar”. In another internal email dated 7 June 2023 she stated, “it is our fault that this drifted as long as it did”.
43. In response to Ms Y’s complaint the Council accepted there had been a significant delay in making a decision about the award of a direct payment. It acknowledged this was unacceptable and had caused uncertainty. It considered Ms Y was most affected as she was Mr X’s main carer. It acknowledged the impact on her in terms of loss of opportunity to fulfil her own needs and study and offered her £500 in recognition of this.
44. The Council also accepted Mr X suffered anxiety because of the uncertainty about whether his family carer would be able to remain in place on a full-time permanent basis. In recognition of this, it offered to pay him £300. It also offered to pay Mrs X £100.
45. I am satisfied that Mr X’s needs were met during the period of the delay, so he did not miss out on any care and support. However, he did suffer uncertainty and anxiety because of the delay. I am satisfied that the Council’s offer to pay him £300 represents a satisfactory remedy for the injustice caused. I am also satisfied that the Council’s offer to pay Mrs X £100 represents a satisfactory remedy for the injustice she suffered.
46. Ms Y suffered distress and uncertainty because of the delay in reaching a decision on direct payments and was also put to time and trouble in pursuing the matter with the Council and in making a complaint. I consider the Council’s offer to pay Ms Y £500 represents a satisfactory remedy for this injustice.

Failure to advise at the outset that direct payments could not be used to pay Ms Y to act as Mr X’s PA because she was living in the same household

47. The assessment dated 29 April 2022 states, “we discussed direct payments.… [Ms Y] appeared interested in being paid to be a full-time carer for her father. She understood that she cannot manage her father’s finances and be the main PA, but she feels that her mother would be able to manage this side of things and she could be paid for doing the job that she is already doing”. There is no reference in this document to the fact that Ms Y could not receive payment as a PA until Mr X moved to alternative accommodation.
48. On 22 June 2022 Officer A sent an email to Ms Y saying “apologies for the delay in getting the referral completed. I am having to complete a full support plan and also get approval for you to be able to be the main PA from our service delivery manager. Although this email explains that HOS approval was needed, it did not explain why this was necessary or the fact that approval may not be granted because Ms Y was living in the same household as Mr X.
49. In an email dated 25 October 2022, Officer A told Ms Y the support plan would need HOS approval because she was living in the same household as Mr X. This is the first time this information was provided to Ms Y in writing. Officer A may have explained the situation to Ms Y verbally, but I have seen no evidence of this. She did refer Ms Y to information on direct payments on the Council’s website but I would have expected to see evidence of the Council informing the family about the requirements of the Regulations at the outset. Failure to do so was fault and raised their expectations. Ms Y, in particular, suffered disappointment that she would not be paid for providing care to her father for the period when they had been living in the same household. This was a significant disappointment. I recommended a remedy for this.

Withdrawal of the agreement to backdate direct payments

50. The HOS finally agreed the support plan and direct payments in May 2023. She initially agreed to backdate the direct payment to the date of the assessment in April 2022. However, she later decided to only backdate the payment to the date of the re-assessment in April 2023.
51. The HOS explained that she withdrew her initial approval of a backdated payment to Ms Y because, on further exploration, it was evident she had not considered all the information in relation to the support options that had been provided to Mr X. She said alternative care options were explored and alternatives were offered to Mr X which he declined.
52. Mr X disputes that other available alternatives were offered to him. He says Extra Care housing was never discussed as a serious option although the possibility of a care home was vaguely mentioned. He says the matter was never broached seriously and no specific care home was mentioned for him to consider.
53. The initial assessment completed on 29 April 2022 states, “I asked [Mr X] and [Ms Y] that given the long wait for social housing that was adapted to his needs, whether he would consider Extra-Care accommodation if a 2-bed flat were to become available.… As there are no extra-care accommodation options in the area, he declined this option. The assessment goes on to say “he told me via translation that he did not want a care agency and different people coming in. Therefore we discussed Direct Payments”.
54. I am therefore satisfied other options were explored and declined by Mr X.
55. I find no grounds to criticise the HOS’s decision not to backdate payments to April 2022. She has explained the reasons for this decision which is one she was entitled to make. However, the information she took into account when changing her decision, was available to her when her first decision was made. Failure to take this into account when making the first decision was fault. This resulted in the family’s expectations being raised and they were then disappointed when the decision was changed.
56. In its stage 2 response, the Council accepted distress was caused when the manager decided to backdate the direct payment to April 2022 and then later withdrew this decision having considered the matter further. It apologised for the distress caused and said the Council would ensure it had clearer guidance for social workers on paragraph 3 of the Direct Payment Regulations to provide them with information to help manage expectations regarding family carers being paid via direct payments. It also offered a payment of £100 each to Mr X, Mrs X, and Ms Y in recognition of the injustice caused.
57. I consider the Councils payments to Mr and Mrs X represent a satisfactory for the injustice they suffered as a result. However, the injustice to Ms Y was more significant given that she was led to believe she would receive payment for the care she had provided to her father over the previous 12 months. It was a significant disappointment to her that this would no longer be the case. I therefore recommended a further remedy for Ms Y.

Delay in responding to stage 2 complaint.

58. Ms Y made a stage 1 complaint on behalf of Mr X on 13 May 2023. The Council responded on 4 July 2023. The Council’s adult social care complaints policy states that it will risk assess a complaint and agree a timescale for a response with the complainant. In this case, the Council said it would aim to respond to the complaint within 20 working days. It did not meet this target. It kept Ms Y informed about the delay and she agreed to an extension. However, this does not alter the fact that failure to meet the agreed deadline was fault.
59. Mr X’s solicitors made a stage 2 complaint on his behalf on 7 September 2023. The Council did not respond until 4 December 2023. This was a significant delay. The Council kept in touch with the solicitors concerning the delay and, in the stage 2 response, the officer apologised explaining she had been away from the office due to a family bereavement which had contributed to the delay. While I understand there were reasons for the delay, this is service failure.
60. The delay in responding to Mr X’s complaints at both stages of the process caused him and his family additional distress and frustration. The Council apologised for the delay at both stages of the process. Although this goes some way towards remedying the injustice caused, I recommended an additional remedy.

Back to top

Agreed action

61. The Council has agreed that, within one month, it will pay Ms Y a further £500 in recognition of the injustice caused by:
• the delay in informing her that direct payments could not be used to pay her for acting as Mr X’s PA because she was living in the same household; and
• the withdrawal of the manager’s agreement to backdate the direct payments.
62. The Council has also agreed that, within one month, it will pay Mr X, Mrs X and Ms Y a further £100 each in recognition of the significant delay in responding to their complaints.
63. These payments are in addition to the amounts the Council has already offered the family.
64. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

65. I find the Council was at fault in that it:
• delayed in reaching a decision on the support plan and the direct payment application;
• failed to advise the family at the outset that direct payments would not normally be used to pay Ms Y to act as Mr X’s PA because she was living in the same household;
• agreed to backdate the direct payments and then withdrew this agreement, raising the family’s expectations; and
• delayed in responding to Mr X’s stage 1 and stage 2 complaint.
66. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman