Summary: Mr B says the Council refused to increase his care hours, wrongly took away his direct payment and refused to respond to any more of his complaints. There is no fault by the Council.

The complaint

1. The complainant, Mr B, complained the Council:
• refused to increase the hours in his care package despite the fact it is not meeting his needs;
• wrongly took away his direct payment; and
• refused to respond to any more of his complaints.
2. Mr B says the Council’s actions have triggered his depression and he feels abandoned.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation 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

What should have happened

Care and support statutory guidance

7. Paragraph 10.1 of the care and support statutory guidance (the guidance) says a vital part of the care and support process for people with ongoing needs which the local authority is going to meet is the care and support plan or support plan in the case of carers (the plan).
8. Paragraph 10.2 says the person must be genuinely involved and influential throughout the planning process, and should be given every opportunity to take joint ownership of the development of the plan with the local authority if they wish, and the local authority agrees.
9. Paragraph 10.3 says the personal budget in the plan will give everyone clear information regarding the costs of their care and support and the amount the local authority will make available, to help people to make better informed decisions as to how needs will be met.
10. Paragraph 11.30 says there are three main ways in which a personal budget can be deployed:
• as a managed account held by the local authority with support provided in line with the persons wishes;
• as a managed account held by a third party with support provided in line with the persons wishes;
• as a direct payment.
11. Paragraph 12.1 says direct payments are monetary payments made to individuals who request to receive one to meet some or all of their eligible care and support needs.
12. Paragraph 12.24 says the local authority must be satisfied the direct payment is being used to meet the care and support needs set out in the plan. It should therefore have systems in place to monitor direct payment usage to ensure effective use of public money. The Care and Support (Direct Payments) Regulations 2014 (the regulations) set out that the local authority must review the making of direct payments initially within 6 months, and thereafter every 12 months.
13. Paragraph 12.67 says direct payments should only be terminated as a last resort. Local authorities should take all reasonable steps to address any situations without the termination of the payment.
14. Paragraph 12.68 says if terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question.
15. Paragraph 13.11 says plans must be kept under review generally. Therefore, local authorities should establish systems that allow the proportionate monitoring of both care and support plans and support plans to ensure needs are continuing to be met. This system should also include seeking cooperation with other health and care professionals who may be able to inform the authority of any concerns about the ability of the plan to meet needs.

The Council’s complaints procedure

16. This says there are occasions when contact from a complainant becomes too frequent or complex that it hinders consideration of the complaints, or those made by others. In such cases the Council may take action to limit the contact the complainant has with it.

What happened

17. Mr B has Asperger’s syndrome, learning disabilities and other medical conditions. In 2022 the Ombudsman considered a complaint from Mr B about the failure to provide him with social care support. That investigation concerned the period between January 2022 and September 2022. My investigation therefore concerns what has happened since then.
18. Mr B had 16 hours support in place in 2022 and received that through a direct payment. The Council allowed Mr B to bank 4 hours per week for additional support when his mother, who is his main carer, was away.
19. The Council carried out an audit of the direct payment budget in 2022. That audit identified Mr B needed to return £11,000 of unspent direct payments. It also identified overspending as Mr B was paying carers more than the weekly budget allocated and withdrawing cash sums. The Council discussed those issues with Mr B and when the matter was not resolved moved the budget to a managed budget in March 2023. The Council also repeatedly reminded Mr B he needed to pay his assessed charge.
20. The Council became concerned about Mr B’s mother, who is Mr B’s appointee, failing to organise appropriate support for Mr B when she was away. The Council therefore raised a safeguarding concern which concluded in April 2024. As a result of that Mr B agreed the Council should stop the direct payment budget and commission an agency to provide support to him in line with his assessed needs.
21. Mr B has asked for an increase in hours as he believes he needs more than 50 hours support when his mother is at home and 77 hours support when she is away. The Council says it does not have evidence of needs to justify that increase and has asked Mr B to engage with a new assessment and occupational therapy assessment. The Council says though it has increased Mr B’s support hours to 24 hours per week to encourage him to engage. There is a commissioned service in place but currently on hold as Mr B has disengaged.
22. Mr B has put in complaints at various times which the Council has considered and responded to. In 2024 though Mr B continued to complain about the refusal to increase his support hours and the removal of the direct payment. The Council told Mr B it will not consider those complaints further because it has already responded to them. The Council has said though if Mr B raises a complaint about new issues it will consider those complaints.

Analysis

23. Mr B says the Council refused to increase the hours in his care package despite the fact he does not have enough hours to meet his needs. The evidence I have seen satisfies me Mr B believes he needs around 50 hours per week of support with greater levels of support required when his mother, who is his main support, is away. That compares with the 24 hours of support the Council has put into place.
24. I am satisfied the Council has explained to Mr B that to consider whether an increase in support hours is required he needs to cooperate with the Council to enable it to carry out a new assessment. That is because the Council is not satisfied it has evidence to support an increase in hours for Mr B. I am satisfied the reason the assessment has not taken place is because Mr B has not cooperated with the Council to allow it to complete an assessment. As the Council needs to carry out an assessment before considering any increase in hours there are no grounds on which I could criticise it here.
25. I am satisfied though the Council has increased Mr B’s package from 21 hours to 24 hours per week. The Council has done that without completing a new assessment, which it would not normally do. It is clear the Council has done that with the hope this will encourage Mr B to take part in an assessment. I welcome the Council’s willingness to act outside its normal process here. Given the significant increase in hours Mr B is seeking though I cannot criticise the Council for not increasing the hours without holding a further assessment.
26. Mr B has raised concerns about why the Council is requiring him to have an occupational therapy assessment. Mr B says this is not required as the occupational therapist has told him they cannot recommend additional hours. The evidence I have seen though satisfies me the reason the Council arranged an occupational therapy assessment is so it can establish more information about Mr B’s level of need. I am therefore satisfied the purpose of the occupational therapy assessment is not for the occupational therapist to decide how many hours Mr B should receive in support but rather to establish what his needs are so the Council can then make that decision as part of its assessment. It is, of course, open to Mr B not to take part in the occupational therapy assessment if he does not want to. However, as I have made clear, for the Council to increase Mr B support hours it will need to carry out an assessment and without that assessment I cannot criticise the Council for not increasing the hours.
27. Mr B says the Council wrongly took away his personal budget and gave him conflicting information about why it had done that. Mr B says there was no reason for the Council to take away his budget because his mother had provided evidence of expenditure and the Council knew why he had gone over his care hours when his mother was away.
28. When a person has a direct payment in place they are required to sign an agreement concerning how that direct payment will be managed. The Council then carries out an audit on a regular basis to make sure the direct payment is being used properly. I am satisfied the Council raised concerns with Mr B about how the direct payment was being used following an audit in 2022. I am satisfied the Council explained it had concerns about Mr B not making his assessed contribution, commissioning more hours from carers than were set out in his support plan and cash withdrawals. I am satisfied because of those concerns not being resolved the Council moved Mr B onto a managed budget. I appreciate Mr B is concerned about that decision. However, it is not my role to comment on the merits of a decision reached without fault. As the Council decided to move Mr B onto a managed budget after carrying out an audit and attempting to work with Mr B to resolve the issues there are no grounds on which I could criticise it.
29. I am aware Mr B is now on a commissioned service. I am satisfied though the Council moved Mr B onto a commissioned service with his agreement in April 2024. I am also satisfied this was due to concerns the Council and Mr B shared about whether Mr B’s mother was managing the budget properly in Mr B’s interests. As I am satisfied the Council moved Mr B onto a commissioned service with his agreement I have no grounds to criticise it.
30. Mr B says the Council agreed he would not have to make any payment towards his care and is now wrongly charging him. I have found no evidence to support that. Instead, the evidence shows the Council has repeatedly reminded Mr B and his mother about the need for him to pay his assessed contribution. The Council has also explained it can take disability related expenditure into account in an assessment and has invited Mr B to provide any evidence of such expenditure. I have seen no evidence to suggest Mr B provided the Council with that evidence to enable it to review the calculation. In those circumstances I have no grounds to criticise the Council.
31. Mr B says the Council has refused to respond to his complaints. The evidence I have seen satisfies me the Council has responded to numerous complaints from Mr B in 2022 and 2023. I appreciate Mr B remained unhappy with various areas of his care, including the calculation of his hours and the issues relating to the direct payment. However, I am satisfied the Council has addressed those issues in the complaint responses. In those circumstances I cannot criticise the Council for refusing to consider under the complaints procedure issues which have already been considered and responded to. I have seen no evidence to suggest the Council has refused to consider any new issues Mr B raises. I therefore have no grounds to criticise it.

Back to top

Final decision

32. I have completed my investigation and do not uphold the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman