The Investigation

The complaint

1. Miss X complained about the Council’s decision to withdraw funding for nighttime care. She said the Council’s decision to remove the care meant she did not have suitable support and could not afford the care and tax obligations as an employer of a personal assistant. Miss X said this impacted her independence, health and finances.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

3. Under our information sharing agreement, we will share this report with the Care Quality Commission (CQC).

4. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.

Relevant law and guidance

5. 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.

6. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes.

7. 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. When preparing a care and support plan the council must involve any carer the adult has. 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.

8. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory guidance says councils should review plans at least every 12 months. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

9. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan.

10. 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.

(Care and Support Statutory Guidance 2014)

11. A personal budget can be delivered as a direct payment. 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.

12. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.

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.

14. If an individual has a direct payment account and employ a personal assistant, they are responsible for making payments to HM Revenue and Customs (HMRC).

15. The Care and Support Statutory Guidance states the following:

• If the direct payment recipient is employing people, the local authority should as part of the review, consider checking, if appropriate, to ensure the individual is fulfilling their responsibilities as the employer, in particular that they are submitting Pay-as-you-earn (PAYE) returns to HMRC as well as paying tax and National Insurance deductions made to HMRC. (Section 12.63)

• The Regulations also set out that following the 6-month review, the local authority must then review the making of the direct payment no later than every 12 months. In practice, after the initial 6-month review period, local authorities may wish to consider aligning the annual review of the direct payment with the general review of the care plan. This will reduce bureaucracy and allow the local authority to review both at the same time. (Section 12.64)

• The outcome of the review should be written down, and a copy given to all parties. Where there are issues that require resolving, the resolution method should be agreed with all parties involved, as far as is reasonably practicable. Where appropriate, local authorities should advise people of their rights to access the local authority complaints procedure. (Section 12.66)

• Terminating direct payments

  Direct payments should only be terminated as a last resort, or where there is clear and serious contradiction of the Regulations or where the conditions in sections 31 or 32 of the Act are no longer met (except in cases of fluctuating capacity – see sections below). Local authorities should take all reasonable steps to address any situations without the termination of the payment.

  Effective, but proportionate monitoring processes will help local authorities to spot any potential issues before a termination is necessary. (Section 12.67)

• 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 (see Chapter 13 on reviews). (Section 12.68)

• Reasons for discontinuing direct payments

  A person who is receiving direct payments, whether to purchase support for themselves or on behalf of someone else, may decide at any time that they no longer wish to continue receiving direct payments. In these cases, the local authority should ensure there are no outstanding contractual liabilities, and conduct a review of the care plan to consider alternate arrangements to meet needs. (Section 12.69)

• The Care Act also sets out that a local authority should stop making direct payments if the person no longer appears to be capable of managing the direct payments or of managing them with whatever support is necessary.

  (Section 12.70)

• The local authority might also discontinue payments if the person fails to comply with a condition imposed under regulations to which the direct payments are subject or if for some reason the local authority no longer believes it is appropriate to make the direct payments. For example, the local authority might discontinue the direct payment if it is apparent that they have not been used to achieve the outcomes of the care plan. (Section 12.73)

16. If someone has a 'primary health need' all of the care and support they need is funded by NHS Continuing Healthcare (NHS CHC). Councils take part in assessments, but it is the local NHS Integrated Care Board (ICB) which decides who is eligible for NHS CHC. When it finds a person does not qualify for NHS CHC, it is also the ICB which will decide whether to provide any NHS funding to contribute to a person's care package, including whether the person is eligible for NHS Funded Nursing Care contributions (FNC). FNC can only be paid if an individual is living in a nursing home.

17. Councils cannot make or change these decisions, but they can dispute them. Each area should have established procedures for resolving disputes (paragraph 233 of the National Framework for NHS Continuing Healthcare and NHS-funded Care).

18. Crucially, whatever the dispute procedures, "Individuals must never be left without appropriate support" whilst funding disputes are resolved (paragraph 234, point 8, National Framework).

19. The Council’s complaints policy sets out a one stage process and the Council would inform the complainant when they would receive a response. It said this was usually within 10 working days.

How we considered this complaint

20. We read Miss X’s complaint and spoke to her about it on the phone.

21. We considered information provided by Miss X and the Council.

22. We gave Miss X and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

23. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.

24. Miss X has complex additional needs, is a wheelchair user and is dependent on care staff to meet her needs. The Council originally funded overnight care but removed it in January 2022. When the payments for overnight care stopped, Miss X continued to pay for the care, using the money designated for HMRC to fund this. We investigated this matter and issued a decision in November 2022. We found fault with the Council’s actions. The Council agreed to “arrange a comprehensive reassessment of Miss X’s needs, taking into consideration information provided by health professionals and Miss X. Pending the outcome of this review, it should reinstate funding support for Miss X’s nighttime care needs”.

25. The Council decided the NHS was responsible for meeting Miss X's needs around turning at nighttime. The Council said the NHS was installing a turning system for Miss X so it no longer needed to complete the assessment it agreed to in our previous investigation.

26. The health service agreed to trial a new turning system for Miss X in December 2022. Miss X tried the system for two nights but injured her lower back, leaving her in considerable pain. After the injury, Miss X returned to using her previous bed. The health service confirmed she needed a scan, but Miss X said she could not lie flat for it. The health service booked in the scan for early 2023. Miss X told the Council she needed the nighttime turning. The Council agreed to increase Miss X’s care package by two and a half hours a day for three weeks.

27. In January 2023 Miss X had a scan on her lower back. The results showed she had fractured her spine. The Council completed a reassessment of her needs. The assessment confirmed the Council would attend a CHC meeting with the health service.

28. The Council met with Miss X and the health service in February 2023. The Council informed Miss X any overnight support would be the health service’s responsibility to fund. The Council held a CHC meeting with the health service. The result of the meeting was Miss X was eligible for FNC if she was in a nursing home.

29. In March 2023, the Council noted Miss X owed nearly £12,000 to HMRC. She had not been paying the contributions for employing a personal assistant. The Council noted it needed to consider if it was suitable for Miss X to manage the direct payment account.

30. In July 2023, Miss X told the Council she had a serious problem with pressure sores. She said not having nighttime turning was putting her health at risk. The Council arranged to visit Miss X. It noted she had not provided a quarterly return on the direct payment account since 2019. During the visit to Miss X the social worker advised Miss X to keep within the hours in the care plan.

31. Miss X chased the Council in September 2023. She said she was suffering from deep pressure sores. Miss X said she had not got anywhere following the CHC meeting. The Council noted Miss X had not paid HMRC and she was spending above the allocated direct payment on care.

32. The Council completed a reassessment of Miss X’s needs in October 2023. The assessment detailed the Council would undertake a multidisciplinary review and follow up the CHC meeting.

33. Miss X was admitted to hospital in November 2023. The Council held a meeting about the HMRC debt that was nearly £15,000. The Council agreed to make a payment to acknowledge Miss X needed two carers from April 2023 to September 2023.

34. The Council completed a reassessment in December 2023. The assessment detailed the Council would undertake a multidisciplinary review and request a second CHC meeting.

35. Miss X complained to the Council in January 2024. She reported she had developed a stage three pressure sore and was unable to heal because she remained on her back all night. Miss X said her doctor and tissue viability nurse, a specialist nurse for wounds that are taking a long time to heal, told the Council she was high risk and needed repositioning at night. Miss X reported since the Council removed the nighttime support, she had developed several pressure sores. She said this could have been avoided if the Council supported her appropriately.

36. The Council completed a reassessment in January 2024. The assessment detailed the Council would undertake a multidisciplinary review and request a second CHC meeting. The Council arranged a professionals meeting after the assessment. The meeting acknowledged Miss X developed a grade three pressure ulcer. The tissue viability nurse recommended Miss X needed turning every three to four hours. The social worker recommended the funding was agreed until the health service agreed to funding. The Council rejected the funding request and referred to the health service. The Council did increase the support package during the day. The Council said the health service should fund Miss X’s nighttime care.

37. The Council raised a safeguarding concern at the end of January 2024. It reported Miss X had a possible unmet need regarding skin integrity.

38. The Council continued to discuss this matter in February 2024. The social worker asked a funding panel to agree nighttime turning as Miss X needed support. The panel rejected the request and stated the NHS should be involved. The panel reported the social worker would need to pass the request to senior management.

39. At the end of February 2024, Miss X told the Council she had not had a response to her complaint and wanted the Council to escalate her concerns. She said the Council cut her support and she has had several pressure sores since.

40. The Council responded to the complaint in March 2024. The Council said it completed a review in December 2021 in accordance with the Care Act and reduced the package of care in January 2022. The response said Miss X was responsible for making all payments and the direct payment was enough to pay HMRC.

41. The Council completed the safeguarding investigation in April 2024. The report said Miss X was a low safeguarding risk because she was supported by the community nursing team, tissue viability nurses and carers. The report noted the Ombudsman found fault with the way the Council removed nighttime support. The report also noted Miss X was paying carers to turn her overnight.

42. The day after the Council completed the safeguarding report, Miss X was admitted to hospital because of the stage three pressure ulcer. She was discharged in May 2024.

43. The Council referred to CHC again in June 2024.

44. The CHC meeting in July 2024 recommended a health budget. The health service challenged this decision and are working with the Council to resolve the issues.

45. Miss X was not satisfied with the Council’s response and has asked us to investigate. Miss X would like the Council to compensate her.

46. In response to our enquiries the Council stated it removed the nighttime support because there were no issues with skin viability. The Council said it could not provide 24 hours support at home and it would be willing to fund this care in a placement. The Council said Miss X was responsible for managing the direct payment. The Council confirmed it was funding nighttime care from August 2024 with the intention of reclaiming this money from the health service.

Our findings 

Overnight support

47. It is not our role to decide if a person has social care needs, or if they are entitled to receive services from the council. Our role is to establish if the council assessed a person’s needs properly and acted in accordance with the law.

48. If, as a result of a reassessment, a support package is reduced, or changed in a significant way, then the Care and Support Statutory Guidance requires the Council to provide a detailed explanation as to why, for example, because the person’s condition has improved substantially.

49. Our previous investigation found fault with the way the Council reviewed the support package and how it removed funding for overnight care. The Council’s response in March 2024 is not an accurate reflection of this assessment. The investigation found Miss X was “at high risk of developing pressure sores”. The investigation raised concerns about Miss X’s management of the direct payment account. The decision stated the Council focused on costs and not on Miss X’s needs and wellbeing. The decision also confirmed health professionals noted the reason Miss X did not need treatment for pressure sores was because she was turned regularly. The Council agreed to complete a comprehensive reassessment considering information provided by health professionals and Miss X. It also agreed to reinstate the nighttime support until this was completed.

50. After our investigation, the Council confirmed the health service provided a turning system, therefore it did not need to reinstate the nighttime support. This system was in place for two days and resulted in a fractured spine for Miss X. The Council should have reinstated the nighttime support it agreed to, considering the turning system option did not work. Without this, Miss X had no nighttime support. This is fault and Miss X has not had her needs met by the Council. This placed her at risk of harm and led to a pressure sore developing.

51. Miss X continued to tell the Council she needed nighttime turning. The case recordings noted medical professionals supported her view. We do not criticise the Council for enquiring whether health funding may be available. However, FNC funding is only available if an individual is living in a care home. When the funding was not available, this did not necessarily remove any duty the Council may have. The Council previously agreed there was a need for nighttime care. The Council had a duty to provide care. The previous investigation found the Council did not follow guidance and legislation when it removed this care. We would have expected a further discussion with Miss X about how this need could be met. The Council attended a CHC meeting, and the health service agreed FNC. However, this was not followed up by the Council and the funding was not available to Miss X, as she wanted to remain in her home.

52. We have seen evidence professionals were concerned about Miss X developing pressure sores since our previous decision in 2022. The social worker continued to request funding to reinstate the nighttime support. The funding panels rejected all nighttime care requests, saying it was for the health service to fund nighttime care. Miss X had care needs. The Council and the health service disputed who should fund these needs. During this dispute, neither service met Miss X’s needs. The Council was at fault for failing to provide support to meet Miss X’s needs while this dispute continued. This is fault. This caused distress to Miss X.

53. The Council has said it cannot fund nighttime care in an individual’s home. The Council said the health service should fund this care. The Council has not provided any relevant legislation detailing why it cannot fund nighttime care in an individual’s home.

54. In this case, as with the last investigation, the Council appears to have taken the view it should not fund Miss X’s needs because they occurred at night, and this was not a service the Council provided. It commented “the Council cannot fund 24-hour care in a person’s home, this can only be done in a placement which it was willing to fund”.

55. The Council seems to have viewed Miss X’s need to be turned at night to be equivalent of a 24-hour care package. It said the hours offered were enough for her to manage. This demonstrates the Council’s focus was on budgets and not Miss X’s needs or wellbeing.

56. This approach effectively capped the available budget for home care to that of a residential placement. Blanket policies of this nature are unlawful. It amounts to a fettering of the Council’s duty to meet an assessed need. Setting the personal budget to the cost equivalent of a care home should never be an absolute. The Care and Support Statutory Guidance says councils can look at the most cost-effective way of meeting someone’s needs. However, they also have to consider the benefits of someone remaining in their own home, if that is what they want. The benefits may mean there are grounds to pay more so someone can stay at home, but it is not an open-ended budget. In most cases, the costs of funding 24-hour care at home are likely to outweigh the benefits, when the need to fund care across the whole area is factored in. However, the Guidance is clear that taking finances into account does not mean choosing the cheapest option, but the one that delivers the desired outcomes for the best value. Councils cannot simply take the cost of a residential care home as the benchmark figure for other care packages.

57. The National Framework for NHS continuing healthcare and NHS-funded nursing care refers to disputes about funding. Miss X was left without the support she needed due to disputes between the Council and the NHS. Miss X has not had her needs met.

58. The Council, following a meeting with the health service, has funded nighttime care with a view of claiming this back from the health service. This is what the social worker was seeking. This shows the Council has accepted Miss X needed support. It has not provided this care since it wrongly removed it, as set out in our previous decision. This is fault. Miss X has not had her needs met since this decision in November 2022.

Managing the direct payment

59. Miss X received a direct payment to fund her care and support. She had not provided any documentation or evidence to the Council since 2019. The Council has not shown it acted when it did not get this information.

60. Miss X is now in debt to HMRC because she did not make the required payments. The Council is correct to say Miss X is responsible for making these payments. However, the Council has not had enough oversight of this case. It has allowed Miss X to continue paying for different elements of her care without the available budget, not pay and run up a debt with HMRC. Miss X appears to have had a choice to fund her care with direct payment money the Council allocated to pay HMRC or go without the support she stated she needed. It appears Miss X decided to continue to fund the care. The Council should have monitored the direct payment account. The statutory guidance referred to in paragraph 15, states the Council has to monitor the direct payment account. The Council knew there was a debt with HMRC. It should have acted when it became obvious

Miss X was not managing the direct payment suitably. This is fault, leading to further financial difficulties and a growing debt for Miss X.

Complaint handling

61. The Council’s policy detailed in paragraph 19, sets out the Council should respond to a complaint in 10 working days. The Council did not respond to Miss X’s complaint in January 2024. It only responded after she chased the Council and asked it to escalate her complaint over two months later. This is fault. This frustrated Miss X.

Recommendations

62. To remedy the injustice caused, the Council has agreed to carry out the following actions within three months of the date of this report:

• Apologise to Miss X for the injustice caused by the fault identified in this case. This apology should be in accordance with our guidance Making an effective apology.

• Pay Miss X £1,000 to acknowledge the missed opportunity and uncertainty caused by failing to work with her to enable her to manage the direct payment account.

• Make a symbolic payment to Miss X of £2,500 for placing her at risk of harm, leading to physical harm.

• Review Miss X’s use of her direct payment and agree in writing how she can pay for her care in the future, including appropriate support as needed.

• Remind relevant staff of the importance of effective complaint handling and ensuring appropriate responses are issued within the timescale set out in the Council’s policy.

• Put measures in place to ensure all direct payment accounts are reviewed every 12 months in line with the guidance.

63. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

64. The Council should provide evidence of the actions taken to satisfy the recommendations.

Final report

65. We have completed our investigation. We have found fault by the Council, which caused injustice to Miss X. The Council has agreed to take the action identified in paragraphs 62 and 63 to remedy that injustice.

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