Summary: The Council has acknowledged there were some faults in the way it managed the Direct Payments for Ms X’s social care. It accepted the findings of an independent investigation and has implemented the recommendations (including service improvements) which arose from that.

The complaint

1. Mr A (as I shall call him) complains that the way the Council has managed the support for and specifically the Direct Payments package for Ms X (for whom he is now the carer) has caused considerable distress to them both.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I considered the information provided by Mr A and by the Council. I have not shared all the information I have seen or referred to it in this draft statement, but I am satisfied its exclusion does not affect the outcome.
5. Both Mr X and the Council now had an opportunity to comment on an earlier draft of this statement and I took their comments into account before I reached a final decision.

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What I found

Relevant law and guidance

6. 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.
7. 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.
8. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under certain sections of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.

What happened - background

9. Ms X has previously been detained in hospital under the Mental Health Act and so receives S117 aftercare funding (she does not contribute to the cost of the services identified as necessary to reduce the risk of a return to hospital). She lives with her companion and now carer Mr A.
10. Ms X initially received an assessment of needs under the Care Act in 2018. Mr A says there was resistance from the assessing social worker to the use of Direct Payments to meet Ms X’s needs and asked them to try support commissioned by the Council first. He says this failed almost immediately because the agency could not guarantee the same worker every time and could not guarantee a female worker as Ms X required. He says the social worker told him it was unrealistic to expect a female worker every time.
11. The Council agreed to proceed with Direct Payments instead. The Council says it was not unreasonable for Ms X to want female workers, but the Direct Payments enabled her to employ as she wished; however, Mr A says the social worker told them they could only use the Direct Payments to employ a Personal Assistant. He says he thought this was wrong but in any event Ms X’s sister started to work for her. He says it very quickly became clear this would not be successful and instead they were left with the Direct Payment budget increasing and no support other than the informal support he provided.
12. Ms X spent more time in hospital. She was discharged in November 2020 after she appealed against her detention. After a further period of hospitalisation, she was then discharged in February 2021. Mr A says he had employed a support worker from an agency in the interim but was unable to pay them as the card which had been issued for the Direct Payments had been blocked. He was left with unpaid invoices.

The Care Act assessments and support plans

13. Prior to her discharge from hospital in November 2020, Ms X had a further Care Act assessment. The Council says a support plan was completed which specified the use of Direct Payments to “employ a female Personal Assistant (PA) to provide support with maintaining the home environment, shopping, meal preparation. developing and maintaining family or other personal relationships, accessing Occupational Therapy and/or education, and accessing the Community.”
14. In January 2021 the social worker met with Mr A and Ms X. Her notes record they asked if Mr A could be included in the plan as providing support, and if some of the budget could be used to purchase items such as a lava lamp and other items to promote sensory wellbeing (such as scented candles). The social worker could not revise the support plan to include these as there was some concern from her manager about the use of the Direct Payments for some of these items. In any event there was a delay until the end of May before the new Direct Payments card was able to be used. The Council’s records showed an amount of £2457 had been paid onto the card on 27 May. The card was used by Mr A to purchase some items on 1 June. Mr A points out this was an amount which should have been available to use from November 2020 onwards.
15. Following other queries from Mr A and Ms X about expenditure from the Direct Payments budget, a further revision was made to the support plan in June 2021. The support plan now said that Mr A was Ms X’s primary carer, and that

“It has been agreed that Direct Payments can be used for the following:

• Arts and craft supplies - diamond art, colouring pens/pencils, colouring books, scrapbook accessories/embellishments, paints, card making supplies, sewing/cross stitch kits
• Aromatherapy supplies (e.g. essential oils)
• Grounding/sensory items and activities – different types of lighting (colour changing, sensory),sensory tubes (bubble, water, lava), tactile items (weighted blankets, squishy items, blankets/plush items), audio/visual supplies (white noise machine, soothing music/sounds).
• Activities that promote wellbeing and meet (Ms X’s)'s social care needs i.e. zoo, aquarium, art barn CARER COST COVERED ONLY
• Mini-breaks/holidays with a friend/carer so (Ms X) can have a break away from the home environment. CARER COST COVERED ONLY
• (Ms X) to attend swimming so she is able to relax and support her wellbeing
• Learning to drive - lessons. NOT to be used for a car or car maintenance

Any request for future purchases that are not covered in the above need to be approved by social care prior to purchase if they do not reflect a social care need”.

16. In November 2021 Mr A and Ms X went abroad for a short break. Mr A used the Direct Payment card to pay for flights and accommodation for them both. The card was blocked while they were away. A Direct Payments officer noted, “routine transaction monitoring has identified a number of purchases from the DP funding account including hotel and flights. Rang and discussed with (Mr A) who explained this was for a short break for himself and the SU to Lithuania which he claimed is included in the care plan. I advised there is a provision in the budget for short breaks but only for expenses for a paid carer. LCC do not pay for holidays for the SU.”
17. The Council’s records show that between May and November 2021 the pre-paid card “had been used (or attempted to be use) for flights and accommodation (August 2021), for hotel accommodation in (X) (twice – in September and October 2021) and (X) (September 2021), for hotel accommodation in Lithuania (November 2021); and for purchases in, among others, Argos, Amazon, Boots, The Range, Wilko, Aldi, TK Max, Dunelm, Rymans, B&M Bargains, and Matalan.”
18. Mr A says the Council told him the Direct Payments had been misused. He says the social work team and the Finance office both told him the card could not be unblocked until the situation was resolved. He says although they cited the names of shops at which the card was used they did not request the evidence of expenditure which would have shown it was used for approved purchases.
19. The Council undertook an assessment in February 2022 to assess specifically whether Ms X had “capacity to agree to a supported bank account to receive direct payments and [to understand] the processes that need to be completed to ensure that payments are received and paid correctly and the account is managed appropriately.” It concluded she did have capacity in that respect. Mr A queries why that capacity assessment was needed when Ms X was already in receipt of direct payments.
20. In February 2022 the Council wrote to Ms X to tell her that the Council intended to reclaim £6508 which it identified as misused funds (Mr A says they were not misused funds but back payments). It also said she owed a further £1491 although there was no explanation for that sum.
21. A revised support plan was drawn up in March 2022 (which was further updated in April after a review). The revised support plan allowed for Mr A to be employed for 14 hours a week as a personal assistant “to provide support with personal care, shopping, meal planning and preparation to meet nutritional needs, cleaning and laundry, and social activities.” The surplus in the budget was to be used for “mileage expenses, a monthly YMCA pass, admission to social activities, and snacks whilst out in the community.”

The complaint

22. In March 2022 Mr A made a complaint to the Council on Ms A’s behalf about the care she had received from the Council and also about the way the Council had treated him as her carer. He complained there had been numerous failings and delays by the Council in setting up the Direct Payments budgets, which had left Ms X without support. He said he personally had to try and resolve the problems while also caring for Ms X on a full-time basis. He said they had been villainised by the Council and made to feel they were in the wrong.
23. The Council appointed an Independent Investigating Officer (the IIO) to consider and respond to the complaints. He issued his report on the complaint to the Council in June 2022. In his introduction he said “At the direction of the Authority (and in the context of Regulation 12 of the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009) complaints relating to events that occurred more than twelve months before the date on which the complaint was received cannot be considered. However, an exception has been agreed in relation to a complaint that there was a delay between November 2020 and May 2021 in setting up Direct Payments, on the ground that the complainant would not have been in a position to make this complaint until May 2021.”
24. The IIO upheld the complaints that there was a delay between November 2020 and May 2021 in setting up Direct Payments, and that it was unclear how Ms X’s budget was calculated. He partly upheld the complaint that the support plan implied Mr A supported Ms X with meal preparation and medication on 4 days a week, rather than all the time.
25. The IIO did not uphold the complaint that Ms X had been unlawfully denied access to Direct Payments to meet her assessed Social Care needs. He said there were ample instances when Ms X and Mr A had been told they could only use the Direct Payments for items set out in the support plan. He partly upheld a complaint that they had been unreasonably accused of misusing funds in respect of learner driver lessons and short break holidays, as these had been itemised in a previous support plan.
26. The IIO did not uphold the complaint that there were significant avoidable delays in holding a review. He said that there had been difficulties in reaching agreement with Ms X and Mr A over what could be included in the support plan; that staff had been off work with Covid19, and that meetings had been cancelled or postponed by Ms X and Mr A.
27. He did not uphold the complaint that the February 2022 mental capacity assessment did not describe Ms X's capacity as fluctuating. He said it was clear that this assessment was time- and decision- specific in accordance with the Act.
28. The IIO did not uphold the complaint that the support plan made no provision for carer’s breaks. He cites emails sent from Mr A to the Council pointing out that no-one would replace him if he was sick, he would carry on supporting Ms X informally as there was no-one else who could step into the role. The Council took into account his view that there would be a nil holiday and sick contribution from him which would lead to a surplus in the budget, to be used for mileage expenses or social activities. He concluded “the records indicate that no provision for carer’s breaks was included when this was agreed because these items were removed at (Mr A)s request.” Mr A says this was misunderstood – his point was that as an informal carer he was still entitled to breaks: he says he spends far more time caring for Ms X informally than formally. The IIO did not uphold the complaint that the budget no longer included an amount of £47 a week for carer’s breaks. He did not uphold the complaint that the Council had refused to include an amount for business mileage insurance: there was no evidence it had been requested or refused.
29. The IIO concluded with recommendations that the Council should apologise for

• The delay between February and May 2021 in setting up Direct Payments
• The allegation that Direct Payments had been misused for learner driver insurance and carer costs in relation to holidays and short breaks
• The failure to communicate effectively with regard to the concerns about the use to which the Direct Payments were being put and the decision to block the pre-paid card
• The lack of clarity in the most recent assessment with regard to the support Mr A provided with meal preparation
• The failure to provide an explanation of how Ms X’s Personal Budget was calculated.

30. In terms of remedial action and improvement to services, the IIO also recommended that

• The Council should ensure that Social Workers who carry out Care Act Assessments are aware of the procedure for notifying the Direct Payments Team that a Direct Payments package has been approved and should be set up;
• The Council should to ensure that Social Workers who carry out Care Act

Assessments are aware of and take account of the legislation and guidance and the Council’s policy when drawing up Support Plans

• Practice guidance should be issued setting out clearly which department is responsible for making decisions about discontinuing, terminating or reclaiming Direct Payments and for liaising with the service-user with regard to these decisions and associated concerns. The Council should consider including in this guidance a requirement that any decision to discontinue, terminate or reclaim Direct Payments should be taken at management level, and that Direct Payments should not be discontinued, terminated or reclaimed without notifying the service-user and explaining the reason for the decision

• The most recent assessment should be revised to reflect the support with meal preparation actually provided by Mr A
• The Council should consider putting information on its website about how Personal Budgets are calculated.

31. The IIO noted it had already been agreed that receipts for legitimate transactions during the period the card was blocked would be reimbursed. He recommended a recalculation of the reclaimed amount of £1491 to £677 to reflect the elements which were spent on Mr A’s accommodation and travel. In general terms he recommended that the Council should “reimburse any expenditure for which a receipt is submitted and which is expenditure which is compliant with the Support Plan in effect at the time that the cost was incurred.”
32. In response to Mr A’s query why no referral had been made for CHC funding of Ms X or a personal health budget, the IIO explained that CHC (NHS) funding was not relevant to Ms X whose aftercare was already funded through s177 funding. He said any request for a personal health budget would have to be considered by the NHS.
33. The IIO agreed that if Ms X wished for it, a referral should be made for advocacy for her.
34. In August 2022 the Head of Service wrote to Mr A with the IIO’s report and apologised formally for the uncertainty the Council’s actions had caused. She agreed the recommendations of the IIO.
35. Mr A remained dissatisfied and complained to the Ombudsman. He complained about “poor service provision, poor practice, misconduct, maladministration and abuse”; he also complained about the delay in investigating his complaint and the failure to include all his complaints back to 2018 except as background context.
36. In response to my enquiries, the Council confirms it has complied with all the recommendations in the IIO’s report.

Analysis

37. It is not part of my role to re-investigate the complaint unless there were flaws in the investigation process. I have not seen any evidence that was so, although I recognise that Mr A disputes that finding.
38. The IIO set out clearly the regulations under which he operated and in which respect he had made an exception for the time restriction.
39. There were faults in the way the Council implemented the Direct Payments and communicated about them to Mr A and Ms X. The Council has now completed the actions needed to comply with recommendations which arose from the IIO’s report. I have not seen any evidence of outstanding injustice.

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Final decision

40. I have completed this investigation on the basis that the Council has already remedied the injustice caused to Ms X and Mr A.

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Investigator's decision on behalf of the Ombudsman