Summary: Mr B says the Council wrongly stopped the person who had managed his direct payment for many years from doing so, failed to explain its decision, moved him to a Council managed budget without consent and refused to allow someone to attend his review. There is no evidence of fault in the Council’s decision to stop the person managing Mr B’s direct payments or in its decision to move him to a managed budget. The Council delayed making those decisions and failed to ask Mr B for his views on who to include in the review meeting. An apology, payment and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mr B is represented by his father, Mr C. Mr C complained the Council:
• wrongly stopped Mr X, from managing Mr B’s direct payment despite the fact he had held that role for 13 years;
• incorrectly said Mr X had to be an employer to manage the direct payment;
• failed to explain its decision;
• moved him to a managed budget without his consent; and
• unreasonably refused to allow Mr X to attend the review.
2. Mr C says the Council’s actions mean he has lost control of Mr B’s budget and it is now more difficult to manage.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and Mr C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B, Mr C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The care and support statutory guidance

8. Direct payments are payments made to individuals who ask to receive one to meet some or all their eligible care and support needs.
9. Where the person needing care and support lacks capacity to ask for a direct payment, an authorised person can request the direct payment on their behalf.
10. After considering the suitability of the person requesting the direct payment against the appropriate conditions in the Care Act, the local authority must decide whether to provide a direct payment. Where accepted, the decision should be recorded in the care or support plan. Where refused, the person or person making the request should receive written reasons to explain the decision and be made aware of how to appeal the decision through the local complaints process.
11. Local authorities should give people clear advice about their responsibilities when managing direct payments, and whether the person in receipt of direct payments needs to register with HM Revenue & Customs (HMRC) as an employer.
12. Where it becomes clear the individual is failing to meet their obligations as an employer generally, the direct payment scheme should be reviewed and consideration given to whether alternative arrangements that result in the direct payment recipient no longer acting as the employer need to be made.
13. Reviews should, wherever reasonably possible, be agreed with the person and must involve the adult to whom the plan relates, any carer the adult has and any person the adult asks the authority to involve. The local authority should take all appropriate measures to ensure their involvement and the involvement of other people if appropriate, such as an independent advocate where this is required.

The Council’s direct payment practice guidance 2015 (practice guidance)

14. Customers who lack the mental capacity to choose to have and manage a direct payment require an appointed suitable person to receive the direct payment and spend the money on services to meet the customer’s outcomes.
15. Not everybody can be suitable person to receive direct payments on behalf of the customer.
16. The suitable person receiving a direct payment on behalf of the customer must meet certain criteria. That includes:
• having read and signed the agreement and consented to carrying out the responsibilities;
• be capable of managing the direct payment themselves or with the assistance of others; and
• understand they must act in the customers best interests and in accordance with the support plan.
17. Before appointing a suitable person the allocated worker or support broker needs to satisfy themselves the person meets the criteria as a suitable person.
18. A review must be carried out within six months of the customer receiving their first direct payment. That review will include various matters including, where someone employs a personal assistant, that they are following employment responsibilities including submitting PAYE returns to HMRC as well as paying tax, National Insurance and pension contributions.
19. Independent lives is a not-for-profit organisation with whom the Council have a contract to support adults services customers if they choose to receive a direct payment.
20. If the customer or suitable person is planning to employ a personal assistant the social care worker or support broker carrying out the support plan needs to refer them to Independent Lives which will provide support to help them understand and comply with their responsibilities and the laws relating to becoming an employer.
21. If the person does not consider they need support they will still be referred to Independent Lives who will contact the customer or suitable person to ascertain their knowledge and understanding relating to employing a personal assistant and give the social worker or support broker their feedback.
22. If Independent Lives tell the Council the customer or suitable person's knowledge and understanding is not suitable to become an employer the social care worker or support broker must contact the direct payments team and ensure all proceedings are postponed. The Council should then contact the person to explain the importance of understanding employment responsibilities. If the customer or suitable person still declines to engage with Independent Lives a Council managed budget should be considered.
23. The practice guidance goes on to record the customer’s or suitable person’s responsibilities around pensions and redundancies for employees.
24. If a direct payment agreement is terminated and the customer continues to require social care services and be eligible for them the Council is obliged to make alternative arrangements either by a direct payment to a suitable person or by a Council managed budget.

What happened

25. Mr B has been receiving a direct payment from the Council for many years. That direct payment had been paid to Mr X as an appointed suitable person until 2023.
26. In 2023 the Council began reviewing the arrangements for customers who had a direct payment with Mr X as a suitable person. The Council decided Mr X was no longer a suitable person to manage direct payments as Mr X did not agree to take on the role of employer. The Council’s view was that when a direct payment included employment of staff the person managing the payment must accept the role of employer.
27. The Council wrote to Mr B in February 2023 to explain it was reviewing the direct payments for those using a third party to help manage it. The Council told Mr B it would arrange a review meeting for him between February and September 2023. The Council explained he could invite other people to the review such as family and friends caring for him, an advocate or people that gave him support.
28. The Council arranged a review for July 2023. Mr C asked the Council for Mr X to be present. The Council told Mr C as they had met previously and completed the review without Mr X there was no need for him to attend.
29. The Council carried out a review in July 2023. When the social worker arrived Mr X was present and the social worker said he needed to leave. He therefore left the room and went into the kitchen. The social worker assessed Mr B as not having the mental capacity to understand or manage a direct payment. The social worker noted as Mr C could not manage the direct payment as a suitable person this meant direct payments would end and the Council would move Mr B to a managed account. The Council told Mr C about that decision on 14 September.
30. Mr C complained to the Council about its decision on 3 October 2023. He also raised concerns about the Council not allowing Mr X to attend the review meeting.
31. The Council responded to the complaint on 22 November. The Council explained it no longer considered Mr X suitable to perform the role of suitable person to manage Mr B’s direct payment. The Council explained one of the reasons for that was because Mr X would not agree to take on the role of employer and said that was required for a direct payment when staff were employed. The Council explained as Mr C could not take on the role of suitable person the Council would introduce a managed service. The Council explained that would not mean any changes to the arrangements for providing support to Mr B. The Council explained it would refer Mr C to carers support to obtain any support he needed once the arrangements with Mr X stopped.
32. Mr C asked the Council to take the complaint to the next stage as he did not believe the suitable person had to be the employer. The Council responded and reiterated why it did not consider Mr X a suitable person.
33. Mr B continues to receive care through a managed budget.

Analysis

34. Mr C says the Council wrongly stopped him using the person he had used for 13 years to support him in managing Mr B’s direct payment. Mr C also says the Council wrongly told him the person supporting him had to be the employer for the personal assistant when that is not the case.
35. It is clear Mr X has acted as the suitable person in managing Mr B’s direct payment since at least 2012 and signed the direct payments agreement, agreeing to comply with the conditions. I am satisfied the Council must decide in each case whether the person in question is a suitable person. In this case I am satisfied the Council decided in 2023 Mr X was not a suitable person to manage Mr B’s direct payment because he was not willing to be the employer. Mr C says there is no requirement for the suitable person to be an employer and the Council is therefore wrong to stop Mr X managing Mr B’s direct payment.
36. The issue for me is what the Council’s practice guidance says as this is the procedure the Council follows when agreeing a direct payment. I set out in paragraphs 14-24 what that practice guidance says. I am satisfied the practice guidance refers to the need for Independent Lives to assess whether the suitable person has enough knowledge and understanding to become an employer. I am therefore satisfied whether the suitable person, in this case Mr X, takes on the role of an employer is a matter the Council can take into account and I cannot criticise it for doing so.
37. I do not consider there is a contradiction between that and what the care and support statutory guidance says, which I refer to in paragraphs 8-13. In any event, it is not the Ombudsman’s role to interpret legislation or guidance. That is a matter for the courts. As Mr X does not want to take on the responsibilities as an employer and both the practice guidance and care and support statutory guidance refer to a person employing PA’s as an employer (or the person taking on the direct payment for them) I cannot criticise the Council for telling Mr B he can no longer manage his direct payments account on his behalf.
38. I am concerned though the Council did not tell Mr B that until 2023 given the Council has had the practice guidance in place since 2015. As reviews take place each year I would have expected the Council to pick up on that issue before 2023. That delay is fault. I consider that has had an impact in this case. That is because if the Council had acted promptly after introducing the practice guidance it would likely have ended Mr X’s involvement much earlier. It is unsurprising given the amount of time Mr X has been supporting Mr B with his direct payment that this has come as a shock. I therefore consider Mr B and Mr C have suffered an injustice because of the Council’s delay, although I cannot criticise the Council for deciding Mr X can no longer be Mr B’s suitable person.
39. I cannot criticise the Council for moving Mr B onto a Council managed account in those circumstances. That is because the evidence I have seen satisfies me Mr C has made clear he cannot manage the direct payments for Mr B. In those circumstances the Council has acted in accordance with the practice guidance by moving Mr B onto a managed budget as he does not have a suitable person to take it over. That is not fault.
40. I am concerned though when the Council ended the suitable person arrangement and moved Mr B onto a managed budget it did not properly explain the reasons. I have seen no evidence the Council wrote to Mr B or Mr C to explain its reasoning following the 2023 review. Nor is there evidence the Council discussed that with Mr B during the review. Even when the Council told Mr C the decision over the phone on 14 September 2023 there is no evidence it explained why Mr X was no longer a suitable person to manage the direct payment budget. Nor is there any evidence the Council explained why a Council managed budget was the only option. Failure to explain that until the Council responded to a complaint is fault. I consider that likely caused Mr B and Mr C distress as they did not have any information about why Mr X could no longer act as the suitable person.
41. Mr C also complained about the Council’s refusal to allow Mr X to attend the review meeting which took place in July 2023. The Council says it did not consider it appropriate for Mr X to take part in the review. That was as there was a conflict of interest and as Mr X could not contribute to assessing Mr B’s care and support needs.
42. I understand the Council’s concern. However, when the Council wrote to Mr B to tell him about the review it told him he could invite other people. The Council made clear that could include friends or family that were caring for him, an advocate or someone to give him support. That is also what the care and support statutory guidance says. There is no requirement for the person attending to be somebody providing care or who can contribute to the assessment.
43. I recognise in this case though there are some complicated issues and it is Mr B, rather than Mr C, that receives care. I have seen nothing in the documentary records to suggest the Council asked Mr B whether he wanted Mr X present at the review before he was excluded. I would have expected the Council to check that point as it was Mr B’s review and he was the one entitled to say who should be present. Failing to give Mr B that option is therefore fault. I am satisfied this meant Mr B and Mr C were caused some unnecessary distress.
44. So, I have found fault in the delay assessing whether Mr X should continue to manage Mr B’s direct payments between 2015 and 2023. I have also found fault in the delay explaining the Council’s reasoning and in failing to establish whether Mr B wanted Mr X to take part in the review which took place in 2023.
45. I do not criticise the Council for deciding Mr X was not a suitable person to continue managing the direct payments budget for Mr B. I therefore do not consider the outcome for him would have been different, but for the fault. However, if the Council had acted as it should have done it would have made that decision before 2023. I am satisfied Mr B and Mr C have therefore suffered unnecessary distress given the relationship they have developed with Mr X. I am also satisfied they have suffered distress due to the delay telling them the reasons for the Council’s decision and because of the failure to check with Mr B whether he wanted Mr X present at his 2023 review. As remedy I recommended the Council apologise to Mr B and Mr C and pay them £200. I also recommended the Council send a reminder to officers about what the care and support statutory guidance says about service users having other people present at a review. The Council has agreed to my recommendations.

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Agreed action

46. Within one month of my decision the Council should:
• apologise to Mr B and Mr C for the distress and upset they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• make a payment of £200;
• send a reminder to officers about what the care and support statutory guidance says about service users being able to have other people present at a review should they wish them to do so.

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Final decision

47. I have completed my investigation and found fault by the Council in part of the complaint which caused an injustice to Mr B and Mr C. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman