Summary: Miss X complained about the Council’s failure to provide care and support for her brother, Mr Y, over a prolonged period. We found the Council to be at fault. To remedy the personal injustice caused by this fault, we recommend the Council should apologise, make a symbolic payment to both Miss X and Mr Y and backdate the direct payment to the date of the initial assessment in October 2022. The Council should also take action to improve its service.

The complaint

1. Miss X complains about delay in the assessment and decision making related to her brother, Mr Y’s care and support needs. Although the Council backdated direct payments to March 2023, this does not acknowledge the care she provided to Mr Y since October 2022.
2. Due to lack of Council support, Miss X had to give up employment and use her savings to provide care to her brother. This has caused significant distress and financial hardship.
3. Miss X represents her brother, Mr Y, in making this complaint.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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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What I have and have not investigated

7. I have investigated events between October 2022 (when the Council carried the initial assessment) and June 2024 (when Miss X brought her complaint to the Ombudsman). I understand the Miss X is dissatisfied more recent events, including respite care arrangements. These matters must be considered by the Council in the first instance before possible involvement by the Ombudsman.

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How I considered this complaint

8. I considered all the information provided by Miss X and the Council.
9. I considered the relevant law, guidance and Council policy.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Care and support plans

11. 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
12. 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.
13. The High Court has confirmed that an individual’s wishes are not the same as their needs and wishes are not the paramount consideration. A council has to have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))

Direct payments

14. Direct payments are monetary payments made to individuals who ask for one to meet some or all their eligible care and support needs. They provide independence, choice, and control by enabling people to commission their own care and support to meet their eligible needs.
15. 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.
16. Direct payments cannot be used to pay a close relative living in the same household unless the council is satisfied it is necessary to meet a person’s needs. (Care and Support (Direct Payment) Regulations 2014)

What happened

17. Mr Y has eligible care and support needs. He spent several years in a care home. When this placement broke down, he returned to live with his family with a health-funded package of care. When this funding was no longer available, Miss X contacted the Council for help looking after her brother.
18. A social worker (Officer A) carried out an assessment in October 2022. Miss X says she explained she wanted to continue caring for her brother because she was best placed to do so due to his challenging behaviour. She wanted to be his main carer, funded by a direct payment, supplemented by agency care.
19. The assessment confirmed Mr Y had several eligible care and support needs and a support plan was required. The records show there was a disagreement between the Council and Miss X about amount of care required by Mr Y. Miss X said he needed 24-hour care.
20. In January 2023, Mr Y was allocated a new social worker (Officer B). Miss X asked the Council to provide care immediately. Officer B carried out a face-to-face assessment in March 2023. Based on this, Officer B recommended the arrangement proposed by Miss X the previous October.
21. This request was considered by a manager. Because direct payments could only be paid to a family member in exceptional circumstances, the proposal had been referred to a funding panel (the Panel).
22. Miss X asked for an update in May 2023. She advised the Council that if it was unable to agree to her being a part-time carer for her brother, it should provide alternative care via a care agency straight away.
23. In November 2023, the Panel refused to authorise Officer B’s proposal because it was too costly.
24. In the meantime, Miss X continued to look after Mr Y.
25. In January 2024, the Council advised Miss X funding had been agreed for the mixed package of care, starting from February 2024. A direct payment would fund 40 hours of care provided by Miss X.
26. The direct payment was later backdated to March 2023, when Officer B carried out her assessment.
27. In May 2024, the direct payment was increased to 56 hours.
28. Miss X complained to the Council about the long delay in arranging her brother’s care (and other related matters that I have not investigated). During this time, she had had to take long term sick leave and eventually left her employment.
29. In response, the Council accepted it had taken too long to arrange care and upheld this part of her complaint. The Council apologised for this.
30. Miss X was dissatisfied with this outcome and brought her complaint to the Ombudsman. She says the Council should have backdated the direct payment for the total number of hours she had provided back to October 2022.

Analysis

31. If a person has eligible needs, councils have a legal duty to meet them. This does not mean a Council must provide everything a person wants. Wants and needs are different. This is sometimes a tricky area, because service users and councils may disagree about what is a want and what is a need.
32. It is not the Ombudsman’s role to say what a person’s needs are, or what services they should receive. The Ombudsman’s role is to consider if a Council has followed the correct process to assess a person’s needs. In doing so we look at what information the Council considered. If a Council considers all this information properly the Ombudsman cannot find a Council at fault just because a service user disagrees with its decision, or outcome of an assessment or support plan.
33. The Ombudsman expects councils to make care arrangements in a timely manner. This did not happen is this case.
34. From the date of Officer A’s first assessment, it took the Council 16 months to agree Miss X’s direct payment with a supplementary care package. This long delay was fault. Whilst I accept there was some disagreement between Miss X and the Council about the amount of support that was needed, it should not have taken so long to resolve this issue. In any event, it should have also made sure interim care arrangements were in place while this discussion was ongoing. I have seen no evidence of such arrangements being discussed with, or offered to, Miss X. This was further fault.
35. Part of the delay was because senior management had to authorise direct payments to Miss X. Miss X requested this as early as October 2022. Authorisation was not given until January 2024. The Council has failed to provide an explanation for this excessive delay either to Miss X or the Ombudsman.
36. While I welcome both the Councils acceptance that it took too long and agreement to backdate of the direct payment to March 2023, I do not consider this adequately to remedies the significant personal injustice to Miss X and Mr Y.
37. The outcome sought by Miss X was for the direct payment (at 40 hours per week) to be backdated further, to October 2022, when the first assessment was carried out. I consider this to be appropriate because:

• I am satisfied Miss X provided Mr Y with care during this time;
• no alternative support was offered between October 2022 and March 2023;
• the Council did not agree to increase the direct payment to 56 hours until 2024.

38. I also consider it appropriate to recommend a symbolic payment to both Miss X and Mr Y to acknowledge their distress caused by the long delay and lack to additional support from a care agency between October 2022 and March 2023.

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Agreed action

39. To remedy the injustice I have identified, the Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Miss X and Mr Y.
2. Make a payment to Miss X equal to the direct payment she would have been paid (40 hours per week) from the date of the first assessment in 2022 to the date of the March 2023 assessment. For the avoidance of doubt, this is in addition to the back payment of direct payments from March 2023 (£23,787.50) previously agreed by the Council. I understand this has not yet been paid to Miss X because she was awaiting the outcome of this investigation before accepting it.
3. Make a symbolic payment of £500 to Miss X to acknowledge her distress and uncertainty.
4. Make a symbolic payment to £500 to Mr Y to acknowledge his distress and uncertainty.
5. Remind relevant staff members of the need to complete support plans in a timely fashion and ensure interim arrangements are put in place in the event of a dispute over direct payments.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have found the Council to be at fault and the Council has agreed with my recommendations to remedy the injustice to Miss X and Mr Y. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman