Summary: Ms C complains the Council failed to provide services to support her in caring for a family member. The Council is at fault for failing to carry out a carer’s assessment of Ms C’s needs and offering her support and advice about extra support that may be available to her. To remedy Ms C’s injustice the Council has agreed to apologise to Ms C, pay Ms C £1000, remind staff about the importance of offering or advising people about carer’s assessments and that support should be based on assessment.

The complaint

1. The complainant who I call Ms C, complains about the Council’s failure to provide an adequate direct payment to a family member, who I call Ms D. Ms C complains the Council failed to listen to her requests for help and put her in a position where she had no choice but to provide extra care.
2. Ms C says the added work load and the complexity of the care she provided resulted in a decline in her health and well-being.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. If we are satisfied with a council’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

7. I spoke with Ms C and considered information she provided. I asked questions of the Council and considered its response. I considered:-
• case notes, assessments, and care plans for Ms D;
• Care Act 2014;
• Care and Support Statutory Guidance (CSSG).
8. Ms C and the Council 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

Background information

9. Ms D received a direct payment (monetary payments) from the Council to meet her eligible care needs. Ms D used the direct payment to employ a Personal Assistant (PA) to support her. In October 2018 the Council provided initial advice to Ms C’s mother about managing a direct payment. When the PA left Ms C provided support until Ms D could employ another PA.

What should have happened

10. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
11. The CSSG explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
12. Everyone whose needs the local authority 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. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
13. The CSSG 2014 says,
14. “6.16 Where an individual provides or intends to provide care for another adult and it appears that the carer may have any level of needs for support, local authorities must carry out a carer’s assessment. Where an adult provides care under contract (for example, for employment) or as part of voluntary work, they should not normally be regarded as a carer, and so the local authority would not be required to carry out the assessment.
15. 6.17 There may be circumstances where the adult providing care, either under contract or through voluntary work, is also providing care for the same adult outside of those arrangements. In such a circumstance, the local authority must consider whether to carry out a carer’s assessment for that part of the care they are not providing on a contractual or voluntary basis. There may also be cases where the person providing care does so as voluntary work or under contract, but the nature of their relationship with the person cared for is such that they ought to be considered as a carer within the scope of the Act. The local authority has the power to carry out an assessment in such cases, if it judges that there is reason to do so.
16. 6.18 Carers’ assessments must seek to establish not only the carer’s needs for support, but also the sustainability of the caring role itself, which includes both the practical and emotional support the carer provides to the adult. Therefore, where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support.”

What happened

17. The Council completed a review of Ms D’s direct payment on 28 February 2019. The review identified:-
• Ms C had agreed to provide interim care until Ms D could source a new PA;
• urgent respite for when Ms C was in hospital for a planned operation. Ms C says she had to resort to contacting her MP as the Council delayed in arranging the respite care;
• Ms C’s concern the current direct payment was not enough to meet Ms D’s needs. The Council agreed to carry out a reassessment once Ms D left respite;
• clarification about the hourly rate and issues to do with the direct payment;
• the reviewing officer offered a carer’s assessment to some of the carers, but did not identify who or the result of the offer.
18. In May 2019 an Occupational Therapist (OT) completed an assessment for aids and potential adaptations to Ms D’s property. During the assessment the OT noted Ms C was hoisting Ms D on her own and advised against this. The OT suggested funding for a 45-minute morning call and three further 30-minute calls with two carers. The OT explained that funding was a social worker decision. Ms C was upset by this suggestion as it would effectively cut the provision to Ms D and Ms C was already struggling to support Ms D with the current support plan.
19. A social worker completed a review in May 2019. The social worker recorded the following:-
• the current care package was not working;
• the family were finding it difficult to get another PA;
• paying a person living in the same household as Ms D was not usual and was only a short-term measure until the family could source another PA;
• the need for a NHS Continuing Healthcare assessment. If eligible this would entitle Ms D to free care;
• noted the OT’s suggestion about allocating care hours; and,
• Ms C’s request for a higher rate of pay.
20. Later in May Ms C called the Council twice expressing the difficulties and strain she was under in caring for Ms D. In June the Council received further contact that Ms C was struggling with her caring role.
21. In July 2019 Ms C asked for extra support to help Ms D with her shopping and cleaning. The Council rejected the request without reassessment saying Ms D already received four hours each day and three extra hours each week to access the community.
22. In August 2019 the Council offered a reablement service to assess what care Ms D needed. The Council records Ms C’s concern about receiving no pay during this period. The officer involved did not comment about whether this would be the case but that she would consult her manager to look at the best way forward.
23. Ms C contacted the Council in November 2019 with more information about Ms D’s care needs. The social worker records Ms C was at risk from hoisting on her own and that Ms D needed an extra carer.
24. By March 2020 Ms C was still providing care as Ms D was unable to employ a new PA. This was in part caused by the difficulties in employing someone during the COVID-19 lock down period. Ms C contacted the Council about an increase in care. On two separate occasions the Council told Ms C that Ms D was receiving the maximum care package, and it could not be increased. The Council offered Ms C reablement again, but Ms C refused saying the Council was using reablement as a delay tactic and to reduce the care package.
25. In April 2020 the Council agreed to complete a reassessment. Due to concerns around COVID-19 this did not occur until August 2020. By this time Ms C had told the Council that from October 2020 she would no longer be able to provide care. The outcome of the assessment was adding a second care worker to help in the morning and the evening and when Ms D went out in the community. The Council originally reduced the community support to one and a half hours but after Ms C complained it reinstated the three hours.
26. Ms D went into a care home for respite care while the Council completed major adaptation work to her property. When she left the respite care home in November 2020 a second PA was not yet in place. The Council offered to provide an agency.
27. In March 2021 Ms C expressed her concern about the use of an agency because of their quality and reliability especially when she moved out. The social worker discussed other alternatives which included a care home or extra care sheltered housing. However by May 2021 a care agency provided all of Ms D’s care.
28. In July 2021 Ms C complained to the Council about :-
• its failure to provide Ms D with enough care. This resulted in Ms C having to provide unpaid care. Ms C said she had to leave her employment to support Ms D and the amount and complexity of care she provided caused her stress;
• the lower hourly rate of pay she received which resulted in an underpayment of her wages. The Council later paid Ms C the difference in rates and offered her a carer’s assessment which she declined.
29. The Council refused to accept Ms C’s complaint on the basis she was a paid carer. The Council said there was a conflict of interest between Ms C a paid carer and Ms D who received the care.

Was there fault causing injustice?

30. Ms C’s situation was unusual. Ms C stepped in to support a family member after her paid carer left. It was an emergency short-term measure which in the end stretched over two years. I acknowledge that COVID-19 restrictions at the time made face-to-face assessments and recruiting staff difficult and contributed to the difficulties and delays.
31. I also acknowledge that during the period of the complaint the OT service was involved in making adaptations to the property and that officers did provide some advice over the course of the complaint.
32. However due to the circumstances Ms C was not only a family member providing care informally she was also a PA. The Council failed to properly consider whether Ms C was entitled to a carer’s assessment as defined in paragraphs 6.16-6.17 above and is fault.
33. Ms C had no contract and little information about her employment rights. She did not know whether she could get sick or holiday pay, or what happened if Ms D went into respite care or had services from the reablement team. It is clear from the case notes Ms C was struggling and needed advice. The Council did not however properly advise her. This is fault.
34. This caused Ms C time and trouble in pursuing the Council for an extra hourly rate of pay, and the inability to make proper informed decisions because of a lack of information.
35. The Council records more than once that Ms C should not have been hoisting Ms D on her own and that Ms C was struggling to support Ms D with her increased needs. The Council did not however complete a review/reassessment until August 2020. This is fault and not in line with paragraphs 3.19-21 and 13.32 of CSSG.
36. I acknowledge COVID-19, and the need for a NHS Continuing Healthcare assessment caused some delay, it was however over a year from February 2019 when the Council first said it would undertake a reassessment.
37. The Council also told Ms C more than once it could not increase Ms D’s care package as it was already large. The Council did not base this decision after a review of the support plan or a reassessment. This is fault and not in line with paragraph 13.19 CSSG. Ms C therefore continued to struggle to support Ms D.
38. When Ms C made a complaint to the Council it refused to consider the complaint because it said there was a conflict of interest as Ms C was a paid employee. It failed to consider the context of the care Ms C provided and that she acted as both a paid and unpaid carer. It is also unclear how the Council considered Ms C’s personal injustice about how a lack of services to Ms D affected Ms C. Ms C had the time and trouble in explaining this to the Council and a missed opportunity of the Council considering her complaint before it reached the Ombudsman.
39. Ms C says because of the Council’s failures she suffered with stress and her physical and mental health was affected. Ms C also says she gave up a job to look after the family member. Ms C says the Council should pay her the extra amount the Council now pays a private agency for Ms D’s care package. She considers this is the amount she should have received when she was providing care to the family member.
40. I do not consider it appropriate to recommend a financial remedy which is based on what the Council would have paid a care agency for the period Ms C acted as a PA. This is because Ms C could have withdrawn her support at any point during the two years. It is also unclear whether Ms C would have accepted an agency had the Council offered that option earlier. However I do consider the Council’s actions did cause Ms C stress, anxiety and frustration and have recommended a financial remedy to reflect this. The amount recommended however is at the upper end of our suggested range to reflect the extent of Ms C’s injustice.

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Agreed action

41. I have found fault by the Council which has caused Ms C injustice. The Council has agreed to take the following actions to remedy the complaint:-
1. apologise to Ms C for the failings I have identified in this statement and the stress and anxiety this has caused her;
2. pay Ms C £1000 for the stress, time and trouble the Council’s actions caused her;
3. remind staff about the importance of completing carer’s assessments and who is entitled to receive an assessment;
4. remind staff that individual budgets should be based on an assessment not arbitrary financial limits.
42. The Council should complete (a) – (b) within one month of the final decision and (c)-(d) within three months of the final decision.

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Final decision

43. I have found fault by the Council which has caused Ms C injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman