Summary: The Council acted in line with Care and Support Statutory Guidance. So we do not uphold Mr X’s complaint about the Council's hourly direct payment rate or about the failure to support him to manage a direct payment. We have not investigated other complaints because they were not made to us within 12 months of Mr X and Mr Y becoming aware of them or have not been made to the Council.

The complaint

1. Mr X complained for his relative Mr Y the Council:
1. paid an hourly direct payment (DP) rate that was not enough to cover the associated costs of employing personal assistants (PAs) and did not reflect the specialist skills, experience and training the PAs need to support Mr Y; and
2. failed to provide him with appropriate support to enable him to recruit, manage and train PAs.
2. Mr X also complained the Council:
1. failed to complete a thorough care assessment that fully acknowledged Mr Y’s complex care needs;
2. Failed to provide adequate DP funds to cover additional care work;
3. Refused, for over one and a half years, to agree to respite breaks;
4. Failed to increase the PA’s care hours for over half the Covid-19 lock down period;
5. Failed to respond or acknowledge complaints made via Mr Y’s previous deputy about these issues since 2012; and
6. Arranged or provided poor quality respite care in a care home in 2019.
3. Mr X said the Council’s fault caused avoidable distress, time and trouble and a financial loss because Mr Y has had to top up the direct payment from his own funds. And Mr Y has an unpaid HMRC bill.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. The Council commissions Penderels Trust (Penderels) to provide a DP support service. We can investigate Penderels.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
8. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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

9. The period of my investigation is November 2021 to November 2022. Where I have referred to earlier or later events, this is for background only. I have investigated complaints 1(a) and 1(b).
10. I have not investigated complaints 2 (a) to (e) because:
• 2 (c), (d) and (e) are late and there is no good reason for the delay in complaining to us. I have not investigated the matter of the unpaid HMRC bill because Mr X has provided me with an email dated November 2019 that he sent to a council officer where he refers to an HMRC debt. This shows he and Mr Y were aware of the matter in 2019 and so it is late.
• 2 (a), (b) and (d) are premature. The Council has not had an opportunity to respond to them. Mr X needs to complain to the Council.

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How I considered this complaint

11. I considered the complaint to us and the Council’s response to the complaint. I discussed the complaint with Mr X and Mr Y. I also considered the Council’s responses to my enquiries and documents and documents from Mr X and Mr Y including a statement from Mr Y about his care needs.
12. Mr X, Mr Y and the Council had an opportunity to comment on three draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

13. Statutory Guidance 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)
14. A direct payment is money a council gives to an adult with care and support needs. DPs allow the adult to arrange their own care and support, either by employing care staff (PAs) or by using an agency to provide staff.
15. Care and Support Statutory Guidance says:
1. 12.51: Where a person wishes to directly employ their own PA, the local authority should also have regard to guidance published by Skills for Care. This guidance recommends local authorities should provide on-going support through access to training.
2. 12.25: The amount of the direct payment must be an amount which is sufficient to meet the needs the local authority has a duty or power to meet.
3. 12.27: The local authority should have regard to whether there will be costs such as recruitment costs, employers’ National Insurance contributions, and any other costs by reason of the way in which the adult’s needs will be met with the direct payment. If these costs will be incurred their amount must be included in the direct payment. Some local authorities include one-off payments within the direct payment to cover these factors. In addition, other authorities have commissioned support services such as brokerage, payroll and employment advice as part of their general direct payment offer.
16. The Council’s policy statement on direct payments says:
• the DP is paid at a standard rate that should cover the cost or the support agreed in the support plan.
• In exceptional circumstances, the Council might agree to pay a higher rate in line with assessed need.
• If someone wants to buy care that costs more than the DP, they meet the cost from their own resources.
• The DP support service provides advice and support with an employer’s responsibilities.
17. The Council has an information booklet for customers who receive direct payments. It explains people getting DPs can nominate someone to manage the DP for them and there is also a support service available from Penderels Trust for help with recruitment, payroll or for a fully managed account.
18. The rate the Council gave direct payment recipients to employ PAs was £10.96 in 2021-22. This went up to £11.50 in April 2022.
19. The national living wage was £8.91 from April 2021 to March 2022 and £9.50 from April 2022 to March 2023.
20. NHS Continuing Healthcare (CHC) is a package of ongoing (social and health) care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be given as a direct payment by the person’s local Integrated Care Board (ICB). ICBs are not within the remit of the LGSCO.
21. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full assessment.
22. Sections 3, 6 and 7 of the Care Act 2014 require councils and relevant partners (including the NHS) to co-operate when exercising functions in the Care Act.

What happened

Background information

23. Mr Y is disabled and is eligible for care and support from the Council. Mr X manages a direct payment for Mr Y as his nominated representative (see paragraph 16.) The DP is used to employ personal assistants (PAs) to provide care and support in Mr Y’s home.
24. Until June 2019, a solicitor was Mr Y’s deputy and managed the direct payment for him. A deputy is a person appointed by the Court of Protection to manage the affairs of a person who does not have mental capacity to do so themselves. The Court discharged the deputy in 2019 and declared Mr Y has mental capacity to manage his finances, property and affairs. Mr X and Mr Y told me that the deputy made additional payments to top up Mr Y’s direct payment funded care package using a personal injury compensation payment which ran out.

Key events from November 2021 to November 2022

25. A social worker completed a telephone review of Mr Y’s care and support and direct payment in November 2021. The review noted:
• The direct payment was working well.
• He had support from the direct payment support service to manage payroll.
• Mr Y used the DP flexibly to cover 23 hours a day of care and support including sleep-ins Monday to Friday and 27 hours on weekends (including some double handed care).
• Funding also covered respite for 28 days a year and two days a week at a day centre.
• The Council’s PA rate was £10.96 and if he wanted to pay more, he had discretion to do so from his own funds.
• Mr Y’s regular PA said that the current hours were sufficient; but Mr Y would not manage with a reduction in hours. She also said Mr Y had three regular PAs that rotated and some did double handed calls.
• The most recent financial monitoring form for the period ending April 2021 showed a high balance in the direct payment account. However, Mr Y owed payments to cover employer responsibilities.
26. A social worker carried out a review of the care and support plan in June 2022. The review noted:
• There had been an increase applied to the direct payment rate to enable Mr Y to use a care agency. Mr Y did not in fact use a care agency.
• Mr Y asked for an increase to the hourly PA rate.
• Mr Y was not attending a day centre and was instead receiving PA support for the hours he would have been at the day centre.
• The Council would either fund the day centre or the PA hours if Mr Y did not want to attend the day centre, but not both.
• The social worker completed a CHC checklist to explore any healthcare needs.
• The social worker and Mr Y discussed the DP rate and the social worker said she would refer Mr Y to the direct payment support service for help to recruit more PAs and for payroll support.
• Funding was agreed for one-off costs of support from Penderels, for up to 15 hours to recruit more PAs and for advice about:
1. direct payment rules including guidance and advice on an employer’s responsibilities.
2. costings for the care package within the funding available, including establishing appropriate rates for staff.
• The social worker would refer Mr Y for a specialist occupational therapy assessment.
27. Between June and September 2022, an occupational therapist (OT) carried out a specialist assessment for transfers.
28. The Council’s internal records show Mr Y’s weekly DP was increased to include the uplift in the DP rate from April 2022 (see paragraph 18). There was a further change in July because one of the day centres ended and additional PA support hours were included.
29. In July 2022, a social worker referred Mr Y to Penderels direct payment support service for support with:
• Recruitment of more PAs to cover existing PA’s leave.
• Payroll and ongoing support to manage the direct payment (telephone support and up to 12 home visits a year including paperwork).
30. At the start of August 2022, the social worker emailed Mr Y information about free training courses for PAs. Also in August 2022, the social worker completed a checklist for NHS funding (called a continuing healthcare checklist). This was positive and so the NHS offered Mr Y a full assessment for continuing healthcare.
31. The social worker phoned the NHS urology team who had last assessed Mr Y (in May 2022). She was told no further assessment would help Mr Y.
32. The social worker referred Mr Y to the NHS bladder and bowel continence service in September 2022.
33. The Council told me the NHS arranged a meeting for the continuing healthcare assessment and this was scheduled for September 2022, but Mr Y cancelled it. An email from Mr Y’s PA, on his behalf, confirmed Mr Y wanted to wait for the outcome of an assessment of his bowel function before proceeding with the CHC assessment.
34. The Council’s first response to the complaint said:
• The direct payment rate went up in April 2022 and the social worker had requested the increase.
• Penderels had been providing support with payroll. The social worker would arrange for it to provide support with ongoing costs and with recruitment.
• It had reviewed the direct payment after he stopped going to one of the day centres. The direct payment was £2322 from 4 April to 5 July 2022. It was £2188 from 6 July to include double up care, respite and attendance at the other day centre.
• The social worker would give him information about training for his PAs. If he had already paid for training then he needed to give the paperwork and costs to the social worker to consider.
• The social worker had completed a CHC checklist and submitted it to the relevant health team. That team was responsible for deciding if Mr Y got CHC funding.
35. Mr X and Mr Y were unhappy with the Council’s first response and escalated the complaint. The Council responded again in September saying it had nothing further to add and signposted them to the LGSCO. They complained to us in November 2022.

Information from Mr Y

36. Mr Y and his PA told me he required experienced PAs trained in supporting adults with multiple disabilities. They said the Council’s hourly rate only allowed him to pay them at the minimum wage rate.

Comments from the Council

37. The Council told me:
• The review of the care and support plan did not identify any need for specialist training for PAs;
• Mr Y had no specialist health professionals involved; urology did not accept a referral;
• It had completed a CHC checklist, but Mr Y declined to have the NHS complete a full assessment until he had had a bowel assessment;
• The OT referral was made to explore if Mr Y needed additional hours and/or equipment. Mr Y said he did not want additional hours, but an increase in the hourly DP rate;
• The OT recommended a seven hour decrease in hours because the transfers only took 15 minutes and so less double handed care was needed. However, the Council did not decrease the hours; and
• It had offered a fully managed DP account, but they declined this.

Comments from Penderels

38. Penderels told me:
• It had no request for support from Mr X or Mr Y in 2022, except for payroll support. One of its advisers spoke to Mr Y’s social worker in May 2023 to ask if he wanted assistance with recruitment. The adviser told the social worker Penderels did not have a high success rate with recruitment for annual leave cover for regular PAs.
• It received an email in September 2023 to ask for support with recruitment and their adviser would contact Mr X and Mr Y.

Was there fault and if so did it cause injustice?

The Council paid an hourly direct payment (DP) rate that was not enough to cover the associated costs of employing PAs and did not reflect the specialist skills, experience and training the PAs need

39. We do not decide the hourly DP rate, this is for the Council. We do not set the amount of direct payment funding either; this is also for the Council. We expect it to follow national guidance when it sets the rate and reviews a person’s care and support plan. The Council has increased its hourly DP rate to reflect an increase to the government’s living wage. This is in line with paragraph 12.27 of Care and Support Statutory Guidance so there is no fault.
40. Care workers are typically paid the national living wage. This is not fault, it is an issue with low pay across the sector that is not within our remit. I have considered Mr X and Mr Y’s submissions about Mr Y’s needs - that he requires PAs which command higher pay because they are required to have specialist skills over and above the standard training and skills needed generally by the social care workforce. The Council does not agree and has paid the standard hourly PA rate. There is no fault by the Council in reaching its decision because it:
• Took action in line with its duties in Sections 3, 6 and 7 of the Care Act 2014 by making referrals to specialist NHS services, completing a CHC checklist and liaising with the NHS which offered Mr Y a full CHC assessment. The records show Mr Y declined the assessment. In doing so, he missed out on an opportunity to see if he had any identified primary health needs which could have meant he was entitled to additional NHS funding through a health personal budget.
• Carried out a specialist OT assessment to identify any complex needs which would point to a need for a DP rate above the standard rate. The outcome was there Mr Y had no additional needs requiring specialist care and the double-handed hours could be reduced (although the Council did not in fact reduce the hours.)
41. The review of Mr Y’s care and support plan in November 2021 was clear about the consequences of continuing to pay the PAs at a higher hourly rate than the Council’s DP rate: this would need to come from his own funds. The Council’s policy allows people to make additional payments for care if they wish, so there is no fault.

The Council failed to provide appropriate support to enable him to recruit, manage and train PAs.

42. The records show the Council approved funding and referred Mr Y to Penderels for support in July 2022, including support with managing the budget, payroll and recruitment support. And the Council offered Mr Y standard training for PAs in August 2022. Mr Y is not satisfied with the training offered and he did not take up the offer of support for recruitment following the referral to Penderels. This is his choice. The Council has acted in line with Care and Support Statutory Guidance as I have set out in paragraph 15, so there is no fault.

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Final decision

43. The Council acted in line with Care and Support Statutory Guidance by reviewing Mr Y’s care and support plan and offering support to manage the direct payment, so there is no fault.
44. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman