Summary: Ms B says the Council failed to meet her assessed needs from July 2022, failed to communicate with her about the action being taken and failed to explain the Council’s reasoning. The Council delayed dealing with a care review and in reviewing how Ms B was managing her direct payments and failed to write to her to explain the Council’s reasoning. That likely did not affect the provision of support to meet Ms B’s care needs. An apology, payment to Ms B and agreement to write to her to outline the Council’s decision is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council:
• failed to meet her assessed needs from July 2022;
• failed to communicate with her or her representative about the action being taken;
• failed to consider the representations made by her representative; and
• failed to explain at the meeting in January 2023 or since why the Council could not reinstate her personal budget.
2. Ms B says the Council’s actions have had a significant impact on her mental health.

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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. When considering complaints 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.
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 Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Ms B 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

What should have happened

The care and support statutory guidance

8. This says an 'assessment' must always be appropriate and proportionate. It may come in different formats and can be carried out in various ways, including but not limited to:
• a face-to-face assessment between the person and an assessor;
• a supported self-assessment, which should use similar assessment materials as used in other forms of needs or carers' assessments, but where the person completes the assessment themselves and the local authority assures itself that it is an accurate reflection of the person's needs (for example, by consulting with other relevant professionals and people who know the person with their consent);
• an online or phone assessment, which can be a proportionate way of carrying out assessments (for example where the person's needs are less complex or where the person is already known to the local authority and it is carrying out an assessment following a change in their needs or circumstances);
• a joint assessment;
• a combined assessment.
9. A supported self-assessment is an assessment carried out jointly by the adult with care and support needs or carer and the local authority. It places the individual in control of the assessment process to a point where they themselves complete their assessment form. Whilst it is the person filling in the assessment form, the duty to assess the person's needs, and in doing so ensure they are accurate and complete, remains with the local authority. Local authorities can offer individuals a supported self-assessment and must do so if the adult or carer is able, willing and has capacity to undertake it. If the person does not wish to self-assess, then the local authority must undertake an assessment following one of the other processes outlined above.
10. Before sharing any information, the local authority must ensure the person consents to that information being shared.

The Council’s direct payments policy and procedure

11. The Council’s direct payments policy and procedure says direct payments are made to enable people to make their own arrangements to meet eligible social care needs.
12. The amount of money allocated to fund the care and support required to meet individual's needs is known as a personal budget.
13. When certain conditions as outlined in the Care Act 2014 are met all or part of the Council's proportion of a personal budget can be paid direct to the person concerned to meet needs as identified in the support plan.
14. The direct payments will be provided when requested by an adult with capacity to do so when various conditions are met. That includes where the local authority is satisfied the adult or nominated person is capable of managing direct payments either by himself or herself, or with whatever support the Council thinks the adult or nominated person will be able to access and where the Council is satisfied making direct payments is an appropriate way to meet the needs in question.
15. Direct payments are based on assessed needs and cannot be offered until a full assessment or review has been carried out. Once the level of need has been identified the services that are required to support those needs will be determined by the Council in discussion with the service user. A support plan will then be developed to identify how the eligible needs will be met and this will specify a personal budget.
16. In all cases the service user should retain a percentage of the funding in a contingency fund to cover ongoing employment costs, HMRC/NI requirements, emergency care cover and agency hourly costs if required. The contingency fund should normally equate to 4 weeks of the total value of the weekly direct payment.
17. The direct payments may only be used to pay for arrangements to meet the needs specified in the support plan. They must also be used to purchase services which are safe, legal and which adequately safeguard and promote the person's welfare and well-being.
18. Direct payments may be subject to conditions imposed by the Council and may be discontinued and/or recovered if the Council has reason to believe they may have been misspent or accumulated without good reason.
19. Service users may use direct payments to employ personal assistants (PAs), to engage self-employed PAs or to pay an agency to provide services.
20. The Council's chosen method for providing a direct payment is through the Bristol direct payments account (BDPA). The Council contracts with a provider for the provision of the BDPA. This approach uses a bank debit card that is issued with the account. This card is prepaid and has no credit facility and operates like a debit bank account allowing transactions to be made into and out of the account.
21. The Council has a duty to ensure social care funds are used effectively. Should the service user decide they want a direct payment the Council will facilitate the process while retaining responsibility to ensure the money is used appropriately to meet the needs identified.
22. There is a requirement for regular review and in certain circumstances the Council may determine the direct payments should be ended.
23. The service user is required to sign a direct payment agreement to agree to the terms and conditions. The agreement sets out the responsibility of the service user to use the direct payments only for the purpose of meeting assessed eligible needs as identified in the support plan.
24. The direct payment rate for PAs includes an amount for national insurance, tax and employment insurance. It is the responsibility of the service user to ensure all returns and payments are made to HMRC.
25. Reviews to ascertain whether direct payments remain an appropriate way of meeting the service users needs will be carried out at any time the service user requests or if the Council considers certain circumstances have been met. This includes where the Council considers direct payments have not been used as intended. The Council will exercise its discretion in each case.
26. Following a financial review the Council will provide the service user with written advice that the account has been reviewed and will raise any identified concerns.
27. The outcome of any review will be confirmed in writing to the service user.
28. The service user is required to keep financial records retaining copies of payments received and made including monthly timesheets, payroll, bank statements, BACS advice slips, receipts, invoices, cheques and any cash withdrawals.

What happened

29. Ms B has had direct payments for some years. It 2019 the Council had some concerns about transactions on the account. Although the Council met with Ms B to discuss those concerns they were not taken forward. The Council had made clear though Ms B could only use her direct payments for assessed needs.
30. The Council reviewed Ms B’s care package later in 2022 and agreed to 39 hours direct payment and an additional 12 hours for a commissioned service. Care agency A initially agreed to take on the package of care but later withdrew. Care agency B began providing the 12 hours from 26 May 2022.
31. Ms B contacted the Council on 1 June as she had concerns about the times carers were visiting. Ms B said this prevented her going out.
32. Care agency B raised some concerns about Ms B’s actions during carer visits at the end of June. At around that time the Council decided to allocate a new officer to deal with Ms B due to what it considered inappropriate emails from Ms B to the allocated officer.
33. Ms B cancelled the commission service from care agency B in July. The Council became aware of that on 14 July.
34. Ms B spoke to an officer on the Council’s duty desk on 27 July. The Council says Ms B was abusive during that telephone call. The duty worker told Ms B the Council would need to complete a review before it amended the support plan as Ms B was asking for the 12 hours to be added onto her direct payments.
35. Ms B’s representative contacted the Council on 18 August, 14 and 25 October and 2 November. On each occasion he asked the Council to add the 12 hours onto Ms B’s direct payments. On 8 November the Council told Ms B’s representative it could not do that without carrying out a review.
36. The Council allocated a new officer to deal with Ms B’s case in November 2022. That officer made a referral to the case discussion forum to ask for an increase of 12 hours in Ms B’s direct payment. The case discussion forum considered that request and did not agree the increase due to ongoing concerns about how Ms B was spending her direct payments. The Council decided a full review was required before it could make a decision. The Council told Ms B’s representative a face-to-face review was required on 22 November.
37. A Council officer telephoned Ms B to arrange a review on 20 December. That officer then contacted Ms B’s representative on 23 December. On 10 January 2023 Ms B’s representative told the Council Ms B agreed to meet at an accessible venue. A meeting was subsequently arranged for 27 January. Before that meeting the Council sent Ms B’s representative an agenda, a copy of the direct payments policy and told him members of the direct payments team would also attend the visit.
38. At the visit on 27 January Ms B became upset and the Council was unable to complete the review of her care needs due to difficult discussions about how Ms B was spending her direct payment. The Council left Ms B with a copy of the guidance on using direct payments, guidance on employing PAs and the audit factsheet.
39. The Council sent Ms B’s representative a copy of the consent to share information form for Ms B to complete on 6 February. The Council asked whether the representative had managed to discuss the direct payments guidance with Ms B. In response the representative told the Council Ms B wanted to complete a self-assessment rather than have another in-person assessment with an officer. Ms B’s representative gave the Council some information about how Ms B had arranged her care.
40. The Council again asked Ms B’s representative to get Ms B to sign the consent to share form. The Council told Ms B’s representative it was not satisfied from his explanation of how Ms B was spending her direct payments that she was doing so correctly. The Council said it would take some advice.
41. Ms B’s representative contacted the Council again on 7 March to tell it Ms B did not have sufficient funds to pay for her care and support and had been using her contingency and personal income to try and cover the hours and care she needed. The Council agreed to draft a letter to address the issues with Ms B’s direct payment. The Council accepts it failed to do that.
42. At the end of March Ms B’s representative asked the Council who it would contact if Ms B signed the consent to share form. The Council said this would be other professionals to provide information about Ms B’s needs to inform the care review. The Council also said due to the complexity of the case it felt a self-assessment was not appropriate
43. A further review of Ms B’s spending of her direct payment in May 2023 identified large amounts being transferred into Ms B’s personal bank account.
44. The Council contacted Ms B’s representative at the end of May 2023 where it said the Council would send Ms B a letter to outline its plans and expectations on how to move the case forward. The Council accepts it failed to do that.
45. The Council has accepted there were some delays dealing with the case and has offered Ms B an apology and £250.

Analysis

46. Ms B says the Council failed to meet her assessed needs from July 2022. Ms B says at that point the Council knew her commissioned service of 12 hours per week had stopped and yet it failed to increase her direct payments budget to cover the additional 12 hours. Ms B says in doing so the Council failed to take into account the impact having less hours would have on her.
47. The evidence I have seen satisfies me it was Ms B’s decision to end the commissioned service in July 2022. There is no evidence Ms B discussed that decision with the Council before she stopped the service. Nor is there any evidence Ms B asked the Council whether it would be able to increase her direct payments budget to cover the additional 12 hours before she stopped the service. Had Ms B spoken to the Council about that decision before she made it the Council may have been able to manage Ms B’s expectations about whether it could simply increase her direct payments budget to cover the additional hours.
48. Given it is clear the Council had some concerns about how Ms B was managing her existing direct payments budget it seems likely, on the balance of probability, if Ms B had spoken to the Council about that option before she stopped the care service the Council would have explained it would not increase her direct payments budget without a further review. That would have given Ms B the opportunity to decide whether to keep the commissioned service in place pending the outcome of that review. As Ms B did not discuss her decision with the Council in advance I consider it likely she has contributed to her own injustice here.
49. I am concerned though there is no evidence the Council took action to arrange the review until November 2022. I appreciate the Council says the delay occurred because it had to identify a new officer to complete the work with Ms B due to some issues with how Ms B had dealt with the previous officer. In those circumstances I would have expected the Council to discuss with Ms B the option of an alternative commissioned service to fill in the gap until it could arrange a formal review. I have seen no evidence the Council did that. That is fault. I accept though Ms B has been clear she did not want another commissioned service. It therefore seems likely if the Council had offered her another commissioned service she would have refused. Nevertheless, I consider Ms B has some uncertainty about whether she could have received the additional care hours from July 2022 via another commissioned service if the Council had dealt with the matter properly.
50. I am satisfied the Council took Ms B’s request for an additional 12 hours direct payment to panel in November 2022, despite the fact it had concerns about how she was managing her direct payment. When the panel declined to fund an additional 12 hours though I would have expected the Council to discuss with Ms B the option of another commissioned service. Failure to do that is fault. I do not consider it likely the situation would have been different at that point given Ms B’s stated wish not to use a further commissioned service. I therefore, again, consider Ms B’s injustice is limited to her uncertainty about whether the outcome would have been different.
51. It is clear the main issue here for the Council is whether Ms B has used her existing direct payments account properly. It is clear this is a matter which was raised with Ms B in 2019 and the Council has continued to have concerns about how Ms B has managed her direct payments since then. In those circumstances I would have expected the Council to write to Ms B or her representative to properly explain its concerns about how she was managing her direct payment. I appreciate those concerns were discussed with Ms B at the meeting in January 2023. However, it is also clear Ms B was in an emotional state at that point. I would therefore have expected the Council to follow up that meeting with a letter to Ms B outlining its concerns and to fully explain its reasoning for not increasing the existing direct payment. That would also have given the Council another opportunity to offer Ms B a commissioned service.
52. I am particularly concerned about the Council’s failure to write to Ms B or her representative following the meeting in January 2023 given the Council’s documentary evidence is clear a letter should have been sent in March 2023. Failure to write to Ms B is fault. Not only did that mean she was not given an opportunity to engage with the Council about the issues relating to how she was managing her direct payment but it also meant she was not given any clear guidance about what she needed to do to satisfy the Council she was using her direct payment appropriately. That has clearly caused Ms B some distress.
53. I am satisfied the reason the Council had not completed the care review by the time I made enquiries on the complaint was due to Ms B’s unwillingness to engage with the Council. The evidence I have seen satisfies me the Council had made clear its willingness to arrange a further appointment with Ms B but she had not engaged with that. I am also satisfied the Council had considered the possibility of a self supported assessment and explained why it could not progress that without Ms B completing the consent form so the Council could verify the information Ms B provided. However, Ms B had failed to return the completed form by the time I began my investigation. I therefore cannot criticise the Council for any delays completing the care review following January 2023.
54. It is clearly Ms B’s view fault by the Council is the reason why she has not had her 12 hours reinstated. However, as I have made clear, it was Ms B’s own decision in July 2022 to stop the commissioned service without having anything else in place which led to her no longer receiving 12 hours support. Given her reluctance to accept a further commissioned service and her unwillingness to engage with the Council over the review process I could not say she missed out on the 12 hours provision per week due to fault by the Council. Instead, I consider Ms B’s injustice is limited to her uncertainty and distress. To remedy that I recommended the Council apologise to Ms B and pay her £300. The Council has agreed to my recommendation.
55. In addition I recommended the Council write to Ms B to detail the outcome of its audit of her direct payments and explain how it intends to go forward. I also recommended the Council write to Ms B to explain what needs to happen to enable the care review to take place to give Ms B a further opportunity to engage. If that does not happen the Council should discuss with Ms B the other options available to her, such as a further commissioned service. I note the Council has already acted on those recommendations by writing to Ms B on 30 November 2023.
56. The other areas of the complaint Ms B is concerned about relate to the Council’s failure to properly communicate with her or her representative. I will not repeat here the issues I have already mentioned about the lack of written explanations provided to Ms B or her representative. However, there was also a failure to respond to the representative’s emails in August and October 2022. That is also fault. To remedy that I recommend the Council apologise to Ms B’s representative.

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Agreed action

57. Within one month of my decision the Council should:
• apologise to Ms B for the distress and uncertainty she experienced due to the faults identified in this draft decision;
• apologise to Ms B’s representative for the failure to respond to his contacts in August and October 2022;
• pay Ms B £300; and
• provide evidence to the Ombudsman that it has written to Ms B to offer her the opportunity to complete a care review and, if she is not willing to do that, to discuss her other options with her, such as a further commissioned service for the 12 hours she is assessed as needing;
• provide evidence to the Ombudsman that it has written to Ms B to tell her the outcome of its audit of her direct payments.
58. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet.

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Final decision

59. I have completed my investigation and found fault by the Council in part of the complaint which caused Ms B an injustice. 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