Summary: Mrs X complains the Council has failed to provide her with the care and support it has assessed her as needing, causing her distress and putting unreasonable pressure on her husband. The Council was at fault as: it failed to review her care and support plan to make sure her personal budget was enough to meet her needs: left her with little choice but to accept direct payments which she did not want; has failed to meet all her needs since February 2023; did not complete her June 2022 care and support plan properly; and failed to give due regard to her rights under the Human Rights Act 1998 when responding to her complaint. The Council has agreed to apologise, pay financial redress and take action to improve its services.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to provide her with the care and support it has assessed her as needing, causing her distress and putting unreasonable pressure on her husband.

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The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mrs X lives in a remote area (15 miles from the nearest town). She has a condition which affects her mobility. She lives with her husband who works long shifts, so is often not around to provide support.
6. In May 2022, the Council was commissioning nine and a half hours a week of support for Mrs X from care provider A.
7. On 25 May care provider A told the Council it could not provide Mrs X’s care package, as her main care worker was off work that week and it had to prioritise people who needed personal care. It said Mrs X asked its care workers to do household tasks. It said it would prefer to visit her in the afternoon, as it had had to turn down other care packages for help with personal care, as Mrs X wanted someone to visit at 09.00. When the Council contacted Mrs X, she said this always happened (suspending visits) when her main care worker was away. She pointed out that her care and support plan provided for personal care but her husband helped her with these tasks. She said she would get the care workers to do all the tasks but her personal budget would need increasing to cover the extra time. The Council said it did not think care provider A would be able to take on extra hours, and no other care providers worked in her area. It said she may need to consider direct payments if she needed extra hours, but she said she did not want direct payments. She said she would be able to cope over the next week, as her husband would be around in the mornings to help her.
8. On 13 June care provider A told the Council it could not cover Mrs X’s calls after 6 July, as her main care worker was leaving. Care provider A agreed to tell Mrs X, but failed to do so. The Council contacted three other care providers, but they could not take on Mrs X’s care package.
9. The Council produced a care and support plan for Mrs X in June. However, it does not identify her eligible care needs, as most of the form was left blank. It said her planned personal budget was £162.69 a week to pay for nine and half hours of support a week.
10. The Council told Mrs X it could advertise for another care provider, but was unlikely to have one in place by 6 July. It offered direct payments but said these would also take time to arrange. Mrs X did not want direct payments and said she could not manage without care. The Council told her the only other option was residential respite care. It said she could use direct payments to employ a family member, which Mrs X said could help.
11. The Council spoke to Mrs X about direct payments on 27 June and sent her information about them, including a template for an advert. It noted she would need help with recruitment.
12. The next day Mrs X asked about a higher hourly rate, but the Council said the maximum was £10.50.
13. Care provider A agreed to provide nine and a half hours. However, on 29 June it told the Council Mrs X had visited its office to complain about the failure to provide a care worker that morning. The next day the Council arranged an advert for Mrs X’s care package.
14. On 20 July Mrs X raised concerns about the Council’s rates. It said there may be room for negotiation, given her remote location. According to its records, Mrs X suggested rates which were considerably higher than its agreed rate.
15. On 21 July Mrs X told the Council she may have to rethink how to meet her needs, as there had been no response to the advert. She noted high fuel costs and her remote location may have put people off from applying. She asked if she could use two agencies, care provider B and a cleaning agency. The Council said this would be acceptable but noted her direct payment would not cover care provider B’s hourly rate, so she would have to pay a top-up. Mrs X asked if her husband could meet her social needs (accessing the community) and use her direct payment to cover their expenses. The Council said she could only use the direct payment to pay a care worker to support her, not to pay for social expenses.
16. On 27 July the Council agreed Mrs X would meet her needs using care provider B and the cleaning agency.
17. The Council arranged for Mrs X’s direct payment to start on 10 August with a rate of £17.49 an hour, with Mrs X paying the difference between this and care provider B’s rate.
18. On 26 August Mrs X told the Council it no longer needed to advertise her care package, as she was satisfied with the arrangements in place.
19. The Council reviewed Mrs X’s needs on 27 September. She confirmed there had been no changes since her last assessment. Her September 2022 care and support plan identified the need for support with:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Making use of facilities or services in the local community, including public transport
20. The plan provided for a personal budget of £223.38 a week. This was to buy nine and a half hours of support a week. Mrs X said the only problem was having to pay a top-up to care provider B. The Council advised her to look for another care provider or consider employing a personal assistant.
21. From 2 January 2023, the Council increased its hourly rate to £20. This increased Mrs X’s personal budget to £190 a week.
22. On 28 January the Council confirmed it would increase Mrs X’s direct payment to cover care provider B’s charges for five hours a week £125.18 (three hours at £23.90 an hour and two hours at £26.74). The Council noted Mrs X had initially received four and a half hours of support a week from a befriending service (this appears to have been a reference to the cleaning agency) but this had now stopped. However, the cleaning agency continued to support Mrs X into February.
23. On 30 January Mrs X told the Council she was unhappy it had pressurised her to accept direct payments, as the only other option available had been to move to residential care. She said she was not yet ready for residential care.
24. The Council visited Mrs X on 14 February to review her care and support plan. Its record of the visit said it would:
• Ask the Commissioning Team to find a new care provider (the record does not say whether this was to take on her full care package, or just the five hours covered by care provider B).
• Refer her husband for a carer’s assessment.
• Refer Mrs X’s concerns about the top-up (£40 a week) to management.
25. On 16 February care provider B agreed to add domestic duties to the tasks. However, there was no increase in its hours. Other care providers contacted by the Council said they could not take on Mrs X’s care package. The Council told her it would have to advertise her care package again. Mrs X said she was not happy about this, as no care provider agreed to take it on the last time. She said she could not go on paying the top-up. She said it was unfair when the Council’s financial assessment said she could not afford to contribute towards the cost of her care. She said she did not want a direct payment but wanted the Council to commission her care. She said she would make a formal complaint.
26. The next day, in an internal e-mail, the Council noted:
• “Unfortunately we have a post code lottery situation here where the client’s remote location disadvantages her from contracted care services from which she has been forced into debt through the direct payment arrangements and top-ups, when her [Council} financial assessment stated she was not required to make a contribution.”
27. The Council told Mrs X it would refund the top-up paid to care provider B from the date it started and would increase her direct payment to cover this on a temporary basis.
28. When the Council told care provider B about the new arrangement, it said the Council should commission Mrs X’s care direct. The Council’s records say it would not commission care from care provider B because of its high cost, only via a direct payment.
29. On 28 February Mrs X told the Council the cleaning agency could no longer support her because of staff shortages. The Council said it would let her know when her managed account had been set up. Care provider B agreed to consider providing an extra two hours a week of domestic support for Mrs X. The Council told Mrs X about this.
30. On 1 March care provider B told the Council it could not provide additional hours for Mrs X. The Council told Mrs X who expressed her dissatisfaction with the lack of progress.
31. In March the Council moved Mrs X to a managed account. It increased her personal budget by £25 a month (£26 from May 2023) to cover the cost of managing the account for her.
32. When the Council replied to Mrs X’s complaint in March, it said:
• It was the Council’s responsibility to tell someone a care provider had given notice, if it had commissioned their care.
• It accepted she had had no choice but to commission care provider B, which charged more than its hourly rate. It had therefore agreed to cover the additional costs until a new care provider could be found and to refund £657.10 Mrs X had paid herself.
• It had been open with her in discussing the options available to her when care provider A gave notice, including direct payments and residential respite care until a care package could be sourced.
• It had been Mrs X’s choice to do without care, rather than accept residential respite care.
• In meeting Mrs X’s needs, it followed the Care Act 2014, rather than the United Nations Convention on the Rights of People with Disabilities 2008 or the Human Rights Act 1998, which Mrs X had said it failed to take account of.
• It was sorry Mrs X was “so unhappy with matters that you felt moved to make a formal complaint”.
33. The Council’s records say it arranged for another care provider to take over Mrs X’s care package from 10 April. But there is nothing to explain what that would have involved (i.e. nine hours a week or less), what it would have cost or whether the Council told Mrs X about the proposal. But on 6 April the Council decided to leave the package of care with care provider B “for continuity of care”.
34. On 25 April Mr X told the Council he was struggling with his carer’s role due to ill health and asked it about providing additional support.
35. They Council arranged to visit Mrs X on 16 June to review her care and support plan and do a carer’s assessment for Mr X. However, Mr X was unavailable. There is nothing in the Council’s records about rearranging the visit.
36. The Council pays money into Mrs X’s direct payment account every four weeks. It initially paid £664.64. This increased to £760 from January 2023. Since 6 March 2023 the Council has paid £885.72.

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Legal and administrative background

37. Having assessed Mrs X’s needs under the Care Act 2014 and decided she had eligible needs for care and support, the Council had a duty to meet those needs.

Section 16 of the Care Act 2014

38. Everyone whose needs the council 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. It should confirm the final amount of the personal budget 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 enough to meet the person’s care and support needs.
39. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.
40. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
41. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
42. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
43. Not all rights operate in the same way. Instead, they break down into three separate categories:
• Absolute rights: those which cannot be interfered with under any circumstances;
• Limited rights: those that can be interfered with in certain circumstances; and
• Qualified rights: those rights where interference may be justified in order to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
44. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
45. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

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Conclusions

46. When the Council’s care provider gave notice for Mrs X’s package of care in June 2022, it only considered other care providers which accepted its hourly rate. When they were not prepared to take on her care package, it should have reviewed her care and support plan and made sure her personal budget was enough to meet her needs. The failure to do so was fault by the Council. It should also have considered other care providers, including care provider B which specialises in supporting people living in remote communities, which charge more. Had it done so, it may have been possible to avoid the lack of care provision between 7 July and 9 August 2022. That caused injustice to Mr & Mrs X, as they had to cope without any formal support.
47. Mrs X did not ask for direct payments and repeatedly told the Council she did not want them. When her care arrangements broke down it only gave her two options, residential respite care or direct payments. That was fault by the Council, as the option of Council commissioned care should have remained open to her. When Mrs X identified care provider B and the cleaning agency to meet her needs, the Council should have commissioned them directly. The failure to do so was further fault by the Council. Had it done so, it would have avoided the delays caused by the time taken to set up the direct payment and any question of Mrs X paying a top-up to care provider B. Fortunately the Council eventually recognised it had been at fault over the top-up and agreed to refund the additional costs she had paid and to pay the full costs until another care provider could be found. While that remedied the financial injustice to Mrs X, it did not address the avoidable distress caused to her.
48. The Council has failed to meet all Mrs X’s needs since the cleaning agency stopped visiting her in February 2023. It has argued that, as it continues to pay her personal budget as a direct payment, it is continuing to fulfil its duty to meet her needs. But that is not the case, not least because Mrs X never wanted a direct payment in the first place.
49. When the Council produced a care and support plan in June 2022, it did not complete it properly. This meant it was unclear what needs the Council had agreed to meet.
50. The Council told Mrs X the only legislation relevant to meeting her care and support needs was the Care Act 2014. But that was not the case, as the Council has a duty to respect and protect individuals’ rights under the Human Rights Act 1998. Indeed, section 73 of the Care Act says this duty extends to care providers carrying out some functions on behalf of local authorities. The Council’s response to Mrs X’s complaint failed to give due regard to her human rights. However, this was not the primary cause of the injustice it has caused her.

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Agreed action

51. The Council has agreed to take these actions to remedy the injustice it has caused:
• within four weeks:
1. Write to Mrs X apologising for the failure to meet all her needs since February 2023 and forcing her to accept direct payments when she did not want them;
2. Pay her £1,000 for the distress it has caused her;
3. Review her care and support plan with Mrs X to ensure her personal budget is enough to meet all her needs and commissions all the care and support it has assessed her as needing;
• within eight weeks identify the action it is going to take to ensure officers understand the Council’s duties under the Care Act 2014 to:
1. meet people’s eligible care needs;
2. increase personal budgets when a cheaper solution cannot be found;
3. only provide direct payments if people request them;
4. produce care and support plans which meet the requirements of the Care and Support Statutory Guidance; and
5. take account of people’s rights under the Human Rights Act 1998 when responding to complaints.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation on the basis the Council has been at fault which has caused injustice to Mrs X which warrants a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman