Summary: We will not investigate this complaint about alleged fault by the Council in providing the complainant with direct payments to fund her care and support. This is because the Council needs to be able to carry out appropriate checks of the complainant’s circumstances which she is declining to allow to take place. There is insufficient evidence of fault in respect of the Council’s response to why the checks are necessary to warrant our involvement.

The complaint

1. The complainant (Miss F) complains the Council has delayed in carrying out a care assessment to determine her needs for social care support, as well as a financial assessment to assess her eligibility for Council funded care and support. She says the Council has wrongly suspended her request for direct payments so she can arrange her own care because she wishes to use a self-employed personal assistant, rather than employee one herself.
2. In addition, Miss F complains about the improper use of her personal information by the Council’s contractor which provides direct payment support to services users, as well as carrying out necessary information checks.
3. In summary, Miss F says the alleged fault has meant she has not received the direct payments she is entitled to. She also says her carer has been unpaid. Miss F explains this has caused an immense amount of distress and undermined her autonomy and independence. As a desired outcome, she wants the Council to pay the arrears she is owed in direct payments. Miss F says the issue of her carer’s employment status is a matter for her and should not interrupt the process to make direct payments. She also wants compensation on account of the delays.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B)).
5. We normally expect someone to refer the matter to the Information Commissioners Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).

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How I considered this complaint

6. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. When the Council first assessed Miss F’s request to use a self-employed carer using her direct payments, the Council told her there was a “blanket ban” on these types of arrangements. The Council has accepted this was incorrect as there were certain circumstances this would be permissible. It says it should have flagged this with its contractor before making a decision in this respect. This was fault by the Council. However, I do not consider this caused Miss F serious loss, harm or distress because regardless, the Council will need to carry out the necessary checks on her carer’s employment status. As I understand, Miss F is declining to allow this process to take place. I have also considered that Miss F is still currently receiving care which limits any injustice she is suffering.
8. I recognise Miss F says the employment status of her carer is not a matter for the Council. However, I do not agree with this perception as the care and support statutory guidance states councils should have regard to whether there will be costs such as recruitment costs, Employers’ National Insurance Contributions, and any other costs. In addition, a self-employed carer may need to be registered with the Care Quality (CQC) Commission which regulates the standard of care service users receive. The Council has a responsibility for ensuring that a direct payment is appropriate to meeting the needs of the service user and whether a carer ought to be registered with the CQC is relevant to that assessment.
9. The employment status of Miss F’s carer is therefore necessary to determine the scope of who bears certain obligations to determine the personal budget and direct payment amounts. As the Council has informed Miss F, it is lawfully entitled to request ongoing information as part of its monitoring process. The Council has therefore encouraged Miss F to engage with its contractor which provides direct payment support to service users so that the necessary checks relating to her carers employment status can be carried out. In my view, this is the appropriate response and there is insufficient evidence of fault to warrant an investigation.
10. Separately, Miss F has raised concerns about data protection in her complaint. The ICO is responsible for data protection matters and for investigating concerns about improper use of personal data. We normally expect someone to refer the matter to the ICO in these circumstances. I see no exceptional reason why Miss F cannot do this and so the restriction I outcome at Paragraph 5 (above) applies.

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Final decision

11. We will not investigate this complaint because there is insufficient evidence of fault and injustice to warrant our involvement. We also consider it would be reasonable for Miss F to complaint to the ICO about data protection issues.

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Investigator's decision on behalf of the Ombudsman