Decision : Upheld
Decision date : 29 Oct 2019
The Ombudsman's final decision:
Summary: Mr B complained the Council failed to provide satisfactory support when his carer left and is unreasonably seeking repayment of direct payments. There is no fault in the Council’s decision to recover direct payments. The Council failed to ensure the care provision put in place for Mr B matched his assessed needs for part of the period. That left Mr B feeling vulnerable and unable to stay at home and led to his mother having to step in to provide further care. An apology, financial award to Mr B and his mother and an agreement to liaise with the current care agency to sort out a 24-hour care package is satisfactory remedy for the injustice caused.
- The complainant, whom I shall refer to as Mr B, complained the Council:
- failed to provide him with satisfactory support when his carer left in February 2018; and
- unreasonably sought repayment of direct payments when the Council had not put any alternative care in place.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Mr B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided;
- gave Mr B an opportunity to comment on my draft decision; and
- considered the Council’s comments on my draft decision.
What I found
The Care and support statutory guidance
- The care and support statutory guidance (CSSG) says local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so.
The Council’s direct payments policy
- The Council’s policy says it is the responsibility of the direct payment recipient or other suitable person to provide documentation of expenditure and evidence the money is being used in accordance with the support plan. It says failure to provide documentation may result in a direct payment being suspended, stopped or recovered.
- The policy says where it appears the direct payment has been used for things other than those specified in the support plan or as set out in the direct payment agreement or where there is evidence of deliberate misuse the Council will undertake a full audit to establish the exact amount of money that has been inappropriately used and then seek to recover it.
- The policy sets out the circumstances in which the Council reserves the right to recover direct payments. That includes where a direct payment has not been used to meet agreed outcomes, where the direct payment has not been used due to a temporary change in circumstances and where the recipient fails to meet any of the terms of the agreement.
The direct payments agreement
- The direct payments agreement says if you decide to employ a personal assistant you must meet the legal requirements of being an employer. Section 4.2 says you need to keep financial records to show how the money has been spent and if you do not do so your direct payment could stop.
- Mr B has received a direct payment for his care since 2016. I understand until 2017 Mr B employed a personal assistant with his direct payments money. However, when that assistant left Mr B paid cash in hand to his brother’s girlfriend to provide some of his care. The Council is recovering £14,373.25 of the direct payments made between 2016 and January 2018 because Mr B has not provided evidence to show he spent the money on his care needs.
- The direct payment ended in January 2018. The Council began looking for care agencies and carried out a new assessment in February 2018. That assessment decided Mr B needed some support during the week for daily living and household tasks, background safety support, one-to-one support and sleep ins for two nights a week. That was on the basis other family members were providing some support to Mr B. The only provision put into place between February 2018 and September 2018 was one hour one-to-one mental health support per week.
- The Council completed a further assessment in September 2018. That assessment increased the daytime support and increased the sleep ins to 7 nights a week. However, the care plan issued by the Council only referred to three nights a week sleep ins. Between September 2018 and December 2018 Mr B received three sleep ins per week with evening and one-to-one support, one-to-one support for three hours before each of the three sleep ins and mental health one-to-one support.
- Mr B’s mother stopped the care package in December 2018 as she was not happy with the care provided. At a meeting on 17 December 2018 Mr B’s mother told the Council she understood finding an alternative provider would take time. Mr B’s mother said the family would support Mr B in his own property until the Council identified a care provider. Mr B’s mother said she believed Mr B needed 24 hours support. The Council agreed to source a new provider for three evenings and nights.
- The Council began contacting potential new care agencies in January 2019. A new care provider took over in February 2019. Between February 2019 and May 2019 Mr B received seven sleep ins a week and an extra five hours daytime support, although the daytime support started in March.
- Mr B’s housing association told the Council about continuing complaints from neighbours about noise from Mr B’s property in March 2019. The police and housing association carried out a joint visit to Mr B on 3 April. Mr B’s housing association reported continuing concerns on 15 April.
- On 9 May 2019 the Council carried out an assessment. This identified Mr B needed 24-hour support. I understand the current care provider has agreed to provide a 24-hour care package to ensure continuity of care. However, that has not yet been put into place due to the need to recruit and train new staff. So, Mr B is still receiving seven nights support week with an extra five hours a week daytime support.
- Mr B says the Council failed to put in place satisfactory care. Mr B says he has needed 24-hour care throughout the period in question but the Council has not put in place 24-hour care. The evidence I have seen though satisfies me the Council did not identify 24-hour care as necessary for Mr B until its assessment in May 2019. By that point it had more information about Mr B’s inability to manage in his property on his own and the increasing complaints from neighbours about his behaviour. As the Council had not assessed Mr B as requiring 24-hour care before May 2019 I cannot criticise it for failing to put 24-hour care in before that.
- However, I have concerns about the level of care provided. For the period February 2018-September 2018 the Council accepts it failed to put provision in place. The Council points to the difficulty identifying a care agency to cover the area where Mr B lives as well as difficulties between Mr B and his neighbours which does not create a welcoming environment for care workers. While I understand the Council’s difficulty, failure to put in place provision set out in Mr B’s care plan between February 2018 and August 2018 is fault.
- I am also concerned the Council did not put in place the provision set out in Mr B’s care plan between September 2018 and December 2018. As well as that, the September 2018 assessment recorded Mr B needed sleep ins seven nights a week. However, the care plan only provided for three nights sleep ins. Failure to ensure the care plan reflected the provision set out in the September 2018 assessment and failure to then put in place that provision is fault.
- I do not, however, criticise the Council for the lack of provision between December 2018 and February 2019. The evidence I have seen satisfies me Mr B was without care support during that period because his mother cancelled the care agency in December 2018. As Mr B’s mother has herself noted the difficulty identifying care agencies it is unsurprising the Council could not put in place alternative provision straightaway. I am satisfied though the Council attempted to identify a suitable care agency in January 2019 and put in place provision as soon it could identify an agency able to take on the work. So, I do not criticise the Council for the period December 2018-February 2019. Nor do I criticise the Council for the provision in place up to May 2019. As I understand it the provision in place at that point reflected the assessment in September 2018. While I appreciate Mr B believes he should have received 24-hour support I have already noted the Council did not identify 24-hour support as necessary until May 2019.
- I am concerned about what has happened since May 2019 though. The Council assessed Mr B as needing 24-hour support in May 2019. I understand the Council intended for the current care agency to take over the 24-hour care package. I appreciate this would take some time to put into place given the care agency needed to recruit and train new staff. However, I am concerned that by the beginning of September 2019 the 24-hour care package was still not in place. Instead, Mr B is receiving the same level of care as set out in his September 2018 assessment. That is seven overnights support per week with an additional five hours a week daytime support. Failure to put in place 24-hour care from May 2019 is fault.
- I now have to go on to consider what injustice the failure to put in place appropriate levels of care has caused Mr B. Clearly he has been distressed by the lack of care and has felt unable to spend extended periods in his property alone. That also appears to have contributed to some behavioural issues which have resulted in complaints from neighbours. In addition to that, Mr B’s mother has had to step in and provide additional care to Mr B. Mr B has spent extended periods in his mother’s house as he did not feel able to stay in his own property on his own. The evidence I have seen satisfies me this has placed additional strain on family relationships. Those are serious injustices.
- When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put Mr B back in the position he would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. However, our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. Taking that into account, in this case I recommended the Council pay Mr B £500 to reflect the impact on him of not receiving his assessed level of care for the periods set out in this statement. As the Council is recovering direct payments from Mr B’s account I am happy for the Council to deduct that £500 from the amount owed. The Council has agreed to that recommendation.
- I also recommended the Council pay Mr B’s mother £750 to reflect the significant impact having to provide additional care to her son had on her and her family. As the direct payment is not Mr B’s mother’s direct payment I do not consider it appropriate for the Council to deduct that £750 from the amount it is recovering from Mr B. Instead, I consider that amount should be paid direct to Mr B’s mother. In reaching that view I recognise Mr B’s mother has managed the direct payment for Mr B. Nevertheless, it is clear to me Mr B’s mother has been under significant pressure during the period in question and having to provide additional care to her son has undoubtedly added to that. In those circumstances I consider it appropriate for the Council to make a payment direct to her. The Council has agreed to my recommendation.
- Mr B says the Council should not recover direct payments from him when the Council had not put any alternative care arrangements in place which would have provided him with alternative support. I believe Mr B may have misunderstood who has the responsibility for putting in place care when a direct payment is in place. A direct payment is a payment made by the Council to enable the service user to identify their own support. So, the responsibility for organising the support and sorting out replacement carers when an arrangement comes to an end falls to Mr B or the person managing the direct payment on his behalf, rather than the Council. I understand there have been difficulties identifying suitable carers and putting in place care from January 2018 onwards, which I referred to earlier in this statement. However, that falls outside the period the Council is seeking recovery of direct payments. For the period before the direct payment ended it was for Mr B or his representative to sort out care and any failure to identify care during that period is not the responsibility of the Council.
- As I understand it the problem which has led to the Council recovering direct payments relates to Mr B not keeping evidence of expenditure from his direct payments account to show he has used the direct payments to meet his assessed needs. I set out in paragraphs 6 and 9 the responsibility on the person in receipt of the direct payment or their representative to keep records to support expenditure. As I also make clear in paragraphs 7 and 8 the Council is able to recover direct payments if it is not satisfied the amount has been spent in accordance with what is set out in the support plan. In this case the evidence I have seen satisfies me Mr B has not provided evidence of expenditure for part of the direct payments. Mr B’s mother has also accepted some of the direct payment was used for purposes other than to meet Mr B’s assessed needs and some was paid to a family member to provide care. The records show Mr B’s mother conceded this was not to provide proper care. In those circumstances I cannot criticise the Council for seeking recovery of £14,373.25 as it has not received any evidence to show Mr B used that amount to meet his care needs. The responsibility here lies with Mr B or his representative to have kept the relevant documentary evidence to show what the expenditure was for. In the absence of that documentation I have no grounds to criticise the Council.
- Within one month of my decision the Council should:
- apologise to Mr B and his mother for the faults identified in this statement;
- deduct £500 from the direct payments the Council is seeking to recover from Mr B;
- pay Mr B’s mother £750; and
- liaise with the current care agency to see whether it is able to provide a 24-hour care package within a reasonable period of time. If it is not, liaise with Mr B and his mother to establish whether they would prefer for the Council to seek an alternative provider.
- I have completed my investigation and found fault by The Council in part of the complaint which caused Mr B and his mother an injustice. I am satisfied the action the Council will take is sufficient to remedy their injustice.
Investigator's decision on behalf of the Ombudsman