Decision : Upheld
Decision date : 04 Oct 2019
The Ombudsman's final decision:
Summary: Mr X complains that the Council suspended his carer’s direct payment wrongly, intimidated him and did not respond to his complaints about this. The Ombudsman finds the Council was at fault in charging Mr X and this caused Mr X’s payment to be zero. It also caused him distress and a loss of service. The Council has agreed to reverse its charging decision so Mr X will now continue to receive his regular payment. It will pay him £800 to recognise the service he lost.
- The complainant, whom I shall refer to as Mr X, complains that the Council:
- pressured him to sign a financial assessment form and made him feel intimidated.
- stopped paying his carer’s direct payment in October 2018.
- did not explain or respond to his complaints about this.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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
- I considered information from the Complainant and from the Council.
- I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
What I found
- Section 20 of the Care Act 2014 requires local authorities to meet a carer’s eligible needs for support.
- Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
- The Care Act 2014 makes clear the local authority may meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs, and how the Council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day to day life. Part of the planning process should be to agree the manner in which the carer will use the personal budget to meet his or her needs. (Care and Support Statutory Guidance 2014)
Charging for support to carers
- The Care and Support statutory guidance says:
- “Where a carer has eligible support needs of their own, the local authority has a duty, or in some cases a power, to arrange support to meet their needs. Where a local authority is meeting the needs of a carer by providing a service directly to a carer, for example a relaxation class or driving lessons, it has the power to charge the carer. However, a local authority must not charge a carer for care and support provided directly to the person they care for under any circumstances”.
- “Where a local authority takes the decision to charge a carer, it must do so in accordance with the non-residential charging rules. In doing so, it should usually carry out a financial assessment to ensure that any charges are affordable”.
- The Council’s policy on direct payments says:
- “The Direct Payment bank account may be subject to an audit to ensure that the Direct Payment is being used for the purposes laid out in the Care and Support Plan with accurate receipts and records being kept. Any discrepancies will be investigated and resolved…”
- “The individual or their nominated/authorised person shall keep all documents and records generated in connection with the provision of care and support provided by a Direct Payment Agreement with Redbridge Council for a period of six years following the end of the agreement. The documents or records held by the individual or their authorised/nominated person may be inspected by Redbridge Council at any point during this period”.
- “Redbridge Council has the right to suspend or terminate the Direct Payment as a result of the findings of the audit of the Direct Payment account…”
- “Failure to comply with the auditing and monitoring of your Direct Payment may result in the Direct Payment being temporarily suspended until evidenced”.
- Mr X is carer for his mother Mrs Y, who has medical conditions which cause her difficulties with daily living activities. Mr X has a lasting power of attorney for both finances, and health and welfare.
- Mrs Y received a direct payment which Mr X used to employ personal assistants to help support her. Mr X has received a carer’s direct payment for over ten years. The Council reviewed this in February 2011, May 2013, and June 2015. It says Mr X “receives 15 hours a week carer’s support via Direct payments. [Mr X] is using this for approximately 3-4 hours per week to give himself a break from his caring role; 4 hours a week to enable him to continue with his voluntary work; and 7 hours a week to enable him to continue his [professional training]. This would enable him to return to his profession when able to”. This payment was £196.50 per week.
- On 14 April 2018, the Council wrote to Mr X advising him to complete a financial assessment form. Failing to do this can result in a person being charged the full cost of the support provided directly to the carer.
- On 20 July, two officers from the Council visited to assess Mrs Y but they were about 45 minutes late and she was asleep. Council records note the officers discussed the Council’s charging policy with Mr X and gave him a letter and a charging leaflet. Mr X signed the form to confirm he had received this but says he felt intimidated by the officers and signed under duress. The letter says:
“If you are assessed for ongoing long term support you will be required to have a financial assessment. The service you are currently receiving long term support. The enclosed Charges leaflet informs you of the conditions of the Council’s charging policy. It is important to note that you must pay any assessed contribution charge based on your financial assessment”.
- The Council last paid a direct payment to Mr X on 12 November 2018. It has not paid one since because it assessed him as needing to pay the full cost of his support because he did not complete a financial assessment.
- On 19 November, Mr X wrote to the Council. He said the visit on 20 July was a complete shambles and he had asked the officer attending to ask the team manager to contact him. He says the social worker did not explain the charging information but insisted on Mr X signing for an assessment form. He also attended with an assistant without advising Mr X of this in advance.
- On 5 December, the Council wrote to Mr X advising that it was investigating his complaint under the adult social care complaints procedure. It said this meant it would send him a full response by 7 January at the latest but “all attempts will be made to send a response sooner”. Mr X replied asking the investigating manager to be mindful that his direct payments were suspended. The Council responded saying the manager would be aware as Mr X had stated this in his correspondence.
- On 16 December, Mr X wrote to the Council. He said he now understood the Council had assessed him as needing to make the maximum financial contribution. He said the Council had already financially assessed Mrs Y and as his direct payment was to support him as carer for Mrs Y, he should not be charged. He asked that the investigating manager be advised of this. Mr X did not get a response to this email and asked again.
- On 4 January, the Council confirmed the investigating manager was looking into the issues Mr X had raised and said he could expect a full written response the following week.
- On 8 January 2019, the Council wrote to Mr X. It apologised for the lack of communication and said had overlooked responding to his letter. It also apologised that Mr X had felt intimidated and said it was normal practice for officers to discuss the charging policy so that everyone is aware. It explained that Mr X was advised to complete a financial assessment form in April 2018. It said the letter said that failing to do so could result in Mrs Y being charged the full amount for her services. Also that services would cease from 29 October if he did not complete the form and return to the Council.
- The Council says Mr X has not engaged with its requests to assess or review Mrs Y’s care and support needs or his own. Despite repeated requests it has been unable to complete an adequate assessment or review. It says Mr X has also not sent in the returns he is required to do to evidence the use of his direct payment. It says this means it does not know what Mr X has used the money for.
Was there fault which caused injustice?
- Mr X’s support arrangement predates the Care Act, and it is unclear whether the carer’s direct payment is intended to provide support direct to Mrs Y, or to Mr X. The Council awarded this payment to enable him to continue with his voluntary work and professional training. I am satisfied, on the balance of probabilities, this was intended to provide him with the time to do these activities and therefore to purchase care for Mrs Y. All the available evidence suggests Mr X has been using the direct payment to pay carers to care for Mrs Y. In the absence of any information to suggest the Council expected Mr X to spend his direct payment on services for himself, it cannot charge him. It should not have asked him to complete a financial assessment and therefore should not have assessed him as needing to pay the full cost of his support. Mr X says he has not had any respite since October 2018, because the full cost charge has meant he has not received any payment. The Council was at fault in charging Mr X and caused him to be without support for almost one year. This caused Mr X significant and avoidable distress. It should now reverse its charging decision and ensure Mr X is not charged.
- In reversing the charging decision, the Council need not pay Mr X any backdated funds which may become due, as Mr X cannot now have the support he lost. However, the Council should pay him a sum in recognition of the distress it caused him and the loss of his support service.
- Currently, the Council’s care plan does not meet the requirements of the Care Act, or the preceding legislation. It must be clear what the payment is intended to achieve and Mr X must be clear what he can spend the money on. The Council should now offer Mr X an assessment with a deadline for completion; this should be no longer than two months. I anticipate this should include an assessment of Mrs Y since Mr X’s need for support is linked to Mrs Y’s needs. The Council should not change the care plan without an assessment but it does not have to continue providing support without an up to date assessment.
- If the Council is unhappy with Mr X’s failure to complete the required returns for his direct payment, it should follow its policy on this. This is not related to the decision to charge or to the out of date care plan.
- As I have already noted, the Council should not have tried to financially assess Mr X. However, people who do not complete a financial assessment will be charged the full cost. I would expect the officer to have been persistent in ensuring Mr X understood this but not intimidating. We cannot know exactly what happened between Mr X and the officer but we do know Mr X signed a form stating he had been given charging information. On the balance of probability, I concluded that Mr X’s feeling of intimidation was not due to the officer’s approach. While the purpose of the discussion was fault, I found no fault in the officer’s actions in advising him about the charging policy.
- The Council says it did respond to Mr X’s complaint. It wrote to Mr X about his complaint, but it did not address the main point of his complaint which was that he should not be charged. This means it did not respond adequately. Although Mr X did not identify the issue correctly, he gave enough information for the Council to have recognised that he should not be charged. Instead, Mr X has continued for many months without payment, to which he was still entitled.
- Mrs Y’s direct payment continued as usual so this caused no injustice to Mrs Y.
- To remedy the injustice identified above, I recommended the Council:
- Apologise to Mr X;
- Reverse its charging decision so Mr X is not charged;
- Complete a carers assessment for Mr X within two months, ensuring Mr X is given sufficient opportunity to arrange a mutually convenient time;
- Consider assessing Mrs Y at the same time;
- Pay Mr X £800 in recognition of the distress it caused and loss of service.
- Review cases where carers have been charged for the first time over the past year. The review should ensure the care plans are clear about whether the support is provided direct to the carer or the person they care for.
- Ensure those carers identified in the review, who use their direct payments to provide support direct to the person they care for, are not charged.
- A copy of the apology letter.
- Confirmation of the reversed charging decision.
- Evidence of the payment.
- A copy of the assessment and care and support plan.
- Details of the review, action taken and the outcome.
- I have completed my investigation and uphold Mr X’s complaint that the Council:
- stopped paying his carer’s direct payment in October 2018.
- did not respond to his complaints about this.
Investigator's decision on behalf of the Ombudsman