Summary: The Ombudsman has not investigated most of Mr B’s complaints as the complaints are out of time or have not gone through the Council’s complaints procedure yet. The Ombudsman has not found fault in the way the Council decided to stop Mr B’s direct payments.

The complaint

1. Mr B has made complaints about the care and support the Council has offered him after the Independent Living Fund was closed in June 2015.
2. In December 2016, he complained that the Council calculated his financial contribution wrongly and that there was poor communication.
3. He repeated a lot of his complaint in July 2019 and also said the Council had stopped his direct payments in July 2018 without good reason.
4. More recently, he complained about the Council’s assessment of his needs in September 2019 and its decision to reduce the care plan based on this assessment.

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What I have investigated

5. I have investigated Mr B’s complaint that the Council stopped his direct payments in July 2018. Paragraphs 53 and 54 explain why I have not investigated his complaint from 2016 or his complaint about the Council’s assessment and care plan dated September 2019.

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The Ombudsman’s role and powers

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. 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)

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How I considered this complaint

9. I have discussed the complaint with Mr B and I have considered the documents that he and the Council have sent and the relevant law, guidance and policies.

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What I found

10. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Care plan

11. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the cost to meet the needs.

Direct payments

12. A person can choose to receive direct payments to arrange the care and support themselves.
13. The local authority must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan and should therefore have systems in place to monitor direct payment usage to ensure effective use of public money.
14. The Care and Support (Direct Payments) Regulations 2014 set out that the local authority must review the making of direct payments initially within 6 months, and thereafter every 12 months.

Terminating direct payments

15. The local authority may discontinue direct payments if the person fails to comply with a condition imposed under regulations to which the direct payments are subject or if for some reason the local authority no longer believes it is appropriate to make the direct payments.
16. Local authorities should take all reasonable steps to address any situations without the termination of the payment.
17. If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan to ensure that the plan is appropriate to meet the needs in question.

The Independent Living Fund (ILF)

18. The Independent Living Fund was a UK-wide scheme set up to provide financial support to disabled people with high support needs to enable people to live independently. The ILF was permanently closed in June 2015 and the responsibility for supporting ILF users passed to local authorities.

What happened

19. Mr B has a need for care and support. He used to receive support which was funded by the Independent Living Fund and the Council.
20. The ILF closed in June 2015 and the Council became solely responsible for meeting Mr B’s needs for care and support. The Council says its policy was to continue the existing care plan during the first year to enable a re-assessment of needs to take place and to formulate a new care plan. After that, the Council would provide care and support in line with the care plan.
21. The Council says it had difficulty in engaging Mr B in an assessment of needs which meant his old care plan remained in place. There was, however, a change in the financial contribution he had to make towards the cost of his care plan.
22. Mr B complained to the Council in December 2016. I have summarised this complaint insofar as it is relevant to the current complaint. The complaint related mainly to the financial assessment and the financial contribution Mr B had to make to his care package and the Council’s communication with him.
23. The Council responded in January 2017 and did not uphold his complaint. It said:
• Councils should carry out yearly reviews to look at how the identified outcomes were being met. The Council had been unable to carry out Mr B’s review as Mr B had not cooperated with a re-assessment of his needs. The Council said payments could be suspended as a last resort if the review did not happen.
• It offered a review assessment of Mr B’s needs by an independent social worker as Mr B had concerns about the Council’s social work team.
• The Council also needed to carry out a fresh financial assessment. It said the personal budget should only be used to meet outcomes identified in his support plan and it should be clear from the bank statements what Mr B was using his money for. If Mr B did not commit to these requirements, then the Council would end his direct payments and manage his care directly.
• Mr B could appeal to the Ombudsman if he was not satisfied with the response.
24. The Council wrote to Mr B in May 2017 and said:
• The Council had a duty to review his social care needs regularly. It had been trying to carry out a review of his needs assessment for some time. The last review was in June 2014.
• The Council also had a duty under the 2014 Regulations to review his direct payments every 12 months.
• It still wanted to carry out these reviews and said it would prefer to carry out both reviews at the same time. It said the offer of an independent social worker for the review assessment of his needs and care plan was still open or the Council’s social worker could do the assessment.
• If Mr B did not cooperate with the reviews, then the Council would deliver his care as a conventional care package (instead of direct payments) until Mr B engaged with the reviews. The Council gave Mr B 21 days to reply.
25. Mr B replied on 6 June 2017 and said:
• He was taking the matter to the Ombudsman and reserved the right to take legal action.
• He was including the papers in a High Court matter which he was already involved in.
• Any withdrawal of services and any consequences to his health and safety would lead to immediate legal / court actions and possible individual criminal charges against Council officers.
• He agreed to a particular social worker who had been involved in the case in the past attending his home.
• An independent social worker paid by the Council was not independent in law. This was considered bias and he would require a court appointed social worker which would mean bringing the whole matter to court.
26. The Council’s finance department wrote to Mr B on 25 May 2018 regarding his direct payment review. It said it had not been able to undertake this review as he had not sent in his bank statements. It said he was required to send in monitoring forms and bank statements on a quarterly basis. The Council asked for documents going back to January 2016 and said if Mr B failed to do this within 3 weeks, it could lead to a suspension of his direct payments.
27. Mr B replied to the social worker on 14 June 2018 and said the Council had never sent him the forms that he was meant to send back. He said he was due to have surgery on his jaw and would be in hospital for 48 hours.
28. Mr B sent an email on 18 June 2018 with details of his imminent surgery. He said the finance team had not consulted the social work team. He said any injury or decline in his condition was assault and the finance manager would be criminally negligent, and he would report her to the police for immediate action and prosecution.
29. Mr B sent an email on 27 June 2018 which was a formal ‘pre legal action notification’. He said he had met with his barrister and solicitor and the Council’s ‘unacceptable threats and hypocrisy’ were obvious. If the Council threatened him any further in relation to the funding in his care, the manager would be issued with an order to attend court.
30. The Council wrote to Mr B on 25 July 2018. It said he had still not submitted the financial information that the Council had been requesting. It said it would stop his direct payments on 30 July 2018 and said the Council would be in touch to make alternative arrangements for his care.
31. The social work team and the finance team liaised at the time. The plan was for the social worker to meet with Mr B and to offer him alternatives to the direct payments such as a directly commissioned package of care, an E-card (an electronic card that allows the Council to monitor the financial transactions) or a managed account. This meeting did not take place as Mr B was in hospital at the time.
32. A meeting was planned for September 2018, but it is my understanding this meeting did not take place. However, the Council’s social worker liaised with a social worker from the hospital about the direct payments. The hospital social worker was trying to convince Mr B to submit the paperwork so that the direct payments could be restarted.
33. The social worker wrote to Mr B on 29 April 2019. She said:
• She assumed Mr B had been using the excess funds in his direct payment account to pay for his care.
• Mr B had still not provided the bank statements and the direct payments would not be reinstated until the bank statements had been sent.
• If Mr B ran out of funds to pay for carers, the Council would put a commissioned package of care in place.
34. Mr B did not reply, but in July 2019 a social worker from a hospice emailed the Council on Mr B’s behalf. She said Mr B’s direct payments had been stopped and he did not know why. The Council’s social worker replied and referred to the Council’s communications in the past, but Mr B denied receiving the letters.
35. The social worker said that, if Mr B sent his bank statements from 2016, the Council would consider restarting his direct payments. Also, the social worker had told Mr B in April 2019 that, if he was running out funds, he could contact the Council as it would put in place a commissioned package of care, but Mr B had never done so.
36. The hospice social worker said she had asked Mr B to send in the bank statements from 2016. She said his funding was ‘running low now’ and asked whether the direct payments could get restarted or a care package put in place. The Council’s social worker replied in July 2019 and said it would consider an E-card if Mr B would agree to that. The social worker also suggested a meeting to resolve matters.
37. The Council’s social worker, the hospice social worker and Mr B attended a meeting on 26 July 2019. Mr B said he did not receive the letters from the Council in May and July 2018 threatening to stop his direct payments. The social worker offered Mr B an E-card or a directly commissioned care package, but Mr B declined these offers.
38. Mr B complained on 26 July 2019, 2 August 2019 and 11 August 2019. The complaint repeated a lot of the complaints that Mr B had made in December 2016. Mr B also complained about the Council stopping his direct payments in July 2018.
39. The Council replied on 13 August 2019. It said most of his complaints had already been addressed in its January 2017 reply. The Council had advised Mr B to take these old complaints to the Ombudsman which he had not done. The Council said his complaint about the stopping of the direct payments in July 2018 was out of time as it was more than a year old and because it related to policy decisions which were outside of the remit of the complaints process.
40. The Council’s social worker carried out a needs assessment of Mr B in September 2019 and the Council offered him a new care plan which he rejected.

Analysis

41. I have investigated the complaint about the finishing of the direct payments in July 2018. Mr B made the complaint within the year (July 2019) and I am therefore of the view the Council should have responded to the complaint.
42. I have not found fault with the Council’s decision to stop the direct payments in July 2018. The Council had a duty to carry out a financial review and to ensure that the direct payments were used in line with the care plan.
43. The Council gave Mr B repeated notice of the requirement to fully cooperate with the financial reviews. The Council wrote to Mr B in January 2017, May 2017, May 2018 and July 2018 and explained to him that, if he did not fully cooperate, the Council may withdraw the direct payments. The Council also explained in those letters that, even if the direct payments were withdrawn, Mr B was still entitled to his care package and he could ask for a directly commissioned package.
44. I know Mr B says he did not receive some of the letters, but there is evidence the Council sent them. Also, Mr B replied to most of the letters.
45. As Mr B did not cooperate with the financial reviews, the Council was able to decide that it would suspend his direct payments.
46. I note that a meeting was planned between the social worker and Mr B after the Council stopped the direct payments to explain to Mr B what the alternatives to direct payments were. This meeting did not take place because Mr B was in hospital. It would have been good practice to have this meeting.
47. However, Mr B never asked for a directly commissioned care package by the Council to replace his direct payments or agreed to any other of the alternatives offered by the Council.
48. I note that the social worker wrote to Mr B in April 2019 and said the Council assumed he had a surplus in his direct payments, but once that surplus had gone down, he could ask the Council for a directly commissioned package. Mr B did not contact the Council.
49. The hospice social worker said Mr B’s funds were running low in July 2019 and the Council offered Mr B various alternatives to the direct payments at that stage, which Mr B again did not accept. The Council held a meeting with Mr B and tried to convince him to accept an alternative to the direct payments which he rejected.
50. Therefore, the Council has taken the appropriate action to ensure that, even though the direct payments were stopped, Mr B had access to alternatives if he wanted to engage with them.
51. The Council also explained repeatedly that, if Mr B provided the financial information that it needed, it would reconsider paying the direct payments. I also note that the Council has never asked Mr B to repay any unspent direct payments which it could have done.

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Draft decision

52. I have completed my investigation and have not found fault by the Council.

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Parts of the complaint that I did not investigate

53. The Ombudsman has not investigated Mr B’s complaint from December 2016 as it is out of time. The Council advised Mr B of his right to take the matter to the Ombudsman and he failed to do so within a year.
54. Mr B complains about the needs assessment and care plan from September 2019 but this complaint has not gone through the Council’s complaints process yet. If Mr B wants to complain about the assessment or the care plan, he should direct his complaint to the Council in the first instance.

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Investigator's decision on behalf of the Ombudsman