Surrey County Council (19 003 963)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 13 Dec 2019

The Ombudsman's final decision:

Summary: Ms C complained about the hourly rate the Council pays her for supporting her daughter at night, as well as about the date on which this payment should have started and the time it took until she received her first payment. The Ombudsman found there was a two-week delay in June 2019 that should have been avoided.

The complaint

  1. The complainant, whom I shall call Ms C, complained the Council was not paying her at the correct hourly rate, for the support she provides to her daughter. Ms C says the Council should use the same rate it pays her daughter’s daytime carers.
  2. Ms C also complains the Council should backdate the start of her payments to 2 January 2019, when she first asked for this to be set up, and not 1 February 2019, when she met with her daughter’s social worker to discuss this request further.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the information I received from Ms C and the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

What should have happened

  1. The Care Act Guidance says that (12.36): Direct Payments should not be used to pay for care from a close family member living in the same household, except where the council determines this to be necessary.

What happened

  1. Ms C has provided night-time support for her daughter for a long time. Initially, she provided this on an unpaid basis. Ms C contacted her daughter's social worker on 2 January 2019. She said she recently experienced a significant drop in household income. She was now only receiving £64.60 per week of carer's allowance. She asked the Council to pay her for the waking nights support she was providing to her daughter and explained her reasons why (see paragraph 12 below).
  2. The social worker explained that she would visit Ms C and her daughter to carry out a care review, so she could assess what support her daughter needs during the night. However, the social worker said she would not be able to carry this out until next month, because she had been seconded into another team.
  3. The Council says the social worker offered to Ms C that another social worker could complete the review instead, but Ms C said she would rather wait for the social worker to be available again. However, Ms C told me the social worker did not suggest this to her. The social worker did not record this.
  4. Ms C also told me that, if the case had been allocated to another social worker:
    • This would unlikely have resulted in the meeting taking place sooner, as the case would have to be allocated to a new social worker, who would have to read her daughter’s care records before making an appointment.
    • It would have been less straightforward to complete the review, as the new social worker was not aware with the specifics of her daughter’s case and history. This would have resulted in more time and trouble at a time she was still mourning from her husband’s recent death.
  5. The Council told me that, while it is not possible to come to a view whether the social worker made the offer, it agrees with Ms C’s view above (paragraph 10).
  6. The social worker carried out the care review on 1 February 2019. The review document states that Ms C said that:
    • Her financial difficulties had suddenly increased, and she was concerned the household income was no longer enough to enable her and her daughter to stay in the family home. The home had been significantly adapted to meet her daughter’s needs.
    • She was providing night-time support, because her daughter needed her pad changed during the night, reassurance for her anxiety, and repositioning of her ventilator mask.
    • She attends to her daughter eight times per night. She could not gain employment due to the demands of her caring role during the night and at daytime.
  7. The Council told Ms C on 14 February 2019 that it had declined her request to be paid through a direct payment, because:
    • It was concerned that providing 57.5 hours of care support a week, could have a substantive negative impact on Ms C’s wellbeing, which could result in a carer breakdown.
    • The Direct Payment Regulations and Care Act 2014 guidance state that direct payments are not intended to be income replacement. Furthermore, the Council was not under a duty to meet any needs that are already met by an informal carer.
  8. The Council told me that, instead, it recommended to carry out a carer’s assessment to capture Ms C’s needs as a carer, and focus on her wellbeing as a carer. The Council also suggested additional external support, including respite short breaks and/or additional support for her daughter by Personal Assistants (PAs), and for Ms C to contact the DWP to review her benefits. Ms C declined this offer.
  9. Ms C was unhappy with the Council’s decision and asked for it to be reviewed. Amongst others, Ms C explained that paid night-time carers would not be suitable for her daughter, because she has to comfort her daughter by cuddling and holding her while she is in bed. This would not be appropriate for a paid carer.
  10. The Council reviewed the case promptly on 26 February 2019. The request was declined again, for the same reasons as mentioned above.
  11. Ms C made a complaint about the Council’s decision in April 2019. She specifically asked if a Senior Manager could investigate it. This caused a delay in responding to the complaint. The complaint investigation concluded on 23 May 2019 that Ms C should be paid through a Direct Payment, because there were ‘exceptional grounds’.
  12. Ms C has since told the Council that she wants:
    • To receive the same (higher) hourly rate as her daughter’s daytime carers are receiving.
    • The start of the payment to be backdated to 2 January 2019, the day she first asked for the payment.
  13. In its responses to Ms C, the Council said that:
    • It would backdate her payment to 1 February 2019, because this is when the social worker arranged to meet Ms C to discuss the proposed care and support for her daughter.
    • The Council agreed to pay the daytime carers a higher rate, because Ms C found it very difficult to recruit carers for her daughter at the usual lower rate.
  14. Ms C says the Council agreed to pay a higher rate because of the higher skill set needed to care for her daughter’s complex needs. As such, she should also be paid at the higher rate.
  15. Ms C also complained about the time it subsequently took before she received her first payment on 5 July 2019. She said:
    • Officer A dropped off forms at my home to complete, so the Council could set up a second direct payment account to pay me. Officer A went on leave till 17 June.
    • There was some confusion about the forms to complete and officer A confirmed on the day of her return that one of the forms given to me was incorrect. She apologised for this.
    • I completed and returned the correct forms on 19 June 2019. Officer A confirmed on 26 June that the forms had been processed and given to the finance team. I received my first payment on 5 July 2019.
  16. The Council says it acknowledges that:
    • It took some time before it agreed to pay Ms C for night-time care support. The Council needed to carefully consider legal guidance, which meant that any decision to pay Ms C would be on an exceptional basis. In doing so the Council were (and remained) concerned about the level of care she is providing and the possible impact on her wellbeing. The Council has agreed to back pay the direct payment to the date of the review.
    • There were further delays with setting up this payment. Ms C only provided the completed documents on 26 June 2019. She received her first payment two days later.

Assessment

  1. The Council agreed to backdate the payment to 1 February 2019, the date of the care review, rather than 2 January 2019, the date when Ms C asked to be considered as a paid carer. I found the Council carried out the care review without delay, and as such there is no requirement to backdate the payment further.
  2. I did not find fault with the Council’s decision that Ms C can be paid at the usual hourly rate, rather than an enhanced rate. It is clear the Council agreed to make an exception and increase the hourly rate, because otherwise it would not be possible to find carers to meet the daytime support needs of Ms C’s daughter. This same argument / reason does not apply to the evening care. Ms C told me in December 2019 that she had now been able to resolve this with the Council.
  3. The Council has acknowledged that, overall, it took some time between Ms C’s request in January 2019 and the date on which she received her first payment. However, I found that overall the Council progressed Ms C’s case in a reasonable manner. It made a decision, and reviewed its decision, shortly after completing the care review in February 2019. It subsequently took a month until Ms C submitted her complaint in April. The Council dealt with the complaint within a reasonable timeframe.
  4. The Council (officer A) accepted there had been an error with providing an incorrect form and officer A apologised for this at the time. The error resulted in a two weeks delay.

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Final decision

  1. I found there was a two weeks delay that should have been avoided. However, Ms C has already received an appropriate remedy (an apology) for this.

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Investigator's decision on behalf of the Ombudsman

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