Summary: Miss F complains the Council failed to support her whilst she managed her mother and sister’s care and support. She also complains about their care and support plans and financial assessments. The Council has accepted there was fault which caused injustice to Miss F and has apologised. It has agreed to make a payment to Miss F and make improvements to its processes.

The complaint

1. Miss F complains on her own behalf and on behalf of her mother (Mrs G) and sister (Miss H), that the Council failed to support her while she was managing their care from September 2016 to April 2019. In particular, she complains the Council:
1. Communicated poorly with her and failed to share information internally, causing confusion and repeated requests for information
2. Did not give proper information and advice to her as an employer and when she sought to stop managing the direct payments
3. Did not involve her, Miss H or Mrs G in agreeing their care plans, which took too long to agree and did not meet their needs
4. Took too long to approve funding for Miss H’s care package after she fell below the financial threshold in February 2018, causing Miss H to unnecessarily fund her own care
5. Took too long to assess Miss H’s finances, wrongly backdated payments to June 2018 and delayed refunding her
6. Failed to act when Mrs G fell below the financial threshold in November 2018, causing her to be unable to pay her care costs
7. Did not put a social worker in place from 7 March 2019 to 2 April 2019, causing problems with transition to a new care agency
2. Miss F says the Councils’ failures caused her a great deal of stress and anxiety, and financial problems for the family.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Miss F about his complaint and considered the Council’s response to my enquiries and:
• The Care Act 2014
• The Care and Support Statutory Guidance (“the Guidance”)
7. I sent Miss F and the Council my draft decision and considered the comments I received.

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What I found

Care and Support

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
9. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. The plan should reflect the person’s wishes, preferences and aspirations. Where the person lacks capacity, the local authority must involve any person who appears interested in the welfare of the person in the care and support planning process.

Personal budget

10. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. A personal budget sets out the cost to the local authority of meeting eligible needs, the amount a person must contribute to that cost, and the amount the council must contribute.

Direct payments

11. A personal budget can be administered as direct payments to enable people to commission their own care and support. Councils must be satisfied the person can manage the direct payment and should give people clear advice as to their responsibilities when managing direct payments. Councils should take “all reasonable steps” to provide help and support to people to manage the direct payment. Councils often have arrangements with other organisations to provide this service.
12. Where a person uses a direct payment to employ a personal assistant, they become an employer with all the responsibility for PAYE, holiday pay, sick pay, redundancy, recruitment etc. A support agency may be available to help with this.

Discontinuing direct payments

13. A person may decide at any time that they no longer wish to continue receiving direct payments. In these cases, the local authority should ensure there are no outstanding contractual liabilities and conduct a review of the care plan to consider alternate arrangements to meet needs.
14. If direct payments are discontinued, some people may find themselves with ongoing contractual responsibilities or having to terminate contracts for services (including possibly making employees redundant). Local authorities should take reasonable steps to make people aware of the potential consequences if direct payments end, and any obligations they may have.

Financial assessments

15. Councils must assess the means of people who have less than the upper capital limit (£23,250), to decide how much they can contribute towards the cost of their care. There is no statutory timescale for the completion of financial assessments, but the Guidance says councils should act promptly to meet people’s needs and the lack of a financial assessment must not be a barrier to action. Neither is it necessary to complete the assessment before taking action.

What happened

Background

16. Mrs G has complex health needs and physical disabilities. She requires 24 hour care and support and her capacity to make decisions fluctuates. Miss H has a learning disability and does not have capacity to make decisions about her care or finances. They lived at home with Mr G. They were supported by a package of homecare from Agency 1 (including overnight care) and two personal assistants. The care and support was funded by direct payments and 50% of Mrs G’s care was funded by NHS continuing healthcare with a personal health budget.
17. Mr G sadly passed away in 2015. Miss F, who lives elsewhere, became Miss H’s deputy and was granted power of attorney for Mrs G’s finances and health and welfare. She started to manage the direct payments and became the personal assistants’ employer. Following advice from the Council, Miss F appointed Charity X to provide support with managing the direct payments, dealing with employment issues, and paying the carers.
18. The Council reviewed Mrs G’s care and support needs in August 2016; Miss F was present at the visit. The care plan says Mrs G’s needs will be met with support from Agency 1, the personal assistants and health staff. It sets out Mrs G’s needs in detail but does not specify which staff will carry out which task, or the number of hours of care required. The personal budget was £2,291.28 per week, which was to be split 50/50 between the Council and NHS. Mrs G’s contribution to her care costs had been assessed as £138.47 per week.

Miss F’s requests for support

19. Miss F emailed the Council on 9 September 2016. She said she was struggling to cope with the management of Mrs G’s and Miss H’s care and asked what would happen if she did not carry on. She again highlighted the stress she was under and the impact on her mental health in December 2016. The social worker replied that Agency 1 could employ the personal assistants and the Council could directly commission the care from Agency 1. I have seen no evidence any further action was taken about this, or that Miss F asked for this to be taken forward.
20. In March 2017, Agency 1 said it was increasing its charges and the Council met Miss F on 7 April 2017 to discuss this. Miss F said she felt overwhelmed with managing the direct payments due to her other commitments. The social worker suggested using one of the personal assistants as a senior to relieve some of the day to day management.
21. The Council agreed to increase its contribution to the direct payments to cover the increase in Agency 1’s charges for six months. It emailed Miss F on 28 April 2017 about this and offered to support her appointing a new homecare agency so that care could be provided within the personal budget.
22. In July 2017, Miss F again asked the Council what would happen if she could not manage Mrs G’s and Miss H’s affairs. The Council advised her it could directly commission the care package from Agency 1, in which case the personal assistants would need to transfer their employment to Agency 1. I have seen no evidence any further action was taken.
23. The Council changed its policy on its treatment of people’s savings in October 2017. Anyone who had over £23,250 capital would no longer be eligible for funding from the Council. Following the change, the Council determined Mrs G and Miss H were self-funders.
24. There was then a great deal of correspondence between Miss F, the Council and Charity X as there was confusion about how the care costs were split between Mrs G and Miss H, and about how the hours were split between Agency 1 staff and the personal assistants.

Miss H’s assessments

25. In February 2018 Miss F sent evidence to the Council that Miss H’s savings had fallen below the threshold. The Council started to assess Miss H’s finances and there was further correspondence between Miss F and the finance team about Miss H’s savings. Miss H continued to fund her own care and was subsidised by loans from Mrs G. I have seen no evidence the Council considered putting interim funding in place whilst the financial assessment was being carried out.
26. The case records show Miss H’s financial assessment was completed in April 2018 and she was found to have been under the threshold since February 2018.
27. A new social worker was allocated to Miss H. The social worker visited to review Miss H’s care and support needs and discuss with Miss F how Miss H’s and Mrs G’s care packages fitted together. He asked Miss F for the details of the care packages, hours and costs.
28. The subsequent care and support plan, which is undated and unsigned, says Miss H required support from her personal assistants for sixteen hours per day (112 hours per week) to support her with meals, personal care and accessing community activities. She was also supported overnight by Mrs G’s carers. Her personal budget was £2,224.91. Miss H’s contribution was £61.64 per week.
29. The Council then asked its practice scrutiny group to approve Miss H’s support package. The role of this group is to looks at requests for care to ensure the best options have been sourced and that the most appropriate social work practice has taken place. The Council told Miss F it was the practice which was being authorised, not the money. But in response to my enquiries, the Council said funding followed if the group found the practice to be of the expected standard.
30. Miss H’s care package was submitted to the group on 18 April 2018 but was refused as all the potential options for care had not been considered. There is no evidence the Council considered putting interim funding in place at this point. The care plan was re-submitted twice but deferred due to a lack of time or staff, and eventually considered on 10 May 2018. The group asked for further information about the care package, so funding was not approved. Miss H continued to fund her own care, using loans from Mrs G.
31. Miss F told the Council that, following discussions with the NHS, she was considering moving Mrs G’s care package to one directly commissioned by the NHS.
32. A new social worker was allocated to Miss H in May 2018. After Miss F told the social worker Miss H had now run out funds, she arranged for interim payments to Charity X of £1,800 per week for four weeks from June 2018. The social worker said a further review of Miss H’s care and support was needed to provide clearer information to the practice scrutiny group.
33. There was then a great deal of correspondence between the Council, Miss F and Charity X as there continued to be confusion about the costs of each care package and the hours provided by Agency 1 and the personal assistants. Miss F told the Council several times of the stress the situation was causing her and that she was almost at breaking point. Although interim funding was in place, due to the complexity and confusion it was unclear if it was sufficient to pay for Miss H’s care and she became low on funds again.
34. The Council reviewed Miss H’s care and support needs in August 2018. There is evidence a care plan was completed, but it is not signed or dated, and Miss F was not present for the review. The new care plan said Miss H needed 168 hours of support per week, but this was to be split 50/50 with Mrs G. In addition, Miss H was assessed as needing 28 hours of support to access the community. This totalled 112 hours per week, as in the previous care plan. Miss F raised concerns about the shared hours and the hours of support to access the community.
35. Miss H’s new care plan was submitted to the practice scrutiny group three times in August and September 2018, before funding was approved. The Council wrote to Miss F on 7 September 2018, agreeing its contributions to Miss H’s direct payments. It said it would backdate its contributions to 18 June 2018, which was the date the interim payments had started. The Council paid a lump sum to Charity X, but there is evidence it could not be allocated to Miss H’s account until the Council had carried out an audit of the direct payment accounts. Miss H therefore remained in debt to Mrs G, causing stress to Miss F about the low level of Mrs G’s funds.
36. In December 2018, Miss F told the Council Miss H had still not been refunded. In response, the Council reviewed the account and found that its contributions should have started from 24 February 2018, when she fell below the threshold. There was further discussion about how much was owed to Miss H and Mrs G. The Council refunded Miss H’s overpaid contributions from February 2018 to June 2018 to Charity X on 30 January 2019. Charity X paid Miss H on 23 April 2019.

Mrs G’s assessments

37. Miss F told the Council in November 2018 that Mrs G’s savings were now well below the threshold. The Council asked for evidence and Miss F posted this. By December 2018, Mrs G’s funds became so low that Miss F had to cancel the payments to the carers.
38. In January 2019 the Council determined that Mrs G had fallen below the threshold in August 2018.
39. The Council reviewed Mrs G’s care and support needs; it is unclear if Miss F was present. The assessment says Mrs G stayed at home except for a weekly shopping trip. The care and support plan, which is unsigned, says Mrs G required 168 hours of support, split with Miss H, plus 42 hours of complex care support and 4 hours to access the community. The practice scrutiny group approved the care package and funding in February 2019.

Discontinuing the direct payments

40. There is evidence of discussions in autumn 2018 about moving the care package to a new homecare agency. To achieve this, there needed to be clarity about the hours being provided by the agency, so there was ongoing correspondence. Miss F also sought advice from the insurance company about making possible redundancies.
41. The Council spoke to Miss F about transferring the care package and the personal assistants’ employment to Agency 2 in February 2019. This included a discussion about the need to TUPE the personal assistants. However, I have seen no evidence it was clear that the package was to be directly commissioned by the Council until 24 March 2019, when Miss F asked for advice on this process and again highlighted how her mental health was being affected. This transfer was completed on 12 April 2019, when Agency 2 started to provide the care.

Miss F’s complaint

42. Miss F complained to the Council in April 2019. She said it had failed to support her as a carer and that frequent changes to social work staff had caused problems for Mrs G’s and Miss H’s care and extra work for her. Miss F complained the Council had said it would refund Miss H’s overpaid contributions, but this had still not been done.
43. The Council responded on 31 May 2019. It upheld Miss F’s complaint and apologised. The Council said it had not assessed Miss F’s needs as a carer and accepted it had not supported her properly when she had informed social workers of her stress in managing the care packages. It said some of the worker changes could have been avoided and handovers conducted more thoroughly, which would have improved communications.
44. There had been administrative errors which had caused financial reviews to not be triggered when Miss H and Mrs G’s savings were close to the threshold. There had also been a delay in the practice scrutiny group’s approval of Miss H’s care plan. The Council had paid the refund to Charity X on 30 January 2019. It was not responsible for Charity X so it did not know why the refund had not been passed on.
45. The Council said Miss F had been present during the reviews of Mrs G’s and Miss H’s needs, but the care plans had not been signed and there were no records of them having been discussed with Miss F, Mrs G or Miss H. The Council would review the hours Mrs G and Miss H needed to access the community.
46. The Council offered to pay Miss F £250 to acknowledge the problems she had suffered. It also said it was taking a number of actions to improve practice. Miss F remained dissatisfied and complained to the Ombudsman.

My findings

Communicated poorly with her and failed to share information internally, causing confusion and repeated requests for information

47. The case records and correspondence show examples of repeated requests for information and confusion about the support that was being provided to Mrs G and Miss H. The Council has accepted there was fault in its communication with Miss F and has apologised.
48. The Council has said it will take action to improve ownership of cases by staff and provide training to improve recording practice. It has reminded staff to use out of office messages and has taken action to improve handovers.
49. The Council’s response to Miss F’s complaint says it did not assess her needs as a carer. In my view, Miss F was not eligible for a carer’s assessment as she did not provide care to Mrs G or Miss H.

Did not give proper information and advice to her as an employer and when she sought to stop managing the direct payments

50. It was Charity X’s role to provide support to Miss F in her role as employer, so I cannot find fault by the Council. There is evidence the Council made Miss F aware of the potential consequences if the direct payments ended, so I do not find fault.
51. Miss F first asked about no longer managing the care packages in September 2016 and the Council advised her correctly that it could directly commission the care package if the personal assistants became employed by Agency 1. I have seen no evidence Miss F pursued the matter at that stage, so I do not find fault here.
52. However, Miss F raised the matter again in April 2017 and July 2017. I recognise that Miss F did not pursue the matter as she was concerned about the personal assistants’ employment, but I consider at that point the Council should have reviewed the care plans and considered directly commissioning the care. I find not to do so was fault.
53. The Council has accepted there was a long delay in changing from a direct payment to council commissioned care. It says this was caused by the complex financial position. It says it has increased information available to staff about the different ways to employ staff using a personal budget, and about contractual changes.

Did not involve her, Miss H or Mrs G in agreeing their care plans, which took too long to agree and did not meet their needs

54. It is not the Ombudsman’s role to decide what, if any, care and support a person needs. That is the Council’s role. The Ombudsman’s role is to consider if the Council has followed the correct process for establishing a person’s needs and if it subsequently acted correctly when this process was complete.
55. I have carefully considered Miss H’s March 2018 assessment and care plan, given the practice scrutiny group did not approve it and the subsequent confusion about how the two care packages related to each other. The assessment and plan clearly set out Miss H’s needs and that these were to be met by 112 hours of support from her personal assistants. The social worker met with Miss F. I therefore find no fault with the way the assessment was done or with the plan. However, there is no evidence it was signed by Miss F on behalf of Miss H, which is fault.
56. Miss F disagreed with Miss H’s August 2018 care plan, as it says the personal assistant support would be shared with Mrs G. Whilst I cannot say what support Miss H requires, there is no evidence Miss F was involved in the August 2018 assessment or care planning process and the plan was not signed. This is fault.
57. I have seen no evidence Miss F was involved in Mrs G’s January 2019 assessment or care planning process and the plan was not signed. This is fault.
58. The Council agreed to review Mrs G’s and Miss H’s care needs again in July 2019. It has also said it will clarify with staff the importance of writing and signing care and support plans, and ensure that people with power of attorney and deputies have been consulted where appropriate.

Took too long to approve funding for Miss H's care package after she fell below the financial threshold in February 2018, causing Miss H to unnecessarily fund her own care

59. When Miss F told the Council Miss H’s savings were below the threshold in February 2018, it started a financial assessment. However, it was fault for the Council not to put interim funding in place. The Guidance is clear that the lack of a financial assessment must not be a barrier to action and that people’s eligible needs must be met even if a financial assessment has not been completed.
60. There was then delay in the approval of the care package by the practice scrutiny group. Although some of this was due to the group requiring further information or improved practice, which it is entitled to do, some of the delay was caused by the group deferring consideration due to lack of time or staff. I consider that, the first time the package was rejected in April 2018, the Council should have ensured interim funding was in place to meet Miss H’s eligible needs and it was fault not to do so.
61. Miss F told me she considered the Council had deliberately delayed agreeing Miss H's funding until Mrs G went below the threshold, so that a cheaper joint package could be agreed. The proposal to share hours were in the care plans from August 2018, which is when Mrs G went below the threshold, but I have seen no evidence the delay was a deliberate tactic.

Took too long to assess Miss H's finances, wrongly backdated payments to June 2018 and delayed refunding her

62. The Council started assessing Miss H’s finances in February 2018 and completed this in April 2018. There is no statutory timescale for a financial assessment and, whilst I can see there was much correspondence with Miss F about the complexity of Miss H’s financial position, I do not find there was avoidable drift or delay here.
63. The Council has accepted it wrongly backdated Miss H’s refund to June 2018, rather than February 2018.
64. The Council’s first refund of Miss H’s overpaid contributions from June 2018 to September 2018 was made in September 2018, after the practice scrutiny group approved Miss H’s care plan. I do not find delay there and note that interim funding was in place from June 2018.
65. The Council took until January 2019 to refund the contributions of February 2018 to June 2018. This was fault.
66. Charity X paid the money into Miss H’s direct payment account in April 2019. Miss F says Charity X could not allocate it until an audit had been carried out by the Council and it had received further information from the Council. I cannot investigate the actions of Charity X.
67. The Council says it has introduced visiting officers to the financial assessment team, will train staff and monitor contacts with the team to resolve misunderstandings and improve the time taken to complete a financial assessment.

Failed to act when Mrs G fell below the financial threshold in November 2018, causing her to be unable to pay her care costs

68. The Council has accepted that administrative errors meant a financial review was not triggered when Mrs G’s savings fell below the threshold in August 2018. It took until Miss F notified the Council in November 2018 for it to take action. It says it has made practice changes in the financial assessment process to prevent this in future.
69. The financial assessment took until January 2019. I do not consider this to be delay, but it was fault not to put interim funding in place whilst the financial assessment was being carried out.

Did not put a social worker in place from 7 March 2019 to 2 April 2019, causing problems with transition to a new care agency

70. The Council has accepted Miss H had no social worker for March 2019. It says this was due to a new worker not starting due to unforeseen circumstances, but the service managers were not aware of this until early April 2019. That was fault.
71. Miss H had five social workers from April 2017 to March 2019. The Council says this was due to allocation of agency workers, previous transition from children’s to adult’s services, and that in the past Miss H and Mrs G had not lived at the same address. The Council is entitled to change allocated social workers, so I do not find fault, but the changes did cause problems in its communication with Miss F.

Did the fault cause injustice?

72. I have found fault by the Council in poor communication with Miss F and in not taking action in July 2017 to consider moving to directly commissioned care. As Miss F had agreed to directly commissioned care packages by March 2019, and earlier with the NHS, I consider she would have agreed to this change in 2017 if there had been further discussions with the Council.
73. I must consider that Miss F did not pursue this route in 2017, but my view is the Council’s lack of action meant she was caused significant stress and anxiety throughout 2018, due to unnecessarily having to manage two complex care packages.
74. There was also fault in February 2018 when the Council did not put in place interim funding for Miss H. Had it done so, Miss F would not have had the stress and anxiety of managing Miss H’s rapidly reducing savings and the loans from Mrs G. Interim funding from February 2018 would also have prevented the later error in the backdating of Miss H’s refund, which was not finally corrected until April 2019.
75. There was also delay in agreeing Miss H’s care package from April 2018 to September 2018. Whilst Miss H was receiving care and support throughout, the injustice to Miss F could have been mitigated if interim funding had been in place. Instead she had uncertainty about whether or not funding would be agreed, and time and trouble in pursuing the Council.
76. The failure to involve Miss F in Miss H’s August 2018 assessment and care planning, caused more distress as she did not agree with and was concerned about the hours proposed in the care plan.
77. The Council says the lack of a social worker in March 2019 did not delay the transfer to Agency 2, but accepts it left a gap in information that Miss F had to fill. This was further injustice to Miss F.

Agreed action

78. Within a month of my final decision, the Council has agreed to:
1. Apologise to Miss F for the distress and uncertainty she was caused and the time and trouble she was put to from late 2017 to early 2019
2. Pay her £750 to acknowledge that injustice
79. Within three months of my final decision, the Council has agreed to:
1. Provide the Ombudsman with evidence it has made the service improvements it has already committed to
2. Review its processes to ensure that, if someone has eligible needs, interim funding is put in place whilst financial assessments are carried out and/or whilst the practice scrutiny group is considering the care package
3. Review the practice scrutiny group process and make changes to prevent delays caused by lack of time or staff.

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Final decision

80. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman