Summary: The Ombudsman has not found evidence of fault in the way the Council decided to change Mr C’s support arrangements. However, the Council’s failure to complete a formal care plan and a carer’s support plan was fault. There was also no fault in the Council’s agreement that Mr C should live with his brother during an emergency placement, but the Council should have obtained Mr C’s views earlier and helped him in accessing his adapted facilities. The Ombudsman recommends the Council provides a care plan and a carer’s support plan, apologises to the family and pays them £200.

The complaint

1. Mrs B complains on behalf of her adult son, Mr C. She says the Council failed to properly support Mr C during an emergency placement and she says his care plan does not meet his needs.

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What I have investigated

2. The Council provided a stage 2 reply Mr C’s complaint in August 2019 and I have investigated the Council’s actions to that point.

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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. 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

5. I have discussed the complaint with Mrs B. I have considered the information Mrs B and the Council have sent me, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, policies and guidance

Assessing needs

6. The Care Act 2014 says 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 of meeting the needs.
7. The needs assessment decides how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Councils must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes.
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
8. The outcomes are:
• Managing and maintaining nutrition.
• Maintaining personal hygiene.
• Managing toilet needs.
• Being appropriately clothed.
• Being able to make use of the home safely.
• Maintaining a habitable home environment.
• Developing and maintaining family or other personal relationships.
• Accessing and engaging in work, training, education.
• Making use of necessary facilities or services in the local community.
• Carrying out caring responsibilities for children.

Needs met by a carer

9. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.

Disagreement about the care plan

10. The Guidance says local authorities must take reasonable steps to reach agreement with the person for whom the plan is being prepared.
11. If the plan cannot be agreed, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. The local authority should direct the person to the local complaints procedure.

Direct payments

12. A person can ask to receive direct payments to arrange the care and support themselves and councils must provide this if certain conditions are met.

Paying family members

13. The 2009 Direct Payment Regulations state that direct payments cannot be used to pay for care from a close family member living in the same household, except where the local authority determines this to be necessary. The Care and Support (Direct Payments) Regulations 2014 maintain this provision but provide an added distinction between ‘care’ and ‘administration/management’ of the direct payment.
14. This allows people to pay a close family member living in the same household to provide management and/or administrative support to the direct payment holder in cases where the local authority determines this to be necessary.

What happened

15. Mr C is an adult man who requires additional care and support. He has autistic spectrum condition and epilepsy. He lives with his mother, Mrs B in a 4-bedroom house which they rent from a housing association. The house has an adapted toilet and shower for Mr C to use.
16. Mr C received support from Mrs B and from the Council. The Council has not assessed Mr C’s mental capacity to make decisions about his care and support as it says that it has assumed that Mr C has the capacity to make those decisions. Mr C does not have the mental capacity to manage his finances. Mr C received direct payments but these were managed by Mrs B.

November 2016 assessment

17. The Council’s November 2016 assessment said the Council provided the following support per week:
• 6 hours support to assist Mrs B in providing support.
• 7 hours personal care support.
• 10 hours support to access the community and to go swimming twice a week.
• 3 hours support to enable Mr C to attend a pub quiz.
• Respite budget of £58 per week to enable Mrs B to employ a friend as a live-in carer 30 nights a year.
• £34 a week to pay for return transport so that Mr C could visit his brother, Mr E twice a week.
• Mrs B received a carer’s payment of £42 per week to pay for a gardener, window cleaner, shopping delivery and wellbeing/craft session
18. The assessment also said:
• Mr C’s personal budget was £414 per week.
• Mr C had built up £23,436 of unspent direct payments.
• The emergency plan for Mr C (if Mrs B was unable to care for him) was for Mr E to move into Mrs B and Mr C’s house. If Mr E was not in the country, then a family friend could move in.

July 2018 assessment

19. The social worker carried out a reassessment of Mr C’s needs on 27 July 2018. Mrs B explained that she was now housebound because of her own health problems. This had been frustrating for Mr C as he had been unable to leave the house as he did not have a personal assistant.
20. The social worker reviewed the emergency plan for Mr C. Mr E was the emergency contact in the care plan but Mrs B said she never saw Mr E and did not know if he was still able or willing to continue to play this role. She provided the social worker with contact details of other family members. She thought her sister may have Mr C to stay.
21. Mrs B said she was no longer able to meet Mr C’s needs and accepted that she needed help. Mr C had not employed any personal assistants so the direct payments had accrued a large surplus.
22. The social worker took the following actions after the visit:
• She made a referral to a local charity to find out if they could offer support workers for 12 hours a week to allow Mr C to access the community. The support would be paid from the direct payments.
• She emailed Mr E to check the emergency plan.

August hospital admission

23. Mr E informed the Council on 1 August 2018 that Mrs B had been taken to hospital and that Mr C was staying with him. Mr E said he was able to support Mr C.
24. The charity that the social worker had contacted said it could not help Mr C. The social worker contacted a different agency and liaised with Mr E to try to find support workers for Mr C. A second charity seemed able to help and the social worker spoke to this charity on 14 August 2018 and explained that Mr C needed, as a minimum, to have a personal care visit at least once a day and also needed support to go into the community. Mr E also placed an advert for support workers and received several responses.
25. The social worker spoke to Mrs B on 13 August 2018 and updated her on the charities she had contacted to obtain support for Mr C.
26. The social worker emailed Mr E on 23 August 2019 to discuss various options for support to Mr C. This included directly commissioned support and agency support. The contingency plan was to consider a placement in a supported housing unit for people with learning disability and autism.
27. The social worker had a meeting with Mr C and Mr E on 24 August 2019. I understand a representative from the agency also attended. The social worker said Mr C appeared very comfortable in Mr E’s house and described it as his home.

After the hospital admission

28. Mrs B left hospital on 30 August 2018. The social worker emailed Mrs B in the following days. She said she had found an agency which could support Mr C two hours a day and four hours on Wednesday. The social worker also urged Mrs B to consider the CVs of the possible personal assistants that Mr E had received in response to his advert. The social worker said she had spoken to Mr C and he spoke very positively about having support workers and had advocated strongly that he wanted to go out and do things.
29. Mrs B agreed to transfer £5,000 to Mr E enable him to pay for support for Mr C while Mr C was living with him.
30. The Council stopped the direct payments while Mrs B was in hospital as she was unable to administer the payments. Also, a large surplus had accrued to the direct payments. The Council said it would reclaim the surplus once it knew the exact amount.
31. The Council carried out an assessment of Mrs B’s needs and said she would be eligible for support, but Mrs B declined support. The social worker mentioned a live-in volunteer scheme and Mrs B said she was keen to pursue this option, but did not want the volunteer to live with them.
32. The social worker visited Mr C and Mrs B on 8 November 2018. Mr C was now receiving 20 to 25 hours support a week from 3 personal assistants. There was still a £7,000 surplus in the direct payment funds despite the fact that the Council stopped payments in August 2018. Mrs B said she was keen to progress with the volunteer scheme.
33. The social worker visited Mr C and Mrs B in January 2019. Mrs B said the support by the 3 PAs was working well, but felt that Mr C now needed 6 hours a day support for 6 days a week (36 hours per week). The social worker was still trying to put the volunteer scheme in place but was having difficulty as she had to find accommodation for the volunteer.
34. In February 2019 Mrs B said she wanted 10 hours support a day for Mr C. She was considering moving out of the house which would leave Mr C on his own in the 4-bedroom house. Mrs B said another family member may move in. The social worker said that she could not comment on what the housing association’s view would be on any chances in the tenancies.
35. On 6 March 2019 Mrs B said she wanted to live alongside Mr C and no longer wanted to provide the level of care for Mr C that she was currently providing. She said Mr C should be able to continue to live at home in an emergency as it caused him distress and confusion when he had to live somewhere else.
36. Mrs B told the Council she would provide 36 hours of support a week from 2 April 2019.
37. The social worker made a one-off request to the Council’s funding panel on 11 March 2019. She asked for 54 hours support per week for a 4-week period while the Council carried out a re-assessment to decide Mr C’s long-term plan. The social worker said that the current plan was a starting point and would be reviewed. She pointed out that, historically, direct payments had been left unspent.
38. The social worker and Mrs B discussed the plan further on 21 March 2019. Mrs B said she would provide 40 hours a week from 2 April 2019. She said Mr C needed round the clock support including sleep in. They also discussed assistive technology (an IT based support system) to help Mr C to increase his independence so that he did not need someone to be with him all the time.
39. The social worker provided Mrs B with details of three agencies which provided live-in carers and proposed they carry out an assessment to decide what support they could provide.
40. The social worker met Mrs B on 2 April 2019. Mrs B now said she was not sure if she could tolerate carers in the home at night, but acknowledged it may be needed.
41. The social worker reassessed Mr C’s needs and the plan was:
• Live-in carer to provide 10 hours support a day and sleep-in.
• 28 hours support by PAs (4 hours a day). This would provide the live-in carer with a break.
• One-off cost for the all-in-one technology service.
• The weekly personal budget was £1,323.
• There was still a surplus on the direct payment account because of underspent direct payments but the Council agreed not to reclaim this money. It said it would reinstate direct payments once the surplus had been spent.
42. The social worker proposed the increase to the personal budget to the Council’s internal review body on 23 April 2019. The social worker had not informed Mr C or Mrs B what the proposed care plan was. The review body approved the personal budget.
43. I understand that the Council started to pay the direct payments again around this time as the surplus in the direct payment fund had depleted.
44. I asked the Council for a copy of the care plan and personal budget but the Council was unable to do so. I wanted to better understand what support the carers were providing and how this met the outcome as set out in the Care Act.
45. I have seen one breakdown of a plan. This said:
• Maintaining personal hygiene – 8 hours.
• Access the local community – 15 hours.
• Budgeting and managing a habitable home environment (cleaning and laundry) – 5 hours.
• Support to be part of the community – 3 hours
• Planning, shopping, cooking and preparing meals – 10 hours
• Managing his emotional wellbeing – 7 hours
• Outside of this core support, Mr C needed someone around, but this would not be 1:1 support, but could be 1:3 meaning one support worker could support three adults with needs such as Mr C’s.
• Mr C needed no support at night, but needed someone to be in the house.
46. The Council carried out a carer’s assessment of Mrs B in May 2019. It did not provide her with a care plan but Mrs B says the Council offered to reinstate the previous carer’s support plan and direct payment in June 2019. Mrs B refused as she said no plan could be made for her as a carer until the plan for Mr C was agreed.

Complaint – 9 May 2019

47. Mrs B complained to the Council. I have summarised Mrs B’s complaint and the Council’s response insofar as they are relevant to the complaint that I am investigating.
48. Mrs B said:
• The package the Council had agreed was unacceptable.
• The Council had 14 hours PA support for Mr C every day and 3 sleep-ins a week with funding available for 4 more nights when Mrs B was no there.
• Mr C could choose his own PAs and they could not be from an agency.
• She would only provide 40 hours support a week.
49. The social worker visited Mrs B and Mr C on 13 May 2019. Mrs B said Mr C’s budget did not meet his needs and said she had made a complaint to the department. Mr C joined the meeting and was agitated and angry. He said that all he wanted was a holiday and he had recently had a trip away but only for 1 night, whereas 3 nights had been planned. The social worker said Mr C ‘appeared overloaded and struggling with his emotions’.
50. The social worker urged Mrs B to start recruiting PAs and Mrs B said she wanted a third-party managed account. This meant that the agency would take on the role of being the employer. Mrs B said she did not want carers in the home at night or in the morning but wanted to have carers willing to stay overnight in an emergency if she was not there. This would avoid Mr C having to move out of the house in an emergency.
51. The social worker met with Mrs B on 6 June 2019. Mrs B now said it was not a priority to have a carer in the house 24 hours a day, 7 days a week. Mr C did not need night-care at the moment and she wanted some privacy in the morning. Therefore, she did not want carers to arrive before 11 am. She asked if the Council would pay for her to provide 40 hours a week of support to Mr C while she lived with him.

Council’s response to the complaint – 24 June 2019

52. The Council said:
• Mrs B had said it was not a priority to have a carer in the house 24 hours a day, 7 days a week.
• Mrs B had said there was no need for night time support at the moment and she wanted privacy in the morning so carers could not arrive until 11:00 am.
• When they met, they agreed that emergency/contingency planning was a priority and this was being put in place.
• It refused to pay Mrs B as a carer while she lived with Mr C. The Council pointed out that this type of arrangement would only be agreed in exceptional circumstances when there were no alternative options. This was not the case here.

Mrs B’s stage 2 complaint – 25 June 2019

53. Mrs B said:
• A live-in carer was not the best way forward, but Mr C needed support 24 hours a day, 7 days a week (168 hours a week).
• ‘Not wanting care in the house before 11 am did not mean that [Mr C] did not need care before 11 am.’
• The current package covered 70 hours support, which left Mrs B to provide 98 hours unpaid support which was unacceptable.

Mrs B’s second complaint – 27 June 2019

54. Mrs B said:
• The Council failed to provide proper support to Mr C when he was in hospital in August 2018. It did not consult Mrs B and she was forced to leave the hospital early because Mr E threatened to put Mr C in care.
• Mr C required 24/7 support and was still not receiving this. She refused to provide any support from 20 May 2019, but had been forced to continue to provide support because of the Council’s failures.

Council’s investigation report – 6 August 2019

55. The Council carried out an investigation. The outcome was:
• The decision making had been done in line with the Care Act 2014 and the Council’s policies.
• The social worker had done a lot of work trying to create the support plan and had explored a lot of different options. There were delays but these were caused by market capacity, the volunteering scheme being in its infancy and Mrs B’s refusal to have live-in volunteers, Mrs B’s refusal to employ agencies and disagreement between Mrs B and the Council about the plan.
• The Council failed to share the plan with Mr C and Mrs B before presenting it to its internal panel and this should have happened. It was fundamental to the process and would have enabled Mr C and Mrs B to understand how the Council developed the plan.
• The investigator had doubts about Mr C’s capacity to make decisions about his care and support although she noted the social worker did not have concerns about this. The investigator felt the Council’s decision making in this area should have been better documented.

The complaint to the Ombudsman

56. Mrs B has now come to the Ombudsman as she is not satisfied with the Council’s response. I have focussed on the two complaints that Mrs B wants the Ombudsman to look at:

The Council’s actions in August 2018

57. Mrs B says the Council should not have placed Mr C with his brother, Mr E, when she went into hospital but should have allowed him to stay at home with support workers. She says the plan of 12 hours support was wholly inadequate. She says the Council did not consult her or Mr C. She says Mr C did not have access to his adapted toilet which caused him a lot of unnecessary trauma and embarrassment.
58. In its reply to the Ombudsman the Council said Mr C moved in with Mr E as an emergency and this was the emergency plan in the care plan. It had listened to Mr C as it knew that he did not want to be placed within care services. It referred to the meeting on 24 August 2019 when Mr C gave no indication that he did not want to be in Mr E’s home. It admitted there had been difficulties in obtaining support for him to allow him to spend time in his own home, but said that was because of staffing problems as the emergency happened during the school summer holidays.

Analysis

59. My reading of the documents is that the proposed 12 hours did not relate to the emergency measures, but related to the overall day to day care plan. Mr C’s care plan at the time was that he was entitled to 26 hours support a week, but a big surplus of £23,436 had accrued on the personal budget as no personal assistants had been hired.
60. Mr C was frustrated by this and Mrs B acknowledged that she was no longer able to take Mr C into the community. She agreed that she needed help. The social worker said she was going to explore finding support workers to provide at least 12 hours so Mr C could actually go into the community.
61. As a separate issue, the social worker also discussed the emergency plan to decide what would happen if Mrs B was not able to provide care. The emergency plan was that Mr E would support Mr C, but Mrs B said she was not sure if Mr E was still willing to provide this support. The social worker therefore emailed Mr E on the same day to find out his position.
62. Matters then escalated as Mrs B went to hospital on 1 August 2018. It is not clear how much involvement the Council had in the initial placement. However, I find no fault overall in the way the Council decided that Mr C should stay with Mr E. The stay was in line with the emergency plan as set out in the care plan except that the initial plan was for Mr E to move to Mr C’s house and instead Mr C moved to Mr E’s house.
63. Unfortunately, the Council could not insist that Mr E move out of his house and it is difficult to see how the Council could have facilitated a move for Mr C to live in his own house as he had no personal assistants who could move in with him.
64. The Council spoke to Mr C, but not until 24 August 2018, more than 3 weeks after he moved in with Mr C. This was fault as the communication should have been earlier. The Council had slightly deviated from the original emergency plan because Mr C was living with Mr E (in line with the agreed plan), but not in his own house. The social worker should have communicated with Mr C earlier to ensure whether the amended plan was working. She should have been more aware that it was essential to allow Mr C access to his house at least once a day so that he could use his adapted toilet and shower. This caused Mr C a lot of difficulties and was traumatic for him.

Mr C’s care plan

65. Mrs B says the Council left her without any support after August 2018 as it stopped her direct payments. She says that, since then, the Council has failed to provide a care plan which meets Mr C’s needs. She says the Council should pay her to be Mr C’s carer.
66. The Council has already provided a substantial reply to this in its own investigation. It has also added that, since the original complaint ended in August 2019, the Council changed Mr C’s care plan in October 2019 to 168 hours of support a week.

Analysis

67. I find no fault in the Council’s decision to stop the direct payments in August 2018. There was a large surplus of over £23,000 in the account. The Council did not reclaim this surplus but allowed Mrs B to use the funding to pay for the care. Mr C was entitled to 28 hours support a week from personal assistants as well as other support.
68. In terms of the care plan, I note that there were a lot of changes to Mr C’s care plan between July 2018 and May 2019 (date of the complaint). This was not because Mr C’s needs had changed, but because Mrs B was not able or willing to provide the level of care that she had been providing.
69. It is not for the Ombudsman to say what Mr C’s care plan should be. Only the Council can do this, based on its assessments of Mr C’s needs. Therefore, my investigation into this aspect is limited. I have investigated whether the Council has observed the law, guidance and its own policies and considered the relevant issues.
70. I find no fault, overall, in the way the Council decided to change the care plan.
71. The social worker carried out needs assessments of Mr C in July 2018 and March 2019 in line with the Care Act and guidance. She continuously liaised with Mrs B and Mr C and tried to adapt the care and support plan accordingly.
72. The discussions were difficult. It appears there was often overlap between the discussions about the emergency plan (when for example Mrs B was in hospital) and the day to day care plan and this confused matters.
73. Mrs B said that if there was an emergency, Mr C should not have to leave the house and he would need a carer to be there for 24 hours as he could not live on his own.
74. However, Mrs B’s position on the general day to day care was less clear and changed frequently. She said Mr C needed 24/7 care but then said she did not want a live-in carer, did not want night-time support or carers to attend before 11 am.
75. I also note that the Council offered a lot of different options to help in Mr C’s care such as volunteer services, directly commissioned care, agency care, live in carers and assistive technology.
76. The Council also considered the fact that there had been a lot of difficulties in the past with underspend on the direct payments as Mrs B had not recruited personal assistants to provide the care. The Council was reluctant to increase the personal budget if it was not going to be spent. It was not clear what Mrs B was going to spend the budget on if she was not willing for carers to stay overnight.
77. I find no fault in the way the Council decided that it would not pay Mrs B to be Mr C’s carer. The Council applied the correct regulations and guidance. The Council noted that the regulations prohibited payment of family members who lived with the cared for person. The only exception was if the Council was of the view that this was ‘necessary’. The Council assessed Mr C’s case and said the grounds for an exception did not apply in his case.
78. There was fault in the Council’s failure to provide a detailed care plan. Although I understand the plan was constantly changing and I accept the Council kept Mrs B informed of the overall plan and the total number of hours of support it would provide, a detailed care plan should have been completed.
79. Firstly, a care plan is a statutory requirement. Secondly, I am of the view that a more detailed care plan would have been helpful in this case because of the disagreement between Mrs B and the Council. There was never a discussion, as far as I can see, about what actual support the carers would provide and what support Mrs B was providing and how this linked into the outcomes identified in the Care Act such as clothing, personal hygiene, nutrition, and so on.
80. Also, a detailed care plan would have explained to Mrs B the difference the Council made between 1 to 1 support (for example with personal care, accessing the community and so on) and other times where the Council said Mr C did not need 1 to 1 support but could not be left alone in case there was an emergency.
81. The Council should also have completed a carer’s support plan at the same time which could have provided even more clarity.

Agreed action

82. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mr C and Mrs B for the fault I have identified.
• Pay the family £200 for the distress caused by the fault.
• Provide Mr C and Mrs B with a detailed care plan and a carer’s support plan.

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Final decision

83. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman