Summary: Mr B complained about the way in which the Council dealt with direct payments for his late mother’s (Mrs C’s) care. We find the Council delayed in carrying out the initial assessment, delayed in calculating and paying the correct amount of direct payments over a ten month period and failed to keep Mr B up to date regarding progress with the payments. Mr B and to a lesser extent Mrs D, were caused significant time, trouble and frustration. The Council has agreed to pay the outstanding direct payments (£720), £250 to Mrs D and £300 to Mr B for the distress and inconvenience caused.

The complaint

1. Mr B complains that Hertfordshire County Council (the Council), in respect of his late mother, Mrs C:
• failed to make a properly and timely assessment of Mrs C’s needs;
• failed to provide or fund night-time care;
• failed to pay the correct amount of back-dated direct payments to cover the period from November 2018 to February 2019; and
• failed to respond to Mr B’s communications regarding the direct payments during August 2019.
2. Mr B experienced significant frustration, time and trouble in trying to resolve the issues.

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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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Community care assessment

7. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.

What happened

9. Mrs C was elderly with a number of health conditions and required assistance with most everyday tasks. She lived in her own home. Her daughter, Mrs D, had lived with her for several years but due to her own health problems was struggling to provide the necessary care. The family decided to look for a live-in carer. On 1 August 2018 Mr B contacted the Council to request an assessment of Mrs C’s needs, including an occupational therapy assessment, with a view to obtaining some assistance with the cost from the Council.
10. Due to staff absence, the Council did not start the assessment until 5 November 2018. A social worker visited Mrs C and Mrs D and completed the assessment on 7 November 2018. They concluded that Mrs C would benefit from 24 hour residential care but understood the family preferred a live-in carer and the Council would meet some of the costs. A live-in carer started on 16 November 2018.
11. There was a delay completing the care and support plan and starting the direct payments as the Council needed to carry out a financial assessment. It sent the forms to Mr B but he did not receive them. It sent a second set to him on 20 November 2018.
12. The family received the forms and returned them in early December 2018. The Council completed the financial assessment and concluded Mrs C’s contribution should be approximately £50. It agreed to pay £538 per week which was the equivalent cost of a Council-funded residential care bed and would backdate the payments to 16 November 2018.
13. There was further delay of a month, in Mr B receiving the correct forms to arrange payment. The Council sent them on 18 December 2018 but Mr B did not receive them and the Council sent a second set on 21 January 2019.
14. On 11 February 2019 Mr B queried the level of the direct payments as the actual cost of the carer was £910 per week. The Council agreed to review the payments.
15. In early March 2019 Mr B said Mrs C’s condition had deteriorated, particularly at night (she was awake most nights) and he felt a waking night carer was needed increasing the weekly cost of care to £2000. He also chased the issue of the level of direct payments
16. An occupational therapist (OT) visited Mrs C on 7 March 2019 to carry out a functional assessment and recommend some equipment for her. The OT noted that she was reluctant to go to bed at night and slept in her chair which was bad for her health conditions.
17. A new social worker also visited Mrs C and Mrs D on 21 March 2019. She completed the review of Mrs C’s care needs on 2 April 2019. She noted that Mrs C could not manage her toilet needs and tended to go to the toilet around three times during the night, but this was adequately managed by the carers. She noted that the care logs showed Mrs C had a significant amount of coffee during the day and night which was probably interfering with her sleep. She said she needed a medication review and noted the family did not want her to have sleeping pills.
18. The OT and social worker visited again on 28 March 2019. The social worker also asked the GP to carry out a review of Mrs C’s medication to check it was not contributing to Mrs C’s insomnia. The GP confirmed in April 2019 that the medication was not causing insomnia.
19. Mr B queried whether the increase in the direct payments would be backdated to November 2018. The social worker queried this saying the live-in carer only started on 11 February 2019. This was incorrect.
20. Mr B provided evidence of the costs of waking night care (£1080 per week from March 2019) and for the carer breaks (£168 per week).
21. In the meantime, a new OT visited Mrs C in early May 2019 and recommended a new bed to encourage Mrs C to sleep in it at night. Mrs D said on 16 May 2019 that Mrs C had slept in her bed for the past 7 to 10 days and it had helped one of her conditions.
22. Following the review, the Council increased the direct payments to £910 a week less Mrs C’s contribution and agreed to cover the cost of breaks for the live-in carer. The review document said in one section that the increase in direct payments to £910 would be backdated from 10 February 2019 to 16 November 2018 (12 weeks @ £372 – the difference between £910 and £538) but in another part said the increase would only be backdated to 11 February 2019. The payment for carer breaks was calculated at £15 per hour for 14 hours a week from 16 November 2018.
23. Mr B complained on 22 May 2019 about the Council’s refusal to pay for the waking night care. He provided the carer logs saying this demonstrated Mrs C’s difficulties with sleeping at night and her need for care.
24. Mr B queried the level of the direct payments and on 12 June 2019 the Council agreed it should be £1018. It also made:
• a payment for the carer breaks of £2688 (16 weeks @£168 per week) and
• a payment for the live-in carer rate from 19 November 2018 totalling £3744 (12 weeks @£312). The Council said this was because the live-in carer rate of £850 should have been paid originally.
25. The Council corrected this again on 4 July 2019 increasing the direct payment level to £1078.
26. The Council responded to Mr B’s complaint on 24 June 2019. It recounted the history of the case and apologised for the delay in setting up the direct payments. It also apologised for the failure to pay the correct amount initially and had spoken to the social worker about this issue. The Council also confirmed that a new social worker and an OT were actively involved in Mrs C’s care planning. But currently the Council could not justify funding for night-time care based on the fact that Mrs C only required assistance twice in the night.
27. In early July Mr B disputed the decision on night-time care and provided further information including the carer logs. The Council suggested possible changes to routines and referred Mrs C to the incontinence clinic to look into the reasons why she needed the toilet so frequently. It also referred her for screening for continuing health care funding (CHC funding by the NHS) and a psychiatric review.
28. During August 2019 Mr B provided further evidence why he considered Mrs C needed night-time care. He said the live-in carer could not cope with the night-time care as well and asked for a doctor’s view on her needs.
29. In mid-August 2019 the Council asked for invoices of the care provided in order to make the direct payments. Mr B provided evidence in the form of carer schedules and bank statements. On 27 August 2019 Mr B rang the Council and asked to speak to Officer Z in the finance department as he was having difficulty accessing the money on the payment card. Officer Z did not respond.
30. In response to my enquiries, Officer Z said he received an email from the care payments service on 19 August 2019 with Mr B’s query. He requested information from Mr B via the care payments team. By 12 September 2019 he had all the information he needed and made the payments to all parties on 16 September 2019. He said he did not think it would be helpful to add another direct contact to Mr B’s emails as he was already communicating with the care payment team about the other issues relating to Mrs C’s care.
31. Mr B raised further queries on 3 September 2019 about when the Council was going to consider further Mrs C’s night-time needs. He also asked for an update on a response to his complaint, given that he disputed the response given in June 2019 regarding night-time care needs. He also raised a new complaint about the failure of Officer Z to get back to him about accessing more than £18,000 on the payment card.
32. In October 2019 the Council responded further to Mr B’s complaint about the night-time care needs. It upheld the original decision, communicated on 24 June 2019, that waking night provision was not justified on the information available. It noted that a meeting was planned for 24 October 2019 with input from a psychiatrist and the incontinence clinic to fully review Mrs C’s needs.
33. The psychiatrist concluded that Mrs C’s behaviour was not related to her mental health and that she probably needed a change of routine to get her to sleep at night. The incontinence clinic had assessed and discharged Mrs C, providing advice about fluid restriction in the evening and providing thicker pads for the night. The carers confirmed that Mrs C required assistance once or twice a night to use the toilet and slept in bed two to three times a week. The social worker said this was insufficient to justify waking night care. The social worker suggested taking Mrs C out in the daytime to make her more sleepy, taking the telephone away at night to discourage making calls, and changing the carer’s times so there was no care in the afternoon when Mrs C tended to sleep. The family felt none of these suggestions would work. The Council concluded that the current care arrangements were meeting Mrs C’s needs.
34. In November 2019 Mrs C’s was admitted to hospital. The Council discovered at this point that she had been awarded CHC funding in August 2019 but had only just been notified by the NHS. Mrs C died on 27 November 2019.
35. Mr B complained to the Ombudsman.

Analysis

failed to make a properly and timely assessment of Mrs C’s needs

36. The Council accepts it took too long to start the assessment and acknowledged this in the complaint response of 24 June 2019. But I do not consider it has apologised for this delay: the apology in the complaint response related to the delay in setting up the direct payments once the assessment had been completed.
37. The Council has backdated the direct payments (although see below for an amount possibly still outstanding) but this does not put right the initial delay of three months in starting the assessment during which time Mrs D continued to struggle to look after Mrs C. I consider the Council should have completed the assessment within two months of the initial request: by the beginning of October 2018.

failed to provide or fund night-time care

38. Mr B asked the Council to fund night-time care in March 2019. Following visits to Mrs C and Mrs D, consideration of the carer logs, provision of new equipment including a bed and discussion of changes to Mrs C’s routine, the Council concluded that Mrs C’s needs did not justify payments for night-time care. I cannot find fault with the Council’s actions here. It made the decision in less than two months having considered all the relevant information.
39. Mr B disputed the decision via the complaints process and the Council explained the reasons for its decision within a month. Mr B then provided further detailed information about Mrs C’s night-time needs and the Council agreed to obtain information from a psychiatrist and explore Mrs C’s toilet habits in more detail via the incontinence clinic. I consider the Council took reasonable steps here to review its decision and consider Mrs C’s needs in more detail. It took four months but this was largely due to the need to engage external agencies in the process. The incontinence clinic did not see Mrs C until September 2019 and did not provide the recommended pads until the beginning of October 2019. The Council then arranged a meeting with the psychiatrist and the family to fully consider the night-time needs. Following this meeting the Council provided a full explanation as to why it did not consider her needs justified further payments. Mr B may disagree with this decision, but I cannot find fault with the way it was made.

failed to pay the correct amount of back-dated direct payments to cover the period from November 2018 to February 2019

40. The Council took too long to pay the correct rate of direct payments for the correct period. In terms of the time taken, the financial assessment was completed in mid-December, but it took a further two months to arrange payment. This was too long. I accept some of this was due to non-receipt of the payment arrangement forms but I am unclear why these forms could not have been sent out at the same time as the financial assessment forms. Mr B had to wait three months to get any payment at all.
41. By the time the Council started the payments it should have made sure it paid the actual live-in carer rate (£950) rather than the lower cost of a council-funded place in a care home (£538). It did not correct this until May 2019 and only started paying for carer breaks from this date, six months after the live-in carer started. This was too long and was fault. It also took two further queries from Mr B and another two months for the Council to ensure the correct level was paid and a further two months to authorise the payments once Mr B had provided invoices.
42. The Council believes it has now paid the correct amounts and backdated them to November 2018. However, on the basis of the information Mr B and the Council have provided I consider the following period is still missing:
43. In the review document completed in May 2019 when the Council agreed to increase the payments to £950 and pay for the carer breaks, it indicated that it intended to backdate the increase to November 2018. But it only backdated the increase to 11 February 2019. In June 2019 it corrected this mistake and backdated the increase to November 2018. However, there is a discrepancy in the amount paid: In May it said it was going to pay £372 for 12 weeks (the difference between £538 and £910) but in June it only paid £312 for 12 weeks. So, I have concluded that approximately £720 (£60 x 12) is still owing.
44. These delays and errors have caused Mr B significant frustration, time and trouble.

failed to respond to Mr B’s communications regarding the direct payments during August 2019.

45. Given the length of time the Council had taken to calculate the correct amount of direct payments I consider it would have been better practice for Officer Z to have sent an update, even if it was through the care payments team, as to what he was doing and the expected timescale. This would have reassured Mr B that the matter would be resolved and perhaps assuaged some of his anxiety around the payments. However, I do accept that Officer Z resolved the situation within a reasonable period (a month) and Mr B was communicating with the care payments team throughout this time.

Agreed action

46. In recognition of the injustice caused to Mr B and Mrs D by the fault I have identified, I asked the Council (within six weeks of my final decision) to:
• pay an additional £720 to Mr B for the missing period (subject to the Council reviewing the figures);
• apologise to Mr B and Mrs D for the initial delay in assessing Mrs C, and pay £250 to Mrs D for the difficulties she experienced during this time;
• pay £300 to Mr B for his time and trouble in chasing up the direct payments for 10 months to ensure the correct amounts were paid; and
• consider whether the process of arranging direct payments can be streamlined and improved in any way to ensure payments are made more quickly and more accurately.
47. The Council agreed to my recommendations.

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Final decision

48. I consider this is a proportionate way of addressing the injustice caused by the fault and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman