Decision : Upheld
Decision date : 10 Mar 2021
The Ombudsman's final decision:
Summary: We upheld one of Mr X’s complaints. There was poor communication by the Council because it did not write to him to say it was commissioning an agency to do his care after stopping his direct payment. This caused Mr X avoidable distress for which the Council will apologise. There was no fault in transferring Mr X’s case from the mental health to adult social care team and no evidence a social worker verbally attacked one of Mr X’s personal assistants.
- Transferred his case from the mental health team to the older adults’ team
- Unreasonably stopped his direct payment and replaced it with a care agency
- Verbally attacked his Personal Assistant (PA) causing them to leave
- Refused to do an assessment or provide care before 2016.
What I have investigated
- I have investigated events from December 2018 (complaints (a), (b) and (c)). My reasons for not investigating older matters in complaint (d) are at the end of this statement.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I considered Mr X’s complaint to us, the Council’s responses to his complaint and documents described later in this statement. I discussed the complaint with Mr X.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
- Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. (Care Act 2014, sections 24 and 25)
- Many people choose to have a direct payment. This is money a council gives a person so they can arrange and pay for their own care and support.
- Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
- Care and Support Statutory Guidance (CSSG) says:
- Councils need to be satisfied a person can manage the direct payment by themselves or with support. (paragraph 12.21) They can stop a payment if the person no longer appears to be capable of managing them with whatever support is necessary. (paragraph 12.69)
- Councils can use pre-payment cards which allow direct payments without the need for a separate direct payment account. (paragraph 12.58 and 12.59).
- Councils should only stop a direct payment as a last resort and should take all reasonable steps to address problems without ending payment. (paragraph 12.67)
- If there is a decision to stop a payment, there should be a review and revision of the care and support plan to ensure the plan is appropriate to meet needs. (paragraphs 12.68 and 12.81)
- Mr X’s social care assessment of 2018 concluded he had eligible social care needs. The Council agreed a care and support plan for 12 hours a week of personal and other care. Mr X received a direct payment which he used to employ a PA.
- The finance team wrote to Mr X in December 2018 setting out his weekly care charge.
- The social worker and a team manager visited Mr X at the start of December 2018 to discuss a number of issues. The team manager wrote to Mr X after the visit saying it was not possible for his case to go back to the mental health team and he needed to pay his care charge onto the prepayment card.
- The social worker visited Mr X in February 2019 to review his care and support plan. Mr X explained his PA had not been able to do all the hours since December 2018. The social worker agreed to find an agency to cover the hours the PA could not do. The records indicate Mr X was in agreement with this.
- In February 2019, the finance team wrote to Mr X to say his care charge would be increasing in April because of a change in charging policy. The letter set out the new charge and advised Mr X to get in touch immediately if his circumstances had changed.
- The notes indicate the social worker referred Mr X’s case to the Council’s brokerage team to find a care agency to do the hours Mr X’s PA could not do. An agency took on all Mr X’s care from the second week in March as his PA was going on an unplanned holiday for three weeks. The agency would then do the hours the PA could not do on her return from holiday.
- In the middle of April Mr X’s PA told the Council she would not be supporting Mr X any longer. She said she was doing only domestic work for him and little to no personal care. The PA and social worker spoke again the following week and the PA said she had not visited Mr X for 10 days and did not intend to return as he had sent her abusive text messages. The social worker contacted the agency to see if they could cover the PAs hours. The agency said they would find it hard to place staff who would work with Mr X as he had been verbally abusive. The social worker referred Mr X’s case to the brokerage team to find a second agency.
- The Council’s direct payments team wrote to Mr X at the end of April to say his direct payment ended on 12 April. It asked him to ensure his care charge payments were up to date.
- The social worker visited Mr X at the start of May. She said the Council was trying to find an agency to do the PAs hours. Mr X said a friend had been supporting him without pay and the friend was interested in becoming his (paid) PA. The friend was at the meeting and the social worker spoke to him. There is no record of any concern or difficult or inappropriate conversation between the friend and the social worker during the meeting.
- The notes indicate the brokerage team continued to send Mr X’s details to care agencies (as a back-up plan in case the new PA changed his mind) but there was no availability.
- The social worker carried out a review of Mr X’s care and support plan in the middle of May. Mr X said the previous PA had been unreliable and had sometimes not turned up. He also said the agency was ok, but some staff did not like his pet. Mr X’s friend was at the review and the plan was for the Council to set up a direct payment so he could employ the friend as a PA. The social worker reminded Mr X he would need to set up a standing order to pay his care charge. She noted Mr X agreed to do this. Mr X signed a direct payment agreement which said he agreed to pay his care charge into the direct payment account or onto the prepayment card.
- At the end of May, the social worker told Mr X that the second agency could now provide all his care from June, but Mr X said he hoped the new PA was going to start. The social worker said the agency could be a back up plan. The case notes indicate the new PA started at the end of June.
- The social worker visited Mr X at the end of June to discuss paying his care charge. Mr X said the charge was too high and he could not afford it. The social worker listed Mr X’s expenses and outgoings and his income. The social worker said Mr X needed to pay the charge or his direct payment would be at risk. She arranged for a fresh financial assessment to take place.
- The second PA left a voicemail message for the social worker at the end of June to say he was stopping work for Mr X as Mr X had not been paying him enough. The records indicate the social worker left Mr X a message the same day. Mr X did not call back.
- I asked Mr X why the second PA left and he said it was because he was not able to pay the PA fully because there was a problem using the prepayment card. He told me he did not contact the social worker or anyone else about this. Mr X also told me he had paid the second PA his care charge directly rather than into his direct payment prepayment card/account.
- The Council commissioned an agency to do Mr X’s care from the middle of August. Mr X told me he was not aware of this at the time and he’d had nothing in writing from the Council or the agency to say this. The case records support what Mr X said to me. There is no letter on file from the social worker to say she had arranged an agency.
- The social worker spoke to the agency on three consecutive days and they said Mr X had not been answering his door to carers. The social worker also left two messages for Mr X on consecutive days. She carried out a visit, but Mr X did not answer the door. Neighbours reported they had seen him going out in his car the previous day.
- Carers from the agency continued to visit Mr X, but he would not let them in. At the end of August, the agency reported he was leaving notes on his doorstep saying he was out and they should go away. Mr X told me he was not answering the door to strangers and he had expected an introduction beforehand.
- The direct payments team wrote to Mr X in September to say his direct payment had ended on 26 July.
- The Council ended the care agency in October 2019 as Mr X continued to refuse carers.
Mr X’s complaint
- Mr X complained to us in December 2019. We referred his complaint back to the Council for a response. This is because in most cases we expect complainants to use a council’s complaints procedure before we get involved and there was no reason for us to depart from our usual practice in Mr X’s case.
- The Council responded to Mr X’s complaint in January and February 2020 saying:
- Officers had reviewed his direct payment because he was not paying his care charge into his direct payment account. The social worker told him it was not acceptable to pay this to the PAs directly and he needed to pay it into the account or the direct payment would be at risk. Officers had also told him the same thing at a meeting in December 2018.
- The social worker reviewed his care and noted his needs could be met with an hour a day of personal care and an extra 5 hours a week to be used flexibly.
- His PA told officers they could not meet his needs due to personal circumstances, so the Council put in place a care agency to work some of the PAs hours. The PA then withdrew and so the Council then commissioned the agency to take over all the hours
- Mr X then found a second PA and officers supported him to employ the PA to take over all the hours. The second PA left when he was not paid the full amounts.
- Mr X still did not pay his care charge into his direct payment account.
- The Council then commissioned an agency which started in August 2019. He did not let the carers in. Officers made several attempts to visit and phone and left a note, but he did not reply. The agency said carers reported seeing notes on the front door asking carers not to visit. This continued for two months and the care package was cancelled in October following several attempts to contact him by phone
- There was no evidence the social worker verbally attacked the second PA and this was not the reason the PA gave for leaving
- The mental health team would not support him for reasons given at the meeting in December 2018: his physical health was the primary issue rather than his mental health
- The social worker agreed to arrange a financial assessment in June 2019 because Mr X said he could not afford the care charge. This did not go ahead because he refused agency care and so care then stopped.
- The Council was willing to do a further social care assessment and he needed to phone the social care team to arrange this. The finance team would also do a fresh financial assessment following the social care assessment.
Case notes since the complaint to the Council
- The case notes indicate Mr X phoned the Council’s duty social care team in May 2020 asking for a social care assessment. The Council agreed to carry out an assessment. Mr X said he wanted his case transferred to the mental health team. The duty social worker explained the Council would not transfer his case to mental health services for reasons already given, but staff were all competent to deal with customers with mental health difficulties. Mr X said he did not want an assessment from the older adults’ social care team only a worker from the mental health team. Mr X said he would seek legal advice and ended the call.
- Mr X contacted us again in November 2020. He said he was still not receiving care and the Council was pursuing him for unpaid care charges.
Was there fault and if so did this cause injustice?
Complaint a: The Council transferred Mr X’s case from the mental health team to the older adults’ team
- I did not uphold this complaint. Where a person has physical and mental health needs, a council has discretion in which team should deal with them and it should make no difference to the care funding or the way a case is dealt with in any event. I see no fault in the Council deciding to deal with the case within the adult social care service rather than the mental health team as it considered Mr X’s primary needs were around his physical health.
Complaint b: The Council unreasonably stopped Mr X’s direct payment and replaced it with agency care
- The Council acted appropriately in commissioning an agency to deliver part and then all of the first PAs hours when she could not do all the hours and then left. The records indicate this was with Mr X’s agreement; the social worker discussed it with him beforehand and checked to see how he was getting on with agency care. She also carried out a review of the care and support plan in May 2019. This was in line with Care and Support Statutory Guidance, paragraphs 13.19-21 and 13.32 and there was no fault. I consider there was no fault in stopping the direct payment after the first PA left because the agency was carrying out the care with Mr X’s agreement.
- The Council also acted appropriately after Mr X found a second PA by setting up a direct payment for him again, at his request. Mr X said he could not access the money to pay the second PA, but there is no record of a phone call from him to the social worker or direct payment team. So it is unlikely that this was the problem.
- I do however find fault by the Council in the way it handled the case after the second PA left. The records indicate Mr X was not responding to attempts to contact him by phone and was not answering the door when visited. So the Council should have written to him suggesting agency care. The decision to commission an agency was an attempt by the Council to fulfil its legal duty to meet Mr X’s eligible care needs. But the Council should have written to Mr X to confirm this was what it was doing. I consider Mr X suffered avoidable distress as he the lack of written communication meant he did not know what the Council had arranged for him and meant he may have been alarmed by agency staff turning up at his home without his knowledge.
- The Council should have also written to Mr X before stopping the agency care. The failure to write to him was poor communication. I do not consider the outcome would have been any different though as Mr X continued not to engage with the Council.
- The Council explained in the complaint response that one of the reasons for stopping the direct payment was Mr X had not been paying his care charge onto the prepayment card. There is evidence officers told Mr X he needed to pay the charge onto the prepayment card on several occasions, verbally and in writing. And he signed a direct payment to say he agreed to do so. Mr X told me however, that he had paid the second PA the care charge directly in cash, which was against the terms of the direct payment agreement, as he was aware. I consider the Council was entitled to stop the direct payment in line with Care and Support Statutory Guidance paragraphs 12.21 and 12.69 because it was not satisfied Mr X was managing the direct payment. I am satisfied the Council made all reasonable efforts to address the problem with Mr X in line with Care and Support Statutory Guidance paragraph 12.67 and so there was no fault. I note Mr X said in June 2019 that he could not afford the charge. The social worker acted appropriately in response by arranging a fresh financial assessment. This did not happen because Mr X did not engage with the Council or the agency and so it eventually cancelled his care.
- I am satisfied the Council responded appropriately to Mr X’s contact in 2020 by offering him a fresh social care assessment. It is a matter for Mr X to decide whether he wants to have an assessment. There was no fault in the Council refusing to transfer his case to the mental health team to do this assessment, as I have explained above.
Complaint c: The social worker verbally attacked Mr X’s Personal Assistant (PA) causing them to leave
- There is no evidence the social worker verbally attacked the second PA as Mr X suggested in his complaint. I am satisfied the reason the second PA left was because he was not fully paid, as this is what he told the social worker.
- The Council will apologise to Mr X for poor communication, within one month of my final decision. The Council has already discussed the case with staff involved and this will improve practice and reduce the risks of recurrence.
- We upheld one of Mr X’s complaints about the events that led up to Mr X’s direct payment stopping. We did not uphold his complaints about a social worker or about transferring his case from the mental health team. The Council will apologise for poor communication.
- I have completed the investigation.
Parts of the complaint that I did not investigate
- Mr X also complained about the Council’s refusal to provide care before 2016. I did not investigate that complaint because it was late and Mr X could have complained to us sooner.
Investigator's decision on behalf of the Ombudsman