Summary: Mr B complains about how the Council assessed his late mother’s care needs, how it supported him, and how it suspended and stopped Direct Payments for her care. There was no fault in how the Council assessed and met the care needs. However, the Council did not give its decisions to suspend and stop payments due consideration. It has agreed to revisit these decisions, apologise to Mr B, and review the guidance it gives to staff about this.

The complaint

1. Mr B lives with his wife and family. At the time of the events complained about, Mr B also lived with his late mother, Mrs Y. Mr B complains about how the Council dealt with his mother’s care and support needs. He says the Council:
• failed to meet her social care needs adequately in the last two years of her life, between 2017 and 2019;
• failed to adequately support him and his wife as his mother’s carers between 2017 and 2019;
• carried out delayed and flawed assessments of his mother’s care needs in 2019; and
• incorrectly stopped direct payments when his mother was in hospital and refused to issue direct payments for four weeks of her time abroad.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its case notes, file documents and its own policy. I also considered the law and guidance set out below. Both parties have commented on a draft of this statement. I have taken their comments into account before reaching my final decision. I have considered the comments of both parties before issuing this final decision.

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What I found

The law and guidance

Care planning

5. 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 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.
6. 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.
7. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has.
8. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
9. The government issued statutory guidance called The Care and Support Guidance 2014 (the Guidance). This says that where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care.

Direct payments

10. Direct payments (DPs) are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about DPs so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
11. The Guidance says the DP is designed to be used flexibly and innovatively and there should be no unreasonable restriction on the use of the payment, as long as it is being used to meet the eligible care and support needs.
12. The Guidance also says that direct payments should continue in hospital to meet non-care needs. The local authority should explore with the person, their carer and the NHS, options to ensure that both the health and the care and support needs of the person are met in the best possible way. For example, a hospital may provide an interpreter but a deafblind person may need help with informal communication and moving around the ward.
13. When the Council makes DPs, it enters into an agreement with the person or her representative. The agreement says the Council may suspend payment if the person goes into hospital or is otherwise temporarily unable to receive services.

What happened

14. Mrs Y lived with Mr B, his wife and family. She had dementia and had become frail. She had been in receipt of DPs to meet her care needs since 2014. Mrs Y did not speak English and spoke her native language with a particular dialect. The Council took this into account and that she had dementia, and decided that her son and his wife could be paid part of the DP to provide her care. The DP also paid for another carer from the community to provide care. In total the DPs would cover 12 hours per day.
15. Mrs Y was admitted to hospital in 2017 with a broken leg. The Council’s case notes show that Mrs Y had been discharged home and was seen regularly by the Community Matron. The Council liaised closely with the Matron who says it is unlikely that rehabilitation would be best for Mrs Y due to her dementia.
16. The Council’s notes of its visits at that time say that Mrs Y was hoisted to transfer from her bed to a chair, she used incontinence pads and had a soft diet as she had difficulty swallowing. Mrs Y needed help with all of her personal care. She rarely slept through the night and would become distressed. Mr B slept upstairs and had CCTV so he could see when he needed to tend to his mother. Mrs Y was prescribed sleeping medication, but Mr B did not always administer this as he says it made her too drowsy. The Matron agreed that it was best for Mr B to judge this.
17. In February 2018, the Council reassessed her needs. The Council’s assessment says Mrs Y needed 24-hour care. It has since explained to me that this would usually mean that Mrs Y would move to residential care or have a live-in carer. However, Mrs Y’s language and cultural needs meant that she and her family decided that she would be best cared for at home. The Council decided that Mrs Y’s care needs could be met by 15 hours of home care per day. It has explained that it did not need to fund 24 hours of care because, Mrs Y did not need care as she slept or for someone to be awake. It recognises she would wake at night and that her dementia often worsened in the evening and at night, but that she would still sleep some of the time and that Mr B had CCTV fitted to help him see when his mother needed him. The increase to 15 hours would allow Mr B to get some sleep in the evening and then he would take over caring for his mother if she woke in the night.
18. The Council also asked for a continuing healthcare (CHC) assessment to be made. This establishes whether the person needs nursing care. This is funded by the NHS. The CHC assessment found that Mrs Y did not need nursing care.
19. In early April, Mr B contacted the Council to say that he needed the DP to increase. He said his mother’s dementia was worse and she could not weight bear due to her broken leg. The Council had already assessed Mrs Y’s needs in February and March, and so it referred him for money advice.
20. In the spring of 2019, the Council raised concerns about Mr B’s record keeping in relation to the DP. It resolved these and gave him advice. In June 2019, Mr B told the Council that he had left work to care for his mother. The Council reviewed whether his mother’s needs were being met by the DP in place. Mr B said they were. However, in July 2019, Mr B told the Council that they needed more help to care for his mother.
21. The Council visited Mr B’s home on 11 July to reassess Mrs Y’s care needs and to see if the current care and support plan needed amendment. At this review, Mr B told the Council that his mother needed two carers (known as double-handling) as one could not lift or move her alone, and that Mrs Y fell if she mobilised with only one carer. Mr B also said that some of Mrs Y’s personal care took a long time and that she needed constant supervision due to her dementia, waking every 45 minutes at night needing his help.
22. The Council consulted with the Community Matron and asked whether another CHC assessment would be appropriate. The Matron confirmed that she saw Mrs Y regularly. She thought Mrs Y had not deteriorated since the last assessment in 2018, and was actually more mobile as her broken leg had healed. For this reason, she did not think a CHC assessment would be appropriate. The Matron also said she did not think that Mrs Y needed constant supervision or double-handling.
23. The Council arranged for an Occupational Therapist (OT) to assess whether Mrs Y needed double-handling. The OT visited on 17 July. Mrs Y had her family there and her carer to interpret for her. The OT found that the family and carers had difficulty moving Mrs Y in her bed. The OT spoke to Mr B about this and arranged for some equipment to be provided to help with this. The equipment meant that one carer could safely move Mrs Y. The OT and the equipment provider visited Mrs Y at home and showed the family how to use the equipment.
24. By August 2019 however, Mr B was finding it more difficult to manage his mother’s care. He told the Council he needed more help and made a formal complaint to the Council that it was not supporting his mother or his family sufficiently.
25. The Council and health professionals started to present the case at a regular multi-specialist team meeting to ensure all involved worked together. The assessment was ongoing and the Council says it had suggested a live-in carer might better meet Mrs Y’s needs.
26. The Council has explained that Mr B refused carers assessments in 2017 and 2018, and as paid carers, it is not required to assess their needs. However, it acknowledges that some of the care given to Mrs Y by her family will be unpaid and informal. The Council said it supported Mr B via the care and support planning and DPs, by giving help with claiming benefits and with an application to adapt the property. The Council is clear that Mr B never said he was unable or unwilling to provide unpaid care, alongside the care paid by part of the DP.
27. On 20 August, the Council contacted Mr B to discuss his complaint and he explained that his mother had been admitted to hospital. He told the Council he would use the DP to pay for her to have her own carer in hospital. The Council told him that he could not, as care would be provided at no charge by the NHS. The Council consulted the Community Matron that day, who confirmed that she had been seeing Mrs Y almost daily until she was admitted to hospital. The Matron told the Council that Mrs Y could transfer by herself but fell often because her dementia caused her to forget to use her walking aids.
28. Also on the same day, the Council liaised with the hospital. The hospital confirmed that Mrs Y might soon be discharged. It told the Council that Mrs Y was not difficult to care for and did not need one to one supervision, but her family were there to translate for her. She could transfer from her bed to her chair, but if the family were not present to translate for her, she needed two carers to do this. The hospital confirmed that Mrs Y was receiving oxygen but tried to get out of bed at night.
29. Mrs Y’s health deteriorated and the hospital advised Mr B that she was nearing the end of her life. Mr B tells me that his mother wanted to go back to his house, but was worried that she would not have enough care there. On 29 August, Mr B discharged his mother from hospital and took her with other family members to her home country. He tells me they decided to do this because there would be more family there to help care for her. He said they intended to return to this country if possible.
30. The Council’s position was that Mr B could not use the DP to pay for a carer to be with his mother in hospital and that this is supported by the DP agreement. The Council also decided that Mr B could not use the DP to pay for Mrs Y’s care while she was abroad. It said that the DP can only be used for the care set out in Mrs Y’s care plan and this does not include travel abroad.
31. The Council terminated the DP agreement with effect from 20 August on the basis that Mrs Y was not receiving care from this time. The Council had already paid the DP to Mrs Y’s account at that time and so asked Mr B to repay this. It had raised concerns during 2019 about Mr B’s management of the DPs and had asked him to provide the final accounts. I understand that Mrs Y died abroad, in her home country.

Was there fault by the Council causing an injustice to Mr B and his family?

32. It is clear to me that Mr B was under a great deal of pressure and dedicated to making sure his mother got the right care and was properly looked after at home. However, there is no evidence that the Council failed to properly assess and meet Mrs Y’s care needs between 2017 and 2019.
33. The Council’s assessments show that it involved Mrs Y, her family, carers and other health professionals in identifying her needs and deciding how to meet these. It made sure that there was either an interpreter or family present at its visits to help Mrs Y communicate. The case notes show there was no significant delay in completing the assessments. The Council made an exception to the usual rules, to allow Mr B and his wife to be paid carers, recognising that it might be difficult to find suitable carers with Mrs Y’s dialect.
34. There is no indication in the case notes that Mr B disagreed with the level of care until July 2019, when his mother’s health deteriorated. The Council reacted swiftly to Mr B’s concerns and started the process to reassess his mother’s needs. I have looked carefully at how the Council assessed whether Mrs Y needed constant supervision and double-handling. It based its decisions on the information it had from Mr B, the Community Matron that frequently visited Mrs Y, and the OT. There was no fault in how the Council decided that Mrs Y did not need double-handling or constant supervision.
35. Mr B tells me that he asked the Council for more help frequently between April 2018 and June 2019. He also says that the fact that the Council twice called for CHC assessment suggests to him that it had concerns her needs were not being met. I have no reason to doubt Mr B but there is no record of these contacts.
36. I cannot establish whether Mrs Y’s condition had deteriorated or whether he needs were met. My task is to determine whether the Council did enough to satisfy itself that Mrs Y’s needs were met, based on the information that it had, or that it could gather. The Council consulted with the Community Matron and its OT as well as meeting with Mrs Y, Mr B and other carers. There was no indication that Mrs Y’s care needs were not being met. The Council was in the process of reassessing this when Mrs Y was admitted to hospital in the summer of 2019.
37. There is no evidence that Mr B asked the Council for more help, or that the Council had information from any other source that indicated Mrs Y’s needs had increased and were not being met. And so, I cannot say the Council failed to do enough to ensure Mrs Y’s needs were met between April 2018 and July 2019.
38. I acknowledge the Council’s position that it does not have to complete a formal carers assessment for Mr B or his wife, because they are paid carers. I have reviewed the case notes to see how the Council responded to Mr B when he let it know he needed more help. Again, I have not found fault by the Council. In June 2019, Mr B told the Council that the DP was meeting his mother’s needs. He did not raise any significant concerns with the support the Council offered until July. The Council responded appropriately to this by starting its reassessment of Mrs Y’s needs.
39. The Council was at fault in how it made decisions about the DP while Mrs Y was in hospital and when she went abroad. The Council did not take all the relevant factors and the Guidance into account when it decided to suspend and then stop the DP.
40. The DP agreement says the Council may suspend the DP when the person goes into hospital but not that it must. The Guidance is clear that DPs should not stop and requires the Council to explore with the person, their carers, and the NHS options to ensure their needs are fully met while in hospital.
41. The Council told Mr B immediately that he could not use the DP to pay for a carer to be with his mother in hospital. The case notes show the Council did check with the hospital and the Community Matron whether Mrs Y needed this additional help while in hospital. However, it is not clear the Council properly considered the information it gathered and what it already knew about Mrs Y. The Matron had previously said that rehabilitation would not be good for Mrs Y due to her dementia and that she could not easily tell how much she could do for herself as her son tended to anticipate her needs. The hospital did say that it could care for Mrs Y but only with the family there and without them she needed double handling. The Council had already acknowledged that Mrs Y’s dementia and language needs made it hard for her to recruit carers outside of the family. I would expect the Council to take all this into account and explain why Mrs Y did not need someone with her own dialect on the ward for mobilisation and everyday communication, particularly taking into account how her dementia would be impacted by being in hospital, as this would not ordinarily be provided by the NHS.
42. As a result of my investigation, the Council has revised its decision and has allowed the payment of DPs while Mrs Y was in hospital, to stand.
43. There was also fault when the Council decided that Mrs Y’s DP should stop when she went abroad. The Council’s case note says these stopped because Mrs Y was not receiving care at this time. However, it is likely that Mrs Y was receiving care from her son abroad. The Council has further explained that DP can only be used to provide the care set out in her plan, and this did not include care abroad. However, it has not taken into account that Mrs Y’s care was similar whether at home or abroad and that she would still require supervision, help with mobilising, meals, medication, and personal care. Mr B is clear that his mother received care abroad and that the costs increased as they had to buy medical supplies.
44. I appreciate that Mr B did not discuss the trip with the Council in advance and that there remains concerns about how the DP was spent and records of this. However, it could have allowed some care abroad to be funded by the DP retrospectively, after due consideration.
45. As a result of my investigation, the Council has agreed to revisit its decision and about whether it should pay DPs while Mrs Y was abroad.

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Agreed action

46. In response to my investigation, the Council has already:
• Apologised for the faults I have identified; and
• Shared this with staff.
47. On my recommendation, the Council has revisited its decision not to allow any of the DP to fund a carer in hospital, and has decided to allow this. The Council has offset this against overpaid DP. It has notified Mr B of this outcome in writing.
48. On my recommendation, the Council has agreed to revisit its decision not to allow any of the DP to fund care for Mrs Y while she was abroad. It will ask Mr B for details of Mrs Y’s care and how DPs were spent during that period. The Council should make a decision on payments of DPs for that period, within one month of receiving the required information from Mr B. The Council may offset this against overpaid DP. Again, it should notify Mr B of this outcome in writing and show the Ombudsman it has done this.
49. The Council has agreed that within two months of this decision it will show the Ombudsman it has reviewed its DP policy and included any necessary advice to staff about using DP for care in hospital.

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Final decision

50. I have completed my investigation. There was fault by the Council causing injustice to Mr B and his family.

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Investigator's decision on behalf of the Ombudsman