Summary: There were delays on the part of the Council in providing the care and support plan, arriving at an appropriate level of support for Mr L’s respite and considering the eligibility of some needs for Disability-Related Expenditure (DRE). It was not fault by the Council to advise the family about employment matters in line with national guidance and its own policies. The Council has offered to discuss any exception to its policy with Mr X.

The complaint

1. Mr X (as I shall call the complainant) complains that the Council has delayed in providing a care and support plan for his disabled adult son Mr L, delayed in agreeing DREs, and initially set an unrealistically low level of respite support. He also complains the Council has told him he cannot use family members to provide care for Mr L unless he employs them and delayed in undertaking a financial assessment.

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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. 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

3. I spoke to Mr X. I considered the information provided by the Council and Mr X. Both Mr X and the Council had the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

4. 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. 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.
5. 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.
6. 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.
7. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). 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. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
8. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan.
9. Direct payments 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.
10. In terms of paying family members to provide care, the care and Support Statutory Guidance says, “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.”
11. The Council’s policy on direct payments says, “The council and NHS strongly recommend that if you choose to use a personal assistant to provide your support, that you employ the staff and not use people who offer a service as self-employed personal assistants…..Some people will tell you that they are self-employed; however, it is the responsibility of the person who engages a personal assistant to operate PAYE and to account for National Insurance Contributions (NIC) unless the personal assistant is engaged through an agency.” It goes on “The aim of a direct payment is to give people more control. For this reason you cannot use a direct payment to secure services from a self-employed personal assistant. This is because the control over how and when care and support is delivered remains largely with the self-employed personal assistant.”

What happened

12. Mr L is an adult who has learning disabilities. He lives with his parents. Mr L requires assistance with many aspects of daily living and previously had a support package which was provided through Direct Payments from the council in whose area he lived. He spends four days a week at a placement for people with learning disabilities.
13. In summer 2019 the family moved into the Council’s area. Mr L’s social worker referred him to the Council’s Adult Social Care team before the move and a social worker started an assessment of his needs in July 2019. She visited him again shortly after the move to the new area. Mr X says at both meetings she said she did not think the Council would fund Mr L’s provision to the same level as had been funded previously.
14. The Council’s records show it attempted to arrange a financial assessment visit in August but was unable to agree a suitable date with Mr X until 10 October. Mr X says the finance officer told him there was a flat rate payment for respite/short break payments of £557 regardless of need. He says they discussed Mr L's Disability Related Expenditure. He says he was told that fuel costs for travel to day services and other social activities would not be considered a DRE nor would other costs such as personally-arranged care or chiropody which had previously been included in Mr L’s Support Plan.
15. The Council wrote to Mr L in October with details of his assessed contribution towards his care. Mr X says he was concerned that the financial assessment could not have taken into account some aspects of Mr L’s support plan – which the Council had not yet supplied – because the level of Mr L’s contribution was twice that it had previously been. The DREs identified were for laundry, gardening and clothing.
16. Mr X says he requested a copy of Mr L’s care and support plan several times. He says a new social worker was allocated and requested a meeting. Mr X pointed out they could not discuss the situation sensibly until they had a copy of Mr L’s care and support plan. The new social worker sent out a copy in time for the meeting but says the meeting was frustrating for everyone because they had only just had sight of the document. He said it was not possible to arrange respite care for Mr L at the rate the Council expected.
17. Mr X emailed the Council’s finance officer about the DREs included in Mr L’s budget. She responded that chiropody was deemed to be an NHS provision and therefore not one which the Council would usually allow for. She said transport costs (for example, to his placement) should be paid for by Mr L from the benefits he received and that he received a mobility payment which he had chosen to use to hire a car.

The complaint

18. Mr X complained to the Council in November, in particular about the lack of DRE allowance for chiropody, transport or the privately-arranged care provision for when Mr or Mrs L needed to leave Mr L for a few hours. He also complained about the level of finance provided for respite care.
19. In December the team manager replied. He agreed the DRE in respect of transport costs for Mr L’s travel to and from his placement. He said he could not currently see any disability-related reason why Mr L should have an allowance for chiropody rather than accessing the NHS provision. He said the question of privately-arranged care services had not been raised in the assessment and so did not form part of the budget.
20. The team manager also responded to the complaint about the level of respite care payment. He said since the initial assessment the social worker had been able to reconsider Mr L’s needs and had already telephoned Mr X to let him now there would be an increase to £851 a week.
21. The team manager also responded to Mr X’s concerns about arrangements for paying family members to stay with Mr L if Mr and Mrs X both needed a short break from their caring duties. He said the Council had a duty to ensure public funds were spent in accordance with the parameters set down by HMRC and the government. He said if they wanted to continue with the arrangement of paying for short break care, they would have to agree to use any Direct Payments provided for the purpose either to purchase support through a registered provider or employ their own personal assistants direct. He said to continue to use family members, they would have to employ them and carry out all the duties of an employer.
22. Finally the team manager apologised that there had been such a delay in sending them the care and support plan.
23. Mr X responded. He said they had explained to the first social worker that there were times (for example their own hospital appointments) when they were unable to support Mr L and for that reason the previous council had allowed a DRE as it was not possible to find a support worker to fulfil the role. He said they had understood the Council’s first social worker would include it in the support plan and subsequently the financial assessment but that had not happened.
24. Mr X also complained that by insisting on employing personal assistants rather than paying family members to provide short term care, the Council was denying them choice. He said it was up to individuals who were paid to declare any earnings.
25. The team manager responded in January 2020. He said (in respect of the need to cover short breaks) the Council had offered carers’ assessments to identify any unmet need. He said it might be possible to access a personal assistant for Mr L to cover such breaks, or provision via a care agency paid for by a Direct Payment. He said if those options were exhausted the Council would consider a DRE.
26. In respect of paying family members who did not live in the same house, the team manager said the Council would be able to set up such an arrangement via a Direct Payment but had a duty to ensure people agreed to comply with HMRC requirements. He cited the HMRC regulations which stated: ‘you’re classed as an employer if you pay a carer or personal assistant directly even if you get money from your local council or the NHS to pay for them.’
27. Mr X wrote again in January 2020 to complain the personal budget identified for M L - £10,834 and a respite payment (should he access it through the Council’s suggested carers) of £3406 - was insufficient to meet his needs. He also complained about the Council’s policy of not allowing him to use self-employed personal assistants to look after Mr L.
28. Mr X did not receive a reply when he expected. He complained to the Ombudsman. He said the Council had fettered its discretion by refusing to allow self-employed personal assistants to support Mr L. He said neither of the two respite options suggested by the Council was suitable for Mr L because of the needs of other residents. He complained about the initial inadequate respite payment offered by the Council. He complained the Council was not allowing DRE for Mr L’s chiropody needs although he was unable to use an NHS service because of his anxiety.
29. Shortly after Mr X’s complaint to the Ombudsman, the team manager replied to him that carers‘ assessments were the first step to identifying his unmet need as a carer and offering more support, and said he understood the social worker had now sent out the relevant forms to Mr X for completion. He suggested two care providers who could offer Mr L respite breaks at the rate agreed in his personal budget but noted each home would want to confirm they could meet Mr L’s individual needs. He reiterated that the Council’s policy did not allow Direct Payments to be used to pay self-employed personal assistants for personal care but said Mr L’s social worker would be happy to discuss this with the family and consider any exception. He said “Should this be viable, the Direct Payments Advisor will complete the application. As it is HMRC who determines employment status, they will need to agree to obtain written documentation to confirm the ability to use self-employed Personal Assistants specifically for care work.”
30. The Council contacted Mr X on 27 March as the day service which Mr L attended had been closed due to Covid-19. It says Mr X advised he was able to support Mr L while the service was closed.
31. The Council acknowledges there was a delay in sending Mr L’s care and support plan to the family and apologises for this. It says it has developed a new system to ensure copies are sent out in a timely manner and signed copies returned.
32. The Council has provided records showing there was no delay on its part in undertaking the financial assessment: it contacted Mr X several times in August and September to try and arrange an assessment and was then able to agree an October date with Mr X.
33. The Council’s records show it has offered a carers’ assessment several times before this option was taken up by Mr and Mrs X.
34. The Council says both the care homes identified as options for Mr L are registered as suitable for people with learning disabilities. It says each home would want to assess Mr L before offering a service to ensure it is suitable to meet his needs but should not be dismissed because they offer services for other groups as well.
35. Mr X says he has telephoned both the homes suggested by the Council. Both managers told him they would not be able to meet Mr L’s needs.
36. Mr L’s needs assessment does not mention his need for chiropody.

Analysis

37. The Council was wrong to delay sending out the support plan for so long. It has apologised and implemented a new system to prevent a recurrence, but there is no doubt the delay caused anxiety to Mr X and his family and led to further frustration.
38. The Council recognised Mr L’s particular need for respite early on and increased the likely budget.
39. The Council offered a carers’ assessment appropriately.
40. It was not fault for the Council to explain the parameters within which Mr X could employ personal assistants to help with Mr L’s personal care. The Council’s letter of March 2020 shows it did not apply a blanket policy in this respect but set out the steps by which Mr X’s preferred option might ultimately be deemed viable.
41. The Council recognised the travel costs to and from Mr L’s placement as a DRE as requested. I had not seen any evidence of the way it considered his chiropody needs as a DRE and asked the Council to review this in my draft decision. I recommended it should reconsider the arguments put forward by Mr X in terms of allowing a DRE for Mr L’s chiropody needs and let me know the outcome. It has done so. It says its understanding is the NHS should be able to adjust its service to meet Mr L’s chiropody needs despite his anxiety. As chiropody is a NHS service, I accept that is so.

42. It was not fault on the part of the Council to offer as possible respite options two homes which were registered for people with learning disabilities. However, whether they are suitable to meet Mr L’s needs is a matter for their individual assessment. Mr X has since spoken to the managers of both homes and was told they could not meet Mr L's needs.

Agreed action

43. Within one month of my final decision the Council will offer a payment of £300 to Mr X in recognition of the frustration caused by the delay in sending out a copy of the support plan;
44. Neither of the care homes suggested by the Council for short-breaks for Mr L has said they would be able to meet his needs. It is a matter for the Council now to consider with Mr X and Mr L what other options are available.

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Final decision

45. There was some fault on the part of the Council which completion of the recommendations at paragraphs 43 and 44 will remedy.

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Investigator's decision on behalf of the Ombudsman