Decision : Not upheld
Decision date : 12 Feb 2021
The Ombudsman's final decision:
Summary: Ms X complained the Council stopped her Direct Payments without explanation and sent Council employees to her home who behaved in a threatening, unprofessional manner. Ms X said this situation caused her distress and restricted her from socialising and carrying out her daily activities. The Council was not at fault when it decided to stop Ms X’s Direct Payments and there is no evidence of fault in the way its employees interacted with her.
- Ms X complained the Council withdrew her Direct Payments without providing a good reason for doing so.
- Ms X complained the Council sent employees to her home who spoke to her in a manner that made her feel threatened and bullied.
- Ms X said this situation has left her unable to socialise and caused her stress and upset.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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 contacted Ms X and discussed her view of the complaint.
- I made enquiries of the Council and considered the information it provided, this included the Council’s final response, Ms X’s needs assessment, the Council’s guide to Direct Payment financial monitoring and complaint correspondence shared between Ms X and the Council.
- I wrote to Ms X and the Council with my draft decision. I considered the comments before I wrote the final decision.
What I found
- Sections 9 and 10 of 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.
- The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
- The Care and Support Regulations 2014 sets out the eligibility threshold for adults with care and support needs. Where local authorities have determined that a person has any eligible needs, they must meet these needs.
- Under Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 the provision of personal care for people who are unable to provide it for themselves is a regulated activity. Service providers carrying out these activities must be registered with the CQC. If a person makes their own arrangement for personal care and the carer works directly for them and under their control without an agency or employer involved, the carer does not need to be registered.
- Once a council has arranged support to meet a person’s needs it must keep those arrangements under review. The review process is about making sure the support is working and, if not, what should change to help avoid any crisis situations.
- Direct Payments are cash payments made by the Council to individuals so they can commission their own care and support to meet their eligible needs. The payments are from public funds and the Council must be able to account for how the funds are spent. Councils should therefore have systems in place to monitor Direct Payment usage to ensure effective use of public money.
- The Council’s “Guide to Direct Payment Financial Monitoring,” says recipients of Direct Payments should keep records of the staff they employ to work for them e.g. timesheets, payslips, invoices and receipts, so the Council can see the money is being spent properly. The Council will send a case worker to look at the paperwork and conduct a review every year.
- The Council’s guide says recipients of Direct Payments can be as creative as they like in spending their personal budget as long as they can show that the money they are spending on is:
- effective in meeting their care needs;
- within the budget set by the Council; and
- When a council is considering stopping a Direct Payment it should discuss this with the person as soon as possible. This discussion should consider possible options before ending the Direct Payment. If a council decides to stop a Direct Payment, it must make sure there is no gap in the person’s support and give the person a period of notice.
- Councils should only terminate Direct Payments as a last resort, or where there is a clear and serious contradiction of the Regulations. Councils should take all reasonable steps to address any situations without the termination of the payment. Councils should only stop Direct Payments without notice in serious cases.
- The guidance notes that one instance where a council might decide to stop Direct Payments is when it is apparent they have not been used to achieve the outcomes of the care plan.
- The guide says there are some things recipients cannot spend their money on such as a care agency that is not registered with the Care Quality Commission if you receive personal care from them.
- Ms X has an ongoing health issue which affects her mobility. She requires support to take care of herself and run errands. In 2014, the Council carried out a needs assessment and found that Ms X was eligible to receive Direct Payments.
- Ms X says she used her Direct Payments to pay two Care Providers:
- Care Provider A, registered with the Care Quality Commission who assisted Ms X with her personal care; and
- Care Provider B, an unregistered provider that assisted her with shopping and cleaning.
- Ms X has complained the Council failed to justify why it stopped her Direct Payments. The guidance says Councils can stop Direct Payments if they uncover evidence indicating the recipient is contradicting the Regulations. The Council had concerns about Ms X’s use of Care Provider B and about whether Ms X was using the care providers to meet her eligible needs. Ms X has been unable to provide evidence showing how often Care Provider B visited her home or what support it provided her with. There is no fault in the way the Council reached its decision to suspend Ms X’s Direct Payments. In line with the guidance, the Council gave Ms X a notice period and after a brief delay, which was not the fault of the Council, has arranged a care package of managed support for Ms X to ensure her eligible needs are met. The Council has contacted Ms X to arrange a timely review of her needs and offered her support to meet those needs. There is no fault in the Council’s actions.
- Ms X says the Council sent employees to her home who conducted themselves in a threatening and unprofessional manner. The Council disputes this and says the employees performed their roles correctly. I cannot make a finding on this part of the complaint as it is not possible for me to know what happened. I can appreciate that this situation caused Ms X distress, but I cannot say the Council has acted with fault with any certainty. I will not investigate this aspect of the complaint further as I cannot see that Ms X has experienced an injustice due to the Council’s actions.
- There was no fault in the Council’s actions. I have therefore completed the investigation.
Investigator's decision on behalf of the Ombudsman