Summary: Mr B complains the Council stopped his direct payments and is refusing to reinstate them. He also complains about the care and support plan the Council drafted. The Ombudsman has found some fault with the way the Council dealt with the direct payment. And its communications after setting it up. But the Council has decided not to seek recovery of payments made to Mr B. With an apology for other faults we have found, this is a suitable remedy.

The complaint

1. The complainant (whom I shall refer to as Mr B), complains the Council:

• stopped his direct payments due to alleged unauthorised spending. But it had never issued him with a care and support plan explaining what he could use the payments for;
• when reviewing his care and support plan, suggested changes he did not agree with. In particular, it said it would change visits he received to prompt him to take his medication. The suggested change would have left him with no support from early evening onwards;
• said it could review his care and support plan without a new assessment. But it later said it could not do that.

Back to top

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. 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)
4. 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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr B;
• made enquiries of the Council and considered its response;
• spoken to Mr B;
• sent my draft decision to Mr B and the Council and invited their comments.

Back to top

What I found

Legal and administrative background

The Care Act

6. The 2014 Care Act introduced a single framework for assessment and support planning. The Act 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.
7. A council should revise a care and support plan where circumstances have changed in a way that affects it, and at least yearly. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs.
8. The High Court has confirmed that an individual’s wishes are not the same as their needs and wishes are not the main consideration. A council has to have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
9. While there is no defined timescale for completing the care and support planning process, councils should complete plans in a timely fashion, proportionate to the needs to be met.

Direct payments

10. Once a council has decided on a service user’s eligible needs, they can provide or commission the services for the person. Or, if they service user prefers, the council can give them a payment (a direct payment) so they can organise their own care. The person must spend direct payments on services that meet an assessed need, as set out in a care and support plan. Councils can ask for repayment of the money if it has not been used on a service to which it relates.
11. The Care and Support (Direct Payments) Regulations 2014 stipulate that councils must review new direct payments within the first six months, and then every 12 months. This is to ensure that public money is used properly and effectively.

The Council’s direct payment policy and procedure

12. The Council’s policy and procedure:
• notes an officer should be satisfied that a service user will be able to manage the payments themselves, or with the help available;
• has a list of topics officers must discuss with service users when setting up direct payments. If the Council cannot agree to a direct payment, it should direct the service user to its complaints procedure;
• says officers must carry out a light-touch review after about 6-8 weeks;
• after six months its finance team should carry out a further review;
• sets out when it might terminate a direct payment. This includes when there is “a major breach of the Terms and Conditions” of the direct payment;
• says, when ending a direct payment, officers must complete a risk assessment, as the person’s need for care and support will have changed;
• has a “supported direct payment” alternative, where a team manages and makes payments from an account as requested by the service user.

The Council’s “Adult Social Services - Quality Assurance Team - Care and support planning - Quick Reference Guide”

13. The Council’s note for its officers completing care and support plans says:

“If the plan cannot be agreed with the person, then you must confirm in writing the reasons for this and the steps to be taken to finalise the plan. If the plan cannot be agreed at a local level and a dispute remains, then the person should be directed to the Council’s complaints procedure.”

What happened

Background

14. Mr B has both physical and mental health disabilities, including cognitive and behavioural changes and a brain injury. The Council’s records say Mr B was first referred to it in 2014, by an NHS Trust. Mr B lives with his ex-partner and adult son. He started to receive care and support from Council commissioned services in 2015.

The 2016 reassessment and the start of the direct payment

15. In 2016, the Council’s local mental health team carried out a review of its Care Act assessment of Mr B’s needs. The Council agreed to provide funds via a direct payment, for Mr B to employ a Personal Assistant (PA). It also agreed funding for him to attend weekly sessions at a day centre. Mr B signed the direct payments terms and conditions in March. The Council began to pay Mr B the direct payment in May.
16. The care and support plan the Council drew up from the assessment noted:

“[Mr B] will like support from a Personal Assistant to meet his day to day activities which are as follows:

• [Mr B] will like to go swimming x 6 weekly … in the morning with support from a Personal Assistant (6am ­ 9am) ­ 2hours daily x 6 days = 12hours per week.
• Personal Assistant to prompt with Breakfast x 7 daily @ 30minutes per day = 3.5 hours
• [Mr B] will like support x 2 hours daily with dog walking and because of his falls he will need support with this = 14hours
• [Mr B] will like support when visiting his son's grave which he does daily and spends 2 hours there = 14hours
• [Mr B] will like attending [a day centre in a city some way away from where he lived] x 1 weekly where people with a brain injury are supported = 6 hours
• P.A. supported activities x 6 weekly to meet needs like going to the Bank, Library & GP appointments = 12hours
• Total number of support hours per week == 61.5 hours weekly

[An agency supporting Mr B] TO COST HOURLY RATE AND GIVE TO [Mr B] WHO HAS SOMEONE AGREEING TO MANAGE THE BUDGET FOR HIM”

17. On 1 June, the Council’s social worker (whom I shall refer to as Officer 1) responded to an enquiry from Mr B about his direct payment to advise:

“The money that has been paid into your account is for you to use as agreed in your Support Plan for transport to [the day centre] and payment for the sessions attended as well as entrance to the swimming pool.

I have attached a second copy of your Support Plan for future reference.”

18. In early June, an NHS care-coordinator contacted the Council asking for clarification about what Mr B could use his direct payments for. The coordinator said Mr B “needs it down in writing”.
19. At the end of June, Mr B’s representative from a support organisation advised the Council Mr B was becoming “very anxious” about the personal budget. The representative noted the care and support plan did not have a breakdown of hours, for example nothing specified for swimming or transport costs. A duty social worker checked with the team manager (whom I shall refer to as Officer 3) and advised the representative that “transport costs would have to come out of the budget”. He also advised the budget would not cover the cost of swimming lessons. The duty social worker sent the representative a copy of the care and support plan.
20. After the end of June contacts, Officer 1 and Mr B’s representative tried to arrange a meeting to discuss the direct payment concerns. This meeting was not arranged.
21. The Council has no recorded contacts with Mr B or his representatives after this until January 2017. Then, Mr B’s psychologist advised Officer 1 her view was Mr B did not understand what the direct payment was for. On 10 January Officer 1 visited Mr B to explain to him what his personal budget was for. Mr B’s representative and his (NHS) care-coordinator attended. The record of the meeting notes Officer 1 carried out a review then of Mr B’s needs. Her 13 February case note about this visit says:
• she gave Mr B a copy of his care and support plan;
• Mr B was happy with the explanations she had given. And that the view expressed by the psychologist, was wrong and he “…was happy how it was”.
22. On 7 February Mr B’s representative sought clarification of where they were at with Mr B’s personal budget.
23. On 15 February Officer 1 made a note (but recorded the ‘date and time of the event’ as 11 January) that:
• “[Mr B] will be managing his budget.
• [Mr B] to employ the services of a PA himself.
• Worker to set up a review date.”

The Council ends the direct payment

24. From November 2016 the Council’s direct payment team (within its finance team) was writing to Mr B seeking financial monitoring forms and associated paperwork about his spending of the direct payments. It noted “[w]hen you signed the Direct Payments Terms and Conditions you agreed to send us details of how the money was spent every 4 weeks or as requested.”
25. The direct payments team continued to chase Mr B for this information over the next few months. Towards the end of March 2017, the team chased a response from Officer 1, as it had not received any information from Mr B, but had paid him over £28,000.
26. Officer 1 contacted Mr B to advise she had given him (at the January 2017 meeting) a copy of a letter from the finance team. She asked him to urgently send the team receipts.
27. At the end of March, the Council stopped making the direct payments to Mr B as he had not supplied it the information it needed.
28. The lack of information meant the Council’s view was it might have overpaid Mr B. So it passed the outstanding amount to its credit control team. That team wrote to Mr B. When he did not respond, it telephoned him. He advised he had given all the information to Officer 1, at a meeting with her.
29. In June 2017 Mr B’s NHS care-coordinator contacted the Council, as Mr B had contacted him asking why he did not have a social worker or personal budget. Officer 3 spoke to the organisation that was representing Mr B. The manager of that organisation noted Mr B’s old representative had left the organisation. Officer 3 asked the manager to advise Mr B he had investigated his statement that he had given Officer 1 information, but she said she had not received anything from him.

The 2017 attempts to reassess Mr B’s care and support plan

30. Later in 2017, the support organisation arranged a new representative for Mr B. She contacted the Council to seek a new assessment.
31. In September 2017 the Council’s social worker (whom I shall refer to as Officer 2) visited Mr B twice to carry out a review of his Care Act assessment. Her notes record she had problems completing the review, as Mr B would not engage and only wanted to receive direct payments, which in the Council’s view Mr B could not manage. She records that Mr B said he had spent the previous direct payments on transport, entrance fees and food. And that he had not employed a PA, as his view was there were not enough funds to pay for this.
32. Officer 2 noted Mr B had refused permission for her to contact Mr B’s family (his informal carers). So she could not offer them a carer’s assessment. Officer 2 withdrew from the case, citing abuse and physical intimidation from Mr B. Before doing so, in November, she completed her assessment of Mr B’s needs. The Council decided not to send Mr B a copy.
33. Officer 2 noted to her manager (Officer 3) that she could not complete a care and support plan, as Mr B would not accept anything apart from direct payments. Officer 3 decided in November to reallocate Mr B’s case to a different team.
34. The Council did liaise with the organisation providing Mr B with support, to ask if it could complete the care and support plan with Mr B. The organisation said it could not support Mr B in that way.
35. There are no records in the Council’s case notes of any action between the end of November 2017 and the beginning of January 2018. Officer 3 did not speak to Mr B’s representative about reallocation until the end of January. He then wrote to Mr B advising he was going to reallocate the case on 12 February, enclosing a copy of the assessment Officer 2 had completed. This showed Mr B had eligible care needs. The covering letter advised the Council needed Mr B to get involved in designing a care and support plan and completing a personal budget questionnaire.
36. A social worker from a different team (whom I shall refer to as Officer 4) spoke to Mr B on 12 February. Officer 4 decided her team was the wrong team to complete the task needed, so referred the case back to Officer 3’s team.
37. Shortly after, the Council asked a different area’s mental health team to work with Mr B. There was a delay, until April, in allocating Mr B’s case. The Council says this was because it wanted to give the case to an experienced social worker.
38. In April an independent advocate was appointed to work with Mr B (whom I shall refer to as Ms D). She met Mr B later in the moth. In early May Ms D emailed the new social worker the Council had asked to complete the assessment (whom I shall refer to as Officer 5) setting out Mr B’s views.
39. From 24 May, Officer 5 met Mr B and Ms D (and later her colleague Ms E, who took over the role of advocate) several times. Officer 5’s records note:
• they “…began the process of reassessment”.
• she explained to Mr B the Council would not use a direct payment in the future, due to the past issues and his difficulties in managing them;
• Mr B was agreeable to receiving directly commissioned services while a complaint investigation (see below) looked at the events around his previous direct payment;
• Mr B agreed for Officer 5 to contact professionals involved in his care, but not his family members.
40. In November Officer 5 met with Mr B and Ms D and discussed his care and support plan. In December 2018 she arranged a multidisciplinary team meeting, that also included Mr B’s care-coordinator. The records of these meetings note:
• Ms D suggested the Council put in place a package of care. But Mr B advised that a friend could meet his needs, until his complaint was resolved;
• Mr B was unhappy with the assessment, although he also said he refused to read it;
• Mr B would like a personal budget, for a carer to accompany him five days a week to go swimming. Mr B did not answer a question about how he was currently managing to go swimming.
41. One of the points of dispute was whether Mr B needed more calls than the Council was proposing. Mr B’s view was he needed calls to help him in taking his medication. In December, Mr B’s GP advised the Council there was no medical reason Mr B could not take different medications at the same time. This would reduce the number of visits Mr B needed to prompt him to take medication. Mr B does not agree with the GP’s view.
42. The Council’s records show it offered Mr B various alternatives for resolving the issues with his package of care. The Council’s records say in November 2018 Mr B said he had friends who could support him with the home care/domiciliary support. He would prefer for the Council’s support to fund extra time for swimming and attending community activities.

Reassigning the case

43. In December 2018 the Council decided to reassign Mr B’s case to the original team. And to place it on hold, on Mr B’s request, because he had decided to complain.
44. The Council did not write to Mr B with its decision to not take any further action with the care and support plan. And its case notes have no entries from February 2019 until August 2020 (although there was action about his complaint during the time – see below).
45. In response to my enquiries, the Council sent a chronology. This says, between December 2018 and 2020:

“Long delays in receiving formal complaint letter from Mr [B] and his Advocate and then an offer of further meetings to resolve issues around care & support, which Mr [B] had been declined.”

The complaint and offer of a new assessment

46. At the November 2018 meeting, the Council advised Mr B he could complain about the assessment and planning process. Mr B discussed this with Ms D, who advised the Council in December 2018 they were going to complain. The Council says it did not receive a complaint from Mr B until July 2019. Mr B’s main complaint was that the Council’s draft care and support plan failed to provide him with the support to meet his needs. This included Mr B’s detailed comments on the draft assessment.
47. The Council says, at the end of July, it contacted Mr B offering a meeting to move the issue forward. The Council says it did not receive his response until early October, when Mr B advised he did not want to meet.
48. At the end of January 2020, the Council provided a complaint response. This:
• apologised for the delay;
• advised a social worker would review the assessment. But it asked Mr B to suggest how long each day he needed support;
• asked Mr B for some more information about points he did not agree with in the 2018 care and support plan;
• listed three alternatives:
1. put in place the 2018 care and support plan;
2. carry out a new assessment;
3. amend the 2018 care and support plan, after further discussion.
• Offered Mr B £300 for his time and trouble in making a complaint.
49. At the end of February the Council chased a response from Mr B. He advised he was then too ill to respond.
50. The Council has a note that in May that it rang Mr B to check on his welfare after the start of the COVID-19 pandemic. The note said Mr B advised he had not eaten in three weeks. But that he was insistent he did not want support.
51. Mr B responded to the Council’s complaint response at the end of June. He advised:
• he would prefer the Council’s option c) - amending support following discussion. He was happy to meet;
• he wanted a care and support package that met his needs, both inside and outside the home, via a personal budget;
• he wanted the Council to make him the payments he should have been receiving from the time it stopped his direct payments.
52. The Council says a manager reviewed Mr B’s case after his response. Their view was, due to the time since the 2018 assessment, the Council needed to carry out a fresh review. The Council had made the offer to amend the plan on the assumption Mr B would respond soon after it made it in January.

After the complaint response

53. In August 2020 a new social worker (whom I shall refer to as Officer 6) contacted Mr B by telephone and email. Mr B was confused by this contact, as the Council had not advised him of any transfer of his case. And he still thought the Council was investigating his complaint.
54. Officer 6 advised Mr B the Council needed to carry out a yearly review. But, as the assessment completed in 2018 was comprehensive and accurate, the reassessment could be light touch, via a self-assessment. But the problem remained: how the Council translated the assessment of Mr B’s needs into the support it proposed to offer.
55. Mr B, Ms D and Officer 6 then worked on a plan that would involve Mr B and Ms D carrying out a self-assessment, based on an update to the 2018 assessment. After work on this, Officer 6, Mr B and Ms D met virtually in January 2021. In an update to me during my investigation, the Council advised it had still not been able to agree a care and support plan or new (supported) direct payment with Mr B. This was because he refused to sign an agreement that did not include all the support he believed he needed.
56. In response to my enquiries, the Council advised:
• it had decided (in 2018) not to recover the approximately £28,000 it had paid Mr B for the personal assistant which he had not employed;
• more recently it had reviewed the outstanding £2,400 it paid Mr B for his attendance at a day centre. It had now decided it would not recover that amount also.

Back to top

Findings

What I have investigated

57. The events covered in Mr B’s complaint go back to June 2016, when he first started to receive a personal budget. Mr B complained to the Ombudsman in November 2020. A complaint about historical issues would be caught by the limit set out in paragraph 3.
58. Mr B’s view is the problems he has experienced all stem back from the Council’s decision in 2017 to stop his direct payments. Mr B began to complain to the Council about these issues in 2018. But this has been delayed – Mr B has cited his disabilities as reasons he sometimes cannot act. So my view is there are reasons why it is reasonable to accept a late complaint – back to the 2016 setting up of the direct payment. My decision on this is informed by the fact there are records available that allow me to investigate these issues.

Was there fault by the Council?

59. My role is to consider if there was fault in the way the Council carried out its assessment and review of Mr B’s social care needs and financial contributions to his social care costs. It is not to decide what those needs are; what services Mr B should receive or how the Council would fund them.

The direct payment agreement and communications about it

60. The records from 2016 show officers sent Mr B information about his direct payment and care and support plan (although Officer 1 at first gave Mr B wrong information, which was fault – see paragraph 17). There are records of officers explaining the direct payment.
61. But there are also communications from professionals, acting on Mr B’s behalf, advising he did not fully understand what the payments were for. So the Council had enough requests for clarification, to alert it earlier to possible issues with how Mr B was managing his direct payments.
62. The Council might have noticed the problems, if it had carried out the initial review the Council’s procedure says its officer should have carried out (see paragraph 12). I can see no evidence this happened.
63. When Officer 1 did speak to Mr B, in January 2017, her note records that Mr B was managing the payments ok, but also that he ‘will be’ employing a personal assistant. This use of the future tense suggests she was aware Mr B had not been employing a personal assistant for the previous months the Council had been making the direct payment.
64. So the Council could have done more earlier to consider, or review, how well the payments to Mr B were working. I find the failure to do so is fault.

Stopping the direct payment

65. The Council’s direct payment team followed the Council’s procedure and started (from November 2016) seeking evidence to review Mr B’s direct payment. It did not receive information from Mr B, despite it being a condition of receiving a direct payment. So at the end of March 2017, the Council stopped Mr B’s direct payments.
66. Mr B says he gave information to Officer 1. She in turn denies this. I simply cannot resolve those conflicting accounts. But whatever happened, Mr B should have been providing information well before then (every four weeks). So the Council did have grounds for its decision. That means its decision to stop the direct payment is not something the Ombudsman can criticise.
67. However I am concerned that when the Council did stop the direct payment, there is no record of any consideration of how Mr B would have his care and support needs met. The Council’s procedure says it should have carried out a risk assessment. I cannot see a record of that on the Council’s file.
68. The payments stopped at the end of March. It was not until one of Mr B’s support workers chased the Council for an update (in June, some months after the direct payment ended) that it took any further action. I find fault with the lack of a plan for how to liaise with Mr B about his support after the end of the direct payment.

The later attempts at an assessment

69. From September 2017 the Council has been engaged in repeated attempts to put in place some care and support for Mr B. During the assessments, the Council’s records record Mr B as refusing to engage and that he only wanted to receive a direct payment. But the Council had grounds for its decision that this was not suitable for Mr B. So it is not something I can criticise.
70. There were however parts of the Council’s handling of this process were I have found fault:
• not telling Mr B when it moved his case between teams;
• there is some suggestion that at least one of the reallocations was to a team that could not assist;
• I am aware Mr B asked for no further action on his assessment while he complained. But the Council’s adult social care team should have kept in touch with Mr B while he was waiting for a complaint response.
71. One of Mr B’s complaints is about whether the planned visits were frequent enough, given his need for help to take medication. I know Mr B strongly disputes his GP’s view that the time to take medicines could be combined. I am not a medical professional and cannot comment on this. But I cannot criticise the Council’s assessment of how many visits Mr B needed, as it is supported by an expert’s opinion.

The complaint

72. It took a long time to resolve Mr B’s complaint (December 2019 to January 2020). Some of that delay was due to the Council. But significant periods (in particular December 2018 – October 2019) were due to Mr B taking time to respond. I accept that was due to Mr B’s disabilities. But that does not mean the Council could have provided a complaint response while it was awaiting contact from Mr B.
73. The complaint response offered Mr B three alternatives. The Council says, by the time Mr B provided his late response, it needed to carry out a review. Given the Care Act’s requirement for yearly reviews, that was correct. But it would have been better if its offer of options had set some sort of time limit for a response.

Did the fault cause an injustice?

74. There were several faults by the Council in 2016 and 2017 in the way it dealt with liaising with Mr B about his direct payment and how he was spending it. He ended up spending the payments on things the Council had not intended them for.
75. That is not to make any comment on Mr B’s motives. The contacts from professionals and representatives working with him suggest he was concerned he had not received information to allow him to understand what the direct payments were for. And the uncertainty this caused Mr B is an injustice that demands a remedy. But the Council has now decided it will not recover the payments. That is a suitable remedy for the injustice caused by the identified faults.
76. The Council has offered Mr B £300 for its delays in responding to his complaint. That is consistent with the Ombudsman’s own guidance on remedies.
77. Mr B says the Council should pay him a self-managed direct payment. But its own policy outlines reasons why it might not do this. So I cannot criticise its decision not to do so.
78. It follows from my analysis in the preceding paragraph, that I cannot ask the Council to make Mr B the payment for ‘missed’ direct payments. The Council has been trying to put in place commissioned services, instead of direct payments. Latterly it has suggested supported direct payments. For his own reasons, Mr B has declined these services. But I cannot say any faults I have identified would logically lead to a finding the Council should have offered Mr B self-managed direct payments. So I cannot recommend the payment Mr B suggests.

Back to top

Agreed action

79. The Council has agreed to provide Mr B with an apology for the added fault I have found.

Back to top

Final decision

80. I uphold the complaint. But, aside from an apology, my view is the Council’s decision to not seek to recover payments, and a payment for a delayed complaint response, are suitable remedies. So I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman