Summary: There was fault by the Council in its communication with Mr X, a failure to commission care services to meet his eligible needs from October 2020 and continuing and a failure to include relevant information from health professionals in one of the social care assessments. There was also a failure to have in place a basic contingency plan in case of an emergency. These faults caused Mr X avoidable distress and meant he did not receive the care and support services to which he had a legal entitlement. The Council will apologise, ensure Mr X has care and support in place without further delay and pay him £1500.

The complaint

1. Mr X complained there was fault in Surrey County Council’s (the Council’s) assessment of his social care needs and a failure to meet his eligible needs. The fault included:
• Inaccuracies and omissions in social care assessments and in care and support plans
• poor communication
• a failure to consult with relevant NHS teams
• a failure to implement the actions it agreed to take in its response to his complaint.
2. Mr X also complained about the Council’s decision he could not have a direct payment.
3. Mr X said the Council’s fault meant he did not receive care and support to meet his needs and it also caused him avoidable distress.

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The Ombudsman’s role and powers

4. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mr X complained to us in January 2021. So complaints about issues from January 2020 are not late. I have investigated events from August 2019 when Mr X’s case transferred to the Council’s learning disability and autism (LDA) team and when he asked that team to do a social care assessment. Mr X had good reasons for not complaining to us sooner as he was expecting the Council to carry out the assessment it had promised to do as an outcome to his complaint in February 2020. It was reasonable of him to give the Council time to complete the assessment before complaining to us.
6. 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)
7. 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

8. I considered:
• Mr X’s complaints to the Council and its responses
• Mr X’s complaint to us
• Records from the Council and from Mr X described in the next section of this statement
• Comments from the Council
• A chronology from Mr X
9. I discussed the complaint with Mr X.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

11. Think Autism is the government’s strategy for raising awareness of autism. It sets out 15 statements including ‘I want people to recognise my autism and adapt the support they give me if I have additional needs………….or if I sometimes communicate through behaviours which others may find challenging.’
12. A council must 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 outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
13. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. Councils should give the person an indicative timescale and keep them updated. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
14. Where an adult refuses a social care assessment, a council does not have to complete one. However, if the adult is experiencing abuse or neglect or is at risk of either of these, then a council must carry out a social care assessment even if the adult refuses one. (Care Act 2014, section 11(2))
15. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
16. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Accessing work, training, education
• Making use of facilities or services in the community
• Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)

17. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
18. A direct payment is money a council gives to an adult who has eligible care and support needs. Direct payments let people arrange and pay for their own care and support, as set out in their care and support plan.
19. A council may discontinue a direct payment if a person fails to comply with a condition or if some reason, a direct payment is no longer appropriate. (Care and Support Statutory Guidance 2014, Paragraph 12.75)
20. Statutory 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)
21. The Court of Appeal decided:
• A council’s duty under section 9 of the Care Act 2014 is not to achieve the person’s desired outcomes but to assess whether the provision of care and support would contribute to those outcomes
• The wishes of the person may be a primary factor but they are not an overriding consideration.

(R (Davey v Oxfordshire CC)

22. Statutory Guidance says assessors who are assessing people with complex needs (including autism) may need support from an expert when carrying out an assessment to ensure needs are fully captured. It goes on to say assessors should have specialist training to assess an adult with autism or consult with someone who has expertise. (Care and Support Statutory Guidance, paragraph 6.89)
23. Statutory Guidance identifies fluctuating needs as a particular focus indicating the need for comprehensive care planning. The omission of contingency planning to deal with sudden changes in need is not something to be left until someone reaches a crisis point (Care and Support Statutory Guidance, Paragraph 10.44)

What happened

Background

24. I have set out a summary of the key events below, taken from the Council’s records and from documents Mr X provided with his complaint to us. I have not referred to every record, just those containing key information.
25. Mr X has autism. He does not have a learning disability or a serious and enduring mental illness. He lives on his own in a flat. Mr X was diagnosed with autism as an adult by a specialist NHS team in 2018. Until 2019, Mr X’s social care was being dealt with by the Council and NHS joint mental health service. Mr X had a direct payment from 2017 to March 2019 but this is outside the scope of this investigation.

Key events

26. In August 2019, Mr X emailed the Council’s learning disability and autism (LDA) team, attaching a completed application for social care form. He enclosed information and reports from the NHS team which had diagnosed him with autism and letters from a psychologist in that team. The report said Mr X had a chronic phobia and complex trauma exacerbated by autism. The author of the report noted concerns about Mr X being socially isolated.
27. Mr X’s psychologist emailed the LDA team saying Mr X had difficulties with accessing the community, home living, accessing leisure activities and self-direction and she had done various assessments and was drafting a positive behaviour support plan. The psychologist recommended Mr X had additional social care support during the week because his complex phobia could not be addressed without such support.
28. In September 2019, Mr X was allocated to a social worker in the LDA team who set up a visit for the end of the month. The social worker noted Mr X had eligible social care needs including difficulties with maintaining the home and accessing the community. The social worker noted his view that the previous care package funded by the mental health team should be reinstated.
29. There followed a series of emails between the LDA and mental health teams with the latter refusing to work with Mr X or fund his care, saying his care needs were related to his autism. On the other hand, the LDA team suggested Mr X’s main difficulties were related to his mental health. There was a professionals’ meeting with senior staff from both teams with the aim of resolving the dispute about which team was responsible for Mr X’s social care needs. The outcome was the care package Mr X had been previously getting from the mental health team would be reinstated. The minutes of the professionals’ meeting said the care package must be reinstated.
30. In October, Mr X contacted the Council to say the private care his relative had arranged had ended because the agency could not provide the same personal assistant (PA) to support Mr X. The social worker emailed Mr X to say the Council would backdate his direct payment to the date the social worker had first visited him. The social worker suggested Mr X could employ the PA directly and not through the agency, or he could use a different agency. This was because the agency was refusing to work with Mr X.
31. Mr X continued to ask the social worker to help him persuade the agency he had been using privately to provide his care. The social worker contacted the agency, but it declined to provide a service. The social worker explained this to Mr X in an email and said a second agency was interested in providing his care. Mr X said he was too unwell to meet anyone new.
32. Mr X and his relative were emailing the social worker and other staff frequently. Mr X was in crisis: his GP was refusing to provide him with a service, he could not find a replacement GP, he needed pain medication and he was unwell. The emails described how Mr X was having real difficulties leaving the house and said he was extremely anxious when outside. The social worker liaised with the local NHS clinical commissioning group which arranged to register Mr X with another GP.
33. At the end of October, the social worker completed an assessment of Mr X’s social care needs. This set out Mr X’s views. It also said:
• He had no communication support needs (Conversely, Mr X said during the assessment he did have communication needs around his autism, for example, talking to others he did not know made him anxious)
• He had post-traumatic stress disorder, anxiety, depression and panic attacks
• The assessor observed Mr X’s perception of support systems was not positive and he (Mr X) had a strong opinion about health and social care organisations and thought professionals acted wrongly and unlawfully as well as discriminated against him
• He had eligible needs in the domains of: maintaining a habitable home, maintaining relationships, making use of facilities in the community
34. Mr X’s care and support plan of October 2019 set out his support needs and desired outcomes. It set out the weekly funding of £30 (including Mr X’s client contribution) for a PA to provide 10 hours of care and support. The section of the form explaining what would happen in an emergency was not completed.
35. The Council agreed Mr X could have a direct payment to arrange his own care and support and I understand direct payments were made to cover care from October 2019. Mr X used the direct payment to arrange care with an agency.
36. At the end of October, A new social worker was allocated. Mr X asked for a reassessment of his social care needs. He said the recent assessment (paragraph 32) did not include input from NHS professionals who had been working with him.
37. At the start of November, Mr X made a complaint to the Council. He said his support had stopped with no reason, he’d had no regular contact with his social worker and he was owed direct payment money.
38. There were frequent and lengthy emails from Mr X’s relative and also contact from his advocate in November and December from Mr X’s advocate. Mr X was not contacting the Council temporarily. The emails asked for the LDA team to take urgent action because Mr X was neglecting himself and his home, was in a mental and physical health crisis and had no support and his social care funding was not yet in place. A social worker from the LDA team contacted Mr X to arrange to visit him. Mr X was too unwell to answer the door. He said in an email that he wanted no further contact or meetings. A worker from the emergency out of hours’ social work team spoke to Mr X’s relative and further assessments by mental health services were considered but did not go ahead.
39. Mr X’s social worker visited him at the start of December, but he did not answer the door. There was also supposed to be a professionals’ meeting, but this did not go ahead and another date was not set. Mr X sent a very distressed email to staff in the Trust and Council. Mr X’s advocate was also in contact with council officers and said in an email that she had received a high number of emails from him in a day. She asked if there had been a professionals’ meeting and said Mr X really struggled meeting new people because of his autism.
40. Mr X started to email his social worker again a few days later. The social worker said he was trying to set up the direct payment and offered to arrange a blitz clean of the flat. The social worker also emailed Mr X’s advocate to say he was trying to complete a Care Act assessment and that he had identified an agency that could provide Mr X’s care. Mr X again sent a very distressed email with some swearing in it. He asked the social worker to stop emailing him.
41. Mr X emailed the social worker in the middle of December to say he had been in contact with a new agency who sounded helpful and good and a worker from the agency was going to ring the social worker to discuss taking on his care.
42. The social worker noted at the end of December that Mr X wanted his assessment re-done but he did not want the social worker going into his home, which was a problem.

Complaint to the Council and response

43. Mr X complained to the Council in January 2020. He included a document setting out inaccuracies in the social care assessment of October 2019 and an NHS report about his autism.
44. The Council responded at the end of February. The main findings were:
• Communication from council officers had been intermittent and sometimes vague
• His case would be allocated to a different social worker who would be made aware of his communication needs
• There would be a re-assessment of his social care needs, including updating the involvement of family members.
45. Mr X did not complain to us at this point because he was giving the Council a chance to complete the new social care assessment it had agreed to do as part of the outcome to his complaint.

Events since the Council’s complaint response

46. Mr X was allocated another social worker at the end of February 2020. He had plans to meet with another care agency and told the social worker he was going to ask the agency to support him for six hours a week and he still wanted a reassessment of his needs. The social worker noted that Mr X now had a regular PA who was supporting him.
47. Also in March, Mr X, his advocate and social care staff including the new social worker, had a telephone conference to discuss the outcome of his complaint. The notes of the call said Mr X said his home needed a deep clean, he had not been looking after his personal hygiene for a long time and during COVID-19, he wanted to be supported by a PA twice a week. Mr X also described incidents in his past, how he had high anxiety and suffered panic attacks. He said he wanted to enjoy working again and to look at training and voluntary work. The social worker noted there would be a review of Mr X’s care and support needs and an increase in direct payment hours to support his needs. After the meeting, Mr X arranged deep cleaning of the flat which took place the following week and was funded by his direct payment. The social worker told Mr X she would be completing a review.
48. At the start of April, Mr X spoke to the social worker and asked for extra support to access the community and said he wanted to look at getting a job or some voluntary work. The social worker said a review was underway. (The case notes said he was getting 10 hours a week by a direct payment)
49. A care and support plan and a review of April 2020 set out Mr X’s needs and outcomes. The agreed funding to meet Mr X’s eligible needs was an increased direct payment of £328 for 14 hours a week. Mr X’s weekly client contribution (his care charge) was stated as £135. The Council has also given me care and support plans dated May and June 2020 but these have the same content as the April care and support plan, with one difference being the latter plan said an extension of funding was agreed to October 2020.
50. In April, a social care assistant referred Mr X to a local agency providing support for people to set up direct payments. The social care assistant told him about how much his care contribution was. Mr X said he would be paying this into his direct payment account. The records indicate Mr X did not make any payments of his client contribution into his direct payment account.
51. At the start of May, the social care assistant emailed Mr X to say there would be an increase to 14 hours a week for his care, backdated to 10 April, for three months.
52. In the middle of May, Mr X emailed the social care assistant to say he had received an email saying he needed to pay £1008 into his direct payment account (this was the client contribution I referred to in paragraphs 48 and 49). And at the start of June, the finance team spoke to Mr X about his client contribution and emailed him to explain what he needed to pay and how this had been worked out. The email explained the Council paid direct payments net of a person’s care contribution.
53. Also in May, a psychiatrist who had assessed Mr X, wrote to the Council saying Mr X’s superficial apparent abilities made it difficult for him to obtain the support he needed, he could be verbally abusive when anxious and this had led to a label of ‘difficult behaviour’ without a proper understanding of his underlying autism.
54. In the middle of June, the finance team emailed Mr X to explain more about the client contribution. At the end of June, an internal email from the finance team said Mr X was not paying his client contribution and that he was also not paying any invoices for his care as the direct debit on his account was not enough and so payments were bouncing.
55. At the start of July, Mr X became very distressed as his regular PA stopped working with him. He continued to receive support from a different PA, but he was not happy with her. There appears to have been another change in social worker around this time.
56. At the end of July, the finance team liaised with the care agency providing Mr X’s care and over £6000 was owed. The agency was threatening to give notice due to various issues including the debt. A team manager spoke to Mr X to explain the Council would pay the debt. She also said the Council would look into commissioning Mr X’s care directly.
57. In August, Mr X became very distressed and there were many contacts from him and his relative. Professionals from the Council and the NHS met and completed a risk assessment. This noted:
• He was contacting lots of professionals and there needed to be a joined-up approach to manage his expectations about services
• Loneliness was the main driver for his current crisis and social care would follow up a referral to a befriending service (a manager later asked Mr X about the befriending service and he declined)
• Professionals needed to do what they say they would do.
58. At the end of August, the case was allocated to a different social worker as Mr X refused to speak to the previous worker. The Council’s brokerage team identified two potential agencies which were willing to consider Mr X’s care package. Meantime, the current agency had identified a PA who was willing to work with Mr X and so his care was able to continue.
59. Mr X made a further complaint at the end of August. The Council responded in October saying:
• The most recent needs assessment was October 2019 and his sisters were not listed as his carers on the care and support plan of June 2020.
• The Council was sorry there had not been a further assessment and would arrange a further assessment.
• It was happy to implement aspects of his positive behaviour support plan, if he would share a copy when this was done.
60. In October 2020, the social worker completed a new social care assessment. This set out Mr X’s communication needs in some detail at the start of the assessment. The assessment summarised Mr X’s his medical history, said to be taken from the GP’s records and referred to recent reports from health professionals including a psychiatrist, an NHS autism specialist practitioner and an assessment to identify strength and weaknesses for people with developmental and behavioural disorders. The assessment included Mr X’s perspective on his autism and his desired outcomes. Mr X had eligible needs in seven of the domains described in paragraph15.
61. In the middle of October, the care agency gave notice because it could not find any staff who were willing to work with Mr X or that were acceptable to him.
62. The care agency invoiced Mr X for services. Mr X told me he disputed some of the invoices and suggested he was being over-billed. The Council’s finance team’s records contain information indicating Mr X was booking hours beyond what was agreed in the care and support plan and was not paying his assessed client contribution into his direct payment account. Internal emails said officers were concerned Mr X was not able to manage a direct payment and needed to have a commissioned service in future. (This would mean the Council would pay all the agency’s bills and invoice Mr X for his client contribution)
63. The Council contacted some care agencies which might have been interested in taking on Mr X’s care package and there was a meeting with one agency. Mr X is reported to have said that he did not want to see this agency again and did not want ‘a commercial provider’ to support him.
64. Mr X found an agency that he felt could support him. He told the social worker about it in the middle of December (2020).
65. The Council completed a risk assessment. It also sent out a letter to Mr X explaining how services would respond to his frequent contacts and setting out advice for him on which service to contact, depending on the issue he was raising.

2021

66. In January 2021, the social worker emailed Mr X to say the Council had decided to commission his care and it was refusing to give him a direct payment. The social worker explained statutory guidance allowed a council to stop a direct payment if a person did not comply with a condition of having a direct payment and Mr X had not paid his client contribution. The social worker said he had identified two agencies Mr X could have (including the one Mr X had told the social worker about in December, see paragraph 64.)
67. Mr X’s advocate emailed the social worker to say the October 2020 social care assessment focussed on mental health problems which had not been diagnosed and not Mr X’s needs due to autism and asked the Council to take into account a new report from another psychiatrist. Mr X reported lots of inaccuracies in the assessment.
68. At the start of February, the social worker sent a revised social care assessment including a summary of the report Mr X wanted including. The remainder of the assessment was similar to the October 2020 version.
69. Mr X continued to be unhappy with the revised social care assessment and said he wanted a fresh one. The social worker emailed Mr X saying he had two choices – start from scratch with a new assessment, which would likely delay commissioning care services or use the current assessment and care and support plan with a view to revising it in due course.
70. A care and support plan dated April 2021 has been updated since the earlier plans to reflect Mr X’s current priorities. It sets out weekly funding of £630 for Mr X’s care, for 14 hours of care and support to be provided by an agency specialising in care and support for adults with autism. The Council told me this support was supposed to start in May, but due to some queries from the agency, this had slipped and the package was expected to start within the next couple of weeks. The plan noted that if the agency was unable to provide any of the agreed services, it needed to tell the Council.

Comments from the Council

71. The Council told me:
• Mr X’s case transferred to the LDA team in September 2019. It assessed him and agreed weekly funding of £233 by a direct payment. He raised concerns about the support and the LDA team increased funding to £328 in May 2020 (backdated to April) and agreed to the end of October. Mr X requested an assessment of his needs as he had concerns about the previous assessment.
• He had direct payment funding from the end of October 2019 to the end of October 2020.
• Mr X’s funding stopped at the end of October 2020. A social worker tried to complete a fresh assessment but there were delays because Mr X would not agree the assessment. The Council also told me it had consulted with professionals and there were no inaccuracies in the current assessment.
• The previous care provider gave notice in October 2020 as he was refusing carers apart from one carer, who was declining to work with Mr X due to his verbal aggression. The social worker was trying to complete an assessment, but Mr X did not agree with the social worker and so there were delays completing this.
• The outcome of the complaint response was not achieved in that the social worker had reviewed his care and support plan and increased provision instead. The Council was sorry a full assessment was not completed as agreed in the response.
• More recently, the Council opted to complete an assessment under Section 11 2(b) of the Care Act 2014 (see paragraph 13). It agreed to provide Mr X with 14 hours of support commissioned from a specialist care agency at £630 a week. The social worker was arranging this at the time of writing. The specialist agency did not have workers to start supporting Mr X, so the Council would identify an alternative temporary agency.
• It had identified a commissioning gap for complex autism cases and will address this by working closely with its commissioners.
72. I asked the Council for a summary of the social worker’s training in autism. I am satisfied the social worker who completed Mr X’s most recent assessment has had appropriate post-qualification training in autism.

Findings

Inaccuracies and omissions in the assessments and care and support plans

73. It is for the Council to assess Mr X’s needs and decide whether he is eligible for social care according to national eligibility criteria set out in paragraph 15. I am satisfied the revised social care assessment of February 2021 set out Mr X’s eligible unmet needs and was in line with Section 9 of the Care Act 2014. I am also satisfied the February 2021 amended assessment broadly took into account Mr X’s views and wishes and those of health professionals. Mr X remains unhappy with this assessment, but I do not see the Council is at this stage required to respond any further to his continuing dissatisfaction as it has taken into account his views and consulted with him. I am satisfied Mr X’s views and wishes have been considered as a primary factor, but the Court of Appeal has confirmed in the Davey case (see paragraph 20) that the person’s wishes and views are not the overriding consideration. Any further engagement on this issue would likely delay putting in place services to meet Mr X’s eligible unmet care needs and would serve no purpose.
74. The care and support plan of October 2019 was in my view flawed because it did not set out a contingency plan for if care broke down. The Council knew there had been difficulties with the agency Mr X had used previously and so his care and support plan should have specified the basic steps the Council would take if care arrangements broke down. The omission meant the care and support plan was not in line with paragraph 10.44 of Care and Support Statutory Guidance (CSSG) which requires a council to agree a basic plan in advance of a crisis and this was fault.

Communication

75. The Council accepted in its complaint response that communication with Mr X was at times intermittent and vague. Mr X communicated frequently and repetitively and in a way that was time consuming for officers. However, responses from the Council were at times inconsistent and not timely and this was fault. An NHS specialist practitioner told council officers at a meeting in August 2020 that it was important that professionals did what they said they were going to do because Mr X’s autism caused him anxiety when people did not carry through on their stated intentions. Mr X’s anxiety about what was happening with his case and the intermittent and vague communication he received, caused a high volume of repetitive contact with services due to increasing anxiety related to his autism. Some of this contact which might have been avoidable had there been a clear plan of communication.
76. The failure to have a clear plan of communication was fault. It was not in line with the Think Autism strategy described in paragraph 10. Think Autism requires public bodies, including councils, to recognise and adapt to people with autism, including those who communicate through behaviours which others may find challenging.
77. Mr X’s communication needs should have been properly identified and described in 2019 when first assessing his social care needs. Yet a communication plan was not identified and set out to Mr X in writing until January 2021 when the Council explained to Mr X in a letter how it would respond when he contacted services too often or when his contact was too repetitive. The October 2019 assessment failed to identify and set out Mr X’s communication needs and so was also not in line with section 9 of the Care Act 2014 as there was a failure to set out all Mr X’s needs.

Consultation with the NHS

78. The social care assessment of October 2019 did not include all relevant information from the specialist NHS team working with Mr X. This was fault because paragraph 6.89 of CSSG requires Care Act assessors to seek expert advice to ensure a person’s needs are fully captured. The October 2019 assessment was therefore flawed.
79. My view is the later assessment of October 2020, amended in February 2021, included relevant expert advice and while Mr X is still unhappy with some of the wording of the amended assessment, there was no fault by the Council, which included relevant reports to capture Mr X’s needs. I am also satisfied the senior social worker who completed this assessment had appropriate expertise and training in line with paragraph 6.89 of CSSG and so there was no fault.

A failure to implement the actions it agreed to take in the complaint response

80. The Council accepted in response to my enquiries that it did not carry out a prompt fresh social care assessment when it had agreed to do so in February 2020. The Council took until October 2020 to complete the fresh assessment. This was not within a reasonable timeframe as set out in paragraph 6.24 of CSSG and was therefore fault. I appreciate Mr X was at times in crisis and did not always want to have contact with the LDA team. I also appreciate the volume of contacts from Mr X and his relative made it difficult for officers dealing with the case at times, however, frequent contact is a feature of Mr X’s autism at times and needs to be managed appropriately and sensitively by officers. Having taken all these factors into account, I consider there was an unacceptable delay in completing the fresh social care assessment.

The decision to stop the direct payment

81. Paragraph 12.75 of CSSG allows a council to stop a direct payment if a person does not comply with the terms of receiving the payment or if it considers a direct payment is no longer appropriate. I am satisfied that the Council explained the reason that it stopped Mr X’s direct payment was because he had not paid the client contribution and so had not complied with a condition. Mr X told me he was disputing the agency’s invoices. However, the dispute with the agency about invoices did not mean Mr X did not have to pay his client contribution. Payment of the client contribution was a separate matter to any invoicing disputes. Mr X was required to pay this into his direct payment account because the Council pays direct payments net of the assessed contribution. I am satisfied officers from the finance team made Mr X aware of this at the relevant time. The Council acted in line with paragraph 12.75 of CSSG and explained its reasons. So there was no fault. I note Mr X remains keen to have a direct payment and the Council can consider this in the future as part of the process of reviewing Mr X’s care and support plan.

A failure to meet Mr X’s eligible needs

82. Agency care stopped in October 2020. The Council was aware of this at the time and it also knew he was not able to manage a direct payment. The Council had a duty to meet Mr X’s eligible needs under section 18 of the Care Act 2014 and so it should have commissioned an agency to meet those needs when the previous agency gave notice in October 2020.
83. Mr X has not received care services to meet his eligible needs since October 2020 and is still not receiving them at the time of writing. While I appreciate that Mr X’s autism at times prevents him from engaging with the Council constructively, he did identify the agency the Council intends to commission in December 2020. It has taken the Council a further 7 months at the time of writing to set up the care package with this agency and as described in the previous paragraph, the Council has a continuing duty to meet Mr X’s eligible unmet care and support needs notwithstanding the barriers posed by the way Mr X can engage with services.

Injustice

84. The fault I identified above caused Mr X avoidable distress. He lost out on opportunities to engage in the community, to take part in social, leisure and work or training and to get support with attending health appointments, with cleaning his flat and with attending to paperwork. As a result of not having any care and support, Mr X has been isolated in his flat since October 2020. He has also not had support to maintain his home, which he told me was and is unclean and cluttered and this has also caused him avoidable distress.

Agreed action

85. To remedy the injustice, the Council will, within one month of my final decision:
• Apologise to Mr X for the fault and injustice I have identified
• Make Mr X a payment of £1500 to reflect his avoidable distress and loss of service provision from October 2020 to date.
86. I have taken into account there are some uncertainties about what Mr X might have received by way of a care package but for the delay in commissioning his care package. Many community activities were not possible during the national lockdowns and it is unclear whether agency care would have continued to provide care and support in Mr X’s home or whether he would have wanted this or not. The payment I have recommended is in line with the principles set out in our Guidance on Remedies and reflects his distress and the loss of services to which Mr X has a legal entitlement.
87. In addition, the Council should commission the agency identified to support Mr X as soon as possible, providing Mr X co-operates with the process. The Council should give me an update on progress within two weeks of my final decision.

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Final decision

88. There was fault by the Council in its communication with Mr X, a failure to commission care services to meet his eligible needs from October 2020 and continuing and a failure to include relevant information from health professionals in one of the social care assessments. There was also a failure to have in place a basic contingency plan in case of an emergency. These faults caused Mr X avoidable distress and meant he did not receive the care and support services to which he had a legal entitlement. The Council will apologise, ensure Mr X has care and support in place without further delay and pay him £1500.
89. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman