Summary: Mr X complained the Council has delayed unnecessarily in assessing his brother, Mr Y’s social care needs and in agreeing to pay direct payments under the exceptional circumstances rule. The Council’s failure to communicate effectively with Mr X and the delays and lack of progress caused by repeated changes in social worker amount to fault. This fault caused Mr X frustration and distress for which the Council has apologised.

The complaint

1. The complainant, whom I shall refer to as Mr X complained the Council has delayed unnecessarily in assessing his brother, Mr Y’s social care needs and in agreeing to pay direct payments under the exceptional circumstances rule. He considers the Council has failed in its duty of care to assess and meet both his brother’s care and support needs and his own needs as his brother’s carer.
2. Mr X also complained about poor communication and a failure to explain why requests for direct payments under exceptional circumstances were declined, and a lack of continuity in the process.
3. Mr X is represented by Mrs Z.

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What I have investigated

4. Although Mr X complains about failings since 2018, I have only investigated events since August 2020. I have not exercised discretion to consider events which occurred more than 12 months prior to Mr X’s complaint to the Ombudsman.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs Z;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs Z;
• Mrs Z, 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

Assessments

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. 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.

Carer’s Assessment

9. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
10. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Direct Payments

11. Direct payments are monetary payments made to individuals to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to arrange their own care and support to meet their eligible needs.
12. Direct payments cannot be used to pay for care from a close family member living in the same household, except where the local authority has determined this to be necessary.
13. The council should consider the requests for direct payments as quickly as possible. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

What happened here

14. Mr X lives with his brother, Mr Y and has been his sole carer for several years. Mr X states he was forced to give up work to provide the support Mr Y needs as he was not aware he could ask the Council for additional support. Mr X became aware of direct payments by chance in 2018 and asked the Council to consider making direct payments under the exceptional circumstances rule.
15. The Council refused the request. Over the following years Mr X has repeatedly asked the Council to make direct payments so that he could be Mr Y’s personal assistant. These requests were refused.
16. In late 2020 the Council contacted Mr X to arrange an assessment of Mr Y’s care and support needs. It states Mr X asked to delay the assessment until it could take place face to face so that a support worker from a carers advice centre could also attend.
17. The Council’s records show Mr Y’s social worker discussed the support Mr X provides to Mr Y and his request for direct payments in January 2021. The notes state Mr Y had arrears of £713.33 in respect of his attendance at a day centre. As Mr X manages Mr Y’s finances, the social worker suggested reducing this debt may improve the chances of a request for direct payments being approved. Mr X asked the social worker to discuss this matter with Mrs Z.
18. The Council carried out a social care needs assessment at a virtual meeting with Mr X, Mr Y and Mrs Z in February 2021. Mr X and Mrs Z had asked for direct payments for 40 hours support each week, but the social worker considered 30 hours support was appropriate. The social worker suggested if direct payments were approved, they should be managed by the Council as Mr X would effectively be paying his own wages.
19. The Head of Service panel considered the request for 30 hours exceptional circumstances direct payments in early March 2021. There are no minutes of the panel meeting, but the Council’s summary states the panel noted Mr Y attended a day centre one day a week and that Mr X had been requesting direct payments for a number of years. It also noted Mr X was receiving a carer’s allowance, so an additional direct payment was refused. The panel suggested the case could be brought back if anything changed.
20. The social worker advised Mr X and Mrs Z that the request had been denied. The Council’s records state Mr X was unhappy with the decision and advised he would now make a formal complaint as the matter had gone too far.
21. With Mrs Z’s support. Mr X made a formal complaint on 18 March 2021. The Council responded on 20 April 2021. It noted Mr X had requested and the Council had declined direct payments under exceptional circumstances three times. The Council acknowledged that although it had given Mr X some information verbally, it had not written to Mr X with an explanation of the reasons his requests were declined. It confirmed this information should have been provided on each occasion.
22. The Council also noted that Mr Y’s social worker had changed many times and that this had resulted in a lack of progress and prolonged delay. It also acknowledged a shortfall in the methods it used to communicate with Mr X and an over reliance by a previous social worker on text messages.
23. In addition the Council noted it was reviewing the most recent decision to decline exceptional circumstances direct payments and that as part of this a review of Mr Y’s needs would be carried out. In relation to Mr X’s concerns about failings in the Council’s duty of care, it stated the Council had offered alternative forms of support to meet Mr Y’s needs, but Mr X had rejected these and continued to request direct payments. The Council asserted a support package would have alleviated/ reduced any informal care Mr X provided.
24. Mr X was not satisfied by the Council’s response and asked for his complaint to be considered further. Mr X did not consider a further needs assessment was necessary when one was completed only a few months earlier and had identified that direct payments for 30 hours support each week would meet Mr Y’s needs. He questioned why the panel had overruled the social worker’s professional judgement in declining the request for direct payments. Mr X acknowledged the Council had offered alternative forms of support but noted Mr Y’s choice was to have his care and support needs met by Mr X. He had advised social workers that Mr Y would not agree to anyone other than Mr X providing his care.
25. In its response the Council explained the panel is attended by senior managers and professionals from across adult social care. The panel considers the information provided by the social worker to ensure care and support needs are met by the most appropriate provision available. It stated the panel asked the social worker to provide more information and evidence to support the request for 30 hours. The panel would also consider support that would provide a carer break.
26. The Council acknowledged that choice was important, but the Council’s duty was to meet need, and social workers had to differentiate between choice, wants and needs. It was necessary to consider both the carer and the person being supported when providing care and support for identified needs. The Council noted that other support had been discussed and refused, which would have relieved the stress of Mr X’s role as a carer.
27. The Council upheld Mr X’s complaint and agreed to direct payments in exceptional circumstances to support Mr Y’s identified needs. The direct payments would be backdated to 8 March 2021, the week following the panel hearing, and would be for a total of 28 hours a week. That is 21 hours support per week for personal needs and seven hours per week for social support for Mr Y. This would be in addition to the one day per week provision at the day centre when this resumed.
28. Mr X did not consider 28 hours per week was sufficient and suggested 40 hours per week would be more appropriate. The social worker asked how 40 hours would be used and asked Mr X to provide a breakdown of his and Mr Y’s day. Mr X provided a breakdown showing he supported Mr Y for at least 70 hours per week.
29. Mr X, Mr Y and Mrs Z attended a virtual meeting with the social worker in July 2021 to discuss Mr Y’s care and support needs. The Council’s records of this meeting note Mr X was frustrated at the repeated change in social worker and the need to have meetings to repeat the same information to each new social worker. He reiterated he wanted direct payments for 40 hours per week and asserted he had provided sufficient information in support of this. Mr X also informed the social worker he intended to complain to the Ombudsman.
30. Mr Y was allocated a new social worker in September 2021. The Council’s records show they attempted to contact Mr X and Mrs Z between September and December 2021 to arrange a further meeting. Mr X advised the social worker he was fed up with the change in social workers and did not want to be involved with the Council until the matter was resolved. He asked that any meeting be arranged through Mrs Z.
31. Mr X, via Mrs Z has asked the Ombudsman to investigate his complaint. Mr X feels he and Mr Y have been failed by the Council as it has not taken account of Mr Y’s wish that Mr X support him. He asserts he is best placed to support Mr Y as he understands and is able to manage Mr Y’s complex emotional needs and behavioural issues. Mr X also complains of repeated delays and a lack of communication. All of which have caused immense stress and upset and have impacted on Mr X’s mental and physical wellbeing. Mr X would like the Council to authorise direct payments of 40 hours per week backdated to when he first requested this in 2018.
32. In response to my enquiries the Council states the direct payments are not in place as Mr X refuses to accept the offer and has refused to engage with the Council. The Council states it is waiting on the commencement of these agreed hours to then have the opportunity to review and look at further opportunities for Mr Y to access the community again, post COVID-19 restrictions.
33. In relation to its support for Mr X as Mr Y’s carer, the Council has completed two carers assessments for Mr X. The first in 2018 which resulted in a payment of £250 towards the purchase of a washing machine, and the second in December 2021 resulted in a payment of £300 towards a carers break. The Council states it also offered Mr X respite in February 2021, but he refused.
34. In addition, the Council states it has engaged with the carers centre and considered a package of care where Mr X would be employed by an agency to care for Mr Y, but this was not progressed.
35. The Council acknowledges Mr X’s frustration in relation to the demands and change of staff within the Council during the COVID-19 period which have led to a relationship breakdown. This has led to Mr X refusing to progress with his brother’s care pending his complaint to the Ombudsman. The Council would like to offer mediation to move the matter forward.
36. In addition, the Council would as a gesture of goodwill write off Mr Y’s debt incurred whilst at the day centre, to try and establish trust and communication moving forward.

Analysis

37. It is clear from the documentation available that there have been failings in the service provided to Mr X and Mr Y. The Council has failed to communicate effectively with Mr X and has not explained why his requests for direct payments under exceptional circumstances were declined. Repeated changes in Mr Y’s allocated social worker have also led to delays and a lack of progress. These failings amount to fault and will have caused Mr X frustration and distress. The Council has apologised for the delays and failings in communication.
38. There is no dispute that Mr Y has identified care and support needs. However Mr X and the Council have differing views on how the support should be provided and the amount of support needed. It is not the Ombudsman’s role to decide who should support Mr Y or how many hours of support Mr Y needs; that is the Council’s job. We can only consider whether the Council assessed his needs correctly.
39. Mr X states Mr Y wants him to continue to provide his care and support and is unwilling to accept support from anyone else. Mr X asserts he should be paid for the support he has been providing on an informal basis. Direct payments cannot generally be used to pay for care from a close family member living in the same household. It is for the Council to determine whether there are exceptional circumstances which would deem such an arrangement necessary.
40. It is unclear why the Council declined Mr X’s request for direct payments in March 2021 or why it has since changed its position. However, the Council has now agreed to provide direct payments for 28 hours support per week backdated to March 2021. The Council has advised Mr X it will review the level of support once the direct payments are in place. This is an appropriate course of action. The assessments also note that Mr X finds his caring role stressful and is at risk of carer breakdown. It is therefore appropriate that the Council considers options for Mr Y’s support and respite for Mr X.
41. Prior to the COVID-19 pandemic Mr Y had been attending a day centre one day a week. Mr Y had travelled independently to the day centre and the day centre staff had confirmed Mr X had not had issues of incontinence at the centre and was independent with cleaning himself. There had been no concerns over his behaviour and staff noted Mr Y would assist when they were cooking. The day centre suggested Mr Y would benefit from some form of employment or voluntary work in the future.
42. As Mr X has declined the offer of 28 hours direct payments, it is not possible for the Council to determine whether the support should be increased, and if so by how much or in what way. I would encourage Mr X to engage with the Council to ensure support is available for both himself and Mr Y. I would also suggest he reconsider the Council’s offer of direct payments for 28 hours support which once established can then be reviewed.
43. I welcome the Council’s offer of mediation as a way of rebuilding Mr X’s relationship with the Council in order to move forward. I also consider the Council’s offer to write off Mr Y’s debt in relation to the day centre to be generous.

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Agreed action

44. Subject to Mr X’s agreement, the Council has agreed arrange mediation to assist in rebuilding Mr X’s relationship with the Council and establishing a way forward in supporting Mr X and Mr Y.
45. The Council has also agreed to write off the debt Mr Y incurred whist attending the day centre.
46. The Council should take this action within one month of the final decision on this complaint.

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Final decision

47. The Council’s failure to communicate effectively with Mr X and the delays and lack of progress caused by repeated changes in social worker amount to fault. This fault caused Mr X frustration and distress for which the Council has apologised.

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Investigator's decision on behalf of the Ombudsman