Summary: Mr B complains about the Council’s delay in assessing his mother’s care needs when she moved in with him from a neighbouring local authority. The Council did eventually agree to a suitable package of care for her. But this was delayed. The Council gave him some misleading advice during the period. The Ombudsman upholds the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, (whom I shall refer to as Mr B) complains the Council treated him and his mother (Mrs C) unfairly, after she moved into its area. Mr B says the Council:
• failed to act in line with the Care Act 2014 and the Care and Support Statutory Guidance;
• offered to pay for only a fraction of the support in the existing plan in return for a ‘quick payment’;
• later agreed to pay for the provision in the previous plan, although this was no longer appropriate to Mrs C’s increased needs;
• delayed completing an assessment of Mrs C’s needs;
• did not agree an appropriate package of care for Mrs C until it carried out a further review; and
• has still not properly backdated payments due to Mrs C.
2. Mr B says he gave up his employment, and moved Mrs C into his home, to provide care for her. This has caused him considerable financial hardship, such that he has had to borrow money from family members to pay his bills. It has also caused him considerable anxiety; including uncertainty whether he would be able to continue to provide care for Mrs C.
3. Mr B’s view is the Council should backdate payments for the care he has been providing to the time it took over responsibility. And remedy the distress and anxiety caused by its actions.

Back to top

The Ombudsman’s role and powers

4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

How I considered this complaint

8. 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;
• had regard to relevant legislation and guidance;
• spoken to Mr B;
• sent my draft decision to Mr B and the Council and considered their responses.

Back to top

What I found

Legal and administrative background

Assessment

9. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of a 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.

Care plan

10. For adults with eligible needs, the Care Act gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs 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. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Moving between local authorities

11. Where somebody with a care and support plan is moving between local authority areas, the Care and Support Statutory Guidance (which I shall refer to as the Guidance) says:
• “Where the full assessment [by the ‘new’ local authority] has not taken place prior to the move, [that] … authority must put in place arrangements that meet the adult’s or carer’s needs for care and support as identified by the [old] authority. These arrangements must be in place on the day of the move and continue until the second authority has carried out its own assessment and put in place a care and support plan which has been developed with the person.”
• the new authority must take all reasonable steps to agree these temporary (interim) arrangements with the relevant person.
• the adult or carer should not be on an interim care and support package for a prolonged period. The new council should carry out the assessment in a ‘timely manner’.

Direct payments

12. One of the ways councils can administer a personal budget is through a direct payment. These are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. In cases where the person in need of care and support has been assessed as lacking the mental capacity to request the direct payment, an authorised person can request the direct payment on the person’s behalf.
13. The Care and Support (Direct Payments) Regulations 2014 say care from a close family member living in the same household is excluded from eligibility for a direct payment, “except where the local authority determines this to be necessary.”

Carers

14. The Guidance says:
• councils are not required to meet any eligible needs which are being met, informally, by a carer. But they should carry out an assessment of the carer’s own needs for support;
• if an adult provides care through an employment contract, they should not normally be regarded as a carer needing a carer’s assessment;
• there might be circumstances where somebody was providing some care under a contract, but also some informally.

What happened

15. The chronology that follows is a summary of the key, relevant, events, connected to Mr B’s complaint.

Background

16. Mrs C was living in her own home, in a town some way away from Mr B, in a neighbouring local authority area (I shall refer to that authority as the County Council). In 2020 Mrs C’s physical and mental health deteriorated. The County Council assessed her needs and put in place a care plan. After some attempts to involve a care provider, the County Council agreed to pay Mrs C a direct payment. Mr B became her employed carer (her ‘personal assistant’).
17. The Court of Protection has given Mr B a lasting power of attorney to manage Mrs C’s financial and care decisions, on her behalf.
18. In early 2021 Mrs C fell and was admitted to hospital. At the end of January, the County Council agreed to increase Mrs C’s package of care to 24 hours a week. Her care and support plan:
• included four visits a day;
• included some extra hours for weekly shopping, laundry and housework; and
• noted sometimes she could move around her home independently. But at other times she needed support to do this.
19. Mrs C continued to receive the care through using an increased direct payment to employ Mr B as her personal assistant.

Mrs C moves to live with Mr B

20. In February 2021 Mr B called the County Council to ask for permission to take Mrs C to his home. In March, he contacted the Council where he lives (West Northamptonshire Council, which I shall refer to as the Council) to ask about making Mrs C’s move to his house permanent.
21. After contact between the Councils, at the end of April, the County Council held a meeting about what would be in Mrs C’s best interests. After the meeting, the County Council agreed Mrs C should move. And it would continue to fund her care for six weeks after the agreed ‘official’ move date.
22. The transfer between the councils was agreed as 16 June. That meant the end of the County Council’s six weeks continuing funding was 31 July.

The Council begins its assessment

23. The Council’s records note it spoke to Mr B in April. He advised his concern was a new assessment might not provide the 24 hours support the County Council was providing Mrs C. The Council advised there was a possibility that might not happen, as Mr B and Mrs C would be living together (see paragraph 13).
24. In June Mr B spoke to the social worker who later completed the assessment. She advised Mrs C would not qualify for a direct payment, but Mr B could apply for carer’s allowance (this is a Department of Work and Pensions welfare benefit). Mr B says he insisted on a new assessment, which the social worker did not want to carry out.
25. On 5 July, the Council’s social worker began her assessment with an initial conversation with Mr B. The Council’s record says Mr B was ‘hopeful’ the direct payment of 24 hours a week would be available for him.
26. The Council’s records say it carried out a Care Act Assessment on 14 July. The information in it is largely copied over from the County Council’s January 2021 assessment and plan. It says a carer’s assessment had not been requested. The social worker also carried out a new mental capacity assessment. The outcome of this was that Mrs C lacked the capacity to make her own decisions about meeting her care and welfare needs.
27. On 19 July Mr B emailed the Council. He said:
• Mrs C’s health had continued to deteriorate and her support needs had greatly increased since her last (County Council) assessment;
• Mrs C’s GP said she needed hourly checks;
• he would not sign a care and support plan based on what the old one said – it did not take account of Mrs C’s current needs.
28. Later in July the Council telephoned Mr B to advise it would honour Mrs C’s hours and costs from her County Council care and support plan and direct payment. The Council also referred Mrs C to an occupational therapist for an assessment for any changes to the home and assistive technology.

Advocacy

29. Mr B asked for an advocate for Mrs C. The Council arranged for an independent advocate to visit Mrs C at the beginning of August. She reported back the next day that Mr B had been obstructive during that visit. Mr B disputes that account. But at the end of the month the advocate advised the Council Mr B would not let her back in the house. The Council noted it would need to source another advocate.
30. In response to my enquiries, the Council says advocates from voluntary organisations supported Mrs C in the September assessment (see paragraph 33).

Mr B complains

31. In September, Mr B asked to make a formal complaint. Within his complaint he noted:
• Mrs C needed supervision for 12 hours a day;
• he had had no respite from his caring role since January 2021;
• he asked for the Council to pay for the care he had provided Mrs C since it took over responsibility; and
• he wanted Mrs C to have a full reassessment.
32. The Council’s social worker responded two days later. She advised the Council:
• had agreed to honour the direct payment at the same rate as in the County Council’s assessment, backdated to 31 July. That was ‘in process’;
• had “utilised [the County Council’s] care and support plan in the first instance in order to ensure we were able to get support in place as quickly as possible”;
• would attend to complete a full Care Act assessment, with a care and support plan, once the support the occupational therapist had assessed as needed had been put in place;
• was awaiting for an alternative advocate to attend.

The Council’s review of the care and support plan

33. On 29 September, the Council’s social worker completed her new assessment and review of Mrs C’s care and support plan. Details in the record included that:

“[Mrs C] requires support from one other person to ensure she is using her equipment safely to move around her home, and supported to engage with activities where she chooses to do so.

[Mrs C’s] son…supports [her] to move around the home when she chooses to do so, safely.”

34. The Council sent Mr B the care and support plan at the beginning of October. He responded to note it was still based on the County Council’s plan. But Mrs C’s health had deteriorated since then. She was wandering at night. And could not walk unaided.

The interim direct payment

35. The Council’s finance team first contacted Mr B in August 2021. It asked for evidence from him, to complete its financial assessment. The Council’s system notes a delay with it adding a direct payment for Mrs C’s care to its system.
36. In October the Council sent a contract to Mr B. It asked him to sign, so he could get an interim payment. Mr B responded to advise he did not want to sign, as he was unhappy with the Council’s review of Mrs C’s care and support plan.
37. In November, as part of a further complaint response, the Council acknowledged Mr B’s unhappiness with Mrs C’s care and support plan. It agreed for a new officer to review the plan.
38. Mr B then signed the contract and, in early December 2021, the Council made an interim payment, pending its review.

The review of the care and support plan

39. A new officer met Mrs C and Mr B in mid-December 2021. The officer noted they had discussed respite and a sitting service with Mr B.
40. The Council completed the new care and support plan in January 2022. This assessed Mrs C as needing a direct payment for support for 12 hours a day (84 hours a week). It noted Mrs C:
• required a lot of supervision and prompting to complete tasks;
• was unsteady on her feet and required one to one support with all transfers and mobilising;
• was prone to falls and experienced them regularly;
• needed constant supervision as she had attempted to stand and move without support or aids.
41. The Council’s start date for the new care and support plan was 1 December 2021. Mr B remained unhappy the Council had not backdated the care and support plan from the end of the County Council’s support. He complained to the Ombudsman. In response to our enquiries, the Council advised:
• the reason the September 2021 and January 2022 assessments of Mrs C’s care needs led to different conclusions was due to the judgement of the differing officers who carried out the assessments;
• its view was Mrs C’s condition worsened sometime between July and October 2021;
• it accepted it had delayed completing the first (September 2021) assessment and setting up a direct payment.
42. The Council also said:
• a carer’s assessment had been carried out in June 2021;
• It had offered a short-term assessment (in Mr B’s home) of Mrs C’s overnight care needs. But Mr B had refused this and the option of Mrs C going to a residential care setting so that he could have some respite;
• its initial response to Mr B’s complaint was not to its usual standards. That was why, after the November meeting, it agreed to carry out a further review of Mrs C’s care and support plan.
43. Mr B has advised the Ombudsman the key deterioration in Mrs C’s ability to care for herself was around the time she moved in with him. Since then her needs had not significantly changed.

Was there fault by the Council?

The assessments and care and support plans

44. As the Guidance allows, the Council at first used the County Council’s care and support plan as an interim measure. That was appropriate and I find no fault in it doing this.
45. In April and the start of July Mr B asked the Council to guarantee it would provide Mrs C’s care at the same rate as the County Council. That suggests he judged, then, that to be an appropriate level of care for her. But later in the month, Mr B advised that Mrs C’s needs had “continued to deteriorate and her support needs had greatly increased since her last assessment”.
46. The Council’s July assessment was to confirm the interim measures. The County Council’s funding ended at the end of July. The Council did not complete its own assessment until the end of September. But the Council’s records say it wanted to await the outcome of measures put in after an occupational therapist assessment before completing its assessments. There were also issues in sourcing an advocate. So, while the Council has accepted a delay in carrying out this assessment, part of the time it took to carry out the assessment was due to issues that warranted some delay.
47. The September assessment’s record notes Mrs C required support to mobilise around the home. The earlier plan had noted Mrs C sometimes needed support. That suggests Mrs C’s needs for supervision had increased sometime between the beginning of July (although that assessment was based on the January 2022 County Council plan) and the end of September. But this is not addressed in the Council’s records. Instead, the social worker carried over the provision set out in the July interim plan. It was fault for the Council’s officer not to have dealt with the change between the assessments and to consider whether that had any implications for the subsequent care and support plan.

Mr B’s own needs

48. The Council says the reason it did not ask Mr B in July about his needs as a carer was because he had had a carer’s assessment in June. Although it has not sent me a copy of that assessment, it was reasonable for it then to rely on the County Council’s provision.
49. But by September, Mr B raised his concerns about both Mrs C’s increased care needs and his lack of respite. In its response to my enquiries, the Council says it discussed respite with him. I can see the Council did discuss this in December (see paragraph 39). But I cannot see a record of its social worker discussing this with Mr B in September, when he raised it. To have not done so was fault.

Communications and the interim payment

50. In April, Mr B asked for a guarantee the Council would pay for Mrs C to receive care at the same rate as she received from the County Council. The Council advised it could not guarantee it would agree to this. That April advice was correct: the Guidance says payments to a family carer who lived in the same household as the service user would not normally be appropriate. So the Council was right to be cautious about the payment arrangements for Mrs C’s direct payment. This was especially so as Mr B is both Mrs C’s attorney and her personal assistant (employed carer).
51. In June, Mr B contacted the Council again, seeking the same assurance. Then, the social worker advised him Mrs C would not qualify for a direct payment – and that he should claim carer’s allowance. That was incomplete advice: it did not acknowledge the scope within the Regulations and Guidance for the Council to make an exception to the usual rules. So the June advice was fault.
52. When the Council did consider the issue, it agreed to ‘honour’ what the County Council had been providing. It did this initially as an interim measure. That was appropriate and follows what the Guidance says should happen. But I do find fault that I can see no record, before September 2021 (see paragraph 32) of the Council explaining to Mr B this was an interim measure, pending a new assessment.

Did the fault cause an injustice?

53. The faults I have identified did not lead to a significant injustice to Mrs C in terms of the care she received. That is because Mr B continued to care for her on a voluntary basis while the issues I have identified were ongoing
54. But Mr B claims a significant personal injustice to himself: the hardship caused by the Council’s delayed assessment and refusal to backdate its January assessment to 1 August (the day after the end of the County Council interim support). He says he was caring full-time for Mrs C (and had given up his job), but only receiving payment for 24 hours.
55. The County Council’s plan was based on support at key points in the day – breakfast, lunch, teatime, bedtime. A need for supervision and support outside of those times would be support not covered in that funded package. By September, the Council’s own assessment noted Mrs C likely needed support outside of the times the care and support plan covered.
56. But to say Mrs C’s needs had increased is not the same thing as concluding that, therefore, the Council should have met those extra needs through an increased care and support plan. There are reasons why it might conclude this was not needed. For example:
• the occupational therapist’s intervention might had mitigated some danger (although the social worker’s assessment is silent on this); or
• the Council might have concluded informal support was enough to meet any risks at those times.
57. So there may have been valid reasons why the increased need for supervision would not follow through to an increase in the Council funded care and support. But, as the Council did not consider this issue in its assessment, I need to consider what would likely have happened if the Council had considered the matter in September 2021.
58. In considering this issue, I note:
• initially (in April and early July) Mr B wanted a guarantee the Council would honour the care provision the County Council was providing;
• later in July Mr B advised Mrs C’s needs had increased, so he wanted a new assessment. But this was at first in response to the social worker’s incomplete advice about Mrs C not qualifying for a direct payment;
• the Council’s response to my enquiries says its view is Mrs C’s care needs deteriorated at some point between July and October;
• the Council carried out a review of Mrs C’s care and support needs in January 2022. This agreed to fund 12 hours care per day.
59. My decision is the risks outlined in the October 2021 report are more consistent with the January 2022 care and support plan than the earlier one. So, on the balance of probabilities, by the September assessment, at the latest:
• Mrs C’s care and support needs were similar to those set out in the Council’s January 2022 assessment; so
• if the Council had considered the support changes at the end of September, it follows it would have agreed to the care and support plan that it agreed in January 2022; so
• the injustice to Mr B for this period is the difference between what the Council paid Mrs C as an interim payment to what it would have paid if it had earlier completed a care and support plan like the January 2022 one.
60. For the period between the end of the County Council package of care and the 29 September assessment, I cannot make a determination of whether Mrs C’s needs were as those the Council found when it assessed her in January 2022. The evidence on this points both ways. But there is an uncertainty whether, but for the fault in October, the Council might have earlier increased the package of care. That uncertainty is itself an injustice.
61. The wrong and delayed advice I have identified will have caused Mr B some stress and frustration. There is the possibility that if the Council had earlier given him complete and accurate advice he might have acted differently. For example, he might have earlier understood the direct payment the Council was offering was an interim measure, and so earlier signed the contract for the direct payment.
62. Part of the delay in carrying out the Care Act assessment was avoidable, as was setting up the direct payment. These will have also contributed to Mr B’s stress and frustration.

Back to top

Recommended action

63. I recommended that, within a month of my final decision, the Council should:
• apologise to Mr B;
• pay Mr B £500 for the distress and uncertainty caused by the lack of advice, delay and some continuing uncertainty whether, if the Council had completed a full assessment in September (or earlier), it might have reached a different conclusion about the 1 August – 28 September period.
64. With my final recommendation, the Council has asked for two months to complete, due to payment runs. This is that is should:
• for the period 29 September to 30 November 2021 pay Mrs C an amount equivalent to the difference between what it paid and what it would have paid if it had agreed the increased package of care from the earlier date. I have calculated this to be £1080 for nine weeks = £9720.

Back to top

Final decision

65. I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman