Derby City Council (21 013 240)

Category : Adult care services > Assessment and care plan

Decision : Not upheld

Decision date : 02 May 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council has not provided the required support to meet her adult son, Y’s, needs since March 2019 and is refusing to fund a live-in personal assistant. I have ended my investigation. Part of the complaint is out of time, there is insufficient evidence of fault and the Council has agreed to Mrs X’s request to use Y’s direct payment to employ the family member currently living at their address. Further investigation could achieve nothing more.

The complaint

  1. Mrs X’s adult son, Y, has care and support needs. She complained the Council has not provided the required support to meet his needs since March 2019 and is refusing to fund a live-in personal assistant. She wants the Council to agree to fund a live-in personal assistant for Y.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

  1. 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)

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How I considered this complaint

  1. I read Mrs X’s complaint and considered information she provided.
  2. I considered information provided by the Council.
  3. Mrs X and the Council had the opportunity to comment on the draft decision. I considered all comments received before making a final decision.

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What I found

Background information

  1. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. If a council decides a person has eligible needs, it must set out how it is going to meet these needs in a care and support plan.
  2. A direct payment is a payment made to people with eligible care and support needs so they can arrange their own care, rather than the Council arranging it for them. A person can allocate a representative to manage the direct payment on their behalf.

What happened

  1. Mrs X’s adult son, Y, has care and support needs. After completing its assessment, the Council decided it could meet Y’s needs with 12 hours of care support per week. Y wanted to arrange his own care and the Council agreed to Y’s request for a direct payment. The direct payment agreement in place appoints Mrs X as Y’s representative, to manage the direct payment on Y’s behalf.
  2. In November 2021, Mrs X complained to us. She said that the Council had not ensured Y received his full 12 hours weekly care support since March 2019. She also said the Council would not allow her to use the direct payment to employ a personal assistant of her choice, as the personal assistant was a family member currently living with Mrs X and Y. She said that due to family circumstances, Y needed a live-in carer to meet his needs.
  3. We made initial enquiries of the Council, who told us Mrs X had not formally complained to it about this matter. The Council said it had received a letter from Mrs X’s MP in December 2021 and it had responded to the MP setting out what support it was providing to Y and Mrs X. This letter said:
    • It was aware Mrs X and her family were facing increasing challenges and it was trying to support them as much as possible.
    • Mrs X acts as Y’s representative and manages the direct payment. The Council understands the direct payment has not been used, despite the funding being available.
    • Y’s social worker has contacted Mrs X to review the situation and offer more support in her role managing the direct payment, if this is needed.
    • The Council would not normally agree to the use of a direct payment to employ a family member living at the same address, but because of Mrs X and Y’s exceptional circumstances, it had agreed to this going forward.

My findings

  1. We cannot investigate complaints when someone takes more than 12 months to come to us about something a council has done. Mrs X brought her complaint to us in November 2021 but says Y has not received care and support to meet his needs since March 2019. I can see no good reason why she could not have complained to the Council or brought her complaint to us earlier, if she was dissatisfied between March 2019 and November 2020. This part of the complaint is out of time.
  2. Mrs X says Y has not received the care and support to meet his needs between November 2020 and November 2021. However, Mrs X is Y’s representative and manages the direct payment on his behalf. This means it was Mrs X’s responsibility to employ carers or personal assistants to meet Y’s needs and not the Council’s. Because of this, further investigation is unlikely to lead to a finding of fault.
  3. The Council has said that due to the exceptional family circumstances, it has agreed that Mrs X can use the direct payment to employ the family member living with them as Y’s personal assistant. This is the outcome Mrs X wanted. Further investigation of this point would not achieve anything more.

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Final decision

  1. I have ended my investigation. Part of the complaint is out of time, there is insufficient evidence of fault to warrant further investigation and even if I did investigate, I could not achieve anything more for Mrs X.

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Investigator's decision on behalf of the Ombudsman

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