Summary: Mrs C complained how the Council handled a review of her brother’s, Mr E, care and support needs. She says the process took 19 months and the Council’s communication was poor. She also complained her mother’s, Mrs D, carer’s assessment was poor and the Council’s handling of Mr E’s direct payments was unreasonable. We find the Council was at fault for its communication and its lack of timely updates when dealing with Mr E’s review. It was also at fault for its handling of Mrs D’s carer’s assessment and for the way it handled Mr E’s urgent toileting needs. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs C complained how the Council handled a review of Mr E’s care and support needs. She says the process took 19 months, the Council’s communication was poor, and officers demonstrated a lack of compassion and asked for irrelevant information.
2. Mrs C also says Mrs D’s carer’s assessment was poor. She says there was no joined up approach between Mrs D’s carer’s assessment and Mr E’s assessment.
3. Finally, Mrs C complained how the Council handled Mr E’s finances. She says the Council refused to contribute towards Mr E’s assistance dog, reduced his direct payments and has not allowed him to use his package flexibly.
4. Mrs C says the Council’s handling of the matter has caused distress and frustration to the whole family.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
8. If we are satisfied with an organisation’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

9. I considered information from Mrs C. I made written enquiries of the Council and considered information it sent in response.
10. Mrs C 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

Care assessments and planning

11. 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.
12. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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. When preparing a care and support plan the council must involve any carer the adult has. 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.
13. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
14. 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.
15. 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

16. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. Councils have a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Disability related expenditure

17. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess disability-related expenditure (DRE) in the financial assessment. This is because the Care Act statutory guidance says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition. Councils should not be inflexible in the costs they accept and should always consider individual circumstances.
18. Where a council agrees a person has DRE, it reduces their client contribution because these costs are offset against their income in the calculation of the charge/client contribution.

Mental capacity assessment

19. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
20. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Lasting power of attorney

21. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

The Council’s adult and community services transport policy

22. This policy sets out how the Council assesses adults who may have an identified transport need.
23. If an adult customer has access to a vehicle funded through the national Motability Scheme, the Council expects the vehicle to be used in accordance with the terms of the scheme, which requires the vehicle to be used “for the benefit of” the person whose mobility benefits fund the lease.
24. While it is not a requirement that every journey undertaken in the vehicle must involve the adult as driver or passenger, the journey must be of benefit to them. As such, it is expected that the Motability vehicle will be used to meet the adult’s travel needs wherever it is reasonable and possible to do so.
25. Where an adult is reliant on a relative or other carer to drive a Motability vehicle, the practitioner will consider the carer’s own needs for assessment, consider the impact of providing daily transport on the carer or their health alongside with needs for respite and including enabling them to work/access work.

What happened

26. This chronology includes an overview of key events and does not detail everything that happened.
27. Mr E has eligible care and support needs and a care and support plan from the Council. Mrs D, his mother, is his main carer and has her own serious health issues.
28. The Council completed a review of Mrs D’s needs as a carer in June 2020. Mrs D said she was finding the caring role stressful, and she needed more time to focus on things other than her caring role. The Council agreed to commission three nights away as respite for Mrs D and her husband (Mr D).
29. The Council had a meeting to review Mr E’s care and support needs. Mr E, Mrs C and Mrs D attended on 21 August 2020. Mrs D asked about the respite budget. The Council said it was now approaching it as replacement care, rather than guaranteeing holidays for the person with care and support needs. Mrs E said the programme of holidays and respite breaks were the only times she had a proper break. The Council agreed to hold a further meeting to discuss Mr E’s review. She also asked Mrs C and Mrs D to send a list of their planned respite breaks for Mr E.
30. The Council held a follow up review meeting on 8 September. Mrs D said she wanted Mrs C to manage Mr E’s direct payments. The Council said it would need to complete a mental capacity assessment (MCA) to see if Mr E had the capacity to manage his direct payments.
31. The Council also discussed Mr E’s transport needs. Mr E has a Motability car. The Motability car scheme lets people swap their motability allowance for a lease on a new car, scooter, or powered wheelchair. The Council asked why Mr E’s personal assistant and family friend did not use the car to take Mr E to day services and other appointments. It said if someone has a Motability car, there is an expectation this meets their transport needs. The family explained they were only allowed two drivers on the insurance. The Council said it would consider its transport policy and write to them in due course.
32. The Council also discussed Mr E’s assistance dog. The family asked for funding for the dog, but the Council said it was covered under DRE.
33. The Council completed a MCA to see if Mr E could manage his direct payments and consent to the agreement. The result of the assessment was he did not have capacity.
34. The Council had a further meeting with Mr and Mrs D and Mrs C on 29 September. The family explained they reclaimed mileage for the Motability car from Mr E’s direct payments. They also said they used the funds from the direct payments to fuel the car. The Council said fuel for the car is a universal cost that everyone needs to pay, but it would clarify the situation and get back to them.
35. The Council also said it was waiting for clarification on whether funding would continue for the respite holidays or whether family members could be employed to support Mr E with respite care. It said it would arrange a further meeting to discuss the draft care and support plan and funding for Mr E’s dog.
36. The Council sent a draft copy of Mr E’s assessment on 9 October. It sent a further email and confirmed Mr E should be paying for the fuel for his car privately, unless he travelled an excessive amount to meet his eligible needs. It also said managers would not authorise complete holiday costs without a breakdown of the individual elements. It asked Mrs C and Mrs D to get the information from the holiday providers. It said expenditure for Mr E’s dog was included in DRE, so it would not be funded through his direct payments.
37. The Council also said while the dog is a valuable part of Mr E’s life, it does not meet his eligible social care needs. Finally, it said Mr E’s oral hygiene, massage and chiropody appointments could not be funded from the direct payments, as adult social care is not responsible for services from other agencies.
38. Mrs C replied on 11 and 13 October. She suggested some amendments for the assessment. Mrs D also provided some comments and said she could no longer take Mr E to day services, and therefore needed some support. She said she had asked each holiday provider for a breakdown of their costs, but they were confused why the information was necessary. Finally, she said Mr E’s dog provides support.
39. The Council sent the family Mr E’s draft care and support plan on 15 October. It said it was still waiting for clarification on the funding issues.
40. The Council emailed Mrs C and Mrs D on 23 October. It said its legal team was considering the respite issue. It confirmed Mr E’s dog would be covered under DRE. It also asked for the family to keep a diary for the next two weeks for every journey when Mr E used his Motability car. It said this would help it to understand Mr E’s unmet transport needs.
41. Mrs C replied and said she did not agree with many of the decisions. She sent a further email and asked for a final proposal for Mr E’s care and support plan and the respite budget.
42. Mrs C emailed the Council on 9 November and asked it to escalate the review.
43. The Council held a meeting with Mr and Mrs D and Mrs C in February 2021. The family explained the process had been long and upsetting. They also said Mrs D’s carer’s assessment was inadequate, and Mrs D had put items for DRE that should have been part of the care and support plan.
44. The family provided more information on Mr E’s dog and the expenses he incurred relating to his health needs. The Council said it would review both issues further. It also said it would consider whether the Motability car was the best way of supporting Mr E’s needs. Finally, it agreed to arrange a carer’s assessment for Mrs D.
45. Mrs C chased the Council on 5 March for a response to the agreed actions from the meeting. The Council provided an update on 11 March. It said it was still working through some of the action points.
46. Mrs C and Mrs D attended another meeting with the Council on 19 March. The Council said it would confirm the transport position following Mrs D’s carer’s assessment. It said there was still no formal evidence Mr E’s dog met an eligible need. It said it would further investigate whether Mr E was entitled to any health support.
47. The Council completed the carer’s assessment for Mrs D. Mrs D said she wanted to spend quality time with her grandson and enjoy other recreational activities. The Council agreed to fund tickets for an outing for Mrs D and her grandson. It also agreed to fund one-off cleaning support.
48. The Council emailed Mrs C and said it needed to complete a further MCA for Mr E. Mrs C questioned why it was necessary when he had one in September 2020. The Council explained the assessments are decision specific and the previous one concerned Mr E’s capacity to manage his direct payments. This one related to whether he could understand his care and support needs and consent to his care and support plan.
49. The Council sent Mr E’s amended draft care and support plan on 20 April. It sent a further email the following day and said the family could make referrals to health services for Mr E’s podiatry and oral hygiene needs.
50. Mrs D raised further issues with the care and support plan. She also said Mr E’s wash/dry toilet was not working properly, and she asked if she could purchase a new one from his direct payments. The Council contacted the occupational therapy department for further advice.
51. Mr and Mrs D and Mrs C all hold LPAs for Mr E. Mrs C emailed the Council and said it was not necessary or appropriate to do a MCA as the LPAs were sufficient evidence. She also said Mrs D had made a referral for Mr E to receive podiatry care, but the organisation said it would not commission treatment for patients who could not manage basic footcare/nail cutting.
52. The Council responded and said it needed to undertake a MCA in line with the Mental Capacity Act 2005. It said it would make a referral for Mr E to have an occupational therapy assessment for the toilet. Finally, it said the podiatry costs would be funded through DRE.
53. Mrs C and Mr and Mrs D attended a meeting to assess Mr E’s DRE as part of a financial assessment on 12 May.
54. Mrs C emailed the Council on 11 June and said Mrs D’s health had declined. She asked why a further MCA was necessary. Finally, she agreed for the Council to make a referral for the occupational therapy assessment.
55. The Council responded and re-iterated why the MCA was necessary. Mrs C said it was unacceptable it did not ask for a MCA for Mr E’s care and support needs sooner.
56. Mrs C emailed the Council and chased for a response to her previous email. She asked if the family could use Mr E’s direct payments to fund the toilet as a one off because of the deterioration in Mrs D’s health. She also asked for an update on Mr E’s financial assessment.
57. The Council updated Mrs C and Mrs D and said it had chased for a response to the referrals.
58. Mrs C and Mrs D sent further emails and stressed the urgency of the situation.
59. Mrs C complained to the Council. She said the process had taken too long, the Council’s communication and conduct of staff was poor, and there was no joined-up approach between Mrs D’s and Mr E’s assessments. She also said she was unhappy with how it handled Mr E’s finances.
60. The occupational therapist assessed Mr E on 19 July and recommended a new wash/dry toilet.
61. The officer that dealt with Mr E’s financial assessment confirmed she had sent the details to panel. She apologised for the delay and said she had misplaced the paperwork.
62. The Council wrote to Mr E a few days later with the results of the financial assessment. It said Mr E did not need to pay for his care and support needs.
63. Mrs C emailed the Council and confirmed the toilet had been installed. She also said it was clear from the assessment Mr E did not have sufficient income to cover his DRE. Therefore, she asked for it to address it through his care and support plan.
64. The Council sent a further copy of Mr E’s care and support plan on 30 August.
65. The Council responded to Mrs C’s complaint. It apologised for the elongated review process and the stress it had caused the family. It also apologised that responses to emails were not always timely. It also said to simplify the process, going forward Mrs D’s carer’s assessment would be completed in conjunction with Mr E’s review.
66. Mrs C emailed the Council and said she was unhappy it was unwilling to fund Mr E’s assistance dog. The Council responded and said it had not received any new information that changed its position.
67. The Council sent through Mr E’s final assessment and care and support plan on 10 November.
68. Mrs C asked the Councill further questions on 19 November. The Council responded to her questions on 7 January 2022.
69. Mrs C and the family reluctantly agreed to Mr E’s care and support plan on 17 January.
70. Mrs C emailed the Council in March and asked if it would fund training for Mr E’s new assistance dog. The Council agreed to fund this in May.

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Analysis

71. The Council took over a year to finalise Mr E’s care and support plan. When it responded to my enquiries, it said it identified some issues during Mr E’s review that required further investigation and research. It said it was important to resolve everything so it could provide Mr E with a robust and clear care and support plan.
72. While I note the Council’s comments, and I appreciate it had to seek further clarity on many areas, I find its responses to queries were not always timely, and weeks went by without any updates or progress. This caused the family upset and distress.
73. I have reviewed Mrs D’s carer’s assessment from June 2020 and find it lacked sufficient detail about her unmet eligible needs. I also agree her assessment should have been done in conjunction with Mr E’s assessment. It was difficult for the Council complete a proper review of Mrs D’s needs as a carer without also understanding Mr E’s needs. I welcome the Council completed a review of Mrs D’s carers assessment in March 2021, and it has now changed its procedure to ensure Mrs D’s carer’s assessment is completed in conjunction with Mr E’s assessment.
74. Mrs C says the Council lacked compassion in how it dealt with Mr E’s urgent toileting needs. When the Council responded to my enquiries, it accepted it did not fully explore the family’s suggestion about additional support with toileting. It has apologised for this oversight and the additional strain in put on the family. I agree the Council was at fault here, and its actions caused unnecessary stress for the family at a difficult time.
75. Mrs C says the Council often asked for unnecessary information, such as how Mr E used his Motability car. The Council’s transport policy says if an adult customer has access to a vehicle through the Motability scheme, it is expected the vehicle will be used to meet the adult’s travel needs whenever is it is reasonable and possible to do so. The family explained Mr E’s personal assistant and family friend were transporting him to day services in their own vehicles and then claiming the petrol costs from the direct payments. The Council was not at fault in asking for further information to understand how the vehicle was being used and whether it was benefitting Mr E.
76. I find no fault with the Council asking to complete the MCA twice. The first assessment in September 2020 was about Mr E’s capacity in relation to his understanding of his direct payments. The second MCA was whether Mr E understood his new care and support plan. The Mental Capacity Act 2005 makes it clear an assessment of someone’s capacity is specific to the decision to be made at a particular time. I do however appreciate Mrs C’s point and agree the Council could have made it clearer at the outset it would need to complete the assessment.
77. The Council was not at fault for refusing to contribute to Mr E’s assistance dog. The Council listened to the family’s comments on why the dog was beneficial for Mr E and gathered further information. Having reviewed that information, it decided the dog did not meet Mr E’s eligible needs. However, it did agree for the expenses to be covered under DRE. This was a decision it was entitled to take.
78. Mrs C says the Council failed to provide support with Mr E’s finances, it has not allowed him to use his direct payments flexibly and it has decreased his package despite his needs not changing.
79. The evidence shows Mr E’s family may not have been given sufficient information previously about how to manage Mr E’s direct payments. Therefore, during the various meetings, it became clear the family were using money for things the Council disagreed with. As a result, it had to make some changes to the funding and how the family managed Mr E’s direct payments.
80. The Council said the membership costs for Mr E to access his day services could be funded from the direct payments, but any additional costs for activities when he was there would not. It said these were universal costs that anyone who attends activities would need to spend. It also said Mr E could not use his direct payments for transport when attending his social activities and respite breaks.
81. The Council was not at fault for not allowing Mr E to use direct payments for transport. It has acted in accordance with its transport policy as Mr E has a Motability car, and there is a reasonable expectation he should be using it to meet his eligible needs. However, the Council did advise Mrs C if there was evidence Mr E could not afford his associated fuel costs to attend the activities, it would consider it further. With regards to the activity costs, there is a general expectation the person should pay for these while they are out in the community. The Council has however met Mr E’s eligible needs by confirming he can use his direct payments for the membership costs. It also agreed to fund his personal assistant’s entrance costs for the activities.
82. With regards to DRE, the Council did look at this, although I appreciate it was delayed. It decided that because of Mr E’s DRE, he did not need to contribute towards the costs of his care and support needs. The decision is in line with the statutory guidance. Mrs C says Mr and Mrs D have to fund ongoing support Mr E because he does not have enough income. The Council can only provide for Mr E’s assessed eligible needs. Therefore, I do not find fault with its approach.
83. Finally, Mrs C says there was no joined up approach between health and social care. As a result, Mr E has to pay privately for oral hygiene, podiatry, and regular physiotherapy massages. The Council says the Mr E’s family were providing support to attend the appointments and it could find no other evidence his requirement warranted additional resources and funding. I understand Mrs C’s frustration, but direct payments for adult social care should not fund health services. The Council tried to assist by referring the family to the GP, the NHS and community dental services.

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Agreed action

84. To address the injustice caused by fault, by 5 December 2022 the Council has agreed to:

• Apologise to Mr E, Mrs C and Mrs D.
• Pay Mrs C £400 and Mrs D £500 for the frustration, upset and distress caused.

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Final decision

85. There was fault by the Council, which caused an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman