Summary: The Council was at fault. It took 10 months to reassess and revise Mrs X’s care and support plan. It failed to provide her with a managed direct payment account and did not fully address her complaint. The Council will apologise, provide advice and make her payments set out in this statement.

The complaint

1. Mrs X complained:
1. She asked for a re-assessment of her needs in February 2019, but the Council did not do one. She complained about this in October and was assigned a social worker, who visited but did not do a formal assessment. In the end, she had no choice but to agree to a care plan for 17.5 hours a week despite this not meeting her needs.
2. The Council did not deal with her request for equipment and cancelled her white cane training after only two sessions
3. The Council did not provide any support over lock down, only two phone calls
4. The Council made two payments for PPE but did not tell her at the time what the money was for
5. The Council made an unknown payment in December 2020 of £232.93 and failed to tell her what it was for.
6. The Council cancelled her care plan in September 2021, but did not tell her till 8 April 2022.
7. The Council instructed Enham Trust (ET) to make her employee redundant without reference to her.
8. There was a delay or failure to respond to concerns she raised about ET. Those concerns included incorrect, missing and delayed payslips, an incorrect P45 and poor communication about pension payments.
9. The Council assessed her as needing 17.5 hours of care, yet the direct payment (DP) did not cover holiday, sick or redundancy pay. She was never told to hold back monies to cover employment costs, especially redundancy. The DP agreement she signed only refers to repayments and explains the Council will take back large, accrued balances of over eight weeks.
10. The Council and/or ET only offered payroll support and never offered a managed DP account despite her requests in 2019.
11. The Council delayed responding to her complaints and did not respond adequately to the issues she raised.
2. Mrs X said the Council’s failings caused her avoidable distress, frustration, confusion and time and trouble. She also said:
• Insufficient hours meant her care needs were not met.
• Without the missing March 2021 payslip and information about what the December 2020 payment was for, she cannot take appropriate action.
• She has inadequate funds left in the DP account to make outstanding payments to her PA.

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The Ombudsman’s role and powers

3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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 about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. I have investigated Ms X’s complaint from February 2019 even though some matters are late. It was not reasonable for her to complain to us within 12 months because of her sight loss and long-term health problems. She was also going through some difficulties in her personal life that made it harder for her to complain.
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. Enham Trust (ET) provides a direct support service for the Council to fulfil its legal requirements in the Care Act and Care and Support Statutory Guidance. We can investigate ET.
8. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. 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

10. I considered the complaint to us, the Council’s responses to the complaint and documents set out in this statement. I discussed the complaint with Ms X.
11. Mrs 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

Relevant law and guidance

12. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. (Care Act 2014, sections 24 and 25)
13. 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; 13.19-21 and 13.32)
14. DPs are cash payments a council makes to a person to meet their eligible needs for care and support.
15. Guidance sets out actions for councils when a person is moving to a different council area. The expectation is that the second authority (the one the person is moving to) should have assessed the person before they move. If this has not been possible, the second authority should maintain the existing arrangements for care and support until it has assessed the person. I have summarised relevant paragraphs of Care and Support Statutory Guidance (CSSG) below:
• The second authority should agree the adult’s care and support plan and carer’s support plan, including any personal budget, in advance of the move. (20.29)
• The second authority is generally expected to have carried out their needs assessment before the adult moves (20.39)
• Where the full assessment has not taken place before the move, the second authority must put in place arrangements that meet the adult’s or carer’s needs for care and support as identified by the first 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 (20.40)
• Where local authorities are in dispute over application of the continuity of care provision, they must not allow their dispute to prevent, delay or adversely affect the meeting of the person’s needs. (20.50)
16. CSSG sets out the following matters for councils who are providing DPs:
• The local authority should have regard to whether there will be costs such as recruitment costs, Employers’ National Insurance Contributions, and any other costs. These costs should be included in the DP. Councils may commission support services such as brokerage, payroll and employment advice. (12.27)
• Specific information should also be given about holding back funds for redundancy payments due to circumstances such as moving home, a change in care and support needs, or death. (12.29)
17. Guidance in force during the COVID-19 pandemic allowed councils to prioritise services. It recommended councils map existing care packages for complexity, risk and need to allow for a better understanding of the risk should there be any impact on care delivery. (Care Act easements: Guidance for local authorities).

Summary of key events

Background

18. Mrs X is blind and was eligible for social care funding when she lived in the Council’s area. She received a direct payment which she used to employ a PA. She had support from ET to do payroll. Mrs X moved to a different area in June 2021. She has no complaint about the second council.
19. Mrs X and the Council signed a direct payment agreement in 2016. This said “the Council must provide you with support to set up your direct payment and access to on-going advice and guidance to help you maintain your direct payment. The Council will do this by providing a direct payment support service…”
20. The agreement also said:
• The Council would provide Mrs X with ongoing advice and guidance to help maintain the direct payment
• If she employed PAs, she must comply with legal requirements and all relevant employment law.

2019

21. Mrs X was receiving a direct payment for 9.5 hours of care and support a week. At the start of February, she wrote to the Council to say she had not had any training or advice on how to employ staff. There was no response to her letter.
22. Mrs X contacted the Council at the end of February to say she was struggling to cope.
23. In the middle of March, a social care officer and Mrs X spoke. Mrs X said her sight had deteriorated and she asked for additional care and support.
24. Mrs X wrote to the Council in the middle of July. She said she had contacted the Council in March saying she could not manage her DP because of her blindness and had also asked for a reassessment of her needs.
25. In September, Mrs X complained to the Chief Executive saying she had not yet had a reassessment or been offered assistance with managing her DP.
26. A social worker visited Mrs X in October. Mrs X asked for an increase in hours. The social worker asked Mrs X for more details. Mrs X responded, but the social worker did not think she had provided enough detail.
27. Another social worker took over in December and visited Mrs X. The social worker completed a social care assessment. The outcome was Mrs X was eligible for care and support. The second social worker drew up a care and support plan. This gave Mrs X 17.5 hours a week of care and support for shopping, cooking, accessing the community and support for her child to go to activities. The breakdown of funding on the care and support plan was:
• 11 hours at £12.84 an hour
• Half an hour at £8 an hour
• Six hours at £13.52 an hour.

2020

28. The Council approved the increased DP and started paying it in January.
29. The social worker referred Mrs X to the hearing and vision team. A worker from that team visited Mrs X and put in some changes to her kitchen to help her use it more safely. The record of the visit indicates Mrs X did not want further assistance because she said she was likely to move house.
30. A navigator supported Mrs X with route training outdoors. Mrs X also had three sessions of specialist training in using a white cane. The case records indicate she cancelled further planned sessions in March because of the lockdown.
31. The Council provided me with information it sent to Mrs X and other DP recipients in Swindon. The information set out advice and guidance on the furlough scheme and other relevant matters about COVID-19.
32. The Council wrote to Mrs X in December, explaining it had made her a payment of £232.93 for PPE.

2021

33. Mrs X contacted ET about:
• Pension payments being taken from the wrong bank account.
• Payslips for June and December 2020 being wrong.
• Not cancelling a second pension and this resulting in her getting threatening letters from the pension provider.
34. ET apologised and said:
• The bank details were from Mrs X. It had corrected them.
• It sent corrected payslips.
• ET would sort out the pension issue, but she needed to return a consent form it had previously sent so ET could liaise with the pension provider.
35. Mrs X confirmed the pension problem had been sorted and she had received corrected payslips.
36. ET advised Mrs X in an email that the minimum wage was £8.72 and the Council’s DP rates for PAs were £12.84 and £13.52. ET said she needed to pay her PAs less than she was doing, because she had to account for annual leave, pension, tax and redundancy.
37. In June, Mrs X informed the Council she had moved to another area. A finance assistant spoke to her on the phone and said the Council would continue to fund her direct payment until the second council confirmed it was taking over.
38. The Council wrote to Mrs X in June about a second payment for PPE.
39. At the start of July, a social worker and Mrs X spoke. Mrs X said she had spoken to the second council who said Swindon needed to initiate the transfer of her care. Mrs X gave consent to share information about her care with the second council. The records indicate the social worker sent a copy of Mrs X’s assessment and care plan to the second council and liaised with the second council by phone.
40. At the end of July, ET sent Mrs X an email asking if she still needed payroll services and if she wanted to transfer to another payroll provider. There is no record of Mrs X replying.
41. The records indicate ET continued to send Mrs X payslips after the move based on timesheets she provided.
42. In September, the second council shared a copy of its assessment with the Council. The second council decided Mrs X was not eligible for a direct payment. The social worker emailed the finance team to say the direct payment could now be ended.
43. The Council wrote to Mrs X with a third payment for PPE in September.
44. The finance team emailed Mrs X at the start of October to say her direct payment had ended because she had moved. The finance team asked her to send the Council her bank statements.
45. ET emailed Mrs X at the start of November asking her to confirm whether she was still employing her PA.
46. There were a series of emails between council officers and ET seeking to clarify whether Mrs X’s PA was due a redundancy payment. An internal note indicates ET sent Mrs X a payslip at the start of November which included holiday and redundancy pay. And ET sent information to HMRC at the start of December and issued a P45.
47. ET’s record in December says there was a deficit in redundancy funding and that employers’ liability insurance was renewed in October and then cancelled.

2022

48. A further note by ET in January said it had sought advice and redundancy may not apply because there was now a direct payment in place with the second council (see paragraph 51).
49. Mrs X wrote to ET enclosing bank statements. She said the payslip for November was incorrect, there was no breakdown, no P45 and she did not have enough funds to settle the outstanding payslip.
50. Receiving no response to her letter, Mrs X chased ET in February.
51. In March, an email between ET and the Council’s finance team indicates the second council agreed a direct payment for Mrs X in December 2021. The finance team asked the payroll provider to redo the payslip so the redundancy payment was removed as it appeared Mrs X’s PA was working for her so she could not be classed as redundant.
52. The Council wrote to Mrs X to say it had completed a reconciliation of her direct payment account and ET had been advised her direct payment with the Council had ended.
53. Mrs X wrote several letters to the Council in the first part of 2022 raising concerns about how it and ET had been dealing with her case. The Council’s response in April said had been paying her PA an hourly rate that was too high and did not allow contingency costs to be met. It went on to say she had employer’s liability insurance to help with redundancy costs and as a goodwill gesture, she could keep an overpayment of one week’s direct payment.
54. Mrs X was unhappy with the response and wrote again. The Council’s further letter in May 2022 said:
• It sent the other council copies of the social care assessment. The other council agreed to take over responsibility from September 2021.
• It offered her free support through a managed direct payment or payroll services only through the payroll provider. She chose payroll support only.
• The eight-week contingency would have been explained by the previous direct payment support service and by the finance officer who also signed the agreement.
55. The Council’s further letter in October said:
• The Council agreed to fund her direct payment until the new council completed its own assessment of her needs. There was no duty on the Council to do this.
• The Council stopped her direct payment at the end of September 2021. A finance assistant emailed her the following week to say the Council had made the final payment.
• She paid her employee an hourly rate that was too high and this did not leave her with enough money to cover other employment costs.
• The direct payment agreement she signed in 2016 said she needed to keep eight weeks contingency in her account to meet employment costs. It also said the rate is reviewed each year and paid above minimum wage to allow for employment costs.
56. Unhappy with the Council, Mrs X complained to us. We asked the Council if it had responded to Mrs X’s complaints under its complaint procedure. The Council told us its finance team had responded, but not as a formal complaint response. So we asked the Council to provide a formal complaint response. Mrs X contacted us again in October as she had not heard anything from the Council. We asked it to update us. It sent us a letter from 2021 which was a response to complaints Mrs X made in 2019. We decided to investigate because the Council had had enough time to respond under its formal complaints procedure and had failed to do so.

Comments from the Council

57. The Council told me:
• It accepted it had not given adequate information about the need to retain funding for potential redundancy situations.
• The balance of the account was £484 which Mrs X has retained
• It continued to pay Mrs X’s direct payment for three months after she had moved.
• It would make Mrs X a further payment of £578. This includes any redundancy and holiday payments. This payment takes into account Mrs X made duplicate payments for the PA’s salary in June 2021.
58. The Council also provided me with a more recent direct payment agreement which has replaced the version in place when Mrs X signed up for a direct payment. The updated agreement makes it clear that people who use the direct payment to employ PAs are responsible for ensuring there are enough funds retained to make redundancy payments.

Information from Mrs X

59. Mrs X told me her PA continued to work for her after she moved, but she could not pay her for a period between September and December 2021.

Was there fault and if so did it cause injustice?

Mrs X asked for a re-assessment of her needs in February 2019, but the Council did not do one. She complained about this in October 2019 and was assigned a social worker who visited but did not do a formal assessment. In the end, she had no choice but to agree to a care plan for 17.5 hours a week despite this not meeting her needs.

60. I uphold this complaint because:
• Mrs X asked for a re-assessment in February. The Council did not complete one or revise the care and support plan till December. Taking 10 months was too long, was not prompt or in line with Paragraphs 13.19-21 and 13.32 of CCSG and was fault. It caused avoidable distress and a loss of additional care and support of eight hours a week.
• Mrs X sent three letters about a re-assessment and additional support to manage her DP and the Council did not reply. This was poor communication and was fault. It caused avoidable frustration and time and trouble.
61. It is not for the LGSCO to determine how many hours of funding a council should give to meet a person’s eligible needs. That is for the Council. I have no grounds to criticise the Council’s decision to give Mrs X 17.5 hours.

The Council did not deal with her request for equipment and cancelled her white cane training after only two sessions

62. The records indicate an officer from the hearing and vision team visited Mrs X at home and provided aids for the kitchen and Mrs X was happy with this. There is no fault as the Council did what Mrs X wanted at the time.
63. The Council arranged white cane training and mobility support. The records indicate Mrs X cancelled this due to lockdown. The agreement was for Mrs X to get in touch when she wanted training to start again. There is no evidence she did. I do not uphold this complaint.

The Council did not provide any support over lock down, only two phone calls

64. The records indicate the Council provided general advice and information on COVID-19 issues and three payments for PPE. This was good practice and is not fault.
65. COVID-19 guidance for adult social care recommended councils prioritised care packages for risk. There is no evidence the Council considered Mrs X’s care arrangements to determine whether or not she was high risk. This was not in line with the Care Act easements guidance and was fault. I cannot say this caused any specific injustice.

The Council made payments for PPE but did not tell her at the time what the money was for

66. There is no fault. The Council has provided copies of the letters it sent to Mrs X explaining what the payments were for.

The Council made an unknown payment in December 2020 of £232.93 and failed to tell her what it was for

67. This was a payment for PPE. The Council wrote to Mrs X at the time to explain. There is no fault.

The Council cancelled her care plan in September 2021 but did not tell her till 8 April 2022.

68. There is no fault by the Council in stopping Mrs X’s direct payment and therefore cancelling her care plan. The Council acted in line with CSSG as I have set out in paragraph 15. CSSG says the second council is responsible for funding once the person has moved. In Mrs X’s case, the Council continued to fund Mrs X’s care and support until the end of September 2021 which is three months after she moved to the second council. The Council could have stopped funding in June 2021. As the Council acted to Mrs X’s benefit, there is no fault.
69. The records indicate the finance team emailed Mrs X in October to tell her it had stopped the DP. So there was no delay in telling her.
70. Mrs X said there was a period between September and December 2021 when she could not pay her PA. This is not the Council’s fault because meeting Mrs X’s care and support needs was the second council’s responsibility from the date she moved.

The Council instructed ET to make her employee redundant without reference to her.

71. ET did not employ Mrs X’s PA and so the Council could not instruct it to make the PA redundant. I do not uphold this complaint.
72. The records indicate the Council renewed employers’ liability insurance on her behalf in October 2021 and then cancelled it. Taking this action without discussing it first with Mrs X was poor customer service and was fault. It deprived Mrs X of insurance cover which may have been available to pay for any redundancy liability.

There was a delay or failure to respond to concerns Mrs X raised about ET.

73. The evidence indicates ET corrected errors and sent amended payslips. It appears Mrs X did not receive the March 2021 payslip, but there is not enough evidence for me to conclude this was due to fault by ET.
74. ET should have checked with Mrs X before setting up a second pension. This was poor communication and was fault causing avoidable confusion and inconvenience. Once Mrs X raised concerns, ET took action to address the matter so there is no outstanding injustice. There is no evidence of significant delay addressing concerns.
75. Mrs X has outstanding concerns about inaccuracies in the P45 which have not been addressed through the Council’s complaint process. This was fault causing avoidable frustration and confusion.

The Council assessed Mrs X as needing 17.5 hours of care, yet the DP did not cover holiday, sick or redundancy pay. She was never told to hold back monies to cover employment costs, especially redundancy. The DP agreement she signed only refers to repayments and explains the Council will take back large, accrued balances of over eight weeks

76. The evidence indicates Mrs X was paying her PA hourly rates that were too high. She had implied permission from the Council to do this because the rates she was paying were set out in her care and support plan which the second social worker completed. And the DP agreement did not advise Mrs X to hold back any money for holiday, sick pay or redundancy. I uphold this complaint because paragraph 12.29 of CCSG requires the Council to give advice about the need to hold back funds for redundancy and neither the Council nor ET made this clear when the DP agreement started. The records indicate ET told Mrs X about the need to hold back funds in 2021, but this was too late.

The Council and/or ET only offered payroll support and never offered a managed DP account (additional support to manage the DP) despite her requests in 2019.

77. I uphold this complaint. The Council never responded to Mrs X’s requests for additional support. It should have offered Mrs X a managed DP account. This caused Mrs X avoidable distress and inconvenience.

The Council delayed responding to her complaints and did not respond adequately to the issues she raised.

78. I uphold this complaint. The Council’s complaint responses wrongly said Mrs X chose payroll support only when she had asked for additional support to manage the DP in 2019. And the Council also wrongly said Mrs X would have received advice about redundancy when the DP started. There is no evidence she received this advice and the DP agreement is unclear about redundancy payments. There was a failure to provide a full response to all the issues raised. This was fault which caused avoidable frustration, delay and time and trouble escalating the complaint to us.

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Agreed action

79. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with ET, I have made recommendations to the Council.
80. Within one month, the Council will:
• Apologise to Ms X for the fault and injustice identified in this statement.
• Provide advice and information on Mrs X’s outstanding concerns and queries about payslips and the P45 up to November 2021.
• Make Ms X the following payments:
1. £250 to reflect her avoidable time and trouble complaining.
2. £1000 to reflect the avoidable distress caused by not meeting her additional care needs between February and December 2019.
3. £1202.60 to settle the redundancy.
81. The aim of our remedies is to try and put people back into the position they would have been without the fault. I have made the recommendation in 80(b) because on a balance of probability, the Council would have put in place the additional hours 10 months earlier had it acted promptly. So the payment reflects the loss of care Mrs X was entitled to. The payment in 80(c) is the redundancy payment ET calculated minus the balance left in Mrs X’s DP account which she has kept. If the Council had put in place a managed DP service, this payment to Mrs X’s PA would not be outstanding.
82. I have not made a recommendation for the Council to pay Mrs X’s PA’s ‘holiday pay’ (meaning pay to replace holiday she had not taken before the Council stopped the direct payment) because it is reasonable for Mrs X to have got the PA to take their holiday once the second council started funding the direct payment and the PA resumed paid work for Mrs X. This is in line with our Published Guidance on Remedies which expects complainants to take action to lessen the injustice.
83. I have not made any recommendations for changes to the Council’s procedures because the new direct payment agreement sets out employer responsibilities around redundancy and so this will minimise the chance of recurrence.
84. The Council should provide us with evidence it has complied with the above actions.

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Final decision

85. The Council was at fault. It took 10 months to reassess Mrs X and to revise her care and support plan. It failed to provide her with a managed direct payment account and did not fully address her complaint. The Council needs to apologise, provide advice and make her payments set out in this statement.
86. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman