Summary: There is no evidence of fault in the way the Council assessed Miss T’s needs, suspended her Direct Payments or offered a commissioned care package.

The complaint

1. Miss T (as I shall call her) complains the Council carried out three separate assessments of her needs and says she felt humiliated by its approach towards her care.

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The Ombudsman’s role and powers

2. 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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered the information provided by Miss T and the Council. I spoke to Miss T. Both Miss T and the Council had an opportunity to comment on a draft of this statement and I took their comments into account before I reached a final decision.

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What I found

Relevant law and guidance

5. 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 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.
6. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
7. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

8. Direct payments are monetary payments made to individuals who ask for them 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. The council must ensure 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.

What happened

9. Miss T received a package of support funded by the Council through Direct Payments from 2020 onwards. Initially she managed the payments herself but after some concerns about the way Miss T was managing the payments, the Council agreed a third party would manage the Direct Payments. Miss T employed her daughter as her Personal Assistant. Her agreed package of care was for a 45 minute morning call for personal care, 30 minutes each at lunchtime and teatime for meal preparation and an hour domestic support a week.
10. In March 2022 Miss T’s daughter stopped acting as her Personal Assistant as she had recently had a baby, and the Council suspended the payroll account until Miss T found a new assistant. Miss T emailed the Council to say while her daughter was not providing care she would like to use the funds instead to employ cleaners, and to pay for a gym membership at which she would be able to use the sauna and showers herself to provide her personal care.
11. The Council emailed to say it would undertake a short reassessment so that it could replace the existing provision with a Direct Payment agency provision to ensure continuity of care.

The reassessments

12. Miss T met the Direct Payments officer on 26 April and told them she wanted to use the money for the sauna, the gym and cleaning. The Direct Payments officer told her the money was to be used for the needs identified in her care plan. Miss T said she would talk to the social care team.
13. A deputy team manager talked to Miss T on 29 April. She reiterated that the Council had expedited a change in the payment arrangement so an agency could provide the care until Miss T found a new PA if that was her choice. The case recording says Miss T became agitated and said she did not want agency care. Miss T says this was because her home is a 20-minute walk from the nearest bus-stop and it would be difficult to find another carer who would undertake that trip twice daily: she also says she had had poor experiences previously with care agencies. The deputy team manager arranged for another social worker to be allocated to reassess Miss T (as the allocated social worker was unavailable).
14. The social worker met Miss T on 4 May. He noted: “(Miss T) has requested instead of the current care provision, the following amendments below should be used to replace her current direct payment care plan.

A robotic hoover to clean daily around her home as the once weekly hour provided is insufficient.

A one off clean of the windows and then the current Domestic hour provided will keep them clean.

A one off Garden tidy and then domestic will be used to keep it managed

A monthly community health pass so (Miss T) can use it for showering and support for her arthritis

Once a month to have her feet and hands managed – ie nail cutting”

The Council says “We also discussed with (Miss T) that if she is able to tend to her own personal care in a private gym, we would not consider that she has eligible needs for a carer to assist her with personal care. (Miss T) was clear that she would attend the gym and be able to tend to her own care needs without a carer.” Miss T disputes this version of events She says she explained her niece would accompany her to the gym, and there were staff and other members who would help her as well.

15. Miss T wrote to the Council complaining about the social worker and emphasizing the importance of the robot hoover purchase as the ordinary vacuum cleaner was too heavy for her to lift. The Council responded that she would have to purchase the robot hoover privately. It added that as her direct payment allowed for domestic help, the cleaners would manage the hoover.
16. The social worker telephoned Miss T on 1 June. He said her current care package met her daily needs and would not be increased. Miss T was not happy and said she wanted to use the money for the sauna etc. The social worker noted, “I explained to her the purpose of the direct payment and what it can be used for. She was adamant that she can use the money to buy robotic hoover and to attend sauna which (the team leader) has explained to her that is not the purpose of direct payment rather is for her care needs, such as personal care.” Miss T says the social worker had provisionally agreed the purchase of the hoover and payments for the gardening while he was at her home.
17. The team leader, social worker and direct payments officer discussed Miss T’s request. The team leader noted they would look at other options for the needs Miss T had identified, such as private nail-cutting services and voluntary gardening services.
18. In July the direct payments manager noted Miss T had been misusing her funds since they were transferred to a client-managed account. She provided details, which included payments to Waitrose, Amazon and Ikea. The total amount of misspent money was £1266.92. Miss T says she sent the receipts for these purchases to the Council.
19. Miss T complained that the Council had done nothing to assist her since her change in circumstances. She said she could not get another PA as her house was too far from a bus-stop. She said her personal care was now “imperative”. She suggested “Until a proper assessment can be put in place with all needs catered for - I would suggest all direct payments are allowed and if disallowed after assessment funds can be paid back”. She said she did not want the same social worker.
20. The team leader put Miss T’s requested care package forward for approval but the service manager declined to approve it. She said “This is not equitable with other residents and could set precedent. Some of the items are "wants" rather than assessed needs.”
21. The Council held a complex case forum on 18 August to discuss Miss T’s case. The forum noted that none of the items requested by Miss T were linked to the outcomes on the last assessment, and said a further assessment was needed.
22. The social worker visited Miss T with a colleague on 24 August. He noted, “Observed during visit: (Miss T) moved without problems, bending legs and hands, using fingers to light cigarettes, climbed the stairs with little problem and whilst we were in bathroom with her she got up from sitting position with no problem.” He commented that she opened the door wearing a ‘short dressing gown’. He also noted the presence in her house of a baby bath, highchair etc and thought it was probable someone else was living in the house, but Miss T denied this. Miss T complained she had endured the “humiliation” of three assessments though her circumstances had not changed. She says the colleague who accompanied the social worker made inappropriate remarks, and went into rooms where the doors were closed, without Miss T’s permission.
23. Miss T continued to complain about the state of her garden and the delay in providing her with a care package. The social worker replied, “Be advised that management will have to approve all these request in line with your care plan before any action regarding garden maintenance can be carried out. Management will have to agree/advise whether the garden maintenance is a one off offer which you have already used and stated the cost was £850 or will be continued as part of your care plan.”
24. When Miss T saw a copy of the assessment report, she complained about its contents. She said the comment about her dressing gown was inappropriate. She denied she had been moving without problems. The social worker responded that he was awaiting funding approval for the care package but “need to make you aware that based on the information gathered we will not be providing you with funds to attend a gym/sauna. We have made recommendations of how to try and support you in your own home (such as an Occupational Therapy Assessment).

We will commission the domestic support with your current provider.,”

25. Miss T sent numerous emails complaining about the delay and asking when she would receive funding for her care. At the beginning of October the team leader wrote to her. She said, “At this time I will continue to suggest that option of the council commissioned care package as you have stated your need is great and this is a provision that can be commissioned promptly. The issues you may have had with previous providers if you explain what these were we can highlight them to any new agency sought…. Again I cannot recommend a Direct Payment as you previously had it given concerns about the expenditures noted on statements received by the Direct Payments Team. We do reserve the right to investigate any concerns.”
26. After many more emails between Miss T and the social work team, and representations from Miss T’s councillor, Miss T agreed to accept a Council-commissioned care package. However, when carers arrived, she refused to let them in and requested another assessment.
27. The Council agreed that going forward it would offer a managed Direct Payment account, but money would not be able to be accessed directly by Miss T in view of the misspend. It agreed to waive the identified misspend. Miss T says she would be happy with a managed Direct Payment.

The complaint

28. Miss T complained to the Council. She said the suspension of the Direct Payment had a significant impact on her mental and physical health, her relationship with her family and she was also unable to access her garden. She said she was often housebound, depending on her pain levels.
29. The service manager responded. She said “The assessments that have been undertaken have allowed you to fully participate. Throughout the assessment process and additional communication we have had with you considering all the concerns you have raised, and your wishes. As a local authority we have also looked at other facilities, services resources already available in the community that you can access to meet the requests that you have made.” She added that she had not known previously Miss T was housebound and said her response to questions about walking her dogs was that she had said she was able to do so herself: the Council could not therefore consider her to be housebound. Miss T says she has never claimed to be permanently housebound.
30. The service manager said the Council had offered an Occupational Therapy assessment to see how Miss T could be better assisted to manage at home but she had declined this. She had declined the option of a Direct Payment care agency and had said she wanted instead to be funded to use the gym and sauna where she could manage her own personal care. The manager said, “Given this it would suggest that you do not have an eligible care need and are independent in completing this task.” She said options for accessing nail care had also been offered.
31. The complaint was not upheld.
32. Miss T complained to the Ombudsman. She said unnecessary assessments had been held, the last of which had been demeaning to her. She said she had not received personal care for over six months because of the Council’s decision to suspend her Direct Payments.
33. The Council says it has been responsive to Miss T when she has made contact “In addition to being responsive where she has raised concerns related to other matters impacting on her wellbeing and basic human rights.” It adds that the volume of email communication from Miss T has become unmanageable and “Action needed to be taken to manage this as an organisation and now all emails are filtered via our customer relations team ‘unreasonable behaviour’ process”.

Analysis

34. The Council reassessed Miss T’s needs when her circumstances changed: that complied with the guidance and was not fault.
35. Miss T requested a considerable change to her care package. The Council assessed that her needs could be met through her existing care package: that was not fault.
36. The social worker visited Miss T on the final occasion in the company of another officer. That was understandable as Miss T had disputed some of his previous findings. The assessment report included the social worker’s observations of Miss T’s ability to move, but it was unhelpful for him to comment in that document on Miss T’s dress. I have not seen any evidence that the assessment visits were in any way demeaning or humiliating, however.
37. Miss T spend some of the Direct Payments money on items which were not included in her care plan and for that reason the Direct Payments were suspended. That was not fault: the Council has a duty to protect the public purse from misuse. The Council offered repeatedly to put in place a commissioned care package, but Miss T refused. That was her prerogative but is not the fault of the Council. Miss T has now indicated she would accept a managed Direct Payment.

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Investigator's decision on behalf of the Ombudsman