Summary: The Council was at fault for not providing Ms X with adequate care. As a result, Ms X has been without care. To remedy the injustice caused, the Council agreed to apologise, make a payment to Ms X, arrange to put in place a package of care for Ms X while a personal assistant is found and carry out a review of her care needs.

The complaint

1. Ms X complains the Council has not provided her with adequate care and support.

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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’. 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)
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. As part of this investigation I considered the information provided by Ms X. I discussed the complaint over the telephone with Ms X. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered the responses received.

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What I found

Law and guidance

Assessment

5. 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.
6. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

7. 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. 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.

Reviews

8. 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. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. 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.

Personal Budgets

9. 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.
10. 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.

11. (Care and Support Statutory Guidance 2014)

Direct payments

12. 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.
13. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
14. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
15. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
16. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

What happened

17. The Council carried out a care assessment for Ms X in September 2020 which established she had eligible care needs. The assessment said Ms X struggled to maintain a habitable home environment and struggled to keep on top of her correspondence.
18. She received a package of care from the Council from October 2020 which was made up of three hours of support per week. The care helped Ms X manage her home environment, correspondence and manage in the community. The Council commissioned a care provider to provide this care to Ms X.
19. In October 2021, Ms X’s Social Worker at the Council reviewed her care. Ms X told the Council she did not feel the care met her needs and would be better used when her children were with her. Ms X also said the care did not fit around her university timetable.
20. After reviewing Ms X’s care the Council decided to increase the support Ms X received from three hours per week to five hours per week. The Council decided Ms X needed support with managing her correspondence, meal preparation, cleaning, phone calls, laundry, and home management. The Council also agreed Ms X could have direct payments for her care.
21. The Council referred Ms X to an organisation, it used to manage the direct payments and source personal assistants.
22. In December 2021, Ms X’s Social Worker asked the Council’s Administration Team to send her a copy of her care plan. This was after Ms X requested this from the Council.
23. On 26 December 2021, Ms X’s care stopped with the care provider. Ms X agreed to this and said the care did not meet her needs. Ms X had also recruited a virtual personal assistant. The Council sent Ms X the form to complete so it could start paying the direct payments. Ms X returned this but put her own bank details on the form. As a result, the Council made the direct payment to Ms X.
24. In March 2022, the organisation the Council used to manage direct payments contacted the Council and told the Council the direct payment was going directly to Ms X as she had put her own bank details on the direct payment form. It also told the Council she had employed a virtual personal assistant and this did not meet the needs in her support plan.
25. Ms X made a formal complaint to the Council in May 2022. Ms X complained about the lack of communication she received from the Council. She also complained she had been trying to receive direct payments to manage her care and employ a personal assistant. Ms X told the Council she had physical disabilities which she needed support for and her support plan did not consider these. Ms X also asked the Council to send her a copy of her support plan. Ms X asked the Council to re-assess her care needs and to help her arrange support.
26. In June 2022, the Council stopped Ms X’s direct payments. This was because it had been brought to the Council’s attention Ms X was using the direct payments to hire a cleaner and was receiving the direct payment money into her own bank account.
27. In August 2022, the organisation the Council used to recruit a personal assistant for Ms X said it had received no applications. The Council passed this information onto Ms X and also told her it would carry out a review of her needs. Ms X also contacted the Council as she had not received a response to her formal complaint.
28. In November 2022, the Council provided its response to Ms X’s complaint. The Council:
• Apologised for the delay in responding to Ms X’s complaint and said this was due to staff capacity issues.
• Explained it sent Ms X her support plan in December 2021 after she asked for this. The Council also said when it completed a review, the review documents included the support plan.
• Acknowledged there were delays with Ms X being able to access support. However the Council also said it did take steps to ensure Ms X could access support to meet her needs.
• Said communication between Ms X and her Social Worker had been limited and apologised. The Council said it had arranged for her Social Worker to review Ms X's care.
• Partially upheld the complaint on the basis of delays with coordinating a package of care for Ms X. The Council said some of the delays were caused by a difference in view as to how Ms X’s personal budget should be spent.
29. In late November 2022, Ms X’s Social Worker visited her at home and agreed to look at which specialist providers were available to provide care for Ms X for five hours per week. The Council told Ms X it would complete a review of her care needs after four to six weeks of the new provider being in place.
30. Shortly after the Council told Ms X a provider was available in the new year should she wish to progress with this package of care. In January 2023, Ms X agreed to allow the Council to put in place a commissioned provider as it could not find her a personal assistant.
31. Ms X remained dissatisfied and complained to the Ombudsman.
32. In response to my enquiries the Council confirmed Ms X was not receiving a care package. The Council said it was waiting for Ms X to confirm which provider Ms X would like to provide care. The Council said it would then review Ms X’s care four to six weeks after a provider had been in place. The Council apologised for the delays in coordinating a package of care for Ms X and recognised clearer communication from her Social Worker could have helped provide Ms X with support earlier. The Council also recognised it had delayed in responding to Ms X’s formal complaint and offered £200 to recognise the unnecessary delays and distress Ms X suffered.

Analysis

33. Ms X’s care ended in December 2021 after the Council ended its contract with the provider. This was with her agreement, however there were no alternative arrangements in place. This was fault. While Ms X had been able to source a virtual personal assistant as an interim measure, the Council was aware a virtual personal assistant could not provide the care and support in Ms X’s care plan. At this stage the Council should have looked at commissioning another provider to provide care to Ms X while a permanent personal assistant who was not virtual could be sourced.
34. The Council cancelled Ms X’s direct payments in June 2022. This was after it became aware Ms X had been receiving the direct payments into her own bank account. In addition, Ms X was initially using the direct payments to employ a virtual personal assistant and then using them to employ a cleaner which did not meet her needs in her care plan.
35. After stopping Ms X’s direct payments, the Council did not put in place any alternative care for Ms X or seek to do this. This was fault. I recognise there was difficulty with recruiting a personal assistant for Ms X. However, Ms X was without any care or direct payments to commission her own personal assistant from June 2022, and still does not have a package of care in place.
36. The Council offered to put in place a package of care, however said Ms X had not identified which provider she wanted from a list supplied to her in November 2022. However it is not clear what further action has taken place since this time or whether the Council has followed up with Ms X to establish a care package. Given Ms X’s care plan stated she struggled to manage correspondence I would have expected the Council to have followed up with Ms X.
37. There were also delays in communication with Ms X by the Council and delays in responding to her formal complaint. This was fault. After Ms X’s care ended in December 2021, it was not clear what arrangements were in place for her care. When the Council ended her direct payments in June 2022 there were delays in communicating with Ms X to establish her options going forward as a personal assistant had not been recruited.
38. The Council has recognised there were delays in arranging a package of care and its communication with Ms X could have been better. While I welcome the Council has attempted to remedy the injustice caused to Ms X with a payment of £200 for the unnecessary delays and distress, I do not consider this goes far enough.

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Agreed action

39. Within one month of my final decision, the Council agreed to carry out the following:
1. Provide Ms X with a written apology for the faults identified.
2. Pay Ms X £400 to recognise the distress caused by the delays in communication and for not having alternative arrangements in place after her direct payments were stopped.
3. Arrange to put in place a package of care for Ms X while a personal assistant is recruited. The Council should also carry out a review of Ms X’s care as it agreed it would once the package has been in place for four to six weeks.
40. Within two months of my final decision the Council agreed to carry out the following:
4. Consider what steps it can take to address the backlog in responding to complaints. The Council should report back to us what it intends to do to address this.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation and found the Council was at fault. This caused Ms X injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman