Summary: Mr X complained on behalf of his adult son, Mr Y. Mr X complained the Council withdrew Mr Y’s direct payments without formal notice. The Council was at fault for stopping Mr Y’s direct payments without the correct notice period and for not reviewing Mr Y’s care and support needs or updating his care plan when it stopped the direct payment. The Council will apologise, pay Mr X for his distress and uncertainty, review Mr Y’s care and support plan and reinstate and backdate Mr Y’s direct payments in the meantime.

The complaint

1. Mr X complained on behalf of his adult son Mr Y. Mr X complained the Council insisted on an carrying out a new Mental Capacity Assessment for Mr Y which both Mr X and Mr Y said was not needed. As a result the Council has withdrawn Mr Y’s direct payments without formal notice, which is making them anxious. Mr X would like the direct payments to be reinstated and Mr Y’s care and support plan to be finalised.

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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 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)
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 spoke to Mr X about his complaint and considered the information he provided.
5. I considered the Council's comments about the complaint and the supporting documents it provided.
6. I considered the Council's policies and relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Needs assessment

8. 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. The assessment must be of the adults 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. If a council decides a person is eligible for care, it must prepare a care and support plan.
9. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Care and Support Statutory Guidance says councils should review plans at least every 12 months.
10. As part of care and support planning, the council must provide the person with a personal budget. The Council can manage a personal budget in three ways:
• as an account held by the local authority with support provided in line with the person’s wishes;
• as an account held by a third-party, with support provided in line with the person’s wishes; or
• as a direct payment.

Direct payments

11. Direct payments are 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. The Council should support them to use and manage the payment properly and monitor them. Councils must tell people during the care planning stage which of their needs direct payments could meet.

Mental Capacity Assessment

12. 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) describe 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.
13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

What happened

Background

15. Mr Y is an adult with autism. He lives on his own, in a flat.
16. In May 2018 the Council carried out a ‘short term enablement plan’ with Mr Y and recorded Mr Y had long-term community support needs. In late November 2018 the Council considered a direct payment request. In mid-December 2018 the Council completed Mr Y’s care and support plan and said Mr Y needed long term support in accessing the community and relied on his parents. It recorded the Council set a personal budget of £112.75 for one to one support, six hours a week and mileage costs.
17. The Council said it did not hold a mental capacity assessment (MCA) record for Mr Y in 2018.

Direct Payment and mental capacity assessment

18. In early December 2018 the Council agreed Mr Y could receive his personal budget as a direct payment. Mr Y’s father Mr X signed the direct payment agreement. Mr X was nominated as the recipient of Mr Y’s direct payment to receive a weekly direct payment of £112.75 paid every four weeks. The direct payment agreement said Mr Y had capacity to agree and manage the direct payment and the direct payment recipient was a best interest suitable person. Paragraph 20 of the direct payment agreement said ‘County Council and the direct payment recipient have the right to end this agreement by giving the other party four weeks’ notice in writing’.
19. The Council carried out two direct payment financial reviews between June and August 2019 and November 2020 and April 2021. In response to the question, was there any reason to doubt the person's mental capacity to understand all the terms and conditions of the direct payment agreement? The reviews recorded ‘No’. In response to the question will the direct payment recipient manage the direct payment or will a person be nominated to assist? The reviews recorded ‘Nominated person assisting’.
20. In late February 2022 the Council set up a review meeting with Mr X and Mr Y to see how the direct payment was being used and if it was working well. Mr Y was unwell and the review meeting was cancelled. Mr Y’s allocated worker from the Council, Ms Z, tried to rearrange the review five times between late February 2022 and late May 2022. Mr X was unsure what the review was for. In late May 2022 Mr X emailed Ms Z and said Mr Y’s direct payment was for 10 hours of support a week to help cook meals, shopping, making appointments, socialising and managing his finances. He said Mr Y’s needs had not changed. Ms Z emailed Mr X the same day and said she still needed a telephone conversation with him and it was nothing to worry about.
21. Two days later Ms Z held a care needs assessment over the telephone with Mr X. A record from the meeting said:
• Mr X questioned Ms Z’s role in the meeting and thought the paperwork should come from the Council’s finance department;
• Mr X said the direct payment was working well. He said Mr Y had a close relationship with his parents, visited his work coach every two weeks, struggled with his sleep pattern and had anxiety;
• Mr X said he would speak to Mr Y about Ms Z talking to him but thought Mr Y would be too anxious; and
• Ms Z told Mr X the direct payment paperwork had been completed incorrectly and a new direct payment agreement and nominated person form would be needed based on Mr Y’s capacity.
22. Between early June and early October 2022, Ms Z and a Council social worker, Ms A, tried four times to set up a meeting to speak to Mr Y and Mr X to complete Mr Y’s care and support plan review and to review Mr Y’s direct payment. Mr X did not give the Council a suitable date. In early October 2022 Ms A emailed Mr X with a date for the review meeting for late October 2022.
23. In late October 2022 Ms Z and Ms A held a review meeting with Mr X and Mr Y’s mother at their home. A Council record for the meeting said:
• Mr X said Mr Y lacked capacity on finance;
• Mr X did not consent to a MCA for Mr Y. The Council explained what the MCA was and said because Mr Y was an adult it did not need Mr X’s consent;
• Mr X thought Ms Z and Ms A were trying to manipulate him to agree to a MCA; and
• Mr X rang Mr Y and Ms Z spoke to Mr Y on a loudspeaker. Ms Z asked Mr Y if she could visit him and he said ‘maybe’. Mr Y said he was happy with Mr X and his mother supporting him, happy with Mr X managing his direct payments and Mr Y confirmed he was not worried about anything.
24. In late October 2022, Mr Y wrote a statement. It said he would like to keep the existing direct payment arrangements. The Council does not have a record of this statement.
25. Between late October and late November 2022 the Council wrote to Mr X three times to ask him to support Mr Y to engage in a review and MCA.
26. In late November 2022 the Council completed Mr Y’s direct payment financial review. It recorded there was confusion on who the direct payment recipient was. It said the form was signed by Mr X in 2018 but if Mr Y had capacity the form should have been signed by him and he should have nominated Mr X to manage the payments. It also said Mr Y may now not have capacity and a full MCA was needed.
27. On 6 December 2022 the Council emailed Mr X again. The Council asked Mr X to arrange a date for the Council to visit both Mr X and Mr Y, or it would suspend the direct payment in mid-December 2022. The Council did not contact Mr Y directly due to his anxiety. Mr X refused the MCA and the direct payments stopped on 21 December 2022.
28. In late January 2023 the Council wrote to Mr X and said:
• it needed to carry out a MCA to decide if Mr Y could make decisions on managing his direct payments;
• it needed a MCA because Mr X told the Council in late October 2022 he did not believe Mr Y had capacity;
• it needed to carry out its own MCA because it had only been able to speak to Mr Y briefly on the telephone;
• if Mr Y had capacity to make his direct payment decisions and wanted Mr X to manage the payment, it could arrange it;
• if it assessed Mr Y as lacking capacity, a best interest decision would be made on who should manage Mr Y’s payments;
• it urged Mr X to support Mr Y to arrange his MCA with Ms Z and Ms A; and
• it did not think the Council had misled Mr X about the need for Mr Y’s MCA.
29. In mid-February 2023 Mr X complained to the Council. He said he disagreed with information given at the review meeting in October 2022 on Mr Y’s capacity and the direct payment agreement and it was not in line with the Care Act 2014. Mr X said Mr Y did not need a MCA and Mr Y was happy with the current direct payment arrangements, which Mr Y had told the Council. Mr X said the Council threatened to cancel the direct payment unless it carried out a MCA. Mr X said he did not say Mr Y lacked capacity in the late October 2022 review meeting. Mr X said Mr Y was happy with his care and support and did not want any changes made and the review should now be complete.
30. In early March 2023 the Council sent Mr X its final response. It said the Council addressed Mr X's MCA concerns in a letter it sent to him in late January 2023. The Council said it had nothing to add and Mr X’s complaint would not be considered further. The Council gave Mr X our details.
31. Mr X remained unhappy and complained to us.

Enquiries

32. In response to my enquiries the Council said it stopped Mr Y’s direct payment for three reasons:
• there was no valid direct payment agreement;
• it was not possible to establish whether Mr Y was able to consent to the direct payment arrangements because a MCA could not be completed; and
• it was not possible to review Mr Y’s needs to identify if the direct payment was suitable.
33. The Council will contact Mr X and Mr Y to further attempt to conclude the review it started in July 2023 which said Mr Y needed 11 hours support each week and to carry out a MCA. It will reinstate the direct payment and backdate payments to ensure Mr Y’s care needs are met in the meantime.

My findings

Direct Payment

34. In 2018 the Council and Mr X signed a direct payment agreement, Mr X was the nominated recipient of the payment on behalf of Mr Y. The agreement said Mr Y had capacity in which case Mr Y should have signed the form and completed a form nominating Mr X to receive the direct payment on his behalf. In May 2022 the Council accepted the direct payment agreement had been wrongly filled in with Mr X wrongly shown as the recipient rather than the nominated person. The Council accepts it made a mistake and was at fault. The Council should have realised its mistake earlier.
35. In May 2022 the Council realised its error and concluded a MCA was needed so it could complete a new direct payment agreement. Between May and December 2022 the Council sought to review Mr Y's care needs and to establish Mr Y's capacity. However, the Council was only able to speak to Mr Y once on a short telephone call. It therefore stopped the direct payments on 21 December 2022. As no valid direct payment agreement was in place and it had not been able to satisfy itself Mr Y had capacity to agree to direct payments, the Council was not at fault for cancelling the direct payment. However, it should have given Mr X four weeks notice and it only gave him 15 days notice. This was 13 days less notice than in the direct payment conditions and was fault. This caused Mr X distress and uncertainty.

Care and support needs

36. When the Council stopped the direct payment at the end of December 2022 it did not review Y’s care needs or offer an alternative such as a commissioned care package instead of the direct payment. It therefore failed to satisfy itself that Mr Y’s eligible needs were being met. The Council accepts this and this was fault.
37. The Council was at further fault because it did not annually review Y’s care and support needs as set out in the Care Act 2014. Following the care and support needs assessment in 2018 the Council did not carry out a review until July 2023 and this review is still not finished.
38. However, the delay in the review was partly due to Mr X not agreeing to a meeting and not agreeing to the Council conducting a MCA. Mr Y may not have accepted an alternative commissioned care package and Mr Y did continue to receive support once the direct payment was stopped through other means so there was no injustice to Mr Y. However this leaves uncertainty over whether Mr Y’s needs have changed and whether a direct payment is the most suitable way of meeting his care needs.
39. The Council will contact Mr X and Mr Y to further attempt to conclude the review it started in July 2023 and to carry out a MCA. It will reinstate the direct payment and backdate payments to ensure Mr Y’s care needs are met in the meantime. This is appropriate.

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Agreed action

40. Within one month of the final decision the Council will apologise and pay Mr X £100 for the distress and uncertainty caused by the Council stopping the direct payment before the four week notice period.
41. Within one month of the final decision the Council will:
• reinstate Mr Y’s direct payments and back date the missed direct payments to 21 December 2022; and
• complete Mr Y’s review and MCA; and
42. It will also explain to Mr X and Mr Y in writing the consequences of it not being able to complete the review.
43. Within one month of the final decision the Council will remind relevant staff to ensure care and support plan reviews are carried out annually.

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Final decision

44. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice and prevent recurrence of the faults.

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Investigator's decision on behalf of the Ombudsman