Summary: Miss X complained the Council left her without a Direct Payment or a support package for a long period of time. We have found fault with the Council who have agreed to remedy Miss X’s injustice.

The complaint

1. Miss X complained the Council did not meet the requirements of her care and support plan. She said the Council stopped her direct payments and did not allocate support through a contracted provider.

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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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What I have and have not investigated

4. I have not investigated the reasons behind the Council’s decision to stop Miss X’s Direct Payments in 2021. This was nearly 2 years ago and is therefore out of time. This decision however affected the Council’s more recent actions in relation to the delivery of a managed support package, so I do refer to it in my statement.
5. I have investigated the Council’s actions between January 2022 and when Miss X brought the complaint to us. Although this is out of time, I have exercised discretion as the matter has been ongoing since January 2022.

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How I considered this complaint

6. I considered Miss X’s complaint and spoke to her about it.
7. I also considered the Council’s response to Miss X and to my enquiries.
8. Miss 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

Legislation

Care and Support Plan

9. After an assessment of need and eligibility, if an individual is eligible to receive services from the council, it must provide that individual with a care and support plan to show how their needs will be met. Effective care planning is essential in ensuring that individuals have their needs met. It is also essential that care providers follow those plans.

Direct Payment (DP)

10. Direct payments:
• are a means of paying some, or all, of the personal budget to the person to arrange and pay for their own care;
• are intended to provide independence, choice and control over the way needs are met and outcomes achieved;
• cannot currently be used for long term residential care.
11. The local authority must be satisfied the direct payment is used to meet the needs in the Plan and therefore should have monitoring systems in place. Local authorities must review within the initial six months and then annually.
12. Where a person uses a direct payment to employ a personal assistant, they become an employer with all the responsibility for PAYE, holiday pay, sick pay, redundancy, recruitment etc. A support agency should be available to help with this.
13. Direct payments can cause confusion and misunderstanding about the council’s role if the process is not clearly explained. Direct payments place obligations on the individual which can be the cause of dispute if not properly understood.

What happened

Background

14. In July 2021, the Council assigned Miss X a social worker. In August, the Council assessed her needs and in September, it issued her Care and Support Plan. The Plan identified that Miss X would prefer to employ her own personal assistant (PA) so the Council agreed to make a Direct Payment (DP) to fund 8 hours per week of PA time.

Misuse of Direct Payment

15. In December 2021, the Council discussed with Miss X and her PA what tasks were appropriate for the PA. The Council raised concerns that Miss X had possibly been misusing her DP. Miss X’s PA resigned. The Council investigated and concluded that Miss X had been asking her PA to carry out tasks not in her Care and Support Plan. The Council said this could put Miss X at risk of legal proceedings regarding her responsibilities as an employer of a PA. The Council ended the DP on 31 December 2021.

Care and support providers

16. In January 2022, the Council identified a managed support package for Miss X. In addition, it made referrals to identify childcare support for Miss X.
17. Between January and July 2022, several providers accepted Miss X’s care package, but then declined it. The general feedback suggested they were unhappy with Miss X’s requested tasks and were unable to agree dates and times to visit Miss X.

New caseworker

18. In July 2022, the Council appointed a new caseworker for Miss X who reviewed Miss X’s care and support needs assessment. Several more providers accepted then declined Miss X’s package between September 2022 and July 2023.
19. The Council reviewed Miss X’s Care and Support Plan again in May 2023. It carried out an occupational therapy assessment and completed a new care and support package for 12 hours support. Another provider accepted then declined the package.

Reinstatement of DP

20. The Council visited Miss X where she confirmed she would prefer the Council to reinstate Direct Payments rather than continuing to try and find a provider. The Council carried out a financial assessment for Miss X and agreed a managed Direct Payment in September 2023.

My findings

21. The Council was at fault for leaving Miss X without a Direct Payment or a support package for 21 months.
22. The Council was quick to react when it considered that Miss X was misusing the Direct Payment. However, it did not review her Care and Support Plan to identify what Miss X really needed before sourcing a managed support package.
23. The Council reviewed Miss X’s needs assessment twice between July 2022 and May 2023 however, care providers continued to decline the package. This should have prompted the Council to look at possible alternatives, like the managed Direct Payment.
24. It took until July 2023 for a managed Direct Payment to be considered as an option, after Miss X had complained to the Council about the lack of support.
25. In its response to my enquiries, the Council acknowledged the length of time Miss X was without a support package and offered £500 as a gesture of goodwill.
26. I recognise the distress the lack of support caused Miss X for a long period of time. In line with our guidance on remedies, I agree with the Council’s offer of £500. This is the upper limit of what we would recommend to remedy the distress caused by the fault of the Council.

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Agreed action

27. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Miss X for not providing her with the support in her Care and Support Plan for 21 months.
2. Pay Miss X £500 in recognition of the lack of support.
3. Confirm that the managed Direct Payment has been implemented and Miss X is receiving the support required in her Care and Support Plan.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I have found fault with the Council for failing to meet Miss X’s support needs for a prolonged period of time.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman