Summary: Ms C complained about the way the Council treated her as her sister’s carer, since her sister moved in with her. There is no fault in the Council’s actions.

The complaint

1. Ms C complains about the Council’s treatment of her as her sister (Ms D)’s carer, since Ms D moved into her house at the end of October 2022. She says the Council -

• excluded her from her sister’s care;
• failed to pay her for extra hours of caring for her sister;
• terminated her carer’s contract, by changing her status from a paid carer to an informal carer;
• included her details in her sister’s care plans as a contingency plan without Ms C’s knowledge and permission;
• The council failed to change Ms D’s social worker, although Ms C had said her sister refused to see the social worker.

Back to top

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. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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)

Back to top

What I have and have not investigated

5. Ms C says some issues she is complaining of have been continuing for several years. I have limited my investigation to that which happened up to twelve months before she contacted this office. Anything which happened before this is out of time. I have not seen any good reason to go further than this as I am satisfied the main issues complained of fall within this timescale.

Back to top

How I considered this complaint

6. I have considered the information provided by Ms C and the Council, Ms C’s employment contract and the relevant law, guidance and policies.
7. Ms C and the Council have had the opportunity to provide their comments before I made this final decision.

Back to top

Law, Guidance, and Policies

Social care assessments

8. When exercising their social care functions councils must follow the Care and Support Statutory guidance (Statutory Guidance) issued by the Department of Health and Social Care, which is based on the Care Act 2014, unless they have very good reasons not to.
9. Councils must 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 well-being 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. (Care Act 2014 S.9 and 10)
10. 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 and Support statutory guidance paragraph 6.24)
11. Councils must meet the adult’s eligible care needs after determining them through a care needs assessment if:
• The adult is ordinarily resident in the council’s area;
• The adult’s accrued costs do not exceed the cap on care costs; and
• There is no charge for meeting needs or one of the specified conditions apply.

(The Care Act 2014 Section 18 (1))

12. When meeting needs the local authority should ensure the process is person-centred and involving and taking all reasonable steps to agree the plan with the person. The local authority must take into consideration the individual’s preference. (Care and Support Statutory Guidance paragraph 10.19 and 10.20)
13. Councils have a legal responsibility to provide a care and support plan. The care and support plan should consider what 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. (Care Act 2014 Schedule 24)

Carers

14. If a carer refuses to have an assessment a council is not required to carry it out. If a carer who refused an assessment asks for it at some later stage, a council must do so. (Care and Support Statutory Guidance paragraphs 6.20 and 6.21)
15. Councils should act promptly to meet people’s needs. The lack of a carer’s assessment must not be a barrier to action. (Care and Support Statutory Guidance paragraph 5.11)

Back to top

What I found

What happened

16. Ms D needs additional care and support. She lived with her mother who was her full-time carer, until October 2022.
17. While Ms D lived with her mother, her sister, Ms C, was employed by her mother as a direct payment personal assistant. Her mother received direct payments from the Council. She used this to employ Ms C to provide breaks for her by caring for Ms D some of the time.
18. In October, when their mother was taken into hospital, Ms D moved in with Ms C on a full-time basis.
19. The Council assessed Ms D’s needs in October 2022, and after she moved in with her sister, tried to arrange a reassessment of Ms D’s needs as well as Ms C and her partner’s needs as carers.
20. The Council considered Ms D’s ability to express her opinion on where she should live and decided that a best interests meeting was needed to make this decision.
21. In May 2023, at the best interests meeting, everyone present agreed that Ms D should remain at Ms C’s home.
22. It took several months to carry out a reassessment of Ms D’s needs, as the dates the Council proposed in July and August were declined by Ms C.
23. In September 2023, the Council carried out a reassessment of Ms D’s needs, but Ms C and her partner declined the Council’s offers to assess their needs as carers.
24. Following the reassessment, the Council gave Ms C 28 days’ notice as a direct payment personal assistant.

Analysis and Findings

The Council excluded Ms C from her sister’s care.

25. I have considered the Council’s communications with Ms C since October 2022. It is clear the Council was in touch with Ms C as the primary contact for all matters about Ms D. The Council was in contact with Ms C at least once a month since October 2022, and responded to all Ms C’s contact.
26. On the basis of all the available evidence, I cannot see the Council sought to exclude Ms C from her sister’s care.
27. I note that Ms C asked the Council to provide her with copies of the Council’s care plans before Ms D moved in with her. The Council explained it could not share personal information about a person’s care without their agreement. Before Ms D moved in with her sister, the Council’s communications would have been addressed to their mother, as she was the primary carer at that time. It also assured Ms C that she would be a part of and receive copies of care plans it produced while Ms D was in her care.
28. I have seen the Council invited Ms C to all its meetings with Ms D including the best interests meeting and the reassessment after her sister moved in with her. Although Ms C did not attend the best interests meeting, the Council sent the minutes to her.
29. The Council has a duty to protect Ms D’s privacy under data laws, and does not have to share previous care plans with Ms C. While I appreciate her comments that this has made her feel excluded, the Council is not at fault here.

The Council failed to pay Ms C for extra hours of caring for her sister.

30. Ms C was paid as a direct payment personal assistant, for about 13 hours a week while her sister lived with their mother. She says the Council should have increased the payments as she provides more hours of care since her sister moved in with her.
31. Ms C’s contract of employment does not say she would be entitled to more pay for extra hours’ care.
32. When Ms C asked for overtime payments, the Council explained it would have to reassess Ms D’s needs before considering this. It also explained that it did not pay overtime retrospectively.
33. Once the reassessment took place, the Council gave Ms C notice as a direct payment personal assistant and explained its reasons for this.
34. Although there were several months before the Council reassessed Ms D’s needs, the delays were not caused by the Council. Further, if the reassessment had taken place sooner, Ms C’s direct payments would have ended sooner as the reasons her employment was terminated existed since October 2022.
35. I understand Ms C’s expectation that she should receive a higher sum for providing more hours of care. However, the Council explained her role was to provide their mother with breaks from caring full time for Ms D. Once Ms D moved out of her mother’s home, the role no longer existed. There is therefore no fault in the way the Council has made its decision about overtime payments.

The Council ended Ms C’s carer’s contract, by changing her status from a paid carer to an informal carer.

36. Ms C disagrees with the Council’s decision to end her contract.
37. The contract does not class Ms C as a paid carer, but a direct payment personal assistant. The contract’s terms mean Ms C was entitled to 12 weeks’ notice if the Council wish to end the contract.
38. The Council considered Ms C’s position following as reassessment of Ms D’s needs.
39. The Council first gave 28 days’ notice following the reassessment of Ms D’s care. It then corrected itself, and extended the period explaining it had not realised she was entitled to 12 weeks’ notice.
40. The Council’s letter giving notice explained the basis on which it was ending the contract.
41. The Council is entitled to reconsider direct payments and has done so alongside an assessment of needs. It has explained its reasons and given the notice required by Ms C’s contract. There is no fault in the Council’s decision making here.

The Council included Ms C’s details in her sister’s care plans as a contingency plan without Ms C’s knowledge and permission.

42. Ms D’s support plan which was in place when she moved in with Ms C, said if Ms D could not continue living with her mother, she would move in with her sister.
43. The Council carried out assessments before deciding a best interests meeting was needed to decide where Ms D should live. At the best interests meeting, everyone there, including Ms C’s partner, agreed Ms D should stay with Ms C. It is clear the Council sought Ms C’s opinion on this, while keeping Ms D’s voice the central and most important factor.
44. The contingency plan was agreed with the people involved in Ms D’s care when it was made. However, I am satisfied the Council has not relied on a support plan created before the circumstances changed, but considered all the relevant information in deciding where Ms D should stay.
45. Further, the contingency plan has not had any adverse impact. Ms C wanted her sister to move in with her when her mother went to hospital, and even once she had returned to her home.
46. In the absence of any information which would make it unreasonable for the Council to have included the contingency plan, I cannot see there is any fault in doing so.

The council failed to change Ms D’s social worker, although Ms C had said her sister refused to see the social worker.

47. I have seen that Ms C told the Council Ms D had declined a meeting with her social worker when she was trying to arrange an assessment. This does not amount to a reason to change the social worker.
48. Ms C’s partner wrote to the Council raising ‘safeguarding concerns’ a month before the best interests meeting.
49. The Council explained the social worker who had been working with Ms D for several years would remain in place until the best interests meeting had taken place. It said the meeting would allow everyone to make share their opinions and reach a conclusion.
50. Following the best interests meeting, the Council wrote to Ms C and her partner to share the minutes. The letter says that at the meeting, Ms C’s partner had asked for a change of social worker. The letter confirmed that after looking at that request, the change of social worker had been agreed.
51. I am satisfied the Council considered the request to change Ms D’s social worker properly. The request was considered alongside a wider consideration of her needs and following an opportunity for everyone involved to voice their opinions.
52. There is no fault in the way the Council has dealt with this request.

Back to top

Final decision

53. There is no fault in the Council’s decision making here.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman