Summary: The Council delayed in responding to Mrs X’s request for an increase in care hours, unfairly recouped direct payment monies, and failed to investigate issues relating to the amount and timing of direct payments.

The complaint

1. Mrs X complains the Council failed to review her care needs and put extra support in place following her discharge from hospital.
2. She also complains the Council removed a significant amount of funds from her direct payment account, and there were issues with the amount and timings of direct payments.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have:
• considered the complaint and discussed it with Mrs X;
• considered the correspondence between Mrs X and the Council, including the Council’s response to his complaint;
• taken account of relevant legislation;
• offered Mrs X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

6. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.
7. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. A personal budget sets out the cost of meeting eligible needs, the amount a person must contribute to that cost and the amount the council must contribute.
8. A personal budget can be administered as direct payments to enable people to commission their own care and support. The council pays the direct payment into a bank account. The service user is expected to pay their contribution into the same account to enable auditing.
9. The council must be satisfied that the person is able to manage the direct payment, with support if necessary. Councils therefore have contracts with organisations that provide support and advice to direct payment holders.
10. A person must spend direct payments on eligible needs set out in their care plan.
11. The Care and Support Statutory guidance states ‘The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.’ (Care and Support Statutory Guidance 2014, 12).

Background

12. Mrs X has physical and mental health issues. She has eligible care needs and receives a direct payment to purchase support services.
13. Mrs X is also a carer for her husband and her two school-age children. Mrs X’s husband and one of the children have assessed eligible needs and both receive services in their own right.
14. I have had sight of Mrs X’s needs assessment completed in May 2022. The document sets out the difficulties Mrs X experiences, both personally and as a carer for her husband and children. The assessor reported Mrs X to be vulnerable and under significant pressure, that she not coping looking after herself and struggling to manage the needs of her husband and child. The assessor reported Mrs X to be “…struggling with day to day household responsibilities, such as cleaning and tidying, grocery shopping and energy driving. Her family are reliant on her to do these tasks”.
15. The assessor concluded Mrs X to be at risk of physical exhaustion, deterioration in her mental health, and of carer breakdown. The assessor reported that a “…package of care for support with all house keeping, organising family life and correspondence needs to be put in place… with support to keep the house tidy, clean and day to day organisation, correspondence, driving to build physical and emotional strength while she focuses on her mental health recovery”.
16. The records show the Council allocated Mrs X 20 hours support per week and received a direct payment of £135.00 per week to employ a personal assistant.

What happened

17. Mrs X contacted the Council in February 2023 to say her personal assistant had given notice to leave the role. She said this was because of the low hourly rate and she was unable to source a replacement because of this issue. The personal assistant left in the first week of March 2023. Mrs X was without a personal assistant for two weeks.
18. A social worker visited Mrs X on 3 March 2023 to review the direct payments.
19. The social worker sent a request to a senior officer asking if Mrs X could use her surplus direct payment funds to increase the hourly rate for a personal assistant. On 7 March 2023, a social worker sent Mrs X an email “…to confirm that you can use the DP surplus funds to employ a PA at the rate of £15 /hour. However, this is only time limited until 31/03/2023”.
20. The Council says Mrs X was offered the option of having her support provided by a care agency, and that she declined this offer. Mrs X refutes this, saying such an offer was never made.
21. Mrs X recruited a cleaner on an informal basis on 14 March 2023, however she was unable to undertake other tasks relating to parenting. Mrs X paid the cleaner from her direct payments.
22. Mrs X’s allocated social worker left the Council. Mrs X was not informed, and she continued sending emails. She was made aware that the social worker had left after a conversation with another officer from social services. Mrs X expressed concern about the lack of communication, and her anxiety that the temporary increase in the hourly rate may expire.
23. An entry in the records made by the social services duty team recorded the temporary increase was due to expire and that a decision needed to be made about whether it should continue. The officer recorded Mrs X ‘s concern about losing her personal assistant should the hourly rate decrease.
24. In April 2023, Mrs X was admitted to hospital suffering from breathing issues, caused by an ongoing medical condition. The condition is exacerbated by dust. Mrs X believed she needed more support hours to manage household duties. Before discharge the hospital contacted social services. Mrs X was allocated a new social worker on 19 April 2023. The social worker contacted Mrs X whilst she was in hospital and arranged to visit her at home on 2 May 2023. The original direct payment was still active, but a personal assistant needed to be recruited on a formal basis.
25. The social worker noted Mrs X had been using the excess money in her direct payment account to fund 26 hours of support per week which had not yet been agreed by the commissioning panel.
26. Mrs X says the Council delayed considering her request for increased support and that she lost out on additional support hours from which she would have benefited.
27. In May 2023, Mrs X told the Council she had identified a potential personal assistant that could assist with patenting duties of transporting her child to activities. Following relevant checks, the applicant was unsuccessful. Because Mrs X was without this support, she used some of the unspent direct payments on taxis. Mrs X says the Council was aware of this. The records confirm the activities for the child to be an eligible need, and that Mrs X was without support to transport the child. The Council refutes Mrs X’s claim that it was aware direct payments were being used to fund transport for her child.
28. The records show some confusion between adult and children’s services as to which service should fund the cost of transport.
29. In June 2023, the Council’s finance team wrote to Mrs X to say it was recouping £1,954.49 unspent direct payment from the direct payment account A contingency amount of £548.26 was left in the account. Mrs X says this left her without funds for taxis to transport her child to activities. The records show the Council returned £800 of the reclaimed monies back to Mrs X on 17 July 2023, because she had “invoices to pay”.
30. In July 2023, Mrs X told the social worker she was struggling to recruit a formal personal assistant, and she asked if her cleaner could be appointed as a formal personal assistant. The Council agreed to this, on the basis, the relevant checks were completed. The application was successful, and the individual was able to assist with transporting Mrs X child to activities from July 2023 onwards.
31. On 15 September 2023, the social worker sent Mrs X an email saying an increase in support hours had been agreed, but at a lower allocation than she had requested, 23.5 hours per week had been allocated. Mrs X replied asking for a written explanation as to why her request for 26.5 hours had been refused. The social worker replied saying she had requested an explanation from a senior manager.
32. The records show Mrs X reported she had insufficient funds in her direct payment account to cover the payments made to her personal assistant. She says the shortfall occurred after the Council recouped unspent direct payment monies. The Council says the shortfall was a result of unauthorised spends on taxis, which mounted up and caused a consistent shortfall. Mrs X then used monies from the next month’s direct payment to pay her personal assistant and she continued to purchase more hours of support than her budget allowed which resulted in her direct payment account running short of funds.
33. The records show Mrs X contacted the Council numerous times in September 2023 to report delays in receiving her direct payments, and that she was unable to pay her personal assistant on time. She said this was causing her, and her personal assistant considerable stress. Mrs X was concerned she would lose her personal assistant. The Council acknowledges that most of the records refer to Mrs X complaining about late payments, but it refers to a record of 14 September 2023, which records Mrs X’s telephone call saying she did not have enough money in her direct payment account, not that the payment was late, which it says is a more accurate reflection of the issues Mrs X was experiencing.
34. The social worker discussed the payment issues with a team manager and the Council’s finance team. Despite the social worker’s efforts, the issue continued. The records I have seen do not explain the delay or any tangible efforts to resolve it.
35. Mrs X submitted a formal complaint to the Council in September 2023, about the delay in the consideration and agreement of the requested increased care hours, the ongoing delays in receiving direct payments into her direct payment account, the removal of funds from the direct payment account, and that the funds be replaced. She also complained she had not been informed when a previous social worker left the Council.
36. The Council responded to the complaint in writing on 6 November 2023. The author of the letter acknowledged “…a delay was in the increased hours going to Consistent Practice Meeting but the original hours on your support plan remained”. She (author) also apologised that Mrs X had not been informed when her previous social worker left the Council. In respect of the recovered direct payment, the author explained this had been done following a reconciliation of the direct payment account and that Mrs X had been notified in writing in June 2023, and said the “…original Direct Payment money of 20 hours went into the account as normal. Direct payments are paid in advance…”
37. The author explained the payment process, that the finance team received authorisation on 15 September 2023, then it needed to tell the care company and “Payment runs are always on a Tuesday and so the card company were alerted on 19th September. The card company paid into the account on 25th September 2023. This is I am informed, how long it takes and is the only way it can be done. Once the Surrey Mental Health Finance team have alerted the card company it is out of their hands. Whilst the card companies time frames are not within Surrey County Councils control after receiving your complaint, I have highlighted your comments and views to the appropriate people the Mental Health finance manager, and they will alert our Area Finance Director about this and they can discuss at one of the interface meetings they have with pre-paid financial services”.
38. The author went on to say she would “..look into increasing the support hours to 26.5 hours”. She said direct payment monies can only be used for what is detailed in the support plan and cannot be deviated from. She said the removed surplus funds would not be replaced.
39. The Council agreed to increase Mrs X’s support hours to 26.5 on 10 November 2023, five months after her initial request. The social worker telephoned Mrs X on 20 November 2023 to inform her. During the discussion Mrs X told the social worker there were no funds in her direct payment account to cover her existing support hours, and this had happened every month since the Council had reclaimed unspent direct payments. The social worker told Mrs X she would contact the Council’s finance team to resolve the issue.
40. I have had sight of a care and support plan completed by the Council in November 2023. The narrative records Mrs X’s personal and caring situation to be largely unchanged from the assessment completed in May 2022, and she remained vulnerable and at risk. The support plan records Mrs X to eligible for 26.5 care hours per week and an increased direct payment of £397.30 per week. The start date is recorded as 10 November 2023.
41. An entry in the Council’s records on 8 December 2023, shows “…issues related to the direct payment being clarified…” were discussed during staff supervision.
42. The social worker wrote to Mrs X in March 2024 to arrange a review of her care needs. It is unclear if the review has taken place.

Analysis

43. It is not the Ombudsman’s role to decide what services a person is entitled to receive, that is the Council’s role. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly and responded accordingly.
44. In this case, there is evidence of fault by the Council.
45. It is clear Mrs X is faced with particularly challenging circumstances, which the Council is aware of. Mrs X is known to be vulnerable and in need of considerable support, both in her own right, and in her role as a carer to her husband, and parent to her children. Any additional or unnecessary stress has a significant impact on Mrs X.
46. The Council was aware of the difficulty in recruiting personal assistants in the area Mrs X lived because of the low hourly rate. Because of this, Mrs X was unable to source a formal personal assistant and was without any support for two weeks. The accumulation of dust within the family home resulted in Mrs X experiencing a deterioration in her health and she was admitted to hospital.
47. When Mrs X did secure support with domestic chores, this was on an informal basis and for some time, Mrs X was without support with transporting her child to activities, which the Council was aware of. It should have amended Mrs X’s support plan to reflect this and formalised a contingency allowing Mrs X an allowance for taxis.
48. Although the Council agreed a temporary increase in the hourly rate, the increase was only temporary. It is difficult to understand the basis of a temporary increase. Whilst it may have attracted applicants to the role, any subsequent decrease would have only served to cause disruption, as a personal assistant would likely leave the role. Mrs X was aware the increase was temporary, and this caused her worry and uncertainty, which had a significant impact on her mental health.
49. To compound matters, Mrs X’s social worker left the Council during the period the temporary increase was in place. Mrs X was not informed. This is poor practice added to Mrs X’s stress. Whilst the Council has acknowledged this, and apologised, it failed to acknowledge the impact on Mrs X.
50. The period when Mrs X was without a personal assistant resulted in direct payments accruing in the account, which the Council later recouped. Whilst the Council is entitled to recoup unspent payments, in this case, it seems somewhat unfair. The payments were unspent as a direct consequence of the Council’s own policy. Because of this Mrs X missed out on support she was entitled to, and which had a detrimental impact on her health.
51. The Council could and should have used its discretion to allow Mrs X to keep the payments to purchase additional support when a replacement personal assistant had been recruited.
52. The issue with direct payments reaching Mrs X’s account in time to pay her personal assistant appeared to begin after the Council recouped the unspent direct payments. I note the Council later returned £800 of the reclaimed funds to enable Mrs X to pay outstanding invoices.
53. The payments were handled by a third-party card company. The Council told Mrs X it had no control over the way the card company processed the payments. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them so it cannot say the actions of the card company were out of its control. The Council is responsible for ensuring people receive direct payments on time, so personal assistants can be paid on time.
54. There has also been ongoing confusion about the amount of direct payment Mrs X receives each month. Mrs X says the amount does not cover the amount due to her personal assistant. The Council was aware of this and failed to properly investigate and resolve this until very recently. During the preparation of this statement, the Council confirmed the shortfall had been addressed “…and a backdated payment added of £360. This should address the consistent shortfall and it was in relation to the increase in hours. The increase to 26 hours was agreed in September 2023 but finance did not process the increase until Nov 23. We have apologised for this mistake. A one-off payment which of £45 per week from 18/9/2023 to 9/11/2023 totalling £360”.
55. The Council sent a further email to this office, confirming the final amount refunded to be £340.72, not £360. The Council should have remedied the shortfall much sooner than it did. This has caused Mrs X unnecessary anxiety and uncertainty.
56. Following Mrs X’s discharge from hospital in April 2023, the Council agreed to review her care needs. This was done in a timely manner. The assessment completed was comprehensive and completed to a high standard. I find no fault here.
57. The Council acknowledge a delay in agreeing an increase in Mrs X’s support hours and apologised. This was not sufficient. It failed to acknowledge the impact on Mrs X at a time she was under significant stress. Given the increase in hours agreed, she also missed out on the additional support during the delay.
58. The Council also failed to explain why it initially refused the full amount of additional hours Mrs X requested. It only agreed to this following Mrs X’s formal complaint.
59. It is my view that the Council’s actions and failures caused Mrs X, a vulnerable woman, significant stress, distress, which placed her and her family at risk.
60. In response to the findings set out in in the draft decision statement, the Council says the root cause of Mrs X’s complaint came up in feedback from a direct payment strategy focus group, and it has “…invested in a transformation plan to address:

• poor communication
• a need for staff development re DPs
• improved customer journeys”.

61. The Council says it is willing to learn from complaints and use the intelligence gathered to make necessary changes. The Ombudsman welcomes this approach.

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Recommended action

62. The Council should within four weeks of the final decision:

• provide Mrs X with a written apology for the failures highlighted above;
• reimburse Mrs X £1,160.63, of the recouped direct payments, (to be used at Mrs X discretion);
• provide us with evidence it has complied with the above actions.

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Final decision

63. There is evidence of fault by the Council. It delayed in responding to Mrs X’s request for an increase in care hours, unfairly recouped direct payment monies, and failed to investigate issues relating to the amount and timing of direct payments.
64. The above recommendations are a suitable way to settle the complaint.
65. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman