Summary: Mr X complains about the Council’s handling of his brother’s (Mr Y) care and support package. The Council did not promptly share the outcome of its review with Mr Y’s family or warn them it would be recouping funds from Mr Y’s direct payment account. This caused distress and uncertainty to Mr Y’s family, for which the Council should apologise. The Council should also issue reminders to relevant staff to help avoid reoccurrence of the faults in this case. There was no evidence of procedural fault Council’s reviews of Mr Y’s care and support package.

The complaint

1. Mr X complains about the Council’s handling of his brother, Mr Y’s care and support package following a review in June 2023. He believes the Council:

• made unreasonable and unjustified reductions in the hours of support his brother receives;
• removed significant funds from Mr Y’s direct payment account without warning, which left Mr Y’s family with outstanding invoices but no funds with which the pay these;
• took too long to review its decision following his appeal against the reduction in Mr Y’s care package; and,
• removed all respite funding available to Mr Y’s main carer, his father (Mr Z) without any discussion or warning.

2. Mr X says the Council’s action has added further strain and pressure on his family at a an already distressing time as his wife (Mrs X) became very ill and then passed away in November 2023.

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The Ombudsman’s role and powers

3. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. I have spoken to Mr X and considered the information he has provided in support of his concerns.
8. I have considered the information the Council has provided in response to my enquiries.
9. Mr 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

Statutory guidance

10. 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.
11. 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.
12. 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.
13. 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.
  (Care and Support Statutory Guidance 2014)

14. Direct payments are monetary payments made to individuals who ask for them to meet some or all their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. Councils 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.
15. 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. They should also follow the Regulations.
16. Chapter 13 of the Statutory Guidance explains when revising the care and support plan councils must involve the person, their carer and any other persons the adult may want involved, and their advocate where the person qualifies for one. Councils must take all reasonable steps to agree the revision. The revision should wherever possible follow the process used in the assessment and care planning stages.

Council’s Direct Payment Agreement

17. The Council’s Direct Payment Agreement signed by Mr Z as Mr Y’s main carer in 2007 states the Council may adjust future payments of direct payment in order to recover any overpayment arising from a previous month/quarter(s).
18. The Agreement also says the Council will give the Service User one weeks’ notice before decreasing the amount of direct payment, which may result in the Council clawing back money already paid.

What happened

19. This timeline of key events does not include everything that happened.
20. Mr Y is an adult with several health conditions, including learning difficulties and epilepsy. Mr Y is unable to meet his own needs without support and help from others. Mr Y’s main carer is his father, Mr Z. Mr Y and Mr Z also receive support from Mr X and his wife, Mrs X. Mr Y has been receiving direct payments to enable Mr Z to purchase the care he needs since at least 2007.
21. In late June 2023, the Council visited Mr Y to complete a review of his care and support package. Mr Z, Mr and Mrs X were also present for the Council’s review. The Council found Mr Y had never attended one of the day centres for which he received funding. The Council discussed this with Mr Y’s family and proposed its removal from Mr Y’s care package, in addition to removing funding for transport to the day centre.
22. The Council’s records for the review also say it would increase funding for Mr Y’s attendance at another day centre. At the time of the review, Mr Y was attending that day centre twice a week. The Council proposed Mr Y’s attendance be increased to five days a week to help meet Mr Y’s needs and provide respite for Mr Z.
23. The Council appears to have then discovered a substantial amount of funds had accumulated in Mr Y’s direct payment account. Some time in October 2023, the Council removed these funds from Mr Y’s direct payment account.
24. In November 2023, Mr X contacted the Council to raise concerns about it removing approximately £11,500 worth of funds from Mr Y’s direct payment account without warning. Mr X explained that Mr Y needed the funds returned urgently to cover tax and pension payments for his Personal Assistants. Mr X also informed the Council that his wife, who had largely dealt with administering Mr Y’s direct payments had been very ill and had recently died.
25. The Council responded to Mr X’s concerns and confirmed it had returned some funds to Mr Y’s account so the tax bill could be paid. The Council also confirmed it had increased Mr Y’s care package from 23 hours per week to 30 hours to account for Mrs X passing away and the impact of this on the family. The Council asked Mr X to notify it of any other invoices that became payable, so it could ensure Mr Y’s account had sufficient funds to cover these.
26. In May 2024, the Council took over management of Mr Y’s direct payment account from his family.

Was there fault causing injustice?

Unjustified reduction in hours of support

27. Mr X complains the Council reduced Mr Y’s package of care, despite his unchanged needs. Mr X believes the Council failed to take account of advice from medical professionals about the level of support Mr Y continues to need.
28. The Council’s reasons for reducing Mr Y’s care package do not appear to be based on a belief that his needs have changed. Rather, the Council appears to have reduced the hours of support Mr Y receives each week when it discovered some of the support it funded was not and never had been accessed. The evidence I have seen shows the Council’s reduction in support hours appear reasonable and procedurally sound. I therefore have no grounds to question the merits of the Council’s decision.
29. The Council was at fault for failing to share a copy of its proposed revisions to Mr Y’s package of care and support following its review in June 2023. The Council has not provided evidence which demonstrates it sent Mr Y’s family information about the reduction in the hours of weekly care and support.
30. Mr Y’s family was denied the opportunity to consider and/or challenge any proposed changes before these were implemented. The Council failed to take reasonable steps to agree the revisions in Mr Y’s care package which appears contrary to statutory guidance. This caused avoidable distress to Mr Y’s family which the Council should remedy. The reduction in support hours appears to have had a minimal impact on Mr Y as it involved removal of funds for a service he had never used.

Removal of funds from Mr Y’s direct payment account

31. The Council’s case records do not show it discussed the large accumulation of funds in Mr Y’s direct payment account with his family during the care plan review in June 2023. There is nothing to show the Council alerted Mr Y’s family it would be recouping the excess funds before it took this action.
32. The Council has acted contrary to its own direct payment agreement in Mr Y’s case. This states it should have given Mr Y (or his carer) a weeks’ notice before decreasing the amount of direct payment.
33. Removal of funds from Mr Y’s direct payment account without warning caused his family significant distress and uncertainty. This happened at a time when Mr Y and his family were already experiencing difficulties due to Mrs X’s illness and then passing away. Mr Z and Mr X were caused worry about paying outstanding invoices for Mr Y, which was unnecessary and avoidable.
34. The Council was entitled to recover any excess funds from Mr Y’s direct payment account, however it should have warned his family before taking this action. It was also entitled to regain management of Mr Y’s direct payment account, but it might have been helpful for Mr Y’s family to understand the Council’s reasons for doing this.

Delay in reviewing decision following appeal

35. Based on the evidence the Council provided, Mr X raised concerns about the proposed reduction in Mr Y’s hours of care soon after the review in June 2023. The Council does not however appear to have recorded Mr X’s concerns as a formal appeal. This is possibly because the Council did not share a copy of its review with Mr Y’s family as it should.
36. Mr X appears to have raised concerns about his brother’s reduced care package again shortly after Mrs X passed away in November 2023. This prompted the Council increasing Mr Y’s hours of care from 23 to 30 hours per week.
37. The Council then arranged to meet with Mr Y and his family again in late January 2024. It shared the care package reassessment with Mr Y’s family in late March 2024. The Council decided Mr Y needed funding for 27.5 hours of support per week and that it would manage his direct payment account going forward.
38. When Mr X has raised concerns about the amount of support Mr Y received, the Council acted promptly to review his package of care. There was no evidence of fault by the Council in respect of this element of Mr X’s complaint.

Removal of respite funding for Mr Z

39. The Council’s records show Mr Z refused a carer’s assessment. Instead, the Council appears to provide respite, to Mr Z as Mr Y’s main carer, through Mr Y’s package of care. Until June 2023, the Council provided Mr Y’s family with funding for 40 nights of respite away from home per year. This funding was intended to enable Mr Z to visit family outside the Council’s area for a break from his caring responsibilities.
40. During the June 2023 review, the Council noted Mr Z had not used the respite funding due to his own ill health and advanced age. The Council decided to remove this element of funding from Mr Y’s care package. It instead offered to fund and support Mr Z with any future respite on an ad hoc basis when the family requested it.
41. There is no evidence of fault in respect of the Council’s decision to remove respite funding in Mr Y’s case. The Council has not withdrawn respite support entirely. Instead, it has said it will provide this support to Mr Z as and when he needs it which appears reasonable.

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Agreed action

42. Withing one month of my final decision, the Council has agreed to make a written apology to Mr Y’s family for the distress and uncertainty caused by the Council’s failure to share the outcome of its review of Mr Y’s care package in June 2023 and removing funds from Mr Y’s direct payment account without warning.
43. Within three months of my final decision the Council has agreed to issue a reminder to all relevant staff about:

• the importance of promptly sharing details of care package reviews with service users and their carers/family; and,
• ensuring service users and their carers/family are given at least one weeks’ notice prior to the Council recouping funds from their direct payment account.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation and found fault with the way in which the Council communicated with Mr Y’s family, which caused injustice. The Council has agreed to take the action I have recommended to remedy the injustice caused to the complainant and their family.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman