Summary: Mrs X complained the Council refused to give her direct payments to pay her partner to provide her social care at home. The Council was not at fault in how it decided it would not agree to the direct payments. However, the Council was at fault for delay in creating and issuing Mrs X’s care and support plan. This caused her avoidable frustration for which the Council will apologise.

The complaint

1. Mrs X complained the Council refused to give her direct payments so her partner could provide her with social care at home. Mrs X said this meant she did not receive the care she needed.

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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. 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)
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:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
6. Mrs 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

Relevant law and guidance

Care and support

7. 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. This is a needs assessment, and it decides whether the person has any ‘eligible needs’. What counts as an eligible need is set out in the law and guidance.
8. Councils 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 wellbeing and the results they want to achieve.
9. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of the person’s needs and any variation in those needs.
10. The Care Act 2014 requires councils to meet people’s eligible needs in certain circumstances and gives a power to meet eligible needs in some other situations. To meet someone’s needs, the council must provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support, what care and support may be available in the local area and what the council will arrange. 

Direct payments

11. Direct payments are monetary payments made to individuals who ask for them 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.
12. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
13. The Care and Support (Direct Payments) Regulations 2014 sets out that councils cannot give someone direct payments if they will use the funds to pay a spouse or close family member living with them. The only exception to this is when the council decides it is “necessary” to make the payments.

Reablement

14. Reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited, free of charge and aim to help a person to preserve or regain the ability to live independently, typically through a package of care delivered at home.

What happened

15. Mrs X lives at home with her partner and several other members of the family. In late August 2023, the Council completed a needs assessment for Mrs X.
16. In early January 2024, the Council issued Mrs X’s care and support plan. It noted she needed support with:
• maintaining her personal hygiene;
• being appropriately clothed;
• managing her toilet needs;
• using her home safely;
• making and eating enough food;
• keeping her home clean;
• accessing the local community; and
• maintaining relationships.
17. The care and support plan noted Mrs X wanted direct payments so she could pay her partner to provide her support. Mrs X said this would mean she could have care as and when she needed it and that it would be in line with her religion.
18. The Council decided it could meet Mrs X needs by commissioning a care provider to do three visits per day for a total of 2.25 hours. It set this out in the care and support plan, which also noted the timings of the visits could be flexible to meet Mrs X’s needs.
19. The Council wrote to Mrs X in late January to say that it would pay a qualified service to deliver her care and support and ‘reable’ her. It said this would help her in her recovery and increase her independence.
20. Mrs X responded to say:
• she did not want reablement until after some operations she was waiting for had been completed. She would accept reablement after the surgeries;
• she did not think the Council was considering her religious or cultural needs because a care package would mean she would have to remove her religious coverings in front of people when her religion prohibited it;
• she was concerned food provided by a reablement service would not meet her religious requirements;
• there was no space in the home for people to come in and provide care; and
• it would distress her adult son, Mr W, to have care workers come into the home.
21. The Council treated Mrs X’s contact as a complaint and responded in early February 2024 to say:
• it worked with care providers that could meet Mrs X’s cultural and religious requirements, including around food preparation;
• Mrs X could ask care workers to visit when family members were not at home so there would be enough space; and
• it would review Mr W’s care and support plan to see if it could help manage the distress he felt when care workers came into the home. If needed, it would refer Mr W to mental health services.
22. Mrs X told the Council that professionals involved in her care agreed she should not have reablement. She also said she had not seen the care and support plan.
23. The Council replied to say it remained of the view that a commissioned service was the best option because it could help ‘re-able’ her to increase her independence and build up daily living skills. Records show the Council sent Mrs X a copy of her care and support plan in late February 2024.
24. The Council says that Mr W has now moved out of Mrs X’s home so her property is no longer overcrowded.

Findings

Care and support plan

25. Councils must carry out needs assessments over a suitable and reasonable timescale. It follows that councils should issue care and support plans promptly after completing an assessment. The Council assessed Mrs X’s needs in late August 2023 but did not issue her care and support plan until early January 2024. That was an undue delay and was fault.
26. The Council was also at fault for failing to send Mrs X a copy of her plan until late February 2024. This was seven weeks after it issued the plan and was an undue delay. The faults in this section caused Mrs X avoidable frustration.

Direct payments

27. The Ombudsman cannot question a council’s decision if it is made without fault. Mrs X asked for direct payments to pay her partner to deliver her care and support. In such circumstances, the Council can only agree if it decides it is ‘necessary’ to make the direct payments. Mrs X’s care and support noted she had said the payments would mean she could have her care as and when she needed it and that it would comply with religious needs. The Council considered this and decided the direct payments were not necessary, and that Mrs X could instead have a care package of three visits per day from a care provider. It noted the care visits should be flexible on timings.
28. When Mrs X challenged the Council’s decision, it considered and responded to each of her points. The Council explained it had care providers able to meet her religious needs, that care workers could visit at times when some of the family were not at home to reduce overcrowding and that it would review Mr W’s care and support plan to help him manage his anxiety over care workers helping Mrs X. It remained satisfied a commissioned care package could meet Mrs X’s needs, so it was not necessary to pay her direct payments to employ her partner. The Council was not at fault in how it came to that decision so I cannot question it.
29. In its communication with Mrs X, the Council explained it felt a commissioned care package was best for her because qualified care providers would be able ‘re-able’ her to increase her independence while meeting her needs. Mrs X understood this to mean the Council wanted to arrange reablement, which she did not want. This was not the case; reablement is a more intensive form of short-term support, delivered free of charge. The Council did not explain this distinction to Mrs X. However, while such an explanation would have been ideal, it does not amount fault.

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Agreed action

30. Within one month of the date of my final decision, the Council will apologise to Mrs X for the frustration she felt because of the delay in preparing and issuing her care and support plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
31. The Council will provide us with evidence it has complied with the above action.

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Final decision

32. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman