Summary: Mrs Y complains that her son, Mr D, was left with unmet care needs due to failures by the Council in 2023. She also says the Council did not arrange appropriate advocacy support for Mr D, did not provide information and advice about the use of direct payments and failed to consider its duties under the Equality Act. We find there was a delay in reviewing Mr D’s direct payments. The fault has created uncertainty because we cannot say if Mr D had unmet needs during the period of delay. We also find the Council did not post monthly statements of the direct payment account as agreed. The Council will apologise and make a symbolic payment of £250 to Mr D.

The complaint

1. Mrs Y complains on behalf of her son, Mr D, that:
1. the Council delayed in completing Mr D’s care act assessment review and this left him with unmet care needs. Mr D now receives three hours of PA support each week and Mrs Y says this support should have been in place last year.
2. the Council failed to respond in a timely way to the request in 2023 for Mr D to receive advocacy support. This meant that Mr D did not have the support of an advocate during the review of his social care needs.
3. the Council has not provided information and advice to Mr D about the use of his Direct Payment ‘Kent Card’. As a result, there have been times when the card is not usable due to passwords being changed and Mr D being locked out of the online account.
4. the Council has not considered its duties under the Equality Act and whether it is necessary to make Reasonable Adjustments to enable Mr D to fully access and use his Direct Payment funds.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. 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

6. I have investigated matters which occurred between February 2023 and April 2024 as summarised in paragraph one of this statement.
7. In response to my draft decision Mrs Y raised concerns about delays in setting up direct payments for Mr D. She said those delays meant that Mr D’s relative decided not to continue providing support. The Ombudsman previously investigated this matter and found fault. We recommended an apology for distress and frustration when “… an error occurred when calculating the initial amount [Mr D] was asked to pay as it exceeded his personal budget which contributed to a delay in setting up the direct payment”. I will not re-investigate matters which the Ombudsman has already considered. There is no evidence of Mrs Y making another complaint about delays in setting up direct payments between April 2023 and April 2024.
8. In response to my draft decision Mrs Y also raised concerns about delays in setting up provision for Mr D to receive support at times when Mrs Y and her husband are away on holiday. Having reviewed the records available to me, there is no evidence of Mrs Y raising a complaint about this in the period relevant to this complaint. The Council has clarified that Mrs Y raised concerns in August 2024 which were considered as a separate complaint.

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How I considered this complaint

9. During my investigation I discussed the complaint with Mrs Y and considered the information she provided on behalf of Mr D.
10. I made enquiries of the Council and considered its response alongside the relevant law and guidance.
11. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Direct payments

12. 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. They are intended to provide independence, choice and control over the way needs are met and outcomes achieved.
13. Local authorities must be satisfied the person can manage the direct payment and should take “all reasonable steps” to provide help and support to people to manage the direct payment. A nominated person is anyone who agrees to manage a direct payment on behalf of the person with care needs. Councils often have arrangements with other organizations to provide this service.
14. Four conditions must be met in their entirety before the Council agrees to a request for a Direct Payment:
• the adult has capacity to make the request, and where there is a nominated person, that person agrees to receive the payments;
• the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the adult or nominated person;
• the local authority is satisfied that the adult or nominated person is capable of managing direct payments either by himself or herself, or with whatever help the authority thinks the adult or nominated person will be able to access; and
• the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question.
15. The statutory guidance also sets out the information and advice which councils should provide about Direct Payments. It says that: “The local authority also has a key role in ensuring that people are given relevant and timely information about direct payments, so that they can make a decision whether to request a payment, and, if doing so, are supported to use and manage the payment appropriately”.
16. Regarding payment methods the guidance says: “Many local authorities have been developing the use of pre-paid cards as a mechanism to allow direct payments without the need for a separate bank account, or to ease the financial management of the payment. Whilst the use of such cards can be a useful step from managed services to direct payments, they should not be provided as the only option to take a direct payment. The offer of a ‘traditional’ direct payment paid into a bank account should always be available if this is what the person requests and this is appropriate to meet needs. Consideration should be given to the benefit gained from this arrangement as opposed to receiving the payment via a pre-paid card”.
17. The Council’s guidance booklet ‘Your Guide to Direct Payments’ says: “You can also have your direct payment sent to a bank account, this would need to be a separate account from any other bills or payments”.

Independent advocacy

18. The ‘Care and Support’ statutory guidance sets out the duties of councils in relation to independent advocacy. The guidance says that:

“Local authorities must arrange an independent advocate to facilitate the involvement of a person in their assessment, in the preparation of their care and support plan and in the review of their care plan, as well as in safeguarding enquiries and SARs [Safeguarding Adult Review] if 2 conditions are met. That if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes and second, there is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer. The role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required for the safeguarding enquiry or SAR”.

Reasonable Adjustments

19. The Equality Act 2010 is the legal framework to protect the rights of individuals and advance equality of opportunity for all. It promotes a fair and more equal society and protects individuals from unfair treatment. It came into force in October 2010, and replaced a range of disparate equalities legislation, such as the Race Relations Act 1976 and Disability Discrimination Act 1995.
20. The reasonable adjustment duty is set out in the Equality Act and applies to all bodies carrying out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
21. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can decide whether an organisation has properly taken account of an individual’s rights in its treatment of them.

Findings

Complaint a)

22. The records show the Council reviewed Mr D’s support needs during a phone call on 21 February 2023. Mrs Y tells the Ombudsman that she was not aware this was a review. At this time Mr D’s Aunt provided unpaid support to assist with activities and outings. The Council updated Mr D’s support plan to reflect this.
23. Notes of a telephone call between the Council and Mrs Y in early 2023 confirm that: “[Mr D] does not want anyone else to support him as he does not wish to accept support from a stranger” and that, “[Mrs Y] also does not want someone she does not know in their house”. When discussing the possibility of a care package, Mrs Y said this would “not be right” for Mr D because he would be embarrassed to accept support due to his anxieties.
24. During the telephone call Mrs Y reiterated that the “… only thing that they are asking for to meet [Mr D’s] needs and ensure his independence is driving lessons”.
25. The Council agreed the support provided to Mr D should be formalised with funding made available via Direct Payments (DP). The February 2023 support plan says: “[Mr D] had previously been assessed as requiring four hours support to meet his social care needs, and there had been an agreement for a Direct Payment to be arranged, with the support to be provided by [Mr D’s] Aunt. [Mr D’s] Aunt had subsequently changed her mind about providing this support so a new assessment is required”.
26. From 24 April 2023 the Council agreed to provide funding for Mr D to receive one driving lesson each week, in line with his assessed needs. On 9 May Mrs Y requested the funding to be made available to Mr D via DPs, which the Council arranged. The Council completed a light-touch desk-based review on 6 June 2023 to ensure the direct payments were being made at the correct amount to cover the full cost of Mr D’s driving lessons.
27. In a letter dated 1 August 2023 the Council confirmed: “[Mr D’s] care and support will be reviewed in six months to check the progress of his driving, the planned date for this is 6 December 2023”.
28. The Council reviewed Mr D’s needs on 16 April 2024. Although the review found that Mr D’s needs had not changed, the Council noted that Mr D’s Aunt was again providing unpaid support for three hours each week. The support plan included funding for the Aunt to become a formal PA and receive payment. The Aunt later declined and told the Council she would help Mr D on an ad-hoc basis only.
29. In my view, there is fault because the Council did not review Mr D’s DPs in December 2023 as agreed and in line with the Care and Support (Direct Payments) Regulations 2014 which say that DPs must be reviewed at least once within the first six months of the payment being made and at intervals of no more than 12 months thereafter.
30. Although the records show Mr D had previously declined the provision of formal support for the periods when his Aunt was unable or unwilling to support him, we cannot say with certainty what Mr D would have decided in December 2023. Nor do we know whether Mr D’s Aunt would have made a different decision at this time. The fault therefore caused uncertainty which the Council should acknowledge with a symbolic payment of £250.

Complaint b)

31. Mrs Y asked the Council to provide advocacy for Mr D to support discussions around the use of his DPs and the payment card, referred to locally as the ‘Kent Card’. In May 2023 the Council allocated a Care Act advocate to Mr D’s case, however there was no social care assessment or review of his support plan scheduled, so the advocate closed their case and advised the Council to re-refer Mr D in the future.
32. The Council recorded its view that there was no identified role for independent advocacy between June and November 2023, but this would be re-considered in the future. On 13 November 2023 the Council also noted its view that independent advocacy would not be the correct means of explaining the use of the Kent Card as this is a role for the Council’s DP team, which Mrs Y had declined to engage with. The Council also noted that it would not be the role of advocacy services to help Mr D with the practical aspects of using his card; this is instead the role of a nominated person.
33. I do not uphold this part of Mr D’s complaint. The records show that Mrs Y has sometimes requested advocacy support for Mr D to support him with the use of his Kent Card. In my view this is the role of a nominated person, and the Council was not statutorily obliged to provide advocacy support in those circumstances for the reasons explained in paragraph 18 of this statement.

Complaint c)

34. Records show the Council spoke with Mrs Y several times about the DP account and the Kent Card. Although outside the period I am investigating, one case note suggests the Council sent the ‘Your Guide to Direct Payments’ to Mrs Y in September 2022.
35. The Council also spoke to Mrs Y in early May 2023 to provide information about Mr D’s DP account. On 10 May 2023 the Council offered to send the ‘Your Guide to Direct Payments’ in an accessible format. Mrs Y declined and requested that any such discussions were placed on hold pending the allocation of an advocate for Mr D.
36. Case notes record an officer placing a copy of the guide into an envelope for posting on 9 June 2023.
37. In November 2023 Mrs Y contacted the Council again to ask for more information about Mr D’s DP account. A case note from 13 November says: “[Mrs Y] advised she did not require any further assistance from Direct Payments Team or explanation of the Kent Card at this stage”.
38. Mrs Y says that, because of the Council’s failures, Mr D experienced problems with his DP account and Kent Card. The records show three incidents:
• On 27 June 2023 Mr D tried to pay his driving instructor, but the transaction failed. The case note says, “unfortunately the provider’s card machine was not working today and [Mrs Y] asked if a BACS payment could be made to the driving instructor… I confirmed this could be actioned directly by [the company aligned to the card] which [Mr D] could do over the phone”
• In November 2023 a payment made by Mr D failed due to insufficient funds in the account. The Council says this was after the account was used to make four unauthorised payments.
• Later that month Mr D’s access to the online Kent Card portal was locked. Although Mr D was unable to access the online portal, the Council says Mr D was able to continue using his card to make payments. Mr D received support to unlock the online account and regain access the next working day.
39. Having reviewed the available records, it is my view the three incidents Mr D experienced were not because of fault by the Council. The records show the Council offered to discuss the DP account and agreed to issue guidance in an alternative format. While I appreciate the incidents caused Mr D some inconvenience and frustration, I am only able to recommend remedies for injustice caused by Council fault.

Complaint d)

40. Mrs Y says the Council has failed to meet its obligations under the Equality Act to ensure that Mr D was able to appropriately access and use his DP account. Having reviewed the available records, I have found evidence of the following measures taken by the Council to make adjustments for Mr D.
• Provide access to the online transaction history on the Kent Card portal. Mr D can also confirm the account balance by calling a dedicated customer services team.
• Several documented offers to provide verbal guidance and support on the use of DPs and the Kent Card.
• Written guidance ‘Your Guide to Direct Payments’ posted to Mr D. When Mrs Y raised concerns about the format, the Council offered to issue the guidance in an alternative format.
• Agreement not to visit Mr D at home and, where possible, to arrange meetings virtually and at a time and day suitable for Mr D.
• Upon the request by Mrs Y for other ways to make payments to Mr D’s driving instructor, the Council agreed to make payments by BACS transfer upon the production of an invoice.
• To ensure, as far as possible, not to contact Mrs Y or Mr D on a Friday or Saturday.
• Use telephone contact with Mrs Y rather than email contact when possible.
• Discussed the use of Technology Enabled Livers Services (TELS) to provide prompting devices, smart speaker with voice commands or visual display screen to show reminders. Mr D refused.
41. In addition to the above, Mrs Y also requested printed statements of the Kent Card account to be posted to Mr D. On 22 March 2024 records show the Council agreed to post quarterly statements, the first of which was posted on 8 April 2024 (to cover the backdated period April 2023 – March 2024). The Council also noted, “… alternatively we would provide a statement each month covering 30 days of transactions”.
42. Mrs Y says the Council did not keep to its agreement and Mr D did not receive statements consistently. Despite the Council acknowledging in March 2024 that it could post monthly statements to Mr D, there is no evidence to show the Council issued statements at that frequency. I consider this would have been helpful for Mr D given his diagnosis of Obsessive Compulsive Disorder (OCD) and the anxiety he experienced when using and trying to check the account. The Council has agreed to apologise to Mr D for the distress this caused.
43. Mrs Y also says the Council did not make her or Mr D aware that his DPs could be paid into a personal bank account, rather than onto the Kent Card. As paragraphs 16 and 17 of this statement set out, this is an option which a service user can request. It is not provided as the default option. This is also echoed in the ‘Your Guide to Direct Payments’. In my view, the Council met its duty to provide appropriate information and advice, and it was open for Mrs Y to ask the Council to make payments into a separate bank account if this was Mr D’s preference.
44. The Council has made several adjustments in the way it communicates with Mrs Y and Mr D. Although there was a failure to send monthly account statements to Mr D as agreed, overall, I do not find the Council failed to consider its duties under the Equality Act.

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Action

45. Within four weeks of my final decision, the Council will provide evidence of the following remedial action.
• Apology sent to Mr D for the fault identified in this statement. Our guidance on remedies sets out our expectations for effective apologies to remedy injustice. The Council should consider this guidance when making the apology.
• Payment of £250 to Mr D for the uncertainty caused by the failure to review his needs in December 2023.

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Decision

46. We find some fault causing injustice which the Council has agreed to remedy with the actions listed above. We do not uphold the other parts of Mr D’s complaint made by Mrs Y because there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman