Summary: Mr X complained the Council suspended his direct payment arrangement in place for his care and support. He said this left him without the care and support he needed, affecting his health, wellbeing and finances. We have found the Council at fault for its record keeping and for delays in acting on concerns it had about Mr X’s circumstances. We have also found the Council at fault for the way it ended Mr X’s direct payments and for delay in providing an alternative package of proposed care. We cannot say this caused Mr X an injustice in the form of missed care provision, but find this caused Mr X avoidable distress and uncertainty. There is a lack of clarity over the Council’s current view on Mr X’s care and support needs. The Council has agreed to apologise to Mr X. The Council has also agreed to act to review his current care and support needs and put forward a plan to meet them.

The complaint

1. Mr X said the Council suspended the direct payment arrangement in place for his care and support. He said the Council took this decision based on misunderstandings, while disregarding his views and other relevant information.
2. Mr X said the Council’s actions affected his care and support. He said he is without the support provided by his normal carers. He also said he has incurred costs and is unable to support himself in his home in several ways. Mr X said this affected his overall health and wellbeing. He wanted the Council to reinstate the direct payment arrangement.

Back to top

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 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

Back to top

What I have and have not investigated

6. Mr X also complained about instances of antisocial behaviour involving his neighbour. This complaint concerns the Council’s actions in its capacity as a social housing provider.
7. I have not considered this part of Mr X’s complaint. The law says we cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
8. Mr X has complained to the Housing Ombudsman Service (HOS) about this.

Back to top

How I considered this complaint

9. I considered evidence provided by Mr X and the Council, as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

Relevant legislation, guidance and policy

Assessment

11. 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. 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 wellbeing 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 plan

12. The Care Act 2014 gives councils a legal responsibility to 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 and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. 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.

Reviews

13. 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.

Direct payments

14. 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. The council 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. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
16. 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.
17. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)
18. On ending a direct payment arrangement, the Care and Support statutory guidance says:

“In all cases, as soon as possible the local authority should discuss with individuals, their carers and any person managing the direct payments if it is considering discontinuing direct payments to them, in order to explore all available options before making the final decision to terminate the direct payments…The local authority should not automatically assume when problems arise that the only solution is to discontinue or end direct payments.” (paragraph 12.80)

19. The guidance also says:

“If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support.” (paragraph 12.68)

20. And:

"If the local authority does decide to withdraw direct payments, it will need to conduct a review of the plan and agree alternative care and support provision with the person, their carer and independent advocate if they have one, unless the withdrawal was following a review after which the local authority concluded that the services were no longer needed. A minimum period of notice should be established that will normally be given before direct payments are discontinued." (paragraph 12.81)

Back to top

What I found

Key events

21. Below is a summary of the key events leading to this investigation. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
22. In May 2023, the Council completed a review of Mr X’s care needs:
• The Council’s report said Mr X had been reluctant to allow a social worker to come to his home for a review and had cancelled many prior appointments. The report said Mr X had avoided reviews for a long time.
• The Council's report said Mr X’s living conditions were cluttered and dangerous. It said Mr X’s home contained multiple repair issues and potential fire risks.
• The report said Mr X had declined social care interventions and repairs. Mr X told the Council he had two carers who helped and understood him. The Council recorded that Mr X often fell inside his home and frequently stayed upstairs for long periods of time inside the property. The Council said it did not think Mr X could be safely supported inside the home. The Council noted it needed to speak with Mr X’s carers.
23. The Council's records show attempts to speak with Mr X’s carers. Following this, in May 2023, the Council made referrals to mental health services to seek a review of Mr X’s needs. The Council said it received confirmation Mr X already had an allocated Care Coordinator, who had been trying to contact Mr X.
24. In July 2023, the Council said it received a safeguarding concern about Mr X, due to the conditions in his home. The Council told the Ombudsman its records showed a review of Mr X’s case was scheduled for the beginning of August 2023. The Council did not confirm if this meeting took place, or provide details of any discussions.
25. The Council said in September 2023, its housing and support services discussed preparing a plan for Mr X to clear his home, so essential repairs could take place.
26. The Council said in October 2023, its floating support service stopped supporting Mr X.
27. The Council said in December 2023, it's floating support service internally proposed the Council apply as an appointee to help Mr X manage his finances. This does not appear to have taken place.
28. The Council said in January 2024, Mr X called the Council and said his current package of care was not suitable. Mr X said his previously allocated social worker had not addressed this.
29. In early February 2024, the Council allocated Mr X’s case to a social worker to review. The Council's records show Mr X asked to complete the review by telephone. The social worker told Mr X they needed to visit Mr X at home as part of the review. The Council records state Mr X told the Council he could not meet in his home.
30. On 1 March 2024, Mr X complained to the Council:
• Mr X said he had many illnesses and could not help himself, due to his physical and mental health needs. Mr X said only people he knew could act as his carers. Mr X said there were two people that helped him. Mr X said he paid their expenses, but was having trouble doing so.
• Mr X said his carers prepared his meals, as he had no cooking facilities available. He said he had been unable to leave his house for several years. He said the Council had not helped and its interventions had only made matters worse.
31. The Council said in March 2024, it sought to clarify the direct payment package in place to meet Mr X’s care needs. The Council confirmed Mr X’s direct payments were paid to a named carer every four weeks. The Council found it had no contact information for the nominated carer. The Council said on 22 March 2024, it requested that Mr X’s direct payments stop, as it had concerns whether the arrangement was open to abuse.
32. The Council said on 22 March 2024, there was a multidisciplinary meeting, with professionals from housing and mental health and social care services. The Council said there was evidence the direct payments were not being used to help meet Mr X’s care needs. There were also concerns about the condition of Mr X’s home and his lack of engagement.
33. The Council said it suspended Mr X’s direct payments on 25 March 2024. However, due to an administrative oversight, payments continued until 22 April 2024.
34. The Council said on 3 April 2024, it had a telephone discussion with Mr X, confirming why it had stopped the direct payments. The Council said it followed up these discussions in emails, followed by a meeting with Mr X on 11 April 2024.
35. The Council said on 18 April 2024, a review of the case by senior officers led to a request to arrange a package of commissioned care for Mr X while the direct payments were suspended. The Council said on 19 April 2024, it contacted Mr X to offer a commissioned package of care that would be delivered inside the home by a care agency.
36. The Council said on 24 April 2024, it wrote to Mr X to arrange an urgent review of his care needs.
37. On 21 May 2024, the Council responded to Mr X’s complaint:
• The Council apologised for its delay in responding.
• The Council said Mr X had had a direct payment package in place. However, during a home visit, social workers had identified Mr X was living in a neglected state. This had led to concerns about how Mr X’s care package was being managed. The Council said it had tried to speak with Mr X’s carers, but they had not responded to date.
• The Council said it had placed the direct payment package on hold, pending inquiries into what it had observed. It said Mr X could receive a domiciliary care package in the meantime.
• The Council said it would convene a professionals meeting to consider Mr X’s circumstances.
38. On 11 June 2024, the Council internally approved a package of commissioned care. The Council and Mr X exchanged emails about this:
• The Council said it could visit Mr X in the following days with the commissioned carers, so they could get a better understanding of Mr X’s care needs.
• Mr X said he had not asked for commissioned care, but had asked for an increase in his direct payment arrangements. He did not want the Council to visit his home with carers.
• The Council said during a recent meeting, it had shared with Mr X pictures of his home, showing it to be in poor condition. The Council said these pictures were taken during a period of time in which Mr X should have been receiving support from friends being paid through the direct payment arrangement. There was little evidence Mr X’s friends were providing him with practical support. The Council noted Mr X’s request for an increase in his direct payments, but said his home was not habitable in its current condition.
• The Council said the direct payment arrangement was not working and it had decided a commissioned package of care was needed. It asked Mr X to try this and asked when it could visit him at home.
39. The Council said on 21 June 2024, it visited Mr X at home, accompanied by Mr X’s Care Coordinator and other professionals. The note of the Council’s visit stated:
• Mr X declined to allow access inside his home. He declined to engage with those present, or accept the package of commissioned care on offer. Mr X asked the Council to reinstate his direct payment arrangement to allow his friends to continue supporting him.
• The Council carried out a mental capacity assessment and determined Mr X lacked capacity over his care and support needs and living situation.
40. On 4 July 2024, the Council completed a review of Mr X’s care needs. The report set out the circumstances to date.
41. Mr X approached the Ombudsman. The Council told the Ombudsman Mr X had not yet completed its complaints procedure. On 10 July 2024, the Ombudsman asked the Council to consider and respond to Mr X’s complaint within its published timescales.
42. The Council said it visited Mr X at home on 12 July 2024. The Council’s records state this was a joint visit with mental health services. The record of the visit states Mr X’s home was in poor condition and he refused a commissioned package of care. According to the records, the Council told Mr X he had been assessed to lack capacity over where he lived and his care and support needs. The Council told Mr X it would refer the matter to its legal services, which Mr X disagreed with.
43. The Council said it made a referral for an independent mental capacity advocate (IMCA) on 29 July 2024.
44. The Council said on 29 August 2024, it received confirmation that Mr X had been allocated an IMCA. However, the Council said the IMCA’s level of contact was limited. The Council said between late August and October 2024, it repeatedly raised concerns about the IMCA’s lack of contact.
45. On 10 October 2024, the Council responded to Mr X’s stage two complaint:
• The Council apologised for its delay in responding.
• The Council said it had suspended Mr X's direct payment package due to mismanagement of the package, which the Council had identified following a home visit. The Council said it believed its decision was correct. It said it could stop direct payments if the evidence available showed these payments were not being used to meet an individual’s identified needs.
• The Council said it had offered Mr X a package of domiciliary care until it could reach an agreement on what future care plans would look like. It said Mr X had refused this.
• The Council said Mr X’s home was uninhabitable, but Mr X disagreed and had refused to leave. The Council said it had appointed an IMCA to support Mr X and ensure he was heard.
46. The Council said it held a best interests meeting with Mr X and an advocate on 31 October 2024. The records I have seen are limited and do not detail decisions about what would be in Mr X’s best interests. The notes state Mr X did not have capacity to make decisions about his accommodation and care and support needs. The Council noted it had given Mr X a further month to declutter his home. It also said it would consider making a referral to the Court of Protection.
47. On 5 December 2024, the Council said it attempted to visit Mr X at home to follow up on progress, but could not gain access.
48. In response to the Ombudsman’s enquiries, the Council said there was currently no care package in place for Mr X, as Mr X continued to refuse commissioned care. The Council said Mr X did not have an appointed IMCA. The Council said Mr X wanted his direct payment package reinstated, but this package had not been used to meet Mr X’s care needs.

Analysis

Did the Council act with fault?

Record keeping

49. Based on the evidence seen, I have found the Council’s record keeping is inconsistent at key points:
• The Council provided no minutes of the multi-agency case review meeting held in August 2023. Though this meeting was scheduled, it is unclear if it took place. It is also unclear what actions the Council took in late 2023 to address the concerns it identified about Mr X’s circumstances, beyond the referrals made and brief discussions with other services.
• The Council provided no contemporaneous record of the Council’s internal discussions about the Council applying to act as financial appointee for Mr X, or any evidence to show what the Council did after this was suggested, in December 2023.
• It is unclear exactly when the Council completed a capacity assessment of Mr X in 2024, or the circumstances in which it completed this. In its response to the Ombudsman, the Council gave different dates for the assessment, in June and July 2024. The Council’s referral for an IMCA also referred to an assessment being completed on 7 December 2024, though I understand this may have been a date formatting error and the Council meant to state 12 July 2024. Its records of a visit in June 2024 state Mr X declined to engage with those present, or allow professionals into his home, before the Council completed its assessment. It is difficult to see how an effective assessment could be completed under these circumstances.
• The Council provided a minimal record of the best interests meeting it held in October 2024. It is not clear what was discussed, or what approach was determined to be in Mr X’s best interests.
50. For these reasons, I have found the Council at fault for inconsistent record-keeping.

Decision to end direct payments

51. Paragraphs 18-20 set out what the guidance says about ending direct payment arrangements. I have found the Council at fault because:
1. Contrary to the guidance set out in paragraph 18, I have seen no record the Council considered whether the direct payment arrangement could be adjusted or changed, to allow it to continue in some form.
2. I have seen no record the Council discussed any proposal or decision to end Mr X’s direct payments with Mr X, before it ended them. As a result, I have seen no record the Council completed a review of Mr X’s needs, or provided a clear notice period, before ending the existing arrangement, as per the guidance in paragraph 20.
3. The Council told the Ombudsman there was no gap in Mr X’s care and support, as it was prepared to offer a package of domiciliary care immediately after terminating his direct payments. However, the Council’s records show:
1. The Council ended Mr X’s direct payment arrangement on 25 March 2024, but it was only on 18 April 2024 that senior officers asked that a package of domiciliary care be implemented, following a review of the case.
2. The Council offered Mr X this package on 19 April 2024, but the Council’s records show the offer was not finalised and approved until 11 June 2024. In practice, the earliest the Council could have implemented the package would therefore have been 12 June 2024.
3. There was therefore a gap in Mr X’s care and support provision of around two-and-a-half months.

Care and support planning

52. Following its review in 2023, the Council was aware Mr X lived in potentially dangerous living conditions, and that his care and support needs were not being met. The Council’s records suggest it then attempted to contact Mr X’s carers and follow up on referrals to mental health services. The Council also said it received a safeguarding referral in July 2023, but, after this, the matter appears to have drifted. Between August 2023 and March 2024, the Council appears to have taken no substantive action to address the concerns it found in the 2023 review.
53. I have found the Council at fault for failing to act sooner to address the concerns it identified.
54. Regarding Mr X’s current care arrangements, the Council told the Ombudsman Mr X had refused the care package offered, so Mr X currently had no care in place. This would suggest the Council was satisfied Mr X had capacity to make decisions about his care and support needs when refusing care. However, the Council’s records suggest it believed otherwise from June or July 2024. The Council’s current position, as set out, is therefore contradictory. I have found the Council at fault for this.

Did the Council’s faults cause an injustice?

55. The Council’s inconsistent record-keeping makes it harder to understand the Council’s evolving thinking, or evidence its actions in late 2023 and early 2024. This hinders investigation and causes uncertainty. This uncertainty is an injustice to Mr X.
56. The available records show the Council allowed Mr X’s situation to drift for several months. Had the Council swiftly acted on the concerns it identified in 2023, it could potentially have addressed its concerns about Mr X’s direct payments in a more structured way, taking time to assess alternatives. We do not know whether the Council missed an opportunity to assist Mr X by exploring whether it could become a financial appointee in December 2023. Had the Council taken these steps, it is possible it may not have responded as reactively as it did in March 2024, by terminating the direct payment arrangement without notice. Even on the balance of probabilities, there is significant uncertainty over whether Mr X’s circumstances now would be different. This uncertainty is an injustice to Mr X.
57. I recognise when it terminated Mr X’s direct payments, the Council was motivated by a concern the arrangement was not meeting Mr X’s needs. However, the Council did not follow the statutory guidance when terminating Mr X’s direct payment arrangement. It did not consult with Mr X, consider whether the arrangement could be changed to allow it to continue, or give Mr X notice of its decision. The result was an abrupt end to the arrangements Mr X was familiar with. I cannot say whether, had the Council properly adhered to the guidance, it would have reached a different decision. However, Mr X experienced avoidable uncertainty and frustration at the sudden change in his care package. This uncertainty and frustration are injustices.
58. Mr X’s direct payments ended without there being an alternative package ready to deliver. This would not be practically ready until around two-and-a-half-months later. Mr X then refused this package. It is therefore difficult to say the delay caused Mr X an injustice, in the form of missed care between March and June 2024. On the balance of probabilities, it seems likely Mr X would still have refused a domiciliary care package, had it been ready for implementation in March 2024.
59. However, from June or July 2024 to at least December 2024, the Council had concerns about Mr X’s capacity to make decisions about his care and support needs. As far as I understand, these concerns are unresolved, despite these having implications on what action the Council should take if Mr X refuses support. The identified risks to Mr X’s wellbeing and his documented care and support needs remain, but the Council told the Ombudsman Mr X is not now receiving care and support, and does not have an IMCA. The matter again appears to have drifted. This prolonged state of drift, without a clear plan of action, is a source of significant uncertainty and distress to Mr X. These are injustices.

Back to top

Action

60. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mr X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Act promptly to engage with Mr X and assess his current care and support needs. As part of this, the Council should ensure Mr X has suitable representation, if this is necessary, and ensure it has properly documented and considered Mr X’s best interests. The Council should set out a plan to provide Mr X with care and support that meets his identified needs. The Council should provide evidence of its actions and a copy of the updated care and support plan to the Ombudsman.
61. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

62. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman