Summary: Mr Z complained the Council failed to ensure the care needs of his cousin, Mr X were met when Mr X’s parents left the country. Mr Z says he was forced to provide unpaid care which put him in a difficult position financially as he was unable to work while providing this additional care. The Council failed to offer any suitable alternative care and refused to pay Mr Z even though it had a duty to meet Mr X’s eligible care needs. The Council has agreed to now make additional direct payments to remedy the complaint.

The complaint

1. Mr Z, on behalf of his cousin Mr X, complains the Council failed to ensure his care needs were met when Mr X’s parents left the country forcing Mr Z to provide unpaid care.
2. Mr Z said this put him in a difficult position financially as he was unable to work while providing extra care for Mr X.

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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 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. 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 considered evidence provided by Mr Z and the Council as well as relevant law, policy and guidance.
6. Mr Z 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

7. 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.
8. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
9. 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.
10. 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.
11. 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)

Key facts

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. Mr X is an adult with significant care needs. He attends a day care provision six days per week and requires one-to-one support at all times. The Council also provides direct payments for a further 56 hours per week. This care is provided by Mr Z for 36 hours per week and another family member provides 20 hours. Mr X lives with his parents who provide care at all other times.
14. From 24 October to 7 November 2024, Mr X’s parents had a planned holiday. During this period, the Council provided additional direct payments of 142 hours which were paid to Mr Z and the other family carer. The Council says the additional hours were provided because it was a planned holiday. It says residential respite was not sought due to the time frame and because Mr X was displaying increased behaviours because he knew his parents would be going away.
15. In November 2024, the Council made a referral to a residential respite provider to establish if it could meet Mr X’s needs. It says no dates were planned and the referral was solely to establish if future needs could be met. No assessment took place because Mr X’s father would need to be present, in Mr X’s best interests, and at this point he had left the country again. The Council says it believes this is a suitable respite provision, skilled in meeting needs but cannot say definitively if it could meet Mr X’s needs until an assessment is completed.
16. Mr Z contacted the Council on 1 December 2024 notifying the Council that Mr X’s parents were required to leave the country due to a family bereavement. The social worker contacted Mr Z the following day and on 4 December, Mr Z provided details of the additional hours he was seeking funding for. On 10 December the social worker sent and emergency authorisation request for the additional funding. The Head of Service decided on 11 December that additional funding could not be provided.
17. The Council wrote to Mr Z on 13 December in response to his complaint about the refusal of the payment. It said the hours requested are a considerable increase to the current care package and it was unable to seek funding for this. It said that if Mr Z was unable to continue to provide support then it would begin to look for a specialist respite provider. It said it was aware of the level of Mr X’s needs and the need for provision to meet his needs.

Analysis

18. The Care and Support Statutory Guidance sets out how care should be planned for and how needs should be met. It states that “meeting needs” is an important concept under the Care Act 2014 and is intended to be broader than a duty to provide or arrange a particular service. It says that because a person’s needs are specific to them, there are many was in which their needs can be met. It says the intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants
19. The Council has a duty to meet a person’s eligible care needs. It is not under a duty to meet needs being provided by a carer but it should determine whether the needs being met by a carer are eligible care needs. It will not be under a duty to meet eligible needs being provided by a carer so long as the carer continues to do so. However, the guidance says it should consider putting in place plans to respond to any breakdown in the caring relationship.
20. When determining how to meet needs, the Council may also take into reasonable consideration its own finances and budgetary position. However, it must not set arbitrary upper limits on the costs it is willing to pay as this would not deliver an approach that is person centred or compatible with public laws principles. It may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but one which delivers the outcomes desired for the best value.
21. Mr and Mrs X’s parents have provided care in addition to the care set out in the care plan. It is my understanding the care they provide is in respect of eligible care needs. Therefore, once the Council was informed they could not provide this care, it had a duty to ensure that Mr X’s eligible needs were met. I have not seen any evidence to suggest that it did this. It’s response to Mr Z’s request for additional funding was a refusal and to suggest it would “begin to seek” a respite provider if Mr X was unable to meet Mr X’s unmet eligible needs. The fact Mr Z continued to care for Mr X does not change the Council’s duty once a carer has stopped caring. I have not seen any evidence which indicates a suitable alternative to meet Mr X’s needs was offered by the Council. This is fault.
22. I acknowledge that following the holiday by Mr X’s parents in October 2024, the Council was in the process of considering alternative suitable provision. There is no fault in the Council choosing to meet eligible needs in a different way. However, the Council cannot say that the respite provider it suggested would be a suitable alternative as no assessment had been completed. There is also no evidence to suggest it had capacity to meet Mr X’s eligible care needs even if Mr Z had requested this.
23. The Council did not respond to the request for additional funding for 10 days after Mr Z told them Mr X’s parents had left the country. I consider that this left Mr X with no option but to provide the necessary care to meet Mr X’s eligible care needs. I therefore consider Mr Z suffered a significant injustice as a result of the fault by the Council.

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Agreed action

24. To remedy the injustice caused as a result of the fault identified above, the Council will, within one month of my final decision, take the following action:
• Apologise to Mr X and Mr Z;
• Make additional direct payments to cover the additional care provided to Mr X. This can be calculated on the same basis as the additional hours paid when Mr X’s parents went on holiday the previous month; and
• Provide evidence of the actions it has taken to put in place suitable alternative provision for the future. If no action has been taken, then it should produce a timeline for this.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman