Summary: Mr Y complains the Council delayed in making Direct Payments available after he resumed his role as a carer. We find there was fault by the Council which caused distress to Mr Y. The Council will apologise and make a symbolic payment of £500.

The complaint

1. Mr Y complains the council delayed when re-instating a direct payment arrangement in 2023 and has refused to backdate the direct payment for care he provided to relatives between March 2023 and March 2024. He says this has caused him avoidable distress and financial loss.

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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. 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(1), as amended)

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How I considered this complaint

4. I considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
5. Mr Y and the Councill 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

Direct Payments

6. 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. 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.
7. Direct payments must be used to meet assessed eligible needs in a way that is legal, effective, and appropriate. The Care Act and statutory guidance discourages using direct payments to pay a close family member living in the same household as the person receiving care. However, it makes clear that this may be permitted in exceptional circumstances, where the local authority is satisfied that it is necessary to meet the person’s needs effectively. For example, where no suitable alternative care is available or where the arrangement is in the person’s best interests.

Summary of key events relevant to the complaint

8. This section will not list every event which happened between 2023 and 2024. Instead, it will provide a summary overview of the key events leading to Mr Y’s complaint.
9. Mr Y lives at home with his wife, children and elderly parents. I will refer to Mr Y’s parents as Mr and Mrs W.
10. Mr and Mrs W both have care and support needs. They initially received support through a commissioned care package. However, Mr Y raised concerns about the ability of the care provider to support Mr and Mrs W and requested direct payments as an alternative way to meet his parents’ assessed needs.
11. Although Mr Y lives with Mr and Mrs W and would not be automatically eligible to receive direct payments to provide paid care to his parents, the Council decided in 2016 that exceptional circumstances applied. It agreed that Mr and Mrs W could employ Mr Y using direct payments to be their main carer.
12. Mr Y provided paid care until January 2023 until a domestic incident happened. Following the implementation of police bail conditions, Mr Y had to leave the family home. The Council arranged a commissioned care package to ensure that Mr and Mrs W continued to receive care and support. The care package started from 13 January.
13. The Council considered a safeguarding referral it received about the incident. It decided to close the safeguarding shortly after because the person alleged to have received harm decided to withdraw their allegation.
14. On 19 January 2023 the Council says it had a conversation with Mr Y about the care of his parents. The Council says Mr Y did not want the direct payment money but was eager to return home to help Mr and Mrs W. The Council has not provided a record of this contact.
15. The allocated social worker spoke to Mr Y on 22 February 2023. The notes of that call say the social worker had made a “few attempts” to contact Mr Y previously, but without success. Mr Y told the social worker that the bail conditions were due to expire on 21 March, at which point he hoped to return home.
16. Mr Y cancelled the Council commissioned care package on 7 March 2023. The Council says Mr Y cancelled the care without first informing the Council.
17. The social worker made a home visit on 17 March. The case notes say: “Social worker will consider appropriate and proportional support in light of the son's ability to continue providing support to his parents”.
18. Shortly after, Mr Y told the Council the police had decided to take no further action in relation to the domestic incident.
19. In April 2023 the Council says the social worker tried to obtain information from Mr Y about the hours of care provided to his parents because the hours he claimed seemed excessive. The Council says Mr Y did not provide a breakdown of care. The Council has not provided evidence of this interaction.
20. Mr Y has provided evidence to show the Council emailed him in August 2023 requesting “a realistic breakdown of the hours per day and week that you provide care to both of your parents”. Mr Y responded the following day to say the needs of Mr and Mrs W had increased since their previous assessment.
21. Mr Y says he continued to provide unpaid care to Mr and Mrs W. At the end of 2023 the Council received a second safeguarding referral following concerns about housing disrepair and complex needs within the household.
22. The Council arranged a safeguarding meeting on 31 January 2024 and concluded that, following the concerns raised, it needed to complete a re-assessment of Mr and Mrs W. The assessment took place on 12 March 2024. In April 2024 the Council concluded:

“The recommendation is for Mr [W’s] care needs to be met via DP by his son and daughter-in-law, who currently reside with him. This arrangement was previously in place but was discontinued due to safeguarding concerns, which have now been resolved. Mr [W] has expressed a preference for this arrangement to be reinstated as a formal care package has not been effective in the past. To ensure the effectiveness of the DP and to minimize the risk of being used inappropriately, the DP will be managed via [company name] and reviewed regularly. Additionally, a backup PA will be employed to cover for holidays”.

23. The Council agreed to backdate the payments to 12 March 2024 when the assessment took place. The Council refused Mr Y’s request to backdate the payments to March 2023 because it said:

“Any provision of care and support is based on measurable documents including, completed assessments, evidence of additional care needs, supporting evidence from professional practitioners involved, finance details etc, without these supporting documents, it is hard to evidence care needs, let alone the requested figure of 70 hrs which Mr [W’s] son had insisted”

24. The Council also said that Mr Y had cancelled his parents care package in March 2023 without first discussing with the Council and checking to see whether he would receive payment for the provision of his care.
25. Dissatisfied with the Council’s response, Mr Y complained to the Ombudsman.

Was there fault causing injustice to Mr Y?

26. Between March 2023 and March 2024, Mr Y says he provided unpaid care to his elderly parents after previously receiving direct payments from the Council under exceptional circumstances. When Mr Y was temporarily unable to provide care due to police bail conditions, the Council arranged a commissioned care package. However, Mr Y cancelled this care package without first discussing his intentions with the Council and resumed his caring role once bail conditions ended. Despite this significant change in Mr and Mrs W’s circumstances and care delivery, the Council did not reassess their needs until March 2024.
27. Under the Care Act 2014, the Council has a duty to monitor care arrangements, respond to changes, and ensure eligible needs are being met. The cancellation of the commissioned package of care should have triggered either a care review or safeguarding concern, particularly given the known vulnerability of Mr and Mrs W and the circumstances around Mr Y’s departure from the family home. The Council’s failure to reassess Mr and Mrs W or arrange alternative support in this period is fault.
28. While Mr Y should not have cancelled the commissioned care without prior discussion, this does not remove the Council’s responsibility to act when care arrangements change. The Council has agreed to provide a remedy in recognition of the injustice. We recognise that Mr Y provided care and support during the period when no formal provision was in place. However, as we cannot quantify the level or intensity of care he delivered, we do not consider it appropriate to offer reimbursement based on an hourly rate. Instead, in line with the LGSCO’s guidance on financial remedies, we have recommended a symbolic payment to acknowledge the disruption, avoidable distress, and time spent providing unpaid care during this period. The Council agrees to our recommendation.

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Action

29. Within four weeks of my final decision, the Council has agreed to:
• Apologise to Mr Y for the distress caused by the delay in reviewing Mr and Mrs W’s needs following a significant change in their circumstances. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay £500 to Mr Y. This is a symbolic payment in recognition of the disruption and distress he experienced when he provided unpaid care during a period of avoidable delay.
30. The Council will provide us with evidence it has complied with the above actions.

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Decision

31. I find fault causing injustice. The Council will implement the agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman