Summary: Mr X complains about the Council’s failure to backdate his personal budget to 8 April, when he moved out of the family home. The Council failed to consider exercising its discretion to allow Mr X to employ his mother as his personal assistant when he was still living with her. But this did not cause injustice to Mr X as there were other option open to him. Nevertheless, the Council has plans to take action which will ensure officers are aware of the scope to exercise the Council’s discretion.

The complaint

1. The complainant, Mr X, complains about the Council’s failure to backdate his personal budget to 8 April, when he moved out of the family home.

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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(i), as amended)

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How I considered this complaint

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

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What I found

What happened

6. Mr X has autism and mental health problems. On 6 November 2023 his GP referred him to the Council for an assessment of his needs under the Care Act 2014. The GP said he had been in hospital five times since September 2023 because of his mental health problems.
7. The Council visited Mr X on 20 November to assess his needs and completed the assessment on 21 November. The assessment identified eligible needs meeting these objectives:
• Making use of necessary facilities or services in the local community
• Developing and maintaining family or other personal relationships
• Accessing and engaging in work, training, education or volunteering
• Maintaining a habitable home environment
• Managing and maintaining nutrition
• Being appropriately clothed
• Maintaining personal hygiene
8. The assessment said Mr X’s mother was supporting him but he would need a care package when he got his own accommodation.
9. After receiving a copy of the assessment, Mr X called the Council on 8 December to say he was not happy with its contents.
10. On 4 January 2024 the Council agreed to assign another social worker to assess Mr X. It said it would provide a draft assessment, so Mr X could ask for changes. Mr X’s mother said there were plans for him to rent a property and live independently.
11. The Council assigned another social worker to assess Mr X on 11 January. The social worker visited him on 23 January to assess his needs. The social worker told Mr X they would send the assessment to him so he could comment on it before completing it. The social worker agreed to look into providing funding for Mr X to receive support from an autism charity, which Mr X said he had used before.
12. The social worker sent Mr X a draft of his assessment on 6 February and invited him to provide more information before completing it. Mr X provided information on 20 February. The social worker updated Mr X’s assessment on 26 February. The completed assessment said Mr X needed support achieving these outcomes:
• Making use of necessary facilities or services in the local community
• Developing and maintaining family or other personal relationships
• Accessing and engaging in work, training or volunteering
• Maintaining a habitable home
• Managing and maintaining nutrition
• Being appropriately clothed
• Maintaining personal hygiene
• Managing toilet needs
13. The assessment said Mr X was staying with his mother, who was providing all his support. It said she was helping him get his own accommodation and would continue to help with key aspects of his needs, including having a main meal at her home each day, maintaining his home and providing emotional support.
14. Mr X’s social worker left, so he had to wait for the Council to assign another social worker to complete a care and support plan.
15. A social worker visited Mr X on 9 April. Mr X said he was waiting to move into his own accommodation in the next few months. He said he was accessing the autism charity, which he wanted to pay for support. The social worker said he would need a cash budget (direct payments) for this. They talked about buying other support from a care provider. Mr X also asked about employing his mother as a personal assistant. The social worker said “to my knowledge” he could not do this as they lived in the same household, but it could be possible when he had his own accommodation. Mr X said he “understood”.
16. The Council spoke to Mr X on 1 May about his plans for using his personal budget. He said he wanted to use it to pay for support from the autism charity and either use a care agency or employ a personal assistant. The Council said he would need to move into his own accommodation before employing his mother as his personal assistant.
17. The Council produced a care and support plan for Mr X. This provided for a personal budget of £344.92 a week. This included £42.59 a week for support from the autism charity from 23 January 2024. The balance was for employing a personal assistant for 20½ hours a week from 1 May 2024.
18. Mr X complained to the Council in July. He asked the Council to reconsider his funding arrangements. He said he was referred to the Council on 14 November 2023 and it completed an assessment on 23 November. He said it had failed to backdate his personal budget to November 2023, only providing £42.58 (for the autism charity) from mid-January. He said he could evidence care costs averaging £358.69 a week since 14 November 2023, mainly by attending the autism charity in another area. He said he should not be penalised for the delay arising from the fact his first assessment was incorrect. He asked the Council to backdate the full amount to 14 November 2023. He also asked the Council to consider backdating the funding for his mother, saying he moved out (of her home) on 8 April.
19. On 29 July the Council sent Mr X its response to his complaint.
• It agreed to backdate funding for support from the autism charity to when it first assessed his needs in November 2023, if Mr X provided evidence of extra sessions from 21 November 2023 to 22 January 2024.
• It would not backdate Mr X’s direct payments (for employing a personal assistant), as until 1 May 2024 there was no agreement with him over how he would use his direct payments and no personal assistant had been identified.

Is there evidence of fault by the Council which caused injustice?

20. The Care and Support Statutory Guidance says:
• “The 2009 Direct Payment Regulations excluded the payment from being used to pay for care from a close family member living in the same household, except where the local authority determined this to be necessary. While the Care and Support (Direct Payments) Regulations 2014 maintain this provision regarding paying a family member living in the same household for care, it provides a distinction between ‘care’ and ‘administration/management’ of the direct payment. This allows people to pay a close family member living in the same household to provide management and/or administrative support to the direct payment holder in cases where the local authority determines this to be necessary. This is intended to reflect the fact that in some cases, especially where there are multiple complex needs, the direct payment amount may be substantial.”
21. The Guidance provides an example where it would be appropriate to use a direct payment to employ a close family member. It involves a man with severe learning difficulties and physical disabilities, who has serious trust issues and a unique way of communicating that only his family can understand.
22. It appears the social worker who assessed Mr X in 2024 was not aware there was some discretion over employing a close family member, if it was determined to be necessary. While that was fault by the Council, there is no evidence to suggest this caused injustice to Mr X. All the evidence shows employing his mother as his personal assistant was a preference, rather than the only way to meet his needs.
23. There is no evidence to suggest Mr X told the Council he had moved into his own accommodation on 8 April 2024 until he made his complaint in July 2024. On the contrary, on 9 April he told the Council he hoped to move within the next few months. When he met the Council on 1 May, Mr X had still not decided whether to employ his mother as his personal assistant and the Council reminded him he would first need to move out of her home before doing so. Within that context, there are no grounds to ask the Council to backdate the direct payments for employing a personal assistant further than 1 May 2024.

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Action

24. I recommended the Council, within eight weeks, considers what changes it needs to make to ensure officers, including locum members of staff, are aware of the scope to exercise discretion over using direct payments to employ a close family member living in the same household as a personal assistant.
25. The Council has set out its proposals for doing this, which it should be able to implement in August 2025.

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Decision

26. I find fault not causing injustice. The Council has agreed to take action to improve its services.

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Investigator's decision on behalf of the Ombudsman