Summary: Ms X complains the Council failed to meet her sister’s needs after she went to live with her mother in November 2019, until she moved to another care home in August 2020. There is little evidence of fault by the Council. However, it needs to bring its policies on direct payments into line with the Care Act 2014 and the Care and Support Statutory Guidance.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council failed to meet her sister’s (Ms Y’s) needs after she went to live with her mother in November 2019, until she moved to another care home in August 2020. This caused anxiety to Ms Y and left their mother with no respite from her caring role. Ms X says her mother had to stop working to care for her sister.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Ms X and the Council, and invited comments for me to consider before making my final decision.

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What I found

Legal and administrative background

7. The Council’s direct payment agreement says:

“If the person receiving the support lacks the capacity to understand the terms and conditions of the Agreement, one of the following can sign:”

“a donee of a Lasting Power of Attorney or Enduring Power of Attorney for the person who the support is for”.

“a deputy for welfare and property and affairs or property and affairs only for the person who the support is for”.

8. The Care and Support Statutory Guidance says:
• “In cases where the person in need of care and support has been assessed as lacking capacity to request the direct payment, an authorised person can request the direct payment on the person’s behalf. In these cases the local authority must satisfy itself that the person meets the 5 conditions as set out in section 32 of the Care Act.”
9. Section 32 of the Care Act says a person is authorised if:
• they are authorised under the Mental Capacity Act to make decisions about the adult’s needs for care and support (for example, a Court Appointed Deputy or someone with a Power of Attorney for health and welfare); or
• someone who is so authorised agrees with the local authority that the person is a suitable person to whom to make direct payments; or
• the local authority considers that the person is a suitable person to whom to make direct payments (and there is no one authorised under the Mental Capacity Act).
10. The Government first issued Coronavirus (COVID-19): Q&A for people receiving a personal budget or personal health budget on 21 April 2020. This said:
• councils needed to give people more flexibility over the use of direct payments, including suspending or reducing restrictions on their use.

What happened

11. Ms X’s sister, Ms Y, has a learning disability, epilepsy and mental health problems. When experiencing stress and anxiety she self-harms. In 2019 she was living in Care Home A in another county, where the Council had placed her so she could be close to her mother, Mrs Z, and Ms X. Another resident was causing problems for Ms Y, which resulted in stress and anxiety. The Council reviewed Ms Y’s needs on 8 November, when she was in hospital following an acute neurological event brought on by prolonged exposure to stress and anxiety at Care Home A.
12. The assessment says Ms Y needed 24-hour care, including 12 hours a day of one-to-one support in the home due to behavioural issues and 4 hours of two‑to‑one support when accessing the community. The Council agreed to find an alternative placement for Ms Y, as it would not have been safe for her to return to Care Home A.
13. By 12 November Ms Y was fit to leave hospital. She was becoming increasingly anxious as she did not want to be in hospital. The hospital treated the anxiety with medication.
14. Care Home B, run by the same Care Provider as Care Home A, offered a place for Ms Y. According to an e-mail a Learning Disability Nurse sent to the Council, staff from Care Home A could have supported Ms Y at Care Home B. Ms Y could also have maintained contact with the people she got on with at Care Home A. However, the estimated cost of the placement was at least £4,874 a week, significantly more than Care Home A at £2,673 a week.
15. On 20 November the Council discussed with Mrs Z the possibility of Ms Y staying with her when she left hospital, until a placement was available at Care Home C, which was being refurbished. The Council offered to arrange support for Ms Y at Mrs Z’s home. Mrs Z agreed and asked the Council to arrange six hours of support a day (10.00 to 16.00).
16. Ms Y went to stay with her mother on 21 November. The Council confirmed it would find a care agency to help. It said it would consider providing two-to-one support, so Ms Y could access the community, once a care agency was in place. It noted Care Home C was Mrs Z’s preferred placement for her daughter, but it would not open until the new year. It agreed to consider Care Home C, subject to costs and it being able to meet Ms Y’s needs. It told Mrs Z the cost of Care Home B had come down to £3,789 a week but this was still not sustainable.
17. The Council arranged for the Care Provider to assess Ms Y on 5 December. The Care Provider said it expected to open Care Home C after completing renovations in January 2020.
18. On 2 December Mrs Z told the Council Ms Y:
• had settled with her;
• was more independent with personal care, including going to the toilet at night;
• but was becoming more dependent on her and was reluctant to spend much time with her sister.

Mrs Z said she hoped the placement at Care Home C could start as soon as possible, because she could not continue supporting Ms Y at home. However, she asked the Council not to put a package of care in place, as it would be too confusing for Ms Y and would cause anxiety.

19. Mrs Z updated the Council on 8 December. She said:
• the Care Provider’s visit on 5 December had gone well;
• it was difficult for Ms Y to settle in the cramped conditions at her home (all her belongings were being stored there pending a move to Care Home C);
• Ms Y was sometimes taking medication for anxiety;
• it was hard being a full-time carer and this was affecting her physical health.
20. On 19 December the Care Provider told Mrs Z it would offer Ms Y a place at Care Home C but needed to agree costs with the Council. It said the Care Quality Commission (CQC) was unlikely to register Care Home C until the end of February 2020. Mrs Z told the Council they had agreed the need for transition planning before Ms Y moved in. She said, given the timescales, she would like a package of care for Ms Y, three hours on three days a week, to take her out into the community.
21. On 22 December Mrs Z told the Council Ms Y had had two episodes which required medication for anxiety. She said Ms Y was looking forward to moving to Care Home C. The next day the Council confirmed it would arrange an interim package of care.
22. On 30 December the Council told Mrs Z a care agency could start providing support after 2 January 2020.
23. On 31 December Mrs Z told the Council Ms Y was showing signs of stress by plucking hairs on her face. The Council asked if it should hold on arranging a package of care until after Ms Y returned from a family visit on 17 January.
24. In January 2020 Mrs Z complained about the time the Council was taking to arrange a placement at Care Home C. She wanted to be able to reassure Ms Y that she had another home to go to.
25. On 16 January the Learning Disability Nurse raised concerns about the lack of progress in arranging accommodation for Ms Y. The Nurse said this was having a detrimental impact on her and they needed to start transition planning to reassure her.
26. On 17 January the Council identified a care agency to support Ms Y in the community, pending a placement at Care Home C. The Care Provider told the Council it hoped to achieve CQC registration for Care Home C by mid-March.
27. Ms X complained to the Council on 21 January about the problems Ms Y had experienced in Care Home A and delays in sorting out her sister’s future care.
28. Ms Y’s Social Worker visited on 22 January. He also visited Care Home C, which expected to achieve CQC registration by 26 March.
29. The Care Agency arranged to assess Ms Y on 24 January but this did not go ahead as Mrs Z was unwell.
30. On 28 January the Social Worker told Ms X he was continuing to discuss the arrangements for Ms Y’s placement at Care Home C with the Care Provider. He said the Council would arrange one-to-one support in Care Home C and two‑to‑one support in the community, but would expect this to reduce as Ms Y settled in. He noted they did not want a care agency to support Ms Y while Mrs Z was unwell. Ms X asked the Council to arrange a carer’s assessment for her mother. She said to progress matters with the Care Agency, to see if it could meet Ms Y’s needs. She said they hoped the Council’s Professional Forum would agree funding on 31 January.
31. On 30 January the Care Agency told the Council it could not take on Ms Y’s package of care because of her complex behaviour and special needs.
32. On 31 January the Council’s Professional Forum agreed funding for Care Home C “focussing on independence”. The Council noted it had not yet identified a care agency to support Ms Y in the community. It told Ms X it had agreed funding at Care Home C for four weeks with a review at that point. Ms X said she was not happy about this but said they would start transition planning.
33. On 3 February the Council told Ms X it was still sourcing a care agency.
34. On 6 February the Council asked the Care Provider for Care Home C for an update and whether Ms Y would be able to move there in March. It also told the Care Provider it had agreed Care Home C as a permanent placement for Ms Y, but would review how things were going after four to six weeks.
35. On 19 February, the Care Provider told the Council it had finished the building works to Care Home C, but was waiting for the work to be signed off by Building Control and Fire & Rescue before applying to CQC for registration. It said it was on track with the estimated opening.
36. By 20 February the Council had identified another care agency, which was discussing support for Ms Y with her mother.
37. On 24 February Mrs Z told the Council she had not completed the carer’s assessment as it had not sent her a confidentiality agreement, despite asking for it a couple of times. She said the care agency had been in contact, but it could not support Ms Y for at least two weeks and would not provide a short-term package of care. The Council told her it would look for another care agency and had now sent her a confidentiality agreement.
38. The Council replied to Ms X’s complaint on 3 March. It said:
• the resident who caused problems for Ms X had been moved to another floor in Care Home A, to minimise contact with Ms Y;
• it had arranged 12 hours of one-to-one support to further minimise contact;
• it accepted this had not resolved Ms Y’s anxiety;
• it had understood the other resident would be moved to another placement, but this did not happen;
• it had not acted upon concerns raised by Ms Y’s Learning Disability Nurse or the recommendations made in a Deprivation of Liberty safeguard because Ms Y’s Social Worker had left;
• it had pursued an alternative placement for Ms Y with a “sense of urgency” but there was a limited supply of placements with the right CQC registration;
• it needed to ensure any placement was sustainable and represented best value;
• it did not hold funding panels but Professional Forums to ensure appropriate care planning had been done;
• the Social Worker had regular contact and visited in November 2019 and January 2020;
• it apologised for not sending the completed assessment of Ms Y’s needs and would now send this;
• it would send an up-to-date care and support plan when it had sourced a care agency to support Ms Y in the community for nine hours a week;
• it had sent Mrs Z a carer’s assessment to fill in;
• it had agreed Care Home C as a residential placement for Ms Y and her admission was planned for 5 March;
• it would address the need to authorise an application for a deprivation of liberty safeguard when Ms Y moved to Care Home C.
39. On 10 March the Care Provider told the Council it needed to do some fire safety work to Care Home C, so CQC registration would take about another six weeks (i.e. around 21 April). A care agency told the Council it would need three weeks to assess Ms Y, after which it could provide a short-term package of care.
40. The Council updated Mrs Z on 11 March about the delay with Care Home C. It told her it had arranged for the care agency to do an urgent assessment and start providing support. When the Social Worker called Mrs Z on 12 March, she said she had little time to herself due to caring for her daughter. She said she was visiting a day centre the next day, which may be able to support Ms Y, and would decide whether to use the care agency after her visit. She said residential respite care would not be right for Ms Y, as it would trigger some of her behaviours.
41. On 16 March Mrs Z told the Social Worker she did not want Ms Y to go to the day centre because of COVID-19, noting her immune system was compromised and she had previously had pneumonia.
42. On 19 March, the Care Provider told the Council it did not know when CQC would be able to visit and noted it had suspended routine inspections because of COVID-19. On 26 March it confirmed it had no date for CQC registering Care Home C. The Council updated Mrs Z.
43. On 8 April the Social Worker e-mailed Mrs Z. He said to let him know if she wanted to accept some support coming to the home.
44. On 12 April the Care Provider told the Council it could not make any progress opening Care Home C during the lockdown.
45. Ms X wrote to the Council on 14 April. She said:
• they had never declined any community support;
• the first care agency declined to support Ms X;
• the second care agency did not know the arrangement would be temporary;
• they still needed support as the only respite was that which they arranged between themselves;
• Ms Y could not attend the day centre because of COVID-19;
• Ms Y would have been settled by now if the Council had agreed to fund a place at Care Home B;
• Ms Y could no longer stay with her father as he was shielding from COVID-19;
• Ms Y was affected by the delay in the move to Care Home C;
• they wanted urgent support from a care agency.
46. When the Council replied on 20 April it said it would look for support but would need to update Ms Y’s care and support to reflect COVID-19 restrictions.
47. The Social Worker spoke to Ms X on 21 April about using a direct payment to employ a Personal Assistant (PA). Ms X asked if the Council would make an exception to the usual requirement (see paragraph 48 below) because of COVID‑19, as they did not have Power of Attorney to manage Ms Y’s finances.
48. On 27 April the Council told Ms X her sister could not have a direct payment as there was no Power of Attorney or Deputy to manage it for her. It said it would look to commission a service for them. Ms X asked why the Council could not agree to a direct payment and how long a commissioned service would take to set up.
49. On 1 May the Council told Ms X and her mother:
• without a Power of Attorney or Deputyship “legally” they could not employ a PA;
• it could provide a direct payment if they employed a PA from a registered care provider;
• it had asked a care agency if it could support Ms Y.
50. On 4 May a care agency said it had capacity to support Ms Y.
51. On 5 May Mrs Z told the Council Ms Y’s Psychiatrist had advised increasing her medication because of the problems she was experiencing. She said the care agency appeared to think Ms Y’s main issue was epilepsy and was proposing to train care workers to support her using webinars and ask if that was acceptable. She said they had now registered a Lasting Power of Attorney with the Office of the Public Guardian.
52. On 8 May Ms X told the Council the Care Provider had a vacant room in one of its other care homes which could be used as a temporary placement. She said they were keen to pursue this. It offered to discuss the proposals on 18 May.
53. On 11 May the care provider told the Council it could provide transitional support at Care Home D, before Ms Y moved to Care Home C. It said any plans would be implemented when the lockdown was lifted. The care agency told the Council it would try contacting Mrs Z again.
54. On 13 May the Council received the family’s Lasting Power of Attorneys for Ms Y (the one for property and financial affairs had been registered on 1 April 2020, the one for health and welfare on 21 April 2020). Mrs Z told the Council Ms Y was becoming more unsettled, requiring increased medication and more support with mobility and other tasks. She said they wanted to pursue the option of a temporary placement at Care Home D, as she hoped this would avoid another admission to hospital.
55. At the meeting on 18 May attended by the Social Worker, the Learning Disability Nurse, Mrs Z, Ms X, and two people from the Care Provider:
• everyone agreed Ms Y should move temporarily to Care Home D;
• the Care Provider agreed to consult Public Health England about the possibility of Ms Y moving during the lockdown.
56. On 21 May the Care Provider told everyone who attended the meeting that a temporary move would not be possible because:
• moving staff teams between homes (a key requirement for Ms Y’s transition plan) was contrary to current advice from Public Health England;
• having to isolate for two weeks would have an adverse impact on Ms Y.

It also agreed to provide a weekly update on progress with Care Home C.

57. On 1 June Mrs Z told the Council she had not heard anything further from a care agency. She said they were still thinking about using a direct payment to employ a PA.
58. On 9 June the Care Provider told Mrs Z nothing had changed so a temporary move was still not an option. It was close to submitting the final stage of the CQC registration process.
59. On 17 June the Care Provider told Mrs Z the friendship groups Ms Y would be attending from Care Home C were still closed.
60. On 19 June the Care Provider told Mrs Z it was still waiting for final sign off on the building works at Care Home C.
61. On 3 July the Care Provider told Mrs Z the home was finished and the local council would be inspecting it the following week. Mrs Z said Ms Y was finding the wait difficult and was more reluctant to go out. She said she had arranged for a care agency to support Ms Y twice a week (from 26 June). A Care Worker sat with Ms Y so Mrs Z could go out. She said she wanted to increase this the week before Ms Y’s move to Care Home C.
62. On 7 July the Care Provider told Mrs Z the building works had been signed off and so it had submitted its application for CQC registration. The Council asked Mrs Z how they were funding the support they had arranged. Mrs Z said they set it up themselves and the Care Workers were people who would be working at Care Home C when it opened. She said they could not wait for the Council to arrange something.
63. On 8 July the Council told Mrs Z it could set up a direct payment to pay for the support she had arranged. On 10 July, Mrs Z told the Council they would rather fund the support themselves. She was concerned that a financial assessment would take all Ms Y’s funds away. The Council told her the charge would depend on the outcome of a financial assessment. Mrs Z said they would continue to pay themselves. She also reported more challenging behaviours from Ms Y.
64. On 12 July Mrs Z told the Council she wanted to take up the offer of a direct payment.
65. The Council e-mailed Mrs Z a direct payment agreement on 14 July. The next day the Council discussed the support Mrs Z wanted it to include in a care and support plan.
66. On 24 July the Council asked Ms X what support she wanted it to include in Ms Y’s care and support plan.
67. CQC registered Care Home C on 30 July. The Care Provider discussed transition plans with Mrs Z, with a view to transition starting on 3 August and Ms Y moving on 10 August.
68. On 3 August Mrs Z told the Council about the transition plans for Ms Y’s move.
69. Ms Y moved to Care Home C on 10 August. The cost of her placement was £3,098 a week plus transport costs of £18. This included 84 hours of one-one support in the home and 20 hours of two-to-one support to access the community.
70. On 11 August the Council asked Mrs Z to confirm the number of hours the care agency had supported Ms Y at home. It said it would also arrange a financial assessment, as it would pay the direct payment net of Ms Y’s contribution.
71. According to Ms Y’s September care and support plan, she received a one-off direct payment of £694 to pay for 37 hours of support provided by a care agency between 30 June and 9 August. This was to provide respite for Mrs Z by helping Ms Y:
• engage in meaningful activities at home and in the community;
• complete some daily tasks;
• complete personal care tasks.

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

72. There are two key issues, the time it took for Ms Y to move to Care Home C and the lack of support provided by the Council while she was living with her mother.
73. Everyone agreed Ms Y should move to Care Home C and knew this would not happen for up to two months when she went to stay with her mother. The building works took longer to complete than expected and additional work was needed to achieve sign off from the relevant authorities. That delayed the move by seven months. But the Council was not at fault over that.
74. Mrs Z received little support while her daughter stayed with her. When the arrangement was expected to be short-term, Mrs Z managed with Ms X providing some respite. But the longer Ms Y stayed with her mother the more dependent she became on her. A care agency did not want to provide short-term support. Other opportunities were not pursued while the possibility of an interim placement at Care Home D was considered. Unfortunately, COVID-19 restrictions meant it was not possible to arrange an interim placement. This meant she spent far longer living with her mother than anyone expected. Eventually Mrs Z made her own arrangements. She did this without telling the Council and I have no reason to assume the Council would not have offered help if she had asked it to do so.
75. The Council was at fault for not offering Mrs Z a carer’s assessment when her daughter went to stay with her. It should not have been left to Ms X to ask for a carer’s assessment. However, I cannot say this caused injustice as it did not prevent the Council from offering support which would have provided some respite for Mrs Z.
76. The Council was also at fault for saying it could not offer a direct payment to employ a PA on the basis Mrs Z did not have Power of Attorney or a Deputyship. This did not comply with the Care Act (see paragraph 9 above) or the Statutory Guidance (see paragraph 8 above). The Council was also at fault for failing to exercise more flexibility over the use of direct payments within the context of COVID-19. This did not cause injustice as the family had Power of Attorney for property and affairs from 1 April 2020.

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Agreed action

77. I recommended the Council:
• within eight weeks reviews its policies on direct payments, including its standard agreement, and brings them into line with the Care Act 2014 and the Care and Support Statutory Guidance.

The Council agreed to do this. It has updated its standard agreement and its Direct Payment Guide to bring them into line with the Care Act 2014 and the Care and Support Statutory Guidance.

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Final decision

78. I have completed my investigation as the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman