Summary: Ms X complains the Council failed to exercise enough flexibility over the use of direct payments during the COVID-19 pandemic. The Council failed to follow the Government’s guidance on Using direct payments during the coronavirus outbreak when Ms X asked to use her son’s direct payments to employ a live-in carer. This left her providing full-time care for longer than was necessary. The Council has agreed to apologise and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has failed to exercise enough flexibility over the use of direct payments during the COVID-19 pandemic. She says this resulted in her providing full-time care for her son for longer than was necessary.

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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”.

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How I considered this complaint

5. 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;
• had regard to the Ombudsman’s guidance on remedies; 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

6. Ms X’s son, Mr Y, has severe learning disabilities and epilepsy. Because of his physical disabilities he uses a wheelchair. He lives with his father, Mr Z, from whom Ms X is separated. In March 2020 Mr Y received direct payments of £1,232 a week to pay for 77 hours of support from care workers (employed via two care agencies). This took account of his need for two-to-one support with activities such as personal care and transfers (for example, to/from his wheelchair). The Council also paid £6.75 a week for an agency to manage Mr Y’s direct payments and £135.30 for him to attend day services three days a week. In effect, his total personal budget was (£1,367.30 plus £6.75 to manage the direct payments), although his care and support plan does not say this.
7. The Government issued guidance on Using direct payments during the coronavirus outbreak, which it updated regularly. Its 31 July 2020 update said:
• “The government expects LAs [local authorities], CCGs [clinical commissioning groups] and direct payment holders to adopt and enable the most flexible possible use of your direct payment to manage any issues arising from COVID-19. In emergency or time-critical circumstances, you have the flexibility to use your payment in a way that ensures you safely receive the care and support you require. This could mean a variation in your agreed care and support plan which does not require immediate sign-off from the LA or CCG, on the basis that it’s the right thing to do so you stay safe and receive the care and support you need during this time.”
• “You may have a build-up of funds in your bank account, which your LA or CCG has agreed you can keep as a contingency fund, in case you need to pay for additional support at some point. If you need to use this funding due to a COVID-19 issue, you should keep a record so that this can be discussed at the appropriate time.”
• “There may also be occasions where you need to request additional funding in an emergency because you do not have enough money to cover additional costs due to COVID-19. In these circumstances you should discuss this need with your LA or CCG immediately, who will consider this. Requests for additional emergency funding to prevent care breaking down will be prioritised.”
• “If you feel it is necessary for family members who live with you to become your paid care and support workers on a permanent or longer-term basis, this needs to be discussed and agreed with the LA or CCG. Decisions are made on a case-by-case basis, and CCGs and LAs should respond to you as quickly as possible to ensure your care and support needs are arranged and met.”
8. The Council’s Complex Case Forum deals with cases, such as Mr Y’s, which cost over £20,000 a year. It meets every Thursday.
9. The Care and Support (Direct Payments) Regulations 2014 exclude payments from being used to pay for care from a close family member living in the same household, except where the local authority considers it necessary to do so.

What happened

10. On 19 March 2020 Ms X told they Council they were cancelling Mr Y’s care with immediate effect because of COVID-19 and to keep him and his father safe, both of whom needed to shield. She said she had stopped working to care for Mr Y and Mr Z. She asked the Council to provide some financial support.
11. On 23 March Ms X told the Council all Mr Y’s support was now being provided by her, Mr Z and family. She asked for help with shopping and collecting medication. She said she hoped this would only be for 12 weeks (the length of time the Government was advising people to shield who were at high risk from COVID-19).
12. The Council noted there was £28,702.21 in Mr Y’s direct payment account, partly due to unpaid invoices for one of the care agencies.
13. On 31 March the Council asked Ms X to outline the support she wanted, so its Complex Care Forum could consider her request on 2 April. Ms X told the Council she wanted to be employed as a care worker until day services reopened and they could reinstate Mr Y’s two-to-one support. She said they also needed help with shopping once a week and collecting medication. She said she had no other form of income.
14. On 2 April the Council’s Complex Care Forum agreed to pay Ms X £200 a week “due to unforeseen circumstances” and to review this at the end of the COVID-19 period. The record of the decision says Mr Y had a managed service due to previous mismanagement and Ms X also previously misused Mr Y’s money. [In September 2018 the Council withdrew an application it had made to the Court of Protection after the Judge decided it had made unfounded allegations against Ms X. The Judge ordered the Council to place a copy of his judgement in Mr Y’s records, so anyone entitled to see them could read it.]
15. The Council told Ms X it would pay her £200 a week (£230 including National Insurance). It also said it would provide help with shopping and collecting medication. Ms X asked the Council to review the situation every month. She also asked it to put in place a contingency plan, in case she had to return to work.
16. On 17 April just over £18,816 was paid to one of the care agencies from the direct payment account. Ms X told the Council the support it had arranged with shopping was not enough. She said they received a food parcel containing a small selection of items. She said one of the care agencies had offered to shop, and to put money on gas and electricity cards. She asked the Council to agree to using the direct payments to pay for this. The Council proposed three hours a week, but agreed to Ms X’s request for four hours to shop twice a week.
17. On 1 May Ms X told the Council she would have to return to work unless it agreed to pay her as a full-time carer.
18. On 4 May the Council proposed reviewing Mr Y’s care and support plan on 23 June. Ms X said there was no point in doing this given the COVID-19 lockdown.
19. On 7 May the Council told Ms X the £200 it had agreed to pay her was a “gratuitous payment” which “cannot be equated to the usual hourly package”. It said the contingency plan, if she went back to work, would be for care workers to resume their visits with the necessary personal protective equipment (PPE).
20. On 6 July Ms X asked the Council about its plans for reopening day services. She said she was prepared to support Mr Y and Mr Z for a while longer, provided they work together on a transition plan. On 13 July the Council told Ms X it made sense to start work on a transition plan when it had a date for reopening day services. It said it expected to work to a plan similar to the one when Mr Y first started attending them. It invited Ms X to say when she wanted Mr Y’s care package to resume. Ms X said she would continue her support as long as she could. The Council suggested reviewing the situation towards the end of the month.
21. On 10 September Ms X asked the Council if they could use 30 days from Mr Y’s care package to fund some respite/holiday for him and Mr Z to visit family in 2020. She suggested two ways of funding this from the direct payments:
• pay two full-time care workers to support Mr Y with support from Mr Z; or
• pay for the accommodation (£5,850) and one care worker, with Ms X providing support (or Ms X providing support with Mr Z).
22. The Council asked Ms X to provide a full breakdown of the costs. She said the Council should be able to work out the cost of full-time care workers. The Council asked how many hours the care workers would be needed for. Ms X said they would have to stay all the time in the accommodation with Mr Y.
23. On 24 September the Council agreed to pay £4,379.25 for the 30 days, based on 77 hours a week at £13.25 an hour. It said the hourly rate was less than Mr Y’s usual hourly rate (£16) as they would not be using a care agency to provide the care workers. It said it would stop Ms X’s payment while they were away. It noted the infection rate was rising in the area they wanted to go to, so a full lockdown could be imminent.
24. Ms X accepted the Council’s offer but said they would want to resume Mr Y’s usual package of care.
25. On 29 September, the Council said the usual package of care could resume after the holiday. It asked Ms X to confirm the dates. However, Ms X told the Council they wanted to use a live-in carer to meet Mr Y’s needs during the pandemic. She said this approach had kept him safe since the start of the pandemic (when she moved into Mr Y’s home). She said this was in line with Government guidance on flexibility in using direct payments during the pandemic.
26. Ms X asked the Council to provide a list of care agencies which could provide a live-in carer. The Council sent her a list but said this was not a common type of care, as someone with Mr Y’s needs may benefit from a care home placement or supported living. Ms X said they were only looking at live-in care because of COVID-19 and because Mr Y had benefitted from this over the past seven months. She said a placement would pose a high risk for him because of COVID-19 and because he had never spent a night in respite care. She said the stress could trigger his epilepsy. She said she was looking at ways of keeping the cost of live-in care within Mr Y’s personal budget, but this was proving difficult. She asked the Council to work with them over planning the next phase of Mr Y’s support, as she had asked in the three previous months.
27. On 2 October, the Council removed day services from Mr Y’s care and support plan (£135.30 from his weekly personal budget).
28. On 5 October Ms X told the Council the cost of a live-in carer ranged from £1,300 to £1,600 a week because of Mr Y’s complex needs. She said his personal budget (£1,232) would need increasing by £68.
29. On 7 October Ms X told the Council they had selected a care agency to provide Mr Y’s live-in care at a cost of £1,586 a week, £354 more than his personal budget. She said the surplus in Mr Y’s direct payment account would cover the difference.
30. The Council told Ms X she could not use the surplus in the direct payment account and its Complex Case Forum would have to agree any extra funding. She asked the Council to explain why they could not use the surplus. The Council said it clawed back money accrued in direct payment accounts. It also said a live-in carer would require a change to Mr Y’s care and support plan. It went on to say it would look at resuming Mr Y’s package of care. Ms X told the Council the surplus in Mr Y’s account should be enough to cover the increased cost of a live-in carer for three to four months.
31. On 12 October the Council told Ms X it would have to change Mr Y’s care and support plan because they wanted to move from domiciliary care to live-in care. It said it would do the necessary checks on the care agency she had identified and would put an application in to the Complex Case Forum. It told Ms X a direct payment account could contain a four-week surplus, in addition to the four weeks it paid in advance, before it would claw funds back.
32. On 13 October Ms X told the Council her son was already receiving live-in care. She said this change happened at the start of the COVID-19 pandemic (when she moved back into the family home). She said they were not asking for extra funding as the four-week surplus would be enough to cover the extra cost of a live-in carer for 14 weeks.
33. On 14 October Ms X told the Council the care provider had agreed a lower rate (£1393.93) for the live-in carer if one were required for more than fourteen weeks.
34. On 15 October the Council told Ms X it had checked the care provider’s figures and the true cost was £1,419.85 a week (£1,393.93 plus £16.92 to take account of the bank holiday premium). It said this was £178.10 more than Mr Y’s current package (£1,238.75).
35. The Council’s Complex Case Forum considered the request for extra funds. The record of the decision says there was no reason why domiciliary care could not provide support, with full PPE and testing in place. It asked for more details but decided not to pay for more than 77 hours a week, subject to advice in relation to using the four weeks accrued funds in the account. The Council told Ms X it would not pay more for a live-in carer as care workers had PPE to ensure Mr Y’s safety. It said it was waiting for feedback from the Forum’s Chair on using accrued funds to pay the extra cost of a live-in carer.
36. Ms X told the Council she would be challenging its decision. She said it needed to increase Mr Y’s personal budget, so it provided the same level of support at weekends as it did during the week. She said they were happy for the Council to review Mr Y’s needs. The Council told Ms X how to make a complaint. It said it did not yet have a response on using the accrued funds.
37. Ms X complained to the Council on 19 October.
38. The Council took internal legal advice on the use of the surplus in the direct payment account, which I have not seen. However, officers took it to mean the Council should not pay for a live-in carer as Mr Y’s needs had not changed. Funds had built up in the direct payment account because the Council had not amended its payments to reflect the decision to pay Ms X. The surplus therefore reflected an over payment which the Council should claw back.
39. The Council arranged to review Mr Y’s needs on 9 November. However, Ms X cancelled the meeting until she had a response to her complaint and her request to use surplus funds to pay for a live-in carer.
40. When the Council replied to Ms X’s complaint on 16 November, it said:
• under the Care & Support Statutory Guidance “the amount of direct payment is derived from the personal budget as set out in the care and support plan, and thus must be an amount which is sufficient to meet the needs the local authority has a duty to meet”, so the Council had no legal basis on which to fund a live-in carer;
• as Ms X could no longer provide care for Mr Y, it would be happy to reinstate his care package;
• since March 2020 it had worked closely with Public Health England and care providers to ensure the supply of PPE and safe working practices;
• an excess balance in a direct payment account could not be used to pay for a different service unless agreed by the Council;
• the Council had recouped any excess over the eight weeks allowed under its policy;
• it now needed to review Mr Y’s needs.

The officer who responded to the complaint is also a member of the Complex Case Forum.

41. Ms X told the Council it had failed to take account of Government guidance on the use of direct payments during the pandemic (see paragraph 7 above). She said it also failed to explain why they could not make use of the surplus funds.
42. On 18 November the Council told Ms X it had taken account of the Government guidance, as they could “use the current hours of support flexibly” and had agreed to using the direct payments to pay a family member living in the same household.
43. On 26 November the Council noted it had recouped £37,924.99 from Mr Y’s direct payment account.
44. On 16 December the Council agreed to increase Mr Y’s personal budget to pay for an extra 21 hours of support a week. This was because of COVID-19 and the closure of day services. The purpose of the additional hours was to provide respite for Mr Z and “mitigate against further stress” by providing two-to-one support for Mr Y to access the community and meet his other care needs. The Council told Ms X of its decision on 17 December. The Council referred Ms X to its direct payment agreement which says:
• “Excess Direct Payment Balances: According to the DP Person’s agreement, if the balance in the resident account is more than eight (8) weeks you as the suitable person will be informed of this and excess funds will be taken back, unless prior approval is obtained and clear reasons documented on the resident’s Care and Support Plan to allow for the excess funds. The use of this fund towards ongoing care is not the right use of it rather it is that this will be towards unforeseen emergencies only after an agreement has been reached with the Local Authority”.
45. Mr Y’s family has used the increased personal budget to employ a live-in carer.

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

46. The Council was at fault for referring in April 2020 to the unfounded allegations it made against Ms X in 2018. The purpose of the Judge’s order was to prevent this from happening. The Council needs to take action to ensure officers do not repeat the allegations about the misuse of Mr Y’s money.
47. There is no evidence the Council took into account the Government guidance on Using direct payments during the coronavirus outbreak when Ms X asked to use the direct payments to employ a live-in carer. The only time it referred to the guidance was when responding to Ms X’s complaint in November. On the balance of probabilities, it did not have due regard to this guidance when it decided not to allow her this flexibility. Its later explanation is not evidence that it took account of the guidance at the time.
48. Ms X first asked about employing a live-in carer on 29 September. It was not until 16 December that the Council agreed to increase Mr Y’s personal budget, enabling his family to employ a live-in carer. Given the circumstances of COVID-19, and the impact this had on the situation, that was far too long. Rather than redirect the funds for day services (£135.30 a week) to Mr Y’s direct payments, the Council removed them altogether without consulting his family. The true shortfall in Mr Y’s personal budget was just over £52 a week and the surplus in Mr Y’s direct payment account would have been enough to cover that for a significant period of time. The Government guidance encouraged flexibility and speedy decision making. The Council was at fault because that did not happen. The Council’s only proposal was to reinstate the care package funded by the direct payments, but without the day services that would still not have been meeting all his needs.
49. This did not cause injustice to Mr Y because his family was meeting his needs and keeping him safe. However, it caused injustice to Ms X because she was left looking after her son for longer than should have been necessary and this prevented her from working for two months. The Council needs to apologise and pay financial redress.

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Agreed action

50. I recommended the Council within four weeks:
1. writes to Ms X apologising for referring to the unfounded allegations made against her, withdraws them, promises never to repeat them and pays her £200 for the distress caused;
2. also apologises for the avoidable delay in agreeing funding which enabled Mr Y’s family employ a live-in carer and pays Ms X £2,000 to remedy the injustice caused by that delay;
3. takes action to ensure officers never repeat the unfounded allegations made against Ms X about the misuse of Mr Y’s money.

The Council has agreed to do this.

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Final decision

51. I have completed my investigation, as the Council has agreed to take action to remedy the injustice caused by its faults.

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Investigator's decision on behalf of the Ombudsman