Summary: Ms X complained the Council failed to provide adequate support for her daughter, Miss D. She also complained the Council stopped Miss D’s direct payments in February 2020 and November 2020 for no good reason and refused to reimburse her for activities and items she had bought on behalf of Miss D. The Council was at fault when it stopped Miss D’s direct payments in February 2020. It should take steps to prevent this happening again. The Council was not at fault when it stopped the direct payments in November 2020. The Council has already admitted that it delayed in starting the process to source support once it took over Miss D’s budget and has acted appropriately to remedy any injustice. There was no fault in the Council’s actions before it took over the direct payments relating to the provision of support. I will not investigate Ms X’s complaint that the Council refused to reimburse her for expenditure relating to Miss D’s support because the Council has already apologised and refunded her appropriately.

The complaint

1. Ms X complains the Council:
1. failed to ensure her daughter, Miss D, had adequate support to meet her eligible care needs from the end of 2019 to Feb 2021;
2. stopped Miss D’s direct payments in February 2020 and then, when it reinstated them, told Ms X she could only use them to pay for personal assistants (PAs) and could not use them to pay for activities or the transport to those activities; and
3. stopped her daughter’s direct payments in November 2020 without warning or ensuring there was adequate care and support in place.
2. Ms X states that as a result she has been caused unnecessary stress and trauma and had had to care for her daughter without any help or financial provision from the Council. Ms X states her health has suffered as a result.
3. She wants the Council to provide the support her daughter needs, refund her the money that was in the direct payment account when it was closed and reinstate the direct payments.

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The Ombudsman’s role and powers

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 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
8. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I spoke to Ms X and considered her view of her complaint.
10. I made enquiries of the Council and considered the information it provided. This included Miss D’s daily care records, Miss D’s care assessments and complaints correspondence.
11. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Care needs assessments

12. Councils must assess anybody in their area who appears in need of care services. Following an assessment, the council must decide which needs are eligible for their support. If the Council provides support, it must produce a written care plan.

Direct payments

13. Direct payments are cash payments a council makes to a person with eligible care needs, instead of providing them with care services. They give people control and choice over their care arrangements.
14. The Care and Support Statutory Guidance (the Guidance) states “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs”.
15. Many councils use prepaid cards as a mechanism for direct payments. The Guidance states that “Whilst the use of such cards can be a useful step from managed services to direct payments, they should not be provided as the only option to take a direct payment”.
16. The Guidance states direct payments should only be stopped as a last resort. If stopping a direct payment, the council must ensure there is no gap in the provision of care support.
17. A council can stop direct payments if the person no longer appears to be capable of managing the direct payments.

Flexible use of direct payments during the COVID-19 pandemic

18. In April 2020 the government produced guidance for the use of direct payments during the COVID-19 pandemic. This said councils should have a more flexible approach to the use of direct payments, with the guiding principle being that if necessary, people received the care and support they required in different ways.

What happened

19. Miss D has Down’s syndrome. When the events which form this complaint began, Miss D had just turned 18. She attended College B. Miss D received £140 a week in direct payments which were managed by Ms X. Miss D’s care and support plan, which had been reviewed in October 2019, stated these should be used as follows each week:
• 3 hours of domestic support so Ms X could spend time with Miss D;
• 7 hours of PA support; and
• £10 for clubs and activities and around the same amount for resources.
20. Towards the end of 2019, Ms X informed the Council the PA had given notice to end their support to Miss D. Ms X also stated that £140 a week was insufficient to enable her to pay for the support Miss D needed.
21. In February 2020, the Council informed Ms X that because Miss D was moving from support from its children’s services department to adult services, a new direct payment agreement would need to be drawn up. Ms X refused the new agreement on the basis that she did not like the fact the payments would move from a dedicated bank account to a prepaid card.
22. Because Ms X would not agree to the new arrangements, the Council stopped the direct payments. Ms X complained about this and also the fact Miss D’s college had closed because of the pandemic.
23. After some discussions, the Council agreed to reinstate Miss D’s direct payments without needing to move to a prepaid card.
24. In March, the country went into lockdown because of the COVID-19 pandemic and Miss D was unable to go to college.
25. On 4 June, Ms X complained to the Council. She said she had not received any funds since it said it had restarted the direct payments. Ms X said she would go overdrawn if the Council did not take immediate action.
26. On 6 June, the Council responded. It said:
• Ms X had requested Miss D’s direct payments were increased, but there had to be a justification for this;
• It could consider evening respite and increase the payments as required;
• if she wished, it would send her a list of agencies which could offer this respite; and
• the direct payments would be the bank account in the next few days.
27. Ms X asked for the list of agencies which the Council sent her on 14 April.
28. On 18 May, the Council contacted Ms X to say it had found her a potential PA. Ms X did not take this further.
29. On 1 July Ms X took Miss D to the Accident and Emergency Department of the local hospital and said she could not cope. The hospital contacted the Council.
30. The Council contacted several agencies to determine if they had capacity to provide support. One (Agency A, which provided art activities) said it would assess Miss D. Ms X turned this offer down because she said Agency A was not offering opportunities for Miss D to socialise. The Council responded and said due to COVID-19, there were very few opportunities for Miss D to socialise but the support would give Ms X a break from her caring responsibilities. Agency B also said it could potentially provide 7.5 hours a week PA support.
31. In September 2020, Miss D was due to start at a new college (College C) in Town T. In July, Ms X told the Council that Miss D would not be in College C every day and she could not provide support on the days she was at home. Ms X also said she had found a PA who could work 3 hours a week.
32. The Council responded and said:
• it would look to put in support on the days Miss D was not in College C;
• it had offered to change the funding of Miss D’s care from direct payments to council managed care on several occasions so it could source and manage Miss D’s support but Ms X did not want this; and
• Ms X had turned down Agency A and Agency B’s support.
33. The Council emailed Ms X later that month. It again asked Ms X to move to a Council managed budget because she had not been able to source the support Miss D needed since 2019. The Council said it would then look to increase Miss D’s budget so the funds were available to pay for the support needed to meet her eligible needs. Ms X said she wanted to keep the direct payments.
34. Ms X continued to request increased direct payments. The Council refused because the support she had sourced (3 hours a week) was covered by the current level of payments. It said she would have to provide a justification if she wanted her payments to increase.
35. Over summer, Ms X accepted support from both Agencies A and B. In September, Miss D began attending College C four days a week. The Council asked Agency B for an update and discovered Ms X had cancelled its support when Miss X started College C.
36. In October, College C emailed Ms X and said because of the pandemic, all learning on Thursdays would now be remote. Ms X challenged the college about this with no success.
37. Ms X approached another college (College D) to request a placement for Miss D on the two days she was not in College C. College D, like College C, was situated in Town T.
38. College D said it had a place on Thursdays but Ms X would need a referral from Miss D’s social worker.
39. Ms X approached the Council. The Council said it was unlikely it would increase Miss D’s direct payments to pay for the cost of transport to College D. This was because:
• Agency A, which Miss D could access without the need for transport, had said it would provide support for Miss D for one full day; and in any case
• because of the pandemic, people should only access one service. Therefore, most educational placements would not allow their clients to access multiple support facilities.
40. College D later confirmed it would not accept Miss D because of the ‘one placement’ policy. College C also confirmed it would allow Miss D to attend college in person every other Thursday.
41. Also in October, the social worker asked Ms X for an explanation of some of the ways she had been using Miss D’s direct payments. The social worker said she could see no payments to Agency A but had noticed Ms X had used them to pay for activities which should not be funded via the direct payments. The social worker said “the budget was arranged for PA hours and access to support in school holidays and in absence of that we discussed day service and outreach… As you can see… many, if not most of these charges, are not within this agreement”.
42. In November, new government guidance was issued, placing Miss D in a COVID-19 ‘clinically extremely vulnerable’ category. As a result, Agency A emailed Ms X to say it could not support Miss D until the government guidance said it was safe to do so. Ms X complained to the Council about this.
43. The Council responded to Ms X’s complaint. It also reiterated what the direct payments should be used for. It said they were to pay a PA to support Miss X with developing independence skills and to fund a day’s support with Agency A. It said the payments were not to pay for the social activities themselves as Miss D was able to pay for these from her own money. The Council said the bank statements submitted by Ms X showed she had spent a significant proportion of the money on paying for activities. Ms X said Miss D did not have any money of her own because she did not claim benefits.
44. Later in November, Ms X gave Agency A notice. The social worker recorded her significant concerns and discussed the matter with the Agency which said it would only accept Miss D back under a council maintained budget.
45. The social worker also approached another agency (Agency E) for help with sourcing PAs, day care and outreach support.
46. The social worker arranged a telephone call with Ms X. Ms X was unavailable and the social worker emailed her to say:
• she wished to review the termination of Agency A as Miss D enjoyed attending and it provided social activity and gave Ms X a break;
• no other day care service was available to Miss D because current government guidance had classed her as extremely clinically vulnerable.
47. The social worker went on to say the Council was cancelling Miss D’s direct payments because:
• Ms X had expressed for some time she was stressed with caring for Miss D;
• she had been unable to source a PA, despite the Council providing her with details of agencies which had capacity; and
• Ms X had used the budget inappropriately to fund activities Miss D should have paid for herself. Therefore, there had been a breach of the agreement.
48. Ms X complained to the social worker’s manager. The manager supported the social worker’s actions and advised her how to make a formal complaint. She informed Ms X the Council had reinstated Miss D’s place at Agency A.
49. On 30 November, the social worker emailed Ms X to say government guidance now allowed Miss D to restart using Agency A.
50. Ms X emailed back to say Miss D was traumatised at Agency A and had refused to go. The social worker contacted Agency A which said Miss D was happy and engaged when she attended.
51. Following a call with the Council, the Council said that Ms X could source a PA, it would reconsider reinstating the direct payments. It also offered to reinstate them if Ms X agreed to a prepaid card. Ms X refused this.
52. By mid-December, Agency E had identified a potential PA and an assessment was arranged for mid-January 2021. The Council told Ms X the PA would be able to cover the support required by Miss D’s support plan. Ms X requested 18 hours support each week.
53. The Council responded and said the budget allowed for only six hours but the Council would review the situation to determine if Miss D require additional hours. In addition, the Council stated Agency E currently only had capacity to provide six hours of support a week.
54. Ms X complained twice to the Council about the above events. The Council made the following findings:
• there were some delays in restarting the direct payments after the Council agreed to reinstate them after they were stopped in February 2020. The Council apologised for this;
• it did not act with fault when it stopped the direct payments in November 2020. This was because Ms X had been unable to source the PA support Miss D needed and had not spent the funds in line with Miss D’s support plan. However, it should have begun to source support prior to stopping the payments;
• it would allow the expenditure Ms X had incurred during the pandemic, even though some of this was not in Miss D’s plan on the basis there had been no other support in place and some of the expenditure had been beneficial to Miss D’s health. The Council apologised for any uncertainty whilst Ms X waited for the Council to make this decision but felt it had acted flexibly; and
• it would now allocate Miss D an independent advocate and carry out a new care and needs assessment.
55. Ms X remained unhappy and complained to us.
56. In its response to my draft decision, the Council said the direct payments were stopped because Miss D had become an adult. Because she lacked the mental capacity to consent to or make decisions about a direct payment, a new agreement was necessary to set up the new adult direct payment. The Council set this up by the beginning of April 2020 and backdated the start date to the date of Miss D’s 18th birthday. This acknowledged the delays caused by Ms X declining to accept a pre-paid card and the Council not immediately offering an alternative. The Council said it also ensured funds were available to pay for support already provided as a continuation of the support funded by the children’s direct payments but not yet paid for by Ms X.

My findings

Provision of support to Miss D up to February 2021

57. Other than a short period around February 2020, Ms X received direct payments until November 2020. It was, therefore, her responsibility and not the Council’s to source the support Miss D required to meet her eligible care needs in line with her care and support plan. When the Council became aware she was struggling to identify a PA, it took steps to help her, either by sending her details of agencies with capacity or by sourcing potentially suitable agencies. There was no fault in the Council’s actions.
58. When Ms X found a college (College D) which might consider accepting Miss D after her usual college moved to remote learning once a week, the Council refused to make a referral or pay for transport. This is because Miss D had alternative support in place for that day that was closer and also because the Council was operating a one placement policy in line with the government guidance. There was no fault in the Council’s actions.
59. Once the Council stopped the direct payments in November 2020, it became responsible for finding appropriate support to meet the care needs it had identified for Miss D. The Council has already admitted it could have started sourcing this earlier. I cannot say for sure that if the Council had acted more quickly this would have led to a PA being in place sooner. However, Ms X is left with the uncertainty that support may have been sourced faster. The Council has already apologised for the delays which is sufficient to remedy any injustice Ms X and Miss D experienced.

Ceasing of direct payments in February 2020

60. The Guidance states direct payments should only be terminated as a last resort. If terminating a direct payment, a council must ensure there is no gap in the provision of care support. Councils must also not offer a prepaid card as the only option for payment.
61. Initially, the Council only gave Ms X the option of a prepaid card. This was fault.
62. There was no fault in the Council’s request that Ms X sign a new agreement when Miss X moved from children’s to adult services. However, because at that stage, the Council had only offered Ms X a prepaid card, she refused to sign the agreement. The Council should have further explored alternative options with Ms X before stopping Miss D’s payments. Its failure to so was not in line with the Guidance and is fault.
63. Ms X was caused uncertainty and some stress because although the Council reinstated the payments fairly quickly, it did not release any funds for several months. However, because there were unused funds in the account, this did not cause Ms X any financial problems. In addition, the Council backdated the direct payments to the date of Miss D’s 18th birthday. Therefore, the Council’s apology is sufficient to remedy the injustice she experienced. I have recommended a remedy, set out below, to prevent future injustice to others from similar fault.

Ceasing of direct payments in November 2020

64. The Guidance states councils can end direct payments if the person no longer appears to be capable of managing the direct payments.
65. Ms X was unable to find a PA for Miss D. When the Council sourced potential support, Ms X was reluctant to accept this. This meant Miss D was without support for a number of months. The Council gave Ms X warning that it was considering stopping the direct payments before doing so. It then provided her with an explanation for why they had stopped. The Council said they could be reinstated if Ms X found a PA. These actions were in line with the Guidance. There was no fault in the Council’s actions.

Council informed Ms X she could not use the direct payments to pay for activities or the transport to those activities

66. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome.
67. The Council initially informed Ms X she was not using the direct payments in line with Miss D’s care plan. It cited this as one of the reasons why it stopped the payments in November. It later agreed that some of the expenditure made by Ms X was appropriate to meet Miss D’s needs during the pandemic and agreed to reimburse her for all the expenditure other than the transport costs. It apologised for any uncertainty. I will not further investigate this part of Ms X’s complaint because these actions are appropriate to remedy any injustice experienced by Ms X.
68. In relation to the transport costs, the Council was entitled to take into account benefits Miss D was eligible for, whether or not Miss D was claiming them. This included the mobility component of Disability Living Allowance which should be used to pay for transport. There was no fault therefore in its decision not to reimburse Ms X for the transport costs she incurred.

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Agreed actions

69. Withing three months of the date of the final decision, the Council has agreed to:
• remind staff that direct payment agreements must only be terminated as a last resort; and
• where an agreement is in jeopardy because the person does not wish to have a prepaid card, the Council should consider if other methods of payment are appropriate.

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Final decision

70. There was fault leading to injustice. However, the Council has already remedied this appropriately and agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman