The Ombudsman's final decision:
Summary: The Ombudsmen find fault in the way a Council and Trust stopped a service user’s Direct Payment. It had not properly established if alternative provision was in place, and it did not properly address concerns about use of the payments. The Ombudsmen also find fault in the way the Council made a back payment for an earlier period of care. The Ombudsmen recommend an apology, reimbursement of lost payments and a small compensatory payment.
- Mr P complains about the way Buckinghamshire County Council (the Council) and Oxford Health NHS Foundation Trust (the Trust) have supported him since June 2016. Specifically, Mr P complains:
- The Council delayed assessing his needs and providing financial support for his disability. Mr P says this was due to Council and Trust’s lack of understanding of their roles, defined in the Care Act 2014. Mr P said, as a result, he felt disempowered as a vulnerable adult. Mr P said he even attempted suicide. Mr P said he suffered physical pain waiting for the support. He said his marriage has broken down as a result and his wife has lost earnings to look after him, for which she should be reimbursed.
- The Council and Trust’s communication was poor when responding to his initial complaint. Mr P said this caused him distress for which he would like financial compensation.
- The Council underpaid him £1,857.50 after it backdated his Direct Payment for the period August 2016 – February 2017. Mr P would like the Council to reimburse this.
- The Council inappropriately stopped his Direct Payment in April 2018. Mr P said the Council stopped it for misusing funds. He disagrees he misused funds. He said he has not received any financial support since.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA).
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Local Government Act 1974, sections 26(1) and 26A(1) and Health Service Commissioners Act 1993, section 3(1)).
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i)).
How I considered this complaint
- I read the correspondence Mr P sent to the Ombudsmen and spoke to him on the telephone. I wrote to the organisations to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
- I shared a confidential copy of my draft decision with Mr P and the Council and the Trust to explain my provisional findings. I invited their comments and considered those I received in response.
What I found
- Mr P began experiencing severe, chronic pain in 2007. He underwent surgery which left him disabled. Mr P uses an electric wheelchair and has a recurrent depressive illness and dissociative disorder along with diabetes. Mr P is under the care of a Trust Adult Mental Health Team (AMHT) and has a Care Coordinator.
- At the end of May 2016 Mr P’s Care Coordinator sent a referral to the Council. They asked for an assessment for a package of care for Mr P to reduce the pressure on his wife who was his full time carer. The Council referred the matter back to the AMHT and asked it to complete the relevant assessment.
- At the start of July Mr P contacted the Council while he was still waiting for an assessment. He said that, in addition to support at home, he also wanted a personal budget. Mr P noted that he wanted to use this, in part, to attend the Jewish Association for Mental Illness (JAMI) day centre in Edgeware.
- Mr P told the Ombudsmen his Care Coordinator and Psychiatrist had been looking for a day centre he could visit. He said they were trying to find one that would be appropriate for his religious beliefs and accessible for his electric wheelchair. Mr P said they were unable to find anything. Mr P said friends of his they recommended JAMI, which is around 30 miles from his home.
July 2016 assessment
- Mr P’s Care Coordinator visited Mr P toward the end of July 2016, along with a Council officer. The Care Coordinator completed an assessment of Mr P’s needs. This looked at Mr P’s need for support across a range of areas. The assessment noted Mr P wanted more interaction with his community. It also recorded that he enjoyed attending JAMI and said this ‘will meet both his religious and mental health needs. [Mr P’s] wife will provide the transport to and from JAMI’s which is an hour away from their house’. The assessment noted Mr P needed this support five days a week.
- The assessment said Mr P’s wife currently supported all his care needs. It noted this was not sustainable. The assessment proposed a support package of:
- Two carers visiting for one hour each morning to help with personal care
- One carer visiting for two evenings a week to prompt with medication and prepare an evening meal, to allow Mr P’s wife to leave the house and teach
- A Direct Payment to allow Mr P to access JAMI, including transport costs.
- Mr P said during the assessment those in attendance discussed and agreed on a number of activities he could pursue with the funds from the Direct Payment. Mr P said that, in addition to using the funds for petrol to get to JAMI, they discussed him using them for things such as going to watch football, rugby and cricket, going to the cinema and pursuing potential hobbies. He said they agreed to only list one thing on the assessment so not to over complicate things.
- Mr P’s Care Coordinator completed an Adult Panel Front Sheet a few days later. In relation to the Direct Payment, it noted ‘[Mr P] said he wants to attend JAMI…which will meet both his religious and mental health needs. [Mr P’s] wife will provide the transport to and from JAMI’s which is an hour away from their house. However, will require reimbursement for fuel costs due to the significant distance and number of journeys she will need to make’.
- The Care Coordinator also noted that Mr P ‘would like the flexibility to use the Direct Payment for activities at Queens Park Centre Aylesbury, as an alternative to JAMI’. Mr P said this was included on the form in error and does not relate to him. The Care Coordinator requested £30 a day for day centre costs and transport.
- A panel considered the case later in August 2016. It agreed to fund the request for carers to visit Mr P. It also agreed to a Direct Payment to cover the costs of Mr P attending JAMI but it rejected the application to cover travel costs to get there. The home care package began in September 2016.
February 2017 assessment
- In late November 2016 the AMHT contacted the Council. It said it wanted to arrange a joint visit to Mr P. The AMHT said Mr P’s physical and mental health needs needed to be dealt with separately. A Social Worker visited Mr P in early February 2017 to re-assess his needs. The assessment noted Mr P wanted more interaction with his community and needed support to do this. The Social Worker concluded Mr P was eligible for care and support. It recommended a package of support at home along with a Direct Payment.
- During their visit the Social Worker also completed a Continuing Healthcare (CHC) Checklist. The Checklist indicated the need for a full assessment. The Social Worker sent the Checklist to the CHC Team and asked for a full assessment.
Start of Direct Payment in April 2017
- Mr P signed a Direct Payment agreement at the end of March 2017. This recorded Mr P would receive a Direct Payment of £267.25 a week to meet the assessed eligible needs in his care plan. Mr P began receiving a Direct Payment of £1,065 a month in April 2017. It was paid into a pre-payment Direct Payment account.
Start of CHC funding in April 2017
- Also in April 2017 the local CHC team assessed Mr P’s eligibility for CHC funding. It wrote to him in the middle of June 2017 and confirmed it had found him to be eligible. It said the funding would be backdated to start in April 2017.
- Before this letter, the CHC team arranged for a new provider to begin caring for Mr P in May 2017.
Direct Payment back payments
- In the middle of June 2017 the Trust wrote to Mr P, in response to a complaint. It said he would receive a back payment for the period 20 July 2016 to 24 March 2017.
- Mr P’s Care Coordinator visited him a few days later. He told Mr P he would need to provide receipts for the period in question, in order for the back payment to be paid. Mr P initially disputed the need for receipts and said the Trust’s letter had not mentioned anything about them. However, the following day he agreed to provide receipts.
- In early July 2017 Direct Payment Officer completed a referral stating that Mr P should be paid £6,160. It noted this was a backdated payment for costs of travel and religious sessions.
- The Council wrote to Mr P later in July 2017. It said ‘your application for a one-off Direct Payment has been processed and that the payment of £6,160 will be made directly to your pre paid card account on 21 July 2017 with your ongoing payment. As you will be aware it is necessary to provide receipts relating to the use of the direct payment. Please ensure you attach evidence in the pre paid card system’. Mr P said he has a large box of receipts. He said his internet connection is not strong and the system would time out. Mr P said he told his Care Coordinator about this and they told him to keep the paper receipts and said they would collect them when necessary for an audit. Mr P said he still has these receipts.
- On the day the back payment credited Mr P’s Direct Payment account he made a bank transfer of £3,000 to Mrs P and £3,160 to his own account. Mr P said he and Mrs P used these funds to pay back providers (Rabbis, reflexologists, etc) that he had used the services of.
Suspension of Direct Payments
- At the end of March 2018 the AMHT asked the Council to stop Mr P’s Direct Payment. Mr P’s Care Coordinator and an AMHT Deputy Team Manager visited him. They completed a new assessment of Mr P’s needs. During this process the Deputy Manager advised Mr P his Direct Payments had been frozen. The Deputy Manager said no other funds would be available to Mr P until the outcome of this assessment was known.
Complaint response of June 2018
- The Trust responded to a complaint from Mr P in the middle of June 2018. It said Mr P’s Direct Payments were suspended ‘as it was evident that Continuing Health Care was now in place to meet [Mr P’s] identified needs. There were also concerns that the Direct Payment had not been used for the purpose for which it was agreed and that this may need to be further explored’.
- The Trust said it was clear that the impact of having CHC funding in place could have been better explained. It said, because CHC was in place, it needed to confirm that it was intended to meet all of Mr P’s needs. The Trust said the AMHT would clarify this. It said it would then confirm in writing whether there were ‘any outstanding needs which would require a further assessment of [Mr P’s] Care and Support needs under the Care Act’.
- In addition, the Trust said concerns about Mr P’s use of the Direct Payment would be further explored by the Council.
Complaint response of August 2018
- The Council and Trust sent a joint letter to Mr P in late August 2018. They said the Direct Payments were stopped because CHC was in place. They said the CHC team had confirmed its support was meeting all of Mr P’s identified needs. The Council said its current investigation would look into whether Mr P needed a new Care Act assessment.
- In addition, it said the investigation would look into whether its back payment to Mr P in July 2017 had been enough.
Council internal audit of the Direct Payment
- In June 2018 the Council’s Internal Audit team began an investigation into suspected misuse of Mr P’s Direct Payment. It completed the investigation at the start of October 2018.
- The investigation found Mr P did not adhere with the Direct Payment agreement, in terms of the agreed purpose of the payments. However, it said there were inadequate notes to say whether the consequences of misuse were explained to Mr P, or if Mr P was warned that particular expenditure was not permitted. It also noted that the care plan records were incomplete and failed to transparently state what the Direct Payment was to be used for. In addition, the investigation noted that Mr P had said his Care Coordinator told him that if he did not use all of his fund it would be taken away from him. Further, it noted Mr P said he checked with his Care Coordinator first to ensure all large value expenditure was permitted. The investigation said it could not confirm or deny if these conversations happened.
- In regard to the relationship between the Direct Payments and CHC, the investigation said it is only in exceptional circumstances where Direct Payments may continue for a CHC funded client. It said this would rely on an agreement between the Council and CCG for the Council to continue paying the Direct Payment and invoicing the CCG for the cost. It said there was no evidence to show Mr P’s case fell within this category, or any evidence of such an arrangement between the Council and CCG.
- However, the investigation also noted that a Trust Direct Payment Officer confirmed to the Direct Payment Finance Team the Direct Payment was for socialisation needs whereas CHC was for personal care needs.
- In conclusion the investigation said it could not confirm whether there were any remaining eligible support needs which the Council had a duty to meet and which CHC was not providing for. It recommended a care assessment as soon as possible to ensure Mr P’s needs are being appropriately met. It said Mr P should be made aware of the outcome via formal letter.
- In addition, the investigation said the Council and Trust should review the process for highlighting inappropriate Direct Payment expenditure. It said they should seek to ensure decisions were made in a timely manner. It also said the Council and Trust needed to ensure that, where necessary, service users would be notified of correct practices and the risk of suspension/cessation.
Complaint response of October 2018
- The Trust wrote to Mr P in October 2018. It said Mr P had used his Direct Payment for things outside of the agreement, totalling over £3,300. The Trust noted that Mr P had said he discussed these costs with his then Care Coordinator. The Trust said it could not confirm or deny this and, as such, had chosen not to seek repayment of these amounts. However, the Trust said that, in the light of these findings, it did not agree Mr P was due any further backdated payments.
- The Trust said Mr P’s Direct Payment was stopped because of his eligibility for CHC. It said that, while the CHC decision letter did ‘not explicitly state that your social care activities would be met by CHC it does not reference any needs that would be met by alternative funding arrangements’. The Trust apologised for the lack of detailed discussion about the implications of receiving CHC funding. It said this should have happened as soon as the Care Coordinator became aware of his eligibility.
- The Trust said it had asked the AMHT to complete a new Care Act assessment in partnership with the CHC team. It said this would ensure the totality of Mr P’s needs were considered. It said this, in turn, would ensure the team were clear about how Mr P’s needs were being met.
The Council delayed assessing his needs and providing financial support for his disability
- Councils must carry out an assessment for any adult when it appears they might need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve (Care Act 2014, sections 9 and 10).
- Section 75 of the NHS Act 2006 allows NHS organisations and councils to delegate their functions to one another. These arrangements are known as Section 75 Agreements. Under these agreements NHS organisations can take on the provision of social work services which are normally the responsibility of councils.
- The Council and the Trust have a section 75 agreement in place. This sets out their agreement to contribute to a pooled fund for adults and older people mental health services. The service provided through the pool is managed and provided by the Trust in terms of the exercise of both health and local authority functions. This includes the Council’s duties under the Care Act 2014.
- Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions. Therefore, if a council chooses to delegate its responsibility to carry out an assessment it must make sure the assessment complies with all the requirements. ‘Anything done by the body carrying out an assessment is treated as if done by the local authority’ (The Care and Support Statutory Guidance (the CSSG), paragraph 6.99).
- Mr P’s Care Coordinator referred Mr P to the Council for an assessment on 24 May 2016. An assessment took place on 28 July 2016; just over nine weeks later.
- The records show that, seven working days after the referral, the Council referred the matter back to the AMHT and asked it to complete the assessment. It is apparent from the papers I’ve seen that Mr P’s Care Coordinator was reluctant to complete the assessment and did not feel suitably qualified or experienced. The Council maintained it was the AMHT’s responsibility to complete the assessment under the terms of a Section 75 Agreement.
- There is evidence to show that Mr P contacted staff at the Trust and Council on numerous occasions throughout the time between the request and the assessment.
- In October 2016 the Council wrote to Mr P and said there was confusion about the type of assessment Mr P wanted and needed. It said there was a lack of communication between it and the Trust and a misunderstanding about their relevant roles. The Council apologised for the delays Mr P experienced, and acknowledged it had not completed an assessment in the established timescales; within eight weeks of first contact. The Council said it and the Trust had taken this on board and would work together to improve.
- There was fault here, which the Council has acknowledged. Regardless of the day‑to‑day arrangements under the Section 75 Agreement, the Council retained the ultimate responsibility for ensuring Mr P’s needs were assessed. Therefore, the fault lies with the Council.
- The assessment led to a support package with carers visiting Mr P at home for an hour every morning and for an hour on a couple of evenings a week. The records I’ve seen do not suggest there was a notable change in Mr P’s overall condition during June and July. As such, it seems reasonable to assume that, had the assessment happened sooner, Mr P would have received his support package earlier.
- There is no set, national standard timeframe for completing Care Act assessments. Councils should complete assessments over ‘a suitable and reasonable timescale considering the urgency of needs and any variation in those needs’ (CSSG, paragraph 6.29).
- The Council has noted it expects to complete them within eight weeks of contact. Based on the information available to me I am satisfied it is appropriate to consider Mr P’s case against this timescale. As such, I consider the starting point for the fault to be the day after the end of the eighth week. In this case it took just over a week longer. I accept there will routinely be a gap between the completion of an assessment and any plan being approved, as happened here. Therefore, Mr P missed out on Council-commissioned support for over a week.
- Mrs P was able to care for Mr P during this time. However, this caused an injustice to Mrs P as she remained Mr P’s sole carer. The support was agreed to replace some of the support Mrs P was providing, and to allow her to leave the house and teach two evenings a week. Mr P said Mrs P lost out on three hours of work at £18 an hour each time she was unable to leave. Over two evenings this equates to lost earnings of £108. I have made a recommendation to put this right, below.
- In addition, councils ‘should tell the individual when their assessment will take place and keep the person informed throughout the assessment (CSSG, paragraph 6.29). In this case that clarity did not exist for Mr P. It is evident that Mr P chased the assessment regularly and that he and his wife were frustrated and stressed by the lack of clarity in combination with the length of time it took. This was a further avoidable injustice. The Council has acknowledged that communication was poor and apologised. Given the length of delay I have found to be caused by fault this is a proportionate remedy for this injustice.
The Council and Trust’s communication was poor when responding to Mr P’s initial complaint
- Toward the end of June 2016 the Trust registered details of various concerns from Mr P. There is also evidence in the records that Mr P spoke to Council staff and noted he wanted to complain about the lack of progress with his requested assessment.
- The Trust wrote to Mr P at the end of July 2016 and provided some information about the Council having asked it to complete the assessment, and about the next steps. It wrote again in the middle of September 2016. It gave an account of contact one of its workers had with Mr P about the assessment in July 2016. It concluded Mr P had been clear he wanted someone from the Council to assess him and it tried to help with that. At the end of October 2016 the Council wrote to Mr P, as detailed above.
- In November 2016 the Trust wrote to Mr P and acknowledged that his concerns were not dealt with effectively when he contacted the Trust in August 2016. It said work was not handed over when staff went on leave. The Trust apologised for the delay.
- I consider the Trust’s apology was a proportionate response and do not consider any further action is required.
The Council underpaid Mr P £1,857.50 after it backdated his direct payment for the period August 2016 – February 2017
- The Direct Payment agreed in March 2017 was for £267.25 per week. The assessment that initially noted the need for this support took place at the end of July 2016.
- In June 2017 the Trust said it would arrange a back payment for the period 20 July 2016 to 24 March 2017.
- On 21 July 2017 £7,229 went into Mr P’s Direct Payment account: £1,069 for his usual four-weekly payment plus the £6,160 back payment. In August 2018 the Trust and Council said Mr P was paid £6,160 in July 2017 ‘for backdated payment for travel and religious sessions’.
- £6,160 equates to just over 23 payments of £267.25.
- By my calculation there are over 35 weeks from 20 July 2016 to 24 March 2017. 35 payments of £267.25 comes to £9,353.75.
- A joint complaint response of August 2018 said a forthcoming investigation would look into whether its back payment to Mr P in July 2017 had been enough.
- The Trust wrote to Mr P in October 2018. It did not include any details of how it had calculated the back payment. It also did not give a direct response to the question of whether it felt its calculation was wrong and, if so, by how much. However, the Trust noted it felt Mr P had used £3,300 of his Direct Payment money inappropriately. It said, in the light of these findings, it did not agree Mr P was due any further backdated payments. This suggests the Trust had found the back payment was low; otherwise, I assume the explanation for not providing any further funds would have been because it was satisfied the first payment was correct.
- In response to my enquiries the Council and Trust said they had not been able to locate any information in its records about how the back payment was calculated.
- In June 2017 the Trust made an undertaking to provide a back payment for a specified period of time. It is difficult to understand where the £6,160 figure came from but there is no reassurance that it is a fair and correct calculation of the reimbursement it promised. I will turn to the organisations’ concerns about Mr P’s use of the Direct Payment in more detail below. However, any concerns they had about misuse should have been handled separately from the issue of the back payment. Therefore, the Trust did not adhere to the undertaking it made. This is fault. It is very likely Mr P has been left without the full back payment the Trust found he was entitled to. This is an injustice. I have made a recommendation to put this right.
The Council stopped Mr P’s personal budget in April 2018 for misusing funds
- When councils assess a person’s needs they must establish what needs the person has but also:
- the impact those needs have on their wellbeing
- the outcomes the person wants to achieve
- whether the provision of care and support could help achieve those outcomes (Care Act 2014, section 9).
- In considering a person’s needs councils are encouraged to ‘take a holistic approach that covers aspects such as the person’s wishes and aspirations in their daily and community life, rather than a narrow view purely designed to meet personal care needs’ (CSSG, paragraph 10.38).
- There is no specific list of services that councils can use to meet an adult’s needs. The Care Act only provides examples of the types of things councils could provide to meet a person’s needs:
- accommodation in a care home
- care and support at home
- counselling, or other types of social work
- goods and facilities
- information, advice and advocacy (Care Act 2014, section 8).
- This focus on ‘meeting needs’ was part of a move away from ‘providing services’. This was to allow councils to use a wider variety of approaches to meet needs. The CSSG notes that ‘Because a person’s needs are specific to them, there are many ways in which their needs can be met. The intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants’ (CSSG, paragraph 10.10).
- To assist with this the CSSG gave some further examples of how councils could meet needs, including by:
- providing support through assistive technology or equipment (CSSG, paragraph 10.12)
- using services that are available universally, such as by putting a person in contact with a community group or voluntary organisation (CSSG, paragraph 10.13)
- allowing people to be very flexible to choose innovative forms of care and support from a diverse range of sources, including:
- information and communication technology equipment
- club membership
- massage (CSSG, paragraph 10.48).
- Personalisation is a social care approach that enables people to have more choice and control over the community care services they receive. Councils can use Direct Payments as a way of fulfilling their community care responsibilities. Instead of providing care services to meet a person’s eligible needs councils can provide a payment of cash to the service user, or someone on his or her behalf.
- The CSSG guides councils to ‘encourage creativity in planning how to meet needs, and refrain from judging unusual decisions as long as these are determined to meet needs in a reasonable way’ (CSSG, paragraph 10.31).
- It notes further that ‘However the person chooses to have their needs met…there should be no constraint on how the needs are met as long as this is reasonable. The [council] has to satisfy itself that the decision is an appropriate and legal way to meet needs…Above all, the local authority should refrain from any action that could be seen to restrict choice and impede flexibility’ (CSSG, paragraph 10.47). In line with this, the CSSG tells councils to avoid lists of allowable purchases (CSSG, paragraph 10.48).
- The CSSG also notes that Direct Payments are 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’ (CSSG, paragraph 12.35).
- Similar guidance had previously been given in 2009 by Department of Health’s Guidance on Direct Payments (the Direct Payment Guidance). This noted that people may have clear views about how their needs would be best met. It said needs could be met in a number of ways and acknowledged that ‘Some people might use their direct payments to facilitate better social inclusion, others to aid their general well-being, for example through fitness classes or arts and cultural activities’ (Direct Payment Guidance, paragraph 95).
- Regardless of how the council decides to meet a person’s needs it must ensure its plan is proportionate (Care Act, section 25(6); and CSSG, paragraph 10.43). In other words, it has to be satisfied that the whatever it provides, or pays for, will adequately meet the person’s needs.
- The council must also produce a care and support plan that, among other things:
- specifies the person’s needs
- specifies the needs the council will meet ‘and how it is going to meet them’
- if the council is going to use Direct Payments the plan should specify which needs these payments will meet (Care Act 2014, section 25(1) and (2); CSSG, paragraphs 10.36 and 10.46).
- The earlier Direct Payment Guidance had also referenced the requirements to both plan effectively but also to allow the person appropriate freedom to meet their needs in the most effective way. It noted ‘The care plan should be sufficiently clear about what will be done to enable people to meet their agreed outcomes, but should not be so detailed as to undermine the service user’s exercise of choice and control over their support arrangements’ (Direct Payment Guidance, paragraph 98).
- In Mr P’s case the February 2017 assessment noted Mr P wanted more interaction with his community and needed support to do this. It noted Mr P wanted to:
- attend JAMI
- go on a bee hive course
- continue with his religious practice and education
- go on an arts and craft course
- go and watch his Premier League football team play.
- The assessment said the support he needed to maintain personal relationships and engage in social activities was ‘Support to travel only’. It said he needed this on a daily basis (five times a week).
- The Social Worker concluded Mr P was eligible for care and support. It recommended a package of support at home along with a Direct Payment for ‘5 days – JAMI day care and activities (mentioned above) to promote his emotional well being and reduce isolation and suicidal ideation’.
- As noted previously, in March 2017 the Council agreed a Direct Payment of £267.25 per week. The Council’s Direct Payment agreement notes that:
- The money is solely to secure services that meet the needs identified in the Care Plan (Sections 2.2, 2.3, 3.3 and 4.2)
- The payments may be suspended or withdrawn if the person does not keep to the terms of the agreement (Sections 6.1 and 7.6).
- From my perspective the plan for how Mr P was to use his Direct Payment was quite vague. This is not necessarily a criticism. As detailed above, the guidance asks councils to do two somewhat contradictory things: to make a plan for how the money is to be used; but also, to ensure the person is given freedom and flexibility to use the money as effectively as possible. Nevertheless, it is evident that the lack of clarity in the plan caused uncertainty for all concerned, including Mr P, those attempting to keep a track of the Direct Payment’s use and those who later investigated matters. As noted above, the Council’s internal audit investigation also highlighted this lack of clarity.
- I have seen a copy of the Direct Payment account statement from April 2017 to the start of November 2017. During this time Mr P received £7,483 in Direct Payments (not including the back payment of £6,160). From the limited information I had it appears Mr P used the money in a number of ways, including:
- £3,862.27 (51.6%) on religious classes and sessions
- £1,921.25 (25.7%) on football, motor sport, cricket, rugby and other tickets
- £1,272.87 (17%) on fuel
- £1,050 (14%) on reflexology.
- Once a council has arranged support to meet a person’s needs it must keep those arrangements under review (Care Act 2014, section 27). The review process is about making sure the support is working and, if not, what should change to help avoid any crisis situations (CSSG, paragraphs 13.1 and 13.10 to 13.12).
- In line with this, councils need to be able satisfy themselves that Direct Payments are being used to meet the care and support needs in the person’s plan. To do this, councils should have systems in place to monitor Direct Payment usage. They must complete a review in the first six months and every year after that. Councils should record reviews in writing and give a copy to all parties (CSSG, paragraphs 12.24 and 12.66).
- Following on from this, guidance is clear that councils should only terminate Direct Payments ‘as a last resort, or where there is clear and serious contradiction of the Regulations…[Councils] should take all reasonable steps to address any situations without the termination of the payment. Effective, but proportionate monitoring processes will help local authorities to spot any potential issues before a termination is necessary…’ (CSSG, paragraph 12.67).
- The CSSG notes that one instance where a council might decide to stop Direct Payments is when ‘it is apparent that they have not been used to achieve the outcomes of the care plan’ (CSSG, paragraph 12.73).
- When a council is considering stopping a Direct Payment it should discuss this with the person as soon as possible. This discussion should look into possible options before ending the Direct Payment (CSSG, paragraph 12.80).
- If a council decides to stop a Direct Payment:
- It must make sure there is no gap in the person’s support (CSSG, paragraph 12.68)
- There should be a period of notice (CSSG, paragraph 12.81).
- Councils should only stop Direct Payments without notice in serious cases. It should explain to people at the outset that this could happen (CSSG, paragraph 12.82).
- I have not seen any evidence the Council or Trust completed a proper review of the Direct Payment in the first six months or before the account was suspended. There is evidence to show officers were monitoring the account and did have concerns about its use. However, there is no evidence to show this was effectively discussed or explored with Mr P. Specifically, I have not seen anything to show he was told any of his expenditure was not allowed, or that any further clarity was given about what the Direct Payment could or could not be spent on. I have also not seen evidence that Mr P was given a warning about the payments being suspended. This is despite clear opportunities to do so.
- Records from the organisations show that:
- A Social Worker saw Mr P at the start of May 2017. They talked about how the Direct Payment was going and Mr P said he was using it appropriately. There is no further detail of the discussion and no evidence of any advice of follow up.
- The Direct Payment Team wrote to Mr P in early May 2017 and asked him to attach evidence for payments he had made.
- In June 2017 Mr P’s Care Coordinator told Mr P there were some queries about his Direct Payment spending. They discussed tickets to motor racing, a tourist attraction, a cricket match, reflexology and religious sessions. Again, there is no evidence of any advice about whether this spending was permitted or not, and no evidence of follow up with any other Council or Trust officers about it.
- Later in June 2017 Mr P’s Care Coordinator spoke to Mr P and noted his intention to pay for membership of the Premier League side he follows. There is no evidence of any comment about the appropriateness or otherwise of this.
- In early August 2017 the Council Finance Team emailed colleagues about Mr P’s spending, noting motor racing and theatre tickets, a Premier League season ticket and the payment to his wife of approximately half of the back payment. The Council asked the Trust’s mental health team to investigate. They noted ‘I think that we need to be clear with [Mr P] about what the [Direct Payment] should be used for and providing receipts for these activities. Otherwise his [Direct Payment] might be stopped’. I have not seen any evidence to show this was followed up or discussed with Mr P.
- At the end of August 2017 the Finance Team again contacted colleagues and noted concerns about a lack of evidence for Mr P’s expenditure. An officer asked the Trust’s mental health team to look into it and to ask Mr P to attach receipts. Again, I have not seen any evidence to show this was followed up or discussed with Mr P.
- In mid-February 2018 the Finance Team emailed colleagues and noted payments for hotel costs and asked what type of spending was allowed. A further email about the same costs was sent at the end of February 2018, querying if the Direct Payment should be suspended. I have not seen evidence of a response to either email, or follow up with Mr P.
- At the end of March 2018 Mr P’s Care Coordinator spoke to Mrs P and said the Direct Payment was to be stopped ‘as a result of perceived misuse of the funds’.
- The lack of a review of Mr P’s Direct Payment, despite a clear need for a review, is fault.
- In the complaint response of June 2018 the Trust said the Direct Payment stopped because of concerns that it had not been used for its agreed purpose and because CHC was in place to meet his needs. However, the subsequent responses of August and October 2018 said the Direct Payment was stopped because CHC was in place and was meeting all his identified needs.
- Stopping a council-funded Direct Payment when a person is found to be eligible for CHC would be in keeping with guidance on CHC. Care funded by CHC can be provided in any setting, and the relevant Clinical Commissioning Group (CCG) is responsible for planning and providing the care (The 2012 National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (the National Framework), section 108). This means that ‘where a person is eligible for NHS continuing healthcare the NHS is responsible for meeting their assessed health and social care needs’ (National Framework, section 2.3 of the Practice Guidance). It is up to the relevant CCG to decide what support a person needs. However, the CCG should work together with the local council, along with the eligible person and their carer, to establish what the person needs (National Framework, section 167; and CSSG, paragraphs 6.75 to 6.83).
- However, while the explanation lines up with the guidance, I have not seen persuasive evidence to support the contention that this is what prompted the suspension of Mr P’s Direct Payment. This is because:
- The CHC Checklist of February 2017 did not include any information about cultural, religious or socialisation needs.
- In early May 2017 a care provider emailed the Council and noted Mr P had been found to be eligible for CHC funding. The Direct Payment stayed in place.
- In late May 2017 the Council called the CHC Team which confirmed Mr P qualified for CHC funding and said a new provider had been caring for Mr P for two days. The Direct Payment continued.
- In early June 2017 a Council officer confirmed to Brokerage that Mr P was now CHC funded. The Direct Payment continued.
- The CHC Team’s decision letter, from mid-June 2017, references Mr P’s physical and mental health needs, and the interaction between them. It did not include any information about Mr P’s cultural or socialisation needs.
- The Council’s Audit Investigation noted that during an expenditure review the Direct Payment Finance Team raised a query about Mr P receiving a Direct Payment when he was CHC funded. It said a Trust Direct Payment Officer said the Direct Payment was to meet Mr P’s socialisation needs whereas the CHC was to meet his personal care needs.
- In late March 2018 Mr P’s Care Coordinator told Mrs P the Direct Payment was to be stopped due to perceived misuse of funds.
- A Mental Health Care Plan of June 2018 noted Mr P’s funding for activities had been suspended due to queries about his use of his personal budget.
- The complaint response of June 2018 (about two and a half months after the Direct Payment was stopped) said the Trust needed to confirm if the CHC funding was intended to meet all of Mr P’s needs.
- The Council’s Audit investigation, which began in June 2018, was asked to consider whether Mr P had any remaining eligible care and support needs which the Council had a duty to meet and which were not covered by CHC funding. In October 2018 the completed investigation said it was unable to confirm whether this was the case or not. As such, it recommended professionals should perform a needs assessment as soon as possible to ensure Mr P’s needs are being appropriately met.
- There is more compelling evidence – referenced above – that the Direct Payment was stopped due to concerns over Mr P’s use of it. This is reinforced by the Trust’s last complaint response (in October 2018) which listed specific expenditure it said had been outside of Mr P’s plan, totalling over £3,300.
- I have not seen evidence to show that Mr P was given advance warning that the Direct Payment was to be stopped, or that he was told to stop spending on certain things. Where there is evidence of discussion about his use of the Direct Payment there is no evidence of any advice or warnings being given. Therefore, it seems the payments were stopped with immediate effect. This is not in keeping with the statutory guidance.
- In addition, given that the evidence suggests the payments were stopped because of concerns about their use (and not because of CHC being in place), I have not seen evidence of any alternative care and support being put in place to replace the Direct Payments.
- Further, even if the presence of CHC funding influenced the decision to stop the Direct Payments, it remains that there was a lack of clarity about whether the funding covered all of Mr P’s needs. As noted above, there was still uncertainty about whether the CHC package covered all of Mr P’s needs in October 2018, months after the Direct Payment stopped, as highlighted by the Audit team investigation. This is not in line with the National Framework. This notes that if either a CCG or council wants to withdraw from a funding arrangement there needs to be a joint reassessment of the person, and they need to consult each other about the proposed change. This is to make sure that alternative arrangements can be put in place without any disruption (National Framework, section 143).
- The Council and Trust have highlighted the CHC decision letter of June 2017. They noted it does not list any needs which are not covered by the CHC funding. Therefore, they said this is evidence that Mr P did not have any outstanding needs. However, in the face of the evidence listed above, I do not consider this letter is sufficient confirmation of the situation. In view of the uncertainty about what the CHC funding covered (noted in the Trust’s complaint response of June 2018 and the Council’s Audit investigation) the onus was on the Council and Trust to clarify this. There is no clear evidence that they did so.
- In summary, there was fault in the decision to stop Mr P’s Direct Payment in April 2018. There should have been a formal review of the Direct Payment while it was active. Any concerns about its use should have been openly and explicitly discussed with Mr P and any restrictions on its use should have been made clear. Further, the issue of whether the CHC funding covered all of Mr P’s needs, including socialisation and religious and cultural needs, should have been clarified and made explicit before any funding was removed. Neither of these things happened.
- As a result of this fault there is still uncertainty about whether funds to meet Mr P’s identified socialisation and cultural needs were removed without alternative arrangements being in place to meet them. As of mid-February 2019 the Council and Trust said a joint assessment had just been completed by it and the CHC team. It said the assessment was yet to be finalised and agreed.
- Mr P said that, due to prior commitments he made when the Direct Payment was in place, ‘All the time I am begging and borrowing money from friends to pay for direct debits that need to be paid or I get handed over for collection’. Mr P said he and his wife were struggling financially as they had been trying to cover the payments they were committed to paying via his Direct Payment. He said this had placed them in debt. Based on the evidence detailed above, this is an injustice that flowed from the fault I have found. I have made a recommendation to put this right.
- Within six weeks of the date of the final decision the Council (and/or the Trust, depending on the practicalities of the section 75 agreement) will:
- Write to Mr P to acknowledge the failings identified in this decision. It will also apologise for the avoidable stress these faults caused.
- Pay Mrs P £108 to reimburse her for lost earnings caused by the delay in completing a needs assessment between May and July 2016
- Complete a new calculation of the back payment for Mr P’s Direct Payment for the period 20 July 2016 to 24 March 2017. This calculation should be clear and should be shared with Mr P and the Ombudsmen. The Council will also make a new back payment to Mr P for any difference between the new calculation and the £6,160 it credited to him in July 2017.
- Complete a calculation of the amount of Direct Payments Mr P would have received from the time the payments were stopped in April 2018 and the time when the new joint social care/CHC assessment is finalised and agreed. Again, this calculation should be clear and should be shared with Mr P and the Ombudsmen. The Council will also make a back payment to Mr P for the full amount of the missed payments.
- Request from Mr and Mrs P evidence of any interest they have incurred since the Direct Payment was stopped and which directly relates to payments which would have been covered by the Direct Payment. On receipt of appropriate evidence, the Council will make a payment to Mr and Mrs P of the amount of interest.
- Pay Mr and Mrs P (jointly) £500 as a tangible acknowledgement of the avoidable stress they were caused by the faults in this case.
- Within three months of the date of the final decision the Council and Trust will complete an action plan to address the faults identified in this decision. In particular, the Council and Trust should ensure that appropriate systems and training is in place to keep Direct Payments under review, and that any concerns are appropriately addressed and followed up. The Council and Trust should also take steps to make sure care arrangements are clear when funding arrangements change.
- I have completed my investigation on the basis that there was fault which led to an unremedied injustice. The Council has agreed to take action to put things right.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman