Oxfordshire County Council (17 018 339)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 05 Apr 2019

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to provide adequate support to her daughter, Ms D, to help her manage her direct payments. It also failed to pay Mrs X properly when she acted as Ms D’s personal assistant. The Council was at fault as it failed to pay Mrs X appropriately as a personal assistant for Ms D. It failed to take appropriate steps and let the situation drift when Mrs X and Ms D did not sign the support plan and direct payment agreement. The Council has agreed to pay Mrs X £9,100 to acknowledge the support she provided to Ms D and to pay her an additional £1,000 in recognition of the additional carer’s strain the Council’s faults caused her. It has also agreed to remind staff of the need to ensure suitable payment arrangements are in place when carers are paid under an exceptional circumstances agreement.

The complaint

  1. Mrs X complained the Council failed to provide adequate support to her daughter Ms D, to manage her direct payments. This led to an HMRC bill and caused Ms D distress.
  2. In addition, she says the Council failed to provide proper payment to her for the care she provided to her daughter in her capacity as her daughter’s personal assistant. Mrs X says this caused her increased carer’s strain and financial difficulties.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered the information provided by Mrs X and have spoken to her on the telephone. I have considered the information provided by the Council in response to my enquiries.
  2. I gave Mrs X and the Council the opportunity to comment on a draft of this decision.

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What I found

  1. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
  2. Where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
  3. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
  4. If a person receives a direct payment from the Council to pay for their care, then the general rule is that person cannot usually hire a family member to provide their care if they live in the same house as the cared for person.
  5. The Care and Support (Direct Payments) Regulations 2014 set out the conditions under which a direct payment can be made. Section 3 says:
    • ‘Direct payments must be made subject to the condition that they must not be used to pay any person mentioned in paragraph (3) to meet the needs of the adult in respect of whose needs the direct payment is made’. Paragraph 3 refers to people living in the same household and includes parents.
  6. It goes on to say, ‘Except that, if the local authority considers it is necessary to do so, direct payments may be used to pay a person mentioned in paragraph (3)’.
  7. Very rarely, a close relative living with the direct payment recipient may be considered to provide the paid care. However, there must be a very clear exceptional reason for seeking this arrangement and it must first be authorised by the Council.
  8. The Care and Support Statutory Guidance states ‘the local authority must take all reasonable steps to reach agreement with the person for whom the plan is being prepared’. It goes on to say ‘in the event the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure the plan is signed off…..If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure’.

What happened

  1. There was a significant amount of correspondence between Mrs X and the Council regarding this complaint. Mrs X contacted the Council very frequently about the care arrangements. The chronology below does not show everything that happened but provides an overview of key events. I only considered what happened regarding Ms D’s care and support up to June 2017 when Ms D moved out as this is the period Mrs X complained about regarding her role as a carer for Ms D.
  2. Ms D is an adult with a learning disability. She has seizures and anxiety. She moved back home in March 2016. Mrs X contacted the Council and requested a needs assessment and direct payments for Ms D. She said Ms D requested use of a personal budget via direct payments and Ms D to pay her (Mrs X) on an interim basis until they employed carers.

Ms D’s care and support from April to October 2016

  1. In April 2016 the Council visited Ms D to complete a needs assessment. Ms D had an advocate present along with Mrs X and two other relatives. In the needs assessment the Council recorded Mrs X agreed to manage Ms D’s finances. The Council sent Mrs X a direct payment agreement in May 2016. Mrs X did not sign it as she had not seen the support plan. Mrs X sourced two personal assistants (PAs) for Ms D.
  2. Mrs X wrote to the Council in May 2016 and requested authorisation to work as Ms D’s personal assistant. She told the Council Ms D wanted some respite care and she had still not seen the support plan. The Council held a support planning meeting in June 2016. At the meeting, the Council advised Ms D and Mrs X of the proposed personal budget of around £410 a week, which amounted to around 20 hours of support per week. At the meeting the Council did not agree to Mrs X acting as a personal assistant for Ms D because it did not consider there were exceptional circumstances.
  3. Mrs X wrote to the Council and requested a contingency plan as she would not leave Ms D with carers who had not been checked by the Disclosure and Barring Service. She asked the Council to sign an exceptional circumstances agreement so she could provide cover.
  4. On 30 September 2016 the Council signed an exceptional circumstances agreement which allowed Mrs X to be paid for some of the support provided to Ms D. This said ‘Mum is allowed to provide paid support in the event the main carers are not available due to ill health or not available for some other reasons and mum cannot source available support from any carer agency. Mum works full time and she will willingly take time off and give her time to care for [Ms D]. It seems fair for mum to receive payment for some of the care she provides to [Ms D]. This exceptional circumstances agreement will be reviewed by the allocated worker every 6 months as [Ms D] continues to develop her independence and manage most of her daily routines’.
  5. Under the Council’s exceptional circumstances agreement ‘the personal assistant must not manage the direct payment funds’.
  6. The social worker sent Mrs X the direct payment agreement, support plan and exceptional circumstances form in October 2016. Mrs X and Ms D did not sign the direct payment agreement and paperwork which would have enabled the Council’s payroll service to manage the direct payments. To ensure Ms D received support the Council agreed to administer the payment invoices for Ms D’s PAs as an interim measure.
  7. In October 2016 Ms D got a new social worker. At the handover meeting Mrs X requested a reassessment of Ms D’s needs as Mrs X considered the level of support was not sufficient.

Ms D’s care and support following the November 2016 reassessment

  1. The Council reassessed Ms D’s needs later that month. The social worker noted the current arrangement was under strain. The main concerns were around the sufficiency of the care package, the carer stress and impact on Mrs X, the need for continued psychiatric and psychological support for Ms D and the need for updated and robust risk assessments around seizure management.
  2. The social worker noted Mrs X requested live in care to meet Ms D’s social and health care needs. They noted this level of provision would support Mrs X as a carer and enable her to work without daily carer stress. The social worker recorded the carer stress was reported to be unsustainable and that Ms D and Mrs X’s GPs wrote in support of this. Ms D’s consultant supported the need for 24 hour care support for Ms D to ensure the appropriate management of risks related to her seizures.
  3. The social worker noted in November 2016 ‘there is no formalised care provision in place and there appears not to be an agreement or consensus on actual care support required…..issues with the direct payment agreement remain unresolved with no signed/agreed contract in place. It has been confirmed that the current arrangement of care and methods of PA payment (including payment for [Mrs X] as an exceptional carer) cannot continue and the arrangements need to be more robust and formalised in agreement to the Council’s direct payment policy’. It went on to say ‘an Exceptional Circumstances agreement has been made which enables [Mrs X] to be paid as an exceptional/emergency carer for [Ms D] this appears to be up to the level of £175/week’.
  4. In November 2016 the social worker noted on the needs assessment that Ms D had consented to Mrs X assisting with her finances. The social worker noted Ms D received support from two carers with the possibility of additional support from a third. Mrs X also received payments of up to £175 a week as an exceptional carer.
  5. The social worker noted Mrs X could no longer provide the current level of carer support to Ms D. It was having a significant impact on her health, emotional and mental well being.
  6. In November 2016 the social worker emailed one of Ms D’s PAs and said the current method of payment was not appropriate and needed changing. In November 2016 Mrs X contacted the national minimum wage investigation unit at the HMRC due to the number of hours of support she provided to Ms D which she said the Council had not paid her for.
  7. The social worker requested an increased budget in December 2016 to approximately £1000 a week to source a live in carer, following Ms D’s reassessment. Ms D had problems finding carers to meet her needs due to issues with availability and the cost of care agencies. The Council proposed having an interim live in care package which would allow for time to explore other options moving forward and would stabilise the current home environment. It would provide consistency in support to Ms D. The Council’s funding panel approved this in December 2016.
  8. Ms D was due to stay with a friend over Christmas. However, this broke down and Ms D returned home. Mrs X contacted the Council as the care provider said it could not source live in care until the new year. In the notes the social worker recorded Mrs X said she could provide the support but to do so she would not be able to work and would need payment under an exceptional circumstances agreement.
  9. The Council set up some interim home care to support Ms D in January 2017. The social worker said a one off direct payment could be set up to meet Ms D’s support needs until a formal arrangement was in place. The social worker requested a timetable of PA hours for consideration and for details of the days of work Mrs X had missed since Ms D returned home after Christmas. The social worker told Mrs X the extra PA support should not exceed the budget of £1000 a week agreed by the Council’s panel.
  10. The social worker met with their manager in late January 2017 as there was a delay in sourcing live in care. They considered a multi disciplinary meeting was needed to discuss whether Ms D required 24 hour care and to discuss seizure management. The notes recorded the need to explore other care options due to the delay in arranging live in care and the need to discuss direct payments with Mrs X.
  11. Mrs X refused to sign the live in care agreement or draft support plan as the Council had not resolved the issue of paying her as a carer. Mrs X told the Council Ms D needed full time care due to her erratic seizure patterns and it needed to pay her as a carer because she could not work while supporting Ms D. The social worker agreed to discuss a three week handover/phased introduction arrangement for the live in care.
  12. The social worker spoke with Mrs X in February 2017. They explained that it was the responsibility of the person in receipt of a direct payment to enter into a contract with the agency or PAs they employ. Therefore, live in care for Ms D could not commence until Mrs X signed the direct payment agreement. They explained the direct payment agreement was separate from the support plan and needed to be flexible. It would require further agreements between Ms D and the care provider about how breaks would be covered. The Council agreed to a three week transition period for a live in carer. Mrs X wanted to know what it expected her to cover in terms of care support for Ms D.
  13. Mrs X complained to the Council she had provided 24 hour care without a break, in breach of the working time regulations. She did not want to sign the support plan as she did not want the Council to expect her to provide care for Ms D without pay or appropriate rest periods. The Council responded that Mrs X was a family member and not an employee in terms of the working time regulations.
  14. At the end of February Ms D stayed with a friend and told the Council she did not want live in care, so the Council cancelled the arrangement to provide live in care. Two weeks later Ms D moved back to live with Mrs X and requested that the care package be reinstated. In March 2017 the Council emailed Mrs X and recommended an alternative live in care provider. Mrs X was not happy with the provider’s Care Quality Commission inspection (CQC) report so the Council did not pursue this further. The Council arranged a meeting with Mrs X, Ms D and a live in care provider.
  15. In late March 2017 the Council sent a direct payment agreement and support plan for Ms D to sign. The Council told Mrs X it could not proceed with live in care unless she signed the direct payment agreement. Mrs X refused to do so without confirmation of what it would pay her should the arrangement fall through. The Council said it was for the care provider to provide a replacement carer if the arrangement fell through. The Council emailed Mrs X and suggested she send in an invoice for £350 which was double the exceptional rate agreed previously. It said it had not agreed to pay her at the PA rate.
  16. The Council wrote to Mrs X in April 2017 and said it would put an alternative payment arrangement in place to enable the live in care provision to move forward. The care provider was working to find a suitable carer. The Council told Mrs X it would wait on a response from HMRC before responding to her about hours and pay.
  17. In May 2017 Mrs X contacted the Council. In the notes the Council recorded Mrs X did not want to be the default carer for Ms D. She said she could not work full time due to her caring role and the number of hours of support she was providing to Ms D. She also said Ms D was sleeping better since a change in her medication and ‘waking night support’ was no longer needed. Mrs X said she would not cover any breaks and would only sign the direct payment agreement if the Council agreed to pay her if the formal care was not provided. Mrs X had taken a significant amount of time off from her full time job because of the carer’s strain placed on her.
  18. Later in May 2017, the Council had a teleconference. It summarised it had not been possible to provide 24 hour care with the existing care providers. An interim support plan needed agreeing. Mrs X was sending the Council 5 to 6 emails a day, and contacting staff by telephone at least twice a week. It noted it needed to confirm whether to pay Mrs X an hourly rate as a contingency carer. It also noted the neurologist needed to complete a review regarding Ms D’s needs for 24 hour care.
  19. At the end of May 2017 Mrs X spoke with the social worker’s manager. Mrs X said she had left work and was not going to go ahead with a live in carer but would manage Ms D’s care with a combination of support from her and other PAs. The manager told Mrs X there would need to be an agreement to the exceptional circumstance of a relative in the same household being paid to provide support. The payroll would need to be managed by the Council’s payroll company. The manager said this was an interim measure so that Ms D could continue to develop her independence.
  20. The Council considered Mrs X’s proposal. It considered Mrs X could not manage the direct payments if she was paid as a carer so Ms D would need to manage the direct payments. It deemed she had capacity to sign a timesheet and agree the number of hours delivered. Its payroll company could manage the payroll and Mrs X could coordinate the care arrangements.
  21. In June 2017 HMRC decided there was no contract in place between the Council and Mrs X so she was not a worker for national minimum wage purposes.
  22. In June 2017 Ms D moved out and said she wanted to live independently. Ms D returned to live with Mrs X in July 2017. At that time Ms D’s consultant said she did not require 24 hour care. Ms D moved out again in August 2017.

Mrs X’s complaint about her lack of payment

  1. Mrs X continued to correspond with the Council about the amount she felt she should be paid for the hours of support she provided to Ms D when she was assessed as requiring 24 hour care. In September 2017 the Council calculated Ms D had a direct payment surplus of around £3500. It proposed paying this to Mrs X for the care and support she gave to Ms D. Mrs X was unhappy with this proposal as she said it was not enough to pay for the amount of hours she had covered. She complained to the Council.
  2. The Council responded in November 2017. It provided Mrs X with a breakdown of how Ms D had used the £1000 a week personal budget. It agreed Mrs X could receive additional payments for those weeks Ms D did not spend her full weekly budget. Mrs X continued to correspond with the Council. She wanted it to pay her the minimum wage with appropriate holidays, tax and pension contribution.
  3. In its complaint response in February 2018, the Council accepted it agreed Mrs X could be paid to support Ms D as it was difficult to source care for her. It said there was no agreement to the hours of care Mrs X would provide, the level of payment and no signed contract. It said that at a minimum wage level of £7.50 per hour the budget would be £1260 and it agreed to a revised budget at that level for the period in question. Mrs X requested payment at the minimum wage level between December 2016 and June 2017 when Ms D was allocated 24 hour care. The Council said it would consider this if Mrs X provided it with:
    • timesheets for each day she provided care;
    • a letter from her employer setting out the days/times she was at work during this period; and
    • information from her employer on dates of sickness as it would not pay her when she was in receipt of sick pay.
  4. The Council said once it had received this information it would calculate an acceptable figure for payment.
  5. Mrs X has not provided this information to the Council. She considered the Council should be able to calculate the hours she supported Ms D. She remained unhappy and complained to the Ombudsman.
  6. Ms D has since signed a direct payment agreement and the Council’s payroll company is now administering Ms D’s direct payments. The HMRC has written to Ms D since August 2018 asking for her outstanding PAYE/national insurance contributions.

Findings

  1. In May 2016 Mrs X was unwilling to sign the direct payment agreement until she had seen the support plan. The agreement stated it should be read in conjunction with the support plan. The form also stated ‘if you have any questions about this agreement (including the terms and conditions) or the Support Plan, please ask for additional information before you sign this agreement’. It was understandable that Mrs X did not want to sign the agreement until she had seen the support plan.
  2. The Council then agreed to a support planning meeting with Mrs X and Ms D. The Council did not agree, at the time, to pay Mrs X as a carer for Ms D. Mrs X asked the Council to address her concerns about the proposed plan so she could sign the plan and direct payment agreement.
  3. The Care and Support Statutory Guidance sets out that councils should refer people to the complaints procedure if support plans are not agreed. Mrs X would not sign the support plan and direct payment agreement and the Council allowed the situation to drift. It should have referred Mrs X to the complaints procedure and did not do so. This is fault.
  4. When Mrs X refused to sign the direct payment agreement the Council took no substantive action to address this. It could have chosen to withdraw the offer of direct payments and instead offer a commissioned care service. It did not do so. The Council agreed to pay the care invoices in the interim when Mrs X had not signed the agreement. However, in doing this, it failed to clarify with Ms D and Mrs X what information it expected from them, what their responsibilities were and what the Council’s role was. This led to confusion over who was actually the employer and what Ms D’s responsibilities were in relation to the personal budget. This is fault.
  5. The Council has since revised its guidance to staff on direct payment agreements. This now states ‘it is a legal requirement we receive agreement for a direct payment however before you stop or suspend the payments you will need to consider:
    • Can we meet the person’s needs by an alternative service?
    • Does the person have mental capacity?
    • If not, has a best interests meeting been held?
    • Has a risk assessment been completed?’
  6. It goes on to say that ‘If we are unable to offer any alternatives after considering the above factors and having assessed as having eligible needs, you will need to discuss with your service manager to agree to pay with the implied agreement to the terms. This must be the very last resort and will not be authorised unless there are no alternatives.’
  7. Mrs X had difficulties finding carers to support Ms D so the Council agreed Mrs X could be paid as Ms D’s carer. The updated support plan from November 2016 referred to Mrs X being paid £175 per week. However, the Council failed to clarify how this was calculated or how many hours of support this related to. This is fault. Mrs X invoiced the Council for £175 a week. The invoice did not set out how many hours of work this related to. The Council was responsible for managing the direct payments but did not query this or ask Mrs X to provide timesheets or any other breakdown of the care she provided. It did not ask her for any evidence of what it was paying her for or what support she provided. This is fault.
  8. When the Council assessed Ms D as needing 24 hour care it accepted Mrs X was under significant carer stress and the arrangements needed to be more robust and formalised. The Council had a duty to meet the needs set out in Ms D’s care and support plan which included the provision of 24 hour care. There was a delay in finding suitable 24 hour live in care but this was not as a result of fault by the Council.
  9. The Council identified a care provider but there was a delay in sourcing the care as the care provider needed to identify a suitable carer. The Council then offered an alternative provider but Mrs X refused them due to their CQC report. Ms D then decided she did not want live in care so the Council cancelled the care provider. Ms D then asked for the care to start again so the Council sourced a new provider before Mrs X decided 24 hour care was no longer required.
  10. However, during this period Ms D still required care. The Council commissioned some interim home care to work alongside Ms D’s previous PAs, and it told Mrs X the care provided should not exceed the £1000 budget. In late March 2017 the Council offered to pay Mrs X £350 a week without specifying what for or what she was expected to cover.
  11. The Council failed to clarify what Mrs X could be paid for or how she should record her hours. This is fault. Mrs X repeatedly stated she did not want to provide unpaid support to Ms D and could not afford to do so as it impacted on her ability to work.
  12. HMRC are now pursuing Ms D for a payment. It is not clear what this relates to or how this has arisen. This is causing her anxiety. As Mrs X and Ms D did not sign the direct payment agreement the Council was responsible for managing the direct payments and ensuring associated issues regarding tax payments were sorted out. However, HMRC has contacted Ms D directly and the Council says Ms D has explicitly refused to allow it to speak to HMRC on her behalf. Until Ms D allows this, the Council cannot consider what the HMRC bill is for and who should therefore pay it.
  13. The Council has offered to consider paying Mrs X at the minimum wage level if she provides timesheets for the care hours she provided, details of when she received paid work from her employer and when she received sick pay. This is unfair. Mrs X was not asked to complete timesheets at the time and so cannot now know exactly what hours of support she provided to Ms D and when. In addition, I would not expect the Council to pay Mrs X an hourly PA rate for night time care as she was sleeping in her own house and Ms D did not need full waking support during the night. It was also evident the need for night support reduced significantly during this period. In March 2017 the Council suggested paying Mrs X £350 a week and in these circumstances I consider this an appropriate level of payment.
  14. Mrs X has raised issues regarding the working time regulations and employment law. It is not for the Ombudsman to consider whether there were any breaches of employment law or the working time regulations. If Mrs X intends to pursue these matters further she may wish to seek legal advice.

Agreed action

  1. The Council has agreed, within one month of the final decision on this complaint, to contact Ms D and request her agreement for it to contact the HMRC to clarify what is owed to HMRC and why. If the debt results from Mrs X’s role as a paid carer for Ms D the Council should pay this debt. If Ms D does not provide her consent to the Council within 14 days of its request, I would not expect the Council to take any further action on this matter.
  2. The Council has agreed to pay Mrs X £9,100 as an ex gratia payment, which is equivalent to £350 per week. This is to acknowledge the care and support she provided Ms D which should have been formalised between December 2016 and June 2017.
  3. In addition, the Council has agreed to apologise to Mrs X and to pay her £1,000 to acknowledge the additional carer’s strain placed on her by the faults I have identified.
  4. Within two months of the final decision, it has agreed to remind staff of the need to ensure there is a suitable arrangement in place to manage direct payments when an exceptional circumstances agreement has been made. It should provide the Ombudsman with evidence to show it has done this.

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Final decision

  1. I have completed my investigation. There is fault by the Council leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman

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