London Borough of Lambeth (18 002 708)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 05 Jul 2019

The Ombudsman's final decision:

Summary: We uphold Ms A’s complaint about a council stopping her direct payment because there was a failure to consider whether she could continue to manage with additional support. There was also fault in the failure to address a long-term under spend, a failure to give clear directions about how Ms A could spend a surplus of her direct payment and a failure to tell the payroll company the agreed funding. This caused Ms A avoidable distress. To remedy the injustice, the Council will apologise, pay Ms A £250 and pay her carers’ invoiced wages for December 2017 plus redundancy payments. We do not uphold complaints about funding in 2016, about inadequate agency care or about complaint handling.

The complaint

  1. Ms C complains on behalf of her sister Ms A about London Borough of Lambeth (the Council). She says the Council:
      1. failed to act on the social worker’s recommendation from February 2016 that Ms A needed additional NHS funding;
      2. stopped Ms A’s direct payments without sufficient warning and without properly considering her circumstances;
      3. Arranged inadequate commissioned care to replace the direct payment; and
      4. Provided a complaint response by an officer who was directly involved in her case.
  2. Ms C wants the Council to reinstate Ms A’s direct payment at an appropriate level and for it to allocate a different social worker from a different team. She also wants the Council to pay Ms A’s personal assistants’ unpaid wages.

Back to top

The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We have investigated this complaint although some parts of it are late. This is because it concerns a chain of continuing events about the funding and arrangements for Ms C care resulting in a complaint about stopping direct payments which is not late. The relevant records are also available.
  3. 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)
  4. 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)

Back to top

How I considered this complaint

  1. I considered Ms A’s complaint to us and supporting documents, the Council’s response to her complaint and documents from the Council’s social care team described later in this statement. We discussed the complaint with Ms A. Both parties saw a draft of this statement and I took their comments into account.

Back to top

What I found

Relevant law and guidance

  1. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
  2. A council must act with a view to ensuring the integration of care and support provision with health care services where it considers that this would improve the quality of care and support for adults (Care Act 2014, section 3 (c))
  3. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
  4. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
    • Managing and maintaining nutrition
    • Maintaining personal hygiene
    • Managing toilet needs
    • Being appropriately clothed
    • Making use of the home safely
    • Maintaining a habitable home environment
    • Accessing work, training, education
    • Making use of facilities or services in the community
    • Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)

  1. The Care Act explains the different ways a council can meet eligible needs by giving examples of services that may be provided including: accommodation in a care home, care and support at home, counselling and social work and information advice and advocacy. (Care Act 2014, section 8)
  2. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
  3. A council should keep a care and support plan under review and conduct a formal review at least every 12 months. It should revise a plan where circumstances have changed in a way that affects the care and support plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
  4. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
  5. A person with eligible care needs can have a council arrange their care. Or, if they wish, they can arrange their own care using a payment the council gives them (‘a direct payment’). (Care Act 2014, section 31)
  6. Councils must make a direct payment to people who request to have one as long as:
  7. The person (or their representative) has mental capacity;
  8. The council is satisfied the person can manage a direct payment with support if needed; and
  9. The council is satisfied a direct payment is an appropriate way of meeting the need in question.
  10. Councils should take all reasonable steps to provide support to help people to manage a direct payment. Some councils have contracts with voluntary agencies to provide direct payment support. (Care and Support Statutory Guidance (CSSG), paragraph 12.21)
  11. Councils should have regard to the training needs of personal assistants employed through a direct payment and provide access to training. (Care and Support Statutory Guidance, paragraph 12.51)
  12. Councils must be satisfied the person is using the direct payment to meet the care and support needs set out in the plan. If they are not satisfied, they must stop the direct payment. (Care Act 2014, section 33)
  13. Councils can stop a person’s direct payment if the council thinks they can no longer manage them, even with support. The person should first be given greater support to demonstrate they can manage (CSSG paragraphs 12.71 and 12.80). If a council decides to withdraw a direct payment, it should review the care and support plan and agree alternative provision, giving notice. (CSSG paragraph12.81)
  14. Councils must monitor direct payments. They should not place high administrative burdens on users, but monitoring should go beyond financial monitoring and may include identifying wider risk issues. (CSSG paragraph 12.4)
  15. Continuing Healthcare (CHC) is a package of ongoing care arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step is for a health or social care professional to complete a CHC checklist. The threshold for meeting the checklist is low.
  16. If the checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. The relevant NHS Clinical Commissioning Group will then decide if the person is eligible and if so, what the care package will be.

What happened

Background

  1. Ms A has physical disabilities arising from a progressive neurological condition. She is mainly bed-bound. In 2016, she lived in her own home with a package of care, which she arranged herself using a direct payment from the Council and funding from the Independent Living Fund. The Independent Living Fund ended in June 2015 and so the Council needed to carry out reviews or fresh assessments on Ms A.

2016

  1. The Council told me Ms A’s agreed council funding at the start of 2016 was for:
    • 45 minutes in the morning, two carers required
    • 30 minutes in the evening, two carers required
    • 3 and a half hours of care a week, to be used flexibly when required
    • 4 nights a week night care support
    • Independent Living Fund (ILF) funding was £205 a week with no particular use. (It appears the Council continued paying the ILF part of the care package when the ILF ceased to exist in June 2015)
  2. A social care assessment in February 2016 noted Ms A had eligible needs. Ms A said she needed to be turned every two hours (with two people to support her to do this). A physiotherapist had told the social worker Ms A needed regular turning but not necessarily every two hours and the need would be reduced if Ms A sat out in her chair. The assessment said Ms A had eligible care needs. There was no recommendation for NHS funding, but the social worker recommended:
    • An OT (occupational therapy) assessment and possible referral to a physiotherapist to assess Ms A’s needs for turning;
    • Carers did not hoist Ms A until a further OT assessment because they had not been properly trained and were putting themselves and Ms A at risk.
  3. Ms A’s physiotherapist contacted her social worker in March 2016 to say her current personal assistant and her son had not had training in using the hoist. The social worker agreed to refer Ms A to the OT for a review.
  4. Ms A’s OT emailed the social worker to say after reviewing Ms A, she had advised her not to use the hoist (because her current care staff had not received training). The OT noted she had arranged training for Ms A’s carers to use the hoist in April, but Ms A had declined this saying she wanted to wait until her husband arrived in the UK. The OT advised against using the standing hoist at all as it was unsafe. The OT gave Ms A information about manual handling training courses and asked Ms A to get in touch when her husband arrived. The OT noted the carers should not be using the other hoist until they had been trained. The social worker noted Ms A’s children appeared to be providing her with personal care despite a care package being in place.
  5. In April 2016, the social worker asked Ms A’s physiotherapist if she needed to be turned every two hours and whether this was necessary to prevent pressure sores or whether alternative equipment was needed instead of two-hourly turning. The physiotherapist said Ms A should be turned regularly, but maybe not every two hours, as long as she sat out in the chair. The social worker said Ms A rarely left her bed. The physiotherapist said Ms A’s current bed made safe moving and handling difficult and that Ms A would not need to be turned much if she sat in the chair regularly.
  6. The social worker’s case summary at the end of April said Ms A’s needs remained unclear after her social care assessment and more input from the OT and possibly a physiotherapist would be beneficial. A further review would be needed in three months once her needs around turning and other night time care had been established. The social worker recommended the existing hours were reorganised so Ms A had four calls a day rather than two. The social worker was concerned that if the hours were reduced, it would result in Ms A getting her children to provide night time support (which they did not want to do).
  7. Ms A’s OT visited her at the start of May. The OT noted Ms A had not altered her bedroom furniture to make manual handling safer. The OT gave Ms A details of manual handling courses for her carers and advised that she needed to ensure they were trained as she was their employer. The OT said she would visit again to complete a manual handling demonstration with Ms A’s carers – once Ms A had sorted out her bedroom. A further visit was scheduled, but Ms A cancelled this. It was rebooked.
  8. In June, the OT showed Ms A’s carers how to transfer her from the bed to her chair safely. With Ms A’s agreement, the OT arranged for a profiling bed (a hospital bed) with rails to be installed. The OT also completed a moving and handling plan for Ms A’s personal assistants to follow.
  9. Ms A went into hospital at the end of June 2016. The hospital OT spoke to her social worker. The latter explained she had reviewed the care package and recommended Ms A spread her care calls evenly throughout the day and the community OT had assessed her and recommended Ms A was hoisted from her new profiling bed to a chair to reduce the risk of pressure sores. The social worker said Ms A told her she was not keen to make these changes. The hospital OT said Ms A’s needs had not changed functionally. The community OT agreed to visit Ms A at home because Ms A had reported she could not use her hands and was having difficulty eating.
  10. The OT visited Ms A at home in the middle of August 2016. She noted Ms A was using the profiling bed with a privately bought vibrating mattress and not with the pressure relieving mattress supplied. The OT discussed the risks with Ms A. The OT observed two carers moving Ms A from the bed to the chair. She noted Ms A had reduced strength in her left hand and lent to the left when sitting in the chair. The OT ordered a different type of chair for Ms A.
  11. A moving and handling care plan noted Ms A weighed needed two carers to support her to roll/turn, to move between the bed and chair/shower chair. Manual lifting was not recommended.
  12. In September, the OT visited Ms A to adjust the new chair. The OT asked Ms A why there were not two carers present. Ms A told the OT she had one carer present all day every day as she was afraid of being alone. Ms A said on Mondays and Fridays there were two carers and the children helped with hoisting at other times. Ms A said her son slept in her bedroom in a single bed. The OT noted Ms A did not mention having a night time carer. The OT recommended Ms A rearranged her personal assistants’ hours to enable her to be hoisted in and out of bed so that she did not spend all her time in bed.
  13. Ms A went into hospital in November with a fractured hip. Ms A told the hospital OT the fracture happened while her son was hoisting her. The social worker spoke to the hospital OT who said Ms A had refused to be hoisted on the ward and did not need to be turned at night. The hospital OT said she would reiterate the benefits of sitting out of bed regularly. The social worker noted Ms A was using her care hours against professional recommendations.
  14. An internal email between council staff in November noted concerns that Ms A was using her children to provide her care when this was not needed and this put both her and the children at risk of injury. A manager proposed the Council stopped Ms A’s direct payment and commissioned her care instead. This proposal was not put into place.
  15. Ms A was discharged from hospital in December 2016. It appears her direct payment restarted and the intention was to carry out a fresh assessment of need.
  16. Direct payment records showed Ms A had almost £8000 in her direct payment account at the start of 2016 and over £11000 at the end of June 2016. The balance was £12000 in January 2017.

2017

  1. A care and support plan dated January 2017 described Ms A’s eligible needs. The care and support plan noted Ms A’s night time support needs were unclear. She had arranged one personal assistant to provide waking night support seven nights. She said she needed turning every two hours, but a physiotherapist said Ms A would not need to be turned at night if she sat out in her chair. The care and support plan gave Ms A’s weekly personal budget of £721. This was to be paid at 15.85 hours at £11.48 and 5.25 hours at £12.03 and 36 hrs at night at £7.49. The plan said Ms A should have a functional assessment by an OT.
  2. There was a further care and support plan in February 2017 with the same funding as the previous plan. This noted Ms A’s night time care was provided by the father of her daughter and there had been previous concerns about the use of the direct payment. The plan included a timetable of care:
    • One hour in the morning with 2 carers for personal care and breakfast
    • 30 minutes at lunch with two carers for toileting, lunch and cleaning
    • One hour at dinner time with two carers to support Ms A with dinner preparations for her and her family; toileting, getting ready for bed
    • One hour a week domestic support
    • Four nights a week night care (council funding)
    • Three nights a week night care (family support)
    • Carer to support Ms A flexibly with community outings, putting away shopping and attending health appointments).
  3. In February 2017, Ms A and the social worker spoke on the phone. The social worker noted there was no change in Ms A’s needs but she completed a checklist for NHS continuing healthcare. Ms A did not score enough points to trigger a full continuing care assessment.
  4. The Council did financial monitoring of the direct payment in March 2017 and the intention was to ask Ms A to pay back an £11000 surplus in her direct payment account. It appears the Council did not pursue this because she used the surplus later on in the year to fund additional care (see later).
  5. In March 2017, the OT visited Ms A. She noted the bedroom was cluttered with no room for two carers to work. The OT observed the carers performing tasks. There were no slide sheets and Ms A said she did not know where these were. Ms A was hoisted to the chair and sat well. The OT advised Ms A to clear her bedroom to enable carers to work safely. The OT said she would order a different hoist when Ms A arranged for the room to be cleared. The OT noted Ms A needed two carers to give personal care on the bed; one to provide care, the other to assist with turning.
  6. Ms A went into hospital for 10 days at the end of June. Her social worker visited Ms A in hospital and Ms A said she had been using her direct payment to pay two personal assistants to support her twice a day and also to fund an overnight carer. Ms A said her son had also been caring for her. The social worker noted the current care and support plan (see paragraph 45) allowed for 47.5 hours a week and night care ‘however this was never implemented.’ The social worker asked hospital staff to complete charts of night time care as some hospital staff said Ms A needed care at night and others said she did not.
  7. An internal email at the end of June said there was a package of care proposed in March by a social worker who no longer worked for the Council. This was never approved and the intention was for the case to be reallocated and reviewed but this never happened. A manager noted there were several direct payment ‘episodes’ and so it was unclear what was currently being paid and there was ‘some debate around the current care and support plan in terms of hours.’
  8. Ms A returned home at the start of July. She had contacted the social worker on the day she went home to say she wanted to leave hospital and have her existing direct payment restarted and for her care to be reviewed in the community. The social worker noted that the care Ms A had been organising was not in line with her February 2017 care and support plan and she had been using the direct payment for two calls a day (double handed care) and one carer overnight. She also used her family for unpaid care. The social worker noted on 30 June 2017, in an internal email that she had proposed Ms A ‘consider whether she has accrued any excess direct payment funding within her account (during hospital admissions) which she may be able to use flexibly to purchase some additional support from her personal assistants. She will then require reassessment at home to be completed as soon as possible’
  9. The social worker phoned Ms A to see how she was. Ms A told the social worker she had ‘taken out additional support from her direct payment as she was advised to do so by the hospital’.
  10. A case note in July said:
    • Ms A’s social worker was still unclear about night time care needs.
    • NHS advice in 2016 was if Ms A sat in her chair, she would not have night time care needs.
    • This needed to be considered further and the social worker was awaiting medical information from the GP.
  11. Another case note reported hospital staff had been repositioning Ms A every two to three hours at night during her admission in June.
  12. A social care assessment took place in July 2017. This noted Ms A was bed bound and had previously broken her hip. She could not weight bear, transfer or turn in bed. Ms A was choosing to have only one carer present at times and was putting herself at risk as she needed two carers for transfers and turning. Ms A reported that one carer was repositioning her by putting pillows under her. She also said she had not been sitting in her chair regularly. She said she did not like going out and preferred to stay at home. He night time needs were not clear. The social worker spoke to one of Ms A’s personal assistants who said he provided continence support at night and gave Ms A drinks. Hospital staff had said she needed repositioning every two to three hours at night. She continued to have only one carer although this was placing her at risk and she relied on her children for care although this was against their wishes. The outcome of the assessment was no change to the care hours.
  13. The social worker’s manager noted Ms A was not using the direct payment as intended. It was hard to establish how much care Ms A needed at night, but if there was not a paid carer, she would rely on her children to provide care. She had blocks of time in the day where she needed support but did not have it. The manager noted council-managed care was an option to ensure Ms A was getting an appropriate level of support.
  14. In November 2017, the social worker noted her concern about Ms A not sitting in her chair and insisting she required night time support when there were no medical recommendations for night care. Ms A continued to use her direct payment in a way not reflected in her care and support plan.
  15. Mrs A’s personal assistant phoned the social worker at the start of November to say Ms A had received a letter from the payroll company saying she was overspending the direct payment and there was not enough money to cover her personal assistants’ wages in December. The payroll company also contacted Ms A’s social worker as well, saying Ms A had submitted time sheets in excess of the agreed hours. There had been surplus money in the account, but from August Ms A had increased the personal assistants’ hours and this had used up the surplus and she was continuing to submit timesheets in excess of agreed hours (38 hours plus four nights.)
  16. The social worker and her manager visited Ms A in the third week of November. Ms A said she had not been well enough to manage the direct payment and her personal assistant had been managing the rotas. Ms A said her family felt she needed someone with her all the time and so the personal assistant had arranged for two carers to be present when her family were not around, and seven nights a week for her night carer. Ms A said she needed continence care at night and did not want to use pads. The social worker told Ms A the Council was going to take over the care arrangements and she intended to cut Ms A’s night care as there was no evidence she needed it. The social worker discussed the proposed care and support plan:
    • Three double handed personal care, toileting and meal calls 30 minutes in the morning, afternoon and night (two carers);
    • One call at lunch for one hour (personal care, toileting, meal);
    • Weekly domestic and laundry and cooking;
    • No night care.
  17. The social worker said there would be a review in six weeks. Ms A said she would rely on her son for night care. The social worker spoke about the risks of this.
  18. Ms A told the social worker she was unhappy with the proposed changes and she felt she had managed a direct payment well for years. She said the hospital told her she could use the surplus in her direct payment account and she wanted to complain.
  19. The social worker told the payroll company the new hours and asked them to pay in line with these hours and no more.
  20. Ms A and the social worker spoke at the end of November. The social worker agreed to complete a checklist for continuing healthcare. She did this and Ms A did not score enough points to trigger a full assessment for continuing healthcare. Ms A’s personal assistant said the new hours were not enough. Ms A’s mother also contacted the social worker and said Ms A needed someone with her all the time.
  21. The payroll company told the social worker it had received invoices for £5000 and Ms A only had £3000 in her direct payment account.
  22. The social worker emailed Ms A with the agreed weekly hours (see paragraph 60).
  23. Ms A went into hospital in December 2017. She called the social worker about problems with paying her personal assistants. The social worker said Ms A had continued to organise care above what had been agreed, even after she had been warned, and so the Council was going to stop the direct payment.
  24. The hospital completed a checklist for continuing healthcare and Ms A again did not score enough points to trigger a full assessment.
  25. On 21 December, the hospital discharge nurse confirmed Ms A did not have night time care needs. She had no pressure sores (these had healed), she had possible moisture lesions which did not need dressing. She needed routine skin care, repositioning in the day and leaving to have a good rest at night (no turning at night). She did not need a turning mattress. Her needs could be met easily with four double handed care calls a day. Ms A was ready for discharge.
  26. The social worker emailed the hospital to say the Council had paid Ms A’s direct payment for December and she had already spent all the money. The Council would put in a commissioned service, but this would not start until January. The social worker said she was seeking legal advice on whether the Council would pay the personal assistants’ unpaid wages, but the view was Ms A was their employer and so the responsibility for payment was hers.
  27. Ms C contacted the social worker on her sister’s behalf. The social worker confirmed the plan was to start council-commissioned home care at the beginning of January and that Ms A had no night time care needs and any continence needs at night could be met by pads and sitting out in the day would reduce the risk of pressure sores. Ms C said Ms A’s children were being put under pressure to provide night time care and their father, who had been providing care at night, was no longer available. Ms C said Ms A had increased the hours on the recommendation of hospital staff at a previous admission. This had led to her first and only overspend.
  28. The social worker spoke to the payroll company in the middle of December. Ms A had put in timesheets at the end of November that were more than the hours on the care and support plan.
  29. The social worker told Ms C:
    • Ms A was the employer and was responsible for paying her staff;
    • Ms A should have told the Council she was not managing (instead of asking her personal assistant to take on managing the hours);
    • There had been a large surplus in the account indicating care was not being provided;
    • More recently, a surplus of £13,000 had been spent in 4 months;
    • Direct payments were discretionary and the Council could take steps to provide care where the account was mismanaged;
    • The social worker spoke to Ms A about all this at a meeting, but Ms A continued to submit invoices in excess of the agreed funding.
  30. A care and support plan in December 2017 said
  31. ‘It is recommended Ms A uses her support spread evenly throughout the day. But she uses it in blocks during the day. She has previously said she wants to go into a care home. It appears this is due to her anxiety at being left alone for any periods of time.’
  32. The agreed funding on the care and support plan was for 39 hours a week (with no night time care):
    • Two carers for 30 minutes in the morning and at tea time for personal care, continence care and breakfast preparation;
    • Two carers for one hour at lunch time for personal care, toileting, lunch and general tidying;
    • Two carers for 30 minutes in the evening for support with toileting, personal care and getting ready for bed;
    • One carer for one and a half hours a week for housework and laundry; and
    • One carer for two and a half hours a week for bulk cooking.

2018

  1. Agency care started at the beginning of January. Ms A made a formal complaint about the same issues she has raised with us.
  2. The Council did not uphold Ms A’s complaint saying:
    • It stopped the direct payment because Ms A had not been using the money as set out in the care and support plan;
    • The social care assessment of February 2016 raised concerns about how the hours were being used and that the way Ms A was structuring her care led to her children taking on more care than was necessary;
    • An occupational therapist’s (OT) assessment in March 2016 indicated Ms A’s personal assistants did not know how to use equipment to support Ms A with transfers. Ms A was responsible for ensuring her personal assistants had appropriate training. A physiotherapist also noted that personal assistants were not following recommendations about using the hoist and supporting Ms A to sit out in a chair. This was noted again in July 2017;
    • The personal assistants had not implemented any of the OT’s recommendations in May 2016 and Ms A cancelled a manual handling training session for her personal assistants;
    • In September 2016, there was only one personal assistant present when an OT visited. Ms A told the OT that she had one carer with her all day due to anxiety;
    • Ms A broke her hip due to her son lifting her alone;
    • In March 2017, during an OT visit, the personal assistants were not following recommendations about turning Ms A;
    • In September 2017, the payroll company, told the Council about over-spending. And in November, the payroll company wrote to say that there were no funds to pay personal assistants due to over-spending; The payroll company told the Council Ms A had submitted time sheets of £5000 for November 2017. The monthly direct payment was £1853;
    • The social worker and her manager visited Ms A at the end of November 2017 to discuss over-spending;
    • The care and support plan was for 38 hours of support per week (in total) delivered by two carers over 19 hours;
    • The Council was entitled to stop a direct payment if not satisfied a customer could manage it;
    • The Council intended to speak to the payroll company as it should not have paid out wages more than set out in the care and support plan;
    • The Council intended to review the current care and support plan as Ms A had suggested the hours were not sufficient.
  3. The team manager explained in a meeting with Ms A and Ms C that it was the Council’s procedure for a team manager to investigate and respond to a complaint.
  4. The social worker told Ms C that ward staff had said Ms A had no night time needs; continence needs could be met with pads. The social worker told Ms C all the December direct payment money had been used up in the first two weeks of December.
  5. Also in January, Ms C asked the social worker if and when the Council would consider reinstating the direct payment. She said the agency carers did not have enough time and had been rushing. They had left Ms A in a soiled pad, not given her medication and her catheter was leaking. The social worker said the Council would not reinstate the direct payment at the moment because it had not been managed properly, there was a large surplus and then an unacceptable over spend that had not been agreed by the Council.
  6. The social worker referred Ms A to an OT for a review to establish how long care tasks were taking.
  7. The agency spoke to the social worker and said carers did not have enough time to complete tasks as Ms A was fatigued and could not co-operate. Also, she had asked carers to prepare a dish that took a long time to cook and she expected the whole house to be cleaned. The agency said three of the calls needed to be increased by 30 minutes due to Ms A’s poor mobility in her limbs.
  8. The records suggest the social worker referred Ms A to a direct payment support service, but the service did not visit Ms A until the middle of January, by which time the Council had taken over the care package.
  9. The social worker referred Ms A to a physiotherapist in February as she had reported difficulty with feeding herself and to asses her turning needs. The social worker also asked the agency to give a detailed account of what the carers were doing, especially around cooking and housework.
  10. Ms C emailed the social worker on 8 February saying Ms A had been hoisted for the first time that day. Ms C said Ms A had not had a hair wash, clean sheets or a change of clothes for five weeks and carers were saying they did not have enough time. A manager replied saying the plan was to review Ms A’s care, allocate an OT to look at moving and handling a refer Ms A for physiotherapy.
  11. The social worker spoke to Ms A’s GP in the middle of February. The GP said he had looked at her sacrum two weeks ago and there were no concerns. She had frequent urine infections and this could not be avoided. He had no reported concerns about her bowels.
  12. Also in the middle of February, the OT and district nurse visited Ms A. I have summarised the notes and agreed actions below:
    • Ms C needed a specialist review of her upper limbs and bowel function;
    • The GP needed to review her pain relief as she was getting bowel overflow day and night and this could be related to constipation/compacted bowels;
    • Ms C had an ulcer due to untreated thrush in her intimate areas;
    • The district nurse recommended: two carers transferred Ms A out of bed on to a commode four times a day for out of bed toileting and a shower every day to boost her mood and ensure good tissue viability. She should sit out twice a day when eating to aid digestion and bowel movement. There was no need for turning at night as there were no pressure sores. She should have regular trips out in her wheelchair. She needed to trial/learn to be alone for short periods;
    • It was unclear if Ms A ever tried a pressure mattress; she was just using a standard mattress. Ms A should be on a pressure mattress, but to push this may be counterproductive to obtaining Ms A’s consent to being hoisted out of bed with the aim of opening her bowels on the commode;
    • Ms A was used to having people around all the time and it may take a long time for Ms A, who was anxious about being left alone, to get used to being on her own;
    • The Council should increase 30-minute care calls to 45 minutes immediately as a temporary measure. The OT would then observe care calls (in particular, hoisting) so she could see how long they needed to be and make final recommendations about call length;
    • The OT would arrange for Ms A to try a different hoist;
    • The OT was concerned carers had not raised concerns with the GP about the ulcer on her intimate areas and that the carers on the day were not confident about manual handling;
    • There were two personal assistants present (funded privately) and this might be unhelpful in terms of Ms A’s anxieties about moving to an agency care package (reinforcing Ms A’s concern that an agency package would ever work) and they had also bought an over the counter laxative without informing the GP.
  13. Ms A, the GP, OT, agency and private carers met at the end of February. The GP explained Ms A’s condition was progressive and could affect her legs and arms. The GP had referred Ms A for physiotherapy with the aim of maintaining her current function. The GP said:
    • Ms A would benefit from regular enemas and sitting upright on the commode.
    • It was safe to hoist her after pain relief took effect;
    • The district nurse would monitor the thrush and ulcer and would train carers in washing intimate areas.
  14. The social worker completed a review of Ms A’s care and support plan in February 2018. Ms C was concerned carers did not have enough time to complete all the tasks on the care and support plan. The OT was assessing to see if this was the case. Ms A had recently said she wanted to go out and visit her family. The action was to increase the care package temporarily until the OT had assessed the time needed for visits and sought additional medical information. The case notes indicate that at the end of February an increase in funding was agreed for an additional 15 minutes for care visits where there was hoisting.
  15. The OT carried out three visits in March to observe agency carers completing tasks. The OT recommended an additional 30 minutes time for feeding on three of the visits. The case notes indicate this was implemented temporarily at the end of March by a service manager who asked the social worker to complete a fresh assessment and continuing healthcare checklist and also to look at community access, parenting and the use of the domestic call.
  16. The care and supported plan of March 2018 (updated in May, June and August 2018) said:
    • It had been recommended Ms A needed turning at night. A nursing placement was suggested but Ms A declined this;
    • There was a change in her condition (reduced limb movement);
    • Ms A said she used to go out weekly when she employed personal assistants. She would like to go out, do voluntary work and resume writing. She was allocated 6 hours funding for this starting May 2018;
    • Funding was agreed for a temporary increase of 63 hours a week to support with repositioning/night care while an NHS continuing healthcare assessment took place. Total funding was £1368.90.
  17. The care and support plan had a detailed timetable setting out how the funding was to be used.
  18. At the start of April, Ms C emailed the OT to say Ms A could not use her hands. She had been unwell at the weekend due to running out of insulin. Her son did not respond to her when she called him. In the end she spoke to a GP who advised her to call an ambulance. She was not admitted.
  19. The OT visited Ms A the next day and found her unwell. The OT phoned an ambulance and checked the district nurses log book, finding they had not visited to give Ms A her insulin. She spoke to the district nurses who thought Ms A was in hospital. The OT asked Ms A why she had not said anything. Ms A said she was too unwell.
  20. Ms C contacted the Council to say Ms A was in hospital because of failures in her care. Ms C said Ms A’s family were sleeping in her flat to be on hand.
  21. The plan was for a new social worker to complete a fresh assessment. The ward completed a continuing healthcare checklist.
  22. Ms A left hospital in the last week of April. The records suggest she discharged herself. Ms C asked for the direct payment to be reinstated. The Council said this would be discussed at a future meeting and the existing package would be restarted meantime.
  23. Ms A had two further short admissions to hospital in May. The social worker carried out an assessment in May 2018. This reflected the changes in Ms A’s condition (skin integrity, bowels, limb function) and noted the family’s views (they did not see why her care had been reduced in December 2017 when her needs had increased and were supplanting the Council package with private carers) and that Ms A now wanted to leave the house.
  24. In May, the Council agreed a further temporary increase to Ms A’s care to allow for two 30 minute visits a night and six hours a week of support for Ms A to access the community. This was to be with a direct payment. The daytime care would continue to be arranged by the Council.
  25. Ms A had two brief admissions to hospital in June and went home with antibiotics. During one admission, she saw a neuro physiotherapist who said she did not have any potential for rehabilitation and had weaknesses in her shoulders which limited her arm movements and was physically weaker than when previously seen.
  26. In the middle of June, a manager agreed funding by a direct payment for eight hours a night for one carer and two 30-minute night calls by a second carer for repositioning, fluids and continence care and to support the other night carer with moving and handling. The social worker emailed Ms C to let her know about the new funding. Six hours of support for community access was also in place. The social worker advised Ms C she had arranged for the district nurse to show the night time carers how to reposition Ms A. The increase was because the district nurse had confirmed Ms A had pressure sores on her sacral area and needed repositioning day and night. An assessment for continuing health care was to take place.
  27. An internal email in June said the care funding was 60 hours council funding and 63 hours direct payment funding from 11 June to 23 July. This was extended. The social worker advised Ms C of the new funding saying it was to support Ms A while the Council reassessed her needs.
  28. Ms A went into hospital again in August. The social worker advised Ms C the Clinical Commissioning Group would carry out an assessment for NHS continuing healthcare. Ms A was awarded NHS continuing health care funding in October 2018.

The Council’s position:

  1. The Council told me Ms A’s social worker carried out an overview assessment in February 2016. The social worker requested functional assessments to better understand Ms A’s care and support needs. No changes were made to the care and support plan at this time. Ms A was advised on many occasions to ensure her personal assistants were trained and to arrange care in line with recommendations. Concerns were:
    • It audited the direct payment account in March 2017 and requested a claw back due to under spending. The concerns started in June 2017. Previously there had been no concerns;
    • Ms A’s personal assistants were not properly trained in moving and handling;
    • Hours were not delivered in line with the recommendations of spreading calls evenly;
    • Ms A was invoicing for more hours than she had been assessed for meaning she would be unable to pay staff for hours already delivered;
    • The Council asked her for copies of her personal assistants’ contracts in December 2017 but these were never provided. Ms A said an agency helped her with the contracts at first, but she sorted out contracts herself for later staff;
    • In June 2017, a hospital social worker said Ms A may be able to purchase additional support from her personal assistants using any surplus direct payment, but she needed an urgent assessment at home. This took place at the start of July but there was still no clarity about whether Ms A had night time care needs;
    • There were many attempts to clarify Ms A’s needs at night. Information was conflicting;
    • Officers told Ms A on many occasions about how many hours she had and how these could be used. If she had stuck to the care and support plan, she would have had enough money to pay her personal assistants. She continued to over spend, even after multiple warnings;
    • The payroll company did not have a copy of the care and support plan and paid out on invoices submitted by Ms A who had told them the hours;
    • Additional funding was agreed in February 2018 following an OT visit.

Was there fault?

Complaint a: The Council failed to act on the social worker’s recommendation from February 2016 that Ms A needed additional NHS funding

  1. There is no evidence in the case records that the social worker recommended NHS funding in February 2016 or at all. It would not be for a social worker to make decisions about NHS funding and there is no evidence to support Ms A’s claim. I do not uphold this complaint.
  2. In terms of the Council’s role in referring Ms A for NHS funding, the records show either social care staff or NHS hospital staff completed continuing healthcare checklists. The checklist is a screening assessment to see if a person’s needs suggest they require a full NHS continuing healthcare assessment which is completed by an assessor from the Clinical Commissioning Group (CCG) or a person approved by the CCG. The checklists completed in 2017 for Ms A did not did not trigger full continuing healthcare assessments. CHC was awarded in October 2018 after the Council’s referral in June. There was no fault in the Council’s actions.

Complaint b: The Council stopped Ms A’s direct payments without sufficient warning and without properly considering her circumstances

  1. The Council’s reasons for stopping the direct payment and commissioning Ms A’s care were that she was not managing it properly because:
    • A surplus had accrued;
    • She had overspent; and
    • She was not using the money to meet needs set out in the care and support plan.
  2. The surplus: Records show Ms A had a large surplus in her direct payment account in 2016, which increased in 2017. This suggests Ms A may not have been organising enough care in 2016 and 2017. But there is no evidence in the case records that officers specifically addressed a concern about the surplus with Ms A. The Council’s failure to address the surplus with Ms A in 2016 was fault: a council has a duty to keep a care and support plan under review generally and to monitor the direct payment. The reviews in Ms A’s case did not address the surplus. This was not in line with section 27 of the Care Act 2014 or Paragraph 12.4 of Care and Support Statutory Guidance and was fault.
  3. The overspend: The case records indicate a social worker told Ms A she could use the surplus to organise additional care in June 2017 pending a further assessment, when she left hospital. And Ms A told the social worker several days later that this was what she was doing. The social worker did not give further guidance (either orally or in writing by drawing up a short-term urgent care and support plan, for example) about what was a reasonable or appropriate way to use the surplus which the Council had allowed to remain in Ms A’s direct payment account since the start of 2016. So there was a lack of clarity about what Ms A could do with the surplus, how much she could spend and for how long. The failure to be clear with Ms A was fault which caused Ms A to overspend. I am satisfied Ms A genuinely thought she could use the surplus and did so. I can find no specific record of advice from the Council about what exactly she could use the surplus for (above and beyond what was set out in the existing care and support plan), I have no grounds to conclude she acted against advice. I note also that council officers were themselves confused about funding because there were several direct payment episodes on the system in the first half of 2017. The Council should have had a clear system so officers could easily see what the direct payment in place was to enable them to give Ms A accurate advice. The confusion about funding and lack of advice about use of the surplus was fault.
  4. Not using the money to meet the needs in the care and support plan: Officers were concerned about the way Ms A was organising her care and the case records evidence several discussions with her about this. There were recommendations in 2016 and 2017 that Ms A have two carers present for safe moving and handling, that she spread her calls more evenly through the day and that she cleared her room and moved large items to enable her carers to work safely. There were offers and arrangements made by the OT to train Ms A’s carers in safe moving and handling. The evidence suggests Ms A did not respond positively to professionals’ recommendations and continued to have one carer present all the time and to use her family for care when this could have been avoided. There was no fault in the Council requiring Ms A to spend the direct payment in line with the care and support plan to ensure the care was meeting her eligible needs. The actions taken in respect of advising on training in manual handling were in line with Paragraph 12.51 of Care and Support Statutory Guidance.
  5. Officers met with Ms A before stopping the direct payment to discuss their concerns. This was in line with paragraph 12.81 of Care and Support Statutory Guidance. There is conflicting evidence about whether the Council considered options short of stopping the direct payment, such as getting a direct payment support service involved to assist Ms A as required by paragraphs 12.21, 12.71 and 12.80 of CSSG. A worker from a direct payment support service visited Ms A but this was not until January 2018 when she was already receiving commissioned care. The involvement of the direct payments support worker was therefore too late because there was no direct payment in place.
  6. On balance, I consider the Council failed to consider options short of ending the direct payment entirely and so its actions were not in line with paragraphs 12.71 and 12.80 of Care and Support Statutory Guidance. This was fault. I have taken into account that Ms A could also have self-referred to the direct payments support service, however the onus is on the Council to consider options short of stopping a direct payment. Had the Council made an urgent referral to the direct payment support service in November 2017, the direct payments worker could have taken action to prevent further mismanagement, such as putting in place a rota for Ms A’s personal assistants within approved hours. I also note the payroll company had been paying out on hours in excess of the approved hours on the care and support plan. The Council said in its complaint response that it would address this with the payroll company. I consider the Council’s failure to update the payroll company about what the authorised hours were was fault. Ms A complains she could not pay her personal assistants for hours they had already worked in December. I consider this was partly due to the payroll company paying hours in excess of the care and support plan in previous months and so reducing the surplus, meaning there was no ‘buffer’ for the excess hours Ms A continued to submit. I have taken into account that Ms A also had a responsibility as the employer to manage arrangements so her employees could be paid and she could have alerted her social worker that she was not managing earlier. Having taken that into account, I consider there was still fault by the Council as described in this paragraph.

Complaint c: The Council arranged inadequate commissioned care to replace the direct payment

  1. Ms A and her sister raised concerns about the agency care from the outset. Their most pressing concerns were around the length of time for care calls and about night time care and whether this was a need arising from Ms A’s medical condition (as opposed to a preference because she did not like to be alone at home). I note Ms C raised concerns in January and February that Ms A had not had a hair wash or a change of bedding or clothing. This seems unlikely given the frequent presence of private carers and family members in the home. Carers present when the OT visited were not confident in using the hoist, so it is unlikely agency carers were hoisting Ms A in January. Ms A was also noted to be reluctant to be hoisted.
  2. It is clear agency care was not working well in January and February 2018. But, I do not uphold the complaint that agency care was inadequate, because the Council acted in line with Sections 3 and 27 of the Care Act 2014 because it responded to Ms A’s concerns promptly and:
    • Made an urgent temporary increase to the care until it could complete a full review and then made increases to care to include longer day calls, night time care funding and funding for access to the community (through a direct payment.) This was in line with section 27 of the Care Act 2014;
    • Sought advice from the OT, GP and district nurse and other health professionals about the length of calls, about the change in Ms A’s upper body strength and skin integrity and how this should affect the length of care calls and whether night calls were now needed. This was in line with section 3 of the Care Act 2014; and
    • Referred Ms A for NHS assessments and services (district nursing, physiotherapy.) This is was in line with section 3 of the Care Act 2014.

Complaint d: The Council provided a complaint response by an officer who was directly involved in her case.

  1. The Council’s normal process is for a team manager to respond to a complaint. Our guidance on complaint handling suggests staff who are named in a complaint should not be expected to respond to complaints about them. As this complaint was not about the team manager, I do not consider it to be fault for her to have provided the Council’s response to the complaint, although she may have been involved in the management of the case.

Agreed action

  1. I have found fault in the Council’s:
    • Failure to consider involving a support service before stopping Ms A’s direct payment;
    • Failure to address the long-term underspend with Ms A in 2016 and 2017;
    • Failure to specifically advise Ms A in writing what she could spend the surplus on and for how long; and
    • Failure to tell the payroll company the approved hours.
  2. The fault caused Ms A avoidable confusion and meant she organised care and spent direct payment money above what had been approved on her care and support plan. It also caused her avoidable distress over a loss of control over her care arrangements when she could have been offered more support to continue with the direct payment.
  3. I have taken into account that the Council has already paid the direct payment Ms A was entitled to receive in December 2017. However, because of the confusion about what she could use the overspend for and the lack of support from the direct payment support service to manage, I recommend and the Council agrees to pay Ms A’s personal assistants their unpaid wages for December 2017. According to records, the unpaid wages are £3122.51. A redundancy payment is also due to one carer (£3341.93). The Council will check with Ms A to see if she had insurance to cover the redundancy payment and if not, it will arrange the payment.
  4. The Council will also apologise to Ms A and pay her £250 to reflect her avoidable distress at having the direct payment removed. The Council should complete the actions within one month and I will require evidence of compliance.
  5. As the NHS now funds Ms A’s care, it would not be appropriate for me to recommend the Council reinstates her direct payment or allocates her a different social worker.

Back to top

Final decision

  1. We uphold Ms A’s complaint about a council stopping her direct payment because there was a failure to consider whether she could continue to manage with additional support. There was also fault in the failure to address a long-term under spend, a failure to give clear directions about how Ms A could spend a surplus of her direct payment and a failure to tell the payroll company the agreed funding. This caused Ms A avoidable distress. To remedy the injustice, the Council will apologise, pay Ms A £250 and pay her carers’ invoiced wages for December 2017 plus redundancy payments. We do not uphold complaints about funding in 2016, about inadequate agency care or about complaint handling.
  2. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings