Lancashire County Council (18 012 204)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 05 Aug 2019

The Ombudsman's final decision:

Summary: Miss B complained about how the Council carried out her social care assessment, the information it gave her, its recovery of direct payments and its refusal to accept her mother as her personal assistant. There is fault in how the Council approached the assessment, how it shared information and set up the direct payments and in how it considered Miss B’s request for her mother to be her personal assistant. Miss B did not miss out on any provision. That is because her mother continued to provide the support. However, it led to Miss B’s mother having to go to time and trouble to pursue the complaint and caused her distress. An apology, payment to Miss B’s mother and arrangements for a new panel to consider her request for her mother to be her personal assistant is satisfactory remedy for the injustice caused.

The complaint

  1. The complainant, whom I shall refer to as Miss B, complained about the way the Council dealt with her social care needs. Miss B complained the Council:
    • failed to complete a proper assessment in 2017;
    • failed to issue a support plan in 2017 or 2018 which meant she did not know what she could use the direct payments for;
    • failed to provide her with a copy of the 2017 social care assessment until the end of 2017;
    • assigned several social workers who failed to properly advise her or her mother;
    • did not give her mother details about direct payments and how they worked;
    • provided her with a credit card without telling her what it was for;
    • told her mother she could pay herself to train the personal assistant but then denied saying that;
    • told her mother she could claim mileage and then denied that;
    • unreasonably asked her to repay direct payments when her mother had not misused the payments and the Council had misled her; and
    • unreasonably refused Miss B’s request for her mother to be her personal assistant.

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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. As part of the investigation, I have:
    • considered the complaint and Miss B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Miss B’s comments on my draft decision; and
    • gave the Council an opportunity to comment on my draft decision.

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What I found

Excerpts from the care and support statutory guidance

  1. Care and support should put people in control of their care, with the support that they need to enhance their wellbeing and improve their connections to family, friends and community. A vital part of this process for people with ongoing needs which the local authority is going to meet is the care and support plan or support plan in the case of carers (referred to as ‘the plan’).
  2. The person must be genuinely involved and influential throughout the planning process, and should be given every opportunity to take joint ownership of the development of the plan with the local authority if they wish, and the local authority agrees. There should be a default assumption that the person, with support if necessary, will play a strong pro-active role in planning if they choose to. Indeed, it should be made clear that the plan ‘belongs’ to the person it is intended for, with the local authority role being to ensure the production and sign-off of the plan to ensure that it is appropriate to meet the identified needs.
  3. The personal budget in the plan will give everyone clear information regarding the costs of their care and support and the amount that the local authority will make available, in order to help people to make better informed decisions as to how needs will be met. The ability to meet needs by taking a direct payment must be clearly explained to the person in a way that works best for them, so that they can make an informed decision about the level of choice and control they wish to take over their care and support. This should mean offering the choice more than once in the process and enabling that choice by providing examples of how others have used direct payments, including via direct peer support, for example from user-led organisations.
  4. The plan must detail the needs to be met and how the needs will be met, and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process and to the wellbeing principle in the Act. This should reflect the individual’s wishes, their needs and aspirations, and what is important to and for them, where this is reasonable. This process is central to the provision of person-centred care and support that provides people with choice and control over how to meet their needs. The local authority should 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.
  5. When developing the plan, there are certain elements that must always be incorporated in the final plan. These include:
    • the needs identified by the assessment;
    • whether, and to what extent, the needs meet the eligibility criteria;
    • the needs that the authority is going to meet, and how it intends to do so for a person needing care;
    • the personal budget; and
    • where needs are being met via a direct payment, the needs to be met via the direct payment and the amount and frequency of the payments.
  6. In developing the plan, the local authority must inform the person which, if any, of their needs may be met by a direct payment. In addition to this, the local authority should provide the person with appropriate information and advice concerning the usage of direct payments, how they differ from traditional services, and how the local authority will administer the payment (for example an explanation of the direct payment agreement or contract, and how it will be monitored).
  7. This information provided upfront should assist the person to decide whether they wish to request a direct payment to meet some or all of their needs and should also be available at various points in the process to ensure people have the best opportunities possible to consider how direct payments may be of benefit to them. However the person chooses to have their needs met, whether by direct payment, by the provision of local authority-arranged or directly provided care and support, or third-party provision, or a mix of these, there should be no constraint on how the needs are met as long as this is reasonable. The local authority has to satisfy itself that the decision is an appropriate and legal way to meet needs, and should take steps to avoid the decision being made on the assumption that the views of the professional are more valid than those of the person. Above all, the local authority should refrain from any action that could be seen to restrict choice and impede flexibility.

The Council’s direct payments guidance and procedures

  1. The Council’s direct payments guidance says the Council should give no commitment to provide direct payments until it has completed all the necessary steps including completion of a plan and the direct payments document FIN107.
  2. The guidance says when offering a direct payment a person needs to understand how it works so they can make an informed decision and give consent. The guidance says the Lancashire Independent Living Service (LILS) will support the person with all aspects of budgeting and managing a direct payment. It says they will offer peer support and will support the person to plan how they will spend their direct payment budget. It is then the person’s responsibility to tell the Council for it to be included in the support plan. The guidance says it is very important the person understands they are responsible for budgeting how they want to meet their needs and that the FAQ sheet and FIN107 will support that understanding.
  3. The guidance says costs are written into the support plan and it is important to detail everything as finance will check against that when they carry out a review. It says this will support the person to use their budget as it is intended.
  4. The guidance provides a flowchart which sets out the following steps:
    • agree with the person how they want to complete their support plan;
    • a member of the LILS team will visit with a worker to plan how to spend the budget and plot that against needs and outcomes;
    • the LILS will support the person to understand the FIN107 form;
    • the Council will agree with the person how they want to manage the budget such as by using a prepayment card or a supported banking arrangement;
    • the person will give the Council a breakdown of the budget to be added to the support plan which will include contingency plans;
    • the Council agrees to the support plan;
    • the Council completes the support plan on its computer system and gets approval from a manager; and
    • the Council will then send a copy of the support plan to the person.
  5. The guidance says direct payments cannot be used to pay for services from a close relative who lives in the same household as the service user. The guidance says exceptions can be made only if absolutely necessary to satisfactorily meet the person’s needs. It says the Council must be satisfied this is the only effective way of making sure they are safe, their needs are met and outcomes achieved.

Background

  1. Miss B has autism, OCD and a moderate learning disability. The Council began a social care assessment on 3 April 2017. However, that social worker left and another social worker took over the case in June 2017. The new social worker referred the case for direct payments on 17 July and visited Miss B on 3 August to discuss direct payments. Following that the Council set up a cash card account and deposited £5,230 in that account on 1 November 2017.
  2. Miss B’s mother identified a personal assistant for Miss B. However, Miss B’s mother contacted the Council on 18 December 2017 because Miss B was having difficulty engaging with the personal assistant and was spending most of her day in her bedroom. Miss B’s mother asked the Council whether she could become her daughter’s personal assistant as she is a qualified mental health practitioner. The Council told Miss B’s mother it could consider that request.
  3. A social worker visited Miss B on 5 January 2018. The social worker provided some information about an outreach service which could provide some support. The social worker said she could look at other support but the Council could not pay Miss B’s mother to provide support. I understand Miss B’s mother visited the outreach service and the Council provided information about other providers later that month. The Council told Miss B it would not provide funds for her mother to support her.
  4. The social worker visited Miss B on 7 February as Miss B’s mother had raised concerns about errors in the previous assessment. The social worker discussed alternatives for using the direct payments money which included college courses. The social worker agreed to ask the direct payments team whether Miss B could use some of the funds to buy education support.
  5. Miss B’s mother contacted the Council on 14 March to seek payment for her lost revenue to reflect the time she had spent training Miss B’s personal assistant. The Council told Miss B’s mother she could not use the direct payments in that way.
  6. Miss B’s mother put in a complaint to the Council on 1 May.
  7. On 8 May the Council told Miss B’s mother she could not claim the training expenses. The Council also told Miss B’s mother it would recover £4,987.50 from the direct payments account as the amount in the account exceeded the agreed balance. Miss B’s mother asked the Council to include that decision in her complaint. Miss B’s mother explained Miss B had not used the direct payment because she had not received a support plan setting out what she could and could not spend the money on.
  8. Miss B’s personal assistant left in July 2018. Following that Miss B’s mother provided Miss B with support.
  9. The Council responded to Miss B’s mother’s complaint on 31 July. The Council said it should not have agreed the direct payment because it had not shared a support plan with Miss B and she had not signed direct payment financial agreement form. The Council said it would complete an updated social care assessment and support plan.
  10. A social worker visited Miss B on 7 August to complete the support plan.
  11. On 23 October the social worker told Miss B’s mother the Council’s direct payments forum would consider the proposal for her to be the paid carer under special circumstances. The social worker told Miss B she would send the current support plan for authorisation.
  12. On 2 November the social worker told Miss B’s mother the Council had not agreed for Miss B to use her direct payments for travel expenses. Miss B’s mother asked the Council for an explanation of that decision.
  13. On 23 November the Council’s direct payments forum considered the request for direct payments to pay Miss B’s mother as a personal assistant. The forum asked for more information.
  14. On 26 November the social worker discussed the support plan and direct payments with Miss B’s mother. The social worker told Miss B’s mother using direct payments for education was limited to £20 for each item up to a maximum of £150. The social worker discussed travel expenses with a manager, who said Miss B could not use her direct payments for that.
  15. The Council’s direct payments forum considered the case again on 11 January 2019 and decided it did not meet the criteria for exceptional circumstances.
  16. On 1 February the Council sent the support plan to Miss B’s mother.

Analysis

  1. Miss B’s main concern is the Council did not properly explain the assessment process and the implications for provision when it carried out the assessment in either 2017 or 2018. Miss B says the first assessment was inadequate and on neither occasion did the Council issue a support plan which meant neither she nor her mother knew what was being funded. As a result, Miss B says she felt unable to use the money given to her because she did not know what she could use it for, other than for employing a personal assistant.
  2. I set out in paragraphs 5-11 the process the Council should go through when carrying out a care assessment. That should include involving the service user in drawing up a support plan and agreeing what the plan should include. The plan should set the personal budget, the needs, how those needs will be met and the outcomes to be achieved. The Council accepts it did not issue a support plan until February 2019. Failure to issue the support plan following the assessment in 2017 and the delay issuing a support plan following the 2018 assessment is fault.
  3. The Council says the social worker completing the assessment in 2017 discussed options for using the funds. The brief note from that visit records Miss B’s mother said she would look to fund Miss B attending a day service one day a week, a personal assistant for one day a week and going to college for the rest of the week. However, without any support plan it is hardly surprising Miss B did not understand what she could spend her direct payment on. It is clear from the amount the Council has re-claimed that Miss B spent only a small percentage of the funds given to her because she was not confident about what she could spend the money on. Failure to complete the assessment process properly and to issue a support plan promptly is fault.
  4. I am also concerned about how the Council set up direct payments in this case. Paragraphs 12-16 set out the process the Council should follow when setting up direct payments. That should include a member of the LILS team visiting to plan how to spend the budget and plot that against needs and outcomes. I am aware a member of the team visited Miss B. However, it seems unlikely they could have plotted how to spend the budget taking into account needs and outcomes given there was no support plan in place. I consider it unlikely, on the balance of probability, any detailed discussion took place about what Miss B could spend the budget on. I say that because Miss B felt unable to use any of the budget except for employing a personal assistant for part of the week. The Council’s direct payments guidance also says it will complete the FIN107 form before setting direct payments up. Again, that did not take place. Failure to follow the direct payments guidance and to properly support and advise Miss B is fault.
  5. I am concerned the Council did not consider putting in place any extra support when it became clear Miss B felt unable to use the funds. That is despite the fact Miss B’s mother was regularly contacting the Council to raise concerns about what she could spend the money on. I consider it should have been clear to the Council given the limited use of the funds in the account that Miss B needed more support or advice about what she could use her direct payments for. I also consider the Council should have picked up on the fact Miss B did not have a support plan during those communications. Failure to intervene to provide support to Miss B and advice about what she could use the direct payments for is fault. That left Miss B feeling unable to use most of her direct payment except for the period for which she employed a personal assistant. I consider it likely Miss B could have made greater use of her direct payment had the Council provided the right support and information at the outset, issued the support plan on time and intervened when it became clear Miss B was not accessing all of her direct payment. I am satisfied though Miss B did not miss out on support because of those failures. However, that is only because Miss B’s mother stepped in to provide support for those periods where Miss B did not have a personal assistant. It is clear this, plus chasing the Council for information and updates, has led to Miss B’s mother having to go to time and trouble to pursue the complaint. It is also clear it has caused her significant distress.
  6. Miss B’s mother says the Council assigned her daughter several social workers who failed to provide proper advice. I understand the first social worker left the Council’s employment and the second social worker went off sick and the Council replaced her with a temporary social worker until she returned. I understand it would have been difficult for Miss B and her mother to have to deal with more than one person. However, I am satisfied this was beyond the Council’s control. I therefore do not criticise it for the number of social workers involved. As I said earlier though, there was fault in how the Council carried out the assessments and communicated with Miss B and her mother about the outcome.
  7. Miss B says the Council provided her with a credit card without telling her what that card was for. Having considered the documentary evidence I note the record from the assessment visit in August 2017 shows the social worker left Miss B a copy of the Council’s fact sheet on prepaid cards. It also records Miss B’s mother had already received the cash card and was happy about how to use and manage that. In contrast though, Miss B’s mother says the Council did not provide her with any information at the point at which she received the card. Miss B’s mother says she did not know what it was for until after she received a letter a few weeks later. As I do not have a copy of the information the Council left with Miss B at the time it provided her with the cash card I cannot reach a safe conclusion about the information she had available to her. I note though the account statement shows debits from the account starting in December 2017 which suggests Miss B’s mother knew about the purpose of the card at least by then. I therefore do not intend to pursue the point further, although I have made clear earlier in this statement the Council’s explanation of the process was inadequate for both the 2017 and 2018 assessments.
  8. Miss B’s mother says the Council told her she could pay herself to train Miss B’s personal assistant but then denied saying that. Miss B’s mother says this meant she incurred costs of £2,485 which the Council would not then pay. As I understand it, Miss B’s mother is referring here to a telephone conversation she had with a member of the finance department. There is no documentary evidence from the telephone conversation. I therefore cannot reach a safe conclusion about what information Miss B’s mother provided to the person who gave the advice. Nor can I reach a safe conclusion about what that advice involved. In those circumstances I cannot recommend the Council pay the £2,485 Miss B’s mother spent training the personal assistant.
  9. Miss B’s mother says the Council told her she could claim mileage to transport her daughter but then denied saying that. As with the complaint about the advice given for training the personal assistant, I understand Miss B’s mother is referring here to a telephone conversation she had with a member of the finance department. There is no documentary evidence from the telephone conversation. I therefore cannot reach a safe conclusion about what information Miss B mother provided to the person who gave the advice. Nor can I reach a safe conclusion about what that advice involved.
  10. Miss B’s mother says the Council unreasonably asked her to repay the direct payments when she had not misused the payments and the Council had misled her. I understand the concern about the Council asking her to pay money back, when there is evidence the Council had not properly told Miss B or her mother about how she could use the funds. However, it is not only when the service user or their representative misuses direct payments that the Council can seek recovery. The Council can also recover direct payments if there is a surplus left in the account which equates to more than 10 weeks of the direct payment. In this case the evidence I have seen satisfies me the Council took back the money from the direct payment because Miss B had not spent it. I therefore have no grounds to criticise it. As I said earlier, there was fault in how the Council communicated with Miss B about the direct payments process and what she could use the direct payment for. Nevertheless, as Miss B had not spent the money I cannot criticise the Council for taking that money back.
  11. Miss B says the Council unreasonably refused to accept her mother as her personal assistant. The Council’s direct payments guidance makes clear the service user cannot use the direct payment to employ relatives or others living in the same household. The Council’s guidance makes clear that can only take place when the Council considers it necessary to meet a person’s needs. It makes clear though this will only be in exceptional circumstances. Having considered the Council’s documentary evidence I am satisfied it referred the request for Miss B’s mother to be accepted as her PA to its direct payments forum. I note Miss B provided detailed evidence to that forum. However, I have seen no notes from the forum to show its reasoning for not allowing the request. The only information I have is a short email which says the request is declined. Given the details provided by Miss B’s mother I would have expected the forum to record why it did not consider exceptional circumstances existed in Miss B’s case, addressing the points she made. It is not for me to say whether the forum should have accepted Miss B’s request for her mother to be her personal assistant. Nevertheless, Miss B had a reasonable expectation the forum would consider her request properly and record the reasons for its decision. Failure to do that is fault. The Council has agreed to re-refer the case with the original information provided to the forum. The forum should then consider that information and record its decision, the reasons for its decision and communicate that decision to Miss B.

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Agreed action

  1. Within one month of my decision the Council will:
    • apologise to Miss B and her mother for the faults identified in this statement;
    • pay Miss B’s mother £750 to reflect the fact she had to provide support to Miss B as neither felt able to use the direct payment money, as well as the distress this caused her and the time and trouble she had to go to pursuing her complaint;
    • arrange for the direct payments panel to consider Miss B’s request for her mother to be her personal assistant. The panel should record the reasons for any decision reached and then communicate that decision and its reasoning to Miss B;
    • remind social workers completing assessments of the need to issue a support plan following completion of an assessment, of the need to follow the direct payments flowchart when considering setting up direct payments and to ensure advice on use of direct payments is given particularly when it is clear the person has not accessed most of their funds.
  2. One month after the Council’s direct payments forum considers Miss B’s request for her mother to be her personal assistant the Council should arrange a meeting with Miss B and her mother to discuss what Miss B can spend her direct payments on. That meeting should also discuss with Miss B and her mother whether they would prefer the Council to arrange provision rather than continuing with direct payments.

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Final decision

  1. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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