Summary: Mr X complains the Council has failed to take account of his brother’s exceptional circumstances in deciding that direct payments cannot be used to employ family members to provide his care. There is no evidence of fault in the way the Council considered Mr X’s request for direct payments to allow family members to care for Mr Y.

The complaint

1. The complainant, whom I shall refer to as Mr X complains the Council has failed to take account of his brother’s exceptional circumstances in deciding that direct payments cannot be used to employ family members to provide his care.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X; and
• sent a statement setting out my draft decision to Mr X and the Council and invited their comments.

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What I found

5. Direct payments are monetary payments made to individuals 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.
6. But direct payments cannot be used to pay for care from a close family member living in the same household, except where the local authority has determined this to be necessary

Key facts

7. Mr X’s brother, Mr Y needs assistance with all his health and social care needs. Mr Y attends a day centre five days a week. He used to have a care package of 14 hours a week to support him with personal care tasks and accessing the community. This care was provided by an agency but was suspended as Mr Y was not using it.
8. Mr X states Mr Y refused to accept support from the carers and would attack them. Mr Y will only accept support from close family members. In May 2018 Mr X asked for direct payments to pay for close family members to support Mr Y. Mr Y’s social worker explained that this would not be possible. Mr Y lives with his extended family who already provide him with support. These are not exceptional circumstances. If the family could not continue to offer the level of support currently provided the social worker could offer direct payments to employ a friend or family member who did not live at the same address.
9. The Council’s records show Mr X did not accept the social worker’s decision and repeated his requests for direct payments to allow the family to support Mr Y. The Council allocated Mr Y’s case to another social worker to review Mr Y’s current support and explore the request for direct payments.
10. The new social worker met with Mr X and Mr Y in late November 2018 and carried out an assessment of Mr Y’s needs. The social worker’s notes of this meeting state there was no change to the level of Mr Y’s needs. Mr Y would not allow the carers to help him shower, so the family cancelled the care package. Mr X also advised the social worker that Mr Y does not wash daily, and the family could only get him to wash or shower every couple of months.
11. The social worker explained to Mr X that if Mr Y would accept daily assistance from Mr X rather than the carers with washing the Council would look at having direct payments. But even with Mr X’s encouragement Mr Y was not showering or washing daily. The social worker did not consider there were exceptional circumstances to allow direct payments for support from close family members. Mr Y would not always accept care from strangers, but he would not accept it from his family either. The situation would not be any different if Mr Y received direct payments, and the social worker could not see what the payments would be used for.
12. Mr X is unhappy with the Council’s decision and has asked the Ombudsman to investigate. In response to my enquiries the Council states that Mr Y continues to accept care from carers at the day centre he attends. Mr Y may prefer his family to support him, but he does accept support from others. There are no reports from the day centre that Mr Y refuses support. The Council also notes that there are times when Mr Y will not accept support from his close family.
13. The Council discussed Mr Y’s care package with the care provider who confirmed they had not provided Mr Y with any care since June 2018. The care manager confirmed there were times when Mr Y would not accept care, and at other times he would. They said Mr Y accepted care more than he declined it.
14. The care manager told the Council the family declined the carers access to the property. The family felt that as Mr Y would not let the carers wash or dress him, there was no point in them coming. The manager also confirmed that when carers were able to access the property, the family asked them to clean the house rather than care for Mr Y.
15. The Council does not consider there are exceptional circumstances as Mr Y has and does accept care from carers, not just his family. The Council is also satisfied that Mr Y’s care needs are being met, and that he does not need a care package at home.

Analysis

16. There is no evidence of fault in the way the Council has considered Mr X’s request for direct payments. Direct payments cannot generally be used to pay for care from a close family member living in the same household. The Council has considered Mr Y needs and how care and support is provided and does not consider there are exceptional circumstances.
17. Mr X disagrees with this decision, but it is one the Council is entitled to reach. The Council disputes Mr X’s assertion that Mr Y will only accept support from close family members. Mr Y accepts support from carers at the day centre and has accepted support from carers at home. There are times when Mr X will not accept support from carers, but there are also times when he will not accept support from his close family members.

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Final decision

18. There is no evidence of fault in the way the Council considered Mr X’s request for direct payments to allow family members to care for Mr Y.

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Investigator's decision on behalf of the Ombudsman