Summary: We do not uphold complaints about the use of Mrs A’s direct payment or about a lack of reviews and welfare checks. There was a delay in issuing a care and support plan to Mrs A, this was fault but caused no injustice as the Council was already paying the direct payment.

The complaint

1. Mr A complains for his mother Mrs A that West Susses County Council (the Council):
1. refused to let him use direct payments for the cost of meals at a day centre
2. delayed in issuing the care and support plan
3. did not carry out a welfare check or annual review
4. did not provide an allocated social worker.

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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. 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

3. I considered:
• Mr A’s complaint to the Ombudsman
• The Council’s response to his complaint
• Documents described later in this statement
• Comments on a draft of this statement.

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What I found

Relevant law and guidance

4. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
5. 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)

6. If a council decides a person is eligible for care and support, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether they meet the eligibility criteria and sets out how the council is going to meet them. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
7. Statutory Guidance explains a council should review a care and support plan at least every year, upon request or in response to a change in circumstances (Care and Support Statutory Guidance, Paragraph 13.32)
8. 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. (Care Act 2014, section 26)
9. There are three ways in which a personal budget can be used:
• As a managed account held by the local authority with support provided in line with the persons wishes;
• As a managed account held by a third party with support provided in line with the persons wishes;
• As a direct payment (a direct payment is money a person gives to a council to meet agreed needs).

What happened

10. A social worker assessed Mrs A’s needs in June 2018. Mrs A has dementia and lives at home with her husband. The outcome was Mrs A was eligible for social care. The assessment identified Mrs A had needs around personal care, toileting, mobility, domestic tasks, safety and nutrition. The provisional personal budget was £380. The family wanted a direct payment to arrange Mrs A’s care.
11. In July 2018, a social worker told the family the agreed personal budget would be £380 a week.
12. In the middle of July, the social worker met with the family. Mrs A had just returned from a week of residential respite care which the Council arranged and funded as an emergency. I have seen short-term/emergency care plans to cover the respite care, but it appears Mrs A’s family did not receive copies of those plans.
13. The family decided they wanted a direct payment with which to arrange agency care for Mrs A. they were also interested in Mrs A going to a day centre. They also discussed having a council-managed budget for respite care. The direct payment started on 23 July.
14. In August 2018, Mr A signed a direct payment agreement with the Council on behalf of Mrs A. The Council told me it did not receive a signed copy of the agreement from Mr A until September. The agreement said the money should only be used to meet Mrs A’s care needs and outcomes set out in the care and support plan. It also said the money could not be used for living costs.
15. The social worker spoke to Mr A at the end of August to ask how the care was going. The family had arranged care calls with an agency, they had looked at one day centre but did not like it. The social worker told them about two other day centres.
16. Mr A spoke to the social worker at the end of September to say the family had looked at one of the other day centres and liked it. The social worker spoke to staff at the day centre to see if there were vacancies. Mrs A started going to the day centre.
17. The social worker went to the day centre in November to review Mrs A’s care. Mrs A was reported to have settled in at the day centre. The review noted Mrs A needed supervision with feeding and prompts to eat and drink. When asked, staff at the day centre said Mrs A could eat independently. The review did not say the Council would provide food for Mrs A as part of the care and support plan. There were no changes to the care and support agreed. The social worker noted the care and support plan needed to include respite care and the day care that had already been agreed and was being provided.
18. The social worker spoke to Mr A and explained the direct payment could not be used for meals at the day centre. Mr A said meeting nutritional needs was part of the care and support plan. He emailed the social worker about this after the call saying his mother could not afford the cost of meals at the day centre. The social worker took legal advice from the Council’s solicitor and confirmed to Mr A that it was against council policy to allow people to use their direct payment to buy food.
19. Mr A continued to raise concerns about paying for Mrs A’s meals at the day centre, saying this was part of her care and support plan around meeting nutritional needs.
20. Mr A told us he did not receive a copy of Mrs A’s care and support plan until December 2018. An internal email indicated Mr A had expressed concern that the family had not had a copy of the care and support plan. The Council told me the reason was for the delay was there were several changes to the care arrangements the family wanted around the number of days Mrs A was to attend the day centre.
21. A manager emailed Mr A following further queries from him about paying for meals at the day centre. The manager confirmed Mr A could not use a direct payment to pay for incidental expenses like food.
22. In March 2019, Mr A asked the Council to review its decision and to allow Mrs A to use the direct payment for meals at the day centre. He provided a letter from Mrs A’s GP. The manager at the day centre confirmed to the Council that Mrs A ate more when she received a hot meal than when she brought her own sandwiches. The social worker repeated the previous response and said the family could complain.
23. The social care manager and Mr A spoke: the manager said she had already responded to his emails about using the direct payment for meals at the day centre and so would not meet with him to discuss the issue further. The manager said Mr A needed to wait for the Council’s response to his complaint and he should contact the social worker on any other issues about his parents.
24. The social worker offered Mr A several dates to meet in May. It does not appear that a meeting went ahead in May.
25. The Council’s response to the complaint said that while managing and maintaining nutrition was an eligible need, this covered the provision of assistance with eating and drinking and not the cost of food. The response went on to say Mrs A’s social worker was the appropriate person to discuss Mrs A’s wellbeing. And, the delay in sending the care and support plan was because the family were considering different care options and so the Council did not want to send out a plan until it had been finalised. The Council upheld the complaint about it not sending the plan in a timely manner. It did not uphold a complaint about welfare checks by the social worker and set out the social worker’s involvement with Mrs A.
26. Mr A contacted the Council in July to ask for an urgent review as Mrs A had declined. The family wanted an extra day at the day centre. The duty social worker advised Mr A that the case would be allocated to a social worker for a review but this might take several weeks. Meantime, officers sent Mr A information about other care homes that provided respite care as the preferred option had no vacancies on the family’s dates.
27. A social worker carried out a fact to face review at the end of September 2019. The outcome was a list of agreed follow up actions with an updated care and support plan to be sent to the family. The care and support plan was working well and meeting Mrs A’s needs in the social worker’s view and no changes were required.

Mrs A’s care and support plans

28. The Council has provided me with copies of care and support plans for Mrs A setting out the services it agreed to provide to meet her eligible needs. The care and support plans said Mrs A needed support and encouragement to eat due to a poor intake and could not feed herself due to dementia:
• September 2019
• April 2019
• December 2018
• August 2018.

Was there fault and if so did this cause injustice?

The Council refused to let Mr A use direct payments for the cost of meals at a day centre

29. The Council’s explanation of why Mrs A cannot use the direct payment for food is correct. The Council has to meet Mrs A’s eligible unmet nutritional needs. She needs support (someone to help and prompt her) to eat and drink. The care need is support to eat and drink. The care and support plans do not include provision of food and drink itself. And the direct payment agreement explained the point clearly. There is no fault in the Council refusing to allow the direct payment to be spent on food.

The Council delayed in issuing the care and support plan

30. The records indicate Mrs A’s direct payment started in July, but the Council did not send a care and support plan until December. It has accepted there was a delay, which is fault. I do not consider it caused Mrs A injustice as the direct payment was put into payment several months earlier.

The Council did not carry out a welfare check or annual review

31. There was a review of Mrs A’s care in November 2018 and a further review in September 2019. This was in line with Care and Support Statutory Guidance, which requires a review at least annually. There was no fault.
32. Contact from council officers about Mrs A’s welfare was appropriate and consisted of phone calls, emails and visits. There was no fault.

The Council did not provide an allocated social worker

33. There is no requirement for a council to provide an allocated worker. I do not uphold this complaint.

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Final decision

34. We do not uphold complaints about the use of Mrs A’s direct payment or about the lack of reviews and welfare checks. There was a delay in issuing a care and support plan to Mrs A, this was fault but this caused no injustice as the Council was already paying the direct payment. The findings in this statement are draft and may change in light of comments from the parties.
35. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman