Summary: Ms X and Mr T complained about the Council’s decision to refuse a direct payment previously used to pay for Ms X’s respite care. This caused distress and inconvenience to them both. The Ombudsman has found the Council to be at fault because this unfairly restricted their choice and was contrary to the relevant legislation. This fault has been accepted by the Council during the course of this investigation. To remedy the injustice caused, the Council has agreed to apologise, make a payment to both Mr T and Ms X and review its policy.

The complaint

1. Ms X and Mr T complain about the Council’s decision to cancel her direct payment used to pay for respite care. Instead, the Council insisted Ms X had respite care at a home arranged by the Council, under its block contracting arrangement. This has affected Mr T’s ability to arrange suitable respite care for his mother and he has been unable to take a break from his demanding caring responsibilities because of the restrictions imposed by the Council. This has affected the wellbeing of both Ms X and Mr T.

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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

• considered the complaint and documents provided by Mr T;
• made enquiries of the Council and considered its response;
• considered the relevant law and statutory guidance – Care Act 2014 (sections 31- 33), Care and Support (Direct Payments) Regulations 2014, Care and Support Statutory Guidance (section 12);
• spoken to Mr T; and
• sent my draft decision to both parties and invited comments on it.

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What I found

Care plans

4. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.

Personal budgets

5. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.

Direct payments

6. A person can choose to receive direct payments to arrange the care and support themselves. The amount of direct payment is derived from the personal budget set out in the care and support plan. Direct payments can only be used in accordance with the support plan and any ‘unauthorised use’ of the money will need to be repaid.
7. The guidance says that direct payments are ‘designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs’.

What happened

8. Ms X and her son, Mr T live in the same house. Ms X is 80 years old and disabled. Mr T looks after Ms X, with the help of a package of support funded by a direct payment provided by the Council. This includes a daily visit from a care agency and six weeks per year of respite care in a residential care home. The purpose of this is to give Mr T a break for his caring responsibilities and allow for his work commitments.
9. Mr T says the direct payment worked well because he could contact a care home of his choosing directly and make a booking in advance so he could plan around this. Also, Ms X preferred a particular home where she was familiar with the staff and the environment.
10. In May 2019, the Council told Mr T the direct payment would no longer be available to fund this respite care because it had introduced a new system for supporting people with respite care. The Council pre booked and paid for several respite care beds across the county. Mr T could contact its brokerage service four weeks prior to the booking and the Council would identify homes with vacancies.
11. Mr T tried using the new system but has described it as “awful and doesn’t work”. He tried to book a short break but was unable to do so. He was told by the Council that he had not given enough time to arrange the dates he needed. He tried to book another break for November 2019 but was told he had this time tried to book too far in advance.
12. Mr T says he had his first break in six months in October 2019. Frustrated by this, Mr T complained to the Council. He explained to the Council that Ms X preferred going to a particular home where she was familiar with the environment and the staff knew her. She had been going there for respite for several years. This home was not available under the new arrangement. Having to go to a care home where she was unfamiliar caused her considerable distress.
13. In response the Council explained its rationale for the change in policy. It said, “The Council currently block purchase respite beds in care homes across the county. This means that we pay for these beds in advance to ensure we have respite care available when people need it throughout the year. The Council will use these block purchased beds as a first option for respite and where these providers have availability the Council will offer only these providers for respite…..unfortunately the County Council are not in a position to be able to pay for additional beds in non-contracted homes and/or allow people to choose a different home if the beds that we are already paying for have vacancies”.
14. Disappointed by this response and wanting to be able to have more degree of control of his mother’s respite care arrangements, Mr T brought his complaint to the Ombudsman.
15. In response to the Ombudsman’s enquiry about this, the Council confirmed this was its policy applicable to all clients. However, in response to a further enquiry challenging the legality of such an approach, the Council has accepted it was incorrect in restricting the availability of a direct payment.

Analysis

16. The Care Act 2014 requires councils to promote the wellbeing of adults in need and carers, and to do this in a way that satisfies certain principles, one of which is the assumption that individuals are best placed to judge their well-being, and should be allowed some control over their day-to-day life, including the care and support they receive. Direct payments are one way this can be achieved. The Council acted contrary to this.
17. While I understand the Council had introduced the policy to save public money, this does not allow the Council to disregard the law.
18. Direct payments are designed to give people more choice and control over the care and support services they are assessed as needing. The Care and Support Statutory Guidance 12.35 - says “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support need”.
19. In this case Mr X was restricted from using his direct payment to meet eligible needs. His previous successful use of direct payments clearly demonstrated the positive benefits having choice and control provides for service users and their families. The law does not allow for councils to restrict choice in the way it did. This was fault.
20. The Council has already accepted its policy was contrary to the relevant legislation in response to the Ombudsman’s further enquiry. It has also agreed to change the relevant policy. While I welcome this, I made further recommendations to acknowledge the impact this fault had on Ms X and Mr T. The Council has agreed with these recommendations.

Agreed action

21. To remedy the injustice caused by the fault identified, the Council has agreed to take the following action within four weeks from the date of my final decision:
1. Pay Ms X and Mr T £250 each to acknowledge the distress caused by the Council refusing a direct payment and restricting the options available for respite care.
2. Pay Mr T an additional £250 to acknowledge to the time and trouble he has spent pursuing a complaint about this matter.
3. Ensure a direct payment is reinstated to enable Mr T to make his own arrangements for respite care, if this is something he still wants to do. The Council should contact Mr T to discuss this.
4. Review and amend its policy to reflect the findings of this decision statement to ensure service users can use a direct payment to pay for respite care if this is what they want to do. The Ombudsman should be provided with a copy of the amended policy.
5. Ensure relevant front-line staff are made aware of this change in policy. The Ombudsman should be provided with evidence that this has taken place.

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Final decision

22. The Council was at fault by refusing to make a direct payment to the complainant to pay for his mother’s respite care. The Council has agreed a suitable remedy.

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Investigator's decision on behalf of the Ombudsman