Summary: Mrs Y complained for her deceased brother, Mr X, the Council delayed in setting up direct payments for Mr X’s care and failed to give enough information about managed direct payment accounts. The Council was at fault causing injustice to Mr X and Mrs Y. The Council has agreed to review its procedures for direct payments and managed accounts and to provide training to relevant staff.

The complaint

1. Mrs Y complained for her deceased brother (Mr X) the Council delayed in setting up direct payments and failed to give enough information about managed accounts.
2. Mrs Y said this led to her and her family taking over care for Mr X as his personal assistant left because of the uncertainty. This led to a decline in Mr X’s mental health and comfort. She said this caused Mr X frustration, upset and caused her family distress.

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The Ombudsman’s role and powers

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)

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How I considered this complaint

5. I spoke to Mrs Y and considered evidence provided by the Council before making a draft decision.
6. I gave the Council and Mrs Y the opportunity to comment on my draft decision. I have considered the comments received before making this final decision

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What I found

Background

7. The Care Act 2014 says councils must assess someone’s care and support needs where they appear to need support. Once a council has completed a needs assessment it should write a care and support plan.
8. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person. Councils can arrange to pay the budget through direct payments to the person needing care or their carer. The care and support plan must include the needs to be met by direct payments, the amount and frequency of payments. Alternatively, where someone is not able to directly employ carers, councils can agree to use a managed account, where they are responsible for how money is spent.
9. Care and Support (Direct Payments) Regulations 2014 say direct payments should give people independence, choice and control over the way the outcomes set out in their care and support plan are met. Councils must give people information about how direct payments work. Councils must be satisfied direct payments are used to meet the person’s eligible care needs set out in the care plan.
10. There is no defined timescale for completing the plan, but councils should complete plans in a timely manner, proportionate to the needs to be met. Councils should sign-off the plan when the person and the council have agreed on the factors within the plan including the final personal budget amount.

What happened

11. The Council carried out a needs’ assessment for Mr X, who had terminal cancer, in August 2018. The subsequent care plan said Mr X needed support to prepare food, maintain hygiene and in accessing the community. Mr X asked for direct payments so he could organise his own care. The Council’s social worker advised that direct payments could take a significant time to set up so Mr X agreed for a care agency to provide care for him while he decided whether to apply for direct payments. The Council arranged and provided this care from late August.
12. In October, Mrs Y contacted the social worker to confirm Mr X wanted to employ a personal assistant. The social worker provided leaflets about appointing a personal assistant but did not give Mrs Y information about managed accounts for direct payments. The Council says this was because it was still uncertain if Mr X wanted to continue with the agency care or not.
13. The information the social worker did provide explained Mr X could employ a personal assistant directly or through an agency. To do this the leaflet said Mr X would need to set up a separate bank account, which the Council would then pay his direct payments into. It said, “if you don’t want to manage the payments yourself, your social care worker will discuss other options with you”. The leaflet continued to explain that if a person employed a personal assistant directly they would be responsible for recruitment, the contract of employment, signing timesheets and other related issues.
14. Mrs Y asked the Council to cancel the agency care in late October. It warned her that it would not set up direct payments straight away and that to do so could be a “long process”. Mrs Y confirmed Mr X’s family would provide support until direct payments were in place. The Council therefore cancelled agency care. The family were able to arrange for a personal assistant to begin caring for Mr X, but the personal assistant later left. Mrs Y says this was due to the uncertainty around the direct payments Mr X would receive.
15. Mrs Y contacted the Council in November 2018 to say Mr X’s needs had changed. A reassessment of Mr X’s care needs, in late November, found Mr X’s needs had increased.
16. Given the increase in care an NHS multidisciplinary team completed a checklist for Continuing Health Care (CHC) funding in December 2018. This team considered if Mr X was eligible for full NHS funding for his care, but found he was not eligible.
17. The Council then considered Mr X’s application for direct payments in early January, deciding to set up a managed account. This would need a new bank account to be set up for the Council to pay into.
18. Before any payments could be made, Mr X’s condition became worse and he went to hospital five days later. Mr X then died in January 2019.
19. Following Mr X’s death, the Council asked Mrs Y to complete further paperwork to enable the Council to pay Mr X’s direct payments to his estate as Mr X had not been able to before he had died.
20. The Council contacted Mrs Y in March and May 2019 to ask how the paperwork was progressing, explaining that it needed this information before it could pay Mr X’s estate.
21. Mrs Y complained to the Council in March 2019 about delays in the set-up of direct payments and the lack of information about managed accounts.
22. The Council responded in May 2019. It agreed the social worker did not have enough knowledge of the direct payments process or managed accounts. It also apologised for the Council’s lack of explanation around the different ways direct payments could be organised. It agreed to provide its staff with further training.
23. It continued to explain that when Mr X had asked to change his care provision from a care agency to a personal assistant through direct payments, the Council had to draft a new support plan. This would ensure the plan was an accurate reflection of the provision. In turn, the social worker would also need to request a new budget. However, it said they had followed its process to set up direct payments. It acknowledged Mrs Y’s frustration at the lengthy process but said she knew the direct payments could take a long time to set up and had agreed to organise care in the meantime. So, it did not uphold this part of Mrs Y’s complaint.
24. The Council later paid the backdated direct payments owed to the estate.

Findings

Delays in setting up direct payments

25. The Council knew, in August 2018, Mr X’s cancer was terminal and assessed him as needing care and support. With this diagnosis and the assessment, Mr X’s needs required a prompt response from the Council.
26. The Council arranged and put in place agency care quickly after the assessment. Mr X confirmed he wanted to arrange his own care using direct payments in October and the family asked for the Council to cancel the agency care. It appropriately warned the family this could be a long process. The family decided to care for Mr X’s needs themselves while the Council set up direct payments.
27. The change to direct payments meant the Council had to draft a new support plan to reflect new care. As Mr X’s health worsened, his needs and his support plan needed regular changes and reconsideration. The reassessments of his needs were completed promptly, although because of the changes, a care and support plan, which would set out the cost of Mr X’s care could not be finalised until December 2018.
28. Following the approval of the direct payments, it was then for Mr X and his family to set up a separate bank account for the Council to pay into. However, Mr X died before he or his family could arrange it.
29. The Council needed to adapt to the situation as it changed and reassess Mr X’s needs to ensure he received the right care.
30. The Council needed the NHS multidisciplinary team to decide whether Mr X was eligible for CHC funding as his health became worse before setting up direct payments. This was because the direct payments would not be needed if Mr X was eligible for CHC funding, which would have funded all his care through the NHS. It was only after the CHC checklist was completed that the Council was ready to process the request for direct payments at the end of December 2018. As Mr X died shortly afterwards the direct payments could not be fully set up in time.
31. The Council warned the family the process to arrange direct payments would take time. While the case notes show the family chased the Council and were frustrated at the time taken, the Council progressed Mr X’s case without significant, avoidable delay. It adapted its approach as necessary for the changing circumstances. The time taken to arrange direct payments was therefore not fault.
32. The family also decided to care for Mr X themselves until the direct payments could be set up and cancel the agency care. Although a personal assistant was employed initially, when they left, the family stepped in to fulfil Mr X’s care needs. As the time taken for the direct payments to be set up was unavoidable, I also do not consider the personal assistant’s decision to leave was caused by any fault of the Council.
33. In the information the Council provided it explained if Mr X directly employed a personal assistant, he would become responsible for recruitment. This included when the personal assistant left. I have therefore not found the Council responsible for Mr X’s family needing to step in to care for him when the personal assistant left.

Failing to provide adequate information on managed accounts for direct payments

34. The Council did not provide Mr X and Mrs Y with adequate information about managed accounts for direct payments. The social worker was not able to give adequate advice about direct payments and managed accounts. This meant they could not discuss the options with Mr X and his family. These were faults causing frustration and confusion to Mr X and Mrs Y. The Council has apologised to the family which is a suitable remedy for this injustice.
35. The Council has reviewed its processes around direct payments and is developing improved staff procedures. It will train staff to use the improved process. These are appropriate actions to avoid future fault.

Agreed action

36. To prevent future fault the Council has agreed, within three months of this final decision to:
1. provide the Ombudsman with a copy of its new process and procedures for staff involved with delivering direct payments and managed accounts.
2. deliver training to relevant staff on these processes and procedures and provide the Ombudsman with a report showing this has been done.

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Final decision

37. I have completed my investigation to find the Council was at fault, causing an injustice. The Council has agreed actions to remedy the injustice and prevent future recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman