Summary: The Council has already upheld Mr C’s complaint that there was delay in its provision of a care plan and in its response to the complaint. We agree there was fault. The Council has agreed to amend the care plan and has offered a re-assessment. The Council has also offered a payment of £250 and cancellation of the debt Mr C owes. These are appropriate remedies for the fault.

The complaint

1. Mr B complains on behalf of his adult son, Mr C. Mr B complains about the Council’s refusal to pay him to provide support to Mr C, about its delay in providing Mr C with a care plan and its response to his complaint. He also says the invoice Mr C has received is wrong.

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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. I have discussed the complaint with Mr B and the Council. I have considered the information Mr B and the Council have sent and the relevant law, guidance and policies.

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What I found

Law, guidance and policies

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
6. 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 and a personal budget which sets out the costs to meet the needs.

Direct payments

7. A person can also choose to receive direct payments to arrange the care and support themselves.

Paying family members

8. 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’.
9. However, the regulations exclude the use of direct payments to pay for care from a close family member living in the same household except where the local authority determined this to be necessary.

Council’s direct payment policy

10. The policy says that direct payments cannot be used to fund support by:
• Anyone living in the same house except in exceptional circumstances. In these cases approval must be received in advance.
• Family members except in exceptional circumstances. In these cases approval must be received in advance.

What happened

11. Mr C has a dual diagnosis of autism and Autism Spectrum Disorder. He also has mental health problems and dyspraxia which affects his motor skills and mobility. A local multi-professional centre (NHS funded) which specialised in autism supported Mr C.
12. Mr C’s support worker from the centre made a referral to the Council as she believed that Mr C needed additional support from a personal assistant (PA) to improve his skills and his ability to live independently.
13. The social worker assessed Mr C in May 2017 and agreed that Mr C needed support from the Council to achieve more independence and to build new relationships. Currently his support was provided only by his family.
14. The Council agreed a support plan of 8 hours PA support per week and the personal budget was £100 per week. The Council paid a direct payment to Mr C’s broker who managed the payments. Mr C’s broker signed a direct payment agreement on Mr C’s behalf on 22 June 2017.
15. The Council informed Mr C that his financial contribution would be £57 per week. It is my understanding that the Council paid the full direct payment including the contribution and then invoiced Mr C for the contribution.
16. In December 2017 the Council wrote to Mr C to inform him that, from now on, it would deduct his contribution from his direct payments so the direct payment would be paid net of the contribution. The expectation was that Mr C paid his contribution into his direct payment account.
17. Mr C stopped employing the PA at the end of March 2018.
18. The social worker re-assessed Mr C’s needs on 13 March 2018.
19. Mr C and Mr B told the social worker they wanted direct payments to organise the PA themselves so that they could find someone who would fit in more flexibly with Mr C’s complex needs. They also wanted a PA who could introduce him into the community that he lived in. They told the Council they found a suitable PA who met those criteria.
20. Mr B says they chased the Council for the outcome of the assessment in the following weeks and were told a new plan would be provided, but this did not happen. Mr B stopped working in April 2018 so he provided support. By this time, the PA they had wanted to use was no longer available, and Mr B told the social worker that he wanted to be paid as Mr C’s PA.
21. The Council wrote to Mr C in May 2018 and said his contribution had increased to £61 per week.
22. The social worker informed Mr C in July 2018 that the hours of support had increased but the Council would not agree to pay Mr B as his PA.
23. Mr C complained on 13 July 2018. He said:
• He started receiving support from a PA in July 2017 after an assessment in April 2017. The PA supported him in accessing the community. This worked well initially, but there were limitations because the PA was only available for one day a week. Mr C said that he could not use all the hours in one day because of his low mood and energy levels.
• He started to use the PA support less and less until he only received support from the PA for one hour a week. His father took time off work to take him to appointments on days when the PA was not available.
• He was re-assessed in March 2018 and had chased the social worker for a care plan since that date, but had not received one.
• He wanted to pay Mr B as his PA and did not understand why the Council would not agree this.
24. In August 2018, the Council had a meeting with Mr B and Mr C to discuss his complaint. Mr B said:
• He could provide the flexibility that Mr C needed in a PA.
• He was worried that Mr C did not have any relationships outside the family.
25. The Council said:
• The fact that Mr C did not have any relationships outside of the family was one of the reasons why the Council promoted a PA from outside the family where this was appropriate.
• One of the principles of the Care Act was to promote independence.
• Difficulties could arise in cases between carers and service users distinguishing the role of the PA with the role as family member as the lines could become blurred.
• Even in cases where a family member had been paid as a PA, the Council would still expect them to provide natural parental support. Mr B disagreed with this point.
• The social worker knew some PAs who lived locally so they could provide the flexible support that PA needed and would be able to promote Mr C’s culture and links in the community. The social worker offered a meeting between these PAs and Mr B and Mr C to see whether this support would work.
26. The notes of the meeting say that Mr B was initially open to this idea of a meeting with the proposed PAs, but then said Mr C needed responsive support. Mr B said there was nothing in the legislation to prevent him becoming Mr C’s PA and the Council was acting unlawfully. The Council explained the process of assessment and care planning and what it had considered to come to the decision. The Council said that it wanted to explore the option of outside PAs first before agreeing any alternative.
27. Mr B said he did not want to explore the option of meeting other PAs. The meeting was ended with a promise that the social worker would ensure the chair of the panel knew why Mr B wanted to be Mr C’s PA. The chair of the panel was on leave so this discussion would happen when he returned.
28. In the following months, the complaints team assured Mr C that he would receive a complaint response soon, but no further response was given.
29. Mr C’s case was transferred to a different social worker in October 2018. The social worker visited the family on 12 October 2018. He carried out a carer’s assessment of Mr B and referred him to a carer’s centre.
30. On 15 October 2018 the broker informed the Council that Mr C had stopped using the service a while ago, but was still receiving direct payments. The Council carried out an audit of the direct payment account.
31. On 15 November 2018 the Council sent an invoice of £686.40 to Mr C for unpaid contribution from January to March 2018 (12 weeks).
32. The social worker explored some other options in the following months such as organising a work placement in the IT department for Mr C and asking Mr C to attend the café of a local charity that provided support to people with learning disabilities. There was little engagement from Mr B or Mr C with these options.
33. The social worker sent an email to Mr B in January 2019 asking him whether Mr C had engaged with any of the support that had been suggested and to ask for an update. There was no reply so the social worker sent a letter on 28 January 2019 asking for a reply by 11 February 2019 and said he would close the case if he did not hear anything further. Mr B contacted the social worker on 28 January 2019 and said Mr C did not need services at the moment. The Council then closed the case.
34. On 19 September 2019 the Council sent an invoice of £1487.20 to Mr C. It said it had suspended this invoice while there was an ongoing dispute between him and the Council but this dispute had now been resolved. This invoice included the previous invoice for the unpaid contribution from January to March 2018 and also for unpaid contribution for September, October and December 2017.
35. Mr B complained to the Ombudsman on 1 October 2019. He said:
• He had not received a response to his complaint from July 2018.
• The complaint related to the way the Council responded to Mr C’s needs after the assessment in March 2018. He disagreed with the Council’s refusal to pay Mr B as Mr C’s carer.
• The Council had invoiced Mr C for support that he did not receive as the support was temporarily suspended in October 2017 and he has been charged for support after March 2018.
36. On 11 October 2019 the Council responded to Mr B’s complaint from July 2018 and said:
• It apologised for the considerable delay in its response.
• It upheld his complaint that there had been an unacceptable delay in the Council’s response to his request for direct payments for a PA for Mr C. It offered him a time and trouble payment of £250.
• The Council had discussions with Mr B and Mr C about the possibility of employing Mr B as a PA. The Council always looked at the potential strengths and abilities of a person and what support was available to them. This would include family support and there was an expectation that the family provided some natural support without being paid.
• The Council had received later assessment feedback from the social worker and had made a further decision. It accepted that Mr C found it difficult to trust new people, to communicate with people or to form new relationships. Mr C had difficulty in adhering to scheduled times for activities. Mr B was in a unique position to address these issues flexibly as he spent a lot of time at Mr C’s home.
• Therefore the Council would now agree to pay Mr B as Mr C’s carer with the expectation that Mr B used a percentage of the hours, 1 or 2 hours a week to begin with, to try to introduce a regular PA to Mr C. This would allow Mr C to develop a relationship with this PA and prevent him from becoming entirely reliant on Mr B. It also meant that Mr C would have access to support when Mr B was not available.
• The social worker made this proposal to Mr B in August 2019. Mr B said he would need to speak to Mr C and would then let the social worker know their decision.
• The Council asked Mr B whether he wanted to discuss the proposal further, either with the social worker or the complaints team.
37. As part of my investigation, I asked the Council to send me all the assessments and care plans of Mr C so that I could understand how the Council decided the care plans.
38. The Council sent me the care plan dated 17 May 2017 but not the assessment or care plan of 13 March 2018. I queried this and the Council said the assessment took place and the social worker put the assessment into the Council’s IT system for authorisation but the document then went missing. Unfortunately, the social worker was now absent from work and would be for the foreseeable future.
39. In its response to the Ombudsman the Council said it had upheld the complaint relating to the delay in the process and the subsequent arrangements and had offered £250. The Council offered an additional remedy of cancelling the outstanding debt of £1,487.20.
40. The Council also said that it would offer Mr C a fresh assessment of his needs. The Council said it had not started paying the direct payments which it offered in October 2019 as it said Mr C never said whether he was in agreement with the proposal. However, the Council would renew the offer and start paying the direct payments if Mr C was in agreement with the proposed care plan.

Analysis

41. The Council has already upheld Mr B’s complaint about the delay in the response to his complaint in July 2018. This was linked to the delay in producing a formal care plan. I agree there was fault. I appreciate that the Council tried to resolve the complaint and the disagreement about the care plan by having a meeting. However, the Council should still have produced a care plan, even if Mr C did not agree with the plan. The Council should also have formally replied to the complaint after the meeting and failed to do so.
42. Mr B also says the Council should have changed the care plan to allow him to be paid as Mr C’s PA after it carried out the assessment in March 2018. Mr B disagrees with the care plan and the assessment it was based upon.
43. This is difficult for the Ombudsman to investigate as the Council does not have a copy of either document and the social worker is not available for comment.
44. I have looked at the documents the Council has provided me with, particularly the minutes of the meeting in August 2018 to try to find out what the social worker’s reasons were for refusing to pay Mr B as a PA .
45. Mr C’s main reasons for asking Mr B to be his PA were that his previous PA’s availability was not flexible enough and that the PA had to be part of Mr C’s community.
46. The Council responded by saying it had found PAs who were more flexible and part of Mr C’s community. It offered to arrange a meeting between these PAs and Mr B and Mr C. The Council also gave additional reasons why it felt that an external PA would be more appropriate. The main reason for a PA was that Mr C was isolated and did not know anyone outside of his family and the Council said that employing Mr B would not address this problem. The Council also said Mr B was expected to provide some support as he was Mr C’s father and the lines would become blurred if he was paid for providing this support.
47. The Council changed its position in October 2019 without any further assessment of Mr C’s needs. The main reason for the change was that the Council said Mr C found it hard to trust new people and Mr B would offer total flexibility in his availability.
48. I do not have sufficient information to say there was fault in the March 2018 assessment or in the care plan. The limited information I have indicates the Council had considered the matter in line with the Care Act and its own policy. It provided reasons for its decision and offered an alternative solution to meet Mr B’s needs. The Council was of the view that there were no exceptional circumstances in Mr C’s case to justify employing Mr B as his PA.
49. However, there was fault in the delay in the care plan (as outlined before) and in the failure to produce an assessment and care plan. However, I appreciate that the reasons why the Council was unable to produce the documents may be linked to an IT issue and the documents had been drafted.
50. I have also considered Mr C’s complaint about the invoice for £1,487.20. Mr C says these invoices relate to times when the PA was not working (October 2017) and a period after March 2018.
51. The Council has provided a breakdown of the invoice which shows that Mr C has not been charged for a contribution after 31 March 2018.
52. I do not know how much flexibility there was in the PA’s contract to pay the PA less or more depending on how much support he had provided per week. I also do not know what information Mr B provided to the Council and the broker about the times when Mr C did not employ the PA.
53. In any event, the cost of the payment for October 2017 is only £228. Most of the invoice relates to other dates when Mr C did not pay the contribution. The Council has agreed to cancel the entire debt of £1487.20 which is more than the disputed amount and I therefore do not intend to investigate the matter in greater detail.
54. I have considered the injustice Mr C has suffered because of the fault. The main faults are a delay in the complaint response and a failure to provide a formal assessment and care plan document.
55. The lack of the documents has caused an injustice as Mr B and Mr C will never entirely know what the documents said and how the decisions were made.
56. However, I note that, even though a formal care plan was not produced, the Council offered alternative PA support in July 2018 and August 2018 which Mr B turned down. Therefore, Mr C had access to PA support from July 2018 onwards and the injustice in that respect was limited.
57. The Council has offered a payment of £250 to reflect the distress caused by the delay and has offered to cancel the debt of £1,487.20. That is a sufficient financial remedy for the fault that I have found.
58. The Council has also offered Mr C a fresh assessment of his needs. I presume the Council will provide Mr C with a copy of the assessment and the care plan once it has completed the assessment and I have added this to the remedy. I would expect the Council to provide the remedy within a month of the final decision.

Agreed action

59. The Council has changed the care plan to allow Mr C to be paid as Mr B’s support worker, subject to certain conditions which he still has to agree.
60. The Council has agreed to take the following actions:
• It will offer Mr C a re-assessment of his needs and provide him with a copy of the assessment and care plan.
• It will pay £250 for the distress caused by the fault.
• It will cancel the debt of £1,487.20.

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Final decision

61. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman