City of York Council (19 019 511)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 22 Feb 2021

The Ombudsman's final decision:

Summary: Ms C complained the Council failed to take her specific situation into account, including her need for reasonable adjustments, when it transferred her case to another social worker and throughout her care review. We found fault with regards to some of the Council’s actions, especially in relation to the delay in transferring Ms C’s case to a new social worker and providing clarity about what would happen to her Direct Payments. The Council has agreed to apologise and pay a financial remedy for any distress it caused Ms C. The Council will also review guidance it provides to clients about what they cannot use a Direct Payment for.

The complaint

  1. The complainant, whom I shall call Ms C, complained the Council failed to make reasonable adjustments in relation to her disability. She says the Council generally lacked an understanding of how to deal and communicate with her, as a person who has ASD / ADHD, between August 2018 (when her social worker left) and September 2019.
  2. Ms C also complained the Council was wrong to accuse her of misusing her direct payments, as a result of which it stopped her direct payments and force a commissioned care package on her.
  3. Ms C said this resulted in distress and a lack of support during this time as she was unsure what she could spend her direct payments on.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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

  1. I considered the information I received from Ms C and the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

  1. Guidance on how to work with and support people who have autism (such as from the National Autistic Society guide for councils) states, amongst others, that:
    • Council staff need to take a consistent approach and need to be reliable. This will help the person to develop trust. Inconsistent and unreliable support can be worse than no support at all.
    • It is good practice for council staff to have a clear idea how to engage with the person that needs to be assessed, and their ways of communicating and understanding, before starting. Without this, the person may not engage, and the Council may risk making them feel anxious or more isolated.
    • Because the world and people in it seem so unpredictable, many people with an ASD experience stress and anxiety. This can have a huge impact. When under stress, the ability to communicate, interact socially and to think flexibly is likely to be further reduced.
  2. The Care and Support Statutory Guidance states that: councils should consider the impact of an assessment / review process on the individual and give consideration to the preferences of the individual with regards to the ‘timing, location and medium of the assessment’. This means that, when needed, an assessor needs to adapt the process in light of preferences and make reasonable adjustments (for instance in relation to ADS/ADHD).
  3. Ms C’s Direct Payment Agreement said that:
    • The Council will request the client to repay funds if: The Direct Payment (DP) or any part of it has not been used to secure the purchase of services, or some part of services that are required to meet your assessed needs.
    • In such cases, the Council has the right to terminate the agreement.
  4. The Care and Support Statutory Guidance states that a DP should only be terminated as a last resort: “Councils should take all reasonable steps to address any situations without the termination of the payment”.

What happened

  1. Ms C says she has had support from a particular ADHD life coach for more than ten years, as well from a personal assistant, with whom she had both built up a valuable and trusted relationship. She says that both have been an integral part of supporting her to gain confidence with daily life and to be there when new or overwhelming experiences occur. Ms C says she would use the life coach support hours flexibly, depending on how she felt, and decide if she would therefore temporarily need more or less support from him. As such, she had to use her life coach more often at the end of 2018, due to several very distressing and exceptional events that occurred in a short time.
  2. Ms C’s support plan from 2018 said she received support in several areas, including:
    • Access to social activity/community: Support with building confidence around socialising and taking part in new activities, including accompanying her when needed.
    • Life coach (as needed): Check to see how she is feeling and managing and provide specific support to work through an issue that she finds stressful. The budget allocated was for one visit and phone call a month.
    • Care manager: At times of stress, Ms C needs emotional support and reassurance to help her focus her thoughts. This may also require practical help and support in dealing with other agencies.
    • Maintaining relationships: Ms C could feel isolated at times and struggle with confidence around socialising and doing new activities. She also struggled with difficulties with her family. As such, her life coach had been instrumental in the support needed to mitigate the effects of her various difficulties and to discuss strategies round social contact. He would provide support over the phone or through visits.
    • Accessing the community: Ms C had identified activities to do but would become overwhelmed at times. As such, she received support from her life coach and her PA to overcome her symptoms of ADHD.
  3. A support plan review from August 2018 said, amongst others, that:
    • Ms C preferred to have emails or text messages. It did not say anything yet about preferring face to face contact.
    • She would like written material to be printed for her, so she can read it and have time to understand it and (if needed) get support dealing with the implications of certain decisions.
    • Ms C could become overwhelmed and would then need somebody to support her, prioritise things and help with tasks.
    • Her support plan had evolved. It was now better meeting her own identified needs for control and support of her wellbeing and daily life.
  4. The social worker, who supported Ms C for many years, left her position in August 2018. A Transfer Summary note from September 2019 says that:
    • Ms C is very anxious about having to get used to a new worker again. She needs to feel that in the background there is always support from ASC. She sometimes needs reassurance from a care manager.
    • It is necessary for care management to have some understanding of the way in which ADHD/Autism and dyslexia influence her daily life and the difficulties, especially with authority that this presents.
    • The Support Plan has been written with Ms C, very closely reflecting her wishes, feelings and needs and the way in which her life has progressed over the past 12 months.
  5. After her social worker had stopped supporting Ms C, Ms C sent emails to the Council on 21 September 2018, in which she said:
    • There should be a handover to ensure the new social worker would know everything about her case and background. The Council told her that someone was available, and she would not be left hanging.
    • She would not contact just any duty officer, as this would not be consistent care and would impact on her health, autism and ADHD. As such, she wanted an allocated social worker.
  6. The Council responded to this the same day by calling Ms C. It apologised for not being able to allocate a new social worker and explained how allocations work. The records state that Ms C accepted this but asked, in the light of her anxieties and condition, if she could have an interim 'link person' rather than having to deal with lots of different people on duty.
  7. Ms C says the Council failed to ensure there was a smooth transition or consistent approach and was not as reliable as it should have been to help her develop trust. She says:
    • The Council promised there would be a proper handover from her old social worker to her new one. A smooth transition is particularly important for people with her condition. However, this did not happen. Instead, she was told to contact the duty line, which meant she constantly had to speak to different people and repeat herself. Furthermore, the Council often failed to return her calls during this time. This inconsistent approach during this time was very traumatic for her.
    • After a few months she experienced “Autism overwhelm” (overwhelming feelings such as anger and frustration leading to a meltdown). The Council gave her the name of a specific officer. However, the officer was only a ‘link worker’, not an allocated social worker. As such, he was rarely available for her (only for emergencies) and did not provide the help and support she needed.
    • As such, the Council failed to ensure that it provided her with the support she needed, between September 2018 and January 2019. It failed to ensure there was consistency and support from a person who knew her case, situation and background.
  8. According to the records, Ms C mainly contacted the Council link person by email, and she received a response within a reasonable time.
  9. The Council allocated Ms C’s case to a new social worker in January 2019. The new social worker said in a statement that, before she met Ms C, she had a clear idea how to engage with Ms C and the way she wanted to be communicated with, by:
    • Speaking to her former social worker on 11 January 2019, to understand how she supported Ms C and how she had communicated with her.
    • Speaking to Ms C’s link officer about his involvement and asked advice on meaningfully engaging with Ms C.
    • Familiarising herself with Ms C’s support plan, which indicated she needed to be met at home where she is comfortable, or in a neutral place. It also said Ms C would sometimes need emotional support.
    • Reading previous case notes and transfer summaries.
  10. Ms C says:
    • Her previous long time social worker had been very good. She had worked well with her and she had used her direct payments for 10 years without any concerns. She made her feel like a valued human being and listened to how she wanted her life and what was important to her. She took the time to talk about these things with her in an informal manner. She understood the importance of her life coach and being able to use this support flexibly throughout the year, depending on whether there is temporarily an increased or reduced need for this support, depending on life events etc. As a result, her old social worker commented in the support plan review in 2018 that the support plan: has evolved and is now better meeting her own identified needs for control and support of her wellbeing and daily life. Ms C says the above approach, and the way her old social worker made her feel, took her ASD / ADHD into account.
    • However, her new social worker failed to take a similar approach. She was patronising and she did not feel listened to. The new social worker questioned the integrity of her specialist coach and sent emails to her (Ms C) at times she did not have any support to deal with it. She also did not take the time to:
        1. Talk to her and try and get to really know her, her background, what was important to her, understand how important her life coach was to enable her to function and live independently etc.
        2. Discuss and understand, in a non-threatening manner, why she had spent her direct payments in a particular manner, how she had tried to use the flexibility of direct payments to meet her needs in a flexible manner etc. Instead, she was quick to suggest, accuse her, that she had been misusing her direct payments.
  11. Ms C gave a document to the new social worker at their first meeting on 15 January 2019. It was about how to assess a person with Autism. The social worker says the first meeting lasted one and a half hours. During the meeting, Ms C was able to give background information about her situation and inform her about her need for support.
  12. Ms C’s social worker says:
    • She took the unusual step of accompanying Ms C to her GP in January 2019, because Ms C was anxious about the visit.
    • She offered to support Ms C with a vet appointment, so she would not have to be alone when her dog would be put to sleep.
    • She organised a meeting with her housing officer and attended this to support her, even though it was her day off.
  13. The records indicate the new social worker, following the initial meeting, was active in organising and facilitating support to try and solve issues Ms C was struggling with and the relationship between her and Ms C was positive.
  14. Ms C asked her social worker in February 2019 for clarification what her Direct Payment could be used for, especially in relation to transport / fuel cost. In response, the Council told her it did not have a leaflet to explain this to clients yet, but it was in the process of finalising one.
  15. On 7 March 2019, Ms C’s social worker identified some areas of concern with regards to the way Ms C was using her Direct Payments. This included Ms C paying herself £50 expenses and having more frequent life coach sessions as agreed in the support plan. The Council’s finance team clarified the latter would not have to be paid back as long as the support was provided. The social worker asked Ms C by email why she had paid herself and her PA for expenses. Ms C replied to say the previous social worker had agreed she could use £10 per session for fuel, cinema tickets etc. The social worker checked this with Ms C’s former social worker, who said they did agree this.
  16. The social worker organised a care review meeting with Ms C on 12 March 2019. The meeting was also attended by Ms C’s advocate and lasted two hours. The social worker says she asked Ms C and her advocate at the end of the meeting if they were satisfied with how the review had been undertaken, and both said they were.
  17. Ms C told me that:
    • It was only after the meeting, when she discussed the meeting with her Personal Assistant (PA), that she realised she had felt disempowered and not listened to. The social worker had minimised and trivialised some of her issues, such as the support she was getting from her life coach.
    • She told her social worker at the meeting, how she would like the Council to communicate with her. She said that, as a person with autism, she would like face to face contact where possible, or otherwise contact by phone. If needed, this could be followed up in writing. Nevertheless, she received a lengthy email on 13 March 2019 at 5.49pm, which included a lot of negative information. The email left her feeling distressed and caused her to have a meltdown; she did also not have her PA with her to try and cope with it.
  18. Ms C told the social worker in an email on 13 March 2019, she was concerned and worried about expenses and that she may have to pay this back. She said she would be anxious and worried until this was resolved. The social worker subsequently said she would check this with management.
  19. However, the social worker says:
    • She fully recorded the meeting on 12 March 2019. There is no record of Ms C mentioning the above communication preferences, because this was not discussed then.
    • She provided an immediate email response to Ms C’s email of 13 March, because Ms C said she felt concerned. Her email merely confirmed Ms C should no longer claim expenses for personal use such as snacks, cinema tickets, and fuel. The email also tried to assure Ms C that she would recommend to management, given Ms C’s circumstances, that she would not have to pay the expenses back.
  20. The email also said the Council would consider commissioning her support, rather than Direct Payments. This would not alter the support plan and would perhaps cause less stress to her.
  21. The Council says that, because Ms C indicated she was stressed about this, the Council made a quick decision and confirmed on 15 March that she would not have to pay back any of the expenses. The social worker also proposed to have a meeting with Ms C to discuss how her care package should be delivered after her Direct Payments would stop.
  22. Ms C says the Council said it would stop her direct payments because she had misused them. However:
    • She always used her life coach support flexibly. As such, while she may have overspent on that item during some months, she has always ensured the total annual expenditure on her life coach remained within the budget ‘allocated’ for life coach.
    • The support plan said she should access social activities and activities in the community. The Council has never made it clear to her she could not use her direct payments to pay for petrol needed to access the community / those activities. Therefore, if this was not allowed, it was completely unintentional.
  23. In response, the social worker says:
    • There was an agreement in place, which Ms C had reached with her former social worker, about how much support Ms C would receive from her Life Coach. When it became clear that the support had increased significantly, without prior agreement, this had to be questioned.
    • Furthermore, even though Ms C told the social worker she had agreed with her former social worker that she could use her DP to pay for fuel, cinema tickets, the former social worker confirmed this was not the case.
  24. The social worker received an email on 15 March 2019 from Ms C’s advocate, in which she asked not to contact Ms C anymore. The social worker said she followed this request and asked the case to be reallocated to a new social worker.
  25. The Council had told Ms C that its plan was to change her support from a DP, to support it would commission/arrange. The Care Act Guidance says that a DP should only be terminated as a last resort. It says: “Councils should take all reasonable steps to address any situations without the termination of the payment”. The Council has told me it considered stopping the DP:
    • Not because it was concerned Ms C used her direct payments to get support from her life coach in a flexible manner, but due to the significant and sustained increase in the use of this over several months. Instead of the allocated £258 per month, she spent £1,276 in October 2019, followed by £801 in November, £516 in January 2019 and £611 the month after.
    • Furthermore, the social worker also identified the concern that Ms C had been paying herself and her PA for some expenses. Ms C said this had been agreed with her previous social worker, which was not true.
  26. Ms C says that:
    • Once she was accused of misusing her money, she tried to verify with the Council what exactly she could (not) spend her direct payments on. The Council said it would set out its position in a ‘legal letter’ which she had to wait for until the end of July 2019.
    • Ms C says this was an unreasonable delay and resulted in her feeling very anxious and distressed over a long period of time. She also felt she could lose her PA if her support package became a commissioned service.
    • She felt she could not use any of her direct payment funds to pay for life coach support (until August 2019), because she was extremely concerned about the accusations of overspending, fraud, and misuse and the threat of the withdrawal of her direct payments.
    • As such, the situation had a catastrophic effect on her. She isolated herself and stopped engaging with the outside world. She stayed indoors most of the time with the blinds down, not socialising, losing all the independence she had painstakingly developed over the years.
  27. The Council finally sent ‘the legal letter’ at the end of July 2019. It confirmed she had used the Direct Payment inappropriately. It:
    • Showed she spent far beyond her allocated monthly life coach budget, between October 2018 and February 2019.
    • Said she spent money towards fuel and cinema tickets, which was not allowed.
    • Told her the Council would therefore terminate her direct payments within 28 days.
  28. This situation and uncertainty continued, until Ms C received a letter on 10 September 2019 suggesting a meeting and to discuss how and for what her DP monies can be used.
  29. The Council carried out a review with Ms C in October 2019, which said:
    • Ms C prefers information to be given to her face to face, followed up by a call or email.
    • Her self-assessed wellbeing had deteriorated since her last assessment in all 9 areas.
    • Her life coach sessions would be increased to two visits and two phone calls per month.
  30. All parties agreed a new support plan and she would continue with a DP.
  31. The Council says that:
    • Ms C’s social workers were qualified and had the necessary assessment skills to assess customers with ASD and ADHD.
    • An Assistant Service Manager was involved after September 2018, until the Council allocated a new social worker in January 2019.
    • The Direct Payment Agreement Terms & Conditions clearly says that funds can only be spent as identified in the Support Plan.
    • There was an unacceptable delay in the Council accessing legal advice and producing the subsequent legal letter. The Council has apologised for the distress this caused Ms C.
    • The Council is sorry if the experience of Ms C’s March 2019 review made her feel disempowered.

Analysis

  1. A support plan review from August 2018 said, amongst others, that Ms C preferred to have emails or text messages. It did not say anything yet about preferring face to face contact.
  2. The support plan from 2018 also identified the importance to Ms C of having a care manager allocated to her case within the Council. However, the Council failed to ensure there was a smooth transition from her old social worker (care manager) to a new one. The Council only handed over the case to a new social worker in January 2019, five months later. This was fault.
  3. However, following Ms C’s request in September 2018, the Council put a link person in place in the interim. However, despite the link person promptly responding when Ms C would contact, she says this did not provide her with the consistency and level of support she needed, which caused her distress.
  4. The Council’s records show the new social worker familiarised herself with the case and Ms C, before she contacted her. She also took Ms C’s condition into account when she decided there was a need to offer Ms C with her support when attending several meetings.
  5. Ms C said that, during a care review meeting on 12 March 2019, she felt disempowered and not listened. However, it is not possible for me, based on the available evidence, to come to a view if the social worker conducted herself inappropriately during the review.
  6. Ms C said she told her social worker during the meeting that, in terms of method of communication, she would like face to face contact where possible, or otherwise by phone. If needed, this could be followed up in writing. As such, Ms C said the social worker should not have sent her an email after the meeting, as this was not in line with her preferences. However, the social worker said this was not discussed at the meeting. It is also not referred to in the notes from the meeting. As such, I am unable to conclude Ms C made the above request at this meeting.
  7. The social worker said she sent an email in response to Ms C’s email, in which Ms C had indicated she was unsure and anxious about certain things. As such, the social worker said she wanted to reassure Ms C as soon as possible. I considered the context and contents of the email and concluded there was no fault with the majority of its contents, other than that the Council should not have told Ms C that it may change her direct payments to a commissioned service. Ms C said this news came as a shock to her.
  8. The Council said that, because of Ms C’s anxiety, it made a quick decision that she did not have to repay any of the DP money that had been used inappropriately.
  9. The Council also followed the instructions it received on 15 March 2019 from Ms C’s advocate, that it should only communicate with her advocate going forward.
  10. The Council has accepted that it took too long to clarify its position through ‘the legal letter. This delay and uncertainty caused Ms C significant distress and anxiety from mid-March 2019 onwards. This was only partially reduced when she got a letter in September 2019 that indicated the Council wanted to discuss how to continue her DP.
  11. I found that the Council was at least partially to blame that Ms C spent some of the DP on petrol and cinema tickets. The Council’s DP Agreement does not make it sufficiently clear that funds cannot be used for this. In addition, it acknowledged it had not yet prepared a leaflet for clients in which it could have provided further clarity and examples of what would not be allowed.
  12. As such, in terms of injustice, I found that Ms C experienced avoidable distress and anxiety in 2018 (four months) and 2019 (four months).

Agreed action

  1. I recommended that, within six weeks of my decision, the Council should:
    • Provide an apology to Ms C for the faults identified above and the distress these have caused her. It should also pay her £400.
    • Share the lessons learned with relevant staff within its adult social care department.
    • Review the specific information and advice it currently provides to DP users around specific items that the Council says a DP should not be used for, such as for instance petrol.
  2. The Council has told me it has accepted my recommendations.

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Final decision

  1. For reasons explained above, I found there was fault.
  2. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman

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