The Ombudsman's final decision:
Summary: Mr X complained the Council stopped his brother, Mr B’s direct payments in 2016 and also reduced his package of care by 21 hours a week. The Council was at fault when it stopped Mr B’s direct payments without taking steps to resolve any issues, accused Mr X of withholding the excess funds and failed to provide the majority of Mr B’s care package. The Council has agreed to apologise to the family and pay them £2,300 for the effects of the missed provision and unnecessary and prolonged additional carers’ strain this caused them. It has also agreed to review its procedures.
- Mr X complained the Council:
- has failed, since 2013 to either carry out annual reviews or to involve the family in them and has not provided the family with a copy of Mr B’s care plan or annual reviews;
- stopped his brother, Mr B’s, direct payments in 2016 on the basis of incorrect information;
- has assigned since 2016 social workers who have not supported Mr B and the family;
- agreed in February 2018 to increase Mr B’s care package to 31 hours a week but then failed to implement this; and
- included incorrect and insulting information in its complaint response.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- In relation to complaint 1b), I have considered events concerning Mr B’s care package since 2016 as this is when the Council stopped Mr B’s direct payments. I have exercised my discretion to go back to this date because there is a possibility on ongoing injustice and the Council has admitted it acted with fault.
- I have looked at Mr X’s other complaints from February 2018
- In relation to Mr X’s other complaints, he has been aware of the issues from when they arose, and I have seen no good reason why he did not complain at that time. Therefore, I have looked at these from February 2018. This is when the Council carried out Mr B’s first annual review following the 2016 decision of the panel.
- 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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- 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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
How I considered this complaint
- I spoke to Mr X and considered his view of his complaint.
- I made enquiries of the Council and considered the information it provided. This included Mr B’s annual reviews and assessments from 2018 and complaints correspondence.
- I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
The law and statutory guidance
- The relevant legislation is the Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care and Support (Direct Payments) Regulations 2014.
- The Care Act 2014 says councils must assess someone’s care and support needs where they appear to need support. Councils then write a care and support plan. The care and support plan should consider what the person has, what they want to achieve, what they can do with or without support and what support is available. It should set out the person’s eligible needs and outcomes. Councils should review care plans at least every year.
- The council should use the assessment to prepare a personal budget. A personal budget is the amount of social care funding the council will provide to meet an individual’s eligible needs.
- The personal budget must be sufficient to meet the eligible needs which have been identified in their care plan. Adults can request direct payments which enable them to pay for their care themselves. This helps to promote independence, choice and control.
- Direct payments can be managed in a number of ways, including by the person themselves, by a third party broker or by a nominated or authorised person.
- Councils must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan. The Care and Support (Direct Payments) Regulations 2014 set out that the council must review the making of direct payments initially within 6 months, and thereafter every 12 months.
- The Guidance says that “direct payments should only be terminated as a last resort… local authorities should take all reasonable steps to address any situations without the termination of the payment. Effective, but proportionate, monitoring processes will help local authorities to spot any potential issues before a termination is necessary”.
- Mr B has mental and physical conditions. He has had an adult care plan for many years. Mr B has significant eligible needs including a need for help with shopping, preparing meals, managing personal care, taking medication and ensuring he stays safe. Mr B cannot leave his home on his own and requires ongoing support to help communicate with others and socialise.
- Mr B lives with his brother, Mr X, as well as his sister and mother, Mrs M. Mr B does not have capacity to make decisions about his care or finances.
- Mr B used to receive 21 hours of care a week. This was used to pay for a carer to attend a social activity with him on Mondays and Thursdays. On Saturdays, a support worker would attend to Mr B at home and would change his bedding and bathe him.
- The family previously paid for this via direct payments. In 2016, Mr B’s social worker made a request to a Council panel to increase Mr B’s support package to 31 hours.
- The social worker emailed Mr X after the meeting and said the panel agreed to continue the two days at Mr B’s social activity with 1:1 support. This would be commissioned by the Council. However, after considering the excess funds in Mr B’s direct payment account, the social worker said the panel had decided to suspend the other support Mr B received with immediate effect. The social worker said the panel would not agree to restart the care package until the family had repaid the funds and the Council had held a review to ensure the funds had been used to meet the outcomes in Mr B’s plan.
- In February 2018, the Council carried out a review of Mr B’s care plan.
- The review noted Mr B’s mother carried out the majority of his care because Mr X and his sister worked. The family was concerned about the strain this was putting on Mr B’s mother as she was in her mid-70s.
- In relation to the family requesting additional care, the assessor noted “the first option is to request… the reinstatement of the 21 hours direct payment which was suspended because of excess and unutilised funds in the account… the second option will be through commissioning the extra hours”.
- The assessor recorded the family preferred option 2, whereby the Council would commission care for the family.
- A Council panel considered the case later in February 2018. The panel agreed to increase Mr B’s care package by 21 hours, giving a total of 31 hours a week and requested adult social care update Mr B’s care plan to reflect this.
- The Council updated Mr B’s care plan in May 2018. This showed how the hours would be allocated. It included Mondays and Thursdays at Mr B’s social activity, other activities twice a week, personal care most days and homecare, including housework once a week. The assessor recorded the family said the funds had accumulated when they previously had direct payments because they struggled to find the right carers. The assessor recorded the family wanted the Council to commission the care and the Council had agreed to do so.
- The Council carried out Mr B’s care reviews in April and June 2019 and a carers’ review for the rest of the family in July 2019. The April 2019 review again referred to the family wanting commissioned care for Mr B.
- The June 2019 care plan showed a slight increase in hours Mr B continued to attend his activity on Mondays and Thursdays with no other care provided.
- All care plans made reference to the fact Mrs M was the main carer and was becoming more physically frail as she got older.
- The carers’ assessment provided Mrs M with a one off payment of £1,000 for respite provision.
- In June 2019, Mr X complained to the Council. In its response, the Council said:
- it stopped the direct payments in 2016 because the family had built up an excessive amount of funds and refused to return them when the Council asked. As a result, the family was in contravention of the Council’s direct payments policy which allowed it to suspend the payments;
- it had carried out annual reviews and included the family; and
- the family’s social worker had supported the family. He had now left and a new social worker had been assigned to the family.
My findings - Suspension of direct payment account in 2016
Suspension of direct payment account in December 2016 and Mr B’s care package from December 2016 to July 2019
- In its complaint response to Mr X, the Council said it suspended Mr B’s direct payment account because the family refused to pay excess funds back. This is incorrect. The payments were held by a third party company, Company D, who repaid the funds as soon as the Council made its request.
- The 2018 and 2019 annual care reviews record the family stated it did not want to return to the direct payment system and wanted the Council to commission Mr B’s care. Previously the excess funds had built up because the family had struggled to identify appropriate carers for Mr B. Therefore, the removal of direct payments in itself did not cause the family an injustice. However, the allegation made by the Council that the family had refused to pay them back caused Mr X and his family offence and distress. The Council has agreed to apologise to them for this.
- When the Council stopped the direct payments it also suspended Mr B’s package of care other than the two sessions at his social activity. The Council’s assessment of Mr B showed he had eligible needs. It therefore had a duty to meet those needs. The fact the panel decided to suspend Mr B’s direct payments did not end this duty. The Council’s actions were fault.
- There is no evidence the Council either considered how these needs would be met once it stopped some of Mr B’s package of care. There is also no evidence the Council considered the effect on Mrs M of the additional burden of care that would fall to her to provide. This is also fault.
- Mr B experienced an injustice when the Council failed to provide the care he was entitled to. This is because he missed out on additional social activities which he enjoyed.
- The family found itself responsible for providing much of Mr B’s care needs from December 2016 to July 2019, a period of 31 months. This work fell to Mrs M in particular because Mr X and his sister worked. However, Mr B had not received 21 hours of care since before 2016, because the family had struggled to find suitable carers. The bulk of Mr B’s care was, therefore, already being provided by the family, and mainly Mrs M. However, if the Council had worked with the family when issues arose with their direct payment account, or moved the family onto commissioned care as they requested, on balance it is likely the family would have been provided with an increased package of care earlier.
- The care assessments identified Mrs M as becoming increasingly frail because of her age. If the Council had provided the additional hours care, this would have allowed Mrs M respite from her caring duties. Mrs M has been caused significant, prolonged and unacceptable injustice. Mr X and his sister have also been caused an injustice because they too have had to provide care to Mr B which should have been met by professional carers. The Council has apologised for this but that is not sufficient. It has now also agreed to make the family a payment as an acknowledgement of the level of injustice caused.
- The Council has said it will discuss reinstating direct payments with the family during Mr B’s next annual review. Regardless of when Mr B’s review is next due to be held, the Council should ensure this discussion takes place as a matter of priority.
Mr B’s annual reviews
- I have looked at this complaint from February 2018. Mr B had assessments in February and May 2018 and April and June 2019. This is in line with the statutory guidance. The plans show input from the family and Mr B. Therefore, I consider the Council appropriately included the family in the review process. There was no fault in the Council’s actions.
- Mr X states the Council failed to send him copies of the care plans. The Council has provided copies of its records which show a meeting between Mr X and the social worker in August 2018 which was several months after Mr B’s review. The meeting was to discuss Mr B’s care package. However, the Council has not been able to provide any other evidence to demonstrate the family received copies of subsequent care plans. This is fault.
- The family had has a continued and lengthy battle with the Council to reinstate Mr B’s additional 21 hours of care. Failure to share Mr B’s care plans with the family has contributed to their feeling the Council was withholding information and has made it harder for them to understand the package of care Mr B should have received. This has caused further confusion and frustration.
Social workers assigned to the family
- The Council has provided the family’s case notes for the period February 2018 to July 2019. The panel agreed an increase to Mr B’s care package in February 2018. There is no evidence the social worker updated the family about this.
- The family had contact with the social worker in May and August 2018 and also in April and June 2019. Although Mr B’s care was discussed, no additional care actually materialised, other than some personal care on Saturday mornings from around February 2018. Therefore, I find on balance, that the family was not supported sufficiently by the Council. This is fault. As a result, this led to frustration and the feeling the family was being neither supported not listened to. It is also likely increased support may have reduced or prevented the faults made with Mr B’s care package and direct payment account.
- Within one month of the date of the final decision, the Council has agreed to:
- apologise to Mr X and his family for the failures I have identified in my decision statement;
- pay Mrs M £1,000 to acknowledge the unnecessary and prolonged additional carer’s strain she has experienced since 2016;
- pay Mr B £1,000 for the missed provision he has missed out on since 2016, particularly his additional social activities;
- pay Mr X and his sister £100 each to acknowledge the unnecessary and prolonged carer’s strain they have suffered providing Mr B’s care;
- pay Mr X £100 for the prolonged frustration and time and trouble in pursuing the reduction in Mr B’s care package;
- contact the family to discuss whether to provide direct payments or commission Mr B’s package of care; and
- if the care is to be commissioned by the Council, begin work with the family to identify how that care will be provided. The Council should ensure Mr B’s care plan is clear about how and when the care will be provided.
- to keep direct payments under review, and that any concerns are appropriately addressed and followed up; and
- to ensure care arrangements are not cut where eligible needs remain the same but funding arrangements change.
- There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman