Summary: There is no evidence the Council promised to fund the additional lunchtime support which Mrs A arranged for her great-aunt.

The complaint

1. Mrs A (as I shall call the complainant) says the Council failed to pay agreed Direct Payments to her late great-aunt Miss X. She says Miss X’s social worker agreed a necessary increase to the length of lunchtime visits, but this was never formalised and she has suffered a monetary loss of over £3000 as a result.

Back to top

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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

4. I considered the information provided by Mrs A and by the Council. Both Mrs A and the Council had an opportunity to comment on a draft of this statement before I reached a final decision.

Back to top

What I found

Relevant law and guidance

5. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. 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 enough to meet the person’s care and support needs.

There are three main ways a personal budget can be administered:

• as a managed account held by the local authority with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

6. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and swift procedures in place to respond to them
7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
8. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened

9. Miss X was a very elderly lady who had dementia as well as a number of physical health conditions. She had a package of care and support funded by the Council through Direct Payments. Mrs A held joint Power of Attorney (with her mother, Miss X’s niece) for Miss X.
10. Miss X’s care and support plan specified her need for prompting with medication, support and prompting with personal care and drinks preparation and assistance with application of cream for her eczema. Her care and support plan updated in 2017 noted that Mrs A had increased Miss X’s support from the agency carers in advance of an agreed increase by the Council in her Direct Payments.
11. In April 2018 Miss X was admitted to hospital for some weeks. Mrs A says on discharge her needs had increased; she was at risk of night-time falls and Mrs A said she needed a bed sensor. Mrs A says Miss X was no longer able to feed herself. Mrs A contacted the Council in May 2018 and Miss X was referred for an Occupational Therapy assessment.
12. In addition Mrs A arranged with the care agency to increase the lunchtime call from 30 minutes to 45 minutes. She says during the lunch visit the carer had to strip Miss X, apply emollient and steroid creams to her entire body, re-dress her, microwave a meal, feed her and wash up as well as updating the notes for the next carer. She says it was not possible to achieve that within 30 minutes.
13. Miss X’s social worker spoke to Mrs A on 26 June. He noted, “(Mrs A) said (Miss X) was discharged from hospital with the issue of night falls unresolved forcing her to commission private waking night and an additional lunch visit in response. Advised that funding could not an assumed in advance of a review. Suggested that we meet to carry out such a review.”
14. The social worker visited Miss X on 30 July in the presence of Mrs A and her mother. His note records the discussion about the risk of night falls and discussed sensors, pressure mats, and pendants. There was no discussion recorded about an increase in the length of the lunchtime calls. Mrs A says, “During this visit, (the social worker) and I discussed Miss X’s lunch visits only briefly. He said there was clearly a need, it wasn’t a large increase funding-wise and he’d agree to that straight away.”
15. Mrs A lists the emails she sent to the social worker during the rest of 2018 about her request for waking night care for Miss X and said she was still waiting for confirmation about the increase in the lunchtime visits. On 15 January 2019 the social worker replied, principally about the installation of a bed sensor, and added “I will look into the lunch issues you mention”.
16. During 2019 Miss X became resident in a care home. The Council wrote to Mrs A with an invoice for overpaid Direct Payments (as it said they were paid in advance of her admission to residential care). Mrs A responded on 17 November 2019. She disputed the invoice. She added the Council still owed Miss X £3560, “for direct payments that were never made. Her care package was reassessed by her social worker… after (Miss X)’s quality of life deteriorated and she was unable to feed herself. (The social worker) confirmed the direct payment would be increased to accommodate her lunch visit. This was later confirmed by both of his managers, who job share during a phone conversation.” She said she had email evidence from the social worker that the Direct Payments would be increased to cover the increased cost of the lunch visits.
17. The social worker says that after the email of January 2019, he contacted the care agency manager who told him “no issues had been reported regarding having insufficient time to deliver the care required.”
18. Mrs A complained to the Council. The Council investigated and replied, “I am unable to agree to your request for a Direct Payment amount of £3,560.70 as that exceeds the £1,848.84 cost of the lunch time visits over the 31 week period between the date the visits were requested and agreed and the date they ended”.
19. Mrs A complained to the Council again. She said the social worker had been advised of the 45-minute lunch call at the start and agreed it was essential and would be fully funded.
20. The Council reviewed its response to the complaint. It wrote to Mrs A in July 2021. It said its notes showed that a 45-minute visit was “not agreed by (the social worker) or any other member of Bristol City Council”. It said it was unable to fund a 45-minute visit retrospectively as there was no agreement to do so at the time.
21. Mrs A complained to the Ombudsman.
22. The Council says, “(Mrs A) would independently over prescribe care then fund it out of the DP. Consequently, all care provision was carefully scrutinised in terms of need and eligibility…. (the social worker) may have agreed to look at this however the increase was not required. (The care provider) did not share (Mrs A)’s view of (Miss X)’s high level of need and risk of falls. They did not request an increase in the lunch time visits as they felt they could meet (Miss X)’s needs within 30 mins.”

Analysis

23. I have considered all the case recording and correspondence available following Miss X’s discharge from hospital in June 2018. There is no record that the social worker agreed an increase in the lunchtime visits. It is recorded that he advised Mrs A funding could not be assumed in advance of a review.
24. The email of January 2019 does not constitute an agreement to fund the additional time at the lunchtime visits.

Back to top

Final decision

25. I have completed this investigation and found no evidence of fault on the part of the Council in the way it responded to Mrs A’s requests for backdated funding.

Back to top

Investigator's decision on behalf of the Ombudsman