Summary: There was fault by the Council as it did not act in line with the Ethical Framework for Adult Social Care during the first lockdown because it made no attempts to contact Mrs X and her family. The Council has agreed to make a retrospective direct payment and this remedies the injustice.

The complaint

1. Mrs X complained Surrey County Council refused to backdate a direct payment for her son Mr Y which she wanted to use to pay her other son Mr Z for caring for Mr Y.
2. Mrs X said the decision caused a financial loss to Mr Z.

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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’. We provide a free service, but we use public money carefully. We may decide not to start or continue with an investigation if we consider it is unlikely we could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), as amended)
4. 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)
5. Mrs X’s complaint touches on issues that happened more than 12 months before her complaint to us. I have not investigated those issues because they are late complaints, however, I have referred to incidents over 12 months ago as background information.
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation and guidance.
7. 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

8. I considered:
• The complaint to the Council and its responses
• Mr Y’s care and support plans
• The complaint to us
9. I discussed the complaint with Mrs X.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

11. Direct payments are monetary payments a council makes to an adult who it has assessed as being eligible for care and support. Direct payments allow the adult to have control over their care and support. Generally, direct payments cannot be used to employ people who are relatives and who live in the same house as the disabled adult. A council has discretion to relax this rule in exceptional circumstances.
12. Guidance for local authorities and clinical commissioning groups in the delivery of direct payments and personal budgets sets out the government’s expectations of councils during COVID-19. It emphasises the importance of flexibility during COVID-19, saying:

“Local Authorities and Clinical Commissioning Groups should review local operating procedures and adapt or suspend those which prohibit or limit flexibilities that enable family members, including those who live under the same roof, to be employed as personal assistants and be paid through a direct payment or personal health budget for the period covered by the Coronavirus Act 2020. Audit processes should be adapted to reduce burdens and allow flexibility including, for example, to enable people receiving payments to carry forward funds to the next financial year.”

13. The ethical framework for adult social care provides guidance to councils and organisations to ensure they consider a set of principles and values when organising and delivering social care for adults. Principle 4, Inclusiveness, says those making decisions should involve people in planning care, ensure no group is excluded and provide appropriate communication using a range of methods and formats to reach different people and communities. Principle 8, Community, says organisations should work with and support one another to plan for, respond to and cope with the outbreak.

What happened

14. Mr Y is a young adult with a learning disability who is eligible for care and support. He goes to a college during the day. In 2019, the Council agreed Mr Y could have a direct payment, which Mrs X manages on his behalf. The direct payment was intended for Mrs X to employ a personal assistant (PA) for six hours a week of care and support for Mr Y on a Saturday. Mr Y’s care and support plan did not specify how the direct payment needed to be used. Mrs X said in her complaint that it was for respite care to enable her to have a break from the caring role.
15. Mr Z, Mr Y’s brother, is at university and returns home during holidays. In summer 2019 (before the timeframe of this investigation) the Council gave permission for the direct payment to be used to employ and pay Mr Z as Mr Y’s PA. It did so as an exception to the rule that a PA cannot be a family member living in the same household. Mrs X told us the reason for this was because she could not find a PA. The Council suspended the direct payment when Mr X returned to university until Mrs X confirmed she had found a PA and wanted payment to resume.
16. Mrs X told us she was unable to find a PA before her husband became ill with cancer in Autumn 2019 and when the first lock-down began, both he and Mr Y were placed in the category of people who were advised to shield. Mr Z also moved home in March 2020 and continued with university on-line.
17. Mrs X told us that between March and September 2020, Mr Z did a lot of care for his brother, as her husband was having treatment for cancer and she was looking after him. Mrs X said she did not ask the Council whether she could use the direct payment to pay Mr Z as Mr Y’s PA.
18. I asked the Council to disclose its records of contacts with Mrs X during the first lockdown. It provided no evidence of any attempts to contact the family between March and September 2020 to check on their welfare during the pandemic.
19. Mrs X spoke to Mr Y’s social worker in September 2020 and said she had always intended to ask formally to use the direct payment to employ Mr Z between April and September because she was busy supporting her husband with his treatment and she did not have the energy to deal with the Council about funding. The Council refused to backdate the direct payment. Mrs X complained.
20. The Council’s response to the complaint said:
• It was aware of the pressures on her because of her husband’s health problems, but she could have got in touch with the Council during the seven- month period to advise of the change of circumstances and make the request.
• It needed to be consistent and fair in decision-making
• The agreement in 2019 was an exceptional arrangement and was time-limited. Officers advised she would need to find an alternative PA once Mr Z returned to university after the summer of 2019 and Surrey’s direct payment support service was involved in helping her to find another PA.
21. Unhappy with the Council’s response to her complaint, Mrs X complained to us.
22. I asked the Council to review its decision not to allow a retrospective back payment of funding to enable Mr Z to be paid for the care he provided to his brother. I pointed out the guidance described in paragraph 12. The Council said Mrs X had months for the family to communicate the care arrangements within the home and did not do so. It went on to say it had reflected on the challenges the family faced and it agreed to make the payment to Mr Z retrospectively.

Was there fault?

23. The Council was at fault between March and September 2020 because it did not act in line with Principles 4 or 8 of the Ethical Framework for Adult Social Care. It made no attempts to contact the family to see how they were coping with the first lockdown. While it is the case that Mrs X could have contacted the Council, she had competing demands on her time and we would expect the adult social care team to have made attempts to phone the family to check on their wellbeing. The Council failed to act in a way that was inclusive or supportive and this was fault. Had the Council spoken to Mrs X, it is likely she would have explained Mr Z was providing Mr Y with care and asked if he could be paid for this. The fault meant there was a loss of opportunity to put forward a case for direct payment funding to be used in exceptional circumstances and I consider this caused a financial loss to Mr Z. I am pleased the Council has agreed to the retrospective payment to Mr Z as this is a remedy for the injustice.

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Agreed action

24. The Council will, within one month of the final decision:
• Apologise for the fault and injustice set out in this statement
• Make the retrospective payment. The family need to provide time sheets and the hours claimed should be in line with Mr Y’s eligible needs.

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Final decision

25. There was fault by the Council as it did not act in line with the Ethical Framework for Adult Social Care during the first lockdown because it made no attempts to contact Mrs X and her family. The Council has agreed to make a retrospective direct payment and this remedies the injustice.
26. I have completed the investigation.

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Parts of the complaint I did not investigate

27. I did not investigate Mrs X’s complaint about an allegation she had withdrawn funds from the direct payment account without permission from the Council. This is because the Council resolved the complaint through its complaints procedure and there is nothing further an Ombudsman’s investigation would achieve.

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Investigator's decision on behalf of the Ombudsman