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Essex County Council (20 012 711)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 28 Jul 2021

The Ombudsman's final decision:

Summary: There was fault by the Council. It failed to deal with Miss B’s request to increase direct payments for her daughter’s care for over two years, despite her repeated contact to resolve this. This caused Miss B prolonged and significant distress as she became more fearful that her daughter’s care would be terminated. The Council should apologise to Miss B and her daughter, make a payment to her, and review how it can prevent the fault recurring.

The complaint

  1. Miss B complains on behalf of herself and her daughter, Y, that the Council failed to deal with her request for an increase to Y’s direct payment, when the day centre provider increased the fees for Y to attend in January 2019.
  2. Miss B has described the impact on her. She says she was extremely distressed and worried the provider would not allow Y to attend and that she could not afford to make up the shortfall in payments. Miss B says this had a significant impact on her mental health and her ability to cope with the demands of caring for her daughter and seeing to the needs of the rest of the family.

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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. 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 provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its relevant case notes. Both parties have had the opportunity to comment on a draft of this statement. I have considered the comments received before reaching my final decision.

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What I found

  1. Direct payments (DP) are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to arrange their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about DP so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly. (Care and Support Statutory Guidance 2014)

What happened

  1. Miss B lives with her adult daughter, Y and her son. Y is disabled and needs help with all of her basic personal care. Miss B cares for her at home and the Council pay her DP to fund her attendance at a day centre. Miss B manages the payment for her daughter, who is unable to do so. She tells me that she searched for the most suitable day centre to meet her daughter’s needs.
  2. In December 2018, the day centre Provider wrote to Miss B to notify her that the daily rate for Y would increase and she would need to pay more. Miss B sent the letter to the Council in January 2019 asking for the Council to increase the DP. She says the Council told her that it would probably not have to reassess Y or her ability to pay for her care, and that it would contact her again to confirm whether it would increase the DP.
  3. The Provider had understood that it had to give Miss B six weeks’ notice, but in fact it should have first gone through a fee uplift process with the Council before the new rates can be approved.
  4. The Council’s case notes say that Miss B kept chasing the Council for a decision. Miss B says she telephoned the Council numerous times. In July 2019, Miss B told the Council that she was now paying the shortfall from a surplus she had built up in Y’s DP account, but that this could not continue and she was worried that Y’s place at the centre was in jeopardy.
  5. In August 2019, the Council reviewed Y’s care and support plan to make sure it was meeting her needs. However, it did not address that the DP was not enough to pay for the increased day centre fees. The Council’s case notes say it will pass this to another team to resolve, but the Council took no action.
  6. In November 2019, the Council told Miss B not to pay the increased rate, but she was worried that it would jeopardise her daughter’s place. It is clear that Miss B was extremely worried about this and needed the Council to resolve the problem.
  7. Miss B continued to chase the Council and in May 2020, it told her it would allocate a worker who to deal with this for Y. The case notes show the Council was concerned about some of aspects of how the day centre operated. The Council does not appear to have kept Miss B updated as to any progress on the DP rate in the meantime.
  8. Miss B contacted the Council again in June 2020. The contact with the Council makes it clear that Miss B is struggling to cope and Y’s provision is in jeopardy due to arrears. The case notes show the Council was in contact with Miss B in July and August 2020, but there is no explanation as to why the Council did not resolve the problem. The case notes describe the situation as urgent. The Provider reduced the fees to the original level as a temporary measure, but the Council still did not decide whether it would increase the DP.
  9. In July 2020, the Council completed a financial review, but again it did not take the opportunity to finally decide whether to increase the DP.
  10. In January 2021, having heard no more from the Council, Miss B complained to it that it had failed to increase the DP or to make any decision about this. The Council responded on 15 February. It told Miss B that the Council needed to complete a review for Y, in order to resolve the DP issues, and Miss B should continue to work with the social worker. The Council said if she was not satisfied with its response, Miss B could take her complaint to the Ombudsman.
  11. Miss B complained to the Ombudsman. Then on 23 February, Miss B’s payment to the Provider was declined because the DP account was overdrawn. Miss B contacted the Council again. The Council’s record are clear that the day centre is a lifeline to Miss B and Y, and Miss B says she could not manage without it.
  12. On 23 February, the Provider agreed not to increase the fee for Y’s attendance at the day centre and it returned the additional money it had received to Y’s DP account.

Was there fault by the Council causing injustice to Miss B and Y?

  1. The Council has explained that it only referred Miss B to the Ombudsman by mistake and it had meant for her to contact it if she was dissatisfied with the Council’s response to her complaint. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. We would usually expect a complainant to exhaust the Council’s complaint procedure.
  2. I appreciate that Miss B has not exhausted the Council’s complaint procedure and the Council referred her to us in error. However, based on the information I have to date, I am satisfied the Council has had the opportunity to investigate and respond to this issue. Following Miss B’s initial request in January 2019, the Council had the opportunity at reviews in August 2019 and July 2020 to resolve the problem, as well as when she contacted the Council numerous times up to February 2021. The Council knew the situation and has had the opportunity investigate the problem and reply to Miss B. For this reason, I have decided that I should investigate Miss B’s complaint now.
  3. There was fault by the Council. It failed to resolve the increase in the cost of Y’s day care provision. It was on notice of this from January 2019, but failed to address the issue either by agreeing to the increase in the DP or properly liaising with the Provider.
  4. In response to a draft of this statement, the Councill has said that it has specific processes and teams in place to monitor direct payments, and the issues experienced by Miss B are an isolated incident caused by its investigation of the Provider. However, investigation should not have taken so long to complete, and there is no evidence that the Council made any effort to minimise the distress and uncertainty for Miss B during the investigation.
  5. I have taken into account that there was no interruption to Y’s day care as a result of the Council’s failings. However, Miss B’s fear and distress that the placement might cease, and that Y’s DP account became overdrawn had a significant impact on her. The Council’s case notes are clear that it understood the urgency of the situation and that Miss B was under severe pressure, and yet there was no decisive action. The Council had several opportunities to resolve the problems and its failure to do so prolonged Miss B’s distress and put her to more time and trouble as she made repeated attempts to progress matters.

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Agreed action

  1. In recognition of the impact on Miss B and Y, the Council will within one month of my decision show the Ombudsman it has:
    • Apologised to Miss B, and if appropriate Y, for the distress its failures caused them;
    • Paid Miss B £300 in recognition of the prolonged distress and worry it caused her, and £200 for the additional time and trouble it put her to when she had to complain numerous times; and
    • Shared this decision with relevant staff.
  2. Within three months of my decision, the Council will show the Ombudsman it has:
    • reviewed how it communicates with DP recipients or their representatives, particularly where there is an investigation of the Care Provider in order to minimise distress and uncertainty; and
    • implemented any necessary measures to prevent a recurrence of this fault.

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Final decision

  1. I have completed my investigation. There was fault by the Council causing injustice to the complainants.

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Investigator's decision on behalf of the Ombudsman

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