Hampshire County Council (20 013 004)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 25 Apr 2022

The Ombudsman's final decision:

Summary: Mrs A complains on behalf of Mr B about the way the Council has dealt with Mr Bs direct payment account and its decision to stop payments, and that it has not reviewed Mr B’s needs. The Council is at fault because it did not try to contact Mr B’s representatives as it should have done, it stopped payments without ensuring Mr B’s care needs were still met and has delayed reviewing Mr B’s needs. Mr B and his family have had to provide care and support and have suffered distress. The Council has agreed to apologise, pay Mr B £250 for distress, pay Mrs A £4000 for distress to herself and Mr B’s family, complete Mr B’s review/care plan, provide guidance to staff and conduct an audit of service users.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complains that the Council did not deal with payments for his care properly because it:
    • did not take all reasonable steps to contact him and his mother and terminated the contract without taking reasonable steps to address the situation without termination and ensuring there was no gap in the provision of care and support;
    • has not conducted a review of Mr B’s needs and the care and support plan.
    • has continued attempts to write to Mr B requesting contact and had to be informed that contact should be made via Mrs A or his legal representative.
  2. Mr B says he has suffered distress, financial loss, an interruption in care provision and a lack of contact. Mrs A says she and her family have suffered distress.

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The Ombudsman’s role and powers

  1. 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)
  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’. 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)
  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 spoke to Mrs A and considered the details of the complaint as well as the Council’s response. I reviewed documents sent by the Council, Mr B’s solicitor and Mrs A.
  2. Mrs A/Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. I have exercised discretion to investigate the reviews of Mr B’s needs and revisions to his care and support plan going back to January 2019, 12 months prior to his complaint.

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What I found

Legislation and Guidance

  1. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
  2. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
  3. Plans must be kept under review and authorities are expected to review at least annually. Periodic reviews must not be used to arbitrarily reduce a care and support package.
  4. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan.
  5. Direct payments are monetary payments made to individuals who ask for one to meet some or all their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The Council should support people to use and manage the payment properly.
  6. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request in as timely a manner as possible. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should provide the person making the request with written reasons to explain its decision.
  7. Direct payments can be made to the person needing care and support, or a nominated person acting on their behalf. Councils should give a nominated person information and advice about managing the payment, so they understand their obligations to act in the best interests of the person needing care and support.
  8. Councils must be satisfied the direct payment is used to meet a person’s care and support needs, and that the person is meeting their obligations. They should have systems in place to monitor payment use and must review the direct payment within six months of setting it up, and then at least annually thereafter. Councils must also carry out a review if there has been a breach of the conditions of the direct payment.
  9. Councils should stop direct payments if the person is no longer capable of managing the payment, or if they fail to comply with payment conditions.
  10. 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. If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question.

What happened

  1. Mr B received a package of care funded by direct payments in 2014. There was a disagreement between the Council and Mr B’s family in 2015 about the content of his care plan and the completion of the direct payment agreement.
  2. In 2017 the Council changed the way it delivered services and a new worker was allocated to Mr B.
  3. In 2017 Mrs A suffered a fall and her mobility was affected to the extent she couldn’t keep her house. Mrs A and Mr B moved home and stayed with family.
  4. In 2018 and 2019 the Council sent letters to Mr B at his previous address saying it was necessary to complete a financial assessment. In December 2019 the Council then stopped the direct payments for Mr B.
  5. Mr B has since moved home again.

Analysis

Contacting Mr B

  1. Mr B’s mother wrote to the Council in 2015 requesting that all correspondence is done by email and copies are sent to Mr B’s circle of support.
  2. Mrs A says letters sent by the Council were not received, even though her mail was being re-directed. There is insufficient evidence for me to investigate this further. In any event, the failure of mail to be redirected would not be fault by the Council.
  3. The Council agreed in its stage two complaint response that it was, “not aware that [Mrs A] had requested that contact was made by email only.”, and there was nothing marked in its files to suggest that email was the preferred method of communication.
  4. The Council also agrees this was an oversight and accepts that a more extensive attempt to contact Mrs A could have been made via email. This is fault by the Council. Mr B’s direct payments were stopped because they had not replied to the Council’s letters. If the Council had communicated with Mr B and his representatives by email this would not have happened.

Stoppage of direct payments

  1. The Council accepts the Direct Payment was stopped without ensuring continuation of care and support. The Council says that given the response from the nominated individual and no contact from Mr B or Mrs A, the Council was left with no alternative than to suspend the payment until further contact was made. Mrs A says she should be the nominated individual, however the Council’s records name another family member.
  2. The Council’s explanation contradicts its acceptance it could have made a more extensive attempt to contact Mrs A as outlined in paragraph 25. This is fault by the Council. Mr B’s direct payments were stopped resulting in distress, financial loss and the risk of interruptions to Mr B’s care and support.

Care and support plan

  1. The most recent assessment of Mr B’s needs held by the Council in March 2021 dated from November 2017. Mrs A says this had not been agreed with the family and was a partially completed addition to a previous assessment completed in 2013. There is no evidence of any other assessments or care plans.
  2. The Council did not review Mr B’s needs or provision annually. This is fault by the Council. Mr B’s needs may have changed and may not have been met properly.

Review of Mr B’s care needs

  1. The Council agreed to complete a review of Mr B’s needs in October 2020. This has not yet been completed.
  2. Emails from Mrs A and information from the Council show that the review has been delayed because:
    • Mrs A did not accept the review until December 2020;
    • The Council had trouble identifying which documents needed to be reviewed;
    • There was a disagreement over who the nominated person in respect of Mr B’s direct payment was;
    • COVID-19 restrictions meant that face to face meetings were not initially permitted, and there was a discussion about holding an online meeting;
    • Mr B’s representatives took a considerable time to reply to the Council on two occasions in April and July 2021;
    • The Council cancelled a second visit to Mr B after it did not complete a draft assessment in time;
    • Mrs A has not agreed to the draft assessment when it was produced and has proposed amendments to it;
    • The Council took one month to reply to Mrs A in August 2021; and
    • The assessment needed to be completed in two parts, to enable Mr B to participate as fully as possible.
  3. The Council has advised that there will be a further delay as due to his change of address he will need to be assessed by a different team. The Council’s response to my enquiries stated the review would be completed before any transition to a new team.
  4. Some of the delay in completing the review of Mr B’s needs has been caused by the Council. This is fault by the Council. Mr B’s review of needs and his care have been delayed by several months. This has also caused Mrs A and Mr B distress.

Injustice

  1. I have considered the impact of the fault identified on Mrs A, Mr B and also Mr B’s wider family support group, as per the Ombudsman’s Guidance on Remedies. In doing so I have considered Mrs A’s statement of impact, comments from Mr B’s family, the last known full assessment for Mr B from 2013, the last known carer’s assessment for Mrs A from 2013, and also the Council’s assessment from 2017 which is disputed by Mrs A.
  2. Mr B has an Autistic Spectrum Condition, Global Development Delay, Communication difficulties, including no verbal communication and an Auditory Processing Disorder. Mr B can carry out many activities of daily living but requires support and prompting in many areas. Mr B can make day to day decisions such as what he wants to eat, what he wants to wear and where he wants to go. Mr B has the ability to make more complex decisions as long as he is provided with the right information in the right way to enable him to understand.
  3. Mr B’s identified needs include the following:
    • access to support 24 hours a day.
    • prompting And / Or Providing Essential Medication
    • prompting With Daily Living Skills
    • support to monitor his personal care
    • support in the community to ensure that he does not get bullied by other people or get into difficulties if other people misinterpret his behaviour. He is very vulnerable to people who may seek to exploit him or who do not understand his needs.
    • support to maintain contact with the people that he knows as he would not be able to initiate interaction or arrange to visit his family without their support.
    • support to help him manage socialising with people outside of the family.
    • someone to be around while he is cooking to make sure that everything is safe. He has a rigid mealtime routine and needs help and support to ensure that this can be maintained. He is a strict vegetarian, follows a rigid routine and does not eat the same food as his family.
  4. The impact on Mr B has been:
    • stopping the direct payment has limited his choice, flexibility and control which has empowered him over the years.
    • he has had to be more dependent on others after many years of him working to become independent.
    • he has lost opportunities to employ up to 3 other support workers because there was no money to pay them.
    • he is fearful of being put into an institution and losing choice and control over his life, this has affected his confidence.
  5. Mrs A suffered an injury and had an operation in 2019. As a result, this affected her mobility to the extent she could not keep her house because of the difficulties in accessing the upstairs and bathroom. Mrs A and Mr B have been supported by their wider family, particular Mr B’s three sisters, spending periods of time with each of them.
  6. The impact on Mrs A has been:
    • her health and self-worth has suffered. Mrs A has continued to help support Mr B in spite of the challenges posed by her injury and loss of mobility.
    • the carer’s assessment shows Mrs A provides Mr B with support and prompting with all activities of daily living, including prompting support to him with his personal care and monitoring his health.
    • her finances were impacted due to her role caring for Mr B.
    • her ability to socialise have been limited
    • she has been unable to pursue education or employment options for herself.
  7. The impact on Mr B’s wider family has been:
    • supporting and accommodating both Mrs A and Mr B.
    • Mrs A’s grandchildren have given up their own bedrooms so that Mr B can enjoy his own space and privacy when he stayed with them.
  8. It is clear that Mr B’s family have provided much support in an effort to minimise the impact of events on him. Mrs A told me that Mr B had not experienced a large injustice because of this. Nevertheless, he has been forced to cede control of his care and support to family.
  9. Given the wide-ranging support necessary at all times of the day and night, the injustice to Mr B’s family, particularly Mrs A, has been more significant. The needs assessments and carer’s assessment clearly identify the extent of support that has been required.
  10. Mrs A’s injury and her moving to live with family preceded the fault of the Council. As a consequence, the entirety of the impacts on Mr B, Mrs A and their family cannot be ascribed to the Council’s fault. However, in addition to the caring roles undertaken, the Council’s actions in withdrawing the direct payment exacerbated the difficulties faced by Mrs A, Mr B and their wider family.
  11. The Council has contributed to the significant delays in completing a new assessment, as identified in paragraph 33. In the interim period it has not reinstated the previously paid direct payments. I have taken account of these contributory factors when assessing any injustice according to the Ombudsman’s Guidance on Remedies.

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Agreed action

  1. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
    • Apologise to Mrs A and Mr B;
    • Pay Mr B £250 in respect of distress caused to him;
    • Pay Mrs A £2500 in respect of distress caused to her;
    • Pay Mrs A £1500 in respect of distress caused to Mr B’s three sisters, to be divided equally between them;
    • Complete Mr B’s review, decide whether his care and support plan needs any revisions, decide whether to reinstate the direct payment, decide who the nominated person is and issue a revised care and support plan as appropriate;
    • Provide guidance to staff to ensure care plans are reviewed at least annually; and
    • Conduct an audit of all adult social care service users between 1 January 2020 to 31 December 2021, to establish any further cases where care plans have not been reviewed annually and provide the outcomes to the Ombudsman.

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Final decision

  1. I have found fault by the Council causing injustice to Mr B, Mrs A and Mr B’s family. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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