Summary: Ms X complained about how the Council assessed her mother Ms Y’s care and support needs and about how it handled the financial assessment and Ms Y’s financial contribution. There was no fault in the way the Council assessed Ms Y’s care needs, in the support it identified she required or in the way it assessed her financial contribution. The Council was at fault for delays in notifying Ms Y of her contribution, for delays in responding to Ms X and for the way it recouped an overpayment which left Ms Y without sufficient funds to pay for her care. The Council has agreed to waive four weeks of Ms Y’s contribution and make a payment to Ms X to acknowledge the distress and frustration caused. It has also agreed to review its processes to prevent a recurrence of the faults identified.

The complaint

1. Ms X complained on behalf of her and her mother Ms Y about her mother’s care and support and how the Council has handled Ms Y’s financial assessment and her contribution to her care costs. In particular she complained the Council:
1. failed to allocate sufficient care hours to meet Ms Y’s needs and failed to carry out a review six weeks after the care started. This caused Ms X additional strain as she had to meet Ms Y’s needs.
2. delayed advising them of Ms Y’s contribution to her care costs and then delayed telling them a debt had accrued. Ms Y cannot afford to pay the debt and this has caused her distress.
3. stopped paying its contribution to the care costs in July 2020 without giving them any notice which left Ms Y without the funds to pay for her care and meant Ms X was not paid as she should have been
4. failed to ensure there were sufficient funds in the direct payment account from the start so Ms X was only paid for 15 hours of support she provided each week and not the 19 hours of support Ms Y was assessed as needing.

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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’. 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

4. I have considered the information provided by Ms X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance, including the Care Act 2014 and the Care and Support Statutory Guidance.
5. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

Relevant law and guidance

Assessment of needs

6. A council must carry out an assessment of any adult who seems to need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. Having identified eligible needs through a needs assessment, the council has a duty to meet those needs.
7. If a council decides a person is eligible for care, it must prepare a care and support plan. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person. 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 an amount enough to meet the person’s care and support needs.
8. 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 provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
9. Under the Care and Support (Direct Payments) Regulations 2014 direct payments should not be used to pay for care from a close family member living in the same household, except where the council determines this is necessary to meet the person’s needs.

Charging for adult social care

10. The Care Act 2014 sets out the legal framework for charging. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014. Charges may only cover the cost the council incurs.
11. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The assessment must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee). The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has (disability related expenditure), the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

What happened

12. Ms Y is elderly. She has Alzheimer’s disease and physical health conditions including arthritis. In late December 2019 Ms Y moved to the Council’s area to be nearer her daughter. In January 2020 she requested direct payments to meet her care and support needs. In the council area where she lived previously, Ms Y received direct payments which she used to pay her daughter Ms X to provide her 24.5 hours per week of care and support as Ms Y would not accept support from anyone else.
13. The Council assessed Ms Y’s needs. It considered Ms Y had eligible care needs. Her needs included support with medication and personal care, meal preparation and domestic tasks. It assessed Ms Y required 19 hours of support per week for support four times a day plus additional weekly support with shopping and domestic tasks.
14. Ms Y chose to continue using the same third-party direct payment support service she had used previously to manage the direct payment. She wanted Ms X to continue to provide her care and support. As Ms Y received direct payments it was her responsibility, with the help of the third-party direct payment support service, to manage the direct payments and to pay Ms X. The Council sent Ms X a financial assessment form so it could calculate Ms Y’s contribution to her personal budget.
15. The Council wrote to Ms Y in February 2020. The letter set out that Ms Y would receive her personal budget as a direct payment and set out how much she would receive each week. It said ‘once we have completed a financial assessment…you may have to pay towards your support’. It went on to say that if Ms Y did have a contribution to pay this would be backdated to January 2020. The Council started paying direct payments for the full amount of the personal budget to Ms Y’s third-party direct payment support service to ensure Ms X could be paid.
16. The Council did not receive a completed financial assessment form and so contacted Ms X. She said they had not received it and so the Council agreed to resend it. Ms X and Ms Y completed and returned the financial assessment form to the Council in early March 2020.
17. In late April 2020 the social worker telephoned Ms X. Ms X was unhappy with the level of the personal budget. The social worker explained they were satisfied the level of the personal budget was appropriate to meet Ms Y’s needs. They had contacted the previous council where Ms Y lived but it had not provided any information to persuade them to change their view. The notes record they offered Ms X contact details to make a complaint if she was dissatisfied but Ms X declined these.
18. The Council wrote to Ms Y in May 2020 setting out her contribution to her personal budget. Ms X says they did not receive this letter.
19. In July 2020 the Council’s audit team contacted Ms X to advise Ms Y had not paid her personal contribution and so Ms Y owed the Council nearly £3000. Ms X could not understand the level of debt and said she would contact the Council’s finance team who provided her with a copy of the financial assessment. The Council stopped making payments into Ms Y’s account. The third-party direct payment support service contacted the Council as there was insufficient money in the account to pay Ms X’s wages.
20. In late August 2020 Ms X rang the finance team. She said she had contacted the finance team and left messages but it had no record of this. She was unhappy with the level of Ms Y’s contribution. The finance team explained how Ms Y’s contribution was calculated. It advised her to contact the customer services centre if she considered Ms Y’s disability related expenditure was wrong or if she felt there were issues of affordability. Ms X called the customer services centre to report they had not received the letter of May 2020 and Ms Y could not afford to pay her assessed contribution or the debt.
21. In September and October 2020 the records show Ms X contacted the Council a further four times to ask to discuss the direct payments. She said she had not received the letter of May 2020 and had not been paid. The Council responded to Ms X and agreed to reassess Ms Y’s needs.
22. In October 2020 the Council reviewed Ms Y’s care and support needs. It agreed to increase her support to 24 hours per week. The social worker noted this was ‘due to a deterioration in [Ms Y’s] condition’. Ms X contacted the Council again to report she did not consider Ms Y could afford to pay her contribution. In October 2020 Ms Y started to pay her assessed contribution towards the cost of her care package. The social worker advised Ms Y would be invoiced for her contribution and could then apply to pay by instalments. Ms X remained unhappy and complained to the Council.
23. In December 2020 the Council started paying into the direct payment account again.
24. In December 2020 the Council agreed to increase Ms Y’s disability related expenditure to £28 backdated to January 2020 to account for additional chiropody costs paid by Ms Y.
25. The Council responded to Ms X’s complaint. It was satisfied the level of the support package was appropriate and that this was reviewed by the social worker when they spoke to Ms X in April 2020. It said Ms X was advised Ms Y was not contributing to her personal budget in July 2020 but Ms X did not contact it again until September 2020. It was satisfied the contribution was correctly calculated and had since increased the support to 24 hours per week following a further assessment. It acknowledged Ms X considered Ms Y required 24-hour care but based on the needs assessment it did not agree this was the case. It said it could not waive the charge as Ms X and Ms Y were aware a financial contribution would apply. The Council accepted it delayed writing to Ms Y between early March 2020 when it assessed her contribution and May 2020. It apologised for this.
26. It explained the direct payment had not stopped. However, payments were suspended until it had offset against the amount ‘overpaid’. It said it would have expected Ms Y to liaise with the third party direct payment support service. However if she wanted the Council to liaise with it in future she should send through authorisation.
27. Ms X remained unhappy. She reiterated she was not aware of the debt until July 2020. She said the demand for the money had caused hardship and stress. She explained that due to Ms Y’s anxiety and high risk of falls she should have 24 hour care. She asked for the debt to be resolved, a reassessment and for her wages to be paid.
28. In February 2021 the third-party direct payment support service contacted the Council. It said it never received any notification from the Council about Ms Y’s personal contribution. It had not been possible to pay Ms X for more than 15 hours a week from the start as the budget was not sufficient. It was now receiving the contribution but could not pay Ms X the back payment owed as there was insufficient in the account.
29. In February 2021 the Council responded to Ms X at the second stage of its complaints’ procedure. It explained the direct payment in the account was suspended as Ms Y should have made backdated payments into the account and the continued monthly contribution she was expected to make. It acknowledged it should have explained this more clearly when it wrote to Ms X in May 2020. It said if Ms Y had made the payments she was meant to, there would have been no gaps in the payments made to Ms X. The Council said Ms Y could speak to its financial services team if she could not afford the backdated full amount.
30. It was satisfied the temporary reduction in funds was correct to recoup the additional monies paid by the Council originally to cover the full personal budget. It said the failure to pay Ms X was the result of Ms Y not paying her full contribution. It said this was an employment issue between Ms X and Ms Y. It agreed to waiver the personal contribution due for five weeks between April and May in recognition of the delay in completing the financial assessment. Ms X remained unhappy and complained to the Ombudsman.

Findings

Allocation of care hours and review

31. It is for the Council, not the Ombudsman, to decide how much support an individual requires to meet their eligible needs. The Council was not required to fund 24 hours a week of care just because this was funded by the previous council. The Council was required to ensure Mr Y received sufficient budget to fund the care and support necessary to meet the needs identified in the assessment and set out in the support plan. The Council assessed Ms Y’s needs and contacted the previous council to discuss the level of support it had funded. It was satisfied Ms Y’s needs could be met with 19 hours of funding. There was no fault in the way it reached this decision so I cannot question it.
32. The Council contacted Ms X in April 2020 to discuss the care hours. Ms X did not consider the funding was sufficient, but the Council was satisfied the care hours were sufficient to meet Ms Y’s needs. It referred Ms X to its complaints’ procedure, but Ms Y did not pursue this at that time. When it reviewed Ms Y’s care needs in October 2020 it increased her support to 24 hours per week to reflect a deterioration in her condition. The Council was not at fault.

Delay advising of contribution to care costs

33. The Council’s records show it sent Ms X a financial assessment form in January 2020 and Ms Y the outcome of her financial assessment in May 2020. Ms X says she did not receive these but I cannot say that was due to Council fault.
34. The Council has calculated Ms Y’s financial contribution to her care charges in line with the relevant statutory guidance, regulations and its own policy. It took into account her income and disability related expenditure. There was no fault in the way it carried out the financial assessment. If Ms Y has evidence of additional disability related expenditure or housing costs which should be taken into account it is for her to provide this to the Council.
35. The Council delayed calculating the financial contribution between March and May 2020. This was fault. The Council has already waived the contribution for five weeks to reflect this. That was an appropriate remedy.
36. There was a lack of clarity and clear communication around the management of the direct payments. A third-party organisation was employed to manage the direct payments but the Council was reluctant to contact them. It failed to notify the organisation of Ms Y’s financial contribution. The Council agreed Ms X could be paid as a carer but in doing so it should have ensured Ms Y understood her responsibility to manage the direct payment and was clear about the responsibilities and role of the third-party organisation to avoid any conflict of interest with Ms X’s role as a paid carer. The failure to do this was fault. The consequence of this fault was confusion for Ms X and lack of clarity about the funding situation.

Stopped paying its contribution

37. When it calculated Ms Y’s contribution the Council stopped making payments into her direct payment account to reflect the amount she had been overpaid. The Council failed to clearly explain this would happen. This was fault. Ms Y did not receive the financial assessment letter and so was not aware of her contribution until July 2020. By which time Ms Y was not financially able to fund the backdated contribution of nearly £3000. Ms X contacted the Council in August and several times in September and October 2020 to discuss the affordability of the contribution and her concerns she had not been paid. When it did reply in October 2020 it advised Ms X that Ms Y would be reassessed but did not discuss how Ms Y could address the debt. It was not until late in November 2020 Ms X was told Ms Y would be invoiced for the contribution and at that point she could apply to pay by instalments. This delay in responding to Ms X is fault and added to the debt owed. This has left Ms Y with a large debt for her backdated contribution and meant Ms X did not receive the payments she was due as Ms Y’s paid carer.

Not allocated sufficient funds to pay Ms Y for the hours worked

38. Ms Y receives direct payments. Ms Y’s direct payments are managed by a third party organisation on her behalf. As such it is her responsibility, with the help of the third-party direct payment support service, to manage the direct payments and to pay Ms X. The Council has paid its contribution to the cost of Ms Y’s care.
39. The Council initially paid an amount equivalent to the full budget into Ms Y’s direct payment account. Ms X only received payment equivalent to 15 hours a week, not 19 hours. I cannot say why the third-party direct payment support service did not pay her for the full 19 hours but that was not Council fault
40. Money is owed to Ms X but this money is owed to her by Ms Y not the Council. I recognise, had Ms Y paid a third party and not her daughter to provide support, the Council may have stepped in and paid the full contribution at the time before arranging for Ms Y to pay back the debt to prevent the care package breaking down. In these particular circumstances I cannot say the Council should pay Ms X only for it to then pursue Ms Y for the debt. However given the delays identified above, I consider the Council should reduce the debt to reflect the injustice this caused.

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Agreed action

41. Within one month of the final decision on this complaint the Council has agreed to:
1. apologise to Ms X and Ms Y for the distress caused by the faults identified and waive a further four weeks of Ms Y’s contribution to her care package.
2. pay Ms X £250 to acknowledge the distress, frustration and additional carer’s strain she was placed under by the Council’s faults.
3. Explain the options to Ms Y of how she can pay the outstanding contribution.
4. Clarify the responsibilities of Ms X, Ms Y and the third-party direct payments support service in managing Ms Y’s direct payments to ensure there is no conflict of interest and each person’s role is clearly understood.
42. Within three months of the final decision the Council should review its procedures to ensure there is a suitable arrangement in place to manage direct payments and responsibilities are clearly understood where, due to exceptional circumstances, a family member is providing paid care.

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Final decision

43. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman