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Isle of Wight Council (21 000 195)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 27 Aug 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s decision not to reimburse her deceased father’s estate for the care she provided him between November 2019 and March 2020. We find the Council was at fault in how it considered whether Mr Y’s direct payments could be used to pay for the care Mrs X provided. That has meant he paid for care he was entitled to receive financial support for. The Council has agreed to reimburse Mr Y’s estate with the direct payments for the care Mrs X provided. It will also review its policy on direct payments.

The complaint

  1. Mrs X complained about the Council’s decision not to reimburse her deceased father’s, Mr Y’s, estate for the care she provided him between November 2019 and March 2020. She said this meant Mr Y paid for care that he was entitled to receive direct payments for.

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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 discussed the complaint with Mrs X and considered the evidence she provided.
  2. I read the Mr Y’s case records and his care plan.
  3. I referred to The Care and Support (Direct Payments) Regulations 2014; and the Care and support statutory guidance.
  4. 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

Care needs assessments

  1. Councils must assess anybody in their area who appears in need of care services. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support, it must produce a written care plan.
  2. Where a person provides care for another adult and it appears that they may have any level of needs for support, local authorities must carry out a carers assessment. The only exception is where the person providing care does so under contract (for example, for employment) or as part of voluntary work.

Direct payments

  1. Direct payments are cash payments a council makes to a person with eligible care needs, instead of providing them with care services. They give people control and choice over their care arrangements.
  2. The Care and Support statutory guidance (the Guidance) states “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs”.
  3. The Care and Support (Direct Payment) Regulations 2014 state that direct payments must not be used to pay for care from a close family member living in the same household, except where the local authority determined this to be necessary.
  4. The Council’s policy reflects this and states that in ‘exceptional’ circumstances it will consider a direct payment to pay for support from a close relative, or spouse or partner that the person lives with.

Background

  1. Mr Y was severely disabled and needed full-time support with his care. As he had funds above the income threshold, he self-funded his care.
  2. Mrs X gave up her job in 2015 to provide full-time support to her father. Mr Y paid her a monthly wage. Mrs X (on Mr Y’s behalf) also employed three personal assistants. Between the four of them, they covered a rota that provided Mr X with 10.5 hours of care a day.

What happened

  1. Mrs X contacted the Council in November 2019 asking for a financial assessment for Mr Y. An officer from the Council met with Mrs X mid-December. Mrs X told me that she explained to the officer that she was one of a team of four personal assistants (PA) who provided support to her father, and that she took a wage for that support.
  2. The Council assessed Mr Y as eligible for financial support. It allocated the case to a social worker to complete a care needs assessment to confirm Mr Y’s care needs.
  3. The social worker met with Mrs X and Mr Y to complete the assessment mid- January. The completed care needs assessment said Mrs X supported her father “as part of a PA package of care and supports as a contingency plan if required”. It went on to note Mrs X “assists when required and is happy to support and cover the current PA’s at present as a contingency plan if a PA is unwell or on holiday”.
  4. The Council assessed Mr Y as meeting the criteria for a residential placement but noted his wish to remain at home. The assessing social worker proposed Mr X would benefit from a daily package of care for 11.5 hours.
  5. At the end of January, the Council’s Adult Social Care (ASC) funding panel agreed that the Council would pay Mr X weekly direct payments to purchase his package of care and that it would backdate the money to November 2019 when Mrs X first contacted the Council.
  6. At the start of February, the social worker wrote to Mrs X and provided the direct payment factsheet and agreement for her to sign and return. Mrs X contacted the social worker to query the information about direct payments. She said. “I am [Mr Y’s] daughter who looks after his care, and also does the caring, we met at the assessment. I note in point 1.9 [of the agreement] it says that money cannot be paid to a member of the family ie, me unless with prior written agreement. I do not have that written agreement, though I have been getting paid for the shifts I do for my father. How do I get that agreement?”
  7. The social worker sought further advice from a manager. In the first email, they said Mrs X was Mr Y’s main carer and a personal assistant, and that she had been caring for Mr Y for many years alongside a team of four other personal assistants. It said she had been paid by her father for the care she provided. However, they then followed that up with an email stating Mrs X only supported her father when the personal assistants were unavailable.
  8. Internal emails between Council officers indicated the ASC funding panel would normally agree whether a direct payment could be made to a family member and that a family member could support if they did not live at the same address, but the family member would need to be accredited, have public liability insurance and a self-employed reference number.
  9. On 9 March 2020, the social worker emailed a senior manager asking “please could this be presented to a senior manager to obtain funding agreement outside of panel due to ongoing delay of funding? The hours are agreed however I require clarification that [Mr Y’s] daughter can be paid for hours when she supports”. A senior manager confirmed Mrs X could be paid for the hours she cared for her father. The social worker emailed Mrs X the same day and said “I have today received an agreement for you to be paid as part of Dad’s support package. I have notified Direct Payments Team to set up the payments and they will issue you with a pre-paid card which usually takes around 2 weeks”.
  10. Mrs X sent the Council confirmation of the number of hours care she had provided to her father since November 2019. In response, the Council said it needed to clarify whether it could pay her for all the hours worked, or whether the direct payment was limited to contingency support only.
  11. Following that there were several emails between Mrs X and the Council about the support Mrs X provided her father. The Council said it was not aware that her father had paid her for the care she provided. At the start of April 2020, the social worker asked Mrs X to confirm how many hours of support she provided a week. Mrs X provided a rota for two weeks. Over a fortnight, Mrs X provided her father 89 hours of care, working 52 hours one week and 37 the next.
  12. The Council wrote to Mrs X at the start of April and told her about how to register as a personal assistant. It also said:
    • The Council would not support her working 52 hours a week because of the potential for her exhaustion and sustainability of the working arrangement.
    • It was unusual for a family member to be paid for supporting in a personal assistant role.
    • If Mrs X completed an appropriate rota, with the hours shared between a team of personal assistants the Council would consider funding the hours Mrs X supported her father.
  13. Mrs X responded and said she was looking to employ another personal assistant, but she could not do that immediately as because of the COVID-19 pandemic her father was shielding. She also clarified that she usually worked 37 hours a week.
  14. Mrs X contacted the Council on 5 June. She said she hoped to be interviewing three carers over the following week to support on weekends, but that she would continue to provide her father’s care three mornings a week.
  15. The Council responded. It said that Mrs X could receive direct payments for providing her father’s care from 6 April 2020, because of the COVID-19 pandemic. However, this was a short-term solution until a suitable personal assistant could be employed. It said it would not continue to pay Mrs X long-term as the family were choosing to provide care and support, and the family circumstances were not extenuating.
  16. Mr Y died in June 2020. Shortly after that, Mrs X contacted the Council to appeal its decision not to pay direct payments for the care she provided between November 2019 and April 2020.
  17. The Council did not uphold the appeal. It said it had spoken to the social worker who completed her father’s assessment and they said Mrs X had not said she was paid for the care she provided as a personal assistant. It said this matter was not discussed until the Council received an email from Mrs X at the end of March when the Council agreed she could act as a personal assistant because of COVID-19 pandemic.
  18. The Council said that as it did not assess Mr Y’s care needs until January 2020, any care arrangements before this date were a private arrangement. It accepted there was a delay in allocating the assessment and apologised but said that would not have changed the outcome of any subsequent payments.
  19. It apologised for raising Mrs X’s expectations as it only agreed to pay her on an ad-hoc basis.

My findings

  1. Mrs X told me she told the Council that she was paid for the care she provided her father during the Council’s financial assessment. As I was not present, I cannot confirm what was said and the case notes do not evidence this conversation.
  2. The Council met with Mrs X in January 2020 to complete Mr Y’s care needs assessment. We would expect the Council to complete an assessment within four weeks of a referral. It took the Council seven. That was fault. The Council has already accepted there was a delay in allocating that assessment.
  3. Mr Y’s care needs assessment described Mrs X as being “part of a PA package of care and supports as a contingency plan if required”. As the Council confirmed Mrs X said her father paid privately for personal assistants, and as she was described in the assessment as being part of the personal assistant package of care, I am satisfied the Council was aware Mrs X was paid for the care she provided when it completed the assessment. However, the Council believed Mrs X only covered contingency hours when in fact she was one of Mr Y’s regular paid carers.
  4. Therefore, the Council failed to clarify the care arrangement in place when it assessed Mr Y’s needs. This was fault. It did not advise her about any limit on the hours she could work, what she would need to do to register as a carer and about any potential conflict with her role in managing the direct payments. It missed the opportunity to tell Mrs X there might be a possibility it would not pay direct payments for the care she provided and to ask the ASC funding panel about the use of the direct payments. If the Council had met with Mrs X sooner, and clarified the necessary information, it is likely Mrs X would have arranged alternative support without delay.
  5. The Guidance states that where a person provides care and support, they are entitled to a carers assessment. The only exception to this is where they are employed or completing the work as a volunteer. When the Council completed Mr Y’s care needs assessment, it did not identify Mrs X as a carer or complete a carers assessment. That further suggests the Council knew Mr Y paid her for the care she provided.
  6. Mrs X contacted the Council in February 2020 and told it her father paid her for the care she provided. The Council did not ask her for further information about the support she provided or seek to clarify the arrangement. It did not ask her to confirm the number of hours she worked until April 2020. That was fault.
  7. The Council stated that it would not agree for a relative to receive a payment for support unless there was an exceptional circumstance. However, this is not reflected in the Council’s policy. That states that in “exceptional circumstances” it will consider a direct payment to pay for support from a close relative, spouse or partner that the person needing care lives with. It does not state that exceptional circumstances are needed when the person providing the care does not live with the person needing the care. As Mrs X did not live with Mr Y, I can see nothing in the Council’s policy preventing Mr Y from receiving direct payments for the care she provided.
  8. The Guidance states councils should not place “unreasonable restriction” on the use of direct payments if the payment is used to meet eligible care and support needs. The Council’s refusal to pay Mrs X appears in these circumstances to be an “unreasonable restriction”. Not only is its decision not consistent with its own policy, Mr Y had eligible care needs that Mrs X met. The purpose of direct payments is to allow a person choice over their care. Mr Y had paid Mrs X to care for him as a personal assistant for several years, indicating that he wanted her to meet his care needs. The Council should have considered that before deciding he could not use the direct payment to pay for the care she provided. The Council did not do that. That was fault.
  9. Given the above I am not satisfied the Council properly considered Mrs X’s appeal because:
    • It said Mrs X only told it she was paid to provide care to her father in March 2020. The evidence shows that is incorrect.
    • The Council did not properly explore the support Mrs X provided Mr Y when it met with her in January 2020.
    • The Council failed to clarify that support further after she emailed it in February 2020.
    • Its decision not to pay her as a personal assistant is not consistent with its policy or statutory guidance.
    • It did not consider Mr Y’s wishes or that Mrs X had been providing his care long term.
  10. As the Council agreed to backdate the direct payments to November 2019, there is nothing preventing those direct payments from being used to reimburse the estate for the care Mrs X provided.
  11. In the Council’s appeal response, it also accepted that the Council may have raised Mrs X’s expectations by agreeing in March 2020 that it would pay her for the care provided. The Council did not state in the email these were only contingency ad-hoc payments. Therefore, when it later said it would not pay Mrs X as Mr Y’s carer this caused Mrs X avoidable distress.
  12. The Council further raised expectations when it said it would consider funding her for the support she provided her father if she provided an appropriate rota. Mrs X provided an amended rota however, the Council then said it would only allow direct payments to be used for the care she provided short-term because of COVID-19. Although Mr Y died during the pandemic, this caused Mrs X further avoidable distress.

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Agreed action

  1. Within one month of my final decision, the Council has agreed to:
    • Apologise to Mrs X for raising her expectations for stating she could be paid as part of Mr Y’s support package and then reneging on that agreement.
    • Apologise to Mrs X for the missed opportunity of not explaining any limitations about receiving direct payment at the earliest opportunity.
    • Reimburse Mr Y’s estate with the direct payments it owes for the care Mrs X provided between November 2019 and April 2020 (following receipt of appropriate invoices and required evidence).
    • Remind relevant staff, to clarify care roles during care needs assessments and whether these are paid.
  2. Within three months of my final decision the Council has agreed to:
    • Review its policy and factsheet on direct payments so it is clear about how it considers direct payments for family members providing care.

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Final decision

  1. We find the Council was at fault in how it restricted Mr Y’s use of his direct payments. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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