Summary: Mr R, representing his daughter, Ms G, said the Council was at fault for delays in providing suitable care for Ms G, and for being unhelpful and obstructive in the way it monitored spending of direct payments made to fund that care. He also said it was responsible for unnecessary delays in finding care and communicated poorly with the family. The Council was at fault for poor communication. This fault caused Ms G injustice because the family felt the Council was accusing them of dishonesty. The Council should apologise. I have not found the Council at fault in other regards.

The complaint

1. Ms G complains, represented by her father Mr R, that the Council is at fault for multiple failures in organising social care for his daughter, Ms G. In particular, he says the Council:
1. has provided inadequate care provision for Ms G, particularly between February and April 2021,
2. tried to place unnecessary conditions on the use of direct payments and failed to provide support around the issue of accrued direct payments,
3. tried to require Mr R and his former wife, Mrs R, to provide care which should have been provided by the local authority,
4. delayed unacceptably in making decisions on where to place Ms G,
5. communicated poorly and insensitively with the family, and
6. failed to make contingency plans for when placements failed.
2. Mr R says this fault has caused injustice to Ms G because she has not had the care she needs. It has put Mr and Mrs R to time and trouble in contacting the Council to organise care and to agree the use of direct payments.

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What I have investigated

3. I have investigated Ms G’s complaint as it was presented by Mr R, except, as is set out in the final paragraph in this decision, that I have not considered whether there was fault occurring before June 2020.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
7. 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, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

8. I spoke to Mr R and, using the information he provided, wrote an enquiry letter to the Council requesting further information, in particular any relevant policies and details of the events complained of.
9. Mr and Mrs R and Ms G 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

What should happen

Social care

10. The Care Act 2014 introduced a requirement for local authorities to promote ‘wellbeing’ and ‘signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’… The concept of meeting needs recognises that everyone’s needs are different and personal. Local authorities must consider how to meet each person’s needs rather than simply considering what service they will fit into’. (Care and Support Statutory Guidance, Ch 1)
11. Councils should prepare a care and support plan for those who need care and support and, where circumstances have changed in a way that affects the care and support plan needs, prepare a revised plan. (Care Act 2014, s27(4))
12. The care and support plan must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, s 26)
13. A person with eligible care needs can ask a council to arrange their care. Or, if they wish, they can arrange their own care and ask the council to make them a direct payment to fund that care. (Care Act 2014, s 31)

Direct payments

14. Direct payments (DPs) are payments made by a Council to an individual (or that individual’s representative) so that they can source and fund their own care. Department of Health Guidance on Direct Payments (2009) (the DP regulations) stresses the importance of councils providing support, particularly from user-led organisations/local centres for independent living.
15. Service users must not be forced to take DPs against their will.
16. Where DPs are paid to employ a personal assistant, they become an employer with all the responsibilities that any other employer has. Local authorities have a responsibility to ensure that service users or their representatives comply with these duties and responsibilities.

Monitoring direct payments

17. DPs must be spent on services to meet assessed need. Recipients must keep records to prove proper use of DPs. Councils should have monitoring systems to check compliance. Monitoring should not be heavy-handed.

Reviews

18. The DP regulations say councils should review DPs at least once within the first six months and at least every 12 months after that. Reviews are “intended to be light-touch to ensure that the person is comfortable with using the direct payment’.

Direct payments and COVID-19

19. The Government has issued guidance on the use of DPs during the COVID-19 crisis. This non-statutory guidance says councils should:
• “Take a flexible approach to the arrangements people receiving all forms of direct payments, their families and carers will need to make in order to continue to meet their care and support needs during the COVID-19 pandemic”
• “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” and
• “Work with the person and their family to ensure care and support is in place through alternative arrangements such as mutual aid or directly commissioned care”.

s.117, Mental Health Act 1983

20. Section 117 of the Mental Health Act 1983 provides that certain people who have been confined to a mental hospital under the same Act can be eligible for ongoing help and support from the National Health Service after they leave hospital.

What happened

General background

21. Ms G is a young adult. She requires significant care. Ms G wants to live independently and is currently living in a residential placement with carers provided. She sometimes has difficulty controlling her temper and this has led to difficulties in previous placements.
22. Ms G’s parents, Mr and Mrs R, are separated and live in different parts of the country. Ms G has, historically, chosen to spend time living with each parent. Both parents say that, while they are happy to support Ms G in any way they can, they cannot provide full time care. They have asked the Council to do so.
23. Ms G has had mental health problems which have resulted in her being hospitalised. This means that she is now eligible for NHS support under s.117 of the Mental Health Act 1983. As a result of this, the local NHS Care Commissioning Group (CCG) has been involved in the funding of her care.
24. The Council says that, when there was no alternative provision, and when Ms G chose to go and live with one or other of her parents, she received direct payments (DPs) which could be used to fund care, therapies and the like.
25. Ms G has a direct payment account into which the DPs are made. The records show and the Council accepts, that in the past, the Council failed to effectively monitor the DPs paid into Ms G’s account. This allowed a substantial surplus to build up over several years. In 2017, Mr R wrote to the Council saying there was £6,000 in the account.
26. In June 2020, the Council and Ms G were exploring the possibility of her moving into a residential placement not very far from Mrs R’s home.
27. At the beginning of June 2020, when COVID-19 restrictions were in place, the Council agreed to pay DPs for three months, pending the start of the placement, to Ms S, Ms G’s sister, to provide eight hours care a day for Ms G. The family was happy with this arrangement. Mrs R said it was “a great opportunity for [Ms G] to have her sister supporting her prior to the hopeful placement”.
28. While the details of the placement were being worked out, Mr R wrote to the Council and asked if Ms G could use the surplus money in the DP account to fund therapies for Ms G. The Council told him that any funding would have to be approved by the CCG as they had joint responsibility for any decisions. Mr R threatened to judicially review the Council if it did not agree.
29. The Council applied for funding of both the residential placement and Mr R’s request to fund therapies at the same time. The Council’s funding panel and the CCG approved funding in mid-July 2020. It was agreed that Ms G could move into the facility at any point from 23 July 2020.
30. Ms G moved in but did not stay full-time at the facility. Over the next two months, Ms G spent the week at Placement 1 and weekends at Mrs R’s house. The Placement 1 manager told the Council that the arrangement was going well but expressed concern that Ms G was spending too much time away from the placement which, they felt, was preventing her from settling in.
31. Mrs R told the Council that she believed the transition was going well but said she was concerned that something could go wrong. She said that, if it did, she could not take Ms G home as there was no suitable care provision in her county. She said Ms S had gone back to work in another part of the country and Mrs R could not be the main or only care provider. She asked the Council to develop a contingency plan in case the placement did not work.
32. In November 2020, Ms G was arrested after staff members called the police after an incident. She moved back in with Mrs R.
33. The Council and staff at the facility and Mrs R tried to work out a solution to the problem. Staff at the facility believed that Ms G was spending too much time at her mother’s house and, as a result, had not fully settled in the placement. Mrs R said Ms G would need to move back into the placement gradually. In December 2020, Mrs R wrote to the social worker in the case, Officer O, and said, “with careful planning and the right people I am hopeful she can have a successful time and reset her thoughts”.
34. However, by mid-January 2021, it was clear that Ms G would not be able to return to the placement. The Council had a conference with Ms G and Mrs R in mid-January 2021 in which it was agreed that the placement would end immediately. Ms G wrote to Officer O and said, “…that any new support package will be difficult to organise during the pandemic, but that having support delivered from my mum's house would be the most straightforward option for the time being”.
35. Mrs R agreed and said she was prepared to provide care as a paid carer for a limited period of three months during which time Ms G would stay with her and all parties would try to find a permanent residential placement for Ms G. Officer O indicated that this would be acceptable. She agreed to create a new care plan to set out the care Ms G required. She asked Mrs R to make a proposal for what she should be paid to provide care.
36. Mrs R sent a proposed plan that she should provide eight hours of paid care per day at £15 an hour for care from the beginning of February until the end of April 2021. She also agreed to find someone to manage the DPs and to deal with important administrative matters such as DBS checks and wages.
37. Officer O sent an agreement to Mrs R in late January 2021 which Mrs R signed and returned without delay. Ms G presented a list of requirements for future residential placements to help the Council look for new options.
38. It seems that Officer O expected the Council’s funding panel to approve the DPs quickly but it did not do so. It raised concerns that £15 an hour was too much and that the daily timetable of care to be provided was insufficiently detailed.
39. The delay in approving the DPs continued into February and then March of 2021. Mrs R became increasingly frustrated. The records suggest that she and Officer O had a phone conversation on or about 10 February 2021 in which Officer O suggested that Mrs R might be able to use the accrued surplus to pay her for the care already provided. Mrs R wrote to Officer O several times asking whether she could in fact use the DP surplus.
40. Officer O did not immediately reply. The CCG approved funding in principle on 18 February 2021. Mrs R heard nothing and, in early March 2021, she wrote to Officer O twice asking when the arrangement would be put in place.
41. Later that day, Mrs R received a letter from the Council authorising her to use the accrued surplus to pay herself £1035.12 per week for 12 weeks.
42. Later that day, Mr R wrote to the Council saying this was not what the family had requested. He said there should have been fresh funding agreed for Mrs R’s care because, in his view, the Council had already authorised the use of the surplus to fund therapies for Ms G. He said the Council was acting illegally. He said it had deceived the family and caused untold pain to Ms G. He asked for a formal complaint to be raised.
43. Mr R wrote to the Council again the next day saying that, if it had been the Council’s intention that the surplus should be used to pay Mrs R, there was no need to put the matter to the panel as the money was already at Ms G’s disposal. He said the Council had breached many guidelines. He also said the family would not now be prepared to use a third party to administer the DP account.
44. In late March 2021, a social worker told Ms G that the Council was requesting three years of statements and accounts for Ms G’s direct payments account. Mrs R said she would try to arrange this.
45. In early April 2021, Ms G found her current residential placement provider online. She notified the Council which investigated. The Council and the CCG authorised several respite stays for her at the provider which went well. The first of these happened at the end of April 2021.
46. In mid-May 2021, the Council wrote to the provider asking it to find Ms G a permanent residential placement. Funding was agreed and Ms G moved in in July 2021. She remains there.
47. The Council continued to press Ms G and her family for statements and records of DPs for the last three years. It is clear that the family found these requests intrusive and felt the Council was trying wrongly to claw back the DPs and accusing the family of dishonesty. This led to ill-feeling.
48. In his complaint to the Council, Mr R said councils could not ‘claw back’ DP overpayments unless there had been dishonesty. He therefore inferred that a request that the surplus should be paid back was an accusation of dishonesty.
49. The Council has denied that it accused any member of the family of dishonesty. Since Mr R complained to the Ombudsman, the Council has agreed to allow Ms G to keep the surplus and to repay sums paid to Mrs R out of the DP account.

Was there fault causing injustice?

Inadequate care provision particularly February to April 2021

50. These events took place during the COVID-19 pandemic. The Ombudsman has taken the view that, while we are understanding of the difficulties this caused, the pandemic did not excuse councils from carrying out their statutory duties.
51. During the period I have investigated, I have seen no evidence that the Council failed in those duties. At all times, Ms G was either preparing to move into a permanent placement, was in a permanent placement, or was seeking a new permanent placement. The Council did not stop supporting her.
52. Government guidance said that, because of the pandemic, rules which normally discourage care being provided by relatives should be relaxed. Therefore, during periods when Ms G was not in a residential placement, she received paid care from members of her family.
53. When Ms S began looking after Ms. G in June 2020, Mrs R said this was a ‘great opportunity'. The records also show that Mrs R was clear that moving Ms G into a placement with inadequate preparation would be likely to make that placement fail. She therefore kept Ms G at her house over the weekends during a lengthy transition period as Ms G acclimatised to the first placement.
54. When the Council and the family recognised, in January 2021, that the first placement had failed irretrievably, it was Ms G who suggested that it would be the best option for her to stay with Mrs R. Mrs R agreed to provide care and signed an agreement to do so for three months while a new placement was found.
55. At the end of this period, Ms G spent her first short stay with her current placement provider. She remains with that provider today.
56. In my view, therefore, the Council was not at fault for providing inadequate care at any point during the time I have investigated.

Unnecessary conditions on use of DPs

57. Mr R says the Council sought to place unnecessary conditions on the use of DPs. I have seen no evidence that this was the case. Councils have to monitor the use of DPs and to ensure that they are used only for permitted therapies and activities. This was all the more so in this case where the CCG had a role in authorising their use.
58. In order to ensure that DPs are properly used, councils have to monitor their use. The Care and Support Statutory Guidance says councils should monitor an account within six months of DPs starting and thereafter at least annually. It is not unreasonable for them to have asked for statements and other evidence.
59. There is also a requirement for those receiving DPs to act as responsible employers: they must pay employees’ tax and fulfil other employers’ responsibilities. The use of a DP account manager, therefore, is not an unreasonable requirement. Indeed, the records show that Mrs R had used one during the previous period when DPs were paid.
60. The Council accepts that it had failed adequately to manage Ms G’s DP account over many years. A note on the file from 2018 recorded, A note on the Council file from November 2018 says, “In terms of the direct payment, unfortunately this money shouldn't still be sitting with them, it should have been reclaimed back when it stopped being needed. However, we are where we are. Without knowing what it was put in place for, I can't comment on what it could be used for now”.
61. The records show that, in March 2021 the Council did not even know what the accrued surplus in the account was. Ms G agreed to share details of the balance in the account verbally, but I am not aware that this happened.
62. All of this may help to explain why the family was distressed when the Council began to increase its supervision of the account. Nonetheless, the Council was not at fault for taking these steps which it should have taken long before.
63. The Council says it has learned from these failures and has changed its procedures to ensure similar mistakes do not occur again.

Requiring Mr and Mrs R to provide care

64. As is stated above, the government issued guidance during the COVID crisis allowing family members to be paid to provide care. Ms S agreed to do so in late 2020. Mrs R said this was a ‘great opportunity’ for Ms S to support Ms G.
65. After the first placement broke down, Ms G suggested that Mrs R should be her carer and Mrs R agreed to do so if paid.

Delay in finding placements for Ms G

66. As stated above, Ms G’s needs are complex. In June 2020, the Council had sourced a prospective provider for Ms G but it took time for her to move in. Mrs R was very keen that the process should not be rushed and said that a period with Ms S would help her to adjust.
67. Mrs R recognised, when she agreed to care for Ms G again in early 2021, that the process of finding a new placement for Ms G would not be quick. That is why she said she would provide care for three months.
68. Over this three-month period, the Council and Ms G investigated many leads. Ms G was closely involved in the planning and found her current placement online. She told the Council about it in early April 2021. By the end of April, Ms G had begun her first short stay at the provider. She had several more such stays before the Council requested a permanent place.
69. The Council says it would not have been advisable, in the circumstances, to make hasty decisions as this would almost certainly lead to a placement which was likely to fail. Mrs R has made similar statements.
70. It was the Council’s professional judgment that hasty action would lead to a failed placement. The Ombudsman does not generally find fault with councils when professionals make decisions involving their professional judgment, so long as that council is able to show that it followed its correct procedures. In this case, it seems to have taken a sensible course of action and to have followed the correct procedures. I do not, therefore, find fault.

Poor communication

71. The Council communicated poorly with the family in various ways which I have set out below.

Direct payments

72. Given the historic failures in supervising the DP account, the Council should have been clearer with the family about the reasons for requesting statements and suggesting that a professional should manage the account. The Government had introduced guidance during the COVID-19 pandemic reinforcing the need to monitor DP accounts. However, it was foreseeable, given the lack of oversight which went before, that the family would find an increase of oversight intrusive.
73. I find that the failure to communicate clearly about the reasons for increasing the oversight of DPs was fault. This fault caused injustice in the form of stress and ill-feeling, as well as time and trouble spent in communicating with the Council.
74. However, this fault has not caused any financial injustice as the Council has since repaid money and has said it will make no further efforts tor recover it. For that reason, I have made no recommendation of a financial remedy.

Communications with Mrs R about DPs in February 2021

75. Mrs R was led to believe in late January 2021 that she would be paid to care for Ms G between 1 February and 30 April 2021. She had already been providing care for some time before then.
76. This must have been a stressful time for Mrs R who had a job as well as providing care. Having read the log of contacts between the family and the Council, I accept, on the balance of probabilities, that Officer O did float the idea of using the surplus in the DP account to pay Mrs R on or about 10 February 2021.
77. Thereafter, communication between the Council and Mrs R was poor. Mrs R requested information on many occasions before she was informed, on 3 March 2021 that she could use the DP surplus to pay herself.
78. However, when this permission was communicated to Mrs R, it came as a shock as it went further than the family had requested or had in mind. Mrs R had asked to use the DPs to pay her fees pending the Council’s funding decision. After that decision was made, she, and Mr R, expected the Council would pay Mrs R for her services. While I cannot see that there was anything inherently wrong in proposing that Mrs R should be paid from the surplus for longer, this was clearly not what she had understood.
79. This, again, was poor communication. Mr R, on hearing of the decision, understandably asked why, if the Council intended that Mrs R should use the surplus to pay herself for the entire 12-week period, it had had to authorise payment at all as the surplus was already in the DP account.
80. This poor communication was fault. It again caused injustice because the family was distressed by it.

Failure to source contingency placements

81. Mr and Mrs R say the Council should have had contingency plans in place so that, in the event of a placement breaking down, Ms G could move seamlessly onto the next placement rather than rely on care provided by Mr or Mrs R.
82. However, from the evidence I have seen, I do not see how this would have been possible. The Council cannot be expected to have another placement ready in case a placement fails. It is likely that it would have to pay to keep a place open and that would be a considerable expense at a time of limited funds.
83. Further the records show that Ms G could not be expected to move seamlessly from a failed placement straight into another placement. After her arrest in November 2020, the records show that Ms G was distressed. Mrs R was clear that Ms G must feel comfortable before she could begin a residential placement.

Injustice

84. I have found that the Council was at fault for poor communication. I have recommended that the Council should apologise individually to each of the family members for that poor communication and any distress caused.
85. However, I have not recommended any financial remedy. Since Mr R complained to the Ombudsman, the Council has agreed to refund all direct payments spent on Mrs R’s care for Ms G to Ms G’s DP account.. It has also agreed that Ms G can keep the surplus in her DP account. From a financial perspective, this will put Ms G back into the position she was in but for any fault, which is in line with the Ombudsman’s guidance on remedies.

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Agreed action

86. The Council has agreed that, within four weeks of the date of this decision, it will:
1. Write to Ms G, Mr R and Mrs R and apologise for the injustice caused, and
2. Write to the Ombudsman and explain what steps it has taken and intends to take to tighten its monitoring of DP arrangements. It should provide evidence of the steps taken.

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Final decision

87. I have found the Council at fault. I have closed my investigation.

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Parts of the complaint that I did not investigate

The Ombudsman does not investigate late complaints unless there is good reason to do so. Mr R complained to the Ombudsman in June 2021 about matters which he said covered several years. He could have complained sooner about matters which occurred more than a year before his complaint. For that reason, I cannot investigate those matters. Therefore, I have not looked at events occurring prior to June 2020 other than as background to the current complaint.

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Investigator's decision on behalf of the Ombudsman