Summary: Mr B complains about the Council’s decision not to allow him to use direct payments to employ his mother, who he lives with, as his personal assistant. We found fault as the Council has not properly considered whether there might be exceptional circumstances. The Council has agreed to re-consider Mr B’s request and review its procedures.

The complaint

1. Mr B complains through his parents (Mr & Mrs F) about the Council’s decision not to allow him to use direct payments to employ Mrs F, who he lives with, as his personal assistant.
2. He says as a result the family has suffered a financial loss and his care and support needs cannot be properly met in the long term.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

6. I spoke to Mr & Mrs F about the complaint and considered the Council’s response to my enquiries and:
• The Care Act 2014 ("the Act")
• The Care and Support Statutory Guidance 2014 ("the Guidance")
• The Care and Support (Direct Payments) Regulations 2014 (“the Regulations”)
7. Mr B 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

Relevant law and guidance

Meeting care and support needs

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Personal budgets and direct payments

9. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. A personal budget can be administered as direct payments to enable people to arrange their own care and support.
10. The Guidance says direct payments are 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.
11. The Regulations say that a direct payment may not be used to pay a family member living in the same household to provide care, unless in exceptional circumstances councils consider it is necessary to meet the person’s care and support needs.
12. In April 2020 the Government issued guidance on using direct payments during the coronavirus outbreak. This said councils could use flexibility in considering the use of direct payments. For example, if a personal assistant needed to self-isolate a family member may provide care and councils could consider whether to pay the family member from the direct payment. If a person considered it necessary for family members who live with them to become the paid care and support workers on a longer-term basis, this needed to be discussed and agreed with the council. Decisions would be made on a case-by-case basis.

Mental capacity

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
14. A key principle is that any act done for or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The Act sets out how best interest decisions should be taken.
15. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

16. Mr B has a severe learning disability, autism and epilepsy. He can have episodes of challenging behaviour which can cause harm to himself or his carers. Mr B does not have capacity to make decisions about his care.
17. Mr B was living with his parents, Mr & Mrs F, in another council’s area (Council X) and attended a day centre five days a week. In March 2020 the day centre closed due to the COVID-19 lockdown. Mr F cared for Mr B whilst he stayed at home.
18. In January 2021 Council X held a meeting to determine whether it was in Mr B’s best interest to return to the day centre, as his behaviours had significantly improved since not attending. The meeting involved health professionals. The best interest decision was that Mr B should not return to the day centre, he should continue to be cared for at home, and Mr & Mrs F should explore employing personal assistants. Council X agreed that Mr B could use his direct payments to pay Mrs F to be his personal assistant.
19. Mrs F decided to leave her career so that she could care for Mr B full-time. As the family’s home was provided by her employment, this meant they had to move. They moved to Lincolnshire in April 2021.
20. The Council spoke to Mrs F who explained she was being paid to be Mr B’s personal assistant. The record says the social worker said this was “not something that we advocate for and it would need to be agreed” by a manager.
21. The Council assessed Mr B’s care and support needs. It determined he required support from personal assistants for 35 hours per week, plus two and a half hours of two-to-one respite support per week. The personal budget was to be paid as a direct payment, managed by Mr F.
22. In May 2021 the Council told Mr & Mrs F that the direct payment could not be used to employ Mrs F as a personal assistant.

The complaint

23. Mr & Mrs F complained on behalf of Mr B about the Council’s decision. They said there were exceptional circumstances as Mr B had complex needs and could not be cared for by strangers. He had made significant improvements since being cared for at home, as recognised by the best interest decision. Mr B’s psychiatrist and learning disabilities community nurse strongly supported Mrs F being Mr B’s personal assistant to allow flexibility and continuity of care and ensure his safety.
24. Mr & Mrs F noted that they had made huge life changes to become Mr B’s full-time carers and that Council X had advised them the care package would stay with Mr B regardless of which council area they lived in.
25. The Council responded on 11 June 2021. It said other options to meet Mr B's needs had not been fully explored and it had not seen professional evidence that supported the view that only Mr & Mrs F could provide Mr B’s care and support. It therefore could not conclude there were exceptional circumstances.
26. Mr F sent the Council letters from Mr B’s psychiatrist and learning disability nurse. These said Mr B’s autism meant he did not manage well with changes to his routines. He had adapted extremely well to being cared for at home and this provided flexible, consistent support from carers who knew his needs. Any return to specialist day services or alternative care providers would be seriously detrimental to Mr B’s mental wellbeing and could result in a severe escalation in his behaviours. It was considered Mr B’s complex needs required an exceptional support package.
27. The Council’s final complaint response of June 2021 said:
• It did not consider it was appropriate for a close family member residing in the same household to be the paid carer, as this was a blurring of roles. If the employer was the other parent there were no checks and balances with regard to quality of care, safeguarding and changes in paid hours.
• Whilst the letters from the health professionals supported the proposal, at the best interest meeting there had been a general agreement that Mrs F providing the care was not sustainable as it gave no break from caring and could be a risk to Mr and Mrs F’s health and well-being.
• It would not agree to Mrs F being Mr B’s paid carer. Alternative options, such as day care, domiciliary care agencies, or employing personal assistants, would need to be sought.
28. In response to my enquiries, the Council said that since then Mr & Mrs F had not taken up the direct payment or sought alternative support services for Mr B.

My findings

29. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the Council's role. My role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the Council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find it at fault just because a service user disagrees with its decision, or outcome of an assessment.
30. I have therefore firstly considered how the Council assessed Mr B’s needs and produced the care and support plan. The April 2021 care and support assessment and plan describe Mr B's needs and how these can be met. Mr & Mrs F were involved in the process. There is no evidence of fault in the way the assessment was carried out or the care and support plan developed. I cannot therefore challenge the Council’s plan that Mr B should have personal assistant support for 35 hours per week.
31. I have gone on to consider how the Council decided if there were exceptional circumstances that meant Mrs F should be Mr B’s paid carer.
32. In response to my enquiries, the Council said it authorised care and support plans through its client record system, rather than in meetings. In Mr B’s case, a social worker had sent an internal email asking whether Mrs F could be authorised to be the personal assistant. There was a short response from a manager which said the Council did not agree to paying family members who live in the same property, “so if this is the case then further work will be required as it will not be authorised.” The Council says there were additional professional discussions with the practitioner and managers but there were no written records of these.
33. Mr F says the Council then informed him the direct payment could not be used to pay Mrs F. I have seen no evidence that decision was sent in writing.
34. The Council is entitled to decide that there were no exceptional circumstances that meant Mr B’s care and support needs could only be met by Mrs F. However I am not satisfied that it properly considered the request.
35. The Ombudsman has produced guidance for councils on the principles of good administrative practice. These include the need to be open and accountable. Councils can help achieve this by keeping proper and appropriate records giving clear reasons for decisions made. Another principle is that councils should be service-user focused. They should not be inflexible or adopt blanket policies.
36. Whilst the Council has set out the reasons for its decision in its responses to Mr F’s complaint and later to the Ombudsman, I have seen no evidence that prior to its decision it considered the letters from health professionals or the Government guidance on using direct payments during the coronavirus outbreak. It did not hold a best interest meeting nor have I seen evidence that it asked domiciliary care agencies or personal assistant providers whether they would be able to meet Mr B’s needs. Its later explanations of its decision are not evidence that it took account of these issues at the time. This is fault.
37. I am concerned that the Council appears to have a blanket policy to refuse such requests and no apparent procedure for determining if there are exceptional circumstances, setting out what evidence it would take into account or recording the outcome. I find this is fault.
38. I cannot say the Council would have made a different decision if it had considered the request properly. However Mr B, and Mr & Mrs F, have been caused uncertainty as they do not know whether all the points they raised have been taken into account and whether there might have been a different outcome. This is their injustice.

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Agreed action

39. Within a month of my final decision, the Council has agreed to reconsider Mr B’s request for Mrs F to be his paid personal assistant. In doing so the Council should evidence how it has considered the views of health professionals and social care providers, taken into account the Government’s guidance and taken a decision in Mr F’s best interest.
40. Within three months of my final decision, the Council has agreed to review its procedures to ensure it has an open and transparent process to consider whether there are exceptional circumstances and that it properly records these decisions.

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Final decision

41. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman