Summary: Mr X complained the Council reduced the direct payments for Ms P’s care and support and took back some of the money it paid. The Council was at fault for failing to properly manage Ms P’s care plan, failing to conduct timely reviews, and for providing misleading information. The Council was also at fault for allowing Ms P’s direct payment fund to build and raising expectations that Ms P could use the money. The Council has agreed to provide a remedy for failing to manage the care plan, raising expectations and distress.

The complaint

1. Mr X complained on behalf of his sister, Ms P, about her adult social care package. Mr X said the Council reduced Ms P’s weekly direct payments by a significant amount and sought repayment of a surplus, money which Mr X says Ms P is legally entitled. He also said the Council’s communication has been lacking throughout.
2. Mr X would like the Council to reinstate Ms P’s higher rate of weekly payments and allow her to keep the surplus.

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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. If we are satisfied with an organisation’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

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Local Government Act 1974, the Care Act 2014, The Care and Support (Direct Payments) Regulations 2014, and the Care and Support Statutory Guidance 2014
6. I considered Mr X and the Councils comments before making a final decision.

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What I found

Relevant legislation

Representatives

7. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)

Assessment

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
9. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care and support plan

10. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must 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.
11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Personal budgets

12. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. 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 enough to meet the person’s care and support needs.
13. There are three main ways a personal budget can be administered:

• as a managed account held by the local authority with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

Direct Payments

14. 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 enable people to arrange their own care and support to meet those needs. The council has a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
15. The Care and Support (Direct Payments) Regulations 2014 (The Direct Payments Regulations) state that the Council must complete a review within the first six months and thereafter, no later than every 12 months.
16. Unspent direct payments will usually be reclaimed by the Council.

The Council’s policies and procedures

Direct payments

17. The Councils website has information regarding direct payments. It explains those that qualify for support from social services can choose to receive direct payments to buy assessed services to meet their assessed needs rather than receiving services directly from the council. It says many people receiving direct payments find they have more control, choice and flexibility. The Council says it will regularly review the individual’s direct payment account and will contact them if there are any issues.
18. The Councils website also has a page of Frequently Asked Questions. One question asks what happens to money that hasn’t been used. The Council explains ‘If there is surplus money in the account after you have paid for all of your care services and other associated costs, we will recover the money from time to time from your pre-paid card.’
19. A further question asks: ‘Can't I just buy extra services with the money?’. The Council explains the ‘direct payment has been calculated to cover the cost of the assessed services detailed in your Care Plan. If the hours no longer meet your needs it is important that your Care Manager is informed so that your circumstances can be properly reassessed.’

What happened

20. I have summarised below the key events; this is not intended to be a detailed account.
21. Ms P has a disability. She has poor mobility and needs support with personal care, maintaining nutrition and taking medication, using her home safely and keeping a habitable home environment. She also needs support to develop relationships, use services within the local community and to access work and training.
22. Ms P lives at home with her family who provide daily care and support.
23. Ms P was originally receiving support from three day placements. She also received a transport package to and from the placement.
24. Following the death of her father, Mr X says his sister became withdrawn and became more dependent on her mother.
25. In response to my enquiries, the Council provided a copy of Ms P’s care plan assessment from December 2019, completed by an adult social care Practitioner (The Practitioner). The assessment refers to the death of Ms P’s father and Ms P refusing to access her day activities. The Practitioner suggested the family may keep Ms P stimulated by activities at home and in the community, instead of the day centre activities. He recommended the family buy garden boxes for Ms P so she could enjoy looking after herbs and plants and a computer to subscribe to online learning activities. He also suggests buying kitchen appliances so Ms P can make healthy meals and drinks. The Practitioner states it would be in the best interests of the family to manage Ms P’s care in this way, through direct payments, rather than the day activities.
26. The next correspondence is in September 2020 when Mr X spoke to a duty social worker. Mr X expressed he was unhappy with the lack of contact from the Practitioner to resolve the care plan and provide information about direct payments for his sister. He explained Ms P had not attended the day service for several years and asked for the direct payments to be used flexibly so the family could support Ms P in the community instead. Mr X said since their father had died, Ms P’s needs had changed and an assessment would be helpful. The case notes say the Council will arrange an assessment.
27. Ms P’s mother died towards the end of 2020. Mr X telephoned the Practitioner and left voicemails explaining what had happened and asked for an urgent return call. Mr X did not receive a return telephone call.
28. The Practitioner telephoned Mr X in the middle of January 2021 and apologised for not contacting him sooner. The Practitioner explained he was calling to revise the care and support plan for Ms P and asked if there were any changes in circumstances. Mr X said their mother had died. The Practitioner said he was unaware and would draft a new care plan. He suggested direct payments which would give the family autonomy over Ms P’s care. He said he would discuss this with his manager.
29. The Practitioner drafted a new care plan the same day. The care plan refers to the death of Ms P’s mother and Ms P refusing to access her day activities. The Practitioner suggested the family may keep Ms P stimulated by activities at home and in the community, instead of the day centre activities. He recommended the family buy garden boxes for Ms P so she could enjoy looking after herbs and plants and a computer to subscribe to online learning activities. He also suggests purchasing kitchen appliances so Ms P can make healthy meals and drinks. The Practitioner states it would be in the best interests of the family to manage Ms P’s care in this way. The plan suggests the family can buy equipment using the surplus direct payments and can use direct payments of £50 per week to fund online classes and weekly activities.
30. At this time, Ms P had a balance of £3,200 on her direct payments account. In its complaint response to Mr X, the Council says Ms P did not use the funds during the COVID-19 lockdown period and her payments accumulated. In response to my enquiries, the Council said funds accrued both before and during the COVID-19 lockdown.
31. Mr X says the Council did not give him a bank card to access the funds or explain how to make a withdrawal or spend the money. In response to my enquiries, the Council said the account was a Merton Managed Account (MMA) and no card was issued. MMA managed the account for Ms P. Mr X could request funds towards Ms P’s care and support plan via the social care team.
32. The Council explained its usual process when opening an MMA involves full discussions with the recipient to ensure they understand how the account works. The Council cannot evidence this happened in this case due to the passage of time.
33. The Council later transferred the MMA to a direct payments account, to be managed by the family on behalf of Ms P. The Council accepts there was a delay in transferring to direct payments which caused confusion about the arrangements.
34. The 2021 care plan states that ‘since the passing of their father and more recently their mother, Ms P has become more dependent on her siblings, especially her sister.’ It explains how the family dynamics have changed since their mother died. However in some places, the care plan still refers to Ms P’s mother being involved in Ms P’s life. For example, ‘Ms P has become more attached to her mother since the passing of her father, which impacts on her not wanting to leave the family home.’
35. A Social Worker also spoke to Mr X about supporting the family. The Social Worker discussed flexible direct payments to meet the needs of Ms P in the family home as she no longer wanted to access day care. The Social Worker said the family could use this for buying a laptop to access online learning and could ring fence the direct payments to meet past costs and one-off costs.
36. The Practitioner presented Ms X’s case to the Outcomes Forum (a group of adult social care managers who make decisions regarding funding requests) at the beginning of February 2021 and sought an amended care and support plan. He explained he had amended the care plan due to COVID-19 and family bereavements. The Forum agreed Ms P could use the direct payments differently but asked the Practitioner to return with a breakdown.
37. The Practitioner informed Mr X of the decision and asked him to provide a list of items the family wanted to buy for Ms P with prices. The Practitioner said the items were to help replicate the activities Ms P enjoyed at the day activities, he suggested a laptop and equipment for gardening, cooking, arts, craft and pottery. The total value was not to exceed £3,200 (the amount that had accumulated in Ms P’s account). The Practitioner said he ‘can then get authorisation required for the amount to be transferred, in order for you to make the purchases’. Mr X provided a list at the end of February 2021.
38. The Practitioner retuned to the Outcomes Forum in the middle of March 2021. The Forum ‘Agreed computer at £500 max and £163 for gardening equipment, plus £50 per week.’
39. The Practitioner met with Mr X and explained the decision of the Outcomes Forum. Mr X said he felt let down, especially since the family have struggled over the last couple of years following the death of their parents. Mr X explained Ms S had moved back to the UK to help care for Ms P as she is reluctant to be around other people, thus saving the Council money. Mr X asked for a copy of the care plan and details on how to make a complaint.
40. The Practitioner emailed a copy of the care plan and details of the complaint team to Mr X at the end of March 2021.
41. Mr X complained to the Council in June 2021. He complained the Outcomes Forum significantly reduced the weekly payments for Ms P and did not explain how the decision was made. He also complained the Council clawed back the surplus of £3,200 which various departments had previously agreed Ms P could keep. He said the Outcomes Forum decision does not mirror the support required in Ms P’s care plan and is inadequate. Mr X said the matter has been ongoing for three years and Ms P has not been attending day care for this time. Mr X requested the Council review Ms P’s direct payment application and investigate why it took so long. He also wanted an investigation and explanation of the Outcomes Forum decision.
42. In August 2021, a finance officer from the Council contacted Mr X and asked him for bank details to transfer the £663 agreed by the Outcomes Forum. Mr X said the Council had promised £1,183, this was money the family had already spent on Ms P. The finance officer referred Mr X back to the family’s social worker.
43. The Council issued its stage one response at the beginning of September 2021 and apologised for the delay. It explained the Practitioner had to present the case to the Outcomes Forum which decides funding requests. The request was for the surplus funds in Ms P’s direct payment account to remain with Ms P so she could buy items instead of the original payment. The Forum decided Ms P had to return the funds under the Direct Payment Regulations as they were unused for their original purpose. The Forum agreed the payments in paragraph 35 above. It also explained the Forum agreed to £50 per week for online training. The letter states the Council will conduct a further review once options open again following COVID-19.
44. In March 2022, an Officer reviewed Ms P’s account and emailed the Practitioner and other Council officers to tell them Ms P had not accessed the new package of care agreed in March 2021. He said there was no record of Ms P using the direct payments and she was still recorded as being in receipt of payments towards daily workshops.
45. In response to my enquiries, Mr X said his sister has not received the money to pay for the equipment promised by the Outcomes Forum, nor the direct payments. He said he has not been given a payment card to access the direct payment funds or been told how to withdraw the money. He said Ms P cannot take part in any social welfare activities which has affected her mental health, and that of her family.

Analysis

The Care Plan

46. The Practitioner drafted a care plan in December 2019. This refers to Ms P withdrawing from her daily activities and suggesting alternatives to replicate this in the home and community. The Practitioner updated the care plan in January 2021. The updated care plan is similar to the previous version and refers to the same changes to the daily activities. The Council should have implemented the 2019 care plan, carried out a light touch review within six to eight weeks and a full review within 12 months. The Council failed to take further action once drafting the care plan in December 2019. It did not put the new services in place as outlined in the new care plan and failed to withdraw the previous services according to the old care plan, at a significant cost. As recent as March 2022, Ms P’s account still shows she received payments towards daily workshops. The Council failed to fully implement the care plan, neither did it conduct a review within a reasonable timeframe. This is fault.
47. The 2021 care plan refers to the death of Ms P’s mother in places. It also refers to Ms P’s mother being part of the family and supporting Ms P which is clearly incorrect. The new care plan contains a number of mistakes. This is fault.
48. The Council did not complete a reassessment following the death of Ms P’s mother. Mr X telephoned the Practitioner and left him a voicemail explaining the situation and asked for an urgent return call. Mr X says the Practitioner did not return his calls. In response to my enquiries, the Council apologised for its failure to respond to the voicemails and are considering how to improve communication. The failure in communication and the following seven week gap in reassessing Ms P following the death of her mother is fault.
49. The Council should keep the individual updated about the progress of care planning. There was little correspondence from the Council to Ms P’s family after it had drafted the care plan in 2019. When Mr X contacted the Council in September 2020, the Practitioner did not respond until January 2021. The Council delayed in its communication with Mr X about the care plan. This is fault.
50. Mr X sought a review of the care plan in September 2020 as the previous care plan did not meet his sister’s needs. The Council did not conduct the review until January 2021, four months later. While there is no statutory timescale we expect reviews to be commenced within a reasonable timeframe. I consider four months to be an unreasonable delay and was fault.
51. The Council should review the care plan every 12 months. Following the care plan dated December 2019, the Council should have reviewed the care plan in December 2020 and December 2021. The review from December 2020 took place in January 2021, the review was a month late. The Council has not issued a care plan for December 2021/January 2022. In response to my enquiries, the Council said it has not conducted annual reviews of the care plan. This is fault.
52. The Council said it would review the care plan following the easing of COVID-19 restrictions. The Council last completed a review of the care plan in January 2021 when England was in lockdown. It has not reviewed the care plan since the Government lifted COVID-19 restrictions. This is fault.
53. The Council should have shared the care plan with the individual and their family. The Council did not share the plan with Ms P or Mr X, neither did it provide a written explanation of the decision or the reasoning. Mr X had to request a copy before he was able to make a complaint to the Council. This is fault.

The Direct Payments

54. The Practitioner’s notes state the decision of the Outcomes Forum, it does not explain how the Forum made its decision or provide calculation to support the figures. The Council did not put the decision in writing to Mr X or explain its reasons. This is faut.
55. The Direct Payment Regulations state the Council should consider requests for direct payments as quickly as possible and must provide interim arrangements to meet care and support needs to cover the period in question. Direct Payments formed part of the 2019 care plan yet they were not implemented immediately, nor following Mr X’s telephone call in September 2020 and were still part of the 2021 care plan as a new addition. The Council has a duty to support the person to use direct payments. The Council should have carried out the changes to the care plan and set up the direct payments. It did not, this is fault.
56. The Direct Payment Regulations state the Council should review the direct payments within the first six months and then every 12 months. The Council arranged the direct payments in March 2021. It should therefore have been reviewed in September 2021 and again in March 2022. The Council has not reviewed the direct payments, this is fault.
57. The Council’s own policy says it will keep direct payments under review and will contact the individual if issues arise. It did not, this is fault.
58. The Practitioner led Mr X to believe his sister could keep the unspent money in the direct payments account. The Practitioner asked Mr X for a list of items he would like to purchase for Ms X, the value to not exceed £3,200 (the amount that was in the account). Mr X understood this to mean his sister could use the full amount. The Practitioner suggested equipment for online learning, gardening, cooking and arts and crafts, as per the care plan. Mr X gave the Practitioner a list of appropriate equipment which he took to the Outcomes Forum. The Outcomes Forum agreed an amount for both a computer and gardening equipment, they did not approve money for cooking equipment. The Practitioner did not give Mr X clear information about the Outcomes Forum and how its approval was needed before any payments could be approved. The Practitioner did not explain the items purchased would only be those reasonably needed for Ms P’s care and would need to represent best value for money. This is fault which led Mr X to believe he could spend the full £3,200 on his sister.
59. The Council’s Direct Payment Policy states the Council may recover surplus money in a customer's direct payment account. Ms P had a surplus of £3,200 in her account. The Council explained the family had not used the money for its original purpose and it was entitled to claw it back.
60. Mr X says the Council did not give the family access to the funds. In response to my enquiries, the Council said the money was available providing the family followed the correct procedures. It usually discusses the scheme with the recipient before the scheme it set up. The Council does not have any records to show this happened on this occasion. In response to my enquiries, the Council admits there was confusion about the arrangements. There was a lack of communication between the Council and Ms P’s family which led to a misunderstanding of how to access the money and confusion about the payments. I have not seen evidence the Council did enough to explain the process to Ms P’s family to ensure they knew how to access the money. This is fault.
61. The Council’s failure to keep the care plan and payments under review to ensure the scheme was adequately meeting Ms P’s needs compounded this problem. The Council’s failure to manage and monitor Ms P’s care led to a large surplus in unspent funds which it later clawed back.

Delay

62. The Outcomes Forum decided to make the payment for the equipment in March 2021. The Council tried to transfer the payment in August 2021, five months later. This is an unreasonable delay, this is fault.
63. In March 2022, an officer told the Practitioner Ms P had not accessed the new package of care and she was still in receipt of payments for the daily activities (as per her care plan from 2018). The Council should have checked the care plan was actioned and the funds accessed. They did not, this is fault.

Conclusion

64. The Council has delayed in carrying out and reviewing Ms P’s care plan. It made mistakes in the 2021 care plan which contains references to Ms P’s deceased mother providing care and support. The Council did not keep Mr X updated as to the progress of the care plan and the correspondence is sporadic and delayed. The Council failed to process the direct payments and did not transfer the funds for the equipment. It failed to provide an explanation or breakdown of the outcome forum’s decision and did not keep Ms P’s direct payments under review. Neither did it provide an adequate explanation to the family on how to access the funds. This is fault. Ms P has not had the benefit of a suitable care plan that meets her needs. She has not received the payments for the equipment nor the direct payments. Ms P has not been able to access social welfare activities. This has affected her mental health and impacted on her family.
65. The Council was entitled to claw back unspent money under the Regulations. However, I found fault in the way the Council did this. The Practitioner caused Mr X to believe he could spend the full amount on equipment for Ms P, but the amount agreed by the Outcomes Forum was much less. The Council are also at fault for not adequately explaining to Ms P’s family how to access the payments to ensure the funds adequately met Ms P’s needs, according to her care plan. The lack of explanation and communication when setting up the scheme and the failure to review the payment scheme led to a large surplus of unspent funds. The Council has clawed this money back and denied Ms P the opportunity to use this money to fulfil her care plan. I recognise the Council has the right to claw back unspent funds and I understand why it did this, but I consider the Council’s failings and lack of proper oversight caused it. For that reason the Council should return the money it clawed back.

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Agreed actions

66. Within one month of my final decision the Council has agreed to:
• Apologise in writing to Ms P and her family.
• In consultation with Ms P’s family, conduct a fresh assessment and undertake a thorough review of the care plan. Provide the family with a copy of the care plan with a letter explaining the decision and the reasons.
• Provide written information about access to services within the care plan and/or how to manage direct payments.
• Return the £3,200 of payments that were clawed back.
• Pay Ms P £500 to acknowledge the impact of its faults on her.
• Pay Mr X £200 to recognise his time and trouble in bringing the complaint.

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Investigator's decision on behalf of the Ombudsman