Summary: Ms X complained the Council failed to review or properly communicate with her about her direct payments and support needs. Ms X says this has caused her anxiety, confusion and put her to the time and trouble of complaining. The Council was at fault for not reviewing or communicating clearly or in a timely manner with Ms X about her direct payments. However, we do not find fault with the Council in how it communicated with Ms X about her role as an employer. The Council has agreed to remedy the injustice caused.

The complaint

1. Ms X complains the Council has failed to:

• review her care package despite repeated requests.
• provide information to Ms X about her role and responsibilities as an employer and the pay rate for her communicator guide.
• correctly fund the amount Ms X was receiving in direct payments to pay her communicator guide properly.
• provide clarity about payment for the communicator guide's expenses for supporting Ms X to attend a wedding.

2. Ms X says this has caused her to be put to the time and trouble of complaining, confusion, and anxiety.

Back to top

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 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Back to top

How I considered this complaint

9. We corresponded and spoke to Mr R, Ms X’s representative and made enquiries of the Council. I have read the information Ms X and the Council provided about the complaint.
10. Ms X and her representative Mr R and the Council have commented on the draft decision. I have considered their responses before making this final decision.

Key

11. I have set out a list of the names of the people and agencies involved in the complaint:

• Ms X – complainant and employer to Ms D and Agency B.
• Mr R – Ms X’s advocate.
• Ms D – Ms X’s employee and Communicator Guide.
• Agency B – a support agency employed by Ms X.

Back to top

What I found

The Care and Support (Direct Payments) Regulations 2014

12. The local authority must conduct a review for the purpose of ascertaining whether the making of direct payments is an appropriate way to meet an adults needs. It must complete a review:

• Once within the first six months of the direct payment being made; and

• At intervals not exceeding 12 months.

13. When completing its review the local authority should include, the adult, any person caring for the adult, the authorised person to whom the direct payment is being made and any person the adult wishes to be involved.

Direct payments

14. Direct payments are monetary payments made to individuals who ask for one to meet some or all 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. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the Council must decide whether to provide a direct payment. Where accepted, the Council should record the decision in the care or support plan. (Care and Support Statutory Guidance 2014)

The Council’s complaints policy

16. Under the Adult Social Care statutory complaints procedure there is no defined time limit for responding to complaints.
17. However, the Council has set a target of responding within 25 working days.

What Happened

18. This decision statement sets out the key events and is not intended to be a full account of everything that happened.
19. Ms X is registered as Deaf/Blind and has significant mental and physical disabilities.
20. In 2016, Ms X requested direct payments and signed an agreement with the Council. This gave her control as an employer and allowed her to manage her own care and support needs. She continues to receive direct payments and arranges her own care and support.
21. The Council completed a supported self-assessment plan and issued a support plan which highlighted the services and support Ms X needed. It noted that Ms X was entitled to 44 hours of support and care. The Council completed Ms X’s current plan in July 2022.
22. Ms X employed a communicator guide, Ms D to help and support her. Ms X’s support plan shows Ms X employed Ms D for ten hours and decided to pay her a rate of £10.00 per hour. The Council note from September 2016, it funded Ms X £12.56 an hour, however, Ms X used the remaining £2.56 for Ms D’s holiday pay and insurance.
23. In September 2017, Ms X further employed a specialist agency to help to support her. Ms X contracted Agency B to provide 34 hours of help and support at £19.96 an hour.
24. Ms D supported Ms X to attend weddings in 2019. Ms X contacted the Council and asked it to consider funding an extra 48 hours of care and support. She questioned Ms D’s rate of pay for supporting her at the wedding. Ms X believed Ms D should receive time and a half due to working at the weekend.
25. The Council responded to Ms X and said it had approved the payment for an extra 48 hours of support, but this would be a flat rate of £10.00 per hour.
26. Ms D, Ms X’s communicator guide contacted the Council in May 2020. She asked advice about her rates of pay. The Council responded to Ms D and said she should raise the issue with her employer, Ms X. The Council told Ms D it would help Ms X in deciding if her budget allowed for an increase or if she needed more funding.
27. Ms D contacted the Council in July 2020 and told it she would be leaving Ms X’s employment.
28. The following day the Council emailed Ms X and Ms D and copied in Ms X’s social worker. It offered to help Ms X advertise for a new communicator guide. It also said it could help if Ms X wanted her remaining support hours transferred to Agency B.
29. Mr R, Ms X’s advocate contacted the Council in August 2020. He raised her concerns and asked for a prompt response before Ms D left her employment. He questioned the Council about:

• Ms D’s funding and pay rate.
• Ms D’s employment and resignation.
• The role and description of a communicator guide.

30. Mr R says he did not receive a response and chased the Council for an update. He notes that Ms X was becoming concerned about Ms D’s resignation and imminent departure.
31. The Council responded in August 2020 and apologised for the delay in replying to Mr R. It highlighted its staff had been dealing with the Covid-19 pandemic. It further responded in September 2020. The Council said:

• Ms X had been offered a meeting with the Council to discuss her direct payments and role as an employer but had not taken the offer up.
• Ms D was paid above the standard rate of pay and it would not advise an increase.
• It had offered Ms X help to look at her budget and calculate what if any increases could be made to Ms D’s wage.
• The Council was aware Ms D was leaving and had agreed to provide Ms X with continuing support from Agency B.
• It was still considering Ms X’s request for Ms D to receive extra payments for her support in attending weddings.

32. The Council also asked if Ms X would consider a managed account where Agency B would raise invoices to be paid by a third-party account company. It also gave Ms X the choice of continuing to manage the direct payments herself.
33. Mr R replied on behalf of Ms X and said she was happy to continue to manage her direct payments account herself.
34. Ms D left her employment with Ms X in September 2020.
35. Mr R formally complained on behalf of Ms X in November 2020. She said:

• The Council had not made her aware she could consider a wage rise using a budget calculation.
• There had been unacceptable delay in responding to her concerns.
• If her concerns had been replied to promptly, she may have considered a wage rise for Ms D.
• She disputed the Council had ever offered to meet her. She said she had not declined a meeting with the Council, which had been reliant on a review taking place with her social worker.
• She was confused why the Council had not dealt with queries raised years ago.
• The Council had not been clear in its offer to pay Ms D’s travel, accommodation, or expense costs for the extra hours supporting her to attend weddings.

36. The Council responded to Mr R in early December 2020, it apologised for the delay and said it would respond by mid-December. However, it recontacted Mr R in December and said Ms X’s complaint was still under review and it would now respond by January 2021.
37. Mr R continued to chase the Council for a response in January 2021.
38. The Council responded to Ms X’s complaint in February 2021 and said:

• It had not received any concerns from Ms X about Ms D’s rate of pay.

• As Ms D’s employer any change to the rate of pay would need to come from Ms X.
• Its Direct Payments Team advise each year of the rate increase to cover the national minimum wage.
• It recognised Ms D’s specialism but felt she received a satisfactory rate of pay.
• It was still awaiting further details of Ms X’s complaint about the wedding expenses.

39. The Council contacted Mr R by email in April, October, and November 2021 about Ms D’s wedding expenses. The Council said:

• In its April 2021 email to Mr R, the Council said it would provide Ms D’s accommodation but not any other costs.
• In October 2021 it would pay Ms D’s care and support costs but nothing else.
• In its email reply from November 2021, it had not changed its position since its October 2021 email.

40. Mr R contacted the Council in January 2022. He said Agency B was only providing some of Ms X’s entitled 44 hours of care and support. Mr R asked for a meeting with the Council to look at alternative providers to pick up the shortfall. Mr R told the Council Ms X was not coping well.
41. The Council replied the following day and said:

• It had been unable to complete a review with Ms X in 2021.
• It had been unable to review her support hours and needed to complete a new assessment.
• This was the first time it had been made aware Ms X was not receiving her full entitled hours.
• Ms X could ask a communicator guide to provide some of the shortfall in entitled hours.
• Its Direct Payments Team could help in advertising the role if Ms X knew of an alternative agency to provide her with support.

42. Between January 2022 and April 2022 Mr R and the Council were in regular contact about sourcing alternative support for Ms X. The Council agreed to pay Ms X’s former communicator guide Ms D to provide some short-term support. It continued to offer Ms X help with looking for and advertising for a new agency.
43. Ms X remained dissatisfied with the Council’s response and complained to the Ombudsman in February 2022.
44. In March 2022, Agency B told Ms X it could no longer provide the support she needed and provided her with a four-week termination notice. It recognised it had been unable to deliver the support Ms X needed during the past year due to recruitment and staff problems.

The Council’s response to my enquiries

45. The Council responded to my enquiries in June and August 2022. It said:

• There was delay in completing Ms X’s review in 2021 due to the covid pandemic.
• It has now completed a care package and direct payment review with Ms X in July 2022.
• Ms X only made it aware she was not receiving her entitled support hours in January 2022.
• There are no pay scales for direct payment funded employees, however Ms D had been funded above the national minimum wage.
• Ms X did not require support with information about a communicator guide as she had previously employed Ms D.
• Ms X managed her own invoices and arranged the support she needed directly with Agency B.
• Ms X had recognised it was not possible to use all her support hours due to some of these being community based that were affected by the Covid-19 pandemic.
• Ms X had now employed a new agency to provide her support hours.
• It had agreed to pay Ms D’s extra support hours and accommodation costs for her attendance and support of Ms X at the attended weddings.

46. The Council say it sent Ms X details about direct payments and her role and responsibility as an employer in 2016. It also says it conducted a presentation with her in the same year and checked her understanding of her role and responsibilities.
47. The Council said its Direct Payments Team had been in regular contact with Ms X and those assisting her from 2016 to the present day. It said she had not raised any concerns about rates of pay or the requirement of additional support about her role as an employer since she first accessed direct payments in 2016.

Analysis

48. The Ombudsman’s role is to look at how a decision was made. If a decision was made without fault, we cannot criticise it.
49. Ms X accessed direct payments in 2016. I am satisfied that at this time the Council gave Ms X information about direct payments and her role as an employer. As Ms D’s employer, it was for Ms X to keep up with pay increases and decide on what the rate of pay would be for her communicator guide. The Council has said throughout its contact with Ms X that it recognised Ms D’s specialism as a communicator guide and funded her above the minimum wage. The Council, in its email to Ms D in July 2020 offered to help Ms X with budgetary calculations. Therefore, on the evidence seen I do not find fault with the Council.
50. The Council has accepted it did not complete a review with Ms X within the 12-month statutory period. The review procedure aims to gather information so the Council can decide if there are any new or outstanding unmet needs. The failure to complete Ms X’s review within the 12 months period delayed getting all the relevant information about her current circumstances. It also delayed discussing whether all of Ms X’s needs were being met. I accept the Council say Ms X did not tell it that Agency B was not providing her full support hours until January 2022. The Council say it has now completed a review with Ms X in July 2022. I recognise and have seen the Council was in touch with Ms X and her advocate to arrange meetings throughout early 2022. However, on the balance of probabilities a timely review may have highlighted Ms X’s support needs were not being met earlier. This was fault and caused Ms X confusion and uncertainty.
51. The Council has now agreed to pay Ms D for the extra support hours and her accommodation costs when she supported Ms X at two weddings. I accept Ms X said she would contact the Council separately about Ms D’s wedding expenses. The Council said it did not receive any further information from Ms X. However, the Council told Ms X it was considering this issue in September 2020. On the evidence I have seen the Council’s responses in October and November 2021 to Ms X’s concerns were not timely or communicated clearly. I would have expected the Council to reply to Ms X with accurate and clear information, it did not, and this was fault. This caused Ms X confusion, anxiety and put her to the time and trouble of complaining.
52. The Council also failed to meet its procedural target of 25 days for complaints considered under the statutory social care procedure. This was fault. I accept it did warn Ms X’s advocate there would be a delay in replying. However, the Council failed to follow up on its response that it would be in touch by January 2021. It did not do this causing Mr R to chase the Council for a reply. This was fault and caused Ms X to be put to the time and trouble of complaining and made her lose confidence in the Council.

Back to top

Agreed action

53. By 1 November 2022 the Council will:

• Apologise to Ms X for delay in completing her review and responding to her complaints.
• Pay Ms X the sum of £250 for uncertainty, anxiety, confusion, and putting her to the time and trouble of complaining.
• Share this decision with staff as a reminder of the need to complete reviews within the regulatory time scale.

Back to top

Final decision

54. The Council was not at fault with how it communicated with Ms X about her responsibilities as an employer. However, I do find fault with the Council for not completing Ms X’s review within the statutory timescales and for failing to respond clearly and in a timely manner to her complaints. The Council has agreed to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman