Summary: Mrs D complained about the Council’s handling and decisions for her husband to be employed as her personal assistant and to increase her direct payment. We found the Council failed to follow the direct payment review process, and properly explain its next steps to Mrs D. There was also a delay in the complaints handling. There was no fault in the decision the Council reached about Mrs D’s direct payment request, we cannot therefore criticise the merits of the decision. The Council agreed apologise to Mrs D and make payment to acknowledge the distress and uncertainty its faults caused.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complained the Council wrongly decided to refuse her request:
• for her husband to be employed her personal assistant as part of a direct payment to meet her care needs; and
• to increase her direct payment for more care support and outing expenses.
2. Mrs D also complained the Dallow Downs Community Mental Health Team (CMHT), acting on the Council’s behalf, misled her when it told her there would not be a problem with her direct payment requests.
3. As a result, Mrs D said her husband left work and they experienced financial hardship. She also said she experienced distress as her physical and mental health deteriorated.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

6. 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)
7. 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

8. As part of my investigation, I have:
• considered Mrs D’s complaint and the responses she received;
• discussed the complaint with Mrs D and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law and policy to the complaint.
9. Mrs D 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, guidance and policy

Care Assessments

10. 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.
11. 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 Plan

12. 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 needs 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.
13. Council’s must review care plans at least annually, or if an adult or a person acting on the adult’s behalf makes a reasonable request for one. Reviews should be carried out as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met.
14. 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. There are three main ways a personal budget can be administered:
• as a managed account held by the council 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

15. Direct payments are monetary payments made to individuals who ask for them 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.
16. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
17. 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. In all cases, the council should consider the request as quickly as possible.
18. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

Direct Payment Policy

19. The Council’s Policy sets out what individuals can use their direct payment on which includes employing personal assistants to provide support with household tasks or personal care. It also sets out what a direct payment cannot be used for.
20. It is the Council’s policy not to allow for direct payment to be paid to a person who is living in the same household as the person who needs support. Only in very exceptional circumstances, where it is the only way in which care and support can be delivered and the agreed outcomes achieved, then it may consider for a person within the same household to be employed.
21. Convenience for the person needing the support or preference to have support from someone living in the same household are not exceptional circumstances.
22. A family member can be paid a direct payment to administer and manage the care a person receives, including someone living in the same household. However, such person cannot also be employed as a personal assistant under the exceptional circumstances procedure.
23. There is no right of review of the Council’s decision, but a person who disagrees with its decision can make a complaint.

Carer’s Assessment

24. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
25. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Refusal of assessment

26. An adult with possible care and support needs or a carer may choose to refuse an assessment. In these circumstances councils do not have to carry out an assessment.

Background

27. Mrs D has long term physical and mental health problems, which includes difficulties managing emotions, sleep issues and anxiety. She also previously self-harmed and had suicidal thoughts. She is married and has children.
28. The Council arranged for its local NHS Community Mental Health Team (CMHT) to support Mrs D and her family. An assessment of her care and support needs took place, which resulted in a care plan for Mrs D which set out her eligible needs for 14 hours of support. The CMHT also arranged for a worker to support Mrs D and her family.
29. Mrs D had care support from care agency workers but found this did not work well.
30. In 2018 a direct payment was put in place for Mrs D, which allowed her to recruit two personal assistants to provide her care and support. She was happy with this arrangement and felt this worked well for her mental health.
31. In late 2020 Mrs D was not happy with one of her personal assistants and the support she provided. So, her husband continued to provide support for her. Her other personal assistant also had to stop supporting her due to COVID-19 and supporting her own family.
32. At this time, Mrs D also had a private psychiatrist as she had lost trust in some of the mental health professionals who had previously been involved in her care.
33. Mrs D told the CMHT:
• she felt unable to for relationships with her personal assistants and felt uncomfortable around them;
• her personal assistants were not able to provide enough support during COVID-19, or due to their personal circumstances; and
• she believed her husband would be the best person to provide her care support, as she was comfortable with him, and he understood her needs.
34. Mrs D asked the CMHT to agree to her husband becoming her personal assistant (PA) and asked for an increase to 21 hours of care support and more outing expenses. She also saw her GP for support with her request.
35. Mrs D said the Deputy Manager of the CMHT told her request would be fine and did not tell her anyone else would need to confirm the changes to her direct payment. She said the Deputy Manager left the CMHT shortly after.
36. The CMHT arranged a medical review of Mrs D’s mental health and for a Social Worker to complete an assessment of Mrs D’s needs to consider her request. The assessment considered:
• Mrs D’s, her husband’s and their support worker’s views;
• her husband may apply for carers allowance and could continue to work part time;
• her husband would benefit from a carer’s assessment, but he declined the offer;
• her children’s own entitlements and referrals for support, but Mrs D did not want support from Children’s Services; and
• Mrs D’s care and support needs at the time.
37. The Social Worker recommended for Mrs D’s direct payment to be increased to 18 hours of care support and some increase in her outing expenses. She shared her assessment with her manager, who agreed with the recommendation.
38. The Social worker told Mrs D the Council’s Adult Social Care Team panel had to make the final decision as Mrs D’s request was for her husband to become her PA. She also updated her when the date for the panel meeting was confirmed.
39. In December 2020 the Council’s Panel decided not to approve Mrs D’s request for her husband to become her PA and it did not agree an increase in her care hours and outing expenses were needed. It recommended for the Social Worker to arrange a Multi-Agency Team meeting to discuss next steps and to offer Mrs D commissioned care until she had decided whether she wanted to employ her own PA’s.
40. The Social Worker informed Mrs D about the panel’s decision. She also said she would arrange for an occupational therapy (OT) assessment, which may support Mrs D’s request for more care support and her husband to be her PA. Once this was completed, she would arrange a Multi-Agency Team meeting to discuss next steps and submit her request to the Council’s ASC panel again for consideration.
41. In early 2021 Mrs D’s husband had stopped working to provide support to Mrs D. She continued to receive her direct payment, but was struggling to find a suitable PA.
42. In Spring 2021 an OT assessment was started with Mrs D, but this was not completed as it was reported Mrs D refused to be assessed for Activities of Daily Living.
43. Following communication between the Social Worker and Mrs D the OT assessment was rearranged and completed in late Autumn 2021.

Mrs D’s complaint

44. Mrs D complained to the CMHT in May 2021. She said:
• she was struggling as she had to let her PA’s go and her mental health was being affected. She wanted the review completed;
• she was unhappy her Social Worker or the CMHT had not got back to her about her review, and she was unsure what was happening since her direct payment review started in Autumn 2020; and
• she wanted for her husband to be her personal assistant as part of a direct payment to meet her care needs, and for her requested increase in her direct payment for more care support and outing expenses to be approved.
45. Mrs D also complained the CMHT misled her when it told her there would not be a problem with her direct payment requests.
46. In response the CMHT told Mrs D it had continued to provide her support throughout and had listened to her concerns. It explained the Social Worker’s role was to provide Mrs D with support for her direct payment review, and she was not an allocated key worker. She explained she had discussed Mrs D’s requests with a multi-agency team, and a proposal was submitted for the Council’s pre-panel meeting, but emphasised the importance of completing the OT assessment to evidence her requests to the Panel. She also suggested Mrs D sought support from its duty desk, the local NHS crisis team or the 111 service in times of difficulty.
47. In Summer 2021 Mrs D was not happy with the CMHT’s complaint response. She said:
• she did not feel listened to, she had no contacts and communication was poor, and she had not been provided enough support.
• she had not been aware of the Social Worker’s role, and did not previously know the Council were to make the decision; and
• she had appealed the Panel’s decision immediately after its decision and understood the Panel had reviewed it decision in February 2021, but she had not received the decision.
48. Mrs D raised her complaint to the CMHT directly, through PALS and through her MP. In Autumn 2021 she also asked Healthwatch to support her. This led to a referral to the CMHT for a welfare check, which Mrs D did not want.
49. In Autumn 2021 the CHMT provided its complaint response to Mrs D. It apologised for the length of time it had taken to respond to her complaint and explained this was because it had tried to resolve it informally with her. However, it explained it had not found fault in how it handled her direct payment request and it had made a referral for the Council to make the decision.
50. Mrs D brought her complaint to the Parliamentary and Health Service Ombudsman (PHSO). However, as her complaint related to both the CMHT and the Council, her complaint was considered under a joint working arrangement between the LGSCO and the PHSO.
51. In late 2021 Mrs D’s OT assessment was completed. The recommendations included a referral to the Council’s Adult Social Care for aids and equipment to assist Mrs D in her home, and a review of her Direct Payment to consider additional hours for paperwork and food shopping.
52. Mrs D chased the CMHT for the outcome of the OT assessment. This was added to the CMHT’s system in Spring 2022.
53. In Autumn 2022 the joint working team found Mrs D’s complaint should be considered only by LGSCO as the Council had contracted the CMHT to deliver its mental health services. The Council therefore remained responsible for the actions or decisions by the CMHT.

Analysis and findings

54. Mrs D complained about matters which happened more than 12 months ago, her complaint is therefore late. However, she brought her complaint to the CMHT’s and PHSO’s attention within 12 months of the events complained about, I have therefore found it appropriate to exercise my discretion to consider her complaint from late 2020.

Mrs D’s direct payment request

55. Mrs D asked the CMHT to agree for her husband to become her PA in Autumn 2020, and to increase her direct payment for more hours of care support and outing expenses.
56. The evidence shows the CMHT considered Mrs D and her husband’s views. It also considered her GP and Support Workers views. It set out its recommendations for the Council to make a decision on whether her requests could be approved. I have seen no fault in this process as it was in line with the Council’s Policy when considering requests to employ a relative to become a PA.
57. The Council’s Adult Social Care Panel considered Mrs D’s request and her reasons why she believed her husband should be allowed to become her personal assistant. It decided her request did not meet the exceptional circumstances set out in its policy, and her needs could be met by recruiting un-related personal assistants.
58. I found the Council reached a decision which was in line with its Policy and the Care and Support Statutory Guidance. This is because a close family member cannot be employed as a personal assistant unless the Council finds this necessary for the support to be provided. The Council has no discretion for exceptional circumstances if the family member manages or helps manage the Direct Payment. As the Council reached a decision it was entitled to make, and I have not found fault in the process it followed, I cannot criticise the merits of its decision.
59. Mrs D disagreed with the Council’s decision and asked it to review its decision. The Council Policy does not allow for reviews of such decisions, but there is a right to have a complaint considered. However, based on the evidence available, the CMHT’s Social Worker allocated to support Mrs D was unsure about this process. Instead of treating her disagreement as a complaint, an OT assessment was arranged to gather more evidence to support her request.
60. While I agree this was a useful step to support Mrs D’s case for a further panel request, it did not address her disagreement with the panel’s decision. Her disagreement should have been logged as a complaint and responded to in line with the Council’s complaints policy. She should also have received a written outcome of the Council’s decision and the reasons for its decision.
61. It is clear Mrs D was confused about what happened after the panel’s decision regarding how her disagreement with the Council’s decision was considered and decided. This was because she did not receive clear information about what the Multi-Agency Team’s, OT’s and Panel’s roles were in considering her disagreement. On balance, I am not satisfied the Council, or the CMHT, did enough to explain the process that followed to Mrs D. This caused her some uncertainty and distress.
62. However, although there was fault in the process following the Council’s decision, I found this would not have led to a different outcome. In reaching my view, I am conscious:
• the CMHT Support Worker tried to support Mrs D to gather enough evidence to submit a further request to the Council’s Adult Social Care Panel. This included a referral for an OT assessment, and its purpose was explained to Mrs D; and
• The Council has not changed its view that Mrs D’s request does not meet the exceptional circumstances for her husband to be employed as her personal assistant.

Occupational Therapy assessment

63. The CMHT Social Worker referred Mrs D for an OT assessment at the end of 2020. The assessment was started in Spring 2020 when the OT had telephone contact with Mrs D. Soon after, the OT visited Mrs D with a Social Worker present. The outcome was the assessment could not be completed as Mrs D did not agree for Activities of Daily Living to be assessed. I have therefore not found fault in how the OT assessment process was conducted up to this time.
64. When Mrs D told the CMHT Social Worker she wanted to have an OT assessment in Summer 2021, it then took a further four months for the assessment to be completed, and it was not until March 2022 the assessment was added to the CMHT’s system.
65. I acknowledge the availability of OT’s may be limited and a date had to be agreed with Mrs D. However, I found no good reason:
• why it took four months for the assessment to be completed and a further five months for the assessment report to be uploaded to the CMHT’s system. This delay was therefore fault; and
• why the outcome of the OT assessment had not been shared with Mrs D, and it was not shared with her when she requested it in early 2022. This was fault.
66. This caused Mrs D some further distress due to the uncertainty and lack of trust in the process. However, as the Council’s decision on Mrs D’s request for her husband to become her PA and an increase in her direct payment remained unchanged, she did not experience a loss of care provision or a financial loss as a result of this fault.

The communication with Mrs D

67. Mrs D complained she had been provided wrong information by the previous Deputy Manager of the CMHT before the officer left the service. She said this led her to believe her requests would be approved, and she had no knowledge the Council had to consider her requests.
68. As there are no records of what was said in the meeting between the Deputy Manager and Mrs D, I have no evidence available to enable me to reach a decision on this part of Mrs D’s complaint.
69. Mrs D was also not happy with the communication she had with her allocated Social Worker who supported her with her direct payment review, and the CMHT officer’s when she asked for help or asked questions.
70. Based on the evidence available, my view is:
• the Social Worker supporting Mrs D with her direct payment request remained in contact with her throughout the direct payment review processes from late 2020, and she progressed referrals for the OT assessment and kept Mrs D as informed as she could;
• the CMHT was not responsible for supporting Mrs D with her mental health needs as she had previously been discharged from the service and did not want this support. However, it continued to have a safeguarding duty and was responsible for her direct payment review. Once HealthWatch raised concerns about her mental health it arranged for a welfare check, which Mrs D did not want;
• the Support Worker in place was responsible for supporting Mrs D with sourcing new PA’s and arranging care if Mrs D wanted support from a care agency during times where her PA’s were unavailable; and
• Mrs D had a Council contact for financial concerns about her direct payment.
71. I understand Mrs D felt unsupported and was not satisfied with the responses she received from the workers and services she was involved with regarding her concerns about the limited care support she was receiving.
72. However, she had a Care Plan in place, and her assessed direct payment continued to be paid to her. She had been offered commission support, or for agency workers to provide support at times when she had no or little PA support, or when her Support Worker could not locate new a PA she would like.
73. The CMHT and its allocated Social Worker could therefore not respond further to her concerns, as the available options for care support had been provided to her.
74. However, as identified above, the CMHT failed to do enough to explain the direct payment review and complaint process properly to Mrs D. It also failed to share the direct payment decision and OT assessment with her.

Complaints handling

75. Mrs D complained to the CMHT in May 2021. She received a response in Summer 2021, and the CMHT’s final response in Autumn 2021.
76. The CMHT apologised to her for the delay in providing its response to her. It explained this was because it had tried to resolve her complaint informally first.
77. While it is good practice to attempt to resolve complaints informally, this should not delay a formal complaint response without the complainant’s agreement. The CMHT was therefore at fault for causing a delay in its complaints process. I am satisfied this caused Mrs D some limited distress.

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Agreed action

78. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the service of the organisation, we have made recommendations to the Council.
79. To remedy the injustice the Council caused to Mrs D, the Council should, within one month of the final decision:
1. apologise in writing to Mrs D, and pay her £400 to acknowledge unnecessary distress and uncertainty she experienced as a result of the Council’s failure to properly share and explain processes and decisions, and to follow the complaints policy for direct payment disputes and its delayed complaint response;
2. pay Mr B an additional £100 for the time and trouble he had to bring his concerns to the CMHT, Council’s and Ombudsman’s attention.
80. Within three months of the final decision the Council should also:
1.  
2.  
3. review how requests for direct payment assessments are processed and responded to in circumstances where a contracted service provider completes the assessment and the Council’s Adult Social Care Panel makes the decision. This is to ensure a clear process where the outcome, reasons for the decision, and the steps necessary to complain about the process is shared in writing with the person who made the request, or their representative;
4. remind its staff and contracted service providers about the process to follow when individuals disagree with a direct payment decision. This is to ensure complainants rights to complain about its decision are properly explained, acknowledged and responded to as set out in the Council’s Direct Payment Policy; and
5. remind its contracted service provider (the CMHT) to respond to complaints within the timescales set out in its complaint policy and inform complainants if there are delays in providing a response. This includes when attempts are being made to resolve a complaint informally.
81. The Council should provide us with evidence it has complied with the above actions.

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Final decision

82. I have completed my investigation with a finding there was no fault in the decisions the Council reached about Mrs D’s direct payment request, I cannot therefore criticise the merits of the decisions. However, it failed to follow the direct payment review process, and properly explain next steps to Mrs D, which caused her some injustice.

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Investigator's decision on behalf of the Ombudsman