Summary: The Council acknowledges there were faults in the way it responded to Mr and Mrs X’s concerns about the use of the Direct Payments for their son. The Council should have carried out a Care Act assessment of his needs sooner. There is no evidence the family suffered any injustice as a result of that delay. However, there is some evidence of failure to consider part of their complaint which caused Mr and Mrs X some distress, and the Council agrees to recognise that with a payment.

The complaint

1. Mr and Mrs X (as I shall call them) complain the Council accused them of mismanaging their disabled son’s Direct Payments and subsequently imposed conditions on its use which prevented him accessing his former activities.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by Mr and Mrs X and the Council; we spoke to Mrs X. Both parties had opportunities to comment on drafts of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance.

5. 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.
6. 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. 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.
7. 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.
8. 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 detail of how the person will use their personal budget will be in the care and support plan.
9. 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. The council must ensure 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.
10. Councils must tell people during the care planning stage which of their needs direct payments could meet.

What happened

11. Mr and Mrs X’s son (who I shall call Mr B) began to receive Direct Payments in 2008. The amount provided was described in his care plan as intended to fund a Personal Assistant (PA) for 7 hours a week in termtime and 25 hours a week during college holidays. The support plans say the funding was to be used flexibly by Mr and Mrs X to meet Mr B’s interests and needs.
12. Mr B is now an adult. He has an interest in football and Mr and Mrs X used to purchase a season ticket for him from the Direct Payments budget. Mr X has provided a copy of Mr B’s ‘child in need’ plan from 2008 which states, “through In Control [the direct payment scheme then in place] (Mr B) has also purchased a season ticket to pursue his interest and passion in Newcastle United Football Club”.
13. The Council has provided as background information details of the reviews of Mr B’s support plans and budgets from 2010. The support plan review from 2015 records that Mr and Mrs X were aware there would be a reassessment of Mr B’s needs under the Care Act when his college course finished. The 2016 review notes the request by Mr and Mrs X that Mr B should not have a reassessment at the end of his college course in 2017: they were content with an annual review and said they would contact the Council if his needs increased.
14. At the start of 2022 the care services officer allocated to carry out a review of Mr B’s needs viewed the audit of the Direct Payments expenditure prior to contacting Mr and Mrs X. She contacted Mrs X and explained the Direct Payment money was authorised only to be used for PA support and could not be used for restaurant meals or theatre tickets etc. Mrs X says the officer “screamed” down the telephone at her and accused her of mishandling the budget. Mr X has provided a copy of an email from the senior officer at the charity where Mr B was on placement, drawing attention to the contact made with her office by the care services officer, the alleged inappropriate remarks made about possible misspending by Mr and Mrs X, and what she said was the ‘almost hysterical’ response the care services officer had made when concerns about this were raised with her.
15. The care services officer’s case recording shows a conversation the following day with Mr X. She notes Mr X told her it was nothing to do with the Council what the Direct Payments money was spent on as Mr B was part of a 2008 initiative which meant he could use the money as he wished. Following some further discussion and an online meeting with Mr and Mrs X and the social work manager, it was agreed there would be a reassessment of Mr B’s needs under the 2014 Care Act.
16. A different officer, a social worker, was allocated to carry out the review and she visited in March 2022 to carry out the assessment. In the meantime the social work manager approved Mr B’s continuing placement at the café he attended. The social worker’s notes record she then emailed to explain to Mr and Mrs X the use of the Carer Support Allowance (the money available to support carers in their role) as a Direct Payment. She outlined that it could be used as respite, for replacement care, for days out or short breaks with or without the cared-for person and when it could be used to pay for lunches etc. She acknowledged they had had more flexibility previously. She also explained to Mr B that he would still be able to attend his placement, but the Council would no longer pay for his restaurant meals and tickets.
17. Mr and Mrs X emailed the social worker. They asked if there could be more flexibility and asked for consideration to be given to the Direct Payment being used to pay for football tickets, theatre tickets and some restaurant meals. The social worker told them that although the Direct Payments could not fund restaurant meals, they might be able to fund a carer’s ticket (but not Mr B’s) as equivalent to a ‘day out’ as described in the guidance.
18. After discussion with Mr and Mrs X about some amendments to the assessment, the social worker finalised the support plan and it was approved by her manager. She noted in the assessment document, “As well as the placement at (the Café) being paid for by Direct Payment, (Mr B) has also had an activities budget available to him. I have explained that this is type of support is no longer provided by Adult Services and both (Mr B) and his parents are disappointed that this is the case.”
19. In April Mr and Mrs X made a complaint about the way in which the care services officer had accused them of misusing the budget. They also complained about the outcome of the reassessment of Mr B’s needs. The social work manager responded that the new support plan, including the café placement and carer support allowance for Mrs X, met Mr B's eligible needs.
20. The social work manager met online with Mr and Mrs X to discuss their continuing concerns and address their request to be able to purchase Mr B’s football season ticket from Direct Payments. The team manager explained that Mr B’s eligible needs were being met through the current support package and the Council would not fund additional leisure activities.
21. In September the team manager responded to the formal complaint. She partially upheld the complaint about the care services officer’s approach to the use of Direct Payments. She said although the officer was correct in saying the Direct Payments could only be used for specific purposes, there was no record that Mr and Mrs X had previously signed the necessary form agreeing their use. She apologized for the confusion. She said however there was no evidence the officer had behaved unprofessionally in her manner.
22. The team manager did not uphold the complaint that the care services officer had breached confidentiality by telephoning the café where Mr B had his placement to check on costings. She said the officer was checking the costings to ensure the expenditure was within the budgetary amount. She partially upheld the complaint that the officer had shared unprofessional information and delayed in passing on contact details of her manager. The team manager partially upheld a complaint that the social worker manager had not kept them informed of the outcome of his discussions with the care services officer: she said there was no record that he said he would do so but she accepted this was their understanding.
23. The team manager did not uphold the complaint that the assessment contained inaccuracies. She said there had been a process of checking the initial assessment when Mr and Mrs X had commented and their comments had been incorporated where appropriate. She said she was satisfied the final assessment was an accurate assessment of Mr B’s eligible needs. She confirmed the previously expressed view that Direct Payments could not be used to fund a season ticket.
24. Finally, the team manager partially upheld the complaint that Mr and Mrs X had not always received a timely response to their telephone calls, and she apologised.
25. Mr and Mrs X were dissatisfied with the complaint response and complained to the Ombudsman. They said the care services officer had indeed been unprofessional in her attitude towards them and had made derogatory remarks in her discussions about them with Mr B’s placement, but because she had not recorded them the Council would not act on them. They said the Council was discriminating again Mr B by altering the use of his budget when they knew other more able people who were allowed to use their budgets more flexibly.
26. The Council says it had not carried out a Care Act assessment of Mr B’s needs prior to the 2022 assessment and there was no record in the previous review notes that the Direct Payments were being used for meals out, theatre tickets and a season ticket. It says, “Had a Care Act Assessment been completed, and an agreement reached that (Mr B) had relevant eligible social care needs, parents would have been very clear as to what (Mr B) had available to him as a Personal Budget and how the Personal Budget could be used as set out in the agreed Care Plan. As it stood, at the time of the 2022 Review, (Mr B)’s’ budget and Care Plan set out that Direct Payments were solely authorised for PA support.”
27. In terms of Mr B’s needs for social activities, the Council says Mr B’s café placement and the carer support allowance were identified as sufficient to meet his needs and the Council would not fund any more for leisure activities. The Council says it enquired whether a season ticket could be purchased from the Carer’s Wellbeing Fund but was told it could not.
28. The team manager who responded to the complaint did not have available to her at the time of her response the emails from Mr B’s placement charity about the care services officer’s alleged conduct during telephone contact with its officers. The Council corrected that as soon as the omission came to light.

Analysis

29. The Council should have acted sooner to carry out a Care Act assessment of Mr B’s eligible needs. Had it done so it is probable that the care and support plan and associated funding now in place would have been implemented much sooner. He has not therefore suffered any injustice as a consequence of that delay.
30. There is no evidence of fault in the way the current assessment of his needs has been completed, however much Mr and Mrs X disagree with the outcome.
31. There is evidence available of an allegation of unprofessional attitude from the care services officer in her conversation with the charity office. That evidence was not available to the team manager when she responded to the complaint, and the Council subsequently rectified that, but the fact that this part of their complaint was not considered fully left Mr and Mrs X with the sense that their words were not believed.
32. The Council did, however, partly uphold the complaint that the social worker had shared unprofessional information and apologized for that.
33. There was some delay, for which the Council apologised, in responding to the complaint.

Agreed action

34. Within one month of my final decision, the Council agrees to offer a payment to Mr and Mrs X of £250 in respect of the distress caused by an omission of evidence on the part of the complaints processing team which meant not all the information was reflected in the complaint response.

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Final decision

35. I have completed this investigation on the basis that some additional injustice was caused which the completion of the recommendation at paragraph 34 will remedy.

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Investigator's decision on behalf of the Ombudsman