Summary: Ms X complained about how the Council met Mrs Y’s needs for care and support and how it administered her direct payments. The Council failed to give Ms X or Mrs Y sufficient information about direct payments and failed to review Mrs Y’s direct payments and care plan properly. The Council also failed to offer Ms X a carer’s assessment when it should have. This caused Ms X and Mrs Y stress and uncertainty and meant Ms X had to supplement Mrs Y’s direct payments to cover the cost of her care. The Council will apologise, pay Mrs Y the shortfall in her care costs and carry out staff training.

The complaint

1. Ms X complained on behalf of her mother, Mrs Y. Ms X complained about how the Council met Mrs Y’s needs for care and support and about how it administered Mrs Y’s direct payments. Specifically, Ms X complained the Council:
• decided on a care package that was too small to meet Mrs Y’s needs in September 2020;
• did not give Mrs Y a choice in how she could receive care;
• did not share appropriate information about direct payments;
• did not help her arrange care using those direct payments;
• did not give Mrs Y enough money in her direct payments to commission her care package; and
• did not offer her a carers assessment.
2. Ms X said this meant she had to supplement Mrs Y’s care with her own money, which led her to have to work two jobs. She said this caused significant stress and worry.

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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 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)
5. 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

6. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
7. Ms X 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

Care plans and reviews

8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan if a person is assessed as having eligible needs. 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. 
9. 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.
10. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance (the Guidance) says councils should review plans at least every 12 months.

Personal Budgets

11. A 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 personal budget must always be enough to meet the person’s care and support needs.
12. 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 with support provided in line with the person’s wishes; or
• as a direct payment.

Direct payments

13. 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 Guidance says councils must ensure people have relevant and timely information about direct payments. This should include:
• what a direct payment is;
• an explanation of how the council will monitor the use of the direct payment;
• the making of arrangements with social care providers; and
• signposting to local organisations and the council's own internal support who offer help to direct payment holders and who have information on local social care providers.
14. If the person wants direct payments, councils should support them to use and manage the payment properly. The Guidance says this should include help for people to ‘micro-commission’ care services from local providers. Micro-commissioning is where services are arranged to meet a specific person’s needs. The Council's website includes a leaflet on micro-commissioning and directs people to a phone application that helps people find a provider.
15. The Care and Support Statutory Guidance also says councils must be satisfied the person can manage the direct payment and should take “all reasonable steps” to provide help and support to people to manage the direct payment.
16. Councils must be satisfied the direct payment is used to meet the needs in the plan and therefore should have monitoring systems in place. They must review the direct payments within the initial six months and then annually.

Carer’s assessment

17. 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.
18. 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.

What happened

19. In March 2019, Ms X told the Council she had moved in with Mrs Y to care for her. She asked for a carers assessment.
20. By October 2019, Mrs Y had asked the Council to arrange some support. It put reablement into place. Reablement refers to care which is provided for a limited period of time to assess the person’s needs and help them maintain or regain the ability to live independently.
21. Mrs Y’s social worker noted in March 2020 that reablement had not been successful and Mrs Y sought care which was more flexible in timings. The social worker suggested Mrs Y might want direct payments.
22. Shortly after, the country entered lockdown due to the COVID-19 pandemic. Mrs Y did not want care during that period.
23. In late June 2020, Ms X told the Council Mrs Y’s needs had increased and she wanted to arrange the direct payments. The Council decided Mrs Y need seven hours per week of care and began making the direct payments.
24. The Council carried out a review of Mrs Y’s care and support plan in mid-September 2020. As part of the review, the Council spoke to Ms X. She said she wanted a larger care package for Mrs Y because she was returning to work and wanted to be able to go out a few nights a week. She was not able to do that when she had to be at home to support Mrs Y at bedtime.
25. During the review, Ms X said “what does it mean to have a direct payment, do I have to source the care myself?”.
26. The Council increased Mrs Y’s care package to 10 hours 45 minutes per week. This covered a 45 minute visit every morning, 30 minutes every lunch time and 30 minutes at dinner time four days a week.
27. Ms X found a care company which she said was the cheapest available. They began supporting Mrs Y in late September. The provider charged between £2 and £4 more per hour than the Council budgeted for.
28. The Council said it carried out a direct payment review in mid-October 2020. When I asked for evidence of that review, the Council sent me a review of Mrs Y’s care and support plan from that date.
29. The care and support plan review noted Ms X was unsure whether direct payments were better than when the Council commissions care directly. She knew she should contact the Council if she or Mrs Y wanted it to arrange Mrs Y’s care instead.
30. The Council did not contact Mrs Y or Ms X and did not carry out a direct payment review until March 2022. Ms X sent evidence of how she was administering the payments. It showed the discrepancy between what the Council paid as a direct payment and what the care provider charged each week for 10 hours 45 minutes of support.
31. The records also showed Ms X paid for 12 hours 30 minutes of care per week. This was because Mrs Y was receiving an hour each morning instead of 45 minutes.
32. The Council carried out a care and support plan review in early July 2022. The review found the direct payments were not meeting Mrs Y’s needs. Mrs Y asked the Council to arrange her care directly and stop the direct payments. The Council agreed.
33. Ms X complained about the Council's handling of Mrs Y’s care and the direct payments. The Council responded to say:
• it accepted it had not carried out a direct payment review in 2021. It should have done this in September 2021;
• it accepted that if it had carried out the review, it would have identified Mrs Y was paying more per hour than it had budgeted for and would have remedied that;
• it would pay Mrs Y a lump sum to remedy that injustice. The lump sum was calculated as £34 per week from September 2021 to the date the direct payments stopped. This was the difference between the direct payment and the cost of care in that period; and
• Ms X was still entitled to a carers assessment. It said she should contact it if she wanted to have one.

Findings

No fault in the choice of care

34. Ms X said the Council did not give Mrs Y a choice of how to have her care needs met. In March 2020, Mrs Y and Ms X said they wanted care which was more flexible than reablement. The Council suggested direct payments would allow for that flexibility, which Mrs Y agreed to. Mrs Y’s care and support plan review in September 2020 noted Ms X was not sure direct payments were the best option and knew she could request for the Council to commission the care directly if she changed her mind. I am satisfied Ms X knew there were options in how Mrs Y could receive her care so the Council was not at fault.

Fault in the information the Council gave on arranging direct payments

35. However, I have seen no evidence the Council gave Mrs Y or Ms X suitable information on direct payments in March 2020 to help them properly understand what direct payments are, what they entail or how the Council would monitor their use. In fact, in September 2020, after the Council had already begun making the direct payments, Ms X asked if she was meant to source the care herself. This further suggests the Council did not give her sufficient and timely information on direct payments. This was not in accordance with the Care and Support Statutory Guidance and was fault.
36. When a person has direct payments, they are expected to source and arrange the care themselves. However, the Guidance says councils should give information on local providers and how the direct payment recipient could ‘micro-commission’ care. There is no evidence the Council gave Ms X this information. This was a further failure to comply with the Guidance and was also fault. The faults caused Ms X avoidable stress because she had to find a care provider herself without appropriate information from the Council.

Failure to ensure the direct payments were sufficient

37. The Council should have reviewed Mrs Y’s direct payments within six months of them starting and every 12 months after that. The Council said it carried out a review in October 2020 but this is not evidenced. The document the Council sent me was a care and support plan review. The Council was at fault for not reviewing Mrs Y’s direct payments in the first six months after it started and for not reviewing the direct payment in 2021.
38. The Council accepted it was at fault for failing to do a direct payment review in 2021. The Council said that had it done so, it would have identified that Mrs Y was paying more per hour than it was paying in direct payments and would have remedied that issue earlier. I agree with the Council's findings.
39. In its complaint response, the Council offered to pay the difference between the weekly direct payment amount and the ‘cost of care’ from the date it should have done the 2021 review to the date it began to commission the care itself in 2022. I am not satisfied this is an appropriate remedy for reasons set out below.
40. The Council accepted it probably would have identified Mrs Y was paying more than the personal budget allowed for if it had done a direct payment review in 2021. It is also probable it would have identified the issues had it carried out the review in October 2020. Therefore, to put Mrs Y back in the position she would have been but for the fault, the Council should pay Mrs Y the difference between the direct payment budget and the amount she paid, dating back to October 2020. I have made a recommendation to that effect.

No fault in how the Council decided what care package Mrs Y needed in September 2020

41. Ms X complained that in the September 2020 care and support plan review, the Council decided Mrs Y only needed support at bedtimes four times a week. She felt Mrs Y should have care every night. The Ombudsman cannot question a council’s decision if it is made without fault. The care and support plan review shows the Council considered Ms X’s views on Mrs Y’s need for support as well as her wishes and willingness to provide support herself. Ms X said she wanted a few nights a week when she could go out in the evenings without having to support Mrs Y at bedtimes. The care package the Council decided upon allowed for that. There was no fault in how the Council came to its decision, so I cannot question the outcome.
42. The September 2020 care package was for 10 hours 45 minutes a week. Although Ms X commissioned a larger care package of 12 hours 30 minutes, this was because the carers came for one hour in the morning instead of 45 minutes. This was Ms X’s choice and not Council fault.

Failure to review Mrs Y’s care plan in 2021

43. Councils must review a person’s care and support plan at least once every 12 months. The Council did not carry out a review in 2021. This was fault. However, although the Council increased Mrs Y’s care package in July 2022, I cannot say it would have done so in 2021. The injustice is therefore uncertainty for Mrs Y and Ms X as to what impact the earlier review would have had.

Failure to carry out a carer’s assessment

44. Ms X first requested a carer’s assessment in 2019 when she told the Council she had moved into Mrs Y’s home to care for her. The Council did not carry out an assessment and did not explore whether Ms X still wanted one in its later interactions with her and Mrs Y. This was fault. This caused Ms X uncertainty about whether the assessment would have resulted in additional support for her.

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Agreed action

45. Within one month of the date of my final decision, the Council will:
• apologise to Mrs Y and Ms X individually for the injustice they experienced as a result of the fault identified in this decision. The Council may want to refer to the Ombudsman's guidance on remedies, which sets out the standards we expect apologies to meet; and
• review Ms X’s invoices from the date of the October 2020 care and support plan review up to the date the direct payments ended in 2022. The Council will then pay Mrs Y the difference between the amount she paid for the 10 hours 45 minutes of care per week and the amount it had paid her as a direct payment. The Council will take account of any contributions Mrs Y makes towards her care and of any cancelled visits.
46. Within three months of the date of my final decision, the Council will remind relevant staff:
• they must review a person’s direct payments and care and support plan every 12 months; and
• of the information they should provide to people considering direct payments, as set out in the Care and Support Statutory Guidance.
47. The Council will provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman