Summary: Mrs X complained about the way the Council deal with a review of her daughter’s care and how it responded to her complaint about the matter. She also complained the Council failed to provide respite support and paid Direct Payments at the wrong rate for a number of years. We found there was fault by the Council. This was compounded by failings in the way it responded to Mrs X. The Council took some action to address the impact. We recommended the Council provided a written apology, made a distress payment and reimbursed her solicitors fees.

The complaint

1. Mrs X complains the Council ignored her requests for respite support, tried to cut her daughter’s care package without grounds to do so and repeatedly failed to respond to her complaint.
2. Mrs X stated, when she raised a complaint, the Council proposed cutting the care further, questioned the use of family members as Personal Assistants (PAs) and stated it wanted to carry out a 72 hour needs assessment outside of her daughter’s home.
3. Mrs X also complained that the Council did not increase her daughter’s direct payments when it had increased the rates it paid for care.
4. She complains the Council’s approach of refusing to address her complaint, while repeatedly raising new issues appeared to the family to be intimidatory, which was upsetting and led to a loss of trust.

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The Ombudsman’s role and powers

5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

8. I spoke to Mrs X’s representative and considered the information she provided. I asked the Council for information and I took account of its response and how it responded to the complaint.
9. Mrs 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

Background

10. Mrs X complains on behalf of her daughter (referred to in this statement as Miss Y).
11. Miss Y has a number of long-term health conditions. She lives at home with her parents, Mr and Mrs X. Miss Y does not have capacity and she requires care and support with all of the activities of daily life.
12. Miss Y’s family members provide unpaid help and support with some tasks in the morning and evening each day, and in the daytime on two days per week. The family also maintain the family home and carry out shopping, attend all appointments with Miss Y and manage her finances.
13. Miss Y needs care and support 24-hours a day, so she has eligible needs, beyond the support informally provided by the family. As a result, she receives Direct Payments (DPs) to enable her to fund the required care. In Miss Y’s case, family members have acted as paid PAs for over 10 years, in addition to the informal support the family provide.

What Happened

Proposals to cut Miss Y’s care hours following reviews

14. A review of Miss Y’s care and support plan took place in November 2021. In December, a social worker (SW) told Mrs X that the level of support required by Miss Y was unchanged (70 Hours per week). However, a few days later the SW sent an email stating the Council proposed cutting the hours of care and support she received by 11.5 hours per week. She enclosed a breakdown that only showed cuts of 4.5 hours per week.
15. Mrs X questioned the outcome. In January 2022, the SW issued a second breakdown of the support needed. This cut Miss Y’s hours further, by 16.5 hours per week.
16. Mrs X complained in February 2022 about the situation and that the Council did not seem clear on how Miss Y’s needs would continue to be met if the hours were reduced by this amount. In response, the Council appointed a new social worker who visited the family in April. However, the new SW did not address concerns raised about the reductions the Council proposed. Instead, the SWs focus was about the family members acting as PAs. She stated, broadly, this should not continue. Mrs X says this was confirmed in a summary of the meeting sent by the SW.
17. Mrs X complained again in September 2022.
18. The Council responded in October 2022. The Council’s response to the complaint again did not explain or comment on the proposals to reduce DP hours. Rather, it raised an issue with Miss Y’s need for 1-2-1 care. The response acknowledged there was evidence Miss Y needed care on a 24-hour basis, but it stated this did not mean Miss Y needed 1-2-1 support 24-hours a day. It stated 1-2-1 support 24-hours a day could be considered restrictive. The Council stated, as Miss Y was not accessing the community regularly and appeared to be receiving 1-2-1 support for extended periods, a Community Deprivation of Liberty (DOLS) assessment was required and it would need to be registered with the Court of Protection (CoP). It proposed an urgent review to identify Miss Y’s ‘true support needs’. The Council did not uphold Mrs X’s complaint about the way the November 2021 review was conducted.
19. The Council’s complaint response also addressed Mrs X’s concerns about the focus of the new social worker on removing family members as carers. It explained that the Care Act stated DPs should not be used to pay someone to act as a PA if they live in the same household. However, councils had discretion to allow this in exceptional circumstances. It explained its policy and found no fault in the SW raising the issue. The Council noted that Mr X was in need of a respite break as part of its consideration of the issue.
20. In February 2023 Mrs X engaged a solicitor. The solicitor wrote to the Council to challenge the cuts the Council proposed, the Council’s failure to respond to Mrs X’s complaint from February 2022 and the way the Council had acted since. The solicitor noted that rather than respond to Mrs X’s challenge about the proposed cuts, a new SW had questioned a long-standing situation in which Miss Y’s family members acted as her PAs. Then, when the Council did respond to the complaint in October 2022, it ignored the proposed cuts again and raised a further new issue; that 1-2-1 care being received by Miss Y may be seen as overly restrictive and needed DOLS consideration. He explained Mrs X had been shocked by the Council’s lack of response to her concerns and what seemed like actions targeting, intimidating and punishing them for raising the Council’s shortcomings.
21. The Council proposed a 72-hour assessment before it responded to the complaint. Mrs X says initially the Council proposed this should take place in a respite facility. They found this inappropriate as Miss Y would be in an unfamiliar environment without known and trusted carers. In an email in October 2023, the Council proposed various ways to do a 72‑hour assessment at home or in a respite placement. The Council told us in hindsight it recognised that the assessment in an unfamiliar environment would not have presented a true picture of Miss Y’s support needs and at home it would have been intrusive. Mrs X’s solicitor told us the Council later agreed to engage an Independent Social Worker to assess Miss Y but this had not taken place.
22. In early December, the Council sent a response (dated 19 November) to Mrs X’s complaint. In it, the Council accepted there was no evidence to underpin the proposal to reduce the support being provided to Miss Y as she required 24-Hour care and did not have reduced needs. It also took account of family members’ needs to remain well in order to be able to care for Miss Y.
23. I understand the SW had used a Resource Allocation System (RAS) when proposing the reductions in care. The Council says its policy was for the SW to discuss the outcome of the RAS with service users/their families to check that the required care and support could be purchased for the level of DPs the RAS proposed. It stated, reviews of support plans should also be reviewed by a line manager to ensure quality standards had been met.
24. The Council told us it accepted that the management sign off and quality assurance steps in Miss Y’s case also failed as they did not identify the outcome was flawed.
25. The Council stated, since these events, it had changed its practice and revised quality checks to ensure the issue does not reoccur.
26. Mrs X’s solicitor told us the family considered it was not credible that the proposed cuts were solely down to the use of an RAS system. They noted Miss Y’s assessment of needs document did not support the changes proposed. They also noted a number of emails from officers which sought more information about Miss Y’s hours which the family responded to. Overall, they noted that the number of hours that officer’s proposed to cut did not correspond with information the officers had. They considered the issues went further than problems with an RAS system.

Practice concerning increase in the rates paid for DPs.

27. In February 2023, Mrs X’s solicitor also raised the issue of Direct Payment (DP) hourly rates. He questioned why increases in the hourly rates had not been applied to Miss Y’s DPs for many years.
28. The Council explained it did review the hourly rate it pays for DPs annually. However, up until 2023/4 the Council had not automatically applied the increase to all those receiving DPs. Nor had it written to DP recipients to inform them of the agreed increase. It stated its policy was for a SW to discuss the agreed annual increase at annual reviews and then individually arrange the increase in DPs.
29. In Miss Y’s case, the Council had reviewed her care plan. However, the November 2021 review of her care and support indicated she had been receiving DPs at the rate of £10.37 since 2015. In that time, the Council had changed the DP rate six times, (£10.47, £10.67, £10.77, £11.21, £11.81 and £13.13). Despite having had reviews of Miss Y’s care and support in that time, the SWs conducting the reviews had not raised the changes in DP rates with the family. As a result, the increases in DP rates Miss Y was entitled to were not paid.

Was there fault by the Council

Proposed Reductions in Hours

30. I understand the SW had used a Resource Allocation System (RAS) when proposing the reductions in care in December 2021 and January 2022. The Council says its policy was for the SW to discuss the outcome of the RAS with service users/their families to check that the required care and support could be purchased for the level of DPs the RAS proposed. It stated, reviews of support plans should also be reviewed by a line manager to ensure quality standards had been met.
31. The Council failed to properly consider Mrs X’s initial complaint about the proposed reductions and they were not addressed in interactions the family had with a new social worker. When the Council properly considered the complaint at Stage Two of its complaints process, it accepted that Mrs X’s original concerns were valid, it had been at fault in the way it proposed reductions in Miss Y’s DPs and there had been no evidence to suggest a change in Miss Y’s support needs.
32. The Council says the cuts that a SW proposed had been driven by output from a Resource Allocation System (RAS). It accepted that management oversight of the process failed to identify flaws in the proposed cuts. I note the family consider officer’s actions and not just the RAS system were responsible for the proposed cuts. In any event, the Council accepted the proposals to cut hours were not supported by the evidence of Miss Y’s needs. We found the way the assessment was done and the way it was quality assessed represented fault by the Council.

Unpaid increases in DP Rates

33. The Council’s approach prior to 2023 was for SWs to individually discuss increases in rates with service users. Only if SWs did this and took action to arrange increases, did service users get the increase in DPs they were entitled to. This approach was open to inconsistency, and it seems no checks were in place to oversee when service users received the appropriate increases and when they had not. The Council did not pay Miss Y the correct increases in DP payments as a result since 2015. This was fault.
34. The Council’s response to Mrs X’s complaint in 2023 explained that from 2023/4 it now applied the increase automatically. It agreed to pay Miss Y a lump sum, equivalent to backdating the increases she should have received, to 2021.

Respite for Carers

35. Miss Y’s 2021 care plan noted Mr and Mrs X did not currently receive a respite payment. Mrs X explained they would benefit from a respite payment to enable them to take a break from caring. It was noted this was on hold at that time, due to the impact of the COVID-19 pandemic.
36. The Council’s response to Mrs X’s solicitor in November 2023 stated that the SW who visited Mrs X in April 2022 had planned to discuss respite care with her and there was no intention to avoid this. However, the Council accepted this was not followed up or properly explained. The Council noted the SW’s email summarising the meeting may have given the impression that respite care was not going to be provided at that time. The Council apologised for this.
37. In response to the complaint the Council agreed Miss Y’s DP account should be credited with an amount equal to 42 nights of respite care.

The Council’s Overall Response / Introduction of Other Issues

38. The Council’s response to Mrs X’s complaint was poor. The Council’s initial complaint response failed to respond to the key issue (proposed reduction in care hours), and this was not addressed by a new SW when they were assigned. The new SW then raised new and unrelated issues regarding the suitability of family members acting as PAs and about 1-2-1 care hours. When raising the later, the Council suggested the CoP needed to be involved. The SWs communication when doing so was not clear. The lack of response to a relatively simple issue, coupled with the raising of numerous new issues in response, understandably caused worry and confusion about the Council’s motives and intentions. Mrs X was concerned that the new issues were being raised because she had questioned the proposed reduction in Miss Y’s care hours. The way the Council reacted led to a lack of trust. The way the Council responded to the complaint represents fault.
39. It is not clear that the Council’s approach had been a reaction to what Mrs X had raised. However, given the poor way in which the Council responded, it is understandable that Mrs X was concerned enough to seek a solicitor’s advice. I found it was likely that she would not have been put to the cost of doing so had the Council communicated properly with her beforehand about the proposed reductions in care hours.

Injustice

40. I note that since the events of Mrs X’s complaint, the Council has taken actions and changed practices relating to several issues of practice that the complaint raises. In terms of practice, the Council has:
• changed the way it conducts care needs assessments that use an RAS and the way it quality assesses needs assessments.
• automated the process used to pay increased rates of Direct Payments so that all service users receive these automatically.
• spoken to SWs who dealt with Mrs X about issues identified in the course of her complaint.
41. In respect of the impact to Miss Y, Miss X and her family:
• The Council agreed to make a back payment to correct the rates of DPs paid since 2021 to the correct rates.
• The Council agreed to arrange for 42 hours of respite support to be added to Miss Y’s Direct Payment account.
• It apologised for some aspects of its handling of the matter.
• However, I found that direct payments were not paid at the correct rates until this was formally raised, there was a delay in arranging respite support and the Council’s failure to properly address flaws in the care review all caused distress to Mrs X and her family.

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Agreed action

42. Within four weeks of my final decision:
43. The Council should provide a written apology to Mrs X and to Miss Y for the fault we identified. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
44. The Council should make a payment to Mrs X for £500 to recognise the distress caused by the fault and the way the Council dealt with Mrs X’s complaint.
45. The Council should make the back payment to Miss Y’s Direct Payment account to correct the rates of Direct Payments paid since 2021, as it agreed in its complaint response.
46. The Council should add funding to the Direct Payment account equivalent to 42 hours of respite care as it agreed in its complaint response.
47. The Council should contact Mrs X to obtain evidence of the solicitors fees she incurred and it should reimburse Mrs X’s solicitor’s fees.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. There was fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman