Summary: There was fault in how the Council dealt with assessment and care planning for Mr K who is disabled, as well as assessment and support for his mother Ms B. There was fault in how the Council dealt with direct payments, and with recruitment of personal assistants. It has failed to take action it agreed to do as part of a complaint resolution. Throughout, the Council’s communication has been very poor. The Council has caused Ms B and her family distress, uncertainty, and frustration.

The complaint

1. Ms B complains on behalf of herself and her family about how the Council has dealt with the care and support needs of her son. In particular, Ms B says the Council:
• Accepted in 2018 that it owed a shortfall in the Direct Payment account for her disabled son Mr K, but has still not fully repaid this nor the amount it agreed to compensate for the tax impact of paying a lump sum.
• Has refused to put an ongoing advert with the university for personal assistants nor allow the family to engage directly with candidates. It has not explained its reasons for this.
• Has decided that Ms B can receive direct payments as a paid carer, but has wrongly restricted this to being an interim and short-term measure, without explanation.
• Has failed to complete a Care Act Assessment and care and support plan for Mr K, and a carer’s assessment and support plan for Ms B despite promising to do so.
2. Ms B says that the Council’s shortcomings have caused her and the family significant distress. She had to make up the shortfall in care that her son, Mr K is entitled to because they could not recruit personal assistants. Ms B says that she and her family are exhausted with trying to get Mr K’s basic entitlement.

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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 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)
4. 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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What I have and have not investigated

5. 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)
6. Ms B complains about events dating back to 2018. The Council responded to many of her concerns in June 2023 and offered to put matters right. I have investigated those complaints not addressed by the Council, and its actions since June 2023. I have not re-investigated matters the Council has already addressed in its complaint response in June 2023, as many of these are too old for me to reach a safe conclusion now. I have referred to events prior to 2023 as these are relevant, but the scope of my investigation runs from November 2022 (12 months before Ms B brought the complaint to the Ombudsman) to February 2024 when I formally started my investigation.
7. I have investigated the complaints made to the Ombudsman. Following this, the Council sent Ms B the new assessment of her son’s needs. Ms B has raised concerns with the Council about this, but I have not investigated these as this happened after my investigation started. Instead I have recommended that the Council respond to Ms B’s concerns and then she may bring a complaint to the Ombudsman if the Council cannot resolve the issues.

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How I considered this complaint

8. I considered the information provided by Ms B’s representative and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before issuing this final decision.

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What I found

The law and guidance

9. 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.
10. 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.
11. 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.
12. 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. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must take all reasonable steps to agree the revision with the person and their carer.
13. 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.
14. 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)
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. 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.
16. A direct payment cannot be made to certain relatives including a spouse unless the council consider it necessary to do so. (The Care and Support (Direct Payments) Regulations, regulation 3)

What happened

17. Mr K is disabled and has significant care needs. In 2018, the Council assessed Mr K’s care needs and also did a carer’s assessment for Ms B. The Council did not send Mr K his care and support plan, and it did not complete a plan for Ms B’s support as his carer. The Council’s notes say that it approved Mr K’s care and support plan in 2019 and funding for a personal assistant at 80 hours per week backdated 12 months. This would be funded via direct payments. Mr K had previously been receiving 120 hours of care, some of which was provided by his brother as a paid carer.
18. In April 2019, the Council found that it had not paid enough direct payments to Mr K’s brother. It paid 55 weeks of backdated direct payments.
19. By May 2019, the family had recruited two personal assistants but asked that the care hours be increased to 120 per week. owever, However, the Council did not respond to this request. Ms B continued to chase the Council for an answer, and also for the care and support plan, and for it to explain the backdated direct payments. Ms B explained the reality was that she and Mr K’s brother were providing unpaid care and from their perspective the Council had not assessed whether they were willing and able to provide this care.
20. In January 2020, the family gave formal notice that it would start court action against the Council because it had not received the care and support plan for Mr K, a carer’s support plan for Ms B, nor had the Council responded to the request to reinstate the weekly hours of support.
21. In May 2020, the Council put in place 120 hours of care per week for Mr K. It accepted that he needed 2:1 care in the home and 3:1 care when in the community. The family complained that the Council still had not sent the completed care and support plans for Mr K or Ms B, nor explained how the money it sent via direct payments should be used.
22. In June 2020, the Council found that it had not been paying enough in direct payments, and there had been a shortfall of £666 for around three months. The Council made up these payments.
23. The Council had recruited personal assistants for Mr K via a broker. Initially this worked but the arrangements were taken in house by the Council. In February 2023, Ms B told the Council that they had not been able to recruit personal assistants. This meant Ms B had to cover the care as an unpaid carer. The Council’s files show that it had been advertising for personal assistants among the local student populations and more widely. However, this was not successful.
24. At the beginning of June 2023, the family’s representative complained to the Council. They asked the Council to:
• Allow a rolling advert for carers to apply as Mr K’s personal assistant and for the family to deal with candidates directly.
• Confirm that Ms B can receive direct payments for the care she was delivering when they could not recruit personal assistants.
• Make good the extra tax Mr K’s brother had to pay when the Council paid backdated direct payments in a lump sum.
• Compensate the family for the Council’s failure to complete the care and support plan and any review; the delay of five years in reimbursing missed support hours; and for not completing the carers support plan that would have allowed Ms B to set out what she was prepared to provide.
25. The Council responded to the complaint. The Council:
• Said it had completed the care and support plan for Mr K in 2020.
• apologised for the overdue review of Mr K’s care and support plan and that it had not competed a carer’s support plan for Ms B.
• promised to complete a full re-assessment of Mr K’s care and support needs.
• Offered to pay £2,205 to reflect the additional tax Mr K’s brother had paid; £300 in total for the distress and time and trouble the family has been put to by the Council’s shortcomings; £1,000 to Mr K for the delay in reviewing his care and support plan; and £1,000 to Ms B for the delay in completing the carer’s support plan.
• Agreed that Ms B could be paid direct payments for the care she was giving while they looked for personal assistants, as a short-term measure, due to the exceptional circumstances.
26. The family accepted the Council’s offer of compensation. However, their representative asked the Council to look again at some aspects. He asked why the Council could not place a rolling advert to recruit personal assistants, and allow the family to deal directly with candidates rather than they go via a third party. He also asked why the Council would only agree that Ms B could receive direct payments as an interim exceptional measure as this is not required by the statutory guidance. Finally he said the Council had issued a draft care and support plan in 2019 but it had followed the correct procedure, and had not issued a final plan in 2020.
27. The Council told the representative that it would pay the money. But by the beginning of August the family had not received payment. The representative also chased the Council for its response to his questions.
28. The Council made the payments and said it would send a copy of the 2020 care and support plan for Mr K. The Council said the adverts could be repeated. In addition, the direct payments to Ms B may continue, but the Council was not willing to make this part of the care and support plan. The Council told Ms B that it would send her some forms and instruction as to how she could claim the unused direct payments.
29. The representative responded to the Council. He said the system for recruiting personal assistants would not be appropriate or successful and the Council had still not explained why the family could not liaise directly with candidates; the Council had not explained why the direct payments for Ms B will be short term; it had not sent a copy of the 2020 care and support plan as promised; and had not paid the £2,205 promised.
30. In September 2023, the Council met with Ms B. She understood that this was an introductory meeting. They discussed the issues with recruiting personal assistants and the Council said it would reassess Mr K’s needs.
31. The Council asked for more time to respond to the issues the representative had raised, and the family complained to the Ombudsman. The Council explained to Ms B that she can deal with candidates directly and the third party they use is actually a platform that allows the advert to be placed on several other recruitment websites.
32. In December 2023, Ms B asked when the Council would complete the carers assessment. The Council referred Ms B to an agency for it to complete the assessment on the Council’s behalf. Ms B asked the Council to complete her carers assessment combined with the assessment for Mr K.
33. In January 2024, the Council confirmed that Ms B could claim the unused direct payments until a personal assistant can be recruited. Ms B again told the Council it had never sent her the forms to do this, despite her requests. The Council told Ms B that it wanted to continue with care and support planning for Mr K based on its assessment. Ms B responded that the Council had not sent her the care needs assessment. It did this in February 2024, but Ms B did not agree with the assessment. She complained to the Council that it had not included her in Mr K’s needs assessment, and it had told her it would seek information from health professionals but had not told her who it had consulted, or what information it had used.

Was there fault by the Council causing injustice to Ms B and her family?

That the Council has not fully repaid the shortfall in the direct payments, nor paid the amount it agreed to compensate for the tax impact of paying a lump sum.

34. The direct payment account has been made more complicated by the Council’s poor communication. Ms B has repeatedly asked for explanations of the amounts paid into the account, but the files do not show that it fully explained these. The Council made backdated payments in April 2019 and May 2023. The poor communication is fault by the Council, but I cannot say that payments have not been made. I have recommended that the Council review the account, and explain to Ms B the payments it has made.
35. The Council says it has made payments of £2,300 to Ms B and £300 to Mr K’s brother in recognition of the impact of its failure to compete the assessment and support planning. The Council has not paid the £2,205 to take account of the additional tax that Mr K’s brother had to pay, despite agreeing to do so in June 2023, and Ms B and the family’s representative chasing this payment.

That the Council wrongly restricted the arrangement to pay Ms B direct payments without explanation

36. In response to my enquiries the Council apologised for any miscommunication regarding direct payments to Ms B. It agrees that Ms B needs to be employed via direct payments, but had understood that Ms B wanted this only as a short-term measure. It says that the funds are in the direct payment account for Ms B to claim.
37. It was fault for the Council to tell Ms B that it would only pay in exceptional circumstances. The Council agrees that its policy for making direct payments available to family members did not accord with the statutory guidance, and it has changed the policy so that payments can be made to family where necessary but this does not need to be an exceptional situation, nor short term.
38. It was also fault when the Council failed to send the forms for Ms B to claim the direct payments despite her asking it to do so on several occasions.

That the Council failed to complete a Care Act care and support plan for Mr K, and a carer’s assessment and support plan for Ms B despite promising to do so.

39. The Council has acknowledged that it failed to produce support plans for Mr K and a carers plan for Ms B. The Council says that it sent Ms B her son’s care and support plan in 2020, but this is not recorded on the file, and the Council failed to respond to Ms B’s requests for a copy of the plan. The Council also should have regularly reviewed Mr K’s care and support plan, but failed to do so.
40. In June 2023, the Council paid compensation in recognition of its failings and promised to complete a new care needs assessment and care and needs support plan for Mr K, and a carer’s support plan for Ms B.
41. However, the Council delayed further and did not refer Ms B for the carers assessment for another six months, and did not complete Mr K’s assessment for a further eight months. This further delay is fault by the Council.
42. Again the Council’s communication around the assessments has been very poor, with no update during periods of delay and Ms B having to chase for progress. Ms B has raised concerns about her son’s needs assessment and also asked the Council to combine her carer’s assessment with her son’s needs assessment. The Council has again failed to address these concerns or respond to Ms B.
43. The Council has explained that it has not been able to complete reviews in time and so it formed a team specifically to tackle this. The Council says this team has reduced the delays.

That the Council refused to put an ongoing advert with the university for personal assistants, nor allow the family to engage directly with candidates, and has not explained its reasons for this.

44. The Council maintains that the system it uses to recruit personal assistants is appropriate and allows the families to liaise with the candidates. But it is also liaising with the colleges and universities to improve advertisements to students who might be employed as personal assistants.
45. Again, the Council’s communications are very poor and it has not always addressed relevant concerns about the recruitment of personal assistants in good time. For example, it did not explain that candidates were not required to go through a third party, and Ms B could be directly involved.
46. However, Ms B’s representative rightly reminded the Council that the aim of the direct payments system is to put service users in charge of who provides the care and how. Although the Council has considered Ms B’s concerns, it has continued to be rigid about how adverts for personal assistants will run.
47. I can see that the Council has met with Ms B to discuss the problems with recruitment but this has been undermined by delays and poor communication around assessment, support planning, and direct payments, so that there has been no consistency with addressing the issues nor making a plan as to how these might be tackled.

Conclusion

48. Overall, there has been fault causing injustice to Ms B and her family. The Council has accepted that it delayed significantly. The Council says that it produced a care and support plan for Mr K in 2020. The family say the finalised version was not sent to them. I have not investigated the Council’s actions from 2020: my investigation starts with events in 2023. But within this time frame the Council failed to respond to the family’s requests for a copy of the 2020 plan.
49. Regardless of whether the Council finalised the care and support plan in 2020, it failed to review the plan, despite that the care was not in place as it could not recruit personal assistants.
50. The Council agreed to complete a new assessment in June 2023 but did not do so until February 2024. Ms B has raised several detailed concerns about the new assessment but the council has not addressed this and has instead said that it would continue with support planning.
51. The Council has acknowledged that it failed to offer a carer’s support plan to Ms B. Again it agreed to reassess her needs in June 2023, but it did not refer Ms B for an assessment until December. It also has not considered Ms B’s request for a combined assessment.
52. The Council has not explained the backdated payments to Ms B. It has not made the payment it promised to do in respect of the unexpected tax liability, and it has not given instructions to Ms B about how she should claim direct payments. The Council has acknowledged it was wrong to tell Ms B that its agreement to allow her to claim direct payments could only be given in exceptional circumstances. It has apologised and amended its policy.
53. The Council’s communication has been poor throughout and this means it failed to resolve Ms B’s concerns about recruiting personal assistants.
54. The Council’s shortcomings have caused Ms B and her family significant distress, uncertainty and frustration. Its poor communication has compounded this and put the family to time and trouble to resolve issues, when their time and capacity is needed to meet Mr K’s needs.

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Agreed action

55. The Council will within one month of the date of this decision.
• Apologise to Ms B and to Mr K’s brother. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay £2,205 previously agreed in respect of the tax liability.
• Make a symbolic payment to Ms B of £750 in recognition of the additional distress it caused her when it further delayed in completing assessments, and the time and trouble it put her to when its communication with her did not meet expected standards.
• Respond to Ms B’s concerns about Mr K’s new assessment and her request to have a carer’s assessment combined with this.
• Meet with Ms B to agree how to recruit personal assistants, and the support she may need in doing so, taking into account that she has autonomy under the system.
• Write to Ms B to confirm that she can claim unpaid direct payments starting from when there were no personal assistants to deliver the agreed care hours. The Council should include written instructions as to how to claim these and send any forms required.
• Review the direct payment account and set out the details of the backdated payments and what these relate to.
• Ensure a copy of our final decision is considered by the relevant scrutiny committee and cabinet member; and share a copy of our final decision with all relevant staff in adult social care, to discuss and identify learning.
56. Within two months of the date of this decision, the Council will make sure it has completed Mr K’s care and support plan, and the carer’s support plan for Ms B.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. There was fault by the Council causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman