Summary: Ms X complained the Council had not acted in line with the Care Act 2014 and the did not allow flexibility and innovation in the use of direct payments to meet the needs set out in her son, Mr G’s care and support plan. There was no fault in how the Council considered the use of direct payments. The Council delayed in completing a review of Mr G’s needs, but this did not cause an injustice.

The complaint

1. Ms X complained the Council had not acted in line with the Care Act 2014 and did not allow flexibility and innovation in the use of direct payments to meet the needs set out in her son, Mr G’s care and support plan. Ms X said she has not been able to use the direct payments to meet Mr G’s needs and so he missed out on the support it was intended to provide. Ms X wanted the Council to change its approach to direct payments to allow flexibility and innovation.

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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 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)
3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, 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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What I have and have not investigated

6. Ms X complained about matters that began in 2020. I have not considered those complaints as they are late, as set out in paragraph 3. Ms X could have brought those complaints to us sooner and there are no good reasons to investigate them now.
7. I have investigated what happened since Ms X raised the issue with the Council in November 2022 until it provided its final response in November 2023.

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How I considered this complaint

8. I read the documents provided by Ms X and discussed the complaint with her on the phone.
9. I considered the documents the Council sent in response to my enquiries.
10. I considered the relevant legislation and guidance including the Care Act 2014, Care and Support Statutory Guidance 2014, the Care and Support (Direct Payments) Regulations 2014 and the Care and Support (Eligibility Criteria) Regulations 2015.
11. 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 legislation and guidance

Assessment

12. 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.

Care Plan

13. 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.

Personal Budgets

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. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
15. 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

16. 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.
17. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
18. Councils must be satisfied the direct payment is used to meet the needs in the support plan and therefore should have monitoring systems in place. They must review the direct payments within the initial six months and then annually.
19. The guidance states ‘a direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs’. This accords with personalisation principles.

What happened

Background information

20. Ms X signed a direct payment agreement with the Council for Mr G’s direct payments. It said Ms X would only use the direct payments to buy the services as detailed in the support plan and any related expenses that have been agreed in writing by the Council. The agreement said the Council may require repayment of the direct payment if it was not satisfied it had been used to secure the provision of the services detailed in the support plan, within a period of three months.
21. In April 2022, the Council discussed the use of Mr G’s direct payments with Ms X after she had used them to pay for Mr G to take part in activities such as paddle boarding and a cinema pass. The Council said, ‘Ordinarily, payment for activities such as these are not agreed. We would agree to pay for the formal support [Mr G] may need to access leisure activities, and the carers entrance fee for example. However as there were general difficulties resulting from Covid and the impact on daily living, we will agree this use of the Direct Payment as a one off’.

Events covered by this investigation

22. In 2022 Mr G had a support plan from 2021 that identified his eligible needs for care and support in many areas of his life. The plan said that Mr G attended college and needed support in developing and maintaining personal relationships and using recreational facilities and services in the local community. Specifically it said Mr G needed:
• Support and opportunity to meet new people
• Support to identify suitable activities
• Opportunities to socialise with peers to prevent social isolation
• Support on a one-to-two basis.
23. The care plan identified that Ms X provided support for Mr G in many areas of his life and would require some respite from her caring responsibilities. It set out that Mr G would receive direct payments to pay for a personal assistant (PA) to support Mr G and provide Ms X respite. It said Mr G would receive 12 hours PA support per week and 24 nights of respite per year.
24. Ms X complained to the Council in November 2022. She said there was no flexibility in using the direct payments. The Council records show Ms X asked if she could use direct payments to pay for activities. The social worker told Ms X she could not as the direct payments were for meeting Y’s care needs. They asked Ms X to email with what she wanted to spend the direct payments on and the Council would consider it.
25. The Council completed a home visit in November 2022 to complete a direct payment review. The Council said the social worker completed the review but did not write it up until July 2023. The contemporaneous record of that meeting shows the social worker said direct payments could be used flexibly and Ms X could request £20 per week during term time and £40 per week in non-term time to pay for activities directly.
26. Ms X told the Council in February 2023 that Mr G was no longer in college. At the beginning of March the Council allocated a new social worker who sent Ms X information on other providers of support and personal assistants.
27. The Council completed a care and support plan review at the beginning of July. It found there was no need for changes in long term support. It recorded the direct payment package to support Mr G to access the community had not been used as Ms X had struggled to find personal assistants. The Council offered to complete a carers assessment for Ms X.
28. At the end of July the Council wrote to Ms X and confirmed direct payments were not to cover the cost of activities, but to cover staff to support Mr G to access the activities. It said Mr G and Ms X should use other income to pay for activities.
29. The Council told Ms X it would waive £1058.50 of direct payments that Ms X had used for activities on this occasion in August 2023. It reiterated direct payments could not be used against the purchase of activities, only support to engage with an activity. It said if Ms X wanted to use the money differently she should contact the Council first to discuss and agree it. The Council offered Ms X alternatives to direct payments including a specialist respite provision and providers as she had struggled to source a personal assistant for Y. Ms X declined these options.
30. Ms X complained to the Council that it was not following the law in not allowing Mr G to use his direct payments flexibly to meet his needs. She said there was insufficient support for Mr G or for her as a carer in the area they lived.
31. The Council responded to Ms X’s complaint. It said Mr G currently had direct payments for respite and personal assistant support according to his care and support plan. It said Ms X had previously used direct payments to pay for activities as she could not find a personal assistant. It signposted Ms X to a service to identify personal assistants. It said as it was clear Mr G’s care and support plan was not meeting his need it would complete a reassessment and review. It said a meeting had been arranged for November with a Care Act advocate to complete the review. It agreed it had not always been consistent in the advice it had given her about direct payments and apologised.
32. Dissatisfied with the Council’s response Ms X complained to us. She stated she had several thousand pounds in direct payments that she could not spend to support Mr G as there were no personal assistants in the area and the Council would not allow her to spend it flexibly on activities for Mr G to attend.
33. The Council has completed the Care Act review. Ms X has declined to agree the subsequent care and support plan pending our decision.

My findings

34. When Ms X complained about the flexibility of the direct payments to meet Mr G’s care needs, the Council completed a review of the direct payments. The records show that the Council told Ms X she could request money to pay for activities directly. The Council did not properly record the review until eight months later which was fault, however I do not find that caused Ms X or Mr G an injustice as the review did not recommend changes to the direct payments.
35. When Ms X told the Council Mr G was no longer attending college, it was likely Mr G’s care and support needs would have changed. The Council should have reviewed Mr G’s needs. Although there is no specific time set out in the guidance it is appropriate for the Council to have completed the review within 12 weeks and by May 2023. The Council did not complete the review until July which was fault. However, when it completed the review it did not change the care package or direct payments and so I do not find the delay caused Ms X or Mr G an injustice.
36. Ms X complains the Council has not allowed her to use the direct payments flexibly to meet Mr G’s needs when she has not been able to find a personal assistant. Councils must be satisfied that direct payments are spent on meeting care and support needs as set out in the individual’s care and support plan. The Council acknowledged in its complaint response to Ms X that it had not always provided consistent advice and apologised. However, the Council considered the request to pay for activities directly and decided it would not meet Mr G’s eligible needs and it told Ms X this in November 2022, July 2023 and in its complaint responses. The Council acted in line with the direct payment agreement Ms X signed. It also provided Ms X with information and support in seeking a personal assistant or alternatives to direct payments. Although the Council decided not to reclaim direct payments Ms X has spent on activities in the past, it does not mean it must allow them in the future. There was no fault in how the Council made its decision about the direct payments, and so I cannot question the outcome.
37. The Council stated that paying for the activity directly would not meet Mr G’s eligible needs. The Council has offered a reassessment of Mr G’s eligible needs which is appropriate. If Mr G or Ms X disagree with the eligible needs identified in the reassessment, they can raise this with the Council.

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Final decision

38. I have completed my investigation. I found fault but it did not cause an injustice.

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Investigator's decision on behalf of the Ombudsman