Summary: Mrs B complained the Council has refused to allow Ms C to have direct payments to commission her own care services. She also complained the Council has offered an inadequate care package that will not meet Ms C’s care and support needs. We do not find the Council was at fault.

The complaint

1. Mrs B complained the Council has refused to allow Ms C to have direct payments to commission her own care services. She also complained the Council has offered an inadequate care package that will not meet Ms C’s care and support needs.
2. Mrs B says the Council’s failures have had a detrimental impact on Ms C’s health and wellbeing.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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)

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How I considered this complaint

7. I considered information from Mrs B and Ms C. I made written enquiries of the Council and considered information it sent in response.
8. Mrs B, Ms C 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

The Care Act 2014 and care assessments

9. Sections 9 and 10 of the Care Act 2014 (The Act) 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. Where the council judges that the person may benefit from such types of support, it should take steps to support the person to access those services. The council may ‘pause’ the assessment process to allow time for the benefits of such activities to be realised, so that the final assessment of need (and determination of eligibility) is based on the remaining needs which have not been met through such interventions.

Charging

11. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
12. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.

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 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.

What happened

14. This chronology provides an overview of key events in this case and does not detail everything that happened.
15. Ms C has eligible care and support needs. The Council historically provided Ms C with a care package of 10 hours of week via a care agency. Ms C ended this care package in May 2020.
16. Ms C approached the Council again in late 2021 for an assessment for direct payments. She said she was paying for her own care from borrowed monies and benefits. She also said her niece provided her with overnight care. She said she wanted a direct payments package to feel independent and empowered to manage her own care and support.
17. The Council decided to complete a reassessment of Ms C’s needs. A social worker visited Ms C to get her views in March 2022. She also spoke to Ms C’s personal assistant to get a further understanding of Ms C’s needs.
18. The social worker completed the reassessment. She noted a care package for 24 hours a day via direct payments was suitable for Ms C. Ms C signed a direct payments agreement.
19. Senior managers at the Council reviewed the social worker’s reassessment notes. They decided the social worker needed to get further information about Ms C’s needs before approving the proposed care package.
20. The social worker visited Ms C at her house at the end of July. Ms C explained her niece had moved out and so her children were providing informal night care. The social worker agreed to contact all professionals involved with Ms C.
21. The social worker contacted Ms C’s GP and the district nurse. The district nurse said the team completed routine catheter changes and there had been no increase in call outs during the night.
22. The social worker updated the reassessment in early September. She noted Ms C’s needs were unpredictable at night due to her nerve pain and continence/catheter care.
23. The social worker spoke to Ms C’s GP in mid-September. The GP said there was no evidence to support the need for constant observation.
24. The social worker reviewed the further information. She decided a trial care package of double handed care four times a day for six weeks from a care agency would determine Ms C’s level of need. The social worker visited Ms C and discussed the care package. She also explained Ms C would need to have a financial assessment, and care was chargeable at the point of it starting. Ms C said she did not agree with having an assessment, and she did not think she had to pay for her care. She also said she was not happy with the amount of care offered. She said she wanted some time to think.
25. Ms C emailed the social worker and said she did not want to proceed with the proposed care package. She said it was not enough support and it would not meet her needs during the night. The Council sent Ms C a letter and asked her to engage with its proposed care package.
26. Mrs B is Ms C’s solicitor. She complained to the Council on Ms C’s behalf in late-October. She said the Council’s proposed care package did not meet Ms C’s needs.
27. The Council wrote to Ms C at the end of November. It said she would need to complete a financial assessment so it could determine what her financial contribution would be towards her care.
28. Mrs B wrote to the Council in June 2023. She said it failed to respond to her letter from late-October. She explained she had been waiting for medical and social care records to finalise the complaint. She complained the Council refused to offer Ms C a direct payments package because Ms C did not disclose her finances. She said she this was incorrect, and Ms C had fully complied with the disclosure of her finances. She also said the Council’s proposed care package did not take account of Ms C’s nighttime needs.
29. The Council issued its final response to the complaint in October. It said it completed an assessment of Ms C's needs and offered a trial care package via a care agency. It said it did not offer direct payments as Ms C refused to undertake a financial assessment. It said it offered Ms C a care package that met her eligible care and support needs.

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Analysis

30. The Ombudsman does not investigate late complaints unless there are good reasons to. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mrs B refers to matters from March 2022, but she did not refer Ms C’s complaint to us until December 2023. Mrs B explained the Council did not respond to the complaint from October 2022, and it delayed addressing the further complaint from June 2023. She also says she had to get further documents from the Council to formulate the second complaint which took time. I consider these are good reasons why Mrs B did not refer the complaint to us sooner, and therefore I have exercised direction to investigate matters from March 2022.
31. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with the decision made. In Ms C’s case, the Council initially decided 24-hour care was appropriate for her. However, after getting further information from professionals, it reviewed the matter further and decided a trial care package of double handed care four times a day for six weeks from a care agency was a suitable way forward. The Council was clear this was a trial, and it would be reviewed after six weeks to determine whether Ms C had increased needs which required a higher level of care. That was a decision the Council was entitled to take in light of the information it received. I do not find fault.
32. I understand Ms C feels the Council’s proposed care package does not meet her nighttime needs. However, the Council contacted the professionals involved in her care and did not find any evidence to suggest Ms C needed constant observations or there had been an increase in call outs during the night. The Council therefore decided to offer a trial package, and if it was evident during the trial Ms C had further needs not covered by the package, the matter could be reviewed further. I find no fault in the Council’s decision making. It is open to Ms C to return to the Council if she wishes to proceed with its offer.
33. The Council’s proposal was for the trial care package to be delivered via a care agency. Ms C’s preference is for a direct payments package so she can choose her own carers. She said during the social worker’s visit at her house she was not happy with the care offered. She also said she did not want to engage in another financial assessment as she did not consider she should pay towards her care. The Council has explained Ms C would need to engage in a financial assessment so it can determine her client contribution towards a direct payments package. This is in line with the statutory guidance. There is no evidence Ms C has engaged in a up to date financial assessment, as she disagrees with the amount of care offered. Therefore, the Council has been unable to proceed with direct payments or a care package via a care agency.

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Final decision

34. I have completed my investigation. The Council was not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman