Summary: Mrs X complains the Council is not giving her adult son, Mr Y, sufficient support to meet his needs. She says direct payments from the Council do not cover the cost of respite care and the Council will not allow her flexibility in how she spends the payments. She says she is struggling to care for Mr Y as he gets older and wants the Council to consider individual requests to spend the money. We have found fault in the actions of the Council for failing to keep adequate records and failing to complete an investigation as promised. The Council has offered to cover the shortfall in the respite care payments in September and complete a further review. We agree these are the most suitable practical remedies for the injustice and additionally recommend the Council apologises to Mrs X, makes service improvements, and pays her a financial remedy for the distress caused.

The complaint

1. Mrs X complains the Council is not giving her adult son, Mr Y, sufficient support to meet his needs. She says direct payments from the Council do not cover the cost of respite care and the Council will not allow her flexibility in how she spends the payments.
2. Mrs X says she is struggling to care for Mr Y as he gets older and wants the Council to consider individual requests to spend the money.

Back to top

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)

Back to top

How I considered this complaint

5. I have considered the information provided by Mrs X and the Council. I have discussed the complaint with Mrs X over the telephone.
6. Both Mrs X and the Council have provided comments on my draft decision which have been considered before a final decision was issued.

Back to top

What I found

7. 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.
8. 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.
9. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
10. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
11. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

What happened

12. Mr Y has eligible care needs and a plan of support from the Council which says his needs will be met through direct payments.
13. Mrs X complained to the Council in January 2024 and said she was unhappy with the level of service and assessment of Y’s needs. Mrs X said she was not able to spend the direct payments allocated to her son in a way that allowed him to attend the respite care she would like him to. Mrs X also told the Council she was unhappy she had not been able to contact the direct payments team and when she eventually got through her calls were not returned.
14. The Council responded in February 2024 and said it had asked the Direct Payment Team to look into Mrs X’s concerns and reply to her. It also apologised for failing to act on Mrs X’s request to speak to a manager.
15. The Council went on to explain it would pay a £109 maximum for any 24-hour period and any shortfall needed to be covered by either herself or Mr Y. The Council said Mrs X or Mr Y would need to pay any outstanding balance for respite care already received by Mr Y and that any monies left in the direct payment account could not be used to pay for the shortfall.
16. The Council also said it would complete a fresh review of Mr Y’s needs.
17. The Council completed a review of Mr Y’s needs in March 2024 and increased the hours of support Mr Y received and added an extra day session for Mr Y to attend. I understand Mrs X has had some recent health problems which the Council took into account in the review which took place.
18. Following the complaint being brought to the Ombudsman the Council reviewed Mrs X’s complaint further. In response to our enquiries, the Council said it had not been able to locate some of the records relating to Mrs X discussing her concerns with the Direct Payment Team. It also accepted it could not find any evidence the Direct Payment Team’s investigation promised in the complaint response had been completed.
19. The Council said it would fund the shortfall of payments for Mr Y’s respite care in September which amounted to £314. It also said it would complete a fresh review of both Mrs X and Mr Y’s needs.

Analysis

20. As part of the complaint process in its response in February 2024, the Council apologised for Mrs X failing to receive a call back from a manager when she requested it. The Council should have returned Mrs X’s call when it was requested and is fault it did not do so. Mrs X would have been caused frustration that the call was not returned. However, the Council has apologised for this which is an appropriate way to resolve the injustice.
21. The Council also said in its February 2024 complaint response it would ask the Direct Payments Team to look into Mrs X’s concerns and reply to her. This did not happen which is fault and would have caused Mrs X frustration and upset.
22. The Council identified several areas where records were unavailable or where it could not find any evidence of agreed actions taking place. As the Council has not been able to evidence it carried out the investigation, it is unlikely the investigation took place. This was further fault by the Council causing Mrs X distress and uncertainty.
23. The Council suggested a remedy for this as explained in paragraph 19.
24. In my view, although this remedy does offer a practical solution to the complaint Mrs X has made, it does not go far enough to acknowledge the distress caused to Mrs X. For this reason, I am recommending a remedy to Mrs X that addresses the personal injustice caused by the Council’s maladministration.

Back to top

Agreed action

25. Within six weeks of a final decision the Council should:

• Pay the shortfall of £314 for Mr Y’s respite care in September as offered.
• Complete the review of Mr Y and Mrs X’s needs as offered.
• Write to Mrs X to apologise for the faults identified and the distress caused.
• Pay Mrs X £250 to recognize the distress caused to her.
• Write to staff to remind them of the importance of keeping accurate records.

26. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

27. I have found fault in the actions of the Council for failing to keep adequate records and failing to complete an investigation as promised.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman