Summary: Mr X complained that the Council wrongly stopped Mr T (suitable person) from managing his direct payment and it failed to tell him about its decision reasons. There was fault by the Council with its delays in completing Mr X’s care needs review assessment and his mental capacity act assessment. This caused distress, worry, uncertainty and frustration to Mr X. The Council will take action to remedy the injustice caused.

The complaint

1. Mr X complained the Council:
1. will not allow him to keep Mr T as a “suitable person” to manage his Direct Payment (DP)
2. initially lied and then refused to tell him the reasons why the Council decided he could not maintain Mr T as a “suitable person” for his DP
3. inappropriately asked him for a meeting on his own on 3 November 2023 without his personal assistant.
2. Mr X said his freedom to choose his preferred “suitable person” to manage his DP was taken from him. And as a result, the matter caused him anxiety, stress, worry about his DP and the fear of losing his personal assistant’s support. Mr X also said the matter affected his physical and mental health.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. I have investigated matters from August 2023 to August 2024. This covers the 12-month period from when Mr X made his complaint to the Ombudsman in August 2024.

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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

9. The Care Act 2014 states councils must assess any adult that appears to have needs for care and support. An adult’s needs arise from or are related to physical or mental impairment or illness; the adult cannot achieve two or more specified outcomes because of those needs, and there is likely to be a significant impact on the adult’s wellbeing.
10. Once a council has determined a person is eligible, it must set out the person’s needs and how the council will meet those needs in a Care and Support Plan. The council must meet those identified eligible needs which includes setting up a direct payment arrangement.
11. Direct payments (DP) are a funding choice in personal budgets which allows a person to meet some or all their eligible care and support needs.
12. After considering the suitability of the person requesting the DP against the appropriate conditions in the Care Act, the local authority must decide whether to provide a DP. Where accepted, the decision should be recorded in the care or support plan.
13. Local authorities should give people clear advice about their responsibilities when managing DPs.
14. Councils must be satisfied the person can manage the DP and should take “all reasonable steps” to provide help and support to people to manage the DP. Councils often have arrangements with other organizations to provide this service. This is called a DP managed account.
15. Where the person needing care and support lacks capacity to ask for a DP, an authorised person can request and manage the DP on their behalf. The authorised person is known as a ‘suitable person’.
16. Where it becomes clear the individual is failing to meet their obligations as an employer generally, the DP scheme should be reviewed and consideration given to whether alternative arrangements that result in the DP recipient no longer acting as the employer need to be made.
17. Reviews should, wherever reasonably possible, be agreed with the person and must involve the adult to whom the plan relates, any carer the adult has and any person the adult asks the authority to involve. The local authority should take all appropriate measures to ensure their involvement and the involvement of other people if appropriate.
18. Mental Capacity - A person aged 16 or over must be presumed to have capacity to make a decision unless it is established, they lack capacity. Where someone’s capacity is in doubt, councils must assess the person’s ability to make a decision. Councils must follow the law set out in the Mental Capacity Act 2005 to decide if individuals can make choices about their care and may need to carry out an assessment of capacity if there is doubt.
19. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. Capacity is decision specific and can vary over time.

The Council’s Direct Payments Policy

20. If a person lacks capacity, where possible, and within the appropriate legal framework, a ‘Suitable Person’ will be appointed to make the request for the direct payment and manage it on the person’s behalf.
21. The Suitable Person is wholly responsible for the management and administration of the direct payment. This includes ensuring any services are appropriate, meet the needs and outcomes of the person, and are value for money.
22. The Council will consider any support that a proposed Suitable Person may request to fulfil their responsibilities, and any suggested arrangements and costs associated with the provision of that support.
23. If the Council does not agree with the suggested arrangements, it will set out alternative ways to provide any support it deems necessary and appropriate.
24. If the Council is not satisfied that the level of requested support is appropriate, then it may decide that the proposed person cannot act as Suitable Person, and an alternative candidate will be sought.
25. If a person has capacity, they can manage their own direct payment but if the person needs support managing their direct payment, the following options are available:

• they can nominate a person to be jointly responsible in the support, management, and administration of their direct payment.
• if they cannot identify a nominated person, the council will work with them to identify a third-party provider to support them to administer the direct payment. This is known as a managed account.

26. Independent Lives - is a not-for-profit organisation with whom the Council have a contract to support adults services customers if they choose to receive a direct payment.
27. Before a DP can be made, the person, their nominated or Suitable Person, or organisation managing the DP, must sign the DP Agreement to confirm that they understand the possible uses and limits of the payment, the evidence requirements for spending, monitoring, and repayment, and that they must inform the Council of any change to their situation or needs. This is a legal agreement.
28. Failure to sign the Agreement will mean that the DP cannot be made.

Key events

29. Mr X has a learning disability, and he has some care needs. Mr X has a care and support plan with direct payments (DP) to meet his identified needs.
30. Mr X has had a personal assistant (Ms Y) and a ‘suitable person’ (Mr T) for several years. They support Mr X with his daily living and to manage his DP respectively. The Council appointed Mr T as Mr X’s DP suitable person when he was found to lack capacity to manage a DP after it completed a mental capacity act (MCA) assessment for Mr X.
31. Mr X’s DP was used to pay for the services provided to him by Ms Y and Mr T.
32. In November 2023, the Council conducted a home visit to review Mr X’s care and support needs and to review his capacity to consent to and manage a DP himself with appropriate support.
33. During the home visit, Mr X said the Council wanted to conduct the meeting with him privately in the absence of Ms Y and Mr T which made him uncomfortable. Mr X said he had to ask a friend who was at his house at the time of the meeting to support him if he struggled to understand what was discussed at the meeting. Mr X said the Council told him that Mr T could no longer manage his DP. Mr X said he maintained he wanted Mr T to continue to manage his DP. Mr X said when he insisted to know the Council’s decision rationale, he said the Council told him it was because Mr T was due to retire from the suitable person role.
34. The Council’s review meeting notes, and the MCA assessment outcome were dated March 2024 and April 2024 respectively.
35. From the review meeting notes, the Council found Mr X had the capacity to understand and consent to and manage his DP arrangements with the help of Independent Lives managed account and payroll services. As a result, the Council said Mr T’s role as a suitable person to manage Mr X’s DP would stop. The Council made a referral to Independent Lives.
36. On 18 April 2024, the Council told Mr X it had completed its review, and it informed him of the review outcomes. The Council told Mr X it had passed his case to the appropriate team to complete his care and support plan and to make arrangement for his DP which would be managed by Independent Lives. The Council told Mr X he was required to complete and sign a DP agreement, so he could start managing his DP with support from Independent Lives.
37. Between June and August, the Council chased Mr X to complete the new DP paperwork. The Council advised Independent Lives to put Mr X’s referral on hold because he had not completed the relevant DP paperwork.

Complaint

38. Mr X made a formal complaint to the Council about how it conducted the November 2023 review meeting. Mr X questioned why the Council wanted to conduct the review meeting with him privately. He questioned the Council’s decision that he could no longer have Mr T as his DP suitable person. Mr X also complained the Council initially lied to him that Mr T could not manage his DP anymore because he was retiring. Mr X maintained he wanted to keep Mr T as his DP suitable person, and he asked the Council to provide him with its reasons why Mr T could not continue to manage his DP
39. In its responses to Mr X’s complaint, the Council:
1. apologised to Mr X if its discussions and decision about his care need and his DP management caused him upset and distress.
2. explained its reasons for conducting the November 2023 review meeting.
3. acknowledge Mr X felt uncomfortable when the Council requested to have the review meeting privately with him. But the Council explained it was because it needed to discuss the roles of Ms Y and Mr T as part of the review meeting. So, it decided it would be better to have the discussion in their absence due to conflict of interests.
4. said it reviewed its arrangements with people who it commissioned to manage service users’ DPs which included Mr T. The Council said it had a contract with Independent Lives, so Mr T’s services were no longer required by the Council and due to compliance issues, which Mr T was aware of. Also, the Council said because Mr X was found to have the capacity to manage his DP with minimal help, it had offered Mr X support from Independent Lives to manage his DP.
5. said it was a positive step for Mr X, as it would help him become as independent as possible while getting the support offered by Independent Lives and Ms Y.
6. reiterated Mr T could no longer manage Mr X’s DP.
40. Mr X remained dissatisfied with the Council’s responses, and he made a complaint to the Ombudsman. Mr X said he had not been contacted by Independent Lives and confirmed his DP had not been affected.
41. In response to our enquiries, the Council:

• maintained it cannot offer a DP suitable person to Mr X because he has the capacity to manage his DP with appropriate support from Independent Lives.
• said Mr X’s support plan remains incomplete due to his non-engagement in the support planning process and because Mr X maintains he wants Mr T to manage his DP. The Council said it will continue to work with Mr X to go through the plan.
• confirmed Mr T had handed in his notice to end his role as a DP suitable person.

Analysis

42. There was no fault by the Council with its decision that Mr T was no longer suitable to manage Mr X’s DP. This is because the Council found Mr X had the capacity to understand/consent to and manage his DP arrangements with minimal support from Independent Lives. Therefore, a requirement for a ‘suitable person’ to manage Mr X’s DP was no longer required. This is in line with legislation and the Council’s DP policy.
43. Also, the Council reviewed the contracts it had with people it commissioned to manage service users’ DPs, and it found Mr T was no longer deemed suitable to manage Mr X’s DP anymore due to compliance issues.
44. While I acknowledge Mr T had managed Mr X’s DP as his ‘suitable person’ for several years, the above decisions made by the Council are decisions it is entitled to make. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to determine 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 how much a complainant disagrees with the decision. Therefore, I find no fault by the Council with how it reached its decision to stop Mr T from managing Mr X’s DP.
45. However, there was fault by the Council for its delays with completing Mr X’s November 2023 review process. It took the Council approximately four months to issue Mr X’s care needs reassessment report (November 2023 to March 2024) and approximately five months to issue the MCA outcome (November 2023 to April 2024). These were significant delays, and they were faults. This caused distress, worry, uncertainty and frustration to Mr X.
46. I find no fault by the Council when it asked to have the November 2023 review meeting with Mr X privately. This is because it is entitled to make that decision due to Ms Y and Mr T’s conflict of interests in the matters discussed during the meeting. Although, I note Mr X said it made him uncomfortable, I find his friend was present and supported him during the meeting which I consider would have mitigated how Mr X felt during the meeting.
47. Mr X said the Council initially lied and then refused to tell him the reasons why it decided he could no longer have Mr T manage his DP. I criticise the Council for telling Mr X during the review meeting that the reason Mr T could no longer manage his DP was because he was retiring, this information was incorrect. However, the Council subsequently apologised to Mr X and on several occasions provided Mr X with the reasons for its decision for stopping Mr T managing his DP. I consider this is a proportionate remedy in line with our guidance on remedies.

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Action

48. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mr X and make him a symbolic payment of £250 to acknowledge the injustice caused to him by the Council’s delays with completing his November 2023 review process and issuing the reports. The apology should be in accordance with our guidance, Making an effective apology
• by training or other means remind relevant staff of the importance of completing service users’ care needs reassessments and mental capacity act assessments in a timely manner.

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

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Decision

50. I find some faults by the Council causing injustice to Mr X. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman