Summary: Mr X complained about the Council’s decision to end direct payments to his relative Mr Z. There was no fault in the way the Council reached its decision. There was fault in its communication with Mr Z and in its failure to ensure there was a proper coordinated handover of care. The Council has agreed to apologise and make a payment to Mr Z to acknowledge the uncertainty and distress this caused him. The Council also failed to properly explore Mr Z’s request for a day centre and Mr and Mrs X’s request for respite. It has agreed to apologise to Mr and Mrs X for the uncertainty caused, review Mr Z’s care needs assessment and carry out new carer’s assessments of Mr and Mrs X.

The complaint

1. Mr X complained the Council:
1. Failed to complete his relative Mr Z’s, annual reviews or support continuing health care biennial reviews.
2. Did not follow the correct procedure in ending the direct payment arrangement and in transferring to the new care provider.
3. Reduced Mr Z’s care package arbitrarily without consultation and failed to provide the new care provider with appropriate information such as Mr Z’s current needs assessment, care plan and risk assessments.
4. Failed to implement the statutory national minimum wage uplift to the direct payment account.
2. Mr X says this caused him and Mr Z significant distress and frustration and left Mr Z without adequate support to meet his care needs.

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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. 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. 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. 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

7. I have investigated what happened since October 2023, just over 12 months before Mr X complained to us, when a social worker completed a needs assessment for Mr Z. I have not investigated the complaint at 1a). Mr X was aware of delays in the review of Mr Z’s care and support plan between 2020 and 2023. It was open to him to complain to the Council and then to us at that time.
8. Mr X also complained about the Council’s failure to pay the national minimum wage uplift between 2020 and 2024. Mr X manages the direct payment and it was open to him to complain to us about what happened between 2020 and 2023 at the time. In addition, the Council has since made a payment in relation to the money owed for 2020 to 2023. There are no good reasons for me to investigate this now. I have investigated the Council’s actions in relation to the 2023/24 national minimum wage uplift only.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. I gave Mr X and the Council the opportunity to comment on a draft of my decision. I considered any comments before making a final decision.

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What I found

The relevant law and guidance

Care Act assessments and care plans

11. 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. 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.
12. 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.
13. 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.

Personal budgets and direct payments

14. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. 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)

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. Where the person does not have the mental capacity to request a direct payment, an authorised person can do this for them. Direct payments enable people to arrange their own care and support to meet those needs.
17. Councils must be satisfied the person can manage the direct payment and the payment is being used to meet the person’s needs. The Care and Support Statutory Guidance sets out that councils must review the making of a direct payment within six months of making the first payment. Following this, it must review the direct payments no later than every 12 months, ideally aligning it with the review of the care and support plan. Direct payments should only be terminated as a last resort. If terminating a direct payment, the council must ensure there is no gap in the provision of care and support. Where a decision has been made to terminate a direct payment, the council should conduct a review of the care and support plan.

Background

18. Mr Z lives with Mr X and his wife, Mrs X, and family. He needs full support to meet his care and support needs, to support him with personal care, moving, toileting and eating and drinking. Mr Z is a wheelchair user and has a pump fitted to provide constant medication. Mr Z’s care is funded equally by the Council and NHS through continuing health care (CHC) funding which is funding where a person is assessed as having a primary health need.
19. Since 2020 Mr Z received direct payments for his care which were managed by Mr X. Mr X and Mrs X also provided care and support to Mr Z. Mr Z received a care package of 132 hours of support a week plus five overnight sleep ins per week and 24 nights of respite a year.
20. The Council wrote to Mr X in February and March 2022 and in September 2023 requesting bank statements back to December 2020 so it could reconcile the direct payments bank account.

What happened

21. The following is a summary of the main events relevant to this complaint.
22. In late October 2023, following several visits to Mr Z, a social worker completed a needs assessment. The assessment noted Mr Z attended college at least two days a week and wanted to start attending a day centre.
23. The social worker noted that:
• Mr X asked if the direct payments could be passed to a payroll company as he found managing the direct payments problematic.
• Mr X’s health had declined and so he was unable to provide as much support to Mr Z as he had previously.
• Mr Z had capacity to discuss his care needs and make decisions about his day to day life. However, he struggled to follow long complex conversations. They noted he presented as having autistic traits in his use of language and required a lot of time to feel comfortable with someone to be able to share his views.
• Mr Z received support from two personal assistants and it was important that he liked and trusted them. A third personal assistant was due to start work shortly.
24. Mr X completed a carer’s assessment in November 2023. This noted around 50% of the support was provided by paid carers with the rest provided by him and Mrs X. Mr X said he was no longer able to provide any personal care or manual handling. He said they needed sufficient care support and respite to recover mentally and physically.
25. The social worker closed the case in late November. They noted no change was required to the current care and support plan which included 132 hours of support, five overnight sleep ins a week and 24 nights of respite a year.
26. They noted an annual uplift to the direct payment for 2023/24 had yet to be applied due to ongoing issues with the case.
27. In late November 2023 the Council wrote to Mr X. It said it had sent him a letter in September 2023 requesting bank statements and other information. It said Mr X had raised issues about the Council not providing an annual national minimum wage uplift and it accepted it had failed to review the direct payments since 2020. It said it wanted to work with him to establish what was paid so that it could accurately address any shortfall. It said the provision of bank statements was one of the conditions of having direct payments. It said it understood Mr X had agreed to a managed account going forward.
28. Mr X responded in early December 2023. He said he would provide information, but he wanted to get the account reconciliation signed off by an accountant which would be paid from Mr Z’s direct payments. Mr X said there was a shortfall in direct payments for the 2023/24 year. Mr X said he was sued by a former employee in 2021 for a shortfall in wages and paid the settlement from Mr Z’s direct payments as an exceptional employment cost. He asked the Council to stop setting him deadlines.
29. The Council wrote to Mr X in early February 2024. It said it had requested bank statements in February and March 2022 and in September and November 2023. It said Mr X had not provided this information and so was in breach of the direct payment agreement. It gave Mr X 28 days notice of its decision to terminate the agreement. It said this decision superseded the agreement to move to a managed account. It asked for information regarding the accountant’s fee and the payment made to the former personal assistant when Mr X was sued. It said it wanted to consider Mr Z’s best interests and support arrangements, but it must ensure public money was spent reasonably. It said Mr X had provided information which suggested the direct payments were out of line with statutory requirements. It said if Mr X provided the evidence it would review the decision. In the meantime it was exploring and identifying a suitable care provider. It asked for the names of Mr Z’s personal assistants so it could explore the possibility of continuity with the new provider.
30. Mr X sent the Council a breakdown of what he believed was the shortfall in the direct payment account. I have seen no evidence he provided bank statements or wage slips to the Council.
31. Mr X wrote to the Council in early March 2024 to complain. He requested a review of the decision to terminate the direct payments. He requested information and the Council to confirm what clause of the direct payment agreement he was in breach of and why it had withdrawn the offer of a managed account. Mr X said there must be no disruption or gap in the services provided to Mr Z. He asked the Council to wait for the outcome of the CHC review before making any final decision.
32. In a further letter to the Council Mr X said Mr Z had no care plan funding or carer support from late March. He said he was happy to no longer manage the direct payments, but Mr Z needed an orderly transition to a new care provider with no disruption to his care. He said it would take around a month for a new care provider to complete its care needs and risk assessments. He asked the Council to stop and to discuss the way forward with Mr X.
33. The Council chose care provider B to support Mr Z. Care provider B tried to contact Mr X but Mr X reported they did not need a care provider. Following this the Council’s notes record it tried to call Mr and Mrs X three times. It then emailed Mr X to confirm the arrangements. Care provider B visited Mr Z in late March 2024 and following this produced a detailed account of Mr Z’s daily support requirements.
34. In late March care provider B provided the Council with a rough draft on its thoughts regarding the care package and hours of support required. Based on this the Council agreed to provide 245 hours of support per week. The Council sent Mr Z’s care and support plan and needs assessment to care provider B with a start date of late March 2024. The notes record the Council said it would continuously review the care package once it commenced. Care provider B agreed to employ Mr Z’s current personal assistants.
35. The Council, care provider B, Mr and Mrs X and the NHS met in April 2024 to review Mr Z’s care package funding. Mr Z contributed with the support of an advocate. Following this the NHS decided Mr Z’s care package should remain jointly funded by the NHS and Council.
36. The Council responded to Mr X’s complaint in mid April 2024. It said Mr X had failed to provide the necessary information it requested so it was unsustainable to maintain the direct payment without full oversight of spending. It said a managed account still required another individual to have oversight. Due to the concerns around a lack of relevant banking information and a former personal assistant taking legal action it did not feel this option would sufficiently manage the risks to Mr Z’s care package, or protect the rights of personal assistants employed by Mr X.
37. It said Mr Z should have the ability to make decisions regarding his care and treatment. It said it had tried to engage with Mr X to try and maintain the current situation but this had become unsustainable. So it was required to look at alternative care provision. It said care provider B did have some difficulty initially contacting Mr X. As Mr Z could not control access to the property or communicate independently via phone or in writing the team and care provider B were unable to get his thoughts and opinions prior to the visits of late March.
38. It said it was satisfied the team acted in a timely manner. It had appropriately sought alternative care arrangements and all information was passed over as required. It said care provider B agreed to employ the current personal assistant team so they could remain in place with new care workers introduced from April. It said Mr X refused access to care provider B in early April so it could not conclude the process of employing the current personal assistants. It asked Mr X to allow access. It said Mr X refused access as he considered the Council had reduced Mr Z’s care hours. It said in late March it agreed to a temporary increase to 245 hours a week with care provider B which would be formally reviewed once the situation was more settled. It said Mr X’s actions in refusing access had delayed the new care package being provided.
39. Regarding Mr X’s appeal against the decision to end direct payments, it said Mr X was required to ‘obtain, retain and produce to the Council upon request’ financial and employment information. He had not done this so it dismissed the appeal.
40. The Council reviewed Mr Z’s care and support needs in December 2024. This noted Mr Z had asked to attend a day centre twice a week and would need support from a care worker who could drive his motability vehicle to attend. It also noted the previous respite budget had stopped which prevented the family going away. Mr X was no longer able to physically support Mr Z but supported him with his administration and finances. Mrs X was struggling with supporting Mr Z due to her work and family commitments. She acted as the second carer overnight if Mr Z required support and was the only one able to drive Mr Z’s car at that time. The assessor recommended a carer’s assessment for Mr and Mrs X to ensure their needs were being met and to avoid care breakdown.
41. Mr Z’s December 2024 care and support plan noted Mr Z would like to attend the day centre. It recommended no changes to the care package. Mr X says they were not aware of this review or care and support plan.
42. In December 2024 Mr X complained to us.

Findings

Termination of direct payments

43. The Council has a responsibility to oversee direct payments to ensure an individual has sufficient funds to meet their needs in line with the care and support plan, and to ensure the payments are being managed as agreed. Mr X signed the direct payment agreement and so was responsible for managing the direct payments on behalf of Mr Z. The Council repeatedly requested information from Mr X so it could be satisfied Mr Z’s direct payments were appropriately spent. Mr X did not provide this information.
44. Mr X also told the Council he had been sued by a former personal assistant in 2021 and the Council was not previously aware of this. Having considered this information, the terms and conditions for managing direct payments, and its responsibilities to Mr Z and the public purse, the Council decided to end the direct payments and not to offer a managed account. There was no fault in the way the Council reached this decision.

Changes to care package and transition to care provider B

45. The Council gave 28 days notice to end the direct payment agreement which was in line with the contract. However, Mr Z received a significant package of care from personal assistants with whom he was very familiar. In ending the direct payments, I have seen no evidence the Council sought to speak directly with Mr Z to explain what was happening and why. Mr X was responsible for managing the direct payments on behalf of Mr Z but Mr Z was the person receiving the care and support. The records show Mr Z has capacity to make decisions about his day to day care needs. The Council said it would look to commission a care provider who would be willing to employ the personal assistants which was appropriate. But the poor communication with Mr Z was fault and caused him distress and uncertainty over whether he would lose his existing, established care team.
46. The Council was not at fault for commissioning a care provider to meet Mr Z’s needs when it decided to terminate the direct payment agreement. However in doing so it failed to give proper consideration to Mr Z’s complex needs, his need for familiarity of care workers and his right to be involved in the process. When commissioning the care package the Council gave care provider B a copy of Mr Z’s care and support plan. But given Mr Z already had an established team of personal assistants and given the significant amount of support he required, care provider B needed more information to enable it to support Mr Z effectively. The lack of proper coordinated arrangements for the move from direct payments to commissioned care added to Mr Z’s distress.
47. The Council sought to commission a care provider in line with Mr Z’s existing care and support plan which comprised 132 hours of support plus five overnight sleep ins and 24 nights of respite. Care provider B met with Mr Z before the care package started and provided its detailed view to the Council of how many hours of support Mr Z required to meet his needs. The Council agreed to fund 245 hours of support in the short term to ensure Mr Z’s received appropriate care and support to meet his needs. There was no fault in the hours of support the Council provided to meet Mr Z’s needs.
48. Mr X says Mr Z no longer receives funding to attend a day centre. Mr Z’s needs assessment from October 2023 and subsequent care and support plan did not include any funding for this. The assessment suggested Mr Z wanted to attend a day centre but the social worker at that time did not recommend any changes to the care and support plan. Mr Z’s needs assessment of December 2024 also reflected Mr Z’s wish to attend a day centre. I have seen no proper consideration of whether Mr Z needs this support and if it should be provided. This is fault which leaves uncertainty over whether Mr Z has missed out on this opportunity.
49. Mr Z’s direct payments in 2023 also contained funding for respite care. At that time Mr X indicated he could no longer support Mr Z in the way he had previously. However, Mrs X was, and still is, providing any additional support Mr Z requires as the second carer during the night time. The commissioned care package does not specifically provide or address any specific need for respite; this is not addressed in the needs assessment produced in December 2024 and there is no evidence the Council has completed an updated carer’s assessment to explore this further. This is fault and leaves uncertainty over whether Mr and Mrs X require any further support in their roles as Mr Z’s carers.

Annual uplift of direct payments

50. The Council was required to ensure Mr Z received sufficient budget to fund the care and support necessary to meet the needs identified in the assessment and set out in the support plan. The Council did not review or provide an uplift to Mr Z’s direct payments in 2023/24.
51. The social worker noted this and Mr X provided a breakdown of what he considered the shortfall to be. However, Mr X had not provided the Council with bank statements or pay slips so it was unable to reconcile the account and establish exactly what Mr Z’s personal assistants were paid and what was owed. The Council has requested this information so it can calculate the payment required. It is therefore not at fault for not paying the annual uplift. It is open to Mr X to provide the bank statements and pay slips for 2023/24 so the Council can calculate how much money it owes.

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Agreed Action

52. Within one month of the final decision the Council has agreed to:
1. Apologise to Mr X for the uncertainty caused by its failure to properly consider respite arrangements for Mr Z;
2. Apologise to Mr Z and pay him £500 to acknowledge the distress and uncertainty caused by the lack of direct communication with him when the Council moved his care from a direct payment to a commissioned care package.
3. Within two months of the final decision the Council has agreed to:
1. Review Mr Z’s needs assessment and properly explore with Mr Z the opportunity to attend a day centre. If the Council considers this is not necessary to meet Mr Z’s needs, it should explain so.
2. Undertake a carer’s assessment of Mr and Mrs X. If this identifies the need for respite support/payment, this should be backdated to December 2024.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman