Summary: The Council failed to meet some of Miss X’s eligible care needs, causing Miss X distress and frustration. The Council also delayed carrying out a review of Miss X’s needs, causing Miss X’s sister, Ms Y, uncertainty and frustration. The Council was entitled to suspend Miss X’s direct payments but has since failed to resolve the issues which led to the suspension. The Council should apologise to Miss X and Ms Y, make a payment to Miss X, and decide how it will meet her needs following a mental capacity assessment.

The complaint

1. Ms Y complained the Council failed to meet the assessed care needs of her sister, Miss X. She says the Council failed to pay the direct payments Miss X was entitled to and failed to update Miss X’s support plan. She says this has left Miss X with inadequate care and forced her to use her own money to fund care activities, causing her and Miss X distress and anxiety. She wants the Council to apologise, update Miss X’s care plan and pay her the correct direct payments.

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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. 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)
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

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. Part of Ms Y’s complaint is late because it concerns council actions that happened more than 12 months before she complained to us. I have decided to investigate events from June 2023. The Council delayed responding to Ms Y’s complaint which delayed her complaint to the Ombudsman.
7. I have not investigated events before June 2023. It was open to Ms Y to complain to us sooner about events before that date and I consider it was reasonable for her to have done so.

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How I considered this complaint

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

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What I found

The law

Care Act assessments and care plans

10. 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.
11. 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.
12. 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. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Personal budgets and direct payments

13. 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.
14. 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)

15. 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.
16. Councils must be satisfied the person can manage the direct payment and the payment is being used to meet the person’s needs. Direct payments must not be used to pay for care from a close family member living in the same household unless the council decides this is necessary. If necessary, councils can also decide to pay a close family member living in the same household to manage the payments on behalf of the direct payment holder. (Care and Support (Direct Payments) Regulations 2014).
17. The Crae 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. Miss X has eligible care needs. In 2020 Miss X’s support plan shows the Council agreed to 42 hours of direct payments to meet these needs. Ms Y, Miss X’s sister, managed the direct payments on Miss X’s behalf. The Council agreed to pay Ms Y some of these direct payments to provide Miss X with personal care. This was because Miss X refused to have non-family members assist her with personal care.
19. The Council’s records vary over the amount of direct payments it agreed to pay Ms Y. Miss X’s care assessment suggests the agreed amount was 12 hours, but other records show Ms Y started to receive 15 hours a week of direct payments. The Council agreed Ms Y should recruit an external care agency to provide the remaining hours of care for support with community activities.
20. In 2020 the Council suffered a cyber attack and lost access to many of its records.
21. Between 2020 and 2022 Ms Y and the Council remained in dialogue over Miss X’s reluctance to accept help from external carers. In early 2022 the Council suggested a new assessment. Its records say Ms Y did not respond to its attempts to carry out the assessment. In September 2022 Ms Y stopped corresponding with the Council.

What happened

22. In early 2023 the Council asked Ms Y for copies of bank statements to support her use of direct payments for Miss X. It said it had previously asked for copies and needed annotated copies to understand Ms Y’s use of the direct payments.
23. A case note in April 2023 confirmed the Council had been paying Ms Y 15 hours a week in direct payments to deliver Miss X’s personal care. It noted Ms Y believed the Council had agreed to pay more hours before it suffered a cyber-attack. The Council said its plan was to identify community activities for Miss X and a female led support worker who could support Miss X to engage in them.
24. In June 2023 the Council suspended Miss X’s direct payments. In October 2023 Ms Y asked the Council why it had suspended the payments. It said it was because she had not provided annotated bank statements so it could not be sure how she was spending Miss X’s direct payments. The Council proposed several meeting dates to go through the bank statements and reinstate the direct payments. Ms Y failed to attend a meeting with the Council.
25. In December 2023 Ms Y contacted the Council. She asked to speak to a manager about the situation. The Council gave Ms Y details of the relevant manager. It reiterated it needed annotated bank statements. It suggested a prepaid card for Ms Y to spend the direct payments. Ms Y said she wanted reimbursed for the direct payments and was not interested in a prepaid card until that happened.
26. A manager emailed Ms Y a few days later. They confirmed the Council had suspended the direct payments as Ms Y had not provided annotated statements. They said Ms Y was not using a dedicated bank account for the direct payments and a prepaid card would resolve this. They noted Ms Y had transferred some of the direct payments to herself, which was not allowed. The manager said they could not reinstate the direct payments until it knew how they were being spent. They urged Ms Y to agree to a prepaid card so it could reinstate the direct payments.
27. Ms Y responded to the Council in February 2024. She said it was impractical to provide annotated bank statements for the last few years. She said the lack of direct payments was impacting Miss X. In its reply the Council agreed to reinstate the direct payments and back date them to June 2023. It said it would carry out an urgent review of Miss X’s care and support needs within four weeks and complete the review within six months. It said it still needed to understand how Ms Y was spending the payments and proposed a meeting. It said if it was unable to complete the review, or Ms Y did not attend the meeting it would look to suspend the payments again.
28. Ms Y proposed new meeting dates to the Council in February 2024. The Council agreed. It is not clear if the meeting took place, but Miss X’s direct payments remained in place. In March 2024 Ms Y said the Council had still not carried out the review of Miss X’s care and support needs. The Council apologised and said this was due to a change in staffing. It allocated a new social worker who visited Miss X and began the review in May 2024.
29. In June 2024 the Council asked Ms Y for more information on how she had used Miss X’s direct payments from November 2023. It said it would take the period of suspension into account. In July 2024 the Council emailed Ms Y a summary of its May 2024 visit.
30. Ms Y complained to the Council in July 2024. She said the Council had failed to agree a support plan to meet Miss X’s needs and failed to pay the agreed 42 hours a week of direct payments since 2020.
31. The Council completed its care and support review in September 2024. It noted Miss X’s personal care needs were being met through the 15 hours of direct payments, but Miss X needed more support to meet her additional needs and engage in daily living activities. The review noted Miss X was often left alone during the day and was at risk of demotivation, loss of skills and boredom.
32. The Council proposed an additional 20 hours a week of direct payment hours, in addition to the existing 15 hours. This was to cover food shopping, toileting, meal supervision and support accessing the community. It sent Ms Y a copy of the review for comment.
33. In October 2024 the Council chased Miss X for the monitoring information it had asked for in June 2024. In December 2024 it told Ms Y it had not received any comments on its review and would now finalise Miss X’s support plan. It asked Ms Y whether she wanted to continue with direct payments or look at commissioned care. It said it would need to carry out a mental capacity assessment with Miss X to make any decision about direct payments and her family delivering her care.
34. The Council responded to Ms Y’s complaint in January 2025. It said the extra direct payment hours were reliant on Ms Y commissioning external carers and there was no evidence she had done this. It apologised for the delay responding to her complaint. Ms Y complained to the Ombudsman.
35. Since Ms Y’s complaint to the Ombudsman the Council has made several attempts to arrange a mental capacity assessment of Miss X without success.

My findings

Miss X’s care needs

36. The care and support plan in place for Miss X in June 2023 said the Council would meet Miss X’s eligible care needs through 42 hours of direct payments, covering her personal care needs and access to the community. The direct payments intended to fund access to the community were not in place, and the Council then suspended the remaining 15 hours for personal care. In the absence of direct payments, the Council should have considered other ways of meeting Miss X’s eligible care needs from June 2023. It failed to do this. It failed to either put a commissioned care package in place, satisfy itself Miss X’s needs were being met elsewhere or carry out a new assessment of Miss X to determine her needs. This was fault.
37. The 2024 care assessment of Miss X notes Miss X was often left alone during the day and not accessing the community. On balance I am satisfied Miss X did not receive this element of her care and support plan from June 2023. This caused Miss X distress and frustration as the Council failed to meet her eligible care needs.
38. On balance, I am satisfied Miss X’s family continued to meet Miss X’s personal care needs during this time. The Council has since reimbursed Ms Y for the personal care element of Miss X’s direct payments for this period. While the Council was at fault for failing to assure itself care was in place for Miss X, this did not cause Miss X an injustice.
39. In February 2024 the Council agreed to review Miss X’s care and support plan within four weeks. The Council failed to review the Plan within four weeks and Ms Y had to chase the Council for a response. The Council started the review in May 2024, a delay of two months. This was fault causing Ms Y uncertainty and frustration. Once the Council began the review, I am satisfied with the timescale it took to complete Miss X’s new care and support plan.
40. Miss X’s new care and support plan again identified that Miss X needed access to the community. This eligible care need remains unmet. The Council has neither resolved the issues around direct payments nor put in place other mechanisms to meet Miss X’s care needs. This was fault and continued to cause Miss X distress and uncertainty.

Miss X’s direct payments

41. The Council was entitled to suspend Miss X’s direct payments in June 2023. The regulations are clear that the Council must be satisfied how Ms Y is using the direct payments. Between June 2023 and February 2024, the Council repeatedly tried to engage with Ms Y and meet with her to resolve the situation. The Council was not at fault.
42. The Council has since reinstated 15 hours of direct payments to meet Miss X’s personal care needs. Its most recent care assessment supports that this element of Miss X’s care package is working well. However, the Council has still not satisfied itself over Ms Y’s use of the direct payments. Since September 2024 it has again allowed the situation to drift and failed to satisfy itself over the use of Miss X’s direct payments. This was fault. Ms Y continues to receive the direct payments meaning the fault has not caused Miss X an injustice. However, by not addressing the situation, the Council risks a repeat suspension of Miss X’s direct payments.

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Action

43. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X for failing to meet her care needs since June 2023 and Ms Y for the delay carrying out the 2024 care review. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. Pay Miss X £1000 to recognise the impact of failing to meet all her care needs since June 2023.
3. Arrange to carry out its planned mental capacity assessment of Miss X to determine her view on her direct payment arrangements.
4. Following the mental capacity assessment, decide how best to meet Miss X’s eligible care needs, considering a range of options including direct payments, a managed account or commissioned service. This should be completed within three months of the date of the final decision on this complaint.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing 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