Summary: Mr and Mrs X complained about the Council’s management of their direct payments, delays in completing care plans and a carer’s assessment and poor record keeping. We found fault by the Council in its management of Mr X and Mrs X’s direct payments and delays in completing care plans and a carers assessment. The Council agreed to our recommendations to remedy the injustice caused to Mr and Mrs X.

The complaint

1. Mr and Mrs X complained about the Council’s management of their direct payments, delays in completing Care Plans and a Carers Assessment and poor recording keeping. They complained the Council:

• set direct payments at a fixed amount and does not consider individual circumstances.
• is overly restrictive about what direct payments can be used for.
• has taken too long to decide their Care Plans.
• failed to fully document their care needs when completing assessment documents.
• failed to complete a Carers Assessment for Mrs X.
• did not provide Mrs X with a copy of a signed Direct Payment Agreement.

2. Mr and Mrs X say the Council’s actions mean they have been unable to utilise their direct payments which has prevented them from achieving their care outcomes. It has also caused them stress and anxiety which has affected their health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
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(1), as amended)

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What I have and have not investigated

7. I have investigated Mr and Mrs X’s complaint from October 2023 onwards. I have not investigated matters which occurred prior to this date because of the restriction set out in paragraph 3.

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How I considered this complaint

8. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
9. Mr and Mrs 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

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. 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.
11. 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.

Carer’s Assessment

12. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
13. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Carer’s Budget and Respite

14. The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. Part of the planning process should be to agree how the carer will use the personal budget to meet their needs. (Care and Support Statutory Guidance 2014)

Care Plan

15. 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.

Reviews

16. 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.

Direct Payments

17. 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.
18. 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.
19. 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.
20. 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)

The Care and Support Statutory Guidance

21. Care and support Guidance says:
1. 12:25: The amount of the direct payment must be an amount which is sufficient to meet the needs the local authority has a duty or power to meet.
2. 10:27: When determining how to meet needs the Council may take into account the reasonable consideration of its own finances, budgetary position and public law duties. It must ensure it has enough funding to meet the needs of the entire local population. The Council may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual when deciding how an individual’s needs should be met. However, it should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes as doing so would not deliver an approach that is person-centred. The Council may make decisions on a case-by-case basis weighing up the total costs of the different options of meeting needs to choose the option which delivers the desired outcome for the best value.
3. 12.35 The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.

What happened

22. What follows is a summary of the key events from March 2023 onwards. It does not show everything that happened.
23. Mr X has health conditions which require support. Mrs X is his carer.
24. In March 2023 the Council assessed Mr X’s needs. It found he needed 2 hours of support daily, comprising of 1 hour each morning and 1 hour in the evening.
25. Also in March the Council carried out a financial assessment for Mr X.
26. While Mr and Mrs X waited for the Council to complete the financial assessment, they used their own funds to put in place 9 hours of care per week for Mr X. Mrs X received 6 hours of carer support per week funded by an existing Carers Direct Payment.
27. In May the Council completed its financial assessment, and it put in place direct payments. The hourly direct payment rate at this time was £13.04 per hour. It provided Mr X with backdated funds from the date it assessed his needs and so, a surplus accrued on the direct payment account.
28. Mr and Mrs X used the direct payment to employ a Personal Assistant (PA) to meet Mr X’s assessed needs. The Council told Mrs X she could use her Carers Direct Payment to fund a sitting service and for support with domestic and garden tasks.
29. Also in May the Council completed a follow up review with Mr and Mrs X to ensure the support was meeting their needs. No concerns were raised by Mr and Mrs X although they did say the arrangements had not been in place long enough to know if they would be beneficial. It was agreed their needs would be assessed annually.
30. In October 2023 the Council carried out a review of Mr and Mrs X’s direct payments. Mrs X explained the direct payment hourly rate was not enough to meet the cost of Mr X’s PA. Mrs X asked their social worker if therefore she could use the direct payment underspend to make up the difference between its hourly rate and the rate charged by their PA. Mrs X stated the social worker verbally agreed she could do so but went on long term sick leave before formally confirming this.
31. In August 2024 Mrs X told the Council that Mr X’s PA had left and she was having problems recruiting a replacement at the Council’s hourly rate. The Council told Mrs X the Council could help them source a new PA using an agency. Mrs X declined the offer as sourcing a PA from an agency had not previously worked for them.
32. Mrs X also told the Council about changes to Mr X’s health conditions. The Council asked Mrs X if she would like Mr X’s needs to be reassessed now or whether she would prefer to wait until his annual review, which was due soon. Mrs X said she would wait for his annual review.
33. In October the Council visited Mr X and Mrs X to complete the annual review of Mr X’s Needs Assessment and the annual review of Mrs X’s Carers Assessment. At the meeting Mrs X said:
• she would like additional hours of support to help her with domestic tasks like laundry as her health meant she was struggling with these tasks.
• she would like to use the siting service in blocks of time rather than weekly to help facilitate visiting family and possibly starting a business from home. She told the Council she would likely be unable to utilise her hours for paying for a sitter as Mr X did not want people in their home sitting with him, and so this would add to the surplus. Mrs X stated the Council told she could not use the hours in any other way.
• they have been without a PA for periods due to their previous PA retiring and recruiting a new PA. Periods of illness and their previous PA going holiday have all added to the surplus of funds in their direct payment account.
• she used the direct payment to buy Mr X a cushion to meet his medical needs.
• she requested an uplift in the hourly rate paid to their gardener. The Council refused the request.
• she had a verbal agreement with the previous social worker to use the surplus in direct payments to pay the difference between the Council’s hourly direct payment rate and their PA’s hourly rate. She has therefore been operating the account on this basis.
34. At the meeting Mrs X asked for the following:
• to keep their direct payment underspend for emergencies and contingency planning.
• the hourly direct payment amount to be increased to £16 per hour and for this to be backdated to April 2024
• to receive an additional hour and half per week domestic carer support; and
• to increase the hourly rate paid for the gardener to £20.00.

Mrs X’s social worker said she would discuss her requests with managers.

35. The Council replied to Mrs X’s request later that month. It said:
• the Council’s current direct payment rate is £14.32. It said this amount was more than the minimum wage of £11.44. While some agencies may charge £18 per hour this does not mean the worker gets this amount, the worker will get the minimum wage and the rest is for the agency’s overheads.
• if Mrs X can provide evidence of the difficulties, she experienced in recruiting a PA the Council will consider if this provides grounds to alter its view on the hourly rate, however it cannot guarantee this will change its decision.
• it will reassess Mr X’s needs to take into consideration Mrs X’s request for additional support for domestic tasks.
• Mrs X can use her sitting hours either weekly or by pooling them. Mrs X can discuss how best to use the sitting service hours with her PA.
• the Council cannot agree to allow Mrs X to use the direct payment underspend that has accrued to make up the £1.65 difference per hour between its direct payment hourly rate and the amount they are paying their PA. It will be recovering the direct payment underspend that has accrued.
36. Mrs X was unhappy with the Council’s position and complained. She complained about:
• the Council’s decision not to increase the hourly direct payment rate to meet the cost of employing a suitable PA for their needs. Mrs X explained the Council’s position is contrary to the guidance on this matter. She also stated that case examples within the guidance show individuals can be reimbursed for the time spent administering direct payments.
• the Council’s decision to clawback the direct payment underspend.
37. The Council replied. It said:
• it is responsible for setting an appropriate rate for a PA paid through direct payments. The rate must cover national minimum wage and associated employment costs such as national insurance. It reviews the direct payments annually. Mr X’s direct payments have been made in accordance with its procedures and so it did not uphold this part of Mrs X’s complaint.
• after considering Mrs X’s complaint it recognises that it needs to review its direct payment processes especially when there are difficulties employing a PA.
• in recognition of the above it will allow her to continue using the direct payment underspend to top-up the hourly rate paid to their PA until it has completed the review of its processes.
• invoices for Mr X’s care were submitted in October 2024 and this triggered monitoring of the direct payments made to him. It identified an underspend of direct payment funds and it is entitled to clawback any remaining surplus.
38. Mrs X remained unhappy and complained to the Ombudsman.
39. We made enquiries of the Council. It told us:
• it is still reviewing its processes for direct payments.
• Mrs X has received carers assessments since 2017 and received continuous carers services since then. Between 2017 and July 2019 Mrs X received carers services via a local charity. The Council took the service back in house in July 2019. Annual reviews have taken place since carer services have been in place.
• Mrs X received a carers assessment in October 2024 following which the sitting service remained in place. However in February 2025 offered to provide a lump sum payment to Mr X equivalent to his entitlement to a 6 weeks’ carer break in a care home. It said Mrs X could use the payment to pay for PA hours when she was unable to carry out her carer role. Any unused hours would be recouped. (Mrs X stated she reluctantly accepted the offer on a temporary basis while her complaint was considered. She stated the offer did not provide a solution to achieve a carer break).
• support plans have been in place for Mr X since 2023. Following the October 2024 reassessment Mrs X has asked for amendments which have been incorporated but caused some delay to the support plans being updated.
• it will not reword the information on a needs assessment when the information remains accurate.

Finding

40. The Council’s reply to Mrs X’s complaint said it pays an hourly direct payment of £14.32 for PAs. It said it is paying this amount to Mr and Mrs X and so it did not uphold her complaint. It is for the Council to decide and set the hourly direct payment amount it will normally pay. However as explained in the Care and Support Guidance the Council should not set fixed upper limits and should consider the circumstances of each individual case when deciding the hourly rate it will pay.
41. Neither the Council’s complaint reply or care records for Mr and Mrs X demonstrate the Council had regard to their specific circumstances when deciding if its hourly rate was sufficient for them to source a PA to meet their needs. This is fault which causes uncertainty about the whether the hourly direct payment made to Mr and Mrs X is sufficient to meet their needs. This is injustice.
42. The Council’s reply to Mr and Mrs X’s complaint recognised its processes for considering the hourly rate for direct payments needed to be reviewed. It is currently reviewing its procedures. I am please it is doing so. However I note the review has been ongoing since the start of the year. While the review is ongoing Mr and Mrs X remain uncertain about whether they will receive payments to cover the cost of the PA they currently employ. This adds to the injustice caused to them by the fault identified in paragraph 41.
43. Mrs X also complained the Council has been too rigid in what it will allow her to spend direct payments on, and it has not followed the Care and Support Guidance which says it should consider all the costs associated with meeting a person’s eligible needs. I have not seen evidence demonstrating the Council considered and assessed the expenses Mrs X asked to be covered by direct payments nor have I seen any clear explanations why her requests have been refused. This is fault. As a result Mr and Mrs X have been caused uncertainty about whether the Council have properly considered all the costs associated with meeting their eligible needs. This is injustice.
44. Mr and Mrs X have an underspend on their direct payment account. The Council told Mrs X it would clawback the underspend, less the six-week contingency which it leaves in accounts for emergency situations. I have seen no evidence the Council considered the reasons why the underspend occurred. I would expect the Council to have established why it had accrued and to ascertain if this was due to any changes to their eligible needs or problems in meeting their assessed needs. The Council’s failure to establish the reasons for the underspend is fault. As a result there is uncertainty that it its decision to request the underspend be returned was made correctly.
45. Furthermore I understand the overspend accrued from May 2023 onwards. I am concerned the underspend was not identified during the six-month direct payment review or at the annual review in November 2023. Failure to identify the underspend earlier is fault by the Council. This fault means Mr and Mrs X were denied the opportunity to discuss the underspend and to take appropriate action. This is injustice.
46. The Council has temporarily agreed to allow Mr and Mrs X to use the underspend to make up the difference between its hourly direct payment rate and the amount charged by their PA. This means Mr and Mrs X can still benefit from the direct payment underspend and so this goes someway to addressing the injustice caused to them. However I recognise this arrangement is only in place until the Council completes the review of its direct payment processes and reconsiders their case.
47. Mrs X raised concerns the Council did not reword the assessments completed for her and Mr X. The Council says it will not reword assessment information unless there has been a change in the person’s needs. I do not consider this approach amounts to fault.
48. Mrs X complained her carers assessment in 2023 was not formally completed. As part of our enquiries we asked the Council for a copy of the carers assessments completed for Mrs X. The Council did not provide a completed assessment for 2023 and so, on this basis, I cannot conclude it was completed. This is fault. Without a completed assessment it is unclear what Mrs X’s needs were and how these were met. This is injustice.

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Agreed Action

49. To remedy the injustice caused to Mr and Mrs X because of the fault I have found the Council should, within one month of my final decision:
• Apologise to Mr and Mrs X for the identified fault. 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 I have recommended in my findings.
• Pay Mr and Mrs X £500 in recognition of the uncertainty and avoidable time and trouble caused to them in pursuing this matter.
• Agree to allow Mr and Mrs X to keep the direct payment underspend which has accrued. It will meet with them to agree what the overspend can be used on and to consider Mr X’s preferences about his care when doing so. It will agree give Mr and Mrs X two and half years from the date of my final decision, to spend the overspend. This is the same amount of time as it has taken for the overspend to accrue.
50. Within three months of my final decision the Council should:
• complete the review of its direct payment procedures and ensure the new procedures comply with the relevant law and statutory guidance.
• provide training on its new direct payment process to all relevant staff.
• reassess Mr and Mrs X case in line with its new direct payment procedures. It should notify Mr and Mrs X of the outcome in writing and provide a clear explanation for its decisions.

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Decision

51. I find fault causing injustice. The Council has agreed actions to remedy the injsutice caused.

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Investigator's decision on behalf of the Ombudsman