Summary: Miss X complained the Council refused to pay for essential care and support family members gave to Miss Y between October 2023 and March 2024 when Miss Y’s care package from a care provider broke down. The Council was at fault for failing to clearly set out what information it needed to consider Miss X’s request for a backdated direct payment at the material time she raised it. This caused uncertainty and avoidable frustration. The Council was also at fault for delay responding to Miss X’s complaint. It agreed to apologise and provide a written decision on the backdated direct payment request.

The complaint

1. Miss X complained the Council refused to pay for essential care and support family members gave to Miss Y between October 2023 and March 2024 when Miss Y’s care package from a care provider broke down.
2. Miss X also complained about delays with the Council’s complaint response.
3. Miss X said this has affected the family financially and caused considerable distress.

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The Ombudsman’s role and powers

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. 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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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Miss X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Direct payments

The care and support statutory guidance

9. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs.
10. For direct payments to have the maximum impact, the processes involved in administering and monitoring the payment should incorporate the minimal elements to allow the local authority to fulfil its statutory responsibilities. These processes must not restrict choice or stifle innovation by requiring that the adult’s needs are met by a particular provider, and must not place undue burdens on people to provide information to the local authority. An effective monitoring process should also go beyond financial monitoring, and include aspects such as identifying wider risks and issues, for example non-payment of tax, and provision of employers’ liability insurance where this is appropriate.
11. It is expected that most requests to receive direct payments will occur during the care planning stage as this is when authorities must inform the person of the needs that could be met via direct payments. However, local authorities must consider requests for direct payments made at any time, and have clear and swift processes in place to respond to the requests.
12. The local authority must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan, and should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money.

What happened

13. I have summarised below some key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
14. Miss Y has care and support needs.
15. Miss Y had a direct payment from 19 November 2022 to 2 April 2023 which was managed by Miss X.
16. The Council then commissioned a supported living placement for Miss Y from 3 April 2023, meaning the direct payment ended.
17. A condition of Miss Y’s tenancy in supported living was that she must receive support from carers. The Council assigned Miss Y 105 hours of one-to-one support a week, or 15 hours a day. This was to support Miss Y with budgeting, independent living skills, household chores, shopping, attending health appointments, and accessing the community. Miss Y also had 24 hour on call support.
18. Unfortunately, after Miss Y moved into supported living she would not engage with the carers and refused support.
19. The Council held a review of Miss Y’s care plan in June 2023. It noted Miss Y struggled since moving to supported living and was refusing to let carers into her home or to support her. Miss Y said she needed time to get to know care staff. She agreed to daily contact via text message and to work on accepting support from carers three times a week face to face.
20. Miss Y had a tutor who supported her with English and Maths for 6 hours a week. The Council had increased tutor support by 6 hours a week as Miss Y’s Education, Health and Care (EHC) plan provision was not being met. The tutor used the extra 6 hours to support Miss Y with practical functioning skills, such as managing money, shopping, feeding her animals, putting clothes away and completing shopping lists. The tutor also helped Miss Y with cleaning and laundry.
21. Miss X asked the Council to make direct payments again so family members could give Miss Y support as she was not engaging with the care provider.
22. The Council wrote to Miss Y on 8 August 2023 reminding her the conditions of her tenancy agreement state the tenancy is linked to receiving support from carers. Ending carer support would result in Miss Y having to seek new accommodation as she would no longer meet the requirements to remain in supported living. The Council advised Miss Y to sign up for housing with the Council’s housing service, or look for new accommodation.
23. Miss X then registered Miss Y with the Council’s housing service, and the Council’s Social Care service provided a letter of support to housing.
24. Miss X emailed the Council on 10 August 2023. She said Miss Y could not engage with adults or carers in sheltered accommodation and wanted to move to her own Council property with support from family for 4 to 5 hours a day.
25. The Council discussed reducing Miss Y’s support with the care provider to 10 hours a week to try making it more appealing to her.
26. The Council held another care review in September 2023. Miss X attended the meeting on Miss Y’s behalf. Miss Y was not accepting care and carers had not seen her since August. Miss X agreed to support Miss Y to be reintroduced to care staff.
27. The Council wrote to Miss Y on 13 October 2023. It said her direct payment ended on 2 April 2023, but the last payment covered up to 22 April, resulting in an overpayment of £965.29 that needed repaying.
28. The Council reviewed Miss Y’s care plan again in October 2023. Attendees recognised Miss Y was not willing to engage with the care provider and was therefore not receiving support. Miss Y preferred support from family through a direct payment.
29. A Council manager agreed support from the care provider would end and the Council could offer Miss Y a direct payment of 5 hours a day. That was to replace the commissioned support and care from the provider. The notice period for the provider was unknown at the meeting, and the Council said the start of the direct payment therefore needed further discussion. The Council told Miss X it would not duplicate payments and the direct payment would not start until after care provider support ended. Care provider support was to continue to be available if needed.
30. The Council also agreed to cover Miss Y’s rent debt until she moved to new accommodation. She was on the housing register waiting for a move.
31. Miss Y’s social worker emailed Miss X on 24 October saying they would like to visit Miss Y to say hello and record improvements she is making through support from Miss X and Miss Y’s sister.
32. Miss X said Miss Y would not see the social worker. She asked them to send a list of questions.
33. The social worker said they were happy to meet Miss Y with Miss X there. There was no list of questions. They wanted to see how Miss Y had progressed since Miss X’s input as this would support the Council with the direct payment.
34. Miss X repeated that Miss Y would not see the social worker. She said her and Miss Y’s sister support Miss Y with her emotions, care for her pets, keep the house clean and tidy, and get her shopping.
35. At a further review in December 2023, the Council said it would continue Miss Y’s current package of care until 14 January 2024. It would then reduce it to 10 hours a day, or 70 hours a week. All support from the care provider was to stop from 8 March 2024.
36. The Council emailed Miss X on 14 December confirming it served notice on the care provider and there was a 90-day notice period. It said this meant it was still funding the care hours with the care provider. It asked if there were any workers from the care provider who Miss Y could engage with as this would be the most efficient use of public resources. It also said her tutor may help with some support. It said it could discuss this at a review.
37. The Council held a further care plan review in January 2024.
38. Attendees discussed that Miss Y did not need the hours of support necessary for supported living and could move to general needs housing. The Council recorded Miss Y could meet her washing and personal care needs. She could also manage cleaning and meet her nutritional needs, but wanted a direct payment when she moves to help her access the community and get a job in the future.
39. Miss X told the Council she would be seeking backdated direct payments as she and Miss Y’s sister had been helping Miss Y. She could not understand why some hours the Council would have paid to the care provider could not be paid to her in direct payments. The Council said it could not double fund.
40. After the meeting, the Council emailed Miss X asking for self-employment tax reference numbers, full names, copy of insurance, and number of hours support for each of Miss Y’s direct payment workers. It said once it received this, along with her request for backdated direct payments, it would submit it for consideration.
41. Miss X emailed the Council on 9 February. She gave her tax reference number but said insurance was not necessary. She said herself and Miss Y’s sister provided care. Miss Y’s sister did not yet have a tax reference number.
42. Miss X said she gave 135 hours of care between October 2023 and February 2024, and Miss Y’s sister gave 70 hours of care. She said she could provide a breakdown on request. Miss X also asked for a weekly direct payment for 20 hours of care going forward until Miss Y moves home.
43. A Council manager emailed Miss X on 21 March 2024. They did not dispute Miss Y needs support to become independent, but they were unclear what support Miss X and Miss Y’s sister gave for the 205 hours claimed. They asked Miss X to outline the tasks completed by herself and Miss Y’s sister as Miss X’s request for backdated hours could not be agreed until it was clear.
44. Miss X replied on 2 April attaching a document detailing the support given to Miss Y on 2 April 2024. This included general household jobs like tidying, washing, and taking out rubbish. Family members also did Miss Y’s shopping and walked her dog or cared for her cat. They also gave emotional support and socialisation.
45. Miss X asked the Council for prompt payment as the family gave support to Miss Y over five months ago when care from the care provider broke down, so the family had to intervene.
46. The Council manager responded on 23 April. The manager said, having considered the tasks Miss X described, they were concerned there is no progression for Miss Y and the support from family did not promote Miss Y’s independence or empower her. The manager agreed Miss Y needed support, but the Council needed measurable goals to make a direct payment. They said they were unclear how Miss X and Miss Y’s sister delivered support and what the plan was for promoting Miss Y’s independence and empowering her going forward. The manager also said they made clear in the review that the Council cannot double fund and would not consider a direct payment until support from the care provider ended.
47. The manager said the Council could make a one-off direct payment for 7 hours a week from 8 March 2024 to 30 April 2024. It would review this until Miss Y moves to a new home.
48. The new direct payment agreement was signed on 31 May 2024 with Miss X as Miss Y’s nominated person.
49. At Miss Y’s care plan review in June 2024 the Council recorded it received the direct payment agreement and would invoice Miss X as she is not holding a caring role for Miss Y. The Council noted it had been clear it could not double fund and could not consider a direct payment until support from the care provider stopped.
50. Miss X complained to the Council on 10 June 2024, asking it to pay for the period from 16 October 2023 to 8 March 2024. She said this resulted in loss of income for work carried out and this was not fair or ethical. She said evidence showed the Council were not paying for a service twice and were making a cost saving.
51. Miss X wanted the Council to make a direct payment for 261 hours of claimed care between 16 October 2023 and 8 March 2024.
52. The Council responded to Miss X’s complaint on 20 August 2024. It apologised for the time taken to respond, but said it needed a thorough investigation. It said:
• It commissioned the care provider to provide 15 hours of support a day. Miss Y did not want to engage, but it was there if she needed it.
• After a review on 11 January 2024, it assessed Miss Y no longer needed this high level of support. It reduced her care to 9 hours a day from 15 January 2024.
• Miss X did not engage so it was agreed for the support from the care provider to stop and support reduced to 7 hours a week from 8 March 2024 via a direct payment.
• Miss X’s claim for extra hours sent in April 2024 gave a breakdown of hours from October 2023 with reasons for the support. She also gave a breakdown of the hours as part of her complaint, but the two claims differ. The Council needed to understand the difference and clarify the hours claimed. It asked Miss X to send rotas, timesheets or other evidence as to the actual hours worked. It also asked for daily notes of the tasks undertaken.
• There was a need to work in an enabling way. Miss Y can complete some daily tasks and needing empowering to do this.
• It previously requested tax references and insurance documents and requested this again.
• There was an overpayment due back to the Council of £965.29 which was not repaid as Miss X said the funds were used. It asked her to clarify if the hours this payment was used for are included in the hours claimed as part of her complaint.
• On the further claim for an extra 168 hours from April 2024 to July 2024, the review held in June 2024 agreed a direct payment for 7 hours a week was enough to meet Miss Y’s needs. If her needs have changed, Miss X should discuss the need for another review.
• Once it has the requested information it will consider Miss X’s claims.
53. Miss X wrote to the Council on 4 October 2024 giving further information. She said she made an error in the table of hours sent in April where she missed a block of 7 hours for the week commencing 24 February 2024. She said the total hours claimed was 255. Miss X also gave Miss Y’s sister’s tax reference number and said family members do not need insurance.
54. The Council replied on 27 November 2024. It said:
• As outlined in its letter of 20 August 2024, the care provider was available to provide support if Miss Y needed it, and the Council was commissioning this support to meet her needs. It did not agree for Miss X to be paid more hours via a direct payment.
• Miss X sent the claim without any supporting information needed from the Council’s letter dated 20 August.
• So it could understand the hours worked and the reasons for this, it needed Miss X to provide rotas, timesheets or other evidence for the hours worked. It also asked for her employment contract and public liability insurance certificate.
• Miss X had not resolved the overpayment of £965.29, and it needed to understand how and when the funds were used so it needed to see rotas and timesheets for this period.
55. Miss X complained to the Council again on 17 December 2024 about delays making direct payments for support family gave Miss Y.
56. The Council responded on 18 February 2025. It said:
• As per its letters dated 20 August 2024 and 27 November 2024 it needs evidence family provided the hours of support Miss X requested payment for, in the form of timesheets, diary notes or other evidence.
• Miss X advised she was managing the direct payment until March 2024 and paying herself, which is against the direct payment policy as it is a conflict of interest. Nonetheless it asked her to provide information to support her claim.
• It agreed to a direct payment from 1 April 2024, managed by Miss X to pay carers employed to support Miss Y.
• Miss X was not left without support as the care provider was available, should she need it, until 8 March 2024.
• There was still an overpayment on the account of £965.29 and it needed to understand how this was used, or it needed to be refunded.
• Any delay making direct payments was a result of Miss X not providing the information requested.
57. The Council wrote to Miss X again on 16 April 2025. It said:
• It needs evidence family provided the hours Miss X requested payment for in the form of timesheets, diary notes or other evidence. It also said it advised managing the direct payment and paying herself is against the direct payment policy. It said it needs evidence before it can spend public money and for clarity on the reasons for the support being claimed.
• As the outcomes to be met by the direct payment were not agreed in advance and a commissioned service was in place until January 2024, it needs to understand exactly what the hours were used for and have supporting evidence of this.
• It said in Miss X’s conversation with the support worker on 29 November 2023 she did not discuss that family were supporting Miss Y and needed a direct payment. When Miss X requested a direct payment on 15 December 2023 the Council refused, and Miss X did not mention the support she had since claimed for. In the circumstances the Council said it needed evidence of the hours worked, Miss X’s self-employment status and public liability insurance.

My investigation

58. Miss X told me Miss Y contacted her in June 2023 after receiving a letter from the care provider saying she breached the tenancy agreement and must vacate supported living. Miss X said Miss Y gets overwhelmed by verbal interaction and was not engaging with carers. Carers were no longer going into Miss Y’s room, and the relationship had broken down.
59. Miss X said she and Miss Y’s sister were supporting Miss Y from June 2023.
60. They had meetings with the Council in July and September. The Council acknowledged care had broken down, so Miss Y asked the Council to pay for the support family gave.
61. Miss X told me the Council knew in October 2023 that she and Miss Y’s sister were providing support, and the care provider was being paid to do nothing. Miss X also told me the Council planned to pay her for this support via a one-off direct payment, not through a direct payment account.
62. Miss X said the Council would not be double funding, as it reduced the care from the care provider to 10 hours a day.
63. Miss X told me the Council did not specify what care the family should document or in what format, so there was no other evidence they could give. She also said the Council had accepted the format and type of contents she documented in her evidence table previously.
64. The Council said Miss Y’s supported living placement had a condition that it was linked to receiving care from the provider. She did not engage, but the Council wanted to make sure she had a property to move to and would not be made homeless, so it did not end the agreement with the care provider straight away. The notice period was three months, and support continued to be available during that time.
65. The Council confirmed it agreed to meet a shortfall in rent that was not covered by Miss Y’s housing benefit and to clear some arrears in October 2023, as it was recognised outstanding rent would impact Miss Y securing a property via the Council’s housing service.
66. The Council said Miss X requested a direct payment for family members to provide support as Miss Y was not engaging with the support provided. The Council requested further information on the support provided and clarity on employment of personal assistants.
67. Miss X provided a table of the support family members gave Miss Y as part of her complaint in July 2024. She then amended the hours claimed in October 2024.
68. The Council said it asked Miss X to provide more information on the support provided and evidence employment requirements were met. To date it has not received the requested information. It said Miss X is claiming as an authorised person but paying herself as a personal assistant despite the Council advising her that someone else needs to manage the direct payment on Miss Y’s behalf.
69. The Council said Miss X gave her unique taxpayer reference number in February 2025, but not for other family members, and the Council does not have clarity about whether the claim for a backdated direct payment is on a self-employed basis. The Council has therefore asked for more evidence which to date it has not received. Miss X has not provided any insurance details.

Analysis

70. The Council agreed for the care provider support to end in October 2023, acknowledging it had broken down. Before that point, the Council held regular reviews, Miss Y had said she needed time to get used to carers, and Miss X had agreed to help Miss Y re-engage with them. I therefore do not consider there was fault in the Council not ending the support sooner.
71. The Council did not serve notice to end the support until December 2023. The Council asked the care provider to hold Miss Y’s tenancy when support stopped. Unfortunately, the care provider declined. These discussions took from October/November until early December. While things could have been quicker, I do not consider this is a significant delay. The Council was trying to ensure Miss Y kept her home and did not become homeless.
72. Miss X sought a backdated direct payment from the Council at the January 2024 review meeting. That was for support she and Miss Y’s sister had been providing since October 2023. The Council told Miss X in the meeting that it could not double fund Miss Y’s care, and direct payments would not start until the care provider support ended. However, the Council also emailed Miss X after the meeting, asking for information about the direct payment workers, and stating it would consider a backdated payment request.
73. Miss X wanted a one-off direct payment for support family gave Miss Y up to that point.
74. I have not seen evidence the Council agreed to make the one-off direct payment. The Council was aware Miss X and Miss Y’s sister were giving support in October 2023. A social worker wanted to meet Miss Y to measure progress. This was to help the Council consider Miss X’s direct payment request. But I did not see any evidence suggesting the Council had agreed to fund the family’s support at that point. The evidence shows it was considering whether to agree a direct payment once the support agreement with the care provider ended.
75. Miss X told me the Council planned to pay for the family’s support during this interim period via a one-off direct payment, not through a direct payment account.
76. On review of the evidence, Miss X first raised the prospect of a backdated direct payment at the January 2024 review. While Council was aware in October 2023 of Miss X’s request for an ongoing direct payment to replace the care and support from the care provider, I did not see convincing evidence Miss X asked for backdated payments until January 2024.
77. When Miss X complained, the Council asked her for rotas, timesheets, or other evidence of the hours worked. It also asked for daily notes of the tasks undertaken and a contract of employment.
78. This was not information the Council asked Miss X to provide at the outset when it said it would consider her request for a backdated direct payment. It only asked for this information in response to Miss X’s complaint, more than five months after the support ended.
79. The later issues Miss X had over recording and justifying the support could have been avoided if the Council had been specific about what support it expected the family to give and how they should record this when it was first aware of the support in October 2023, and when it asked Miss X to provide information for the backdated payment in January 2024. That was fault. This caused Miss X uncertainty and avoidable frustration.
80. Miss X provided the Council general information about support tasks undertaken. She also clarified the number of hours support she was claiming and gave the Council tax reference numbers for herself and Miss Y’s sister. Miss X considers family members do not need insurance when giving support. Miss X told me she has no further evidence she can give.
81. The Council considers it has already clearly communicated its decision that it cannot pay for the hours Miss X claimed until it receives supporting information. I found the Council’s complaint responses repeatedly asked Miss X for more information before it could reach a decision. As above, this is not information it asked Miss X to provide at the outset, and Miss X considers there is no further information she can give.
82. In the circumstances, the Council should make a decision based on the available information.
83. I consider the Council has enough information to reach a decision on whether to fund some of the support Miss Y’s family gave. It knows the general tasks completed and support given, and the hours claimed. It also knows what Miss Y’s eligible support needs were. It can therefore decide whether it thinks this was suitable support to meet and of Miss Y’s identified care and support needs that were not already being met.
84. The Council said it cannot double fund for Miss Y’s support. The Council has discretion here to decide whether to make a one-off payment. It knew Miss Y’s support from the care provider had broken down and her needs may not have been met without family support.
85. The Council also said Miss X cannot manage the direct payment account and be paid to care for Miss Y. The Council’s policy allows this in exceptional circumstances, such as where it is essential to meet eligible needs. In addition, as this would be a one-off payment, no ongoing management is necessary. This decision is also at the Council’s discretion.
86. The Council should therefore make a decision based on the information Miss X has provided, and in the context of the fact it knew Miss Y’s current support arrangements had broken down. I do not say the Council should award a backdated payment, or in what amount, but it should now make a decision.
87. When Miss X complained to the Council in June 2024, the Council did not respond until August 2024. That was a delay of over two months. This is fault which caused Miss X frustration as she already felt the Council was withholding direct payments. The Council apologised for its delay, and I am satisfied it properly addressed Miss X’s complaint. The reason for the delay in deciding on the backdated direct payment was down to the Council needing further information. I consider the Council’s apology to be sufficient remedy for this injustice.
88. However, the Council should be mindful of the need to update complainants if its complaint response is likely to be delayed as it was in this case.

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Agreed Action

89. Within eight weeks of my final decision, the Council will:
• Apologise to Miss X for not clearly setting out what information it expected the family to give, and how they should record their support, at the outset when Miss X asked for a backdated payment.
• Make a decision on Miss X’s backdated direct payment request based on the information she has already supplied. The Council should provide Miss X with a written decision explaining its reasoning.

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Final Decision

90. I found the Council was at fault for failing to clearly set out what information it needed to consider Miss X’s request for a backdated direct payment at the material time she raised it. This caused uncertainty and avoidable frustration. The Council was also at fault for delay responding to Miss X’s complaint.

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Investigator's decision on behalf of the Ombudsman