Summary: The Council was at fault. It delayed reaching a decision and caused confusion on whether Mrs X could be paid as her adult son, Mr Y’s, personal assistant and if Mrs X’s husband, Mr X, could become Mr Y’s direct payment signatory. This caused Mr and Mrs X uncertainty and frustration. The Council will apologise and make a symbolic payment.

The complaint

1. Mr X complained on behalf of his wife (Mrs X) and his relative (Mr Y) about discrimination and prejudice relating to:
1. inaccurate Council advice and poor Council communication relating to a request for Mrs X to be paid Direct Payments to be her son, Mr Y’s, replacement Personal Assistant and about the care Mrs X provided to Mr Y;
2. delay following a request to review Mr Y’s care plan;
3. a request for a carer’s assessment; and
4. poor Council complaints handling and communication restrictions.
2. Mr X said it caused frustration with delay and they were no further forward with the requests.

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

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What I found

Relevant law and guidance

Assessment

8. 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.
9. A reassessment of needs can be requested at any time if an individual’s mental or physical health has deteriorated. The Care Act 2014 does not state a fixed timeframe for when a reassessment should be undertaken. We would expect the reassessment to be completed within a timescale proportionate to the complexity of the issues, and normally within around eight to twelve weeks from the request.

Direct payments

10. 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.
11. 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.
12. Government guidance states direct payments are 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 (Care and Support Statutory Guidance 2014, paragraph 12.35).
13. The 2009 Direct Payment Regulations excluded the payment from being used to pay for care from a close family member living in the same household, except where the council determined this to be necessary. While the Care and Support (Direct Payments) Regulations 2014 maintain this provision regarding paying a family member living in the same household for care, it provides a distinction between ‘care’ and ‘administration/management’ of the direct payment. This allows people to pay a close family member living in the same household to provide management and/or administrative support to the direct payment holder in cases where the council determines this to be necessary. This is intended to reflect the fact that in some cases, especially where there are multiple complex needs, the direct payment amount may be substantial. (Care and Support Statutory Guidance 2014, paragraph 12.36)
14. Government Statutory Care and Support guidance states councils will need to have in place agreement between all parties about what steps to take in case of a dispute regarding the management of the payment by a household family member. This will be especially relevant where the person providing administrative and management is also the nominated or authorised direct payment recipient. It would not be appropriate to allow this where there is a risk that the direct payment may be abused, or there are other sensitivities such as potential safeguarding issues. (paragraph 12.40)

Council’s Direct Payment guide

15. The Council’s Direct Payment (DP) guide (May 2024) provides Adult Social Care (ASC) professionals in Essex with a general overview of Direct Payments. It sets out how someone can receive a personal budget including:
• Direct Payment (DP) – a DP is when the Council give someone their personal budget directly to commission their own care and support independently. It gives the individual the most choice and control.
• Individual Service Fund (ISF) - an Individual Service Fund is when the Council give someone’s personal budget to an independent provider from their list.
• Council managed fund - a Council managed fund is when the Council manage someone’s personal budget on their behalf, by using a commissioned service. This gives the individual the least choice and control.
16. The Council’s guide sets out its policy on paying close family members living in the same household. It states the Regulations exclude the DP from being used to pay for care from a close family member living in the same household, except, where the council determined this to be necessary. The guide says it allows people to use part of their DP to pay a close family member to manage their direct payment and provide administrative support. It said it would not be appropriate to allow this if people were in a position of paying themselves.

Carer’s Assessment

17. 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.
18. 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)

Council Policy on managing repetitive, unreasonable and persistent behaviour

19. The Council has a policy on repetitive, unreasonable and persistent customer behaviour. It identifies the types of unreasonable and persistent behaviours and states if the behaviour persists it has the option to implement a temporary access restriction providing the individual with a temporary single point of contact within the Council. It said if introduced the individual would be notified in writing (email or letter) and include a review date.

What happened

Background

20. Mr Y has a brain injury, he has short-term memory loss and epilepsy which causes seizures, fatigue and difficulties processing new information. Mr Y lives in supported living accommodation. Mr Y’s care and support plan said from 2023 Mr Y had a 20-hour a week care package to help with accessing the community including accessing college and exercise to help maintain his physical health, mental health and emotional well-being. He also had 30 minute evening welfare checks every day all paid for by a direct payment (DP). Mr Y’s mother Mrs X was the signatory for Mr Y’s DP and has lasting power of attorney (LPA) for property and finance.
21. Mr Y’s DP agreement was signed by Mrs X in 2021 as his personal representative because Mr Y lacked capacity to understand the terms of the agreement. The DP agreement terms and conditions stated that the Council needed to be notified of a family member employed to provide paid support. It said a family member who lived in the same household could not be employed unless it was an emergency and if the family member was the only person who could provide support. It said the Council would need to agree before a family member was employed.

Late March 2025 onwards

22. In late March 2025 Mr Y’s care provider stopped providing Mr Y’s care. Mrs X helped more with Mr Y’s care needs. A few days later Mrs X contacted the Council. The Council rang her back in early April 2025. Mrs X said Mr Y’s needs had changed and he needed increased care especially in the afternoon when he became more tired and his current agency personal assistant (PA) did not work on an afternoon. She discussed her concerns about agency PA pay and suitability and explained she could be Mr Y’s PA because she already did the role unpaid. The Council explained to Mrs X it may be complicated for her to be Mr Y’s PA because she managed his direct payments but the Council records noted it was a ‘possibility’. Mrs X and the Council discussed increasing the direct payment and Mrs X advertising for a new PA.
23. In May 2025 Mrs X called the Council and explained she had concerns about new PA’s being unsuitable due to their hourly rate being inadequate. The Council explained the potential conflict of interest because of Mrs X’s role as a DP signatory and LPA. Mrs X said her husband, Mr X, was also an LPA and could take on the role of being a DP signatory. The Council said it would review this. In late May 2025 Mr Y’s agency PA resigned and Mrs X requested to be Mr Y’s paid PA. Mrs X said she was already registered as a PA with a care agency.
24. In late May 2025 Mr X contacted a Council Social worker, Officer 1, for any information he needed to provide. Officer 1 said if Mr X was to become the DP signatory, training would need to be arranged and they would contact colleagues about next steps in the process.
25. In early June 2025 Officer 1 emailed Mr X and said he had been told it was generally not the Council’s policy to have a parent be a PA unless there were exceptional circumstances, even if they did not live at the same address. Officer 1 said they would ask their manager if this was an exceptional circumstance.
26. In mid-June 2025 Officer 1 emailed Mr X and explained there was no objection in principle to a family member being a PA but they could not be a signatory for the DP. Officer 1 said the Council also had concern about Mr X taking on the role of Mr Y’s DP signatory and the conflict of interest. Officer 1 said if Mrs X was Mr Y’s PA it was inappropriate for Mr X to act as the signatory and the Council could not approve that arrangement. The Council gave alternative options including a managed service where the Council arranges a service, an Individual Service Fund (ISF) or for the family to identify an alternative signatory for the DP. Officer 1 asked Mr X how he would like to proceed.
27. The Council continued to provide direct payments for alternative care arrangements to be commissioned for Mr Y which the Council said as DP signatory Mrs X could have commissioned, but she did not do so. Mrs X said although she advertised widely for a new PA no one applied for the role.
28. In late June 2025 Mr X complained to the Council, he said he had concerns about Mr Y’s care and had requested Mrs X to be paid for the care she was providing Mr Y. He said the Council had provided slow and contradictory information.
29. In early July 2025 Officer 1 emailed Mr X and explained a reassessment of Mr Y’s needs would be arranged. They also gave information on alternative options available including managed funds, ISF and alternative signatories. Officer 1 explained if Mrs X wanted the DP to be replaced with a managed service the Council would arrange it.
30. Mr Y’s new self-employed PA started in early July 2025 for the morning only. Mrs X continued to help Mr Y in the evening.
31. In mid-July 2025 a Council ASC social worker, Officer 2, started Mr Y’s reassessment to determine his current level of need and how his needs could be met. The Council’s response to my enquiries said it offered Mrs X a carers assessment during the face-to-face reassessment. Council records note it had not done that earlier because the focus was on Mrs X being paid to be Mr Y’s PA and she wanted to wait for the complaint response before she would consider it.
32. In mid-July 2025 Officer 2 called Mr X and explained the conflict of interest of Mrs X being DP signatory and Mr Y’s PA because of the conflict in her paying herself and, if Mr X was signatory, the conflict of interest paying his wife to be Mr Y’s PA.
33. In mid-July 2025 Mr X asked the Council for his complaint response. The Council explained it would consider his complaint under the Council’s Adult Social Care Statutory complaints process and not through the corporate complaints process as it previously advised and it would respond by late July 2025. It apologised for not previously advising him of the change. In late July 2025 the Council contacted Mr X and said it was still considering his complaint and it would soon contact him with a full response.
34. In early August 2025 the Council sent Mr X its complaint response and apologised for the delay. It said the Council had advised it would not normally agree to pay Mrs X to be Mr Y’s PA and suggested alternative options including a managed service, ISF and alternative signatories. It said it continued to provide a DP for Mrs X to commission care. It accepted it could have communicated more clearly that it had not agreed Mrs X’s request to become Mr Y’s PA. It said it had spoken to staff to ensure improved future practices. It said it would not pay for the care Mrs X had provided Mr Y because Mrs X held Mr Y’s DP and it was open to the family to commission the care required. It apologised for the confusion caused. It said it would increase support for Mr Y in the evening, provide support for recruiting additional PAs to ensure holiday and weekend cover and review the hourly rate.
35. Mr X was unhappy with the Council’s complaint response. Mr X wanted Mrs X to be paid for the evening visits she made to help Mr Y. Mr X discussed with a different Council officer Mr Y’s need for a longer evening visit because a PA had told him 30 minutes was not long enough. Mr X also complained to the Ombudsman.
36. In late August 2025 the Council increased the personal budget to allow Mrs X to use micro-providers until PAs could be found. (Micro-providers are small independent community-based care and support providers). The Council considered Mr Y could use micro-providers on an evening and weekend while an alternative PA was found. It offered to commission a managed service if Mrs X had difficulty finding PAs.
37. In late August 2025 Officer 2 updated Mr Y’s Care and Support Plan. This included support with Mr Y taking part in community activities to promote his independence, physical and mental well-being and an increase to one hour evening support to assist with meal preparation and taking medication. This provided Mr Y with 23.5 hours per week funded by a direct payment and shared lives service. The next day Officer 2 emailed Mrs X about Mr Y’s updated support plan.
38. Mrs X replied to Officer 2 and asked for more explanation and corrections to Mr Y’s care needs for his weekend hours, recalculation of the weekly costs to reflect the correct hours and rates and clarification about holiday cover. Mrs X also raised concerns about a carers assessment, issues with care recruitment and the need to recruit three consistent providers, an explanation about the Council’s DP policy and procedures and information about a free careline system for Mr Y.
39. Officer 2 replied to Mrs X the next day and said a carers assessment had been previously mentioned to her and provided information about the carers assessment. Officer 2 asked Mrs X for clarification about the PAs Mrs X was using to check their hourly rates and holiday terms. Officer 2 provided a list of micro-providers and information on careline pendants and watches. Officer 2 also said they would amend the weekend hours in Mr Y’s support plan and explained about self-employed PA annual leave arrangements.
40. In late August 2025 Mr X raised concerns with a Council manager about Mrs X not being paid for her caring role. The manager asked Mr X to raise his concerns with the complaints team.
41. In early September 2025 Officer 2 contacted Mrs X and asked for her response to their questions about the PAs used and if enough funding was in place. Officer 2 offered the use of a managed service again. Mrs X spoke to Officer 2 about Mr Y’s support.
42. Two days later the Council increased Mr Y’s personal budget. Officer 2 sent Mrs X and email and apologised for the confusion around Mr Y’s PA and costing for Mr Y’s support plan. Officer 2 said they would update Mr Y’s support plan with an increased hourly rate which included bank holidays. Officer 2 said it would be backdated to the reassessment date of mid-July 2025.
43. In mid-September 2025 Officer 2 carried out a mental capacity assessment and concluded Mr Y lacked capacity around his care and support needs.
44. The next day the Council sent Mr X a final complaint response and explained the Council’s approach to the employment of close family members that do not live in the same household as the adult receiving the DP. The Council attached the Council’s direct payment guidance and a link to government guidance. The Council concluded it was not appropriate for Mrs X to be employed as Mr Y’s carer because of the conflict of interests that existed and Mr Y’s wishes. The Council said Mrs X did not need to provide Mr Y’s care because the Council had continued to provide a DP which she could have used to purchase care and support. It gave Mr X our contact details if he remained unhappy.
45. The Council undertook Mrs X’s carers assessment.
46. In early October 2025 the Council wrote to Mr X about his patterns of contact over the previous six months. The Council said Mr X had sent approximately 150 emails to a variety of Council departments and different Council officers. The Council said in line with its repetitive, unreasonable and persistent customer behaviour guidelines this met the criteria for persistent and unreasonable contact. It said all future contact would have to be directed to one email address which would be viewed weekly. It said the restriction would be reviewed in two months. The Council emailed Mr X in late November 2025 and said the temporary restrictions would remain in place until late September 2026 when they would be reviewed again.
47. In late 2025 a new PA was arranged for Mr Y’s afternoon care on weekdays.

My findings

Direct Payment

48. The Council delayed reaching a decision on whether Mrs X could be Mr Y’s paid PA and if Mr X could become Mr Y’s DP signatory. It caused confusion by suggesting this may be a possibility. This was fault which caused Mrs X and Mr X uncertainty and frustration and may have affected Mrs X’s decisions on when to look to employ new carers for Mr Y. However, the Council later explained its decision and the alternative options available. It also explained that because Mrs X was DP signatory it was open to her to commission care for Mr Y rather than support him herself, so it would not pay her for the care she provided Mr Y.
49. It was for the Council to decide, in line with the law and statutory guidance, whether Mrs X could be paid to support Mr Y and if Mr X could be the DP signatory. The Council decided it was a conflict of interest. There is no evidence of fault in the way it reached this decision so I cannot question it.

Care Plan

50. Mrs X contacted the Council in early April 2025 about Mr Y’s needs changing. The Council started Mr Y’s reassessment in mid-July 2025 approximately 14 weeks after the request. There is no statutory timescale to undertake a reassessment but we expect it to be completed around eight to twelve weeks from a request. There was a short delay but this did not cause Mr Y a significant injustice because he still received care. It is acknowledged Mrs X provided more care for Mr Y in this period but it was open to her to use the DP to fund alternative options or to request commissioned care from the Council and she chose not to do so.
51. The Council updated Mr Y’s care and support plan and increased his DP to enable him to receive additional PA hours. It provided information about recruiting micro-providers. There was some confusion about the personal budget in late August and early September 2025 around PA costs and PA holiday pay but the Council backdated the increased the DP until mid-July 2025 which was an appropriate remedy for any injustice caused.

Carers Assessment

52. Mrs X said she was not initially offered a carers assessment. The Council records showed the Council discussed this at Mr Y’s reassessment in mid-July 2025 at which point she did not want this to be progressed until after the Council complaint response. The Council gave Mrs X additional information in late August 2025 and carried out her assessment in September 2025. The Council was not at fault.

Complaints handling

53. Mr X complained to the Council in late June 2025. The Council did not respond until early August 2025 and changed which complaint process it would respond through from the corporate complaint process to the ASC complaint process. However, the Council has already apologised, kept Mr X informed of the change and when he would receive the response which remedied any injustice caused.

Communication restrictions

54. In early October 2025 the Council wrote to Mr X about his unreasonable and persistent communication with a variety of Council officers. The Council followed its policy by explaining why his communication was unreasonable and explained he had a single point of contact. The Council also reviewed this within two months when it said it would and explained why it would be extended with an end date. This is a decision the Council is entitled to make in line with its policy. The Council was not at fault.

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Action

55. Within one month of the final decision the Council will apologise and pay Mr and Mrs X a total of £200 to acknowledge the frustration and uncertainty caused by the faults found in this investigation. 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.
56. The Council will provide us with evidence it has complied with the above actions.

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Decision

57. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman