Bath and North East Somerset Council (25 011 353)
The Ombudsman's final decision:
Summary: Mrs D complains about the Council’s refusal to pay her to manager her daughter’s direct payment account and for not carrying out a joint care and carer’s assessment. We do not uphold the complaint as the Council provided cogent reasons why it would not be appropriate for Mrs D to effectively pay herself, when other options are available.
The complaint
- The complainant (Mrs D), complains:
- about the Council’s decision not to pay her for managing her daughter’s (Miss E) direct payment account, which she does as an authorised person, as Miss E cannot do this for herself;
- she has asked the Council to complete a combined assessment which it did not action.
- Mrs D says the lack of a combined assessment has led to carer breakdown. And the situation with the administration of the direct payment has caused stress to her and Miss E.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
- 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)
How I considered this complaint
- I considered evidence provided by Mrs D and the Council as well as relevant law, policy and guidance.
- Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Legal and administrative background
- 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.
Care Plan
- 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.
Carer’s Assessment
- 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.
Combined assessments
- The “Care and Support Statutory Guidance” (the Guidance) supports the Care Act. It says one way a council can carry out an assessment of an adult’s needs is through “a combined assessment, where an adult’s assessment is combined with a carer’s assessment and/or an assessment relating to a child so that interrelated needs are properly captured and the process is as efficient as possible”.
Direct payments
- 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.
The Council’s “Policy for direct payments”
- The Council’s policy for direct payments says:
- it can make direct payments to people who are authorised to act on behalf of someone who does not have the mental capacity to make their own decisions;
- an authorised payee cannot use direct payment to pay themselves;
- “[a]n authorised person must not use direct payments to pay themselves to provide services to the adult without capacity except as expressly authorised in writing by the Council…”
Mental Capacity Act
- The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
What happened
Background
- Miss E has lifelong disabilities and is non-verbal. She lives with Mrs D. She has had a package of care and the Council pays this by was of a direct payment.
- Miss E lacks the mental capacity to make her own decisions. So Mrs D is authorised to act on Miss E’s behalf to use the direct payment to commission services for her.
The direct payment
- Mrs D says her administration of Miss E’s care and support needs includes managing financial transactions, training, inducting and managing employees and some covering of the support provided. Mrs D says this is in excess of the support Miss E would receive if a third party managed her direct payment account.
- Mrs D asked that the Council allow her to be paid from Miss E’s direct payment account for the administration and management role she undertakes. She was in contact with a senior manager from the Council’s Social Care team about this request. The result of these communications was the manager’s response that:
“If the Council were to pay you to do this role via [Miss E]’s Direct Payment you would in effect be employing yourself and be in a position of making material decisions about your own employment status. This is a situation that the Council cannot countenance, the Regulations do not concur with, and one which [His Majesty’s Revenues and Customs] would also take issue with.”
- Mrs D complained to the Ombudsman. I asked the Council about its application of its direct payment policy and discretion in it for the Council to make the payment Mrs D asked for (see paragraph 12). The Council acknowledged its policy allowed it discretion to make payments outside the normal rules “…where it is required to do so”. But its view was Mrs D and Miss E had resources available that could provide the administrative function – ie a third party managed account. That would avoid the risk of a conflict of interest. So the Council decided not to use its discretion in relation to their request.
The combined assessment request
- The Council carried out a Care Act assessment review for Miss E’s care needs in June 2024. Its record notes Mrs D did not then want it to carry out a carer’s assessment. The record of the review noted the support Mrs D provided Miss E.
- In November 2024 the Council did carry out a carer’s assessment. The Council’s records note:
- Mrs D asked for the Council to allow her to receive payment for the administration she provided of Miss E’s direct payment account;
- the Council set out the option of a managed account. Mrs D said she was clear this could not provide all the services she provided for Miss E.
- Mrs D has sent over a document where she did ask Miss E’s social worker that her and Miss E’s assessments were combined. This was in the context of asking for the Council to allow payment from Miss E’s direct payment account.
- In response to my enquiries, the Council advised its records showed Mrs D requested a combined assessment in October 2025 and it responded in October and December 2025. Its social worker continued to work with Mrs D and Miss E.
Analysis
The direct payment
- I cannot question the merits of the Council’s decision on Mrs D’s request for her to pay herself from Miss E’s direct payment account. It has set out its position with cogent reasons why it does not consider it appropriate. It says it did not consider it necessary to exercise discretion, as its view is Mrs D and Miss E have other options – namely a managed account.
- I acknowledge Mrs D’s view is that is not an option, as she does more than Miss E would receive from a managed account. But even so, I cannot conclude that provides a sufficient reason to question the Council’s decision. If Miss E’s account was managed by a third party, that would reduce some of the tasks Mrs D needed to carry out – she would likely still be able to provide Miss E some of the extra tasks she currently does.
The combined assessment request
- Mrs D says she would like the Council to combine her carer’s assessment with Miss E’s care assessment. There are some conflicting documents about when Mrs D made the request. However it is unclear what significant changes a combined assessment would achieve, as the assessments the Council completed separately would have been considering Miss E’s care needs and Mrs D’s needs as a carer.
- And it would not, on the balance of probabilities, make any difference to the Council’s decision on who to fund through a direct payment, which has been the focus of Mrs D’s concerns. So I do not see this is likely to have caused a significant enough injustice to warrant further investigation.
Decision
- I find no fault.
Investigator's decision on behalf of the Ombudsman