Summary: The Council considered Ms X’s circumstances properly and offered care and support appropriate to her eligible assessed needs. It was not fault on the part of the Council to change to commissioned services instead of Direct Payments, in accordance with its policy.

The complaint

1. Ms X (as I shall call the complainant) complains the Council has failed to assess her needs properly including her needs for night-time care and has changed the funding method to commissioned services from Direct Payments. She says she suffers injustice as a result of the Council’s failure to recognise her night-time needs.

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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. If we are satisfied with a council’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)

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How I considered this complaint

3. I considered the information provided by Ms X and the Council. Both Ms X and the Council had an opportunity to comment on a draft version of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

4. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
5. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments 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.
6. An adult with possible care and support needs or a carer may choose to refuse to have an assessment. In these circumstances local authorities do not have to carry out an assessment.
7. The Care Act 2014 gives local authorities 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 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 local authority must involve any carer the adult has.
8. Everyone whose needs the local authority 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, with the final amount of the personal budget confirmed 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 an amount enough to meet the person’s care and support needs.
9. There are three main ways in which a personal budget can be administered:

As a managed account held by the local authority 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;

As a direct payment. (Care and Support Statutory Guidance 2014)

10. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to arrange their own care and support to meet their eligible needs.
11. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care. This is by way, first, of an eligibility checklist and secondly through a Decision Support Tool (DST) assessment undertaken by an NHS officer.

What happened

12. Ms X is a disabled adult who uses a wheelchair. She has some physical health conditions which result in choking risks, and urinary incontinence which affects her skin integrity. Ms X moved into the Council’s area in February 2020.
13. The Council assessed Ms X’s needs and recommended 41 hours of care a week to be funded through Direct Payments (as Ms X requested). The carers who had supported Ms X in her previous home continued to support her. The Council assessed that Ms X’s transfers should be managed by two carers using a hoist. Ms X chose to use one carer at a time. She declined the provision of a hospital bed to enable a hoist to be used and her husband (who she says lives separately) manages her transfers by lifting her. A dietitian recommended a soft and mashable diet due to the risk of choking but the assessment of Ms X’s needs records she continues to eat high-risk foods.
14. The social worker who was allocated to Ms X’s case later in 2020 says Ms X told the assessing social worker she “needed 77 hours of night-time care per week from 10pm -7am that was to be provided by her husband. Further attempts of getting more information on the required night time care and possible risk was not fruitful because (Ms X) was not open about the specific tasks she needed help with that are separate from repositioning.”
15. In March 2020 Ms X signed a Direct Payment agreement with the Council. The agreement says, “The customer will then be responsible for ensuring that their assessed financial contribution is paid into their direct payment account at least every 4 weeks.”
16. The Council assessed Ms X’s contribution towards the cost of her care at £21.64 a week. Ms X said she was unable to afford the contribution.
17. The Council says “if a customer fails to pay their contribution, this creates a shortfall in the funds available to pay for their Personal Assistant (PA)/Agency fees, which will leave the carer at risk of non-payment for services they have provided to the customer. If non-payment of contributions continues throughout the period of the direct payment then the funds available to pay for care will be depleted and the customer then places the continuation of their care at risk as well as accumulating a debt to the council. The council is subsequently unable to provide direct payment funds to customers who have an existing debt with the Council.”
18. The Council says Ms X only paid four payments towards her care totalling £270 and as a result, her pre-paid card account funds were depleted to the point that there were insufficient funds available to make payments to her carers. Officers liaised regularly with Ms X to confirm the PA hours worked and ensure that the PAs received the payments that were due to them.
19. The Council says by 24 January 2021 Ms X owed £1422.44 in unpaid contributions.
20. The Council wrote to Ms X on 2 June 2020, 22 June 2020, and 08 August 2020 reminding her of the payments which were due. The Council offered a repayment plan if Ms X could not pay the accrued debt all at once. It said, “To avoid suspension of your direct payments service, you will need to bring your account up to date and continue every month to pay into your pre-paid card account your assessed financial contribution”.
21. The Council wrote to Ms X again in December to explain the Direct Payments would now cease. It offered a commissioned service instead.
22. Ms X’s social worker says she spent a significant amount of time at a meeting with Ms X in December 2020 “discussing the impending transfer of her care package to a Merton Commissioned services and her financial difficulties. I suggested a referral to a voluntary agency to help with income maximisation which (Ms X) agreed to but unfortunately has not been able to engage with.”
23. The Council’s records show a DST assessment was undertaken in December 2020. Ms X was not assessed as having any primary health care needs.
24. Ms X’s social worker says “there is no evidence of night time needs as indicated by (Ms X. Ms X) has not reported any issues of skin and has declined to a District nurse skin Integrity Assessment.” Ms X’s husband refused a carer’s assessment to provide information about the support he gives to Ms X. Ms X declined to accept any pressure-relieving equipment such as an air mattress. She declined an alarm pendant.
25. Ms X complained to the Ombudsman about the Council’s assessment of her needs. She said the Council had provided insufficient care hours. She said she needed a carer to remain with her while she was eating as she was at risk of choking. She disputed she had failed to pay her contributions towards the cost of her care. She said her Direct Payments had been stopped unfairly.
26. The Council put in place a care package of four calls a day with two carers at each call. It says that was reduced in May 2021 to two 30-minute calls a day for ‘welfare support’ as Ms X refused access to the carers from the commissioned service. It says carers have been told if they are allowed into the property they can stay up to an hour to provide care. Ms X says the carers wanted her to move her dogs before they would enter the property.

Analysis

27. Ms X signed an agreement with the Council to pay her contributions towards the cost of her care but she did not do so. It was not fault on the part of the Council to terminate the agreement and revert to a commissioned service. The Council gave ample advance warning to Ms X of the consequence of not paying her contribution. The Council provided timely reminders to Ms X of the need to make payments.
28. The Council’s assessment of Ms X’s needs has been hampered by the difficulty of obtaining information about the extent of the tasks she says she needs assistance with. I have not seen any evidence of fault in the way the Council has sought to assess her needs, which has included medical and other professional input.
29. The Council offered a managed service when Ms X’s Direct Payments ceased but Ms X has so far refused access to the carers. That is not the fault of the Council.

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Final decision

30. I have completed this investigation on the basis there is no fault in the actions of the Council.

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Investigator's decision on behalf of the Ombudsman