Summary: Mr X complained the Council withdrew his care package and did not reinstate it until a solicitor intervened. The Council was not at fault for withdrawing the care package but was at fault for delay and not being proactive to resolve the situation. It should apologise, make a payment to remedy the injustice to Mr X who had to arrange and pay for his own care, and ensure staff learn lessons from what happened.

The complaint

1. Mr X complained the Council:
1. failed to provide care to meet his assessed needs between 10 June 2021 and 23 March 2022. It also required him to accept direct payments, which he did not want to do. Mr X said the care package was only reinstated when a solicitor intervened. Mr X said the Council failures meant he had to pay for care himself and was forced to borrow money to do so, which caused significant financial problems, and led to him facing bankruptcy;
2. has now decided he needs to contribute towards the cost of his care, even though he has not had to do so before, despite having had a care package for 30 years. Mr X said he could not afford to pay the assessed contribution, due to the debts he incurred when arranging his own care and because his income was overstated and expenses understated when calculating his contribution. This added to the stress and worry his financial situation caused;
3. failed to support him through the financial assessment process, despite being aware he is not able to read and write. Mr X had to seek assistance from two separate organisations so he could provide the evidence of his disability related expenditure the Council required. This caused avoidable stress and worry, and meant he was put to additional time and trouble seeking help to manage the process and challenge Council decisions; and
4. delayed responding to his complaint.

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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. 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)
3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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(i), as amended)

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What I have and have not investigated

8. Mr X complained in February 2023 about the withdrawal of his care package in June 2021. The package was restored in March 2022, and he complained within 12 months of that, so we decided his complaint was not late.
9. Mr X had not formally complained about the Council’s handling of the financial assessments in 2022 & 2023, but this is closely related to the impact on his finances of the withdrawal of care, so we decided to investigate all aspects of the complaint.

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How I considered this complaint

10. I considered:
• the information Mr X and his representatives provided in writing and in telephone calls;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
11. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making my final decision.

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What I found

Relevant law and guidance

Care and support

12. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. Where the council assesses a person as having eligible support needs, it should provide a care and support plan. The support plan should set out the needs the person has and what support they need. It should also include a personal budget, which is the amount the council has worked out it will cost to arrange the care and support the person needs.

Direct payments

13. The council has a duty to meet an adult’s eligible care needs. It can arrange the person’s care itself, usually by contracting with a care provider, or it can provide direct payments, to enable the person to arrange their own care and support. 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.
14. The Care and Support Statutory Guidance says councils must not force someone to take a direct payment against their will. Nor should a council place them in a situation where a direct payment is the only way they can get personalised case and support.

Charging for social care services: the power to charge

15. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)

Financial assessments

16. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Disability Related Expenditure

17. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Council’s complaints process

18. The Council’s website says it has a one stage complaints process for adult social care complaints. A senior manager will investigate and respond to the complainant, usually within 20 working days. If the complainant remains unhappy, the Council will signpost to us.

What happened

19. This decision statement is a summary of the key events only and not a record of everything that happened or all the documents considered.
20. The Council reviewed Mr X’s care needs after he moved into its area in 2020. It arranged a package of care, which included four care calls daily with two carers attending each time, and an additional hour one day each week for a care worker to assist with shopping. This included providing support with food preparation, prompts with medication, changing incontinence pads, and showering.

Complaint about the withdrawal of care package

21. In May 2021, care agency 1 stopped providing care to Mr X because he was not complying with prompts to take his medication and was making repeated complaints in order to get longer care calls.
22. Care agency 2 began supporting Mr X in late May 2021 and stopped on 6 June, following an incident where Mr X was alleged to have threatened care workers with an object that looked like a knife. The incident was reported to the police.
23. On 9 June, care agency 2 handed over to care agency 3 at the evening care visit. The following morning care agency 3 reported that Mr X had been verbally aggressive towards care workers during the evening call. On 10 June, care workers were late for the morning call. Care workers reported Mr X was angry because they were late and threatened them with two knives and a hammer. They left within 10 minutes.
24. Care agency 3 reported the incident to the Council and the police. The Council suspended the care package and wrote to Mr X to confirm this. The letter was hand delivered by two social workers, who explained to Mr X the reasons for suspending the care package. The record says they told Mr X the Council would contact him to let him know what it had decided to do about the care package and said: “this shouldn’t take too long”. Mr X disputed the allegation. He also said care agency 1 had called him and “he wouldn’t mind having them back”.
25. The Council arranged a professionals meeting, which included the police and health professionals. The police reported the care workers did not want to pursue the matter. However, the police were concerned Mr X was a risk to himself and others. Health professionals did not consider a mental health assessment was needed and said Mr X had capacity to understand his actions.
26. Mr X told me the police told him the care workers were lying and agreed to send him a letter to confirm this so the care package could be reinstated. However, the police letter to Mr X on 15 June simply stated that Mr X “was no longer under investigation and that no further action will be taken”. On 12 July, the police told the Council they were taking no further action due to a lack of evidence and there being no reasonable prospect of a conviction.
27. The Council said it’s brokerage team could not find another care provider to deliver Mr X’s care package in light of the incident. In its response to my enquiries, it confirmed it did not approach care agencies 1, 2 or 3 due to the previous threats to care workers.
28. The Council decided the only way a care package could be delivered was for Mr X to have direct payments and arrange his own care. It discussed this with Mr X on 7 July, although the record is incomplete so it is unclear what advice it gave him about how direct payments would work. The record says Mr X:
• reiterated that care agency 1 had said it would resume the care package. The Council told him this was not a suitable option as it had previously withdrawn from the care contract; and
• asked for direct payments because he said he was spending thousands of pounds arranging his own care. The record says he was not able to explain how he was doing this.
29. The Council asked Mr X to sign and return a direct payments form so it could set up the payments. It reviewed his care and support plan. It also contacted PeoplePlus, a Council service that assists service users to set up and manage direct payments. It told PeoplePlus it would “shortly” send it a support plan and a signed direct payment form. It discussed the additional costs that would need to be included in the budget for Mr X’s care to cover the costs of administering the direct payments and costs relating to employing a personal assistant.
30. In a further conversation with Mr X on 16 July, the Council:
• discussed applying for direct payments through People Plus;
• offered to arrange a new advocate for him, but Mr X declined this;
• in response to Mr X’s concerns about his care package being cut, explained that a new support plan was being finalised following the reassessment of his needs and he would have chance to discuss this when it was sent to him.
31. Mr X made a number of calls in July and early August expressing concern that he was still without a care package. There is no record the Council returned his calls until 4 August. At that point, the Council advised him that once he had signed the direct payments form, he could start employing a care assistant or care agency. This advice was repeated on 3 September.
32. Mr X did not return a signed direct payment form until mid-October 2021. He told me this was because he did not want to have direct payments because he is not able to read and write so it would be too difficult for him to manage a direct payment bank account and the responsibilities of being an employer of care workers. However, he did sign the form when it became clear that direct payments were the only way for him to receive the care he needed.
33. In early November, Mr X confirmed he would prefer to employ a personal assistant, rather than a new care agency. The Council confirmed it would carry out a risk assessment to send to PeoplePlus, who would then contact him to assist him to advertise for a personal assistant.
34. In mid-November, the Council sent the risk assessment to PeoplePlus, which immediately raised a concern about whether Mr X would share the risk assessment with any personal assistants he employed to provide his care.
35. In February 2022, Mr X instructed a solicitor, who contacted the Council. The solicitor expressed concern the Council was not meeting Mr X’s assessed care needs, despite a legal obligation to do so. The solicitor said the police had confirmed they were taking no further action on 15 June 2021, but the Council had not reinstated the care or paid direct payments. As a result, Mr X was arranging and paying for his own care.
36. In further correspondence, the solicitor said care agency 1 had indicated it would provide care to Mr X. In early March, the Council contacted care agency 1, which agreed it would do so, if Mr X signed a behaviour contract. A behaviour contract was drawn up. Mr X’s solicitor asked for some changes to be made, and Mr X signed the amended contract in March. Care agency 1 provided care to Mr X from 28 March 2022.
37. In his complaint to the Council in February 2023, Mr X said the withdrawal of his care package meant he had been forced to pay for his own care and he asked the Council to reimburse him. He provided two invoices, each for £12,360 for care provided privately in the period 12 June 2021 to 28 March 2022. The Council said it would not consider covering these costs without proof of the transactions and statements from the people Mr X employed as carers.
38. In response to my enquiries, the Council said it had assessed Mr X as independently mobile, able to manage his toileting needs and get dressed independently, and able to drive to access local services. It therefore did not consider there was a significant risk of harm due to withdrawing the care package. It considered there was potentially a greater risk of harm towards care workers. It confirmed the amount of the direct payments, if made, would have been £358.83 per week.

My findings – the withdrawal of care

39. It was not fault for the Council to suspend the care package in light of the allegations made on 10 June. It was appropriate for it to advise care agency 3 to report the allegations to the police. It was also appropriate for the Council to consult with the police and health professionals. There was no fault at this stage.
40. The Council was not able to identify another care agency to provide care to Mr X and therefore discussed direct payments with Mr X in early July. The record stated Mr X agreed to this and later records also state this. Although he later told us he did not agree because he could not manage direct payments as a result of his disabilities, the records show the Council had offered support with this through People Plus. It also offered to arrange for a new advocate to support him, which Mr X declined. On balance, I find the Council did not force Mr X to accept direct payments.
41. When Mr X did not return a signed direct payments form in July 2021, the Council allowed the matter to drift. It did not send a support plan and risk assessment to PeoplePlus until November, and there is no record it took action to address the risk to personal carers that PeoplePlus raised in response. No action was taken from mid November 2021 until Mr X’s solicitor got involved in February 2022. It did not contact care agency 1, even though Mr X had said in July 2021 they were willing to deliver his care. It did not consider whether a behaviour contract would assist in securing a care provider until early March 2022.
42. The Council had a duty to meet Mr X’s eligible care needs. It either needed to do so by arranging care itself or by making direct payments. It did not do so. Whilst I acknowledge the complexity of the situation, the Council did not consistently and proactively take steps to resolve it. This was fault.
43. But for the Council’s fault, I find that either Mr X’s care package would have been reinstated several months earlier or a direct payment arrangement would have been implemented.
44. On balance, I find Mr X did have to arrange his own care and that he had to pay for this. This is an injustice to him.
45. Given his difficulties, he was only able to arrange care in an ad hoc manner, asking family and friends to help. He told me he paid for care in cash and borrowed from family and friends to do so. He also told me he may have to go bankrupt because he cannot repay these debts.
46. If direct payments had been paid, the Council would have retained oversight of the care provided and the costs involved. Given the informal arrangements Mr X made, I cannot verify the level of care Mr X arranged, nor the amount he paid for that care, nor the debts he accrued as a result. It was not fault for the Council to ask to see evidence of the care provided and the fees paid, but equally, I accept that Mr X is not able to provide this. My recommended action takes these factors into account.

Complaint about the financial assessment

47. The Council contacted Mr X in December 2022 to say it had carried out a financial assessment and provisionally decided he needed to pay £144.70 per week towards his care package costing £880 per week from 19 December. It used information about his income from the Department of Work and Pensions (DWP). The Council asked Mr X to complete a financial assessment form and provide relevant evidence.
48. Charity 1, supporting Mr X, contacted Mr X’s social worker in January 2023 to express concern that Mr X had been asked to attend a meeting with the finance team at which he needed to complete forms or he would need to pay the full cost of his care. Charity 1 said Mr X had difficulty reading and writing so needed support to complete forms.
49. The social worker explained that everyone receiving care needed a financial assessment to assess whether they should make a contribution towards the costs of that care. They said Mr X would need to provide evidence of his expenses, including disability-related expenses (DRE) such as additional laundry costs relating to his incontinence. They also said Mr X should provide proof of any debts. They explained the finance team would consider all the information and decide if Mr X needed to pay towards his care.
50. Later in January 2023, charity 2, emailed the Council’s finance team. Charity 2 had assisted Mr X to complete the financial assessment form and provide relevant evidence. Charity 2 confirmed the income shown in the initial assessment was correct. It explained Mr X had difficulty reading and writing but he was being supported by charity 1, charity 2 and a debt advice service. Charity 2 also said Mr X had an adult daughter living with him, who supported him.
51. The Council’s finance team carried out a reassessment. It allowed disability related expenditure (DRE) of £59.54 per week, which reduced the assessed contribution to £85.16 per week. The DRE related to continence related products, additional laundry costs and special clothing.
52. In March 2023, Mr X reported he could not afford the assessed contribution and asked if the care package could be stopped. The Council’s safeguarding team advised him that stopping the care package was not in his best interests. Mr X also asked if he could be considered for a care home, which the Council agreed to consider, but later decided was not appropriate.
53. In March, charity 1 contacted Mr X’s social worker to express concern the Council had not adequately supported Mr X. It also said the Council had not explained why Mr X was being charged when he had not been charged before. The social worker spoke to Mr X and agreed to arrange a meeting with the finance team so they could explain the charges. It is unclear whether that meeting was, in fact arranged and I have not seen a record of it.
54. In April, charity 1 contacted the social worker again to express concern that, although the Council had agreed to carry out a reassessment, it was continuing to send invoices to Mr X for his assessed contribution. This was causing him distress because he could not afford to pay them.
55. In response, the social worker said that Mr X was initially receiving care on a temporary basis for which the Council did not charge. They understood Mr X’s difficulties with the forms and could provide a list of organisations who could help. They had spoken to Mr X and explained the evidence he needed to provide.
56. In May 2023, charity 3 supported Mr X to complete a new financial assessment.
57. In June, the social worker told the finance team that Mr X could not pay the assessed contribution because he had to:
• pay his daughter £140 per week for her petrol as she was visiting every night to support him;
• repay family and friends that he had borrowed money from in the period 2021-2022 when he was arranging his own care. Mr X said he had debts of £33,000 and provided two invoices for privately arranged care totalling £24,760;
• pay someone to support him to go outside.
58. The Council’s finance team explained by telephone and later by email it would consider his debts if Mr X provided evidence, such as bank statements, to show he was paying off the debts. The invoices provided were not sufficient because they related to care he was paying for from his weekly income before the current care package started. The Council would not pay for his daughter’s petrol, nor would it pay for someone to assist Mr X to go outside.
59. In response to further queries from two other people supporting Mr X in July and in August 2023, the Council again explained it would need to see evidence Mr X was paying off the debts before it could consider whether this should reduce the assessed contribution. In addition, following a discussion by the Council’s debt recovery panel, the Council sent a letter to Mr X to again request evidence he was paying towards his debts.
60. In response to my enquiries, the Council:
• said it had been carrying out a financial assessment before Mr X’s care package was withdrawn in June 2021, but this had not been completed due to staff shortages. The finance team were not asked to carry out a financial assessment when the care package restarted, so this was not started until November 2022;
• said its finance team was not aware initially that Mr X had difficulty with reading and writing but its financial assessment information pack, which was sent to Mr X, does signpost to organisations that can help and includes a telephone number for the finance team if service users need a telephone or office appointment;
• provided a summary of the invoices issued from January 2023, which showed Mr X owed £2,626.56 for the period to 30 July 2023. It had suspended debt recovery to allow time for Mr X to send it further evidence, which he has not provided.

My findings – financial assessment

61. The finance team was not aware initially that Mr X had difficulty reading and writing but its information pack signposted to organisations who could help with completing forms and providing evidence. It also provided contact details to arrange a telephone or office appointment. The evidence shows Mr X was being supported by four separate organisations, one of which was able to assist him to complete the forms and provide evidence of his DRE, and another later supported him to request a fresh financial assessment. Although it may have been more effective for the Council to have provided support directly to Mr X, given his particular difficulties, the failure to do so was not fault, given it knew Mr X did have access to other means of support.
62. Although Mr X said his income was overstated, the Council used information provided by the DWP, and charity 2 confirmed it was correct. Mr X also said the Council under-stated his expenses. It did not include all his claimed DRE in the financial assessment but it was entitled to decide what was reasonable in light of the evidence Mr X provided. Mr X claimed for costs relating to overnight care but overnight care was not included in his care and support plan at the time so it was not fault for the Council not to take account of that in the financial assessment. The Council explained it would not take Mr X’s debts into account unless he provided evidence he was repaying the debt, which Mr X had not done. There is no evidence of fault in the way the financial assessment was carried out.
63. The Council should have started a financial assessment at the time it arranged the care package or shortly afterwards. There was a delay in doing so between March and November 2022, which was fault. However, this has not caused Mr X an injustice because he was not charged for any care provided in that period.

Complaints handling

64. Mr X complained on 14 February 2023 and has provided a proof of posting. The Council said it received the complaint on 16 May 2023, when we sent it a further copy. It responded on 29 September 2023.
65. In response to my enquiries, the Council said the complaint was written by a third party and it was unclear whether they had Mr X’s consent to represent him. The Council wrote to the third party, who replied on 5 September, that they were no longer involved.

My findings – complaints handling

66. The Council’s complaints policy says it will respond within 20 working days. If the Council could not establish whether it had Mr X’s consent to respond to the third party within a reasonable period, it could have responded directly to Mr X. The significant delay in responding to the complaint was fault, which caused Mr X uncertainty and delayed him bringing his complaint to us.

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Agreed action

67. Within one month of the date of the final decision, the Council will:
• apologise for the injustice caused by its failure to take proactive steps to either reinstate Mr X’s care or arrange direct payments, and for its delay in responding to his complaint;
• pay him £3,500 to remedy the injustice caused by being without a care package or direct payments. This is calculated on the basis of £500 per month for seven months from August 2021 to February 2022, during which the Council was not sufficiently proactive in addressing the situation. This takes into account Mr X likely paid for some care, although I cannot say how much, and is likely also to have missed out on some of his assessed care and support;
68. Within three months of the date of the final decision, the Council will:
1. share with relevant staff a summary of the learning points from what went wrong when Mr X’s care was withdrawn and what could be done differently in future to prevent a recurrence of the faults identified;
2. remind relevant staff the Care Act 2014 requires the Council to complete a financial assessment at the time a care package is arranged. It is therefore important for ASC staff and the financial assessment team to work together to ensure there is no delay in completing the financial assessment, and no consequent delay in informing service users of any contribution they need to make towards the costs of the care package.
69. The Council will provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman