The Ombudsman's final decision:
Summary: Oldham Metropolitan Borough Council’s investigation into a safeguarding referral Ms X made in 2012 was too slow and it failed to properly investigate and conclude a later referral. This amounts to fault which has caused avoidable distress and uncertainty and the Council will apologise and pay Ms X £350 to recognise this. There is no fault in relation to the other parts of Ms X’s complaint.
- The complainant, whom I shall refer to as Ms X, says that since 2015, the Council’s adult social care team has failed to properly support her son, Y, who has a serious brain injury and associated conditions and disabilities. In particular she complains that the Council:
- wrongly reduced Y’s personal budget without evidence to support the decisions made by panel, providing an opportunity to appeal and refusing to explain the reasons for the reduction to her or meet her to discuss this reduction;
- wrongly asked Y to repay more than £5000 after the Council wrongly reduced his personal budget. Ms X says this calculation includes payments to her for money owed to her by the Council;
- wrongly denied Y the right to choose his own personal assistant (specifically his sister who was refused permission to be his PA) and the PAs that are working with him have not received even basic training including first aid;
- failed to agree the care support plan with her or Y so it is not signed by them and the information contained in the unsigned version is not accurate or up to date;
- failed to properly consider a safeguarding referral regarding Y in 2016 and 2017. She says that Y was interviewed alone when he should have had an advocate present, and if a clinical conclusion was to be made, the Council should have asked a clinician to be included in the process; and
- failed to provide a social worker who has kept in regular contact or provided consistent support. She also says the Council has failed to tell Y that he is no longer under the care of the CCG, but being supported by a Complex Case Social Care Manager from the Council.
- Ms X says that the impact of these failings is that Y has not had the support he needs and so his quality of life has deteriorated. Ms X seeks an apology, an explanation from the Council and for the correct processes, including appeals, to be followed. She would like the safeguarding referral to be correctly investigated and reported on. She also wants Y to receive the support he needs.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
How I considered this complaint
- I discussed the complaint with Ms X and made written enquiries of the Council. I considered all the information before reaching a draft decision on the complaint.
- I have written to Ms X and the Council with my draft decision and given them an opportunity to comment.
What I found
- 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.
- The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
- The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
- The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. 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. The support plan may 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.
- Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
- 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.
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)
There are two types of LPA:
- Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account; and
- Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
- Y is now 30 years old. As a result of an assault in 2011 Y has permanent brain damage. Ms X says this affects Y in a number of ways including extreme fatigue, impaired cognitive functioning, physical disability, poor mental health and challenging behaviour. He also has a number of medical needs as a result of the injury, a diagnosed learning difficulty and, at the time of the injury, an unconfirmed diagnosis of an autistic spectrum disorder.
- According to the Council’s records Ms X has LPA related to finance and property for Y. I have not seen a copy of the LPA document buts its existence is confirmed by Ms X and in the records of the Council’s care assessments from late 2016.
Personal budget and direct payments
- The Council says the amount of Y’s personal budget and direct payments has not been reduced.
- In March and May 2015 Y signed individualised budget payment agreements with the Council. The amount provided in March was about £341 per week and this increased to around £415 per week in May 2015. Ms X, Y and the Council signed a Direct Payment Agreement in April 2016. The agreement was between Y and the Council but was signed on Y’s behalf by Ms X. This agreement enabled Y to arrange his own support using the agreed personal budget amount. As the agreement is essentially a contract between Y and the Council it includes requirements for Y (or Ms X on his behalf) to keep records of expenditure, to use registered care providers and about the way the budget is used/what the money is spent on.
- In May 2016 the personal budget record says this was increased to around £540 per week plus a temporary increase of £280 for additional support from Y’s personal assistant for a week due to Ms X employment commitments. Ms X says this is not accurate and the reason for the increase was that Y had suffered a serious seizure which had increased his care needs. I confirm that the plan states that Y had recently been admitted to hospital following a collapse and unconsciousness and that the hospital doctor had recommended that Y should not be left alone until this had been fully investigated. The plan later states that the need for Y not to be left alone was affecting Ms X’s ability to work.
- In August 2016 the personal budget was increased to around £670 per week while medical investigations were undertaken as Ms X reported that Y’s condition had deteriorated. This was reviewed in October 2016 and the budget set at around £650 per week. This included provision for 46 hours a week from a personal assistant.
- Following a further review of Y’s support plan in November 2016 a further temporary increase on the personal budget was agreed at a level of just under £700 a week which included payment for 53 hours a week from a personal assistant. This temporary increase was continued in December 2016, January 2017, February 2017, March 2017, May 2017, July 2017. The social work case notes refer to the social worker attending the adult panel in July 2017. The panel agreed a further eight weeks of temporary increase in Y’s payments but also required the social worker to complete a review of the care plan. The social worker offered appointments to Ms X to complete this in early August 2017.
- The records indicate that care assessments were completed in July and October 2017 and in January 2018 a new support plan was completed. The January 2018 budget was increased to around £730 a week which included 48 hours a week personal assistant support but removed a petrol allowance that had previously been provided. I note that two of the budgets over the temporary increase period between November 2016 and January 2018 are wrongly added up and so incorrectly show a £20 reduction. This was simply an error not a reduction in the personal budget amount.
- The Risk Enablement Panel considered the budget in December 2017. It was this panel that removed the petrol allowance. This was because the petrol allowance was originally provided to facilitate Y’s attendance at a specialist hospital unit some distance away. As he had stopped attending that unit the need for the petrol allowance for that was therefore no longer required.
- I note that in January 2018 Ms X emailed the Council to express her unhappiness with the decision to remove the petrol allowance. The reasons for the removal of the allowance were explained to Ms X by the social worker in an email following the panel’s decision so I accept that Ms X was given this information. The Council provide a response to Ms X’s complaint in March 2018 but it did not include this point so it seems Ms X did not include this matter in that complaint.
Direct payments made and audits of these payments
- The first audit took place in June 2016 very shortly after Y has moved on to the direct payments system. This audit stated there was no surplus amount (ie money that had been provided as direct payment and not used) so Y did not need to repay any amount to the Council.
- One year later, in June 2017 the Council wrote to Y having examined his finances in his bank accounts and looked at how these related to his income and outgoings for his direct payments/care payments as part of normal annual audit of his direct payments. It found the following:
- Bank A/C 1 – the total in this account from direct payments was around £11,500 but Y’s records showed said he had spent around £10,000 and so the Council concluded he had been overpaid direct payments of around £1,500 and this was owed back to the Council;
- Bank A/C 2 – total paid in to this account by the Council was around £19,000 but the amount paid out for care etc was £15,000 meaning he had around £4,000 which he had not spent. However, he only had just over £2,000 left in the a/c leading the Council to conclude that he had incorrectly spent just under £2,000 on things that the direct payments should not have been paying for; and
- Bank A/C 3 – showed items paid for amounting to just under £2,000 that should not be paid for by direct payments (for example supermarkets, restaurants, parking etc) so this amount was owed to the Council.
- So the Council calculated that the amount Y owed the Council in relation to direct payments was just over £5,000.
Refused to allow sister to be PA
- Y’s request for his sister to be his PA was considered at the panel meeting in December 2017. The social work notes show Ms X asked for this in August 2017. The social worker told the panel about the request and confirmed that Y’s sister, Z, did not live at the same address as Y. The panel’s view was that support for Y from family members was considered as “natural support” and also that as Y’s family was managing Y’s DPs there would be a conflict of interest in paying Y’s sister as Y’s carer from this DP. The notes of the panel meeting state this would be reviewed in January 2018 and the conclusion of the meeting queries whether Ms X would agree to using a broker in order to overcome the conflict of interest around paying Y’s sister as his carer/acting as his PA. No mention of this issue in January 2018 needs assessment document.
- In its comments to me the Council has said there was a particular conflict of interest in Y’s sister becoming his carer as, because Ms X is managing his direct payments, she would then become her daughter’s employer on Y’s behalf. In addition there is the outstanding issue of the direct payments overpayments which has happened whilst Ms X has been managing the direct payments. The Council also says there is also the issue that Y’s sister would provide some support naturally as a family member and so it would be difficult to separate out her role in providing this natural support and that of being Y’s PA. Also the Council says it is trying to encourage Y to develop a greater degree of independence and so increasing his reliance on family members would not accord with this plan. The Council says it wanted to arrange a meeting with Ms X to discuss the matter of Y’s sister providing support but that Ms X cancelled the meeting.
- In relation to the training provided to PAs, the Council says that manual handling and health and safety training are mandatory for PAs. The Council further states that as Y is able to choose who he employs as his PA, he is able to take a view on what skills the PA should have to meet his needs. It goes on to say that, in relation to Y, the Council would consider that a PA who has received the mandatory basic training would be sufficient to meet Y’s needs.
Care assessments and support plans
- Between January 2015 and October 2017 the Council completed eleven assessments of Y’s needs and produced nineteen care and support plans up to February 2018.
- Y’s most recent care and support plan confirms he receives 48 hours a week from a PA. Funding for other activities was also provided. Ms X also provides support to Y.
- In July 2017 Y’s care and support plan detailed 43 PA hours a week.
- The record of the assessment started in October 2017 confirms there had been a discussion about what the personal budget could be used for and confirmation that the December did not agree to continued payment for petrol as part of the direct payments or for Y’s sister to become his PA. The latest support plan was issued in January 2018. The Council states this is accurate and up to date. The Council says that it wants to review this but meetings arranged to do this have been cancelled by Ms X. At the point the council provided its comments on the complaint it stated it intended completing an annual review soon and an updated support plan would flow from that. Ms X says that she has not signed this latest plan.
Safeguarding referrals and investigations
- In July 2016 Ms X contacted the Council alleging that Y’s girlfriend had stolen money from Ms X via Y and used it buy drugs. She also said the girlfriend had forced Y to use drugs and then forced him to pay off her drug related debts. Ms X said she did not want to refer the matter to the police but did want to ensure Y was adequately protected in relation to his own drug use and his vulnerability to future abuse. Y was no longer in a relationship with the girlfriend so there was no ongoing risk from her. I have seen no evidence of further investigation of this referral.
- Ms X had made an earlier safeguarding referral in 2012. This related to the personal assistant (PA) recruited to support Y. After this PA began working with Y it became apparent that he knew the person who had attacked and injured Y and caused his brain injury. Ms X also expressed concerns that when he was working with Y, the PA’s personal appearance was concerning and that he had arrived to work with Y under the influence of either drugs or alcohol. After reading the notes of an interview with Ms X about this in 2016 it is clear that Ms X also expressed concerns about the care the PA had provided to Y, stating that activities he encouraged Y to participate in were not appropriate to his needs and that he failed to ensure Y was eating and drinking properly when looking after him. The notes of interviews confirm that the police had been involved, interviewed the PA but decided not to pursue any prosecution.
- In 2017 the Council issued its findings of the 2012 safeguarding concern. It based this investigation on the witness statement of a care worker completed in 2012 and on interviews conducted with Y (including on his own), Ms X and the PA to whom the allegations related which were conducted in 2016 and 2017. The notes of the findings state that the PA was recruited and appointed by the Council at the time and that the Council’s records contained no information related to this appointment. The notes also confirm that the PA had realised quite soon after starting work with Y that he knew the person who had injured Y and that he had told Ms X this and stopped working with Y soon after. Ms X says he was told to leave. The notes also suggest that he had confirmed that he did not know either Ms X or Y when he was appointed. The investigation concluded that there did not appear to be safeguarding issues that warranted enquiry or investigation in relation to the 2012 referral. It confirmed that Y had come to no harm and it seemed that the support the PA had provided to Y at the time was appropriate. The Council confirmed that Ms X had expressed concerns about the recruitment of PAs by the Council and also that the Council had introduced a “toolkit” for employing PAs since then. The findings about concerns related to the PA’s appearance and behaviour were noted to be inconclusive but that there had been no subsequent concerns of this nature and the PA continues to work as a PA.
- In April 2017 the social worker completed her report into the safeguarding investigation. A meeting to discuss this took place in June 2017 and was attended by the social worker, the social work team manager and Ms X.
Social worker contact
- The Council provided a chronology of the social worker’s contact with Y and Ms X which shows regular email contact between the social worker and Ms X and also of home visits being undertaken. The Council confirms that the Complex Case Social Care Manager is a health employee and not a council appointed officer. The Council says the social worker for Y remains the same though is likely to change soon as a result of restructuring at the Council.
Was the Council at fault and did this cause injustice?
Reduction in personal budget
- As detailed the support plans since 2015 broadly show that Y’s personal budget increased over the period he has received support. There have been some periods where the amount of the personal budget has been temporarily increased to recognise short term increased needs and so the removal of the temporary increase has resulted in a slight decrease in the payment once removed. However, as the increases were only ever temporary this does not amount to a reduction in the budget which, as stated, shows a gradual increase over the period of the Council’s involvement.
- The removal of petrol allowance is a reduction in the overall amount but the reason for the removal of this amount is because it was originally provided to cover the costs of Y’s attendance at a hospital some distance away and as appointments at this hospital had ceased the payment was no longer required. As this is the case there are no grounds for me to conclude that the removal of this amount from the personal budget amounts to fault: the personal budget is in place to meet actual defined needs and it one of these needs ceases to exist it follows that the payment for that need is no longer necessary and should not be made.
Repayments of overspent direct payments
- Based on the information I have seen the Council seems to have provided evidence as to why it considers Y’s direct payments were not properly managed as the amount spent did not match with the records of spending provided and some spending of direct payment monies was on items not covered in the care plan so were incorrectly spent.
- The Council has reduced the amount it has calculated that Y owes the Council in wrongly spent direct payments by around £1000 having accepted that around £1000 of the original amount has been adequately evidenced.
- As Ms X had signed the direct payments agreement confirming she would be helping with Y manage his direct payments her argument that he should not have been allowed direct payments as he was unable to manage them is not persuasive. I also note that she states that the reasons she had been subsidising the direct payments was due to a reduction in Y’s personal budget earlier in 2016. As I have stated above however, I have found no evidence to agree that there was a reduction at this time.
Wrongly refused to allow Y’s sister to be employed as his PA
- The Council’s own rules state that ordinarily it would not agree to a close family member being employed as an individual’s PA. In this case there is the further complication that Ms X, who is the mother of both the service user and the proposed PA, is managing the budget. I can therefore see that, there are very clear reasons in these circumstances why the Council would not agree to Y’s sister becoming his PA. It seems clear that the Council considered the matter carefully, has provided reasons for its refusal and so there are no grounds for me to conclude there is fault in the Council’s consideration of this matter.
Care and support plans
- The Council does not agree that its most recent care plan is not up to date and inaccurate. I recognise that Ms X disagrees. I am unclear whether Ms X was specifically advised to use the complaints process to address this but I note that it has tried to meet Ms X to review the assessment which would provide an opportunity for Ms X to discuss her concerns about accuracy and provide up to date information but she has cancelled the meetings that have been arranged to do this. As the Council tried to address the concerns, there are no grounds for me to conclude there is fault by the Council on this matter. I note that an annual review was later arranged where these issues could be discussed and any new updates provided.
- I have seen no evidence of earlier investigation of the 2012 referral so it seems clear the investigation of the allegations in 2012 were delayed in terms of both when they commenced but also once the investigation started. Ms X says that an investigation was completed earlier but was unsatisfactory. I have no grounds to conclude this was not the case but it remains the case that completion of the investigation was delayed. But when completed the investigation looks thorough. It included interviews with Ms X, Y and the PA about whom the allegation was made. The notes of these interviews suggest the interviews were in-depth and thorough and I can see that the social worker considered all the information in 2017 and drew conclusions from her investigation. I consider the delay in competing this investigation caused injustice by way of avoidable distress and uncertainty.
- Y was interviewed alone as part of the safeguarding investigation. Ms X was unhappy with the decision to do this. However, there is nothing in the notes of the interviews to indicate that Y was distressed by the interview or unable to understand the questions or the process. I would not consider there is any evidence that the decision to interview him alone would amount to fault. The Council’s policy refers to the Care Act 2014 requirement to provide an independent advocate or support for an adult who has “substantial difficulty” in being involved and where there is no other adult available to do so. In its comments to me the Council has said that the social worker who completed the safeguarding investigation asked Y if she could see him alone and felt it was important to do so. The Council says that Y had no objection to this but if he had, then it would have been possible for him to have been accompanied. There is no suggestion that Y had “substantial difficulty” in being involved. For these reasons there are no grounds for me to conclude that the Council was wrong to have interviewed Y alone.
- I have seen no evidence of investigation or decision on the 2016 safeguarding referral made by Ms X further to the strategy discussion. I consider this to amount to fault. However, there is no suggestion of any further concerns raised in regard to future contact with the person about whom the allegations were made so it does not appear that this fault caused injustice beyond uncertainty about the outcome of the investigation.
Social worker contact
- The Council has provided me with its records of the social worker’s contact with Ms X and Y. Having considered these records it is my view that the social worker has kept in regular contact with Ms X and it is clear that there is regular communication between the Council and Ms X regarding Y. There is no fault regarding any failure by the Council to tell Ms X about the Complex Case Social Care Manager as this is not a Council but a health service employee.
- The Council will apologise and pay Ms X £350 to recognise the avoidable distress/uncertainty caused by delays in completing the investigation of the first referral and the apparent failure to reach a decision on the later referral. The Council will do this within one month of the date of this final decision statement.
- The Council must ensure that it completes safeguarding investigations in a timely manner and that it properly informs relevant people about the outcome of these investigations. The Council will let us know how it will ensure this in relation to future referrals within one month of the date of the final decision on the complaint.
- There is fault by the Council in relation to the safeguarding investigation but there is no fault in relation to the other parts of Ms X’s complaint.
Investigator's decision on behalf of the Ombudsman