The Ombudsman's final decision:
Summary: The Ombudsman has not found fault in the way the social worker carried out a visit to Mr C or in the Council’s decision to stop direct payments while it carried out a safeguarding investigation. There was a delay in the Council’s decision to carry out a mental capacity assessment of Mr C, but the assessment of his capacity to make decisions about his care has been done.
- Ms B complains on behalf of her father, Mr C who receives support from carers paid by the Council. She says the social worker’s visit to Mr C on 23 February 2018 was harassment and she feels the Council had no right to stop Mr C’s direct payments in April 2018.
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 have discussed the complaint with Ms B and I have considered the documents she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.
What I found
- The Care Act 2014 and the guidance say councils have a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services.
- A person can choose to receive direct payments to arrange the care and support themselves. The direct payments can only be used in accordance with the support plan and any ‘unauthorised use’ of the money will need to be repaid.
- Councils may discontinue direct payments if the person fails to comply with a condition of the direct payment.
Mental Capacity Act 2005
- The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The Act says:
- A person must be presumed to have capacity unless it is established that he does not.
- Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
Direct payments and mental capacity
- If someone lacks mental capacity to manage their financial affairs, an ‘authorised person’ can request the direct payments. The person must be authorised to act under the Mental Capacity Act.
- If someone had capacity and was receiving direct payments, but then lost mental capacity, the council must discontinue direct payments to that person and consider making payments to an ‘authorised person’.
- Section 42 of the Care Act 2014 says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean they cannot protect themselves. The Council must decide whether any action is needed to protect the person from abuse or risk. Abuse includes financial abuse.
- Mr C was admitted to hospital in February 2016 after a fall and a bleed on his brain. Mr C had dementia and struggled with his mobility. The Council assessed Mr C and the assessment said he should have four daily calls from two carers to support him with toileting, personal care, nutritional needs and medication. The assessment said Mr C was at high risk of falls and the plan provided for 29 hours sitting service a week. His personal budget was £35,460.
- The Council re-assessed Mr C in December 2016 and the care plan remained unchanged. The assessment said the social worker was not satisfied that Mr C had capacity to be involved in the assessment process, but there is no record of any attempt to carry out a mental capacity assessment at that stage.
- Ms B signed a cash personal budget (CPB) agreement on behalf of Mr C on 25 June 2017. CPB is a system of direct payments. Ms B became his nominee for the CPB and managed the budget on Mr C’s behalf. Ms B used the CPB to employ carers in line with Mr C’s care plan.
- The social worker started the re-assessment process in September 2017. The notes show this was a difficult process. The relationship between the Council and Ms B had broken down. Ms B said the social worker was harassing Mr C and that the assessment process was intrusive. Ms B insisted on being present when the social worker or the occupational therapist (OT) was there. She cancelled several appointments.
- The social worker wanted to speak to Mr C’s carers, but Ms B questioned why that was necessary. Ms B did not agree there should be a mental capacity assessment of Mr C. She also refused a continuing health care assessment of Mr C as she said it was too intrusive. Ms B also did not want the Council to obtain information from Mr C’s GP.
- Mr C speaks Urdu and English. Social services and the family disagreed on the need for an interpreter. The notes suggested the social worker wanted an interpreter for two reasons. Firstly, the social worker was assessing Mr C’s mental capacity and he wanted to be sure that the poor responses from Mr C were linked to cognitive problems rather than a language barrier. Secondly, there was a concern that Ms B was exerting control over Mr C and it was difficult to know what Ms B was saying to Mr C as she would speak to him in Urdu.
- Ms B’s solicitors sent a letter from Mr C’s GP dated 24 September 2017. The GP said Mr C became quite distressed with people that he was not familiar with and he would appreciate the assessment being as unobtrusive as possible.
- The social worker visited twice on 10 and 20 October 2017 as part of the assessment. Ms B sent letters of complaint after both visits saying they had left Mr C ‘very distressed and exhausted’.
- The social worker said an OT needed to assess Mr C. The OT tried to confirm an assessment visit in January 2018, but Ms B cancelled this visit because Mr C was unwell. This continued for several weeks until an appointment was set up for 22 February 2018.
- Ms B rang the OT on 21 February 2018 and said she wanted to cancel the visit as she was working. The OT said Ms B did not have to be present and that she had arranged for an interpreter to be there. Ms B objected to the interpreter and said it would affect Mr C’s blood pressure. The OT said she would go ahead with the visit.
- Ms B then called a few hours later and said the assessment could not go ahead because Mr C’s GP had said it would be too dangerous for Mr C’s blood pressure.
- The OT went to Mr C’s home on 22 February 2018 and noted Mr C was dressed and sat in a chair. The assessment did not go ahead.
- The social worker called the GP on the same day, who denied making the statement.
- The social worker went to Mr C’s house on 23 February 2018. He knocked on the door and Mr C came to answer the door, which was locked. The social worker was concerned as Mr C appeared to be on his own and the social worker had expected Ms B or one of the sitters to be there, in line with the care plan at the time. The social worker rang two of the personal assistants, but only one person answered and said it was a wrong number. Within minutes of that call, Ms B arrived.
- Ms B was angry that the social worker had come to the house without letting her know. The social worker then spoke to Mr C who said he was not well and the social worker agreed to visit on another day. The social worker asked to speak to Ms B on her own but she refused and asked him to leave.
- Ms B told me that Mr C’s carer was at the home at the time. She said the carer was emptying Mr C’s commode in the garden when the social worker knocked on the door.
- The Council has provided the documents that it has completed for Mr C. There was a mental capacity assessment dated October 2017 which said Mr C lacked capacity to make decisions about his care.
- The Council provided an assessment of Mr C’s needs dated 9 November 2017. This noted that Mr C had not had any falls since February 2016 and that he did not try to get out of his bed on his own. The social worker said Mr C did not need a sitting service, but that assistive technology could alert staff and reduce the risk of Mr C being left unattended if he had a fall. The assessment recommended the same care package as before (two carers visiting four times a day) but reduced the sitting services to one hour a day to keep Mr C company. The Council’s care plan dated 20 February 2018 showed the reduced care plan following the November assessment. The personal budget was £19,546.
- The Council received a safeguarding referral about Mr C in April 2018. His bank account had been frozen because of unusual activity and there were concerns about Mr C’s mental capacity to manage his financial affairs. Ms B did not have a power of attorney for Mr C’s finances so she had no authority to spend his money if he lacked capacity.
- The Council started a safeguarding enquiry. The Council wrote to Ms B on 17 April 2018 and said it stopped Mr C’s CPB. It said it had a duty to undertake enquiries under section 42 of the Care Act (safeguarding) The reasons were:
- The barriers she had created to hinder the re-assessment of Mr C.
- The Council’s inability to see Mr C on his own.
- The safeguarding concerns regarding his finances.
Visit on 23 February 2018
- Ms B says the social worker’s unannounced visit on 23 February 2018 was harassment. She says the social worker:
- Knew the GP had said Mr C was not well. He went ahead against this advice, knowing that Mr C’s health would deteriorate.
- Became angry and refused to leave.
- Deliberately chose to cause distress and tried his best to cause Mr C’s health to deteriorate.
- The social worker carried out the visit as part of the assessment process. He wanted to see Mr C and felt that Mr C had not been central to the process so far.
- The social worker had spoken to the GP, but the GP did not have concerns about the visit.
- The social worker explained the purpose of the visit to Ms B. She said Mr C was unwell. Mr C then told the social worker he was unwell and the social worker left.
- I find no fault with the social worker’s visit on 23 February 2018. The Council was, at that stage, becoming concerned about the situation. It was trying to carry out an assessment of Mr C’s needs and see Mr C on his own, but had not been able to. Ms B cancelled the appointment of the OT and said this was based on the GP’s advice, but the GP denied this.
- There is no evidence of harassment. The social worker was concerned as Mr C was on his own when the care plan at the time showed the Council was paying for a sitting service when Ms B was not there. The notes show the social worker left after he had seen Mr C and Mr C told him he was not well.
Direct payments / cash personal budget
- Ms B says the Council had no grounds to stop the CPB and that it was doing so because she made complaints. She wants the Council to restart the CPB.
- The Council says it had to stop the CPB because:
- There were concerns that the CPB was being misused.
- Ms B was not allowing the assessments to take place or the Council to see Mr C on his own.
- The Council had safeguarding concerns relating to financial abuse and these had to be investigated.
- It stopped the CPB while the investigations were ongoing.
- I do not know, of course, what the outcome of the safeguarding investigation will be. I make my decision on the evidence that is available now.
- The Council’s CPB agreement says the recipient should set up a separate account which can only be used for receipts and spend on care and support. The Council can end the CPB if the money is used fraudulently or outside of the agreed support plan or if the nominee is misusing the CPB or not acting in the recipient’s best interests.
- The Care Act Guidance says the Council can discontinue direct payments if the payments have not been used to achieve the outcomes of the care plan. It must also discontinue payments where a person loses capacity to consent. The Guidance says, if the Council is discontinuing direct payments, it should offer a direct service instead and should carry out a review of the plan.
- I find no fault with the Council’s decision to stop the CPB. It took the decision because the bank froze the account following suspected fraudulent activity. The Council had concerns about the management of Mr C’s finances. It started a safeguarding investigation which is still ongoing.
- The Council offered a direct service which consisted of the same care package as before (two carers four times a day), but a reduced sitting service. The Council based this direct service on its assessment of Mr C’s needs of November 2017. This resulted in the February 2018 care plan which reduced the sitting service to one hour a day with the use of assistive technology. I cannot say, of course, what the care package for Mr C would be. I can only consider whether it was based on assessments of Mr C and I accept that it was, in so far as the Council was able to assess Mr C.
- It is my understanding that, even if the CPB had continued, the Council would have reduced the package in line with the new care plan. I also note Mr C refused the direct sitting service so it made little difference how many hours the Council offered.
- I am concerned about the delay in the mental capacity assessment. I accept that in recent months, since September 2017, it has been difficult for the Council to assess Mr C. However, the Council’s assessment of Mr C’s needs dated 7 December 2016 said there were concerns about Mr C’s mental capacity. This should have triggered a mental capacity assessment but this did not happen until October 2017.
- I have completed my investigation. I have not found fault except that the Council should have attempted a mental capacity assessment of Mr C earlier.
Investigator's decision on behalf of the Ombudsman