Summary: Ms C complained about the way in which the Council has dealt with the payments Mr M needs to receive, to pay for the support provided by Ms C. The Ombudsman found fault with the unreasonable time it took the Council to set up these payments. The Council has agreed to apologise to Ms C and pay her a financial remedy for the distress she experienced.

The complaint

1. The complainant, whom I shall call Ms C, complained on behalf of herself and Mr M. Ms C had been Mr M’s shared lives carer for many years, until 2015. Since then, Mr M has continued to live at Ms C’s property, where she has continued to provide support to him.
2. Ms C complained:
• The Council was wrong to make unfounded accusations against her in 2015 and to de-approve her as a Shared Lives carer.
• There was an unreasonable delay by the Council in putting the Direct Payments in place, which it had agreed to in January 2017.
• The Council failed to communicate with her about these delays in an appropriate manner. She chased the Council repeatedly for updates, which the Council ignored.
• She is unhappy about the needs assessments that have been carried out in / since 2017. She is unhappy about the process and believes they do not accurately reflect Mr M’s needs.
3. Ms C says that, as a result, she experienced a lot of distress and had to spend a lot of time and trouble to deal with this.

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What I have investigated

4. I have investigated the alleged delay by the Council in putting the Direct Payments in place that had been agreed in January 2017, and the alleged failure by the Council to properly communicate with her.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
8. 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

9. I considered the information I received from Ms C and the Council. I also carried out a telephone interview with the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

10. The Council decided in 2015 that Ms C could no longer be a “Shared Lives” Carer. Shared Lives is a scheme where an approved carer shares their home and family / community life with someone who needs care.
11. However, Mr M remained living at Ms C’s property and she continued to care for him and support him. However, Ms C did not receive any payments for this anymore following the Council’s decision. Ms C has another paid daytime job, in addition to being Mr M’s carer.
12. The Council organised a meeting with Ms C in January 2017 to try and resolve the situation. At the meeting, the Council agreed to pay Ms C £225.56 per week for the support she had provided to Mr M since 2015. All parties also agreed the Council would support Ms C to re-apply as a Shared Lives Carer and pay Ms C £225.56 a week in the interim, through a Direct Payment.
13. Ms C says the Council failed to set up a Direct Payment to pay her on a weekly basis. As such, she says she had to go to the Small Claims Court several times, between January 2017 and February 2019, to get the payments she was entitled to. On each occasion the court ruled in her favour, after which the Council had to pay her the money it owed her for the previous period.
14. Following the meeting in January 2017, the Council sent Ms C a letter. It said:
• It will have to pay the interim Direct Payment through a “Suitable Person”. Ms C should nominate one and provide the name to the Council, so it could start the process of registering the suitable person.
• Ms C should liaise with its Shared Lives team to start the process to register again as a Shared Lives carer.
• The Council would arrange a Mental Capacity Assessment to determine if Mr M has capacity to manage his finances. If not, the Council would organise a best interest meeting.
15. Ms C told Council on 26 January 2017, that her son would be the ‘suitable person’.
16. The Council organised several sessions with an advocate and interpreters to prepare Mr M for a review of his care needs, establish his wants and likes etc. This process took longer than originally expected as Mr M’s communication and understanding was quite limited. Mr M’s care review took place on 10 April 2017.
17. According to the records I have received, the Council did not make any further progress with setting up a Direct Payment, until a new social worker was allocated to the case in June 2017. The social worker recorded that the Council had still not carried out the capacity assessments about finance.
18. The social worker spoke to Ms C to introduce herself. Ms C asked the social worker why the Council had not progressed the suitable person's application, so she could start to receive her weekly payments. The social worker said the Council would first have to carry out a capacity assessment to determine if Mr M had capacity to manage his finances and/or appoint a person to handle his Direct Payments.
19. The Social worker told Ms C that the suitable person application form it had received in January 2017, did not have a name on it but only a signature.
20. I have reviewed the application form and noticed it does not have a section where the suitable person is asked to write down their name. Furthermore, the Council failed to ask Ms C’s son to add his name after it had received the form.
21. A record of 26 June states that: Ms C’s son has been nominated to manage his finances and his direct payments. However, he would need to apply for this role via the court of protection, if Mr M has no capacity.
22. This was incorrect, because Ms C’s son had only been nominated to be a ‘suitable person’ to manage his Direct Payments. He had not been asked to manage all his financial affairs, nor did he want to.
23. The Council reallocated the case again, because the social worker was about to leave the team. The Council’s view at this time was that a suitable person could only be someone with an LPA or someone appointed by the Courts.
24. This confused Ms C and she asked the Council in an email on 27 June 2017: “I am slightly confused about making an application to the COP for deputyship. Having read the guidance, it says that if there is no LPA or Deputy in place, someone else can be appointed as long as they can fulfil the requirements to manage the direct payment (either on their own or with help). Has the guidance changed?”
25. In response, the Council said that the suitable persons form required someone with an LPA or someone who had been appointed by courts.
26. This was incorrect, as the Council’s suitable person form has a category of “Suitable Other: A person who does not have Lasting Power of Attorney from the person needing services, at some point before they lost capacity; nor a deputy appointed by the Court of Protection (…). I have read and agree with my 'responsibilities of being a Suitable Person' and understand that I will need to have my suitable person status agreed by a representative from the Royal Borough of Greenwich”.
27. Internal correspondence on 27 June 2017, seemed to suggest that it was Ms C who was at fault for not carrying out the actions agreed at the meeting in January 2017. This resulted in a letter from the legal team to Ms C the same day “to make my client’s position absolutely clear going forward”:
• You must provide details of a suitable person who will manage a Direct Payment on Mr M’s behalf.
• There will be a further capacity assessment, followed by a best interest meeting, to determine if the suitable person should manage Mr M’s Direct Payment on his behalf.
28. However, Ms C had already provided this information in January 2017. Furthermore, it was the Council who had not progressed the capacity assessment agreed at the meeting in January 2017.
29. It took three weeks before the case was allocated to a new social worker. The social worker contacted Ms C to agree a meeting to discuss the way forward and possible dates to start the mental capacity assessment (MCA) process.
30. Due to the impasse, the social worker’s manager proposed a face to face meeting to resolve any outstanding issues. The meeting took place on 4 September 2017. The minutes state, amongst others, that:
• Ms C’s son exchanged contact details with the social worker and confirmed his commitment to the role of Suitable Person.
• The Council apologised for its failure to take action points forward from the January 2017 meeting. It said there was nothing to stop her son from being a suitable person.
• All parties reached an agreement how to start up the MCA process.
31. On 28 September 2018:
• The social worker completed the MCA, which concluded that Mr M did not have capacity to make decisions about finance.
• A care review took also place.
• Ms C’s son signed the Suitable Person Agreement.
32. The social worker said on 19 October 2017 that she has received all the documents to set up the Direct Payments. The social worker forwarded the required information to the Direct Payments team on 30 October.
33. The Council met with Ms C’s son on 15 November 2017 and completed some of the forms. All signed forms were received by the Council by 27 November 2017. However, there was no further progress with regards to actually setting up the Direct Payments. As the Council did not provide Ms C with any updates about this, she contacted the Council on 28 June 2018 to ask when she would be paid.
34. The Council allocated the case to a new social worker on 18 July 2018 to carry out a review of Mr M’s care.
35. An internal email from the Council dated 6 November 2018, included instructions to set up on-going four weekly payments of £234 a week. When asked, the Council could not explain to me why this was possible in November 2018 and not before. There was a further delay until March 2019 before the regular payments to Ms C started.
36. Ms C has told me that, although she managed to receive the money she was owed between January 2017 and March 2019 through the small claims court, pursuing the above has resulted in significant distress and time and trouble. Ms says it led to a deterioration in her mental health and an increase in her stress levels, which required medical treatment. She also reduced her normal job by one day a week in June 2018.
37. However, Ms C told me that the above events did not have an impact on Mr M.
38. The Council has told me that, as of today:
• Several capacity assessments for Mr M still remain outstanding.
• The Council has not yet made an application to the Court of Protection for Deputyship, to enable the Council to manage Mr M’s finances.
39. The Council established a need for a deputyship for Mr M in 2017. While this has not been subject of this complaint, the Ombudsman urges the Council to come to a view whether this is still required, taking into account that Ms C is already Mr M’s DWP appointee. If the Council concludes this is still required, the Ombudsman urges the Council to progress this as soon as possible.

Assessment

40. There was an unreasonable delay by the Council in progressing the key actions agreed at the meeting in January 2017, which resulted in a delay of almost two years in setting up a Direct Payment. This was due to:
• The Council initially believing that Ms C’s son would have to be appointed through the Court of Protection.
• The Council’s failure to effectively work together with Ms C’s son to ensure that all the forms were signed in a timely manner
• A delay by the Council in carrying out a mental capacity assessment
• The case being transferred several times to different social workers
• And several periods where it just seems that nothing happened, without this being addressed through any monitoring or supervision mechanisms the Council may have
41. During this time, there were several periods during which the Council did not provide any updates to Ms C.
42. The above delays resulted in significant distress and frustrations to Ms C and her having to spend a significant amount of time and trouble, including several visits to the small claims courts to get the money she was owed. However, I am unable to come to a view to what extent this resulted in any medical treatment she has since received or her decision to reduce her working hours.

Agreed action

43. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology to Ms C for the faults above, the distress this has caused her, and for the time and trouble she had to spend to deal with this. It should also pay her an amount of £1,000.
• Review the way it monitors the progress of individual cases, particularly when a case gets transferred several times, to ensure actions agreed are progressed and completed in a timely manner.
• Share the lessons learned with its staff in adult social care.
44. The Council has told me it has accepted my recommendations.

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Final decision

45. For reasons explained above, I have upheld Ms C’s complaint. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Parts of the complaint that I did not investigate

46. I decided not to investigate Ms C’s complaint about what happened in 2015, because these matters are out of time. If Ms C wanted the Ombudsman to investigate those events, she should have brought these to the attention of the Ombudsman at the time.
47. I also decided not to investigate Ms C’s complaint about Mr M’s needs assessments since 2017. I discussed this aspect of Ms C’s complaint with the Council, who agreed that it can investigate this because it was not considered by the small claims court, when Ms C referred this to them. If Ms C is unhappy with the complaint response she will receive from the Council, she can refer it to the Ombudsman for consideration.

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Investigator's decision on behalf of the Ombudsman