Summary: Mr X complains the Council’s commissioned provider failed to give him respite support on two occasions and it failed to pay the self-employed carer he engaged as replacement cover. The Council was at fault for its failure to provide Mr X with respite support. As a result, Mr X paid privately for the replacement carer. The Council will take action to remedy the injustice caused.

The complaint

1. Mr X complains the Council’s commissioned provider failed to give him respite support for two days in March 2020 and two days in August 2020. Mr X said the Council failed to pay the self-employed carer he engaged as replacement cover. Mr X also complains the Council’s only payment method of Direct Payment at the rate of £13 per hour to cover the costs of a replacement carer is an unreasonable amount.
2. Mr X says he wants the Council to refund him a sum of £180 he paid for a replacement carer.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of the organisation, I have made recommendations to the Council.
5. 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

6. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries.
7. I sent Mr X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

8. Where an individual provides or intends to provide care for another adult, the Council must consider whether to carry out a carers’ assessment if it appears the carer may have any level of need for support.
9. Carers’ assessments must seek to establish the carer’s need for support. The assessment must also consider the carer’s activities beyond their caring responsibilities and the impact of caring upon those activities.

Direct Payments

10. The Care Act 2014 states a person with eligible care needs can have a council arrange their care or, if they wish, they can arrange their own care using a direct payment.
11. Direct payments are monetary payments made to individuals to meet some or all their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.

What happened

12. Mr X looks after his wife, who has some health conditions. The Council has assessed he needs six hours respite per week for his wellbeing and to have time away from his caring responsibility. The Council’s commissioned service provides Mr X with six hours respite support per week.
13. Mr X said the Council’s commissioned service failed to provide him with respite support for two days in March 2020 due to the sitter’s ill health. In August 2020, it failed to provide Mr X with respite support for another two days because the sitter was on annual leave. Mr X informed the Council about its failure to provide him with a total of twelve hours respite support.
14. In response, the Council said the commissioned service does not have an annual leave policy but it endeavours to provide respite support where possible. It explained the commissioned service was unable to cover the service for the two days in March 2020 and the two days in August 2020 due to limited resources. The Council further confirmed the service does not use agency staff and it will not pay for self‑employed care by way of invoices.
15. Mr X told the Council he had found and would engage a self-employed carer as replacement cover and he would invoice the Council. The Council explained to Mr X it does not pay self-employed carers directly but it offered Mr X Direct Payments (DP) as a payment method for the replacement cover. Mr X rejected the DP offer. He considered the Council’s “Personal Assistant” DP rate of £13 per hour to cover the cost of a replacement carer was an unreasonable amount. Mr X said it would be difficult to get a sitter at that rate. Mr X also said the DP rate the Council offered him was lower than the £18 hourly rate it pays for the commissioned service.
16. The Council said Mr X wanted it to either pay the self-employed carer directly or for the Council to provide Mr X with a DP at a higher rate to pay the replacement cover he engaged. The Council explained to Mr X it does not have the capacity to do either. Mr X engaged and paid a self-employed carer privately for the twelve hours respite at a rate of £15 per hour. Mr X made a complaint to the Council about its failure to provide him with respite support and its failure to pay for the replacement cover he engaged in March and August 2020.
17. In response to Mr X’s complaint, the Council acknowledged the impact the lack of his respite support may have had on his wellbeing and carer support needs. The Council maintained it was unable to pay for his replacement cover in the ways he requested but it is happy to further explore the DP option and the support available for Mr X to take up the DP offer. Mr X remained dissatisfied and made a complaint to the Ombudsman.
18. The Council, in its response to my enquiries said it plans to work with the commissioned service to better understand why it failed to inform the Council of issues about covering care workers’ leave.

Analysis

19. The Council assessed and found Mr X eligible for six hours respite support per week as contained in his carer’s support plan. By law, the Council must provide Mr X with the identified support he needs as a full-time carer for his wife. The Council failed to provide Mr X with a total of twelve hours respite support in March and August 2020. This was fault which led to Mr X engaging and paying privately for replacement cover on both occasions.
20. There was no evidence to show the Council discussed the DP option with Mr X prior to March 2020 when it first failed to provide him with respite support. The use of DP as an alternative payment method to cover replacement carer costs when the Council cannot provide Mr X with respite support was also not specified in his support plan. Mr X informed the Council in August 2020 of its failure to provide him with a sitting service for the second time and the Council offered him a DP. I find the Council’s commissioned service has no robust process in place to enable it to plan for cover when a carer is not available due to sickness, annual leave or otherwise. This was fault. Mr X did not have to accept a DP and should not have had to find a replacement carer himself.
21. Mr X has a right to decline the DP offer as he has done but that does not mean the Council was at fault for offering Mr X the DP payment at its “Personal Assistant” rate which is lower than its “Agency” rate. This is in line with the Council’s funding policy and whilst I recognise Mr X disagrees with the personal assistant lower rates, I cannot criticise the Council for its position on this.
22. It is important to note that if Mr X were to take up the Council’s offer of a DP, he could engage a self-employed carer or use more expensive services for replacement cover. The Council’s position is if Mr X does this, he can ‘top-up’ the DP or pay the difference if the carer he engages costs more than the market rate.
23. The Council confirms it is happy to further explore the DP option for Mr X’s future use and what support would be available to him to take the DP payment method up as a contingency plan.

Agreed action

24. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:

Within one month of the final decision:

• apologise in writing to Mr X for the time and trouble caused privately getting a replacement carer.
• as a one-off payment, refund Mr X £180 to cover the cost of the replacement carer he engaged when the Council failed to provide him with respite support.

Within two months of the final decision:

• review the Council’s commissioned service absence cover policy to ensure a reliable sitting service is provided when care workers are not available due to sickness, annual leave or otherwise.
• review the existing communication system between the Council and its commissioned service. Ensure there are clear mechanisms in place for prompt identification and effective resolution of issues, in particular providing suitable cover for care workers’ absences.

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Final decision

25. I find evidence of fault by the Council causing injustice to Mr X. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman