Summary: Mrs X, a shared lives carer complained on behalf of herself and the person she cares for, Mr Z. She said the Council failed to pay direct payments in 2022; that Mr Z’s respite cover is inadequate, the Council delayed completing a care and support assessment; the Council’s complaints response was delayed, and her shared lives agreement has ended. We find the Council was at fault for a delay in finalising the care assessment, delay in responding to Mrs Z’s complaint and delay in completing the review. This caused Mrs X and Mr Z significant stress. The Council has agreed to several recommendations to address the injustice caused by fault.

The complaint

1. The complainant, Mrs X is a shared lives carer. She complains on behalf of herself and the person who she cares for, Mr Z. Mrs X said:
1. the Council has failed to pay direct payments in 2022;
2. Mr Z’s respite cover is inadequate;
3. the Council has delayed in completing Mr Z’s care and support assessment;
4. the Council’s complaints responses have not been in a timely manner;
5. the shared lives agreement with the Council has ended now she has moved to a different area.
2. Mrs X said this has caused them significant stress and said she feels unsupported.

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The Ombudsman’s role and powers

3. 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)
4. 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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How I considered this complaint

5. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
6. Mrs X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Direct payments

7. Direct payments are monetary payments made to individuals who request to receive one to meet some or all of their eligible care and support needs. The legislative context for direct payments is set out in the Care Act, Section 117(2C) of the Mental Health Act 1983 (the 1983 Act) and the Care and Support (Direct Payments) Regulations 2014.
8. In addition to monitoring direct payments generally to ensure they are being used to meet care and support needs, the Regulations set out that local authorities must also review the making of the direct payment within the first 6 months of making the first payment. This provision is intended to be used for direct payments made under the powers in the Care Act, rather than pre-existing ones.
9. This review is intended to be light-touch to ensure that the person is comfortable with using the direct payment, and experiencing no initial issues. It should ideally be incorporated within the initial review of the care and support plan 6-8 weeks after sign-off and include elements such as managing and using the direct payment and a discussion to consider any long-term support arrangements that may be appropriate such as payroll, insurance cover and third party support.
10. The Regulations also set out that following the 6-month review, the Council must then review the making of the direct payment no later than every 12 months. In practice, after the initial 6-month review period, councils may wish to consider aligning the annual review of the direct payment with the general review of the care plan. This will reduce bureaucracy and allow the Council to review both at the same time.

Assessments

11. The care and support statutory guidance says an assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.

The Councils complaints procedure

12. When someone complains to the Council, you should receive a response at stage one of its process within 15 workings days. If someone is not happy with the response, the Council will carry out a review. The Council will send out a response within 20 working days.

Shared lives placement agreement

13. A shared lives placement might come to an end if the person is moving away to another area. When the placement is going to end a review is usually held to discuss this and to identify other options that may be available. There will be an agreed notice period for ending a placement which will be detailed in individual placement agreements.

What did happen?

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mr Z lives with Mrs X who is his shared lives carer. Under the shared lives agreement, carers are entitled to 28 days respite a year. In this case the court of protection agreed two days per month respite. This was because the shared lives respite agreement was not suitable for Mr Z.
16. In September 2021 the Council spoke with Mr Z. He said he had found a personal assistant (PA) to provide respite care when Mrs X was not there. The Council told Mr Z he could be supported with his DP’s by a third party (B) with payroll.
17. Mrs X told the Council she was going away. She said she had arranged for the PA to begin his work. The PA had agreed to be employed on a temporary contract.
18. The Council issued a one-off DP to Mr Z in September 2021. The support plan noted there were no suitable alternative options due to the short notice. The agreement detailed Mr X would need to keep any receipts, invoices or records of any payments made for two years.
19. Mr Z confirmed he had received the DP money to pay his PA for the respite care.
20. In December 2021 the Council visited Mr Z at home. Mr Z said he would like to receive on-going DPs to fund regular respite. He said he wanted to manage this himself. The Council’s notes stated it would set up an on-going DP. It said it needed to have a discussion with Mrs X about the number of hours.
21. A new social worker took over the case in December 2021 and visited Mr Z. The Council said the social worker attempted to complete a review to verify the support in place. It said this was to also establish ongoing care and support needs and put in place a support plan to include appropriate respite provision.
22. The Council said requests for evidence about appropriate use of the DP led to Mr Z requesting an alternative social worker. But Mrs X said this was because the social worker was unreliable. The Council said it told Mr Z this could take some time.
23. In March 2022 the Council told B it was waiting to meet with Mr Z to discuss his ongoing care needs before it could agree to ongoing DP’s.
24. In the following month, the Council told B it had met with Mr Z. It said it wanted to review the current DP.
25. A new social worker was allocated in September 2022 and wrote to Mrs X. They said as she had moved out of its area, she would need to re-apply to the relevant Council if she wished to continue providing support to Mr Z as a shared lives carer. They said it would need to complete a review of Mr Z’s care needs. They said they had no evidence to suggest the DP was paid to the PA and asked for this to be provided. Once this was confirmed, the social worker said they could request an ongoing DP account.
26. In the same month the Council said prior to Mrs X receiving the letter, she had given the shared lives team 28 days’ notice to end the placement on 8 September 2022. But Mrs X said she wanted to withdraw this until further discussions were held with Mr Z about what he would like to do moving forward.
27. The Council said after it had completed the care act assessment, it would be clear whether a shared lives service was the right outcome or whether alternative support was possible. If a shared lives placement was concluded, it said Mrs X would need to re-apply to be a shared lives carer with the other Council.
28. The care act assessment was completed in October 2022. It reiterated that Mrs X would need to re-apply to the other Council if she wished to remain as a shared lives carer. It also said it had no sufficient evidence that confirmed Mr Z required 24-hour care.
29. Mrs X advised the Council in November 2022 that she was going on holiday and Mr Z required support.
30. Mrs X complained to the Council in the same month. She said:
• the courts had ordered that provision should be provided in the home whilst she was away and DPs were put in place to support this;
• the courts had ordered she should be given two days a month break;
• she had previously been told by a social worker that Mr Z would always be funded under S117 of the mental health act so it didn’t matter if the family moved to a different address;
• the Council has put a hold on the DPs meaning the PA had not been paid. The PA would now not care for Mr Z when Mrs X goes away;
• there has been no recent care act assessment and she has not been supported as a carer;
• she had asked the Council what care would be provided to Mr Z when she is away and has had no response.
31. The Council said it would look into Mrs X’s complaint. It agreed to offer night support cover by a PA for Mr Z whilst she was away for five days. It said this was a special circumstance and could not be taken as evidence to substantiate any past or present support Mrs X was reporting to be provided for Mr Z. It said it would not back date sleeping night cover for an unassessed need. The Council said the PA would need to record the level of support provided to Mr Z.
32. In December 2022 the Council said it would be sending Mrs X the care act assessment. It said once Mr Z had read and confirmed he was happy, it could be finalised. The Council also said it could then arrange a meeting to discuss Mr Z’s ongoing needs and care provision.
33. In the following month Mrs X provided the Council with an overview of Mr Z’s current daily needs and asked for this to be added to the care act assessment. She said Mr Z currently had no support if she planned to take a break. She said the Council had refused to pay the DP’s and owed payments for 2021-2022.
34. In April 2023 the support plan was updated to reflect the backdated payment for the respite care for the five days agreed in November 2022. But this has not yet been paid.
35. In May 2023 the Council asked Mrs X to provide details of all holiday dates back dated since the end of 2021. Mrs X asked the Council to contact B who she said she had made the request to.
36. B told the Council the payroll element of its support had been suspended and no timesheets had been processed since August 2022. This was because they said there was a debt owed to their payroll. The notes stated there was an issue around funding and the family were disputing what should be funded by the Council and what should be funded by them.
37. The finalised care act assessment was sent to Mr Z’s advocate in October 2023.

The Councils response to the complaint

38. The Council responded to Mrs X’s complaint in April 2023. It said:
• no evidence had been provided to suggest the courts had ordered more than 28 days respite;
• Mrs X made the Council aware she was going away and it was agreed that day time support would be provided as per Mr Z’s assessed needs;
• Mr Z had not been assessed as needing night time support and this would require a reassessment of his needs;
• shared lives made Mrs X aware that the Councils shared lives team does not manage long term placements outside of the city boundary. The team was temporarily supporting the situation whilst the care act assessment was being completed;
• it would backdate the monthly respite DP payment since October 2021;
• it would continue to work with Mrs X and Mr Z to complete the care act assessment.
39. The Council also said:
• the DP’s for 2021 was agreed. It was waiting for feedback from Mr Z on the current care act assessment so it could process the payment;
• the DP was agreed to fund the 2022 respite provision. It was Mr Z’s responsibility to arrange for PA cover during the respite period. He was advised a PA was available to provide cover;
• the DP to cover the May 2023 period was agreed and Mrs X was informed of this. It said it needed evidence night care was provided.

Analysis – was there fault by the Council causing injustice?

Part a of the complaint

40. The Council issued a one-off DP in September 2021. Mr Z confirmed he had received it. He also confirmed he would pay the PA for the respite cover.
41. In December 2021, Mr Z confirmed he wanted to manage his own DPs and he wanted this to be an on-going agreement. The guidance states councils must review the making of the DP within the first 6 months of the first payment. The Council said it attempted to complete a review in December 2021 to verify the support in place and establish ongoing care and support needs. The notes stated the plan was to set up ongoing DP’s and speak with Mrs X about the number of hours.
42. The Council said it asked Mr Z to evidence the DP was used to pay the PA in December 2021. This request is in line with the guidance. But it said in response to this Mr Z asked for a new social worker. While it is not fault for the Council to request this information, there is an unexplainable drift in this case. The notes suggest the Council told B in March 2022 it was waiting to complete a review with Mr Z. But a review of Mr Z’s care needs was not held until October 2022. This is fault. There is a lack of evidence to support what action the Council was taking to complete the review. There is also a lack of evidence to suggest the Council made attempts to speak with Mrs X about the number of hours as stated above.
43. The Council requested this evidence again in September 2022. Mrs X told us she sent this information to B. She provided us with a copy of a bank statement. Mrs X said this payment was made to Mr Z to pay the PA. She also said Mr Z had made some payments in cash. The 2021 DP agreement is clear and states people need to keep receipts, invoices or records of any payments for two years.
44. The letter sent to Mrs X and Mr Z in September 2022 clearly stated the Council needed evidence. I have seen no response to this. It would have been up to Mrs X or Mr Z to contact the Council and provide the evidence. The guidance allows councils to monitor DPs to ensure they are being used to meet care and support needs. I do not find fault with the Council for asking for this information.

Part b of the complaint

45. Mrs X said Mr Z’s respite cover is inadequate. She said there is not proper provision in place to take a break. The support plan states Mr Z is supported by Mrs X and his PA two days per month. The Council said it has no evidence to suggest the courts had ordered more than this. I have also seen no evidence to suggest this. Mrs X told us the respite has never been taken as two days per month. Instead, it has been taken as holidays.
46. As stated above a review of the DP’s and current care did not take place until October 2022. Had this taken place earlier, the ongoing DPs could have been set up to establish how the respite would have been provided.
47. Mrs X told the Council Mr Z required 24-hour care. But the Council told Mrs X in November 2022 it had no evidence this was required. It said it would not back date the sleeping night cover for an unassessed need. It also said the PA would need to record the level of support provided to Mr Z. An ongoing assessment was required to assess Mr Z’s nighttime needs.
48. The Council has evidenced it has considered the request for 24-hour care. It has clearly explained what needed to happen going forward. That is a decision the Council is entitled to make. Where a council has followed the correct process, considered all relevant information and given clear reasons for its decision, we cannot criticise it. Therefore, I do not find fault with the Council.

Part c of the complaint

49. The guidance states assessments should be carried out over an appropriate and reasonable timescale. It says councils should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process. Once the assessment was completed in October 2022, the Council told Mrs X in December 2022 it could be finalised once Mr Z was happy with it. The Council asked Mrs X to support Mr Z with providing his feedback.
50. The notes stated the draft copy was sent to Mr Z on two separate occasions and he had access to it for six months. Mrs X provided the Council with her comments in January 2023. The Council made Mrs X aware in April 2023 it was waiting for feedback from Mr Z before it could process the payment. At the request of Mrs X the Council attended their property in June 2023 to gather Mr Z’s feedback.
51. Between January and April 2023 there is a drift in this case. I do recognise that this was not all due to fault by the Council as it was waiting for Mr Z’s comments. But the Council does have a duty to ensure the assessment is carried out over an appropriate and reasonable timescale. We would expect councils to have oversight of this. This is fault and not in line with the guidance. The Council said this has now been finalised and payments will be backdated. But this did cause frustration and stress to Mrs X and Mr Z and delayed setting up the DP’s.
52. Mrs X said any delays in completing the care act assessment were due to the social worker not agreeing to add Mr Z’s comments. She also said Mr Z needed an advocate to support him with reviewing the assessment. From the evidence seen, Mr Z disagreed with the assessment. But the Council said he was not able to provide any further information on what he disagreed with. I have seen no evidence to suggest the Council was refusing to add Mr Z’s comments.

Part d of the complaint

53. Mrs X complained to the Council in November 2022. The Council responded in April 2023. Its policy says people should receive a response at stage one within 15 working days. Therefore the Council’s response was outside of this timeframe. This is fault. This caused significant stress to Mrs X.

Part e of the complaint

54. In September 2022 the Council told Mrs X that as she had moved address, she would need to apply to her current council’s shared lives placement. It said it would also need to complete a review of Mr Z’s needs. Mrs X said she was previously told by the Council it did not matter where they moved as Mr Z would always be funded under S117 of the mental health act. But I have seen no evidence to support this.
55. In July 2023 the Councils shared lives team wrote to Mrs X and confirmed that as the assessment was complete, its involvement would end. It gave Mrs X a notice period of three months to allow time for care management to work with her to agree an alternative way to provide support to Mr Z. Whilst I understand Mrs X does not agree with this, the Council has followed the correct process set out in the shared lives placement agreement. I therefore cannot question its decision.

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Agreed action

56. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• apologise to Mr Z and Mrs X for the fault identified in this statement;
• make arrangements to backdate the 2022 and 2023 direct payments;
• pay Mr Z £150 to acknowledge the distress caused to him by the faults identified in this statement; and
• pay Mrs X £350 for the avoidable distress, time and trouble caused by the Council’s actions.
57. Within two months, the Council has agreed to issue written reminders to relevant staff to ensure they are aware of the care and support statutory guidance which states:
• assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process; and
• In addition to monitoring direct payments generally to ensure they are being used to meet care and support needs, the Regulations set out that local authorities must also review the making of the direct payment within the first 6 months of making the first payment.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman