Summary: Mr X complains the Council’s offer to pay £10,260 for his care between 30 November 2015 to 9 September 2016, after cancelling his direct payments, fails to reflect the true cost of his care or the fact he continued to need care after 9 September 2016. There is not enough evidence for me to say the Council’s offer of £10,260 is inadequate.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council’s October 2017 offer to pay £10,260 for his care between 30 November 2015 to 9 September 2016, after cancelling his direct payments, fails to reflect the true cost of his care or the fact he continued to need care after 9 September 2016.

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What I have investigated

2. I have investigated the complaint about the offer to pay £10,260.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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, sections 30(1B) and 34H(i), as amended)
5. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, sections 26(6)(c), as amended)
6. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

7. I have:
• considered the complaint and the documents provided by Mr X’s representative, Mrs Y;
• discussed the complaint with Mrs Y;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mrs Y and the Council, and taken account of the comments received;
• consulted the Ombudsman before issuing an amended draft to Mrs Y and the Council inviting further comments which I have considered before issuing this statement.

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What I found

What happened

8. When Mr X moved to Cornwall in 2013 he had a professional Deputy appointed by the Court of Protection to manage his property and financial affairs. This was because he lacked the capacity to manage them himself following an accident which caused a brain injury. Mr X needs people to communicate with him in his native language.
9. Based on an assessment from 2013 and a care and support plan from January 2014, Mr X had a personal budget of £716.06 a week. £549.15 of this was to employ personal assistants (PAs) to help him for 8 ½ hours a day based on these hourly rates: £9.00 weekdays; £9.50 weekends; and £13.50 bank holidays. Mr X received his personal budget as a direct payment. His Deputy used this to employ Mrs Y as the PA. From January 2015 the Council paid £687.62 a week, which took account of Mr X’s assessed contribution (£28.44 a week).
10. Mr X’s care and support plan says:
• he is at risk of food poisoning from eating food which is out-of-date, uncooked or frozen;
• he cannot plan and does not get meals without prompting from others;
• he is at risk of self-neglect and discrimination from others due to a lack of awareness and understanding of his own needs:
• his level of cognition and understanding significantly exacerbates the risk to his safety particularly when away from his home with others;
• he is at risk of financial exploitation without support with all his finances.
11. In August 2015 a Psychiatrist felt Mr X had the capacity to “choose a professional or informal person to look after his finances and affairs”.
12. In October 2015 the Deputy dismissed Mrs Y as Mr X’s PA.
13. On 16 November, in an e-mail to the Deputy, the Council said care commissioned from an agency would not be suitable for Mr X, as he needs carers who speak his native language. It said the same problem would arise with day care facilities, leaving Mr X at risk of social isolation. It said employing Mr Y as a PA while considering alternatives would be the least restrictive option as Mr X wanted this. It said residential care would not be in Mr X’s best interest as it would be too restrictive.
14. The Council cancelled a meeting arranged for 16 November and proposed meeting on 18 November. But Mrs Y was not available. She said Mr X would have no support from 17 November, but her husband could support him if paid, as he would then not need to work on Tuesdays and Wednesdays. The Council agreed to support this “as there are no other viable options except residential care”. They arranged to meet on 23 November.
15. According to the Council’s record of the visit on 23 November 2015 (not entered onto its system until 2 September 2016), it offered “alternative provision”. It now says this involved employing two carers who could speak Mr X’s native language via a care agency. But Mrs Y said they wanted to wait for the Court of Protection to appoint a new Deputy before considering new support options. Mrs Y disputes this and says the Social Worker proposed waiting for a new Deputy.
16. In an e-mail to the Deputy on 24 November, the Social Worker said he started the assessment process the day before but needed to commission an interpreter “at a large cost” to complete it. He said he would also commission an assessment of Mr X’s mental capacity.
17. The Deputy told Mr Y he would be paid £35 a day from Mr X’s direct payments as a “family carer”. On 1 December, Mr Y told the Council he was not happy with this proposal. He said they wanted the Deputy removed and Mrs Y reinstated as Mr X’s carer. As an alternative, he said he would carry on as the interim carer. The Council noted there was complex guidance on self-employment as a PA and direct payments could be stopped in some circumstances.
18. The Deputy told the Council to stop the direct payments from the end of November.
19. On 15 December the Council told Mr X and Mr & Mrs Y the Deputy decided not to employ Mr Y as Mr X’s temporary self-employed PA following a “best interests discussion” with the Council. The Council said this was due to “financial repercussions” and the fact it does not recommend self-employment with direct payments.
20. In February 2016 the Court of Protection appointed a replacement Deputy for Mr X.
21. On 10 June the Council responded to a complaint made by Mr Y. It said:
• allegations made by the previous Deputy against Mrs Y had been referred to the Office of the Public Guardian, so the Council could not deal with them;
• Mr & Mrs Y were providing informal support to Mr X;
• it offered to assess Mr X’s needs, as it had not done this since 2013;
• employing Mrs Y as Mr X’s PA was a “delicate situation” given the previous Deputy had dismissed her but the Council would consider this following a needs assessment.
22. In August 2016 the Psychiatrist felt Mr X had the capacity to make various decisions “e.g. living place, selling properties, making choices, buying goods, making investments, making choices about medical treatment etc.”.
23. On 12 September the Council wrote to Mr X. It said:
• it stopped his direct payments in 2015 because the Deputy had dismissed Mrs Y as his PA;
• it offered alternative support in 2015 via a care agency, but he did not accept this;
• it had identified someone who could speak Mr X’s language to assess his needs;
• it would provide an advocate who could speak his language;
• it needed to meet Mr X without Mr & Mrs Y to confirm what information he wanted to share with them and to get clear consent from him;
• Mr & Mrs Y could take part in the assessment and care and support planning;
• however, neither Mr or Mrs Y could act as his advocate because of a conflict of interest (Mrs Y as a prospective paid employee, and Mr Y as her husband);
• it could not reinstate direct payments without first assessing Mr X’s needs;
• it would need to identify a suitable person to oversee day-to-day management of Mr X’s care, as neither Mr nor Mrs Y could do this as they would be employed to care for him.
24. Mr X wrote to the Council on 19 September. He offered to meet the Council with Mrs Y but would not agree to meet his Social Worker or the person identified by the Council to translate. He said he did not need advocacy as he had capacity to make decisions for himself. He said the direct payments should continue until an assessment took place.
25. On 18 October Mr X told his Social Worker he would do a needs assessment with an independent male interpreter but not with the Social Worker.
26. Mr X complained to the Council in October. The Council put the complaint on hold awaiting proceedings in the Court of Protection.
27. On 9 December Mr X emailed his Social Worker. He said Mrs Y was unwell but he had someone else to care for him and wanted direct payments to pay them. He said he had the capacity to choose the care he wanted. He said he kept asking for a meeting with a different Social Worker.
28. On 4 January 2017 Mr X told the Council he had been asking for an independent needs assessment for a year, but not with his Social Worker or the person identified to translate.
29. When the Council replied on 10 January it said it wanted to get an assessment in place but first needed to know if he would meet the Investigator working on his complaint.
30. In May the Court of Protection found Mr X had the capacity to manage his property and financial affairs and to make decisions about his residence and care. There was therefore no longer a need for a Court appointed Deputy. He has managed his own affairs since then with help from Mr & Mrs Y.
31. The Council commissioned an independent investigation into Mr X’s complaint which reached a conclusion in May.
32. The Council wrote to Mr X on 7 June with its response to the independent investigation. The Council accepted:
• Mr X received a letter about the decision to stop his direct payments which did not accurately reflect some events;
• it stopped his direct payments without telling him;
• the need for an independent assessment of Mr X’s needs;
• it failed to explain the change in its decision between November and December 2015 on whether Mrs Y could be employed as his carer.
33. The Council agreed to:
• consider reinstating direct payments following an independent assessment and producing a support plan;
• consider reinstating Mrs Y as Mr X’s carer.
34. The Council apologised for its mistakes. But it said it would not backdate payments to 2015, as it had offered a substitute arrangement through a care agency which had been turned down.
35. At a meeting with the Council on 31 July to discuss the outcome of the complaint, Mr & Mrs Y disputed the claim that, at the meeting on 23 November 2015, they had suggested waiting until a new Deputy had been appointed before arranging new care provision.
36. On 27 October 2017 the Council wrote to Mr X. It said:
• it should have made interim payments from 30 November 2015, until it had assessed Mr X’s needs and identified the funding needed to meet them;
• this funding should have ended when it offered an assessment on 9 September 2016;
• it offered to pay £10,260 (£36 a day, based on a rate of £9.00 an hour for four hours).

Is there evidence of fault by the Council which caused injustice?

37. The Council has identified the need to reassess Mr X’s needs and produce a new care and support plan. There is no fault in that. In November 2015 the Council was meeting Mr X’s needs based on an assessment from 2013 and a support plan from January 2014. Neither of them complied with the Care Act 2014, which came into effect in April 2015. The expectation within the Care and Support Statutory Guidance is that councils will review care and support plans at least every 12 months. However, it was not until 12 September 2016 (not 9 September) that the Council offered to make appropriate arrangements to assess Mr X under the Care Act 2014 and made it clear reinstating direct payments was dependent on an assessment of needs. Mr X has not taken up that offer. The Council has no duty to meet needs when someone has refused a needs assessment, provided they have the capacity to do so. There is no reason to question Mr X’s capacity to make that decision.
38. When Mrs Y could no longer work as Mr X’s PA, the Council still had a duty to meet his care needs. The Council accepts this and has offered to pay £10,260 to remedy the injustice caused by the fault of not making payments from the start. This figure is based on Mr Y having provided four hours of support a day at £9 an hour from 30 November 2015 to 9 September 2016.
39. The Council has accepted its faults and proposed a remedy. The question for me to consider is whether this is enough for the injustice caused.
40. Mrs Y says the Council should pay the full personal budget up to July 2017, when it completed the complaints process. She says Mr X wants the money owed to him before taking up the offer of an independent assessment. She says she continued to meet Mr X’s needs throughout this period.
41. The Council says its offer of £10,260 is enough because:
• the November 2013 assessment and January 2014 care and support plan were out of date and cannot have reflected Mr X’s needs in November 2015;
• his needs were closely associated with his cognitive impairment and his cognitive improvement;
• by the date of the Court hearing in May 2017, Mr X’s cognition had improved and he had full mental capacity.
42. Given the out of date assessment and care and support plan, there is no way of knowing precisely what Mr X’s needs were between November 2015 and September 2016. Mrs Y says she has continued to meet Mr X’s needs. That shows Mr X did not suffer significant injustice from the Council withholding his personal budget. The only injustice would be to Mrs Y in not receiving payment for the care she provided. There is no evidence of the care she provided to Mr X.
43. The 2014 care and support plan shows Mr X’s needs were linked to his cognitive impairment. The Court of Protection’s decision in May 2017, supports the Council’s claim that Mr X’s cognition will have been improving between November 2015 and September 2016. This is also supported by the Psychiatrist’s view that by August 2016 Mr X had the capacity to make many significant decisions for himself. That means his needs are likely to have been much less than they were in 2014. Within that context, I cannot find fault with the Council’s offer to pay Mr X £10,260. The Council has confirmed that its offer is still available

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Final decision

44. I have completed my investigation as the Council’s offer is enough to remedy the injustice it has caused.

Parts of the complaint I did not investigate

45. I have not investigated:
• the actions of the Court appointed Deputy, as a Deputy is accountable to the Office of the Public Guardian, not the Council, and can be removed on application to the Court of Protection;
• the Council’s decision to repay £16,633.44, rather than £24.874.09, as Mr X took legal action over this, which ended in January 2019. This is because of the restriction in paragraph 5 above; or
• the claim the Council provided inaccurate information to the Court of Protection and prolonged the legal proceedings, resulting in unnecessary legal costs of the Court appointed Deputy which Mr X had to bear. This is because of the restriction in paragraph 6 above.

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Investigator's decision on behalf of the Ombudsman