Summary: Mr X complains the Council delayed assessing his mother’s needs, suspended her direct payments, despite the fact she continued to have eligible care needs, failed to reinstate them and failed to respond to his complaints, leaving his mother paying for her own care. The Council delayed assessing his mother’s needs, leaving the family to make their own arrangements, failed to respond properly to Mr X’s complaints, and refused to backdate its payments based on inaccurate information. To remedy the injustice caused by it failings, the Council needs to apologise and backdate the direct payments to October 2021. The Council was not at fault for suspending the direct payments when the family employed someone who was not eligible to work in the UK. Nor was it a fault for refusing to reinstate the direct payments when the family wanted to use a care provider for which Mr X is a director.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council delayed in assessing his mother’s needs, suspended her direct payments, despite the fact she continues to have eligible care needs, failed to reinstate them and failed to respond to his complaints, leaving his mother paying for her own care.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mr X’s mother, Mrs Y, has dementia. She was living at home with her husband in 2021 with a package of care arranged by the Council. This comprised a daily visit (45 mins) to provide personal care and a weekly sitting service (two hours) to provide respite for her husband.
6. On 8 September Mrs Y’s family told the Council her husband was going away for four months from 26 September, so they needed to make different arrangements for meeting her needs. They said she needed someone living with her, as they did not want her to go into residential respite care. They asked the Council to review her needs. The Council referred Mrs Y for a review on 9 September.
7. The Council spoke to Mr Y on 23 September, who said Mr X would be arranging support for his wife while he was away. The Council said Mr X had asked the Council for support. It offered to visit but Mr Y said to wait until he had spoken to his son. The Council noted Mr Y preferred a face-to-face assessment and the need to follow this up on 24 September as a matter of urgency, but did not do so.
8. The family decided to employ a live-in carer to meet Mrs Y’s needs while her husband was away.
9. On 29 September Mr X asked the Council about providing support for his mother at night, now that his father had gone away. The Council told him Mrs Y was not eligible for night-time support.
10. The Council cancelled its arrangement with the care provider from 1 October.
11. On 2 November Mrs Y’s family told the Council the live-in carer was leaving on 5 November. They asked the Council to assess her for live-in care. It said it would not normally consider this but first needed to reassess her needs.
12. Mr X called the Council on 8 November to complain about the lack of support. He said the family had been doing their best to meet Mrs Y’s needs but could not continue doing this. The Council advised him how to make a formal complaint, which he did. He told the Council Care Provider B had agreed to provide a live-in carer but this would cost £1,225 a week, which was unaffordable.
13. On 9 November the Council told Mr Y it would probably agree to pay for a package of care up to the dementia level of residential care, so the family would have to make up the difference if they insisted Mrs Y remained at home. It assigned Mrs Y a social worker, who spoke to Mr X and arranged to assess her needs on 11 November.
14. On 12 November the Council agreed to fund a care package based on the cost of a residential placement (£638 a week) so the family could use an agency to employ a live-in carer.
15. The Council’s response to Mr X’s complaint is dated 12 November but he says he did not receive it. The Council apologised for initially sending us a draft copy of the letter, which included notes made by another officer, but despite claiming to have corrected this error, it has sent us another copy of the same document. The author of the letter sent an e-mail to a colleague on 25 November, asking them to post the draft with a copy of the Council’s safeguarding policy. The Council says the officer who wrote the letter confirms having posted it.
16. The letter said Mr Y had turned down an assessment on 23 September. It noted there had been contact with different members of the family. It accepted officers had not explained there was a waiting list for assessments, for which it apologised. It said the Council would remind officers of the need to tell people about any delays and would recommend giving families the option to nominate one person to communicate with. It said the family could take Mrs Y’s personal budget (£638 a week) as a direct payment to employ a live-in carer, with the family topping up any extra costs. However, it also said the personal budget would be subject to approval by its Panel.
17. On 15 November Mrs Y’s daughter, Mrs W who has power of attorney for their mother’s finances, signed a direct payment agreement which included these statements:
• “The misuse of direct payments may lead to payments being stopped with immediate effect. Luton Borough Council will require you to repay any part of the direct payment that is not spent on meeting assessed needs of the service user”;
• “If you are employing staff with a direct payment you must ensure that you understand your legal obligations as an employer and agree to:”
1. “Social Services carrying out an enhanced Disclosure and Barring Services check of all personal assistants you employ [before they commence employment] to safeguard the service user and their family”;
• “You will agree not to use the Direct Payment to employ a spouse, partner or close relative living in the same household without explicit written agreement from Luton Brough Council”;
• “Comply with any legal responsibilities, such as those relating to the employment of staff”;
• “Act lawfully as an employer”.
18. On 17 November the Council told Mr X it would pay £638.26 a week as a direct payment and the family would have to pay any extra costs of a live-in carer. It suggested giving further thought to a respite placement, which it offered to arrange by the end of the week. It noted the family had also been looking at extra care housing, but this could not happen until Mr Y returned as Mrs Y lacks the capacity to sign a tenancy agreement.
19. On 22 November, Mrs Y’s family asked about backdating her direct payments.
20. On 7 December the Council noted the family was using a care provider to support Mrs Y at weekends and a personal assistant to support her during the week.
21. On 8 December the Council asked Mrs Y’s family to confirm the details of the care provider. The family asked what information it needed. The Council said it needed the name of the care provider, phone numbers and the names of the personal assistants. The family gave the Council the information it had asked for.
22. Mr Y’s return was delayed in 2022.
23. On 14 February the Council noted it needed more information from the social worker (requested in January) before it could make direct payments. It told Mrs W, who said Mrs Y was paying an agency to provide support on Friday to Sunday and a personal assistant £400 a month for Monday to Thursday.
24. Mr X called the Council on 22 February to ask why the direct payment card still had no money on it. On 24 February the Council told Mr X the social worker had been away from work, so it would assign Mrs Y another social worker.
25. Mr X made another complaint to the Council on 28 March 2022 about the delay in assigning another social worker for Mrs Y and a delay in arranging his mother’s direct payments.
26. The Council’s reply is dated 30 March and addressed to Mr X at his mother’s address. It says it posted the letter on 6 April. Mr X says he did not receive it. The letter said:
• Mrs Y’s social worker had been away from work for some time;
• it had assigned another social worker for Mrs Y on 25 February 2022;
• the social worker had addressed the delay in getting funds allocated to a direct payment card, so the family could use them;
• the Finance Team was due to make a decision on backdating; and
• it had resolved Mr X’s complaint.
27. On 5 April the Council agreed to extend Mrs Y’s direct payments until 15 June 2022.
28. On 6 April the Council told Mrs Y’s family it had loaded the direct payments onto the pre-payment card. They said they expected the Council to backdate funding to October 2021. It said it would not do that, as Mr Y was still at home meeting his wife’s needs. The family told the Council Mrs Y’s care was spilt between an agency and a personal assistant.
29. The Council identified the need to find out:
• what rate the agency was charging;
• whether the family had been told it paid £16.30 an hour for an agency and they would have to pay any additional costs; and
• whether the personal assistant was self-employed or a payroll provider was needed.
30. In May Mrs W told the Council they were paying a personal assistant £500 every two weeks to care for Mrs Y.
31. On 6 June the Council told Mrs W the personal assistant would need to provide invoices, if she was self-employed, otherwise they would have to use a payroll provider. Mrs W said the personal assistant was not self-employed. The Council told Mrs W it was putting the pre-payment card on hold until it had resolved the personal assistant’s payroll. It agreed to pay invoices for the Care Agency while the care was on hold.
32. On 15 June Mrs Y’s family told the Council it needed to extend her package of care, which ended that day, as Mr Y would not return until October.
33. In July, the Council agreed to extend Mrs Y’s funding for three months, as her husband was still away and no one knew when he would return. However, Council checks with the Government’s Disclosure and Barring Service revealed Mrs Y’s personal assistant did not have the right to work in the UK, having overstayed a visa.
34. On 14 July the Council told Mrs W they could not use the direct payments to pay the personal assistant because she did not have the right to work in the UK.
35. Mrs W said they wanted to continue employing the personal assistant. The Council said they could be fined £20,000 for employing an illegal immigrant. It offered to arrange a care provider, but the family turned this down. It also offered to arrange weekend care, but the family said they would continue to use the personal assistant and pay her privately. Mr X disputes this claim.
36. Mrs W agreed the personal assistant was not suitable to continue.
37. According to the Council’s records, the personal assistant had been living in Mrs Y’s home for several years and received cash for the care provided. Mr X says this is not correct, as the personal assistant worked as a live-in carer for no more than seven months and was paid by bank transfer, not cash.
38. The Council suspended the direct payments on the basis that employing someone who did not have the right to work in the UK was contrary to its Direct Payment Agreement, which her daughter had signed.
39. Mr X complained to the Council on 15 July.
40. On 27 July the Council told Mrs W the Care Provider had to provide invoices for the Council to pay it. It also told her there was no longer a “suitable person” to manage the direct payments because of the problem with the personal assistant.
41. In September the Council decided Mrs Y no longer qualified for a direct payment because of breaches of its policies. It says these are:
• employing an individual who lived in the same household without written agreement;
• employing an individual who did not have the right to work in the UK;
• not meeting employer responsibilities;
• misuse of the direct payments (making payments to someone who did not have the right to work in the UK);
• not paying assessed contributions for care.
42. The Council says it won’t reinstate the direct payment because of these breaches.
43. In September Mrs W told the Council they wanted to start using Care Provider C from 16 September. The Council said to put this on hold until it had reassessed Mrs Y’s needs.
44. The Council asked Mrs W to repay £6,010 which had been used to pay the personal assistant. Mrs W refused to do this, saying the direct payments had been used for the purpose of providing care for Mrs Y. She said the Council should have explained how to access the Disclosure and Barring Service before she had employed the personal assistant.
45. The Council says there are “familial connections” with Care Provider C. Its records refer to this as a conflict of interest. It says this is another reason why it won’t reinstate Mrs Y’s direct payments. According to Care Provider C’s website, Mr X is a director and another relative runs it. The Care Quality Commission told the Council it had been “dormant” until 26 September.
46. When the Council replied to Mr X’s July 2022 complaint in December, it:
• apologised for the delay in responding;
• said it had stopped Mrs Y’s direct payments while it investigated concerns about adherence to its direct payments policy; and
• offered to commission care for Mrs Y.
47. The Council say its process for managing complaints has now been automated. All complaints are acknowledged within three working days. They are then sent to the relevant service for a response. Reports are produced to ensure timely responses are sent to the complainants.

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

48. There was some delay by the Council in responding to the family’s request for help in September 2021. Although Mr Y turned down the offer of an assessment on 23 September, until he had spoken to Mr X, the Council identified the need to follow this up as a matter of urgency. This reflected the fact he was due to go away on 26 September. But the Council failed to do this, leaving the family to make their own arrangements without its help. The Council compounded this fault by telling Mr X his mother did not qualify for night time support and then cancelling the arrangement with the care provider from 2 October without reviewing her needs. This left the family to make their own arrangements without any help from the Council.
49. The Council assessed Mrs Y’s need in November, but only after Mr X made a complaint. It did not respond to a request for backdating until April 2022 and then turned it down on the basis Mr Y had still been at home in October 2021. That was fault, as the evidence indicates Mr Y went away in September. The Council therefore needs to reconsider its decision not to backdate the direct payments to October 2021.
50. Given that the Council has only been unable to find a draft copy of the letter it claims to have sent to Mr X on 12 November 2021, it seems unlikely it did send it to him. This also creates some doubt over its claim to have sent Mr X the letter dated 30 March on 6 April 2022. The Council also failed to respond to Mr X’s July 2022 complaint until after I asked for a copy of its response. Its apology for the delay lacked sincerity.
51. The direct payment agreement does not specifically refer to the need to only employ people who have the right to work in the UK. But it does identify the need to act lawfully as an employer, which would include ensuring someone has the right to work in the UK. That is a legal requirement which applies to any employer, whether or not they are using public money. Within that context the Council was not at fault for suspending the direct payments. Nor can I criticise the Council for refusing to reinstate them after Mrs W proposed using Care Provider C, for which Mr X is a director.

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Agreed action

52. In response to my recommendations, the Council has agreed to:
• within four weeks, write to Mr X and Mrs W apologising for the delay in assessing their mother and for refusing to backdate payments based on inaccurate information; and
• within six weeks, backdate the direct payments to October 2021.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman