Summary: We will not investigate this complaint about delays in resolving a disagreement about how Mrs Y can use her direct payment. There is not enough evidence of fault to justify investigating.

The complaint

1. Miss X complained on behalf of Mrs Y, about delays by the Council in resolving their disagreement about her care and support allowance. The Council has not allowed her to use her preferred care agency and she is not willing to use a different one. Mrs Y has experienced distress, and she has been deprived of her basic rights. She does not have enough hours of support to meet her needs and she is isolated.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We previously considered a complaint from Mrs Y. We found the Council unreasonably delayed reassessing Mrs Y’s care needs and it agreed to carry out a reassessment in early 2021, taking into account needs it had not previously considered. We were satisfied in May 2021 the Council had reassessed Mrs Y and we ended our involvement.
7. However, Mrs Y continued to disagree with the Council about the level of support she needed. The Council agreed with Mrs Y in September 2021 to further reassess her needs, using a different care agency than her preferred one, to gather evidence to inform a final decision. Miss X says the Council promised Mrs Y could begin using her preferred care agency again after a four-week assessment period, but this did not happen, and no final decision has been reached about her care and support.
8. I have seen the Council’s communications with Mrs Y. The Council told Mrs Y in September 2021 the assessment was “with a view to deciding as to how [Mrs Y’s] ongoing care and support is delivered and by whom”. It explained this would help “inform any decisions that may be made as to how [Mrs Y’s] current care agency may be able to better support [Mrs Y]”. This does not include any guarantee the same care agency could be used after the assessment period.
9. The Council explained to Mrs Y at the end of the four-week assessment period, in December 2021, that her preferred care agency had breached conditions of the direct payment scheme by failing to keep and provide full records of care and support provided to Mrs Y. It also identified a carer was providing care and support outside of what was agreed in Mrs Y’s support plan. It asked Mrs Y to identify a new care provider as it would not agree to her using that provider anymore. It could then update her assessment and support plan.
10. Miss X was not willing to consider a new care provider, as she had built relationships with her preferred provider and was familiar with it. There has therefore been no resolution and Miss X complained to us about the delay.
11. The Council is entitled to exclude a named provider from being used via direct payments where this is justified. The Council has explained its reasons for this decision, and there is no evidence of fault in its decision-making. Direct payments are to meet a person’s eligible care and support needs, and in this case the Council was not satisfied that was happening. It is open to Mrs Y to name a new care provider, after which the Council will finalise its assessment and enable her to use her direct payments. The current delay is not due to fault by the Council.
12. The Council is satisfied in the meantime the service it is providing is meeting
    Mrs Y’s eligible needs. Once the Council’s assessment is finalised, it is open to Miss X and Mrs Y to complain to the Council, and then the Ombudsman, about the level of support in Mrs Y’s care and support plan if she still does not feel it meets her needs.

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Final decision

13. We will not investigate Miss X’s complaint because there is not enough evidence of fault in the Council’s actions to justify investigating.

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Investigator's decision on behalf of the Ombudsman