Decision date: 05/08/2019
Miss B had autism, OCD and a moderate learning disability. A social care assessment was started in April 2017 and then passed to another social worker in June 2017. A direct payment was granted in November 2017 and a personal assistant was identified by Miss B’s mother. (NB there is nothing in the report to indicate that the payments were made to Miss B’s mother on the basis of lack of capacity on Miss B’s part, so we think that the payments must have been made to Miss B directly.)
On 18 December 2017, Miss B’s mother contacted the Council because Miss B was isolating herself and finding difficulty in engaging with her personal assistant. Miss B’s mother (a mental health practitioner) nominated herself as a replacement personal assistant and the Council said that they would consider it.
On 05 January 2018 a social worker provided details of other support, saying that the council would not fund a payment for Miss B’s mother. Miss B’s mother later followed up that outreach suggestion.
The Council said they would not pay for Miss B’s mother to act as personal assistant as their guidelines said that they only permitted payment of close relatives living at the same address in very exceptional circumstances.
It is not clear whether Miss B and her mother were living at the same address, and some councils just say ‘No Close Relatives’ regardless, so this is an important point to check.
A further visit from a social worker on 7February 2018 was made following Miss B’s mother raising concerns about errors in the previous assessment – the social worker suggested using the direct payments for educational support and said she would confirm that that would be acceptable.
Miss B contacted the Council on 14 March 2018 to seek payment for the time she’d lost, by spending it in training Miss B’s personal assistant up, and related expenses and was told that she could not use direct payment funds in that way.
Miss B’s mother put in a complaint to the Council and soon afterwards, the Council told Miss B’s mother that Miss B could not claim travel expenses (it was not clear what the travel expenses were specifically for) and that they would recover £4987.00 from the Direct Payments as the amount in the account at that point exceeded the agreed balance allowed to accrue.
Miss B’s mother explained that she had not received a care plan outlining what the direct payments could be spent on and asked for that issue to be added to her complaint.
Miss B’s personal assistant left in July 2018 and following that departure, Miss B’s mother provided support.
The council responded to Miss B’s mother’s complaint on 31 July 2018 saying that Miss B should not have been in receipt of direct payments since she had not signed a financial agreement and there was no care plan.
Further re-assessment visits took place on 7 August and on 23 October Miss B’s mother was told that she would be considered to be allowed to be paid to provide support to Miss B as a special circumstance and that the care plan would be sent for authorisation.
On 2 November, Miss B’s mother was informed that Miss B was not allowed to use her direct payment for travel expenses and Miss B’s mother asked for an explanation. Miss B’s mother’s position was that the Council told her she could claim mileage for transporting her daughter to places she needed to go to, but then denied saying that.
On 23 November the direct payment forum considered the application for Miss B’s mother to be permitted to be Miss B’s personal assistant and asked for more information. The care plan was discussed with Miss B and her mother on 26 November with details on education payments and confirmation that travel expenses could not be paid for out of the direct payment.
Miss B’s mother put in a good deal of evidence as to necessity for her receiving some of the funding. The Council’s Forum purported to decide on 11 January 2019 that there were not exceptional circumstances and Miss B’s mother could not act as personal assistant. The care plan was sent to Miss B’s mother on 1 February 2019.
Miss B complained to the Ombudsman with the following concerns about the council:
- Failure of the council to complete a proper assessment in 2017
- Failure to produce a care plan in 2017 and 2018 meaning that Miss B did not know what she was able to spend her direct payments on
- No copy of the social care assessment was supplied
- Miss B had several social workers who did not advise Miss B’s mother properly
- Failure to explain how direct payments worked and to give details of them
- Providing a credit card without an explanation of what it was for
- Telling Miss B’s mother that she could claim mileage and then denying agreeing to that
- Asking Miss B to repay direct payments when her mother had not misused them and she had been misled
- Unreasonably refusing permission for Miss B’s mother to be her personal assistant
What was found
Care Act Statutory Guidance
The Ombudsman referenced the Care Act Statutory Guidance with respect to person-centred planning, genuine involvement, ownership and influence of the person in planning their care package; personal budgets giving clear information regarding the costs of care and support and what the Council would make available through funding; using the care plan to detail how needs would be met and linking back to the outcomes the person wished to achieve in day-to-day life as identified in the assessment process; and to the wellbeing principle in the Act.
In developing the plan certain elements needed to be included (not just because of the Guidance but by reason of s25 of the Act being explicit and mandatory)
- The needs identified by the assessment
- Whether and to what extent the needs met the eligibility criteria
- The needs that the council was going to meet and how the budget would do so for the person
- The personal budget
- The needs that were to be met by a direct payment, and the amount and frequency of the payments
Advice should be given on direct payments and how to use them and information given to allow the person to decide whether direct payments were appropriate for them. The local authority should not engage in any action that would restrict choice and impede flexibility unduly.
Council Guidelines on Direct Payments
The Council’s guidelines said that no direct payments should be made until the plan and financial contract was completed.
The guidance said that the Lancashire Independent Living Service (LILS) would support the person with all aspects of budgeting and managing a direct payment, peer support and support to the person to plan how they will spend their direct payment.
The Council should provide guidance and support on understanding how funds had been allocated and on learning to manage budgets. All intended expenditure types were to be written up clearly in the care plan. The Council Guidance provided a flow chart regarding the process of provision of direct payments to include meetings to draw up the plans and to make sure the person understood the direct payment process and paperwork.
The Council guidance said that a close relative living in the same house could not be funded to provide support unless it was an exceptional circumstance and it being the only way that a person could be made safe and their needs met and their outcomes achieved.
Miss B said that she felt uninformed along the assessment and care plan process. The Council took from April 2017 to February 2019 to produce a care plan and was at fault for not providing sufficient paperwork during that time.
Miss B had only spent a small percentage of the funds offered to her because she was not properly informed about what she was entitled to claim – failure to complete the assessment process and to produce a care plan put the Council at fault.
The Council did not follow due process in setting up the direct payment and did not complete the relevant contract FIN107 as required by their own guidelines – failure to follow a council’s own direct payment guidelines is fault.
The only reason that Miss B was supported during the period from July 2018 to Feb 2019 was because her mother stepped in to support her. The Council did not support Miss B in considering what she should spend her direct payment on and this had caused both Miss B and her mother distress.
The Ombudsman decided that because agreement had been verbal with regard to paying Miss B’s mother to train a personal assistant and for travel expenses, it was not possible to comment on the funds spent (£2485) in that regard.
As Miss B had not spent funds in time, it was not possible to criticise the Council for taking the funds back.
The LGO recorded that there were no notes from the forum to show its reasoning for not allowing the request. The only information was a short email which said the request was declined. Given the details provided by Miss B’s mother the LGO would have expected the forum to record why it did not consider exceptional circumstances existed in Miss B’s case, addressing the points she had made.
The Ombudsman concluded that the Council had misled Miss B about her mother becoming her personal assistant and had not given satisfactory reasons why Miss B’s situation was not exceptional, particularly as there had been encouragement of Miss B to apply for this concession.
This lack of clarity made the Council at fault and they agreed to re-refer the case and to properly record their reasons for their decision, providing adequate communication of their decision to Miss B.
The Council was asked to act within one month and apologise to Miss B and her mother for the faults identified;
- And pay Miss B’s mother £750 to reflect that she had had to provide support for Miss B who did not know what she could spend her direct payment on – it was acknowledged that the distress of this and the time spent on the complaint would cause distress; to consider the request for Miss B’s mother to be personal assistant again and to convey their reasons for their decision to Miss B clearly;
- And to remind social workers of the assessment process and the need to complete care plans and to follow the direct payment process to the person; to ensure that a person is clear about the purpose of the direct payment if they have not accessed most of their funds.
One month after it had considered whether funds could be used from direct payment for Miss B’s mother to be her personal assistant, the council should arrange a meeting with Miss B and her mother to discuss what direct payments can be spent on in detail. The meeting should also discuss whether Miss B and her mother would prefer for the Council to make provision for services or whether she wished to continue to receive direct payments.
Legal points for the public, service users, families, and councils (and CCGs too, regarding personal health budgets in cash form)
People don’t have a legal right to convert public money into cash and become their own commissioners, but they do have a right to due process in and around the decision as to the right method to fund the meeting of needs.
They don’t have a legal right to be assisted to manage, but basic information as to what it can and cannot be spent on, is the only fair way to operate and the council’s care plan has to record the agreed spending plans of the person – because s25 of the Act says so.
The local authority has to be satisfied as to mental capacity at a basic level, and capability to manage the payment by oneself or with a nominated helper who is considered appropriate, or instead the payment of the money directly to an Authorised Person, who CAN be the person’s close relative, and usually IS. It also has to regard a direct payment as an appropriate way to meet need, and there is no case law around the wriggle room inherent in that discretion as yet – only the guidance – mentioned by the LGSCO in this report – public law principles apply.
If an Authorised Person wants to be an employee as well, one can see that that is not going to look like prudent management of public funds because the Authorised Person would be employer and employee all at once. We think in the above case however the mother was only the nominated helper, and therefore that to support her daughter to employ HER, or to engage her to drive her around, would not offend financial management or accounting concerns, because the mother in that case would merely be the daughter’s agent.
We have to say that this distinction is very poorly understood by most councils, who are busy taking direct payments back in-house, and calling them managed accounts, when that term was the term first used in personalisation policy for a ‘virtual’ budget being spent on council commissioned services through approved providers, albeit with input from the client.
The concept now seems to mean that someone in the commissioning team will be doing commissioning of public services one day, and commissioning of direct payment clients’ services the next – all in the same mode, no doubt – from the perspective of control of the market. That’s fine, if it’s all agreed, but we have never seen a direct payment protocol or compact for use with clients that sets out that the council agrees to act as the client’s agent and owes the client a duty to avoid conflict of interest, including conflicts with the council, who’ll be employing the staff in question….and keeping direct payments low, when in fact the cost of PAs has gone UP in the real market – something that one’s agent should of course be pointing out, so that one can be helped to challenge the sufficiency of the direct payment!!
We were really pleased to see the LGSCO echoing the courts in this case, with regard to the problem that Forums are busy deciding this that and the other in the sector, usually without giving any reasons. It is the most basic principle of public law that if a body makes a decision against somebody’s coherent representations, they do them the courtesy of explaining why they were not persuaded by them. Senior staff on panels do not seem to grasp that they are discharging public functions when sitting as a ratifying or other form of decision making panel!
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The full report can be found at: