Decision Date: 13 April 2021
What happened
Mr X complained, on behalf of his daughter (Miss Y) who had physical and learning disabilities. Miss Y lived with her parents (Mr X and Mrs X) and required 24 hour care and support, which included two people to assist with transfers.
In February 2020, Miss Y had in place a care plan, which included direct payments for day services, a sum per year to employ three Personal Assistants (PAs), respite care of 14 nights per year and four weeks of residential care per year. The PAs were required for one hour each weekday and for nine hours on Saturday and Sunday, with Mrs X as the second carer.
She also received the sum of £5,314.32 (included within her personal budget) per year for four weeks of residential respite care, which was commissioned by the Council.
Miss Y’s charge for care was £54.25 per week.
It was around this time that the Country went into lockdown due to COVID-19. As a result Miss Y’s day services were closed on the 9th March 2020. Respite services were also closed, although subsequently re-opened to enable emergency support to be provided.
Mr X was contacted by the Council on the 20th March and enquired how the family would manage whilst services were closed. At this time, Mr X told the Council that they would manage; they had respite care booked and he would make enquiries with the Personal Assistants about increasing their hours.
Mr X, subsequently made a decision that two of the Personal Assistants (who were key workers) should stop visiting the home, as Miss Y was extremely vulnerable due to her health conditions, as was Mrs X. Hence during that time, Mr and Mrs X used their own money to pay their other daughter to assist in caring for Miss Y.
The Council informed Mr X on the 30th April about changes to personal protective equipment and acknowledged that Mr X had cancelled the Personal Assistants to limit risk. On the 1st June the Council were aware that Mr X continued to pay the day services’ bill as well as the Personal Assistants’ average pay.
On the 4th June, he was told since he was still paying the Personal Assistants from the direct payments, Miss Y’s contribution was still payable. Mr X complained that he was not happy with the Council’s response and further that he also wished to appeal Miss Y’s contribution.
On the 5th June, Mr X told the Council Miss Y was unable to access her care package, as she needed to shield. He complained that whilst the Council had provided financial and physical support to others, they had excluded the most vulnerable from that support. The Council had acknowledged that the support they offered in terms of medication and groceries was only small considering the increasing caring roles for Mr and Mrs X, who were both self-employed.
Mr X was not prepared to reinstate the Personal Assistants; as three family members were shielding the risk remained too high. Mr X also informed the Council that he did not know when Miss Y would be able to access the day services, due to the risks and issues with transport. Mr X complained that it was not fair that Miss Y continued to pay her assessed charge, pay for day services and the Personal Assistants, despite not accessing the services.
On the 10th June, the Council asked if Mr X would be prepared to take on the Personal Assistant role and be paid from the direct payment funding. Initially Mr X declined but later asked the Council to consider Mrs X in that role; neither he or Mrs X could do their ordinary work full time at that time, due to their caring role and they received no financial support in this regard. The Council then informed Mr X that he could have applied to furlough the Personal Assistants; however the deadline to make such an application, had now passed.
On the 11th June, Mr X told the Council that his other daughter was returning to University and could no longer assist in caring for Miss Y. He asked the Council to pay either him or Mrs X to support Miss Y for nine or ten hours a week. He also wanted to recover the financial contributions Miss Y had made during this period.
The Council refused to allow a family member to be paid from direct payments, stating it would mean they would be paying twice for Miss Y’s needs, as the PAs were still being paid. The Council also stated that Mr X could stop paying for the day care services until Miss Y accessed those services.
Mr X complained that that did not help, as they were still paying the PAs and that the time period for applying for help for furloughing them had already passed before they were told they could make such an application. Mr X referred the Council to guidance issued by the Government, which allowed Councils discretion to pay family members; and whilst he agreed it would mean paying for the care twice, Mr X pointed out that the Council should have shown greater flexibility.
On the 15th June the Council wrote to Mr X and suggested he could use the money earmarked for the 14 days of respite, to employ PAs.
On the 1st July the Council told Mr X it accepted that there was scope to enable a family member to be paid from a direct payment account; and it would:-
- Pay £1328.59 a week for 14 days of respite care;
- Be a matter for him about managing this sum to pay the PAs;
- Allow a family member to be paid from a direct payment account, as there was legal scope, however here Mr X had a conflict of interest regarding paying himself from the direct payments; or Mrs X, due to her physical and mental health, as far as they were concerned; and
- A matter for Mr X to utilise the funding from day services to instead pay PAs to attend for whole days, when they wished.
Mr X complained about the reason for not authorising payment of Mrs X as ‘beyond belief’ considering the Council knew and expected Mrs X to continue in her caring role. He further complained that it was unacceptable that they should use PAs for a whole day, considering Miss Y and Mrs X’s vulnerability and the key worker roles of the PAs.
The Council responded to Mr X’s complaint on the 4th September as follows:-
- That it had been Mr X’s decision to stop contact with the PAs;
- Government guidance had allowed PAs to continue working;
- They had advised and offered to provide PPE for the PAs;
- Mr X could have made the PAs redundant;
- The assessed charge was not discriminatory;
- Miss Y was not penalised as a result of her having high care and support needs;
- Accepted it failed to properly address paying a family member and was wrong to refuse this on the basis of paying for care twice.
- Failed to involve Mr and Mrs X in discussions about Mrs X’s health and wellbeing in her caring role, although they were justified in their reasoning in not allowing Mrs X to act as a Personal Assistant, whether paid or unpaid.
Mr X responded to the Council on the 11th September stating that Mrs X’s health conditions had been present for a number of years and discussed with Social Services. Despite this, the care and support plan had treated Mrs X as able to be the main carer. The Council had not suggested any appropriate option in relation to support, considering the family were shielding. The Council had never discussed with them the impact of the lockdown on them and the need for them to have taken time away from work to reduce the risks to the family.
What was found
The Ombudsman found the Council were not at fault in their expectation that Miss Y should have continued to pay her assessed charge, as she was still receiving direct payments.
The Council were aware that from an early stage that the family had stopped using PAs, but had continued to pay them. They were also aware that Mrs X was a carer for Miss Y and adopted this input within the care plan. The Ombudsman found that the Council was at fault for objecting to these aspects only at the point that Mr X had asked the Council to consider payment from the direct payments to Mrs X.
The Ombudsman found that whilst the Council did accept a good deal of fault for how they dealt with the issues raised by Mr X, they were at fault, as their response was not in line with the Government’s COVID-19 Q&A, which had first been issued on 21st April 2020.
Specifically the Council had suggested that Mr X could have continued to use the PAs, increase their hours or could have made the PAs redundant. In line with Government policy, the family had decided to stop the PAs and increasing their hours would have been incompatible with this. The Ombudsman also found that making the PAs redundant would not have helped as the family would have wanted to use them when shielding was no longer necessary. It was also not in line with Government policy, which was to protect jobs if possible. The Council’s response was therefore not in line with Government policy, which had encouraged flexibility and relaxed restrictions on how direct payments were used. This was fault by the Council which caused injustice, as whether Mrs X should have received payment for the additional care she had provided had not been appropriately considered.
The Council was asked to:-
– reconsider its decision not to allow the family to be paid from direct payments for support they provided whilst they had shielded Miss Y; and
– apologise to Mr X and pay him £250 for the time and trouble he took to make the complaint.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
The legal framework for direct payments is set out under The Care and Support (Direct Payment) Regulations 2014. Under these regulations there is nothing preventing a parent or close relative not living in the same household from being paid through a direct payment, for care they provide formally. There is, however, a presumption that a parent, spouse, cohabitee or other defined close relative living in the same household, providing care cannot; although there is a discretion to allow this, where it is ‘necessary’.
The likely policy behind that way of dealing with this option is that the government doesn’t want councils encouraged to pay relatives for what those relatives would do willingly out of love and affection. However, providing such care under the circumstances that arose during the initial stages of the Covid-19 pandemic cannot possibly be regarded as willing and able care, when one is providing 24 hour care by default, even if shared. There are however, difficulties in relation to paying oneself when one is the formal Authorised Person in administering the payments because one is the principal – the purchaser of the service, and the provider of it at one and the same time. So there does need to be a level of external management or scrutiny at least, which Councils legitimately need to consider.
The government policy made no difference whatsoever to the rules above, but merely flagged up the position as to the discretion for members of the public and aligned the national situation with the ‘necessity’ criterion. Many would say that local authorities in reviewing people’s crisis situations should have been advising people thus in any event.
The Government guidance also encouraged flexibility, exhorting councils to suspend or reducing restrictions on the use of direct payments. This meant that instead of a formal review and a decision on revision, they could be pivoted informally for a short period, to whatever could be bought, by way of alternatives to day care, for instance, to ensure people’s needs were met to the greatest extent possible.
The full Local Government Ombudsman report on the actions of Staffordshire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-005-645