Date of decision: 6 April 2025
Summary
The complaint related to the discretion to allow a disabled adult to employ a close family member as a personal assistant while still living together. The Council misunderstood its powers under the Care Act in this regard. Although this did not ultimately deprive the individual of necessary support, the report highlighted a risk of similar errors affecting others, with implications for choice, control, and dignity in care arrangements.
What happened
Mr X, who has autism and mental health problems, was referred for a Care Act assessment in November 2023 after a period in which he had multiple hospital admissions.
The Council assessed his needs, identifying several areas where he required support, and noted that his mother was providing all the care while he lived at home. [There is no detail in the report as to whether they found her to be willingly and ably providing the care, and an omission in that regard would have rendered the assessment invalid, because it must be done on the basis of ignoring human input, in order that the total need is logged.]
Mr X sought changes to his assessment and was re-assessed in early 2024, with the process involving delays into February. The range of needs in which he was found eligible, increased. The document included the information that his mother was willing to continue to help with key aspects of his needs, including having a main meal at her home each day, maintaining his home and providing emotional support.
Mr X expressed a wish to employ his mother as his personal assistant using direct payments, but was told by the social worker this was not possible while they lived together, only once he moved out.
A social worker visited Mr X on 9 April and he said he intended to move in a few months.
The social worker left so the plan was delayed until May. This provided for a personal budget of £344.92 a week which included £42.59 a week for support from the autism charity from 23 January 2024. The rest was for employing a personal assistant for 20½ hours a week from 1 May 2024.
The point of the complaint was that he had been referred the previous November 2023 and been found eligible soon afterwards, so his personal budget should have been backdated to November 2023. He said he could evidence care costs averaging £358.69 a week since 14 November 2023, on attending the autism charity in another area. He said he should not be penalised for the delay arising from the fact his first assessment was incorrect. He asked the Council to backdate the full amount to 14 November 2023. He asked for backdating of the funding for PA input, effectively his mother’s input, saying he had moved out (of her home) on 8 April.
The Council offered backdating for the autism charity if he could satisfy it as to having used those services.
Regarding his mother’s input as PA services, the Council said that there had been no agreement with him over how he would use his direct payments and no personal assistant had been identified.
What was found
The Ombudsman found the Council at fault for not being aware of the discretion to allow direct payments to be used to employ a close family member living in the same household, under the Care and Support (Direct Payments) Regulations 2014.
However, the Ombudsman concluded this did not cause injustice to Mr X, as employing his mother was a preference rather than a necessity and the evidence showed that other support options were available. Another way of saying this was that there was no evidence of necessity.
There was no evidence Mr X had informed the Council that he had moved out on 8 April 2024 until later, so there were no grounds to backdate direct payments for a personal assistant (whether or not it was his mother who had provided the support) before 1 May 2024.
The Council agreed to backdate funding for the autism charity if evidence of earlier use of that service was provided.
No specific financial remedy was recommended, but the Ombudsman required the Council to ensure staff are aware of their discretion regarding direct payments and family members. It thought it should be able to ensure that that is done by August 2025.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Under the Care and Support (Direct Payments) Regulations 2014, the basic rule is that payment not be used for input from any close listed family member living in the same household. However, councils have discretion to allow direct payments to be used to employ a close family member living in the same household, if it is deemed necessary to meet the individual’s needs, and they must exercise that discretion in a way that is compliant with public law principles: addressing the evidence, considering all relevant considerations, acting fairly, considering human rights and not fettering their discretion.
Statutory guidance makes clear that this discretion should be actively considered in each case, particularly where the person’s needs cannot be met in any other reasonable way, because that is implicit in the notion of ‘necessity’, given the duty to meet the need is the primary duty that provides the whole context for the budget and the deployment route through a direct payment.
But since the visit on the 9 April found Mr X at home and intending to move in a few months, we think that the LGSCO found it inherently improbable that he had in fact moved out on the 8th April.
We found it hard to believe that the Council thought it would take until August 2025 to ensure that its staff could be certain of knowing the law under which they are obliged to function.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Rochdale Metropolitan Borough Council (24 009 635) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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