Date of decision: 19 Mar 2025
Summary
This was a complaint about West Sussex Council’s handling of a direct payment with regard to the arrangements for finding a suitable person to support the administration of the package, and lack of clear communication regarding the changes it was insisting upon, leading to distress and uncertainty for the individual and his support network.
What happened
Mr X had a learning disability as well as certain care needs. He received care and support funded through Direct Payments (DP). He had a Personal Assistant (Ms Y) and a ‘suitable person’ (Mr T) authorised to manage the payment [due to what is presumed to be an earlier decision that he could not manage the payment without such help.]
The Council had appointed Mr T to manage Mr X’s DP after a Mental Capacity Act assessment had found Mr X could not manage it himself. Ms Y was employed to support him with his everyday living needs. [The report does not clarify who was the formal employer of Ms Y.]
The direct payments Mr X received were used to pay for the services provided by Mr T and Ms Y. [The report does not clarify what services Mr T provided by way of management, such as payroll or some other form of support to Mr X to manage the obligations related to the payment.]
In November 2023, the Council visited Mr X at his home to review his care needs and whether his capacity to consent to and manage his DP with adequate support had changed. The Council requested that they speak with Mr X privately, without Ms Y or Mr T present.
Mr X then asked a friend who was present, at the time, to support him during the meeting, where the Council told him Mr T could no longer manage his DP.
Mr X insisted on knowing the rationale for the Council’s decision about whatever they’d come to say. The Council told him it was because Mr T was due to retire from the Suitable Person role.
The Council’s written review notes and Mental Capacity Act Assessment from the meeting with Mr X were dated March 2024 and April 2024 respectively, but the write-ups did not make it to Mr X for 4 and 5 months respectively.
The Council found that Mr X now had capacity to consent to and manage his DP – the latter with support.
Mr T’s role was ended and a referral was made to Independent Lives – a non-profit organisation for care and support.
The Council informed Mr X of its findings on April 18th 2024 and requested that he complete and sign a DP agreement so he could manage his payments independently, with the support of Independent Lives.
The Council followed up with Mr X to complete the new DP paperwork between June and August, but the referral had to be put on hold as Mr X failed to complete it.
Mr X issued a formal complaint to the Council stating he was unhappy with the manner with which the staff had conducted the November 2023 meeting. Mr X questioned why Mr T could no longer act as his Suitable Person and complained that the Council had misled him by saying Mr T was retiring.
The Council issued a response to Mr X where they apologised for any distress it had caused to Mr X for the discussion and decision reached about his care needs as well as acknowledging how requesting a private meeting without Mr T or Ms Y there, had made him feel uncomfortable. The Council explained that its decision to conduct a meeting privately with Mr X was because it needed to discuss the roles of Ms Y and Mr T and so there would have been a conflict of interest if they had been present.
The Council further explained its reasoning behind the steps it took and reiterated that Mr T could no longer help manage the DP and that working with Independent Lives would be a positive step forward for Mr X.
Mr X was still unhappy and went on to complain to the Ombudsman. Mr X complained that he was not contacted by Independent Lives. The investigation led to the Council again affirming that Mr T could not manage Mr X’s DP and that Mr X had an incomplete care plan as a result of his own non-engagement with the process. The Council also said it would continue to work with Mr X to go through the care plan.
What was found
The Ombudsman found no fault with the Council’s decision to stop Mr T managing the direct payment, as this was based on a valid assessment of Mr X’s capacity and wider commissioning compliance considerations.
The assessment revealed that Mr X had sufficient capacity to understand/consent to manage his DP arrangement with only minimal help from Independent Lives. This meant that no suitable person was required anymore in line with legislation and the Council’s DP policy.
The Ombudsman had recognised the impact that this decision may have had on Mr X, as Mr T had been his Suitable Person for several years. However, the report asserts that these sorts of decisions ‘are ones that Councils are entitled to make’.
There was fault by the Council in the significant delays of around four months in issuing Mr X’s care needs reassessment report and five months delay in issuing the mental capacity assessment outcome, which caused Mr X distress, worry, uncertainty, and frustration.
The report found no fault with the Council’s decision to request a private meeting without Mr T or Ms Y in November 2023. Given the subject matter of the meeting, the potential for a conflict of interest meant the Council was entitled to make such a decision. The Ombudsman also noted that Mr X’s friend being present during the meeting would have mitigated his discomfort.
The Council’s initial misleading statement about Mr T’s ‘retirement’ was criticised, but the Council later apologised and clarified its reasons. The Ombudsman felt that this remedy was in line with the relevant guidance.
The Council agreed to apologise in writing and make a symbolic payment of £250 to Mr X to remedy the injustice caused by the delays. The Council further agreed to provide training to staff on the importance of completing care needs reassessments and Mental Capacity Act assessments within an adequate timeframe.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Care Act 2014 requires councils to assess adults who appear to have care and support needs, decide on eligibility, set out those needs and how they will be met in a Care and Support Plan, and provide direct payments as a funding option where appropriate.
Councils must be satisfied that the person can manage the direct payment and should take all reasonable steps to help them do so, including appointing an ‘Authorised Person’ if the individual lacks capacity even to consent to a direct payment. If the person can consent to a direct payment in terms of understanding what one is and what it means to be in charge of one, he or she can still have one via a nominated helper, if they would not otherwise be able to manage the payment. Both authorised persons and nominated helpers must be ‘suitable’ in the opinion of the Council.
The assessment, care planning process, review and revision decision meetings must involve the individual and, where possible, their carers or nominated persons. The Mental Capacity Act 2005 requires councils to assess capacity in an issue or decision-specific manner.
The Ombudsman’s analysis focused on procedural fairness and communication but did not fully address whether the Council’s actions were consistent with the Care Act’s principles of individual wellbeing, choice, and control, in our view.
Community care law emphasises that councils must ensure that any changes to support arrangements are clearly explained, involve the individual in decision-making, and do not unnecessarily restrict their autonomy or preferred support structures, as these are part of the broader concept of wellbeing in s1(2) and s1(3). The report highlights the importance of timely, transparent communication and the need for councils to ensure that all decisions are grounded in a robust assessment of both statutory and individual needs – not just capacity or compliance considerations.
When councils decide to change a direct payment arrangement, they must ensure that the individual and their support network understand the reasons and are supported through the transition. If there is a delay, or apparent non-engagement there should of course be interim provision of services to meet the needs.
Advocacy groups and professionals should be alert to ensure that councils do not use bureaucratic or compliance-driven decisions to override the expressed wishes and wellbeing of individuals, particularly those with learning disabilities or complex support needs.
We think that this decision unfortunately mangles the rules about capacity to consent to a DP with the rules about a person’s capability for managing one. The mere fact that the Council had contracted with Independent Lives does not mean that a person with capacity to consent to a DP must have support from that organisation. The whole point of the nominated individual under the rules for people with a s31 form of direct payment, is that they are nominated by the individual, thus creating the relationship of authorised agent. Of course, if the nominated individual is not regarded as appropriate to provide the help by the Council, then they do not count, and the person wanting the DP may be obliged – by default of not having anyone else – to accept some other entity, to take on that role. If only one option exists, there’s still a choice not to have it help, but on pain of not getting a direct payment….
We are not told enough here as to who Mr T was, or what was ‘wrong’ with him as far as the Council was concerned, given all the initial obfuscation around the suggestion he was ‘retiring.’
He may have been paying himself for the administration, without authorisation from the Council, but we are simply not TOLD anything more than that there were ‘compliance issues’, and that robs the investigation of its potential usefulness for others, in our view.
It turns out, on a thorough examination of the report, that the Council had commissioned various providers to manage service users’ DPs, one of which had previously included Mr T. The Council said it now had a contract with Independent Lives, so Mr T’s services were no longer required by the Council and due to ‘compliance issues,’ which Mr T was aware of.
No mention of TUPE under service provision change rules is made there, and the Ombudsman’s report simply overlooks that fact. However, the report then later mentions that the Council had said that Mr T had handed in his notice to end his role as a DP holder’s suitable person which would mean he would not want to be TUPE’d over, one can only assume – or perhaps that he would have done a deal about the non-compliance being allowed to remain uninvestigated any further – who knows?
If Mr T had previously been appointed to act as an Authorised Person based on a finding of the client’s lack of capacity to consent to holding a Direct Payment in his own name, we can fully endorse the notion that that had to cease, IF Mr X regained or acquired capacity to a sufficient degree.
We agree that a company (and not just a person) can be given the role of an Authorised Person, as long as its director has been put through the Criminal Record Bureau checks (enhanced DBS system). Independent Lives could be paid to be the Authorised Person of a whole number of people, as long as it was prepared to be the formal employer of all of their PAs, because Authorised Persons act as principals, not as agents – precisely because incapacitated people cannot be employers, in contract law.
Since, here, it is clear that the client was being found to have regained or acquired capacity to have a full s31 direct payment in his own name, subject to a condition of being supported, Independent Lives’ task was only ever going to be to take on a nominee role. Nominees act as agents – appointed under the regulations, but at the behest of the individual.
Mr X should have been asked whom he wished to NOMINATE for help, in our view, but instead was just railroaded into having Independent Lives services imposed on him, instead of choosing from the full range of providers that the Council had commissioned (we mean no disrespect to Independent Lives, by the way, at all!)
We are not saying that the Care Act provides for a right of choice in this regard, when it is effectively a condition to having the direct payment, that one finds help to manage. There is no actual duty to provide the help, within the Care Act, only an exhortation in the Guidance. However, when there IS a choice of commissioned or grant-funded providers of these kinds of administrative support service, which is what the report implies, there is no justification for telling a person whom they must nominate, in our view. It would tend to make the concept of ‘nomination’ a sham.
Contrary to what the report says, this is not in line with the legislation at all – and moreover, we think that what then happened may well have been consistent with this man not really having capacity to understand the direct payment at all.
There is a slight hint from the report that West Sussex was working to a previous version of the regulations for the appointment of a ‘suitable’ person for people lacking in capacity, because the language of its policy referred to that person ‘requesting’ a direct payment instead of consenting to it, which is the more up to date language of the Care Act. It is also true to say that the previous regulations that came in around 2008 called such people Suitable Persons instead of Authorised Persons and that the regulations governing Nominated Persons do not make any reference to them as suitable, as such. They must be appropriate, rather than suitable.
If it was all happening correctly, Mr X would logically have needed to have become the employer of the PA, unless he had consented specifically to Independent Lives taking on that role. Independent Lives could, logically, have merely supported him to manage being a direct payment employer; and yet we are told that no effect to his direct payment arose as a result of these developments. So we can smell a rat, somewhere….
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s West Sussex County Council (24 007 403) 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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