Summary: Mrs F complains on behalf her mother (Mrs Z) who is a long term carer. Mrs F says the Council found Mrs Z was eligible for a break from her caring responsibilities and agreed to make arrangements to meet this through a direct payment. However, the Council later cancelled the payment when it assessed Mrs Z could pay for the support herself. At this stage, we found the Council was at fault for carrying out a financial assessment to identify whether Mrs Z should meet her own care and support costs. This is because Mrs Z’s needs arose from her responsibilities as a carer. The Council should instead have undertaken a carers assessment. This caused Mrs Z an injustice because she had to meet the costs of taking a break from caring herself. We have therefore recommended a remedy.

The complaint

1. The complainant, who I refer to as Mrs F, is making a complaint on behalf of her elderly mother (Mrs Z), who is a long-term carer for her son. Following her own care assessment, Mrs Z was provided a direct payment from the Council in order for her to have a break from caring for three hours a week. However, following the Council carrying out a financial assessment, it decided this amount could be met by Mrs Z personally. The Council therefore ended the direct payment to Mrs Z.
2. Mrs F says the Council errored in carrying out the financial assessment and is, in effect, charging Mrs Z for undertaking caring responsibilities. Further, Mrs F adds that this has adversely impacted Mrs Z who is now having to cover her own costs of taking a break from her caring responsibilities. As a desired outcome, Mrs Z would like the direct payment reinstated and backdated.
3. In addition, Mrs F is unhappy about how the Council investigated her complaint. She says the complaints process lacked independence.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).

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How I considered this complaint

5. I have reviewed Mrs Z’s complaint to the Ombudsman and Council. I have also had regard responses of the Council, supporting documents and applicable legislation and policy. I invited both Mrs F and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made.

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What I found

Background and legislative framework

Care and support plan

6. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.

Care Act 2014

7. In circumstances where an adult may have needs for care and support, Section 9 of the Care 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.
8. Where a person is assessed as having eligible needs and that person has capital above the upper financial limit, local authorities do not have a statutory duty to meet the individual’s needs. The legal framework for charging is set out in sections 14 and 17 of the Care Act 2014. Any local authority must assess a person’s financial resources to decide whether they should pay for their own care needs, or establish the level of contribution they need to make. The Care and Support Statutory Guidance (CASS) must be followed when assessing charging under the Care Act 2014.
9. Only in care homes, where the financial assessment identifies that a person’s resources exceed the capital limits, is a local authority precluded from paying towards the costs of care. Therefore, local authorities should develop and maintain a policy setting out how they will charge people in settings other than care homes. In deciding what it is reasonable to charge, local authorities must ensure that they do not charge more than is permitted under the regulations and as set out in this guidance.
10. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority. For people receiving care other than as a permanent resident in a care home, local authorities have discretion to set higher capital limits if they wish.

Direct payments

11. The Care and Support (Direct Payments) Regulations 2014 regulates the law in relation to direct payments. They are a means of paying some, or all, of the personal budget to the person to arrange and pay for their own care. They are intended to provide independence, choice and control over the way needs are met and outcomes achieved. The local authority must be satisfied the direct payment is used to meet the needs in the care and support plan and therefore should have monitoring systems in place. Local authorities must review within the initial six months and then annually.

Chronology of events

12. Mrs Z is a long-term carer for her son who has complex health difficulties.
13. In early October 2020, the Council undertook a needs assessment for Mrs Z under section 9 of the Care Act 2014. The purposes of the assessment was to understand whether Mrs Z had any eligible care needs which could be met by the Council through support. The needs assessment identified a number of eligible needs, including for Mrs Z to have a break from her caring responsibilities.
14. In mid-October 2020, the Council set up a direct payment for Mrs Z for approximately £40.00 per week. The purpose of this was for Mrs Z to use this amount to access her local community and enable her to take a break from caring for three hours each week.
15. In late February 2021, the Council undertook a financial assessment to determine what Mrs F would need to contribute towards her own care and support. The Council’s assessment determined Mrs Z could fund the cost of her care.
16. The assessment identified that Mrs Z’s maximum weekly charge was approximately £44.00. However, the Council cannot charge Mrs Z more than the cost of her care services. Therefore, although Mrs Z’s financial assessment determined she could afford to contribute around £44.00 per week, she was found only liable to repay the lower actual cost of her care at around £40.00 per week.
17. In late February 2021, the Council stopped Mrs Z’s direct payment. This is because the amount Mrs Z could contribute outweighed the direct payment.

My assessment

18. In summary, there are two separate aspects to Mrs Z’s needs. This includes her eligible needs under the Care Act 2014 and second, her needs as a carer. The Council has acknowledged that it failed to consider these needs separately as it should have. Although it would be normal practice for a person’s care assessment to be referred to the Council’s Charging for Care team, this was not the correct process given Mrs Z is a carer. This is because Mrs Z’s needs for support arise predominately by reason of her role as a carer. This is noted within Mrs Z’s care needs assessment. On that basis, Mrs Z’s needs assessment should not have been referred for a financial assessment. I do therefore find fault by the Council.
19. In terms of the Council’s complaints process, Mrs F says this lacked independence as her complaint was investigated by the manager of the service which was responsible for the error. I have seen no evidence to suggest the officer investigating Mrs F’s complaint acted prejudicially by reason of the service he manages. I consider the fault of the Council arose due a misapplication of policy and procedure. Moreover, I am only required to accept complaints where the complainant can demonstrate a causal link between fault and them suffering an injustice. I do not consider any alleged failing of the complaints process caused Mrs F or Mrs Z serious loss, harm or distress. The injustice in this case is limited to failings I describe at Paragraph 18.

Injustice to the complainant

20. As a result of the Council’s fault, Mrs Z needed to cover her own costs of taking a break from her caring responsibilities. This is because she was unable to leave home without the support of the direct payment set up by the Council. I consider this is supported by the care needs assessment undertaken by the Council. I do therefore consider Mrs Z has suffered an injustice by reason of the fault.
21. The Council has agreed to carrying out a carer assessment for Mrs Z in order to remedy the failing of referring her needs for a financial assessment. It has also offered to pay Mrs Z £300 as a good will payment to remedy the fault. In my view, I consider the Council’s offer of a carer assessment to be the right approach. I do not however consider the offer of £300 to be satisfactory. This is because the Council acknowledge Mrs Z’s support should have been offered without a financial assessment and her losses far outweigh the Council’s proposed financial remedy. I have therefore outlined a number of recommended actions I consider the Council should undertake. The Council has agreed to these.

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Agreed action

22. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by no later than 1 May 2022:
1. Provide Mrs Z a written apology which acknowledges the fault and injustice identified in this statement.
2. Pay Mrs Z’s her direct payment and backdate this to the date it was cancelled until such time that alternative arrangements are made.
3. Offer Mrs Z a carer assessment and undertake this without delay.
23. I have also considered whether the Council should adopt measures to implement service improvements. However, the Council has swiftly accepted fault in this case and outlined how this case will inform future learning, including through feedback and training. I am therefore satisfied the Council has identified appropriate measures to prevent similar occurrences in the future.

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Final decision

24. The complaint is partially upheld. The Council was at fault for carrying out a financial assessment to identify whether Mrs Z should meet her own care and support costs. This caused Mrs Z an injustice because she had to meet the costs herself. I have therefore recommended a number of remedies. I have not identified any other fault by the Council or injustice to Mrs Z.

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Investigator's decision on behalf of the Ombudsman