Summary: Mrs X complained the Council delayed assessing her care needs and completing a financial assessment. There was no fault in the way the Council assessed Mrs X’s care needs or completed her financial assessment. The Council delayed sorting out Mrs X’s payments and respite and failed to clearly explain why it would not pay her privately employed personal assistant to support her. It has since credited the backdated payments to Mrs X, although it failed to tell her it had done so. The Council has agreed to apologise to Mrs X, pay her £150 to acknowledge the frustration the delays caused and to explain how the backdated payments have been credited to her account.

The complaint

1. Mrs X complains the Council delayed assessing her needs and completing a financial assessment and failed to properly consider her disability related expenditure as part of the financial assessment.
2. Mrs X says this has affected her health and wellbeing and has financially disadvantaged her. Mrs X wants the Council to reimburse her care costs and review its procedures.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I 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. I 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)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have considered the information provided by Mrs X and discussed the complaint with her on the phone.
6. I have considered the Council’s response to my enquiries and the relevant law and guidance.
7. I gave Mrs X and the Council the opportunity to comment on a draft of my decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

Needs assessment

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. Where the council identifies “eligible” care needs it will prepare a care and support plan that sets out how those needs will be met. The council can meet the person’s eligible needs by arranging for a care provider to provide care.

Charging for adult social care

9. The Care Act 2014 sets out the legal framework for charging. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014. Charges may only cover the cost the council incurs.
10. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The assessment must comply with the principles in law and guidance, including the principle that charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee). The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. These are called disability related expenditure (DRE) (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

The Council’s Disability Related Expenditure (DRE) Policy

11. The Council has a DRE policy. This sets out that DRE will be considered when:
• The extra cost is needed to meet a specific need due to a medical condition or disability, as identified within a care and support assessment of needs; and
• The cost is reasonable and can be verified with a receipt; and
• It is not reasonable for a lower cost or alternative item or service to be used. If a lower cost alternative item could have been used the expense considered will be capped at the cost of a lower cost alternative.
12. If receipts or evidence of the expenditure are not received within 28 days from the date of the financial assessment the DRE expenditure claimed will not be taken into consideration and the financial assessment will be finalised.
13. For any receipts received after 28 days, the financial assessment will only be adjusted by the amount of agreed DRE claimed from the date the receipt was received and not backdated.
14. The policy says ‘it may be reasonable not to allow for items where a reasonable alternative is available at lesser cost. For example, not to allow for the private purchase cost of continence pads, where these are available from the NHS.’

Direct payments

15. The personal budget is the amount of money allocated to meet someone’s identified care and support needs. The individual can choose to receive the personal budget as a direct payment. A direct payment gives the individual independence, choice and control by enabling them to arrange and pay for their own care and support.

Personal assistants

16. To become an approved personal assistant with the Council, personal assistants have to agree to the Council’s code of conduct and undertake some on-line mandatory training. It also carries out reference checks and an enhanced Disclosure and Barring Service check to ensure personal assistants are suitable for the job.

What happened

17. Mrs X has physical health conditions. Mrs X privately employed a personal assistant from a property services company for eight hours a week to assist her with cleaning, ironing and personal care. Other care and support was provided by her husband.
18. In October 2020 the Council assessed Mrs X’s needs. It identified she required support twice a day with personal care and medication prompting, plus a direct payment equivalent to four weeks of respite which she could use to purchase support for the periods when her husband was not able to support her. Mrs X initially reported she did not want a care package but later decided she wanted support five days per week.
19. The Council carried out a financial assessment in November 2020. It calculated Mrs X needed to pay £148.29 per week towards the cost of her care package. A brokerage officer visited Mrs X and explained that she would in effect be self-funding her care as the care package was less than her client contribution. Mrs X said she would continue to privately purchase support from her personal assistant. The notes record Mrs X still wanted the respite payment.
20. Mrs X was unhappy with the financial assessment. She complained the Council did not take into account some of her DRE and the cost of the personal assistant she employed.
21. A social worker spoke to Mrs X. They explained why the Council would not pay for the DRE and how Mrs X could reduce these costs herself. The social worker also explained the Council would not fund the personal assistant as that was a private arrangement already in place and the rates were higher than the Council would pay. The social worker said they could support Mrs X to find an alternative personal assistant or could commission a care package for her.
22. The records note Mrs X said she was unhappy with this and she did not want to proceed with the care package at the current rates but would self-fund her personal assistant.
23. Mrs X spoke to the social worker in December 2020. She wanted her complaint about the financial assessment, and her DRE reconsidered. The Council revised the financial assessment when Mrs X provided receipts. It then allowed some DRE, to cover cleaning and gardening expenses, reducing her contribution to £122.13 per week.
24. The social worker contacted Mrs X later in December 2020 to ask about her personal assistant. Mrs X advised they were not registered as a personal assistant but worked for a property services company. She did not want to employ a different personal assistant and remained unhappy about the level of her care contribution. The social worker explained gardening and cleaning were now included in her financial assessment. Mrs X reported she required more support and needed a reassessment.
25. Later that month, Mrs X was admitted to hospital. Following this, in January 2021, she received reablement support. The notes record the social worker advised Mrs X if she needed long term support she needed to be reassessed. Mrs X reported her personal assistant was applying to become a Council approved personal assistant. Mrs X continued to express concern about the level of her calculated client contribution.
26. The Council contacted Mrs X mid-January to advise reablement had completed their assessment. The needs assessment showed Mrs X required ongoing care of two visits a day to support with personal care and medication prompting plus two hours a week support to access medical and other appointments. The Council agreed to contact agencies. At the time, the notes record Mrs X reported she did not require respite.
27. The Council found a care provider who started supporting Mrs X. Mrs X told the Council she wanted to employ her personal assistant via a direct payment but would accept support from the care provider while this was set up. The notes record Mrs X was told she would have to pay towards the cost of the care. Mrs X contacted the Council later that month as she was unhappy with the cost of the care package. She cancelled the care provider. Mrs X reported she would employ her personal assistant to support her. However, the Council had not yet set up the direct payment. An officer discussed this with Mrs X and agreed to email Mrs X the necessary documentation regarding setting up direct payments.
28. In February 2021 Mrs X complained to the Council about the financial assessment process. She complained the Council would not include the costs of her personal assistant in the financial assessment, about delays in the assessment process and about the amount of support offered to her.
29. In mid-February Mr X went into hospital for an operation. He was unable to support Mrs X for around six weeks after the operation. Mrs X paid her personal assistant privately for additional support.
30. Mrs X contacted the Council in late February to advise she had decided not to go ahead with the direct payment and would continue to privately pay her personal assistant.
31. In early March Mrs X contacted the Council to report she needed support with personal care and prompting with medication. She said she could not afford to pay her personal assistant and a client contribution. The social worker arranged to visit Mrs X with a brokerage officer.
32. The social worker reassessed Mrs X’s needs in March 2021. They recommended she still needed two calls a day but the morning visit should be longer than previously. They also recommended three hours of support per week to be used flexibly to support Mrs X with attending appointments. The brokerage officer explained the costings to Mrs X. The social worker noted they discussed respite and it was agreed this would be reassessed at a later date as Mr X did not need to access it at that time.
33. In early April the brokerage officer sent costing information to Mrs X based on a budget of 13.25 hours per week. They calculated the budget as £154.95 per week with Mrs X required to pay £122.13 per week towards it. She would also need to pay a top up of £76 per week as her personal assistant’s hourly rate was higher than the Council’s. They noted Mrs X said it was cheaper to continue paying her personal assistant privately.
34. Mrs X later spoke with the social worker and requested a direct payment so she could pay her personal assistant. She also advised she was looking to take up a volunteering role and would need more support with this. The social worker told Mrs X they would need further details of the volunteering role before they could reassess whether further support was needed.
35. A team manager responded to Mrs X’s complaint in April 2021. They explained the payments Mrs X made to her personal assistant were not included in the financial assessment as the support they provided was not part of the care plan. They explained she needed to pay the financial contribution whether the Council commissioned the care or she received a direct payment, and the Council would pay the costs above this. If she employed her own personal assistant at a rate higher than the Council would pay, she would need to pay a top-up. They said the discussion around the financial assessment had been ongoing since November 2020 to ensure Mrs X understood it and the financial assessment included DRE for cleaning and gardening. The Council had reviewed Mrs X’s care needs in March 2021 and increased her care package by four hours but her assessed financial contribution remained the same. The Council had considered her DRE requests but these had been declined due to not being a care requirement and her contribution remained at £122.13 per week.
36. Mrs X contacted the brokerage officer and said she wanted to go ahead with the care package, employing her personal assistant using direct payments. The brokerage officer arranged to visit Mrs X. She remained unhappy about her client contribution.
37. The social worker and brokerage officer visited Mrs X again in late April 2021 and reviewed Mrs X’s care needs. Following the visit the social worker recommended four weeks respite be added to the care plan. They explained the payments would be backdated to the date of the March 2021 assessment. The Council also reviewed Mrs X’s financial assessment to reflect the annual increase in benefit rates. This increased Mrs X’s contribution to £125.82 per week.
38. Mrs X emailed the Council regarding the complaint response. She was unhappy she had not received any respite payment for when she required support following her husband’s operation. She said there was a lack of clarity about what she was owed, given her personal assistant had supported her for three years. Mrs X said she had to fund this herself.
39. In May 2021 the brokerage officer contacted Mrs X to advise the personal assistant would need to be paid through a payroll service as the company they worked for was not a care company registered with the Care Quality Commission.
40. Mrs X contacted the Council in May 2021 to request extra support for attending hospital appointments. The social worker advised that the hospital could support with transport. The social worker explained they had assessed Mrs X as requiring 15.25 hours of support. Mrs X said she wanted the budget split as her personal assistant could not be paid by the Council to provide personal care. She wanted personal care support from an agency and the remaining three hours as a direct payment for her personal assistant. Mrs X wanted the Council to backdate her payments to November 2020 and not March 2021.
41. The Council wrote to Mrs X in late May 2021 to advise she owed her client contribution for the 11 day period in January 2021 when she received support from a care provider. The Council also agreed to convert Mrs X’s respite payment into hours so she could use it to access care in her own home when Mr X wanted to go out for the day.
42. In early June Mrs X queried when the direct payment would start. The brokerage officer advised it would be backdated to March 2021 when the needs assessment was completed. Mrs X considered It should be back to November 2020, when she was first assessed.
43. In early June a care provider confirmed they could provide the commissioned support and started supporting Mrs X in the morning and evening. In mid-June the brokerage officer asked the finance team to accelerate the direct payments for Mrs X and to commence invoicing her for her client contribution.
44. The brokerage officer visited Mrs X later in June. They went through the support plan with Mrs X and the officer provided Mrs X with a form so she could keep a record of the respite payments used. The officer explained the payments were backdated to March 2021 so Mrs X could reimburse herself. At the meeting Mrs X provided further information about her volunteering role and requested six hours per week for support with this. She also requested additional hours for her personal assistant to support her with correspondence.
45. Mrs X contacted the Council in late June as she had yet to receive the direct payments. It explained there had been technical issues with her account. The Council made the payments to Mrs X in early July 2021. The brokerage officer visited Mrs X in early July. The social worker attended virtually. The social worker agreed to speak with the voluntary agency to establish what extra hours Mrs X may need. Mrs X requested nine additional hours. Mrs X agreed to look at what additional support she received while Mr X was in hospital so the Council could assess whether additional respite payments were due. In August Mrs X’s personal assistant provided this information to the Council. The Council also agreed to provide an additional nine hours of support from August 2021 to assist Mrs X with her voluntary role.
46. In early September 2021 Mrs X complained to us.
47. In September 2021 the Council agreed to pay Mrs X from the date of the October 2020 assessment and for the respite she required after her husband’s operation. It wrote to Mrs X. It calculated it owed Mrs X £304.74 for care (the difference between the total care cost and her client contribution for the period) and £617.22 for six weeks of respite when Mr X was recovering from his operation (the difference between the care cost and her client contribution for six weeks at 15 hours a week). It offset this against the client contribution owed for the care provider support from January 2021 and the invoice for September 2021. The notes record the social worker telephoned Mrs X in September 2021 to explain this.

Findings

Needs assessments

48. The Council assessed Mrs X’s needs in October 2020 and recommended a package of care. Mrs X wanted to pay her own personal assistant to provide support through direct payments and at that point the Council assessed Mrs X would, in effect, be self-funding her care as her client contribution would be greater than the cost of the care package. Later the Council established the personal assistant was not Council approved and did not work for a registered care provider registered with the Care Quality Commission (the regulator of care services). The personal assistant could not therefore be paid to provide Mrs X with personal care. There was no fault in the Council advising Mrs X it would not pay the personal assistant to support her with personal care.
49. The Council was aware in December 2020 that the personal assistant was not a registered carer. However, it failed to explain this, and its impact, to Mrs X until May 2021. Furthermore, it was not until June 2021 that the Council informed Mrs X that she could have a split care package. So she could continue to employ her personal assistant. This lack of clarity was fault and led to a delay in Mrs X accepting a care package from the Council. This was because Mrs X thought she would need to carry on paying her personal assistant as well as a client contribution and she could not afford to do both.
50. The Council reassessed Mrs X’s needs in February 2021 after a hospital admission and period of reablement. Mrs X agreed to receive support from a care provider and the notes record she was advised she would need to pay her client contribution. The Council was not at fault for charging Mrs X for her client contribution for this period. However, the Council was at fault when it failed to bill Mrs X until May 2021. This added to Mrs X’s frustration.
51. The Council reassessed Mrs X in March, April and August 2021 in response to requests from Mrs X or changes in circumstances. It increased the hours of support provided as necessary. The Council responded appropriately to Mrs X’s requests for reassessments and was not at fault.
52. Mrs X continued to privately fund her own personal assistant and so did not miss out on support. In September 2021, the Council also backdated the payments to November 2020 which meant Mrs X was not financially disadvantaged. However, the delay in making the payments caused her frustration.

Respite

53. Mrs X sought a respite payment to enable her to receive support in her own home when her husband was away or during periods when he was unable to provide support. The Council assessed Mrs X’s needs and agreed to provide this support in November 2020. Mrs X decided not to progress with the care package at that time but still requested respite. However, the Council failed to provide the funding. This was fault. As a result, Mrs X had to use her own funds to pay for additional respite support following her husband’s operation in February 2021. The Council agreed to refund this to Mrs X in September 2021 and said it did this that same month. However, it failed to write to inform Mrs X of this. This was fault.

Financial assessment

54. The Council is entitled to charge for care and support. It calculated Ms X’s contribution to her care charges in line with the relevant statutory guidance, regulations and the Council’s own policy. The Council allowed Mrs X DRE for cleaning and gardening; support which was provided by Mrs X’s personal assistant. It explained that it would not award further DRE for other support carried out by her personal assistant as it was not an assessed care need. The Council provided a satisfactory explanation about why other items could not be offset against her financial contribution. It left Mrs X with an amount above the minimum income guarantee level set by the Government. There was no fault in the way it carried out the financial assessments.
55. Mrs X raised repeated concerns about the financial assessment. The Council explained how it was calculated and what was included in the assessment. The brokerage officer visited Mrs X to discuss the care costs. The Council was not at fault.

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Agreed action

56. Within one month of the final decision, the Council has agreed to write to Mrs X to apologise and to pay her £150 to acknowledge the frustration caused by the delays in sorting out her payments and respite and the lack of clarity around what support her personal assistant could provide. It has also agreed to clearly explain what refunds it has provided and how these were credited to her account.
57. Within two months of the final decision the Council has agreed to remind relevant staff:
• to issue invoices in a timely manner
• to explain to clients the option of splitting payments between a commissioned care package and direct payments where appropriate to meet their needs
• to explain to clients in a timely manner the implications of employing non- registered personal assistants to allow informed decisions to be made.

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Final decision

58. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman