Summary: Mrs X complained the Council reduced her adult daughter, Ms Y’s, personal budget and removed funding for specific activities. She also complained it did not have a process in place to manage the annual uplift in the care provider’s fees. The Council was not at fault for reducing Ms Y’s budget. It was at fault because there was delay in producing the support plan which caused Mrs X frustration and distress. It has agreed to apologise for this. There is no evidence of fault in the way it manages the annual increase in the hourly rate of care providers.

The complaint

1. Mrs X complains the Council reduced her adult daughter, Ms Y’s, personal budget and removed funding for specific activities. As a result, Mrs X says her daughter will be unable to fund these which will affect Ms Y’s quality of life. Mrs X also complains the Council does not have a process in place to manage the annual uplift in the care provider’s fees. As a result, Mrs X is concerned Ms Y’s budget will not be sufficient to meet her daughter’s care needs which causes her distress in managing the direct payments.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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 have discussed the complaint with her on the phone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

7. 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs, how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
9. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
10. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

11. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.
12. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Background

13. Ms Y has a learning disability and lives in supported living accommodation with other adults. A care provider supports the residents 24 hours a day.
14. The Council carried out a needs assessment in late 2017. This noted Ms Y was supported with all aspects of daily living including, personal care and domestic routines, accessing learning, leisure and work, and maintaining her safety.
15. In 2020, Ms Y received a personal budget of £68,404 a year to meet her eligible care needs. Ms Y’s review of her support plan in 2020 referred to a timetable of structured activities spread across the week. The review noted the support plan was meeting Ms Y’s needs and no changes were required.

What happened

16. Mrs X says every year she has had to request an increase in her daughter’s budget to reflect the care provider’s increase in its hourly rate. She says she had to wait for the annual review for this to be actioned and has had to cover the increase from the budget in the meantime. The records show this has not had a significant impact in recent years as during the COVID-19 pandemic, activities ceased and there was money available in the budget. Mrs X says to reduce the problem she agreed to only receive Ms Y’s one to one hours as a direct payment, with the Council managing the budget for the shared hours/overnight care.
17. In 2022, Mrs X wanted a review of the direct payment amount due to an increase in the hourly rate charged by the care provider. The Council says the direct payment was used flexibly to support Ms Y with activities but the Council had no clear record of what support was purchased using the direct payments. So in October 2022, the Council reassessed Ms Y’s care needs. The reassessment noted Ms Y had a structured timetable of activities and it recommended that this continued. The reassessment included a weekly timetable of activities, which was different to that from 2018.
18. The reassessment noted Ms Y received support 24/7 with staffing levels varying including one to one and support hours shared with other residents.
19. In March 2023 the Council wrote to Mrs X to advise her it had reviewed the direct payment account. It found the account had significant unspent funds for the period up to 31 January 2023. Allowing for one month’s payment plus a 10% contingency still left a balance of £20,119.48 to be reclaimed from the direct payment budget. Mrs X was unhappy as the direct payments she had received since April 2022 were below the actual costs as the Council had not actioned the care provider’s hourly rate increase. She wrote to the Council to advise that as the excess funds were being removed and the direct payments she had received were below the care costs she would be forced to take Ms Y out of the supported living placement for part of the week.
20. The Council agreed not to reclaim the funds at that time, leaving an account balance of £28,055.24. It wanted to ensure it covered all costs for the financial year before removing any surplus.
21. The Council completed the support planning May 2023. The support plan set out a budget of £59,122.01. This set out the hours of support to be shared with other residents plus hours of one to one support and Ms Y’s contribution to the cost of a staff member sleeping at the property overnight. It also included a mileage allowance for attending activities and some funding for support with finding Ms Y employment.
22. In June 2023 Mrs X complained to the Council. Mrs X said that in previous support plans and budget allocations the cost of activities was itemised and included. She requested a budget for Ms Y’s specific activities. Mrs X also complained that the Council failed to increase the budget in April each year in line with the care provider’s annual increase in its hourly rate. This meant the budget was not sufficient to cover the care costs.
23. The Council responded that Ms Y’s needs may not have changed but how those needs were met and what was a realistic budget to meet those needs was part of the review and re-assessment process and could be subject to change. It said whilst the Council had a duty to meet needs under the Care Act, it also had a duty to ensure increasingly constrained budgets were distributed fairly and equitably. It said historically there had been a sizeable reclaim of Ms Y’s budget every year which suggested the budget did not truly reflect her needs. It said the budget included one to one hours which could be used to access the activities of her choice.
24. In relation to the annual increase in the budget it advised it would hold a meet to discuss whether there needed to be a process change.
25. Mrs X remained unhappy and complained. She said Ms Y had received a budget for activities for over a decade, so why was this no longer funded. In addition, she asked how the Council intended to resolve the annual increase issue.
26. The Council responded at the second stage of its complaints’ procedure in July 2023. It considered it had followed the correct policy and process in reviewing Ms Y’s direct payments and confirmed a meeting would be held to look at annual budget uplifts.
27. Mrs X remained unhappy and complained to us.
28. The Council’s commissioning and direct payment teams met to discuss the annual uplift process. They noted that quite often there was sufficient underspend in the account to absorb any increase in provider fees initially, as was the case with Mrs X. However, it encouraged families to highlight to the direct payments team when funds were running low so it could calculate the additional weekly amount needed based on the new hourly rate. It said it would never leave an account without sufficient funds to meet needs whilst a review was taking place.
29. In response to our enquiries, the Council confirmed it had previously reclaimed the following budget from Ms Y: £7,109.89 in 2019, £9402.78 in 2020 and £9,348.19 in 2021. It said it expected Ms Y to use her monthly disposable income to meet any additional activity costs. Ms Y continued to access shared activities and community-based activities during shared hours with her housemates. It also said that it was open to Mrs X to provide some of the support herself and that any savings could then be used towards the cost of activities. In addition, it said Ms Y had recently started voluntary work at a café. It was therefore satisfied Ms Y’s needs for community-based activities were being met.
30. In relation to the annual increase in care provider’s rates it advised that it uplifted payments annually to providers within its framework arrangement (i.e. those commissioned by the Council) including for those individuals employing personal assistants. Given direct payments could be used flexibly, and in this case Mrs X employs an agency, it said it was not always clear who the individual may be using to meet their needs. It said direct payments could be adjusted at any time but it relied on an individual notifying the Council of the change in the hourly rate.

Findings

Care and support plan review

31. The Ombudsman is not an appeal body. It is not for the Ombudsman to say what level of care is appropriate to meet Ms Y’s needs. We can only look at how the Council made its decisions and whether there was fault in the process it used to make those decisions.
32. The Council was not at fault for deciding to reassess Ms Y’s care needs when Mrs X requested an increase in the direct payments budget to reflect the increased charge by the care provider. It had been a significant period since she was last assessed in 2018 and although the Council had reviewed the support plan since then, it had no clear records to show how her direct payments were being used to meet her care needs.
33. The Council assessed Ms Y’s needs in line with the Care Act and statutory guidance. It involved Ms Y, Mrs X and the care provider in the assessment process. Ms Y’s assessment set out her needs for care and support which have not changed significantly over time. It recognised Ms Y needed one person present at home or in the community to ensure her safety and that she should continue to receive care and support in a supported living environment.
34. The care and support plan sets out those hours Ms Y will receive for one-to-one support and those to be shared with other housemates for activities of daily living or community-based activities. The Council proposed a support package to meet Ms Y’s needs and explained the reasons for its decision. There was no fault in the Council’s reassessment. However, the reassessment took place in October 2022 and the Council did not produce the support plan until May 2023. This delay was fault. This caused Mrs X uncertainty and distress. However, there were sufficient funds in Ms Y’s budget to cover the costs of her care package, so the delay did not cause Ms Y significant injustice.
35. The Council is entitled to review how it meets an individual’s needs. Ms Y’s support plan sets out how the Council will meet her needs. It does not include any specific budget for activities but that in itself is not fault. The needs assessment and support plan does not identify specific activities that are required to meet Ms Y’s eligible needs but states she has an eligible need for community-based activities and for support with employment. Ms Y participates in a range of activities and the support plan contains one to one support hours to enable her to continue to participate in these. Ms Y receives direct payments for one to one support and these can be used flexibly to meet her needs. It does not have to meet the activity costs and it is not fault to expect these to be funded from a person’s income.

Annual increase in care provider’s charges

36. The Council says it automatically increases the hourly rate paid to those who operate within its framework arrangements and for personal assistants. It says for direct payments, it does not need to wait for the annual review process and individuals can request increases in the hourly rate by notifying the Council. There is no fault in the Council’s process.
37. In this case, the Council was not clear on how Ms Y’s personal budget was being used to meet her needs. It therefore decided to reassess Ms Y’s care needs when Mrs X requested an increase in funding in line with the care provider’s annual increase. This was not fault. However, as discussed above, the Council’s delay in completing the support plan meant a significant delay in revising Ms Y’s budget.
38. Ms Y accrued significant funds in her direct payment account. Where funds are not spent, normally councils would seek to recoup this funding. Mrs X was able to use the money to fund the increase in the hourly rate of the care provider so the delay in reviewing Ms Y’s budget did not cause a significant injustice.

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Agreed action

39. Within one month of the final decision the Council has agreed to apologise to Mrs X for the distress and frustration caused by its delay in producing Ms Y’s support plan.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman