Wiltshire Council (17 005 144)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 24 Nov 2017

The Ombudsman's final decision:

Summary: The Council failed to deal properly with a decision not to increase someone’s personal budget. It needs to reconsider that decision.

The complaint

  1. The complainant, whom I shall refer to as Mr M, complains the Council has failed to deal properly with his daughter’s care needs, resulting in a significant cut in her personal budget.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have:
    • considered the complaint and the documents provided by Mr M;
    • discussed the complaint with Mr M;
    • considered the comments and documents the Council has provided in response to my enquiries; and
    • shared a draft of this statement with Mr M and the Council, and taken account of the comments received.

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What I found

  1. Mr M’s daughter, Miss D, has a learning disability. She lives with her parents. She has attended dance classes for people with learning disabilities in another county for several years. The dance classes are provided by a company which arranges performances nationally and internationally. Miss D also gives classes, with support, to the newer dancers. For the first few years a charity helped fund attendance. When this funding stopped her parents paid but they could not afford to do this long-term, so they asked the Council to assess their daughter’s needs.
  2. The Council assessed Miss D’s needs in May 2013. It proposed an 18 month plan to empower Miss D to live independently in supported accommodation. Miss D said she wanted to live in the town where the dance classes take place. The assessment says Miss D had a “moderate” need for help with managing personal care and “substantial” need for help with:
    • access / mobility / transfers;
    • food preparation
    • running and maintaining her home;
    • making decision and organising her life; and
    • family relationships.
  3. It says she had a “critical” need for help with:
    • keeping safe;
    • finance; and
    • community life / work, learning opportunities.
  4. The assessment notes the significant impact attending the classes has on Miss D’s emotional wellbeing, and in improving her confidence and desire to live independently.
  5. Miss D’s July 2013 support plan says she would use the direct payment to contribute towards the cost of attending dance classes in another town three days a week. The total cost of attending the classes each week was £545.44, including £50 a day for three classes, travel, meals, accommodation and care. The Council’s Resource Allocation Meeting (RAM) agreed to fund the cost of the classes (£150 a week) and transport, but not accommodation. It said to complete a carer’s assessment as respite “may help family flexibility achieve what they and [Miss D] wants to do”.
  6. Miss D’s October 2013 direct payment agreement says she received £300.30 a week:
    • £57.95 to employ Personal Assistants for 5 hours;
    • £159.00 to pay for three sessions of day care at £53 a session;
    • £83.30 for respite.
  7. Sometime between October 2013 and May 2015 the Council increased Miss D’s personal budget to £306.82 a week.
  8. In May/June 2015 the Council reassessed Miss D. This followed the introduction of the Care Act in April 2015. The assessment says Miss D was unable to achieve seven of the ten outcomes identified by the Department of Health’s Care and Support Statutory Guidance (the Statutory Guidance):
    • managing and maintaining nutrition;
    • maintaining personal hygiene;
    • being appropriately clothed;
    • maintaining a habitable home environment;
    • developing and maintaining family or other personal relationships;
    • accessing and engaging in work, training, education or volunteering;
    • making use of necessary facilities or services in the local community, including public transport and recreational services.
  9. The assessment identifies a “significant impact” on Miss D’s wellbeing arising from her inability to achieve the seven outcomes in terms of:
    • personal dignity;
    • social and economic wellbeing;
    • domestic, family and personal relationships;
    • participation in work, education, training or recreation.
  10. It also identifies an “impact” on:
    • physical and mental health and emotional wellbeing;
    • protection from abuse and neglect;
    • control by the individual over day-to-day life.
  11. The assessment says Miss D’s indicative budget was in the range £80 to £170 a week.
  12. Miss D’s May 2015 support plan says the Council will pay £150 a week to cover the cost of the dance classes (£50 a day). It notes this was a reduction from the £306.82 a week it had previously provided. The support plan identifies these outcomes for Miss D:

Context

Outcomes

Accessing and engaging in work, training, education

Continue to take part in activities that are meaningful to her and promote her health and fitness.

Develop and maintain family / personal relationships

Continue to be advised by her parents about how to maintain and make new friendships.

I can manage my own finances

Requires support from one other.

Maintaining a habitable home

Will start to learn how to maintain a clean and safe home environment by helping [her mother] with the housework and on-going support in this area.

Managing and maintaining nutrition

Will continue to be advised by her parents about how to make healthy food choices.

Use necessary facilities / services in the community

Will continue to go out in her community with her family when she is going somewhere she would be vulnerable.

  1. The support plan says Miss D will continue to:
    • attend the dance classes three days a week, staying overnight in a B&B;
    • volunteer at a charity one day a week;
    • go swimming one day a week;
    • attend a dance group in London one day a week, accompanied by her mother, but would like to be able to do this on her own.
  2. Mr M confirmed they broadly agreed with the outcomes in his daughter’s support plan but said they did not agree with the funding offered to achieve them. The Council asked a Social Worker to review the support plan. The Social Worker confirmed £150 a week was enough to meet Miss D’s eligible care needs.
  3. In September 2015 the Council reduce the funding in Miss D’s support plan from £50 to £38 a day (i.e. to £114 a week), “which is the equivalent of a funded day service”. Otherwise Miss D’s support plan remained the same. Mr M agreed to accept the funding, otherwise it would have stopped, but said he did not agree it was enough. The Council continued to pay £306.82 a week.
  4. The Council arranged for an Advocate to meet Miss D to clarify her views on how to spend her time, where to live, when to move and who to live with. Although the Advocate had some contact with the family, he does not appear to have obtained Miss D’s views.
  5. The Council met Miss D and her family in December 2015. It told them it would fund £114 a week. It followed this up with a copy of Miss D’s support plan and a letter saying the funding had yet to be agreed.
  6. In June 2016 Mr M received two identical letters from the Council saying it had set up the amended direct payment plan from 1 December 2015.
  7. On 26 June 2016 Mr M complained to the Council about this.
  8. When the Council replied on 28 July 2016, it said it could not reverse the funding decision. However, it said it had allocated another Social Worker to reassess Miss D’s needs and review the funding.
  9. In August/September 2016 the Council reassessed Miss D’s needs. As part of the assessment the Council contacted the dance company and the B&B where Miss D stays two days a week. The dance company confirmed the plan was for Miss D to become a dance teacher and after a year she should be able to do this independently. It said it was applying for funding to employ Miss D.
  10. The assessment says Miss D is unable to achieve the same seven outcomes as identified in May/June 2015. It identifies a “significant impact” on Miss D’s wellbeing arising from her inability to achieve the seven outcomes in terms of:
    • personal dignity;
    • physical and mental health and emotional wellbeing;
    • protection from abuse and neglect;
    • social and economic wellbeing;
    • domestic, family and personal relationships;
    • participation in work, education, training or recreation.
  11. It also identifies an “impact” on:
    • control by the individual over day-to-day life;
    • suitability of living accommodation.
  12. The assessment says Miss D’s indicative budget was in the range £320 to £475 a week. The Council says this was an error and should have been £170 to £320.
  13. Miss D’s October 2016 support plan proposed a personal budget of £302.50 a week to cover the cost of the dance classes, travel, accommodation for two nights and help from a personal assistant while away from home. It says a review of in county daytime services showed there was no service equal to that which Miss D was attending. It also said not attending the dance classes would have a significant impact on Miss D’s “emotional well-being and on her personal relationships and friendships”. The Social Worker sent the proposal to the Council’s RAM for approval and to give advice on Miss D’s current and proposed care package if not agreed. The support plan also proposed a referral to Wiltshire Employment Support Team / Community Connecting, with a view to finding employment relevant to her interest in dance. It said a decrease in the required support was anticipated after 12 months.
  14. The Council says the role of the RAM was as a “quality assurance process which looked at quality of work, outcomes and eligibility”.
  15. When the RAM considered Miss D’s case on 27 October it asked for more information.
  16. When the RAM next considered Miss D’s case on 24 November, it turned it down, saying the Council could “only fund support to meet an unmet eligible social care need”.
  17. On 28 November Miss D’s Social Worker told Mr M about the RAM’s decision and said she would discuss it with her Manager and get back to him when she had more information.
  18. On 13 December the Head of Service told the Manager, “although I do not recall the detail of the discussion which took place at the RAM, I would suggest that the referral to Community Connecting was agreed, support to attend day time activities to the current level was also agreed, a requirement to maximise own resources regarding transport to be pursued and only any additional costs above the benefits being received would be approved and the only part not agreed was costs towards accommodation, as the person was choosing to use services away from home incurring additional costs, when meaningful day time activities close to home could be sourced. The IB is an indication of the maximum costs the person is eligible to receive and as with all cases workers are required to assess personal resources and these maximised before Council resources offered and put in place, at this point, only the actual costs of support included in the support plan would be agreed”.
  19. Miss D’s January 2017 support plan provides for a direct payment of £115 a week.
  20. Mr M complained about the Council’s decision.
  21. When responding to Mr M’s complaint in February 2017 the Council said:
    • it could offer daytime activities for no more than £38 a day;
    • under the Care Act the focus was on meeting needs within local communities;
    • all the workers who had reviewed Miss D believed suitable alternatives, including dance classes, could be found locally;
    • she could be supported to access activities independently, reducing the need to rely on paid services, so the Council would not pay travel costs;
    • it had offered to refer Miss D to its Community Connecting Team to explore what was available in the local community.
  22. Mr M complained again. The Council sent its final response to him on 28 April 2017. It did not accept there had been any failings in the way it decided his daughter’s personal budget.

Is there evidence of fault by the Council which caused an injustice?

  1. It has long been established that councils can provide funding to meet needs based on what is most cost effective. Councils do not have to fund a preferred option if a cheaper one would deliver the same outcomes.
  2. The issue for me to consider is whether the Council has been at fault in the way it decided Miss D’s needs and her agreed outcomes could be delivered via the provision of local day services, rather than funding to attend dance classes in another county.
  3. The Statutory Guidance says:
    • “Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. Where used, panels should be appropriately skilled and trained, and local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons. Local authorities should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level. In cases or circumstances where a panel is to be used, and where an expert assessor has been involved in the care and support journey, the same person or another person with similar expertise should be part of the panel to ensure decisions take into account complex or specialist issues.” (paragraph 10.85)
  4. The Council’s RAM was in effect an “approval panel”. I cannot say the Council was wrong to use an “approval panel” to consider Miss M’s case. However, it has been unable to provide any formal documents to explain the purpose of its RAM. It is therefore unclear whether the Council is using the RAM “purely for financial reasons”.
  5. Also, the Council did not formally record the RAM’s decisions or the reasons for them. The original explanation on Miss D’s case (see paragraph 31 above) made no sense. The Council had agreed to fund an unmet need. The dispute is over how that need could be met and how much this should cost. While the subsequent explanation provided more information, it did not address the Social Worker’s view on the availability of local provision and the impact on Miss D of not going to the dance classes in another county. It is important to note that the Social Worker is best placed to understand Miss D’s needs as she has met her, whereas the members of the RAM had not. It is good practice to include the person “involved in the care and support journey” in funding decisions to make sure nothing is overlooked.
  6. The Council tells me it is no longer using the RAM to quality assure support plans. It says this is now done by line managers and supervisors. It therefore involves the person “involved in the care and support journey”.
  7. The Council says £38 a day is enough to meet Miss D’s needs, but it has not evidenced this. Indeed, in 2016 the Social Worker said there was no service available locally. The Council needs to evidence the availability of a suitable service before capping the personal budget at £38 a day.
  8. The failings I have identified amount to fault.

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Agreed action

  1. The Council has agreed within six weeks to review the decision that Miss D’s needs can be met via the provision of local day services, evidencing the availability of such services (if they exist) and addressing the impact on her wellbeing.

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Final decision

  1. I have completed my investigation, as the Council has agreed to take action which will remedy the injustice it has caused.

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Investigator's decision on behalf of the Ombudsman

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