Decision : Upheld
Decision date : 01 Oct 2019
The Ombudsman's final decision:
Summary: The Council wrongly reduced Mr Y’s personal budget for respite care. It set an arbitrary upper limit on the amount it was willing to pay. The amount was insufficient to meet Mr Y’s assessed need for respite care at home. Consequently, his parents topped up payments to carers. The Council failed to provide respite care for sixteen months, and then failed to provide an adequate remedy following a complaint about this. Mr Y’s parents have been put to significant time and trouble pursuing the matter.
- Mrs X complains the Council has reduced her adult son’s personal budget for respite care, and the revised amount does not meet his needs for respite care in the family home. She also complains the Council has not fully reimbursed her for respite care missed in 2017/18. Mr Y was without respite care for 16 months.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have:
- considered the complaint and discussed it with Mrs X;
- considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
- made enquiries, and further enquiries of the Council, and considered the responses;
- taken account of relevant legislation;
- offered Mrs X and the Council an opportunity to comment on a draft of this statement, and considered the comments made.
What I found
- The Care Act 2014 introduced a requirement that local authorities should promote ‘well-being’ and “signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’…. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into”. (Care and Support Statutory Guidance, Ch 1)
- Mr Y lives at home with his parents. He has complex needs, a severe learning disability, autistic spectrum disorder and some challenging behaviour. He also has physical health problems and is unable to communicate. He dislikes noise and crowds.
- The Council commissioned day services from a nearby Council for Mr Y for over twenty years. He needed 2-1 care. Carers used to collect Mr Y from his home, because he is unable to travel in a minibus with other service users. Carers support him to attend a day centre and associated activities Mr Y has had the same carers for over ten years.
- Mr Y receives a direct payment from the Council to purchase three hours weekly support, and four weeks annual respite care. The direct payments for weekly support and respite care are paid differently. Payments for weekly support are paid into Mr Y’s direct payment account monthly. Respite payments are paid annually. Mrs X says until 2017 the allocated funds were enough to cover the cost of all Mr Y’s care, including respite care which has always been provided in the family home because residential care was considered unsuitable. Carers from Mr Y’s day service provided the care.
- I have seen a copy of the Council’s review of Mr Y’s needs completed in 2014. It records, “For respite [Mr Y] can only be supported by 2 staff who know him well. His existing team of Personal Assistants support him for his short breaks, via a Direct Payment, managed by [Mrs X] (his Mum). [Mr Y’s] day service staff support him 8.30am to 5pm Mon- Friday.
- The Council recorded no changes to Mr Y’s needs in 2015.
- The Council began a reassessment of Mr Y’s needs in May 2016. The reason recorded as ‘modernisation of day care’
Events from 2017 onwards
- The Council says the reassessment started in May 2016 was not finalised until July 2017 because it was pursuing the possibility of joint funding from NHS Continuing Healthcare (CHC). I have seen a copy of the assessment. It records, “[Social worker] continues to gather information from the Day Centre Logs, costing and breakdowns of Service”.
- The assessor recorded Mr Y did not like noise and could become challenging for no reason, although this did not happen often. He “…spent a great deal of his week in the community, when in the day centre he normally has a room to himself”, and that he needed 2-1 support in the community. Incidents involving challenging behaviour were said to be “…greatly reduced over the years”, and that “Due to his autism he doesn't like change, however if changes are made they need to be managed and planned”. Mr Y had regular carers who know him well. “There are also instances where staff can read his behaviour and avoids incidents- for example if he vocalises in a particular way they know this will lead up to an incident and they get to a place of safety”.
- The assessor recommended Mr Y continue to attend the day centre five days a week but decreasing his support from 2-1 to 1-1. Two other options were suggested, to transfer Mr Y to a different day centre, or for Mr & Mrs X to employ their own carers via a direct payment.
- The assessment concluded Mr Y was eligible to receive “28 nights respite as [Mr Y] is awake most nights walking around at a cost of a residential placement per week x 4 weeks approx. £2,000…”The figure of approx. £500 has been arrived at as this is the cost of what a weeks placement at Care in [care home] would cost. In discussion it was originally agreed to pursue a placement to use for respite; and possible long term arrangement's after consideration and discussion with other family members; parents now wish to continue using a Direct Payment to provide respite support”.
- Mrs X did not receive a copy of the assessment.
- The Council arranged to meet with Mr & Mrs X. It recorded, “A formal meeting arranged Monday 13th March with parents, [council] day care, [Council] contracts to discuss the assessment and the way to move forward”.
- Mr & Mrs X say the social worker invited them to a meeting on 13 March 2017. Mrs X says she expected to meet with the reviewing officer but when she arrived there were seven council officers present. Mrs X says she is not easily intimidated but felt so because the meeting felt more like a formal case conference.
- I have seen a copy of the minutes of this meeting. This shows Mr & Mrs X were told “The purpose of the meeting was to discuss Mr Y’s assessment, explore alternative options and care needs in the future. Assessment was only recently completed for discussion, therefore it was not sent to [Mr & Mrs X] prior to the meeting. Parents were invited to read and discuss the options available and try to find the best way forward”.
- During the meeting Mr & Mrs X expressed their concern and dissatisfaction that they had not received a copy of the assessment prior to the meeting, that they felt pressured and needed time to consider it. The Council said it had only been completed that morning. Mrs X says at no point in the meeting did the Council say the assessment was a draft.
- During the meeting Mr & Mrs X said Mr Y’s care was ‘going well’ and Mr Y did not spend all his time in the day centre but dipped in and out when it suited him. Officers queried why Mr Y needed two carers when outside of his home. Mrs X said…”I’m not sure why ASC wants to change things around, if it doesn’t need fixing it, don’t try to change it”. A council officer said, “we do not commission any other person with this type of contract. This the highest funded contract”.
- The Council agreed to halt the meeting to allow Mr & Mrs X the opportunity to consider the assessment.
- Mrs X contacted the Council the following day to say she believed the care package met Mr Y’s needs and should not be changed. She also complained that she had not been given a copy of the assessment before the meeting.
- In April 2017 the NHS told the Council Mr Y did not meet the eligibility criteria for full CHC funding. The Council says it was advised to apply for joint funding.
- The Council says it completed Mr Y’s assessment in July 2017 and sent a copy to Mr & Mrs X. Mr & Mrs X disagreed with the outcome.
- In October 2017 the Council transferred Mr Y’s case to a different team. A new social worker was allocated in December 2017.
- Mr X received no direct payments for respite care for 2017.
- The newly allocated social worker visited Mr and Mrs X in January 2018. As part of this investigation the Council provided copies of two assessments completed by the social worker, one in April 2018 and another completed in June 2018.
- The April 2018 assessment records Mrs X’s “frustration that there is an outstanding issue relating to [Mr Y’s] respite which has prevented them from having an extended break from their caring role last year”. The outcome of the needs assessment concluded Mr Y’s needs remain unchanged in all areas but one, ‘Accessing the local community’ were Mr Y’s need was reported to be ‘reduced’, however, the assessor recorded no change in the support he needed when out in the community, he continued to need two carers. Mrs X says she does not understand how the assessor concluded Mr Y had reduced needs when he needed the same support.
- The assessor later recorded she discussed Mr Y’s respite care arrangements with the Council’s legal team. It advised “that funding provided should be in line with the equivalent commissioned cost of residential care albeit support which would not be suitable for [Mr Y] in light of his specific care needs”. The assessor recommended Mr Y continue to receive respite care in his own home to as “this would be most beneficial to him” and “that support is given to [Mr Y] in the form of a direct payment to access respite. [Mr Y] support has been the subject of much discussion in the past and as a result of a lack of conclusion, no funding was provided for respite in the financial year 2017-18. To this end, and in view of the fact that [Mr Y] care needs have not changed, that he is often awake through the night and that his parents have health needs of their own, I am recommending that the equivalent of 28 nights respite is provided to [Mr Y] for the financial year 2018-19”.
- The June 2018 assessments records no changes in Mr Y’s needs from the April 2018 assessment. The assessor again recommended Mr Y receive respite care in his own home.
- Mrs X submitted a formal complaint to the Council on 8 June 2018 saying she received no respite at all during 2017 and had received no payments for respite in 2018. She submitted a further complaint to the Council on 16 July 2018 because she was told Mr Y’s respite care budget would only be paid at residential respite rate.
- The Council responded to Mrs X on 19 July 2018. The author acknowledged Mrs X had submitted a second complaint in July 2018 and said a response to this would be provided separately.
- The Council says a decision to allocate Mr Y the enhanced residential rate (£575 per week) was made in July 2018. Mrs X says this was not enough to provide respite care in the home.
- Responding to Mrs X’s complaint about respite for 2017/8 the author said, “Following investigation, the outcome was that following a reassessment, it was agreed for a total of 28 nights respite for the current financial year via a direct payment, that following a reassessment, it was agreed for a total of 28 nights respite for the current financial year via a direct payment”.
- Mrs X contacted the Council two weeks before a planned holiday on 11 August 2018 to say she had still not received direct payments to fund respite care. The Council advised her to contact a local residential home for respite care. Mrs X says she told the Council Mr Y would not cope with a residential placement and reminded it Mr Y had 1-1 care at home and 2-1 out in the community. She says the Council told her Mr Y would receive care from one carer in a residential placement who would also be looking after other service users at the same time. Mrs X said this did not meet Mr Y’s assessed needs.
- Mrs X says she did contact the residential care facility to make enquiries about suitability and was told it did not provide respite care.
- When Mrs X received the respite money it was less than had previously been paid. The amount paid was equivalent to the cost of a residential respite stay £570 per week.
- Mrs X says the regular carers agreed to provide respite care for Mr Y in the home at a reduced rate (£4.41 per hour) because Mrs X’s holiday was imminent. Mrs X says she offered to top-up the carers wages
- The Council invited Mrs X to a meeting in September 2018 to discuss the reduction in respite payments. Mrs X says she is unsure why as the decision had already been made. Due to family circumstances she could not attend. The Council says a social worker wrote to Mrs X on 6 September 2018 and provided a draft copy of Mr Y’s assessment. She offered Mrs X a carers assessment, saying, “I am aware one may not have been undertaken for some time”. Mrs X cannot recall if she received a copy of the assessment.
- Mrs X made a complaint to this office in October 2018. This was deemed to be premature and referred back to the Council for investigation under its complaint’s procedure. Following this the Council arranged to meet with Mr & Mrs X on 10 December 2018. Mrs X says another son accompanied them as they were concerned numerous officers may be in attendance as happened at the meeting in March 2017. When they arrived only the social worker and her manager were present. Mrs X says the officers reiterated the Council would only pay the residential respite rate and discussed possible respite facilities.
- A further reassessment was completed in January 2019 to support a one-off payment in lieu of respite for 2017/18. The assessment shows no changes to Mr Y’s needs.
- On 22 January 2019 the Council wrote to Mrs X to responding to her complaint. It acknowledges she had been without respite care and apologised for the distress caused and offered two weeks respite funding at the residential rate of £570 per week by way of an apology.
- In response to my enquiries the Council said “Having reassessed, [Social Worker] considered that [Mr Y’s] needs could be met within a residential respite setting. However, the Social Worker also considered the family’s preference for this element of the care package to be delivered via a direct payment. Therefore, the social worker recommended that [Mr Y] can receive the equivalent to residential respite as a Direct Payment as this is the preferred option. In line with the Care Act, the Council has a responsibility to consider the financial implications of any support plan and is entitled to choose the most cost-effective means of meeting an individual’s needs. The most cost-effective way to meet [Mr Y’s] needs was via a residential respite placement. As such, if the family chose another method to meet his needs, the Council would only pay for a service up to the same value as the most cost-effective option”.
- It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law. In this case, the Council failed to do so.
- There are a number of failings by the Council in this complaint. There is also evidence of confusion and delay. The Council completed and amended numerous assessments. It says a reassessment started in May 2016 was not finalised until July 2017 because it was pursuing the possibility of joint funding from CHC. Pursuing CHC funding does not prevent the completion of an assessment. The Council can review an assessment when a decision about CHC is made.
- In its response to my enquiries the Council said a social worker considered Mr Y’s needs could be met within a residential respite setting. I have seen no evidence which supports this. On the contrary, all the evidence shows residential respite care to be unsuitable for Mr Y. It is unclear how the Council concluded it was, given it has never been tested.
- Needs assessments were completed in April 2018 and June 2018. The assessment in April 2018 records residential respite care to be unsuitable for Mr Y and the assessment in June 2018 recommends Mr Y receive respite care in his own home. Despite this the Council reduced Mr Y’s personal budget for respite care saying it would only fund respite at the residential rate. In doing so it set an arbitrary upper limit. This is fault.
- In setting the amount of a direct payment (or the personal budget from which it is derived) the Council must ensure it is enough to buy services which will meet the person’s assessed eligible needs. In Mr Y’s case it failed to do so.
- The Care and support statutory guidance says, “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties… The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”.
- The Statutory Guidance allows Council’s to consider the financial cost when deciding how much to pay to meet a person’s eligible needs. Cost can be a relevant factor in deciding between suitable alternative options for meeting needs. However, that does not mean choosing the cheapest option The Council can consider best value, but it cannot make decisions based only on financial considerations as it appears to have done in this case. This is fault.
- The Council’s assessments of Mr Y record his needs to be unchanged in all but one area. ‘accessing the local community’, which it records as ‘reduced’. It is not clear how the Council came to this decision when Mr Y’s need for 2-1 care in the community remain unchanged.
- In March 2018 Mrs X attended a meeting expecting to meet with Mr Y’s social worker. She was shocked and somewhat intimidated to find with seven officers present. During the meeting officers presented Mr & Mrs X with a copy of an assessment they had not previously had sight of. This was poor practice. The Council should have provided Mr & Mrs X with a copy of the assessment in advance of the meeting and informed them of the more formal nature of the meeting. During the meeting an officer said “we do not commission any other person with this type of contract. This the highest funded contract”. This was inappropriate and shows a focus on resources rather than Mr Y’s eligible needs. Resources is a matter for the Council and not service users or relatives.
- The Council acknowledges it failed to provide respite care in 2017/18 and offered a payment equal to two weeks residential respite care. This was insufficient. Mr & Mrs X missed out on a service which would have provided relief from their caring role. This was particularly important because Mr X was experiencing his own health problems. Mr & Mrs X could not purchase additional respite care because the payment would not cover the cost of care.
- I have considered if the Council’s failures had a significant impact on Mr Y and I do not consider it did because Mr & Mrs X ensured continuity of care in topping up payments to carers to allow respite to be provided in the family home.
- It is Mr & Mrs X who have suffered an injustice. They contributed towards carers wages when they should not have had to do so. They also missed out on respite care for sixteen months. They have been put to significant time and trouble pursuing the matter and experienced uncertainty and worry.
The Ombudsman’s ‘guidance on remedies’ says a remedy needs to reflect all the circumstances including:
- the severity of the distress;
- the length of time involved;
- the number of people affected (for example, members of the complainant’s family as well as the complainant);
- whether the person affected is vulnerable and affected by distress more severely than most people.
- The Council will within one month of the final decision:
- provide Mr & Mrs X with a written apology for the failings identified in this statement and make a payment of £250 to acknowledge the time and trouble they have been put to pursuing this complaint with the Council and the Ombudsman
- review Mr Y’s assessment and produce a care and support plan which reflects his needs over a seven-day period and explain how these needs will be met, including respite care, in consultation with Mr & Mrs X;
- pay Mr & Mrs X £500 to acknowledge the uncertainty and worry caused by the Council’s failure to provide sufficient direct payments to cover the cost of Mr Y’s respite care in 2017/8
- establish if, and how much, Mr & Mrs X contributed towards Mr Y’s respite care in 2018 and reimburse them in full.
- undertake individual carers assessment of Mr & Mrs X and produce a support plan setting out how their needs will be met.
- Within three months:
- consider if other service users may have been affected by arbitrary upper limits on respite rates, and take any necessary action to address this;
- amend its procedure to ensure the Council does not set arbitrary limits on care provision.
- There is evidence of fault causing injustice in this complaint. The above recommendations are a suitable way to settle the complaint.
- It is on this basis; the complaint will be closed.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman