Summary: Mr D complains about the Council’s review of his care and support plan. And about the amount it is asking him to pay. The Ombudsman has found some fault with how the Council sought to seek agreement with Mr D about the review. And in how it has sought to get information about Mr D’s disability related expenditure.

The complaint

1. The complainant, whom I shall describe as Mr D, complains about the Council’s review of his:
• financial contribution, as it is charging him more than he can afford;
• care needs. Mr D says he asked for increased hours, due to worsening health. The social worker accepted some increased needs. But she reduced other eligible needs, leading to unchanged eligible hours.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

Back to top

How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr D;
• considered our earlier decision;
• made enquiries of the Council and considered its responses;
• spoken to Mr D;
• sent my draft decision to Mr D and the Council and considered their responses.

Back to top

What I found

Legal and administrative background

The Care Act

5. The 2014 Care Act introduced a single framework for assessment and support planning. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. The Act says the assessment should also seek to promote independence and reduce dependency.
6. A council should revise a care and support plan where circumstances have changed in a way that affects the care and support plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
7. The Care and Support Statutory Guidance (‘the Guidance’) has a checklist of broad elements to cover in a review. It advises assessors to communicate this checklist, before the review process begins:
• have the person’s circumstances and/or care and support or support needs changed?
• what is working in the plan, what is not working, and what might need to change?
• have the outcomes identified in the plan been achieved or not?
• does the person have new outcomes they want to meet?
• could improvements be made to achieve better outcomes?
• is the person’s personal budget enabling them to meet their needs and the outcomes identified in their plan?
• is the current method of managing it still the best one for what they want to achieve, for example, should direct payments be considered?
• is the personal budget still meeting the sufficiency test?
• are there any changes in the person’s informal and community support networks which might impact negatively or positively on the plan?
• have there been any changes to the person’s needs or circumstances which might mean they are at risk of abuse or neglect?
• is the person, carer, independent advocate satisfied with the plan?

Personal Budgets

8. Everyone whose needs the local authority meets must receive a personal budget, as part of the care and support plan. 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 detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
9. There are three main ways in which a personal budget can be administered:
• As a managed account held by the local authority 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;
• As a direct payment.

Charging for non-residential services

10. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
11. There are certain items of spending that can be deducted from a person’s income, before the council decides whether a person can afford to contribute to social care costs. This is called Disability Related Expenditure, or DRE. Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what the Council considers to be DRE.
12. The Guidance has a non-exhaustive list of costs (for specialist items needed to meet a person’s disability needs), that should be counted as DRE. These include:
• specialist washing powders or laundry;
• special dietary needs due to illness or disability;
• special clothing or footwear (or extra wear and tear);
• extra bedding;
• extra heating costs;
• internet access, for example for blind and partially sighted people;
• any care that social services does not meet;
• buying and maintaining disability-related equipment;
• reasonable costs of basic garden maintenance, if necessitated by the individual’s disability;
• any transport costs above that met by the mobility part of disability benefits.
13. Other costs may also be accepted. Councils should not be inflexible and should always consider individual circumstances. Council should consider everything a person has to buy or pay for because of their disability. The Guidance allows councils to use a standard rate DRE allowance, although this should not work as a blanket allowance, when a service user has DRE above the standard figure.
14. The Council uses a standard DRE allowance of £20 a week.

Background

15. Mr D has a visual impairment, since an accident at work in 2003. He had a nervous breakdown then. He still suffers from some mental health problems, including social anxiety. He also has a skin condition that flares up when he is stressed.
16. In 2015 Mr D’s welfare benefits changed. This led him to him having to pay more towards the Council arranged care he receives. The Council agreed to waive those costs from February 2015, to allow Mr D time to improve his budgeting skills. This included looking at how he could reduce some costs related to his disabilities.
17. The Council ended its waiver of the costs from April 2017. From then Mr D has been liable for a contribution towards his care costs. An October 2018 Ombudsman decision found no fault with the Council’s decision to end the waiver. We did, however, find fault with a delay in reviewing Mr D’s care and support needs. We asked it to carry out a review.
18. The Council pays Mr D a direct payment and he arranges his own care and support, including employing a personal assistant.

Changes to the Council’s charging policy

19. The Council has decided to change its charging policy for adult social care. A key change is it has started to take into account some welfare benefits that it had previously disregarded. This means some service users have to make a bigger contribution towards the costs of their care. The new policy still meets the minimum criteria set out in the national Guidance.
20. After feedback from citizens, the Council decided to implement the changes in two stages; in April and November 2019.

The current complaint

The care and support plan review

21. In August 2018 a social worker (Officer 1) contacted Mr D to arrange a visit, so she could carry out a review of his care and support plan. In response, Mr D advised her:
• He was worried about a questionnaire he had received asking about his financial contribution.
• His GP had increased his dose of anti-depressants, as he felt close to suicide.
• He felt he needed extra visits – teatime and lunchtime, because his skin condition had worsened. But he was worried the Council would cut his hours.
22. On 18 September Officer 1 visited Mr D to carry out the review. She reminded him the Council had offered to refer him to an agency for advocacy support. She also offered Mr D the support of a visual impairment enablement officer to promote his independence; for example around managing nutrition.
23. The new care and support plan:
1. Said Mr D had eligible needs. The support he was getting was meeting those needs.
2. Noted Mr D’s previous package of care. This included:
• 1 hour in the morning = 7 hours a week;
• 45 minutes in the evening = 5.25 hours a week;
• 4 hours a week for “domestic and laundry”;
• 6 hours for “community support and shopping”;
• 3.5 hours a week for “keeping safe”.

Total hours per week of 25.75.

1. Outlined the new recommended package of care:
• 1.25 hours in the morning = 8.75 a week;
• 1 hour in the evening = 7 hours a week;
• 2 hours a week for “domestic and laundry”;
• 1 hour a week for help with bulk food preparation with his personal assistant;
• 6 hours for “community support and shopping”.

Total hours per week of 25.75.

1. Had a next review date of January 2019 to “look at whether independence can be promoted”.
1. On 28 September, Officer 1 contacted Mr D to discuss the outcome of the review. She advised him again the Council’s view was it should refer him to its Visual Impairment Team, for support with being independent and making meals at home. Mr D advised this upset him. It would not work for him because of his anxiety in meeting new people. Mr D also advised he was upset about the revision in his package of care.
2. I note Officer 1’s records of the September review and later telephone call were not entered onto the Council’s case notes until 30 October. It seems this might have been because she was unexpectedly off work due to ill-health.
3. On 30 October 2018 Officer 1 sent Mr D a copy of the new assessment and support plan. She asked for any comments, but noted she believed it was correct, as she had typed it up when she was with him.
4. Mr D told us Officer 1 told him, when she met him, that she would recommend increased support and more hours with his personal assistant. But she then came back to him to say her manager had refused.
5. The Council has no record of trying to carry out the scheduled January 2019 review. It says this was because, at that time, officers were in frequent contact with Mr D about his care needs and financial assessment.

The financial assessment

29. Mr D’s view is he cannot afford to pay his care costs. So he has not been paying all his assessed contribution, since the end of the Council’s waiver in 2017. This has led to increasing arrears on his account. Mr D’s concerns about the assessed contribution have been compounded by the Council’s policy decision to change the way it charges for care.
30. At the end of October 2018, a manager (Officer 2) contacted Mr D, offering him a review of his financial contribution and a new financial assessment. Mr D did not respond to Officer 2, so he followed this up in November. Mr D did not respond.
31. Because Mr D’s arrears were building up, Officer 2 decided to change the way the Council paid Mr D, so the liability for the debt transferred to the Council. Its records show it did this to ensure Mr D could continue to pay his care costs.
32. The change in Mr D’s liability meant he was building up a debt with the Council, as he was still not meeting his full assessed payment. The Council passed Mr D’s account to its Debt Recovery Team. That Team invoiced Mr D.
33. The Council completed its most recent financial assessment of Mr D’s contribution in November 2018, with a start date of January 2019. This noted:
• It had not completed a financial review the previous year.
• The Council was allowing Mr D its standard £20 allowance for disability related expenditure.
• Mr D’s assessed contribution was £39.75 per week.
34. In March 2019 Officer 2 asked a different senior officer (Officer 3) to work with Mr D about his concerns about his personal contribution. Officer 3 emailed Mr D at the end of the month, introducing herself. She told him the Debt Recovery Team would be sending him an income and expenditure sheet for him to fill in. She suggested some organisations that could help him to complete this.
35. In April Mr D’s assessed contribution increased to £62.77 a month, due to annual changes to benefits and the change in the Council’s policy. The Council wrote to Mr D about this. He contacted it advising he could not afford the increase. It sent him an income and expenditure sheet to complete.
36. The Council says Mr D did not return a completed income and expenditure form. So it used information from the Department of Work and Pensions for working out his income.
37. In June Officer 3 tried to contact Mr D to arrange a visit. In mid-July Officer 3 did meet with Mr D. She updated the Group Manager (Officer 4) after this visit:
• Mr D was concerned his DRE was far greater than £20 a week (ie the Council’s standard allowance).
• Mr D had made considerable steps to improve his wellbeing. But he was still fragile and emotionally up and down, with episodes of poor mental health.
• Mr D had provided an expenditure sheet.
• Mr D said he could not afford an internet connection. Officer 3’s view was he was at risk of social isolation and an internet connection and more choice of TV would be beneficial. But Mr D would not risk this expense.
• Mr D only had a basic pay as you go mobile telephone.
• The debt impacted on Mr D’s mental health and physical health. He was also worried about maintenance of the home he owned.
• Mr D managed his skin condition through diet and reducing stress. Officer 3 was satisfied Mr D’s claim to need to eat low salt, fresh, clean food was justified.
• One of Mr D’s medicines was no longer on prescription.
• A podiatry service Mr D used had been cut.
• Mr D needed to use taxis, especially for hospital visits.
• Mr D needed special washing powder.
• Mr D had agreed to increase his weekly contribution and make a payment towards the arrears.
• Officer 3 suggested a plan to wipe out the accrued debt and agree a further waiver of part of Mr D’s contributions. These were due to increase due to a change in the Council’s charging policy.
38. Officer 4’s decision was not to agree a further waiver of Mr D’s contributions.
39. In a follow up email to Officer 4, Officer 3 noted it appeared Mr D’s “…expenses which relate to his circumstances and disability outweigh his income…and definitely are significantly over the DLA [disability living allowance] he receives”.

My investigation

40. In response to my enquires, the Council said its view was Mr D had not engaged with opportunities it had offered for him to review his budgeting and receive debt advice. It said:

“It is recognised that Mr [D] has limited income, and is benefit dependant, but the Policy has been applied by [Officer 4] to ensure fairness and consistency for all service users who are also expected to contribute toward their care and support. [Officer 4] therefore is not in agreement to apply a further waiver for Mr [D].”

• It noted Mr D had not provided a complete record of his income and expenditure. Without this, it had not been able to carry out a full assessment of his disability related expenses.
• The hours were rearranged at the care plan review “to meet his need in line with the Adult social care strategy and the strengths-based approach”. The review found that Mr D wanted more support in the morning. It noted: “Many service users want more hours, but this does not always promote their independence. [Mr D] is active and goes out without the support of a PA. He goes independently to his support groups, so his inclusion needs in the community are quite rightly met by himself.”
• The personal budget had not changed, and the support plan addressed Mr D’s needs adequately.
• “[Mr D] showed the worker an increased level of anxiety at the prospect of having less hours of care and his focus was on this and therefore it was difficult for him to accept the positive support offered to him, to support him to live a better life.”
• “[Mr D] would need to provide evidence of his I&E [income and expenditure], so we can demonstrate if he can meet this [an internet connection to address Mr D’s risk of social isolation] outcome his self before it could be considered as a DP. [Officer 3] has reminded [Mr D] and his support worker to fill in the I&E form.”
• Officer 3 had asked Mr D to send her details of every item of DRE he had, so she could re-present his case. Mr D had not sent this information. The Council sent me records of a meeting in September (and follow up email to Mr D) about this issue.
1. In response to my draft decision both the Council and Mr D advised they had carried out a review of Mr D’s care needs. Mr D advised this had taken three lengthy meetings and involved an advocate.
2. The Council also:
• accepted it could have recorded in the relevant section, for its September 2018 review, areas where Mr D and it disagreed about his care needs.
• explained more about the reallocation of hours in September (some of which it says, were before, not being used for an eligible need). And repeated its view there was no evidence of an increased need.
• Noted numerous emails and telephone conversations during the review process.
• Advised it was still working with Mr D to assess his DRE. It would continue with this.

Was there fault by the Council?

The care and support plan review

43. In its last review of Mr D’s care and support needs, the Council changed Mr D’s eligible care needs. Its view is that its documentation about this is acceptable, because Mr D’s personal budget was unchanged. And the support plan addressed Mr D’s needs. The Guidance says the key aim of an adult’s care and support is to meet their needs. So I would have expected to see an explanation about the assessor’s reasoning for removing some support and increasing others; linking this to Mr D’s needs.
44. The Council’s response to my enquiries and draft decision does provide some reasons. But I would have expected to see those reasons in the running record. Having considered the Council’s response to my draft decision, my view remains that the lack of a contemporaneous record is fault.
45. The Council says it has sought to offer Mr D support to help him to regain some independence. That is a key aim of the Care Act. So for the Council to seek to promote that aim with Mr D is not something the Ombudsman would normally criticise.
46. The Council was in contact with Mr D about the review and offered him support. He was clearly anxious about the outcome. And he declined the offers of support in engaging in the process. But the expectation is the assessor should seek to share with the service user what the review would cover before it began. I can see no record of the Council having done that here. Or, alternatively, a note about why that was not appropriate in this instance.
47. And the Care Act and its Guidance advises assessors they should seek, where possible, to agree the plan with service users. Here Officer 1 noted she completed the review with Mr D. But his recorded communications, both before and after the review, note he was concerned that his needs had increased. My view is the Council’s records do not provide sufficient record of trying to reach agreement with Mr D. My view remains, at the least, there was a misunderstanding about what Officer 1 would be recommending after her meeting with Mr D. My view is the inadequate record was fault.

The financial assessment

48. The Council is entitled to expect Mr D to meet his assessed financial contribution. And we have no role in criticising the policy decision the Council has made about its charges, as its new policy still falls within what the Care Act and Guidance allow. So the Ombudsman cannot fault the Council’s starting point assessment of what Mr D’s charges for his care and support should be.
49. We have also not criticised the Council’s decision to end the waiver. And I see no reason to question the Council’s decision to not agree to a new waiver.
50. But the assessment of Mr D’s DRE is an outstanding issue. I can see Officer 3’s view, from meeting Mr D, was his DRE was more than the Council’s standard allowance and above the DLA he receives (the care part of which is £58.70 per week). Officer 3 visited Mr D most recently in September, to explain to him he needed to provide details of all his DRE. But the Council says Mr D has not provided that information. The Council is entitled to seek evidence to support claims from Mr D that his DRE is above its standard allowance.
51. But, from the records I have seen, my view is the Council does not seem to have given the issue the attention it needs until Officer 3’s visit. The Council says it was earlier hampered in assessing Mr D’s DRE because he did not return an income and expenditure form. I find that explanation lacking for the following reasons:
• The income and expenditure forms it sent earlier were from its Debt Recovery Team. I can see nothing in the Council’s records to suggest it advised Mr D it wanted him to complete the form so it could consider his DRE. The records suggest receiving the forms had worried Mr D.
• The Council’s own records note Mr D’s vulnerability.
• The Council has been aware since the end of its waiver that Mr D says he does not have enough income to meet his assessed contribution. Part of the explanation of this may be that the Council is not allowing enough DRE.
52. I am not saying the Council should have allowed more DRE. That is a decision for it to make, while following the Statutory Guidance. But the fact it did not earlier turn its mind to this question is fault.

Recommended action

53. In my draft decision my provisional recommendation was that, within a month of my decision, the Council contacts Mr D to offer him a further review of his care and support plan. And that review should seek to agree with Mr D what his support needs are. If the assessor could reach agreement, they needed to set this out in the records.
54. While my investigation has been ongoing the Council has carried out a review. It is not the place of this investigation to look at the recommendations of this review. But the record of one of the meetings the Council has sent me satisfy me that it sought to engage more with Mr D to discuss his concerns. So my view is it has met that recommendation.
55. I also recommended that the Council accept any information Mr D sends it in support of his request for DRE. If it agrees to allow increased DRE, I recommend it backdate this increased amount to January 2019 (except for any expenditure that began after that date).
56. The Council says it continues to work with Mr D to meet this recommendation. I ask it to report back to me within the next two months of the further actions it has taken to work with Mr D to consider his DRE.

Back to top

Final decision

57. I uphold the complaint. The Council has taken some action and agreed to take other. So I have completed my investigation.

Back to top

Parts of the complaint that I did not investigate

58. I have not investigated the Council’s change to its charging policy. The old policy was more generous than the minimum scheme set out in the Guidance. The new policy more closely follows the Guidance’s minimum provisions. As the policy is still within what the law allows, there is no role for the Ombudsman to consider the changes.

Back to top

Investigator's decision on behalf of the Ombudsman