Summary: Mr X complained the Council failed to provide funding for transport to meet his assessed needs. The Council was at fault as it failed to properly consider Mr X’s ability to use transport. The Council has agreed to pay Mr X £250 to acknowledge the distress and uncertainty this caused him. Mr X complained the Council allowed care providers to prohibit service users and support workers drinking alcohol, had an unfair hourly rate for support workers and failed to meet his identified prevention need for an exercise class. The Council was not at fault.

The complaint

1. Mr X’s complaints concern his care and support needs and how the Council has sought to meet these. In particular he complained the Council:
• has failed to provide funding for transport to enable him to receive the support required to meet his assessed eligible needs. Mr X says the Council told him to use the mobility aspect of his Personal Independence Payment (PIP) to fund the transport which he considers is unlawful.
• has allowed care providers to prohibit service users and support workers consuming alcohol, which has removed his freedom of choice regarding the support provided to meet his assessed eligible needs.
• has an unfair policy of only allowing an hourly rate of £17.95 for support workers without funding expenses or transport costs which has prevented him accessing activities to meet his needs.
• has failed to meet Mr X’s identified prevention need for an exercise class. The Council says free classes are available but it has not identified any which are appropriate to meet his needs.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Mr X has raised concerns about the care and support provided to him since the Care Act was introduced. I am considering what has happened since November 2017 (12 months before he first complained to us). If Mr X had concerns about his care and support before this date it was open to him to complain to us sooner.
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 supplied by Mr X and the information supplied by the Council in response to my enquiries. I have considered the relevant law and guidance, in particular the Care Act 2014 and the Care and Support Statutory Guidance.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered their comments in reaching my final decision.

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What I found

Legal and administrative background

Assessing needs

7. 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. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and 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 and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
• The needs must arise from or be related to a physical or mental impairment or illness.
• Because of the needs, the adult must be unable to achieve two or more of the following:
1. Managing and maintaining nutrition;
2. Maintaining personal hygiene;
3. Managing toilet needs;
4. Being appropriately clothed;
5. Being able to make use of the adult’s home safely;
6. Maintaining a habitable home environment;
7. Developing and maintaining family or other personal relationships;
8. Accessing and engaging in work, training, education or volunteering;
9. Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
10. Carrying out any caring responsibilities the adult has for a child.
• Because of not achieving these outcomes, there is likely to be a significant impact on the adult’s well-being.
9. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
10. In relation to i) above: ‘making use of necessary facilities or services in the local community including public transport and recreational facilities or services’, the Care and Support Statutory Guidance sets out that ‘local authorities should consider the adult’s ability to get around in the community safely and consider their ability to use such facilities as public transport, shops or recreational facilities when considering the impact on their wellbeing’.
11. The Care and Support Statutory Guidance says ‘In assessing whether an adult has any care and support needs or a carer has any needs for support, the local authority must consider whether the person concerned would benefit from the preventative services, facilities or resources provided by the local authority or which might otherwise be available in the community’.

Charging for care and support

12. Councils can make charges for care and support services they provide or arrange. To decide if someone is entitled to financial support, the Council carries out a financial assessment of their income and capital following an assessment of the person’s care and support needs. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
13. Annex C of the Care and Support Statutory Guidance sets out how councils should treat income when conducting a financial assessment. Paragraph 14 of Annex C says:
14. “Local authorities may take most of the benefits people receive into account. Those they must disregard are listed below. However, they need to ensure that in addition to the minimum guaranteed income or personal expenses allowance – details of which are set out below – people retain enough of their benefits to pay for things to meet those needs not being met by the local authority.”
15. Paragraph 15 lists the benefits which must be fully disregarded:
• Direct Payments;
• Guaranteed Income Payments made to veterans under the Armed Forces Compensation Scheme;
• War Pension Scheme payments made to veterans with the exception of Constant Attendance Allowance payments;
• The mobility component of Disability Living Allowance;
• The mobility component of Personal Independence Payments.
16. Personal Independence Payments (PIP) are benefits awarded by the Department for Work and Pensions to those with a health condition or disability where they have had difficulties with daily living or getting around (or both) for three months and expect these difficulties to continue for at least nine months.
17. The Council’s guidance on travel costs ‘Help with Travel Arrangements Factsheet’ says:

‘We pay for the most cost effective travel arrangements where you:

• need to travel to access a service or activity in your support plan that meets your eligible care and support needs;
• and are unable to travel safely without assistance; and
• have no other suitable travel resources available, financial or otherwise’.
1. It goes on to say that:

‘If you get a mobility component (of PIP or DLA) – we expect you to use it. So if you have travel costs to get to services or activities in your care and support plan, we expect you to prioritise your mobility component (of PIP or DLA) to pay for your travel. If it costs more than your allowance to pay to travel to services and activities we include these additional costs in your care and support plan’.

Background

19. Mr X has autism spectrum disorder and other conditions which affect his sleep pattern. He has significant debt which he says results from his disability. Mr X prefers to communicate by email. The following is a summary of the key events relevant to this complaint.
20. In June 2018 Mr X started to receive support from Agency A after his previous provider ended their services. Agency A is an individual service fund provider (ISF) where a provider manages the personal budget on the individual’s behalf and arranges services and support with their agreement. Mr X received two hours support each week which he used regularly.
21. He also received funding for three hours each week for evening support work and three hours per month for engaging with meetings. Mr X has not accessed the funding for evening support though since August 2019 he has used some of this funding, as agreed with the Council, to fund extra day time support sessions and for support with gardening.
22. Mr X met with his care coordinator in mid-January 2018. The notes record Mr X ‘does not currently feel able to access the other aspects of his care plan because of his financial restrictions due to having no PIP. He is hoping when this is sorted he will be able to access all of his support from [the care provider] and increase the number of hours’. The care coordinator sent Mr X a draft needs assessment following the meeting. Following this there were several emails between Mr X and the care coordinator with Mr X’s comments and revisions on the needs assessment.
23. The needs assessment recorded Mr X described ‘difficulties with travelling to unfamiliar places or even familiar places if the journey is complicated’. It identified eligible needs related to:
• maintaining a habitable home environment (specifically in relation to maintaining his garden);
• making use of community facilities and services;
• accessing and engaging in work, training, education and volunteering opportunities; and
• developing and maintaining family or other personal relationships.
24. It also noted Mr X’s needs relating to managing and monitoring nutrition should be monitored and reconsidered if concerns were raised. In relation to ‘maintaining family or other personal relationships’ the needs assessment noted Mr X was socially isolated.
25. In January 2018, following an appeal, Mr X received the mobility part of PIP at the enhanced rate.
26. The Council’s funding panel agreed Mr X had unmet care and support needs in April 2018.
27. Mr X raised concerns about the needs assessment and getting transported to potential meetings. The care coordinator sought advice from a manager. They informed Mr X of the manager’s view that ‘there was no expectation for any providers to provide transport for service users and it is not something that can be part of a support plan. There is an expectation that people who are unable to use public transport would use the mobility component of their PIP payments to support them to pay for taxis’.
28. Mr X explained that due to his debt levels, he could not afford taxis and asked the Council to arrange for support workers who could and would drive or to fund taxis.
29. As Agency A was an ISF provider it was responsible for developing the support plan to meet Mr X’s needs. Mr X met with Agency A and his care coordinator in late June 2018 to discuss support planning. The Council’s notes recorded Mr X wanted to use his ‘support to go out in the evening to social events and feels that drinking (within acceptable limits) is a normal and reasonable thing for him to want to do in these situations’. Agency A said it was not acceptable for Mr X to drink alcohol during support sessions. Mr X agreed the care coordinator would look to see if Mr X’s support could be moved to an alternative ISF provider.
30. Mr X also raised concerns regarding the gardening provision, the provision of expenses for support workers and the Council’s assumption he could use PIP mobility for taxis as the Council had included this in his financial assessment on the housing benefit/council tax side of the Council.
31. The care coordinator proposed another ISF provider but they would not drive clients and said they would not support people under the influence of alcohol. The care coordinator agreed to look at different providers.
32. The Council agreed Mr X’s support package in September 2018. This comprised:
• two hours a week to support his recovery goals with 30 minutes additional time for administrative and related tasks that may need to be carried out by the support provider.
• 12 hours a month at a rate of £17.95 per hour for evening activities to be used in a flexible way to suit Mr X’s needs.
• 12 hours for gardening support until the end of 2018 (funding from the previous year’s plan which was not accessed). This was to allow Mr X to complete work in his garden so he could then maintain it himself the following year. It was also hoped this would in time help Mr X to consider, in future, allowing support workers help him with managing his home environment.
• Funding for training sessions for Mr X’s support workers.
33. Mr X received the two hours a week support from Agency A but did not access the other provision. Mr X complained to the Council about his support provision. Mr X’s concerns included that the evening support did not include any expenses for support workers relating to admission costs to events, or expenses for drinks, and the Council’s position on transport support.
34. In October 2018 Mr X’s health professional submitted additional evidence to the Council regarding Mr X’s inability to use public transport.
35. In December 2018 Mr X complained to the Council about its policy of setting a maximum hourly rate of £17.95 for social care provision. He also complained about the Council’s stance regarding people in receipt of the mobility component of PIP being expected to cover all transport costs. Mr X made a separate complaint about his support plan.
36. The Council responded to Mr X in February 2019. It did not uphold his complaints about its policies. It explained that Council arranged services were purchased via a contract. This contract (the recovery service framework) was agreed by the Council’s Cabinet and issued following a commercial procurement process which established a guide price of £17.95 per hour. It also explained that the mobility component of PIP was awarded to those who had a physical or mental condition that limits the ability to plan and follow journeys and/or move around. The purpose of the payment was to help with some of the extra costs of those with long term ill-health or disability. It was not unlawful to expect a person to use this to fund the extra cost of travel due to their disability. It agreed to review his support plan.
37. In March 2019 Mr X, his care coordinator and a health professional met to consider Mr X’s support plan. The note recorded there continued to be difficulties about Mr X ‘feeling he needed support in the evenings to be with a worker that would allow him to drink alcohol if he chooses’.
38. In April 2019 Mr X’s care coordinator reviewed his support plan. They proposed Mr X use three hours a week daytime support flexibly for managing his garden, spending time in social settings with support workers as part of a plan of rehearsing social situations and for shopping, visiting the bank, haircuts etc.
39. They continued to propose four hours evening support each week for three weeks a month. The Council had not found a provider to meet this need. They noted Mr X wanted support to be arranged in a way that would allow him to have an alcoholic drink if appropriate in the setting. They noted Mr X was unable to travel or attend recreational activities independently. He was considering the need to do regular exercise but required support to access and attend a gym or class. He also wanted to attend meetings.
40. They identified prevention needs related to attending a particular prevention programme and stopping smoking. Mr X required 1:1 support to travel and attend the prevention programmes. The Council agreed Mr X could use some of his funding for this support from Agency A plus support to attend stop smoking support.
41. Mr X emailed the care coordinator. He noted attending meetings could not happen as he needed to re-engage socially first. In addition, he could not attend without transport.
42. Mr X’s care coordinator identified a potential new care provider to provide the evening support.
43. In July 2019 Mr X met with his care coordinator, a Council manager and an officer from the Council’s complaints team. The care coordinator agreed Mr X currently had a transport need which could be a barrier to him being able to access prevention and social support. He would work toward using other transport but the Council agreed to fund mileage for his support staff to transport him to provision which met his social care needs. It also agreed to provide an account with a taxi firm, once evening support was sourced. At the meeting Mr X and his care coordinator agreed to identify evening support within the Council’s guide price of £17.95 per hour. If the support cost less than this, the difference between the actual cost and the guide price could be used to fund any expenses of the support staff.
44. Since October 2019 Mr X has received a pre-payment card to fund evening taxi travel. The provider identified for evening support is currently looking to find appropriate workers who can work at Mr X’s preferred times on his preferred days.

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Findings

Funding for Transport

45. Mr X has eligible needs relating to making use of community facilities and services. In January 2018 the Council had noted Mr X felt he could not access community facilities due to financial difficulties as he did not receive PIP mobility and could not afford taxis. The Council had also noted Mr X’s difficulties with travelling to unfamiliar places. The Council failed to properly consider Mr X’s difficulties, and how they may impact on his ability to access support, when it assessed his eligible needs. This is fault.
46. The mobility component of PIP is to help with the extra costs of transport associated with long term illness or disability. In assessing a person’s contribution to their care costs the Council cannot take into account the mobility component of PIP. As this is not included in the assessment of costs there is an expectation that those in receipt of the mobility component of PIP use it to fund their transport cost. The Council is not at fault for expecting those who get the mobility component of PIP to use it to towards their transport costs.
47. When Mr X started to receive PIP mobility the Council was not at fault for taking this into account when deciding whether to meet his transport needs. However, Mr X had an unmet eligible need relating to accessing the community. The Council was aware of Mr X’s difficulties in using public transport and of his debt issues. It failed to properly consider Mr X’s individual circumstances and whether he could make use of the PIP to fund transport. This is fault.
48. In July 2019 the Council noted Mr X had a transport need which could be a barrier to him being able to access prevention and social support and it has since provided support to Mr X to meet this need.
49. Mr X says the lack of transport support meant he was unable to access evening support. He says he believed transport funding was only available through mobility PIP and the increased stress led to an increase in his debt.
50. The Ombudsman looks to remedy personal injustice which is as a direct result of fault. There are a number of factors which have affected Mr X’s ability to access evening support. The Council’s funding of transport support is only one of those factors. However, the failure to properly consider this is likely to have caused Mr X distress and uncertainty. I cannot say there is a direct causal link between Mr X’s debt and the Council’s provision of transport support.

Alcohol and evening activities

51. Agency A will not allow its support workers to accompany Mr X to the pub and to purchase alcohol. This is in line with its policy and is not fault. Mr X has an eligible need for evening support. However, there is a specific way in which Mr X wants the Council to meet this need. The Council has acknowledged this and has has sought to identify an alternative provider who will meet Mr X’s request. The provider is looking to identify suitable support workers who can work the hours Mr X requires. The Council is not at fault.

Hourly rate for workers

52. In response to Mr X’s complaint the Council confirmed it has a guide price of £17.95 per hour for commissioning care and support. The Council followed an appropriate process in reaching this guide price. It has proposed allowing expenses for support workers to accompany Mr X on social activities. It is not at fault.

Prevention needs

53. The Council provided funding to support Mr X in attending a prevention programme. This encouraged exercise and Mr X is keen to attend an exercise class. The Council acknowledged an exercise class could be considered as part of Mr X’s eligible need to access community activities. The Council has provided Mr X with information on free exercise programmes it provides in the Council area. Mr X has specific ideas of what exercise he considers suitable to meet his needs and wants the Council to fund this. The Council has to meet a person’s eligible needs, not their preferences. The Council has offered information on activities and classes in its area, some of which it considers could be suitable for Mr X. The Council is not at fault.

Agreed action

54. Within one month of the date of the final decision on this complaint the Council has agreed to pay Mr X £250 to acknowledge the uncertainty and distress caused by its failure to properly consider Mr X’s requirement for transport support in meeting his eligible need to access community activities.

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Final decision

55. I have completed my investigation. There was fault causing injustice for which I recommended a remedy which the Council has agreed to.

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Investigator's decision on behalf of the Ombudsman