Decision : Upheld
Decision date : 02 Apr 2019
The Ombudsman's final decision:
Summary: Mr X complained about changes the Council made to his personal budget for care and support. The Council was at fault as it reduced Mr X’s personal budget without properly considering his individual needs and wishes. It repeatedly sent him historical care plans, giving him conflicting information, and it delayed significantly in responding to his complaint. These faults caused Mr X significant distress, and he went to added time and trouble in complaining. The faults have led to Mr X becoming isolated and have significantly impacted his wellbeing. The Council has agreed to apologise and pay Mr X £1,000. It has also agreed to urgently review Mr X’s care and support plan and issue a Care Act-compliant plan.
- Mr X complained the Council changed his personal budget despite his needs not having changed. It stopped paying for his travel to activities and said he should use the mobility element of his disability benefits to fund this instead. It reduced the hourly rate for personal assistants, but later reinstated this after he complained. It has not explained how his personal budget relates to his individual needs and it has not allowed him to use it in a way he feels meets his needs. It has offered no alternatives. Mr X does not believe the Council has followed the Care Act.
- Mr X says these changes led to him feeling he had no choice and control over his personal budget and made him feel isolated. This affected his mental health and his wellbeing. He said he found the process frustrating and he experienced delays when he complained.
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)
- 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 first complained to the Council in August 2017, which is more than 12 months before he complained to the Ombudsman. However, the alleged fault and injustice are continuing, and there were periods when Mr X believed the Council would resolve the issues. Therefore, there is good reason for the Ombudsman to exercise discretion to consider Mr X’s complaint from 2017 onwards.
- 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
- For this investigation, I:
- considered the information Mr X provided and discussed the complaint with him;
- made enquiries of the Council and considered the comments and documents it provided;
- looked at the relevant law and guidance, including the Care Act 2014 and its associated guidance;
- considered the Ombudsman's guidance on remedies; and
- wrote to Mr X and the Council with my draft decision and considered their comments.
What I found
- Councils must promote service users’ wellbeing when carrying out any of their care and support functions. This involves actively seeking improvements in areas such as control by the individual over their day-to-day life, family relationships and contribution to society. They should consider each case on its own merits, consider what the person wants to achieve, and how action they take may affect the wellbeing of the individual. (Care and Support Statutory Guidance, sections 1.1 to 1.8)
- When assessing a person, councils must consider whether they have “eligible needs”. These are needs that arise from a physical or mental impairment, which prevent them being able to achieve two or more specified outcomes. Where a person is unable to achieve an outcome, the Council must consider whether there is, or is likely to be, a significant impact on the person’s wellbeing. (Care and Support Statutory Guidance, sections 6.103 and 6.106)
- If a person has eligible needs, the council must meet those needs. Everyone's needs are different. Councils should adopt a flexible approach that allows for a focus on which aspects of wellbeing matter most to the individual. (Care Act 2014, section 18, Care and Support Statutory Guidance, sections 1.10 and 1.11)
- The guidance says councils should not use reviews to make arbitrary cuts. Any reduction to a personal budget should be the result of a change in the person’s needs or circumstances. (Care and Support Statutory Guidance, sections 13.4 and 13.33)
- Councils have a duty to help people retain or regain their skills and confidence, and prevent need or delay deterioration wherever possible. (Care and Support Statutory Guidance, sections 2.1, 6.60 to 6.62)
- Councils also have a duty to provide people with information and advice about their care and support. This helps to keep individuals informed and to exercise choice and control, and it increases their wellbeing. Following assessments, councils must give a record to the individual. (Care and Support Statutory Guidance, sections 3.1 and 6.98)
- The Council aims to respond to all adult social care complaints within 15 working days. If a person is not satisfied with the response, they can ask the Council to review its decision.
- Mr X has a physical disability resulting from an accident, and other difficulties including asthma and diabetes. Mr X has received a personal budget from the Council for several years. In July 2017, the Council wrote to Mr X saying it would be reducing his personal budget. It said it would fund 17 hours per week of support from a personal assistant (PA), to help Mr X with meals, medications, cleaning and access to the community. The Council told Mr X it no longer provided financial support for transport, petrol costs, window cleaning, hobbies and interests, short breaks and family activities.
- The letter said the Council would enclose the assessment paperwork but Mr X says it did not include this. The care and support plan the Council says it attached to this letter stated 20 hours weekly PA support instead of the 17 hours the letter stated. It included payments for hobbies and interests and travel costs, which the letter had said the Council would not be funding.
- The plan did not include information in sections titled “needs” and “outcomes”. The plan said that Mr X’s needs for care and support in the future would be prevented or delayed by Mr X fully accessing the community with the support of his PA, being able to spend quality time with extended family, and not being limited by petrol expenses.
- Mr X wrote to the Council in July and August raising concerns. He asked it to explain why his personal budget had reduced when his needs had not changed. He said the support addressed his functional care needs but did not address his wellbeing or connections with family and the community. He said he opposed the Council’s decision to stop funding transport, given his contractual duty to pay mileage costs to his PA. Mr X told the Council it had arbitrarily cut his personal budget. He explained he did not feel it had properly supported and involved him, and the Council had told him what it would not fund but had not explained why. The Council raised Mr X’s concerns as a complaint.
- The Council sent a complaint response in September 2017. It apologised for the delay in responding. The Council said Mr X’s outcomes under the Care Act had not changed, but it had considered his support network and looked at alternative ways to meet those outcomes. It confirmed it would not fund equipment for hobbies, membership of clubs or transport costs. The Council said Mr X’s wife could take him to see other family members so the Council would not fund petrol for this. The Council sent Mr X a copy of his care and support plan.
- Mr X replied. He told the Council his personal budget had reduced from £19,147 to £9,559 but he did not know how it had reached this figure. He did not feel involved in developing his care and support plan. He highlighted the inconsistencies between what the Council had written in his plan and what it had told him in its letter of July 2017.
- The Council sent a further complaint response in November, after updating Mr X in October to say it would not be able to respond within 15 working days. The Council apologised again for the delay. It said a Social Worker would visit him to carry out a review, ensuring it took his views into account. It reiterated it could no longer pay for certain things, saying they did not fall into specified outcome categories in the Care Act. The Council explained it had used its discretion to change the hourly rate for PAs back to the original levels so Mr X could pay his PA a competitive rate.
- Mr X replied and said that while the previous review had given him the opportunity to put his views forward, the changes the Council made to his care and support plan were prescribed and not discussed with him. He said the Council had not considered the impact on him of removing parts of his previous support plan, and he now felt isolated and at risk of physical and emotional decline.
- Mr X met with the Social Worker in November 2017. Mr X explained how his health and physical disabilities impacted on his ability to manage his needs without support, and the impact of this on his day-to-day life and wellbeing. He explained the personal outcomes he wanted to achieve and what support he felt he needed to achieve these. The Social Worker told Mr X they would create a new plan for management approval. However, Mr X did not hear anything further.
- Six months later, in May 2018, Mr X wrote to the Council. The Social Worker replied apologising for the delay in sending the documents to him and the distress this caused him. They said the care and support plan included 20 hours PA support, for personal care, home environment, laundry, meals and undertaking personal activities. They said petrol costs would not be included in the personal budget as the Council expected Mr X to cover this using the mobility element of his Personal Independence Payment.
- The Social Worker attached a copy of a review document and the care and support plan. The eligible needs included “developing and maintaining family or other personal relationships” and “making use of necessary facilities or services in the local community including public transport and recreational facilities or services”. It listed outcomes relating to Mr X’s eligible needs. These included maintaining the garden and completing DIY tasks, maintaining essential relationships and accessing the community. The plan still included a payment to enable Mr X to manage his hobbies, and payment for travel to enable Mr X to see his extended family. It still stated his PA would support with gardening. Mr X highlights these documents did not refer to information he gave the Council in its visit of November, about his needs, how they impacted on him and the outcomes he wished to achieve.
- The complaints team wrote to Mr X and said his complaint about delay in providing him a copy of his care and support plan was upheld. It apologised. Mr X replied and said the Council had still not sent an up to date assessment after the visit of November 2017, and instead it had sent him the assessment from June 2017. He highlighted the care and support plan stated no needs or outcomes, and the Council had included none of the information he shared in November. Mr X told the Council he had spent his mobility payments on household costs and tax for his wife’s car. He said he had not received a clear explanation of what he could fund using his personal budget.
- Mr X explained he understood the demands on councils’ finances and so he was not challenging the Council solely based on his package being cut. However, he could not see evidence his personal budget met his needs and achieved his outcomes.
- The Council sent Mr X a letter at the end of June 2018 saying it would be unable to send a response within its usual target of 15 working days, and that it would respond in full as soon as possible. Mr X wrote to the complaints team in mid-October again after receiving no further response. The Council apologised and said it would respond once the complaints case manager had sought advice.
- The Council sent a complaint response to Mr X at the beginning of November 2018, and again apologised for the delay. It explained Mr X should use the mobility element of his benefits for transport costs and not to pay towards household bills. It explained it had fully considered Mr X’s views in the review of November 2017. It accepted it had previously sent Mr X historic documents. It apologised for this and said it would attach a copy of Mr X’s current plan. The plan the Council attached still included travel and a payment for hobbies.
- Mr X complained to the Ombudsman. He explained he felt he had no choice and control over how to meet his outcomes, and his care and support plan was still not in line with the Care Act. He explained he could not afford to pay his PA for fuel costs so the Council’s decision not to pay this any longer meant he now only occasionally went out with his wife at weekends.
- The Council reduced Mr X’s direct payments substantially in July 2017. It did not provide Mr X with an up-to-date assessment to show how it calculated the new personal budget. It agreed Mr X’s needs had not changed, however it said it would no longer pay for certain things. The Council applied this list to Mr X’s case strictly, with indifference to his individual needs and wishes, thus fettering its discretion. The Council has not shown it considered Mr X’s wellbeing. The Council’s assessment did not comply with the Care Act. This is fault.
- The Council had previously recorded it was important for Mr X to take part in activities, see his family and to be able to afford the petrol to do so. It recorded these things would prevent or delay his needs worsening. Given this, I would expect it to have clearly evidenced its decision that these things were no longer necessary.
- The Council told Mr X it had decided not to fund certain things because they did not fall into the “specified outcome categories” in the Care Act. The Care Act lists specific eligibility categories and outcomes. However, it does not specify what support can be arranged to meet those outcomes, and so the Council’s reasoning is flawed. The Council provided no rationale for stopping paying transport costs, which it previously paid to help Mr X see his family and access the community with his PA. It is for the Council to decide how it will fulfil its duty to meet Mr X’s eligible needs, properly considering the requirements of the Care Act.
- The Council’s flawed assessment and resulting decision caused Mr X distress. This had a significant impact on his wellbeing. Mr X missed out on opportunities to see his family and to go out into the community. He became isolated, which is particularly significant as he cannot go out without the necessary support. This distress has been prolonged, from July 2017. I cannot recommend a remedy that puts Mr X back in the position he would have been but for fault by the Council. I have therefore recommended action which recognises the impact these faults have had on Mr X, and ensures this does not continue.
- Mr X’s care and support plan does not display how his needs and outcomes are met by different elements of support. The Council repeatedly sent Mr X historical documents. The Council reviewed Mr X’s needs after he complained but it did not send him an up to date assessment and care plan. Mr X expressed several times the information was inconsistent, as the documentation said the Council would provide direct payments for travel and hobbies but the letters said it would not. This was fault and caused Mr X confusion and frustration.
- There were significant delays in the Council responding to Mr X’s complaints. Most significantly, the Council’s letter of November 2018 was 106 working days late. There were several unacceptable delays during the complaints process and this is fault. This compounded the distress Mr X had already experienced. Mr X had to go to the time and trouble of chasing the Council, and of complaining to the Ombudsman, to achieve a resolution.
- The Council’s assessment of November 2017 would have been suitable as a remedy for Mr X’s complaint, had it resulted in a Care Act-compliant care plan. However, the Council has not provided Mr X with an updated assessment or care plan following this. The Council missed the opportunity to resolve Mr X’s complaint.
- The Council has already apologised to Mr X, however it then repeated its previous mistakes. Therefore, it has agreed to apologise to Mr X again to recognise the cumulative effect of its faults. It will do so within one month of my final decision.
- The Council has agreed to pay Mr X £1,000 to recognise the significant distress its faults have caused him and the avoidable time and trouble he went to in bringing his complaint. It will do so within one month of my final decision. For the avoidance of doubt, this is separate to Mr X’s personal budget.
- The Council has agreed to urgently carry out a review of Mr X’s care and support plan. It will produce a plan which clearly sets out his eligible needs and outcomes and how each will be met based on Mr X’s personal circumstances. It will ensure this plan is compliant with the Care Act and takes account of Mr X’s wishes and wellbeing. It will provide Mr X with a copy of his new plan within two months of my final decision.
- The Council should provide evidence to the Ombudsman that it has carried out these actions.
- I found fault by the Council causing a significant injustice to Mr X. The Council accepted my recommendations and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman