Decision : Upheld
Decision date : 30 Sep 2019
The Ombudsman's final decision:
Summary: Mr X complained about the way the Council reviewed his care package. There is no fault in the way the Council reached its decision to stop his direct payments for the gym and not to pay him a contingency amount. The Council was not at fault for deciding not to increase Mrs X’s care package but there was a lack of records around its funding panel’s decision making and how Mr X was advised of this. The Council has agreed to apologise to Mr X and review its procedures around recording Panel meetings and the outcomes.
- Mr X complained about the way the Council reviewed his care package. He says it removed the contingency from his direct payments without reviewing his care package. It also told Mr X it was stopping the direct payments for his gym membership before it reviewed his care package. Mr X says this has impacted on his well-being. Mr X says the review was carried out in an unprofessional manner. In addition, he complains the Council refused to increase Mrs X’s care package when her needs changed and she required more support.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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 information supplied by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries and the relevant law and statutory guidance.
- I gave Mr X and the Council the opportunity to comment on a draft of this decision.
What I found
- 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).
- Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. Councils must ensure that charges should not reduce a person’s income below Income Support plus 25% (the minimum income guarantee). The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
- 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. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months.
- 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:
- Managing and maintaining nutrition;
- Maintaining personal hygiene;
- Managing toilet needs;
- Being appropriately clothed;
- Being able to make use of the adult’s home safely;
- 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 facilities or services; and
- Carrying out any caring responsibilities the adult has for a child.
- Mr and Mrs X both have care needs. They have received a domiciliary care package since 2002. Since 2005 they received their personal budget as direct payments. Mr X received 28 hours of support each week and Mrs X 29 hours of support each week. Mr X also received a payment for his gym membership.
- In June 2017 Mr X had a significant heart operation. In October 2017 Mr X received a contingency payment to assist with getting to and from hospital appointments. The direct payment request stated the Council had ‘agreed the contingency hours as a one off for this year at £212.88, this is for 4 hours x 6 times per year x £8.87 per hour to support with hospital appointments as and when needed’.
- Mr X’s care and support plan of March 2018, under mobility, referred to Mr X attending the gym to improve his mobility. It also, under health and well-being, recorded Mr X visited the gym regularly in order to maximise his lung and heart capacity and so remain as physically and emotionally well as possible. It noted ‘gym membership is currently funded via DP but [Mr X] is aware that social services may not continue to fund in future as this need should be funded by health’. The plan also noted that carers supported Mr X with attending appointments.
- The budget calculation on the care and support plan showed Mr X received a personal budget of £300.88 per week which included 28 hours of Personal Assistant (PA) support per week and Mr X’s gym session at £8.31 per week. From this the Council deducted Mr X’s contribution. Mrs X received £292.33 per week direct payments to fund 29 hours of PA support each week. The Council also agreed to make a one-off payment each year of £2075.30 which included employer costs (shared between Mr and Mrs X) and £212.88 for contingency for hospital appointments.
- In August 2018 Mr X requested a reassessment as following a stay in hospital Mr and Mrs X considered Mrs X’s care needs had increased. Mr X asked for an additional two hours a day to support Mrs X while he was using a ventilator. Mr X did not feel he could leave Mrs X alone as she is vulnerable. A social worker arranged to visit Mrs X to reassess her care needs. They noted Mrs X required support with personal and toileting care. They noted Mrs X was extremely short of breath even when rested. Mr X could not support with toileting needs when he was on the ventilator and Mrs X needed supervision when walking/transferring during this period.
- The social worker put the request to the Council’s Panel for approval. The Panel is made up of senior officers who make decisions on changes to care package funding. The social worker emailed Mr X to say the Panel wanted more information on how they currently used Mrs X’s hours and what support she received in this time. It asked if the current hours could be moved around or whether Mr X could use the ventilator when PA’s were around and whether the ventilator could be moved downstairs.
- Mr X replied that Mrs X received support 09:00 to 13:00 Monday to Friday and 09:00 to 11:00 Saturday and Sunday. She also received 30 minutes between 20:30 and 21:00 each day. Mr X said there was no scope to move the contracted care hours, when he used the ventilator or the ventilator itself. Mr X did not explain what actual support was provided to Mrs X by the PA’s during these visits.
- The social worker emailed Mr X again requesting details of the specific support the PAs were providing during the time slots.
- Mrs X’s social worker and an officer from the Direct Payment Team visited Mr and Mrs X in October 2018. The social worker wanted some further information about what tasks the carers completed to support Mrs X but Mr X said he was unable to give a breakdown and said the PA’s had contracted hours. Mr X said it was not feasible to move the ventilator and he liked to sleep when using it. The officer discussed using a falls detector to support Mrs X. The notes record the social worker said that without this information the request for additional hours may be declined but they would put it forward. At the visit, Mr X asked about the contingency budget. Mr X said they had used the contingency money for support for hospital appointments for him and Mrs X. He requested a further contingency amount which the officer agreed to put forward for approval.
- The social worker presented Mr X’s case to the Panel again in October 2018, requesting an additional two hours of support for Mrs X each day. They set out Mrs X’s health conditions, that she frequently needed to access the commode and needed supervision when transferring due to the risk of passing out. They reported Mr X felt he could not leave his wife alone when she was so vulnerable. The additional hours were required to safeguard Mrs X. The current contracted hours were not flexible and Mr X said they were fully used to support Mrs X.
- In October 2018 Mr X received his yearly one-off direct payment for his employer costs. The amount did not include the £212.88 he previously received as a contingency payment.
- Mr X contacted the Council in November 2018 for an update on his application for extra hours for Mrs X and regarding the removal of his contingency budget. The social worker advised they were responsible for Mrs X and were not assessing Mr X’s needs. They confirmed the Panel had refused the request for extra hours but had recommended an assessment for Continuing Healthcare (CHC) funding. The social worker also requested a falls detector for Mrs X which was installed. Later that month the NHS confirmed to the social worker Mrs X did not meet the criteria for CHC funding.
- Mr X continued to request an update regarding his contingency budget. The Council contacted Mr X in early December 2018 to confirm his case would be allocated to a worker to complete a review and to consider the contingency monies again.
- Mrs X’s social worker called Mr X in January 2019 to advise Mrs X had not met the criteria for CHC and the Council’s view remained that her care package should not be increased.
- Mr X contacted the Council to complain about the refusal of the increased hours. The Council responded that it had allocated the case to an officer who would look to visit him in February 2019.
- A case officer and an officer from the Direct Payments Team visited Mr X in February 2019. The notes record the case officer explained they were there to discuss Mr X’s care and support plan. Mr X said he received contingency money for hospital trips and this was agreed the previous September. The officer agreed to speak to their manager and to see what was agreed previously. They also noted the gym membership would be reviewed.
- The Council replied to Mr X’s complaint in February 2019. It set out that as Mr and Mrs X had a high cost care package it was discussed by a senior panel of Council personnel who declined the additional hours asked for. It decided Mrs X could be left on her own in a room whilst Mr X was at the property. It had considered CHC funding but she did not meet the NHS criteria. It did not consider it appropriate to give a contingency for travel and for escorting Mrs X to hospital appointments. It stated the Council’s policy was that contingency money was to address emergencies. It stated hospital transport could be provided by the NHS should this be a health need. It added that following a review of Mr X’s direct payment, it decided Mr X’s gym attendance could no longer be paid from his direct payment as this was a health need and Mr X may wish to discuss it with his GP.
- The two Council officers visited Mr X again in March 2019. The case officer sought to discuss how Mr X used his current hours but noted Mr X did not want to answer this. The notes record Mr X was not forthcoming with the answers. Mr X then tried to explain this verbally but it was not straightforward as the PAs were shared with Mrs X. The case officer told Mr X the contingency money had ceased and gym payments were stopping as this was a health need. Mr X’s care and support plan of March 2019 stated Mr X had until recently received Council funding for gym membership and he should contact the GP for NHS funding regarding this.
- Mr X remained unhappy and complained to the Council about this and the conduct of the case officer. The Council responded in May 2019. It explained Mr X had said he attended the gym to improve his lung capacity and improve his mobility. It considered these were health needs and Mr X should contact his GP for this via a personal health budget. It said it would continue to fund his PA to assist him to attend the local community. It had spoken to the officer who said they were not rude or disrespectful. It confirmed the officer had contacted his GP who said Mr X needed to contact them directly.
- Mr X received a direct payment towards his gym membership up until February 2019. The Council cannot say when it initially agreed to fund this. Mr X’s care and support plan of March 2018 acknowledged the gym membership was funded by his direct payments but stated social services may not continue to fund this in future as this need should be funded by health. Mr X’s care and support plan of March 2019 refers to gym membership as a health need.
- The intention of direct payments is to allow greater flexibility and choice as to how a person uses them to meet their eligible needs. Mr X says he needs to attend the gym to maximise his lung and heart capacity. These are health matters. While attending the gym could be considered an eligible need under the category ‘Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services’, the gym membership itself is not. Mr X’s direct payment includes funding for PAs to support him in the community which could include supporting him to attend the gym. However, the Council took the view it would no longer fund Mr X’s gym membership as the gym membership itself was not to meet an eligible social care need but to meet a health need. Mr X was aware from 2018 the Council had concerns about continuing to fund this. As there is no fault in how the Council reached the decision to stop his gym membership, I cannot question the decision itself.
- The Council’s records show Mr X received a contingency payment in October 2017 for transport to appointments as a one-off payment based on his circumstances at that time, following his operation. The Council says this figure was included again in the budget calculation in Mr X’s March 2018 care and support plan in error, as the care plan was updated from a previous version. It had not identified the need for an additional contingency payment for 2018.
- The Council’s inclusion of the contingency amount in Mr X’s March 2018 care and support plan is likely to have caused Mr X some confusion. However, the Council is under no obligation to continue to provide this funding purely on the basis that it was approved previously. The Council has considered Mr X’s request to continue the funding but has decided not to. It says it would not normally expect to fund people to attend hospital appointments other than in exceptional circumstances where it is an assessed need. It says contingency money should be used in the event of emergencies and not for travel and escorting Mrs X to hospital appointments. Mr X’s support plan already contains reference to support in the local community and attending appointments. The Council has considered Mr X’s needs for care and support and has not agreed to a further contingency payment. As there is no fault in the way it reached this decision, I cannot question the decision itself.
- Mr X was unhappy with the way the case officer reviewed his care and support in March 2019. There was another officer present at the review meeting who noted Mr X was unhappy and did not want to discuss the Council’s letter or how his hours of support were used. They also noted there was tension between Mr X and the case officer. This was clearly a difficult meeting. However, there is no evidence to show the case officer was unprofessional or inappropriate. Mr X was unhappy the case officer was not a qualified social worker. The Care Act does not require the assessment to be carried out by a qualified social worker so this is not fault. In any case, there is no evidence of fault in the way the assessment was carried out.
Request for extra hours for Mrs X
- There are no minutes of the Council’s Panel’s meetings and there is no record of who was on the Panel. It is therefore difficult to know exactly what was discussed or what the Panel’s reasoning was, at the time, for refusing Mr X’s request for an additional two hours a day support for Mrs X. This is fault. However, the social worker’s communications with Mr X fed back what further information the Panel required and that it had suggested pursuing CHC funding.
- In the complaint response to Mr X the Council says the Panel refused the request because it considered Mrs X could be left alone in a room when Mr X was on a ventilator. This reasoning is not set out anywhere else in the Council’s records and was not clearly explained to Mr X previously. This is fault. The poor record keeping and lack of clarity caused Mr X some frustration and uncertainty.
- The Council has acknowledged it is not possible to know who was on the Panel at that time as it was not documented and there are no minutes. It says there have been changes to the Panel’s procedures and this information is now recorded.
- Within one month of the final decision on this complaint, the Council has agreed to apologise to Mr X for the frustration and uncertainty caused by the lack of clarity and poor record keeping around the Panel’s decision making.
- Within two months of the final decision on this complaint, the Council has agreed to provide evidence to the Ombudsman of the revised Panel procedures ensuring it records:
- who was on the Panel;
- how it reached its decision to approve or decline each request; and
- how the applicant was to be informed of this.
- I have completed my investigation. There is evidence of fault causing injustice which the Council has agreed to remedy.
Investigator's decision on behalf of the Ombudsman