Summary: The Council is at fault as the setting of Mrs Y’s personal budget was not transparent. There is no evidence of fault in how the Council decided how much to pay Ms X for managing Mrs Y’s direct payment account and how it decided Mrs Y’s disability related expenditure.

The complaint

1. Ms X complains
1. Mrs Y’s personal budget is insufficient as it does not cover the costs of providing her care including providing cover in the event carers are absent from work, bank holiday pay, costs of equipment such as rubber gloves, manual handling course, food and laundry costs for living carers etc.
2. The Council has not given proper consideration to all Mrs Y’s claimed disability related expenditure.
3. The Council failed to provide sufficient information to her about managing direct payments and care, including the level of work and time involved, when she was deciding to manage Mrs Y’s direct payments and care. As a result Ms X did not have sufficient information to make an informed decision about managing Mrs Y’s direct payments and her care options.
4. The Council failed to provide a copy of Mrs Y’s care plan to Ms X at the time she made her decision to manage Mrs Y’s care and direct payment account.
5. The allowance of £21.60 per week paid to Ms X to manage Mrs X’s direct payment account and care is not sufficient as it does not reflect the significant workload and the costs Ms X incurs such as fuel and telephone charges.
6. The Council has wrongly taken account of Mrs Y’s attendance allowance and disability living allowance when assessing her income for her financial assessment.
7. Ms X experiences difficulties with PFS pre paid card system as it delays in processing all the payments she wishes to make to carers on 28th of each month.

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The Ombudsman’s role and powers

2. 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)
3. Complaints a), c), d), f) and g) are older than 12 months but there are good reasons to investigate these matters as they are ongoing issues. Complaints b) and e) are not late complaints.
4. 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)
5. 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

6. I have:
• Considered the complaint and the information provided by Ms X;
• Discussed the issues with Ms X;
• Made enquiries of the Council and considered the information provided;
• Invited Ms X and the Council to comment on the draft decision.

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What I found

7. A council must carry out an assessment of any adult who seems to need care and support. Having identified eligible needs through a needs assessment, the Council has a duty to meet those needs. (Care Act 2014, section 18)
8. The Care Act sets out examples of different ways a council can meet eligible needs. Examples include accommodation in a care home and care and support at home. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
9. The care and support plan must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. The setting of the personal budget should be transparent to ensure a person is fully aware of how the budget has been calculated. (Care Act 2014, s 26 and Care and support guidance, paragraph 11.24)
10. In determining how to meet needs, the local authority may take into reasonable consideration its own finances and budgetary position. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes as doing so would not deliver an approach that is person centred. The authority may take decisions on a case by case basis which weigh up the total costs of different potential options for meeting needs and include cost as a relevant factor in deciding between suitable alternative options for meeting needs. (Care and support guidance paragraph 10.27)
11. Everyone whose needs are met by the local authority are eligible, or if the authority has chosen to meet other needs, must receive a personal budget as part of the care and support plan. At all times the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option. This allows the person to make informed decisions about to meet their care and support needs. (paragraph 11.7 care and support statutory guidance).
12. The personal budget must be an amount which is the cost to the local authority of meeting the person’s needs. In establishing the costs to the local authority consideration should be given to local market intelligence and cost of local quality provision to ensure the personal budget reflects local market conditions and appropriate care that meets needs can be obtained for the amount specified in the budget.
13. The High Court has confirmed an individual’s wishes are not the same as their needs and their wishes are not the paramount consideration. A council must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
14. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. 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)
15. Annex C of the Care and Support Guidance provides that any income from benefits in including attendance allowance and DLA (care component) must be taken into account when considering what a person can afford to pay towards their care from their income.

What happened

Personal Budget

16. Mrs Y has dementia, impaired mobility and other health conditions. Mrs Y lives at home with live in carers. Ms X manages her care and support and has a lasting power of attorney to act on her behalf.
17. In April 2017, Mrs Y slipped from a chair and was admitted to hospital. The Council carried out an assessment of her care and support needs in preparation for her discharge. The assessment notes Ms X’s position that she expected Mrs Y to return home and does not feel that there would be any other discharge plan that would be acceptable or appropriate. Mrs Y had capital of over £23,250 at this time so she was not eligible for assistance from the Council.
18. In November 2017 the Council carried out a review of Mrs Y’s care and support needs as her capital would soon fall below £23,250 so she would be eligible for help from the Council with her care fees. The assessment noted Mrs Y requires 24 hour support due to her impairment and that she received excellent care in her own home from live in carers. The assessment noted there was no need to change the current arrangements.
19. The Council’s resource allocation system provided an indicative budget of £1000 per week and a senior officer authorised a personal budget for this amount. Mrs Y’s actual care cost was £1500 per week.
20. Mrs Y was required to pay a client contribution towards her direct payment which was £327 per week from April 2018 so the Council’s actual contribution is £693 per week. Mrs Y was also required to nominate a third party or make other arrangements to pay the remainder of the costs.
21. Ms X made a complaint which the Council responded to in August 2018. The Council explained it was able to find nursing home places in the area for £950 per week. In view of the average price and Mrs Y’s preference to remain in her own home, her personal budget was set at £1000 per week.
22. I asked the Council to explain why it set Mrs Y’s personal budget at £1000 per week. The Council has said its standard amount for a nursing home place is £736.56 to include NHS funded nursing care. If it is not possible to place a person at this rate it will increase a person’s personal budget to match the cost of an available, suitable placement. If a person chooses a more expensive placement then they are responsible for arranging for a third party to pay the additional fees.
23. The Council considers it is entitled to take its resources into account and a duty to meet care and support needs at best value. Ms X wanted to keep the care arrangements which were in place while Mrs Y was self funding her care. The Council has said it considered the alternative options of meeting Mrs Y’s needs in a nursing home or finding an alternative provider of 24 hour care but Ms X was not willing to explore these options. The Council has said there were appropriate nursing home places available at the time which could meet Mrs Y’s needs for £900 to £1000 per week. As it was Ms X’s choice for Mrs Y to remain at home with a more expensive care package the Council set the personal budget at £1000 per week. The budget was agreed to cover all costs including bank holiday rates. It also includes any training required as this would be provided in nursing home placement.
24. The Council has sought legal advice over previous similar case which supports its approach to setting Mrs Y’s personal budget.
25. Ms X says the Council did not discuss the option of a nursing home placement for Mrs Y and she was willing to explore nursing home places. Ms X says she represented Mrs Y’s wishes to stay in her own home and she had to consider her parents neglect and abuse during their previous stay in a care home. Ms X also says the Council told her Mrs Y would not get the same level of care in a care home as she did at home.
26. Ms X considers the personal budget is insufficient to meet Mrs Y’s needs and considers the Council should provide a detailed breakdown to show how it has accounted for rubber gloves, food for carers and other items. She also disputes the Council’s position that an alternative care agency could meet Mrs Y’s needs at a cheaper cost than her existing care package as the Council has not identified a care agency that could do this.
27. Ms X has also said the Council dd not provide details of the contribution and top up fee it expected Mrs Y to pay.
28. In response to my draft decision, the Council has provided details of seven nursing home places which were available in November 2017 and at a cost lower than £1000 per week.

Direct payments

29. The Council’s records note Ms X had a meeting with the direct payments advice team in November 2017. There is no record of any advice given but the team requested Ms X sign the contract for direct payments. Ms X disputes this meeting took place.
30. Ms X requested the Council pay an additional allowance in the direct payments to pay her for managing Mrs Y’s direct payments and care package. In March 2018, the Council agreed to pay an additional £21.60 to Ms X for managing the direct payment account. This equates to two hours per week. In its letter to Ms X, the Council said it considered this represented a reasonable estimate for the time spent organising the rota for carers and the time spent in settling their pay. arrangements. It also advised Ms X she could claim expenses such as travel from Mrs Y as she was her lasting power of attorney.

Disability related expenditure.

31. Ms X requested the Council consider certain aspects of Mrs Y’s expenditure as disability related expenditure (DRE) as part of a complaint. Ms X requested allowances for Mrs Y’s:

• telephone and internet access,
• house insurance,
• boiler breakdown cover as Ms X was required to provide an appropriate temperature for carers to comply with employment law,
• additional costs for gas, electricity and water used by live in carers including for laundry,
• food for carers,
• rubber gloves and
• cover for carers’ breaks.

32. The Council considered the matter when responding to Ms X’s complaint in August 2018. It agreed additional allowances for Mrs Y’s gas, electricity and water usage as her usage was higher than average. The Council considered the other items would be part of Mrs Y’s care package or covered by the general living allowance/minimum income guarantee of £189 per week in her financial assessment. The Council also said Mrs Y’s telephone expenses are included in the general allowance but it could make an allowance for Mrs Y’s internet if her access was necessary due to her being blind or partially sighted. It asked Ms X to advise how much she pays for her internet access. The Council advised that Ms X’s own internet access or costs arsing from the care package arrangements would be included in the care package costs.
33. Ms X has said the Council has failed to consider all Mrs Y’s DRE’s such as chiropody services, hairdressing costs, manual handling training, wheelchair accessible car, administration and stationary costs and increased rates of pay for carers for bank holidays. Ms X also disagrees with the Council’s decision that rubber gloves and food for carers are part of Mrs Y’s care package.
34. In response to my further enquiries, the Council has considered Ms X’s further request for DRE’s. It has decided:

• Hair washing and general hair maintenance is expected to be part of the care package as Mrs Y needs full personal care on 24 hour basis;
• General expense of running a car is included in £189 general allowance. But the Council could include a maintenance allowance for Mrs Y’s wheelchair on receipt of further information as to whether it is a powered or manual wheelchair from Ms X.
• It can include chiropody for essential nail cutting on receipt of further information from Ms X about the actual costs. Ms X will need to provide this information to the Council.
• The payment of £21.20 to Ms X for managing Mrs Y’s direct payment account includes administration costs such as stationary.

Payment card

35. The Council provides a prepaid card system for direct payments users to make payments to carers by online or telephone banking. Ms X experienced difficulties in using the card and was unable to make payments by telephone banking. Ms X finds it difficult to use online banking as she has dyslexia. The Council acknowledged to Ms X that there had been problems for a period of time with the system which had prevented Ms X from making payments. The Council offered an alternative service called a managed bank account. This meant all invoices and staff payments could be made by its broker service upon receipt of relevant documents. It also offered to pay the direct payments into a separate bank account for Mrs Y’s direct payments and held by Ms X.
36. Ms X has complained she was still experiencing problems with the pre paid card. In response to my enquiries the Council has said Ms X seeks to make her payments on the final day including Mrs Y’s contribution through paypoint which as its own delays. It has said the Council has discussed with Ms X how to mitigate these problems such as not using paypoint or using the float in the direct payment account to make payments in advance. Ms X has said she does not use paypoint.
37. In response to my draft decision Ms X has raised complaints about the Council not providing details of paypoints or post offices which can accept the card and about the card provider drip feeding information. She also considers the Council has not made reasonable adjustments as she is unable to use internet banking due to her disabilities.
38. Mrs Y sadly passed away in March 2020.

My assessment

Personal budget

39. The Council should not set an arbitrary rate for a personal budget but it can take into account local market conditions when calculating the personal budget. While a council should consider a service user’s preferences, case law provides the Council can give more weight to how it can meet a service user’s needs than the service user’s preference about how their needs should be met. So, on balance, the Council is not at fault for considering if Mrs Y’s needs can be met in nursing care and, if so, setting the personal budget to the cost of nursing care home place.
40. But the Council has to be able to demonstrate it has considered what care can meet a service user’s eligible needs and how it has set the personal budget to meet those needs. The Council has said it set Mrs Y’s personal budget at £1000 per week as her needs could be met in a nursing care home at that rate. But Mrs Y’s care and support plan from November 2017 does not demonstrate the Council actively considered if Mrs Y’s needs could be met in nursing care or whether there were suitable places available. The care and support plan does not show the Council considered if other agencies could meet Mrs Y’s needs for £1000 per week. I am mindful that Mrs Y’s preference was to maintain her existing care arrangements. However, the Council still needed to demonstrate other care options were available when it was relying on these to calculate Mrs Y’s personal budget. The failure to do so is fault. As a result, the setting of the personal budget was not transparent.
41. In response to my draft decision the Council has said it would have noted in the care plan if Ms X had been amenable to discussing nursing care placements. Ms X has said the Council did not raise the issue of nursing care placements with her. The Council has not provided any evidence to show it explored the option of a nursing care placement with Ms X and how this could affect the personal budget and Ms X’s views on the matter.
42. Mrs Y’s care and support plan does not set out how much the Council will contribute and how much she will contribute. This is fault which contributes to lack of transparency in the setting of the personal budget. The Council has acknowledged it failed to send a copy of the care and support plan to Ms X and this is fault. The Council has not provided any evidence to show it notified Ms X of what Mrs Y’s contribution and top up fee would be. Again, this gives the appearance of a lack of transparency.
43. Ms X considers the Council should provide a full breakdown of how the personal budget meets all the aspects of Mrs Y’s care, including the equipment needed and food for carers. This is not fault. The Council considers Mrs Y’s needs could be met in a nursing home at £1000 per week which is why it did not fund the cost of the whole care package.

Injustice to Mrs Y

44. The Council has provided evidence to show there were seven nursing home places available at the time it drew up the care and support plan for less than £1000 per week. So, on balance, I consider it is likely a nursing home place that could meet Mrs Y’s needs would have been available at the time or shortly after the Council set the personal budget. But Ms X could have made a more informed decision if the care and support plan had set out how the Council had calculated the personal budget.
45. On balance, I consider Ms X would not have made a different decision about Mrs Y’s care if she had this information. Mrs Y’s preference was to be cared for at home and Ms X has outlined her concerns about her parents previous experience in a care home and that Mrs Y would not receive the same standard of care as she did at home. But Ms X would have made this decision in the full knowledge of how the Council had calculated the personal budget and what contribution Mrs Y would have to make. The lack of transparency in how the personal budget was calculated will have caused some uncertainty to Ms X which the Council should apologise for. The Council has not agreed to make this apology. I remain of the view that the Council should apologise but it would not be proportionate to pursue Ms X’s complaint further just to achieve an apology for her.
46. The Council should review it procedures for care and support planning to ensure it is transparent in how it sets the level of a personal budget. It should also ensure service users have sufficient information to understand how the Council has reached its decision on the level of the personal budget offered.

Disability related expenditure

47. The evidence shows the Council considered Ms X’s request for DRE’s for Mrs Y, including use of gas, electricity and water by Mrs Y’s carers. So, I am satisfied the Council has considered Ms X’s request for DRE’s so I have no grounds to question its decision about the eligibility for those items. The Council has now considered the additional items requested by Ms X and, as it has done so, I have no grounds to question its decision. It is open to Ms X to provide additional information to the Council regarding the costs of Mrs Y’s chiropody and wheelchair maintenance for its further consideration.

Council failed to provide sufficient information to Ms X about managing direct payments including the level and time involved and provision of care plan

48. The Council has said it provided a copy of a leaflet to Ms X about direct payments. This sets out insurance requirements, financial arrangements including the prepaid card or supported banking and payroll services. On balance, this leaflet provides sufficient indication of what is involved in managing direct payments for a person to know what it entails. Furthermore, Ms X managed Mrs Y’s care package when she was self funding so I consider Ms X would have an understanding of the level of work involved when she undertook to manage Mrs Y’s direct payment account.

Allowance for managing Mrs Y’s direct payment account

49. The Council has considered Ms X’s request to be paid an allowance for managing Mrs Y’s direct payment account and explained its decision is based on a reasonable estimate of how long The Council has explained that it considers this is a reasonable estimate for the time spent organising the rota and paying carers. I acknowledge Ms X considered the payment to be insufficient. On balance, there is no evidence of fault as the Council considered Ms X’s request and has broadly explained why it considers the allowance to be sufficient.

Problems with prepayment card

50. The Council has acknowledged that there were problems with the prepayment card. Ms X has also said she continues to experience problems. But the Council has offered other options to Ms X including a managed bank account so it has taken appropriate action to resolve the issues for Ms X. So, there is insufficient injustice to Ms X to warrant pursuing this matter further.
51. Ms X considers the Council has not made reasonable adjustments as it offered internet banking to manage the direct payments which she cannot use due to her disabilities. The Council also offered a managed account to Ms X so I am satisfied it made reasonable adjustments for her.
52. In response to the draft decision Ms X has raised issues about the Council not providing information on which post offices accept the PFS card and the Council not providing the location of paypoints. She has also raised the Council did not provide a pin number for the card and not provided full information on the terms and conditions. I will not investigate these matters as they are new issues and the Council should be given the opportunity to consider Ms X’s complaints about these and respond to her. Furthermore, as stated above, the Council offered a managed account to Ms X so there is insufficient injustice to warrant pursuing the matter further.

Financial assessment

53. The Council is not at fault for including Mrs Y’s attendance allowance in her financial assessment. This is in accordance with the Care and Support guidance. The Council has not included Mrs Y’s DLA in the financial assessment.

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Final decision

54. The Council is at fault as the setting of Mrs Y’s personal budget was not transparent. There is no evidence of fault in how the Council decided how much to pay Ms X for managing Mrs Y’s direct payment account and how it decided Mrs Y’s disability related expenditure.

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Investigator's decision on behalf of the Ombudsman