Decision : Upheld
Decision date : 24 Sep 2019
The Ombudsman's final decision:
Summary: There is evidence of delay and poor communication by the Council during an assessment of Mrs Y’s needs. The Council also failed to ensure Mrs Y’s personal budget was sufficient to cover her care and support needs. This caused an injustice to Mrs Y, and to Ms X, her daughter, who pursued the matter on Mrs Y’s behalf.
- Ms X complains about the Council’s assessment of her mother needs, both the process and the outcome. She says there was delay, poor communication and an insufficient personal budget allocated, which does not cover the full cost of her mother’s care.
- Ms X is dissatisfied with the way the Council dealt with her complaints about the above.
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)
- 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 complaint and discussed it with Ms X;
- considered the correspondence between Ms X and the Council, including the Council’s response to the complaint;
- made enquiries of the Council and considered the responses;
- taken account of relevant legislation;
- offered Ms X and the Council an opportunity to comment on a draft of this statement, and considered the comments made.
What I found
- Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person’s finances.
- The statutory guidance at part 6 says a council must consider “the total extent of a person’s needs” before it “considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting those needs will help the adult achieve their desired outcomes”.
- Where the council decides someone has eligible needs, it must produce a care and support plan explaining how to meet them. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support is available locally.
- 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.
- 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. (Care and Support Statutory Guidance 2014)
- After completing a care and support plan, the council should carry out a financial assessment to decide how much, if anything, the person should pay towards meeting their eligible needs.
- The council should carry out a carer’s assessment where a person with care needs is also caring for another person with care needs. This follows a similar approach to the need’s assessment discussed above.
- Mrs Y has advanced dementia. She lives at home. Until July 2018 she funded homecare privately. Ms X and her sister visited daily and provided support at lunch, managed Mrs Y’s paperwork, finances and escorted her to any appointments.
- In July 2018 Mrs Y’s funds fell below the threshold for help with care fees. Ms X contacted the Council on 13 July 2018 to ask for assessment of Mrs Y.
- The Council completed a needs assessment of Mrs Y on 20 August 2018. I have seen a copy of this document. The assessor recorded Mrs Y needed support in all areas of daily living and was doubly incontinent, and “…has difficulty retaining information and requires support to make decisions regarding her care needs”. Mrs Y was reported to be at significant risk of wandering and because of this her family had installed two cameras through which they were able to speak to her.
- Ms X told the assessor she believed Mrs Y was managing well with the level of support provided, two visits a day, but she and her sister were not able to continue providing support to Mrs Y at lunch, but they could continue to provide support with “finances, paperwork, communicating with others, completing shopping tasks, domestic chores and attending appointments”.
- The assessor concluded Mrs Y was at risk of falls, self-neglect, harm to herself and wandering. Under the section ‘How is your planning and decision making?’ the assessor ticked the box, “Some difficulty with complex decisions”.
- The assessor recorded Ms X had been offered a carers assessment and that she was considering the offer.
- The case notes show the social worker submitted a funding request on 5 September 2018, for a ‘Request for Service Over £300’ for three homecare visits a day and three days at a day centre. This was agreed the same day.
- The Council says it completed a support plan for Mrs Y on 5 September 2018. Ms X did not receive a copy of the need’s assessment or support plan. The Council has not explained the reasons for this.
- Following the assessment Ms X heard nothing from the Council, so she contacted it be email and telephone but says she received no response. Ms X contacted the Council on 26 September 2018 to report concerns about Mrs Y wandering, and that she had increased Mrs Y’s attendance at the day centre to four days a week. An officer from social services advised Ms X to contact the ‘front door team’ to arrange a review of Mrs Y’s needs, which Ms X did, and a review was arranged for 3 October 2018.
- Ms X sent a further email to a social worker on 30 September 2018 and 1 October 2018 to say Mrs Y was increasingly disorientated and could not be left alone overnight. Ms X was staying with Mrs Y overnight to provide support.
- A social worker visited Mrs Y on 3 October 2018 to reassess her needs. The social worker concluded Mrs Y’s needs had changed since the previous assessment completed in August 2018 and that Ms X was struggling with caring for Mrs Y. The social worker offered Mrs Y respite care, but this was declined. The social worker said the Council would undertake an assessment of Mrs Y’s capacity as a matter of urgency. Miss X says this was not started until 16 November 2018.
- Ms X sent an email to the social worker on 4 & 5 October 2018 reiterating the distress and disorientation Mrs Y was experiencing and saying she believed Mrs Y needed 24-hour care and that she wanted to urgently establish a long-term plan for her care, and she was unable to continue providing the level of support Mrs Y needed. She said “As discussed yesterday I have had to arrange on a trial basis a live in carer through [care agency] for next week, the week commencing the 8th October as I am unable to continue looking after mum the cost of this is approximately £900 a week and we will continue to send her to [Day care] on a Monday, Tuesday, Thursday and Friday”.
- Ms X says she did not have a support plan for Mrs Y so she was unable to provide carers with a plan and they had “to manage without”.
- The records show a discussion between the social worker and her manager on 5 November 2018. The social worker said Mrs Y was still funding her care privately, that she had night-time needs but had declined residential care. The manager asked the social worker to complete a request for night-time funding, and to undertake a mental capacity assessment.
- A mental capacity assessment was completed on 16 November 2018. I have seen a copy of this document. The assessor concluded “[Mrs Y] was not able to understand the decision concerning her accommodation even when practical steps were taken to assist her…[Mrs Y] could not explain or understand the risks if left on her own without support…decisions concerning [Mrs Y’s] accommodation, care and treatment needs to made in her best interests”.
- A care and support plan for Mrs Y was completed on 16 November 2018. I have seen a copy of this document. This records Mrs Y needed a live-in carer to provide support in all areas of daily living, including support to engage in social activities. On 30 November 2018 the Council agreed funding for a live-in carer at a standard weekly cost of £854. The Council backdated the funding to 16 November 2018.
- The social worker telephoned Ms X on 30 November 2018 to inform her about the decision. Ms X was unhappy the Council had not included funding for Mrs Y to attend the day centre. She said Mrs Y had attended for two years and it would be detrimental to her to change her routine. The social worker told Ms X social engagement should be provided as part of the live-in care package.
- Ms X sent an email to the Council on 5 December 2018 saying she was dissatisfied about the lack of funding for the day centre and that she expected the funding to be backdated because it had taken the Council over two months to complete the assessment.
- Ms X submitted a formal complaint to the Council on 6 December 2018
- The records show a social worker sent Ms X an email on 7 December 2018 explaining funding would be backdated to 16 November 2018 and that it would not fund carer’s breaks because this was the agency’s responsibility. It says a copy of Mrs Y’s needs assessment was attached. Ms X disputes receiving it.
- Ms X says she telephoned the Council again on 17 December 2018 to reiterate her dissatisfaction about the funding decision, and that she had not received copies of Mrs Y’s assessment, support plan and mental capacity assessment. The Council told her it had provided these documents previously. Ms X says she would not have expended significant amounts of time chasing the Council had she received them.
- The Council sent a copy of the mental capacity assessment in the post to Mrs Y’s home on 18 December 2018. Ms X found the assessment during a visit to Mrs Y. Ms X sent an email to a senior practitioner in social services confirming receipt of the assessment and said there was an error on the assessment and asked that it be corrected.
- The Council contacted Ms X on 7 January 2019 to say the formal complaint she submitted in December 2018 would be dealt with through the Council’s appeals panel. Ms X responded saying she had not received an amended mental capacity assessment correcting the error on the previous copy.
- The Council says a social worker sent Ms X an amended copy of the mental capacity assessment on 15 January 2019. The evidence shows Ms X received it on 18 February 2019, along with a support plan dated 27 December 2018. Both documents are unsigned.
- The Council sent an email to Ms X on 14 January 2019 saying the appeal would be held on 28 January 2019 and asked her to provide any information she would like considered. Ms X provided comments the same day.
- The appeal took place on 28 January 2019. I have seen a copy of the notes of the meeting. Officers noted Mrs Y had live-in care arranged by the family since 8 October 2018, and that she attended a day centre four days a week. The panel queried the need for day centre attendance when live-in care was provided. It also queried why the care agency was not covering carer’s breaks. Officers were also concerned that family continued to provide support with shopping, domestic chores and attending appointments, when such tasks should be covered by the live-in care service. Officers wanted clarification on these issues before making a final decision. Officers acknowledged a delay in providing Ms X with a financial assessment form and recorded “Need to establish why backdated to 16 November and not date needs changed”. Funding for attendance at day was refused.
- On 8 February 2019 the Council’s complaints team sent Ms X an email apologising it had been unable to provide a response to her complaint within the agreed timescales. It was awaiting the outcome of the appeal.
- The panel made a final decision in February 2019. The Council wrote to Ms X on 15 February 2019 providing her with a formal response to her complaint and informing her of the outcome of the appeal. The panel upheld the original decision made in January 2019. Funding for live-in care was approved and would be backdated to 16 November 2018 at a weekly rate of £854 per week. Funding for day centre attendance was refused. The author of the letter acknowledged officers had not always responded to Ms X’s correspondence and calls in a timely manner and apologised. She also said the remit of the live-in care service should have been made clearer and that the Council would review its process in light of this.
- Ms X says the allocated funding did not cover the full costs of Mrs Y’s care and that none of the agencies on the list given to her by the Council charged the Council’s rates. She says Mrs Y has had to top-up from her own funds to cover the shortfall. In May 2019, Mrs Y paid £853.16 for the month. Ms X says she does not know what would happen if Mrs Y could no longer cover the shortfall.
- As part of this investigation I asked the Council how many care agencies on its list charged the Council’s rates. The Council said, “The Council has 22 providers on their list, with five provider’s accepting Havering’s rates for homecare. However of these five providers that do advertise a live-in care service none of these accept Havering’s rates”.
- Ms X contacted the Council on 17 February 2019 and left a voicemail expressing her dissatisfaction with the outcome of the appeal. She followed this up with an email on 19 February 2019. The Council offered to meet with Ms X to discuss the panel’s decision. Ms X declined, saying she intended to bring her complaint to the Ombudsman.
- In response to my enquiries the Council said, “it has transpired than an email sent by [Ms X] as part of the Ombudsman’s enquiry had not been made available for consideration by the Appeals Panel…”. The Council apologised to the Ombudsman for this error. It also acknowledges “that comments made within a response letter sent to [Ms X] was inappropriate and sincerely apologises and will provide a written apology”. This relates to a letter the Council wrote to Ms X saying there was no benefit to Mrs Y attending a day centre, as she could not remember going.
- Ms X told the Council in August 2018 she wanted to purchase Mrs Y’s care via a direct payment. She had no contact from the Council’s direct payment team about setting up the payments, so she contacted it and left a message in early October 2018 to say Mrs Y was still paying for all her care from her savings, and she had not received a financial assessment form. She received no response, so she sent an email to an officer in the direct payments team on 5 October 2018 chasing a response. She asked the officer to contact her.
- An officer from the Council’s direct payments team responded to Ms X by email on 8 October 2018. I have seen a copy of this email. The officer said the payments would be based on the assessment completed in August 2018 because the social worker who completed the review in October 2018 had not formally requested an increase in the care package. The officer asked Ms X to confirm if a care package was already in place and said, “You would need to discuss the rate of pay with the carer(s) or if an agency then you would need to be aware of what they are going to charge as any expense that is greater than the LBH allocation amount will need to be covered by the service user ie your mum... Regarding the financial assessment this is normally carried out after the payments have been set up”. The officer asked if Mrs Y owned her own home.
- Ms X responded to the officer the same day saying she had been using the same care agency since February 2018, and the social worker had noted this in the assessment in October 2018, along with responses to initial financial questions, including that Mrs Y did not own her home.
- The records show an officer from the direct payments team sent an internal email to the social worker on 9 October 2018 asking about the increase in Mrs Y’s care package for a 24-hour live-in carer, and how far back payments should be backdated. The officer asked the social worker to contact Ms X “as she said she has tried to reach you and would like an update”. The officer said direct payments would be set up for 30 October 2018.
- Ms X received a direct payment contract from the Council on 10 October 2018. On the same day the social worker sent an email to Ms X saying there was no agreement for an increase in funding and the direct payments would be based on the September 2018 support plan and she would update Ms X when she had further information.
- Ms X signed and returned the direct payment agreement to the Council on 17 October 2018. An officer from the direct payment team sent an email to Ms X to confirm receipt of the documents and said direct payments should be available on 2 November 2018. Ms X exchanged emails with the officer throughout October 2018 about administrative issues. She also said the financial assessment and assessed contribution was incorrect as the assessment included attendance at the day-centre, and that additional funding was required to cover the carer’s two-hour break. Previously, carers took breaks when Mrs Y attended the day-centre. Ms X requested a financial reassessment of Mrs Y.
- Ms X received no response, so she telephoned the officer on 18 December 2018. Following this an officer revised the financial assessment and Mrs Y’s contribution. A copy was sent out Ms X of 27 December 2018.
- Ms X says the direct payments do not cover cost of Mrs Y’s care.
- Ms X now understands the reason the Council will not fund day Mrs Y’s attendance at a day centre. A 24-hour live-in care service covers all Mrs Y’s needs including social activities.
- It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law. In this the Council failed to do so. There is also evidence of delay, confusion and poor communication.
- Initially the Council responded to Ms X’s for a need’s assessment for Mrs Y in timely manner. The Ombudsman considers a reasonable timeframe to be between four to six weeks. Ms X requested an assessment in July 2018, the Council completed it in August 2018. There is no delay here. Following the assessment, the Council failed to provide Ms X with copies of the assessment and support plan. There was no good reason for this. From this point on there is evidence of confusion, delay and poor communication.
- The Council agreed funding for home care visits 5 September 2018 but failed to communicate this to Ms X. It failed to provide the funding for Mrs Y’s care. Fortunately, Mrs Y had some savings to continue paying the care provider. Ms X contacted the Council on 30 September 2018 to inform it of Mrs Y’s deteriorating condition and asked it to reassess her needs. This should have alerted the Council to the fact Mrs Y was still funding her care privately and had not received a care and support plan from the September 2018 assessment.
- The Council completed a reassessment in October 2018. The assessment concluded Mrs Y needed overnight care, and that she appeared to have little insight into her needs. The social worker identified the need for a mental capacity assessment to establish if Mrs Y could decide where she should live, and if she understood the risks of remaining at home. This was not completed until 16 November 2018. During that time Mrs Y remined at home and at risk. Because of this Ms X took matters into her own hands and arranged a live-in care service. She should not have had to do so. The Council should have responded swiftly to the outcome of the October 2018 needs assessment and arranged adequate care or funding.
- The capacity assessment concluded Mrs Y did not have capacity to make decisions about her accommodation and associated risks. Had the assessment been completed sooner, a best interest decision could have been made about the type of care needed.
- Again, the Council failed to provide Ms X with copies of the assessment and support plan completed in October 2018. Ms X had to chase the Council numerous times before she received the documents. She should not have had to do so.
- The Council was aware of Mrs Y’s eligible need for overnight care in October 2018 but told Ms X that funding would be based on the previous assessment in September 2018. It is not clear why this decision was made. There is no logical basis for the decision. This caused unnecessary stress and frustration for Ms X and further financial strain for Mrs Y.
- The Council failed to carry out a financial assessment following the assessment in September 2018 and October 2018 This is fault. I note an officer later told Ms X financial assessments are usually completed when payments “have been set up”. Financial assessments should be completed after a need’s assessment, but before the commencement of services to enable people to make informed decisions about the cost of the care, although there will be circumstances when this is not possible, for example where emergency care is needed. This was not one of those situations.
- Everyone must have a personal budget regardless of how their care & support is commissioned. In this case Ms X’s preference was a direct payment, which she manages on Mrs Y’s behalf.
- In setting the amount of a direct payment (or the personal budget from which it is derived) the Council must ensure it is enough to buy services which will meet the person’s assessed eligible needs. In Mrs Y’s case the personal budget was insufficient to cover the cost of the care. The Council was aware none of the agencies on its provider list provided live-in care at the Council rates. The Council says it allocated Mrs Y “It’s standard rate for live-in care”. This is fault and not in accordance with the Care Act or Statutory Guidance. The Council should have ensured Mrs Y’s budget was sufficient to cover the cost of the service she received.
- The Care and support statutory guidance says, “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties… The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”.
- There was a delay in completing the direct payment application process. This caused further delay in Mrs Y receiving money she was entitled to.
- When the Council allocated funding it failed to backdate the payments to the correct dates. Funding for home care visits should have been backdated to the date the assessment was requested in July 2018, if it was confirmed Mrs Y was below the financial threshold at that point. The Council also failed to backdate payments for the live-in care service to the date Mrs Y’s needs changed. It only backdated funding to16 November 2018. It is not clear why the Council made this decision. Mrs Y was eligible for funding from October 2018, the date the assessment was completed.
- The Council told Ms X it would not cover the cost of the live-in carer’s breaks. A live-in care service should cover carer’s breaks. There is no fault by the Council on this point.
- Mrs Y has suffered a quantifiable loss. She had little choice but to cover the shortfall in funding from her own funds. She should not have had to do so. The Council should apologise for this and reimburse her.
- Ms X has also suffered an injustice. The Council failed to communicate with her effectively. Consequently, she had to chase the Council numerous times for responses to communication, copies of documents, financial assessments and to start the direct payment application This caused her unnecessary stress and frustration. She has also been put to significant time and trouble pursuing her complaint with the Council and the Ombudsman.
- To remedy the injustice to Mrs Y and Ms X the Council will within one month of the final decision:
- undertake a reassessment of Mrs Y’s personal budget taking account of the cost of available care suitable to meet Mrs Y’s needs
- establish how much Mrs Y has paid to cover the shortfall in her care and reimburse her in full.
- provide Ms X with a written apology for the failings identified in this statement and make a payment of £250 to acknowledge the time and trouble she has been out to pursuing this complaint with the Council and the Ombudsman.
- Within three months
- consider if other service users may have been affected by arbitrary upper limits on care fee rates, and take any necessary action to address this;
- amend its procedure to ensure the Council does not set arbitrary limits on care provision.
- There is evidence of delay and poor communication by the Council during an assessment of Mrs Y’s needs. The Council failed to ensure Mrs Y’s personal budget was sufficient to cover her care and support needs. This caused an injustice to Mrs Y and to her daughter Ms X who pursued the matter on Mrs Y’s behalf.
- The above actions are a suitable way to settle the complaint.
- It is on this basis; the complaint will be closed.
Investigator's decision on behalf of the Ombudsman