Summary: Ms X complains the Council has failed to address the shortfall in her personal budget, first raised in August 2018, leaving her without enough money to pay her Personal Assistants properly. The Council has failed to do this as the assessment it is carrying out will only address the way to meet Ms X’s needs in the future. The Council needs to apologise, pay financial redress and increase Ms X’s personal budget so it is enough to meet the legitimate commitments arising from her existing personal budget.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has failed to address the shortfall in her personal budget, first raised in August 2018, leaving her without enough money to pay her Personal Assistants (PAs) properly.

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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)
3. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Ms X and the Council, and invited comments for me to consider before making my final decision.

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What I found

5. Ms X has a neuromuscular condition which affects her mobility (she uses a wheelchair) and hand and arm movements. She receives support day and night to meet her care needs.
6. Ms X used to receive funding from the Council and the Independent Living Fund (ILF) to meet her needs. She received this as a direct payment which she used to employ PAs to meet her needs 24 hours a day. The ILF closed in June 2015 and its funding was transferred to local authorities.

Assessing Ms X’s care needs

7. In May 2015 Ms X completed a self-assessment of her needs. The assessment says she cannot achieve these outcomes:
• managing and maintaining nutrition
• maintaining personal hygiene
• managing toilet needs
• being appropriately clothed
• maintaining a habitable home environment
• making use of the home safely
• 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.
8. The Council has provided care and support plans produced around the same time, but they are incomplete and do not say what Ms X’s personal budget was. However, the Council continued to provide the funding the ILF used to provide. The Council accepts there was no Care Act compliant assessment or care and support plan in 2015.
9. In August 2018 Ms X contacted the Council. She arranged to meet her Social Worker on 13 September. At the meeting Ms X said her personal budget was not enough to cover the cost of her PAs. She said she has used her direct payments contingency and provided a spreadsheet with projected spend to March 2019. This showed that in December she would not have enough money to pay her PAs. The Council’s record of the meeting says:
• the current hourly rate was £9.75;
• the average shortfall was £257.51 every four weeks;
• this did not include extra costs for bank holidays;
• in part, pension contributions and increased National Insurance costs accounted for the shortfall;
• Ms X wanted to increase the hourly rate to £10.00 to £10.50 to retain her PAs, as they had not had a pay-rise for two years;
• Ms X wanted the Council to use her 2015 self-assessment as the basis of an application to its Single Panel for increased funding as her needs had not changed significantly.
10. On 17 October Ms X’s friend and Accountant told the Council:
• Ms X did not want screening for NHS Continued Healthcare;
• a direct payment based on an hourly rate of £11.99 would not cover all the liabilities;
• Ms X needed an hourly rate of £12.21 but, as this provided no flexibility, £12.50 was the minimum;
• Ms X paid a higher rate for 24 and 31 December, as the only way to recruit people to work at those times.
11. The Single Panel was due to consider Ms X’s case on 18 October, but it declined doing this as there were “no up-to-date documents”. The Social Worker sent Ms X an assessment form, which she said Ms X could complete as a self-assessment or a supported self-assessment with the Social Worker.
12. Ms X’s Accountant sent the Council a “support assessment” on 19 October. She asked it to consider the application for increased funding before the Single Panel meeting scheduled for 1 November, to allow time for additional funding over Christmas.
13. The Social Worker told Ms X’s Accountant the earliest date the Single Panel could consider her case was 1 November. She said she could not attend that day but an Occupational Therapist who had supported Ms X during the last year would present her case. Ms X objected to this and said she would prefer to postpone the presentation of her case to the Single Panel so the Social Worker, whom she trusts, could do this. The Council said it could not postpone presenting her case to the Single Panel but a Manager would present her case.
14. The record of the Single Panel meeting on 1 November says:
• Ms X’s personal budget was £1,918.31 a week;
• her 2015 self-assessment says she needs help with toileting, feeding, repositioning day and night, going out to attend clubs and associations, showering, exercising, activities of daily living, cleaning and gardening;
• a social care professional had not assessed these needs;
• the Council had a duty under the Care Act to ensure the information contained in a self-assessment was accurate and complete;
• this was in line with Section 6.44 of the Care and Support Statutory Guidance (Statutory Guidance) which says: “A supported self-assessment is an assessment carried out jointly by the adult with care and support needs or carer and the local authority. It places the individual in control of the assessment process to a point where they themselves complete their assessment form. Whilst it is the person filling in the assessment form, the duty to assess the person’s needs, and in doing so ensure that they are accurate and complete, remains with the local authority”.
15. The Council wrote to Ms X on 15 November saying it needed to reassess her needs.
16. The Social Worker met Ms X on 22 November. Ms X provided an updated self-assessment. She did not give consent for the Council to hold her assessment in anything but paper form.
17. On 12 December the Social Worker told Ms X it needed to keep a record of the assessment electronically, as that is how the Council keeps all its records.
18. The Social Worker met Ms X again on 13 December to discuss her assessment. Ms X said she wanted her case presenting to the Single Panel before Christmas, as she would run out of money in January. After the meeting the Social Worker completed the assessment. This identifies eligible needs as Ms X cannot achieve these outcomes and this would have a significant impact on her wellbeing:
• managing and maintaining nutrition
• maintaining personal hygiene
• managing toilet needs
• being appropriately clothed
• maintaining a habitable home environment
• making use of the home safely
• 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.
19. The Social Worker’s summary, written on 13 December but added to the electronic assessment on 20 December, says Ms X:
• “needs constant support both during the day and night to meet all her personal care needs, including support to maintain and monitor her skin integrity, and support to use the bathroom. [She] also needs support with all meal preparation, eating and drinking, if she is not provided with support with these tasks there would be a critical risk to health, wellbeing and dignity.”
• “needs complete assistance with all mobility in and around her home and is unable to move from one place to another safely without assistance and would be at risk of falling. [She] needs support with exercising to maintain her physical health, including undertaking regular exercise as recommended by her physiotherapist.”
• “needs support with paperwork and admin, support to access community facilities and support to maintain her social network. Without this assistance [she] would be at significant risk of social isolation and exclusion.”
20. The Council’s resource allocation system identified an indicative personal budget of £766.60 a week.
21. The Council’s Single Panel was due to consider an application for increased funding on 20 December but did not do so.
22. The Council wrote to Ms X on 11 January 2019. It said it needed more information in the assessment to more clearly identify the nature and extent of her needs:
• a report from her Physiotherapist to confirm the need for and frequency of exercises to relieve stiffness and muscle pain, or giving consent for a Physiotherapist to assess her needs in this area;
• a letter from her GP confirming the risk of choking when taking medication or eating and drinking, and how to manage this risk;
• information about the nature, frequency and impact of intermittent breathing difficulties, or give consent to the Council contacting her GP to get this information;
• information about the need for help repositioning during the night, its frequency and whether she has any equipment to help with this;
• what support she needs to regulate the temperature;
• the risk arising from involuntary movements and whether her GP had offered medical support with this, or give consent for the Council to contact her GP;
• a copy of her manual handling plan and details of any equipment in place, or give consent for the Occupational Therapist to meet and complete a plan.
23. The Council said:
• it accepts Ms X has needs which fall within the remit of the Care Act;
• however, she appears to have some health needs which might warrant joint funding with the NHS;
• the Council could not fund such needs, but the NHS could fund them via a personal health budget;
• although Ms X had refused consent for the Council to get information from her GP or Physiotherapist, it needed information from health professionals and asked her to consent to this;
• it could not make a funding decision until it had a robust assessment but would continue to provide £1,918.31 a week; and
• it would assign Ms X’s case to another Social Worker.
24. On 16 January Ms X told the Council she would respond to its letter. However, she said the existing funding was not enough to cover the cost of her PAs. She said she would owe almost £7,000 in holiday pay by the end of March. She said she could only pay their wages because her PAs had chosen not to take most of their holidays. She asked the Council to provide some contingency funding.
25. On 18 January, Ms X replied to the Council’s letter of 11 January and sent it a copy of her manual handling plan.
26. On 23 January Ms X told the Council:
• her GP would assess her breathing and swallowing on 6 February;
• her Physiotherapist had written to the Council.
27. The Social Worker arranged to meet Ms X on 13 February to reassess her needs. The Social Worker completed the assessment on 11 March, having consulted healthcare professionals. The assessment says Ms X agreed to involve her Physiotherapist and her GP. The assessment identifies eligible needs as Ms X cannot achieve these outcomes and this would have a significant impact on her wellbeing:
• managing and maintaining nutrition
• maintaining personal hygiene
• managing toilet needs
• being appropriately clothed
• maintaining a habitable home environment
• making use of the home safely
• 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.
28. The Social Worker decided that, although Ms X’s needs arise from a health condition, her health needs are ancillary and incidental to her social care needs, and her:
• “care needs require ongoing response and support of another person day and night. The current arrangement [Ms X] has had for a significant amount of years, of a team of PAs supporting her 24 hours a day 7 days a week, is meeting her needs well and has prevented health deteriorations which would have otherwise required increased specialist health input”.
29. The outcome of the assessment was to seek approval for continued funding of the current care package with extra funds for increased employer costs (i.e. pensions).
30. On 18 March, the Council’s Single Panel considered the application for more funding (an increase from £1,918.31 to £2,268.00). The record of the meeting says:
• it asked the Social Worker to clarify needs – distinguishing a health need from a social care need in line with the Care Act and NHS Continuing Healthcare Guidance;
• the Social Worker should use the Speech and Language Therapy assessment to inform the assessment;
• the Social Worker should then submit an updated assessment with a draft care and support plan identifying how to meet unmet eligible social care needs.
31. The Social Worker told Ms X about the Single Panel’s decision.
32. Over the next few months the Council obtained further information from other professionals and visited Ms X. I understand it completed another assessment which the Single Panel considered on 19 August. The Council has not yet told Ms X the outcome.

Ms X’s complaints to the Council

33. On 3 December Ms X complained about:
• the time taken to deal with her request for more funding made in August;
• poor communication about the Single Panel process;
• the claim that she had not provided enough detail in her needs assessment;
• the Council had not promoted her wellbeing;
• refusing to disclose her Social Worker’s new contact details or update her about the status of her case;
• not knowing when the Single Panel would consider her case again and whether she would get a fair hearing.
34. The 29 January 2019 reply to her complaint says:
• there was some delay in telling Ms X the outcome of the November Single Panel meeting and apologised, but more information was needed to complete an assessment;
• the letter telling Ms X the formal outcome of the November Single Panel meeting needed signing off;
• Ms X’s case had not been presented to the Single Panel since May 2015. It needed an up-to-date assessment to ensure her needs were being met by the most appropriate service;
• it apologised if Ms X had found the process intrusive, but it needed a detailed assessment to understand what support Ms X required;
• it would only withhold direct contact details if it did not know who the request came from;
• Ms X’s case to the Single Panel would not be affected by her complaint and the Single Panel would consider her case in a fair and unbiased way.
35. On 5 February Ms X said she was not satisfied with the response to her complaint. The Council wrote on 22 March with the outcome of its review of the response to her complaint. It said:
• the times taken to consider Ms X’s request for more funding reflected annual leave, sick leave and her preference to work with someone she knew. It would update the Single Panel protocol to include timescales for providing information about decisions;
• Ms X had received an apology for the two-week delay in telling her the outcome of the November Single Panel;
• it could not add anything to what had already been said about the need for more information;
• the decision to go ahead with the Single Panel on 1 November was in line with operational guidance and policy. It would update the Single Panel protocol to ensure people receive timely information about the process, as Ms X had not received this;
• Ms X’s concerns about withholding the Social Worker’s contact details had been addressed in the previous response;
• Ms X’s complaint would not negatively impact on the Single Panel process.

Is there evidence of fault by the Council which caused injustice?

36. Paragraph 6.46 of the Statutory Guidance says:
• “Once the person has completed the assessment, the local authority must ensure that it is an accurate and complete reflection of the person’s needs, outcomes, and the impact of needs on their wellbeing. The process of a supported self-assessment begins with first contact and is only complete when this assurance has been secured. Until the process of assurance is complete and the local authority has ensured that it is accurate, it will not have discharged its duties under section 9 of the Care Act”.
37. The Council agreed to continue providing funding to meet Ms X’s care needs at the same level in 2015 without carrying out a detailed assessment of her needs. It also failed to produce a proper care and support plan. I cannot find fault with the Council for wanting to do a Care Act compliant assessment of Ms X’s needs. However, until such time that it completes an assessment and agrees a new care and support plan with Ms X, it must continue to meet her needs as agreed in 2015. The fact the Council did not do this properly should not have an adverse impact on Ms X.
38. The Council has failed to address Ms X’s concern that the funding it provides is no longer enough to meet the needs agreed in 2015. That is fault by the Council. This has resulted in Ms X not having enough money to pay her PAs everything they are owed (i.e. pension costs, national insurance and holiday pay). The Council needs to provide that money, backdate it to when her personal budget ceased being sufficient and continue paying it until Ms X has a new care and support plan. The Council also needs to apologise to Ms X and pay her £400 for the distress it has caused and the time and trouble she has been put to in pursuing her complaint.

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Agreed action

39. I recommended the Council within six weeks:
• writes to Ms X apologising for the distress it has caused and the time and trouble she has been put to in pursuing her complaint and pays her £400;
• increases Ms X’s personal budget so she can pay her Personal Assistants what they are owed, backdates this to when her personal budget ceased being enough to cover the costs (i.e. increased pension and national insurance costs, and holiday pay) and continues to pay this until it has agreed a new care and support plan with her.

The Council has agreed to do this.

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Final decision

40. I have completed my investigation as the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman