Summary: Mr X complains the Council reduced his care package and amount of direct payments following the closure of the independent living fund. This resulted in Mr X having to top up his care costs until the Council reassessed him and increased his direct payments. The Ombudsman finds fault with how the Council carried out the reassessment following the closure of the independent living fund and its subsequent review. The Ombudsman has made recommendations to remedy the injustice caused which the Council has agreed to.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council reduced the amount of direct payments he received following the closure of the independent living fund. Mr X says this removed his night time care and he had to fund this care until the Council increased his direct payments following a review of his care plan.

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What I have investigated

2. I have exercised discretion to investigate this complaint. Unless there are good reasons, the Ombudsman will not investigate a complaint when someone takes more than 12 months to complain to us about something a council has done.
3. In this case Mr X and his representatives were pursuing the matter through the Council’s complaints process. I can see the Council provided a response in March 2017 however, this did not advise Mr X to take the complaint to the Ombudsman. Mr X continued to contact the Council about this complaint and received a final response in February 2019 advising him to contact the Ombudsman should he not be satisfied with the Council’s response.

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The Ombudsman’s role and powers

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. 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)
6. 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

7. As part of this investigation:
• I have considered the complaint by Mr X and the responses from the Council.
• I discussed the complaint with Mr X’s representative over the telephone.
• I considered the information provided by Mr X and the Council in response to my enquiries.
• I sent a draft of this decision to Mr X and the Council and considered their comments.

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What I found

8. The Care Act 2014 requires 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.
9. Where an assessment determines that a person has any eligible needs, councils must meet these needs. The Regulations set out the eligibility threshold for adults with care and support needs and their carers.
10. To be eligible for support, a person’s needs must arise from a physical or mental impairment or illness and mean the person is 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.
11. Councils must provide a care and support plan which sets out the person’s needs, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. Councils should review a care and support plan at least every 12 months.
12. The support plan may include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person. Personal budgets may be provided as a direct payment. Direct payments enable people to commission their own care and support to meet their eligible needs.
13. When carrying out a review of care and support plans councils should consider the following:
• have circumstances or needs changed?
• what is working in the plan, what is not working and what might need to change?
• have the outcomes identified in the plan been achieved?
• does the person have new outcomes they want to meet?
• could improvements be made to achieve better outcomes?
• is the personal budget enabling them to meet their needs and the outcomes identified in the plan?
• is the personal budget still meeting the sufficiency test?
• are there changes in the person’s community support networks which might impact on the plan?
• is the person, carer or advocate satisfied with the plan?
14. The review will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.
15. The Independent Living Fund (ILF) was a Government funded discretionary scheme, which helped people who had both day and night care needs and who were getting the high rate care component of Disability Living Allowance. Those helped under the scheme were able to receive a funded care support package to help them live independently in the community rather than in residential care. The scheme closed in 2015.

Background

16. Mr X suffers with cerebral palsy, asthma and has severe mobility issues. He is wheelchair dependent and only has slight movement in one hand, allowing him to control his wheelchair and use a mobile phone.
17. Mr X received a care package which was partly funded by the Council and the ILF. The direct payments Mr X received totalled £950.45 per week. When the ILF ended the Council told Mr X it would reassess his care package.
18. In October 2015 the Council carried out an assessment on Mr X’s care. This reduced Mr X’s care package from 24 hour care to 55.5 hours per week, resulting in a decrease of £194.25 per week to his direct payments. The care assessment notes show the Council removed any care Mr X received at night.
19. The changes to Mr X’s care package came into effect on 15 April 2016. Mr X contacted the Council after his direct payments were reduced to say he could not afford to pay his carers for the care he needed.
20. Mr X said he continued to employ carers during the night time and borrowed money from his father to cover the cost of this care. Mr X paid around £750 per month to cover the costs of night time care and make up the difference to his previous personal budget.
21. In July 2016 the Council re-assessed Mr X’s care needs and decided not to make any changes to his care package.
22. Mr X sought the assistance of solicitors who submitted a complaint to the Council on his behalf, in January 2017. Mr X complained the Council reduced his care package despite him still needing night time care and having received this in the past.
23. The Council responded to the complaint in February 2017 and made the following comments:
• The social worker explained the requirements for 24 hour care to Mr X at the assessment in October 2015.
• The social worker did not discuss night time care with Mr X at the assessment in October 2015 and it was Mr X who identified hours of care he did not need. Mr X said he had a busy social life.
• Mr X did not tell the Council he did not understand the assessment process. The social worker believed Mr X could make his own decisions about his life and care needs.
• The social worker discussed risk with Mr X to make sure any changes would reflect his care needs.
24. With the help of his solicitor, Mr X wrote back to the Council in response. He raised the following points:
• Mr X was not fully informed the assessment was a needs assessment, nor of the possible consequences. He believed it was an informal discussion about his care.
• Mr X accepts he likes to spend time with friends at weekends but also needs the assistance of his carers when he is out. He did not identify this as time where he requires no care.
• Mr X did not feel the relevant professionals involved in his care were consulted. At the meeting in October 2015 the social worker did not explain what a needs assessment was or how this would impact his care package.
• The social worker did not give Mr X the opportunity to discuss his night time care needs.
25. At the end of March 2017, the Council responded to Mr X. The Council said it told Mr X about the assessment and was not made aware by Mr X of any issues at the time. The Council also said it reviewed the care package in July 2016 and Mr X did not raise any issues then. The Council agreed to bring forward the next review into Mr X’s care package.
26. The Council reviewed Mr X’s care package in June 2017. The review discussed Mr X’s night time needs and noted Mr X was receiving 24 hour care which his father paid £750 per month towards, on top of his personal budget. The notes from the assessment say Mr X was assessed as needing 24 hour/night time care due to support with toileting, turning in the night and changing of his sheets due to soiling. Mr X needs 10 hours of care daily to incorporate his night time needs, totalling 70 hours per week.
27. The Council decided Continuing Healthcare should fund this increase and referred Mr X for a full Continuing Healthcare Assessment. The assessment found Mr X ineligible for Continuing Healthcare funding.
28. In November 2017 Council decided to fund the full amount of Mr X personal budget of £948.31 per week. The Council backdated this to start from when the assessment took place in June 2017.
29. Mr X’s solicitor and the Council continued to discuss the contents of Mr X’s care plan. Mr X asked the Council backdate his personal budget payments prior to June 2017 as he felt his personal budget should not have been reduced in the first place.
30. The Council said it would not backdate Mr X’s personal budget payments prior to June 2017.
31. In January 2019 Mr X, with the assistance of his solicitor, sent a further complaint letter asking for the extra money added to his personal budget from June 2017 to be backdated to April 2016. Mr X said the Council should not have reduced his personal budget as his care needs had not changed and its assessment was flawed.
32. In February 2019 the Council responded to say it had previously investigated this issue and told Mr X to approach the Ombudsman if he is not satisfied.

Analysis

33. The support plan carried out in October 2015 says Mr X received 24 hour care from his personal assistants. The plan sought to reduce Mr X’s personal budget by providing for 55.5 weekly hours of care. This effectively removed any night time care Mr X received from his personal assistants.
34. It was clear from the plan Mr X could not eat and drink independently and needed help with all toileting needs. Given the Council reduced Mr X’s personal budget and effectively removed the night time care element, I would have expected some consideration or justification in the support plan outlining how Mr X could manage with a reduced care package and whether it considered any alternative options Mr X could put in place to meet his eligible needs. From the evidence available, I cannot see the Council considered this in the support plan. I cannot see evidence how the Council considered Mr X could manage at night without the help of a personal assistant. This is fault.
35. The Council reviewed Mr X’s plan in July 2016. I have found fault in how the Council carried out this review. The notes on the plan seem to have been copied from the October 2015 plan with an amendment about Mr X’s reduced volunteering. The Council’s records show prior to this review taking place Mr X contacted the Council several times saying he could not afford to pay his carers for the care he needed. I would have expected something in the plan showing the Council considered this as Mr X told the Council his personal budget was not enough to meet his needs and was clearly not happy.
36. The Care and Support Statutory Guidance says reviews should cover whether the personal budget is enabling a person to meet their needs and whether a person is satisfied with the plan. From the records, I cannot see evidence the Council considered Mr X’s concerns.
37. In June 2017 the Council reviewed Mr X’s plan and decided he needed 24 hour care. The Council decided Mr X needed 10 hours daily care to incorporate his night time needs. The plan shows the Council discussed Mr X’s night time needs and why he needed this care. The Council increased Mr X’s personal budget to almost the same amount as before April 2016.
38. As I have found fault I must now consider whether this caused injustice to Mr X. The obvious injustice is Mr X had his care package and personal budget reduced between April 2016 and June 2017, despite his needs being the same. Mr X says once the Council reduced his care package he relied on his father to fund the shortfall so he could still have 24 hour care. Mr X provided evidence to show he received payments each month from his father for these extra care costs.
39. On balance I am satisfied had the faults in the plans from October 2015 and July 2016 not occurred Mr X’s personal budget would not have been reduced between April 2016 and June 2017. Mr X’s care needs do not appear to have changed over this period.
40. When considering a remedy, I have worked out there are 64 weeks from when the Council reduced Mr X’s care package to £761.20 to when it increased it back to £948.31. This amounts to a difference of £187.11 per week.

Agreed action

41. The Council has agreed to carry out the following within four weeks of my final decision and provide evidence to the Ombudsman it has done so:
• Apologise to Mr X for faults in the October 2015 and July 2016 plans.
• Pay Mr X £12,000 for the loss in personal budget from April 2016 till June 2017 (I have rounded this figure up as it came out at just under £12,000).
• Pay Mr X £100 for the distress caused to him. In deciding this amount, I have considered the fact Mr X received 24 hour care which his father paid the top up for.

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Final decision

42. I have completed my investigation and found fault by the Council in how it assessed Mr X which caused him injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman