Decision : Upheld
Decision date : 03 Feb 2020
The Ombudsman's final decision:
Summary: Mrs C complained the Council stopped her son’s respite care funding, even though he continued to have a need for this. The Ombudsman found fault with the actions of the Council. The Council has agreed to apologise and pay a financial remedy for distress. It will also review the system through which it reallocates respite care funding from one year to the next.
- The complainant, whom I shall call Mrs C, complained to us on behalf of her son, whom I shall call Mr D. Mrs C complains the Council should not have charged her son £810 as a contribution towards the cost of his respite care (in 2016-17), on top of the contribution he already had to pay for his homecare support. She wants the Council to reimburse the £810.
- Furthermore, the Council failed to pay any funds into her son’s direct payments account for his residential respite care for two years, after November 2016. The Council also failed to notice this, until she raised problems with the payment of respite care invoices.
- Mrs C says the company who the Council commissioned to manage her son’s direct payments account, failed to properly manage her son’s account.
- The Council also ignored her repeated requests (by email) for a review to take place of her complaint, because she was unhappy with the complaint response.
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 considered the information I received from Mrs C and the Council. I also carried out an interview with Council officers. I shared a copy of my draft decision statement with Mrs C and the Council and considered any comments I received, before I made my final decision.
What I found
What should have happened
- The Care Act Guidance says 8.34: Where a person is a short-term or temporary resident in a care home, there is a degree of discretion or modified charging rules to take account of this. A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks, for example where a person is placed in a care home to provide respite care. Where a person is a short-term resident, a council may choose to assess and charge them based on the rules for care or support arranged other than in a care home.
- The Council’s “Adult Social Care – Review & Case Closure – Practice Guidance (March 2017)”, says that:
- Best practice dictates that [care] reviews should be in person, but in certain circumstances a telephone review may be held.
- Citizens must be engaged in a review at least once a year. This annual review is a statutory duty.
- Following the introduction of the Care Act in England in 2014, the Council revised its charging policy in December 2016. Before the Council changed its policy, it charged its clients for temporary residential respite care by using a fixed weekly rate of £135 a week. The Council charged this in addition to any weekly contribution a client already had to pay towards the cost of their homecare package. As Mr D was entitled to six weeks of residential respite care a year, he had to pay a contribution of £810 during 2016-17. The Council told me that a client did not have to pay this contribution in one go; as long as they paid it before the end of the financial year.
- When the Council introduced its new policy in December 2016, the Council stopped using a flat rate. Instead, it charged residential respite care as a Non-Residential Service.
- Mr D’s direct payment account was overseen / managed by a third-party company. Mrs C believed that this company was commissioned by the Council, which would have meant that the Council was responsible for the quality of the company’s support. However, Mrs C recently found out that this is paid for from her son’s Personal Budget, which means the Council is not responsible.
- Mrs C contacted the company in July 2018 to ask for a statement of her son’s direct payments account. Mrs C told me she was shocked to find out that:
- Nobody in the company was actually managing her son’s account.
- A new account manager said the Council had not paid any funds into her son’s account for his residential respite care, for the last two years.
- As such, the company had been paying her son’s respite invoices from the direct payments meant for his homecare (15 hours PA support by Creative Support) and the three days a week of Day Opportunities.
- Her son did not have a formal annual review since June 2017.
- The Council has told her that it carries out many annual reviews as a paper-based exercise, which is completed without a visit taking place.
- She asked if the Council increases her son’s personal budget, whenever the fees charged by his respite care home or day centre go up.
- She has not received any information, in recent years, about her son’s Personal Budget.
- An overview / breakdown, at the start of each financial year, that shows how much the Council has allocated for her son’s Personal budget.
- Clarity about the process through which the Council carries over respite care funding from one year to the next.
- To change her son’s care support from direct payments to care that has been commissioned by the Council.
- Any increase in provider fees are dealt with by the Council’s Commissioning Service. A provider has to submit a business case to this Service Team, who will review this and decide whether to accept it. If an uplift is agreed, personal budgets will be backdated to the date of the increase / request.
- It has allocated a new social worker to Mr D to provide any further information to her and carry out a formal care review of her son’s support.
- The Council’s response on 14 March 2019, failed to provide a clear and comprehensive response to the first issue Mrs C had raised, and/or in a way that a member of the public can understand. The Council acknowledged to me that this part of the response was not clear and would like to apologise for this.
- Mrs C asked for urgent further clarifications with regards to a few issues on 26 March 2019. However, she did not receive a response to these.
- Even though the Council had stopped putting money into her son’s direct payments account for respite care, there was still enough money left in the account (until the end of 2018) to ensure her son received the respite care he needed.
- The Council has reinstated her son’s respite care funding. This is now in place until the end of the current financial year (31 March 2020).
- She has told the Council that she no longer wants Direct Payments for her son. Instead, her son’s care support will be commissioned by the Council directly.
- There was no fault in the Council’s decision to charge Mr D a separate amount for his residential respite care, in addition to his contribution for his ongoing care at home. Mrs C has asked the Council to treat the £810 as DRE. However, the guidance on DRE does not say that Councils should treat care contributions as DRE.
- There was fault in the Council stopping Mr D’s funding for residential respite care, even though his support plan and care reviews indicated he continued to need this. Although Mr D continued to have enough funds overall in his direct payment account to continue to pay for his respite care, it did result in distress to Mrs C as she was unsure why this happened and if/when the Council would start to allocate funds for this again. It also resulted in Mrs C having to spend time and trouble to resolve this and find the answers she needed.
- Furthermore, it is clear that Mrs C is unaware of any annual care review having taken place in 2018. This means that, if there was one, it did not involve her and the Council did not share the outcomes of it with her and her son. This is fault.
- I also found fault, for reasons explained in paragraph 22, with the way the Council dealt with Mrs C’s complaint.
- I will not reach a finding on fault with regards to Mrs C’s complaint about the company who managed her son’s direct payment account, as the Council was not responsible for the actions of the company.
- I recommended that the Council should, within four weeks of my decision:
- Provide an apology for the faults above and the impact this had on Mrs C. It should also pay her £200.
- Review its system, to ensure that the allocation for respite care funding does not automatically stop, in cases where the Council has failed to complete a statutory annual care review of a client on time.
- For reasons explained above, I found there was fault in the way the Council has acted. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case
Investigator's decision on behalf of the Ombudsman