Summary: A solicitor complains for her client Ms B that the Council failed to adequately assess her needs and reduced her care package despite a deterioration in her health. She also complains the sum Ms B has been assessed as having to pay towards her care is unaffordable. The Ombudsman finds no fault in the decision-making process followed leading to a reduction in the care package, and work to assess affordability is ongoing. However, there were delays and communication failings by the Council which caused Ms B injustice. The Council has agreed to the Ombudsman’s recommendation for a remedy payment and for service improvements.

The complaint

1. Ms C, a solicitor, complains for her client Ms B that the Council has failed to adequately assess her needs, and has reduced her care package, despite a deterioration in her health, from 16 hours plus four hours social inclusion per week, to 12.5 hours per week with no allowance for social inclusion. In addition, she complains the sum she has been assessed as having to pay towards her care is unaffordable.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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, section 30(1B) and 34H(i), as amended)
4. 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)

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How I considered this complaint

5. I considered all the information provided by Ms C about this complaint. I made written enquiries of the Council and took account of all the information it gave in response.
6. I exercised discretion to consider events relevant to this complaint from August 2017. I have done so because Ms B complained to the Council in March 2018, having received a copy of the Council’s assessment of her care needs in December 2017, and she received the Council’s final response in February 2019. Although Ms B could have come to the Ombudsman sooner, she has significant health issues which it is reasonable to expect could have hindered her in doing so.
7. I have considered the Ombudsman’s guidance on remedies.
8. I provided Ms B’s representative and the Council with a draft of this decision and took account of all comments received in response.

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What I found

Background

9. Ms B suffers from several health conditions and is disabled. From at least as early as October 2014, the care and support plan records for Ms B noted she was assessed as needing 10.5 hours a week help with personal care and food preparation, plus 2 hours for social inclusion. A review in May 2015 made no alteration to this. Ms B receives her assessed personal budget as a direct payment and employs her daughter as her personal assistant (PA).
10. In October 2015 the review of Ms B’s care needs again said her level of need remained the same and the support plan and service provision in place at this time was deemed suitable and sufficient to continue to meet those needs. But the support plan referred to 16 hours weekly for support with personal care and food preparation, and four hours for support with social inclusion a week to access the community.
11. The Council says that Ms B had chosen to pay a lower hourly rate to her PA than that which the Council allowed for, and so she was getting 16 hours personal care and four hours of social inclusion from the sum allowed by the Council for the total of 12.5 hours she had been assessed as needing to meet her care needs. The officer had not noted however this was how Ms B was choosing to use her budget while her assessed need remained the same at 12.5 hours a week. The Council recognises that this fault may have caused Ms B to believe she was assessed as needing a total of 20 hours per week care, so when subsequent assessments referred again to 12.5 hours she believed her assessed hours had been reduced. It apologises for this. But it is clear Ms B’s personal budget remained unchanged at this time, at the sum calculated for 12.5 hours care.
12. The care and support plan which followed, in June 2016, referred again to 10.5 hours personal care and 2 hours social inclusion support a week. Assessment in February 2018 again referred to the 12.5 hour weekly total and noted that Ms B was using her direct payments creatively in order to get a greater number of hours support for the money she received for the 12.5 hours.

Complaint to the Council

13. On 16 March 2018 Ms B complained to the Council. She set out several points, which included her belief that her assessed hours of care had been reduced and that the Council had written to her saying she had been assessed as having to pay a contribution towards the cost of her care, a charge it was backdating to January 2017.
14. The Council says it received Ms B’s complaint on 5 April 2018. It responded at the first stage of its complaints procedure on 25 May. It apologised for the delay. The response target for this stage is 25 working days: the delay was fault.
15. Regarding the financial assessment and the backdating of the sum Ms B was now assessed as liable to pay (the ‘client contribution’), the Council said that where information used in a financial assessment is incorrect or is not up to date, then it is possible to retrospectively review financial reassessments. It apologised that this had not been clearly explained to Ms B. It said she had been assessed in 2016 and the outcome was that she did not have to pay a contribution based on her finances at that time. But in August 2017 the Council had become aware that her benefit entitlements had changed and having verified the relevant amounts with the Department for Work and Pensions it completed a financial reassessment to take account of this change in income. In addition, the Council’s standard rate weekly allowance for disability related expenses (DRE) had changed from £26 to £20, and so an adjustment was also made to reflect this. As a result of these adjustments Ms B was assessed as eligible to contribute towards the cost of her care.
16. The Council noted that there had been some delay in actioning a request for a review of the financial assessment, and that Ms B had asked for a meeting to assist her in helping to complete paperwork in respect of the financial assessment and DREs but her request had not been considered as it should have been. The Council also acknowledged other failings including that it had not returned some calls she had made nor replied to a letter Ms B had sent; that it had included incorrect information in another letter; that there had been a delay in completing the social care assessment begun in August 2017 and delay and a lack of clarity in communicating with Ms B about this and the outcome; and that no specific action had been taken to look at a request for short-term extra help Ms B made when she reported a sprain to her arm. The Council apologised for these errors.
17. The Council said it would arrange a meeting to gather information for an up to date financial assessment and discussion about DREs. The Council reiterated that the personal budget which had been in place since before August 2018 would remain in place until the new assessment was finalised and agreed with Ms B. It also said no invoices in respect of client contribution had been issued while the issues Ms B had raised were being investigated, an assertion Ms B says is incorrect. But in any event, as noted later in this statement there is a review process still in train during which concerns about sums for which invoices have been issued may be addressed.

What happened next

18. The Council met with Ms B as planned in August 2018 and following this an enhanced allowance for DRE of £66.56 a week was agreed. But the financial reassessment also highlighted that there had been an error in earlier calculations in the figure used as housing costs. Ms B’s rent sum had been allowed in the assessment as an outgoing of £33.23 a week, but this was wrong because most of this weekly cost was met by Housing Benefit. The actual sum Ms B contributed weekly to her rent was £1.84 a week. The effect of these two adjustments, allowing more money in the calculation for DRE but less for housing, meant that Ms B’s assessed contribution was £27.79 a week.
19. Ms B then raised a dispute with the Council about her personal budget and this led to a reassessment of her care needs in September 2018. The assessor considered Ms B’s personal care needs had increased because routines were taking longer because of the unpredictability of Ms B’s pain levels and mobility. The Council considered an extra 15 minutes care a day was required to meet this changed need. That would increase the 10 hours in place for personal care and food preparation to 12 hours 15 minutes a week: however, the Council in error increased the weekly hours to 12 hours 30. This was an error in Ms B’s favour and the Council has honoured it.
20. The assessor took the view however that Ms B did not need the two hours social inclusion support she had been receiving. For accessing the community, the assessor referred to the availability of transport help for hospital appointments and put forward suggestions about how Ms B could increase her independence. The assessor noted that Ms B can leave her home independently and drive to her doctor’s surgery, and so suggested Ms B could drive to large supermarkets and use their wheelchairs and personal shoppers in store. It was agreed that the assessor could make a referral to Community Navigators, a service which provides advice and information about community activities and assets that enable people to maximise their independence.
21. The decision that Ms B no longer needed two hours support a week for social inclusion was one the Council was entitled to take on the merits of the case. As noted at paragraph 2 above, it is not the Ombudsman’s role to substitute his judgement on what would be right for what a council has decided. He must consider whether there was fault in the way the Council reached its decision. I find no such fault here. The Council looked at ways in which Ms B’s needs could be met in such a way as to maximise her independence and properly documented this to support its decision-making.
22. There was however some fault associated with this assessment in that the Council failed to follow-up the referral to the Community Navigators afterwards to check how needs were being met.
23. Ms B and then her solicitor corresponded further with the Council after this, and there were further meetings. Ms B remained dissatisfied with her care needs assessment and her financial assessment. She sought a further review of her DRE allowances and of the affordability of her client contribution. The Council agreed to suspend the client contribution until a further review had been completed, and the complaint was escalated to the final stage of the Council’s process. Responding to the complaint the Council said that the visit carried out for the care assessment and care plan had been comprehensive in gathering information, and completed care assessment and care plan documents, confirming Ms B’s assessed needs and the arrangements to meet those needs by a direct payment, had been posted to Ms B for signature on 2 November 2018. Ms B was advised to highlight any amendments required and return the copies within two weeks, or it would be assumed she agreed with the contents and outcomes. By 8 February 2019 no amendments or signed copies had been received.
24. Following further contact from Ms B’s solicitor a further visit to review Ms B’s DRE and the affordability of her client contribution was agreed. There was then a delay while enquiries were made about a suitable advocate for Ms B. The Council apologises for this but says that Ms B and her solicitor were kept informed.
25. By mid-January, for several reasons including Ms B’s own issues, this meeting had not yet taken place and a care needs assessment which had been started in November 2019 had not yet been finalised and agreed with Ms B.
26. The Council has confirmed that once it has completed its consideration of Ms B’s income and expenditure and DRE, if it concludes a client contribution is affordable it will not backdate any charges for the period while these charges have been suspended. If it concludes the assessed contribution is unaffordable it will consider a waiver of contributions which would then be reviewed annually.

Analysis

27. As noted earlier in this statement, when the Council responded to Ms B’s complaint it acknowledged several failings. These included delays, poor communications, and failure to consider a potential need for short-term additional help. After this there were however further delays in progressing matters and further poor communications, in addition to a failure to follow up the referral to the Community Navigators.
28. There was a further failing in that when the Council considered Ms B’s request for what she referred to as compensation, it said this was not appropriate because she had not experienced financial hardship as a result of the issues raised. However, Ms B was not claiming financial hardship or seeking a remedy for financial loss, but rather a recognition that she had been put to avoidable time and trouble and had been caused some distress by the Council’s failings. The Council’s response did not address this.
29. Ms B has been put to some unnecessary time and trouble in pursuing matters with the Council as a result of the identified failings in this case. She has also been caused some frustration by the failings in communication, for example where she was given incorrect information or where explanations were unclear. She has also been left with a sense of uncertainty about whether additional help might have been offered if her circumstances had been properly considered when she sustained an arm injury. It is also unclear what might have been different if the referral to Community Navigators had been followed up as it should have been.

Agreed action

30. In recognition of the injustice to Ms B described above, I recommended that within for weeks of the date of the decision on this complaint, the Council:

• Issues her with a further written apology; and
• Pays her £250.

31. I also recommended that within 12 weeks of the date of the decision on this complaint the Council:

• Reviews lessons learned from this complaint, and documents and shares these with the relevant staff to ensure so far as possible similar failings do not recur in future; and
• Ensures that complaints staff are reminded that it is not necessary for there to have been financial loss before consideration can be given to financial remedy for the impact of acknowledged failings. The Ombudsman’s remedies guidance is available to assist with this.

32. The Council has agreed to my recommendations.
33. The care needs assessment and review of DRE and affordability currently underway is a good opportunity for the Council to ensure all relevant matters are properly explained and dealt with for Ms B going forwards.

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Final decision

34. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman