Summary: Miss D complains through her sister Ms F about the way the Council assessed and met her care and support needs. The Ombudsman has found fault. The Council has agreed to apologise, review Miss D’s needs, and make a payment to Ms F.

The complaint

1. Miss D complains through her sister Ms F that the Council:
1. failed to properly assess her care and support needs in 2019 and wrongly decided she did not require night-time care.
2. did not properly assess her contributions to her care costs.
3. did not respond to a request to review her care and support plan.
2. Miss D says, as a result, her night-time care and support needs have had to be met by Ms F, affecting her ability to work.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)

Back to top

How I considered this complaint

5. I spoke to Ms F about the complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance (“the Guidance”)
• The Care and Support (Eligibility Criteria) Regulations 2015 (“the Regulations”)
6. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Care and support needs assessment

7. The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs.
9. Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so.
10. The person's needs and how they will be met must be set out in a care and support plan. 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 may be available in the local area. The plan must also include the outcomes the carer wishes to achieve, and their wishes around providing care, work, education and recreation where support could be relevant

Personal Budgets

11. 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. The personal budget must always be an amount enough to meet the person’s care and support needs.
12. At the start of care and support planning the council should share an “indicative” personal budget amount with the person. It should also explain that this initial indicative amount can be increased or decreased depending on the decisions made during the development of the plan.
13. After refinement during the planning process, this indicative amount is then adjusted to be the amount that is sufficient to meet the person’s needs which the local authority is required to meet. This adjusted amount then forms the final personal budget. The detail of how the person will use their personal budget will be in the care and support plan. Personal budgets can be administered as a managed account held by the local authority or a third party, or as a direct payment.

Reviews

14. Councils should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if the person asks for one, unless the authority is reasonably satisfied that the plan remains sufficient, or the request is frivolous, or is made on the basis of inaccurate information, or is a complaint.

Respite for carers

15. Where an individual provides care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. If the carer has needs eligible for support, the Act makes clear the local authority may meet the carer’s needs by providing a service directly to the adult needing care. The council should consider combining the plans of the adult requiring care and the carer.

Charging and financial assessments

16. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits. Councils must disregard some benefits, including the mobility component of Disability Living Allowance. Councils must leave people with a minimum weekly income which is set by the Government.

What happened

17. Miss D has a learning disability, dementia, and anxiety. She had been living in supported accommodation in Council X’s area. In May 2018 she moved in with her sister, Ms F, in the Council’s area. This was because her condition had deteriorated, she had been very ill, and the family considered she was no longer able to live alone. Council X continued to fund Miss D’s care and support package until the end of April 2019.

Miss D’s care and support needs

18. The Council assessed Miss D’s care and support needs in February 2019, in order to start providing her care from April 2019. Ms F and an agency carer were present at the assessment. The assessment found Miss D had eligible care and support needs and required support with every aspect of her day to day living. It said Miss D was unable to access the community independently.
19. The assessment notes Ms F was paying for Miss D to attend day centres four days a week as Miss D enjoyed attending them. It also gave Ms F a break from caring, as she found it stressful to look after Miss D full time. Ms F had arranged transport for attending the day centres and had applied for a disabled badge. Ms F asked for support for Miss D to attend the day centre five days a week, and for support at home, so that she could go back to work.
20. Ms F told the social worker her sleep was disturbed by Miss D waking in the night. The social worker suggested using telecare door sensors, rather than carers. These would enable Miss D and Ms F to sleep in separate rooms and alert Ms F if Miss D tried to go outside in the night.
21. The social worker agreed to refer Ms F for a carer’s assessment. In response to my draft decision, Ms F sent evidence the assessment was carried out in February 2019 by a charity on behalf of the Council. The assessment found Ms F had eligible needs as a carer. It said she required a direct payment of £250 to pay for a weekend away.
22. Miss D’s care and support plan says Miss D’s indicative personal budget would range from £1,331.69 to £1,504.80 per week.
23. The final care and support plan said Miss D required 55 hours per week homecare and to attend day centres five days a week. It also included 28 nights per year respite. The total cost of Miss D’s care package was £999.10 per week. This was to be paid as direct payments. There is no reference to Ms F’s carers assessment, but I have seen evidence that Miss D’s care package includes 28 nights respite for Ms F.
24. The Council assessed Miss D’s finances and determined she should contribute £84.35 per week. The Council sent the care and support plan to Miss D and Ms F in April 2019.

Ms F’s complaint

25. Ms F was concerned the care and support plan was not sufficient to meet Miss D’s needs. In particular she was concerned there was no provision for support during the night. She complained to the Council in July 2019 about this. She said the Council should not base Miss D’s care package on the assumption that family members could act as unpaid carers for the majority of the time. Ms F also complained there was no allowance for transport to the day centres. She said Miss D should be receiving her full indicative budget and declined to accept the direct payment agreement.
26. On 16 August 2019 Ms F made a request for another assessment of Miss D’s needs, but I have seen no evidence this was done.
27. The Council did not uphold Ms F’s complaint. It said the care and support plan met Miss D’s assessed eligible care and support needs. It agreed to fund mileage costs for transport to the day centres at a rate of £12.50 per week. Ms F complained to the Ombudsman.

My findings

28. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the Council's role. The Ombudsman's role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete.
29. In doing so we look at what information the Council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
30. I have considered the care and support assessment and plan started in February 2019. The assessment is detailed and completed to a good standard. It describes Miss D's needs and how these can be met. There is no evidence of fault in the way the assessment was carried out.
31. The Council decided Miss D did not require support with transport costs or night-time care and that telecare was sufficient. I appreciate Ms F disagrees with the Council's decision, but it is one it was entitled to make. Without any fault I cannot challenge the Council's decision.
32. I note the Council later agreed to pay mileage to the day centres. The Council says this has not yet been paid as Ms F disputed the amount. I have found no fault in the way the Council has determined Miss D’s care package; it is for Ms F to decide if she wishes to receive the mileage payments.
33. The Council did not re-assess Miss D’s needs after Ms F requested a review on 16 August 2019, nor have I seen evidence that it properly considered this request. This is fault. I consider this has led to uncertainty for Ms F as to whether Miss D would have been eligible for more support. This is her injustice.
34. In response to my draft decision, Ms F asked for a new social worker to be allocated to Miss D. This is not something the Ombudsman has the power to request.
35. Miss D is in receipt of benefits. I have reviewed the Council’s financial assessment calculations and have seen no evidence of fault in the way the Council determined her contribution to the cost of her care.
36. Ms F says she asked for a review of Miss D’s financial assessment. The Council says it has not received any new information from the family to indicate a change in Miss D’s financial circumstances. It has therefore not needed to re-assess her finances.
37. Ms F said the Council should pay Miss D the full indicative personal budget. Miss D’s personal budget is the amount needed to meet her eligible needs; the indicative budget is only an initial estimate. I have seen no evidence of fault in the way the Council calculated the cost of Miss D’s care package, albeit Ms F considered the package was insufficient.

Agreed action

38. Within a month of my final decision, the Council has agreed to apologise to Ms F and pay her £100 to acknowledge the uncertainty caused by fault.
39. Within three months of my final decision, the Council will review Miss D’s care and support needs and Ms F’s carer’s assessment.

Back to top

Final decision

40. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman