Summary: Mrs B complained that the Council has not properly explained why it failed to increase her direct payments between 2015 (when it paid £8.50 an hour) and 2017 (when it started to pay £12 an hour). We consider it is likely Mrs B would have received £12 an hour at an earlier point if a new support plan had been finalised. But we did not find fault with the delay between March and September 2017 in finalising the support plan and so we cannot now say that Mrs B was caused an injustice by this delay.

The complaint

1. Mrs B complains that Cornwall Council (the Council) has failed to provide a reasoned explanation for why the hourly rate for her Personal Assistant remained at £8.50 between 2015 (when she raised the issue with the Council) and 2017 when it started to pay £12 per hour.

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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. 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)

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How I considered this complaint

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mrs B and the Council with my draft decision and considered their comments.

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What I found

6. Mrs B is elderly and has many health problems. She has received a package of care from the Council for many years. From 2012, this included direct payments to cover the cost of employing a personal assistant for 13.5 hours per week, for help with cleaning, domestic tasks and accessing the community.
7. The Council calculates the rate it will fund for personal assistants based on the amount a person requires to meet their needs, which must not be below the minimum wage. The amount must also take account of the added costs of employing a personal assistant (including any holiday pay, travel allowance etc.). According to the 2012 assessment and plan, the Council agreed to pay an hourly rate of approximately £8.50.
8. We have upheld two previous complaints from Ms B about issues to do with the amount the Council has paid her for her personal assistant.

Previous complaint (1)

9. The Council reviewed Mrs B’s personal budget in 2013 and 2014. However, it did not have a record of these reviews and it did not send Mrs B a new support plan. This meant the 2012 support plan remained in place. Mrs B has provided evidence that her carer’s wages increased to £12 per hour in May 2010.
10. In February 2015 she queried with the Council why it had not increased the hourly rate for her carer. She did not receive a reply. In April 2015 the Council carried out a care needs review and proposed to significantly reduce her personal budget to four hours a week. Mrs B disputed this and the Council carried out a further review and in July 2016 proposed a personal budget of £125 a week.
11. By this point Mrs B had complained to the Ombudsman and we started an investigation. In March 2017 we issued a final decision concluding that the Council was at fault for not keeping a record of the reviews in 2013 and 2014 and for not sending Mrs B a new support plan. In respect of the injustice arising from the fault we said:

“the failure to issue a new support plan to Mrs B did not in itself cause her significant injustice. However, if Mrs B has been under-funded for her personal assistant, this would be an injustice.”

12. We also concluded that the 2016 assessment was comprehensive and took account of Mrs B’s views of her needs. We said it was for the Council to use this information to calculate the appropriate personal budget for Mrs B and the Council must work with Mrs B to complete a support plan as soon as possible. This must set out clearly how she could use the agreed personal budget to meet her eligible needs.
13. The recommendations included the following actions:
• “The Council will finalise Mrs B’s new support plan within one month. The new support plan must show clearly how her personal assistant can meet her eligible needs within the hours covered by the agreed budget.
• Within two months, the Council will meet with Mrs B to review what it paid towards her personal assistant between 2013 (when the updated plan should have been issued) and the start of her new finalised support plan. It will consider whether this was enough, with reference to its usual policy and the evidence Mrs B provides. If she has been underpaid during this period, the Council will calculate the difference and pay this to her.”

Previous complaint (2)

14. Mrs B complained again to us in December 2017 saying that the Council had not implemented the agreed actions. Mrs B’s interpretation of our decision was that if she provided proof she paid her personal assistant £12 an hour then the Council should pay her the difference going back to 2012 (amounting to around £14,000).
15. I started another investigation to establish what action the Council had taken since our previous decision. In response to our enquiries the Council said it had completed a review within a month of the decision but the support plan had been delayed. Further enquiries established the following sequence of events:
16. After several attempts the Council met with Mrs B at her home in March 2017 to discuss the support planning. It said officers established at this meeting that her personal assistant was self-employed rather than employed and so the personal budget would need reviewing. Mrs B then involved an advocate to help her understand the support plan process. The advocate and Mrs B had communications with the Council regarding the support plan until September 2017 when it was finalised.
17. The Council agreed to pay for a personal assistant for 13.5 hours a week at a rate of £12 an hour. It said this was a continuation of the hours allocated in 2012. It said the rate ‘would remain at £12 an hour’.
18. We found the Council had not carried out a review of the direct payments made between 2012 and 2017 to establish if Mrs B was underpaid. It was wrong to say that a review had been carried out within one month of our decision. The only review carried out was in July 2018 and this was simply a review of payments since the support plan had been finalised. There has been no review of the earlier payments or any explanation as to why the Council has not paid Mrs B £12 an hour for her personal assistant.
19. We recommended the Council confirm the hourly rate it paid during this period, explain why it did not increase and why it did not match the £12 an hour she was paying.
20. The Council visited Mrs B on 24 May 2019 and reviewed the direct payments from 27 February 2013 (anniversary of 2012 plan) to 6 September 2017 when the new support plan came into force.
21. During this period, it paid £8.50 an hour for 13.5 hours a week. The hourly rate remained unchanged. It noted Mrs B had been paying her assistant £12 an hour for 10 hours. It said it was not aware of this and was not responsible for the decision to pay a higher rate. It maintained that £8.50 an hour was sufficient to pay her personal assistant throughout the whole period and said the rate was above the minimum wage. Prior to April 2015 it was committed to paying an hourly rate equivalent to the national minimum wage. From April 2015 it committed to paying the foundation living wage.

Incremental rates of National Minimum Wage and Foundation Living Wage between 2013 and 2017

Year National Minimum Wage Foundation Living Wage

2013 £6.31 £7.65

2014 £6.50 £7.85

2015 £6.70 £8.25

2016 £7.20 £8.45

2017 (Oct) £7.50 £8.75

22. It concluded that it had paid Mrs B sufficient money to employ a carer for the correct number of hours.

New complaint

23. Mrs B remained dissatisfied with the Council’s actions and felt it had not provided an adequate explanation for why her payments had continued at £8.50 an hour until September 2017.
24. In response to my enquiries the Council has provided examples of two other service users who received £8 an hour in 2013, one service user who received £8.50 an hour in November 2015 and one who received £9 an hour in January 2017. It says this supports its view that the payments were adequate for Mrs B to employ a PA and were above the level of the Foundation Living Wage. It says Mrs B contributed to the delays in completing the assessments and that she failed to notify the Council until March 2017 that her PA was self-employed.

Analysis

25. There is no set hourly rate in law or policy which the Council has to use when determining how much to pay a service-user who wishes to employ a personal assistant. It paid £8.50 an hour to Mrs B between February 2013 and September 2017 when it increased the rate to £12 per hour. This rate remained just above the foundation living wage for that period, although the difference decreased to just 5p by April 2016, so the payment accorded with the Council’s policy. The Council has also provided examples of other service users who were paid this amount until January 2017, so Mrs B has not been treated differently in this regard.
26. In March 2017 we found fault with the Council for not producing a support plan between 2012 and 2015, for delaying producing a support plan following the assessment in 2015 until May 2016 and for not producing a support plan following the assessment in November 2016. We concluded that this had not caused Mrs B an injustice because her direct payments had stayed the same at £8.50 an hour.
27. We also asked in March 2017 for the Council to review the amount paid to Mrs B since February 2013 to see if she had been underpaid. It did not do this until May 2019 and concluded that it had paid Mrs B an adequate amount until September 2017 when it raised the rate to £12.
28. Given that the Council suggested an hourly rate of £12.50 in the May 2016 support plan (not implemented) and £12 an hour in July 2017 I have concluded it is likely that Mrs B would have received £12 an hour at an earlier point if the support plan had been completed/implemented sooner.
29. However, as we did not find fault with the Council not agreeing the support plan between March 2017 and September 2017, I cannot conclude Mrs B was caused an injustice by the failure to pay the higher rate until September 2017.

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Final decision

30. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.

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Investigator's decision on behalf of the Ombudsman