Summary: There no fault in the Council’s assessment of Mr B’s care and support needs. But, it was fault for the Council to make reinstatement of payments conditional, in the knowledge that Mr B was getting into a large debt. To remedy the injustice the Council should reach a decision on his direct payment amount and care charges.

The complaint

1. The complainant, who I shall call Mr B, complains the Council carried out a reassessment that reduced his direct payments. Mr B says the reduction in support will affect his health.
2. Mr B also complains the Council has accessed his medical records without his consent and it has not arranged a home visit so he can show the financial assessor receipts from his Disability Related Expenses (DRE).

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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)

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How I considered this complaint

5. I read the papers put in by Mr B and discussed the complaint with him.
6. I considered the Council's comments about the complaint and any supporting documents it provided.
7. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their well-being. To have needs which are eligible for support, the following must apply. First, the needs must arise from or relate to a physical or mental impairment or illness. And, second, because of the needs, the adult must be 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.

Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.

9. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. The care and support plan should consider what 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 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.
10. Section 27 of the Care Act 2014 gives an expectation that local authorities 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 proportion to the needs. As well as the duty to keep plans under review, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.

Key facts

11. The Council’s social worker visited Mr B to carry out a reassessment of his care and support plan in February 2018. The social worker said that Mr B had eligible needs in:
• Maintaining a habitable home.
• Managing and meeting nutrition.
12. The Council carried out a second reassessment in March 2018. The social worker said Mr B had eligible needs in:
• Maintaining a habitable home.
• Carrying out any caring responsibilities for a child. (However, the form also said that Mr B had no dependant children.)

Mr B received 12 hours of home care and £80 for activities per week via direct payments.

13. The Council carried out the next reassessment in July 2019. This found that Mr B had eligible needs in:
• Maintaining a habitable home.
• Managing and meeting nutrition.
• Making use of necessary facilities or services in the local community (including public transport, and recreational facilities/services).

The reassessment said that Mr B should receive 4 hours of Direct Payments per week so he could use the hours flexibly to help him access support from September 2019. Mr B was dissatisfied with the result so the Council did a further re-assessment. This reached the same conclusion.

14. The Council’s file notes of August 2019 show the social worker left a message for Mr B’s doctor. The social worker spoke to a receptionist to ask if they could arrange a home visit to Mr B as he was in pain. I can see no evidence of any contact with Mr B’s doctor or access to his medical records.
15. A financial assessment carried out in January 2020 that decided that Mr B should pay up to £75 a week towards his care costs. This included disability related expenditure (DRE) of £15 per week.
16. Mr B complained in January 2020 about the Council’s decision to reduce his support and that he would now need to pay towards his care costs as the Council was not considering all of his disability related expenses.
17. In January 2020 the Council emailed Mr B to say that its decision was on hold until the Ombudsman decided his complaint. The Council said that once it made the final decision it would review care charges. The Council told Mr B ‘if the Ombudsman's decision is not in your favour then any charges will have to be backdated although I am aware that we will need to further discuss your DRE with the possibility of that reducing the proposed charge’.
18. The Council then said that as Mr B was disputing the result of the assessment the status quo should remain. Mr B’s direct payments were reduced to 4 hours per week from October 2019, but increased to 12 hours plus £80 for activities in January 2020. The Council backdated the increase in direct payments to 12 hours plus £80 for activites to October 2019.
19. Mr B complained that he could not photocopy the information the Council wanted to give evidence of his DRE. He wanted the Council officer to visit him to get this evidence. In response to my enquires the Council said ‘If there is a situation where the client cannot reply to the Council in writing, but has the information, then discussions would take place around a home visit’.
20. The social worker carried out a new assessment in March 2020. This found that Mr B had eligible needs in:
• Maintaining a habitable home.
• Making use of necessary facilities or services in the local community (including public transport, and recreational facilities/services).
• Carrying out any caring responsibilities for a child. (However, the form also said that Mr B had no dependant children.)

The report decided that Mr B should have a direct payment but did not say the amount of hours.

21. Mr B provided a letter from his doctor in October 2020 supporting his request for home cooked meals. The Council re-assessed Mr B’s needs in December 2020 and it amended his direct payments to 5 and a quarter hours per week.

My analysis

Reassessment in July 2019

22. Mr B complains that in July 2019 the reassessment reduced his Direct Payments from 12 hours plus £80 activities to 4 hours support per week.
23. My role is not to decide the amount of hours care Mr B needs, this is a professional judgement for the social worker to make. My role is to ensure the decision was made properly and all the social workers considered all the relevant facts.
24. I can see from the assessment document the social worker carried out a thorough assessment of Mr B’s situation. The assessment included Mr B’s wish to have his meals cooked from scratch, his eligible needs and the support needed. I understand that Mr B feels he needs more support than the social worker, but this is a decision the social worker is entitled to make and I find no evidence of fault on this point.
25. It is not fault for the Council to say Mr B can have ready meals and not food freshly prepared from scratch, unless he can prove there is a particular problem with the ready meals which make him ill (which he can provide medical evidence for) and isn’t just to do with personal preference.
26. Until Mr B provided evidence from his doctor, I cannot say there was fault in the Council’s decision not to provide funding for a care worker to cook meals from scratch. The Council has now reassessed after receiving the letter from his doctor, but the Council does not have to backdate the increase in hours to before the doctors letter was received.
27. Mr B has said that he believes the social worker is wrong to say that he is not eligible for support for a support worker to take him shopping, to clean his house or funding for a taxi to attend college.
28. The Council’s guidelines say that help with shopping should not be provided as a standalone provision but can be considered as part of a package to promote independent living skills. Mr B has access to the internet, but prefers not to do his shopping online. I can see evidence the Council has considered Mr B’s needs on this point and has said that his direct payments can be used flexibly for access to the community, which could include shopping or to attend college.
29. The Council’s guidelines also say that funding for essential cleaning is only provided as part of a care and support package that includes personal care tasks. I can see evidence the Council has considered Mr B’s needs on this point but considers that Mr B should employ a private cleaner as it is not something the Council would support with his presenting needs.

Backdating of care charges

30. The Council’s decision to reinstate the hours and not charge, on the basis of charging him a back payment is fault. The Council has put Mr B in a position whereby he is amassing a debt that he may be unable to repay. The Council made a decision on the amount of hours and charge it felt was correct, then decided not to implement this as Mr B complained. I note the Council says its practice is the status quo should apply while there is an ongoing complaint, but at the time of the complaint Mr B’s entitled hours had been reduced and I do not think it was reasonable to expect Mr B to agree to pay back arrears when it had already carried out a financial assessment, albeit an incomplete one that did not consider all his DRE.
31. It was fault for the Council to make the reinstatement of payments conditional, in the knowledge that Mr B was massing a large debt. I do consider, in the circumstances, especially as COVID-19 has delayed investigation of his complaint, that the Council should write off the arrears in this case.

Medical records

32. Mr B complains the social worker accessed his medical records without his consent. I have found no evidence of this, only that the social worker left a message for his doctor. I can see no evidence of fault on this point.

Disability Related Expenses

33. Under normal circumstances we would expect the Council to do a home visit to go through Mr B’s DRE and the Council’s response has said it will consider this. So, I can see no fault on this point at present. It may be the Council has to find another way to take account of Mr B’s DRE at the moment if a home visit is not possible due to COVID-19. As part of the remedy on this complaint, I consider the Council should tell Mr B of his assessed financial contribution, which would include an assessment of his DRE, in a way to suit both Mr B and the Council in the current circumstances.

Agreed action

34. Within a month of the date of the decision on this complaint the Council should reach a decision about the Direct Payments either based on the March 2020 assessment, or carry out a fresh assessment if there is any indication of a change in need;
35. Within a month of the date of the decision on this complaint the Council should tell Mr B of his assessed financial contribution.
36. Within a month of the date of the decision on this complaint the Council should confirm to Mr B in writing that he will not have to repay any arrears/overpayment amassed relating to the extra 8 hours plus £80 for activities that were put into place during his complaint. (Mr B will be expected to contribute financially towards the four hours/five and a quarter hours direct payments he was assessed as needing.)

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Final decision

37. I have complete my investigation of this complaint. This complaint is upheld and I consider the actions above remedy the injustice caused to Mr B.

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Investigator's decision on behalf of the Ombudsman