Summary: Mr D complains about the Council reducing his support hours after a review of his care needs. And it not carrying out a remedy in line with an earlier Ombudsman decision. We find the decision on the support hours was made without fault, so we cannot question its merits. But we do uphold the complaint, because the Council did not backdate an increase in disability related expenditure to a date it had agreed with the Ombudsman. We also find fault with the way the Council handled Mr D’s complaint. And fault in the way it has dealt with Mr D’s direct payment. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mr D, complains the Council has:
• reduced his care and support hours by four hours a week;
• allowed an increase in his disability related expenditure. But it did not follow an earlier agreement with the Ombudsman when deciding on how long to backdate the increase.

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What I have investigated

2. This complaint follows earlier complaints from Mr D. This investigation has only dealt with matters not considered by our earlier investigations.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint from Mr D;
• considered the agreed action from an earlier decision;
• made enquiries of the Council and considered its response;
• spoken to Mr D;
• sent my draft decision to Mr D and the Council and invited their comments.

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What I found

Legal and administrative background

The Care Act

7. The 2014 Care Act introduced a single framework for assessment and support planning. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. The Act says the assessment should also seek to promote independence and reduce dependency.
8. A council should revise a care and support plan at least yearly. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
9. The Care and Support Statutory Guidance (‘the Guidance’) has a checklist of broad elements to cover in a review.

The Council’s Assessment, Eligibility, Support Planning, Reviews & Personal Budgets policy

10. The Council’s Adult Social Care Strategy has an aim to support independent living. It has three stages:
1. helping people to help themselves;
2. helping people when they need it;
3. maximizing people’s independence and keeping their progress under review.
11. It says, in considering what might help, its staff should consider the person’s own strengths and capabilities. And what support might be available from their wider support network, or within the community, to help.
12. If there is a disagreement, and the Social Care Worker/their Manager believes all reasonable steps have been taken to resolve any dispute, they should direct the person to its complaints procedure.

Charging for non-residential services

13. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
14. There are certain items of spending that can be deducted from a person’s income, before a council decides whether a person can afford to contribute to social care costs. This is called Disability Related Expenditure, or DRE. Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what a council considers to be DRE.
15. The Guidance allows councils to use a standard rate DRE allowance, although this should not work as a blanket allowance, when a service user has DRE above the standard figure.
16. The Council uses a standard DRE allowance of £20 a week.

Personal Budgets

17. Everyone whose needs the local authority meets must receive a personal budget, as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
18. There are three main ways in which a personal budget can be administered:
• as a managed account held by the local authority with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
• as a direct payment.

Adult Social Care complaints

19. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate complaints in a way which will resolve them speedily and efficiently. A single stage procedure should be enough. The council should say in its response to the complaint:

• how it has considered the complaint; and
• what conclusions it has reached about the complaint, including any matters which may need remedial action; and
• whether the responsible body is satisfied it has taken or will take necessary action; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

Background

20. Mr D has a visual impairment, since an accident in 2003. He had a nervous breakdown then. He still suffers from some mental health problems, including social anxiety. He also has a skin condition that flares up when he is stressed.
21. The Ombudsman has investigated earlier complaints from Mr D. Most recently this was about:
• his care and support plan review; and
• a financial assessment of his DRE.

The care and support plan review

22. While our investigation of Mr D’s last complaint was ongoing, the Council carried out a new review of his care and support. It was not the place of that investigation to investigate that review, or its outcomes.
23. The Council says it knew the review process was a concern for Mr D, due to his anxiety and depression. So it completed the review in three meetings over a three month period. The Council says Mr D at first refused referral to an advocate but later did have advocate support.
24. The Council’s records of the review:
• noted Mr D advised some changes to his conditions and that he was using, independently, some community resources, such as Dial a Ride transport;
• noted Mr D’s view about his needs;
• said its view was Mr D had seen some improvements in his life, so a small reduction in has support hours was reasonable;
• noted ‘…real potential for increased independence’;
• said an early next review was recommended, to discuss with Mr D whether he had met any of his outcomes and to set new goals;
• had an action plan around counselling. The Council also wanted to refer Mr D to organisations for enabling/rehabilitation work, although it noted Mr D declined these due to his anxiety levels;
• reduced Mr D’s care package from 25.75 to 21 hours a week;
• says it provided Mr D with funding to buy internet access, to address his social isolation, by adding it to his support plan costs.

The backdating of the DRE

25. The Council agreed, as part of our last investigation, to accept any information Mr D sent it in support of an increase of his DRE allowance. It also agreed to backdate any increase to January 2019 (the date of the Council’s most recent financial assessment, at the time of our decision on that complaint). At that time it was allowing Mr D its standard £20 a week for DRE.
26. The Council says in early 2020 its officer met Mr D to complete an income and expenditure form (the Council had been asking Mr D for some time to complete this, but he was anxious about the implications of completing one). As a result of this meeting, the Council says it increased Mr D’s DRE allowance to £59.73 per week. It backdated the start date of the increased allowance to 8 April 2019.
27. It says, at a district team level, it was not aware of the Ombudsman’s recommendation of a start date of January 2019 for any change. It advised it was an oversight on its part and was happy to backdate the increased DRE to the earlier date.

Complaint handling

28. In January 2020 Mr D tried to complain to the Council about the outcome of the review reducing his support hours (and another matter about his charges). The Council replied to advise it could not investigate this through its complaint procedure. It noted the Ombudsman had not found fault with the Council expecting him to contribute towards his care and support. It went on to advise a manager had looked at the review records and was satisfied it was of a high standard and reflective of Mr D’s assessed needs. It gave some details of its reasons for that view. It referred Mr D to the Ombudsman.

Mr D’s direct payment administration

29. The Council says that, during its preparation of its response to the Ombudsman, it discovered it had not reduced Mr D’s direct payment to reflect the reduction in the eligible hours in his support plan. It says this was a human inputting error.
30. The Council advised that the payment support service that manages Mr D’s funds have been following the plan based on the new 21 hours per week of support. This means that Mr D has not had access to, or used, any surplus funds in the account. There is currently a surplus in the account greater than the overpaid amount.
31. The Council advised the best option for adjusting these payments was to wait for its next review and make any adjustments from the new date. Mr D has agreed that that is an acceptable solution.

Was there fault by the Council?

The care and support plan review

32. The Council’s records demonstrate it did consider Mr D’s needs when carrying out its review. A key aim, both of the Care Act and the Council’s own policy, is to increase independence. My view is the Council’s reasoning behind its decision to make the modest reduction in Mr D’s support hours fits with its assessment of Mr D's needs and capabilities and its assessed potential for more independence. It also agreed to allow Mr D’s online connection costs in its calculation and suggested an action plan.
33. The length of time the Council took to carry out the review demonstrates it was both alert to Mr D’s anxiety and its need to work through with him the reasoning behind its view. I am aware Mr D still believes the Council should not have reduced his hours. But the Ombudsman cannot question the merits of the decision, when, as here, there is no evidence of administrative fault.

The DRE

34. The Council has accepted its team was not aware of the Ombudsman’s earlier recommendation and the Council’s agreement with it. That was fault.

The complaint response

35. The Council should have accepted a complaint from Mr D about the review of his support plan. To advise Mr D it would not accept a complaint was fault. This was a new issue and it led to a significant change in his care and support. I note the Council’s own policy refers service users who disagree with a decision towards making a complaint.
36. However, in effect, the Council did carry out an investigation. Its manager checked the records and the response provided some reasoning why its view was there was no fault in its decision.

The administrative error with the direct payment

37. In response to my investigation, the Council advised me of an error with the amount it was paying to Mr D’s support service. That was fault.

Did the faults cause an injustice?

38. To summarise, I have found fault with:
• the Council not fully meeting an earlier Ombudsman recommendation and not backdating a payment to the correct date;
• advising Mr D it would not take a new complaint from him;
• an administrative error with Mr D’s direct payment.
39. Each of these errors is relatively minor. But each also had the potential to cause Mr D some anxiety, due to his disability, amplifying the potential for distress.

Agreed action

40. The Council has agreed to my recommendations that, within a month of this decision it will:
• send me evidence it has made the agreed payment and paid the additional backdated DRE;
• apologise to Mr D for the faults I have identified;
• pay Mr D £100 as a token recognition of the distress the faults will have caused him;
• confirm in writing to Mr D that it will settle the error with his direct payments after its next care and support review.

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Final decision

41. I uphold this complaint. The Council has agreed to my recommendations. So I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman