Summary: There was no fault in the way the Council tried to assist Mr B in finding alternative care providers to deliver his care package and in the way it decided the personal budget during that time.

The complaint

1. Mr B complains about the Council’s actions and communications with him while it was assisting him in finding a different care provider within his personal budget. He says that the Council did not consider his needs and treated him as a ‘nuisance’ which affected his mental health. The Council later approved an increased personal budget and Mr B says this is evidence that his previous personal budget was not sufficient to meet his eligible needs.

Back to top

What I have investigated

2. I have considered the complaint relating to the Council’s actions from August 2018 to July 2019. Paragraph 55 explains why I have not investigated events before August 2018.

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 have discussed the complaint with Mr B’s representative. I have considered the documents that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

Back to top

What I found

6. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Assessment and care plan

7. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a care plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Personal budget

8. The Guidance says the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan. It says decisions should be based on outcomes and value for money, rather than purely financially motivated.
9. In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population.
10. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles.

What happened

11. Mr B is an adult man who lives alone. He has a physical disability which means he has a care worker to provide care and support 24 hours a day, every day of the week. He also has mental health problems.

Ombudsman’s decision – August 2018

12. Mr B complained to the Ombudsman in December 2017 as he said the Council had failed to give him a personal budget to meet his eligible care needs. The Council paid £1,454 a week and Mr B said he had spent £75,000 of his own money on his care. He employed care agency 1 which charged more than the rate the Council had used to calculate his personal budget. The Council said that agency 1 was one of the most expensive agencies in the area.
13. The Ombudsman decided in August 2018 that there was no fault in the way the Council calculated Mr B’s personal budget. The Ombudsman said the Council had explained how the personal budget could be used to meet Mr B’s needs either by employing a personal assistant via a different agency or by employing his current personal assistant himself.

Alternatives proposed in June to September 2018.

14. The social worker tried to assist Mr B in finding more affordable alternatives to provide his care. Mr B continued to use agency 1 and employed a live-in care worker for two weeks a month. He said the package cost £2,600 a week which was more than his personal budget of £1,600.
15. The social worker contacted three care agencies which were able to provide a service at a lower cost. These all involved a combination of live-in care workers and additional care workers, directly employed by the agency.
16. Mr B agreed to consider one of the three agencies (agency 2).
17. Agency 2 offered three different packages:
• Option 1 - £1,600 per week. They would provide two new live-in care workers, one week on, one week off would. In addition, current care workers would work for two hours each day to give the live-in care workers a break. The agency could retain some but not all the same people who provided care to Mr B at the moment.
• Option 2 - £2,688 per week. The agency would replicate the care package agency 1 provided on the same terms.
• Option 3 - £1425 per week. Mr B retained his current live-in care workers at two weeks on, two weeks off. Agency 2 provided a second live-in carer at two weeks on, two weeks off. This package was later withdrawn as the agency said it would not meet Mr B’s complexities.
18. Mr B complained about the social worker in September 2018, after a meeting with Agency 2. He said the social worker had tried to mislead agency 2 about the extent of his need. He said he could not have a live-in care worker as he had been exploited in the past when he had one live-in care worker. He had mental health needs and he needed a mixture of care workers for stimulation.
19. Agency 2 later withdrew from the negotiations. Mr B said this was because of the social worker’s ‘irresponsible and shocking behaviour’. The Council said Mr B wanted more control in terms of employing and managing the care workers which defeated the object of using a care agency so the agency withdrew.
20. In October 2018 Mr B said he was willing to consider two live-in care workers in addition to support from two or three of his existing care workers. He no longer wanted to deal with the direct payments and said an agency should manage this.
21. In November 2018 the social worker found three agencies which provided Direct Payment Support Services (DPSS). DPSS agencies manage the payments of the direct payments on behalf of the person, but they are not a care agency which provides care workers employed by the care agency directly.

Meeting on 23 November 2018

22. The manager held a meeting with Mr B, his advocate at his home on 23 November 2018.
23. The manager’s minutes of the meeting said:
• ‘He (Mr B) wants to progress his care package moving to employed PAs only in the new year. He states he wants to employ people rather than use the agency as he sees the benefits of this as long as he has enough staff to have a contingency if a member of staff was ill for instance. [Agency 1] are happy for him to employ people who work for them if this is the best plan.’
24. In the following weeks, there was a lot of communication with one of the DPSS agencies, agency 3.
25. Mr B said he did not want to be an employer and asked whether agency 3 had a bank of staff to cover shifts. Agency 3 said that this was not part of the role of DPSS agency, but was more a traditional care agency role. However, they could employ a core team of 4 to 6 care workers to cover the hours. Their quote was £2,639 per week.
26. The social worker said agency 3’s quote was not much better than agency 1. Also, agency 3 was not able to provide some of the support Mr B wanted in terms of managing contingencies such as sickness and leave. She said that had been her rationale in suggesting the previous agencies which would be able to manage the live-in care worker/team of personal assistant arrangements within the direct payments.
27. The social worker set out the Council’s position:
• The options included homecare agencies to provide support with a live-in care worker, 24/7 cover with direct payments managed by a DPSS agency or a traditional agency to provide a full care package with chosen PAs.
• If Mr B could not manage direct payments, even with support from a DPSS agency, then he could request a service by the Council who would have responsibility for the arrangement and payment of his care package.
28. Mr B said he was willing to meet with other agencies but they should provide something similar but better than agency 3. During the following weeks Mr B clarified his position. He did not want to be responsible for managing his staff and wanted an agency to do this. He wanted to keep his current staff. He did not want a traditional live-in care worker who worked long days. He wanted a DPSS agency, but they should employ the care workers as well as manage his direct payments.
29. The Council allocated a different social worker to Mr B’s case in March 2019 as his current social worker had gone on sick leave.
30. Mr B’s advocate complained to the council on 21 March 2019. I have summarised the complaint insofar as it is relevant to the complaint I am investigating. She said:
• At the meeting on 23 November 2018 Mr B said he did not want to be a direct employer of his staff.
• The social worker had repeatedly insisted that Mr B should have direct payments and employ his own staff, do supervision with staff, training and so on.
• At a meeting on 23 November 2018 the manager agreed that the social worker would appoint a DPSS. This had not happened.
• At a meeting on 15 November 2018 the manager agreed that the Council would pay for agency 3. Agency 3’s quote was more expensive than his current package. The social worker had been unable to find a cheaper package to meet his needs.
• Therefore, he now asked that he could stay with agency 1 and that the cost of this was backdated to 15 November 2018, the date when it was agreed that the Council would fund agency 3.
31. The Council replied on 15 April 2019 and said:
• A new social worker had started to work with Mr B.
• In response to his request to have support in managing his direct payments, the Council said direct payments meant he had control over the money and the Council would not choose which agencies or people he wanted to employ. He could employ a DPSS to manage the personal budget.
• Mr B said that he did not wish to use personal assistants, a managed home care service or residential options. He wanted to use care agencies. He did not want to use live-in care workers but paid his current live-in care worker at an hourly rate and then used agency staff in addition to that.
• Direct payments were not compulsory, but a choice. The Council had offered to provide the services directly but Mr B had refused this. It was also possible to have a combination of direct payments and a managed service to deliver his care package.
32. On 30 April 2019, the new social worker asked whether Mr B would consider a live-in care worker, but the advocate said that Mr B was ‘very distressed’ that this option was broached again.
33. Mr B would consider:
• ‘An arrangement like he has with [his current personal assistant] with another care worker (a live in type arrangement but with support from other people during the week also). However, no agency had been found that would offer this at a rate the Council would consider.’
• A live-in care worker but he did not wish to be a direct employer. He would consider a DPSS but only if they were also able to do the things an employer did and cover in case of sickness and emergencies.
34. The social worker had a meeting with Mr B, his advocate and a representative from agency 1 on 7 May 2019. Mr B showed the social worker the rota he used for his current care package.
35. These are both sides’ accounts of the meeting:
• The social worker said she did not understand the rota that Mr B sent her. She said the others were very negative towards her and made comments to her such as: ‘It’s simple – even a thick person can understand it. and ‘It’s observed you haven’t got a maths degree.’ The atmosphere became uncomfortable and she was asked to leave as she was upsetting Mr B.
• Mr B said the social worker refused to understand how the rota worked and asked strange questions. He said the social worker ignored everything they told her and ‘after 90 minutes of chaos and stress’ he asked her to leave.
36. In the following weeks, the Council continued to communicate with agencies 1 and 3 in relation to their costs.
37. The social worker referred the matter to the Council’s Community Care Prioritisation Panel (which makes funding decisions) on 31 July 2019.
38. The social worker asked the Panel to consider these options:
• To continue to fund the care package at the current rate and await a further challenge via the Ombudsman.
• To increase the budget to what Mr B was paying agency 1 - £2,519 per week.
• To pay agency 3 as an employer - £2,639 per week.
39. The Panel agreed to increase the budget to £2,646.
40. In February 2020, Mr B complained to the Ombudsman as he said the Council’s treatment of him and its communications with him had left him with considerable stress and had affected his mental health. He felt the Council had ‘treated him like a nuisance and not being valued’. He said the increase in his personal budget was evidence that the Council’s previous personal budget was too low to meet his needs and he wanted the Council to repay the extra money he had paid before August 2019.
41. The Ombudsman referred the complaint back to the Council as Mr B had not complained to the Council yet.
42. The Council replied in July 2020 and said it had always provided a personal budget to meet his eligible needs. There were different ways the eligible needs could be met and Mr B’s decision to top-up this funding was his choice. It apologised if the process of assisting Mr B in support planning had been stressful to him, but said it had a duty to provide an evidence-based assessment and this meant asking questions and making suggestions which were an efficient use of the budget.

Analysis

43. A personal budget must be sufficient to meet the person’s needs which the local authority is required to meet and must also take into account the reasonable preferences to meet the needs as detailed in the care plan.
44. It is not the Ombudsman’s role to carry out an assessment of a person’s eligible needs or to decide what their care plan or personal budget should be. I can only consider whether there is any fault in the Council’s actions and the way it made its decisions.
45. I have read Mr B’s care plans. They are detailed and set out his needs and how they should be met. The Council agrees that Mr B is entitled to 24/7 care provided by a care worker at his own home. The Council then set a personal budget which it said would meet his needs but this was lower than the cost of the support package Mr B had set up with his direct payments.
46. The Council tried to assist Mr B in sourcing the support package within the personal budget. This was difficult as the Council had to continually assess and communicate what its position was in terms of needs (which it had a duty to meet) and preferences (which it should take into account) in relation to the different options that were being considered.
47. The Council set out its position in terms of how Mr B’s needs could be met in emails and other correspondence.
48. The Council’s position was (and continues to be) that Mr B’s eligible needs could be met by a direct service provided by the Council, by an agency providing care workers, by live-in care workers directly employed by him or by a combination of these options. The Council also agreed that, if Mr B found it difficult to manage his direct payments, he could ask an agency to manage the payments for him or use a direct service or a combination of both.
49. It offered him care agencies which could provide live-in care workers whose shifts would be supplemented by other care-workers from the agency so that Mr B did not have to rely on one live-in care worker without breaks. It remains the Council’s position that this could meet Mr B’s eligible needs.
50. Mr B then said he preferred to keep his current care workers but did not want to be an employer. He did not want a Council provided service or to use a traditional care agency but wanted to use a DPSS agency, but the DPSS agency also had to employ the care workers and be able to provide contingency staff. That was a difficult request as most DPSS agencies manage direct payments, but are not the same as care agencies.
51. The Council found an agency to deliver this package, but the cost was the same as his current package.
52. By this stage, the matter had been ongoing for over a year and the Council agreed to increase Mr B’s personal budget. This personal budget met all of Mr B’s eligible needs and also perfectly reflected his preferences.
53. Therefore, although I appreciate that this would have been a stressful and difficult process for Mr B, particularly as he suffers from mental health problems, I cannot say there was fault in the Council’s actions or the way it made its decisions.
54. The Council has tried to assist Mr B in finding a care package that met his needs and preferences. This was a long and protracted process, but that was not fault. During that time, Mr B was in receipt of a personal budget which could meet his eligible needs (although maybe not all of his preferences).

Back to top

Final decision

55. I have completed my investigation and have not found fault by the Council

Back to top

Parts of the complaint that I did not investigate

56. Mr B’s complaint relates to the Council’s actions from June 2016 to July 2019. I have not investigated the Council’s actions before August 2018 as they have already been investigated by the Ombudsman.

Back to top

Investigator's decision on behalf of the Ombudsman