Nottinghamshire County Council (19 020 842)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 19 Nov 2020

The Ombudsman's final decision:

Summary: Mr B complains about how the Council is meeting his care needs and how it has calculated his financial contribution to the care he receives. There appears to be fault in the financial assessment and this has caused Mr B uncertainty. The Council will invite Mr B to provide further evidence and give him more information about how he can access available services.

The complaint

  1. Mr B complains about how the Council is meeting his eligible care needs. In summary:
    • Mr B considers the Council should increase his care package, in particular, to prepare fresh meals as recommended by his doctor and to support him at night.
    • The Council agreed a new disability-related expenditure (DRE) amount in April 2019. However, it has not responded to Mr B’s requests to backdate this to August 2018.
    • The Council’s financial assessment takes into account Mr B’s full Attendance Allowance (Attendance Allowance helps with extra costs if you have a disability severe enough that you need someone to help look after you). He considers this should be adjusted to reflect the fact he needs support at night.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered a complaint form Mr B completed and I have agreed a complaint summary with him. I have invited comments from the Council and considered its response with supporting evidence including Mr B’s care plan and financial assessment.
  2. Ms 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

What should have happened

Charging for care services

  1. 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)
  2. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Disability-related benefits and expenditure

  1. The Care Act 2014 and the associated Care and Support Statutory Guidance (the Guidance) Annex C sets out income the Council must consider when deciding what a person should contribute to his or her care.
  2. Paragraph 14 says the Council may take most of the benefits people receive into account. However, the Council needs to ensure that in addition to the minimum guaranteed income or personal expenses allowance people retain enough of their benefits to pay for things to meet those needs not being met by it.
  3. Paragraph 16 says income from some benefits must be taken into account when considering what a person can afford to pay from their income towards the cost of their care and support in a care home. Attendance Allowance is one of the benefits the Council must take into account when a person is in a care home.
  4. Paragraph 39 says that where disability-related benefits are taken into account, the Council should make an assessment and allow the person to keep enough benefit to pay for necessary DRE to meet any needs which are not being met by the Council.
  5. Paragraph 40 says when assessing DRE, the Council should include the costs of any specialist items needed to meet the person’s disability needs, for example day or night care which is not being arranged by the Council.

24-hour emergency home care response service

  1. The Council commissions an emergency response service. This service provides emergency support at home for occasional issues such as assistance with toileting and cleaning up. The service is intended to be for less-frequent call outs. Therefore, if a person uses the service more than 12 times in a four-week period, the Council will discuss whether there is a more appropriate way to meet his or her needs.

What did happen

  1. In October 2019, the Council completed a review of Mr B’s needs. The assessment commented on Mr B’s toileting needs. It recorded Mr B usually only needed to empty his bowels once a day in the morning and carers would support him during the day with this need. The assessment notes ‘…Emergency response service offered, this has been declined.’
  2. Mr B complained to the Council the same month. He explained the assessment did not reflect the agreed number of care hours. He wrote again in November 2019 to explain his complaint was about the Council’s decision to reduce the number of carers visiting from two to one. He said this effectively halved the care he received.
  3. Mr B also said he needed help at night which the Council did not provide. Further, the Council had taken the higher rate of his Attendance Allowance into account when assessing his finances. This meant he was unable to afford the support he needed at night.
  4. Mr B has recently told me the Council has increased the care he receives during the day. Therefore, this has resolved the first part of this complaint. However, he remains concerned about the Council’s decision on his Attendance Allowance.
  5. The Council responded to Mr B’s complaint in November 2019. It addressed the issue of reduced care. However, there was no mention of Mr B’s Attendance Allowance.
  6. Mr B wrote again in December 2019. He said a Council officer told him he could access services 24 hours a day, seven days a week. The Council officer said the Council took his Attendance Allowance into account as it provides these after-hours services. Mr B explained he had contacted a district nurse to visit as he had soiled himself at night. However, the nurse told him it was not her responsibility to visit. Therefore, Mr B had to contact a private care provider for support that night. Mr B also said he would continue to pursue his points of complaint, including ‘…my DRE allowance introduction date…’
  7. In January 2020, the Council replied. It said it was usual practice for the full Attendance Allowance to be used when calculating contributions. It also noted Mr B’s most recent assessment allowed increased disability-related expenditure (DRE).
  8. Mr B complained to the Ombudsman. In response to my enquiries, the Council said it applies the Guidance at Annex C paragraph 16 to financial assessments. This means that it takes the full Attendance Allowance into account.

Analysis

  1. The Council says it applies paragraph 16 of Annex C to financial assessments. However, the list of benefits the Council must include under paragraph 16 only applies when the person receiving care is in a care home. This is not the case with Mr B. The Council appears to be applying the Guidance for care in a care home to Mr B’s circumstances. This is fault.
  2. However, the Guidance at paragraph 14 says that the Council may take most benefits into account in assessing someone’s finances. The Guidance lists benefits which must never be included, Attendance Allowance is not on this list. This indicates that the Council has a very broad discretion in deciding which benefits it will include when assessing a person’s finances. I therefore do not consider Mr B has suffered an injustice as a result of the Council including the full amount in his assessment.
  3. However, while the Council is entitled to take the Attendance Allowance into account, it must also consider whether Mr B can still pay for any care he receives at night. It should do this by considering whether it should allow any amounts Mr B pays as a DRE as set out in paragraphs 39 and 40 of the Guidance. I cannot see that the Council has considered whether Mr B is entitled to DRE to cover night-time care. This is fault.
  4. However, it is not clear, apart from the one instance Mr B has mentioned, whether he has been frequently paying for care at night. For example, for more call outs than would be permitted under the Council’s emergency response service. This appears to have caused Mr B uncertainty around whether the Council should be considering any services he pays for as DRE and is a missed opportunity to do so.
  5. Mr B has had difficulty accessing the emergency response service. It is not clear whether the district nurse to whom he refers in his complaint forms part of the Council’s service or whether he contacted the wrong service in error. I cannot conclude, from the evidence provided, that the Council gave Mr B enough information in this regard. Further, I have seen no evidence the Council tried to clarify how Mr B could access the service following his complaint. Mr B has suffered an injustice as he does not appear to know how to access a service to which he is entitled.
  6. I have not seen evidence that Mr B specifically requested the Council consider backdating the increased DRE to August 2018. The reference in Mr B’s December 2019 complaint to a ‘DRE allowance introduction rate’ seems vague. However, the Council has confirmed it has now agreed to backdate the DRE to August 2018.

Agreed action

  1. Within one month of my decision, the Council will invite Mr B to provide evidence of any payments for night-time support. It will consider whether any evidence Mr B provides warrants a further increase in his DRE.
  2. The Council will again provide Mr B information about its emergency response service and explain how Mr B can access this.

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Final decision

  1. There is evidence of fault in relation to the financial assessment and how the Council has applied the Guidance. However, the Council may include Mr B’s full Attendance Allowance in his financial assessment. The Council will invite Mr B to provide evidence if he pays for night-time support and consider whether it should treat this as DRE. The Council will also ensure Mr B knows how to access the service it provides to meet his night-time toileting needs.
  2. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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