Decision : Not upheld
Decision date : 30 Mar 2021
The Ombudsman's final decision:
Summary: Mr and Mrs X complain about Torbay and South Devon NHS Trust’s decisions not to backdate an increase in Mr Y’s personal budget and the direct payment rate paid to Mr X to January 2015. There is no evidence of fault in how the Trust made its decisions not to backdate the personal budget and direct payment rate to January 2015.
- Mr and Mrs X complain that Torbay and South Devon NHS Trust’s decision not to backdate an increased personal budget for Mr Y to January 2015 is unfair. They consider the increase in Mr Y’s personal budget shows the Trust has not adequately met his care needs since 2015 as his needs have not changed.
- Mr and Mrs X also complain that the Trust’s decision not to backdate the agency rate for direct payments to January 2015 to be unfair as Mr X was self employed at that time and they consider he was entitled to receive the agency rate. As a result, Mr X was under paid for the care he provided as Mr Y’s personal assistant.
What I have investigated
- I have investigated how the Trust reached its decision not to backdate Mr Y’s increased care package and direct payment rate to January 2015. I set out my reasons for not investigating other aspects of Mr and Mrs X’s complaint at the end of this statement.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
- 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)
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Mr and Mrs X;
- Discussed the issues with Mrs X;
- Made enquiries of the Council and considered the information provided:
- Invited Mr and Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance
- 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. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
- 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 council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. 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.
- The care and support statutory guidance provides local authorities are not under a duty to meet any needs that are being met by a carer.
- Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
- Torbay and South Devon NHS Trust provides adult social care services on behalf of the Council.
- Mr Y has severe learning difficulties and complex needs. He lives with Mr and Mrs X and their family. Since 2015 the Trust has provided a personal budget for Mr Y’s care via direct payments. Mr X is Mr Y’s paid carer, is self employed and has set up as a company. Mr Y is Mr X’s sole client.
Direct payment rate
- In October 2018, the Trust carried out a review of Mr Y’s care and support plan. The review records the social worker’s concern about the sustainability of the caring arrangements and that Mr X presented as notably more stressed than on previous visits. The Council increased the direct payment rate from £10.61 to £14.60 in recognition of the increased stresses placed on Mr X.
- Mr and Mrs X consider the direct payment rate of £14.60 should have been paid to Mr X since 2015 as this rate is paid to agencies and Mr X is a self employed carer who has set up his own company.
Mr Y’s move to a different room
- In September 2019 Mrs X notified the Council that Mr Y had moved into a downstairs annexe. He has previously slept on the first floor of the property close to the rest of the family. In her email Mrs X said that Mr Y was easier to manage when his bedroom was in close proximity to the rest of the family as he could be heard. His move to the annexe made supervision harder for his carers particularly on a night. She requested night waking support as Mr Y could not be left unsupervised on waking.
- A social worker visited Mr and Mrs X to discuss Mr Y’s move to the annexe. I understand the Trust also started a review of Mr Y’s care needs and care and support plan at this time. Following the visit the social worker sent an email setting out the list of agreed actions. This included an application to the Trust’s funding panel for night waking hours to support Mr Y’s living arrangements.
- In February 2020 the Trust completed the review of Mr Y’s care plan and increased his care package by 3.5 hours per day to include night waking support between 23:00 and 02:00 and time for Mr X to update the care records. Mr Y’s care package therefore increased from 46 hours to 70 hours per week. The Trust subsequently agreed to backdate the increase to 24 September 2019.
- Mrs X made a complaint to the Trust in April 2020. She considered the Trust should backdate the increase in Mr Y’s personal budget to 2015 as Mr Y always required night waking support regardless of where his bedroom was. She also considered the Trust should backdate the direct payment rate increase to 2015. She considered the Trust was now paying the agency rate to Mr X and he was entitled to this from 2015 as he provided care as a self employed enabling company.
- The Trust responded to Mrs X’s complaint in May 2020. The Trust said Mr X had been paid at the basic rate of £10.61 from 2015 as this was the standard rate. The Trust increased the rate from October 2018 from £10.61 to £14.60 in line with the Trust’s direct payment rate to agencies. This was agreed as a reasonable pay increase linked to the increased stresses and pressures within the family. The Trust also said it would not backdate the increased care package to January 2015 as the increase was directly linked to Mr Y’s change of circumstance, namely the move to the annexe which meant his carers could not hear him at night.
- Mr and Mrs X remained unhappy with the Trust’s response so made a complaint to the Ombudsman.
- In response to my enquiries the Trust has said:
- It did not backdate Mr Y’s increased care package to January 2015 because the increase in Mr Y’s personal budget was in response to his move to the annexe. Historical assessments did not record Mr and Mrs X raising night time care for Mr Y as a specific need.
- Mr X was employed on the basis of him being a self employed personal assistant. When the Trust refers to agency rates, this relates to a company that employs others and have overhead costs. So the actual carer rate will be lower than the full agency rate. This is not the case in Mr X’s case as he is singularly employed.
Council’s decision not to backdate the increased care package
- There is no evidence of fault in how the Council made its decision not to backdate the increase in Mr Y’s personal budget to January 2015. Mr and Mrs X have said Mr Y always required night waking support. The Trust’s position is the need only arose when Mr Y moved rooms. I have considered the 2018 review of Mr Y’s care needs and there is no evidence to show Mr and Mrs X specifically requested night waking support.
- Mr and Mrs X have provided evidence to show they told the Trust Mr Y did not sleep, required 24 hour care and that the personal budget was not sufficient. They consider the Trust should have been aware they needed night waking support. They have also said the health services were aware of Mr Y’s disturbed sleep. I accept Mr Y may have woken the family when his bedroom was close to their rooms and they provided care. But there is no evidence to show Mr and Mrs X raised requiring night waking support as a specific unmet need. They did so in 2019 when Mr Y moved rooms so, on balance, I consider they would have done earlier if that was a specific unmet need. I am therefore satisfied there is no fault in how the Trust reached its decision not to backdate the increased personal budget.
Direct payment rate
- There is no evidence of fault in how the Trust made its decision not to backdate the increased direct payment rate to January 2015. The Trust has explained that its agency rates apply to companies which employ people and have overheads. Mr X has set up as a company but he does not employ anyone else and is based in the family home. I have not seen any evidence to Mr X had overheads in the same way an agency would. So I am satisfied the agency rate does not apply to him. The Trust’s decision to increase the direct payment rate was in response to specific circumstances as it considered Mr X to be stressed. I therefore do not consider there is evidence of fault in how the Trust made its decision not to backdate the increased direct payment rate to January 2015.
- The Trust made its decision not to backdate Mr Y’s increased care package and increased direct payment rate to January 2015. I have therefore completed my investigation.
Parts of the complaint that I did not investigate
- Mr and Mrs X have also complained about how the Council assessed Mr Y’s care needs and decided his personal budget from 2015. We usually expect people to make a complaint to us within 12 months of when they first became aware of the complaint. We can investigate complaints older than 12 months but only if there are good reasons to do so and we are satisfied we can carry out a reliable investigate. I have not investigated this complaint as I consider Mr and Mrs X could have made a complaint to us sooner and I do not consider I can reliably investigate how the Council assessed Mr Y’s needs from January 2015 onwards due to the passage of time.
- Mr and Mrs X are also unhappy about the care assessment caried out in September 2019 as they say health services were not involved and due to the time taken to complete the assessment. By law we can only investigate matters where a complaint has been made to the Council or Trust and they have had the opportunity to investigate it. Mr and Mrs X have not made a complaint to the Trust about this matter so I cannot investigate it. It is open to Mr and Mrs X to make a further complaint about the care assessment once they have completed the Trust’s complaints procedure.
Investigator's decision on behalf of the Ombudsman