Summary: Miss X complained the Council delayed in completing an assessment of her care needs. Miss X says she needed to use her disability benefits to pay for care because of this delay. Miss X also complained the Council has completed the financial assessment of her care needs incorrectly. Miss X says the Council incorrectly asked her to contribute towards her care costs. The Ombudsman found fault with the Council’s delay in assessing Miss X’s care needs. The Council has accepted a mistake was made with Miss X’s financial assessment. The Council agreed to the Ombudsman’s recommendation to backdate Miss X’s direct payments to June 2019 and correct Miss X’s financial assessment.

The complaint

1. Miss X complained the Council delayed in completing an assessment of her care needs from June 2019 until July 2020.
2. Miss X says she needed to use her disability benefits to pay for care because of this delay.
3. Miss X also complained the Council has completed the financial assessments of her care needs incorrectly.
4. Miss X says the Council incorrectly asked her to contribute towards her care costs.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this decision, we 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. We 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)
6. 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)
7. 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

8. I have considered all the information Miss X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Miss X and the Council provided comments on my draft decision. I considered their comments before making my final decision.

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What I found

The Care Act 2014 and Statutory Guidance

Assessment

10. The Care Act and the statutory guidance (known as the Care and Support statutory guidance) says local authorities must carry out 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
11. The Guidance sets no timescales for completion of the process. Councils must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
12. Any assessment must be appropriate and proportionate. An assessment can be completed in different formats such as a face to face assessment, a supported self-assessment, online, over the telephone or through multiple agencies working together.
13. The Guidance says the person being assessed is best placed to judge their own wellbeing and should be involved in the assessment process. The Council should support a person’s involvement in the assessment and adapt the assessment process accordingly. The Council should consider the impact of the assessment process on the person as an assessment can be strenuous. Council’s should consider the preference of the person with regards to the timing, location and medium of the assessment and make sure assessment of flexible to the individual.

Care Plan

14. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support it must provide a care and support plan, which considers what needs 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.
15. There is no defined timescale for the completion of the care and support planning process. The plan should be completed in a timely fashion, proportionate to the needs to be met. The planning process should not unduly delay needs being met.
16. The Guidance says councils must give a copy of the final plan (which should be in a format that is accessible) to the person for whom the plan is intended and any other person they request to receive a copy. Local authorities must ensure the plan is agreed by the person the plan is intended for.

Personal Budget and Financial Assessments

17. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget is the money the council has worked out it will cost to arrange the necessary care and support for that person.
18. Councils must also assess a person’s finances to decide what contribution he or she should make to the personal budget. This is the financial assessment.
19. Councils can charge for care services. The Council should provide clear information about charges and how it assesses them at the time it finds out care needs. If a person refuses a financial assessment, they must self-fund their care.
20. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.
21. When assessing what a person can afford to pay, the local authority should disregard some aspects of their income, such as certain benefits, as set out in the Care and Support Statutory Guidance (CSSG). The guidance also says authorities should disregard additional expenditure, where this is necessary and directly related to the management of the person’s disability. This is called disability-related expenditure (DRE).
22. The guidance provides a list of items which authorities should consider DRE, such as above-average utilities costs. However, it also gives authorities the discretion to include other items, where it sees fit, and instructs authorities to be flexible in its approach.

Direct Payments

23. Direct payments are cash payments a council makes to a person with eligible care needs, instead of providing them with care services. They are designed to give people control and choice over their care arrangements, and let people have greater flexibility and independence.
24. If there is a direct payment arrangement, both parties should pay their respective contributions into the account.

MIG

25. The (Charging and Assessment of Resources) Regulations 2014 outlines a person is entitled to minimum income guarantee (MIG) which is the minimum amount they must be left with after any contributions towards their care and support.
26. Section 78 Care Act 2014 outlines the secretary of state may provide guidance as part of its function. This includes updating the minimum income guarantee levels.
27. The Minimum Income Guarantee for 2020 to 2021 for a single adult aged 18 to 65 is £91.40. Where the Council considers an adult would be in receipt of a disability premium an extra premium can be added of £40.35. For enhanced disability premium a further £19.70 can be added. This totals a Minimum Income Guarantee of £151.45.

Background

28. Miss X had a history of medical conditions and in 2019 had surgery on her right arm to try and help her condition. Miss X says the surgery did not improve her condition. Miss X says she is constantly in pain. Miss X was under the care of the Pain Clinic and received pain relief injections every few months at the hospital.

What Happened

29. Miss X contacted the Adult Social Care Team at the Council to enquire about a care package on 13 May 2019. Miss X told the Council a private care agency, who she used to work for, currently provided support. Miss X asked the Council for direct payments to fund this support. The Council said it needed its reablement team to complete an assessment before it could agree to long term support.
30. Miss X initially declined the Council’s reablement team but agreed to this in June 2019.
31. The Council’s reablement team started to provide care and assess Miss X on 26 June 2019.
32. Miss X declined to continue with the reablement assessment on 5 July 2019 following her raising concerns with the Council about the team.
33. The Council says it did not have a clear picture of Miss X’s long-term care and support needs as Miss X had not completed the reablement assessment. The Council referred Miss X to an occupational therapist for further assessment. The Council also referred Miss for a financial assessment on 25 July 2019.
34. The occupational therapist assessed Miss X on 31 July 2019. The Council completed Miss X’s care assessment on this date. The care assessment outlined that Miss X met five eligible need criteria for:
• Managing and maintaining nutrition.
• Maintained personal hygiene.
• Managing toileting needs.
• Being Appropriately Clothed.
• Being able to use her home safely.
35. The care assessment said the Council needed to complete a financial assessment and Miss X may need to contribute towards costs.
36. The Council started a financial assessment of Miss X on 7 August 2019.
37. The Council completed Miss X’s financial assessment on 26 September 2019. The financial assessment confirmed Miss X would need to contribute towards the cost of her care.
38. A council manager advised the key worker completing Miss X’s care assessment that Miss X needed to complete the assessment with the reablement team. The occupational therapist also needed to complete their assessment.
39. The occupational therapist completed a provisional assessment of Miss X’s care needs on 22 November 2019. The Council produced Miss X’s care plan on 26 November 2019. This care plan was incomplete as the occupational therapist needed to contact Miss X’s doctor.
40. Miss X complained to the Council on 18 February 2020 that the Council had not completed her care assessment or care plan and therefore not provided any support. The Council offered Miss X input from its reablement and rapid response teams. Miss X declined this as she had private carers in place.
41. The Council accepted Miss X’s complaint on 19 February 2020 and promised a response by 16 March 2020.
42. The occupational therapist completed their assessment on 26 February 2020.
43. The Council responded to Miss X’s complaint on 16 March 2020. It said:
• Miss X’s care and support plan was at the draft stage and it would complete this in light of the occupational therapist’s assessment on 26 February 2020.
• The Council delayed in progressing the assessment and support planning process.
• Miss X contributed towards the delays through declining the Council’s reablement service and her care agency not providing care notes.
• Miss X’s social worker would complete a joint visit with the occupational therapist to confirm the details of the assessment with Miss X.
44. The joint visit took place and Miss X’s care assessment was agreed with her on 27 March 2020.
45. Miss X agreed to the reablement assessment on 29 May 2020. The reablement assessment started on 4 June 2020 and finished on 25 June 2020. The reablement team recommended homecare support for Miss X at 90 minutes per day.
46. The Council completed Miss X’s care and support plan on 29 June 2020 outlining a personal budget of £219.35 per week. The Council decided this personal budget covered seven one-hour care visits per week and seven half-hour care visits per week. The Council agreed to fund Miss X’s support through direct payments on 1 July 2020.
47. The Council restarted a financial assessment for Miss X. Miss X submitted her online financial assessment form on 3 July 2020.
48. The Council determined Miss X should pay a contribution of £80.20 per week towards her care and support following a financial assessment. Miss X disputed her contribution and provided evidence of costs she incurs. The Council sent Miss X’s financial assessment for review.
49. The Council included costs for Miss X’s cleaning and gardening expenses within her financial assessment on review. The Council told Miss X her assessed contribution was £65.20 on 21 July 2020.
50. Miss X disputed the changed financial assessment. Miss X said the Council had not considered a list of expenses when completing the financial assessment.
51. The Council reviewed Miss X’s list of expenses. By 19 August 2020, the Council advised Miss X her new contribution was £41.70 per week. The Council calculated this reduced contribution by including expenses for cleaning, gardening, chiropody, laundry, some clothing due to incontinence and chemist items as shown by Miss X’s receipts. The Council explained most of the items on Miss X’s list were payable from her weekly buffer including car insurance, service, road tax and diesel, food, Internet, gas and electricity. The Council explained how Miss X could get benefits for glasses and dentist check-ups.
52. The Council produced Miss X’s new financial assessment in September 2020. This financial assessment did not include £3.50 for Chiropody and noted Miss X’s contribution as £45.20.
53. Miss X complained to the Council the cost of her contribution from 29 June 2020 had put her into debt. Miss X said she would not pay for this backdated contribution.
54. The Council confirmed Miss X owed £813.60 up to 23 November 2020 as she had not paid towards her contribution.

Analysis

Care Assessment and Care Plan Delays

55. The Council should have completed an assessment of Miss X to decide if she had eligible needs. This assessment should have involved Miss X. The Council should have adapted the assessment process considering Miss X’s input. The Council should have produced a care plan for Miss X following this assessment.
56. There is no set timescale for the Council to complete the care and support planning process But the Guidance says the Council should complete it in a timely fashion.
57. Miss X sought direct payments from the Council in May 2019. I do not find fault with the Council telling Miss X it needed to complete an assessment of her eligible needs before providing support. This is in line with the Care Act and the Guidance.
58. The Council initially delayed in starting Miss X’s assessment because Miss X declined the reablement team assessment. I do not find fault with the Council. This is because Miss X did not engage with the assessment process.
59. However, Miss X agreed to assessment from the reablement team and allowed the reablement team to assess her and provide support for ten days. Miss X also agreed to an occupational therapist attending to complete an assessment in July 2019. The result of these assessments was the Council recognising that Miss X had five eligible care needs under the Care Act.
60. The Council was aware that Miss X had eligible care needs from 31 July 2019. The Council had a duty to produce a care plan for Miss X’s needs. The Council delayed for four months in producing Miss X’s care plan until 26 November 2019. The occupational therapist caused this delay by not visiting again until 22 November 2019. There is no reason the occupational therapist could not have attended sooner. This delay is fault.
61. Despite producing the care plan in November 2019, the Council did not arrange provide support or care for Miss X. There was no action by the Council from November 2019 until February 2020 when Miss X chased the Council. The failure to act is fault by the Council.
62. The Council completed a further assessment of Miss X’s eligible care needs in 2020 and produced a care plan on 29 June 2020. This care plan prompted direct payments from 1 July 2020. This care plan was the result of Miss X agreeing to three weeks of assessment from the Council’s reablement team.
63. The Council was inflexible in its assessment of Miss X’s care needs. The Council only produced a care plan for Miss X after she completed three weeks of assessment from its reablement team. I can see no reason the Council would need a specific three weeks of assessment from the reablement team when it could identify Miss X had eligible care needs in July 2019.
64. The Council has not acted in line with the Guidance. The person with eligible needs should be at the centre of an assessment. Miss X was clear she did not want an assessment from the reablement team. Despite this, she allowed the reablement team to attend for ten days in June 2019. Miss X also engaged with the occupational therapist. Miss X engaged with the assessment process. The Council was not flexible in its approach to assessing Miss X’s needs. This is fault from the Council.
65. The delay in completing Miss X’s assessment and producing Miss X’s care plan meant the Council could not determine the direct payments Miss X needed until July 2020. It is not my role to determine the direct payments suitable before July 2020. However, the Council confirmed Miss X had eligible care needs in both the July 2019 care assessment and the June 2020 care plan. I consider it likely that an earlier completion of Miss X’s care plan would have found similar needs requiring similar direct payments. I therefore find fault the Council failed to meet Miss X’s eligible needs from July 2019 to June 2020.
66. This delay caused Miss X a direct injustice as the Council failed to provide any support for her eligible care needs until 29 June 2020. The Council should backdate Miss X’s direct payments to the date of the first completed care assessment on 31 July 2019 to reflect the injustice caused.
67. This delay also caused Miss X unnecessary distress and frustration through having to fund her own private care for twelve months. The Council should provide an apology and a payment of £250 to reflect this injustice.

Personal Budget and Financial Assessment

68. The Council should have determined Miss X’s personal budget following the assessment of her eligible care needs.
69. The Council assessed Miss X’s eligible needs and outlined the care Miss X needed within the care plan produced on 29 June 2020. The Council’s assessment of Miss X considered her eligible care needs and the support Miss X needed. The Council’s assessment of Miss X is in-depth and robust. It consists of over four weeks of assessment from the reablement team and four visits by the occupational therapist over twelve months. The care assessment includes relevant information and highlights Miss X’s needs.
70. The Council calculated Miss X’s personal budget of £219.35 per week based on the care visits Miss X needed. There is no fault in how the Council calculated Miss X’s personal budget.
71. Miss X has also disputed the Council’s assessment of her finances. Miss X says she does not think she should have to contribute towards her care costs and disputes payment of the backdated contribution to 29 June 2020.
72. A council can charge for care services and must assess a person’s finances to decide what contribution they can make. The Council should have considered Miss X’s income, minimum income guarantee and any disability related expenses when it calculated Miss X’s contribution.
73. The Council’s assessment concluded Miss X had a minimum income guarantee of £151.45. This Minimum Income Guarantee is consistent with the regulations and government guidance for 2020 to 2021.
74. The Council assessed Miss X needed to contribute towards her care costs. The Council first considered Miss X should pay £80.20 towards her care costs.
75. However, the Council did not consider Miss X’s full disability related expenses. The Council only considered £35 for domestic help and gardening. The Council did not consider Miss X’s expenses for chiropody, laundry, some clothing due to incontinence and chemist items within this contribution. The Care and Support Statutory Guidance outlines a council should assess disability related expenses including these expenses. The Council was at fault for failing to consider these expenses in the first financial assessment.
76. The Council has since assessed Miss X’s contribution as £41.70 per week.
77. The Council has shown consideration of Miss X’s disability related expenses as evidenced by Miss X. The Council correctly told Miss X that some expenses do not fall under disability related expenses and are for Miss X to pay. I do not find fault with the Council deciding Miss X’s weekly assessed contribution should be £41.70.
78. The Council has confirmed to me it failed to include the disability related expense for chiropody when it completed Miss X’s financial assessment in September 2020. This is fault by the Council. The Council has agreed to include this £3.50 expense in Miss X’s financial assessment. The Council will recalculate Miss X’s contribution from 29 June 2020 so far based on the £41.70 per week contribution. I am satisfied this resolves the fault with the financial assessment.

Agreed action

79. Within one month of the Ombudsman final decision the Council will:
• Backdate Miss X’s direct payments to 31 July 2019 to reflect the delays in completing a care assessment of Miss X’s eligible care needs.
• Provide Miss X with an apology and payment of £250 to reflect the unnecessary distress and frustration caused though having to fund her own eligible care needs because of the Council’s delay.
• Recalculate Miss X’s financial assessment to show her contribution is £41.70 per week and backdate this contribution to 29 June 2020, confirming the balance owed with Miss X.

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Final decision

80. There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman