Decision : Upheld
Decision date : 22 Feb 2021
The Ombudsman's final decision:
Summary: Miss D complained the Council failed to follow procedures when it assessed her care needs and it failed to pay the correct amount for her care support. The Council was at fault for causing delays in enabling Miss D to complete a supported self-assessment and it failed to pay Miss D the correct amount in her Direct Payment. The Council agreed to apologise to Miss D and make payment to acknowledge the loss of care support she received. It also agreed to review Miss D’s Direct Payment and ensure it pays her as agreed in her current care and support plan. Miss D also said the Council failed to assess her needs properly in her current care and support plan. There is no evidence of fault by the Council on this matter. And so, therefore the Ombudsman cannot criticise the merits of the Council’s decision.
- The complainant, whom I shall refer to as Miss D, complains the Council failed to:
- follow procedure in enabling Miss D to complete a supported self-assessment and it produced her Care Plan before completing her needs assessment;
- properly consider her views on her care needs and the suitability of the provision offered;
- provide enough funds to cover employment costs in her Direct Payments and provide a breakdown when she asked for it; and
- respond to all parts of her complaint and action the agreed outcomes of her complaints.
- As a result, Miss D said as her care needs have not been fully met and she has experienced distress and costs.
What I have investigated
- I have investigated the Council’s assessments and decisions on Miss D’s care needs from March 2019 to May 2020.
- The final paragraph of this decision statement sets out why I did not investigate other periods.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- As part of my investigation, I have:
- considered the complaint and the information provided by Miss D;
- discussed the issues with Miss D;
- considered the Council’s responses and the information provided; and
- given Miss D and the Council an opportunity to comment on a draft on this document, and considered the comments made.
What I found
Assessment of needs
- The Care Act 2014 and the Care and support statutory guidance says that, where it seems a person may need adult social care, a council must assess them to see if they have ‘eligible needs’. There is no timescale for the completion of this process set out in the government’s Care and Support Statutory Guidance. This merely says the assessment should be completed in a timely fashion, proportionate to the needs to be met.
- The Ombudsman generally expects an assessment to start within 28 days of the request (this is because guidance which preceded the Care Act set this time limit. As the Care Act was intended to improve care, it cannot have intended the timescale to slip).
- A person’s needs are only eligible if:
- The needs arise from or are related to physical or mental impairment or illness;
- as a result of these needs the adult is unable to achieve two or more of the ‘specified outcomes’. (Specified outcomes include managing nutrition, managing personal hygiene, getting dressed, using the home safely, maintaining a habitable environment, looking after children); and
- as a result, there is, or is likely to be, a significant impact on their well-being.
- Direct payments are a means of paying some, or all, of the personal budget to a person to arrange and pay for their own care. They are intended to give the person independence and control over the way their needs are met.
- A council must be satisfied the person can manage the direct payment and should take “all reasonable steps” to provide support in doing so.
- A council must be satisfied the direct payment is used to meet the needs in the plan and therefore should have monitoring systems in place.
- For individuals who employ a personal assistant, a Council must also ensure that costs for recruitment, Employers’ National Insurance contributions, absence, redundancy, and other costs are included in the person’s personal budget.
- It remains a Council’s duty to ensure the individual’s needs are being met, even if the person makes their own arrangements via the direct payment.
- Miss D has a chronic health condition, she has constant body aches, prolonged tiredness and fatigue. She lives alone in her home.
- Miss D has a care and support plan and is arranging for her own care by a personal assistant through her direct payments from the Council.
- In early 2018 the Council carried out a reassessment of Miss D’s needs under the Care Act. It provided a care and support plan for Miss D with her personal budget.
- Miss D disagreed with the amount the Council provided in her personal budget. She said it did not cover her employment costs for her personal assistant. She also disagreed with the Council’s assessment of her care needs, and so she asked for a supported self-assessment and an advocate to support her.
- In response the Council said it would enable Miss D to complete a self-assessment and provide an advocate. It also said it would review her employment costs and backdate any payments.
- Miss D says the Council did not enable her to complete her self-assessment and it did not review or pay her employment costs.
- In April 2019, the Council reassessed Miss D and her care advocate was present. It says it told Miss D that because her personal assistant was self-employed, the assistant would be responsible to register with HM Revenue & Customs (HMRC). The Council noted that the previous support plan did not have provision for pension cover, replacement cover and Miss D had not renewed her insurance. It also noted she had an underspend of around £1,800 in her care account. Miss D told the Council she needed more hours of support to meet her needs. The Council told her she may be entitled to more support, but it wanted to refer her for to an occupational therapist (OT) to assess her needs because her last OT report was from 2017. But Miss D declined a referral. The needs assessment was not completed because Miss D felt too unwell to continue.
- A few days later, Miss D told the Council she had let her self-employed assistant go and instead had employed a personal assistant. She asked the Council to recalculate her employment costs to provide a copy of her assessment.
- The Council produced a care and support plan for Miss D, which included her employment costs and increased the hourly rate to be in line with the London Living Wage. The amount for Miss D’s care needs was unchanged. The Council said it shared the draft plan with Miss D and asked for payroll information. It said once this was received, the care and support plan could be finalised.
- Miss D complained to the Council. She said the Council had:
- not provided her with a supported self-assessment and a breakdown of her Direct Payment as it promised in 2018;
- paid her below the London Living Wage and employment costs to meet her cost of employing a personal assistant; and
- produced a care and support plan before it had finished assessing her needs.
- It is not the Ombudsman's role to decide what care and support a person needs. That is the Council's role. The Ombudsman's role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the Council considered, and if it took account of the service user’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
Did the Council follow procedures?
- The guidance says Miss D had a right to ask for a supported self-assessment and the Council should enable her to do so. The Council did give her the necessary form and information for her to complete the self-assessment. However, the evidence provided shows Miss D had to ask the Council twice for a self-assessment and make a complaint before it did so. This caused a delay in assessing Miss D’s needs. This is fault.
- It took Miss D over 3 months to return the self-assessment due to her health issues. The Council is therefore not at fault for delays in this period.
- When Miss D returned her self-assessment to the Council and it completed her needs assessment, it agreed she was entitled to more support. On balance, I am satisfied that had the Council not been at fault and delayed providing a self-assessment to Miss D, her needs would have been increased at an earlier time. This is because there was no new substantial information or medical evidence provided other than Miss D’s self-assessment.
- Miss D also said the Council was wrong to produce her Care Plan before her needs assessment was completed. The Council visited Miss D in April 2019 to do a reassessment of her needs. However, due to her health she was unable to continue the assessment and it was not completed. The Council then asked Miss D to provide payroll information. It said once it received this information, it could finalise her care and support plan. On balance, this shows the Councils intention to complete her care plan without further assessment, which is fault. However, because the Council did not action the plan and it later completed Miss D’s reassessment, she did not experience a significant injustice.
Did the Council consider Miss D’s views?
- Miss D said the Council did not consider her views and she should be entitled to more support. Miss D’s care and support plan shows the Council:
- considered her supported self-assessment;
- visited her to assess her needs and noted her views;
- offered equipment for her home to support her independence and provided pictures for her to enable her to make a decision;
- referred her for support and community activities;
- listened to her concerns for a reduction in community support and re-instated the support hours; and
- offered her referrals to an occupational therapist to assess if she was entitled to more support.
Direct Payment and employment costs
- The Council told Miss D she was entitled to be paid employment cost and in line with the London Living Wage to meet her care need. The 2019 draft care plan and her current care plan includes these costs. However, the Council’s financial assessment for Miss D’s Direct Payment did not include these costs. The Council has acknowledged this was an error and it has been corrected in all its DP payments.
- But the Council also said Miss D was not financially disadvantaged because she had an underspend in her care account and continues to have an underspend.
- The evidence provided shows Miss D did have an underspend throughout the period of her complaint with the Council. She said this was her contingency monies set aside for related costs such as holidays, care cover, and insurance.
- Miss D was not paid the agreed amount to cover her care and employment costs. This is fault. In addition, the Council failed to correct its error when Miss D brought it to its attention. I am satisfied this caused her uncertainty, which meant she was reluctant to use her full direct payment on her care because she also had to consider employment costs and other contingencies. On balance, I am therefore satisfied that this led to some reduction in the care Miss D was able to pay for.
- Miss D is also unhappy about the Council’s complaints handling. The Council responded to Miss D’s complaint and apologised for its failure to enable her to complete a self-assessment and the delay this may have caused. It also agreed with some part of Miss D complaint and informed her the Council would address her concerns.
- However, there was fault in the Council’s complaints handling, in that:
- there was delay in its complaint’s responses. This was because its initial response was incomplete and so it agreed to provide a full response. It then took the Council a further three months to respond to her complaint.
- it did not address all of Miss D’s concerns and it failed to complete its agreed actions to include employment costs in Miss D’s Direct Payment.
- it said Miss D was also at fault for causing delays, but thereafter failed to provide evidence of this when she asked for it.
- To remedy the injustice the Council caused to Miss D, the Council should, within one month of the final decision:
- Apologise to Miss D in writing for the failures set out above;
- Make a symbolic payment of £500 to Miss D, to use as she sees fit, to acknowledge the distress the Council’s faults caused her and uncertainty between April 2019 to March 2020.
- Pay Miss D a further £250 to acknowledge her time and trouble in trying to get the Council to comply with the law and statutory guidance. Including, the distress caused from its complaints handling.
- Review Miss D’s Direct Payment and ensure she is or has been paid the London Living Wage and employment costs in line with her current care and support plan for the period Miss D has complained about;
- consider any training needs of officers completing or overseeing needs assessments or Direct Payment under the Care Act; and
- ensure officers act in accordance with the Care Act.
- I have completed my investigation and found the Council at fault. The above recommendations are a suitable way to remedy the injustice caused.
Parts of the complaint that I did not investigate
- I have not investigated Miss D’s complaint for the period before March 2019 that the Council:
- delayed providing her a supported self-assessment.
- Failed to pay employment costs in her Direct Payments.
Investigator's decision on behalf of the Ombudsman