Summary: The Council reduced Ms X’s support package without proper consideration of her needs. It fettered its discretion in deciding to refuse some elements of support and unlawfully applied a blanket policy in the allocation of domestic support hours.

The complaint

1. Ms X complains that the Council has unfairly reduced her allocated support hours.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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

4. I have:

• considered the complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

Back to top

What I found

Relevant legislation

5. A council must carry out an assessment of any adult who seems to need care and support. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9). Having identified eligible needs through a needs assessment, the council has a duty to meet those needs. (Care Act 2014, section 18)
6. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
7. The care and support plan must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, s 26)
8. Where the council is meeting some needs, but not others, the care and support plan should clearly set out which needs it will meet and which ones it will not. It should explain this decision.
9. A person with eligible care needs can have a council arrange their care or, if they wish, they can arrange their own care using a direct payment. (Care Act 2014, s 31).

Key facts

10. Ms X is in her fifties. She has numerous health conditions which impact on her day-to-day living, one of which is chronic fatigue. Her symptoms and support needs can fluctuate.
11. Ms X has been in receipt of direct payment from the Council for many years.
12. I have had sight of the assessment and support plan the Council completed in 2015. The assessment is comprehensive and detailed and records Ms X to need 17 hours support each week.
13. The assessor recorded Ms X to be happy with the support she was receiving and that she wanted it to continue. The assessor requested additional funds to pay for counselling and holistic therapies, which were identified as being beneficial to Ms X’s mental wellbeing. The assessor recorded window cleaning and gardening to be eligible needs which were unmet, so additional funds were requested.
14. The support plan is detailed and sets out how Ms X’s needs would be met. She was allocated:

• 30 minutes am
• 30 minutes midday
• 30 minutes pm
• 2 hours weekly domestic support
• 4.5 hours (used flexibly) weekly to access the community and attend medical appointments.

15. The Council agreed additional requests for gardening costs and holistic therapy (reflexology) for chronic pain and lymphedema, once a month at a cost of £30 per session.
16. Ms X says the support worked well and allowed her to maintain her wellbeing.
17. The Council did not review Ms X’s care and support needs between August 2015 and 2018/19.
18. The Council says a social worker did visit Ms X in 2017 and apologised for the delay in reviewing her care needs. Following this, the social worker was absent from work and the review was not completed. The Council allocated a different social worker, who contacted Ms X in September 2017. The Council says Ms X told the social worker her needs were adequately met, and she did not need a review. The social worker ended her involvement and advised Ms X to contact the Council should there be any change in circumstances before the next annual review was due.
19. In June 2018, the Council allocated a different social worker to review Ms X’s needs. This officer made an initial visit to Ms X then left the Council.
20. The Council allocated another social worker, and the reassessment began in April 2019. The assessment included an occupational therapy (OT) assessment. I have seen a copy of the document. Ms X reported her support to be working well and that she wanted it to continue. She reported her condition remained unchanged and that it continued to fluctuate and on bad days she needed more support. The assessor noted Ms X’s fluctuating needs with day to day living tasks, for example, she required “…support with bathing or showering if this is [Ms X’s] choice depending on how [Ms X’s] mobility is that day… PA to support with hair washing when required… [Ms X’s] health and mobility can fluctuate which [Ms X] states makes it difficult for her to manage her toileting needs independently all of the time.
21. The social worker noted no significant change in Ms X’s care and support needs since 2015.
22. In the assessment, under ‘What needs to change’, the social worker listed counselling sessions, holistic therapies, (recorded as a pre-hobby illness), and Ms X’s wish for “...flexibility to use to pay the window cleaner and the gardening costs for the upkeep of my garden /outside areas. I would like to pay for dog walking when needed as the dogs welfare is important & I can no longer exercise them. I would also like to use it to pay for small aids in the home”.
23. The social worker concluded Ms X needed 13.25 hours per week. It gave a breakdown as:

• 45 minutes am
• 30 minutes pm
• 1 hour weekly domestic support
• 3 hours weekly support to maintain relationships

24. The Council reduced Ms X’s support hours from 17 per week to 13.5 per week from 17 May 2019.
25. Ms X was dissatisfied with the proposed changes. She says the assessing officers did not properly consider the fluctuating nature of her condition, and consequently, the unpredictability of her support needs. She says no regard was given to her psychological needs and the Council took a “blanket approach” when allocating domestic support hours.
26. Ms X says she expressed her concerns to the social worker and was told the decrease was a result of the introduction of the Care Act 2014, and if she wished to challenge it she should submit a formal complaint to the Council using its complaints procedure.
27. The social worker sent an email to Ms X to say her ‘case’ had been presented to the Council’s ‘Validation Forum’ on the 2 May 2019 and the proposed support plan had been agreed. The assessor noted Ms X’s objections to the changes and said “Direct Payment you are able to use your allocated hours flexibly, however this is only to meet those needs identified in your support plan. Please note that no agreement has been made for any domestic support over 1 hour a week. If additional is required this will need to be funded privately. There is also no gardening support or holistic therapies to be provided. I am aware that you stated these were previously agreed, however these were agreed prior to the new assessment and eligibility criteria introduced by the Care Act in 2014”.
28. Ms X says the reduction in support hours has left her without support to access the community, and she has had to use the contingency funds in her direct payments to attend some appointments and has had to cancel others. The Council says Ms X obtained a motability car that was adapted for her to use independently, therefore, she could access the community on her own when well enough.
29. Ms X says the assessment process was stressful and an OT arrived at her home unannounced, when she had explicitly requested that her advocate be present at all assessments. The Council confirms an OT visited Ms X without her advocate present, but says the visits were arranged with Ms X in advance with the purpose of looking at a step for the bath, and the OT returned only to deliver the aid, and that no further assessment took place.
30. Ms X provided a copy of the OT’s notes which records a “Discussion took place around 'potential assessment with a trolley'. [Ms X] said that she would consider this if needed. [Ms X] was reticent to discuss any further without her advocate present. She said " if you are going to ask more about how I manage in the kitchen then I want [advocate] here!”.
31. Ms X also says the Council failed to involve her in the support planning and she does not agree with the current support plan in place. I have seen a copy of an internal email between officers, dated 4 June 2019, which Ms X was copied into, which shows Ms X did not receive a copy of her support plan until after the reduction of her support.
32. In its response to my enquiries, the Council says Ms X can use her direct payment flexibly to meet the needs identified in her support plan. It says a one-off payment for gardening costs was made in 2016 but there was no agreement for this to be an ongoing arrangement, that Ms X previously had 2 hours support allocated for domestic support, whereas the Council’s standard allowance is 1 hour per week. In relation to holistic therapies, it acknowledges this was previously agreed but this was prior to the introduction of the Care Act in and its eligibility criteria.
33. Ms X submitted a formal complaint to the Council on 27 June 2019.
34. I have seen a copy of the Council’s undated investigation report, which says “The role of the Transformation Team has been to carry out robust reassessments of individuals within the review system in Darlington to deliver The Care Act principles and assess, using a strength-based approach. The key focus is to consider the strengths of the individual and look at creative ways of meeting an individual’s needs. [Ms X’s] last assessment was carried out in August 2015, and despite the Care Act having been implemented at this time it is clear that there was limited focus on strengths-based assessment at this time”. [Ms X] previously had gardening agreed on her support plan, again this is not something that the local authority provide. Gardening is classed as a Disability Related Expenditure via the Financial Assessment.
35. The Council partly upheld Ms X’s complaint because it concluded the changes to her care and support had not been clearly explained. It did not uphold her complaint about the reduction to her support hours, or the support planning process.
36. The investigating officer recommended officers provide Ms X with a clearer explanation about the reduction in her support hours, and that a financial assessment to include DRE be completed, and that it be backdated if receipts were provided. Recommendations were also made for staff in relation to DRE and communication with service users. Ms X confirms the Council provided her with a copy of the report and that she expressed her dissatisfaction with it. The Council provided Ms X with a final response to her complaint in January 2020. I have seen a copy of this letter. The author, a senior officer, concurred with the findings of the investigation report. The officer apologised for any miscommunication during the reassessment process and said the Council’s financial assessments team would contact her to discuss DRE.
37. As part of my enquiries, I asked the Council if it had completed a financial assessment and included Ms X’s gardening expense as a DRE. It says Ms X has not submitted any evidence of DRE or mortgage payments despite it requesting this numerous times. I have had sight of the correspondence in which the Council requested evidence of DRE.

Analysis

38. It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law.
39. In this case, the Council failed to do so. There are a number of failings by the Council in this complaint.
40. Prior to 2018 the Council had not reviewed Ms X’s care for three years. This is fault.
41. Needs assessments should consider a persons’ physical and psychological needs. It must consider how a person’s needs may change or fluctuate and consider how this impacts on their wellbeing. I am satisfied that the Council did consider the fluctuating nature of Ms X’s needs in day to day living tasks. The social worker noted Ms X’s differing ability to complete each task depending on whether she was having a good or bad day. However, I do not consider there was sufficient consideration given to other aspects of Ms X’s needs.
42. If, as a result of a reassessment, a support package is reduced, or changed in a significant way, then the law requires that the Council provides a detailed and convincing explanation as to why, for example, because the person’s condition has improved substantially. In this case, there appears to have been no significant change in Ms X’s needs between 2015 & 2018.
43. The 2018 assessment noted ‘what needed to change’. There is no evidence which shows the listed activities no longer met Ms X’s needs, rather that the Council concluded the activities were not eligible services under the Care Act. I am unsure how the Council came to such a conclusion, there is nothing in the Care Act that prevents the Council considering any activity/service as an eligible need.
44. In relation to holistic therapy, the Council dismissed the therapy saying it did not fund hobbies. It failed to give any consideration to the benefit Ms X derived from it, or to the impact of removing it. It showed insufficient regard for Ms X’s individual circumstances This is not person-centred and contrary to the principles of the Care Act.
45. The Council acknowledges that gardening had been agreed in 2015 but says this was a one-off payment and there was no agreement for it to be ongoing. This is not a basis to withdraw support. Decisions should be needs led. The Council should have considered Ms X’s specific circumstances. In failing to do so it fettered discretion.
46. Direct payments are designed to give people more choice and control over the care and support services they are assessed as needing. The Care and Support Statutory Guidance 12.35 - says “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support need”.
47. The 2018 assessment showed no change in Ms X’s needs for domestic support. The Council reduced Ms X’s support from 2 hours per week to 1, saying its standard allowance for domestic support is 1 hour per week. Blanket policies of this nature are unlawful. It amounts to a fettering of the Council’s duty to meet an assessed need. This demonstrates the Council’s focus on budgets and not Ms X’s wellbeing.
48. The 2018 assessment shows no change in Ms X’s need for support to access the community. The Council reduced the allocated support from 4.5 hours per week to 3 hours per week. A mobility car is for transport and is not a replacement for personal support. The assessments of Ms X record her to experience anxiety and panic attacks. A mobility car would not alleviate this.
49. In respect of an OT arriving at Ms X’s home unannounced, the records show an OT arranged to visit Ms X to deliver aids, Ms X was not expecting any formal/informal assessment, or discussion about her needs. It is clear the visits went beyond Ms X’s expectations. The records show Ms X was asked to demonstrate abilities in completing specific tasks, and that she was not happy with this, and she made clear she wanted her advocate present. The Council’s investigation failed to consider this information, it concluded no assessments took place, when in fact discussions and assessments of Ms X’s abilities were attempted. The Council’s failure to investigate this matter properly compounded Ms X’s frustration.
50. Ms X did not receive a copy of her support plan until after the reduction to her care package had been implemented. The Council developed a support plan that did not genuinely involve Ms X or consider her views on what was needed. This is not the person-centred model that is required by the Care Act.
51. To summarise, the Council reduced Ms X’s support package without proper consideration of her needs. It fettered its discretion in deciding to refuse some elements of support, and unlawfully applied a blanket policy in the allocation of domestic support hours.

Back to top

Agreed action

52. The Council will within one month of the final decision

• provide Ms X with a written apology for its failure to properly reassess her care needs
• review Ms X’s care needs and produce a care and support plan which details, how these needs will be met, in consultation with Ms X
• consider what, if any support Ms X has missed, and decide on a suitable remedy
• pay Ms X £250 for her time and trouble pursuing the complaint with the Council and the Ombudsman
• ensure staff undertake assessments/reviews in accordance with the law and guidance
• provide evidence of the above to this office.

Back to top

Final decision

53. There is fault by the Council causing injustice. The above recommendations are a suitable way to remedy the injustice caused to Ms X.
54. It is on this basis; the complaint will be closed.

Back to top

Investigator's decision on behalf of the Ombudsman