Decision : Upheld
Decision date : 10 Jun 2021
The Ombudsman's final decision:
Summary: We upheld Mrs D’s complaint about a failure to provide Mr E with care and support through his direct payment between July and November 2020. There was also fault in the Council’s complaint handling. The fault caused Mrs D avoidable time and trouble and a financial loss to another family member who transported Mr E to his day centre. The Council will apologise, make Mrs D a symbolic payment and refund the family member their costs.
- Mrs D complained for her relatives Mr E and Mrs F about London Borough of Sutton (the Council). Mrs D complained the Council:
- Did not properly assess Mr E’s disability related expenditure (DRE)
- Issued an inaccurate care and support plan that did not reflect Mr E’s needs around toileting at night
- Did not provide adequate support for Mrs F as a carer
- Did not provide some of the care and support services on Mr E’s care and support plan between March and September 2020
- Did not respond fully to all her complaints.
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)
- 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 considered Mrs D’s complaint to us, the Council’s responses to her complaint and documents described later in this statement. I spoke to Mrs D about the complaint.
- Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- This complaint involves events during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and where relevant, our published “Good Administrative Practice during the response to COVID-19”.
- A council must carry out an assessment for any adult with an appearance of need for care and support. (Care Act 2014, section 9)
- The Care Act spells out the duty to meet eligible (unmet) needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
- An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness, the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on their well-being:
- Managing and maintaining nutrition
- Maintaining personal hygiene
- Managing toilet needs
- Being appropriately clothed
- Making use of the home safely
- Maintaining a habitable home environment
- Accessing work, training, education
- Making use of facilities or services in the community
- Carrying out caring responsibilities.
(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)
- A council must carry out a carer’s assessment where it appears a carer may have needs for support. The assessment must include an assessment of the carer’s ability and willingness to continue in the caring role, the outcomes the carer wishes to achieve in daily life, the impact of caring on their well-being and whether support could contribute to achieving their outcomes. (Care Act 2014, section 10)
- If a council decides a person is eligible for care, it should prepare a care and support plan and where applicable, a carer’s support plan. Care and support plans and carers support plans set out the needs identified in the assessment, say whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan/support plan to the person. (Care Act 2014, sections 24 and 25)
- The Care Act makes clear that the local authority is able to meet the carer’s needs by providing a service directly to the adult needing care. (Care Act 2014, section 20(7))
- Direct payments are money a council gives to a person or their representative to arrange their own care and support in line with their care and support plan. A council can manage a direct payment on behalf of a person or can provide support to help them manage one.
- Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
- Guidance sets out the principle that services should co-operate with one another when dealing with adults in need of care and support and respond unless this would be incompatible with their own duties. Situations where co-operation may be needed include where an assessment of care and support needs identifies other needs that should be assessed, like health needs. (Care and Support Statutory Guidance, paragraph 15.27)
- Councils have the power to charge for non-residential care services. To work out how much the adult should pay, councils carry out a financial assessment. Guidance explains a person receiving care and support outside a care home will need to pay their daily living costs such as rent, food and utilities so the charging rules must ensure they have enough money. They must be left with the minimum income guarantee as set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 (Care and Support Statutory Guidance, paragraph 8.42)
- Disability Related Expenditure (DRE) are expenses that a person has to pay connected to their disability. They are an allowance in a person’s financial assessment which reduces their weekly charge. DRE can include:
- specialist items and services such as wheelchairs
- extra heating or laundry costs
- equipment and aids
- regular payments such as wheelchair insurance and gardening costs.
- A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority
- The care plan may be a starting point for considering DRE, but councils need to be flexible.
(Care and Support Statutory Guidance Annex C, 39 and 41)
- The Council’s charging policy explains how it carries out financial assessments and says:
- Certain items of expenditure will be offset against income with evidence including rent net of housing benefit
- DRE is ‘any necessary additional costs an individual occurs due to illness or disability where those needs are not met by the council. For example, laundry is an expense for everyone but if due to incontinence, additional costs could be treated as a DRE’
- In general DRE not allowed for items used by everyone and not incurred due to illness or disability
- Where the Council considers it reasonable to use a lower cost item or service as a DRE, it may award the difference between the actual and lower cost alternative
- There is a weekly cap on the cost of some items of DRE for example, a hair wash is capped at £10. If the person can evidence a higher cost, then they should contact the financial assessment team.
- Mr E is an adult with learning disabilities, autism and dementia who lives with his sister Mrs F and her husband, Mr F. Mrs D is a relative who does not live in the same house, but who advocates for Mr E and Mrs F.
- Mrs D contacted the Council in October/November 2019 to ask for a review of Mr E’s care and support. She also said Mrs F was struggling as a carer and Mr E’s dementia was progressing.
- Mr E had not been paying a charge for his care. The Council had recently reviewed his financial assessment and applied a charge. Around the same time as asking for a care review, Mrs D also contacted the Council’s finance team about Mr E’s financial assessment. The finance team told Mrs D:
- There was an error in the 2018 financial assessment which allowed £21 for laundry costs and this had been revised.
- The financial assessment was appropriate based on the information available. Mrs F said Mr E’s bedding costs were £384; this was excessive and she needed to show receipts. Mrs F also said she did three loads of washing a week. This was a normal amount and so not a DRE.
- Mrs F did not disclose anything about clothing during the finance officer’s visit.
- It would not amend the financial assessment because the receipts did not show the figure for bedding that was claimed had actually been purchased, other receipts had no dates and those with dates did not show purchases before October 2019.
- Dietary supplements would not be included unless they were on the care and support plan or prescribed.
- The financial assessment allowed £13 for stationary (for craft items Mr E needed at an art class).
- Mrs F provided substantial care to Mr E. She had asked for a social care assessment as Mr E’s needs had changed and he required more support from her as he had recently been diagnosed with dementia, was wetting himself more often and was having more seizures
- Mr E had dementia, epilepsy, autism and a severe learning disability. He communicated by speaking one word and sometimes did not reply. Mrs F was at the assessment and could support Mr E with communication
- Mr E could use the toilet in the day but needed support to wipe himself. He had been wetting himself at night and was refusing to use a pad. Mrs F provided support during the day and at night. Mr E refused to use public toilets, so his toileting needed to be managed carefully when he was not at home
- Mr E went to a day centre four days a week and a direct payment, managed by the Council, paid for the cost of the day centre and for a taxi to take him there and back
- Mrs F had not been using her respite hours due to difficulty with managing the direct payment and getting a personal assistant (paid carer) who could manage Mr E’s needs
- Mr E needed constant supervision. He had little control over his daily life and was dependent on Mrs F for personal care, meal preparation and domestic chores. Mr E had anxiety. He was happy at home and the environment at home was appropriate
- Mr E had eligible needs in nine of the eligibility outcomes described in paragraph 10. These were mostly being met by Mrs F and so council support was not required to meet those needs she was willing to meet.
- An incontinence assessment had been booked in December to support Mr E’s night-time toileting needs. Mr E had been referred to a psychologist for support around using the toilet. The Council was not required to provide support around toileting.
- The direct payment included the costs of a personal assistant for six hours a fortnight of respite care. But Mrs F had been unable to manage a direct payment and had concerns about being an employer and so had been without respite care for several months. So, the Council would instead commission a personal assistant for six hours a fortnight to support Mr E and so enable Mrs F to have a break. The Council would also commission a respite care provider to provide 21 nights a year of overnight respite care for Mr E
- Council support was required to enable Mr E to access and engage in work, training or education and to make use of necessary facilities in the community. The Council funded four days a week at a day centre and also a taxi to take Mr E there and back.
- Needed encouragement to feed himself and eating a meal often took over one hour and he was prescriptive around food and eating
- Needed prompting with grooming. If left to his own devices, he would not maintain any sort of personal care
- Had a severe learning disability, not a moderate one
- Mrs F’s husband also cared for Mr E especially if Mrs F was away.
- DRE is not for expenses for items or services that everyone needs and uses.
- The financial assessment form said Mr E had 3 x 8kg washes a week. The Council had allowed for 3 full washes a week at £1 each wash. The electricity company said the true cost was 50 pence per load.
- The care and support plan said Mr E used the toilet independently apart from occasional accidents
- The financial assessment was based on Mr E’s income and expenses and the Council assessed he could afford a maximum of £10 per week.
- Mr E lived with a close relative, so any rent arrangement was non-commercial. This was in line with housing benefit rules
- She said the charge was causing financial hardship to other family members, but the Council could not discuss other family members incomes or expenses.
Comments from the Council
- The Council told me:
- Mrs F had not had any respite since before November 2019.
- The direct payment team spoke to Mrs F at the start of December 2019 and she said she wanted the Council to commission respite care for Mr E as she was struggling to employ a personal assistant. Respite care was commissioned at the end of January 2020. It did not go ahead because of the pandemic.
- Mr F needed support to transition to overnight respite care and this would be looked at again in a review in April 2021
- It did not reply to Mrs D’s letter of February 2020 (see paragraph 32). This was an error, but it did not stop the case progressing and the social worker responded to the issues Mrs D raised in the letter. The Council was going to arrange refresher training for ASC staff in how to log a complaint sent to an officer rather than the complaints team. Mrs D queried the assessment around feeding, meal preparation, personal care, level of learning disability and there was a review which had picked up on these issues
- Mr F was not present at the assessment and there was nothing discussed about the level of care he provided
- There was a referral for an incontinence assessment in December 2019, but the Council had no feedback on the outcome. This issue will be reviewed as part of the reassessment to be done, as well as a referral for psychological support around toileting outside the home.
- It was willing to pay Mr F’s expenses for taking Mr E to and from the day centre from 14 July to 2 November 2020.
Was there fault?
Complaint a: The Council did not properly assess Mr E’s disability related expenditure (DRE)
- There was no fault by the Council in the assessment of Mr E’s DRE. Mr E did not have to pay a charge until 2019; this was due to an error in the DRE figure for laundry. The error caused no injustice to Mr E because it resulted in no charge where he may have had to pay one otherwise.
- The Council explained the error during the review of the financial assessment in 2019. There was no fault in reducing the DRE for laundry. The Council’s policy allows it to set a reasonable rate and the Council explained it allocates £1 for each load with reference to the electricity company’s price. There are no grounds for me to criticise the way the Council calculated the laundry element of Mr E’s DRE.
- In terms of the other DRE allowances, there was also no fault by the Council. The Council is entitled to ask for receipts which should cover the period being claimed for and which should marry up with the costs being claimed. It is also entitled, under its policy, to allocate a lesser amount where it considers a claim unreasonably high. There was no fault in having a cap on some items because the policy also allows for individual consideration of an amount above the cap where there is evidence of a higher spend. I note also that the Council has allowed Mr E DRE for continence products in the most recent review in August 2020. So I am satisfied that the financial assessment considered fresh information from the family about Mr E’s needs and did not just rely on Mr E’s care and support plan. This was in line with Care and Support Statutory Guidance Annex C, which says the care plan is a starting point, but councils should be flexible when considering DRE.
- In terms of rent and housing costs, these are not dealt with as DREs, but they are allowable in a financial assessment. Mrs D said in correspondence to the Council that the family would be charging Mr E rent, suggesting this is a future intention and has not happened to date. She provided no evidence of a prior liability for rent and so there was no fault by the Council in not including a rent allowance in Mr E’s financial assessment.
- In terms of the transport costs claimed, these can be a DRE. But in this case, they were not being incurred by Mr E as Mr F was paying for petrol and using his car. So they could not be a DRE for Mr E. I have addressed transport costs later in this statement at paragraph 58.
Complaint b: The Council issued an inaccurate care and support plan that did not reflect Mr E’s needs around toileting at night
- The care and support plan of January 2020 noted Mr E was to have an incontinence assessment. The Council told me officers did not get any feedback on whether the incontinence assessment took place and if so, the outcome. The plan said no funding was required to support toileting because Mrs F was meeting Mr E’s needs in this area.
- The Council should have liaised with the incontinence service (an NHS service) to determine the outcome of the continence assessment and whether, in light of that assessment, a further review of Mr E’s care and support plan needed to take place to account for any unmet night-time toileting needs. The failure to seek information from the NHS was fault. It meant the Council did not work effectively with health services to support Mr E and this was not in line with paragraph 15.27 of Care and Support Statutory Guidance.
Complaint c: The Council did not provide adequate support for Mrs F as a carer
- The Council carried out a carer’s assessment for Mrs F within a reasonable timeframe after Mrs D raised concerns about sustainability of the caring role. It drew up a carer’s support plan and made a carer’s direct payment. This action was in line with section 10 of the Care Act 2014 and so there was no fault.
- I deal with respite care in the next section.
Complaint d: The Council did not provide some of the care and support services on Mr E’s care and support plan between March and September 2020
- Following the review of Mr E’s care needs in December 2019 and the issue of a new care and support plan setting out funding for respite care, the Council sorted out fortnightly commissioned respite care through an agency in January 2020. This was an appropriate and timely response to the concerns Mrs D raised at the end of 2019 about Mrs F’s well-being as a carer and there was no fault. The records indicate the fortnightly respite care did not go ahead and Mrs D told me this was likely due to Mrs F not wanting paid carers in the home due to other family commitments and then because of the lockdown. There was no fault by the Council in not pursuing the fortnightly respite element of the care and support plan because it was in line with Mrs F’s stated wishes.
- The Council also arranged a potential residential respite care option for Mr F and for specialist NHS psychology support to help him access respite. While the family did not consider that placement suitable, there are no grounds for me to criticise the Council’s actions which were in line with the duty in section 18 of the Care Act 2014 to meet Mr F’s eligible unmet needs.
- Mr E’s day services closed at the end of March 2020 due to the first lockdown. This was not fault and was outside the Council’s control as the government mandated people to stay at home. The agency care which was due to provide six hours of respite care each fortnight also did not go ahead, as described above. The Council responded appropriately by making regular welfare calls to Mrs F and checking she did not require services or support. The records indicated Mrs F told social workers she was coping ok and did not want care workers in the home. When Mrs F told the social worker she wanted Mr F to return to day care in June, social workers responded appropriately by liaising with the day centre and arranging for Mr E to return. There was no fault in the Council not providing services in the care and support plan during the first lockdown as it kept in regular contact with Mr E’s main carer, checked she was coping in her caring role and acted in line with her wishes.
- I note the usual taxi arrangement for Mr E to get to and from the day centre was suspended between July and November and so Mr F took Mr E in his car. The Council became aware of this in August 2020 through a letter from Mrs D.
- The Council was at fault in June 2020 when it restarted Mr E’s care and support plan and when it considered Mrs D’s correspondence about transport in August. The Council should have had regard to the COVID-19 direct payment guidance described in paragraph 21. This said councils needed to be flexible in allowing a direct payment to be used to pay a close family member in the same household as long as it was to meet a person’s assessed care needs. The failure to consider whether Mr E’s direct payment could be used more flexibly to cover transport costs between July and November was fault.
Complaint e: The Council did not respond fully to all Mrs D’s complaints.
- The Council accepts it did not respond to Mrs D’s letter of February 2020 about inaccuracies in Mr E’s care and support plan. And, having said it would issue a further complaint response about the care and support plan in the second response, the Council failed to do so. This was poor complaint handling and was fault.
- The failure to liaise about the outcome of the incontinence service’s assessment meant there was a loss of opportunity for Mr E to have all his needs properly assessed and considered. This caused uncertainty about whether Mr E has lost out on additional support night-time toileting needs, aside from the support which Mrs F had been providing.
- The failure to respond to all Mrs D’s complaint caused her avoidable time and trouble in complaining to us.
- The failure to consider whether the direct payment could be used more flexibly as the country came out of the first lockdown caused Mr F avoidable time and trouble and a financial loss (taking Mr E to the day centre in his car).
- The Council accepted my initial recommendations that it:
- Pays Mr F the standard mileage allowance for the dates he took Mr E to and from the day centre between July and November 2020
- Reviews Mr E’s assessment and care and support plan and Mrs F’s carer’s assessment and support plan. The review should include consideration of Mr E’s continence needs as identified in an NHS incontinence assessment and consider ways of meeting all the respite care needs identified in the care and support plan and/or carer’s support plan.
- Apologise to Mrs D for her avoidable time and trouble and pay her £100 to reflect this.
- Pay Mr F an additional £250 (as well as the mileage allowance) to reflect his time and trouble in transporting Mr F to and from the day centre.
- I upheld Mrs D’s complaint about a failure to provide Mr E with care and support through his direct payment between July and November 2020. I also found fault in the Council’s complaint handling. The fault caused Mrs D avoidable time and trouble and a financial loss to another family member who transported Mr E to his day centre. The Council will apologise, make Mrs D a symbolic payment and refund the family member their costs.
- I have completed the investigation.
Investigator's decision on behalf of the Ombudsman