Summary: The Council’s failure properly to consider Mrs X’s wish that her husband not provide her personal care in 2019 was fault. It was also fault for the Council not to give Mrs X an example of how her personal budget could be used to meet her needs when she asked for one. There is no fault in how the Council considered the impact of COVID-19 on Mr X’s ability to care for Mrs X or in the time taken for the Council to deal with Mrs X’s complaint. The Council has agreed to apologise to Mr and Mrs X and pay them £1150.

The complaint

1. Mrs X complains about how the Council has assessed her care and support needs. In particular, she says:

1. The assessments do not reflect her needs and are not person centred.
2. The personal budget for 29.5 hours of care a week is not enough to meet her needs and keep her safe.
3. It took the Council too long to respond to requests for reviews of her care and support.
4. The Council has not properly considered the impact of COVID-19 on her husband’s ability to provide informal care and support.
5. The Council took too long to deal with her complaint.

2. Mrs X says this has caused her avoidable distress and that her support is insufficient to meet her needs.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered the information Mrs X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Adult Social Care assessments

9. 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.
10. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.

Carer’s assessment

11. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
12. Where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Eligibility

13. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:

1. The needs must arise from or be related to a physical or mental impairment or illness.

2. Because of the needs, the adult must be unable to achieve two or more of the following:

• Managing and maintaining nutrition;
• Maintaining personal hygiene;
• Managing toilet needs;
• Being appropriately clothed;
• Being able to make use of the adult’s home safely;

• Maintaining a habitable home environment;
• Developing and maintaining family or other personal relationships;

• Accessing and engaging in work, training, education or volunteering;
• Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
• Carrying out any caring responsibilities the adult has for a child.

3. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.

14. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.

Care plan

15. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what 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. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Personal budgets

16. 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.
17. There are three main ways in which a personal budget can be administered:
• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
• As a direct payment. (Care and Support Statutory Guidance 2014)

What happened

18. Mrs X has care and support needs because of a degenerative health condition. She lives with her husband, Mr X.
19. In March 2019, Mrs X contacted the Council. She asked it to increase the hours of care and support funded by her Direct Payments. The Council agreed to review her current assessment and care plan. At that time, Mrs X had a personal budget for 14.5 hours of care a week.
20. Mrs X also asked for an advocate to support her with the process. The Council agreed to this request and referred Mrs X to its advocacy service.
21. The advocacy service allocated an advocate in early April. The Council’s review later that month said Mrs X did not need any additional support. However, it also referred Mrs X’s case to a social worker for a full reassessment of her needs.
22. The social worker visited Mrs X at the end of May. In early June, the Council agreed to increase Mrs X’s funding to 24.5 hours a week.
23. The Council asked Mrs X to complete a sample Care and Support Plan to show how she would use the hours to meet her eligible needs. Mrs X returned a plan with support totalling more than 38 hours a week.
24. In September 2019, Mrs X met with the Council to discuss her concern that the care assessment and personal budget were not enough to meet her needs.
25. In December 2019, Mrs X complained to the Council. The Council asked an independent investigating officer (IO) to investigate the complaint.
26. Between December 2019 and April 2020, the IO corresponded with Mrs X about her complaint. Mrs X agreed the statement of complaint in April.
27. In June 2020, the Council completed an annual review of Mrs X’s care and support needs. Following the review, it increased her personal budget to fund 29.5 hours support a week.
28. The IO completed the investigation into Mrs X’s complaint in August 2020. It found no fault with the Council.

My findings

29. I will deal with each element of Mrs X’s complaint in turn.

The assessments do not reflect her needs and are not person centred

30. Mrs X says the assessments in June 2019 and June 2020 do not accurately reflect her needs. She also said they do not take into account her desired outcomes.
31. The assessments detail Mrs X’s health needs and identify her eligible needs.
32. The Council sought information from Mrs X’s GP, mental health practitioner and Speech and Language Therapist. The Council visited Mrs X at home to complete the assessments. It also got input from Mrs X’s Personal Assistant (PA) about the activities she supported Mrs X with. Mrs X had an advocate throughout the process to make sure her voice was heard.
33. The observations and conclusions about Mrs X’s needs are matters of professional judgement. The Ombudsman cannot question the merits of such judgements unless we find the Council failed to take into account relevant information, law, or guidance. In this case, the Council’s assessment complies with the requirements of the Care Act. There is no evidence it failed to take into account relevant information.
34. Therefore, I find no fault with how the Council identified Mrs X’s eligible care and support needs.
35. After identifying eligible needs, the Council can then consider any support provided by a carer. The Council does not have to meet any needs met by informal care, where the carer is “willing and able” to provide it.
36. Following the review in June 2020, the Council increased Mrs X’s personal budget to 29.5 hours a week. It said:

“It has been clearly recorded in a number of different documents that you do not wish for your husband [Mr X] to support you with either personal or continence care. We understand your wishes and consider this as part of your right to family life.”

37. Mr X was providing this care at weekends. The Council said, therefore:

“taking into account the support required over the weekends and that you do not wish for [Mr X] to take on the role of supporting you with personal and continence care, I have concluded that an additional 5 hours per week is required.”

38. Mrs X expressed this wish during the June 2019 assessment too. There is no evidence the Council took this into account before deciding which of her eligible needs remained unmet. This is fault.
39. Given Mrs X’s eligible needs remained the same between the two reviews, I find it likely that had the Council properly considered Mrs X’s wishes in June 2019, it would have included the additional five hours then. Failure to do so was fault.
40. As a result, Mrs X spent a year without support to maintain her dignity. This is an injustice to Mrs X. There is also an injustice to Mr X, who had to provide this support knowing Mrs X found it embarrassing.

The personal budget for 29.5 hours of care a week is not enough to meet Mrs X’s needs and keep her safe

41. The Council uses a Resource Allocation System (RAS) to calculate personal budgets. This is a complex algorithm designed to make the best use of Council resources to meet the needs of its residents.
42. The Council must not apply a blanket approach of using the amount recommended by the RAS. It must consider in each case whether the hours allocated are sufficient to meet eligible needs.
43. Mrs X wrote a detailed breakdown of how much time she thought was necessary to meet her needs on a blank Care Plan the Council asked her to complete. This added up to over 38 hours a week. The Council’s note on this document says:

“Direct Payments in place for 24.5 hours per week – to be used over a 7 day period to meet assessed needs."

44. In November 2019, Mrs X wrote to the Council. She said:

“I would like a breakdown of how my hours have been evaluated in relation to my daily needs so I can understand how these hours have been deemed to be sufficient to meet my daily needs.”

45. There is no evidence the Council provided this information.
46. After her review in 2020, Mrs X asked again. In response the Council said:

“As stated previously, as you chose to receive a cash personal budget, I do not provide a specific breakdown of how the allocated budget should be used but there is sufficient funds to meet the outcomes identified at your review. The cash personal budget can be used flexibly to meet your identified and eligible needs over the 7 day week.”

47. The Care and Support Statutory Guidance says:

“Regardless of the process used, the most important principles in setting the personal budget are transparency, timeliness and sufficiency. This will ensure that the person, their carer, and their independent advocate if they have one, is fully aware of how their budget was calculated, that they know the amount at a stage which enables them to effectively engage in care and support planning, and that they can have confidence that the amount includes all relevant costs that will be sufficient to meet their identified needs in the way set out in the plan.” (Care and Support Statutory Guidance 11.24)

48. Mrs X asked for clarification in the form of an example of how she could use her hours to meet her needs. There is no evidence the Council provided this. This is fault. Mrs X did not have “confidence that the amount includes all relevant costs that will be sufficient to meet [her] identified needs”. This is an injustice to Mrs X.
49. In response to my enquiries, the Council provided me such a breakdown. Had it done so earlier, Mrs X might have better understood what the Council meant when it said she should use her budget “flexibly”.
50. The Council expects Mrs X to use her hours flexibly. By this, it means she should spread her support out over the day and week to meet all her needs. Mrs X says it isn’t realistic for her PA to come for an hour and half in the morning, leave, and return for half an hour in the afternoon, then return in the evening, as would likely be the case if the Council commissioned her care.
51. The Care Act says the personal budget should be the “cost to the local authority of meeting the person’s needs.” When the Council intends to meet needs with direct payments, it must consider the additional costs that might arise. The Council’s RAS makes allowance for the additional costs of becoming an employer when it produces a budget.
52. The breakdown the Council provided in response to my enquiries shows how the hours in the personal budget can meet Mrs X’s eligible needs.
53. Mrs X made the choice to receive Direct Payments. It was, and remains, open to her to have her care commissioned directly by the Council or to employ a different PA to meet her needs within her personal budget.

It took the Council too long to respond to requests for reviews of her care and support

54. I do not find fault with the Council for the time taken to review Mrs X’s needs.
55. There was a delay in March 2019 because Mrs X requested an advocate. It took a few weeks for the advocacy service to allocate an advocate. This delay is not the fault of the Council.
56. After the advocate was allocated, there was a delay before the Council completed the new assessment. The records show this was due to staff leave and the advocate’s availability. This is not fault.

The Council has not properly considered the impact of COVID-19 on her husband’s ability to provide informal care and support

57. Mr X has a carer’s assessment. The Council reviewed this in July 2020. It detailed the impact of COVID-19 on Mr X’s ability to care for Mrs X. In particular, the additional responsibilities he now had in supporting his parents and a sibling.
58. Providing more hours in Mrs X’s personal budget is not the only way for the Council to support Mr X as a carer.
59. The Council offered to refer Mr X to the Carer’s Sitting Service. This service would provide someone to be with Mrs X so Mr X could attend to other responsibilities, or enjoy some leisure time, without worrying about Mrs X being alone. However, Mr and Mrs X made the choice not to pursue this service due to the risks posed by COVID-19.
60. Therefore, I find the Council is not at fault in how it considered the impact of COVID-19 on Mr X’s ability to provide informal care and support.

The Council took too long to deal with her complaint

61. Mrs X complained to the Council in December 2019. The Council allocated an Investigating Officer (IO) that same month.
62. Mrs X and the IO were in communication by email between December 2019 and April 2020. Mrs X agreed to a schedule of complaint in April.
63. It took the IO until August 2020 to complete the Council’s investigation of the complaint. In the report, the IO acknowledges the delay and says this was because of “the additional impact on the investigating officer due to the Covid19 pandemic.” The IO says they told Mrs X about the likely timescale for the investigation in April.
64. The Ombudsman issued guidance to councils on Good Administrative Practice during COVID-19. In it we recognised that “complaint handling capacity will probably be reduced for a time”. We advised councils to be realistic with complainants about the timescale for a response and to keep them informed of progress.
65. Although it took the Council a long time to investigate Mrs X’s complaint, part of the delay was due to the time it took for Mrs X to agree a statement of complaint. The further delay was due to the impact of COVID-19. The Council followed our guidance for communicating with Mrs X about the delay. Therefore, I do not find fault.

Conclusion

66. I have not found fault with how the Council:
• Assessed Mrs X’s eligible care and support needs
• Responded to Mrs X’s request for a review of her needs
• Considered the impact of COVID-19 on Mr X’s ability to provide care
• Dealt with Mrs X’s complaint.
67. I have found fault in the Council’s failure to consider Mrs X’s wish that Mr X not be involved in her personal and continence care in 2019. I find that had it done so, the Council would have increased Mrs X’s weekly personal budget by five hours a year earlier. As a result, Mrs X spent a year without means to access support to maintain her dignity. This is a significant injustice to Mr and Mrs X.
68. The Council’s failure to provide Mrs X with more information about how it decided her personal budget was enough to meet her needs is fault. This meant she did not understand how her personal budget was calculated or how the Council expected her to use it to meet her needs. This is an injustice to Mrs X.

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Agreed action

69. To remedy the injustice from the faults I have identified, the Council has agreed to:
• Apologise to Mrs X in writing
• Apologise to Mr X in writing
• Pay Mrs X £750 in recognition of her avoidable distress and uncertainty
• Pay Mr X £400 in recognition of his avoidable distress
70. The Council should take this action within four weeks of my final decision.
71. The Council should also take the following action to improve its services:
• Remind relevant staff that all service users should understand how their personal budget can meet the needs in their care plans, whether their care is commissioned by the Council or through direct payments.
72. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

73. I have completed my investigation. There is some fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman