Summary: Mrs X complained about the way the Council reassessed her adult son Mr S’s care needs and about its failure to cover the cost of an increase in the care provider’s hourly rate. The Council was at fault. It delayed reassessing Mr S and has not shown how the revised budget is sufficient to meet Mr S’s needs. It has not backdated the direct payments sufficiently leaving Mr S in debt to the care provider. The Council has agreed to apologise and make a payment to Mrs X to acknowledge the frustration the faults caused her. It has also agreed to pay the backdated amounts owed to the care provider and Mr S, and to produce evidence to show how the budget is sufficient to meet Mr S’s needs.

The complaint

1. Mrs X complains the Council:
1. reassessed her son Mr S’s care needs which resulted in a significant reduction in his support hours without any change in his care needs. Mrs X says the reassessment was completed without her input and without regard for her son’s views and preferences. It failed to include any support hours for her son’s established social and leisure activities or for visiting friends and family and failed to consider his medical conditions and the needs arising from these. It also relied on the use of shared hours with other household members without their agreement or proper consideration of the feasibility of this. This has caused her and Mr S distress and means the budget is not sufficient to meet Mr S’s eligible care needs.
2. unfairly backdated the reduction in support hours to the date of the needs’ assessment without giving any notice period, which meant the budget was insufficient to meet the hours of care already provided by the care provider based on Mr S’s previous care package.
3. delayed increasing the direct payments to reflect the care provider’s increase in its hourly rates, and then failed to backdate the increase in payments even though it had agreed to do so. This has caused her and Mr S distress and means they owe money to the care provider which is putting the care package at risk.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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. 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)
4. 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

5. I have considered the information provided by Mrs X and have discussed the complaint with her on the phone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

Relevant law and guidance

7. A council must carry out an assessment of any adult who seems to need care and support. 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 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)
8. 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. 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.
9. 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) 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.
10. The Care and Support Statutory Guidance sets out that ‘the plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. However, local authorities should be aware that a ‘proportionate’ plan does not equate to a light-touch approach, as in many cases a proportionate plan will require a more detailed and thorough examination of needs, how these will be met and how this connects with the outcomes that the adult wishes to achieve in day-to-day life’.
11. 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.
12. The Care and Support Statutory Guidance sets out the importance of having a consistent method for calculating personal budgets that provides an early indication of the appropriate amount to meet the identified needs to be used at the beginning of the planning process. It goes on to say that ‘complex resource allocation system models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as in the case of deaf-blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS [resource allocation system] model is being used, local authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs.’
13. The guidance says ‘regardless of the process used, the most important principles in setting the personal budget are transparency, timeliness and sufficiency. It goes on to say ‘The local authority should also explain that the initial indicative allowance can be increased or decreased depending on the decisions made during the development of the plan. This should prevent disputes from arising, but it must also be possible for the person, carer or independent advocate (on the person’s behalf) to challenge the local authority on the sufficiency of the final amount’.
14. The Care and Support Statutory Guidance sets out that authorities should conduct a periodic review of the care and support plan. It says ‘The periodic review should be proportionate to the needs to be met, and the process should not contain any surprises for the person concerned. Periodic reviews and reviews in general must not be used to arbitrarily reduce a care and support package. Such behaviour would be unlawful under the Act as the personal budget must always be an amount appropriate to meet the person’s needs. Any reduction to a personal budget should be the result of a change in need or circumstance’.
15. 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)

What happened

16. Mr S has severe learning difficulties associated with Down’s syndrome, autism and other medical conditions. He has lived in supported living accommodation with two other men for around 10 years. He receives direct payments for his care and support provision, and these are managed by his parents Mr and Mrs X. His direct payments provided 87.5 hours of care per week plus sleep-in night care for seven days, shared with one of the other residents. Mr and Mrs X use the direct payments to employ a care agency to provide Mr S’s care and support.
17. In April 2019 the care agency increased its hourly rates. This was in line with an increase the Council had agreed for Council commissioned care packages.
18. Mrs X contacted the Council in May 2019 to advise it of the increase and to request that Mr S’s direct payments be increased to fund the increase in charges with effect from 1 April 2019. The Council advised Mrs X that it would not automatically increase the direct payments but that it would review the care package to assess whether the increase was required. It acknowledged it had last assessed Mr S’s needs in 2017.
19. In August 2019 the social worker met with Mr S, Mrs X and the manager of the care agency to carry out a review. In the review they noted Mr S enjoyed living in his current accommodation. He had an active social life which included dancing twice weekly, volunteering at two placements, attending gardening club and another club based at the YMCA. He required support of one staff member with travel. He also had a girlfriend and staff supported them to go out for a meal occasionally. The social worker noted that ‘as part of this review the calculated support hours tool for direct individual care hours document needs to be completed to give a clearer in-depth [sic] of individual care needs. The supported living accommodation has requested an uplift within the hourly rate of the direct payments’.
20. Mrs X contacted the Council by email in April 2020. She complained she had not had any contact from the social worker since the review in August 2019. She said Mr S’s care needs had not changed but the care agency had increased its rates so she was in debt to the care agency. She said from 1 April 2020 the agency’s rates were increasing again. She requested as a matter of urgency that the review of care rates took place and back payments settled. Around this time a new management team took over the team and decided a reassessment was appropriate.
21. Following this the social worker updated the case and telephoned Mrs X. They advised they assessed Mr S as needing 72 hours per week. This included a share of waking nights support as the Council no longer supported sleep ins. Mrs X was unhappy and asked to see the supported tools document but the social worker said they could not provide this. Mrs X also made a formal complaint to the Council.
22. In late May Mrs X emailed the Council. She was unhappy that the request to have the direct payments rates updated was now 12 months old and had not been actioned.
23. During June 2020 the social worker arranged to meet with the manager of the supported living accommodation and with a Learning Disability Occupational Therapist to gather further information about Mr S’s needs.
24. In early July the Council responded to Mrs X’s complaint about the delay in the direct payments uplift. It accepted the uplift was not conducted in a timely manner and apologised for it. The response said it agreed to the request to backdate the increased hourly rate. It said it was committed to resolving this as soon as possible. It also accepted the social worker had not kept Mrs X updated and apologised for this. It considered a reassessment was required due to the changes in circumstances. Mrs X remained unhappy and ask that the complaint be reviewed.
25. In July 2020 the Council started completing a needs assessment. This identified Mr S had eligible needs in most domains. He required support with daily living tasks seven days per week and at all times required support with travelling due to high risks of harm. He required support accessing the community for work and pleasure and shared waking night support (the Council no longer funded sleep-in night support). The overall outcome was no change in the long-term support provided to Mr S. The social worker was unable to arrange to discuss the assessment with the manager of the supported living placement until August as the manager was on leave.
26. At the Council’s request the care agency provided a breakdown of the invoices it had issued to Mrs X since 1 April 2019, when it increased its hourly rate. Mrs X had continued to pay at the previously agreed rate. This meant, between 1 April 2019 and 29 June 2020 there was £17,875.15 remaining owed to the care provider. In that time Mr S had also paid an increased amount to the care provider to cover some of the costs which amounted to £3,381.84.
27. The notes record, in late July 2020 the social worker completed the first calculated support hours tool which gave an outcome of 68 hours per week for Mr S.
28. The social worker telephoned Mrs X in early August 2020. They confirmed they had requested back payment to 1 April 2020 of 87.5 hours at the higher rate plus the payment for shared nights. The social worker told Mrs X the person centred plan and activity charts provided to them by the care provider required updating. The social worker apologised for the lack of communication.
29. In August 2020 the OT noted in the case records that it was likely the three residents could have more shared hours predominantly in the house, but the provider was refusing to accept the outcome. They noted further OT work was required to support the social worker with determining the package of care. They considered observational assessments were necessary to assess the potential for the three residents to share hours within the home and community. However, the OT had been unable to visit to assess previously due to the COVID-19 pandemic. They arranged to visit in mid-August 2020 with further visits in late August and mid-September 2020. The care agency provided the social worker with an updated timetable of activities for Mr S.
30. The Council responded to Mrs X’s request for a review of the complaint in August 2020. It explained direct payments are not automatic. It had reviewed Mr S’s needs and said once this was completed it would address any shortfalls identified in the direct payments. It apologised the social worker had not kept Mrs X updated and recognised confusion had occurred around the issue of an ‘uplift’ (increase) in the direct payment. It explained there were different contractual arrangements for Council commissioned care. It stated its policy was not to share the care support hours tool. It advised that any payments prior to April 2020 were being looked at separately as it needed to see any deficit in the account and demand notices from the provider.
31. In late September 2020 the OT and social worker completed the care hours tool document. They assessed Mr S as requiring 71 hours of support per week which included a share of waking nights. Following this the social worker spoke to Mrs X to advise they were completing the needs assessment. Mrs X wanted to make an appointment to discuss this and the social worker arranged this for early October.
32. In late September the social worker contacted the direct payments team to reduce the direct payment to Mr S to cover 71 hours per week.
33. In early October the social worker telephoned Mrs X and explained they had already completed the assessment but would use the time for her input to support planning. The social worker’s notes record Mrs X took part in support planning. The Council notified Mrs X of the reduced direct payments. The completed assessment noted Mr S liked where he was living and he wanted to remain there. Mr S was eligible for support under most domains. It noted he required support with daily living tasks seven days a week, support to access the community for work and pleasure and support with travelling. It noted he needed waking night support.
34. On 9 October the social worker advised the care agency Mr S’s direct payments had reduced to 71 hours per week. The agency advised this would have a significant impact on Mr S’s daily life. It asked for a meeting to discuss the hours and support planning as day hours had been taken off Mr S. The social worker declined and explained the assessment was needs led and it was for Mrs X to support Mr S to manage the direct payment.
35. The Council wrote to Mrs X in late October to formally inform her of the outcome of the reassessment. It said Mr S’s appropriate weekly hours were 71 with waking night support included within this, with effect from 25 September 2020. It sent Mrs X copies of the support plan and care hours tool to ensure transparency. The council said it had initially decided to refund any identified deficit in the direct payment. However there was no deficit in the direct payment account or bank balances. It therefore considered the direct payments were sufficient to meet Mr S’s eligible needs and would not make a back payment.
36. In early November 2020 the Council wrote to Mrs X. It said it did not consider any back payment was due. It did not explain why. It noted Mrs X has concerns about the reassessment and said a review would be carried out after the first few weeks of its operation.
37. In late November 2020 the social worker arranged an on-line review meeting with Mr S, Mrs X and the care provider. Mr and Mrs X were unhappy with the calculations and could not understand why Mr S’s hours had reduced when his needs had not changed. The social worker acknowledged the hours should be 76 per week. They did not consider Mr S should be given more hours for activities because he had not demonstrated severe challenging behaviours that required specialist intervention, which would qualify for the higher band under the care hours tool.
38. The supported care hours tool document worked out hours for activities. The Council said the support plan was written for Mr S. Some sections were not fully completed because Mr S required more support from the agency to do this. The care provider commented the reduction would have a negative effect on Mr S’s well-being. They noted Mr S could choose and attend the activities and voluntary placement he enjoyed. Not all of his activities had to have paid carers. The care agency agreed to work with Mr S to support him with managing daily care routines and his social activities and to research community activities.
39. In the notes the social worker recorded Mr S was unable to contribute to the review because of his parents and the supported living provider’s involvement and disagreement of the care hours. They later spoke separately to Mr S for his input.
40. They also notified their manager of an error in the calculations on the supported tools document due to a typing mistake. The costings should have been for 76 hours per week not 71. It backdated the increased payments to 25 September 2020.
41. Mrs X wrote to the Council in early December. She was unhappy she had not been able to contribute to Mr S’s assessment, that the calculations were incorrect and she considered there was no clear explanation for the reduction in care hours. She considered the assessment ignored Mr S’s personal commitments and had failed to consider the impact on Mr S’s well being.
42. In its response the Council apologised for the calculation error. It said it had shared all the information with Mrs X and considered it had completed an appropriate reassessment. It had also completed a review of the care plan with Mrs X and the care provider. It referred Mrs X to the Ombudsman.

Findings

43. The Ombudsman’s role is to look at how a decision was made. If a decision was made without fault we cannot criticise it.
44. The Council was not at fault for deciding to reassess Mr S’s care needs when Mrs X requested an increase in the direct payments budget. It had been a significant period of time since he was last assessed, the Council no longer supported night sleep-ins and it had introduced a new assessment process.
45. Mr S’s needs assessment set out his needs for care and support and that these have not changed over time. It also recognised Mr S needed one person present at home or in the community to ensure his safety and that he should continue to receive care and support in a supported living environment. The Council used a supported hours tool to calculate the hours of care needed by Mr S. It is important that councils have a consistent method for calculating personal budgets to ensure fairness in care and support packages. However, guidance says councils must not take a ‘one size fits all’ approach. The Council was not at fault for using a specific tool but must be able to show resulting hours were sufficient to meet Mr S’s needs.
46. The Council has reduced Mr S’s hours from 87.5 hours per week (12.5 hours a day) with sleep ins to 71 hours a week including waking nights (equivalent to 7.5 hours per day). It later accepted the latter figure should have been 76 hours a day (equivalent to 8.1 hours per day) and it had made an error. That was fault. It backdated the revised direct payment to September 2020 to remedy the impact of this fault.
47. A council can reduce the amount of care hours provided if it can demonstrate it has properly considered a service user’s eligible needs and is satisfied these can still be met. Mr S receives a direct payment and the statutory guidance emphasises the importance of giving people ownership of their care planning and promoting flexibility in the use of direct payments to meet needs. The Council’s supported hours tool has calculated the weekly hours which it considers are sufficient to meet Mr S’s needs However, in reducing Mr S’s care hours, the Council has relied on the use of shared hours with other service users to meet Mr S's needs. It is not clear how these hours can be used to ensure Mr S’s eligible needs are met and this is fault.
48. The Council initially refused to provide Mrs X with a copy of the supported hours tool. This lack of transparency was fault and meant Mrs X could not understand or question how the hours of support were calculated. In addition, Mrs X was not involved in the needs assessment. The social worker did not discuss it with Mrs X until after it was finalised. This was fault and meant Mrs X was not able to question its contents.
49. There is no evidence the Council contacted Mrs X between the review in August 2019 and April 2020, which she requested an update on what was happening with the requested increase in the care package. This is fault. The Council accepted there were delays and failings in its communication with Mrs X and apologised for this.
50. There was further delay in getting the needs assessment and support plan completed. This was due to difficulties in arranging to meet with the care provider and in arranging visits by the OT. Given the impact of the COVID-19 pandemic I cannot say that all the delay was due to Council fault. However, it took from April 2019 to September 2020 to complete the assessment and this was far too long. The first year of this period of inaction could not be caused by COVID-19 related issues. The delay has caused Mrs X significant frustration and time and trouble.
51. Due to the COVID-19 pandemic Mr S has been unable to undertake most of the activities set out in his support plan and his needs continue to be met by the care provider. Therefore, I cannot say these faults have caused him to miss out on support.

Backdated the reduction in support hours

52. The Council reduced Mr S’s direct payments budget in late September 2020 but did not notify Mrs X or the care provider until early October, before a revised support plan could be put in place. This lack of notice was fault. This caused an injustice to Mr S because the care provider had already provided support to Mr S in line with the hours of support identified and agreed in his previous care package and his budget was not sufficient to cover the cost.

The increase in the care provider’s hourly rate

53. The Council originally set Mr S’s direct payments based on a support plan of 87.5 hours per week plus sleep in nights. His needs have not changed and Mr S continued to receive support in line with his agreed support plan and care package. The Council’s delay in reassessing Mr S’s needs and amending the care package meant the care package continued to be delivered based on the support plan in place at the time with a personal budget which was not sufficient to cover the cost of the care package.
54. In September 2020 the Council agreed to backdate the increase in the direct payments to April 2020 to reflect the increase in the care provider’s rates. However, it refused to backdate this to April 2019 when Mrs X first informed it of the increase. It has not explained its reasons for not backdating the increase further. This is fault. The care provider has invoiced Mrs X based on the new rates and has provided care in line with the agreed care package, in place at that time.
55. By agreement Mrs X has continued to pay the care provider what she can afford and in addition Mr S has made payments to the care provider to reduce the amount owed. This meant the direct payment account was not in arrears but Mrs X has accrued a significant debt with the care provider which puts the care package at risk and Mr S has had to use his own resources towards the cost of the care package.

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Agreed action

56. Within one month of the date of the final decision, the Council has agreed to:
• apologise and pay Mrs X £250 to acknowledge the frustration and distress caused by the delays and faults in Mr S’s care planning.
• pay the care provider the amount owed between April 2019 and March 2020 for the increase in the care charges.
• refund to Mr S the top up amount he paid between April 2019 and March 2020.
• amend the start of the revised budget to 16 October 2020 which is one week after it advised the care provider of the change.
57. Within two months of the final decision, the Council has agreed to:
• demonstrate how the hours of care it assessed Mr S as requiring can meet his needs. If the Council is unable to do this for the hours it has calculated Mr S needs, it should review and backdate the direct payments as appropriate.
• remind staff of the importance of involving family members in a needs’ assessment.
• remind staff of the need for transparency in determining support hours and discloses the support hours tools calculations where requested.
• review the reasons for the delays in this case and implement any service improvements it identifies as a result of this.
58. The Council says it will conduct a thorough review of the practice of how and when direct payments are increased to determine if they should be raised annually in line with inflation or to recognise the requirement of the living/minimum wage. This is welcomed. I recommend the Council does this within three months and provides the Ombudsman with evidence it has done this.

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Final decision

59. I have completed the investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman