Summary: It was not fault for the Council to suggest different ways in which Mr X might use his funded hours to achieve his desired outcomes.

The complaint

1. Mr X (as I shall call him) complains the Council did not consider his needs properly when reviewing his request for an increase in his budget. He says as a result he is unable to take up work opportunities.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’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

4. I considered the information provided by Mr X and by the Council. Both the Council and Mr X had an opportunity to comment on an earlier draft of this statement, and I took their comments into account before I reached a final decision.

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What I found

Relevant law and guidance

5. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person 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.
6. The Care Act 2014 gives councils 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.  The support plan must 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.
7. Everyone whose needs the council 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 enough to meet the person’s care and support needs.
8. The Care and Support Statutory Guidance says ‘The amount that the local authority calculates as the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan.’ It also says (11.29),’ The person should have the maximum possible range of options for managing the personal budget, including how it is spent and how it is utilised.’
9. The guidance also says, ‘In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties.’
10. The Access to Work scheme supports people with disabilities or illnesses to help pay for practical support to enable them to work.

What happened

11. Mr X lives alone. He has a number of conditions which means he is reliant on carers for most activities of daily living and for his personal care needs. In June 2019 the Council agreed a funding package which would support 95 hours a week of care. The Council pays this to Mr X via Direct Payments out of which he employs 4 carers to meet his needs over 12-hour shifts, 7 days a week, with a ‘contingency amount’ left over. Mr X said he had not realised the 2019 discussions were a review under the Care Act; he says the emphasis was on increasing his money so his carers would have a pay rise.
12. In July 2021 a social worker contacted Mr X to carry out a review of his needs. Mr X requested a virtual assessment of his needs so the social worker sent him a self-supported assessment (SSA) questionnaire to complete. In response to Mr X’s query as to how the review would proceed, she explained, ‘if the budget in place has no changes and working well, there has been no change in condition, need, or risk  - review is complete and set again for annual. If it's not meeting needs based on changes to someone's condition, and in order to meet needs the budget required is above the algorithm of the computer generated budget I have to submit to our resource forum (panel) to request any increase based on evidence of increased need, risk should the increase not be in place.’
13. Mr X completed the SSA and returned it with documentary and video evidence of his unmet needs. He requested an increase to 111 hours a week. He said he had work opportunities to be a freelance disability trainer but needed to be able to have carers available outside the current bandwidth of their 12-hour shifts, so he could (for example) attend school assemblies to give talks. He also said he would need additional hours so that 2 carers could support him to go on a camping holiday.
14. The social worker responded to Mr X. In view of his request for more funding, she asked how his needs had changed since the previous assessment on which his current support plan was based.
15. Mr X said, ‘For me to start various businesses, my carers would support me by helping me organise paperwork, to/from/at meetings, toileting/safety/money/food and drink/carry items to meetings/help me in/out/around buildings/ clothes on off/move furniture to help me park wheelchair and move around/check access before I try entering building/go upstairs to find person on my behalf/personal care and help me prepare before and after meeting etc etc. This is before I start earning money and before I can apply for Access To Work.’
16. The social work case recording notes the social worker sought advice from the Council’s legal department about Mr X’s request for an increase, before she pit recommendations to the Practice Forum. She said on the current evidence she believed the Council was meeting his needs as a disabled person but that Mr X argued he needed longer hours to support his work opportunities. She said she believed a one-off annual payment was justified to enable him to take holidays with 2 carers for support. She asked whether offering Mr X a higher package than would normally be offered was a sustainable option: she cited case law (R (McDonald) v Kensington and Chelsea Royal London Borough Council) in relation to his continence needs.
17. The social worker also discussed with Mr X ways in which he could use his existing budget more flexibly. She asked if he used continence wear. She asked what he used the ‘contingency’ money for and whether that could support longer shifts for his carers. She asked if he could use the existing hours more flexibly at times he was resting.
18. The social worker took Mr X’s case to the Practice Forum in September. She explained his request for an additional care package to support his wish to work. She said his care and support needs had not changed, but his aspirations and wish to work had. The Forum queried whether Mr X’s existing hours could be used more flexibly. The social worker said for her assessment she had identified two areas where hours could be used flexibly: ‘Falls - risk of injury.  Need can be met by pendant alarm/alert to summons support in the event. Continence - support to toilet on a regular basis - can be possibly met within time alone through continence wear/convene?’ but Mr X had indicated he needed support to assist with any unpredictable events (eg if he slipped off his chair); he would not consider continence wear under any circumstances. The Forum asked that Mr X produce a breakdown of each 24-hour period so it could understand exactly whet the carers did at present. It also asked the social worker to get legal advice.
19. The social worker emailed Mr X to ask him to say in more detail what the carers did during the 12-hour shifts, as she said his previous descriptions had been vague in parts. She asked about the use of continence wear and said ‘Would you be willing to support trial of continence wear/convene and use of the pendant alarm to assist in this area to manage continence needs and safety?’ She said she was aware of his views but added, ‘as an authority we need to be mindful and have an equality with everyone in how we support people to manage such needs’.
20. An officer from the legal department responded to the social worker. She said ‘If a review is carried out and it is concluded that (Mr X) does not require the additional hours then this should be made clear to him.  If the hours he is requiring would not be available to other service users in a similar position then they shouldn’t be available to him just on the basis that he might take it further’.
21. Notes of a further discussion with legal officers say ‘The time he already has - has to be equitable with other service uses, it’s reasonable to have less cleaning hours in place to afford him the time to save for work/auditions - also could ask organisations to be accommodating for times etc through disability grounds legislation and make provisions for times being offered for any said auditions/work - therefore able to be within his already in place support.’
22. Mr X responded to the social worker and sent details of his carers’ hours. The social worker said in reply she was not seeking to reduce his hours but could see where some of the current hours might be used differently. She pointed out that some of the tasks he identified – for example, taking the van for its MOT – were not daily or weekly tasks. She said he could ask employers (who also had a legal responsibility to meet the needs of people with disabilities) to consider arranging his appointments within the existing 12-hour shifts. She noted that if he was working, he would not also be doing the leisure activities he had identified.
23. The social worker also said, ‘I believe I have mentioned and do not wish to keep reiterating the option of using the pendant alarm and continence wear to support toilet needs/falls support - for say 2hrs of the day whilst carers/PA's complete on some days (when not at work/audition/ outing) a suggestion of a 'split shift' to support you saving up hours (within the 95 you have) to meet your longer days wants to go out longer/travel for auditions etc - however it is the use of these resources we and others use, and legally for people to consider to support their need in this area’
24. Finally the social worker said what she could not recommend was an additional 2 or 3 hours to be added to the weekly budget without evidenced need of how it would be used and a clear audit trail. She indicated she would take his case back to the Practice Forum to discuss with options to either leave the package as it was; increase the package as the Forum considered necessary in the light of his information, or maintain the existing package plus a one-off holiday payment, a one-off IT equipment payment, and a one-off payment to enable him to attend auditions or take up work opportunities.
25. The Practice Forum did not agree an increase in Mr X’s hours as the evidence available was that his support needs were currently being met. The social worker emailed Mr X to inform him.
26. The case recording notes the social worker’s closing summary that Mr X had significant needs but the existing care package was sufficient to meet them. She noted she had suggested ways in which the package could be used more flexibly to achieve Mr X’s aims but he had refused to consider them.

The complaint

27. Mr X complained to the Council. He said the social worker had virtually insisted he wear a ‘nappy’ to save hours. He complained she did not believe his needs and had only represented her own views to the Forum. He asked for a complete review of all the documents he had sent in support of his needs.
28. The head of services responded. She said the suggestion of a continence aid (a convene) had been made not because he had incontinence needs, but to enable occasional periods when he did not need to have carers available to assist with his toileting and could use his personal budget more flexibly. She said advice from the continence service was that there was no evidence such use would cause damage to his skin integrity. She said she was unable to uphold this part of his complaint ‘due to the suggestion being reasonable, equitable and a recommendation that would be provided to other residents within the Doncaster borough’.
29. The manager said the review had not shown any change to Mr X’s care and support needs. She said the social worker had accurately presented Mr X’s own views to the Forum but had to make her own professional recommendation.
30. The manager reiterated that Mr X’s aims could be met within his existing budget if it was used flexibly. She added that a one-off payment had been agreed for 14 nights’ sleep in allowance for his carers to enable them to support him on holiday.
31. In response to his request she offered an independent review.
32. In December 2021 a principal social worker wrote to Mr X after reviewing his complaint and associated documents. She said she agreed with the decision not to increase his hours. She added, ‘Your Direct Payment allows you control and flexibility over how the time is used, and whilst I do not wish to tell you how to achieve this, a level of prioritisation will be required. You mentioned gaining paid employment and I use this as an example of where you may choose to pursue this as a priority.’
33. Mr X made a further complaint in February 2022 after receiving a referral to the specialist incontinence service. He said he was not incontinent; had not asked for a referral and now felt he was being harassed by the Council.
34. The area team leader responded. She said the Council had not made such a referral although it had contacted the service for advice ‘and to explore any potential continence aid suitable and appropriate to allow you more ‘peace of mind’ and a ‘security measure’ through the night. In order to maximise your independence throughout the night.’ She reiterated it was part of the social worker’s role to review how care hours were used to meet Mr X’s outcomes and to consider the use of his available personal budget. She added that the social worker had suggested the use of a convene ‘which is a non-invasive continence aid which affords people increased independence rather than relying on carers through the night.’
35. Mr X complained to the Ombudsman. He said he had sent many detailed documents to the Council in support of his request for additional hours, but the Council did not appear to believe he had unmet needs. He says hie believes whatever evidence he gives to the Council, it will not change its view.
36. The Council says, in respect of the discussion about continence wear, ‘the wearing of a convene would negate the need for (Mr X) to have to call on carers through the night which he told us he was reluctantly having to do: many people wear convenes as a suitable aid which promotes dignity and independence’. It adds that the role of the social worker in her conversations with Mr X about the use of his hours was to try and increase his opportunities for employment and support his aspirations.

Analysis

37. It is not the role of the Ombudsman to decide on Mr X’s care hours, but to look at how the Council considered his request and reached its decision.
38. The Council considered in detail the documents which Mr X provided. It asked for additional information where necessary. His request was considered in depth and discussed twice at the Forum. There is no evidence of fault there.
39. It was not fault for the social worker to suggest different ways in which Mr X could use his hours flexibly, when the existing package already met his needs, although I recognise Mr X disagrees with that view.

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Final decision

40. I have completed this investigation. I find there was no fault in the way the Council reached its decision about Mr X’s care package.

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Investigator's decision on behalf of the Ombudsman