Summary: There was fault by the Council. It failed to take into account guidance in force during COVID-19 which allowed it to act flexibly and provide direct payments outside usual procedures. This was fault causing avoidable inconvenience and a financial loss to Ms X who paid for care from her own pocket. The Council needs to apologise, reimburse Ms X and give her a symbolic payment of £250 to reflect her avoidable inconvenience.

The complaint

1. Ms X complained the Council/ a social worker:
1. Reduced her planning budget (indicative personal budget) constantly and reduced her support hours, without first doing an assessment and did not properly explain the reason for reduction.
2. Told her she had to use one particular organization to hire personal assistants (PAs)
3. Used the Care Act Easements as an excuse for (a) and (b) when these were not enacted by the Council
4. Behaved inappropriately, was unprofessional and copied and pasted in her comments into the assessments instead of correcting inaccuracies.
2. Ms X said the Council’s fault caused her avoidable time and trouble and a financial loss because she had to use her own money pay a Personal Assistant (PA) because of the shortfall in her personal budget.

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What I have and have not investigated

3. As set out in paragraph seven below, we do not investigate every complaint. This includes complaints where a council has accepted fault and taken action which we consider remedies injustice. The Council’s response to complaints (b) to (d) was:
• Ms X had received wrong advice about having to use one named organisation to recruit PAs. She was free to identify her own PA.
• Care Act easements were not in place in East Sussex and the officer accepted they had made a mistake saying this. The reason for not allocating Ms X additional hours was because no agencies had capacity at the time.
• The social worker had researched Ms X’s health problems before carrying out the assessment. However, Ms X was the expert in her health. There was no need for the social worker to have done this research and she, her PA or her GP were the most appropriate people to seek information from.
• One of the social worker’s comments about Ms X caused an atmosphere of conflict, but there was no evidence they were aggressive or shouted, put her down or asked the same question repeatedly. Her advocate was present during the assessment and did not raise any issues. However, the Council apologised for the social worker’s approach and it had been discussed with them.
• The Council intended to amend her assessment to make it easier to read. It was important to highlight areas of disagreement. The amendments would not make a difference to the personal budget. The Council would make amendments and arrange for an amended copy to be sent to her.
4. My view is the Council’s response to (b) to (d) was appropriate. It addressed Ms X’s complaints giving reasonable explanations and upheld them. It apologised. I am satisfied with this response and would not make extra recommendations, as the apology is an appropriate remedy for any avoidable distress to Ms X.
5. Ms X complained to us in January 2022. This means complaints about matters from January 2021 to January 2022 are not late (see paragraph eight) and I have investigated them in relation to complaint (a). Issues before January 2021 are late, but I have investigated complaint (a) from March 2020 which is when the agency reduced Ms X’s hours. I consider Ms X’s disabilities affected her ability to deal with matters and getting advocacy or other support was problematic during lockdown. These are good reasons preventing an earlier complaint to us. I have not investigated events after January 2022 as these are after Ms X complained to us.

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The Ombudsman’s role and powers

6. 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)
7. We provide a free service, but we must use public money carefully. We do not start or may decide not to continue with an investigation if we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6))
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. 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

10. I considered the Council’s response to the complaint, documents in this statement and the Council’s response to our enquiries. A colleague discussed the complaint with Ms X’s advocate on the phone.
11. Ms 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

Relevant law and guidance

12. A council must carry out an assessment for any adult with an appearance of need for care and support. (Care Act 2014, section 9)
13. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
14. Having assessed a person as needing care and support, a council must apply national criteria to decide if a person is eligible for care and support (Care Act 2014, section 13(1))
15. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says 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 to the person. (Care Act 2014, sections 24 and 25)
16. The care and support plan must set out a personal budget. A personal budget is a statement 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, section 26)
17. An indicative personal budget or planning budget is a rough idea of the money needed to buy care to meet the person’s eligible needs based on local market averages.  It is an estimate that can go up or down in individual cases depending on the actual cost and availability of services.
18. There are three ways in which a personal budget can be used:
• 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 with support provided in line with the person’s wishes;
• As a direct payment (a direct payment is money a person gives to a council to meet agreed needs). (Care and Support Statutory Guidance 2014)
19. This complaint involves events that occurred 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 guidance.
20. The Coronavirus Act 2020 was a temporary law which came into force at the end of March 2020. It gave emergency powers to handle the handle the coronavirus pandemic. As part of this legislation, Care Act ‘easements’, were created to help local authorities prioritise care and support during the coronavirus outbreak. Only a few councils used easements and East Sussex County Council was not one of them.
21. Government guidance for all local authorities in force during the events of this complaint said:
• Continuity of care and support is essential whether arranged through direct payments or commissioned services. Most care and support cannot be deferred to another day without jeopardising people’s wellbeing and deferring could place a person at risk of harm
• The government expected councils to be flexible in all care and support services, including direct payments. (Guidance for local authorities and clinical commissioning groups in the delivery of direct payments and personal health budgets)
22. Other government guidance, also no longer in force, also emphasised the need for councils to respond flexibly during the pandemic and advised decision-makers to:
• Respond and adapt to changes as and when they occur such as in the event of changed levels of demand
• Review organisational practices and standard approaches that may obstruct flexibility. (Responding to COVID-19: the ethical framework for adult social care)

What happened

23. Ms X has long-term health problems causing exhaustion, pain and other symptoms. She is eligible for care and support from the Council which commissioned an agency to provide homecare for Ms X. Ms X had been receiving 12 hours a week of care and support for meal preparation, shopping and some administration and communication.
24. In March 2020, the agency told the Council it could only provide four hours for Ms X because of staffing pressures. A social worker carried out an assessment with Ms X. She remained eligible for social care funding. The social worker updated Ms X’s care and support plan noting the agency could only provide four hours of support a week due to demand.
25. In 2020 and 2021, there followed a series of draft amended assessments including Ms X’s comments and amended care and support plans with various planning and final budget figures. Ms X continued to have only four hours care and support throughout, though all the care and support plans said she required 12 hours. The records indicate Ms X’s advocate raised concerns about Ms X’s eligible needs not being met. Friends and a volunteer provided Ms X with some support temporarily.
26. Ms X’s advocate asked the social worker in February 2021 about Ms X using the eight unallocated hours to pay for a PA. She wanted to continue using the agency for four hours. The advocate reported Ms X was having problems communicating with others because of her health, but she had said she was not happy with the social care assessment and wanted to appeal it. The social worker told the advocate the care package would need to be considered by the funding panel if Ms X wanted a direct payment for eight of her hours because the costs were different.
27. Between May and July 2021, there was an email exchange between Ms X’s PA (on Ms X’s behalf) and her advocate. I summarise the main points below:
• Ms X’s PA confirmed receipt of the social care assessment which had Ms X’s comments. The social worker asked Ms X to respond within two weeks so she could progress the case to care and support planning. Ms X’s PA confirmed she had received it, but Ms X may not be able to respond within two weeks due to ill-health.
• The PA explained Ms X had been paying her (the PA) for five hours a week since September 2020. The PA said she was doing extra hours on top, unpaid.
• The social worker gave guidelines for the hours the Council would usually fund for shopping and administrative tasks and explained in Ms X’s case, these hours would be increased. The social worker said the Council would not give hours for housework or personal care because Ms X refused to have people in her property. And, backdated costs of the PA would not be considered.
• The social worker explained she wanted to meet everyone involved with Ms X to do work on Ms X’s care and support plan and had not had a response from the PA to some questions about what support they were providing. The social worker said Ms X could have a direct payment. The agency could continue to provide four hours but had no capacity for more than this.
28. At the end of July, Ms X’s advocate told the Council Ms X intended to appeal/complain about the assessment.
29. In September the social worker wrote to Ms X saying if she did not log her appeal within 14 days, the Council would finalise the assessment and budget.
30. The Council’s response to the complaint in October 2021 said:
• The four hours the agency provided met Ms X’s ‘basic needs.’ The help the agency could offer her was limited as she would not let staff into her home and would only let them do a few tasks.
• The planning budget was £192 in March 2020, reduced to £102 following an assessment in October 2021. After a review in December 2021, it was amended to £174.
• The care and support plan was12 hours a week for homecare. Agencies prioritised people who needed personal care during the pandemic. She had four hours a week consistently.
• It was aware she had been employing a PA privately.
31. In January 2022, the Council agreed Ms X’s personal budget at £204 (the same as in March 2020.) Because the PA’s costs were less than the agency’s hourly rate, this enabled Ms X to have 16 hours a week of care and support all provided by two PAs. I understand funding started on 24 January.
32. In response to our enquiries, the Council told us it was aware Ms X had been paying a PA privately from September 2020 to 24 January 2022 and it was willing to cover Ms X’s costs.

Was there fault and if so did this cause injustice?

33. There was fault by the Council. It failed to take into account the guidance from government in force during the pandemic as I have set out in paragraphs 21 and 22. This guidance allowed all councils to act flexibly and outside the usual formal stages for assessing needs, reviewing care and support plans and seeking funding approval. It stressed the importance of continuity of care for people and that decisions should not be deferred because of rigid processes. The Council’s failure to act flexibly meant Ms X was denied a direct payment which she could have used much sooner to arrange the care that the agency could not provide because of pressures on its services. This was fault causing a loss of service and a financial loss to Ms X because she had to employ a PA privately.
34. I have taken into account the exceptional pressures on services during the pandemic, but the Council still had a duty to meet Ms X’s eligible needs and it failed to do so meaning she had to source help from her friends and a volunteer. And, from September 2020 until January 2022, Ms X paid for a PA from her personal funds. This was fault causing avoidable inconvenience and a financial loss.
35. I note also that there were several indicative/planning budget figures. As I have explained above, my view is there was no need for the Council to have gone through the Care Act assessment/review/care and support planning process when government guidance allowed it to be flexible and just put in place a direct payment. There was no evidence Ms X’s needs had changed, she just had an issue with her care provider not being able to supply her assessed hours. This confusion over figures was avoidable in my view.

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Agreed action

36. The Council has offered a payment of £7200 to reimburse Ms X the cost of the PA’s fees she paid from her own funds. This is an appropriate way to redress her financial loss.
37. Within one month of my final decision, the Council will:
• Apologise to Ms X for the avoidable inconvenience complaining and pay her £250 to recognise this
• Pay her £7200 to reimburse her PA’s fees.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. There was fault by the Council. It failed to take into account guidance in force during COVID-19 which allowed it to act flexibly and provide direct payments outside usual procedures. This was fault causing avoidable inconvenience and a financial loss to Ms X who paid for care from her own pocket. The Council needs to apologise, reimburse her and give her a symbolic payment of £250 to reflect her avoidable inconvenience.
40. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman