Summary: Mr Y complains about the Council’s actions in relation to the assessment and support planning for his partner, Ms Y. He also complains about problems with Ms Y’s direct payments. We find fault in all parts of the complaint we have investigated. The Council will apologise, pay £500 and review Ms Y’s case.

The complaint

1. The complainant, Mr Y, complains on behalf of his partner, Ms Y, via a representative. He says the Council has:
1. failed to explain how it calculated the budget to meet Ms Y’s care and support needs;
2. failed to make the necessary direct payments in September 2020, causing a shortfall;
3. failed to amend Ms Y’s budget to reflect increases in the care agency’s pay rates;
4. failed to inform him about deductions from and payments into Ms Y’s care account in 2020;
5. made several factual errors in Ms Y’s assessments and care plan and failed to make the necessary amendments and updates;
6. delayed in responding to complaints and failed to respond to all complaints made.
7. failed to provide its rationale for not permitting use of direct payment funds for an iPad which he says helps to meet Ms Y’s assessed care and support needs

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What I have investigated

2. I have investigated all elements of Mr Y’s complaint except for complaint d) for the reasons which I have explained at the end of this statement.

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The Ombudsman’s role and powers

3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
4. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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

7. I discussed the complaint by email with Mr Y’s representative and considered any information they provided. I also made enquiries of the Council and considered its response, alongside any relevant law, guidance and policies.
8. I considered whether to exercise discretion to investigate matters which Mr Y was aware of more than 12 months before approaching the LGSCO in March 2022. Some of the issues he raises date back to 2018.
9. It is my view that it was reasonable for Mr Y to have approached us within a year of the older matters complained about, and for this reason I will limit the scope of my investigation to consider matters from February 2020 when Mr Y received the assessment complained about. Due to the Council’s delays, I do not consider Mr Y could have reasonably complained about this sooner.
10. I issued a draft decision and invited comments from Mr Y and the Council. I considered any comments received before making a final decision.

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What I found

What should happen

11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The plan should consider what needs the person has, what they want to achieve, what they can do by themselves with existing support and what care and support may be available in the local area. The Council must involve any carer the adult has. The plan must include a personal budget.
12. The personal budget gives the person clear information about the money assigned 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. It should confirm the final amount of the personal budget 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.
13. Where somebody provides, or intends to provide, care for another adult and it appears the carer may have needs for support, the Council must carry out a carer’s assessment. The assessment must seek to find out the carer’s needs for support and the sustainability of the caring role itself.
14. The Care Act says the Council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the Council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. Part of the planning process should be to agree how the carer will use the personal budget to meet their needs.
15. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The Council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.

What happened

16. In 2013 Ms Y suffered a ruptured aneurysm and contracted a brain infection. This left Ms Y with left-sided paralysis, double incontinence, mobility difficulties and the inability to make significant decisions due to a decline in her mental capacity.
17. Mr Y has power of attorney to make decisions on behalf of Ms Y, both in relation to her health and welfare and property and financial affairs.
18. In addition to care and support provided by Mr Y, Ms Y also receives care at home from a care agency funded by direct payments. The complaint which Mr Y makes on Ms Y’s behalf relates to various aspects of the Council’s involvement in the assessment and provision of Ms Y’s social care.
19. I will deal with each complaint in turn.

Complaint a) failure to explain budget calculations

20. Mr Y says he is unclear about how the Council calculated Ms Y’s direct payment budget and has consistently received different amounts. He complained to the LGSCO when the Council did not provide the clarification he asked for.
21. Based on the information seen, there are discrepancies in the personal budget section of Ms Y’s current support plan which the Council needs to review. For example, on page 21 the Council states Mr Y is to receive, “rolling respite calculated at 72 hours per week @ 4 weeks a year = £5,356.80”. However, on page 25 the Council says, “annual respite for replacement care £5,184.00 personal budget”. This is repeated on page 26, with a further mistake on page 27 which says the annual respite budget is £289,036.80.
22. It appears the Council interchangeably used an hourly rate of £18 or £18.60 in its calculations. Therefore, the Council has not made clear how much Mr Y’s respite budget amounts to and how it calculated that budget. This is fault causing injustice which the Council will remedy with the actions recommended at the end of this statement.

Complaint b) failure to make direct payment in September 2020

23. On 24 October 2020 Mr Y emailed the Council to advise that the September direct payment of £6844 did not enter Ms Y’s account. In its response to Mr Y’s complaint, the Council acknowledged it missed a payment of £6844 which should have been paid into Ms Y’s account in September. Mr Y’s representative confirmed the Council authorised and paid the missing amount into Ms Y’s direct payment account but says the Council has not offered an explanation as to why this happened.
24. There was administrative fault by the Council when it failed to deposit the necessary direct payment in September 2020. The Council says this was a payment error. I do not consider there is any further explanation it can provide. However, the error caused injustice to Mr Y in the form of avoidable distress, frustration and time and trouble which the Council will remedy with the actions listed at the end of this statement.

Complaint c) failure to amend budget in line with agency increases

25. In June 2020 Mr Y’s representative wrote to the Council expressing several concerns about Ms Y’s support plan. One of the issues raised was that Ms Y’s personal budget allowed for a care agency to be commissioned at £18 per hour, however from 1 April 2020 the actual rate of Ms Y’s chosen agency is £18.60 per hour. The hourly rate increased again in April 2021 to £18.72.
26. The Council wrote to Mr Y on 19 May 2021 to confirm that, “your direct payment has been increased due to rising agency cost – this is backdated to 05/04/21. Last payment was 14/05/21 that is £6840. This is old rates £18.60 p/h. New rates are £18.72 p/h”.
27. Enclosed with the letter was a copy of Ms Y’s support plan. The section entitled ‘weekly care plan’ shows the hourly rate is £18.60 rather than £18.72 as stated in the covering letter. In the following section, Mr Y’s respite costs are sometimes calculated based on care being chargeable at £18 or £18.60 per hour instead of £18.72.
28. In response to our draft decision the Council confirmed it has already applied and backdated the 2021 hourly rate. Mr Y will have the opportunity to discuss any concerns about the Council’s calculations as part of the wider review it will undertake.

Complaint e) factual errors in Ms Y’s assessment and support plan

29. Mr Y received copies of the Council’s assessment and care and support plan for Ms Y on 20 February 2020. Mr Y raised concerns about the accuracy of the documents, via his representative, and the Council agreed to arrange a meeting to discuss those concerns. The meeting took place on 26 June 2020. The Council says it does not hold any formal record or minutes of the meeting.
30. Mr Y’s representative attended the meeting. They say the Council agreed to write to Mr Y within two weeks to provide a full response to all concerns raised. The representative says the Council wrote to Mr Y ten months later in April 2021. The Council then issued an amended version of the care plan, which Mr Y received on 21 May 2021. He raised concerns about the following:
• the new support plan says the Council has increased Ms Y’s direct payment with effect from 5 April 2021 however this is not reflected in the payment received into Ms Y’s account on 14 May 2021.
• one of the statements in the plan needs clarification due to the odd placement of question marks.
• Mr Y remains unclear about how the Council has calculated Ms Y’s budget.
• the new support plan makes reference to Funded Nursing Care (FNC) but this is irrelevant as Ms Y is not in residential care.
• three pages of the support plan are missing.
• the Council has not signed the new support plan.
31. Still dissatisfied, Mr Y’s representative wrote to the Council again. The Council responded in September 2021. The parts relevant to this investigation said:
• the Council apologises for the delay in responding and for the lack of communication from the direct payment service.
• the delay in sharing Ms Y’s assessment and care plan was due to the Council waiting for reports from the NHS and Occupational Therapist (OT).
• the Council has completed the necessary amendments and sent the missing pages to Mr Y’s representative.
• the Council applied an uplift in direct payments from £18 to £18.60 per hour.
• the question marks in the support plan are a result of a system error for which the Council apologises.
32. The complaint made to the LGSCO on behalf of Mr Y listed the errors in Ms Y’s assessment and support plan:
• the plan wrongly said that Ms Y had previously spent time in a residential care home in Poland. Mr Y says this is not true.
• the immigration status of Ms Y is incorrect as it refers to her being an asylum seeker, rather than having granted settled status. Mr Y’s nationality is also incorrect.
• the date of Ms Y’s arrival into the UK is incorrect.
• Ms Y’s education history is incorrect.
• Mr Y’s name is incorrect despite him informing the Council of his name change.
• the Council has not signed the care plan.
33. I uphold this part of Mr Y’s complaint because it is evident there were several errors in Ms Y’s assessment and support plan and it took the Council too long to amend these, despite some of them requiring only simple corrections. I consider this caused Mr Y some avoidable time and trouble. However, I am not persuaded these errors had any bearing on the outcome of the assessment and the personal budget allocated to meet Ms Y’s assessed needs.

Complaint f) fault in complaint handling

34. The records show the Council took three months to respond to Mr Y’s complaint. This is significantly longer than the timescales outlined in the Council’s published process, which says that complaints about adult social care will be investigated and responded to within 25 working days.
35. Having reviewed the available evidence, it is clear the Council’s communication with Mr Y and his representative frequently falls below the standard we would expect. Often the Council’s responses to queries were very delayed and incomplete, sometimes creating further confusion.
36. The delay in the Council’s complaint handling and its general communication has caused avoidable time and trouble for Mr Y which it will remedy with the actions listed at the end of this statement.

Complaint g) refusal to allow use of funds for technology to help Ms Y

37. Mr Y says he asked the Council whether Ms Y could use some of her direct payments to fund an iPad. He says this technology would help with Ms Y’s cognition and self-confidence as the iPad would allow Ms Y to listen to music, play games and do colouring. Mr Y says these activities are recommended by Speech and Language therapists.
38. Mr Y’s representative says the Council’s decision not to allow the purchase of an iPad is contrary to statutory government guidance, which says that social care support can be in many forms, such as assistive technology, and that any surplus direct payments should be used as needed to meet the individual’s personal outcomes.
39. The Council’s ‘Direct Payment Policy’ says the following:

“Customers or their authorised/nominated person shall only use sums paid by means of a Direct Payment for the sole purpose of achieving the identified outcomes of the Care and Support Plan/EHCP”

“Newham Council cannot draw up an exhaustive list as to how customers can/cannot spend their Direct Payment. Each case must be decided on its own merits… ”

“If for any reason a customer would like to spend their Direct Payment on other outcomes than outlined in their Care and Support Plan they will need to contact the Direct Payment team for written agreement prior to purchase. Any change in spend may require a review of the Care and Support Plan”

40. In response to our enquiries, the Council said, “The money available via the assessed needs are budgeted for securing care for her and not for her to buy an iPad. Ms [Y] is encouraged to use her PIP money to buy an iPad or contact charities for support in this area. There is no documented record of Ms [Y] ever raising to the issue of wanting to purchase an iPad using her direct payment”
41. I uphold this part of Mr Y’s complaint. There is evidence that Mr Y’s representative queried the possible purchase of an iPad in their correspondence with the Council, so I find the Council is incorrect to say this request has not been raised. Furthermore, the Council’s approach is contrary to its own policy which says that requests for purchases to meet outcomes other than those in the support plan can be considered. The Council therefore needs to properly consider Ms Y’s request. The Council will remedy the injustice this fault caused with the actions listed below.

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Agreed action

42. Within four weeks of my final decision, the Council has agreed to:
• Apologise to Mr Y and Ms Y for the impact of the fault identified in this statement.
• Pay £500 for the combined distress caused by the uncertainty, frustration and time and trouble identified in this statement.
43. Within eight weeks of my final decision, the Council has also agreed to:
• Review Ms Y’s support plan and amend all identified errors. This includes any discrepancies in the calculation of the personal budget for Mr Y’s respite. The Council will invite Mr Y, Ms Y and their representative to meet in person to enable their participation in the review.
• If the review finds that errors in the calculations have caused financial loss to Mr Y and Ms Y, the Council will arrange to make the appropriate backdated payments.
• Consider Ms Y’s request to purchase an iPad using her direct payment funds. The Council will properly document its considerations and write to Mr Y setting out its decision.
• Remind staff dealing with adult social care complaints of the timescales outlined in the Council’s complaints procedure.

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Final decision

44. I have completed my investigation with a finding of fault causing injustice for the reasons set out in this statement. The agreed actions are an appropriate remedy for the injustice caused by fault.

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Parts of the complaint that I did not investigate

Complaint d) failure to tell Mr Y about direct payment deductions and payments

45. When Mr Y approached the LGSCO via his representative, he complained about a payment error which happened in November 2020. Upon speaking with the representative, and seeking further clarification, it became apparent that the payment error occurred in May 2018. This is supported by the direct payment statement which shows a large payment entering Ms Y’s account on 24 May 2018 before being debited five days later.
46. In my view, it is now too late for the LGSCO to investigate this, and we have not exercised our discretion. This is because Mr Y would have been aware of the payment issue in 2018 as evidenced by the account statement. Mr Y has received professional representation since 2019 and, in my view, he had the means to complain to the LGSCO within 12 months of the error occurring.

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Investigator's decision on behalf of the Ombudsman