London Borough of Enfield (22 000 183)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 22 Mar 2023

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s actions in relation to his mother, Mrs B’s, care and support needs. There was no fault in how the Council decided Mrs B’s personal budget. However, the Council was at fault for delaying assessing Mrs B’s care and support needs during Covid-19 when she was unable to attend her placement at a day care centre. The Council has already apologised to Mr X for its delay and made a payment to reflect the additional support which was delivered to Mrs B during this time. However, we also found the Council poorly communicated with Mr X regarding Mrs B’s personal budget payments when the day care centre was closed. The Council has agreed to make an additional payment to reflect this.

The complaint

  1. Mr X complained about the Council’s actions in relation to his mother, Mrs B’s, care and support needs. Mr X said the Council:
    • did not properly consider the change to Mrs B’s care and support needs when she was unable to attend her placement at a day care centre during Covid-19 and lockdown restrictions;
    • paid for Mrs B’s placement at the day care centre with her direct payment account, when the day care centre was closed; and
    • failed to increase Mrs B’s personal budget to allow additional required support to meet her needs.
  2. Mr X said he and his family have been significantly distressed and frustrated by the matter. He wants the Council to acknowledge it did not properly consider the change in Mrs B’s care and support needs when the day care centre was closed and he wants the Council to review its decision in relation to Mrs B’s personal budget.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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. In this case, I consider there are good reasons for me to use my discretion to investigate matters since March 2020 when Mrs B could no longer attend the day care centre. This is because the Council delayed completing an assessment of Mrs B’s care and support needs, as it has been explained in my decision. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

  1. I spoke with Mr X and considered the information he provided.
  2. I considered the information provided by the Council.
  3. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Care and support needs assessments

  1. 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. It must also involve the individual and where suitable their carer or any other person they might want involved.

Care plans

  1. 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 needs 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 council must involve any carer the adult has. 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.

Personal budgets

  1. 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.
  2. Councils must consider a person’s preferences. However, recent case law (R (Davey) v Oxfordshire County Council) found while a claimant’s preferences had to be considered, these had to be distinguished from their needs for care. The court of appeal found the Council’s duty is not to achieve the outcomes which the individual wishes to achieve but to assess whether the provision of care and support would contribute to those outcomes. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.
  3. There are three main ways in which a personal budget can be administered:
    • as a managed account held by the council 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) with support provided in line with the person’s wishes; or
    • as a direct payment.

Direct payments

  1. Direct payments are monetary payments made to individuals who ask for them to meet some or all their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.

Background

  1. Mrs B lives at home with her son, Mr X and his family including his wife, Mrs X.
  2. Mrs B has complex health needs and as a result, requires support with her activities of daily living such as her mobility and personal care. Mrs B’s daughter in-law, Mrs X, is Mrs B’s private carer. Until mid-March 2020, Mrs B attended a day care centre every week between Monday to Friday where she received further support.
  3. The Council funds Mrs B’s care and support package and Mrs B pays a contribution towards it. The Council provides Mrs B with a personal budget via direct payments and pays it into her direct payments account. Before Covid-19 and lockdown restrictions in March 2020, Mrs B’s personal budget was approximately £1039 and covered:
    • care and support in her home provided by Mrs X;
    • care and support provided by the day care centre;
    • an escort service to the day care centre; and
    • transport to get Mrs B to and from the day care centre.

What happened

  1. In March 2020, Mrs B’s day care centre closed until further notice because of Covid-19 and lockdown restrictions. Following the closure of the day care centre, the Council spoke with Mr X to establish if Mrs B was being supported at home. Mr X told the Council there was no problem and that he and his family were looking after Mrs B at home.
  2. However, in May 2020, Mr X contacted the Council and requested a review of the hours which were in place for Mrs X to support Mrs B. He said as Mrs B was at home Monday to Friday due to her day care centre being closed, Mrs X was providing her with more care and support and this was not reflected in Mrs B’s package of care. The Council’s records show it referred Mr X’s request to the relevant department in May 2020.
  3. In June 2020, Mr X asked the Council again to review Mrs B’s care hours at home. The Council’s records show it acknowledged Mr X’s request and that it would review the family’s role in supporting Mrs B whilst the day care centre remained closed.
  4. In November 2020, the Council completed an annual review of Mrs B’s care and support needs. Until November 2020, the Council had been paying the same amount of personal budget into Mrs B’s account for her care and support in her home and costs associated with the day care centre. The review established:
    • Mrs B’s current plan for her care and support in her home would continue;
    • the Council would remove the cost of the escort and transport services associated with the day care centre from Mrs B’s personal budget. The Council also clawed back the money associated with these services it had paid into Mrs B’s account since March 2020 as Mrs B had not used the services since then; and
    • the Council would continue to make payments to the day care centre. The Council said it had an agreement in place to continue to pay the day care centre despite it being closed to prevent it from permanently closing.

Following the review, the Council revised Mrs B’s personal budget. It was now £621.18.

  1. In March 2021, Mr X contacted the Council and said Mrs B’s care and support needs had increased and so he requested an interim review. Mr X also wanted to know if the Council would consider the additional care and support Mrs X had provided to Mrs B since the closure of the day care centre.
  2. In April 2021, the Council completed a further review of Mrs B’s care and support needs. The review established Mrs B’s care and support needs had increased and she therefore met the threshold for specialist residential care which would cost under £750.00 per week. However, Mr X wanted his mother to remain at home. The Council therefore agreed to provide a personal budget of £743.00 per week as the least restrictive option to support Mrs B.
  3. The Council acknowledged Mrs X had provided additional hours of care to Mrs B whilst the day care centre had been closed. It therefore gave Mrs X a lump sum payment to reflect 45 minutes of care and support she had delivered to Mrs B at lunch times each day Monday to Friday. The payment reflected the period between May 2020 and July 2021. The Council told us its decision was based on that Mrs X already delivered 45 minutes of care and support to Mrs B during lunch times on Saturdays and Sundays and so it believed this would also be sufficient for the rest of the week.
  4. The day care centre reopened and Mrs B returned to her placement in July 2021. At the same time, the Council completed a further interim review of Mrs B’s care and support needs. During the review, Mr X again said Mrs B’s care and support needs had increased and he believed the Council had not recognised this. The Council informed Mr X again that Mrs B met the criteria for specialist residential care however Mr X wanted his mother to remain at home. The Council did not increase Mrs B’s personal budget. It explained to Mr X, should Mrs B require further care and support, he would need to consider topping up the personal budget himself or practically provide the additional care and support to Mrs B.
  5. Mr X complained to the Council in February 2022 about the delays and about the budget for Mrs B’s care. The Council responded in March 2022. It noted Mr X requested a review in May 2020 but this was not completed as a staff member left. It said a telephone review was then completed in November 2020 but this did not consider any possible increase to support Mrs B while the day care centre was closed. It noted a further review in April 2021 recommended a payment for the lunchtime call. It apologised for the delay in assessing Mrs B’s needs whilst the day care centre was closed.
  6. The Council also explained it was legally able to take into account the cost of a care package and the most cost-effective way of meeting needs in deciding a personal budget. It said it understood Mr and Mrs X’s preference for Mrs B to remain at home and appreciated that they provided care and support outside of the personal budget to make this possible. It noted a further review was due.
  7. In May 2022, the Council completed an annual review of Mrs B’s care and support needs. Mr X again told the Council the current package of care was not sufficient to meet Mrs B’s needs. The Council reiterated it could not increase Mrs B’s personal budget over £750.00 and so anything above this cost would need to be funded by Mr X or the family would need to meet Mrs B’s care and support needs on a practical level. However, in July 2022, the Council said it increased Mrs B’s personal budget to £787.36 per week.
  8. Mr X remained unhappy and complained to us.
  9. Since Mr X’s complaint, the Council completed a further interim review of Mrs B’s care and support needs in September 2022. The review noted Mrs B’s care and support needs had significantly increased and she required support with her activities of daily living from two people at all times. Mrs B also stopped attending the day care centre as a result. The Council advised Mr X Mrs B’s needs would be met in a nursing home and offered this option however Mr X declined this and wanted to care for Mrs B at home. The Council therefore increased Mrs B’s personal budget to £850.00 per week. The Council said the amount of the personal budget was based on what Mrs B would pay for a nursing home placement at the time for the family to purchase care and support at home.

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Findings

Mrs B’s care and support needs during Covid-19 and lockdown restrictions

I have considered what has happened since March 2020, when the day care centre closed due to COVID-19 and lockdown restrictions.

  1. Mr X requested the Council to review Mrs B’s package of care on several occasions from May 2020, when Mrs B was unable to attend the day care centre, to reflect the additional hours of care and support Mrs X was providing to Mrs B. The Council initially acknowledged Mr X’s request in May 2020 but it did not review Mrs B’s care and support needs until November 2020. However, following the review, the Council had still not considered the additional support Mrs X was providing to Mrs B whilst the day care centre was closed. As a result, Mr X had to ask the Council again in March 2021, to consider his request. In April 2021, the Council considered Mr X’s request.
  2. The Council was at fault. It delayed responding to Mr X’s request. This caused Mr and Mrs X distress and frustration. The Council recognised it delayed responding to Mr X’s request and apologised to him. It also paid Mrs X a lump sum payment to reflect the additional lunch time support she provided to Mrs B whilst the day care centre was closed. This was appropriate.
  3. The Council said it had an agreement in place with the day care centre to continue funding placements to prevent it from closing permanently and therefore it required Mrs B to continue to pay for her placement at the day care centre. This was not fault. However, the Council did not tell Mr X until November 2020 when it reviewed Mrs B’s care and support needs and as highlighted above, delayed assessing what additional support Mrs B required while the day centre was closed. This was fault. The Council’s communication with Mr X was poor and caused Mr X distress and frustration.

Mrs B’s personal budget

  1. The Council completed several reviews of Mrs B’s care and support needs between April 2021 and September 2022. It recognised Mrs B’s care and support needs had increased and it was satisfied it could meet them at a placement in a specialist residential care home or a nursing home with her current personal budget. Mr X however continuously declined this option as he wanted his mother to remain at home. The Council therefore offered Mrs B a personal budget of the same value of what it would cost to meet her needs in a residential care home and a nursing home. Councils can consider the cost of different care options when allocating personal budgets. Relevant caselaw also allows councils to limit personal budgets based on meeting needs and not preferences. The Council explored other options of meeting Mrs B’s care and support needs and considered Mr X’s views. In its complaint response the Council acknowledged the family provided care and support outside of the personal budget to enable Mrs B to stay at home. There was no fault in the way the Council assessed Mrs B’s care and support needs and how it determined her personal budget. If Mr X decides later, the current support in place for his mother is not sufficient to meet her needs, it is open to him to explore other options of care.

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Agreed action

  1. Within one month of the final decision, the Council has agreed it will pay Mr X £200 to recognise the distress and frustration the Council caused by the delays in assessing Mrs B’s care needs and its poor communication with Mr X.
  2. The Council will provide us with evidence it has complied with the above actions.

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Final decision

  1. I have now completed my investigation. The Council was at fault and has agreed to remedy the injustice it caused.

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Investigator's decision on behalf of the Ombudsman

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