Summary: Mrs Y complained about the Council’s decision to change her daughter Miss X’s care agency and failing to complete a financial assessment review when she requested one. This has caused significant stress to her and Miss X. We find fault by the Council. The Council has agreed to our recommendations to address this injustice.

The complaint

1. The complainant, Mrs Y, complains on behalf of her daughter Miss X about the following:

• The Council want to change Miss X’s care agency despite being with them for 13 years.
• The Council have failed to do a recent financial review for Miss X, despite Mrs Y’s request for one.
• The Council have only carried out one financial review for Miss X in the last 13 years.

2. Mrs Y said the Council’s actions have caused significant stress to her and Miss X.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have spoken with Mrs Y about her complaint. I have considered the documents provided by Mrs Y and the Council.
6. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

Law and relevant guidance

7. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
8. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
10. A local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis but may vary according to individual circumstances. However, this should take place if there is a change in circumstance or at the request of the person.

Care Plan

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 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.

Assessment

12. 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.
13. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Personal Budgets

14. 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. 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.
15. There are three main ways 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 or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

16. The Council’s personal budget policy says for care agencies the hourly rate must not exceed £15.54 (2019/20), except where there are exceptional circumstances, e.g. where the customer has complex needs which has been approved and authorised by the Council’s resource panel. It is expected that the rate paid to care agencies via personal budgets will match or not exceed the rate paid by the Council to care agencies for commissioned care at home services.
17. The Care and Support Statutory guidance says Council’s should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The Council may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value

What did happen?

18. This section sets out the key events in this case and is not intended to be a detailed chronology.
19. Miss X has cerebral palsy which affects her speech. Miss X’s current support package provides a care worker two mornings per week to assist with personal care. Miss X also employs Mrs Y as a personal assistant for assistance at structured times throughout the day.
20. The Council carried out a care assessment in February 2022. It said the level of support in place was sufficient to meet Miss X’s needs. But it said the current care agency charge more than the Council’s hourly rates.
21. The Council called Mrs Y the following month. It said the Council’s personal budget policy stated it would generally only pay the same hourly rate it paid other people and providers it commissions. Mrs Y said changing care agency would be difficult for Miss X as her current care worker understands her speech. The Council said to remain with the same care agency Miss X could pay a top-up fee. But Mrs Y said Miss X already paid a contribution fee.
22. In the same month the Council completed a financial assessment for Miss X.
23. The Council told Mrs Y it looked like its policy would be adhered to. It said Miss X could either pay a top-up fee or find an alternative care provider.
24. Mrs Y complained to the Council about its decision.
25. The Council said in its response the current care agency exceeded the limits specified in its policy.
26. Mrs Y asked the Council to escalate her complaint in April 2022. She requested the Council complete a further financial assessment for Miss X.
27. The Council responded to Mrs Y’s request to escalate her complaint in July 2022. It did not uphold her complaint. It said its decision is in line with its policy and said it did not consider Miss X had exceptional circumstances to allow the additional rate. It said it would request a financial assessment review for Miss X.

Analysis

28. We welcome that in response to our enquires the Council re-investigated Mrs Y’s complaint. It recognised fault and said it should have considered Miss X’s case as an exceptional circumstance. It apologised to Mrs Y and said it would make no changes to Miss X’s package of care. It said it should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes and said moving forward it would learn from this to prevent this situation from occurring again. While we recognise the Council has remedied the fault, Mrs Y spent unnecessary time and trouble in contacting the Council. This caused significant stress to her and Miss X.
29. Mrs Y told the Council in April 2022, she wanted it to complete a further financial assessment for Miss X. The Council agreed to this request in its stage two complaints response in July. But in October 2022, the Council told Mrs Y it held no records to indicate that any information had been supplied recently or a request for a detailed review of a financial assessment. It provided Mrs Y with the details of who to contact about this. This is fault. The Council had the request for a financial review but failed to act upon it. The care and support statutory guidance states Council’s must reassess a person’s ability to meet the cost of any charges at the request of the person. I cannot say whether a review of Miss X’s finances would have made a difference to her contribution, but this would have caused uncertainty to her and Mrs Y.
30. Mrs Y questioned why the Council had only carried out one financial assessment review for Miss X in the last 13 years. The Council said the financial assessment was reassessed annually each April and a revised calculation sent to her except for 2020 when the Council suspended any increases in fees and charges at the beginning of the pandemic period. The Council have provided us with an annual review it sent to Miss X in May 2019 and April 2021. This is what we would expect of Councils.

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Agreed action

31. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:

• Apologise to Miss X
• Pay Mrs Y £150 for the unnecessary time and trouble she spent complaining to the Council
• Pay Miss X £150 for the distress caused by the faults identified in this statement

32. Within two months of my final decision the Council should issue written reminders to relevant staff to ensure they are aware of:

• Point 10.26 of the care and support statutory guidance which says Councils should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes.
• Point 8.17 of the care and support statutory guidance which says Council’s should reassess a person’s ability to meet care costs at the request of the person.

33. The Council should also provide evidence that it has followed the recommendations above.

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Final decision

34. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman