Summary: We have found fault by the Council in the process of transferring Mr Y’s direct payment which caused his mother Ms X avoidable distress and time and trouble complaining. We have not found fault in the process of assessing Mr Y’s charge. The Council will apologise and pay Ms X £150 to reflect the injustice.

The complaint

1. Ms X complained Essex County Council (the Council) did not follow the law or guidance when transferring her son Mr Y’s direct payment when they moved to Essex. She also complained about the charge for Mr Y’s care which she says he cannot afford.
2. Ms X said this caused her avoidable distress and time and trouble. It also caused Mr Y a financial loss.

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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 considered Ms X’s complaint to us, the Council’s response to the complaint and documents described later in this statement. A colleague discussed the complaint with Ms X
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

7. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
8. Where a council agrees a person has care and support needs which meet eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. (Care Act 2014, sections 24 and 25)
9. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should have regard to. CSSG says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging, calculated in a financial assessment. Most councils charge for home care, including Essex.
10. National guidance from the government sets a minimum income guarantee (MIG). This is the minimum amount of money people must be left with before a council can charge them for their care.
11. Some types of income are not included in a financial assessment. This is called ‘disregarded income’ and includes some benefits, earnings and some tax credits.
12. Disability Related Expenditure (DRE) are expenses a person has to pay connected to their disability. They are an allowance in a person’s financial assessment and reduce their weekly charge. DRE can include specialist items and services such as wheelchairs. They can also include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. Statutory guidance says:
• A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority
• The care plan may be a starting point for considering DRE, but councils need to be flexible. (Care and Support Statutory Guidance (‘CSSG’) Annex C, 39 and 41)
13. CSSG sets out what should happen when an adult who receives care and support moves from one area to another. It says the second council (where the person is moving to) should complete a social care assessment and develop a care and support plan before the move. However, if this isn’t possible because of distance or needing to see the person in their new home, the second council should continue to meet the person’s needs until it has completed its own assessment. The key is ensuring continuity. There should be contact and liaison between both authorities and the person. (Care and Support Statutory Guidance paragraphs 20.4, 20.5 and 20.25)

What happened

14. Mr Y is an autistic adult who has mental health problems and lives with his parents. Before moving into the Council’s area in 2021, he had been getting a direct payment from a different council. Ms X used the direct payment to employ personal assistants (PAs) to support Mr Y. I understand the previous council did not charge Mr Y for social care.
15. The Council received an email from the other council and Ms X in April 2021 to say she and Mr Y would be moving to Essex in June. The Council did not take any action. The records indicate it processed the referral from the other council at the start of July.
16. A social worker carried out a social care assessment for Mr Y in the middle of July. This set out Mr Y’s views. Ms X asked the social worker to set up Mr Y’s direct payment. The outcome of the social care assessment was Mr Y was eligible for social care. The assessment set out the direct payment he had been getting from the other council and noted the direct payment had been working well to date.
17. In August, the social worker drew up a care and support plan setting out Mr Y’s needs and desired outcomes. The weekly direct payment was the same as Mr Y had been getting from the other council before he moved.
18. In October a finance officer completed a financial assessment with Ms X by phone. Mr Y’s maximum weekly charge was £53.
19. A review of Mr Y’s care and support plan took place in November 2021. The outcome was care provision was appropriate and was delivering Mr Y’s desired outcomes and he was making some progress. The review recommended the direct payment continued. The review noted Mr Y had some potential DRE expenses:
• Extra electricity and washing powder for the washing machine
• Additional heating and cooking costs due to Mr Y being at home all day
• Water – Mr Y washed his hands a lot due to a condition
• Internet, clothes, furniture, decorating, travel insurance, holidays.
20. The finance team considered Mr Y’s DRE and wrote to Ms X in March 2022 to say it would agree a DRE for laundry, water and electricity for additional washing loads. It would not agree the other items because these were just normal costs everyone had to pay and there was no evidence of additional expenses connected to Mr Y’s disability.
21. The Council’s response to Ms X’s complaint (April 2022) said:
• The first local authority shared a copy of Mr Y’s care and support plan in April 2021
• She told the Council at the start of June that they were moving on 21 June and on 9 July she advised the other council would continue to fund Mr Y’s care and support until the end of July
• A social worker did a home visit on 16 July to confirm the on-going care and support plan.
• The Council made the first direct payment on 22 October which covered 23 August on
• The Council was sorry the transition process was not as smooth as it could have been. There was a delay in arranging the direct payment so it coincided with the other council stopping funding. There was also an incorrect start date. A social worker would review the case to ensure the correct funding and dates applied
• Mr Y’s charge allowed him to keep notional rent, his mobility payment (taken as a vehicle) and left him with the amount of money the government says is enough to meet his daily needs
• There was a delay carrying out the financial assessment and the Council would not charge for the period 1 July to 8 October 2021. Mr Y needed to start paying the charge into his direct payment account from 9 October
• The Council had agreed additional laundry costs as a DRE. Ms X needed to provide evidence from the GP that the additional food costs were due to his disability or medical condition.
22. A review of care and support plan took place in April 2022. Ms X was unhappy with the charge, but happy with the care and support. The Council agreed to make a payment of £2100 to cover a three-week gap between the other council stopping the direct payment and Essex starting it. Mrs X was advised to start paying the charge and to agree a payment plan for the arrears.

Was there fault?

23. The process of transferring Mr Y’s care and support was not in line with Care and Support Statutory Guidance (CSSG) as I have described in paragraph 13. CSSG required Essex to complete a social care assessment and care and support plan before Mr Y moved into the area. This should have been possible because the other council referred Mr Y in April which gave the Council plenty of notice about the move. The fault caused Mrs X avoidable distress and time and trouble complaining. I am satisfied the Council has now put in place funding and there were no gaps in the direct payment which is a partial remedy for the injustice.
24. There is no fault in the Council charging Mr Y for his care. I appreciate the charge would have come as a shock to Ms X if Mr Y had not previously been paying towards his care, but councils are allowed to charge for non-residential care. I am satisfied the financial assessment was carried out in line with the rules and guidance I have summarised in paragraphs 10 to 12. The Council has considered information from Mrs X about Mr Y’s expenses and applied DREs. I have no grounds to criticise the refusal of some items as DRE (such as food and holidays) as the Council does not consider they are expenses linked to Mr Y’s disability. So there is no fault.

Agreed action

25. Within one month of my final decision, the Council will apologise and pay Ms X £150 to reflect the avoidable distress and time and trouble caused by the failure to ensure a smooth transition of Mr Y’s direct payment when he moved to Essex.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have found fault by the Council in the process of transferring Mr Y’s direct payment which caused his mother avoidable distress and time and trouble complaining. I have not found fault in the process of assessing Mr Y’s charge.
28. Within one month of my final decision, the Council will apologise and pay Ms X £150 to reflect the injustice.
29. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman