Summary: There is no fault by the Council in reducing Mr X’s personal budget because the Council carried out an assessment before doing so and reviewed the care and support plan six weeks after the reduction. This is in line with law and guidance. An officer’s conduct in a meeting was appropriate and the Council made reasonable adjustments to the reporting requirements for direct payments. The Council did not stop Mr X’s direct payment.

The complaint

1. Mrs X complains for herself and for her husband Mr X about:
1. A reduction in Mr X’s personal budget.
2. An officer’s conduct in a meeting amounted to intimidating, hostile, humiliating and offensive treatment related to a disability.
3. A failure to consider reasonable adjustments to direct payment monitoring; and
4. Stopping Mr X’s direct payment.
2. She said this caused avoidable distress, inconvenience and a loss of care and support.

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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. 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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. Mr X had a right to make a claim of discrimination in the county court for complaints (b) and (c). However, it was not reasonable to expect him to do this on account of Mrs X’s ill health as she would need to support him to bring the claim. And, at the time of the complaint, the claim was already time-barred. So I have investigated complaints (b) and (c).
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 considered the complaint to us, the Council’s response and documents in this statement.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. The period I have investigated is March 2022 to July 2023. Since complaining to us, Ms X has raised recent events including Mr X being diagnosed with a new condition that have not been the subject of a complaint. She needs to raise them with the Council and if necessary, make a formal complaint.

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What I found

Relevant law and guidance

10. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act. The protected characteristics include disability. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
11. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to a body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
12. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
13. 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)
14. The Court decided:
• A council’s duty under section 9 of the Care Act 2014 is not to achieve the person’s desired outcomes but to assess whether the provision of care and support would contribute to those outcomes
• The wishes of the person may be a primary factor, but they are not an overriding consideration.

(R (Davey v Oxfordshire CC))

15. Where a council assesses a person and decides they have care and support needs which meet national 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)
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. There are three ways in which a personal budget can be used:
• As a managed account held by the local authority;
• As a managed account held by a third party;
• 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)
18. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32).

What happened

19. Mr X has a neurological condition causing unpredictable blackouts and is eligible for care and support. He receives a direct payment (DP) which was reduced in 2022. The DP previously included funding for more night-time care. Mr X used the DP to pay for personal assistants (PAs).
20. Mr X’s social care assessment of March 2022 said he was eligible for care and support. It set out his personal and family background and his view of his care needs and Mrs X’s views. The assessor noted they had looked at the PA’s records of care and support. The assessment said:
• Mr X had been using funding flexibly to employ PAs five days a week and overnight sleep-ins four nights a week.
• He was safe if someone supported him through the day and once at night. Mr X said he did not feel safe with an alarm and he needed supervision to avoid falls.
• The care logs showed he had had four blackouts in eight weeks and two falls recorded in 2021.
• He had a falls alarm, so Mrs X was able to sleep without needing to check on Mr X
• Mrs X had received a carer’s assessment and carer’s payment. She provided support with maintaining the home, shopping and managing paperwork.
21. There was a review of Mr X’s care and support plan in October 2022. Two council officers, Mr X and one of his PAs attended. Mrs X did not attend as she was unwell. The review record said:
• Mr X’s weekly direct payment had been reduced from £660 from 5 September 2022 to £313 following a detailed reassessment. The review was to see how DP was working since the reduction.
• The funding was £270 a week from the Council with a client contribution of £43 a week.
• He was having difficulty employing PAs for the night-time pop-ins and rather than disturb Mrs X at night, they were holding onto the money.
• Mr X said he did not know the DP had been reduced in September. The reviewing officers showed him the letter they had sent him on 22 August which explained the reduction and starting date.
• He could use his care alarm or subscribe to the community response team in the event of a fall.
• The DP could be used flexibly, but it should be used to meet his identified needs.
22. The Council wrote to Mr X after the review I have described in the last paragraph. The letter summarised what happened at the review. The letter enclosed Mr X’s revised care and support plan. (see next paragraph). The letter went on to say:
• He had told the Council he had paid one of the PA’s twice for one period of work and was not able to recall the extra payment. An officer offered to accompany him to the bank to set up the bank change and this offer was repeated during the review;
• He said he was having difficulty recruiting someone and had not employed anyone to do the night time pop-in;
• The reviewing officer said the Council’s direct payment officer could support Mr X or a care agency could deliver the pop-in;
• He said he was having to do some much paperwork and this was putting too much pressure and stress on him. He wasn’t sure if it was worth stopping it;
• The reviewing officer said they did not intend to cause distress and they had not made any accusations, but he needed to provide financial information when requested (bank statements between May and August when the pre-payment card started and evidence of when he paid the PAs from his own money);
• He said he had overspent in September and this was because the PA was still doing sleep-ins;
• The reviewing officed offered a managed direct payment service in the meeting. Mr X did not reply;
• Mr X became upset and left the meeting after saying the direct payment was what the Council had assessed and not what he needed;
• The meeting then ended with Mrs X showing the reviewing officer the door.
23. Ms X said in her complaint to us that the reviewing officer:
• Accused Mr X of being at fault with reporting inconsistencies and he was upset and traumatised
• Said she (Ms X) has to manage the direct payment or it would be withdrawn.
24. Mr X’s care and support plan of November 2022 described the care and support he was eligible for and said how his needs would be met:
• Being appropriately clothed (direct payment)
• Maintaining personal hygiene (direct payment)
• Making use of the home safely (direct payment including funding for a pop-in visit once a night)
• Social activities and relationships (direct payment)
• Household and managing nutrition. (Mrs X)
• risk of falls (pendant alarm or Mrs X can call emergency services)
25. The care and support plan said Mr X’s condition fluctuated and the direct payment could be used flexibly to support him. The payment was £313 a week (including Mr X’s contribution).
26. The Council completed a carer’s assessment in February 2023. It set out Mrs X’s views and the care she provided. She said she felt she could not leave Mr X on his own for more than 30 minutes due to him falling. She reported he had fallen more than 30 times in the last six months. She said she woke up every three hours to check on him and felt tired and stressed. She wanted an increase to his care and support.
27. Mrs X complained to the Council. Its response in February 2023 said:
• Everyone getting a direct payment had to provide financial information to the Council to evidence how the money had been spent. There was a query about a payment in May 2022 and he needed to provide copies of bank statements between May and August 2022 and pay his client contribution;
• The Council can withdraw a direct payment if a person fails to comply with a condition;
• Mr X has not been using the DP and has £8000 in his account. The Council was worried he was not having any care currently. An officer would be in touch shortly to follow this up;
• The meeting in October was a final review following a reassessment; and
• Mr X had access to assistive technology and this met his needs around monitoring falls. Providing night care was nor necessary and was disproportionate. The “Monica” device would adequately meet his needs.
28. The Council gave formal notice that it intended to stop Mr X’s direct payment and commission his care. However, records post-dating the time frame of this investigation indicate the direct payment continued at the reduced rate.
29. Unhappy with the Council’s response to her complaint, Mrs X contacted us in July 2023.

Findings

The reduction in the personal budget

30. It is not the Ombudsman’s role to decide what Mr X’s personal budget should be. This is for the Council. If a council decides to reduce a personal budget, we expect it to carry out a review or a new assessment first. This is because law and guidance say a council needs to review a person’s care needs before revising a care and support plan. The Council carried out a full social care assessment in March 2022 before reducing the personal budget. So there is no fault.
31. The records indicate Mrs X and the Council have a different approach to the risks flowing from Mr X’s neurological condition. The Council considers Mr X’s need for care and support at night can be met by a pop-in call and assistive technology and he does not need a sleep-in carer in case of falls/blackouts. Mrs X disagrees and says Mr X needs someone present to check on him throughout the night. The Council and Ms X have a different approach to risk, with Mrs X being more risk-averse, which is understandable. But it does not mean the Council is at fault when deciding there is a more proportionate way to reduce the risk.
32. The Council carried out a review six weeks after the reduction to see how the care and support plan was working. This is also in line with guidance and so there is no fault.

An officer’s conduct in a meeting amounted to intimidating, hostile, humiliating and offensive treatment related to a disability.

33. The record of the review meeting in October 2022 and the letter in November (which was a summary of what was said at the meeting) do not reveal any conduct by the officer which I regard as fault. Neither Mrs X nor her advocate (who was present at the meeting) provided any evidence of harassment because of a disability in the complaint to us or in their response to my draft decision. The evidence indicates the officer was asking Mr X to provide evidence of how he had spent the direct payment. The officer was entitled to ask for this evidence as this is a legal requirement for recipients of direct payments. This was not fault.

A failure to consider reasonable adjustments to direct payment monitoring

34. A public body only has to make an adjustment if it considers it reasonable. The Council isn’t required to change the basic nature of the direct payment scheme which requires recipients of public funds to demonstrate they have used the money for care. The Council has explained in its complaint response that direct payments are public money and so need to be accounted for by providing documents which show how the recipient has spent the money. The Council has accepted Mr X, through his disability, faces a substantial disadvantage in the reporting requirement and has taken action to assist him. It has offered Mr X:
• Support from its officers
• A managed direct payment account through a third-party direct payment support service.

The Council has offered ways to overcome the barriers faced by Mr X in adhering to the reporting requirements he has to follow as a recipient of a direct payment. There is no fault.

Stopping the direct payment

35. The Council has not stopped the direct payment. The evidence indicates it has continued to pay it at a reduced rate following the review process. As I have set out in paragraphs 30 to 32, the reduction was made without fault. So I do not uphold this complaint.

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Final decision

36. There is no fault by the Council in reducing Mr X’s personal budget because the Council carried out an assessment before doing so and reviewed the care and support plan six weeks after the reduction. This is in line with law and guidance.
37. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman