Summary: Mrs X’s representative complained about the cancellation of a cleaner; failure to find a new personal assistant; failure to consider a requested reasonable adjustment and failure to refund her client contribution. She says this has caused stress, anxiety and worsened her health conditions. There is no evidence of fault causing a significant enough injustice to warrant further investigation.

The complaint

1. Ms Z, on behalf of Mrs X, complains the Council cancelled the cleaner approved by the direct payments officer even though no support was in place for Mrs X at that time; failed to help to find a new personal assistant; failed to consider and agree her requested reasonable adjustment of meeting after 2 pm and failed to refund the client contribution Mrs X paid for the period when she was not in receipt of any care.
2. Mrs X says this has caused stress and anxiety and having to repeatedly try to sort things out has worsened her health conditions.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant’s representative;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Charging for social care services: the power to charge

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. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Direct payments

9. 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.

Reasonable adjustments for people with disabilities

10. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any 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.
11. 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

Key facts

12. Mrs X is a woman in her seventies with various medical conditions causing chronic pain. This means she is unable to carry out most of her daily living activities independently.
13. Mrs X has been assessed by social care and had a care and support plan since 2011. The latest plan provided her with a direct payment of £148.80 to enable her to employ a personal assistant to support her personal care, nutrition, shopping and cleaning her personal environment.
14. Mrs X uses a third-party organisation, commissioned by the Council, to manage the issues associated with employing a personal assistance such as recruitment and payroll. English is not Mrs X’s first language and so requires a personal assistant who can speak her preferred language.

Cancellation of cleaner

15. Mrs X’s personal assistant left the role in March 2022. While Mrs X was trying to recruit a new suitable personal assistant, she says she was left without any support.
16. Mrs X had a discussion with her direct payment officer at the third-party organisation. Mrs X says the officer agreed she could use her direct payments to employ a cleaner as she had built up unused hours and her house was in a bad state. It is my understanding that Mrs X employed a cleaning service to provide four hours of cleaning a week from July 2022.
17. The social worker contacted Mrs X in July 2022 to arrange a meeting to discuss her care and support. A letter dated 29 July refers to an earlier telephone conversation in which the social worker explained Mrs X could not use her direct payments for four hours of cleaning per week. The social worker noted that two, four-hour sessions had already been arranged and so she would allow the direct payments to pay for this but that thereafter, direct payments could only cover one hour of cleaning per week. Mrs X says that only one session was provided. The letter also advised Mrs X to request a temporary stop of her client contribution for any week there is no personal assistant. It also advised that a commissioned service could be arranged to meet Mrs X’s eligible care needs until a personal assistant could be recruited if she wanted.
18. The information I have seen shows that changes to the cleaning service were instigated by the social worker. The Council says this is because direct payments can only be used for assessed eligible care needs and Mrs X’s support plan did not allow for four hours of cleaning per week. The care and support plan I have seen shows that an hour a week was allocated for cleaning and laundry.
19. Mrs X says that her direct payment officer authorised the use of the cleaning company and so was confused when the social worker subsequently cancelled it. She said that she sought clarification about the roles and responsibilities of the social worker and the direct payment officer.
20. In response to Mrs X’s complaint, the Council explained the direct payment officer could deal with any query relating to finance and budget issues, management and recruitment. It also said that Mrs X could contact the duty worker to report any changes or concerns. I am not persuaded this response to Mrs X clearly explains the difference between the two roles. In response to my enquiries, the Council provides a clearer response which states the direct payment officer has no role in approving how the direct payment can be spent as this is determined by the needs assessment and the support plan. While the poor explanation does not meet the threshold to be fault, I can understand why Mrs X was confused. I am satisfied that the situation is now clear and so going forward Mrs X has clarity on the different roles.

Failure to help find a new personal assistant

21. Mrs X was left without help from March 2022 when her personal assistant resigned. The Council offered commissioned care while Mrs X tried to recruit a new personal assistant but Mrs X declined this offer because she previously had a negative experience with agency workers.
22. The Council says that it worked with the third-party organisation to advertise for a new personal assistant. Mrs X has specific requirements for a personal assistant including being able to speak her preferred language and making meals suitable for her health and cultural needs. The Council says that it agreed extra payments so adverts could be placed in newspapers. It also says the third-party organisation looked outside the borough to try to find suitable support.
23. In November 2023 Mrs X found a self-employed personal assistant who could provide help with cooking and domestic tasks one day per week. She also had some support from a care agency.
24. Mrs X’s preference has always been to employ a personal assistant so she can use the direct payments more flexibly. Although the Council agreed funding for newspaper advertising, it can take time to find a suitable applicant. This appears to be the case here. I have not seen evidence which indicates any avoidable delay by the Council which would amount to fault. In the interim, aware Mrs X’s eligible needs were not being met, the Council offered to arrange a commissioned service. I therefore find no fault.

Reasonable adjustments

25. The Council contacted Mrs X to arrange a meeting to discuss how she was using her direct payments. Mrs X’s pain is much worse in the morning and says that she requested to move the meeting to the afternoon as a reasonable adjustment.
26. The Equality Act 2010 says that changes or adjustments should be made for people with disabilities to ensure they can access services. In this case Mrs X was unable to meet in the morning due to the level of pain. When she contacted the Council it agreed to reschedule the meeting so that Mrs X and her advocate could be present and were able to fully participate.
27. It is not clear me to how the request was framed and whether it was clear the request to reschedule was made as a reasonable adjustment under the Equality Act. A Council should always consider such requests and make changes where it is reasonable to do so. In this case, the meeting was rescheduled and so whether or not it was done as a reasonable adjustment did not cause Mrs X a significant enough injustice to warrant further investigation. I would suggest that Mrs X contacts the Council to inform it of any reasonable adjustments she has so that consideration can be given to them before any further meetings are arranged.

Refund of client contribution

28. Mrs X is required to make a weekly contribution towards the cost of her package of care. The Care and Support Guidance says that a council cannot charge more than the actual cost of the service. Following the resignation of Mrs X’s personal assistant in March 2022, Mrs X did not use the full weekly allocation of direct payments to purchase care services. Some weeks she had no care provided at all. As a result, Mrs X’s weekly contribution could be reduced some weeks and for others would be nil.
29. Mrs X sought help from another charity in respect of the charges. She says that as well as requesting a refund of her contribution on the weeks she did not receive the full amount of care, an appeal was submitted regarding the financial assessment.
30. In response to my enquiries the Council has explained that invoices are sent every four weeks and managed by the direct payment officer. The direct payment officer should notify the Council’s financial assessment team of any service interruptions so it can amend the charges. It has provided details of the dates when Ms X received no, or a reduced, service and this covers the period from February 2022 to January 2023.
31. The Council cannot charge a service user more than the actual cost of the care provided. However, the way the charging system works means that the assessed financial contribution is the maximum amount the service user will pay and this contribution only reduces when the actual cost of the service is less than the client contribution. Where the cost of the service is more than the client contribution the charge does not increase. Charging for services are means tested and based on the service user’s ability to pay.
32. The Council has corresponded with Mrs X about her care charges generally. In August 2023 it responded to a complaint about this. Mrs X was seeking a refund for charges when she only received four hours support per week. The Council explained that from April 2022 Mrs X’s assessed contribution was £11.66 per week and £45.13 per week from 24 October 2022. It says that the cost of the four hours care was more than the higher of these two amounts and so Mrs X was still required to pay her full contribution.
33. In its letter of August 2023, the Council said it had recently received Mrs X’s completed reassessment form and that it would write to her after completing the reassessment. I have not seen the outcome of that reassessment.
34. Correspondence from Mrs X indicates she is confused about the charges. The Council says that a refund was applied to Mrs X’s account in October 2022. I note that around this time Mrs X’s assessed weekly contribution increased by about £30. I have not seen a copy of her account but it could be that while a refund was applied to the account, this did not result in an actual monetary refund to her because of the increased charge.
35. Based on the information I have seen, I am satisfied the Council has taken action in respect of the period from February 2022 to January 2023 when Mrs X was seeking a new personal assistant and receiving reduced or no support and so find no fault.
36. It is not my role to audit her direct payment account to determine if there are any errors. A further reassessment was to be carried out in August 2023, if Mrs X disagreed with this then she could challenge the outcome through the Council’s procedures.

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Final decision

37. I will now complete my investigation as there is no evidence of fault causing a significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman