Essex County Council (23 017 745)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 03 Dec 2024

The Ombudsman's final decision:

Summary: Miss X complained about the Council’s decision to stop funding activities that were previously included in her daughter, Y’s care plan, and said the Council failed to consider Y’s disability related expenditure. We find the Council at fault for the removal of an activity, miscommunication, and delay considering Y’s disability related expenditure. This has caused uncertainty, distress, and a loss of funding. The Council has agreed to apologise, make a payment to Miss X, and improve its service.

The complaint

  1. Miss X complained about the Council’s decision to stop funding activities that were previously included in her daughter, Y’s care plan.
  2. Miss X also complained the Council failed to appropriately consider Y’s disability related expenditure (DRE).
  3. She says this caused her distress and uncertainty, reduced the activities available to Y, and resulted in the family funding some activities.
  4. Miss X wants the activities reinstated, Y’s disability related expenditure reviewed, and an apology.

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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 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)
  2. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
  3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
  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

  1. I spoke with Miss X and considered the information she provided.
  2. Written enquiries of the Council were made. I considered its response along with relevant law and guidance.
  3. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  4. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Assessment

  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.
  2. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Charging for social care services

  1. 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)
  2. 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.
  3. 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)

Disability Related Expenditure

  1. Councils can take DRE into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary DRE to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Direct payments

  1. 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.

What happened

  1. Y has severe mental and physical disabilities. Following the closure of the Independent Living Fund, the Council assessed Y in 2016, creating a care and support plan and approved the continuation of a direct payment to meet Y’s needs. Since then, the Council has regularly reviewed Y’s support plan to monitor her needs and make necessary adjustments.
  2. Following a reassessment in 2023, the Council removed two activities, Activity 1 and Activity 2, from Y’s care plan. It stated that these activities, intended to support Y’s therapy and physical exercise, fell within the remit of health services rather than social care.
  3. In June 2023, Miss X sought support from an advocate. The advocate complained to the Council about the decision to remove the activities, raised a list of DRE for consideration, and noted incomplete tasks left by Y’s previous social worker.
  4. In July, the Council responded, acknowledging that the previous social worker had not followed the proper process in reviewing Y’s support plan. The Council allocated a new social worker to complete a full reassessment of needs, and a financial assessment.
  5. In December, the Council completed its review, reinstating Activity 1 but not Activity 2. Miss X explained to the Council that Activity 2 was necessary for therapeutic reasons, specifically for helping Y to maintain muscle tone and posture. While the Council accepted that this type of physical activity was necessary, it determined that other activities in Y’s care plan sufficiently addressed this need.
  6. During my investigation, the Council identified DRE mentioned in the June 2023 complaint that had not previously been reviewed. To address this, the Council completed a full review of Y’s needs in May 2024, accepted the additional DRE, and subsequently reduced Y’s maximum weekly assessed charge.
  7. In response to my enquiries, the Council clarified that, although Activity 2 had been included in Y’s support plan from 2016 to 2023, it had never been formally assessed as a need. And therefore, the direct payment provided was not intended to cover this activity. The Council acknowledged it could have communicated this more clearly to Miss X to avoid confusion about funding for Activity 2.

My findings

  1. In 2023, the Council removed two activities from Y’s care plan but later reinstated Activity 1 after Miss X’s complaint. I have seen no evidence that Y’s needs changed between the time Activity 1 was removed and when it was reinstated. Also, the Council’s decision to reinstate Activity 1 shows the activity is beneficial and suitable to meet Y’s needs. Therefore, on balance, I find that Activity 1 should never have been removed from the care plan. This is fault and caused Miss X uncertainty, distress, and financial loss, as she continued to fund the activity to support Y’s health and wellbeing.
  2. The Council clarified that Activity 2 was never formally assessed as a need and therefore was not ‘removed’ in 2023; rather, the support plan was updated to reflect this. However, my review of the support plans and annual reviews from 2016 to 2023 shows that Activity 2 was consistently documented as an intended use of the direct payment. Based on a plain reading of these documents, Miss X could reasonably believe that Activity 2 was an assessed need and an approved use of the direct payment. This miscommunication is fault. It misled Miss X for years and caused her significant distress when the Council later ‘removed’ the activity. The Council has acknowledged it could have communicated more clearly with Miss X to ensure she understood that it would not fund this activity.
  3. Since then, the Council has reviewed Activity 2 and decided not to include it in Y’s support plan or consider it DRE. There is no fault in the way the Council made this decision, so I cannot question the decision itself.
  4. The Council missed an opportunity to address Miss X’s concerns about DRE in June 2023. Instead, it took a further nine months to properly consider and approve the expenses raised, which resulted in a decrease of Y’s maximum weekly assessed charge. While I cannot say what the outcome of the financial assessment would have been if it had been completed nine months earlier, I have seen no evidence that Y’s needs changed during this time. Therefore, on balance, I find, the delay considering Y’s DRE led to Y contributing more towards her care than was necessary.

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Agreed action

  1. To remedy the injustice to Y and Miss X from the faults I have identified, within four weeks of my final decision, the Council has agreed to:
    • apologise to Miss X in line with our guidance on Making an effective apology;
    • pay Miss X £2,850, as a remedy for Y’s benefit, in recognition of the costs she incurred because of the removal of Activity 1 from the care plan;
    • pay Miss X £500 in recognition of the distress and uncertainty caused by misleading support plans in relation to Activity 2; and
    • pay Miss X £780, as a remedy for Y’s benefit, in recognition of the costs she incurred because of the delay considering her disability related expenditure.
  2. Within three months of my final decision, the Council should send a reminder to all relevant staff about the importance of clear documentation and communication in support plans and of ensuring that when activities are included in the plan that the Council is clear they are meeting an identified need.
  3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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