Summary: Mr X complained about the Council’s actions when it reassessed his care needs and decided to amend his care and support plan. We found fault because the Council failed to send Mr X his updated care plan in a timely manner. This caused him avoidable distress, frustration and uncertainty. The Council has agreed to apologise to Mr X, send reminders to relevant staff and review one of its policies.

The complaint

1. Mr X complains about the Council’s actions linked to his ongoing care needs. Specifically, he complains;
• the Council reduced the level of care set out in his care plan without properly advising him or giving the required time for him to comment on changes;
• the Council is using an inadequate rate of hourly pay to calculate his personal budget; and
• the Council will not share information on how it calculates payments it sends to the company who administers his payroll (Company A).
2. Mr X says this has caused him significant distress and frustration and has impacted his ability to organise his care.

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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. 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.
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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What I have and have not investigated

6. My investigation begins when the Council held a care review for Mr X in March 2023.
7. My investigation ends when the Council sent its updated care and support plan to Mr X in March 2024.

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How I considered this complaint

8. I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Care planning

Assessment

10. Sections 9 and 10 of the Care Act 2014 (the Act) require councils to carry out an assessment for any adult with an appearance of need for care and support. 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.

Care plan

11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. 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.
12. Section 25 (9) of the Act states that councils must give a copy of a care plan to the adult it has been prepared for.

Reviews

13. Section 27 of the Act says councils should keep care and support plans under review. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met.

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 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 (CSSG))

Direct payments

16. Direct payments (DPs) 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.

Care and Support Statutory Guidance

17. Section 13.8 of the CSSG says that where a council is satisfied a change to the care plan is necessary, it must work through the assessment and care planning process as detailed in sections 9-12 and section 25 of the Act.

The Council’s personal budget and direct payment policy

18. The Council’s policy sets out how it deals with and administers personal budgets and DPs. The latest version of the policy is from 2019.
19. Section 10.1 of the policy states that when employing personal assistants, the London Living Wage (LLW) should be paid as a minimum.
20. Section 10.2 says that oncosts will need to be calculated on a case-by-case basis.
21. Section 16.1 says that if a personal assistant is going to be employed (to deliver care set out in a care plan), then the amount of hours will be multiplied by the hourly rate. It says that it will add a percentage for any other expenses related to employing somebody (oncosts).
22. It also says that it assumes the LLW will be used as the minimum hourly rate. If someone wishes to pay their care staff a higher hourly rate they will have to pay the top up themselves and justify this to the Council.
23. Section 19.2 says that DPs will be paid into a bank account or to a management organisation.

What happened

Background and context

24. I have set out below a summary of the key events. This is not meant to show everything that happened.
25. Mr X has health needs that means he has a care and support package in place. He has had a care and support plan (care plan) in place for several years. Mr X uses the DP scheme to be able to organise his own care and support.
26. The care plan in place at the beginning of 2023 was originally from 2011. The plan specified a significant number of care hours per week for Mr X’s care (part A). It listed a separate amount of hours per week which was not directly linked to Mr X’s own care (part B). It also listed a section for holidays where Mr X would have additional care organised when he was away from home and would need additional support (part C).
27. At the beginning of 2023, the Council noted that Mr X’s needs had last been assessed in 2019. It also noted he was asking for an increase in the hourly rate of pay being paid, above the LLW and did not wish to engage in a review until the request was agreed. The Council advised Mr X it would do the review regardless of whether he agreed to attend.
28. The Council communicated with Mr X in January and February 2023. On 17 February 2023, the Council suggested various possible dates for the review. Mr X did not respond.
29. The Council completed its review in March 2023. This is where my investigation begins.

2023

30. On 16 March 2023, an officer (Officer J) emailed Mr X. She said that if he wanted to be involved in the review, he would need to confirm this by the next day.
31. The Council completed a review of Mr X’s care and support package, in his absence, on 20 March 2023.
32. The review proposed a reduction in support hours. This reduction was for the amount of hours not directly linked to Mr X’s own care, part B. The reduction was made because of a change in Mr X’s family circumstances which meant the support was no longer needed.
33. There are no review notes to say what the Council intended to do about part C of the original care plan.
34. On 19 April 2023, the Council sent Mr X’s MP a letter. This was to answer points she had raised with it about Mr X’s care, on his behalf. The letter explained that part A of Mr X’s care package had been in place since 2011 and the hours had remained the same throughout. The letter said part B was no longer an appropriate use of public funds due to the change in family circumstances. The letter did not mention when this change would begin.
35. The Council’s chronology shows it drafted an updated care plan on 19 July 2023. It listed the same amount of care hours per week for Mr X’s own care, part A, as in the 2011 plan, minus part B. There was no mention of part C.
36. On 27 July 2023, the Council’s funding panel agreed Mr X’s funding for part A .
37. On 10 August 2023, Officer J posted Mr X a letter to give 30 days’ notice that hours for part B were being removed from his personal budget. It asked him to sign and return its service user agreement.
38. On 21 September 2023, internal emails from the Council discussed the fact it did not have a signed user agreement from Mr X about the reduction to his DP amount, after August’s letter to him. The Council said changes needed to be put in place no later than 18 September 2023. It said this had allowed an extra seven days goodwill as well as the 30-day notice period advised to Mr X.
39. On 22 September 2023, an officer from an independent support service who works with the Council called Mr X. He discussed Mr X’s DPs and the reduction in hours. Mr X said he had not had August’s letter in the post to confirm the reduction or a copy of his new care plan. The officer sent him a copy of the updated care plan.
40. On the same day, Mr X called the company who administers payments from his DP account to the staff he employs to deliver his care, Company A. Company A emailed the Council and asked it to call Mr X to discuss the updated care plan as there were several concerns Mr X had.
41. On 27 September 2023, Mr X made a stage one complaint to the Council. He complained the Council had:
• sent him a care plan that made cuts to his level of care and contained errors;
• ignored changes to his routine;
• not given him the required 30 days before changes were made or given him chance to comment on the new care plan; and
• missed out increased care for certain times of the year and was unclear on costs which meant he could not budget properly.
42. On the same day, the Council replied to Mr X’s local councillor after he had contacted it on his behalf. The letter said Mr X had been paying his personal assistants for potentially more hours than permitted and this had led to a lack of funds in his DP account.
43. Discussions between the Council, Mr X and Company A continued throughout late September 2023. Company A reminded the Council there was a significant deficit on Mr X’s DP account which would cause ongoing problems if not dealt with.
44. On 29 September 2023, the Council decided to delay planned changes to Mr X’s support plan.
45. On 3 October 2023, Officer J emailed Mr X copies of the support plans from 2011 and 2023. She said part B and part C had been removed. She said part C was linked to part B which is why it had also been removed. Officer J said as Mr X had recently advised the Council of a change in his need, then a reassessment would need to be done.
46. On 10 October 2023, the Council then allocated Mr X’s case to a new social worker, Officer K.
47. On 16 October 2023, Officer K and Mr X discussed his care plan and needs on the telephone. Mr X agreed part B should be removed from his care plan. He discussed other activities and need which were not in the latest care plan which he felt should be. Mr X thought his DP hourly rate was too low, was concerned about the deficit on his DP account and felt part C should still be in his care plan.
48. The Council sent its stage one final complaint response on 24 November 2023. In this, it said:
• the care plan sent on 22 September was a draft plan;
• no reductions (for his own care) had been made;
• a temporary extension of existing support had been granted to reconcile his payment account and this would continue until December 2023; and
• officers had met with him on 21 November 2023 to reassess his care and support needs.
49. The Council signposted Mr X to the Ombudsman.
50. On 7 December 2023, Officer K emailed Mr X a copy of a new draft care plan. The Council and Mr X continued to discuss the detail of the plan through December.

2024

51. In March 2024, the Council sent Mr X his new care plan, dated January 2024. It advised him to contact it in future if he felt his needs had changed or to discuss matters at an annual review.

Analysis

52. The Ombudsman does not have the authority to set the hours in Mr X’s care plan or assess his need. Our role is to consider whether the Council followed the correct processes when proposing to make changes to his care plan.
53. I acknowledge that Mr X chose not to participate in the care planning review process in March 2023. This would have allowed all parties concerned to have a greater understanding of the circumstances involved and any proposed changes. It was, however, Mr X’s right not to participate.
54. I also acknowledge that the Council made a series of one-off extra payments to Mr X’s DP account from the beginning of November 2023 to the beginning of January 2024. This dealt with the deficit in Mr X’s DP budget. It meant care remained in place whilst the new plan was drafted and discussed with Officer K in the late stages of 2023 before being started in January 2024.

Care plan reduction

55. Mr X complains the Council reduced the level of care set out in his care plan without properly advising him or giving the required time for him to comment on changes.
56. The Council sent Mr X a letter on 10 August 2023 to say it was removing part B of his DPs in 30 days’ time. Although Mr X said he never received it, I have seen evidence of the letter being produced. The Council cannot be held responsible for non-delivery. I am satisfied there was no fault in the Council sending Mr X confirmation of the part B reduction and the original planned timescale.
57. However, when the Council sent the reduction letter, it should also have sent Mr X a copy of the updated care plan and explained it was a draft. I have seen no evidence the Council sent Mr X a copy of the care plan on or before 10 August. Mr X did not receive a copy until the independent support service sent him one on 22 September 2023. There is also no evidence to say Mr X was told at this time that the July/September 2023 care plan was a draft.
58. The Council’s stance on the removal of part C is confused. It was not mentioned in the March 2023 review documents. It was not mentioned in August’s letter. It was not mentioned in the updated care plan sent to Mr X in September 2023.
59. The first evidence of part C being mentioned is in Officer J’s email to Mr X on 3 October 2023, even though any hours above part A were originally planned to have been removed on 11 September.
60. On the balance of probabilities, I am satisfied that it is more likely than not that the removal of part C was overlooked by the Council when proposing changes to the care plan. I am also satisfied that on the balance of probabilities, this error was only realised after Mr X specifically mentioned it in his September complaint to the Council.
61. Section 13.8 of the CSSG says that where a council is satisfied a change to the care plan is necessary, it must work through the assessment and care planning process as detailed in sections 9-12 and section 25 of the Act. Section 25 (9) of the Act states that councils must give a copy of a care plan to the adult it has been prepared for.
62. Whilst there is no definite timeline for this, I am satisfied the Council should have shared the care plan with Mr X in a timely manner. It should have made it clear it was a draft and done this before the cuts were planned to begin. Had it done this, any errors with the proposed removal of part C would have been obvious sooner. Not sharing the plan with Mr X in a timely manner was fault. This would have caused him avoidable distress and frustration. It also meant he was concerned cuts would come into force before he had chance to discuss them with the Council. I have made a recommendation below to remedy this injustice.

Part A hours

63. Mr X said the draft plan sent in September 2023 had assessed his need and set this at 20-25 hours above his original amount of hours for part A. Mr X complains the Council then reduced his assessed need to fit the number of hours he believed the Council wanted to give him.
64. I have seen no evidence to suggest any plan sent to Mr X (before the December 2023 version) showed an increase over the original part A allocation of hours. The hours set for part A were the same in the 2011 plan, and the July and September 2023 draft plans. I am therefore satisfied there was no fault in the Council’s actions here.

Hourly pay rate

65. Mr X complains the Council is using an inadequate hourly pay rate to calculate his personal budget. Mr X says the Council should be paying the amount it would cost it to commission the care itself rather than the LLW. He says that Section 26 of the Act states a personal budget should set out the cost to the local authority of meeting the adult’s needs.
66. As part of my enquiries, I asked the Council how it decided on the amount it paid to Mr X’s DP account. In response, the Council referred me to its personal budget and DP policy.
67. The policy explains that payments for care staff employed by a service user (Mr X) are set at LLW plus a percentage for oncosts.
68. Evidence shows the Council has told Mr X that if he wished to use an agency to organise his care, then it would discuss amending the hourly rate paid to him. The Council considers the hourly rate being paid is sufficient to pay for care staff he organises himself and said it organises care through a number of local homecare agencies in the area, all of which pay the LLW.
69. The Council has taken the view that the cost to it to meet Mr X’s need via the route of him organising his own care staff is met by the LLW plus 30% oncosts. This is a decision for the Council to take. I am satisfied the Council has a policy that clearly sets out its position and as such do not find any fault with its actions.
70. In relation to oncosts, the Council said its 30% figure was a standard one and was calculated internally to cover various costs related to being an employer. It said the amount was agreed to give service users more flexibility. This statement contradicts the Council’s own policy which states oncosts will need to be calculated on a case-by-case basis. This lack of clarity is fault. It would have meant Mr X was unsure on the Council’s calculation of the 30% oncost and how it had been arrived at, causing him uncertainty. I have made a recommendation below to remedy this injustice.

Payroll administration

71. Mr X complains the Council will not share information on how it calculates payments it sends to Company A.
72. In response to my enquiries, the Council said all DPs are paid into Company A’s account in advance of each month. It said the Council DP team informs Company A of the weekly amount being sent. The Council said Mr X should be informing Company A how his personal budget is to be used and the rate of pay to his care staff.
73. I do not have the details of all payments made to Mr X’s account during the period of this investigation. There is, however, no evidence that even if there were payment issues this significantly affected the care provided to Mr X. I am satisfied there has been no significant injustice caused to him. I have made a recommendation below to help avoid future DP account issues and avoid any future injustice.

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Agreed action

74. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise for the injustice caused by the identified fault; and
• remind relevant officers and managers of the need to complete an annual review of Mr X’s DP account when this is due.
75. Within three months of the date of my final decision, the Council has agreed to review the wording of its direct payment and personal budget policy to clarify whether oncosts are a standard amount or assessed on a case-by-case basis.
76. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman