Summary: Mr Y complains on behalf of his adult son, Mr W. He says the Council made changes to the services it commissions to meet Mr W’s care and support needs. We find no fault in this part of Mr Y’s complaint because the Council offered an alternative service which met Mr W’s needs within his personal budget. There is fault in other areas of support planning because the Council did not arrange the agreed respite and failed to properly consider transport needs. The Council will apologise and make a £200 payment in recognition of Mr Y’s avoidable distress, time and trouble. The Council will also review Mr W’s needs and consider refunding the respite funded by Mr Y.

The complaint

1. Mr Y complains the Council awarded a personal budget which was too low to meet his adult son’s social care needs. He says this led to a reduction in support because the budget no longer covered the costs of the preferred day service provider. He also said the Council previously covered the costs of daily transport to the facility and two respite breaks per year but failed to include these in the new budget.
2. Mr Y said this has harmed his son’s mental health, leaving him isolated and withdrawn, and imposed a financial burden as Mr Y now covers the reduced services to maintain his son’s care. He wants the Council to increase the budget in line with the care plan and reimburse the additional costs he incurred.

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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. 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. I considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
7. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Personal budgets

8. 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 detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
9. 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.

Meeting eligible needs

10. While the Care Act 2014 says that eligible needs must be met, it also allows local authorities to consider cost-effective methods to do so, provided those methods meet the eligible needs. This is reflected in Paragraph 10.27 of the Care and Support Statutory Guidance, which says:

“In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met)”

“The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value”.

11. The Courts have confirmed a person’s wishes are not the same as their needs and wishes are not the paramount consideration. Councils must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin)).

Key events relevant to the complaint

12. Mr W is a disabled adult with eligible care and support needs. He previously attended a day service provider, which I will call Provider One, for four days a week. Mr W attended Provider One for ten years.
13. In late 2023 there was a change to commissioning arrangements which meant the Council could no longer have a contractual relationship with Provider One and could not continue to commission support from them.
14. The Council reviewed Mr W’s needs on 13 November 2023. The review said, “[Mr W’s] day service is commissioned directly by West Sussex County Council as part of a framework agreement with day service providers which ends on 31 12 2023” and, “regular day care and respite would enable [Mr W] to remain living at home with the support of his father”.
15. The review noted that Mr W cannot walk long distances and Mr Y would struggle to transport him to services due to his own health needs.
16. On 22 December 2023 the Council wrote to Mr Y confirming the name of an alternative service able to meet Mr W’s assessed needs within the personal budget of £203.20 per week. I will call this Provider Two. As the intention was to change Mr W’s funding to direct payments, the Council reminded Mr Y that: “it is your sole responsibility to arrange your care provision”.
17. On the same day, internal emails show the Council planned to put a respite package in place “in the new year”.
18. The Council drew up a support plan on 23 January 2024 with effect from 1 January 2024. Following the change to the commissioning arrangements with Provider One, the Council confirmed its agreement to issue direct payments to allow Mr Y the flexibility to choose a new day service provider.

Was there fault causing injustice to Mr Y and Mr W?

19. The Council has the right to change its contractual relationship with a provider. In advance of that change happening, the Council conducted a reassessment of Mr W’s needs. There is no evidence to suggest the assessment was affected by fault or the Council failed to follow its procedures. The Council arranged direct payments and proposed a provider that could meet Mr W’s needs. While I appreciate Mr W prefers Provider One, this was a preference rather than a need. The Council’s approach is not fault.
20. However, Mr W’s support plan does not specify the type and amount of respite provision which the Council considered that he was entitled to. Nor does it refer to Mr W’s transport needs, despite this being flagged as a requirement during the November review.
21. The Council’s ‘Transport Policy for Adult Services’ says that a service users will not be “automatically eligible for transport to and from the service/activity if there is a suitable or appropriate alternative” and that “the need for and purpose of transport should be clearly stated on an individual’s support plan”.
22. While the Council is entitled to consider Mr W’s ability to pay for his own transport using disability payments, I consider this should be made clear in the support plan as per the Council’s policy.
23. In response to our enquiries the Council acknowledges that the service area did not source respite provision when it should have done. The Council recognises that it needs to apologise for this oversight and review Mr W’s needs. The Council also confirms it will consider any reasonable requests for the reimbursement of respite provision privately funded by Mr Y during the period of fault. Any such requests will need to be supported by proof of Mr Y’s expenditure.

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Action

24. Within four weeks of our final decision, the Council has agreed to:
• Apologise in writing to Mr Y and Mr W for the fault we have identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay £200 to Mr Y. This is a symbolic payment in recognition of the avoidable distress, time and trouble caused by having to arrange and privately fund Mr W’s respite provision as a result of Council fault.
• Contact Mr Y to arrange a re-assessment of Mr W. This should take into account his respite needs and the Council should make clear its position about Mr W’s eligibility for funded transport to day services.
• Contact Mr Y to request proof of any respite provision he has privately funded since January 2024. If the Council is satisfied that the respite paid for by Mr Y was in accordance with Mr W’s assessed needs, it should make the refund within four weeks of receiving evidence from Mr Y.

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Decision

25. I find fault causing injustice. The Council will provide us with evidence it has complied with the above actions to remedy the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman