Summary: The Council was not at fault for the way it reached the decision to stop funding Mr Y’s speech and language therapy. It was at fault for failing to consider whether to increase Mr Y’s direct payments annually. It has already paid a backdated percentage increase which was an appropriate way to resolve this. It was at fault when it failed to pay invoices on time which meant the speech and language therapist cancelled some sessions. The Council has agreed to pay Mr Y the equivalent cost of the missed sessions so that he can privately pay for the missed provision.

The complaint

1. Mrs X complained the Council cancelled the speech and language therapy provision in her adult son Mr Y’s care and support plan which meant Mr Y is not receiving the support he requires. It also delayed paying invoices which led to the therapist cancelling some sessions so Mr Y missed out on provision.
2. Mrs X also complained the Council failed to provide a yearly increase of Mr X’s direct payments so Mr Y did not receive the budget he should have.

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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. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

The relevant law and guidance

8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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.
9. 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.
10. The care and support statutory guidance says that councils cannot arrange services which are the responsibility of the NHS. However, they may provide or arrange healthcare services where they are incidental or ancillary to doing something else to meet needs for care and support and the service or facility in question is of a nature that a council could be expected to provide.
11. 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

12. Mr Y is a young adult who lives in supported accommodation. He received 14 hours of one-to-one support a day and shared overnight support. Mr Y also received one session a week of speech and language therapy (SALT) for support with communication. He also received direct payments to fund a range of activities. The Council reviewed Mr Y’s care and support plan in June 2024. The OT recommended Mr Y engage in voluntary work with six OT sessions to support his transition to the new specialist provision. The SALT recommended Mr Y receive ongoing therapy and support for a further year to reduce his anxiety and improve his communication skills which in turn would improve his quality of life. Mr and Mrs X commented at the review that Mr Y had made great progress with the SALT, funding for which was due to end in August 2024, and they would like it to continue. The social worker recommended that the provision continue. Mrs X says all those present agreed.
13. The review noted the SALT had not been paid for work in May and June and so had withdrawn their services until this was resolved. At the review Mr and Mrs X asked that the direct payment for activities was increased by an agreed percentage or that increase to activity costs be implemented at the time of any increase.
14. In August 2024 the Council emailed Mrs X. It agreed to apply an annual percentage uplift to Mr Y’s direct payments. It said it did not hold a budget for therapeutic interventions and so would no longer fund Mr Y’s SALT. It advised the funding would end in August 2024.
15. In October 2024 the Council referred the request for SALT for Mr Y to its joint funding panel with the NHS but the panel declined the request. It said this was not a social care need and Mr Y did not meet the eligibility criteria for NHS provision. It said it was not clear what the benefits of the SALT were or what duration it was required for. It said it was important to consider that any training was passed on to staff and the family so gains made by the SALT to date were maximised. It recommended referring Mr Y to the appropriate community SALT team.
16. Mrs X’s councillor contacted the Council. They said the SALT considered Mr Y was making excellent progress and the SALT considered the support should continue. The Council responded to Mrs X. It said SALT ceased as it was a health therapy it should not have funded. It had also agreed a backdated percentage increase to the direct payments Mr Y received.
17. The NHS told Mr Y’s GP it could not accept a referral for SALT for Mr Y. It said Mr Y had no clear health need or change in presentation. It was not commissioned for long term/ongoing pieces of work but short-term packages of support/training based on identified health needs that impacted communication.
18. In November 2024 the Council produced Mr Y’s new support plan which recommended attendance at a specialist provision where he could undertake voluntary work and the ending of the SALT from September 2024. It noted the Council’s decision-making panel declined the request for the continuation of SALT as this was a health need and it would not fund this private intervention. It also included a one-off payment to reflect a backdated percentage increase in Mr Y’s direct payments.
19. Around this time the Council emailed Mrs X. It said it had agreed to apply an percentage annual uplift to Mr Y’s direct payments and noted she had provided the actual cost of Mr Y’s activities in Mr Y’s support plan. It said the direct payment would be reviewed annually and any changes in the cost of activities would be reflected then. If there were any changes within the year these should be forwarded to the social worker so revised costs could be agreed. It noted the NHS had declined a referral for SALT but noted the supported living provider supported Mr Y with strategies provided by the SALT. It explained it was not lawful for the Council to fund a health need. It said the Care Act allowed for exceptions to this when the support was incidental or ancillary to the services already in place to meet eligible need, such as when medications are administered. It said long term SALT is not something the Council could be expected to provide and it could not continue to fund this service.
20. In mid-November 2024 Mrs X complained to the Council about its decision to not fund SALT, the delay in paying the April and May SALT invoices and issues around the direct payments and lack of annual increases.
21. The Council responded to Mrs X in December 2024. It reiterated it could not fund the SALT as it was a specialised health therapy. It said the supported living provider had confirmed it was using strategies provided by the SALT to support Mr Y. It said it was the NHS integrated care board’s responsibility to provide identified health services and Mrs X could ask the GP for a review of its decision. It apologised or the delay in paying invoices which it said was due to staff absence and advised these were now up to date.
22. It said direct payment increases were applied to variable payments such as personal assistant pay rates. However, activity costs were usually agreed and reviewed annually. It said it had agreed to fund Mr Y’s actual activity costs. It was open to Mr Y to change activities but within the agreed cost. Any change in funding could be agreed at the annual review. It said it had also agreed funding for the specialist centre and for six OT sessions to support the transition to this.
23. In January 2025 the Council updated Mr Y’s support plan to include the costing for the specialist provision attendance and to advise that the actual cost of activities would be used to calculate Mr Y’s direct payments rather than an annual uplift as would be applied to the cost of personal assistants.
24. Mrs X highlighted the contradiction between the review which recommended SALT provision continued, and the support plan which recommended it ended. The Council said the social worker was not qualified to make a recommendation on health needs and so was redirected to liaise with health colleagues. It said the review should have been updated to reflect this. It apologised and has since produced a revised support plan. It again reiterated it would pay the actual costs of Mr Y’s activities rather than apply an annual uplift.
25. Mrs X remained unhappy and complained to us.

Findings

26. 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.
27. The Council decided not to continue to fund Mr Y’s SALT provision which it said was a health need. Mrs X believes this is ancillary to the support the Council provides Mr Y through his care package. The Council disagrees. There was no fault in the way the Council reached this decision so I cannot question it. The Council appropriately referred Mr Y to its joint funding panel and separately to the GP for an NHS referral. Both refused to fund Mr X’s SALT. It is open to Mrs X to complain through the relevant NHS bodies if she disagrees with these decisions.
28. The Council failed to properly consider whether to increase Mr Y’s direct payments each year. This was fault. It has already paid a backdated percentage sum to Mr Y to reflect this. This was an appropriate remedy for the injustice caused. The Council has since explained that an annual percentage increase is applied to variable cost such as those of personal assistants to reflect annual pay increases. This does not automatically apply to activity costs as these do not increase in the same way. It has decided to pay Mr Y a direct payment equivalent to the actual costs of activities and to consider any changes at the time they occur or at the annual review. The Council is not at fault for deciding to provide a direct payment in line with the cost of Mr Y’s activities.
29. The Council failed to pay the SALT invoices in a timely manner. This was fault. As a result the SALT cancelled some of Mr Y’s weekly sessions and Mr Y missed out on provision he was entitled to under his care and support plan.

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Agreed Action

30. Within one month of the final decision the Council has agreed to review the invoices it paid to the SALT and pay Mr Y the equivalent cost of the missed SALT sessions from May/June 2024 so that Mr Y can privately arrange and make up for the missed provision.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman