Essex County Council (17 017 366)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 27 Nov 2018

The Ombudsman's final decision:

Summary: The Council delayed increasing an Adult Social Care personal budget by over a year, meaning the representative had to keep providing support she no longer wished to. The representative also funded the shortfall for staff wages. The Council has produced a confusing support plan, which has caused dispute. The Council should review the care package, and backdate any amendments. The Council will apologise to the service user and representative, and pay £750.

The complaint

  1. The complainant, who I will call Ms B, says the Council failed to act under the Care Act when it cut her daughter’s (Miss C’s) personal budget, meaning she can no longer afford to maintain her routine and fund activities listed on her care plan. The Council delayed in this case, and caused protracted correspondence. The Council has not properly considered Miss C’s Disability Related Expenditure (DRE) meaning she now must contribute to her care costs. Ms B says the Council actively resisted her attempts to get the right care and support for Miss C, and made things difficult and stressful. Ms B employed a solicitor to help her try and resolve the issues and relieve some of her stress, to enable her to still continue a mother/daughter relationship with Miss C.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:
  • their personal representative (if they have one), or
  • someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

  1. Ms B is Miss C’s court appointed deputy for health and welfare, and property and finances, so is a suitable representative to bring her complaint.
  2. If we are satisfied with a council’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 considered:
    • Information provided by Ms B, and a solicitor acting on her behalf.
    • Information provided by the Council in response to my enquiries.
    • The Care Act 2014 and the associated ‘Care and support statutory guidance’
    • The Care and Support (Charging and Assessment of Resources) Regulations 2014.
    • Responses from both parties to a draft of this statement.

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What I found

  1. Miss C lives alone with 24-hour care support arranged by the Council, Monday to Friday. Miss C spent every weekend with Ms B. Miss C receives her personal budget as direct payments which Ms B manages.
  2. In June 2016 Ms B asked the Council to review the budget to allow for an increase to staff wages; Ms B as the employer is required to pay the National Living Wage. This triggered the Council to review Miss C’s care package.
  3. Ms B queries whether this should have triggered a review. The statutory guidance requires councils to keep support plans under review, and should ensure to complete a review at least each year. The guidance says the duty on the council is to ensure that a review occurs, and if needed, a revision follows this. The Council has taken this to mean it cannot make changes without a review. The guidance also says if there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, then the council should immediately conduct a review to find out whether the plan needs revision. Ms B explains this was not the case, and the existing plan was meeting needs, it was simply that an uplift was required in the budget to cover an increase in staff wages. I can see both sides of the argument, but would not criticise the Council for deciding to conduct a review.
  4. The Council delayed completing the review, so one was probably due or nearly due by the time the Council did it anyway. The Council completed the review in March 2017.
  5. Ms B says the Council told her before the review that it would cut Miss C’s personal budget. The Council must complete an assessment and resulting care planning based on meeting eligible needs, and not based on its budget. I am satisfied the Council decided Miss C’s personal budget following the proper process of assessment.
  6. All parties agree with the outcome of the review about Miss C’s eligible care needs, and the support plan to meet those needs. What is in dispute is the personal budget, as Ms B says it is not enough to meet Miss C’s needs.
  7. The Council has a duty to meet assessed eligible needs, and the way it will do so is set out in a support plan.
  8. Miss C’s support plan includes provision for personal assistants to go with her to activities and voluntary work, to enable her to take part. Ms B says that to ensure Miss C can attend and take part in these activities she needs money towards the cost of petrol and the cost of the activity. Ms B says the Council used to provide some funding, but has withdrawn it.
  9. Where someone receives the mobility component of the Disability Living Allowance benefit it is expected they use it to meet their transport needs. Miss C does receive this benefit so the Council said it has no duty to provide funds for transport. Ms B argues that as Miss C lives in a remote area and it is unsafe for her to use public transport, she relies on her car and transport is costly. Miss C also has high car insurance costs, as must insure all of her personal assistants to drive the vehicle. The Council should consider each individual case; there may be valid reasons to include some money for transport in a personal budget, or to take account of it in the financial assessment as disability related expenditure.
  10. The Council has assessed that Miss C has a need to access and engage in work, training, education or volunteering. And that she has a need to make use of necessary facilities or services in the local community, including recreational facilities or services.
  11. The support plan says under the section ‘how you will be supported’ that personal assistants will support Miss C to participate in work. It does not actually say personal assistants will support Miss C to participate in activities. However, there is a section called ‘weekly plan of support in place, funded by Miss C’s personal budget’. This lists all the activities which Miss C currently takes part in. There is then a section called ‘how will you spend your personal budget’ and this specifies it will be spent on 122 hours per week of personal assistant support; so not on activities or transport.
  12. The support plan is therefore contradictory and confusing.
  13. The Council says there may be other activities that are free or at a lesser cost, but has not provided Miss C with any options. Neither the Council or Ms B has ever found a suitable and needs appropriate activity for Miss C that is cheaper than her current activities.
  14. Since Ms B complained to the Ombudsman, the Council has included £50 per week into Miss C’s personal budget, towards the cost of transport and activities. The Council says this is to promote social inclusion, social stimulation and enable Miss C to enjoy a ‘good life’. The Council has backdated this to the date of the review. This suggests the Council accepts it was wrong not to include something towards transport and activities for Miss C. However, it does not show how the Council decided the extra £50 per week was enough to meet Miss C’s assessed eligible needs.
  15. The complaint stemmed from a request in June 2016 for an increase in the budget to cover staff wages. The Council paid the increase in March 2017.
  16. In August 2016 Ms B told the Council she could no longer provide support for Miss C every weekend; she needed five weekends off per year. The Council is responsible to ensure Miss C’s care needs are met, and was required to put support provision in place for those five weekends. The Council did not adjust Miss C’s personal budget to take account of the extra personal assistant support needed for five weekends per year until October 2017, over a year later. There was lots of correspondence between solicitors acting for both sides, it seems Ms B’s statement that she could no longer provide support every weekend got overlooked by the Council. Ms B says the Council actively resisted her request, but I have seen no evidence of that.
  17. In August 2016 Ms B asked for a payment for annual leave accrued during maternity leave. The Council did not pay this until September 2017.
  18. Ms B says Miss C’s personal budget has no provision for team meetings, which they currently complete monthly. I note there is no mention of team meetings in Miss C’s needs assessment or support plan. I have no evidence to show whether this is required as part of Miss C’s support planning. If the Council assesses that team meetings are required to meet Miss C’s eligible care needs, then there should be an allowance made within her personal budget.
  19. Ms B also raises the issue of staff training. The Council explains staff training is Ms B’s responsibility as an employer, and that grants are available from Skills for Care to meet the costs of learning and development. Ms B says she has considered it, but this company does not offer the training Miss C’s staff need. I am surprised there is no contingency built into Miss C’s support plan, that might allow for ad hoc training to support Miss C through a particular need such as a bereavement. The Council should consider whether Miss C’s staff need training to meet her individual needs, if so and that cannot be met by other organisations as Ms B says, then the Council should give an allowance in Miss C’s personal budget for this.

Change in Council policy

  1. In December 2016, the Council decided to make changes to the way it charges for adult social care. The Council followed the correct process to decide the change. It carried out consultation with user groups, and completed an Equality Impact Assessment to consider the impact. The Council’s Cabinet decided the change; that is the leader of the Council and a group of councillors.
  2. Part of the change was about Disability Related Expenditure (DRE). Although the Council had no formal policy, internal practice had developed so the Council was allowing certain items as DRE without any assessment. For example, telephone line rental which mostly will not be linked to a disability.
  3. The Council decided that social workers will define what is DRE for the individual, and recommend to financial assessors what they should discount. This would take place for all new service users, and at care reviews for existing users. In addition, the Council would carry out a high level review of financial assessments in April 2017. Any spending unlikely to be DRE would be reduced; the Council would tell service users, who could ask for a review.

What is Disability Related Expenditure (DRE)

  1. If you are receiving care support then your local council must complete a financial assessment to find out what, if anything, you can afford to contribute towards your care costs. After paying your required charge, your weekly income should not go below the Minimum Income Guarantee set by the Government.
  2. Councils can take disability benefits into account when deciding how much to charge you. If they do, they must discount any expenses that directly meets any disability related needs they are not meeting. This is DRE.
  3. There is no set list of what is DRE as it is individual for the person. The Care and Support Statutory Guidance provides a list of examples for councils to include, but confirms the list is not exhaustive. The Council should include any reasonable extra costs directly related to a person’s disability.

What happened

  1. In February 2017 the Council wrote to Ms B with her assessed charge to be applied from April, based on a financial assessment. Miss C previously did not have to contribute, but due to changes described above the Council was no longer allowing certain items such as hairdressing and telephone rental as DRE for Miss C. She now had to contribute towards the costs of her care.
  2. The Council should review financial assessments at least each year. At the 2018 review Miss C’s contribution towards her care charges increased because of an increase in her benefits.
  3. Ms B asked the Council to review what it was allowing as DRE, as did not feel it was including all costs Miss C was incurring as a direct result of her disability.
  4. One of the items sought is continence products. The Council says this is directly linked to Miss C’s disability, but expects the NHS to meet this need. In this case the NHS has said it will not provide continence products to Miss C. The Council says there is an appeal, which it can support Ms B to follow. However, Ms B says the type of pads Miss C needs are not available on the NHS, so the appeal would not help.
  5. The Council contradicted itself in response to my enquiries. It said Miss C’s continence issue was a direct result of her disability when considering continence products, but not when assessing the cost of extra laundry.

Was there fault causing injustice

  1. The Council’s support plan is confusing and contradictory, and that is the primary source of the dispute. The complaint could have been avoided if the support plan was clear on whether the actual activities Miss C attends are the only way her needs can be met. The support plan says it is only providing the cost of personal assistants, but then lists activities under a heading ‘weekly plan of support in place, funded by Miss C’s personal budget’ which reads the activities are to be paid for from the personal budget.
  2. Ms B has used a solicitor to help resolve her issues with the Council, and has asked for consideration of her legal costs as part of the remedy to the complaint. The Ombudsman does not normally take account of legal costs, because complaints can be resolved without the need for legal support so the cost is not a direct injustice of any fault by the Council. I accept Ms B’s argument that she needed to lessen some of the strain she was under, to enable her to uphold a mother daughter relationship with Miss C. However, I do not consider the circumstances of this case are exceptional and warrant the Ombudsman making an award for legal costs. I also take into account that as Ms B is Miss C’s court appointed deputy for finances and for health and welfare, she has accepted a responsibility to take on the strain of resolving such issues as those involved in this complaint.
  3. Ms B says she has found it all very stressful and is now spending two days per week managing Miss C’s life and care, whereas previously it would only take her around half a day a week. This leaves her less time and energy for the self-employed work she does, and prevents her achieving a good work/life balance so she can provide her daughter with the best family support over the weekends.
  4. Ms B tries to involve Miss C as much as possible in her care and support, so they both attended a meeting with the Council to try and resolve the complaint issues. Ms B says the Council made no effort to involve Miss C, so it was confusing for Miss C and caused her some anxiety.
  5. It took the Council over a year to increase Miss C’s personal budget to include support for five weekends per year. Because of this delay, Ms B continued to provide support when she had told the Council she no longer wanted to. This put strain on Ms B’s relationship with her husband, and put a burden on her she should not have had to face. Ms B would of course put her daughter’s needs before her own, but it was unfair on her to have to choose.
  6. The Council had long delays making payments to Miss C, in the interim Ms B funded the shortfall. The delays caused frustration, time and trouble to Ms B and caused some anxiety to Miss C.
  7. I understand Ms B’s comments about the continence products Miss C needs being unavailable on the NHS. However, it is reasonable to expect she pursue every avenue. Therefore, if Ms B has not already done so, she should appeal the NHS decision not to provide Miss C with continence products. If the outcome of the appeal remains the same then the Council should review the financial assessment. Miss C is having to buy continence products as a direct result of her disability, and if there is no suitable alternative to get these products then the cost is DRE.

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Agreed action

      1. Amend Miss C’s support plan to clearly define how it will meet her assessed eligible needs.
      2. Consider whether a contingency payment should be included in Miss C’s support planning. If not, clearly explain why not.
      3. Show how it determined £50 per week towards petrol and activities was sufficient to meet Miss C’s eligible care needs. If it determines a higher amount is required, the Council should backpay this to the date of the review.
      4. Review the request for team meetings and staff training to be included in Miss C’s support plan. If the Council accepts this is required it should backdate any increase in Miss C’s personal budget to the date of the review. If it does not agree these are required then it should clearly explain its reasoning to Ms B.
      5. Review Miss C’s Disability Related Expenditure. If the Council decides it should allow any items claimed that are not currently allowed, it should consider whether those items should be backdated to the 2017 review. It should clearly explain the outcome of this review to Ms B. The continence products will take longer due to the appeal process, unless the Council accepts Ms B’s assertions and decides to include these without an appeal.
      6. Apologise to Ms B for its delays in paying funds for backdated maternity pay, increase in staff wages, and for weekend support for Miss C.
      7. Pay Ms B £750 to acknowledge her time and trouble resolving the issues, to acknowledge the weekends she provided support when she should not have had to, and to acknowledge she used her own funds to supplement Miss C’s support due to delays by the Council.
      8. Apologise to Miss C for its delays in this case.
  1. The Council should complete these actions within one month of the Ombudsman’s final decision, and provide evidence to the Ombudsman of its compliance.

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Final decision

  1. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact of the identified fault in this case.

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Investigator's decision on behalf of the Ombudsman

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