Summary: Mrs T complained the Council did not properly consider carer’s mileage costs for helping her son access the community. The Ombudsman found the Council was at fault in the way it handled this matter. We recommended a remedy which the Council has agreed.

The complaint

1. The complainant whom I shall refer to as Mrs T, complains on behalf of her disabled adult son, Mr T, that the Council refused to pay carer’s mileage costs for accessing the community. She says that these costs were paid by the Council previously and it has not properly explained why it stopped paying. She also complains the Council failed to carry out an annual review of his care plan.

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The Ombudsman’s role and powers

2. 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).
3. 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)
4. 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

5. I have discussed the complaint with Mrs T and considered the complaint and the copy correspondence she provided. I have made enquiries of the Council and considered the comments and documents the Council provided. I have also considered Mrs T’s comments on my draft decision and the Council’s.

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What I found

Law and guidance

6. The Care Act 2014 gives local authorities 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 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 local authority must involve any carer the adult has. The support plan may 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.
7. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.

What happened

8. The Council completed a care and support assessment in July 2016 and agreed that due to his disability Mr T had a need to access the community. The Council commissioned a care provider to provide 8 hours of care to take him to events and activities. The carers took Mr T out by car and did not charge mileage costs.
9. In April 2018 the Council contacted Mrs T to arrange a meeting with the care provider to address some issues. The Council noted it had not carried out a review of the care and support plan since July 2016. The social worker’s note of the meeting in April, show he agreed to provide a social care review.
10. In June 2018 the care provider asked Mrs T to pay for the carer’s mileage. It explained it had paid the mileage in error for a year, and then invoiced the Council. The Council realised it was not liable in April 2018. The care provider wrote off mileage it had paid, but it would not pay any further mileage from June.
11. The care provider contacted the Council. The Council noted it asked the care provider to send a copy of the original arrangements. The care provider said Mrs T was sure the social worker told her there was nothing to pay from the start.
12. In July 2018 the social worker called Mrs T. He said he was surprised the issue arose two years after care started. Mrs T said they did not have the money to pay for mileage. The social worker checked whether Mr T received Personal Independence Payment (PIP) for mobility. Mr T received PIP mobility. The social worker said he should use it to pay mileage.
13. The social worker discussed with senior managers whether the Council could continue to pay for mileage. The Council noted it should update Mr T’s care plan so the mileage charge would be clear, and that mileage would normally be paid using DLA or PIP unless his needs had changed. The social worker emailed Mrs T to say that mileage was paid using PIP mobility, but as “you have expressed that [you are] having financial difficulties I now need evidence of financial hardship, what are your financial issues now to support consideration of a proposal of a one off payment of £300?”
14. Mrs T replied her own financial position was irrelevant. Mr T was an adult and should be assessed financially in his own right. She said the Department for Work and Pensions (DWP) said it did not tell mobility claimants how to use PIP. Therefore, Mrs T did not accept that Mr T should use his PIP on mileage. She asked the Council to explain on which policy or guidance it based its statement. She also asked the Council to explain why she had been told two years ago that there would be no charge, and why this had changed. She said she was aware of other service users who did not pay for their mileage.
15. The Council replied its standard policy was that mileage should be paid from DLA or mobility. It said that Mrs T was Mr T’s financial appointee and therefore asked what his financial difficulties were. It also explained that he had not been charged for two years due to an apparent oversight on the care provider’s part.
16. Mrs T repeated her request for the policy or guidance which stated Mr T must use mobility benefits. The Council replied, referring to The Care and Support Statutory Guidance (CSSG). This provides guidance on the Care Act 2014 and includes the rules local authorities must follow when undertaking a financial assessment to decide how much a person must pay towards the costs of their care.
17. The CSSG annexe C says that with regard to disability related expenditure:

Paragraph 39: Where disability related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.

Paragraph 40: In assessing disability-related expenditure, local authorities should include the following. However, it should also be noted that this list is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included:

….(c) costs of any specialist items needed to meet the person’s disability needs for example…

(xii) other transport costs necessitated by illness or disability, including costs of transport to day centres, over and above the mobility component of DLA or PIP, if in payment and available for these costs. In some cases, it may be reasonable for a council not to take account of claimed transport costs – if, for example, a suitable, cheaper form of transport, for example, council-provided transport to day centres is available, but has not been used.

18. The Council said that Mr T received enhanced PIP mobility for his transport needs. It said it disregarded this in its financial assessment of his contribution for care provision. Therefore, the Council considered the money was available to cover Mr T’s travel needs.
19. Mrs T said she wanted to escalate her complaint. She said Mr T used all his income for activities and asked the Council to keep to its agreement to pay the mileage. She said it had not explained why it paid mileage for other service users she knew. She said the Council should treat people fairly and equally.
20. The Council replied that what others received was irrelevant to Mr T’s case. It said that the Council’s Transport Policy for Adult Care Services stated transport was not provided for those receiving higher rate mobility allowance. If the cost of transport was higher than the allowance the Council would consider this and if the circumstances of the case were exceptional. Mrs T responded asking what the Council meant by exceptional circumstances and continued to disagree that other service users’ cases were irrelevant. She asked for a copy of the original care plan.
21. In August 2018 Mrs T’s advocate asked the Council to arrange a review of Mr T’s care plan. He said it was over two years since the care plan and a review should be carried out annually. He said Mrs T had not received a copy of the original plan. The advocate called the Council a week later to chase this. The Council added the review to its list to be allocated to a social worker. The Council advised the advocate Mr T should have always paid mileage from his PIP. It said Mrs T refused to respond regarding Mr T’s financial difficulties and there was no point in having a review meeting until she had provided the information requested. It said that Mrs T needed to make a Data Protection Act subject access request for a copy of the purchase order it had originally sent the care provider.
22. The care provider responded to Mrs T’s complaint to it in August 2018. It said the carer did not request payment of mileage until July 2017 because he was not aware of the procedures. The carer then realised he could claim mileage in July 2017, sending invoices to the Council, which it paid. But it queried this in April 2018 and stopped paying. The care provider apologised and wrote off all the mileage costs up to June 2018 due to the catalogue of miscommunication.
23. Mrs T complained further on 1 October 2018 about paying for mileage amongst other issues. On 30 October the Council responded. It said that the carer should have charged mileage from the start. It did not pay travel expenses as this was usually paid by the person themselves. The Council referred to its Assisted Transport Policy, and said this related to the provision of transport itself, rather than payment for travel expenses. The Council said that it would discuss travel at the review of Mr T’s care plan. It understood Mr T received a mobility allowance and said he should use this to pay for his transport costs. However, the Council said if it received evidence it would consider exceptional circumstances.
24. The Council confirmed it had not carried out a review of Mr T’s care plan since 2016. It explained that the Council had a large number of cases to review which it needed to prioritise. It said Mr T’s care package appeared to be working, but it should have carried out a review as Mrs T had requested this. It apologised and said it had set a date for the review. The Council agreed that Mrs T should not have needed to make a request via the Data Protection Act for a copy of the care plan. It should have sent this to her. It apologised for this.
25. The Council met Mrs T in November 2018 to review the care plan. Mrs T said the Council had stopped the review process. The Council’s social worker said he had wanted to sort out the mileage issue first. Mrs T said she had wanted the review to discuss mileage. She asked again what the Council meant by exceptional circumstances, when requesting funding for travel. She also asked why the Council contradicted the DWP’s advice that it could not insist how PIP is used.
26. In late November 2018 the Council’s income team manager advised Mrs T that mileage information was not contained in the Council’s policies but in the Care Act Guidance CSSG. This meant the Council could fund transport disability related expenses if this was in excess of PIP benefit.
27. The Council sent Mrs T a copy of its assisted transport policy and the Care Act before it completed the care plan review in December 2018. The Council did not change the care plan for Mr T, but it identified that as his carer Mrs T had a need for respite. The Council completed Mrs T’s support plan in March and agreed 20 days overnight care for Mr T so that Mrs T could have a break.

Analysis

The overpayment of mileage

28. There was fault by the Council and its care provider because they paid for mileage when this should not have been paid. The Council recognised this almost two years later. However, I do not consider this caused injustice to Mr T because the Council and care provider have written off the overpayment. He did not have to pay for mileage for nearly two years.

The Council’s decision

29. The Council decided it will not continue paying mileage from June 2018. Based on the information I have seen, I have not found apparent fault in the Council’s decision making. In its response to my enquiries the Council referred to its Assisted Transport Policy (2012) for those with eligible social care needs. This states under “Policy” that:

“There is no automatic right to receive transport, and people will be encouraged to use the resources around them for their travel requirements…

It then states under “Principles” that:

If any of the following is in place, an individual’s transport needs will be deemed to be met:

• higher rate DLA mobility allowance
• bus pass and travels independently
• motability vehicle
• lives within reasonable walking distance, and it is safe to walk.
• Note: Individuals in receipt of higher rate DLA Mobility Allowance will be considered to have had their transport needs met, other than where this impacts significantly their carer’s needs.”
1. As Mr T receives enhanced PIP mobility, the equivalent of DLA high rate mobility, the Council’s policy allows it to deem his transport needs are met. However, the Council was willing to consider hardship and a one off payment in view of the circumstances. But it appears Mrs T did not provide information that Mr T was experiencing hardship or that he had exceptional circumstances. I note Mrs T asked what was exceptional, but it was for her to put forward whatever circumstances she wished the Council to consider. I have not found fault here, and therefore cannot question the merits of the Council’s decision.
2. I note Mrs T has asked why other people have had their transport costs paid by the Council. The Council explains it assesses each case uniquely. It says it may pay transport costs for example, where a person needs a specialist vehicle to travel to a specialist day centre a long distance away. The Council says it would be more likely to consider this cost as part of a care plan as the costs would be greater than the PIP mobility benefit. I do not see there is evidence of fault here.
3. Mrs T refers to DWP advice that it does not advise claimants what they should spend their PIP mobility benefits on. The DWP does not advise how the mobility benefit is spent but the Council can take the benefit into account as the Care Act guidance and the Council’s policy provides for this. I have not found fault here.
4. The Council has also considered whether it might assess Mr T’s transport costs as disability related expenditure, when assessing his financial contribution. The Council explained that the CSSG guidance at annexe C says councils should include as disability related expenditure, “ other transport costs necessitated by illness or disability, including costs of transport to day centres, over and above the mobility component of DLA or PIP, if in payment and available for these costs.” Mr T did not apparently have transport costs over and above his PIP mobility. In my view the Council has attempted to properly consider Mr T's disability related expenditure. It has asked Mrs T to provide information about his expenditure. However, Mrs T has not provided this. I have not found fault here.

Explaining the Council’s decision

34. I consider there was fault by the Council in explaining its decision. The Council explained in late July 2018 that its standard policy stated that service users were expected to pay for mileage using their DLA/ PIP mobility. But despite Mrs T asking for it several times, the Council did not send a copy of its assisted transport policy. It then referred to the Care Act CSSG guidance in response to Mrs T's queries about policy. It appears the Council eventually sent a copy of its policy and the Care Act in late November 2018. I consider this delay is fault. It caused Mrs T injustice because she was frustrated and put to time and trouble.
35. The Council referred to its policy again in late November 2018, but said mileage information was not contained in the Council’s policies but in the CSSG. I consider the Council’s responses about its policy were unclear.
36. The Council should not have expected Mrs T to make a DPA request for a copy of the care plan or the Council’s purchase order to the care provider. I consider this was fault, causing Mrs T additional time and trouble.

Delay in carrying out the review of the care plan

37. The Council accepts it should review care plans annually, but it says that due to a large number of cases needing review and Mrs T not raising any issues regarding his care package it did not review the plan in 2017. However, it considered that it had an overview of the service provided to Mr T, and his needs were being met. The Council also says that it took a little longer to arrange the review meeting because Mrs T did not want the meeting at her home.
38. Mrs T says the Council took an unacceptable amount of time to review her son’s care and support plan. As I explain in paragraph 7, Section 27 of the Care Act 2014 says the Council should carry out reviews at least every 12 months. The Council did not do this. It noted the review was overdue in April 2018 but did not progress matters and complete it until December 2018. I consider this delay was avoidable and was fault.
39. Mrs T and her advocate requested a review from June 2018, but the Council did not arrange this. I consider this was fault. As I explained in paragraph 7, the Care Act says councils should carry out a review as soon as practicably possible after the person or representative asks for one. I consider the Council should have taken the change (mileage being stopped) in what Mrs T understood to be part of the plan, as a matter which required review. However, it appears the Council effectively refused to carry out a review until Mrs T replied regarding Mr T's claimed hardship. Having reached disagreement on this at an early stage, I consider the Council should have progressed to review. In addition, in my view the finance issue was not the only matter which should be considered as part of the review. The Council needed to consider Mr T’s needs, whether these were being met and Mrs T’s needs as his carer.
40. Mr T’s care plan did not change significantly on review. However, the Council identified that it should assess Mrs T’s needs as a carer. This assessment led to the Council providing direct payments to Mrs T and to providing 20 days overnight respite care for Mr T to enable Mrs T to have a break as his carer.
41. I consider that the outcome of the review was that Mr T’s needs had not changed and were continuing to be met so he did not lose out on provision that could have been identified earlier. However, Mrs T’s needs as a carer were not assessed until April 2019. So, there was significant delay here. But I do not have sufficient evidence that if the Council had assessed earlier that the needs would have existed. Mrs T has used the provision for three days in 2019. However, it is difficult for me to conclude that there is injustice due to Mrs T losing out on provision that could have been identified earlier.

Responses to Mrs T’s complaints

42. Mrs T said she wanted to escalate her complaint in late July 2018, but it does not appear the Council registered her complaint. The Council responded to various points raised between July and October but did not formally register the complaint until 1 October 2018. It responded on 30 October 2018. I consider this was fault, because the Council should have registered her complaint in July 2018.
43. Mrs T also complains the Council should have escalated her complaint to the next stage earlier.

44. I consider that there was delay by the Council in doing this. This was fault. While some new points were raised, the main issue regarding mileage was the same.

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Agreed action

45. I found fault by the Council as I have explained above which caused Mrs T frustration, anxiety and time and trouble. I recommend the Council pays Mrs T £150 for the distress and anxiety caused by its delays and for her time and trouble. The Council should make payment within 6 weeks of my decision.
46. The Council should also update its transport policy within 6 months to refer to and align with the Care Act 2014 and guidance. The Council should ensure that it clarifies the funding for travel related to directly commissioned services.
47. The Council should remind social workers to aim to review care plans every 12 months particularly when the service user or carer have raised issues about needs changing and care provision. The Council should implement this within 6 weeks of my decision and confirm its action to the Ombudsman.
48. The Council has agreed to my recommendations.

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Final decision

49. I have found fault by the Council and it has agreed an appropriate remedy. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman