Summary: Mr and Mrs X complained about their daughter’s assessed contribution to her care charges and the funding provided to meet her needs. In addition, their daughter has not had respite provision set out in her support plan and the Council failed to provide additional support after she broke her leg. The Council was not at fault

The complaint

1. Mr & Mrs X complain about the way the Council calculated their daughter, Miss Y’s assessed contribution towards her care charges. They say the funding provided is not sufficient to meet the care provision set out in her support plan and having to meet the shortfall is causing them hardship. In addition, they complain the Council has not funded or provided respite care for their daughter to enable them to have a break from their caring responsibilities. They also complain the Council failed to provide them with any support after Miss Y broke her leg. This is causing them stress and is affecting their health.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Mr and Mrs X say they have not had respite for three years. However, it was open to them to complain to us sooner. I have therefore considered what has happened over the last year from when Miss Y’s needs were reassessed in May 2018.
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 considered the information supplied by Mr and Mrs X and spoke to Mr X on the telephone. I have considered the Council’s response to my enquiries, the Care Act and the Care and Support Statutory Guidance.
6. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision.

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What I found

7. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14).
8. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. Councils must ensure that charges should not reduce a person’s income below Income Support plus 25% (the minimum income guarantee). The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
9. Annex C of the Care Act and Care and Support Statutory Guidance sets out the benefits which must be taken into account when considering what a person can afford to pay towards their care from their income. This includes Employment Support Allowance and Disability Living Allowance. The guidance sets out that where disability-related benefits are taken into account, the council 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 council.
10. Everyone whose needs the council meets must receive a personal budget as part of their care and support plan. The personal budget must be an amount that is sufficient to meet the person’s care and support needs. Direct payments are made to individuals who ask for money to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to arrange and pay for their own care and support to meet their eligible needs.

What happened

11. Miss Y is in her fifties and lives at home with her parents, Mr and Mrs X. She has physical and learning disabilities. Miss Y’s needs assessment of May 2018 sets out Miss Y’s need for support with all aspects of personal care, with preparing food and maintaining the home environment. She requires support to stay safe in the home and in the community, with making decisions and choices and is unsteady on her feet and at risk of falls.
12. The assessment noted Mr and Mrs X provided a high level of care and support. It noted ‘Respite has not been an option for some time due to a breakdown with the previous respite provision and had not been pursued due to a feeling of being let down by previous experiences’. The Council agreed to explore shared lives as a possible respite option (where a shared lives carer offers accommodation and support in their own home under the supervision of a shared lives scheme). It noted respite was required to support Mr and Mrs X in their role and to promote Miss Y’s confidence as a move towards more independent living.
13. In September 2018 Mr X complained Miss Y’s assessed contribution had increased from £1.90 to £33 a week and they could not afford this. He also complained they had not had respite.
14. A finance officer visited Mr and Mrs X in October 2018 to discuss Miss Y’s increased contribution to her care package. Mr and Mrs X did not feel it was realistic to support Miss Y on the amount left after she paid her contribution.
15. Miss Y’s social worker visited Mr and Mrs X in November 2018 to carry out a review. They had identified a potential respite provider which the family had visited but which was a higher cost than other providers. The officer noted they would need to look in detail about why this was the most appropriate placement for Miss Y and how many nights provision could be incorporated into the support plan. Mr and Mrs X stated they previously had 57 nights provision each year. The officer discussed that people often had 24 or 28 nights respite but the figure depended on the informal support provided and the reasons respite was required. The notes record the strain of ongoing financial disputes meant Mr and Mrs X did not want to go into details about why they needed respite at that time. Mr and Mrs X felt Miss Y’s mobility had improved which would affect the respite options available.
16. The notes record ‘they do not feel that they can engage with respite planning whilst these financial issues persist due to the time and energy being spent trying to resolve them’. Following the review the social worker agreed to explore the respite provision further, inform the Finance Team of Mr and Mrs X’s ongoing concerns and re-explore Shared Lives to assess whether a mobility assessment may mean this could be considered as a respite option.
17. Miss Y’s support plan of November 2018 set out a weekly budget of £510.34 a week to meet her needs. This was to provide 13.5 hours personal assistant support per week, three days at day care with transport to and from the day care provision plus respite support. This was the same budget as within the support plan of December 2015 which included £54.79 a week towards 57 nights a year respite provision through shared lives.
18. The social worker telephoned Mr and Mrs X in December 2018 to discuss respite support. The notes record the social worker discussed a provision which they hoped could provide respite from January 2019. They discussed funding and making an addition to the direct payment to source this respite, based on 20 nights provision which Mrs X did not consider was sufficient. The notes record Mrs X did not feel they could engage with this until the financial disputes were resolved because they were under huge amounts of stress. The social worker agreed to contact Mr and Mrs X again in January 2019 and said they could contact them sooner if Mr and Mrs X wished to progress support planning for respite.
19. The Council wrote to Mr and Mrs X in December 2018 in response to the complaint. It set out it had assessed Miss Y’s contribution in line with its policy on disability related expenditure. Miss Y’s income had increased, she no longer received any rent allowance as the rent was covered by housing benefit and, in line with its policy, the allowance towards laundry had reduced.
20. Mr X remained unhappy and emailed the Council in January 2019. He considered this did not leave Miss Y with enough to live on. In addition, they had not had respite and the direct payments did not cover the cost of Miss Y’s care package and did not include an amount for respite care.
21. The social worker spoke on the telephone to Mrs X during January 2019. The notes record Mrs X was under a large amount of strain. The family continued to dispute Miss Y’s assessed contribution and until this was resolved did not feel able to progress with a needs assessment or support planning.
22. In February 2019 the social worker met with Miss Y at the day centre and spoke with the day centre manager who had no concerns about Miss Y’s needs being met at the service or at home. The social worker suggested using an advocate to support Miss Y and asked a support worker to raise this with the family. The notes record the family were open to this but were awaiting the outcome of their complaint about lack of respite.
23. The Council responded to Mr X’s complaint in March 2019. It said the budget included an amount for carer support, respite, day services for three days a week and transport to the day service. In addition, there was a balance of over £7000 in the direct payment account. The Council considered there were no reasons why plans for respite options should not go ahead. The social worker spoke with the respite provider and explained they had not managed to review the current support plan with the family. They noted the family had a direct payment and could use this to pay the respite provider if they wished to.
24. Mr X telephoned the Council and following the discussion the Council wrote to Mr X in April 2019. The letter said Miss Y received direct payments per week in July 2015 with a separate allocation for 57 nights of respite. Following a review of the support plan in 2017, the respite care element was transferred to the direct payment giving a budget of £510.34 per week towards her support package. The Council recommended a review be carried out to revisit Miss Y’s support plan to ensure her assessed needs were met.
25. The social worker called Mrs X who said she had complained to the Ombudsman and did not want to progress with the reassessment until they had received feedback from the Ombudsman.
26. In May 2019 Miss Y fractured her leg while on holiday. An NHS physiotherapist contacted the social worker. They had visited Mr and Mrs X and had concerns about the sustainability of the current support. The physiotherapist was sourcing a hospital bed and was visiting again to try out slings for a hoist. Once equipment was in place the social worker agreed to look into reablement with a view to arranging 2:1 support four times a day to assist with personal care, hoisting on to the commode and chair for showering. The physiotherapist had suggested Miss Y’s needs would be best met by a community hospital bed but Miss Y was reluctant to go.
27. The social worker telephoned Mrs X. The notes record Mrs X said her and Mr X were finding it difficult helping Miss Y on and off the commode. The physiotherapist had ordered the hoist which was due to arrive two days later.
28. The social worker spoke with the physiotherapist the next day. Mr and Mrs X had told the social worker and physiotherapist they did not want the equipment and the call times offered were not suitable. The physiotherapist had concerns about the family moving Miss Y safely without a hoist and would visit again to look at moving and handling. The social worker phoned Mrs X who stated she did not feel Miss Y needed the equipment or 4 calls a day. The notes record Mrs X felt she and Mr X could meet Miss Y’s needs. The social worker told Mrs X the direct payment remained in place and could be used to meet Miss Y’s needs. They reiterated that formal support providers would not be able to complete manual handling tasks without equipment.
29. The social worker spoke to the physiotherapist and suggested they meet the family with an occupational therapist to look at completing a risk assessment. This would look at the options explored by the family, the risks associated with each and the decisions made. This would also involve a capacity assessment and potentially a best interest decision. They agreed to pursue this.
30. The social worker called Mrs X in mid-May 2019. Mrs X said the family were continuing to meet all of Miss Y’s needs. Her balance had improved and they were able to transfer her to the commode but this was putting a large amount of strain on the family. Mrs X was unhappy there was no care in place. The social worker said there were direct payments available to use but the occupational therapist’s (OT) report stated Miss Y needed equipment to be moved and care providers could not transfer Miss Y without the equipment in place. If the OT reassessed Miss Y and her need for equipment changed they could re-refer to reablement or the Council could assist with sourcing support.
31. The social worker called Mrs X to advise her they would be attending a visit arranged for late May along with the OT and physiotherapist. The notes record Mrs X did not see the point in the social worker attending when they had not had support when they needed it. Later, they asked the social worker not to attend the meeting.
32. The OT and physiotherapist visited Miss Y who could now transfer with the use of a transfer board.
33. A new social worker took over Miss Y’s case and visited Miss Y in late May. They agreed to refer Miss Y for reablement. Carers had also visited Miss Y and were able to provide support in the evening from June 2019. The social worker arranged to carry out a review of Miss Y’s care needs in July 2019.

Findings

34. The Council is entitled to charge for the services it provides. The Council assessed Miss Y’s eligible needs and calculated a personal budget for the total cost of the services provided to her. It carried out a financial assessment to work out how much Miss Y could afford to pay towards her personal budget and the Council paid the rest.
35. The financial assessment showed Miss Y kept the minimum income guarantee which is set at a level to ensure people still have enough money for everyday living expenses. The Council also considered Miss Y’s disability-related expenses as it was required to do. Mr X considers the amount Miss Y is left with is insufficient. However, there is no fault in the Council’s calculations and the financial assessment was completed in line with the requirements of the law, statutory guidance and the Council’s own policy. The Council is not at fault.
36. Mr and Mrs X consider the current budget is insufficient to meet Miss Y’s needs. The Council’s records show, due to concerns around the budget, Mr and Mrs X were reluctant to participate in a reassessment of Miss Y’s needs. Without a reassessment the Council could not establish whether the current budget was sufficient to meet Miss Y’s needs and what changes were required to ensure she received an appropriate provision to meet those needs. The Council’s records show there is a significant underspend in the budget. Therefore, there was likely to have been sufficient funds available to ensure Miss Y’s needs were met. The Council is not at fault.
37. Miss Y has not attended respite for a significant period of time. The need for respite is set out in her needs assessment and was required to meet Mr and Mrs Y’s needs as carers. There has been a significant delay in sorting respite. However, I cannot say this was due to fault by the Council.
38. The Council should have met the needs in the care plan and therefore should have ensured respite was provided. Miss Y’s personal budget included an amount for respite but the amount was based on the previous provision which she had not accessed for some time. The records show the Council explored an alternative provision but Mr and Mrs X were reluctant to discuss respite while they had concerns about the budget and Miss Y’s financial contribution. The Council asked Mr and Mrs X to contact it if they wished to explore this further and they did not so. Until an alternative provision was identified and costed I cannot say whether the budget was adequate or not. In any case, there was sufficient funds in the budget to use for some respite and it was open to Mr and Mrs X to do so.
39. When Miss Y broke her leg, the Council agreed to provide reablement support. Mr and Mrs X refused a hoist as Mr X says Miss Y did not want to use this. However, an NHS professional had assessed Miss X as requiring a hoist for safe moving and handling. The Council was not at fault for deciding it could not safely support Miss Y without this equipment. The notes show the social worker explained that formal carers could not support Miss Y without the necessary equipment. When Miss Y was reassessed as able to use a transfer board the Council referred her again for reablement support. The Council is not at fault. In addition, Mr and Mrs X had direct payments and it was open to them to purchase support using these.

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Final decision

40. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman