Summary: Mr X complained the Council reduced his direct payments following a review it carried out in 2018 without giving proper reasons for doing so. Mr X said this caused him distress and negatively affected his standard of living. Based on the evidence there was no fault in the Council’s initial decision to reduce Mr X’s care package. There was fault in the Council’s delay carrying out Mr X’s 2019 needs review however, this did not cause Mr X a significant injustice.

The complaint

1. Mr X complained the Council reduced his personal care budget from 21.5 hours to 10 hours per week following a needs review carried out in 2018.
2. Mr X said his needs could not be met by the new budget and this caused him stress and financial loss.

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The Ombudsman’s role and powers

3. 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)
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 considered the evidence provided by Mr X’s solicitors and the Council which included Mr X’s complaint letter to the Council, Mr X’ s care plans and a report provided by Mr X’s rehab centre.
6. I wrote to the Council and Mr X with my draft decision. I will considered their comments before I wrote the final decision.

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What I found

Law

7. The Care Act 2014 sets out a council’s duties towards adults who require care and support. Section 14 of the Act gives councils the power to charge for the care services they provide. Charges may only cover the cost the council incurs.
8. Councils should assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the council will provide a care and support plan which outlines which services are required to meet the needs and a personal budget that sets out the costs of the services.
9. Councils must assess a person’s finances to decide what contribution he or she should make towards their personal budget for care. The personal budget should also specify the cost to the council of meeting the person’s needs. The Council carries out a financial assessment on an annual basis in line with increases in state benefits.
10. Where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason.
11. A person can choose to receive direct payments and arrange the care and support themselves. The amount of direct payment is derived from the personal budget set out in the care and support plan.

Disability Living Allowance and Personal Independence Payment

12. Disability Living Allowance (DLA) was a monthly benefit for disabled people.
13. DLA was made up of two components: care and mobility. To receive DLA an applicant needed to be eligible for at least one of the components.
14. The care component of DLA comprised two elements: daytime and night-time.
    If the recipient did not receive night-time services, then the night-time element was disregarded in the financial assessment.
15. DLA was discontinued by the government in 2013 and is gradually being replaced by Personal Independence Payment (PIP).
16. Similarly to DLA, PIP is designed to help disabled people who incur costs because of their disability. The amount eligible claimants receive depends on how their condition affects them in their daily lives. Unlike DLA, PIP does not differentiate between day and night-time services.

What happened

17. Mr X suffered a serious brain injury in 2010 and requires significant support with his mobility and decision making. His mother Ms Y provides live in support and Mr X’s solicitors manage his finances.
18. Until 2018, Mr X was receiving £228.27 in direct payments per week for a personal assistant (PA) to provide 21 hours of support. Mr X also attended a rehab centre 1 day per week and was allocated 21 nights of care per year to give Ms Y respite.
19. On 24 January 2018, the Council carried out a review of Mr X’s needs. Mr X’s social worker and a support worker from the rehab centre contributed to the assessment. The Council also carried out a carers assessment for Ms Y in February 2018.
20. The Council noted,“Mr X’s PA takes him out [4 times a week] to the gym which is improving his mobility and strength…[he is beginning] to regain independence. As Mr X has improved in mobility and ability, Ms Y is now able to go out and leave Mr X at home for short periods … the direct payments for Mr X’s personal assistant were initially put in place for respite for Ms Y due to the constant supervision required. Mr X has regained some independence and Ms Y is able to leave Mr X alone for short periods…I feel Ms Y’s caring role is still very intense, so the 21 hours DP are to be reduced to 10 weekly.”
21. The Council sent Mr X a letter informing him of the reduction and explaining he could use his PIP to pay for any extra support he felt necessary. Ms Y appealed the decision. She said the reduction would prevent Mr X from being able to socialise and place undue pressure on her.
22. The Council investigated Mr X’s care plan and social care records and responded to Ms Y’s appeal on 14 May 2018. The Council acknowledged Mr X’s desire to socialise more often but maintained his needs could be met by the revised care package. The Council said it would contact Mr X to discuss ways he could integrate within his community.
23. Mr X’s solicitors complained again to the Council on 3 October 2018. They said the Council did not explain how Mr X’s needs could be met by the reduced care package and Mr X should not have to rely on Ms Y for support or use his PIP to pay for additional care. The solicitors asked the Council to reassess Mr X’s needs and reinstate his previous care package.
24. The Council said it did not uphold Mr X’s appeal and would not increase his direct payments. It said it had properly considered Mr X’s income when calculating his care package. The Council concluded the letter saying it would conduct a review of Mr X’s needs because of concerns Mr X’s mother was struggling to support Mr X.
25. On 2 January 2019, the rehab centre made a report to the Council stating the reduction in Mr X’s support hours had negatively affected his relationship with Ms Y. A nurse who saw Mr X also agreed that caring for him was impacting on Ms Y’s mental health and the reduction in support hours had contributed to this.
26. The Council carried out needs assessment for Mr X on 19 March 2019. The Council again did not increase Mr X’s direct payments but identified that Mr X still required support even though his mobility had progressed, and he was capable of walking independently with a walking stick.
27. Mr X’s solicitor complained again to the Council on 10 April 2019. They said the Council delayed finishing the assessment and failed to adequately consider Mr X’s needs or how the new budget would ensure they were met.
28. On 4 June 2019, the Council responded. It said it had discussed and offered various methods to address Mr X’s need for independence and socialising. The Council said it made a referral for Mr X to receive assisted technology items which would aid with his independence and managing his medication. The Council said it would conduct another needs assessment when he moved into independent living.
29. Mr X’s solicitors asked the Council for a meeting to discuss the relationship between Mr X and Ms Y, which had further deteriorated. The Council and Mr X met on 4 December 2019, along with the solicitors. The Council would not agree to reinstate Mr X’s previous budget but discussed housing options which would allow Mr X to live on his own.
30. The Council arranged for an occupational therapist to assess Mr X in December 2019. It also completed a carer’s assessment with Ms Y. The Council has confirmed it did not complete the assessment in line with its usual timescales because of the impact of the COVID-19 pandemic.
31. On 6 May 2021, Mr X’s solicitors complained to the Council again. They reiterated that the Council should increase Mr X’s personal care budget so he could receive support moving into a new property and for his travel costs. They said the reduction had left Mr X having to choose between moving into independent housing and going to the gym. They said Mr X should have the choice of how to use his direct payments, but the Council was preventing Mr X from doing this. They also said Mr X was using his own money to fund the additional care he required.
32. On 20 May 2021, the Council wrote to Mr X’s solicitors. It reiterated that the budget had been reduced because Mr X’s mobility had increased and Ms Y was no longer supervising him constantly, as she had been previously. The Council said it tried to address Mr X’s need for independence via other resources, but Mr X had not been willing to engage with this. The Council said it reviewed the report made by the rehab centre and did not consider this evidence Mr X’s needs were not being met.
33. After Mr X and the Council were unable to come to an agreement, Mr X referred his complaint to the Ombudsman.
34. In response to the Ombudsman’s enquiries, the Council confirmed it completed the December 2019 needs assessment in August 2021 and subsequently increased Mr X’s personal budget to provide him with more PA support to move into his own property in October 2021. A review carried out by the Council in November 2021 established that Mr X was satisfied the adapted care package was meeting his needs.

Findings

35. It is not the Ombudsman’s role to calculate Mr X’s personal budget care allowance. This is the Council’s role. The Ombudsman’s role is to assess whether the Council has acted with fault in deciding to reduce Mr X’s personal budget. After assessing Mr X’s needs over several years, the Council noted an improvement in Mr X’s mobility in 2018 and decided to reduce Mr X’s direct payments considering this. The Council has considered and relied on the professional opinion of a social worker, an occupational therapist and a report provided by Mr X’s rehab centre in making and maintaining this decision. I am therefore confident the Council has received enough information to make an informed decision regarding Mr X’s personal budget. The Ombudsman cannot question the merits of a decision the Council has correctly made. Whilst I do not question Mr X’s dissatisfaction with the reduced budget, I have not seen evidence which shows the Council was failing to ensure Mr X’s needs were met. There is no evidence of fault in the way the Council has made the decision.
36. Part of Mr X’s complaint is the Council’s delay in carrying out Mr X’s 2019 needs review. The Council has conceded the COVID-19 pandemic caused a delay in completing the review. Whilst I can appreciate the Council’s resources were likely to have been negatively affected by the pandemic. I consider the delay excessive and constitutes as fault on the Council’s behalf. I also cannot see that the Council kept Mr X or his representatives updated on the progress of the review, as I would expect it to. I note the increased care package was in direct relation to Mr X’s move out of the property he shared with Ms Y, which did not take place until several months later in October 2021. I therefore cannot see that the delay caused a significant injustice to Mr X however, I note the delay likely caused Mr X a degree of frustration.

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Final decision

37. The Council was at fault for delaying Mr X’s needs review. This did not cause Mr X a significant injustice. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman