Summary: Mrs B complained about changes in her adult son’s care plan and financial assessment and said the Council failed to provide her with a carer’s assessment. There was fault in the failure to provide a carer’s assessment and the Council did not properly explain, at the time it reviewed the care plan, why it made the changes it did. The Council has agreed to apologise to Mrs B, to carry out a carer’s assessment and to pay a financial remedy.

The complaint

1. Mrs B complains on behalf of her son, Mr C, who does not have the mental capacity to make the complaint. Mrs B complains about the Council’s financial assessment of Mr C, its removal of £30 a week to pay for travel costs and the care worker’s expenses and its failure to provide a carer’s assessment.

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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 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)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. 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

5. I have discussed the complaint with Mrs B. I have considered the information that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

6. The Care Act 2014, the Care and Support Statutory Guidance 2014 (the CASS Guidance), the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support (Direct Payments) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Care plan

7. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a care plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.
8. The local authority must take all reasonable steps to agree with the person the manner in which the plan details how needs will be met, before the authority signs off the plan.

Review of the care plan

9. Local authorities should conduct a review of the plan at least every 12 months.
10. The local authority must involve the person, their carer and any other individual that the person wants to be involved in any review of their care and support plan, and take all reasonable steps to agree any changes.

Direct payments

11. A person can also choose to receive direct payments to arrange the care and support themselves. The amount of direct payment is derived from the personal budget set out in the care plan.

Financial assessment

12. Councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.

Minimum income guarantee

13. Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG) which is set out in the regulations.

Disability related expenditure (DRE)

14. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs.
15. The Guidance states that there is no definitive list of DRE and any reasonable additional costs directly related to a person’s disability should be included.

Council’s policy on DRE

16. The Council applies an automatic standard DRE in the financial assessment. If a person has DRE that is higher than the standard DRE, the Council requires a breakdown and evidence in the form of receipts and invoices.
17. The Council will include a person’s transport costs as DRE only if the costs are over and above the mobility component of the Personal Independence Payment (PIP).

Carer’s assessment

18. Where somebody provides care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.

What happened

19. Mr C is an adult man who has physical and learning disabilities. He receives a package of care and support which is funded by the Council. Mr C’s care package was suspended during the COVID-19 pandemic as Mr C had to shield.
20. The Council restarted the care package in May 2022 and agreed to pay Mr C’s sister as his personal assistant.
21. The Council’s most recent care plan from June 2023 included the following:
• 49 hours personal assistant support per week.
• Yearly payment to access support if informal carer was ill and unable to provide care or if there was a family emergency.
• Short break.
22. I have summarised Mrs B’s complaint and the Council’s response insofar as they are relevant to the complaints I am investigating.
23. Mrs B complained in August 2023 and said:
• The Council carried out a financial assessment of Mr C in May 2023 which resulted in the request for a contribution of £11.92 towards the cost of his care package. Mrs B disagreed that Mr C should pay a contribution.
• The Council previously approved a payment of £30 a week to pay for the expenses of Mr C’s personal assistant, such as paying the bus fare and the entry cost and had now removed this payment from the personal budget.
• The Council carried out a carer’s assessment of her on 17 May 2023 but she has not received the carer’s support plan or the support.
24. The Council responded and said:
• Mr C’s personal budget was sufficient to meet his needs.
• The financial assessment of Mr C took into account the fact that Mr C stopped receiving the disability living allowance and started receiving PIP.
• In terms of the payment of £30, the Council said Mr C was paid the mobility element of personal independence payments (PIP) which should be used to pay for some of the expenses. Also, some social activity providers allowed personal assistants to access venues for free. Therefore, the Council had decided not to include these costs in the personal budget.
• The Council had spoken to Mrs B on 4 August 2023 and had made a referral for a carer’s assessment.

Response to the Ombudsman

25. I asked the Council to tell me when it made the decision to stop funding the £30 expenses. The Council said it had been ‘unable to find clear evidence of an explicit discussion or decision to stop funding the £30 expenses.’
26. I asked the Council to send me the most recent care plan for Mr C when the payment of expenses for the care worker was included. The Council sent me the care plan of 2018. The calculation of the personal budget included the following:
• 24 hours personal assistant support per week.
• Additional expenses – fuel costs, personal assistant to take part in shared activities, ie badminton, swimming, college courses and cinema.
• Short break.
27. In terms of the carer’s assessment, it is my understanding that the Council uses a separate agency, agency 1, to start the process of a carer’s assessment. Agency 1 has a ‘carer’s conversation’ with the carer which is an initial assessment which is then sent to the Council and the Council then decides whether a carer’s assessment is needed.
28. I asked the Council to send me the carer’s assessment of 17 May 2023 and the carer’s plan.
29. The Council said it had not carried out a carer’s assessment in May 2023. The Council offered a carer’s assessment to Mrs B on 21 September 2022 but this was declined.
30. The Council said it made a referral to agency 1 on 4 August 2023, after Mrs B complained to the Council about the lack of carer’s assessment, but it had not received a referral for a carer’s assessment from agency 1. However, the Council also said it had a note from the social worker in August 2023 that referred to a carer’s assessment that had not been written up due to a period of absence and that a fresh referral had been made to agency 1.
31. The Council accepted that it had not carried out a carer’s assessment of Mrs B and it would start this process again.

Analysis

32. It is not the role of the Ombudsman to carry out a needs assessment or financial assessment or to write Mr C’s care plan and personal budget. All the Ombudsman can do is to investigate whether the Council has properly considered the facts, the relevant law, guidance and policies and explained its decisions.

Financial assessment

33. I find no fault in the way the Council carried out the financial assessment. The Council has disregarded the appropriate income and considered the minimum income guarantee.
34. I note that the Council visited Mrs B to carry out the financial assessment and provided her with information on DRE so if Mrs B had evidence of DRE, she could have submitted it.
35. Mrs B did not provide evidence of additional DRE so the Council has applied a flat DRE rate in line with its policy. I find no fault in that respect.

Payment of £30 for expenses

36. I appreciate that, when the Council reviewed Mr C’s care plan in 2023, a lot had changed and Mr C’s care package had been suspended for a time because of the COVID-19 pandemic. I also accept that the care plan was different. The Council had increased the hours of support that Mr C was entitled to, to 49 hours and had agreed that Mr C’s sister could be paid to as Mr C’s personal assistant.
37. Nevertheless, the Council was removing provision from the care plan which it had agreed in a previous plan in 2018. The Council should have explained its reasons for doing so and set these out in the care plan. The Council did not do this and its failure to do so was fault. If the Council had provided its reasons in the care plan properly, this would have given Mrs B a chance of reply before the care plan was finalised. Instead, Mrs B had to complain to the Council.
38. I note that the Council then explained its reasons for the removal of the payment in its complaint response to Mrs B. The Council said Mr C received a PIP mobility allowance and that should cover some of the costs. The Council also said that a lot of venues allowed free access to personal assistants.
39. The Council’s policy states that it will consider transport costs above the PIP mobility rate as DRE so that approach was in line with the Council’s policy.
40. In terms of the costs of access to venues, that is a discretionary matter for councils to consider and depends on the individual’s care plan and the Council’s DRE policy. There are a lot of venues (cinemas, theatres, theme parks, football matches and so on) which allow free access to personal assistants. Mr C’s care plan did not say what activities Mr C would like to attend so it is difficult for the Ombudsman to comment further.

Carer’s assessment

41. There was fault in the Council’s failure to carry out a carer’s assessment of Mrs B. Mrs B provides care and support to Mr C so she should have been provided with a carer’s assessment. It appears to me that the Council said it would do so in May 2023 and again in August 2023 but it did not happen.
42. It is difficult to say whether the fault lay with agency 1 not progressing the request or the Council or a mixture of both. However, it does not matter greatly from the Ombudsman’s point of the view as agency 1 was acting on behalf of the Council so either way the fault remains with the Council. Mrs B has suffered an injustice as a result of the fault as she could have had a carer’s assessment and possibly support as a carer earlier.

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Agreed action

43. The Council has agreed to take the following actions within one month of the final decision. It will:
• Send a written apology to Mrs B for the fault.
• Carry out a carer’s assessment of Mrs B.
• Pay Mrs B £200 for the delay in carrying out the carer’s assessment.

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Final decision

44. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman