Summary: Ms X complained on behalf of Ms Y, who has complex additional needs. Ms X complained the Council did not provide a suitable personal assistant, concerns about Ms Y’s assessments and issues contacting the budget holder. There was fault in the way the Council did not ensure Ms Y had a suitably trained support worker. There was also fault in the way the Council did not ensure a suitably trained and experience worker completed Ms Y’s assessment, did not ensure Ms Y could contact her budget holder, did not consider an advocate, did not make reasonable adjustments and poor complaint handling. Ms Y was distressed and frustrated by this fault. The Council should apologise, provide a financial payment and issue guidance to its staff.

The complaint

1. Ms X complained on behalf of Ms Y, who has complex additional needs. She complained:

• the Council failed to provide a suitable deafblind communicator for Ms Y,
• the social worker who completed Ms Y’s Care Act assessment in May 2023, did not have the relevant skills to assess a deafblind person,
• the Council did not notify Ms Y about the care charges, retrospectively applied charges and then took finances from her direct payment,
• the Council has not completed the financial assessment properly,
• Ms Y cannot contact her direct payment budget holder.

2. Ms X said Ms Y has reduced her care and support hours because of the issues with her assessment and costs.

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The Ombudsman’s role and powers

3. 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)
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)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. I read Ms X’s and Ms Y’s complaint and spoke to Ms X about it on the phone.
7. I considered information provided by Ms X, Ms Y and the Council.
8. Ms X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

9. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
10. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
11. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
12. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.
13. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
14. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
15. The Care Act 2014 gives councils 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 needs 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 council must involve any carer the adult has. The support plan must 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.
16. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
17. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

18. (Care and Support Statutory Guidance 2014)
19. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
20. The Council’s complaint policy states the Council would look into the complaint quickly and thoroughly and give a detailed response.
21. A communicator guide is a specially trained support worker trained in communication and guiding skills to effectively support people with combined sight and hearing loss.
22. The Council commissions an organisation to manage its direct payments, company B. The agreement with company B includes a section that states people were “able to contact the support provider easily. Calls and emails would be responded to within one working day”.
23. The Care Act 2014 introduces a legal duty on Local Authorities to provide independent advocacy to those who would have 'substantial difficulty' in being involved in care and support processes and have no appropriate individual(s) who can support their involvement.

What happened

24. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
25. Ms Y has complex additional needs and is registered as deafblind. She has a care package totalling 10 hours per week to support with accessing the community to complete shopping tasks and household support. The Council provides a package of care by a direct payment, managed by company B. Ms Y did not make any contributions to her care until she reached pension age in August 2022.
26. The Council completed a financial assessment in August 2022. The Council wrote to Ms Y and informed her the maximum weekly assessed charge was approximately £80. Ms Y said she did not receive this letter.
27. Ms Y contacted the Council in March 2023. She said she was not receiving the correct service as she could not find a communicator guide. She also stated she received a letter explaining her assessed charge was going up to approximately £90 per week. The Council confirmed it would complete a review of Ms Y’s support when a worker was available.
28. The Council completed a financial assessment in April 2023. The Council wrote to Ms Y and informed her the maximum weekly assessed charge was approximately £90.
29. Ms Y contacted a legal rights officer, Ms X. Ms Y challenged the amount of the assessed charge and repeated she needed a communicator guide. Ms Y informed the Council it had not completed an assessment and not included her DRE. The Council advised Ms Y it completed the assessment and as she was receiving a state pension and increased personal independence payments (PIP), her assessed charge increased.
30. The Council completed another financial assessment at the end of April 2023. The Council wrote to Ms Y to inform her the maximum weekly assessed charge was approximately £160.
31. The Council allocated a social worker in May 2023. The social worker completed a home visit to start Ms Y’s assessment.
32. Ms Y complained at the end of May 2023. She said she disputed the financial assessments and the Council had not properly considered her DRE’s. Ms Y said the Council had not informed her of the charges initially. She also raised concerns about not having a communicator guide.
33. The Council completed its review of the support plan in June 2023. The review kept the package of care the same, keeping the direct payment. It confirmed Ms Y used the direct payment to buy hours of support from a local service, service C, to support her with shopping, cooking, support in the community and daily planning.
34. Ms Y provided a list of her DRE in June 2023. The Council considered the request and asked Ms Y to provide evidence of the expenditure with receipts or invoices. Ms Y told the Council she did not keep the receipts.
35. Ms Y requested the Council provide her with an advocate in July 2023. The Council told Ms Y it would research how the process worked.
36. Ms X complained, on behalf of Ms Y, to the Council again in September 2023. She complained about the following matters:
• “Failure to provide a suitable Deafblind Communicator and meet Care Act needs.
• Care Act Assessment carried out by a Social Worker who does not appear to have the relevant skills, knowledge and experience to assess a Deafblind person, having regard to the legislation and the Statutory Guidance.
• Care charges - failure to notify, then applying them retrospectively, then taking the charges directly from Ms X's Personal Budget. Disregard of the Statutory Guidance.
• Appeal against the Financial Assessment - Disability Related Expenditure”.
37. The Council approved Ms Y’s DRE in October 2023 but it would only apply them when it had evidence of the expenditure. It did approve a weekly charge for a gardener. The Council wrote to Ms Y to inform her the maximum weekly assessed charge was approximately £150.
38. The Council responded to Ms X and Ms Y’s complaints in January 2024. The Council did not uphold the complaints. It apologised for the delay and confirmed it sent the letters explaining the assessed weekly charges to Ms Y when it completed the assessments. The response said it considered Ms Y’s requested DRE appropriately and decided what it accepted. The response confirmed the Council would get a specialist sensory social worker to review the request for a communicator guide.
39. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to apologise, make a financial payment and sort the financial assessment issues.
40. In response to my enquiries the Council stated Ms Y had not provided any evidence of her DRE so it could only accept one item of ongoing support. The Council said Ms Y did have a trained communicator guide from the end of October 2023 until she cancelled her support in February 2024. The Council stated if Ms Y could not contact company B, she could have contacted the Council. It confirmed it had not reduced Ms Y’s care package.

My findings

Support worker

41. Ms Y requires a deafblind communicator guide for support. She was not able to source an appropriate worker but received some support from a domiciliary care worker.
42. The Council accepted Ms Y did not have an appropriately trained support worker until October 2023. Not ensuring Ms Y received support from an appropriately trained support worker is fault by the Council.
43. Ms Y received some support from a support worker. She was able to access the community, but she had to explain what she needed. She would not have had to do this if she had the appropriate communicator guide. This is fault and this frustrated Ms Y.

Social worker assessment of a deafblind person

44. The Deafblind people guidance for local authorities sets out the person carrying out an assessment must be appropriately trained.
45. The Council response stated one of the two social workers allocated to Ms Y had more experience of supporting people who are deafblind. It also said both were supervised by a manager with significant experience supporting deafblind individuals. This does not evidence the worker who completed Ms Y’s assessment was appropriately trained, as set out in the Deafblind people guidance. This is fault and presented Ms Y with the uncertainty as to whether her needs were fully understood.

Care charges

46. The Council is able to charge for care. It completed different financial assessments after Ms Y’s circumstances changed in August 2022. The Council should complete regular assessments to ensure any assessed charges remain appropriate.
47. The Council evidenced the letters it said it sent to Ms Y, explaining the maximum weekly assessed charge, after each assessment. Ms Y said she did not receive the letter in August 2022.
48. The Ombudsman expects the Council to send information to people in an accessible way. The Council evidenced the letter is said it sent was clearly addressed and in the same format as other letters, which Ms Y received and accessed. I have seen no evidence to say the letter was returned to sender or any reason the letter was not delivered. On the balance of probabilities, it is reasonable to say the Council sent the letter. The Council was not at fault.

Financial assessment

49. Ms X disagrees with the Council’s financial assessment and said it did not consider her DRE. The Council has evidenced it did consider Ms Y’s DRE requests and what it decided acceptable. It included a gardener in the financial assessment. The Council also agreed to other items to be included as DRE but requested evidence of the costs incurred by Ms Y.
50. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
51. The Council is responsible for how it spends public resources. Ms Y has not provided evidence for the DRE items and without the evidence, the Council is within its right to refuse to include the DRE’s until it has this information.
52. In making its decision, the Council took account of the relevant guidance and information from Ms Y. The Council has stated it would accept Ms Y’s DRE when it has evidence of the costs. However, I have seen no evidence the Council made reasonable adjustments to support Ms Y provide any evidence. Ms Y has complex additional needs, and the Council should have made suitable reasonable adjustments to support Ms Y provide this evidence. This is fault.
53. The Council has now assigned a suitably trained worker to assess Ms Y, support her to provide any evidence for the DRE assessment. It will retrospectively consider any evidence provided.

Contact with budget holder

54. The Council contracted the service with company B, but it remains responsible for the actions of its contractor.
55. The Council’s agreement with company B, detailed in paragraph 22, sets out an expectation regarding communication. Ms Y could not contact company B.
56. The Council stated in its response to the Ombudsman’s enquiries, Ms Y could have contacted the Council to get this information. This is correct, but the Council has a provider commissioned for this service. Company B not responding to Ms Y is service failure and this frustrated Ms Y.

Advocate

57. Paragraph 24 sets out the Council should provide advocacy for people who need an advocate. Ms Y requested an advocate. The Council said it would find out what the criteria was and how the process worked. I have seen no evidence the Council followed up this request. This is fault and frustrated Ms Y.

Complaint handling

58. The Council took eight months to respond to Ms Y’s complaint. In this time Ms X submitted another complaint to reinforce the concerns.
59. While there is no timescale set out in the Council’s policy, the Ombudsman expects a Council to respond in a reasonable timescale. Eight months is not a reasonable timescale. This delay is fault and frustrated Ms Y.

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Agreed action

60. To remedy the outstanding injustice caused to Ms Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Ms Y for not ensuring an appropriately trained and experienced worker completed her assessment, not ensuring she had a deafblind communicator guide, not responding to Ms Y’s request for an advocate, not making suitable reasonable adjustments, poor complaint handling and company B’s service failure. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Ms Y £300 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Ms Y £500 for the frustration identified in this case and the uncertainty about her assessment.
• Retrospectively complete a financial assessment, considering any DRE Ms Y evidences with appropriate support.
• Remind relevant staff of the importance of effective complaint handling.
• Remind relevant staff of the importance of the Council’s duties under the Equality Act 2010 to make reasonable adjustments where necessary.
61. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

62. I have completed my investigation. I have found fault by the Council, which caused injustice to Ms Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman