Summary: Mr Y complains the Council failed to properly fund his mother’s care and support plan, resulting in his loss of respite and wages as carer. The Ombudsman finds the Council at fault in its handling of Mr Y’s complaint. We recommend the Council provides Mr Y with an apology, pays an amount for time, trouble and distress and provides further reasons for its decision on funding.

The complaint

1. Mr Y complains on behalf of himself and his mother Mrs X, that the Council failed to increase the direct payments for Mrs X’s care between August 2014 and June 2018. Mr Y says he missed out on respite and wage increases as Mrs X’s carer. Mr Y says Mrs X sometimes declined personal care so that he could use the funds for respite.

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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 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)
4. 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)
5. 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

6. I spoke to Mr Y about the complaint and I reviewed documents provided by Mr Y and the Council. I gave Mr Y and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

7. Some people who have been in hospital under the Mental Health Act 1983 can get free after-care when they leave hospital. This is called section 117 after-care. It is arranged by the council and the local NHS ‘clinical commissioning group’ (“CCG”).

Care needs and support

8. The Department for Health and Social care publishes guidance on the Care Act 2014.
9. A council will carry out a care needs assessment to decide if a person has care needs that it must meet. It will then complete a care and support plan which sets out how it will meet those needs.
10. Everyone whose needs are met by the council, must receive a personal budget as part of the care and support plan. The personal budget must always be sufficient to meet the person’s care and support needs.
11. The council must inform the person which, if any, of their needs may be met by a direct payment. In addition to this, the council should provide appropriate information and advice concerning the use of direct payments.
12. A council should review the plan every 12 months to see if it is meeting the person’s needs. This includes consideration of whether the personal budget is still sufficient.
13. If there is any information or evidence that suggests circumstances have changed in a way that may affect the appropriateness or content of the plan, the council should immediately conduct a review to see if it needs to change the plan.

Payments

14. The amount of money you receive as a direct payment should always be enough for you to purchase the service you have been assessed as needing. If the cost of buying a service increases and you are no longer able to afford the service, then you have a right to an increase in your direct payment, so long as you can show that you cannot purchase a cheaper service elsewhere.
15. A council is not automatically obliged to apply inflationary increases to a direct payment. The council’s responsibility is to ensure the direct payment is sufficient to meet a person’s needs, taking into account the reasonable cost of securing those services.

What happened

16. In August 2014 the Council agreed a support plan with Mrs X and Mr Y. The support plan shows the Council provided Mrs X with a direct payment which her son Mr Y would assist her to manage.
17. The direct payments were:
• £89.14 per week to engage a domiciliary care agency to provide personal care and some regular respite to Mr Y.
• £102 per week to pay Mr Y to provide care and support to Mrs X.
• £52.29 per week to accrue to pay towards up to six weeks’ respite.
• Total £243.43 per week.
18. The plan says the maximum allowed to build up in the direct payment account is the equivalent to 8 weeks’ personal budget (£1947.44).
19. In April 2015 Mr Y contacted the Council suggesting changes to the support plan. He said Mrs X did not want to use agency carers and the money for agency care should instead be used to provide support at home so he could have more respite. He also asked for an increase in payments for the support he provided in line with DWP care unit increases.
20. In May Mr Y asked the Council to review Mrs X’s care and support plan.
21. In June the Council agreed to amend the support plan pending a review, to include:
• £8 per week to Mr Y for the administration of the Direct Payment.
• £84 per week for domiciliary care provision to provide respite for Mr Y and to assist Mrs X with essential activities of daily living (costed based on 6 hours total; 4 hours respite and 2 hours domiciliary care at the rate of £14 per hour.)
• £102 per week to pay Mr Y. This was not increased to £110 as he wanted as “although the DWP carers unit increase may apply from a DWP perspective, WSCC have not applied any uplift to Direct Payments, as such I have to ensure equity is applied to all residents of WSCC or recipients of care funded by WSCC”.
• £52.29 per week accruable to pay towards residential respite.
• Total £246.29 per week.
22. The Council reminded Mr Y the maximum allowed to build up in the direct payment account was £1947. The Council agreed to amend the personal budget to £246.29 once Mr Y arranged a new agency.
23. In January 2016 the Council contacted Mr Y to arrange a review. Mr Y initially asked for this to be delayed.
24. The Council reviewed Mrs X’s care and support plan in April 2016. I note the plan says there has been no change in the direct payment of £243.43 and records the direct payment as:
• £89.14 per week to engage a domiciliary care agency to provide personal care and some regular respite to Mr Y.
• £102 per week to pay Mr Y to provide care and support to Mrs X.
• £52.29 per week to accrue to pay towards up to six weeks’ respite.
25. The plan notes the Council will increase the amount for respite slightly to £52.59 to reflect the uplift in its weekly rate for residential care.
26. There are no comments to suggest the plan is underfunded. However, the Council notes the direct payment account is in surplus. It suggests this may be to cover the cost of upcoming respite.
27. The plan says Mr Y wants an increase in his payments to bring him into the threshold for a private pension arrangement. The Council told him it would not be possible to increase the budget solely to increase the level of payment to him for this reason.
28. In November 2016 Mr Y complained to the Council the care agency fees had increased but the Council had not increased funding. He said the funds were insufficient to pay for respite and so he was no longer having respite.
29. In December Mr Y asked the Council for an increase in funding to reflect current agency rates and uplifts over time.
30. In March 2017 Mr Y again asked for an increase in funding. He said he was about to book a few weeks’ respite. Although there were currently funds in the account he did not want to run the account down.
31. The Council told Mr Y it would review Mrs X’s support plan to consider the reported increased costs. Mr Y told the Council not to do so as he did not want this to affect an assessment due to be carried out by Council B.
32. In October 2017 Mr Y complained the Council had not reviewed the funding of Mrs X’s support plan over the last three years.
33. The Council told Mr Y it would carry out the review soon and it was looking for an advocate for Mrs X.
34. In February 2018 Mr Y complained again. He said the current costs to meet Mrs X’s care needs were:
• £8 per week to Mr Y for the administration of the Direct Payment.
• £98 per week for 7 x 45 minutes calls for personal care.
• £33.20 per week for 2 hours care to give Mr Y respite.
• £102 per week to pay Mr Y to provide care and support to Mrs X.
• £10.23 remaining to accrue towards 6 weeks’ respite instead of £52.29 as per the original plan.
• Total £293.49 per week.
35. The Council told Mr Y it could not increase the budget without a review and it was still looking for an advocate.
36. The Council carried out a review in April 2018. This reports the direct payments as:
• £98 per week for 7 x 45 minutes calls for personal care.
• £34.20 per week for 2 hours care visit for carer respite.
• £52.59 per week for 6 weeks’ residential respite.
• £58.34 remaining.
• Total £243.13 per week
37. The review says £100 per week is paid to Mr Y and the Council needs to clarify the reason for this. Mr Y says the budget is not enough but the direct payment account maintains an accrual. The Council allows up to 8 weeks’ accrual (£1947.44) and it may recover any surplus. The current account balance is £2243.53.
38. The review reports that Mr Y says the direct payment is underfunded for respite, his employment and agency fees. The Council officer notes they need to discuss this further but they cannot discuss with Mrs X present as it makes her anxious.
39. In May 2018 Mr Y complained the Council had not addressed his complaints since November 2016 that Mrs Y’s support plan was underfunded. He said the figures in its review were incorrect and he was unhappy it was suggesting he was stealing from Mrs X. He said he had now cancelled the 2 hour care visits for respite as this was not funded.
40. At the end of June the Council handed responsibility to meet Mrs X’s care needs to Council B but it remained responsible for arranging her s117 after care.
41. In August the Council provided a final complaint response to Mr Y. It said there was never a need to increase the budget. Rather, there have been large accruals in the direct payment account indicating the budget had been more than sufficient to meet Mrs X’s needs.
42. Mr Y told the Ombudsman Mrs X sometimes refused domiciliary care which meant a large amount of unused funds built up. Prior to May 2016 he used those funds for respite. But after May he felt he needed to keep £2500 in reserve for emergencies.
43. I have summarised the key points in the Council’s response to enquiries:
• The Direct Payments team monitored the Direct Payment bank statements on an ongoing basis, when Mr Y submitted these.
• It reviewed the Direct Payments by email in April 2015 and during reviews in April 2016 and May 2018.
• In each review the personal budget was discussed and commented upon. As there were accruals in the account at each stage it did not identify any shortage in funding.
• There is no record Mr Y complained of a shortfall until around December 2016, when he explained care costs had risen.
• There were numerous months where the Direct Payment account was in surplus (i.e. with a balance over 8 weeks of the weekly Personal Budget: June 2016 – August 2016; August 2017 – Sept 2017; December 2017 and February 2018).
• It has a process to contact customers to explore whether surplus Direct Payment funds need to be repaid. It will exercise discretion depending on the customer’s circumstances.
• It is true there were delays in reviews, however the Direct Payment remained in pay throughout, irrespective of delays. It is not clear why Mr Y believed he needed to keep a large sum in reserve.
• There was a significant delay in carrying out the 2018 review due to several factors:
1. a period of unstable mental health for Mrs Y over several months
2. delays in securing the required attendance of staff from Council B
3. arranging appropriate advocacy services for Mrs X
4. Judicial review proceedings brought by Mr Y
• There is no evidence Mrs X had to give up personal care to fund respite. Mr Y and Mrs X acknowledge that agency home care was not always the preferred option. Therefore, at least for some periods, Mrs X had not used domiciliary care services at her own preference and not because she couldn’t afford it.
44. In comments on my draft decision the Council provided a detailed chronology of the actions taken to progress a review.

Findings

45. Mr Y has taken more than 12 months to complain to the Ombudsman but, as any injustice has been ongoing, I consider it appropriate to investigate the complaint from 2016.
46. The Council should have reviewed Mrs X’s care and support plan every 12 months and certainly when Mr Y complained the plan was underfunded. I note the Council carried out a review in April 2014; made changes in June 2015; carried out a review in April 2016 and then April 2018. There was a significant delay between the 2016 and 2018 reviews however, having reviewed the Council’s chronology, I am satisfied these delays arose due to matters outside the Council’s control. I therefore do not find the Council at fault.
47. The Council did not have to increase Mr Y’s pay as a carer and it has explained why it did not do so. I therefore find no fault by the Council.
48. The information recorded in the Council’s April 2016 and 2018 reviews show the Council did not update the support plan following agreed changes in 2015. The Council says to do so would have prejudiced Mrs X in her dealings with Council B. However, I cannot see why such an amendment would prejudice Mrs X.
49. The April 2018 review does not record payments to Mr Y. Mr Y raised this in his complaint to the Council but there is no evidence it addressed this point or explained the apparent error.
50. The April 2018 review says the Council will have a discussion with Mr Y about the reported increased costs but there is no evidence this took place.
51. The Council told Mr X there was always a surplus in the direct payment account and so no need to increase the direct payment. But I find this does not adequately address Mr Y’s complaint. From November 2016 Mr Y said the amount paid in did not cover the amount he had to pay out. The Council has not directly addressed this in its communications with Mr Y. And, I note the figures within the April 2018 review suggest the direct payment of £243 per week would not cover the cost of the plan, once Mr Y’s payment of £102 per week is taken into account.
52. In light of the above I consider the Council did not provide clear or consistent information and did not directly address Mr Y’s complaint about the direct payments. This amounts to fault.
53. I cannot say whether the Council should have increased the direct payment, as that is a decision for the Council to make. However, I will recommend the Council further explains its decision, with reference to the points raised by Mr Y.
54. Mr Y was put to time and trouble complaining to the Council and he has suffered distress and uncertainty while this matter has been unresolved. I will therefore recommend the Council remedies this injustice.
55. There is no evidence Mrs X declined care due to any lack of funds, but there is evidence she sometimes chose to decline care. I therefore cannot say Mrs X suffered any injustice due to any shortfall in funding.
56. Mr Y says he could not take respite due to the lack of funds. Whereas the Council says the direct payment account usually had a surplus of £2000 and Mr Y could have used this for respite. While I acknowledge Mr Y was reluctant to do so, I consider it was open to him to use the funds available.

Agreed action

57. To remedy the injustice set out above I find the Council should take the following actions within one month of the date of my decision:
• Provide Mr Y with a written apology;
• Pay Mr Y £150 for time and trouble;
• Pay Mr Y £150 for distress and uncertainty;
• Write to Mr Y, addressing his complaint that the cost of funding the plan exceeded the direct payment and explain the reasons for the Council’s decision not to increase the direct payment given Mr Y’s concerns.
58. The Council has accepted my recommendations.

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Final decision

59. I have found the Council at fault in its handling of Mr Y’s complaint. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman