North Tyneside Metropolitan Borough Council (18 011 515)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 18 Feb 2019

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s delay authorising a budget increase, and its handling of his complaint. He says it had a devastating effect and he could not pay his PA for the extra hours. The Ombudsman finds the Council delayed authorising ten hours of support for over two years, and did not deal with Mr X’s complaint adequately. The Council has agreed to backdate the budget, reassess Mr X, and pay him £150 for his time and trouble. It will pay the PA £300 in recognition of the extended time he provided unpaid support, and review its processes to avoid similar problems in future.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains that the Council:
    • delayed over two years in authorising an extra ten hours of support, which it identified he needed in April 2016. The extra ten hours brought the total support he needed to 38 hours, and needed separate authorisation.
    • asked Mr X to provide evidence of the payments he made to his personal assistant for the extra hours, although it knows he did not have the money to pay for this.
    • completed another assessment in April 2018. This reduced his care and support to 26 hours without explanation, and based on the same information as it had previously identified the need for 38 hours.
    • offered Mr X another assessment as a complaint resolution, despite Mr X’s complaint not being about the assessment itself.
  2. Mr X’s personal assistant provided these extra hours although he could not afford to pay. Mr X says this has had a “devastating” effect on him, his family, his personal assistant and his close friends. He would like the Council to recognize what it has done wrong and make sure all workers are trained to an “acceptable level” when visiting vulnerable people. He would also like procedures to ensure actions are followed up and says the Council should not hide mistakes by not answering direct questions. It should put mistakes right with more than “half-hearted apology”.

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The Ombudsman’s role and powers

  1. 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

  1. I considered information from the Complainant and from the Council.
  2. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

  1. The Care Act 2014 (the Act) came into force in April 2015. Some of the main duties it places on councils are:
    • Promotion of wellbeing
    • Prevention, delay, and reduction of needs
    • Provision of information and advice
    • Meeting eligible needs

Assessment and support planning

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
  2. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing.
  3. Where local authorities have determined that a person has eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
  4. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
  5. Everyone must receive a personal budget as part of the care and support plan if the local authority is to meet their needs. 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 and, later, confirm the final budget. 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 an amount enough to meet the person’s care and support needs.
  6. There are three main ways in which a personal budget can be administered:
    • As a managed account held by the local authority 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;
    • As a direct payment. (Care and Support Statutory Guidance 2014)

Direct payments

  1. Direct payments are made to individuals to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. This might involve the person using an agency to provide support, or employing a personal assistant (PA). The local authority has a key role in ensuring that 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.

What happened

  1. Mr X has disabilities and health conditions which significantly affect his mobility and ability to complete daily living activities. From September 2014, Mr X received 28 hours of care from his personal assistant (PA); his personal budget was £295.12.
  2. In 2015, Mr X had an operation which was intended to improve his abilities. Unfortunately, this did not happen and Mr X says instead his need for support increased.
  3. In April 2016, the Council assessed Mr X’s needs and found that he needed 28 hours personal care and 10 hours enabling; his proposed personal budget was £505.92. The extra 10 hours needed authorisation from a panel. The assessment document referred to the impact of the 2015 operation. Mr X says the assessment was lengthy and lasted between 12 and 15 hours over 6 visits.
  4. In January 2017, the Council assessed Mr X’s needs. Mr X says he was unaware of an assessment. The care and support plan notes Mr X needed 28 hours personal care and 10 hours enabling, and gave an indicative personal budget of £305. It noted his need for a further 10 hours enabling (total 20 hours), and said this was health related and not eligible for social care funding. The Council advised Mr X it had yet to receive authorisation from the panel for the 10 hours it was to fund.
  5. In June 2017, the Council completed another care and support plan and said it would continue the budget at £295.12 but would not increase it by the 10 hours. The following week, a case note says the panel agreed the budget but the Council says there is no evidence in its system it had been approved.
  6. A social worker completed another assessment in April 2018, and completed an “up-to-date” care plan which said support would not be increased by ten hours. Instead, the Council said his support for personal care would be reduced by two hours. This meant, effectively, a decrease of twelve hours to the support the Council had previously said he needed. Mr X says his needs were still greater than before his operation in 2015 and likely to continue increasing rather than decrease. The assessment noted that some of the support he received with dog walking and exercise did not meet the eligibility criteria.
  7. In May, Mr X wrote to the Council to complain about the decrease and the failure to increase his budget previously. He said the assessment was flawed as it ignored information from the assessment completed after his operation. He asked the outcome of the panel.
  8. The Council responded in June and apologised for the delay. It said that as Mr X had consistently required 28 hours of care from his PA, this level of support would continue. This inferred that, if he had needed more, he would have used more.
  9. Mr X wrote to the Council again in July asking again about the outcome and to complain about the two hours reduction. Four weeks later, he had not received a response, and wrote again.
  10. A few days later, in August, the Council replied and advised him that the increase had been agreed in June 2017 but the social worker had failed to complete the process. It refused to backdate payment to April 2016 because Mr X had not provided evidence of payment to his PA.
  11. Mr X wrote again asking for more information and explanation in response to his complaint.
  12. The Council reinstated the two hours support. Its final response apologised because Mr X had not received the previous increase to his budget, and offered a “full reassessment” by another social worker. The Council also asked Mr X again for evidence he had paid his PA for the support he provided. Mr X had written a letter to the Council on 27 August 2018 in which he said "Of course I paid my PA extra hours, it was well documented in my Support Plan dated 15.4.16". The Council understood he had paid his PA for extra hours beyond April 2016. However, Mr X had not had the budget to pay him, so the PA had not been paid.

Was there fault which caused injustice?

  1. The Council was at fault in not completing the process of gaining authorisation for the ten hours support proposed by the assessor. Because of this, the Council failed to provide the support it had identified that Mr X needed, without good reason and for over two years. This was fault and caused Mr X significant and avoidable distress. This also caused Mr X’s PA a financial loss, as he worked without pay. It is fortunate that he did, as the impact on Mr X may have been much greater had he not done so.
  2. When Mr X complained about the failure to authorise the 10 hours, the Council eventually accepted its error but asked him to evidence how he had spent money he had not received. This was fault and caused Mr X significant distress and further delay in the payment.
  3. The assessment completed in April 2018, found Mr X needed almost one third less support although the information is the same. The Council has identified some support which it says was not to meet eligible needs. It is entitled to do this, however, it must consider that direct payments are intended to provide flexibility and personal choice. This assessment, coming after the Council’s lengthy resistance to increasing his budget as previously identified, causes Mr X to lack confidence in the outcome. This is a valid concern. This adds to the injustice caused by the Council’s actions in relation to the failure to deal with the earlier increase, and caused Mr X further significant distress.
  4. Mr X did not complain about the information gathered at assessment, but the way the Council had carried out the care and support planning. The Council’s offer of an assessment was not helpful. Although this was not wrong, the Council was at fault in the way it dealt overall with Mr X’s complaint. This caused Mr X avoidable and significant distress, time and trouble.

Agreed action

  1. To remedy the injustice identified above, I recommend the Council:
    • Reassess Mr X’s needs using a different, and appropriately experienced social worker.
    • Reinstate the ten hours enabling support and pay this, less any contingency element, back to April 2016 and until a reassessment is completed. Mr X will need to provide the Council with evidence of payment to his PA once made.
    • Pay Mr X’s PA £300 to recognise the extended period over which he provided Mr X with unpaid support.
    • Pay Mr X £150 for his time and trouble in bringing this complaint.
    • Review its processes to ensure funding authorisations awaiting approval are dealt with promptly.
    • Consider any outstanding funding authorisations and create an action plan to deal with those where the delay is excessive.
    • Complete these recommendations within one month of my final decision.
    • Provide evidence of these actions. Suitable evidence might include:
      1. A copy of the reassessment.
      2. Evidence of the payments.
      3. Details of the review
      4. Copy of the action plan.

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Final decision

  1. I have completed my investigation and uphold Mr X’s complaints that the Council:
    • delayed over two years in authorising an extra ten hours of support, which it identified he needed in April 2016. The extra ten hours brought the total support he needed to 38 hours, and needed separate authorisation.
    • asked Mr X to provide evidence of the payments he made to his personal assistant for the extra hours, although it knows he did not have the money to pay for this.
    • completed another assessment in April 2018. This reduced his care and support to 26 hours without explanation, and based on the same information as it had previously identified the need for 38 hours.
    • offered Mr X another assessment as a complaint resolution, despite Mr X’s complaint not being about the assessment itself.
  2. When the Council completes the agreed actions, it will remedy the injustice it caused as far as possible.

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Investigator's decision on behalf of the Ombudsman

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