Surrey County Council (18 011 536)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 29 Apr 2019

The Ombudsman's final decision:

Summary: Ms X and Ms Y complained the Council reduced their mother’s direct payments but her care needs had not changed. The Council calculated their mother’s personal budget based on its assessments of her needs. It has explained how the budget is sufficient to meet those needs, based on its experience of costs within the local care provider market. The Council took too long to respond to Ms X and Ms Y’s complaint. It has apologised which is appropriate to remedy the injustice.

The complaint

  1. Ms X and Ms Y complain the Council reduced their mother, Mrs Z’s direct payments used to meet her assessed care needs. They say the Council based this decision on an out of date assessment and that Mrs Z’s care needs have not changed or reduced to justify this reduction. They say the Council has not properly assessed Mrs Z’s circumstances and needs and has therefore unfairly capped her budget.
  2. They say that as a result of the Council’s decision, the family has had to meet the shortfall to provide the care Mrs Z needs.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 spoke to Ms Y about the complaint.
  2. I asked the Council questions and considered their response.
  3. I considered the Care Act and Care and Support statutory guidance.
  4. I gave the Council and Ms X and Ms Z and the opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

  1. Councils must assess someone’s care and support needs where they appear to have those needs. This assessment must consider what care and support could help them meet the outcomes they want to achieve in day to day life.
  2. If this assessment finds the person has eligible care needs, the Council must identify a personal budget that is proportionate to the needs to be met. Personal budgets must not assume people are forced to accept specific care options such as moving into care homes against their will because this is perceived to be the cheapest option.
  3. Care Act statutory guidance says councils should ensure calculation of personal budget produces equitable outcomes, regardless of the environment where care and support takes place. They should not impose arbitrary ceilings to personal budgets that result in people being forced to accept to move into care homes against their will.
  4. The Care Act says that the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In deciding on this cost, the council should consider the local market and cost of local provision to ensure the personal budget reflects local market conditions and that appropriate care that meets the person’s needs can be obtained for the amount set out in the budget.
  5. The Care Act says that in deciding how to meet someone’s care needs, councils must take into consideration its financial position. They can consider whether the funding it has is enough to meet the needs of the population. They can reasonably consider how to balance this requirement with the duty to meet the eligible needs of an individual in deciding how an individual’s needs should be met.
  6. Councils then carry out a financial assessment to decide how much the person should pay towards meeting their assessed care needs. In this complaint the Council decided Mrs Z did not need to contribute towards meeting her assessed care needs.
  7. Direct payments can be used to pay some or all of the assessed personal budget. This is to give the person as much independence, choice and control over how they meet their care needs. Councils can give someone needing care a pre-payment card. They or their representative can use this to purchase care.

Background

  1. At the start of the period covered by this complaint, Mrs Z lived at home with her (since deceased) husband. Mrs Z had suffered strokes in recent years resulting in serious ongoing health problems.
  2. Mrs Z and her husband had a range of care needs, and had care provided by two day time care workers and one waking night worker. These were individuals considered particularly appropriate by the family.
  3. Mrs Z had previously been awarded continuing health care funding by the NHS. The NHS assessed her as no longer being eligible for CHC funding in June 2017.
  4. The Council assessed Mrs Z’s care needs in June 2017 because of this change in her circumstances. The assessment identified she needed assistance with a range of daily tasks including nutrition, personal hygiene, maintaining the home, being clothed and being able to use her home safely.
  5. It said that though the couple’s needs were being met by two carers during the day, the Council wanted to consider whether a single carer could meet their assessed needs. The assessment said Mrs Z needed a waking night worker, particularly because of a risk from choking.
  6. The Council continued to maintain payments to the care provider for care to the couple at the same level provided by the CHC funding until the end of September 2017. This was to allow assessment of Mrs Z’s needs, particularly what care she needed during the night.
  7. The Council carried out several occupational therapist (OT) visits in July, August and November 2017. They trialled use of different equipment. The OT concluded that a different approach would not work with the chosen care agency.
  8. The Council completed a care and support plan for Mrs Z in November 2017 using information from the June 2017 assessment. The Council’s case records are that it sent a copy of this plan to Ms X and Ms Y although they do not recall getting it. This concluded her assessed care needs could be met by a Direct Payment of £950 per week. It says this was because it assessed her social care needs as being at nursing level. The average cost of purchasing nursing care in a 24 hour facility in the local area was £950 per week. The Council’s average for the whole of its area is £665 per week. It says this shows it has taken into account the real cost of purchasing nursing care in the local area where Mrs Z lives. Ms X and Ms Y consider the Council was trying to force them into accepting nursing home care.

Complaint

  1. Ms X and Ms Y complained to the Council in December 2017 about the Council’s actions in respect of Mrs Z and her husband. They said the Council had reduced Mrs Z’s direct payments without properly reviewing her needs. They asked the Council to properly assess and prepare an appropriate plan.
  2. The Council service responded to the complaint in December. It said Mrs Z no longer received CHC funding because her health had improved and she did not need as much support. It said the Council had assessed Mrs Z at the highest (nursing) level of social care need. It provided figures to show how the assessed home care needs could be met by locally available provision at a cost within its agreed £1,900 (£950 x 2) direct payments to the couple.
  3. It explained this personal budget was therefore adequate to meet the cost of commissioning appropriate carers to meet Mrs Z’s assessed care needs using cost information from two alternative registered local care providers. This was based on 24 hour care needs including two staff for moving and handling. It understood the family chose to use a different provider that was more expensive. It explained they would need to meet the additional costs above the personal budget.
  4. Ms X and Ms Y continued their complaint and the Council replied at stage two just under two months later. Some of its reply concerned Mrs Z’s husband. I have not summarised or commented on this further as this did not form part of the subsequent complaint to us.
  5. The Council said it considered Mrs Z’s care needs could be met in a local nursing home that would cost £950 per week. This was the basis for its calculation. It had already provided a breakdown to show this was also enough to pay for live in care using appropriate local care providers.
  6. The Council was prepared to pay direct payments at that level so the family could choose to purchase care and Mrs Z could remain living at home. It had demonstrated this was enough to pay for home care workers on the Council’s approved list. If they chose to purchase care at a higher level then the extra cost would need to be met by Mrs Z or by the family.
  7. The Council set out how it considered its decisions conformed with the couple’s human rights. Its use of direct payments through a pre-payment card allowed them to choose to use the money to remain in their own home with support able to meet their assessed care needs. If they could not meet their needs in the community with the funding provided then they could be placed together in a nursing home. The personal budget was also sufficient for this.
  8. Ms X and Ms Y replied in March 2018 to say the last assessment of Mrs Z’s social care needs dated from June 2017. This was out of date. They also said the Council was imposing a cap on funding. The cost of care through a nursing home was not appropriate as the basis for calculation as the couple wanted to remain living at home. The Council had not considered their case on its merits.
  9. The Council did not reply until August 2018. It had apologised by email during the intervening months for the ongoing delay. It said that the annual review of Mrs Z’s care needs was overdue. It would carry this out as soon as possible. It said it did not have a cap on costs. It was allowed to take into consideration its own finances and budgets. It had made a decision on the circumstances of Mrs Z’s case.
  10. It said it would “not generally pay an amount to support someone to live in their own home, excluding equipment and property adaptations where the gross cost… is greater than the council would expect to pay for a care home environment which will meet their needs unless there are extenuating or exceptional circumstances”. It referred Ms X and Ms Y to the Ombudsman.
  11. Ms X and Ms Y continued to correspond with the Council. They said the Council had failed to explain why it had reduced payments without evidence from assessed needs.

Second needs assessment

  1. The Council carried out an assessment of Mrs Z’s social care needs in September 2018, using information from March 2018. This was broadly in line with the assessment carried out over a year before. Mrs Z still needed support from two carers at times during the day and one carer over night. The assessment action plan refers to the intention to complete a NHS CHC checklist as some needs were health related.

Complaint to Ombudsman

  1. After the second assessment, the Council said the complaint was closed and again referred Ms X and Ms Y to the Ombudsman. Mrs Z’s husband died in November 2018. The Council has told us it will reassess Mrs Z’s care needs because she is now living alone once this investigation is complete.
  2. Ms X and Ms Y complained to the Ombudsman about the Council’s decision and the impact of the family having to find the extra funding. They said this was necessary because Mrs Z knows and trusts these carers. They had had to make cutbacks elsewhere and had been distressed by what had happened.
  3. In its response to my enquiries, the Council said it had assessed Mrs Z as having 24 hour nursing needs, including waking support at night. It had decided that these needs could be met within a combined direct payments budget of £1,900 per week for Mrs Z and her husband.
  4. It had explained how the figure of £950 each per week would enable purchase of 24 hour care meeting Mrs Z’s assessed care needs using home care providers on the Council’s tendering framework. It explained that the family had chosen to pay more for care workers not employed by a provider on its approved list. This was their choice and they are able to continue to do so provided they pay the difference.
  5. The Council explained it had offered Ms X and Ms Y a carers assessment and they had not taken up this offer. Ms X and Ms Y say the Council first offered a carer assessment after my investigation started.

My findings

  1. The Council appropriately decided to assess Mrs Z’s care needs when the NHS decided to stop CHC funding. Its assessment and care plan found Mrs Z had a range of high-level care needs. These could be met by 24 hour home care. Its financial assessment found she did not need to contribute towards meeting the cost of her eligible needs.
  2. The Council’s two care assessments and care and support plans appropriately set out Mrs Z’s care needs and how these will be met. They do not refer to the need for home care to come from the specific provider chosen by the family. They show evidence the Council has explored different options including potentially reducing the need for a second carer. The Council discounted this option having trialled it. The Council has provided evidence it shared the support plan with Ms X and Ms Y. They do not recall sight of the plan until I sent it as part of my investigation. I cannot explain why there is this difference in evidence and so cannot make a finding concerning it.
  3. The Council has explained why its calculation of Mrs Z’s personal budget of £950 was sufficient to cover its assessment of her care needs. It has shown this is enough to purchase the required level of home care, including night time cover from two registered local care providers. Its calculation is therefore appropriately based on information about the real costs of suitable provision in the local market. Ms X and Ms Y strongly disagree, noting that the figure quoted would require carers receive less than the minimum wage. However, as the Council has shown how it has considered how Mrs Z’s care needs could be met, having regard to the local market, I cannot say there was fault in how it made its calculation. It is entitled to come to a different view, having had regard to relevant information about the local market and Mrs Z’s care needs
  4. The Council has explained this is also enough to pay for alternative care through a nursing bed in the local area although it understands this is not the family’s wish. The family has provided evidence that a third party organisation calculated it was not possible to meet Mrs Z’s needs using this budget. However the Council is entitled to come to a different view having had regard to its assessment of the local market. The family has chosen to continue to use a specific provider which costs more than the Council’s calculation of Mrs Z’s personal budget. This is their choice, but the Council’s decision not to cover the additional cost is not fault because it used its assessment of Mrs Z’s eligible needs, having regard to its assessment of the local market.
  5. The Council has also explained how it has had regard to the Care Act’s requirement to balance the requirement to use available funds to meet the needs of the local population against how to meet Mrs Z’s needs.
  6. There is no evidence of fault in how the Council assessed Mrs Z’s care needs, developed care plans and calculated her personal budget appropriate to meet her assessed care needs.
  7. The Council’s second stage complaint response took five months which is far too long. The Council’s complaint procedure says it will respond within 20 working days and that it will explain and keep the person informed if it needs longer to respond. The Council did provide updates but there is no good reason for this delay which is fault. It has apologised which is appropriate to remedy injustice from this fault.
  8. The Council has delayed reassessing Mrs Z’s care needs (following the change in circumstances caused by her husband’s death), pending completion of this investigation. The Ombudsman expects councils to continue delivering services as far as possible during complaint investigations. The Council is entitled to decide to reassess Mrs Z’s needs in the context of her husband’s death.
  9. Our investigation should not normally prevent up to date assessment of needs. The Council should promptly reassess Mrs Z’s care needs because of her change in circumstance. This is not administrative fault however because the Council has offered carers assessments and kept the situation under review.

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Final decision

  1. I have completed my investigation. There is no fault in the Council’s actions to assess, plan for and provide payment to meet Mrs Z’s care needs. There was fault in its handling of Ms X and Ms Y’s complaint about this. It has apologised which is an appropriate remedy for distress caused.

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Investigator's decision on behalf of the Ombudsman

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