The Ombudsman's final decision:
Summary: The Council failed to act in accordance with the Care Act in reviewing Mr Y’s care needs. It failed to assess the total extent of his needs and failed to develop a clear support plan showing how the needs will be met. The Council wrongly told Mr Y his direct payments could not be spent on social/community activities, which in this case were identified as an eligible need.
- Mrs X complains about changes the Council made to her adult son, Mr Y’s care and support plan in April 2017. She believes the changes are unjustified. She says funding has increased, but the Council has placed restrictions on what the money can be spent on. She says the personal budget can only be used to fund personal assistants and purchase day care. Before this the personal budget covered community activities and transport.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have:
- considered the complaint and discussed it with Mrs X;
- considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
- made enquiries of the Council, and considered the responses;
- considered Norfolk County Council’s ‘All Age Autism Strategy 2019 -2024’;
- taken account of relevant legislation;
- offered Mrs X and the Council an opportunity to comment on a draft of this statement, and considered the comments made.
What I found
- Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person’s finances.
- The statutory guidance at part 6 says a council must consider “the total extent of a person’s needs” before it “considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting those needs will help the adult achieve their desired outcomes”.
- After assessing the total extent of a person’s needs, the council should consider which are eligible needs under the Care Act 2014. The guidance says councils must consider whether:
- The adult’s needs are due to a physical or mental impairment or illness.
- The adult’s needs mean they cannot achieve one or more specified outcomes.
- As a consequence of being unable to achieve one or more of the specified outcomes there is, or is likely to be, a significant impact on the adult’s wellbeing.
- maintaining personal hygiene,
- managing food preparation,
- maintaining a habitable home,
- maintaining significant relationships and
- accessing the community.
- The guidance says: “being unable to achieve these outcomes” includes being able to achieve them with assistance or achieving them without assistance but where “it takes significantly longer than would normally be expected”.
- Where the council decides someone has eligible needs, it must produce a care and support plan explaining how to meet them. 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 is available locally.
- Where the council is meeting some needs, but not others, the care and support plan should clearly set out the total care needs, which needs the carer will meet, the Council will meet and how it will meet the outstanding needs. The council should give the person a personal budget to meet the eligible needs identified in the care and support plan.
- The council should carry out a carer’s assessment where a person with care needs is also caring for another person with care needs. This follows a similar approach to the need’s assessment discussed above.
- Mr Y is in his late twenties. He has a learning disability and autism. He lives at home with his parents and sibling, who also has a learning disability.
- Mr Y has difficulty with speech and requires support with communication. He can make day to day decisions but requires support to make informed decisions. Mr Y struggles with changes to his routine and finds social situations difficult to deal with. Mrs X supports Mr Y to manage his finances
- I have seen a copy of a review of Mr Y’s care and support plan completed in February 2016. Mr Y was not present because he believes his mother should do this on his behalf. The support plan records Mr Y has support from Mr & Mrs X to meet all his daily needs. Mrs X acts as Mr Y’s paid personal assistant for six hours a week. She supports him to access local community groups, bowling, pool and the local shops. Historically Mr Y received support from an agency to provide Mr & Mrs X with respite.
- On 11 April 2017 the Council met with Mr & Mrs X to review Mr Y’s needs. Mrs X reported Mr Y did not wish to be present. I have seen a copy of the review document, and the subsequent care and support plan. The support plan records [Mr Y] particularly struggles with transitioning from one place to another and therefore this is difficult to support [Mr Y] to go outside and interact with his community. Currently mum and dad takes [Mr Y] out twice weekly… [Mr Y] will not tolerate going anywhere for respite and therefore mum and dad do not get a break from their caring role”
- Mrs X continued as Mr Y’s personal assistant for six hours a week because Mr Y found it difficult to accept outside support. This ‘put pressure’ on Mrs X and limited Mr Y’s social circle. The assessor said changes were needed to the care plan to reflect the need to try to introduce a support worker to Mr Y “to attempt to change [Mr Y’s] PA for being his mum to a provider agency. This will support [Mr Y’s] family to continue in their caring role, in addition to supporting [Mr Y] in his living skills and ability to interact with others. It is acknowledged this may not work, as [Mr Y] has previously refused support workers, however it is also acknowledged that this is not a case of giving up at the first hurdle…”.
- The care and support plan records Mr Ys eligible needs. The Council’s ‘resource allocation system’ calculated a budget of £12,570.00. Personal assistant hours were calculated to be 12 per week at £13.67 per hour, a total annual budget of £8,530.08. It is not clear how the Council quantified each need or how it calculated Mr Y needed 12 hours support per week.
- The support plan records Mr Y’s need “to have the opportunity to access activities for stimulation and self-development”. The plan also records “needs and related outcomes that are not eligible”. The assessor recorded that Mr Y “needs to use his DLA/PIP payments for his mileage money and his other benefit money for activity fees”.
- The Council sent a draft copy of the care and support plan to Mrs X on 27 June 2017 for her comments. Mrs X disagreed with some parts of the plan. She complained to the Council in June 2017 and October 2017 saying she believed restrictions were being imposed on how Mr Y’s budget could be used. Mrs X says she has always been told she could use the money flexibly. Previously the money was used for activities, such as archery and snooker, days out, admission charges to events and to pay for fuel.
- The Council responded to Mrs X on 25 September 2017. The author confirmed the Council’s agreement to Mrs X being Mr Y’s personal assistant for six hours a week for another year, with the aim of gradually decreasing the role. An agency commissioned to provide carer relief had not been used in the previous twelve months because of Mr Y’s “limited ability to engage with new providers as well as other services”. The author suggested the use of an agency to introduce a personal assistant to support the whole family. He also confirmed the Council would continue to include a mileage allowance of £1000 but said as Mr Y received the mobility component of Disability Living Allowance, the Council expected this be used towards transport costs to social activities.
- Mrs X disagreed with the support plan and complained to the Council. The Council decided not to implement the support plan. It allocated a different social worker to review Mr Y’s care in October 2017. The Council says the reassessment was not started immediately because officers were dealing with Mr X’s complaint.
- The Council delayed in dealing with the complaint Mrs X submitted in October 2017. It says this was due to an administrative error which resulted in a delay in the complaints team receiving the complaint. The Council wrote to Mrs X in December 2017 to apologise for the delay.
- The Council investigated the complaint and responded to Mrs X on 7 February 2018. It suggested Mr X meet with officers. The Council wanted the meeting to take place before the review of Mr Y’s care was completed. Until the review was completed the existing support plan remained active.
- The meeting between Mrs X and officers took place on 9 March 2018. Following the meeting the Council wrote to Mrs X on 28 March 2018. The author of the letter confirmed the plans to try to introduce an agency to support Mr Y with an agency Mrs X had in mind. The author said the Council was willing to be guided by Mrs X about the pace of any change. The author also said the Council “would review the allocation of activity money and discuss with you community activities that meet [Mr Y’s] outcomes that they can afford themselves. We will also need to consider the application of the transport policy”
- The Council completed a reassessment of Mr Y’s needs on 10 July 2018. The assessment records Mr Y to have eligible needs in ‘developing social network’ and ‘access places and activities’, and that he ‘requires support to plan community activities, he also requires others to suggest activities/places he may find of interest”. The assessor recorded a discussion about “the activities money that had previously been provided through the personal budget. I advised [Mrs X] that the expectation is that [Mr Y] would have to use his benefits to pay for any activities he wished to access. This again would be phased out of his budget in the next three months”. Mrs X did not agree. She believed Mr Y’s needs had not changes so his personal budget should not change.
- The assessor also recorded a discussion with Mrs X about the Council’s transport policy, that as Mr Y received mobility allowance, the Council’s expectation was that this should be used towards transport/mileage costs and funding for transport would be phased out over three months.
- Part of the reassessment referred to the need for Mrs X to have respite care. It records Mrs X needed ‘support from elsewhere’ to have short and longer periods of respite. A one-off payment of £310 was allocated to Mrs X for activities away from the home. The assessor did not record what support would be in place for Mr Y in Mrs X’s absence.
- Following the reassessment, there was a delay in the completion of a care and support plan. A care and support plan was completed and authorised on 19 September 2018. It sets out Mr Y’s need to develop his social network and access activities of interest. The Council allocated a one-off lump sum of £150 activities money, and a one-off lump sum of £150 to cover the first three months mileage costs, after which, both allowances would end. The Council sent Mrs X a copy of the support plan on 20 September 2018. Mrs X asked the Council what the direct payment could be used for, she says the Council told her the monies could only be used to pay a personal assistant or an agency.
- Mrs X says she does not know what to do with the direct payment monies Mr Y receives. There is no personal assistant other than her and she is only paid six hours per week. Mrs X is unsure how to access the specialist support Mr Y needs. She believes he should be able to spend his direct payments on social activities and accessing the community because they are recorded as needs.
- The Council completed a financial assessment on 9 April 2019. This showed Mr Y’s net income to be £187.15, a guaranteed minimum income of £189, and a nil contribution towards his care.
- In July 2019 the Council completed another financial assessment which shows Mr Y’s net income to be £187.15, a guaranteed minimum income of £165. and a contribution from Mr Y towards his care to be £22.15. Mrs X says Mr Y is paying a contribution towards money he is not using.
- Following the July 2019 financial assessment, Mrs X says the Council did not enquire about Mr Y’s disability related expenditure. It was only after the Ombudsman’s made enquiries of the Council it offered to do so. Mrs X says more recently she has asked the Council about additional utility costs she incurs due to Mr Y’s disability. She says the Council told her that any additional costs over and above average usage would be split four ways, because there are four people living in the home.
The Council’s comments
- The Council disputes Mrs X’s claim officers did not enquire about Mr Y’s DRE in the July 2019 assessment. It says it wrote to all service users/relatives in February 2019, informing them of changes to the way it calculated client contributions. The Council provided a generic undated unaddressed copy of this letter. It does not refer to DRE.
- The Council also provided a copy of a letter it sent to Mr Y in May 2019; it has no specific date. This explains DRE and gives an example of items that could be considered as DRE. It is not clear why the Council sent the letter in May 2019, when it did not reassess Mr Y until July 2019 and conclude a contribution to be due.
- It is not the Ombudsman’s role to decide what services a person is entitled to receive. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly. In this case I find the Council failed to do so.
- Mr Y is an adult, the Council is legally responsible for his 24-hour care needs, except for those needs a carer is willing and able to provide. The Council’s assessments of Mr Y fail to record his total needs without carer support, and the hours Mrs X is willing and able to provide informally. The assessment fails to quantify Mr Y’s individual needs, so it is not clear how the Council came to the decision as to how many support hours he required.
- The law is clear, authorities must assess the total extent of a person’s needs and produce a care and support plan explain how the needs will be met. The support plan should be clear about which the needs the Council will meet, and which ones it will not. In this case it does not do so. It should also identify how and when each need will be met, by whom and where. It does not do so. There was a delay between the completion of the assessment and the support plan. This is not good practice, however, in this case I do not consider it caused any injustice to either Mrs X or Mr Y.
- Following the completion of a support plan, the council should then allocate a personal budget sufficient to meet Mr Y’s needs. This should have been transparent and identified the care needs being met by Mrs X so that the calculation of the sufficiency of the amount for the rest of the need was transparent and accountable. It fails to do so. It allocated an amount but has not explained what the payments cover, or how it is broken down.
- It is clear from discussions I have had with Mrs X that she believes she is responsible for providing care to Mr X. It is also clear she is a carer under stress. The Council allocated Mrs X a carer budget, but it is not clear how she would able to use this given there are no current respite care arrangements for Mr Y.
- The family circumstances are complex. The Council recognises this and the need to change and improve the support Mr Y receives. However, no progress has been made for over two years. The Council says it is following Mrs X’s ‘lead’ in relation to introducing new support for Mr Y. Mrs X has no knowledge of specialist autism support/services in her area, during a discussion she told me there are no such services in her area. The Council cannot expect Mrs X to lead the way, that is the role of professionals. The Council’s autism strategy says “The council will have services that stop things from going wrong for autistic people. This will include advocacy, information, advice and news about community and voluntary groups”. I have seen no evidence which shows Mrs X or Mr Y have been offered such support.
- The Council told Mrs X that Mr Y’s direct payments could only be used to pay a personal assistant or a care agency. Such a statement suggests the Council is fettering its discretion. It is unlawful to apply a ‘blanket’ policy.
- All the Council’s assessments of Mr Y I have seen show him to have eligible needs in accessing the community and access to activities for stimulation and self-development.
- Direct payments are designed to give people more choice and control over the care and support services they are assessed as needing. The Care and Support Statutory Guidance 12.35 - says “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support need”. In this case Mr Y has been restricted from using his direct payment to meet eligible needs. This is fault. Because of the restriction Mr Y has been denied access to services to which he is entitled to and which he would benefit from.
- The Council completed two financial assessments three months apart, in April 2019, and July 2019. The minimum income guarantee in April 2019 was £189. The Council correctly allowed this in the April assessment. In the July assessment the minimum income guarantee reduced to £165. This increased Mr Y’s disposable income and resulted in him having to contribute towards his care. If a person is assessed as having to contribute towards their care, the Council should enquire about any disability related expenditure during the assessment. The Council sent a letter to Mrs X in May 2019 about DRE. This was two months before the assessment. At that time, it would have had no meaning to Mrs X. In any event, officers should have asked about DRE during the assessment. In this case it did not. This is fault.
- The Council then sent Mrs X a form regarding (DRE). It later offered to visit her to assist with its completion. During Mrs X’s discussions with the Council about increased utility usage Mrs X says the Council told her any additional costs over the average usage would be split four ways because there are four people in the home. This is incorrect. Additional costs arising out of a disability related need should be offset in full, or in some cases shared in another DRE assessment of any other disabled person living in the home. It is neither fair nor just to share disability related costs with the whole household.
- In relation to transport costs, the Council is not wrong, in that mobility allowance is to be used for transport, however the Council has the power to exercise discretion in considering transport costs. Transport costs over and above the mobility allowance can be considered as a DRE.
- To remedy the injustice caused the Council will:
- provide Mrs X with a written apology for the failings identified in this statement and make a payment of £250 to acknowledge the time and trouble they have been put to pursuing this complaint with the Council and the Ombudsman
- make a symbolic payment of £250 to Mr Y to acknowledge the restrictions placed on his usage of direct payments;
- review Mr Y’s assessment and produce a care and support plan which reflects his needs over a seven-day period and explain how these needs will be met, including respite care, in consultation with Mrs X;
- undertake a fresh financial assessment of Mr Y and consider all DRE in accordance with statutory guidance;
- signpost Mrs X to specialist support services for people with autism, and offer/signpost to advocacy services
- consider if other service users may be similarly affected, and take appropriate action;
- ensure staff undertake assessments/reviews in accordance with the law and guidance;
- ensure officers undertaking financial assessments act in accordance with statutory guidance.
- The recommendations relating directly to Mr Y, and Mrs X should be completed within one month of my final decision. Where this is not possible, the Council should provide me with an update on progress.
- All other recommendations should be completed within three months, and evidence of this provided to this office.
- There is evidence of fault in this complaint. The Council failed to act in accordance with the Care Act in reviewing Mr Y’s care needs. It failed to assess the total extent of Mr Y’s needs and failed to develop a clear support plan showing how the needs will be met. The Council wrongly told Mr Y his direct payments could not be spent on social/community activities, which in this case were identified as an eligible need. It also gave Mrs X incorrect advice about DRE.
- The recommendations above are a suitable way to settle the complaint.
- It is on this basis; the complaint will be closed.
Investigator's decision on behalf of the Ombudsman