Norfolk County Council (18 012 427)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 07 Nov 2019

The Ombudsman's final decision:

Summary: The Council failed to act in accordance with the Care Act in reviewing Mr W’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 W his direct payments could not be spent on social/community activities, which in this case were identified as an eligible need.

The complaint

  1. Mrs X complains about changes the Council made to her adult son, Mr W’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.

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The Ombudsman’s role and powers

  1. 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)
  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 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 document.

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What I found

  1. 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.
  2. 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”.
  3. 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:
      1. The adult’s needs are due to a physical or mental impairment or illness.
      2. The adult’s needs mean they cannot achieve one or more specified outcomes.
      3. 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.
  4. Eligible needs are those that meet all of these conditions (a-c).
  5. The outcomes referred to in b) above include:
  • maintaining personal hygiene,
  • managing food preparation,
  • maintaining a habitable home,
  • maintaining significant relationships and
  • accessing the community.
  1. 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”.
  2. 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.
  3. 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.
  4. 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

What happened

  1. Mr W is in his late twenties. He has a learning disability and is reported to have “autistic traits”. He lives at home with his parents and sibling, who also has a learning disability.
  2. Mr W can communicate but finds it difficult to interact with people he does not know well. He also finds it difficult to manage social situations and struggles with change. This impacts on his wellbeing and his ability to develop his social network.
  3. Mr W can complete most personal care tasks independently with prompts. He needs support with domestic tasks, finances, benefits and correspondence, which Mrs X provides.
  4. I have seen a copy of a review of Mr W’s care and support plan completed in February 2016. Mr W was not present at the review. The support plan records his needs, which include:
  • To have access to meaningful activities and personal development and stimulation
  • To have access to activities in the community, reduce isolation
  1. The above needs are recorded as met by family and a “service already in place”. Mr W attends a day service twice a week. All other support needs are met by family.

The Council allocated an annual personal budget of £8294.84. The money is broken down into:

  • £2,710.84 Respite Direct payment on request. 
  • £1,000 millage Direct payment paid 4 weekly 
  • £1,000 activity fees Direct payment paid 4 weekly  
  • £3,584 [day service] Directly commissioned service.
  1. On 11 April 2017 the Council met with Mr & Mrs X to review Mr W’s needs. Mr W was not present. Mrs X reported it would be too distressing for him to attend. I have seen a copy of the review document, and the subsequent care and support plan. The reviewer recorded the day service to be working well, that although Mr W can travel on the bus independently to the day service he cannot use his bus pass at the time he needs to travel. Mrs X says if there is any problem with the bus Mr W would be unable to cope and would contact Mrs X for support. This added to the pressure of Mrs X’s caring role. Mrs X reported she needed a break form her carting role but ‘found this difficult to achieve’ because of her caring responsibilities. The reviewer recorded Mrs X provided ongoing emotional support, all domestic duties, prompts with personal care and support to develop personal relationships. The reviewer recorded “As discussed and agreed in meeting 7 June 2017 activity fee money will be removed from [Mr W’s] support plan in line with Norfolk’s county council’s guidance from senior management”
  2. The support plan records Mr W’s need for support to access “meaningful activities for personal stimulation and to have access to activities in the community to reduce isolation”. These needs were met by Mr W’s day service and Mrs X.
  3. The Council allocated an annual personal budget of £7,506.60. A breakdown was provided:
  • P.A support via [care agency] to be used flexibly for community support in the home support to provide parents with a break in the evening
  • £13.67 p/h 4hrs per week = £2,843.36 per year  
  • [Day service] Tues and Thursday = £3,663.24 per year 
  • mileage money to support with am transport to [day service] and with support to access the community = £1000.00 per year.
  1. The Council sent Mrs X a draft copy of the care and support plan on 27 June 2017.
  2. Mrs X disagreed with the proposal to remove the activity fee from Mr W’s budget. She complained to the Council in June 2017 and October 2017 saying she believed restrictions were being imposed on how Mr W’s budget could be used. Previously the money was used for activities and fuel.
  3. The Council responded to Mrs X in writing on 25 September 2017. The author of the letter said, “The Personal Budget (PB) can be used to access community activities i.e. by providing personal assistance. The activity fees would be paid by the ESA or PIP benefits..... An agency commissioned to provide carer relief had not been used in the previous twelve months because of [Mr W’s] limited ability to engage with new providers as well as other services…We understand the provision has not been utilised due to difficult family circumstances rather than there not being a need for the service”. The author suggested the use of an agency to introduce a personal assistant to support the whole family.
  4. The author also confirmed the Council would continue to include a mileage allowance of £1000 but said as Mr W received a mobility allowance as part of his benefits, the Council expected this be used towards transport costs to social activities.
  5. 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 W’s care in October 2017. The Council says the reassessment was not started immediately because officers were dealing with Mrs X’s complaint.
  6. 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.
  7. 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 W’s care was completed. Until the review was completed the existing support plan remained active.
  8. 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 W 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 W’s] outcomes that they can afford themselves. We will also need to consider the application of the transport policy”.
  9. The Council completed a reassessment of Mr W’s needs on 10 July 2018. The assessor recorded “[Mr W] has support from his parents at home to ensure all his daily are met”. The assessment recorded Mr W to have eligible needs in “developing new and existing relationships, accessing… access to meaningful activities for personal development and stimulation…to access transport to activities and the community… access to activities and places of interest in the community…Without support from others [Mr W] would isolate himself at home. He is reluctant to try new activities support needs or visit places he has not been before. Currently he is support by family to provide opportunities and encourage community access”. The assessor recorded a discussion about phasing out transport and mileage money over a three-month period because Mr W received ‘mobility money’ as part of his benefits, the Council expected this to be used towards transport/mileage costs. The assessor told Mrs X “the activities money that had previously been provided through the personal budget. I advised [Mrs X] that the expectation is that [Mr W] 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 W’s needs had not changes so his personal budget should not change.
  10. Part of the reassessment referred to the need for Mrs X to have respite care. It records Mrs X needed ‘support from elsewhere’ for 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 W in Mrs X’s absence.
  11. The assessor recorded the action required, that Mrs X and the assessor, a social worker, would as soon as possible, “look at personal assistant support… arrange suitable respite support… agree the support plan”.
  12. Following the reassessment, there was a delay in the completion of a care and support plan. A support plan was completed and authorised on 19 September 2018. It sets out Mr W’s need to develop his social network and access activities of interest. The Council allocated a one-off lump sum of £195 activity money and a one-off lump sum of £250 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.
  13. Mrs X says she does not know what to do with the direct payment monies Mr W receives. Mrs X is unsure how to access the specialist support Mr W 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.
  14. The Council completed a financial assessment on 9 April 2019. This showed Mr W’s net income to be £187.15 net income, a guaranteed minimum income of £189 and a nil contribution towards his care.
  15. In July 2019 the Council completed another financial assessment which shows Mr W’s net income to be £196.15, a guaranteed minimum income of £165 and a contribution from Mr W towards his care to be £31.15. Mrs X says Mr W is paying a contribution towards money he is not using.
  16. Following the July 2019 financial assessment, Mrs X says the Council did not enquire about Mr W’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 W’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

  1. The Council disputes Mrs X’s claim officers did not enquire about Mr W’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.
  2. The Council also provided a copy of a letter it sent to Mr W 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 W until July 2019.

Analysis

  1. 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.
  2. The Council is treating Mr & Mrs X as though Mr W is a child and they are responsible for his care, and the Council is simply responsible for providing them with breaks from their caring role, when as an adult, the entirety of Mr W’s 24 hour care needs is the legal responsibility of the Council, except for those needs a carer is willing and able to provide. The Council’s assessments of Mr W fail to record his total needs without carer support, and the hours Mrs X is willing and able to provide informally.
  3. The Council’s needs assessments fail to quantify Mr W’s individual needs, so it is not clear how the Council came to the decision as to how many support hours he requires.
  4. 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. The support plan should also identify how and when each need will be met and 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 W.
  5. Following the completion of a support plan, councils should then allocate a personal budget sufficient to meet Mr W’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.
  6. It is clear from discussions I have had with Mrs X that she believes she is responsible for providing care to Mr W. 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 W.
  7. The family circumstances are complex. The Council recognises this and the need to change and improve the support Mr W 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 W. 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 W have been offered such support.
  8. The Council told Mrs X that Mr W’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.
  9. All the Council’s assessments of Mr W I have seen show him to have eligible needs in accessing the community and access to activities for stimulation and self-development.
  10. 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 W has been restricted from using his direct payment to meet eligible needs. This is fault. Because of the restriction Mr W may have been denied access to services to which he is entitled to and which he would benefit from.
  11. 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 W’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. 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.
  12. During this investigation the Council sent Mrs X a form regarding disability related expenditure (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.
  13. 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 cost, particularly where transport is identified as a need. Transport costs over and above the mobility allowance can be considered as a DRE.

Agreed action

  1. To remedy the injustice caused the Council will:
  • provide Mrs X with a written apology for the failings identified in this statement. A time and trouble payment has been allocated to a linked complaint.
  • make a symbolic payment of £250 to Mr W to acknowledge the restrictions placed on his usage of direct payments;
  • review Mr W’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 W 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.
  1. The recommendations relating directly to Mr W, 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.
  2. All other recommendations should be completed within three months, and evidence of this provided to this office.

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Final decision

  1. There is evidence of fault in this complaint. The Council failed to act in accordance with the Care Act in reviewing Mr W’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 W 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.
  2. The recommendations above are a suitable way to settle the complaint.
  3. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman

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