West Sussex County Council (18 012 808)

Category : Adult care services > Direct payments

Decision : Not upheld

Decision date : 06 Dec 2019

The Ombudsman's final decision:

Summary: Mr C receives direct payments from the Council to fund a package of care and support. The Ombudsman has not found evidence of fault in the way the Council considered the way Mr C could use his direct payments.

The complaint

  1. Mrs B complains on behalf of her adult son, Mr C who is disabled and receives care and support from the Council.
  2. She says the Council is too restrictive in how Mr C spends his direct payments relating to food, travel expenses and the cost of activities.

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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 have discussed the complaint with Mrs B. I have considered the documents she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law and guidance

  1. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.

Care plans

  1. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.

Personal budgets

  1. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person information about the money allocated to meet the needs identified in the assessment and recorded in the plan. 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.

Direct payments

  1. A person can choose to receive direct payments to arrange the care and support themselves. The amount of direct payment is derived from the personal budget set out in the care and support plan. Direct payments can only be used in accordance with the support plan and any ‘unauthorised use’ of the money will need to be repaid.
  2. The guidance says that direct payments are ‘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 needs’.

Contribution

  1. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances.

Minimum income guarantee

  1. Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee which is set out in the regulations.

What happened

  1. Mr C does not have the mental capacity to manage his finances. Mr C receives direct payments which Mrs B uses to pay for care and support services for Mr C, in line with his care plan.
  2. Mr C received a new care plan in June 2018 as he was leaving school. The plan said that Mr C would:
    • Attend 3 different day centres 5 days a week.
    • Receive support from a personal assistant (PA) for part of the evening and during the day (9 am until 7 pm) at weekends.
    • Attend overnight respite care 6 nights a month.
    • Have 5 nights per year holiday.
  3. The personal budget was increased from £763 to £1,399 a week and this included the cost of the day centres, payments of the PA’s hours and associated costs (pension, national insurance and so on), cost of the holiday and travel to and from the day centres (£148.50 a week). The direct payment was £1,297 per week as the Council paid one of the day centres directly.
  4. Mrs B complained to the Council in June 2018 as she was concerned that the Council expected Mr C to pay for activities from his benefits.
  5. The Council agreed that, until Mr C started to receive the benefits, it could not expect him to use the benefits. However, it said that, once Mr C started to receive benefits, it would carry out a financial assessment of Mr C which would decide his contribution. It assured Mrs B that Mr C would be left with £138 (the minimum income guarantee).
  6. Mrs B sent a further email in July 2018 and asked whether the Council expected Mr C to pay for the following costs:
    • £6 charge for food when he stayed overnight at his respite placement.
    • Mileage costs for travel to and from respite and mileage costs during his time at respite.
    • Mileage costs when the PA took him out to attend activities or social events in the community.
    • Cost of activities when he was out in the community with his PA.
  7. Mrs B also questioned how the Council could know what money Mr C would be left with as it had not carried out the financial assessment yet so it did not know yet what his disability related expenditure and living costs would be. Mrs B said that Mr C would receive less benefits as an adult than what they received for him as a child in tax credits and this made it difficult for him to remain living at home. The only option may be for him to live permanently in a residential home.
  8. The Council replied and said:
    • Mr C was expected to pay for his own activities and social events. The care plan ensured that Mr C could access activities and events by paying for a PA. It would also pay for the PA attending the activity as this was a cost incurred as a result of his disability.
    • The personal budget was meant to cover the cost of his care and support as set out in his care plan, not his daily living costs such as food and drink. Therefore, Mr C was expected to pay for his food from his benefits.
    • Mr C received the mobility component of the PIP and this should be enough to pay for his travel costs. It would consider this cost if Mr C did not have enough money to pay for the travel cost.
    • The £138 referred to the minimum income guarantee figure set by government.
  9. The Council carried out a financial assessment of Mr C in January 2019. Mr C received the disability living allowance (DLA) care and mobility component and universal credit. His weekly income was £263. The Council correctly disregarded the DLA mobility element of £59.75 in its calculation of the contribution. The Council calculated that Mr C’s weekly contribution to his care would be £9.37 after allowing the minimum income guaranteed of £138.65 and disability related expenditure of £26.75.
  10. The Council provided Mr C with a new care plan in January 2019. It said the plan was reviewed as the attendance at one of the day centres (two days a week) had not worked out.
  11. The Council proposed another day care centre which Mr C could attend two days a week. The care plan was similar as before and the total budget was £1,323 per week. The Council allowed an activity allowance of £10 per week for PA activities. The direct payment was £1,222 per week as the Council paid one of the day centres directly.
  12. The Council revised the plan again in February 2019 as the new day centre did not work well for Mr C. The plan was therefore for Mr C to attend day centres three days a week and he would be supported by his PA for the other 2 days during the week. He continued to receive support from his PA during the weekend as before.
  13. The Council included an allowance of £40 per week so that Mr C could access activities during the two days with his PA. In terms of transport, the Council allowed transport costs to and from his day centre and the two days a week of activities. The personal budget was £1,294 per week and the direct payments were £1,261 per week.

Analysis

  1. Mrs B has taken her complaint to the Ombudsman as she is not satisfied with the way the Council has considered the direct payments.
  2. Mrs B says the Council is not allowing Mr C to use his direct payments flexibly, as the law intended. She says the Council used to pay for certain things when Mr C was a child. She says his needs have not changed therefore the funding should not have changed either.
  3. I cannot say, of course, what Mr C’s care plan or personal budget should be. Only the Council can decide this, based on an assessment of Mr C’s needs and his finances.
  4. I have investigated whether the Council has correctly considered the relevant law, guidance and policies when it made its decisions.
  5. I agree Mr C’s needs may not have changed, but his care plan changed as he stopped attending school. Mr C was now an adult and therefore the Council had to apply the relevant law and guidance applicable to adults. This is entirely different from the law, guidance and policies which apply to the support given to children. Therefore, there is no fault in principle with the Council’s approach.
  6. Mrs B is correct that the Council should allow flexibility in the use of the direct payments. However, the flexibility only relates to payments for care and support that meet an assessed need as identified in the care plan. The Council said Mrs B wanted to use the direct payments for costs that were not included in Mr C’s care plan and there was no flexibility to do that. Therefore, I have investigated how the Council considered to include the payments into the care plan based on its assessments of Mr C’s needs for care and support.
  7. The Council carried out an assessment of Mr C’s needs and formulated a care plan, in line with the law and the guidance. The Council continued to review the plan as there were changes because some of the day centres did not work out.
  8. The Council’s position was that the care plan and resulting personal budget met Mr C’s needs for care and support. However, any other costs should be met from his income. Therefore, it said Mr C could not use his direct payment to pay for food as this was not a need for care and support. I find no evidence of fault in the way the Council considered this.
  9. In terms of transport, Mr C received the mobility PIP allowance which is £59.75. This allowance is given to help people with extra costs associated with long term ill-health or disability. The Council expected Mr C to therefore use this allowance for his transport costs. That is the approach most councils take.
  10. However, the Council had a duty to ensure that Mr C was able to meet his needs for support identified in the assessment and this included any needs for transport. Therefore, it should check whether the PIP was sufficient to cover the transport costs. The Council did so and it included the transport to and from the day centres, the daily activities and the respite in the personal budget. It said the remainder of Mr C’s travel costs could be covered by his PIP mobility allowance. I find no evidence of fault in the way the Council has considered this.
  11. In terms of going into the community and having activities, the Council said it would expect Mr C to pay for his own activities, but it would pay for the support from a PA from 8:00 am to 5:00 pm to assist him in accessing the activities. It also agreed to pay for the PA to join the activity as this was a cost related to Mr C’s disability. That is the approach that most councils take as it is generally expected that the person pays for their own activities and food while in the community. However, the Council should always consider individual circumstances.
  12. The care plan changed in February 2018 when it was agreed that Mr C would spend two days a week in the community. The Council then agreed to pay £ 40 a week for the activities. The Council has also agreed to repay Ms B £680 for some of the weeks that she paid for activities before February 2019. As this remedy is more than the Ombudsman could achieve, I will close the investigation.

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Final decision

  1. I have completed my investigation and have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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