Summary: There was no fault in the way the Council delivered part of a remedy that the Ombudsman recommended in a previous decision.

The complaint

1. Mr B and Ms C say the Council has not implemented a remedy the Ombudsman recommended in 2016 relating to the payment of provision in the carer’s budget.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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

5. I have considered the documents that Mr B and Ms C and the Council have sent and the relevant law, guidance and Council’s policies.

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What I found

Law and guidance

6. The Care Act 2014 and the Care and Support Statutory Guidance set out the council’s duties.

Assessment and care/support plan

7. Councils have 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 and a personal budget which sets out the cost of the services.

Direct payments

8. 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.

Contribution

9. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care.

DRE

10. Where disability benefits are taken into account, the Council must allow the person enough benefits to pay for necessary disability related expenditure (DRE) to meet any needs which are not met by the Council.

Needs met by a carer

11. Local authorities are not required to meet any eligible needs which are being met by a carer, but those needs should be recognised and recorded as eligible during the assessment process.

Carer’s assessment

12. If it appears that the carer may have a need for support, local authorities must carry out a carer’s assessment.

What happened

13. Ms C receives care and support from the Council. Mr B is her main carer. I have summarised the correspondence and documents in so far as they are relevant to the complaint that I am investigating.

Complaint to the Ombudsman - 2016

14. Ms C made a complaint to the Ombudsman in 2016 about the quality of the Council’s assessments of her and Mr B and the delay in carrying out the assessments. The Ombudsman upheld her complaint and the remedy was, among other things, that the Council should:
• Complete Ms C’s support plan within a month of the final decision (22 August 2016) and backdate the value of the personal budget to the date of the first assessment.
• Complete a carer’s assessment of Mr B within two months of the final decision. ‘If the Council identifies that [Mr B] is entitled to support, where possible, it should back date the value of these services to 20 January 2016.’

Ms C’s care plan – 2016

15. The plan said Ms C was entitled to (per week):
• Support with the laundry.
• 2 hours cleaning.
• 1 and a half hour gardening.
• 2 hours assistance from a personal assistant to support her in going into the community.

Start of direct payments

16. The Council started to pay direct payments in April 2017.

Ms C’s assessment and care plan – June/October 2017

17. The Council reviewed Ms C’s needs and the plan in June 2017. Ms C’s plan which resulted from this review was implemented in October 2017.
18. The review plan said Ms C was entitled to:
• 6 hours per week to support her to access social groups, personal care, preparation of meals, maintain home environment (although some element would be met via ‘alternative to commissioned services’) and to give her carer a break.
19. The Council wrote to Ms C on 18 August 2017 to summarise what the outcome of the review had been. It said:
• Ms C was entitled to 6 hours direct payments a week to pay for a personal assistant.
• The Council had removed the provision for laundry, cleaning and gardening from the care plan. It said this could be sourced privately and that income from PIP and other benefits was generally used to meet these costs.
20. The Council included cleaning and laundry as a DRE from July 2017 so they were offset from Mrs C’s contributions.

Mr B’s carer’s assessment – June 2017

21. The Council assessed Mr B’s needs as a carer in June 2017 and did not identify a need for a carer’s budget.

Complaint to the Ombudsman - 2017

22. Mr B and Ms C complained to the Ombudsman in 2017 about delays in Ms C’s care plan, the assessment of Mr B as a carer and the delay in providing the remedy of the 2016 Ombudsman decision.
23. The Ombudsman said the Council had carried out a review of Ms C’s eligible needs in June 2017 and there was no fault in the way the Council made that decision. The Ombudsman said there was no fault by the Council that resulted in unreasonable further delays (after August 2016) with starting to provide care support to Ms C.
24. The Council agreed to pay Ms C £2,297 which was the value of Ms C’s personal budget backdated to 20 January 2016 and paid to 22 August 2016. The Ombudsman agreed that this complied with the 2016 remedy which said the Council had to backdate the value of Ms C’s personal budget to the date of the first assessment.
25. The Ombudsman said there had been a carer’s assessment but did not say whether there was fault or not in the way the assessment was carried out. The Ombudsman said the delay in carrying out the assessment was fault. The Ombudsman noted that the Council had agreed a further carer’s assessment by an independent assessor.

Mr B’s carer’s support plan – January 2019

26. The Council re-assessed Mr B’s needs as a carer in November 2018. The plan said Mr B was entitled to:
• 2 and a half hours - cleaning and laundry.
• 1 hour - gardening.

Ms C’s care plan – March 2019

27. The Council re-assessed Ms C’s needs in December 2018. The support plan said Ms C was entitled to:
• 1 hour - laundry.
• 3 hours assistance from a personal assistant to support her in meal preparation.

Use of the direct payments – March 2019

28. The Council wrote to Ms C in March 2019 and said it had concerns about Ms C’s use of the direct payments. It said she had used the direct payments to carry out a refurbishment of her kitchen which had not been agreed. She had also used the direct payments to pay for support that was not in the plan.
29. The Council said it would not reclaim any of the money that was allegedly misspent and also agreed not to withdraw the direct payments. However, it said Ms C would have to agree to the employment of a payroll company to help her in managing the direct payments.
30. Ms C said there had not been any misuse of the direct payments and refused to agree to employ a payroll company.

Mr B’s carer’s support plan – May 2019

31. The assessment said Mr B was entitled to:
• 2 and a half hours - cleaning and laundry.
• 1 hour - gardening.

Ms C’s care plan – June 2019

32. The plan said Ms C was entitled to:
• 1 hour - laundry.
• 3 hours assistance from a personal assistant to support her in meal preparation or accessing the local community.

Financial assessment

33. The Council carried out a re-assessment of Ms C’s finances and her eligibility to DRE in January 2019. It agreed a one-off extra payment for DRE of £1,461 or £28.11 a week. In April 2019 the Council agreed to backdate this payment to 3 April 2017, the date the Council started to pay the direct payments. Therefore, the Council paid Ms C £2,335 which was the equivalent of a weekly DRE from April 2017 to April 2019.

Request to backdate the payment

34. Ms C wrote to the Council following the June assessments. It was her view that the carer’s assessment of November 2018 was the first ‘lawful’ carer’s assessment the Council had carried out since the Ombudsman’s decision in 2016. Therefore, she wanted the Council to backdate the carer’s package it had agreed following that assessment to January 2016, in line with the Ombudsman’s 2016 remedy.
35. The Council replied and said it had carried out a carer’s assessment in June 2017 and this did not identify any need for a carer’s budget. The 2019 carer’s assessment identified 2 and a half hours for cleaning and laundry and 1 hour for gardening.
36. The Council pointed out that cleaning, laundry and gardening were part of Ms C’s care plan from 2016 so she was paid for that support until June 2017 when the Council removed this support from the plan. Also, Ms C continued to pay for cleaning, laundry and gardening out of her direct payments until June 2018. The Council had not asked her to repay those payments. So effectively the Council had paid for cleaning, laundry and gardening until June 2018. It agreed to repay her for cleaning, laundry and gardening from July 2018 until October 2018.
37. In its response to the Ombudsman, the Council further said:
• It paid for cleaning, laundry and gardening until October 2017 as the June 2017 was not implemented until October 2017.
• Ms C continued to pay for laundry and ironing out of the direct payments until July 2018 and for cleaning until September 2018.
• DRE were offset for cleaning and laundry from July 2017.

Analysis

38. The Ombudsman does not normally consider complaints that are over a year old, but I have exercised discretion in this case. Nevertheless, as some of the facts relate to matters that arose over 4 years ago, it was sometimes difficult to untangle the case and I have taken a common-sense approach.
39. I find no fault in the Council’s approach. The Council carried out a carer’s assessment in June 2017 which said Mr B had no needs which required a personal budget. Therefore, the Council could have said that, at that stage, that the Ombudsman’s remedy was delivered.
40. The Council agreed to reconsider the 2016 remedy after the carer’s support plan of 2019. It is not entirely clear why the Council made that decision, but as the Council appears to agree that it was still providing the 2016 remedy, I have considered it in that context.
41. The issue was slightly complicated by the fact that the Council has had a different approach to the provision of laundry, cleaning and gardening over the years, since 2016. It had sometimes included this provision in:
• Ms C’s plan to meet her needs,
• DRE,
• Mr B’s carer’s support plan to meet his needs.
42. In addition, Ms C used her direct payments for laundry and ironing until July 2018 and cleaning until September 2018.
43. The Council paid the equivalent of Mr B’s 2019 personal budget (cleaning, laundry and gardening) from July 2018 to October 2018.
44. The Council’s approach to the remedy, therefore, was to check whether it had already paid directly for cleaning, laundry and gardening and to pay back the provision during the period when it had not paid it already. I find no fault in that approach. Particularly, as, during some of this time, the Council had included the provision as DRE so therefore, in effect the provision was covered in some format, during that time.
45. The aim of the Ombudsman’s remedy was not to order the Council to double-pay a complainant for provision which they had already received. The Council has taken a sensible approach to the remedy and I note that it has exercised discretion in favour of Mr B and Ms C. Therefore, as Mr B and Ms C have achieved a remedy which is more than the Ombudsman could recommend, I will close the investigation.

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Final decision

46. I have completed the investigation and have not found fault.

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Investigator's decision on behalf of the Ombudsman