Summary: Mr X complains that the Council gave inconsistent information to Mrs Y. It said she could not spend her budget as previously agreed so Mrs Y was left with increased risk and costs without the planned benefits. The Ombudsman finds the Council at fault in the way it dealt with this. It has agreed to apologise, pay at least £1,000 for dog training, and provide training to its staff.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of his wife, Mrs Y, that the Council:
• Agreed to buy and train an assistance dog for Mrs Y but changed its mind so the dog was not trained and caused a risk to her and her children.
• Gave inconsistent information so Mrs Y was unclear about what she could spend her direct payment on.
• Failed to deal adequately with her complaint about this.
2. Mr X says the Council withdrew the agreement to funding for training after Mrs Y had bought the dog. She is left with a dog which is a risk and unnecessary expense and cannot provide assistance. He says she is also unable to employ a personal assistant (PA) while her support plan contains conflicting information. He says this caused them much stress and has exacerbated her symptoms

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The Ombudsman’s role and powers

3. 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)
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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mrs Y has given her consent for Mr X to bring this complaint on her behalf.

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How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Assessment, eligibility and care planning

8. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
9. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing.
10. Where local authorities have determined a person has eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
11. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
12. The local authority must provide a personal budget as part of the care and support plan for those whose needs it will meet. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. 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.

There are three main ways in which a personal budget can be administered:

• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
• As a direct payment. (Care and Support Statutory Guidance 2014)

Direct payments

13. Direct payments are payments made to individuals to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
14. The Care and Support Statutory Guidance says ““The local authority should encourage creativity in planning how to meet needs, and refrain from judging unusual decisions as long as these are determined to meet needs in a reasonable way”.

What happened

15. Mrs Y has health conditions and disabilities which cause her significant, and fluctuating difficulties with pain, mobility, sight, fatigue, balance, and strength. This affects many aspects of her daily living. At the time of these events Mrs Y lived at home with Mr X and their young family. Mr X provided a significant informal caring role as they wished to remain as independent as possible. Mrs Y could not leave the house much due to her health.
16. In 2015, Mrs Y received a personal budget of £135.36 each week through a self-managed direct payment. However, she found it difficult to find suitable personal assistants at the necessary times, so she cancelled the arrangement and Mr Y provided the support.
17. At the end of 2016, the Council agreed a direct payment of £100 per week to enable Mrs Y to have alternative therapies at £50 a session to help with pain and anxiety. Mrs Y returned much of this to the Council as she had not used it due to her fluctuating health. During the year from February 2017, Mrs Y received only 16 sessions of various therapies.
18. In March 2018, Mrs Y asked the Council if she could use half her budget towards an assistance dog. The social worker agreed Mrs Y could use the accumulated funds on her direct payment account to buy a puppy suitable for training as an assistance dog. Mrs Y and Mr X had completed much research around this and had applied to charities for help with getting a dog, without success. The puppy, of a large and appropriate breed, cost £1,500. After Mrs Y bought the puppy, the Council suspended her direct payment as there was still over one year’s worth of funding in the account. It decided to review Mrs Y’s care and support plan and Mr X’s carer’s assessment as he had expected a dog to help with his caring role.
19. The Council began an assessment of Mrs Y’s social care needs. It identified eligible needs and agreed to explore adaptations to her home and assistive technology. It also noted that she felt an assistance dog would help keep her independence as long as possible. The social worker recommended Mrs Y should use some of her personal budget for the ongoing cost of training the dog at £50 per week until completed. She noted it would be beneficial to Mrs Y and would enable her to:
• Maintain her independence by:
1. Holding doors open.
2. Loading and unloading the washing machine.
3. Turning light switches on/off.
4. Taking socks off.
5. Retrieving dropped items.
6. Assist with mobility and balance.
7. Decrease anxiety.
8. Maintain a normal family environment.
9. Reduce the need for future support workers.
20. The Council provided me with an email chain between managers in March. These emails included the following comments:
• Manager 1 “this will greatly enhance this adult’s wellbeing and will support her in the home environment”.
• Manager 1 “We both feel that provision of the assistance dog would provide essential support to [Mrs Y] in practical terms to enable her to remain in the family home, help to support her mental state and reduce anxiety and provide some relief to her husband’s caring role”…”We feel that this would provide support to prevent breakdown in the home situation and provision of much more substantial paid support (ie: prevent, reduce, delay). It is not unlikely that without this support for her emotional and psychological wellbeing, we would need to look at more intensive support in the home or find somewhere for [PA] to go”.
• Manager 2 “I am agreeable to [the] dog training [element] as [it] will be mutually beneficial for [the] adult and foster independence”.
21. The Council completed a carers assessment for Mr X and identified that he also had eligible needs.
22. The Council advised Mrs Y she should no longer purchase alternative therapies with her direct payment as it believed the health service should provide this. Mrs Y later successfully applied for a personal budget from the health service.
23. In November, the Council completed a review. It noted the dog had already helped Mrs Y. It said she could access the community with the dog and go on educational outings with Mr X and the children. It recommended:
• a one-off carers’ direct payment of £2,000 for training the dog because it was supportive to the carer. This funding was to be for training only; Mrs Y was to meet all other costs.
• £840 for one session a month of hypnotherapy as Mrs Y’s GP was unable to help with this and for Mrs Y to learn skills to self care in future.
24. The assessor felt the dog, once trained as an assistance dog, would be able to help Mrs Y make safe use of her home and access the community. It would be able to provide physical stability by leaning against her when needed and could support her to an upright position. It would be able to alert her to the onset of health conditions and help with clothing, laundry and alert others to any need for assistance.
25. The Council completed a quality assurance check on the application for funding and noted neither the cost of therapy nor training was agreed. It said Mrs Y’s case would now be closed.
26. The assessor wrote to the dog trainer to ask for more information about the support an assistance dog could provide with “manual handling”. She said “seniors are questioning this. They are a bit alarmed that this sounds ‘unsafe’ and if an accident occurs whether ASC could be in some way liable if they agree to supporting with the funding/training of an assistant dog”.
27. The dog trainer advised the Council that Mr X and Mrs Y were to begin training with their dog and that training would be tailored to Mrs Y’s particular needs.
28. In December, following discussion with the assessor, Manager 1 requested funding of £2,000 for the assistance dog training. She compared this to offering a carer driving lessons without knowing if they would pass the test, gym membership, or 4 hours a week sitting services which would cost over £2,800.
29. Manager 1 wrote to Mrs Y to advise the Council would not agree to fund the dog training. She said this was because the dog was not currently able to meet her support requirements and it could not be confident it would be able to do so once trained. She said the Council also could not be clear either how this would meet the Care Act outcomes or about the safety of “manual handling” support by a dog. She said the Council could arrange occupational therapy or physiotherapy assessments to support her mobility and look at contingency plans in case of a fall. Manager 1 apologised that the social worker had misled her about buying the dog and said the Council had never agreed to this.
30. Mrs Y complained to the Council with the help of a representative, Mr Z, from an organisation specialising in support for people with the same condition as Mrs Y. Mr X says the dog was developing bad habits due to the lack of training. It was jumping up at people and damaging furniture and other items.
31. In May 2019, the Council wrote to Mrs Y to advise that another social worker would visit to reassess her needs and discuss her complaints. Mr X says that when the social worker visited, she advised she was not aware of any complaint and was not there to discuss it. The assessment noted Mrs Y had been unable to afford training for the dog and it was causing risks to her and the children. It also noted Mr Y had given up his job so that he could provide Mrs Y with the support she needed.
32. In June, the Council agreed to a one-off payment of £350 for household training for the dog. This was to stop the dog jumping up at Mrs Y and the children, and so it would walk at heel. It also agreed a personal assistant for 7 hours a week to help with batch cooking, accessing the community and laundry. The Council wrote to Mr Z offering a goodwill gesture of £350 “in full and final settlement” and noted that Mrs Y and Mr X both agreed with the support plan. Mr X wrote to Mr Z advising that they felt misled and were not happy as they did not agree with the support plan. He said the complaint was not just about the dog but also about the lack of continuity of agreed uses of funding over several years and a lack of communication. He also said Mrs Y no longer felt able to deal with the complaint because of the stress it had caused her. Mr X also says the social worker had proposed the £350 as a payment for initial training with more to follow depending on progress and suitability as evidenced by the trainer.
33. In July, the Council responded to the complaint. It confirmed it had increased the one-off payment offer to £450. It said it was happy to arrange a further visit to review the support plan unless the only reason they did not agree with it was the absence of reference to the dog. It said a review would not be necessary if the dog was the only issue. Mr X advised Mr Z that they had not agreed to the increased amount as a settlement and it should still be the cost of initial training with further training to follow.
34. In August, Mrs Y spoke to the social worker and said she was confused by the Council’s response to her complaint. She said the Council had told her the social worker would visit to discuss her complaint but the social worker said this was not the case. She felt unable to trust the social worker with issues around her care and support because of this. The Council had also said Mrs Y had agreed to £450 in full settlement but the social worker knew she had not agreed to this. The social worker wrote to Mrs Y and confirmed that in telephone calls and meetings with her, Mrs Y had not agreed to a final settlement. The social worker also confirmed that her visit was to reassess Mrs Y’s care and support needs not to answer the complaint. She said if they remained unhappy with the Council’s response, they could take their complaint to the Ombudsman. Mr X and Mrs Y decided to bring their complaints to the Ombudsman. In October, Mrs Y asked the Council to suspend her direct payment while she completed the complaints process.
35. The Council acknowledges that Mrs Y had four different workers over the past four years and agrees this was not helpful but says it cannot always avoid this. It also apologised for the social worker’s error of judgement which led to the misunderstanding that the Council would fund the dog in the first place.

Was there fault which caused injustice?

36. The social worker agreed that an assistance dog would be appropriate and made a clear case to justify the provision of funding for an assistance dog. The social worker may have misled Mr X and Mrs Y into believing the funding was agreed, but she represented the Council. This was fault. The Council was therefore, responsible for them buying the dog. Mrs Y did not want a pet, she wanted an assistance dog. The additional costs both in upkeep and damage around the house, was something she had accepted in taking on a dog. However, without the training, the risks increased along with the costs.
37. Three assessors and two managers agreed an assistance dog would benefit Mrs Y and Mr X but senior managers refused to fund this. I saw no consideration of the individual circumstances; this was fault. The dog was already noted to be meeting some of Mrs Y’s needs and it was clear that support was hard to find due to the unpredictability of Mrs Y’s needs.
38. I accept the dog was not meeting all Mrs Y’s needs but neither had the sessions of therapy the Council had previously funded. I understand it had concerns about potential liability, despite having already funded the purchase, but I saw no evidence it addressed this or took advice on this. In fact, the decision not to fund the training increased risk to Mrs Y when the Council should have been reducing risks to her. This was fault. The Council was entitled to decide that funding an assistance dog was not suitable to meet Mrs Y’s needs but the opportunity to do this passed. Having already funded the purchase, it needed to ensure it took responsibility for resolving the situation in a safe way. It did not do this and the avoidable increase in risk caused injustice to Mrs Y.
39. Direct payments are intended to give people choice and control and to ensure support is needs led not service led. The Council, in this case, failed to encourage creativity in support planning. It judged an unusual approach as unsuitable without considering fully whether it had the potential to meet Mrs Y’s, or Mr X’s, needs. This was fault and caused Mrs Y and Mr X significant confusion and frustration over how they could meet their needs.
40. Eventually, over one year after the Council agreed Mrs Y could buy the dog, it agreed to fund some behavioural training to reduce the risk. It did not engage with Mrs Y’s and Mr X’s position that this was not an adequate response. It did not deal with their concerns about inconsistent communication and lack of clarity around how Mrs Y could meet her needs. This was fault and caused both Mrs Y and Mr X significant undue stress which was likely to have negatively impacted on Mrs Y’s health and wellbeing.

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Agreed action

41. To remedy the injustice identified above, I recommended the Council:
1. Apologise to Mrs Y and Mr X, setting out the faults and injustice identified above and the actions it will take to address these.
2. Pay a minimum of £1,000 for dog training. To start as soon as possible with timings agreed with Mr X and Mrs Y and an agreed, suitable, trainer.
3. Provide evidence of actions a) and b) within one month of the final decision. This should include a copy of the apology letter, evidence of the arranged training with dates, and details of payments made or due.
4. Arrange training for staff around the Council’s approach to meeting needs to ensure staff approach this consistently.
5. Provide evidence of action d) within three months of the final decision. Suitable evidence would include details of the staff training/awareness including format, numbers of staff and dates.
42. The Council has agreed to complete these actions.

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Final decision

43. I have completed my investigation and have upheld Mr X’s complaints that the Council:
• Agreed to buy and train an assistance dog for Mrs Y but changed its mind so the dog was not trained and caused a risk to her and her children.
• Gave inconsistent information so Mrs Y was unclear about what she could spend her direct payment on.
• Failed to deal adequately with her complaint about this.
44. I am satisfied that, in completing the agreed actions, the Council will remedy the injustice it caused as far as possible.

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Investigator's decision on behalf of the Ombudsman