Summary: Miss E complains about the way the Council reviewed her care and support plan. She says the Council sought to impose a reduction in her provision, without discussion. It also misrepresented conversations it had with professionals involved in her care. The Ombudsman upholds the complaint and has agreed an enhanced remedy.

The complaint

1. The complainant, whom I shall refer to as Miss E, complains the Council reduced her social care direct payment, without fully involving her in the review. Miss E also complains the Council’s records of its contacts with professionals involved in her care do not match what those professionals told her happened.
2. Miss E says her care needs have increased, not decreased. And the uncertainty of the unresolved review has caused her distress and upset.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss E;
• made enquiries of the Council and considered its response;
• spoken to Miss E;
• sent my draft decision to Miss E and the Council and considered their responses.

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What I found

Legal and administrative background

The Care Act

8. The 2014 Care Act introduced a single framework for assessment and support planning. The Act requires councils to carry out an assessment for any adult with an appearance of need for care and support. The Act gives councils a legal responsibility to provide a care and support plan. 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.
9. Councils must take all reasonable steps to agree a support plan with the service user. If it cannot agree a plan, the council should state the reasons for this and the steps which must be taken to ensure the plan is signed-off.
10. While there is no defined timescale for completing the care and support planning process, councils should complete plans in a timely fashion, proportionate to the needs to be met.

Reviews

11. Section 27 of the Care Act 2014 gives an expectation that councils should conduct a review of a care and support plan at least every 12 months. As well as the duty to keep plans under review generally, the Act puts a duty on councils to conduct a review if the adult or a person acting on the adult’s behalf asks for one.

Personal Budgets

12. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. 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 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.

Cost

13. The Care and Support Statutory Guidance (‘the Guidance’) says councils can take into ‘reasonable consideration’ their finances and budgetary position, including making sure they have enough funding to meet the needs of all their populations. Councils must meet the eligible needs of an individual, but can consider cost in determining how to meet those needs.

Direct payments

14. Direct payments are monetary payments made to individuals who ask for them 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.

What happened

15. Miss E has a diagnosis of Myalgic Encephalomyelitis (ME) and chronic fatigue syndrome. She has eligible care and support needs and has been receiving a direct payment from the Council since 2016. The Council says, for reasons that are unclear from its records, it does not seem to have completed a review of the care and support plan in 2017 or 2018. It says an officer’s absence from work has meant it could not determine why these reviews did not happen.
16. Miss E says, in 2018, the Council started, but did not complete, a review. The records the Council has sent me from 2018 show it was making a weekly direct payment to Miss E of around £287.
17. In July 2019 the Council’s social worker (Officer 1) met Miss E to review her care and support plan. Miss E says Officer 1 did not seek her views about her capabilities when carrying out the assessment.
18. The Council produced a draft care and support plan in September. This had a section providing information about Miss E’s view on her care needs and Officer 1’s view. It noted a weekly indicative budget of £104 per week.
19. There is a note, by a different social worker, on Miss E’s file, from after Officer 1 completed the draft care and support plan. It says:

‘Following review, [Officer 1] to reduce the P[ersonal] A[ssistant] hours from 25 per week / 5 hours per day to 15 hours per week / 3 hours per day and review in 3 months if needed.’

20. In early October Officer 1 spoke to Miss E to advise of a decrease in her direct payment to £102 per week. Miss E advised Officer 1 her care needs had increased, not decreased. A manager telephoned Miss E the following day. Miss E listed the help she needed. They agreed to meet to ‘discuss things further’.

The 11 October telephone calls

21. On 11 October, Officer 1 made a file note that she had spoken to Miss E’s physiotherapist. Miss E later contacted the physiotherapist who advised she had not been at work on the day Officer 1 called. Miss E has sent me the physiotherapy team’s records which suggest Officer 1 spoke to an administrative assistant.
22. Officer 1 also spoke to an occupational therapist (OT) at a ME service Miss E uses. Her record of their conversation noted the OT’s comments about Miss E’s capabilities. Miss E says has sent me a copy of the OT’s record of his conversation with Officer 1. This does note does not record his comments in the same way.
23. Officer 1’s notes record she wrote to the physiotherapist and OT the same day, asking for their input. Officer 1 later advised Miss E they could not provide reports, until she gave them consent to do so.

The new review and complaint

24. Miss E had a meeting with Council officers about her assessment in early November. She advised she disagreed with how Officer 1 had ‘scored’ her on the decision record. The Council agreed Miss E could have a new social worker (Officer 2). The Council advised Miss E to complain.
25. After the meeting the Council completed its care and support plan. This confirmed the reduction in Miss E’s personal budget.
26. Miss E complained. On receiving the complaint, the Council agreed to complete a new review. Officer 2 visited Miss E at the end of November.
27. The Council provided its complaint response in December 2019. It advised:
• It made an unreserved apology about how Miss E had been ‘made to feel’ by its intervention.
• Miss E’s direct payment was ‘significantly lower’ lower than the cost of care she was receiving. Officer 2 was revisiting the Council’s decision to include more information.
• It would finalise its decision before the end of the year. It would not change Miss E’s provision before then.
28. Officer 2 started her review in later November 2019. Her record of her assessment shows:
• more detail about Miss E’s view of her needs;
• Miss E had more substantial needs in seven out of 10 of the eligible areas of support, when compared to the earlier assessment;
• Miss E’s view about her higher needs;
• an indicative budget of £228 per week.
29. In January 2020 Officer 2 met with Miss E to go through some points of disagreement from the review. The Council has a record of the assessment on file, with some annotated points from that meeting. Officer 2 notes says she agreed some amendments. But ‘[t]he meeting did not go as well as [she had] hoped’. Miss E says the meeting left her in tears. And that Officer 2 advised her the Council would not make any substantial changes.
30. Miss E advised the Council she was not content with its complaint response. In February, she set out her concerns about the assessment. In March an officer met Miss E about her complaint.
31. After the meeting the Council wrote to Miss E. It noted some concerns that her complaint was seemingly changing. But it offered sincere apologise for how Officer 1 had recorded her intervention:

• ‘…it does read in a way that indicates the review was planned to reduce the care package. The note should have reflected the recording was made during a supervision as a suggestion and shouldn’t have anticipated or encouraged what the outcome of any review would be. Once again, [a senior manager] would like to apologise for this and reassure you that she will be speaking with the team managers in her area to strongly reiterate the requirement to record clearly and accurately, as well as ensuring each team manager cascades to their teams the importance of recording why an annual review is taking place for clarity.’
• A manager was to have personal oversight from then of Miss E’s budget.
• Miss E had not been financially affected by the fault it had identified. But the Council offered her £200 in acknowledgment of the distress it caused to her.

32. Late in March the Council emailed Miss E to advise it had agreed a temporary increase to her hours, until the end of the COVID-19 pandemic. The Council later extended the increase in hours until the end of September. Miss E has advised me that she has had multiple changes of social worker in the time since then. And her care plan remains unresolved.

Miss E’s complaint to the Ombudsman

33. Miss E first contacted the Ombudsman in January 2020. Our investigation has been delayed by a pause in our casework, due to the COVID-19 pandemic.

Was there fault by the Council?

The events I have considered

34. Miss E complained to the Ombudsman in January 2020; meaning we would not normally consider issues from before January 2019. But the Council has acknowledged it did not carry out a review in 2017 and 2018. I have taken this into account, insofar as it impacts on this complaint. This is because it is understandable Miss E did not complain then, as the lack of reviews did not alter the level of support. My investigation ends at the date Miss E complained to the Ombudsman.

The assessment process

35. It is not our role to decide if a person has social care needs, or what services they should receive. We look at whether a council assessed a person’s needs properly and acted in accordance with the law.
36. The Council carried out a review in 2019. This led to a draft plan to reduce Miss E’s support package. Its record keeping from that time:
• does not record that it sought to explain to Miss E how the assessment would work;
• does not record that it sought to find out from Miss E if or how her needs had changed in the years since the last assessment;
• does not record (at first) that it sought to take ‘all reasonable steps to agree a support plan’ with Miss E;
• has an entry that reads (as the Council has acknowledged) as if cost was the primary reason for its plan to reduce Miss E’s personal budget.

Each of these issues suggest the Council’s first review did not follow requirements of the Care Act and its Guidance. Each was fault.

37. And, while a council is entitled to seek to provide care and support in a cost effective way, it must meet needs it has assessed a service user as needing. It is not for us to decide what Miss E’s needs are. Or whether there were steps that could be taken to meet those needs in a more efficient way. But we do expect a council’s record to set out how it arrived at its decision. The Council’s record did not initially do this with sufficient clarity.
38. The Council later redeemed itself somewhat by agreeing to carry out a new review. And to not change the level of Miss E’s support until that review was concluded. Its new review has much more detail. And a different assessment of Miss E’s needs, leading to a substantially increased indicative budget, albeit still less than Miss E was receiving before. That was an appropriate way to remedy the shortcomings of its earlier review.
39. Reaching a conclusion to this process has been slow. Firstly because the Council has sought to discuss with Miss E her disagreements with the new review. Progress was then delayed by start of the COVID-19 pandemic and lockdown. Miss E has also advised of further changes of social worker that cannot have helped to reach a conclusion. These events are outside the scope of this investigation, as they post-date Miss E’s complaint to the Ombudsman.

The 11 October discussions

40. On the balance of probabilities, the Council officer’s records of her conversation with professionals were not totally accurate, as there are discrepancies between them and the records kept by professionals she spoke to. That lack of accuracy is fault.

Did the fault cause an injustice?

41. The review Miss E complains about proposed to significantly reduce Miss E’s package of care. We have found fault with how the Council carried out that review. The Council has not implemented any of the proposed reductions. So there has been no loss of service. But the faults I have identified, caused Miss E avoidable distress, confusion and uncertainty.
42. The lack of reviews over several years meant the Council was not keeping in touch with Miss E about changes to her condition and care needs. That will have meant the distress caused by the faults will likely have been amplified. Miss E will have understandably become accustomed to the stability in provision the Council had been providing.
43. With the specific issue of the Council’s contacts with Miss E’s professionals; again the inaccurate records will have caused Miss E some unnecessary distress. But I cannot see in the records how this has negatively impacted on the new review the Council agreed to complete.

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Agreed action

44. The inaccurate records and the way the Council carried out its review earlier in the process are faults which demand a remedy. The Council has already apologised and offered Miss E a symbolic payment of £200 for her distress. This suggestion is broadly in line with our Guidance on Remedies.
45. But I do recommend (that within a month of my final decision) the Council increase its payment by an extra £100 (to £300 in total), in recognition of the distress the multiple faults will have caused Miss E. And to provide a further apology for all the faults I have identified.
46. The fact the Council’s records do not show why reviews were not carried out is a cause for concern. It cites an officer’s absence from work. But it is surprising that its own supervision and oversight processes did not pick this up. In response to my draft decision, the Council apologised it did not earlier identify the lack of reviews. It says it now has a process whereby supervisions monitor their supervisee’s caseloads when they are absent from work.
47. The Council says it has emailed officers in the relevant team about the need for accurate record keeping when carrying out reviews. It says the relevant area also refreshed its teams when the Council refreshed it supervisory arrangements.

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Final decision

48. I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman