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West Sussex County Council (19 018 597)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 11 Feb 2021

The Ombudsman's final decision:

Summary: Ms B complained that the Council reduced her daughter’s personal budget despite the fact her needs had not changed and paid an incorrect direct payment each week. She also said it failed to complete a carer’s assessment for her. We found the Council was at fault in paying Ms B less than it should have towards recruitment costs, but it has now rectified this. It also failed to check whether Ms B still wanted a carer’s assessment in light of information provided by Carer’s Support which completes assessments on the Council’s behalf. However, this did not cause her a significant injustice.

The complaint

  1. Ms B complains on behalf of herself and her daughter, Ms C, that:
    • the Council has reduced Ms C’s personal budget which severely limits her opportunity to go out at weekends and means she can no longer pay for one night’s respite a month;
    • the Council is deducting £9.19 too much from Ms C’s direct payment each week for daycare. She says the Council is paying £288.40 per week but is deducting £297.59 from the personal budget. She says the amount she has overpaid should be refunded to her direct payment account;
    • she is only being allowed £1.48 per week towards recruitment costs when the actual cost is £3 per week; and
    • the Council failed to complete a carer’s assessment for Ms B when Ms C returned home from a supported living placement.

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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 considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.
  2. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Assessment

  1. The Care Act 2014 requires 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.

Carer’s assessment

  1. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.

Carers’ Budgets and Respite

  1. The Care Act 2014 makes clear the local authority may meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs, and how the Council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. Part of the planning process should be to agree the way the carer will use the personal budget to meet his or her needs.

Personal Budgets

  1. Everyone whose needs the local authority meets must receive a personal budget as part of their 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, 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 sufficient to meet the person’s care and support needs.
  2. A personal budget can be administered as a Council managed budget, a direct payment or a mixture of the two.

Direct payments

  1. Direct payments are a means of paying some, or all, of the personal budget to the person to arrange and pay for their own care. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. If someone requests a direct payment, the Council should support them to use and manage the payment properly.

Key facts

  1. Ms C is a young adult who has a learning disability, autism and dyspraxia. On turning 18 she developed a weekly routine of activities through a combination of attending day services and accessing the community accompanied by a personal assistant (PA) which was funded by a personal budget managed by her mother, Ms B. The personal budget was £669.69 per week.
  2. The Council completed a re-assessment in February 2019 prior to Ms C moving to a supported living placement in March 2019. Ms C was unhappy in the placement and in August 2019 she returned to live with her mother. The Council gave notice on the placement and the funding ended on 25 September 2019.
  3. In October 2019 the Council completed a re-assessment of Ms C’s needs and a new financial assessment. This resulted in an indicative personal budget of £530. Ms B said this would not meet the services Ms C needed.
  4. In November 2019 the panel considered the funding application and approved the proposed budget.
  5. A revised budget of £574.28 was later agreed to include transport for two extra journeys. Following the panel’s agreement, the social worker issued a revised support plan and sent this to Ms B and Ms C.
  6. Ms B was to receive a direct payment of £276.69 from the personal budget to pay for Ms C’s evening activities, transport, PAs and insurance. This payment also included £20 per week to be used towards respite care or other activities. The Council used the remainder of the personal budget (£297.59) to pay for Ms C’s attendance at a day centre five days per week.
  7. Ms C’s advocate appealed against the Council’s decision on the personal budget. She said Ms C's support had been reduced from 18 hours to 10 hours per week although her needs had not changed and the direct payment was not enough to purchase the services necessary to meet her needs. After attending evening activities with her PA there was no money left to pay for weekend activities or respite. Ms B was finding it difficult to support Ms C daily because she was now 69 years old and a single parent with her own medical issues. The advocate said only £20 per week had been allocated for respite and it would take two months before Ms C could afford an overnight stay whereas, before she went into supported living accommodation, she was allocated £40 per week towards respite allowing her to have one overnight stay per week with her PA which gave Ms B a break.
  8. Having considered the appeal and considering Ms B’s health, the Council agreed to increase the direct payment to allow for additional support at weekends. It increased the payment by £40 per week to bring the amount up to £60 per week. This sum was available for day care at the weekends or overnight respite. The Council was satisfied the revised budget of £614.28 would meet Ms C’s eligible needs and would enable Ms B to arrange care for Ms C which would provide her with a good quality of life as well as allowing her some respite from her caring responsibilities each day depending on how she chose to manage the budget.
  9. Ms C’s advocate submitted a further appeal in February 2020. The Council did not uphold the appeal. However, it said a further carer’s assessment could be carried out and invited Ms B to contact Ms C’s social worker for a referral to Carer Support (which completes carer’s assessments on behalf of the Council) if she wanted to pursue this.

Analysis

Reduction in Ms C’s personal budget

  1. Ms B says the Council has reduced Ms C’s personal budget since she returned home severely limiting her opportunity to go out at weekends. She says this also means she can no longer pay for one night’s respite per month. She says that, before Ms C moved to the supported living placement, she was able to pay for a PA most weekends and regular overnight stays or save this money up for a holiday. Now she only has enough for five hours with a PA at the weekend and no money towards overnight care. Ms B believes Ms C should receive the same level of support she was receiving before she went into supported living accommodation because her needs have not changed.
  2. The Ombudsman is not an appeal body and cannot overturn the Council’s decision about the number of hours support a person should receive. Our role is to consider whether there was fault in the way the Council reached its decision and, if so, to recommend a remedy.
  3. The Council must meet eligible needs, taking into account the service user’s strengths and available support networks that may meet areas of need without public funding. It should consider the resources available to the service user through community networks, mainstream services and family and friends.
  4. When completing a re-assessment the social worker will complete the resource allocation section of the document. This contains guidance but also relies on the social worker’s professional judgement as to the level of support required under various headings. This will generate an indicative personal budget. This is adjusted when it becomes clear how the service user’s needs will be best met. The level of funding in the personal budget is determined by the cost of services, including the direct payment.
  5. The Council has explained the reasons for its view that the current level of support is sufficient to meet Ms C’s needs across the whole week. The support package is: five days of day-service together with transport to and from the service; 10 hours PA support; and £60 per week which is available to use for weekend support or to save for overnight respite.
  6. The Council says Ms B has chosen to use most of the PA hours for activities on weekday evenings after Ms C has been attending day services during the day. So, there is less funding available for support at weekends however Ms B has been able to arrange some overnight respite at weekends using the funding available.
  7. The Council says the rate Ms B has chosen to pay her PAs is relatively high and this has some impact on the number of hours care she is able to purchase. It also says it has provided £112.50 per week for a driver based on the number of journeys completed but Ms B has agreed to pay the driver £125 per week.
  8. Ms B says she would be unable to find a PA if she paid less than £12 per hour. She also says that she would not be able to retain the driver if she paid less than £125 and, if she used taxis, this would be much more expensive.
  9. It is not for the Ombudsman to decide how much Ms B should pay for services. I am satisfied the Council has explained the reasons for its decision that the personal budget is sufficient to meet all Ms C’s eligible needs. I am satisfied it has considered all relevant information, including Ms B’s views. In the absence of administrative fault, there are no grounds to question the Council’s decision.

Deductions from Ms C’s direct payment

  1. Ms B says the Council has been deducting £9.19 too much from Ms C’s direct payment each week for day care. She says the Council pays £288.40 per week but is deducting £297.59.
  2. Ms C’s budget is partly Council managed and partly a direct payment. The total budget is £614.28 per week. Ms C’s direct payment is £316.69 per week and the Council managed budget is £297.59. The Council uses this to pay for day care.
  3. The Council has explained that the arts classes attended by Ms B three days a week have slightly varying costs. It says one session is charged at £49.70 and the other two sessions at £40.51 each. The other two day care sessions are £78.84 each. This totals £288.40.
  4. It appears some confusion may have arisen because Ms C’s support plan states that two of the arts sessions are charged at £49.70 per week and the remaining session at £40.51 per week. However, it appears that two sessions are charged at £40.51 each as they are 5 ½ hours long and one session is charged at £49.70 per week as it is 6 ½ hours long.
  5. Although the cost of the day care is £288.50 and therefore less than the Council managed budget of £297.59, this does not cause Ms B an injustice. The personal budget is calculated in accordance with each of the items Ms C requires. The direct payment covers all the items Ms B pays for on Ms C’s behalf. The Council managed budget, which it uses to fund day care, is costed separately and does not affect the amount of the direct payment. So, if the Council managed budget was reduced, this would not affect the amount of the direct payment.
  6. The Council has calculated how much Ms B needs to pay for the items it has agreed she should pay on Ms C’s behalf via the direct payment. These total £316.69 and this is how much Ms B receives. I therefore find no fault on the Council’s part.

Allowance towards recruitment costs

  1. Ms B says the Council is only allowing her £1.48 per week towards recruitment costs when the actual cost is £3 per week.
  2. The Council has explained the figure recorded on the initial support plan was incorrect but it was unaware of this. It has agreed to adjust the direct payment to ensure the correct amount is backdated to cover the period from when the direct payment began in 2019 until 1 July 2020. Since that date the recruitment cost element has been included in the overall payment the Council makes to Independent Lives (the organisation contracted to support people with direct payments in West Sussex) so additional payments via the direct payment are not required after that date.
  3. I am satisfied the Council’s agreement to adjust the direct payment is a satisfactory remedy for any injustice caused by this error.

Failure to complete a carer’s assessment

  1. Ms B says the Council failed to carry out a carer’s assessment after Ms C returned to live with her.
  2. The social worker made a referral to Carer Support for a carer’s assessment in October 2019 because Ms B wanted a direct payment. Carer Support responded saying Ms B had received a carer’s assessment in 2018 and received a payment from the Carer Health and Well-Being Fund for meditation and relaxation courses. So, it was unable to access a direct payment for her and the referral was closed. Carer Support said, if a carer’s assessment would be useful for another reason, another referral could be made.
  3. On 28 October 2019 the social worker wrote to Ms B explaining this and asked Ms B to let her know if there was anything else she thought a carer’s assessment could support her with and she would add this to the referral. Otherwise, it would be closed down.
  4. On 4 November 2019 the social worker visited Ms B to discuss Ms C’s support hours. She also discussed a carer’s assessment. The notes of the visit state that Ms B was already receiving money from the Well-Being Fund and attended a carer’s group monthly. The social worker said she would discuss with Carer Support any other support they could offer.
  5. Following this meeting, the social worker spoke to Officer Y from Carer Support to discuss whether they could offer Ms B any additional support. Following the conversation, Officer Y sent an email to the social worker explaining a referral for another carer’s assessment might not be the best way forward. He said Ms B had accessed all the services Carer Support could offer her and another assessment would probably be refused because she had had an assessment the previous year and there had not been sufficient changes in her circumstances to warrant another one.
  6. Officer Y said Carer Support might be able to apply to a different fund to help Ms B financially. This would not need to go through a carer’s assessment and could be done by one of its well-being workers. Officer Y said that, as Ms B attends the learning disability support groups, he would ask a worker who had regular contact with Ms B, to speak to her about applying to the Carer’s Trust Fund.
  7. The Council says it is unaware whether the worker discussed this with Ms B. It accepts the social worker could have checked with Ms B whether she still wanted a carer’s assessment in light of the response provided by Carer Support.
  8. Failure to do this was fault. The social worker told Ms B at her visit on 4 November 2019 that she would find out whether Carer Support could offer any other support but there is no evidence that she contacted Ms B to explain the outcome of her enquiry and asked her how she wanted to proceed.
  9. However, I am satisfied this did not cause Ms B a significant injustice because she was already in touch with Carer Support and was attending support groups. In February 2020, the Council invited Ms B to contact Ms C social worker for a referral to Carer’s Support if she still wanted an assessment.

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Agreed action

  1. The Council has agreed to adjust the direct payment to ensure the correct amount for recruitment costs is backdated to cover the period from when the direct payment began in 2019 until 1 July 2020.
  2. The Council should provide evidence that it has done this within one month of this decision.

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Final decision

  1. I find the Council was at fault in that:
    • the social worker failed to check whether Ms B still wanted a carer’s assessment following her contact with Carer Support in November 2019. But no significant injustice was caused; and
    • it paid the wrong amount for recruitment costs. The Council has agreed to remedy the injustice caused by this.
  2. I do not uphold the remainder of Ms B’s complaints.
  3. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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