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Dudley Metropolitan Borough Council (19 019 548)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 04 May 2021

The Ombudsman's final decision:

Summary: The Ombudsman finds fault with the way the Council made its decision not to backdate an increase in Mr C’s personal budget. This meant Mr C had to fund the shortfall to ensure his care needs were met. There was also a delay handling Mr C’s complaint. The Council has agreed to reimburse Mr C.

The complaint

  1. Ms B complained on behalf of her client, Mr C, about the way the Council decided Mr C's personal budget. She says the Council:
    • failed to allocate a budget to meet Mr C's eligible needs; and
    • failed to properly assess Mr C's needs.
  2. This meant Mr C had to fund his own care over several months to ensure his care needs were met.

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The Ombudsman’s role and powers

  1. We investigate complaints about 'maladministration' and 'service failure'. In this report, we 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. We 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)
  2. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  3. 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)

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How I considered this complaint

  1. I reviewed the information provided by Ms B and the Council. I considered relevant law and guidance.
  2. I wrote to Ms B and the Council with my draft decision and considered the comments I received before I made my final decision.

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What I found

Law and guidance

  1. A council must carry out an assessment of any adult who seems to need care and support. Having identified eligible needs through a needs assessment, the Council has a duty to meet those needs. (Care Act 2014, section 18)
  2. The Care Act sets out examples of different ways a council can meet eligible needs. Examples include accommodation in a care home and care and support at home. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
  3. The care and support plan must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. The setting of the personal budget should be transparent to ensure a person is fully aware of how the budget has been calculated. (Care Act 2014, s 26 and Care and support guidance, paragraph 11.24)
  4. In determining how to meet needs, the local authority may take into reasonable consideration its own finances and budgetary position. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes as doing so would not deliver an approach that is person centred. The authority may take decisions on a case by case basis which weigh up the total costs of different potential options for meeting needs and include cost as a relevant factor in deciding between suitable alternative options for meeting needs. (Care and support guidance paragraph 10.27)

What happened

  1. Mr C has physical and learning disabilities. He uses a wheelchair and requires 24-hour support. He needs support with all aspects of his life. He cannot communicate verbally. He is represented by his solicitor, Ms B.
  2. Mr C lived in supported living accommodation from 2010. In April 2017 he moved into his own house.
  3. In supported accommodation he had 1:1 care and some 2:1 care for personal care needs and hoisting.
  4. Until April 2017 the Council paid £1140 per week for Mr C’s care at the supported living accommodation.
  5. In August 2016 Mr C’s social worker requested an assessment for Mr C ahead of him moving into his own house. This assessment said Mr C would need a personal assistant (PA) 24 hours a day. At certain times he would need two PA’s to support with hoisting and personal care. The new care package required an increase in funding to £2532.06.
  6. In October 2016 the request went to the Council’s funding panel. The panel did not approve the funding request.
  7. In December 2016 the Council decided it would not increase Mr C’s funding. It said:

“As Mr C's needs have not changed and his needs are currently being met at his current placement, Dudley MBC do not have legal obligation to offer the increased care. Mr C is moving property type by choice so all Dudley MBC would be able to offer is the current level of support that he already gets in his personal budget. This equates to £1140.00 per week”.

  1. Mr C moved into his new house on 4 April 2017.
  2. Ms B complained to the Ombudsman in June 2018. We returned the complaint to the Council because it had not completed the Council’s complaint process.
  3. The Council requested a reassessment of Mr C’s care needs. The assessor noted no direct payment had been made despite panel agreeing £1140 per week in December 2016.
  4. The assessment was done in July 2018. The total cost of the recommended care package for Mr C increased to £3097.35 per week. The Council agreed to pay this amount from 4 July 2018.
  5. The Council paid Mr C £77,366.85 for the period 4 April 2017 to 15 July 2018.
  6. In May 2018 Ms B wrote to the Council to request the increased budget be backdated to the date Mr C moved into his house (4 April 2017). She asked for the extra money to be paid to Mr C to make up the shortfall he paid from his own money to fund his care during this period. She said:

“In 2018 a re-assessment of Mr C’s needs was carried out by officer X…..She further advised that given Mr C’s complex social care needs he should have been allocated a personal budget of £161,197.20 when he moved into his own property and not £59,241.22. Based on officer X’s professional judgement and findings it is evident that Mr C’s needs were under assessed and funding under allocated”

  1. Ms B says because the Council under assessed and under funded Mr C between April 2017 and July 2018 Mr C had to make significant financial contributions from his own money towards his care and support. She says Mr B had the same needs when he moved into his house in April 2017 as when he was reassessed in July 2018.
  2. Ms B claims the Council should pay Mr C £184,384.58 to make up the shortfall in Mr C’s personal budget.
  3. The Council gave a final response in December 2019. It says it will not pay the additional funding because:
    • the reassessment reflects a change in Mr C’s presentation and behaviour, which was reflected in the increased financial support plan;
    • there is also a marked difference in risk assessment that was undertaken reflecting an increase in preventing risk.
  4. It did not uphold Ms B’s complaint and did not agree to pay any additional money to Mr C. It offered to pay £1000 to acknowledge the delay, time and trouble caused by the delay responding to the request for the back payment.
  5. Ms B was unhappy with the Council’s response and complained to the Ombudsman.

My findings

  1. My investigation considered the Council’s decision not to backdate the increase in Mr C’s personal budget to April 2017. From 4 July 2018 the Council has been paying Mr C £3,097.35 a week.

The Council’s refusal to backdate the increased personal budget funding

  1. The Council says it will not backdate the increased amount because it does not agree Mr C’s care needs were the same when he moved into his house in April 2017 as when he was reassessed in July 2018.
  2. Ms B says Mr C’s needs have not significantly changed and the first assessment under assessed Mr C’s needs.
  3. In response to my enquiries the Council said the difference in the first assessment and second assessment included changes which explain the additional funding agreed from July 2018.
  4. I disagree with the Council. I reviewed the case notes and they support Ms B’s view of Mr C’s needs.
  5. In August 2016 Mr C’s social worker was asked to arrange to reassess Mr C’s needs ahead of him moving into his own house. He noted:

“looking back on the notes it looks like his [Mr C] support staff do feel he does require an increase to this care support anyway”.

  1. In October 2016 the information provided to the Council’s funding panel following the first assessment said:
    • Mr C needs assistance with all aspects of daily life and practical tasks both inside and out in the community;
    • Mr C uses a wheelchair and is hoisted for transfers. He needs two PAs quite a lot of the time in one day;
    • to safely move into his own house, he needs 24-hour care from PA(s);
    • Mr C needs the Council to fund the hours required to ensure his care needs are met. Direct payments will need to be set up for him to employ permanent PAs to cover the hours; and
    • Mr C’s carers say he needs 243 hours a week. This includes 168 hours for 24‑hour PAs plus further hours to allow two PAs to be present for hoisting.
  2. In December 2016 the Council said it was meeting Mr C’s needs at the supported living accommodation. It said if Mr C chose to move into his own house then the Council could refuse to pay the additional funding because it was already meeting his needs. In relation to this decision the social worker noted:

“I said that we would possibly look into keeping his personal budget as it is and transfer it over to direct payments and then any care above and over the cost of [Mr C’'s] current personal budget would have to be topped up by himself. Officer X explained this might be difficult to do as if we transferred it over to direct payments in the intention that it would be used for PA’s we would then be leaving him short as his current budget would not be enough to cover a 24-hour PA. I explained that I have re-assessed [Mr C] and in order for him to be safe and to ensure that all of his needs are met in independent living then a carer would need to be present at all times as he would be unsafe if left alone.”

  1. In July 2018, the Council agreed to increase Mr C’s personal budget to £3,097.35 a week. It says the increase reflects a change in Mr C’s needs. I compared the first and second assessments. There is additional information included in the second assessment. However, I cannot see a fundamental change in Mr C’s needs which would account for such an increase in his budget. Most of the budget is for PA hours. Mr C has always needed 24-hour support from at least one PA.
  2. I find fault with the way the Council made its decision not to backdate the increase in Mr C’s personal budget. It failed to account for the substantial increase in his personal budget in July 2018. It has not properly evidenced why he did not need the higher personal budget payments from April 2017. Due to this fault Mr C had to pay the difference in cost between the care he needed and the personal budget payments from the Council. To remedy the injustice the Council should backdate the increased direct payments to April 2017. It should reimburse Mr C this amount less the payments it already made.

The assessments of Mr C’s care needs

  1. I carefully considered Ms B’s complaint about Mr C’s assessments. The Council relied on the differences in the assessments to explain why it refused to backdate the increased personal budget payments. Ms B says rather than indicating Mr C’s needs increased during this period it suggests the previous assessment was inadequate.
  2. I do not find fault with the way the Council assessed Mr C’s needs. There is no evidence of fault in the way Mr C was assessed so I cannot question the professional judgement of the assessors. However, it does not change our view on the core part of the complaint. Both assessments say Mr C needed 24-hour care from one PA and two for hoisting. As most of the funding is for PAs there was an increase needed in both cases.

Delay in complaint handling

  1. I note the Council’s remedy offer of £1,000 for the distress, time and trouble caused by the delays. A more proportionate remedy would be £300, particularly in view of the separate remedy I have recommended for the substantial injustice.

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Agreed actions

  1. Within two months of my final decision the Council agrees to:
    • backdate the increased personal budget payments to April 2017 and pay Mr C this amount less any payments already made;
    • pay Mr C the lost interest on the money the Council owes for the backdated payments. This should be calculated using the retail price index for the period 2017 to present. This percentage should be applied to the amount the Council calculates it owes Mr C in respect of the first recommendation; and
    • pay Mr C £300 to recognise the delays, time and trouble handling his complaint.

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  1. I find fault with the Council causing injustice. The Council has agreed to take the recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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