Summary: Mr X complained about how the Council provided for his, and his son, Mr Q’s, social care needs. Based on the information we have seen, there was fault in how the Council calculated and managed Mr Q’s direct payments. This caused an underpayment to Mr Q and avoidable frustration, time and trouble to Mr X. The Council agreed to pay the outstanding direct payments to Mr Q, apologise to Mr X and make a payment to recognise the effects on him. It also agreed to review how it manages direct payments for people with complex care needs.

The complaint

1. Mr X complained about how the Council provided for his, and his son’s (Mr Q’s) social care needs. He said the Council:
1. continuously underpaid the direct payment for Mr Q since 2006;
2. failed to take into account some of Mr X’s needs;
3. reduced Mr X’s direct payments with no explanation in 2016.
2. As a result, Mr X said he struggled to pay for Mr Q’s carers and his own needs were not met. He also said he needed to complain to, and chase, the Council many times for missing payments and explanations.

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What I have investigated

3. I have investigated:
1. Mr Q’s direct payments from September 2016; and
2. whether the Council properly considered Mr X’s needs from August 2019.
4. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. We provide a free service, but must use public money carefully. We may restrict how far back in time we will investigate if we decide there is not enough reliable evidence for us to reach a sound judgement about what happened. (Local Government Act 1974, section 24A(6))
10. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

11. 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.
12. 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

13. I considered the information Mr X provided and discussed the complaint with him.
14. I also considered the Council’s comments on the complaint and the supporting information it provided including payment records and relevant care plans.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Community care assessment

16. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult who appears to need care and support. 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.
17. Councils must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment. Where a council decides a person has any eligible needs, it must meet those needs.

Personal budgets

18. Everyone whose needs a 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 assigned to meet the needs identified in the assessment and recorded in the plan. 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.
19. There are three main ways Councils can manage a personal budget:
• 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.

Direct payments

20. Direct payments are money paid to individuals who ask for them to meet some or all their eligible care and support needs. They provide independence, choice and control by enabling people to arrange their own care and support to meet their eligible needs.

What happened

Background

21. Mr Q has several disabilities, including cerebral palsy and a learning disability, and has complex care needs. He has received 24-hour care for many years, both at home, and at a day centre he attended on weekdays. Mr Q’s pays for his care at home through direct payments he receives from the Council.
22. Mr Q lives with his father, Mr X, who cares for Mr Q and manages his direct payments.
23. Mr X also has disabilities, including arthritis and Alzheimer’s disease, and has his own care needs for which he also receives direct payments from the Council.

September 2016 review of Mr Q’s needs

24. In September 2016, the Council reviewed Mr Q’s care needs and updated his support plan. It decided Mr Q always needed help from two carers, including while at home and traveling to and from the day centre. At night, the plan said Mr Q needed one carer awake all night, and another carer to sleep at his home in case he needed more help.
25. The Council increased Mr Q’s direct payments to cover 203 hours of care a week, plus 7 ‘sleep-in’ nights. The day centre closed twelve days a year and Mr Q would need to pay for more care on those days. So, the Council added £17.78 a week to his direct payments to cover the extra care Mr Q would need on days the day centre was usually closed. This ‘annualised payment’ was worked out by dividing the total extra yearly costs by 52 weeks. The September 2016 support plan showed a total payment of £3,130.38 a week.
26. The Council reviewed the new plan in November 2016. Council records show this review identified there was a one-hour gap in the September 2016 support plan between Mr Q leaving the day centre and his carers starting in the afternoon. This meant Mr Q’s direct payment was 10 hours a week short (two carers, for one hour, five days a week). However, the Council did not increase the care hours in Mr Q’s support plan. Mr X said he had to fund the extra care.

2018 changes to Mr Q’s support plan

27. In February 2018, Mr X told the Council Mr Q needed more help at night. He asked the Council to increase Mr Q's direct payments to pay for two carers to be awake at night. Around this time, the day centre hours changed, so Mr Q needed an extra half hour of care from two carers each weekday morning (an extra 5 hours a week). Mr X also pointed out the missing 10 hours from the September 2016 care plan and queried how the Council had calculated the ‘annualised payment’.
28. In March 2018, the Council agreed to temporarily increased Mr Q’s direct payments while it reassessed his needs. It increased his care by 15 hours a week for daytime care and changed the ‘sleep-in’ carer to a ‘waking’ carer. The new direct payment was £3,625.82 a week, which again included an ‘annualised payment’ for day centre closures of £17.78 a week.
29. The Council made a single payment to Mr Q for the difference between the new and old rates between mid-February and the end of April 2018. The Council made further extra payments to Mr Q for the increased care until the end of 2018 when the Council completed the reassessment and increased the payments permanently.
30. In June 2018, the Council responded to Mr X’s queries about the direct payments. It agreed Mr Q should have received 10 more hours of care a week since 23 September 2016. However, it also said it had overpaid Mr Q by £51.08 a week and it offset this against the money it owed for the ‘missing’ 10 hours a week. The Council paid Mr Q £5,567.04 for the ‘missing’ hours between 23 September 2016 and 8 February 2018.
31. The Council also said it had calculated the ‘annualised payment’ for day centre closures correctly. It explained how it had calculated the old ‘annualised payment’ and gave the new calculation for the new day centre hours. It also agreed it had paid the wrong ‘sleep-in’ rate in 2017 and paid the difference to Mr Q.
32. In January 2019, the Council reviewed the payments it had made to Mr Q since February 2018. It compared what it agreed Mr Q should have received with the payments it had made. It worked out that it still owed Mr Q £5,865 and it paid this amount in February 2019.

Mr X’s care needs

33. The Council reviewed Mr X’s care needs in August 2019. It found that Mr X needed help with his personal care (washing and dressing), cooking, maintaining his home and accessing the community. The Council decided Mr X needed visits from carers for 25 hours a week to meet those needs and made a direct payment to Mr X of £286.50, less Mr X’s assessed contribution.
34. Mr X told the Council he could not afford to meet all his needs with the amount provided. In particular, he told the Council he liked to use the same carers as Mr Q and preferred to shop for fresh food daily, which the agreed payments do not meet. Mr X’s social worker explained Mr Q’s carers are paid a higher rate, because of his needs, and that Mr X could use other local carers which were cheaper but would still meet his needs. The social worker also suggested Mr X consider alternative shopping arrangements which would still meet his needs. However, Mr X said he did not want to change his carers or change how he shopped.

Mr X’s complaint

35. Mr X complained to the Council in April 2019 about various issues, including that:
• Mr Q had needed two waking carers since September 2016 and that Mr X had paid for these between September 2016 and February 2018;
• the Council still owed a shortfall in Mr Q’s direct payments from 2006 onwards; and
• various issues with his own direct payments.
36. The Council responded to Mr X’s complaint in May 2019. It said it believed it had paid all the outstanding money it owed and confirmed Mr Q was receiving payments for two waking carers at night.
37. Mr X was not satisfied with the Council’s response, so he complained to the Ombudsman, originally in August 2019.

a) My findings about Mr Q’s direct payments

38. Due to his disabilities, Mr Q is not aware of the problems affecting his direct payments and could not bring his own complaint. Although the usual 12-months limit does not apply, I have decided to only consider events from September 2016 onwards. This is because there is limited reliable evidence of what happened before this date. Although there is evidence Mr X agreed with the Council he would not pursue matters before 2017, the Council accepted there were mistakes with the payments from September 2016. Therefore, I have decided to consider events from then onwards.

Mr Q’s 2016 care plan

39. The records show that Mr X, one of Mr Q’s carers and an occupational therapist took part in the September 2016 review of Mr Q’s needs and the Council considered their views. The Council decided Mr Q needed care from two carers during the day, and one waking carer and one ‘sleep-in’ carer at night. I have seen no evidence of fault with how the Council carried out this assessment.
40. Apart from being 10 hours a week short, the September 2016 support plan met the needs identified in the needs assessment, including Mr Q needing one waking and one ‘sleep-in’ carer.
41. The Council accepted it failed to include care for the hour immediately after Mr Q’s day centre and says it paid Mr Q for this in 2018. However, I am not satisfied the Council correctly calculated this payment or that the ‘annualised payment’ for the day centre included in the support plan was correct.

‘Missing’ hours between September 2016 and February 2018

42. The Council accepted it had underpaid Mr Q for 10 hours a week care between 23 September 2016 and February 2018. This came to £128.40 a week.
43. However, the Council told Mr X the total shown on the September 2016 support plan was wrong and so it had overpaid Mr Q by £51.08 a week. So, it paid him the difference (£77.32 a week) for the 72 weeks between 23 September 2016 and 8 February 2018.
44. I am not satisfied with the explanation the Council gave to Mr X that the total on the September 2016 support plan was wrong. It has not explained why the original total was wrong or shown how it arrived at the new total. In its response to my enquiries, the Council confirmed Mr Q’s correct direct payments from September 2016 was the original amount shown in his support plan. Other payments the Council made to Mr Q in 2017 support the original total being correct.
45. Therefore, on the balance of probabilities, I find the Council wrongly decided it had overpaid Mr Q and should not have offset the alleged overpayment against the amount it owed him. This was fault which meant the Council underpaid Mr Q. The Council should pay Mr Q the £3,677.76 it wrongly offset

‘Annualised hours’ calculation

46. In its response to my enquiries, the Council said the original ‘annualised hours’ calculation allowed for two carers. However, in its June 2018 explanation to Mr X it based the calculation on 6 hours for 12 days a year, for a total of 72 hours. This allowed only for one carer. Allowing for two carers would need 144 hours a year, so the Council only paid Mr Q half of what it should have.
47. Therefore, I am satisfied the ‘annualised hours’ calculation in the September 2016 support plan was wrong and did not meet Mr Q’s stated needs. This was fault. Although there is no evidence this affected Mr Q’s care, this was because Mr X met the shortfall. The Council should pay Mr Q £1,262.38 for the shortfall in the ‘annualised hours’ payments between 26 September 2016 and 4 February 2018.

2018 changes to Mr Q’s care

48. The Council accepted it took longer than it should have done to reassess Mr Q’s care needs in 2018. It took the Council over 9 months to complete the assessment and update Mr Q’s support plan. I have seen no justification for this delay, so this was fault.
49. The Council accepted Mr Q’s care needs increased from 5 February 2018 and, from then, he should have received a direct payment of £3,540.77 a week. This included the correct amount for the ‘annualised hours’ payment.
50. However, the evidence shows the Council made several mistakes in its January 2019 calculation of what it still owed Mr Q. It:
• considered the wrong period. It should have considered until the end of December, since it changed the regular direct payments from January 2019;
• used the wrong figures when offsetting the regular direct payments. It used what Mr Q’s 2016 support plan said, rather than the amounts it had actually paid him; and
• it offset an extra one-off payment which covered an earlier period which it should not have done.
51. The evidence shows the Council should have paid Mr Q £169,956.96 between February and December 2018. Instead, it paid him £155,049.84 in regular direct payments and £10,617.12 in extra payments for the temporary increases. The correct arrears payment was therefore £4,290.
52. Since the Council paid Mr Q £5,865, it overpaid him by £1,575 for his regular care between February and December 2018.

Amount due to Mr Q

53. For the reasons given above, the Council should pay Mr Q:
• £3,677.76 from wrongly offsetting an ‘overpayment’ between September 2016 and February 2018;
• £1,262.38 for the shortfall in the ‘annualised hours’ payments between 26 September 2016 to 4 February 2018;
• less £1,575 it overpaid him for his regular care between February and December 2018.
54. This gives a total of £3,365.14

Effects on Mr Q

55. The evidence shows the faults I have found with how the Council calculated and managed Mr Q’s direct payments did not have an impact on his care. However, this was only because Mr X paid for the shortfalls in Mr Q’s direct payments and chased matters with the Council.

Inconvenience and frustration to Mr X

56. The evidence shows the Council caused Mr X significant inconvenience since 2018 in trying to resolve the errors in Mr Q’s direct payments. He has had to pay for Mr Q’s carers himself due to the shortfall in payments and the explanations given by the Council throughout that time were inaccurate and not clear.
57. This caused Mr X significant avoidable frustration and inconvenience, and further time and trouble complaining. Given the time over which this occurred, I am satisfied these injustices justify financial remedies.

b) My findings about Mr X’s care needs

58. The evidence shows the Council took Mr X’s views into account when assessing his needs in August 2019. It decided that Mr X needed help with personal care and shopping, and the Council’s standard rate for care could meet those needs. The Council considered Mr X’s wishes, including wanting to use the same carers as Mr Q and shopping more often. However, it explained how it arrived at the personal budget and provided Mr X with advice on practical arrangements that would meet his needs within that budget.
59. For those reasons, I am satisfied there was no fault in how the Council assessed Mr X’s needs or decided on the personal budget it assigned to them.

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Agreed action

60. Within one month of my final decision the Council will:
• pay Mr Q £3,365.14 for the underpaid direct payments towards his care;
• apologise to Mr X for the mistakes and errors when calculating Mr Q’s direct payments;
• pay Mr X £300 for the avoidable frustration, distress and inconvenience caused by the errors in Mr Q’s direct payments; and
• pay Mr X £300 for the avoidable time and trouble caused by him having to complain about Mr Q’s direct payments.
61. Within six months of my final decision, the Council will review how it monitors and calculates changes in direct payments for people with complex needs to ensure it:
• keeps accurate records of its calculations and any changes;
• makes changes or amendments to direct payments promptly following reviews; and
• uses the correct figures when calculating any underpayments due.

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Final decision

62. I have completed my investigation. There was fault in how the Council calculated and managed Mr Q’s direct payments. This caused an underpayment to Mr Q and avoidable frustration, time and trouble to Mr X. The Council agreed to pay the outstanding direct payments to Mr Q, apologise to Mr X and make a payment to recognise the effects on him. It also agreed to review how it manages direct payments for people with complex care needs.

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Parts of the complaint that I did not investigate

63. I have not investigated issues with Mr Q’s direct payments before September 2016 because reliable evidence is only available for the period after then.
64. I have also not investigated Mr X’s complaint that the Council reduced or stopped his direct payments before 2018. This is because Mr X’s complaint about this period is late. We cannot normally investigate late complaints unless there are good reasons. Mr X knew about these problems with his direct payments before 2018 and there are no good reasons Mr X could not have complained to the Ombudsman sooner or why I should consider that part of his complaint now.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman