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Birmingham City Council (20 007 920)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 25 Aug 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complained about the way the Council reassessed their adult son Mr S’s care needs and about its failure to cover the cost of an increase in the care provider’s hourly rate. The Council was at fault. It delayed reassessing Mr S and has not shown how the revised budget is sufficient to meet Mr S’s needs. It has not backdated the direct payments sufficiently leaving Mr S in debt to the care provider. The Council has agreed to apologise and make a payment to Mr and Mrs X to acknowledge the frustration the faults caused them. It has agreed to pay the backdated amount owed to the care provider and to produce evidence to show how the budget is sufficient to meet Mr S’s needs.

The complaint

  1. Mr and Mrs X complain the Council:
      1. delayed increasing their son Mr S’s direct payments and then failed to backdate the increase in payments even though it had agreed to do so. This caused them and their son distress and means they owe money to the care provider which is putting the care package at risk.
      2. reassessed their son’s care needs which resulted in a significant reduction in his support hours without any change in his care needs. Mr and Mrs X say the reassessment was completed without their input and it failed to include any support hours for their son’s established social activities, volunteering opportunities or to attend medical appointments. This has caused them and their son distress and means the budget is not sufficient to meet Mr S’s eligible care needs.
      3. unfairly backdated the reduction in support hours to the date of the needs’ assessment without giving any notice period, which meant the budget was insufficient to meet the hours of care already provided by the care provider based on Mr S’s previous care package.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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 the information provided by Mr and Mrs X and have discussed the complaint with them on the telephone. I have considered the Council’s response to my enquiries.
  2. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

  1. A council must carry out an assessment of any adult who seems 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 appropriate their carer or any other person they might want involved. (Care Act 2014, section 9). Having identified eligible needs through a needs assessment, the council has a duty to meet those needs. (Care Act 2014, section 18)
  2. 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. 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.
  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. (Care Act 2014, s 26) 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.
  4. The Care and Support Statutory Guidance sets out that ‘the plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. However, local authorities should be aware that a ‘proportionate’ plan does not equate to a light-touch approach, as in many cases a proportionate plan will require a more detailed and thorough examination of needs, how these will be met and how this connects with the outcomes that the adult wishes to achieve in day-to-day life’.
  5. Where the council is meeting some needs, but not others, the care and support plan should clearly set out which needs it will meet and which ones it will not. It should explain this decision.
  6. The Care and Support Statutory Guidance sets out the importance of having a consistent method for calculating personal budgets that provides an early indication of the appropriate amount to meet the identified needs to be used at the beginning of the planning process. It goes on to say that ‘complex resource allocation system models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as in the case of deaf-blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS [resource allocation system] model is being used, local authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs.’
  7. The guidance says ‘regardless of the process used, the most important principles in setting the personal budget are transparency, timeliness and sufficiency. It goes on to say ‘The local authority should also explain that the initial indicative allowance can be increased or decreased depending on the decisions made during the development of the plan. This should prevent disputes from arising, but it must also be possible for the person, carer or independent advocate (on the person’s behalf) to challenge the local authority on the sufficiency of the final amount’.
  8. The Care and Support Statutory Guidance sets out that authorities should conduct a periodic review of the care and support plan. It says ‘The periodic review should be proportionate to the needs to be met, and the process should not contain any surprises for the person concerned. Periodic reviews and reviews in general must not be used to arbitrarily reduce a care and support package. Such behaviour would be unlawful under the Act as the personal budget must always be an amount appropriate to meet the person’s needs. Any reduction to a personal budget should be the result of a change in need or circumstance’.
  9. A person with eligible care needs can have a council arrange their care or, if they wish, they can arrange their own care using a direct payment. (Care Act 2014, s 31)

What happened

  1. Mr S has Down’s syndrome and a learning disability. He has lived in supported living accommodation with two other men for around 10 years. Mr S receives direct payments for his care and support which are managed by his father Mr X. He received direct payments for 91 hours per week of support plus sleep in nights which were shared with another resident. Mr and Mrs X use the direct payments to employ a care agency to provide Mr S’s care and support. The same care agency has supported Mr S since 2010. The Council last carried out a full needs assessment in 2012.
  2. In 2016 the Council reviewed Mr S’s care package. At the review the Council changed Mr S’s direct payments because Mr S was receiving more in direct payments per week than the weekly cost of the care package. In the review the Council noted Mr S was assessed for 91 hours per week and 7 sleeps. It recorded that should Mr S need to change provider ‘or they change their prices [Mr S] should still have access to the full amount he has been assessed for as the need is still there’.
  3. In April 2019 the care agency increased its hourly rates. This was in line with an increase the Council had agreed for Council commissioned care packages.
  4. Mr and Mrs X wrote to the Council in May 2019 to advise it of the increase and to request an increase in the direct payment budget. The Council replied that it would need to review Mr S’s needs to assess if the increase was required so it referred Mr S’s case for a social worker to follow up.
  5. Mr X contacted the Council in June 2019. He had received two bills from the care provider based on the higher hourly rate which he could not afford to pay. He was concerned this might have put the care package at risk. In early July the Council appointed a social worker to review Mr S’s care package. They arranged to visit Mr S with Mr and Mrs X but had to cancel the appointment at short notice. Mr X contacted the social worker later that month to rearrange the appointment as he had heard nothing further. They arranged to meet in early August 2019. At the review the social worker noted Mr S was happy and settled in the accommodation with no change to the level of long term support needed.
  6. In early September 2019 Mr X met with the social worker and a manager to discuss his concerns regarding the shortfall in Mr S’s finances. He says they agreed to review the financial situation. The social worker advised Mr X they would need to complete a supported hours tool document, which the Council used to calculate the amount of support hours an individual required. Mr X asked to move to a commissioned care service so in future any changes in pay rates would be carried out automatically by the Council.
  7. In February 2020 the social worker telephoned Mr X to advise they had calculated Mr S’s hours using the supported hours tool as 77 per week which included a share of hours for waking night support. Mr X was unhappy as this was a significant reduction when Mr S’s needs had not changed and if anything he had become more challenging. Mr X asked if Mr S could move to a commissioned service. The social worker advised the care package would need to go out to tender and the care provider could bid for it.
  8. Mr and Mrs X complained to the Council in March 2020 about the delays, lack of updates from the social worker and that Mr S’s hours were reduced with no explanation. They said the Council had failed to provide the assessment calculations and the reduction would put Mr S at risk. The Council responded in April 2020. It said it had halted any changes to the care package until a reassessment was completed. It apologised for the failures in communication by the social worker.
  9. In May 2020 Mr and Mrs X asked for their complaint to be reviewed. The Council responded to Mr and Mrs X in late June 2020. In its response It said it would repay the direct payment shortfall from 20 May 2019 when Mr and Mrs X contacted the Council. It said it would pay at the current rate from 1 April 2020 onwards. It had instructed the team manager to determine the shortfall in consultation with Mr and Mrs X and the care provider. It said it would formally reassess Mr S with input from an Occupational Therapist. It acknowledged there were some delays in the social worker contacting them. It apologised for this.
  10. The social worker met with an Occupational Therapist (OT) and the care provider in June 2020 for their input with completing the supported hours care tool. The care provider supplied a timetable showing the activities Mr S engaged in on a weekly basis. This included a gardening club, attending a social club, special Olympics and a healthy eating club. Following this the social worker requested further information from the care provider about how Mr S’s support hours were used.
  11. Following this the team manager contacted Mr X. They apologised for the delays in resolving the increase in the hourly rates and back payment of the direct payments. The notes record they would liaise with the care provider to confirm the figures to be paid and would reimburse from when contact was made to request the increase.
  12. At the Council’s request the care agency provided a breakdown of the invoices it had issued to Mr X since 1 April 2019, when it had increased its hourly rate. Mr X had continued to pay at the previously agreed rate which meant a debt had accrued with the care agency.
  13. The notes record in late July 2020 the social worker and OT completed the calculated support hours tool for Mr S which gave an outcome of 83 hours per week.
  14. In late July 2020 the social worker contacted the care provider to make an appointment to complete Mr S’s needs assessment. The manager of the supported living placement was unable to attend until late August 2020. The social worker updated Mr X. Mr X asked to see the supported hours tool document but the social worker said they could not share it as it was a Council document. The social worker also referred Mr S for an OT assessment.
  15. In August 2020 the social worker updated Mr X that the Council would backdate the increase in funding of the direct payments to 1 April 2020. The team manager was dealing with everything before that date.
  16. The OT carried out an assessment in August 2020. They noted Mr S needed supervision when outside, prompts with personal hygiene and with wearing weather appropriate clothing. They referred Mr S for an assessment by an enablement worker to look at his potential to further develop his independence skills through the use of visual aids.
  17. In September 2020 the social worker and OT completed the care hours support tool. They calculated Mr S required 78 hours of support per week.
  18. In late September the social worker telephoned Mr X to request his input to the needs assessment. The notes record Mr X considered Mr S’s needs had increased. Mr S also had knee issues and had been fitted with a knee brace. The needs assessment noted Mr S wanted to remain living within his supported living accommodation receiving care support from his chosen provider. He required support with daily living tasks seven days a week. He required support accessing the community and at all times required support with travelling due to high risks of harm. He also required shared waking night support (as the Council no longer funded sleep-in night support). The overall outcome was no change in the long-term support provided to Mr S.
  19. The social worker sent Mr and Mrs X a copy of the needs’ assessment on 8 October 2020. They emailed Mr and Mrs X on 9 October 2020 to advise that from 25 September 2020 Mr X would receive direct payments of 78 hours per week. They also notified the care provider. The social worker made an appointment to discuss support planning with the care provider. They said they could not provide a copy of the supported hours tool.
  20. Mr X emailed the social worker to request written justification of how they had achieved such a significant reduction in Mr S’s care provision using the care hours tool.
  21. The Council wrote to Mr and Mrs X in October 2020 having reviewed the complaint. It apologised for the delay. It said it had concluded the reassessment of Mr S’s needs. His care hours were now 78 hours per week which included hours for shared waking night support and this change would apply from 25 September 2020. It had also instructed the social worker to share care hours support planning tool with Mr and Mrs X. It said as the direct payment account was not in deficit there was no basis to reimburse any money and it was satisfied the direct payment was sufficient to meet Mr S’s needs. It had applied the increased rate from April 2020.
  22. Mr and Mrs X wrote to the Council in October 2020. They said their comments were not included in Mr S’s needs assessment which had significant omissions. They said the care provider was willing to accept payment at the original rate until the increase which was why the direct payment account was not in debt. They said they owed money to the care provider. The Council responded in November 2020 to confirm it did not consider a back payment was due. It did not explain why.
  23. The social worker met with Mr and Mrs X and the care provider in December 2020 to review Mr S’s support plan. The care provider said the hours given were not enough to provide Mr S with all the care provision he had previously and would have a significant impact. The social worker noted Mr S’s hours had reduced so he may not be able to do all his activities. Mrs X questioned the scoring on the supported hours tool document. The social worker said he had received high scoring. They acknowledged Mr S may have to choose which day activities he would like to attend as there was not enough money to do all the activities he would like to do. Mr X agreed to continue to manage Mr S’s direct payments.
  24. The social worker met separately with Mr S. They explained to Mr S his money had gone down and he should meet with the manager of the supported living accommodation and his parents to discuss how the money should be spent and what activities he would like to choose to do. They noted Mr S said he understood he may not be able to do everything he would like to do and he wanted to attend an extra day at the social club.
  25. The enablement worker visited Mr S several times over a period of 11 weeks. Mr S would not engage with them and left the room when they arrived. The enablement worker noted Mr S had the same fixed routine for many years and had been unable to engage rather than declined. He has fixed days for household chores and was unable to vary them. The loss of his regular activities due to the COVID-19 pandemic was very distressing for him. They agreed to close the case to enablement.
  26. Mr X remained unhappy and complained to the Ombudsman.

Findings

  1. The Ombudsman’s role is to look at how a decision was made. If a decision was made without fault we cannot criticise it.
  2. The Council was not at fault for deciding to reassess Mr S’s care needs when Mr and Mrs X requested an increase in his direct payments. It had been a significant period of time since he was last assessed, the Council no longer supported night sleep-ins and it had introduced a new assessment process. The Council had not carried out an assessment of needs for Mr S since 2012.
  3. Mr S’s needs assessment set out his needs for care and support and that these have not changed over time. It also recognised Mr S needed one person present at home or in the community to ensure his safety and that he should continue to receive care and support in a supported living environment. The Council used a supported hours tool to calculate the hours of care needed by Mr S. It is important that councils have a consistent method for calculating personal budgets to ensure fairness in care and support packages. However, guidance says councils must not take a ‘one size fits all’ approach. The Council was not at fault for using a specific tool but must be able to show resulting hours were sufficient to meet Mr S’s needs.
  4. The Council has reduced Mr S’s hours from 91 hours per week (13 hours a day) with sleep ins to 78 hours a week including waking nights (equivalent to 8.5 hours per day). A council can reduce the amount of care hours provided if it can demonstrate it has properly considered a service user’s eligible needs and is satisfied these can still be met. Mr S receives a direct payment and the statutory guidance emphasises the importance of giving people ownership of their care planning and promoting flexibility in the use of direct payments to meet needs. The Council’s supported hours tool has calculated the weekly hours which it considers are sufficient to meet Mr S’s needs. However, in reducing Mr S’s care hours, the Council has relied on the use of shared hours with other service users to meet Mr S’s needs. It is not clear how these hours can be used to ensure Mr S’s eligible needs are met and this is fault.
  5. The Council initially refused to provide Mr X with a copy of the supported hours tool. This lack of transparency was fault and meant Mr X could not understand or question how the hours of support were calculated. In addition Mr X raised concerns about the accuracy of the needs assessment and these were not addressed. This is fault.
  6. In its complaint response to Mr and Mrs X the Council accepted there were some delays and failings in keeping them updated. These delays and failings in communication are fault. There was no contact between the Council and Mr X between early September 2019 and late January 2020.
  7. There was further delay in getting the needs assessment and support plan completed. This was due to difficulties in arranging to meet with the care provider and in arranging visits by the OT. Given the impact of the COVID-19 pandemic I cannot say that all the delay was due to Council fault. However, it took from May 2019 to September 2020 to complete the assessment and this was far too long. The first year of this period of inaction could not be caused by COVID-19 related issues. The delay has caused Mr and Mrs X significant frustration and time and trouble.
  8. Due to the COVID-19 pandemic Mr S has been unable to undertake most of the activities set out in his support plan and his needs continue to be met by the care provider. Therefore, I cannot say these faults have caused him to miss out on support.

Backdated the reduction in support hours

  1. The Council reduced Mr S’s direct payments budget in late September 2020 but did not notify Mr X or the care provider until early October, before a revised support plan could be put in place. This lack of notice was fault. This caused an injustice to Mr S because the care provider had already provided support to Mr S in line with the hours of support identified and agreed in his previous care package and his budget was not sufficient to cover the cost.

The increase in the care provider’s hourly rate

  1. The Council originally set Mr S’s direct payments based on a support plan of 91 hours per week plus sleep in nights. His needs have not changed and Mr S continued to receive support in line with his agreed support plan and care package. The Council’s delay in reassessing Mr S’s needs and amending the care package meant the care package continued to be delivered based on the support plan in place at the time with a personal budget which was not sufficient to cover the cost of the care package.
  2. In June 2020 the Council agreed to backdate the increase in the direct payment to May 2019 when Mr and Mrs X first contacted it about the increase in the hourly rate. However, it did not do this. In October 2020 the Council agreed to backdate the increase in the direct payments to April 2020 to reflect the increase in the care provider’s rates. However, it refused to backdate this to May 2019 when Mr X first informed it of the increase. It has not explained its reasons for not backdating the increase further. This is fault. The care provider has invoiced Mr X based on the new rates and has provided care in line with the agreed care package, in place at that time.
  3. By agreement Mr X has continued to pay the care provider what he can afford. This meant the direct payment account was not in arrears but Mr X has accrued a significant debt with the care provider which puts the care package at risk.

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Agreed action

  1. Within one month of the date of the final decision the Council has agreed to:
    • apologise and pay Mr and Mrs X £250 to acknowledge the frustration and distress caused by the delays and faults in Mr S’s care planning.
    • pay the care provider the amount owed between April 2019 and March 2020 for the increase in the care charges.
    • amend the start of the revised budget to 16 October 2020 which is one week after it advised the care provider of the change.
  2. Within two months of the final decision, the Council has agreed to:
    • demonstrate how the hours of care it assessed Mr S as requiring can meet his needs. If the Council is unable to do this for the hours it has calculated Mr S needs, it should review and backdate the direct payments as appropriate.
    • remind staff of the need for transparency in determining support hours and discloses the support hours tools calculations where requested.
    • review the reasons for the delays in this case and implement any service improvements it identifies as a result of this.
  3. The Council says it will conduct a thorough review of the practice of how and when direct payments are increased to determine if they should be raised annually in line with inflation or to recognise the requirement of the living/minimum wage. This is welcomed. I recommend the Council does this within three months and provides the Ombudsman with evidence it has done this.

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Final decision

  1. I have completed the investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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