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Herefordshire Council (20 011 186)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 23 Aug 2021

The Ombudsman's final decision:

Summary: There is evidence of fault in this complaint. The Council reduced Mr Y’s direct payment because it wrongly believed direct payments cannot be spent on social/community activities, which in this case were identified as an eligible need.

The complaint

  1. Mrs X complains the Council unlawfully reduced Mr Y’s personal budget for social and community activities, and short breaks. She says his eligible needs have not changed and the Council has not adequately explained its decision.

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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. 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 written complaint submitted to this office;
  • considered the correspondence exchanged between Mrs X and the Council, including the Council’s response to her complaint;
  • made enquiries of the Council and considered the responses;
  • taken account of relevant legislation;
  • offered Mrs X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

  1. The Care Act 2014 sets out local authorities’ duties in relation to assessing people’s needs and their eligibility for publicly funded care and support. Under the Care Act 2014, local authorities must:
  • carry out an assessment of anyone who appears to require care and support, regardless of their likely eligibility for state-funded care
  • focus the assessment on the person’s needs and how they impact on their wellbeing, and the outcomes they want to achieve
  • involve the person in the assessment and, where appropriate, their carer or someone else they nominate
  • provide access to an independent advocate to support the person’s involvement in the assessment if required
  • consider other things besides care services that can contribute to the desired outcomes (e.g. preventive services, community support)
  1. The Act gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
  2. Direct payments are monetary payments made to individuals who ask for one 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

  1. Mr Y has Downs Syndrome and requires 24-hour care. He lives at home with his parents. He has been in receipt of direct payments to purchase services since 2013.
  2. For many years Mr Y used his direct payment to fund activities such as swimming, bowling, snooker, and short respite breaks.
  3. The Council reviewed Mr Y’s care in 2017 & 2018 and updated his care and support plans.
  4. I have seen copies of the support plans. Both plans set out Mr Y’s eligible care needs, which include, managing personal relationships, accessing work, community/social activities, and respite breaks. Both plans provide a breakdown of the activities which met Mr Y’s needs. They also record that Mr Y was able to use his direct payment to fund short breaks.
  5. The 2018 plan shows that Mr Y attended a day service four days a week and went swimming once a week, he also went out for lunch once a week with his carer “…to a restaurant where they help him to read the menu and choose his own meal”. Mr Y received three weeks respite care and on occasions had short breaks at a holiday camp. The plan also suggests other activities for Mr Y to consider, including, joining a community group or 1-1 support in social groups “...discos, karaoke and outings. - £4/ day.10am -3pm. Night time £5 7-9pm”.
  6. The Council reviewed Mr Y’s need again in September 2019. There was no change to his needs and the support he required remained like that of previous years. The care and support plan records the formal and informal support provided. Following the review, the Council sent Mrs X a standard letter advising her there were no issues arising from the review. It says this was an error.
  7. On 1 October 2019, Mrs X received a letter from the Council informing her that Mr Y’s direct payments were being used to fund social activities and respite breaks, which were not provided for in Mr Y’s care and support plan. It said the direct payment was to only be used to meet the costs of his personal assistant’s hourly rate and that monies inappropriately spent would need to be repaid.
  8. It appears the Council took no action until July 2020, when a social worker met with Mrs X and another family member.
  9. Mr Y was not present at the meeting. The Council says “The majority of the meeting concentrated on discussions around the direct payment. [Council officer] did touch on the need to undertake a review of the current support provision however this was not the main focus of the visit… The visit was recorded in case notes at the time but the review was not formally written up as [Council Officer] was seeking guidance and support from her supervisors regarding questions [Mrs X] had raised during this meeting. Unfortunately due to holidays and Senior Manager availability the points that had been raised were not duly considered until 15 October 2020”.
  10. The social worker told Mrs X that “Direct payment can be used to access specialist activities like day services not leisure activities like cinema or bowling tickets” and said Mr Y would need to fund leisure activities and respite breaks from his benefits.
  11. Mrs X disagreed with the proposed changes. Mrs X met with the Council on three occasions to discuss the proposed changes, but no agreement could be reached. The Council reduced Mr Y’s direct payments by £40.51 per week.
  12. The October 2020 review document was completed from the social worker’s notes from the visit in July 2020. It shows Mr Y’s needs and support package to be largely unchanged from previous years.
  13. The Council says it made some amendments made to the revised care and support plan. The cost of the taxi was removed because it was not being used and the amount paid for respite was amended because Mr Y continued to attend day activities whilst on respite and therefore a 24-hour allowance was not required.
  14. The Council did not provide Mrs X with a copy of the revised care and support plan. It says at the time it did not feel it was appropriate to do so because of the ‘time lapse and delicateness’ of the situation. It “acknowledges that with hindsight this was perhaps the wrong decision and is happy for the review to be shared with the family”.
  15. Mrs X says the reduced direct payment does not meet Mr Y’s needs and the loss of meaningful activity will impact on his wellbeing, and that of her and her husband as carers.
  16. The Council says, since 2017 all support plans clearly state that the funding is provided for personal assistant hours to enable Mr Y to access leisure activities such as bowling etc., with no mention of paying for the actual activity itself, and that Mr Y “...can use his direct payments as flexibly and as innovatively as he wishes… The Council is happy to provide the support to facilitate [Mr Y] to access social and leisure activities but its policies are clear that the cost of admission and/or membership must be met by [Mr Y] from his income or benefits.
  17. In response to my enquiries the Council says it has a responsibility to manage the public purse. In doing so the Care Act allows it to consider its resources when considering how needs are met, to weigh up/consider different options for meeting needs and take into account all relevant factors' in deciding how it can meet needs in a cost effective way.
  18. The Council says Mr Y’s social worker was alerted to the surplus funds in Mr Y’s direct payment account during the review meeting in July 2020. It says discussions were had about the potential recall of the unspent funds, but nothing was formally triggered until 17 November 2020 when a surplus of £7,000 was confirmed. The direct payment team then referred the matter to the social work team and asked for a decision on whether to recall the surplus funds.
  19. On 29 December 2020, the Council decided to recoup £7,000 from Mr Y’s direct payment account. It says this included an agreement to carry forward one week’s respite. The calculation of the surplus allowed for any unpaid liabilities, a week’s respite, and four weeks contingency money.
  20. On 5 January 2021, the Council wrote to Mrs X to ask her to return the surplus funds in Mr Y’s direct payment account by bank transfer. It sent a letter confirming receipt of the funds on 5 February 2021.

Analysis

  1. It is not the Ombudsman’s role to decide what services a person is entitled to receive. The Ombudsman’s role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law.
  2. In this case the Council failed to do so.
  3. Assessments of Mr Y’s needs completed from 2017 onwards show his needs remained largely the same. The care and support plans completed in 2017,18 & 19 set out Mr Y’s eligible care needs, which include, managing personal relationships, accessing work, community/social activities, and respite breaks. The plans show the activities listed met Mr Y’s eligible needs.
  4. I note the social worker’s comments of July 2020 of the need to review Mr Y’s support provision. This is not person centred. It is Mr Y’s needs the Council should be reviewing before any consideration of the service provision.
  5. During the meeting held in July 2020, the social worker told Mrs X that direct payments cannot be used to fund leisure activities/short breaks. This is incorrect.
  6. Direct payments can be used to purchase various types of support including accessing a wide range of social and educational activities if it is being used to meet eligible care and support needs. It is unlawful for the Council to apply a blanket policy. Where a person has an assessed eligible need, the Council has a duty to meet the need. In this case it is clear Mr Y has eligible needs in relation to social and community activities and respite breaks, and these needs should be met.
  7. The Council is correct in that the Care Act does allow it to consider its resources when determining how an individual’s needs should be met, but not whether those needs are met, as is the case here.
  8. Mrs X was told that the cost of social activities/short breaks should be funded from Mr Y’s benefits. There is nothing in the Care Act 2014 or the statutory guidance which allows the Council to require a person to use their benefits this way.
  9. The October 2020 review document was completed from the social worker’s notes from the visit in July 2020. I note the meeting in July focused on the direct payments, not Mr Y’s needs so I am unclear how the notes informed a review of Mr Y’s needs.
  10. The October 2020 review document shows no real change in Mr Y’s needs. The Council acknowledges it failed to provide Mrs X with a copy of Mr Y’s support plan completed in October 2020. The Council developed the support plan without Mrs X’s involvement, and it did not genuinely consider her views. This is not the person-centred model that is required by the Care Act.
  11. The Council reduced Mr Y’s respite care budget based on the fact he continues to attend day activities whilst on respite and therefore a 24-hour allowance is not required. I find fault here. Mr Y’s respite care is provided in his own home. His carers need to be available 24 hours a day and may be called upon at any point.
  12. I consider the Council took a fair approach to the surplus funds in Mr Y’s direct payment account. It took account of the restrictions caused by the pandemic and allowed Mr Y to carry forward a week’s respite allowance. There was some delay in recouping the surplus funds, but I do not consider this caused Mrs X or Mr Y a significant injustice.

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Agreed action

  1. Within four weeks of the final decision, the Council should:
  • provide Mrs X with a written apology for the failures identified in this statement, and pay her £250 for the time and trouble she has been put to pursuing this complaint with the Council, and the Ombudsman;
  • develop a support plan for Mr Y setting out all his needs and how these will be met;
  • establish how much Mr Y has spent funding any activities identified as an eligible need since July 2020, and reimburse him in full;
  • consider if other service users may be similarly affected, and take appropriate action;
  • ensure officers and decision-makers act in accordance with statutory guidance.
  1. Provide evidence of the above to this office.

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Final decision

  1. There is evidence of fault by the Council. The Council reduced Mr Y’s direct payment because it wrongly believed direct payments cannot be spent on social/community activities, which in this case were identified as an eligible need.
  2. The above recommendations are a suitable way to remedy the injustice caused.
  3. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman

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