Summary: There was no fault in the fact the Council did not review the complainant’s care plan every six months. There was fault by the Council because it did not register letters the complainant sent asking for increased support, but this did not cause injustice because she had a care plan review shortly afterwards. We have discontinued our investigation of the complainant’s remaining points because they are out of time, in some cases by a considerable margin.

The complaint

1. I will refer to the complainant as Mrs V.
2. Mrs V complains about various aspects of the Council’s handling of her care. In particular, that the Council has:

• only been making direct payments (DPs) for her personal assistants at a rate of £8.50 per hour, instead of £8.78ph;
• failed to review her care plan every six months, as stated in her DP agreement;
• failed to carry out review of her DPs each year on 1 April;
• has underpaid her DPs on eight separate occasions between 2014 and 2020;
• cancelled her BT line rental payment;
• failed to provide her with support during the COVID-19 lockdowns;
• failed to pay for a contingency plan and short breaks as agreed in 2017; and
• failed to disregard disability-related expenditure (DRE) from her financial assessment.

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The Ombudsman’s role and powers

3. 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)
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)
5. 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)

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How I considered this complaint

6. I reviewed Mrs V’s correspondence with the Council and her direct payment agreement.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. Mrs V suffers from several conditions, which means she needs care and support in daily living. For this purpose, she employs personal assistants (PAs), which the Council funds through direct payments (DPs) to Mrs V. This arrangement has been in place for several years, and, in that time, Mrs V has made a number of complaints to the Ombudsman about it.
9. On 20 March 2020, Mrs V submitted a new complaint to the Council. She said she had written several letters to the Council between August and October 2017, to which she had never received a reply, and that these letters had contained complaints. Mrs V provided a list of these complaints, which were:

• that the Council had not calculated her DPs at the “correct” rate of £8.78 per hour, as set out in a contract in 2012;
• that it had failed to increase the DPs according to inflation;
• that it had refused to disregard some of her expenses as DRE when conducting her financial assessment;
• that it had “failed to pay” her contingency plan which had been agreed in 2012; and
• that, on eight occasions between December 2014 and January 2020, it had underpaid her DPs.

10. The Council replied on 27 August. In response to Mrs V points of complaint, it said:

• Mrs V had already complained to the Ombudsman about the inflation issue, which had not upheld her complaint;
• that Mrs V’s most recent care plan included an emergency fund of 104 hours at a rate of £12ph. The Council paid this as one-off lump sum, to be used in emergency only, and would review Mrs V’s needs if she had cause to use the fund. The Council acknowledged Mrs V said had used some of the funds, and said it would now carry out a review;
• it would not investigate the alleged historic underpayments of Mrs V’s DPs because they were too old. It said the payment made in January 2020 was an additional payment, because it had applied an uplift to Mrs V’s DPs retrospectively to March 2019; and
• that, in reviewing Mrs V’s DPs, it had noted an error, in that the Council was still paying for Mrs V’s Lifeline. The provider of this service was now invoicing the Council directly, and not charging Mrs V, and so the Council said had been overpaying the DPs. The Council explained the new amount Mrs V would be receiving, and that it would reduce her upcoming payment to recover the overpaid money.

11. The Council referred Mrs V to the Ombudsman if she wished to pursue her complaint.
12. Mrs V wrote again to the Council on 31 August. I do not have a copy of this letter. However, the Council replied on 8 September. It explained to Mrs V there was only one stage to the adult social care complaints procedure, and explained how long this stage was supposed to take. The Council apologised for failing to inform Mrs V it would need longer for its investigation in this instance, but confirmed it had sent its reply on 27 August and assumed this had crossed in the post with Mrs V’s more recent letter.
13. The Council also said the “first 8 points of complaint” listed in Mrs V’s letter of 31 August fell outside the 12mth time limit for investigation, and so it would not investigate these points.
14. Mrs V wrote again to the Council on 24 September, in reply to the Council’s formal complaint response. She said the response had not considered the eight points of complaint she had made in her letter of 31 August.
15. In response to the Council’s comments, she said:

• her DP agreement stated the Council would pay at a rate of £8.78ph, but the Council had only paid £8.50. She said the Ombudsman had not investigated this, but a different point about the rate of payment;
• the “2 hours contingency” had been in her support plan since 2011, and had never been paid as a lump sum. She also said the Council had never told her it needed to be informed when she used the extra hours, and that she had attempted to discuss the matter with her social worker but had never received a reply; and
• that she would not comment on the DP overpayment issue, as it was not “relevant to [her] recent complaint”.

16. Mrs V referred her complaint to the Ombudsman on 23 February 2021. She listed points of complaint, as I have described them at paragraph 1.
17. During our initial enquiries with the Council about Mrs V’s complaint, it told us:

• it had been paying Mrs V’s DPs at a rate of £12ph since September 2017;
• Mrs V’s most recent care review was in May 2020, and her DP agreement did not say the Council would review it every six months, but “every year”;
• it had most recently reviewed Mrs V’s DPs in September 2019. It had begun a new review in November 2020, which it could now progress because it had recently received Mrs V’s bank statements;
• it did not owe any money to Mrs V;
• it had never been responsible for paying for Mrs V’s BT line rental. It paid for Mrs V’s Lifeline, which requires a BT line, and this payment was up-to-date;
• Mrs V had not requested any additional support during the COVID-19 lockdown, but the Council had sent out general letters to all DP service users to provide advice and updates;
• it was satisfied it had addressed Mrs V’s complaint about the emergency plan and would not reinvestigate it; and
• the Council had addressed Mrs V’s appeal against its DRE decision in 2018, and this was therefore out of time for investigation.

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Legislative background

Direct payments

18. 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 arrange their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly. (Care and Support Statutory Guidance 2014)

Disability-related expenditure

19. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

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Analysis

20. In her letter of complaint to the Ombudsman, Mrs V listed eight points of complaint, which are those I have described at paragraph 1. I note these do not coincide exactly with the points of complaint the Council has referred to in its correspondence with Mrs V.
21. However, Mrs V has provided me with copies of other letters she has sent to the Council at various points. For reasons I will explain, for the most part of these are matters we cannot investigate; but as I am satisfied Mrs V has at least raised these points of complaint with the Council, I will not treat them as premature.
22. The law says a person should approach the Ombudsman within 12 months of becoming aware of the issue they wish to complain about. This is called the ‘permitted period’. Mrs V made her complaint to the Ombudsman in February 2021, meaning anything which happened before February 2020 is late. From the information Mrs V has now provided, it is clear most of these issues predate February 2020, in some cases by a considerable margin.
23. The law permits the Ombudsman to disapply the ‘permitted period’ rule, where we consider a complainant has a good reason for approaching us late (and where we consider it is still possible to undertake a robust investigation). Mrs V has now explained she did not complain until February 2021 because the Council had failed to reply to her various letters of complaint, and also because she did not know there was a time limit.
24. But we do not consider either of these points a good reason for a late complaint. Although we must allow authorities an opportunity to respond to a complaint before we will investigate, we still expect a complainant to contact us in good time, even if they have had no response from the relevant authority.
25. And the Ombudsman has existed for nearly 50 years, with information about us freely available in the public domain. I note in particular Mrs V has made complaints to us several times in the past. I therefore do not accept she should reasonably have been unaware of the time limit for bringing a complaint to us.
26. I will therefore not disapply the permitted period in this case. I will explain where this is relevant for each of Mrs V’s points of complaint in turn.

The Council paying DPs at a rate of £8.50ph, instead of the agreed £8.78ph

27. Mrs V has confirmed she is complaining about an alleged underpayment of 28p per hour between 2011/12 and 2017. Thereafter, the Council increased the rate to £12ph.
28. This complaint is therefore late. For this reason, I have discontinued my investigation of this element of Mrs V’s complaint.

The Council failed to review Mrs V’s care plan every six months

29. The law and statutory guidance says a person’s care plan should be reviewed at least once every 12 months. Although a plan can be reviewed early, where necessary, I have seen nothing to suggest the Council agreed to review Mrs V’s care plan every 6 months.
30. Mrs V has now explained that her DP agreement from 2012 said it would be reviewed every six months. However, Mrs V’s DP agreement and care plan are different documents.
31. I find no fault in this element of Mrs V’s complaint.

The Council failed to carry out review of her DPs each year on 1 April

32. Mrs V says the DP agreement she signed in 2012 stipulated the Council would review the payment rate each year on 1 April. She says in failing to do this, it has “robbed [her] of having [her] hourly rate … increased in line with inflation”.
33. In a previous investigation, we reviewed Mrs V’s hourly rate over the years 2012 to 2017, and noted it had consistently remained above the Council’s policy of paying at the national minimum wage and (later) the foundation living wage. I note there was no suggestion the Council’s policy was to increase wages each year in line with inflation.
34. Although not specifically the point of complaint Mrs V made to us previously, I am not persuaded this issue can reasonably be separated from what we investigated before. If Mrs V wished to raise this point, she should have done so during our previous investigation. We do not reinvestigate complaints we have already considered.
35. And, either way, it is clear Mrs V was aware of this matter considerably before February 2020. It is therefore late.
36. For these reasons, I have discontinued my investigation of this element of Mrs V’s complaint.

The Council has underpaid Mrs V’s DPs on eight separate occasions

37. Mrs V refers to eight occasions between December 2014 and January 2020. Each of these occasions falls outside the permitted period.
38. For this reason, I have discontinued my investigation of this element of Mrs V’s complaint.

The Council has cancelled Mrs V’s BT line rental payment

39. The Council says it has never been responsible for paying Mrs V’s BT line rental. Rather, it pays for her Lifeline, for which she needs a BT line. It used to include money in Mrs V’s DP for her to pay this, but it now pays the provider direct instead.
40. However, Mrs V says the Council had paid her line rental since 1988. It stopped in 2011, but reinstated the payment after a complaint to the Ombudsman. It then stopped paying again in 2014. Mrs V considers her line rental is a disability-related expense.
41. There is evidently some confusion between Mrs V and the Council about the exact nature of this complaint. Either way, it is again clearly a late complaint, as Mrs V says she has known about the Council’s decision since 2014, seven years before she approached the Ombudsman.
42. I will add that the Care and Support Statutory Guidance does not list ‘phone line rental’ as something which should typically be considered disability-related expenditure.
43. I have discontinued my investigation of this element of Mrs V’s complaint.

The Council failed to provide Mrs V with support during the COVID-19 lockdowns

44. The Council has explained it discussed Mrs V’s care needs with her just before the first UK lockdown in March 2020, as part of its annual review. It then heard nothing further from her, although it posted out general letters with advice to DP service users during lockdown.
45. Mrs V has provided copies of letters she wrote to the Council in March and April 2020. These letters were mostly about her emergency plan payments, but also explained she needed the additional support the emergency plan provided for. Mrs V says she received no response to these letters.
46. It appears the Council did not appreciate it had received these letters from Mrs V, given its comments to us. Given the sudden and drastic shift in priorities for local authorities at that time, it is not difficult to imagine the reason for this. Either way, I must criticise the Council for its failure to register Mrs V’s letters properly.
47. But I note Mrs V had a care plan review in May 2020 anyway. The purpose of such a review is to explore any change in a person’s needs, and whether an increase in care provision is necessary to meet their needs. This being the case, I am satisfied Mrs V had the opportunity to discuss any need for increased support with the Council soon after writing her letters, despite its failure to register or respond to her letters.
48. I find fault which did not cause injustice in this element of Mrs V’s complaint.

The Council failed to pay for a contingency plan and short breaks as agreed in 2017

49. Mrs V has explained that, in 2017, the Council included a contingency plan in her care plan. This meant there was an additional fund for a total of 104hrs (2hrs per week) for her to draw on, if she needed additional help. Mrs V says the money for this contingency plan has never been paid.
50. In addressing her complaint, the Council said it had paid Mrs V’s contingency plan fund as a one-off lump sum. It noted she had used some of this money, and would now carry out a review. In response, Mrs V said the money had never been paid as a one-off lump sum, and that also the Council had not told her she was to notify it when she used the fund.
51. There is clearly some confusion about the mechanism behind the payment of the contingency plan fund. In particular, I cannot reconcile Mrs V’s comments that she was not told she must notify the Council when she used the fund (implying she had access to the money), with her separate comments the money had never been paid.
52. I am, however, conscious Mrs V is raising an issue which she says has been ongoing since 2017. Whatever the facts about this, it is again a late complaint, and I therefore will not investigate it further.
53. Despite this, I note Mrs V says the Council assured it would contact her again to discuss the contingency plan after her care plan review in May 2020. Mrs V says she heard nothing further about it since then.
54. I am satisfied this is not strictly accurate, as the Council discussed the contingency plan in its subsequent response to her complaints. Either way, it is clear Mrs V still does not have a clear understanding of how the contingency plan is supposed to work. I would ask the Council to note this, and consider writing to her again with a clear explanation.

The Council failed to disregard disability-related expenditure (DRE) from her financial assessment

55. The Council has explained it addressed Mrs V’s appeal about this in 2018. I am therefore again satisfied this matter is late.
56. I have therefore discontinued my investigation this element of the complaint.

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Final decision

57. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman