Summary: Mr X complained on behalf of Mr Y about the Council’s changes to his direct payment and support plan when it removed mileage costs and acupuncture. He said this caused Mr Y much stress and it created a shortfall in his account. We find the Council was not at fault in deciding not to fund these, but it did not make this clear to Mr Y in the case of the mileage costs for years. The Council has agreed to apologise and backdate the allowance to 30 September 2020 (the point where it has clear evidence Mr Y was told it would no longer be allowed).

The complaint

1. The complainant, whom I shall refer to as Mr X, complained on behalf of Mr Y, that the Council:
• Refused to pay mileage although this was part of Mr Y’s care plan.
• When Mr Y complained about this, it reviewed his care plan and removed acupuncture, mileage and access to spa.
2. Mr Y says the Council has made no attempt to listen to him. Mr Y had to use contingency money to pay his personal assistant’s mileage costs, then found it harder to leave his home. Mr Y is also without acupuncture treatment which he considers essential. This has caused him much stress. Mr Y would like it all reinstated, including the lost contingency, an apology, and a payment to recognise the inconvenience and stress. Mr X says he can see the difference in Mr Y and this is a worry.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mr Y has given consent for Mr X to complain on his behalf.

Back to top

How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

Back to top

What I found

Background

Assessment and care planning

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. 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.
9. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
10. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. 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. The support plan must 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. The personal budget must always be enough to meet the person’s care and support needs.
11. There are three main ways a personal budget can be administered:

• 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 with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

Direct payments

12. Direct payments are payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The Council should support them to use and manage the payment properly. Councils must tell people during the care planning stage which of their needs direct payments could meet.

Charging for social care

13. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
14. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.
15. People receiving care and support other than in a care home need to retain a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

Disability Related Expenditure

16. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. The Care and Support Statutory Guidance sets out a list of examples but says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Personal Independence Payment (PIP)

17. PIP is a benefit which is to help with extra living costs for people with both a long term physical or mental health condition or disability. They must also have difficulty doing every day tasks or getting around because of the condition. The Department for Work and Pensions (DWP) assesses the difficulties the person has and decides if they are eligible and if so, how much they will get.
18. The daily living part of PIP is for people who need help with everyday tasks and the mobility part is for those who need help getting around.

What happened

19. Mr Y lived at home and received support from the Council in the form of a direct payment which he managed himself.
20. In May 2020, the Council advised Mr Y he needed to have just over £5,000 in his direct payment account as contingency to cover holidays, sick pay and redundancy if needed. Mr Y only had just over £2,800. He said he was expecting the Council to pay just over £3,000 to cover the shortfall but the Council said it would not do this. Mr Y said the shortfall had arisen because his direct payment did not include money to cover his personal assistant’s mileage expenses which he had paid. Mr Y says the Council had previously told him he must pay his personal assistant’s mileage. The Council told him this only applied to activities such as picking up prescriptions and taking him to appointments. It was not for travel from home to work. Mr Y says he had never for travel from home to work from his direct payment, and this has been acknowledged by the Council.
21. In August 2020, the Council noted that it had found evidence that Mr Y was allowed petrol expenses in 2013. Mr Y says he was allowed this from 2011. The records showed that Mr Y had challenged this in 2016 with an officer who checked with the line manager. The manager had said this was no longer allowed. The Council decided this decision stood and Mr Y could no longer use his direct payment funds for petrol. Mr Y says at this point, he was told to change from a petrol allowance to a mileage allowance.
22. The Council wrote to Mr Y at the end of September in response to his request for it to backdate the mileage allowance. It acknowledged several errors in the current and previous care plans and apologised for any negative impact it had caused. It said the mileage should not have been included; this was an error. It said the cost of transport to shops or to and from activities was one which everyone had and was not specific to people with a disability. It said this would not be included as part of Mr Y’s direct payment and apologised that this was not explained and for the inaccurate information given. It said it would consider the cost of adding the personal assistant to Mr Y’s motor insurance policy. However, it could not see how acupuncture met an eligible need under the Care Act and this should not be part of his care and support plan. It said it would reclaim the money already spent on this but would reduce his direct payment from early November which would give him one month to adjust. It apologised and offered £100 as a good will gesture.
23. In mid November, Mr Y telephoned the Council about a meeting planned for the following week. He did not understand why it would not pay mileage and was worried that his personal assistant would leave. The Council told him it would need to see evidence of his mileage and discuss his care and support plan. When the Council met with Mr Y at home to discuss this, it noted that he had 22 hours available for his personal assistant who he paid £9 per hour. He said he used this time flexibly and saved up hours for when he was confined to bed. He also used his direct payment to top up his mobile. The Council advised him not to do this as it was not agreed. It confirmed that payment for acupuncture would be stopped as already advised and discussed Mr Y’s spa visits. He showed the Council a spreadsheet of his mileage and gave some examples. The Council suggested a managed account which Mr Y said he might consider at a later date.
24. In December, the Council discussed the contingency shortfall with Mr Y. He had used some of his care hours to cover mileage leaving him short of care. The Council told him he should never do this and should ask for a review if he had an issue. Mr Y says he had asked for a review and these had only been done sporadically. It told Mr Y about its new transport policy, effective since September, which stated that people in receipt of the mobility element of PIP were expected to use it in full to meet their transport needs. Mr Y received the higher rate of £62.55 per week. It said Mr Y had told it that his travel costs were approximately 100 miles per week at £0.45 per mile which is £45 per week. It said therefore, the mobility element of PIP did fully meet his travel requirements and any additional travel costs if needed. Mr Y said he used this for acupuncture. The Council discussed other elements of his expenditure and suggested other sources of support to help with these.
25. In April 2021, the Council explained to Mr Y about money for his hydro spa visits being removed from his direct payment as this was not to meet a social care need. However, the Council considered what he said about this and decided to keep this in his care and support plan as a preventative treatment to promote and maintain wellbeing. It apologised for the delay in concluding its care plan review and deciding about the payment of mileage which it said was due to COVID-19. It confirmed it had taken Mr Y’s mortgage costs into account and Mr Y was currently being charged a nil contribution towards his care and support. It said his personal budget would be for 22 hours personal assistant support allowing for a 2.2% increase of the hourly rate, broadband and spa membership, totalling £296.54 per week. It said that while it appreciated Mr Y had used his PIP to pay his mortgage, it was reasonable to expect the PIP mobility component is used for transport costs. The Council said Mr Y would receive the reduced payment in June. It said this concluded the review and if Mr Y remained unhappy with this he could bring his complaint to us.

Was there fault which caused injustice?

26. It is not my role to decide whether Mr Y should receive funding for transport costs, acupuncture, or any other service, from the Council. My role is to consider whether the Council made its decisions about this properly.
27. The mobility component of PIP is to help with the extra costs of transport associated with long term illness or disability. In assessing a person’s contribution to their care costs, the Council cannot consider the mobility component of PIP. As this is not included in the assessment of costs there is an expectation that those in receipt of the mobility component of PIP, use it to fund their transport costs. The Council is not at fault for expecting those who get the mobility component of PIP to use it to towards their transport costs. The Council properly considered Mr Y’s individual circumstances and whether he could make use of the PIP to fund transport. I found no fault here.
28. The Council must meet a person’s eligible needs, not their preferences. The Council properly considered whether Mr Y’s acupuncture met any of his eligible social care needs and was not at fault when it decided that it did not. It did reconsider its position on the hydro spa and accepted that this did contribute towards meeting his eligible social care needs. This supports the Council’s position that it properly considered these issues. However, it did create some confusion and did not make it clear to Mr Y prior to these events. Although it found a case note from 2016 which said it would not pay petrol costs, this was not a letter to Mr Y stating this, or a review showing this shared with him. It also did not point Mr Y to any other information it had to show that he was aware of this change. This was not enough and caused Mr Y avoidable stress and uncertainty. It also meant he continued paying mileage costs which left him with a shortfall in his contingency. The Council should not have stopped this allowance until it had properly advised Mr Y that it would stop. This was fault.

Back to top

Agreed action

29. To remedy the injustice identified above, I recommended the Council:
• apologise again to Mr Y;
• pay Mr Y £250 for the undue stress and uncertainty caused.
• Reinstate the allowance retrospectively to 30 September 2020 (the date of the evidence that Mr Y was clearly informed), until his contingency is where it should now be;
• Review its processes to ensure that any changes to direct payments are clearly communicated and only take effect following a review;
• Submit evidence of these actions to me. Suitable evidence would include a copy of the apology and details of any retrospective amendment to the direct payment. Also, details of the impact on the contingency; and
• Complete the first remedy within one month of my final decision and the remainder within two months.
30. The Council has agreed to complete these actions.

Back to top

Final decision

31. I have completed my investigation. The Council was at fault, and this led to injustice to Mr Y.

Back to top

Investigator's decision on behalf of the Ombudsman