Warwickshire County Council (21 012 305)

Category : Adult care services > Direct payments

Decision : Not upheld

Decision date : 27 Apr 2022

The Ombudsman's final decision:

Summary: Ms C complained that she does not receive enough support from the Council to meet her needs. We did not find fault with the way in which the Council made decisions about Ms C’s support needs.

The complaint

  1. The complainant, whom I shall call Ms C, complained about the outcome of the Council’s reassessment of her needs in 2021. Ms C complained:
    • Her personal budget is based on an hourly rated of £16,50 an hour. However, this rate is not enough to enable her to find a care agency.
    • She does not want a care agency. She wants Personal Assistants (PAs), but the Council has told her she cannot have those as they do not allow “self-employed PAs”.
    • The Council no longer covers the cost of mileage when she goes out in her car.
    • The Council has decided it will no longer pay for the three gym sessions a week she needs (at £40 each), but only 2 sessions a week.
    • The Council refuses to pay the cost for her brother to accompany her on holidays.
    • The Council has failed to increase her support hours.
  2. Furthermore, she does not have any money to be able to pay a PA in advance to accompany her on a holiday.

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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 considered the information I received from Ms C and the Council. I shared a copy of my draft decision with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

The hourly rate

  1. Ms C complained that her personal budget is based on an hourly rated of £16,50 an hour, which she said is not enough to enable her to find a care agency.
  2. However, Ms C told me at the start of my investigation that she did find a care agency that is willing to accept £16,50 an hour. However, Ms C told me she wants PAs instead of a care agency.
  3. The Council says Ms C cancelled one of the agencies on the night before they were to start, because she said she did not want an agency that would provide support workers who are foreigners; she wanted only British support workers.
  4. In response to my draft decision, she has said this was because she could not hear what those support workers would be saying.

Analysis

  1. I did not find fault, with regards to this aspect of Ms C’s complaint, as there are care agencies in the area who have told Ms C they are willing to provide her care for £16,50 an hour. Ms C cancelled a care agency before it really started, for reasons explained above (see paragraph 9 and 10). There is no evidence to indicate that care agency would not have been able to provide care workers that could have met her needs. Furthermore, the Council has also offered to commission a care agency for her to meet her needs.

Recruiting PAs

  1. Ms C complained the Council has told her she cannot have PAs, because the Council does not allow her to recruit “self-employed PAs”.
  2. The Council said that, at the review meeting in July 2021, Ms C said she was using PAs.
  3. The records show the Council has explained to Ms C that she can use her direct payments to employ PAs, but she has to follow employment and legal procedures if she wants to use self-employed PAs. The records show it has offered support to Ms C on how to do this, which Ms C has declined.

Analysis

  1. There has been no fault, as the Council offered Ms C support to enable her to (continue to) recruit self-employed PAs, support which Ms C turned down. If Ms C would like support with this now, she should contact the Council to ask for this.

The cost of mileage

  1. Ms C complained the Council does not allow her anymore to use her direct payments to pay the cost of mileage.
  2. Ms C receives PIP mobility benefits, which are to cover her cost of getting around.

Analysis

  1. There has been no fault by the Council, because Ms C already receives PIP mobility benefits that are paid to her to pay for this.

The reduction in gym lessons from 3 to 2

  1. Ms C said the Council has decided it will no longer pay for three gym sessions a week (at £40 each) but only 2 sessions a week. However, Ms C says she needs 3 sessions due to her:
    • Condition / illness: her body stores fat more easily.
    • The GP has not been able to offer any (free / cheaper) exercise that is suitable for her.
    • She cannot go to the local gym due to trip hazards (as she is blind), and she would no longer have a regular instructor who knows her specific (support) needs in relation to her condition and the fact she is blind.
    • Her instructor will not be able to set up an exercise routine she can do at home as she would only be able to use one machine without help
  2. In response, the Council has said that:
    • Ms C receives 5 hours a week support that she can use to help her with exercising. The Council has not reduced the amount available for this. Ms C has chosen to spend this on a personal trainer. The amount is sufficient to cover two sessions a week, but Ms C wants three.
    • The Council has made suggestions how she can reduce her exercise costs, for instance by pursuing other cheaper options (via her GP) or asking her trainer to prepare a training plan that she can follow herself. The Council has also consulted with her personal trainer.
    • Local gyms may have personalised support in place for clients with reduced vision. Alternatively, a PA or care worker could assist her with using the gym safely.

Analysis

  1. I found there was no fault. The Council has considered Ms C’s needs for exercise and did not reduce the amount she has available for this, at her most recent care review. It is Ms C’s choice to employ an expensive personal trainer, and the Council has explained how she can use other cheaper alternatives (besides this).

The cost of holidays:

  1. Ms C says:
    • The Council does not allow her to use her personal budget to pay her brother for taking time off work to accompany and support her on holidays. She said she is not allowed to pay him because her brother is self-employed.
    • If she wants to go on a holiday, she will have to pay the PA for that in advance, after which she can claim the money back after the holiday. However, she does not have money in her bank account to do this (pay in advance and waiting to be reimbursed), which means she cannot do this and cannot go on a holiday.
  2. In response, the Council has said that Ms C receives £1,329 a year (8 hours per day for 14 days per year). This is to pay for a PA to support her when she goes on holiday. It is not to pay for the holiday itself. However, she can only pay a PA who has been set up via Penderel’s payroll, to ensure Ms C adheres to the legal employer responsibilities of hiring a PA. It explained to her in October 2021 that her brother could be set up and paid as a PA. However, she told the Council one month later that she had no longer any plans to do this. There are no records that indicate the Council has refused to pay any costs for Ms C’s brother.

Analysis

  1. There has been no fault. The Council has allocated an amount of £1,329 that she can use to pay for support to go on a holiday. If she wants to, this support can be provided by family.

The lack of support hours

  1. Ms C said the Council has failed to increase her support hours. She said:
    • Her previous support plan shows she needs four hours of support per day, five days a week. However, she has now asked the Council for support at the weekend as well.
    • Even though the Council acknowledges she needs support at the weekend, similar to her support during the week, it has not increased her hours. Instead, it said she can use the 20 hours flexibly. However, this means she can only have three hours of support per day, which is not enough for her.
  2. In response, the Council has said that:
    • The support plan from 2018 shows she receives 20.5 hours a week of support with personal care, correspondence, nutrition, batch cooking, community access and toileting.
    • She can use this flexibly; it is not intended to be used rigidly as a fixed number of hours per day. The current support plan also indicates that the 20 hours is for use across the week, rather than 5 days.
    • At the care review, Ms C initially advised her Independent Advocate that she did not have any personal care support needs at all. She also asked the Council in August and September 2021 if she could use the money allocated for personal care and cooking to pay for her Personal Trainer instead. This indicates that Ms C either no longer needs personal care support or found an alternative way of meeting these needs outside of her Direct Payments.
    • As such, the Council has currently no firm evidence to confirm either the presence or lack of personal care needs. As such, the Council decided it will review her care package once in place, with support from whomever was providing Ms C’s care. This has not yet been possible as Ms C has not yet employed an agency or PA.
    • There is no evidence to show Ms C has been unable to meet her outcomes in terms of dog walking, cleaning, and exercising.

Analysis

  1. I found that the Council’s suggestion to review whether the support plan / personal budget is sufficient or needs to be changed, after she has received several weeks of care support, is an appropriate way of going forward. The Council could consider a period of enablement support to achieve this.

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Final decision

  1. For reasons explained above, I have not upheld Ms C’s complaint.

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Investigator's decision on behalf of the Ombudsman

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