Summary: Mr X complained about the Council’s handling of his application to receive direct payments for his daughter, Ms Y. There was fault causing injustice when the Council failed to properly oversee the direct payment application process and when it made an error in its calculations. The Council agreed to backdate Ms Y’s direct payments and increase the financial remedy it offered Mr X’s family.

The complaint

1. Mr X complained on behalf of his adult daughter, Ms Y, who has care and support needs. Ms Y received funding for three hours a week of short breaks until early 2021. At that point the Council told Mr X the support needed to come in the form of a direct payment.
2. Mr X said he applied for a direct payment on Ms Y’s behalf in January 2021. The Council told him on 23 April it was approved. He completed forms to set up the payment, but on 6 July the Council told him the direct payment would not be provided. That was because Ms Y’s assessed contribution of the amount she had to pay towards the cost of her care and support exceeded the value of the direct payment.
3. Mr X appealed against this. He said the Council adjusted Ms Y’s disability related expenditure and reduced her assessed contribution, but she still has not received a direct payment.
4. Mr X said the Council has still not properly taken account of Ms Y’s disability related expenditure. He also said the Council mishandled Ms Y’s case and caused delays.

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The Ombudsman’s role and powers

5. 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)
6. If we are satisfied with an organisation’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)
7. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

8. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014.
• The Care and Support Statutory Guidance.
• The Care and Support (Charging and Assessment of Resources) Regulations 2014.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Charging and financial assessments

10. 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 places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the 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)
11. Where a council has decided to charge for care, 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 cost it incurs to meet a person’s assessed eligible needs.
12. People receiving care and support other than in a care home need to keep 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

13. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It 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.

Direct payments

14. Direct payments are monetary payments made to individuals who ask for them 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 must ensure 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.
15. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
16. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
17. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
18. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

What happened

19. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
20. The Council conducted a financial assessment for Ms Y in early 2021. It wrote to Mr X with the results in February 2021, confirming it had assessed Ms Y as being able to contribute £86.77 a week to the cost of her care and support.
21. The Council completed a form to set up the direct payment in March 2021. It stated Ms Y was supported by a shared care service at £18 per hour, for three hours a week. The total cost was £54 per week.
22. The Council’s Preparing for Adulthood Panel (the Panel) met in April 2021 to approve the direct payment. Records from the Panel state Ms Y’s proposed package of care was four hours per week at £18, totalling £3,744 per year. The Panel agreed direct payments of £3,800 a year, to be divided by 52 weeks.
23. Mr X’s wife signed the direct payment agreement in May 2021.
24. Mr X’s wife chased the Council for an update in July, because they had not received any direct payments. The Council said Ms Y cannot have direct payments because her assessed contribution (£86.77 per week) is more than the value of the direct payments (£54 per week).
25. Both Mr X and his wife chased the Council for updates between July and September, including to ask for a review of the decision.
26. The Council reviewed Ms Y’s financial assessment in September and reduced her assessed contribution to £66.77 per week. This was still more than the weekly direct payments.
27. Mr X asked for another review of Ms Y’s financial assessment in October 2021. He said the Council’s policy states it will let people keep an extra 25% on top of the minimum income guarantee (MIG). He also said Ms Y had more DRE the Council had not taken into account, such as for medication, special clothing, gym membership, and sanitary wear. He said if Ms Y does not receive direct payments, she will have no money left for personal expenses.
28. The Council agreed to do another review. However, it said it cannot take gym membership into account as DRE and concluded there was no change to Ms Y’s financial assessment.
29. Mr X remained unhappy. He said Ms Y could not afford all of her expenditure with the current contribution and without direct payments. The Council agreed to do another review in November.
30. The Council completed its review in January 2022. It agreed to include an extra £28 per week DRE for Ms Y’s gym sessions.
31. Mr X challenged the new assessment. He said Ms Y’s gym sessions cost £45 each and she needs six per month.
32. Mr X said he spoke with a Council officer on 10 January 2022 who told him the DRE was incorrect and the Council would update it. The Council says it has no record of this telephone call.
33. Mr X chased the Council for an update in February. The Council responded in March. It said it only allowed 50% of Ms Y’s monthly gym membership fees because she has an excess income of £220.36 each month. The Council believes Ms Y can pay the rest herself. The Council also allowed an extra £5 for sanitary and £2.50 for medication.
34. Mr X responded by saying the Council should do what it promised in its phone call of 10 January 2022, which was to pay the direct payments in full.
35. Mr X complained to the Council on 5 April 2022 about the way it handed the case. He said the Council caused him and his wife distress. He also said Ms Y should not have to contribute to the cost of her care.
36. The Council wrote to Mr X with the result of another financial review later in April 2022. The Council reduced Miss Y’s contribution for the 2021/2022 financial year to £31.45 per week. That was to take account of an increase in the rate of inflation.
37. Also in April 2022, the Council sent the result of Ms Y’s new financial assessment for the coming year. Her assessed contribution was £5.99 per week.
38. The Council sent its stage one complaint response on 13 May 2022. It accepted it was responsible for some delays, but it did not make any further changes to Ms Y’s assessed contribution.
39. Mr X remained dissatisfied and asked the Council to escalate his complaint to stage two.
40. The Council sent its final complaint response on 11 July 2022. It said:
• There is no record it told Mr X that Ms Y would get the full direct payment.
• Although it did not send a formal notification of its direct payment decision in 2021, this was not part of its process at the time. However, it confirmed it is now.
41. The Council offered Mr X £100 for distress and £150 for his time and trouble.

My investigation

42. The Council told us Ms Y was eligible for direct payments, but it was not until the administrative process began that the Council realised her assessed financial contribution was higher than her weekly personal budget.
43. The Council said it reviewed Ms Y’s financial assessment in April 2022 and her contribution is now lower than her weekly personal budget. The Council understands Ms Y’s family think the contribution is still too high, so they have not agreed for the direct payment to be set up.
44. The Council explained, before April 2021, Ms Y received 156 hours a year for short breaks. The Panel agreed to convert these hours into a direct payment. This works out at three hours per week and £18 per hour. The total is therefore £54 a week. The Council said the Panel agreed an overall budget of £3,800 but this was for any contingency in the event of temporary need for additional hours due to unforeseen circumstances.

Analysis

45. I can appreciate Mr X’s frustration and disappointment at the way the Council handled matters. The Panel approved direct payments and his wife completed the relevant forms to set the payments up. This raised the family’s expectations. It was not until several months later that the family found out Ms Y would not receive direct payments. And that only happened after Mr X’s wife contacted the Council.
46. The Council acknowledges it did not send a formal notification to Mr X of its direct payment decision. That was fault. Council’s must ensure people have relevant and timely information. They must also explain their decisions in writing. The Council has indicated it now does this as part of its direct payment process, which is welcome.
47. The Panel meeting took place two months after Ms Y’s February 2021 financial assessment, and a further month after the Council established what the weekly cost of Ms Y’s care package was. The Council should have known her contributions were higher beforehand, and the Panel meeting was therefore unnecessary as direct payments were not possible at the time.
48. The Council said the Panel awarded £3,800, which was more than the assessed cost of Ms Y’s care and support, as a contingency measure in case of unforeseen circumstances. I have not seen evidence that was confirmed in the Panel meeting documents or that it was communicated to Mr X. That was fault and caused further confusion.
49. In summary, I found there was lack of proper oversight by the Council. It handled the financial assessment and direct payment process poorly, telling the family the direct payments were approved and asking them to sign for it to be set up, only to later tell them Ms Y was not eligible.
50. I also found the Council was responsible for delays responding to Mr X and his wife’s requests about an appeal and to reconsider evidence.
51. Following my draft decision, the Council reviewed Ms Y’s financial assessments. It accepts it made an error when calculating the 2021/22 assessment. It said Ms Y’s assessed weekly contribution should have been £8.39. The Council confirmed its calculations for 2022/23 were correct.
52. Mr X still considered the Council’s calculations are incorrect. He said the Council did not account for the fact Ms Y receives the enhanced disability premium.
53. The Council said by adding 25% it has applied a figure which is higher than the enhanced disability premium. However, the Council acknowledged its policy does not go into detail about this. The Council will review its policy and give a clearer breakdown and definition of its MIG calculations. This is welcome.
54. Mr X wanted the Council to include all Ms Y’s gym and personal trainer fees as DRE. I found the Council agreed to exercise discretion by including some of the fees. It did not have to include the full fees. The Council’s duty is to include all reasonable costs directly associated to a person’s disability. The Council decided it was reasonable to ask Ms Y to pay some of the gym fees herself, based on her income. I appreciate Mr X disagrees, but I have not seen evidence of fault in the way the Council reached its decision.

Injustice

55. Ms Y’s direct payments have not yet commenced, because the family did not agree with the Council’s financial assessments. They wanted to wait for the outcome of their complaint.
56. If the Council had correctly calculated Ms Y’s 2021/22 assessment, it would have meant Ms Y was entitled to direct payments in 2021. She has missed out on direct payments since then. The Council should therefore backdate the payments accordingly when it sets up her direct payments.
57. The Council’s faults caused frustration to Mr X and his family. The Council recognised this by offering £100 for distress and £150 for time and trouble.
58. I found the Council also raised Mr X and his family’s expectations about what support Ms Y would receive. I therefore consider the Council should increase the payment offered to the family.

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Agreed action

59. Within four weeks of my final decision, the Council agreed to:
• Apologise to Mr X and his family for its lack of proper oversight of the direct payment application, and for its error calculating the 2021/22 financial assessment.
• Pay Mr X £450. £300 to recognise the distress caused and £150 for the time and trouble incurred.
• Backdate Ms Y’s direct payments to 2021 when she became eligible.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. There was fault causing injustice when the Council failed to properly oversee the direct payment application process and when it made an error in its calculations. The Council agreed to backdate Ms Y’s direct payments and increase the financial remedy it offered Mr X’s family.

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Investigator's decision on behalf of the Ombudsman