Summary: Overall, there is no evidence of fault by the Council in the way it assessed Mrs X’s care needs. However, there is evidence of fault by the Council in the time taken to confirm Mrs X’s personal budget, for which it has agreed to apologise.

The complaint

1. Mrs X complains the Council failed to properly assess her care needs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)

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How I considered this complaint

4. I have:

• considered the complaint and discussed it with Mrs X;
• considered correspondence between Mrs X and the Council, including the Council’s response to the 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

5. A council must carry out an assessment of any adult who seems to need care and support. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
6. Having identified eligible needs through a needs’ assessment, the Council has a duty to meet those needs. (Care Act 2014, section 18)
7. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
8. Direct payments are monetary payments made to an individual to meet their eligible care and support needs. Direct payments must be used to meet the person’s eligible care and support needs as set out in their care and support plan.
9. The Care and Support Statutory Guidance says the council must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan and councils should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money.

Key Facts

10. This is not meant to be an account of everything that happened. I have focused only on the material issues in the complaint.
11. Mrs X has a neuropathy disorder which impacts on her ability to undertake daily living tasks. She lives with her husband and two school-age children.
12. Mrs X moved into the Council’s area on 6 January 2021. She informed the Council on 13 January 2021. Previously her care needs had been assessed by a different Council and met via a direct payment. I have had sight of the needs assessment completed by that Council, which for the purpose of this investigation, is background information only.
13. The Council had some contact with Mrs X via email prior to the move. It also had sight of the existing needs assessment and the name of a social worker from the area Mrs X moved from.
14. After Mrs X moved into its area, the Council completed a self-directed needs assessment by telephone. The records suggest this was at Mrs X’s request, Mrs X refutes this and says she was never offered any other option. Mrs X told the Council she had previously used her direct payment flexibly and asked that this be protected. She said she employed a personal assistant for approximately 8-hrs per week, rising to 15-hrs depending on her condition. She also employed two cleaners who between them completed at least 8-hrs per week of cleaning/domestic tasks.
15. Mrs X said she had previously been allowed to use her direct payment to purchase equipment that she believed aided her independence. She used the money to fund a mobile phone and fuel for her car and had regular professional leg waxing as part of personal grooming. She also funded a family holiday. She later clarified that a set amount had never been allocated for a family holiday but if she saved her budget, then she could use it for that purpose.
16. The Council completed a detailed assessment, which included Mrs X’s wishes. I have had sight of this assessment, dated 10 February 2021. It provides information about Mrs X’s background and her day-to-day needs and concludes with a breakdown of the support required in each area.
17. The Council made a referral for an occupational therapy (OT) assessment of Mrs X. Mrs X asked that this be completed via video, but the assessment was completed over telephone, on 19 February 2021. The assessor concluded Mrs X needed 1-hr a day support from a personal assistant. Mrs X needed a personal assistant present in the home whilst she showered in case of falls. She also needed some assistance with meal preparation/or accessing community.
18. On 16 February 2021 the Council agreed to match the direct payment awarded by the previous Council until the assessment and support plan were completed. The Council sent Mrs X an initial direct payment agreement, which she promptly signed and returned. Mrs X did not receive the first payment until 12 March 2021.
19. In its response to my enquiries, the Council acknowledged the delay and said it was due to an error in the spelling of Mrs X’s name. It said Mrs X received the funds in time to pay her personal assistant.
20. The Council process is such that assessments are presented to its ‘overview panel’ for consideration. The panel considered the completed assessment on 2 March 2021. I have had sight of a copy of the notes from the meeting. It considered the fluctuating nature of Mrs X’s condition and the need for flexible support, but it had concerns about the request to use direct payment monies to fund a family holiday, a mobile phone and leg waxing. The panel also wanted clarification about the number of hours allocated to cleaning/domestic chores. It referred the assessment back to the allocated worker for further clarification.
21. Following further clarification, the panel concluded Mrs X needed:

• 10 hours per week hours support from a personal assistant, used flexibly, and
• 2 hours per week parenting support.

22. The panel suggested that Mrs X’s personal assistant could support with shaving/waxing and with house cleaning, shopping, food preparation and accessing the community. In respect of a mobile phone, the Council allocated the costs of a falls pendant and said Mrs X could contribute this towards her mobile phone bill.
23. Mrs X was dissatisfied with the outcome of the assessment believing it did not reflect all her needs. She feels the Council had not listened to her, that it disregarded the fluctuating nature of her condition and failed to consider the specific needs arising from her disability. She says it refused to allocate funds for professional leg waxing saying it was a request for beauty treatments when it is not. She says her personal assistant is neither competent nor comfortable undertaking this task.
24. The records show the Council explained to Mrs X how and why it had come to its decision. Mrs X did not consider the explanation satisfactory. She believed the assessment was inaccurate and that some of her needs had been removed. She contacted a charity for support. The charity contacted the Council on Mrs X’s behalf and set out the support hours it believed Mrs X needed and the reasons why. It asked that information be presented to the Council’s overview panel for further consideration.
25. Mrs X had a face-to face OT assessment in June 2021. Ms X told the OT that because of the pandemic she did not have a specific daily routine. The OT recommended Mrs X keep a two-week diary detailing her condition and fluctuation. The Council says it has not received this. The OT made referrals to physiotherapy and its ‘moving with confidence’ service.
26. In June 2021 Mrs X’s allocated worker submitted a request to the overview panel for an increase in weekly support hours. It requested 15 hours per week to provide Mrs X with more support in the community and more time with children. Initially the panel refused, saying more information was required.
27. Mrs X was asked to provide a proposed support plan detailing how she would spend her personal budget. She provided this information. The Council told Mrs X it would present the support plan at its next ‘legal surgery’. The records show officers from social services presented the plan to legal officers on 25 August 2021, and then informed Mrs X it would await the legal team’s response.
28. Emails exchanged between Mrs X and the Council show she sought clarification on numerous occasions about what she could spend her direct payments on. She asked if she could buy a mobility scooter.
29. The legal team responded to social services on 4 November 2021. It confirmed Mrs X would receive a personal budget of £212.62 to fund 15.75 support hours per week. It confirmed additional allowances of £16.92 towards the cost of a mobile phone and £9.40 towards fuel. It confirmed the temporary budget would cease.
30. I have had sight of the care & support plan completed by the Council. It confirms 15.75 support hours per week for:

• someone to be present whilst Mrs X completed personal care tasks, in case of falls:
• access the community;
• maintain the daily living;
• tasks within her home; and
• support with parenting role, including meeting nutritional needs for Mrs X and the children.

31. Initially Mrs X refused to sign the support plan saying she intended to appeal. She later signed on the basis she did not agree and would continue to appeal.
32. The Council acknowledges the delay in formalising the budget. It says this was due to the completion of additional OT assessments, panel consideration of Mrs X’s requests and the involvement of its legal team. The Council says the previous direct payment was honoured throughout this period, and at no point was Mrs X left without care and support.
33. Mrs X sent further emails to the Council in November 2021 seeking clarification on what she could/could not spend the budget on. The Council responded in writing. Mrs X was dissatisfied and sought further clarification in December 2021. She remained dissatisfied and submitted a formal complaint in December 2021.
34. The Council responded to the complaint in writing. Mrs X was dissatisfied because it did not address all the points she raised. The Council provided a further response addressing the issues raised.
35. The Council says it has been “…clear about the areas of eligibility which the DP are used for but are committed to the flexibility which [Mrs X] decides to meet her eligible needs holistically”.
36. The Council says Mrs X’s proposed support plan included items/services that were not related to her disability. For example, it says Mrs X wanted her budget to fund, what it termed beauty treatment, (leg waxing). It acknowledges Mrs X was allowed to purchase family holidays in her previous authority but says this was not an eligible need relating to disability and not approved at panel.
37. The Council reviewed Mrs X’s support plan on 17 May 2022. Mrs X reiterated her belief that she was not being allowed to use her direct payment flexibly. She would like the support plan to be amended to allow for purchasing equipment and leg waxing.
38. Mrs X submitted a complaint to this office the same week.

Analysis

39. The Ombudsman’s role is to review how councils have made decisions. We may criticise a council if it has, for example, not followed an appropriate procedure, failed to take account of relevant evidence, or not properly explained the reason for its decision. But we do not make decisions on councils’ behalf or offer a right of appeal against their decisions. We cannot criticise a council’s decision where it has been made properly, and nor can we uphold a complaint simply because a person disagrees with what a council has done.
40. The evidence shows that overall, the Council assessed Mrs X’s care needs properly. It took account of all relevant information and Mrs X’s wishes. The Council identified Mrs X had eligible care needs and provided care to meet those meets. Assessments were completed in line with the Care Act and Statutory Guidance. There was no fault in the process.
41. The decisions the Council made were entirely matters of professional judgement. I appreciate Mrs X disagrees with the outcome of the assessments, but this alone does not give me a reason to find fault.
42. However, I do query the way the Council considered Mrs X’s request for leg waxing. This is personal grooming, and not a beauty treatment. The Council has discretion to consider this as part of Mrs X’s budget, or as disability related expenditure.
43. It was not clear from reading Mrs X’s support plan how her care needs would be met when she is away on holiday. The Council confirmed the personal budget is calculated on the cost of meeting needs over a full calendar year which allow Mrs X to commission support flexibly whilst she is away on holiday. I have no further comment about this.
44. In setting the amount of a direct payment (or the personal budget from which it is derived) the Council must ensure it is enough to buy services which will meet a person’s assessed eligible needs as far as the Council accepts a duty to meet them. The Council has a duty to take into account the use of public funds to meet actual assessed needs, not solely to fund preferred activities which only meet part of those needs.
45. The High Court has confirmed that an individual’s wishes are not the same as their needs and wishes are not the paramount consideration. A council has to have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin)).
46. There was some delay in Mrs X receiving the first direct payment. This was a result of human error in the spelling of Mrs X’s name, rather than maladministration by officers. I do not consider any significant injustice arose from this.
47. It is clear the assessment and care planning process took longer than is usual, but I am satisfied there was good reason for this.
48. There is also evidence of fault in the timeframe taken to confirm Mrs X’s personal budget, but only by the legal team. It took too long to consider Mrs X’s case. There was no good reason for this and the delay prolonged Mrs X’s uncertainty. The records show Mrs X’s allocated worker apologised to Mrs X for this, but I do not consider this adequate. The Council has agreed to issue a formal apology.

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Agreed action

49. The Council has agreed apologise for the time taken to confirm Mrs X’s personal budget.

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Final decision

50. Overall, there is no fault by the Council in the way it assessed Mrs X’s care and support needs.
51. There is some evidence of fault in the time taken to confirm Mrs X’s personal budget.
52. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman