Summary: Ms Y complains on behalf of her sister, Mrs Z, about the Council’s decision to change her care and support plan despite there being no change in Mrs Z’s assessed needs. We find the Council produced two contradictory support plans in November 2021, one of which did not link to an eligible need and outcome in the corresponding assessment completed earlier that month. The Council will remedy the injustice caused by fault with the actions listed at the end of this statement.

The complaint

1. Ms Y complains the Council changed her sister’s care plan despite her needs not having decreased. In particular, the Council removed a previous agreement which allowed Mrs Z to use direct payments to fund travel, accommodation and care for short breaks to visit family and friends.
2. Ms Y also says the Council has removed funding for day-to-day mileage allowance.

Back to top

What I have and have not investigated

3. In addition to the costs associated with travelling for short breaks, Ms Y says the Council has also removed previously agreed funding for local day-to-day mileage. This does not feature in Ms Y’s original complaint. Furthermore, having reviewed the relevant assessments and support plans, I cannot see any reference to a mileage allowance. I am also aware that Mrs Z receives welfare benefits which can be used towards transport costs.
4. I have not investigated this part of the complaint because it is unlikely, I would find fault for the reasons given in the paragraph above, plus the Council has not yet had an opportunity to respond to this part of the complaint.

Back to top

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. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
7. 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)

Back to top

How I considered this complaint

8. During the investigation I discussed the complaint with Ms Y by telephone and considered any information she provided.
9. I made enquiries of the Council and considered its response. I also consulted any relevant law and guidance, which I have referenced in this statement.
10. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should happen

Assessment and support planning

11. 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 outcomes they want to achieve.
12. Section 25 of the Care Act gives councils a legal responsibility to provide a care and support plan. This should consider what needs 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. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget.
13. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The details of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
14. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

Direct payments

15. 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.
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.

What happened

17. Mrs Z is disabled and has significant care and support needs. She employs carers through an agency using direct payment funds for 34 hours and 15 minutes each week to meet her eligible care needs.
18. Mrs Z has long distance family members in the UK. Ms Y says that Ms Z likes to visit them once or twice a year, but the visits must be carefully planned due to Mrs Z’s mobility needs and her requirement for accessible accommodation.
19. Care Act assessments completed by the Council in 2020 and 2021 recognised Mrs Z’s need to access the community and to maintain family relationships. The assessments said: “Direct payment weekly budget to be used towards the cost of a short break, budget to be used towards accommodation, travel and care provision”.

This was echoed in the September 2021 support plan, which said:

“If [Mrs Z] takes a short break from home instead of paying her usual agency she can use the weekly allocated budget to pay towards alternative care provided by either a PA [Personal Assistant] or an agency, or towards transport costs, or towards accommodation including hotel/guest house rooms only. Invoices/receipts for payment and audit will be required”.

20. The Council completed another assessment on 8 November 2021. When assessing Mrs Z’s need for maintaining positive relationships with family and friends, the Council said, “[Mrs Z] has direct payments and can use her direct payments towards short breaks and care provision away from home” and “without support [Mrs Z] would become extremely low and depressed”.
21. Further into the assessment the Council considered Mrs Z’s need to access local facilities safely. In response to this need, the Council said, “Direct payments can be used towards the cost of care provision to allow [Mrs Z] to go on a short break. Receipts would be needed for audit purposes.”
22. The Council issued two support plans in November 2021: one dated 8 November and the second 23 November. The first support plan confirmed that Mrs Z was entitled to use direct payment funds for a short break consisting of care, transport or accommodation in a hotel or guest room.
23. The second support plan included different wording. This said Mrs Z can use direct payments towards the cost of care provision for a short break. Ms Y queried this with the Council. In response, the Council clarified that, “… overall the direct payment can be used to pay for care provision only”.
24. Dissatisfied with the response, Ms Y complained to the Council. She said there was a significant difference between the two support plans and the Council had removed the previous agreement for Mrs Z to fund short break accommodation using direct payments. Ms Y said the Council did so without consulting or reviewing Mrs Z’s assessed needs and in her view, nothing had changed in Mrs Z’s circumstances to prompt the amendment.
25. In response to the complaint, the Council said:
• Mrs Z is not eligible for respite because the support she receives is provided by agency staff.
• If Mrs Z wants to visit family, she could book a hotel with a disability adaptive room.
• The Council will continue to fund care for Mrs Z during short breaks.
• To avoid becoming socially isolated, Mrs Z could use technology to support virtual contact with friends and family.
• Mrs Z is entitled to use the car motability scheme and is eligible for the mobility element of Personal Independence Payments (PIP). This could be used to fund transport costs.
• During the COVID-19 pandemic, Mrs Z accrued surplus funds. Mrs Z can use the surplus funds towards travel costs.
26. In response to our enquiries, the Council confirmed the 8 November 2021 care and support plan contained an error and should not have approved the use of direct payment funds for short break transport or accommodation.

Was there fault in the Council’s actions causing injustice?

27. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the person affected disagrees with the decision made.
28. I have considered how the Council made its decision about the use of Mrs Z’s direct payments. In my view, there is procedural fault in the assessment and support planning process. As the Care Act sets out, the care and support plan should be reflective of the person’s assessed needs and identify how the outcomes listed in the regulations will be met without significantly impacting on their wellbeing. The outcomes engaged by this complaint are: developing and maintaining family or other personal relationships and making use of necessary facilities in the local community.
29. The ‘Care and Support Statutory guidance’ echoes this: “The plan must detail the needs to be met and how the needs will be met, and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process and to the wellbeing principle in the Act”.
30. Both support plans issued in November 2021 identify that Mrs Z has an eligible need to maintain family relationships. They link back to the assessment and both plans say Mrs Z can use direct payments for short breaks and care provision. In my view, this suggests the payments can be used for reasonable costs associated with a short break as well as the care provision. In response to the complaint, the Council said this is not correct and Mrs Z must fund her own transport and accommodation. In my view, this is contrary to the wording in both support plans and needs to be reviewed and clarified.
31. In relation to making use of necessary facilities in the local community, there is a discrepancy between the two plans. The first plan correctly reflects the assessment outcomes and indicates that Mrs Z can use direct payments to fund short break accommodation. The second plan removes this without explanation and does not correctly link back to the assessment. In the absence of any clear indication of a change in Mrs Z’s assessed needs between 8 and 23 November, this is fault.
32. The Council has retrospectively explained the first support plan was issued in error and should not have contained any agreement for Mrs Z to use direct payments to fund a short break, other than for care provision. The Council now says Mrs Z can achieve the relevant outcomes and maintain relationships with the use of technology. This is not referred to in any of the assessment or support plans I have reviewed.
33. Furthermore, the Council has not given any consideration to Ms Y’s proposal that Mrs Z may be able to rely upon the support of family members to provide some care during a short break. Therefore, the usual cost associated with paying for 34 and a quarter hours of care per week could instead be put towards accommodation and transport. In which case, Mrs Z could use her direct payment funds to meet an assessed eligible need without creating any additional costs. The Council needs to consider this proposal.
34. The LGSCO is aware of the restrictions around the use of direct payment funds for residential accommodation in a care home for more than four weeks per year. However, this is not relevant in Mrs Z’s case as she is requesting one or two short stays in accessible hotel accommodation each year. The Council has not said this is not possible, either because of its own policy or legislation. It will therefore implement the agreed actions listed in the final section of this statement.

Back to top

Agreed action

35. Within four weeks of my final decision, the Council will provide evidence to show it has:
• Apologised to Ms Y and Mrs Z for the frustration, time and trouble caused by the fault identified. The Council should also make a symbolic £100 payment in recognition of this.
36. Within six weeks of my final decision, the Council will also provide evidence to show it has:
• Reviewed the wording of Mrs Z’s current care and support plan to ensure it reflects the eligible needs and outcomes identified in the corresponding assessment. The Council should also consider and respond to Ms Y’s proposal as outlined in paragraph 33 of this statement.

Back to top

Final decision

37. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions above are an appropriate remedy for the injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman