The complaint

1. Mrs X complains the Council failed to carry out annual reviews of son’s (Y) care and support plan or review her carers assessment between 2018 and 2021. It also failed to act on her request for an increase in the hourly personal assistant rate. This has caused Mrs X and Y distress and uncertainty. Mrs Y says it has also caused her financial disadvantage.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
4. 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

5. I discussed the complaint with Mrs X and considered information she provided.
6. I made enquiries of the Council and considered its response and documents it provided. I had regard to the relevant legislation and guidance.

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What I found

7. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan 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, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
8. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Carer’s Assessment

9. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
10. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

NHS Continuing Healthcare Assessments

11. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
12. Individuals may need care and support provided by their local council and/or services arranged by ICSs. Councils and ICSs therefore have a responsibility to ensure the assessment of eligibility for care and support and for CHC respectively take place in a timely and consistent manner.

Direct Payments

13. 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.
14. An individual can use a direct payment to employ a personal assistant. A direct payment cannot normally be used to employ somebody who lives in the same household.

The Council’s Direct Payments policy

15. The policy explains that in exceptional circumstances the Council’s Head of Service can agree for a direct payment to be used to employ a person who lives in the same household. This will only happen where there is evidence that there is no other alternative option to mee the individual’s eligible care needs.
16. The Council says it pays personal assistants an hourly rate. This does not alter to reflect the level of need of the individual. It says that it will consider paying a higher rate in exceptional circumstances, for example when an individual cannot employ a personal assistant due to their specific circumstances.

What happened

Background

17. Y has a diagnosis of Autism, Trisomy 14, congenital heart disease, a learning disability and hip dyspraxia and related mobility issues. Mrs X is Y’s main carer.
18. Mrs X and Y moved to Solihull in October 2014. The Council completed a care assessment for Y and agreed to provide support to Y via direct payments.
19. Mrs X asked the Council for the direct payments be made to her so she could provide care for Y. It declined the request as it did not consider there were exceptional circumstances.
20. In July 2015 the Council completed an NHS Continuing Health Care (CHC) checklist to see if Y had eligible needs. He did not.
21. In June 2016 the Council completed a carers assessment with Mrs X.

Key events from 2017 onwards

22. In July 2017 the Council completed an annual review of Y’s care and support plan. It found Y has complex needs and requires a high level of care and support to maintain his physical health and wellbeing. The plan says that Y’s needs would continue to be met by attending a day centre four days a week and by employing personal assistants for 37.5 hours per week.
23. The review also noted that one of Y’s personal assistants would no longer be able to care for him. Mrs X said Y does not like strangers coming into his home to deliver his care. She asked the Council to make direct payments to her so she could be Y’s personal assistant.
24. The Council considered Mrs X’s request, and in January 2018, it agreed to do so for an initial six-month period. This was later extended by the Council.
25. In May 2018 Mrs X says she asked the Council to increase the hourly personal assistant rate. She explained the increase was needed to reflect the intricacies of meeting Y’s complex needs. Mrs X says the Council said it would discuss the matter at the annual review of Y’s care and support plan.
26. In September 2019 Mrs X contacted the Council about Y’s annual review of his care and support plan. The Council says Mrs X did not raise any concerns about Y’s needs during the call.
27. In March and April 2020 the Council made a wellbeing calls to Mrs X as part of its local COVID-19 protocol. It says that Mrs X did not raise any concerns about Y’s needs.
28. In November 2020 the Council received a safeguarding referral from Y’s day centre about allegations made by Y about physical and psychological abuse from Mrs X.
29. In January 2021 the Council spoke with Mrs X about the safeguarding concern. During the call Mrs X explained Y’s behaviours had changed and his needs are more complex.
30. In February 2021 Mrs X asked the Council to increase the hourly personal assistant rate she receives. She said this was to reflect his increased and complex needs. The Council says this is the first time Mrs X asked for an increase. As part of its response to the request the Council re-referred Y for NHS CHC funding.
31. Also, in February 2021 the Council’s safeguarding panel met to discuss the referral. It concluded the risk to Y was low. It said more support would be offered to help support Mrs X and Y with changes in his behaviour.
32. In April 2021 the Council completed an annual review of Y’s care and support plan. The review established changes to Y’s behaviour and his needs were extensive and complex. It says Mrs X believes his needs exceed the 37.5 hours provided in his care package.
33. On 19 April 2021 Y was granted CHC funding from the NHS.
34. On 2 July 2021 the Council told Mrs Y that it would not increase the hourly rate it gave for being Y’s personal assistant. It said this was because the direct payment rate was set by the Council and there were no variations for differing levels of need. It said it would consider exceptional situations but these did not apply Y.
35. Unhappy with the Council’s decision she complained to the Council. She said she had been asking for an increase in the hourly personal assistant rate since 2018. She said she was told her request would be discussed at the annual review of Y’s care and support plan. However, this did not happen until July 2021, after Y secured CHC funding.
36. The Council replied in October 2022. It said that its decision not to increase the hourly rate was in keeping with its policy and there were no exceptional circumstances. It said there was no deliberate attempt to avoid deciding her request until after Y was awarded CHC funding.
37. Unhappy with its response Mrs X approached the Ombudsman. In her complaint Mrs X explained that managing Y’s unidentified needs between 2018 and 2021 has had a detrimental impact on her physical and mental health.
38. In response to our enquiries the Council said:

• It recognised it did not meet its statutory requirement to review Y’s care and support plan between April 2018 and April 2021;
• Acknowledged that it needs to improve the timeliness of annual reviews. It has recruited more staff to help it do so;
• Recognised it did not meet its statutory requirement to review Mrs X’s carers assessment since 2018;
• Mrs X did not advise the Council of any changes in Y’s needs between April 2018 and November 2020 and;
• Mrs X first approached the Council with a request to increase the hourly personal assist rate on 3 February 2021.

Finding

39. The Ombudsman generally expects complainants to approach him within 12 months of becoming aware of the relevant issue. We will not normally accept a complaint where a person has waited longer than this without good reason.
40. However, we have decided to exercise discretion to investigate matters going back to January 2018. This is because Mrs X was asking the Council to address her concerns during this time, and she has little spare time to pursue a complaint given her role as Y’s carer.
41. Councils are required to review care and support plans annually. The Council did not review Y’s care and support plan in 2018, 2019 or 2020. This is fault.
42. I note the Council’s explanation for the delay in completing annual reviews however this is not a valid reason for failing to meet its statutory duties. I am however satisfied that it is taking appropriate action to prevent a recurrence.
43. The Council’s failure to complete annual reviews of Y’s care and support plan mean we do not have an accurate record of his needs between 2018-2021. For this reason we do not know if Y’s care package met his needs during this period.
44. The Council says that Mrs X did not raise any concerns about Y’s needs being unmet in its contacts with her. However, it is not the responsibility of Mrs X to identify his needs. This is the purpose of the annual reviews and the statutory responsibility of the Council.
45. I note the annual review completed in April 2021 was prompted by a safeguarding referral about Y’s care. The Council’s discussed the safeguarding referral with Mrs X in January 2021 during which she identified changes in Y’s behaviour. The outcome of the safeguarding referral was that additional support was required for Y and Mrs X. This demonstrates that Y’s needs had altered during the period his care and support plan was not reviewed.
46. Furthermore, an NHS CHC assessment completed in April 2021 found Y was eligible for funding. Previous assessments found he was not eligible for funding. The outcome of the assessment is further evidence that Y’s needs had altered in the period when his care and support plan was not reviewed.
47. Councils are required to complete carers assessments annually. Mrs Y did not receive a carers assessment between 2018-2021. This is fault by the Council.
48. The Council’s failure to complete carers assessments for Mrs Y means we do not know if she required support with her caring role. Mrs X’s role became more difficult as Y’s needs altered, and this is reflected in the discussions prompted by the safeguarding referral and the increase in support that followed. The failure to complete the assessments means an opportunity to establish if Mrs X needed support was missed.
49. Mrs X says the Council told her it would consider her request for an increase in the hourly personal assistant rate at Y’s annual review. She says said she first made the request in April 2018. The Council says no request was made until 2021. While there is a clear discrepancy between the two accounts of this issue, Mrs X’s request was considered when the annual review was conducted. It therefore seems likely that this issue would have been addressed sooner if Y’s annual reviews had taken place.
50. While I consider there was likely delay in the Council addressing Mrs X’s request, I do not consider this has disadvantaged her. This is because the Council has explained that it pays the same hourly rate regardless of differing levels of need. This means the Council would not have increased the hourly rate even if it had considered the matter sooner or if it had identified a change in Y’s needs earlier.

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Agreed action

51. To acknowledge the impact of the fault I identified the Council will:

• Apologise to Mrs X and Y;
• Pay Mrs X and Y £500 each to acknowledge their distress and uncertainty.

It should complete the above actions within four weeks of my final decision.

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Final decision

52. Subject to further comments by Mrs X and the Council, I intend to end my investigation subject to the Council agreeing to my recommendations.

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Investigator's decision on behalf of the Ombudsman