Summary: Mrs X complained the Council did not agree to pay for an increase in fees to the support agency that meets her son’s care needs. She said this was unfair and caused distress and uncertainty as they are at risk of losing the current service. We have not found the Council at fault for how it made its decision not to increase its direct payments for Mrs X’s son.

The complaint

1. Mrs X, on behalf of her adult son, Mr Y, complains the Council has refused to cover the cost of an increase in his care provider’s hourly rate, putting his current care package at risk. She says Mr Y’s mental health has deteriorated, causing the family distress and uncertainty. They are worried he will lose the bespoke support which has worked well for him for many years.

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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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 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, Mr Y’s mother, who is dealing with the complaint on his behalf, and considered her views.
6. I made enquiries of the Council and considered its written responses and information it provided.
7. Mrs 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

Law and administrative background

8. A council must carry out an assessment of any adult who seems to need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9). Having identified eligible needs through a needs assessment, the council has a duty to meet those needs. (Care Act 2014, section 18)
9. 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. The care and support plan should consider what 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.
10. The care and support plan must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, s 26)
11. 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. The detail of how the person will use their personal budget will be in the care and support plan.
12. 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.

Equality Act 2010

13. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in the provision of goods and services, and the carrying out of public functions.
14. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. This includes disability.
15. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
16. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged.

Background

17. Mrs X lives with her adult son, Mr Y. He receives 20 hours of care and support each week, funded by a direct payment from the Council. Mrs X manages this on his behalf.
18. Mrs X uses this to fund a bespoke package from a support agency that is tailored to Mr Y’s individual and complex mental health needs. The Director (Mr Z) of the agency worked with him as an individual on a 1:1 basis.

What happened

19. In July 2022, Mr Z contacted the Council advising he needed to increase his fees to £21.80 per hour. Mrs X requested the Council to consider an increase to the direct payment hourly rate it paid for Mr Y.
20. In September, the Council responded it would not agree to the requested increase, but a 3% increase would be applied in line with uplifts it gave annually for contractor providers. This brought it to £19.36 per hour.
21. Mrs X formally complained to the Council. She said the Council had agreed to pay the full rate increase for another client of the support agency. She questioned why it had not done the same for Mr Y. She said he had not been treated fairly and this was in breach of the Equality Act 2010. She said if Mr Z withdrew his services because the costs were not met, it would be devastating to Mr Y. He did not easily trust professionals and he had already built up an excellent rapport with Mr Z over several years.
22. The Council responded it had taken into account Mr Y’s very individual needs and offered a further increase to £20.48 per hour. While it was not the full amount requested by the support agency, it concluded it was reasonable in light of the costs of local market provision to provide quality care. It was aware Mr Z had received an increase from another area but said rates varied across different areas of Kent.
23. Mrs X did not accept the rate offered and complained to us, adding she was unable to afford the shortfall in fees.

The Council’s response to my enquiries

24. The Council carried out a care and support review for Mr Y in October 2022 at the request of Mrs X. She had detailed specific criteria for a support worker based on previous experience of Mr Y’s complex needs. This was added in Mr Y’s plan under “the person’s care preferences”.
25. During this review, it was discussed there could be a risk with only having one individual worker supporting her son and it would be beneficial for Mr Y to be introduced to an alternative support worker, should Mr Z become unavailable.
26. The Council provided a copy of its Cost Setting Guidance (CSG) tool. It said it took into consideration Mr Y’s eligible needs and was satisfied these could be met within the CSG figure of £20.48.
27. It said it acknowledged several factors, including Mrs X’s concerns about the difficulty in finding another suitable provider and the impact this could have on Mr Y’s wellbeing. It had offered the highest rate currently afforded to providers commissioned by the Council who deliver support to people with complex needs.
28. Mrs X said she had evidence the Council had agreed the full increase for the direct payment rate for a different client of Mr Z’s with similar needs as Mr Y. I asked the Council to comment on this. It explained its approach to using its discretion for each individual case, and confirmed its position the amount offered to Mrs X was proportionate for Mr Y’s identified care and support needs.

Analysis

29. 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. Rather, we look at the processes a council has 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 a complainant disagrees with it.
30. The Council agreed to an initial increase of 3%. In light of Mrs X’s complaint, it considered the matter further and revised its offer with an overall increase of nearly 9% on the original rate.
31. The Council said it needed to follow its Cost Setting Guidance (CSG) to ensure consistency, fairness and equity when setting its hourly rates for direct payments. It acknowledged it had discretion within this. I am satisfied the Council appropriately considered Mr Y’s wishes, his individual unique circumstances, and potential consequences.
32. Taking all of this into account, the Council maintained its position it did not have to pay increased fees for support that could be provided by an alternative provider at the CSG rate. The Council acknowledged Mr Z was Mr Y’s preferred provider. Under the Care Act, the Council has a duty to meet Mr Y’s eligible care needs. It has to consider a person’s preferences, but it does not have a duty to meet them.
33. The Care Act 2014 says the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. The Guidance says there will be cases where a person or third party makes an additional payment to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. I recognise Mrs X says she cannot afford to pay the difference, but I cannot find fault with the Council for paying an hourly rate based on what it would expect to pay if it commissioned Mr Y’s care.
34. Based on the above, I am also satisfied the Council has given due regard to its duties under the Equality Act as it did consider Mr Y’s individual circumstances and his protected characteristic.
35. I recognise Mrs X and Mr Y’s concerns that Mr Z will withdraw his bespoke service because the Council will not increase the funding, however I cannot say the Council is at fault. I acknowledge Mrs X does not agree it is fair if it agreed an increase for someone else with similar needs. However, the Council should consider each case on its own merits and individual circumstances and not use a blanket approach. In this case, the Council did and considered whether to increase Mr Y’s funding. It opted not to. That is a decision it is entitled to make. It also exercised discretion to increase the rate to what it decided was reasonable. I appreciate Mrs X disagrees with the decision the Council has made. However, as I do not find fault with the Council’s decision making, I cannot say if the decision was right or wrong.
36. The Council has confirmed to me that Mrs X has since accepted its offer to increase the direct payment rate of £20.48 per hour.

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Final decision

37. I do not find fault with the way the Council made its decision to Mrs X’s request to increase her son’s direct payments. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman