Summary: Miss X complained the Council failed to properly consider her needs or provide her with the support it assessed her as needing. Miss X also said it had failed to properly consider her request for increased Direct Payments and failed to consider her cultural and support needs. We find the Council was at fault for failing to provide the support it assessed Miss X needed. It was also at fault for failing to properly reassess Miss X when it decided to reduce her support hours and for how it assessed her request to increase her Direct Payments. This caused Miss X a loss of service, causing distress, uncertainty, and confusion. We do not find the Council at fault for how it first assessed Miss X’s needs. The Council has agreed to remedy the injustice caused.

The complaint

1. Miss X complains the Council has failed to:

• Properly consider her needs caused by her visual disability.
• Provide her with support she was assessed as needing.
• Properly consider or fund her request for direct payments.
• Properly consider her cultural needs.

2. Miss X said she the Council has left her without the care and support she was assessed as needing. She said this has impacted on her daily life, affecting her work, her mental and physical health as well as impacting on her ability to access culturally appropriate foods. She says this has caused significant distress, uncertainty, frustration, and confusion.

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The Ombudsman’s role and powers

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. 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)
5. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I discussed the complaint with Miss X and considered the correspondence sent in support of her complaint. I also made enquiries with the Council and have considered all documentation.
8. I have considered the comments from Miss X and the Council before making this final decision.

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What I found

9. 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. It 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 results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. 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.
11. Section 13 says when revising a plan the local authority must involve the person, their carer, and any other persons the adult may want involved, and their advocate if the person qualifies for one. The local authority must take all reasonable steps to agree the revision… The local authority must, if satisfied that the circumstances have changed in a way that affects a care and support plan, carry out a needs or carers assessment and financial assessment, and then revise the plan and personal budget accordingly.

Direct Payments

12. Direct payments are monetary payments made to individuals who ask for one to meet some or all their eligible care and support needs. They provide independence, choice, and control by enabling people to commission their own care and support to meet their eligible needs.

The Council’s Direct Payments Policy and Guidance (March 2021)

13. Section 11 of the Council’s policy says the Council will work out a budget to cover everything agreed in the Care and Support Plan. The amount the person will receive for their personal budget will be written in the Care and Support Plan and explained clearly in the welcome pack…”
14. There is one set rate for paying Personal Assistants (PA’s) and this may change each year. Current rates will be provided in the welcome pack. Occasionally there may be circumstances where an enhanced rate is required. In these situations, the request for enhanced rates needs to be made to the Social Work team who will consider the Care and Support Plan and how the person’s care and support needs can be met. The request for an enhanced rate will be made to the Team Manager and if approved signed off by a Service Manager.
15. If the request is not agreed, the reasons will be given to the person in writing along with an explanation of how to challenge the decision. They will be given details of the Council’s complaints procedure.

What Happened

16. This statement is not an exhaustive description of all the events that have occurred in relation to this complaint, but an outline of the key issues as a background to the investigation’s findings.
17. Miss X suffers with central dystrophy which is a progressive visual impairment and receives support from the Council’s Sensory Impairment Team.
18. Miss X contacted the Council in February 2022. She asked it to assess her needs as her PCAS (Person-Centred Active Support) worker would be leaving employment.
19. The Council contacted Miss X a few days later. It said this was to gather information to determine priority need. It explained Miss X’s options regarding the Direct Payments process and gave her details of local personal assistants. It said it offered Miss X the option of a virtual assessment either by phone or online.
20. The Council said there was a slight delay in assessing Miss X but said this was due to Miss X’s considerations about whether she wanted a virtual or face-to-face appointment.
21. Miss X’s social worker completed an assessment with Miss X in late March 2022. Miss X was supported by her PCAS worker.
22. The Council assessed Miss X under the Care Act 2014 and decided she had eligible needs and required support with:

• managing and maintaining nutrition with support to access culturally appropriate food products, help with the preparation of food, and ensuring foods were within date.
• being appropriately clothed with support to select and match outfits.

• accessing the community and unfamiliar environments via a mobility training programme.

23. The Council identified that not providing support could result in a risk of isolation and risk to Miss X’s job and income.
24. The Council sent Miss X the Personal Support Plan (PSP) in May 2022; however, Miss X’s advocate told the Council she was unable to open the email. The Council said it re-sent this.
25. Miss X signed and returned the PSP and suggested some amendments in May 2022.
26. The Council issued Miss X with a PSP in June 2022, it said there had been a delay in issuing this due to the social worker being on sick leave. The PSP said the Council had a duty to meet Miss X’s needs which were assessed as being:

• Ten hours per week Direct Payment to employ a self-employed worker/ Personal Assistant (PA) to assist and support her when carrying out tasks. The Council calculated the hourly rate it was prepared to pay for PA support.
• PA to support Miss X’s access to the community.
• PA to explore options for assisted travel on trains.
• PA to support Miss X in accessing culturally appropriate food or specialist shops.
• PA to provide Miss X with support to manage paperwork and appointments, and to use and access the internet.
• PA to provide support in food preparation where required.
• PA to help and support Miss X with laundry and in organising clothing.

27. The Council contacted Miss X to discuss her support. However, Miss X told the Council she felt the assessed hours were too low and that she ideally needed 20 hours of support to meet her needs.
28. The Council told Miss X it had properly assessed her support needs and it could meet these within ten hours a week. It noted Miss X could use other measures to order food or access the internet and suggested assistive technology. It also said Miss X could explore the voluntary sector to assist with her support needs.
29. The Council re-contacted Miss X in late June. It said funding for a Direct Payment of 10 hours per week had been agreed at a support planning forum based on the outcome of her assessment and support plan.
30. Miss X complained to the Council in August 2022. She said it had not properly considered or assessed her request for 20 hours of support.
31. The Council responded in September 2022. It did not uphold Miss X’s complaint and said:

• It had considered her request for an increase in her support hours but on assessment decided her needs could be met with 10 hours of support.
• It had to ensure the care offered was best value.
• It had considered her cultural needs but felt she could be supported to access food to meet her dietary requirements locally or online. This would free up hours for Miss X to partake in physical activity.
• A joint visit with Miss X’s sensory impairment team worker would be beneficial to explore assistive technology and the voluntary sector.
• It would assess progress within 6-8 weeks.

32. Miss X expressed her dissatisfaction with the Council’s complaint response, she noted the voluntary sector was unable to meet her needs and the suggestion of support from assisted technology was not practical. However, she said she wished to move forward with the Council’s offer of Direct Payments as a priority and told the Council she was ‘struggling severely’ since her PCAS support worker had left.
33. The Council held a face-to-face meeting with Miss X in October 2022. It said it helped Miss X to set-up her Direct Payment account and helped her complete the job application for a PA.
34. Miss X recontacted the Council in November 2022 and said she had sourced a PA; however, they requested an hourly rate over what the Council would pay. Miss X told the Council she was unable to employ anyone with the hourly rate the Council has set and for the hours she needed. Miss X asked for an increase in her Direct Payments.
35. The Council emailed Miss X and said it was a positive step that Miss X had found someone interested in the role, however, it would not release funding until someone was in post, and it could assess the costs.
36. Miss X’s social worker said she had applied for increased funding for Miss X’s PA, but this needed to be authorised by a senior manager because it was above the set hourly rates.
37. The Council reviewed Miss X’s request in November 2022, but did not agree to additional funding. It also said on review it was no longer authorising the 10 hours of support it had previously agreed. It also suggested a further reduction in Miss X’s support hours noting other options could be explored to support her and again suggested assistive technology.
38. The Council called Miss X to tell her it was no longer agreeing to (the previously agreed) 10 hours of support. It said it discussed changing her PSP, but Miss X disagreed. Miss X told the Council she was unhappy with its decision to reduce her hours and said she would make a further complaint.
39. The Council’s notes from December 2022 show it cancelled Miss X’s approved Direct Payments from July 2022, however, it also noted ‘no support has been received as yet and no PA was in place.’
40. The Council visited Miss X in December 2022 along with her sensory impairment support worker to explore assistive technology.
41. Miss X complained to the Ombudsman in January 2023.

Response to My Enquiries

42. The Council responded to my enquiries in May 2023. It accepted Miss X had not accessed the support it assessed her as needing.
43. The Council said it would give Miss X the option of a Direct Payment to commission a PA for ten hours of care per week on a short-term basis. It said it would not consider PA support for needs that it believed could be met with the use of assistive technology. It also said it recognised the length of time that had passed since assessing Miss X and has offered to reassess her needs.

Analysis

44. It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly and acted in accordance with the law.
45. I have reviewed the Council’s notes and Miss X’s PSP (issued in late June 2022). In assessing Miss X, the Council spoke with her and got advice from her sensory impairment rehabilitation officer and her PCAS support worker who was involved in her day-to-day care. The assessment considered Miss X’s health, physical, and cultural needs as well as the level of support Miss X needed on a day-to day basis. It then decided on the level and support and funding needed to support Miss X in achieving her goals. Miss X disagrees with the number of hours the Council has identified she needs. I am satisfied the Council considered all the relevant evidence and completed Miss X’s (March 2022) PSP assessment properly. Therefore, I do not consider the Council was at fault and was entitled to use its professional opinion to decide the number of support hours Miss X needed. In the absence of fault, I cannot criticise the Council’s decision.
46. The Council assessed Miss X as needing 10 hours of support in late March 2022. It did not issue her with the PSP until late June, a delay of nearly twelve weeks. This was fault. I acknowledge the Council has given reasons why there was a delay. However, I would have expected the Council to have provided Miss X with the PSP for her to access support by late April 2022. I consider it took too long to complete and issue her with the PSP. This delay caused Miss X to miss the support identified and caused her distress and frustration.
47. The Council accepts there has been delay in providing Miss X with the support it identified her as needing in her PSP. It said this was due to being unable to source a PA. However, the legislation is clear, the Council had a duty to provide Miss X with the support it had identified, it did not, and this was fault. Miss X has now been without the support she was assessed as needing for nearly nine months at the time she complained to the Ombudsman. This has caused a significant injustice, and has impacted on her day-to-day life and work, as well as limiting her ability to participate in the community and complete physical activities.
48. Miss X told the Council she had been unable to find a PA who would work for the proposed hourly rate. When it became clear Miss X could not find a PA, I would have expected the Council to have considered alternatives including using agency staff to ensure her needs were met. The Council has provided no evidence it did this. This was fault. Failure to support Miss X in finding a suitable PA (or consider alternatives) caused her distress and uncertainty and left her without the support she was identified as needing.
49. Miss X’s social worker referred her request for a Direct Payment increase to a senior manager in November 2022. The Council considered and refused Miss X’s request. The Council is entitled to use its judgment when it considered Miss X’s Direct Payments. However, the Council has provided no evidence how it considered this request. This was fault. The Council’s policy says if a request is not agreed ‘reasons will be given to the person in writing along with an explanation of how to challenge the decision.’ The Council has provided no evidence that it told Miss X of its decision in writing or explained how she could challenge it. This was fault and caused Miss X uncertainty and confusion.
50. On reviewing Miss X’s request for increased Direct Payments, the Council said it would not agree to provide her with the 10 hours of support it had previously agreed to in her Personal Support Plan in June 2022. It said Miss X could be supported with reduced hours with the use of assistive technology. The legislation is clear, if a support package is reduced or changed in a significant way, then the law requires the Council to provide a detailed and convincing explanation as to why this is happening, for example because the person’s condition has improved substantially. There is no such convincing explanation or clarity here. This was fault. The Council should have completed a further assessment of Miss X’s needs if it considered her support hours could be reduced. Failure to offer Miss X a re-assessment caused her uncertainty and left her without the support she needed. It also caused Miss X confusion by merging her request to increase her Direct Payments with a decision to reduce her hours. I appreciate the Council has now offered to re-assess Miss X, however, while this is what I would recommend and goes some way to remedying the injustice identified, I do not believe it goes far enough. I have therefore made further recommendations to remedy the injustice identified.

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Agreed action

51. By 1 December 2023 the Council will:

• Apologise to Miss X for failing to provide her with the support identified in her PSP.
• Pay Miss X £750 for loss of service.
• Pay Miss X a further £250 for distress, uncertainty, confusion, and frustration.
• The Council should provide Miss X with support to employ a personal assistant while it completes its reassessment of her needs.

52. By 1 February 2024 the Council will:

• Complete a reassessment of Miss X’s support needs.

• Provide staff training on the Council’s duties to meet needs identified in Care Act assessments, and the need to consider alternatives to direct payments when it becomes apparent these are not working.

53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation by finding the Council was at fault for failing to provide Miss X with the support identified in her Personal Support Plan. I also find fault with how the Council dealt with her request to increase her direct payments and failure to properly reassess her needs when it considered reducing her support hours. I have not found fault with the Council for how it initially assessed and considered how it would meet her needs. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman