Summary: Miss D complained about issues relating to her adult son’s care and support, charging and direct payments. We found any injustice caused by delay in re-calculating his contributions has already been remedied as the Council waived the contributions from 2019 to April 2022. Failure to organise training did not cause injustice to Miss D or her son. There was no fault in the rest of the issues Miss D complained about.

The complaint

1. Miss D complains on behalf of herself and her son, Mr J, that the Council:
• Wrongly calculated her son’s contributions towards the cost of his care and support, and failed to properly consider her challenges to this, which led to a £4,000 debt.
• Delayed auditing the direct payments and wrongly said she misspent them.
• Has failed to meet or review her son’s care and support needs.
• Has failed to meet his support team’s breakaway training needs.
• Wrongly advised her about direct payments for respite care.
• Carried out an unnecessary safeguarding investigation.
2. Miss D says as a result she has been caused unnecessary stress and time and trouble for a number of years, and the Council has failed her son.

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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)

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How I considered this complaint

6. I spoke to Miss D about the complaint and considered the information she sent and the Council’s response to my enquiries, and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
7. Miss D 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

Relevant law and guidance

Care and support

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
9. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.
10. Councils should keep care and support plans under review, at least every 12 months. 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.

Direct payments

11. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. A personal budget sets out the cost of meeting eligible needs, the amount a person must contribute to that cost and the amount the council must contribute.
12. A personal budget can be administered as direct payments to enable people to commission their own care and support. The council pays the direct payment into a bank account. The service user is expected to pay their contribution into the same account to enable auditing.
13. 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 should therefore have systems in place to proportionately monitor direct payment usage to ensure effective use of public money.

Charging for care and support

14. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. These charges may increase every year.
15. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.
16. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by the government and reviewed each year. A council can allow people to keep more than the MIG.
17. Nottinghamshire County Council changed its social care charging policy in 2019 to make it in line with Government guidance. It amended the minimum incomes that could be kept and the benefits that were disregarded when calculating how much a person could afford to pay.

Disability Related Expenditure

18. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included.

Support for carers

19. Where somebody provides 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. The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care.

Safeguarding

20. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Care Act 2014, section 42)

What happened

21. I have set out the key events. This is not meant to detail everything that happened.
22. Miss D’s son, Mr J, has a health condition which causes learning difficulties and challenging behaviour. He lives with Miss D, who is his main carer. He has been receiving direct payments since 2016. These are used to employ personal assistants to meet his care and support needs.
23. In 2018, Mr J’s care and support plan was for personal assistants to deliver 69.5 hours of daytime support per week and 27 hours of night-time support. This was broken down as Monday to Friday, 11.5 hours; Saturday and Sunday, 6 hours; and three nights of nine hours support.
24. Mr J had been assessed as having to make no contribution towards the cost of his care. In 2018 the Council agreed to change its charging policy. It wrote to Miss D in November 2018 to say that, as a result, Mr J’s contribution would now be £60.30 per week. The Council then decided to defer the start of its new charging policy and wrote again in December 2018. This letter said Mr J’s contributions would remain at zero until April 2019.
25. The Council started a safeguarding investigation following a referral from a health professional. This was about restraint methods used by Miss D and the personal assistants.
26. There was a review of Mr J’s care and support needs in July 2019 but there were no changes to his hours of support.
27. There was also a review of Miss D’s carers assessment. This said Mr J was entitled to a budget for short break respite which would be paid as a direct payment. It was to be used to pay for additional personal assistant hours to support Mr J so that Miss D could have a break, rather than on the break itself. The Council says it emailed Miss D in September 2019 saying how this money could be used and sending its direct payment policy, though I have not seen that email.
28. The Council also wrote to Miss D in September 2019 about Mr J’s contributions since the change in charging policy. It said they would be £44.65 per week from November 2019.
29. The safeguarding enquiry was completed. It recommended that Miss D attend training on how to protect herself from any physical attacks from Mr J and the personal assistants should attend training on managing challenging behaviour. The Council asked Miss D to find suitable training. She found some in October 2019 but did not consider it cost effective.
30. On 18 November 2019 the Council wrote to Mr J that he owed £338.84 in contributions since April 2019 and his current weekly contribution was £25.87. It wrote again in April 2020 following the regular annual increase. This said Mr J’s contributions were £48.35 per week, taking into account standard DREs of £20 per week.
31. Miss D contacted the Council about the training in April 2020. Officers contacted some providers but this was not followed up.
32. An updated care and support plan was issued in March 2020, although there was no change in the support package. There was a review of Mr J’s care and support in August 2020. Miss D said his needs had changed and asked to complete the care and support assessment herself. There is no evidence of an updated plan or completed review.
33. The carers assessment was reviewed in November 2020, resulting in an increase in the short break respite budget to £7,200 per year.
34. A blank care and support needs review form was sent to Miss D in January 2021 and she asked for Mr J’s support to be reviewed. She also said Mr J’s contributions had not been calculated correctly and she asked for advice about how to use the respite direct payment.
35. There is evidence the review started in February 2021 and that the assessment and care and support plan were emailed to Miss D in August 2021. There was no change in the package. Miss D had used some of the respite direct payment to fund accommodation for a break.
36. The annual increase in charges in April 2021 took Mr J’s contributions to £48.80 per week. Miss D again queried this in July 2021 and again asked for advice about the respite.
37. There was a meeting on 16 September 2021 to discuss Mr J’s contributions and the respite budget. The notes of this meeting say that Miss D was advised the respite budget was to be used to provide care for Mr J, not for the carer to purchase support for themselves. The Council would send Miss D a copy of its direct payment policy. The Council says it emailed this on 20 September 2021, but I have not seen that email. There was also a discussion about Mr J’s contributions.
38. There was a further meeting in November 2021 to review Mr J’s care and support. There was a discussion about the letters the Council had sent detailing Mr J’s contributions. Miss D said they were wrong and asked to meet with the finance team. The Council sent Miss D a breakdown of the contributions it said Mr J owed.
39. In February 2022 a review of Mr J’s support was started. At Miss D’s carers assessment on 28 March 2022, there was another discussion about the use of the respite budget. Miss D said she had still not met the finance team or received the advice the Council had said it would send her. Nor had the training been organised. The Council wrongly advised her there was an additional £1,300 NHS respite budget, but it emailed her on 8 April 2022 (a week later) to say that this was in fact already included in the £7,200.
40. The Council contacted training providers and obtained a quote. In July 2022 there were discussions about who needed to attend. Miss D said the safeguarding report had recommended the personal assistants attend challenging behaviours training, whilst she attended the “breakaway” training. The Council said it would not be helpful to have two different training providers. Miss D cancelled the training as it was not feasible for herself and the personal assistants to be trained at the same time.
41. The annual increase in charges in April 2022 took Mr J’s contributions to £51.75 per week. The Council also wrote to say that Mr J’s debt was now £4,065.15. Miss D again challenged this.
42. The Council wrote to Miss D on 9 May 2022. It had increased Mr J’s DRE allowance from £20 per week to £43.22 per week from April 2022. This meant his contribution from April 2022 would be £28.53 per week. Miss D asked for the contribution to be reviewed. She said she had not received any letters about the increases.
43. There was a further review of Mr J’s needs in August 2022. The support package remained the same.

Miss D’s complaint

44. Miss D complained in August 2022 that:
• Mr J’s contributions were wrong.
• His needs had not been reviewed since 2019; he needed 15 hours support per day not 12.
• He had been awarded £7,200 in respite but had not been told how to use it. As a result she had booked nights away but was then told she was not entitled to this.
• She had still not had the training recommended following safeguarding.
45. The Council replied on 7 October 2022. It said:
• It would waive Mr J’s contributions up to 10 April 2022.
• There had been reviews of Mr J’s care and support.
• Annual audits had identified some anomalies in the use of the direct payments. It apologised Miss D had been wrongly advised about the NHS funding.
• There had been a delay organising the training.
46. In October 2022 the Council said there was too much money in Mr J’s direct payment account, so some had to be returned. It also noted that he owed £456.48 since 11 April 2022 but had only paid £228.24. Miss D remained dissatisfied and came to the Ombudsman in January 2023.

My findings

Wrongly calculated her son’s contributions towards the cost of his care and support, and failed to properly consider her challenges to this, which led to a £4,000 debt.

47. Mr J became liable to contribute towards the cost of his care and support when the Council changed its charging policy in 2019 to include the higher rate of disability benefits and a reduced MIG rate for people under pension age. The contributions then increased each year in line with the Council’s annual uplifts.
48. Initially, the Council used its standard DRE allowance of £20 per week to determine Mr J’s contributions. In May 2022 the Council re-calculated Mr J’s DREs and increased them, leading to a reduction in his contribution.
49. I have seen no evidence of fault in the way the Council calculated the contributions, nor have I seen evidence the Council ignored any requests from Miss D to consider other DREs. I therefore cannot challenge the Council’s calculation that Mr J’s contribution from 11 April 2022 is £28.53 per week. This should now be paid.
50. However, I find the letter of 18 November 2019 was incorrect. It said Mr J’s contribution had been £60 per week since April 2019, but the Council had already determined that his contribution would be £44.65 from November 2019. The letter was also confusing as it said Mr J’s contributions would be £28 per week, contrary to other letters the Council had sent.
51. When Miss D queried the contributions, the Council sent her a breakdown and copies of the letters. There were also several discussions. So, I do not consider that the Council ignored her concerns, but there was inevitably some delay as the Council tried to clarify them.
52. However, any injustice to Miss D caused by this delay has already been remedied by the Council as it has waived Mr J’s contributions from 2019 to 10 April 2022.

Delayed auditing the direct payments and wrongly said she misspent them; Wrongly advised her about direct payments for respite care.

53. The Council wrote to Miss D each spring about the annual increases, and in November 2019, December 2021 and April 2022 about the amount it said Mr J owed. I have not seen evidence of any other audits until it audited the direct payment account in October 2022.
54. Whilst earlier audits would have identified that Mr J had not yet paid his contributions, I do not find fault or injustice here. That is because the Council was aware Mr J had not paid them and was corresponding with Miss D about this anyway.
55. The Council says it explained to Miss D in autumn 2019 how the respite direct payments were to be used. I have not seen the evidence of that. But there is evidence that it was discussed during the care and support review of 2021, that the Council emailed her on 2 September 2021 about it and it also advised her during the meeting of 16 September 2021.
56. Miss D says the Council failed to send her its direct payment policy after this meeting, as it had promised. However, that policy does not contain information about the use of respite direct payments, so I do not consider that caused any injustice.
57. I find the Council explained the system to Miss D several times during 2021. Miss D had used some of the money to pay for accommodation for a break in 2021 and 2022, rather than personal assistant support, but on the evidence seen, this was not caused by fault.
58. There was an error made about the NHS short breaks funding, but this was quickly rectified and I find it did not cause any injustice to Miss D.

Has failed to meet or review her son’s care and support needs.

59. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the council's role. My role is to consider if the council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because the complainant disagrees with its decision, or outcome of an assessment.
60. I have seen there were reviews of Mr J’s care and support needs in July 2019, August 2020 (incomplete), February-November 2021, April 2022 and August 2022. Following each of these, the care and support package remained the same.
61. In August 2020, Miss D said she wished to complete the assessment herself. A new blank form was sent to her in January 2021. Whilst there may have been delay here, I do not find there was injustice because an updated care and support plan had been issued in March 2020.
62. I appreciate that Miss D says Mr J’s needs have changed and he requires more support. However, the reviews and assessments I have seen are detailed and describe Mr J’s needs and how these can be met. There is no evidence of fault in the way they were carried out. As I have found no fault in the process, I cannot question the professional judgment of officers about how Mr J’s needs should be met.

Has failed to meet his support team’s breakaway training needs.

63. Following the safeguarding investigation, two types of training were recommended – one for Miss D and another for the personal assistants. These have not yet been delivered.
64. Miss D made efforts to source the training in 2019 but nothing suitable was found. The Council tried again in 2020, but this was not followed up.
65. There was then a delay until Miss D chased in 2022. There appears to have been some confusion about what was required. The safeguarding outcome says Miss D should attend the breakaway training, with the personal assistants attending challenging behaviour training. The Council suggested all should attend the same course but this was not feasible or necessary.
66. I find there was fault by the Council in failing to ensure the recommended training was provided. On the evidence seen, there has been no injustice caused to Miss D or Mr J by this. The Council and Miss D should now discuss whether the training is still required.

Carried out an unnecessary safeguarding investigation.

67. The Council has a legal duty to carry out safeguarding enquiries if it receives a referral. Having reviewed the referral and investigation, I have seen no evidence of fault in the way the Council decided to start an investigation.
68. At the end of the enquiries councils must decide if the concerns are substantiated, partially substantiated or not substantiated. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
69. I am satisfied the safeguarding investigation was thorough and proportionate and in line with the Guidance. For this reason, I cannot criticise the Council’s decision that the allegations were substantiated. This was a decision it was entitled to make based on the evidence before it.

Summary of findings

70. There was no fault in the way the Council calculated Mr J’s contributions. It was not fault to reconsider his DREs, which led to a reduction in the contribution. Any injustice caused by a delay in doing this has already been remedied as the Council has waived the contributions from 2019 to 10 April 2022.
71. There was no fault in the way the Council advised Miss D about the respite direct payments or audited Mr J’s contributions. It made an error made about NHS short break funding, but this did not cause any injustice to Miss D.
72. There was no fault by the Council in reviewing Mr J’s care and support needs. I therefore cannot question its decision that he requires 69.5 hours of daytime support and 27 hours of night-time support per week.
73. The Council has failed to ensure Miss D has had the training recommended by the safeguarding investigation. On the evidence seen, this has not caused injustice to Miss D.
74. There was no fault in the decision to start safeguarding enquiries or in the way the investigation was carried out. I therefore cannot question its findings.

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Final decision

75. There was fault by the Council. The actions the Council has already taken remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman