Summary: Mr X and his mother, Mrs Y, complained about the Council’s failure to provide a personal budget that met his eligible care and support needs. We found the Council to be at fault. To remedy the injustice to Mr X and Mrs Y, the Council has agreed to apologise and refund the money paid by Mr X to attend day services back to when he was first charged. It will also take action to refund other services users who were similarly affected and make service improvements.

The complaint

1. Mr X and his mother, Mrs Y, complain about the Council’s failure to provide a personal budget that covered the cost of his day services. While the Council agreed to pay back some of the top-up he paid, the refund was only backdated to when he complained about the matter, not to when he was first charged.
2. Mrs Y also complains about being given confusing information about Mr X’s financial contribution and disability related expenditure. She says this is indicative of the lack of transparency when calculating personal budgets. She is concerned others service users may be similarly affected.
3. Mrs Y says the matter has caused significant distress and worry because the additional charges left Mr X without sufficient income.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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

7. I considered all the information provided by Mrs Y’s representative and the Council.
8. I considered the relevant law, guidance and Council policy.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Care and support plans

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. 

Personal budgets

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.

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.

Charging

13. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
14. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.

Disability related expenditure

15. 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 Council’s adult social care transport policy

16. This states the Council will not usually meet transport related needs where an individual is in receipt of the higher rate mobility component of the Disability Living Allowance (DLA mobility).

What happened

17. Mr X, a young man with a learning disability, received a package of support from the Council. It was funded by a direct payment. This was used by his mother and main carer, Mrs Y, to pay for day services. He attended day centre-based services, four days per week.
18. In 2022, the Council carried out a review of his care and support plan. Because the cost of the day services attended by Mr X was more that the cost of a council-run day centre, Mr X was asked to pay the difference (the “top up”).
19. Mrs Y became concerned this top up, left Mr X in a financially vulnerable position. She also became aware other services users were not being asked to pay a top up. She complained to the Council on behalf of Mr X.
20. In response, the Council accepted should not have asked Mr X to pay a top up. This was based on his individual circumstances. It agreed to fund the whole cost of the day centre, less the transport costs that were included in the fees charged by the centres.
21. The Council agreed to refund the top up backdated to when Mr X complained in December 2022. It said it would temporarily adjust Mr X’s DRE until his next review, at which time the Council would decide whether his personal budget should be increased.
22. Mrs Y, although pleased the Council had accepted it was at fault, said:

• the Council should backdate repayments to when the top up was first levied, in October 2022, not to when the complaint was made;
• the whole amount paid by Mr X should be refunded;
• she was still confused by information she was being sent by the Council about Mr X’s client contribution and DRE; and
• she was concerned other service users were being routinely asked to pay a top up.

23. These unresolved concerns prompted her complaint to the Ombudsman.
24. In response my enquiries, the Council said:

• it would backdate the refund to when Mr X first paid the top up. It agreed it was at fault for not doing so earlier.
• the use of DLA mobility benefit to fund Mr X’s transport to and from the day service was in line with its relevant transport policy. Because of this, the Council would not refund the transport element of day service charge.
• as an interim measure, Mr X’s DRE was temporarily adjusted to ensure he was not financially disadvantaged going forwards. His personal budget would be reconsidered properly at his next care plan review.
• 14 other service users were told to pay a top up to allow then to attend day services. It agreed to refund these individuals.

Analysis

25. By law, the Council should ensure that a personal budget is sufficient to pay for support identified in the care plan. This did not happen in this case. I welcome the Council’s agreement that it acted with fault and that it will remedy its mistake by backdating the refund to the correct time.
26. I also welcome the Council’s acceptance that it was wrong to limit the personal budget to the cost of the equivalent council-run service and its agreement to refund other service users who have been similarly affected. I have made a recommendation below to ensure other affected service users promptly receive both an apology and a refund if the Council has not already done so.
27. In my view the Council has provided a satisfactory explanation as to how Mr X’s client contribution has been assessed. I have been provided with a copy of his relevant assessment. This includes details of his DRE that includes his top up payments.
28. This confirms Mr X’s client contribution has been reduced by the amount of the top up, although I accept it would have been helpful for this to have been specified in the breakdown provided to Mrs Y.
29. The expectation that Mr X would use his DLA mobility benefit to pay for his transport costs to the day centre is in line with the Council’s policy. Again, this should have been properly explained to Mrs Y and I would encourage the Council to ensure service users receive this information from the outset.

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Agreed action

30. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the Council should take to remedy the injustice to Mr X, Mrs Y and those people who were also caused an injustice by the Council’s fault.
31. The Council has agreed to take the following action within four weeks from the date of my final decision:

• Apologise in writing to Mr X and Mrs Y. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X and Mrs Y £100 each to recognise their distress and frustration caused by the Council’s fault.
• If it has not already done so, ensure Mr X receives his refund, backdated to when he first paid the top up.

32. Within six months from the date of my final decision, the Council has agreed to take the following action.

• If it has not already done so, apologise and refund all other affected service users, backdated to when they first paid the top up.
• Issue a guidance note to all relevant staff advising them of the legal duty to ensure, where specific individual circumstances apply, the personal budget covers the cost of support that has been specified in the care plan, not a sum equivalent to the cost of council-run services. Any relevant policies should also be amended to reflect this.

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

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Final decision

34. I have completed my investigation. The Council has agreed with my recommendations to remedy the injustice to Mr X, Mrs Y and other affected service users.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman