Summary: Mr X complained about the way the Council dealt with his mother, Ms Y’s, care package. Mr X said the Council removed services from Ms Y’s care plan. He said the package is no longer flexible to meet her needs. Mr X said this impacted Ms Y’s health. There was fault in the way the Council delayed completing the support plan. This fault frustrated Ms Y. The Council has agreed to apologise, make a financial payment and remind staff of the importance of promptly reviewing and issuing support plans.

The complaint

1. Mr X complained about the way the Council dealt with his mother, Ms Y’s, care package. Mr X said the Council removed services from Ms Y’s care plan. He said the package is no longer flexible to meet her needs. Mr X said this impacted Ms Y’s health.

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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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a Council’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

4. I read Mr X’s complaint and spoke to him about it on the phone.
5. I considered information provided by Mr X and the Council.
6. Mr 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

Background information

7. 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)
8. 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. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
10. 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 Care and Support Statutory 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. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.
11. 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. They 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.
12. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. 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.
14. 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.
15. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
16. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

17. 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.

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. Ms Y has complex additional needs. The Council has provided care by a direct payment from 2001.
20. Ms Y previously had a joint health and social care budget. The health service removed this package of care in 2018. Since then, the Council has supported Ms Y by a direct payment.
21. The Council started a review of Ms Y’s care and support needs assessment in October 2021. Mr X previously complained about the care package and its costs to Ms Y. The Council removed all financial contributions before this time.
22. Mr X agreed to a new needs assessment in December 2021. The Council completed a telephone review of the support plan.
23. Mr X continued to communicate with the Council about the support plan, the financial assessment and disability related expenditure. He chased the Council for a draft of the care assessment in April 2022. The Council wanted more information from Mr X.
24. Mr X chased the Council for the assessment in June 2022. The Council advised it needed management approval.
25. Mr X chased the Council for the assessment again in July 2022. The Council advised it was proposing new costings to management. The Council advised managers were considering the case.
26. Mr X chased the Council for the assessment in August 2022 and September 2022.
27. The Council created the needs assessment in October 2022. It started to create the support plan.
28. Mr X chased the Council for an update in November 2022. The Council stated management was considering the case.
29. Mr X chased the Council about the plan in January 2023. The Council sent a copy of the plan to Mr X. It clarified it had not confirmed the plan.
30. In February 2023, Mr X said the support plan was an improvement on the last one but he wanted the plan to include more things such as paying for transport and less contributions from Ms Y.
31. Mr X continued to chase the Council for an agreed support plan. He asked the Council why it did not include items or services in previous plans. In March 2023 the Council advised Mr X, “no further care charges were due until the assessment was complete”.
32. Mr X complained to the Council in April 2023. He complained the Council was not allowing Ms Y to use her direct payment package flexibly. He said he wanted an increase in funding and different items and services included in the care and support plan or disability related expenditure.
33. The Council agreed Ms Y’s care and support plan, and budget, in May 2023. The Council responded to Mr X’s complaint the following day. It set out what Ms Y’s direct payment could be used for. The response explained it could not continue to fund some of the previous support plan, including transport costs. The Council advised it considered what Mr X presented as disability related expenses and it had considered these when deciding Ms Y’s financial contributions for her care. The response noted Ms Y had not paid the previously assessed contribution. The Council acknowledged delays in completing the review and apologised. The Council advised Mr X it assigned the budget to meet Ms Y’s social care needs and could not fund household items or other choices.
34. The Council completed a new financial assessment in June 2023. The assessment concluded Ms Y needed to contribute approximately £100 per week towards her care from the start of July 2023.
35. Mr X requested the Council escalate his complaint at the end of June 2023. He said he wanted to flexibly use the budget and he wanted the Council to agree to align the support plan with previous plans. He also set out issues with Ms Y’s contributions.
36. The Council responded to Mr X’s request to escalate his complaint in July 2023. The Council advised it created the support plan and budget to meet Ms Y’s needs. It confirmed it had considered all disability related expenses and concluded the financial assessment. The Council asked Ms Y to pay her assessed contributions.
37. The Council visited Mr X and Ms Y at her home in July 2023. Mr X raised further concerns about the assessment and support plan. Mr X asked for his complaint to be escalated again.
38. The Council agreed to consider his complaint further and continued to discuss the matter with Mr X. The Council provided its final response in November 2023. The response detailed Ms Y chose to have an agency which cost more than the Council’s hourly rate, so she would have to pay the difference. The Council confirmed it considered Mr X’s disability related expenditure request and advised it had included any costs relating to disability, above general household use. The Council repeated it would not pay for travel expenses as Ms Y’s benefits should cover travel. The Council asked Ms Y to pay her assessed contribution.
39. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to apologise and allow Ms Y to use her direct payment flexibly.
40. In response to my enquiries the Council stated it had identified delays and advised it had readdressed Mr X’s concerns several times. It said it did not have all the information needed to complete the assessment and support plan and this was the reason for some delay. The response confirmed the Council had offered lower cost services, but Ms Y declined the offers. The Council stated it is meeting Ms Y’s needs in accordance with policy and guidance.

My findings

41. We are not an appeal body. We do not take a second look at a decision to decide if it is wrong. We consider the process the Council followed to make its decision. If we considered it followed the process correctly, we cannot question whether the decision was right or wrong, regardless of whether the person disagrees with it.
42. Mr X challenged the Council’s financial assessment for Ms Y. Paragraph 7 sets out the Council can choose to charge for services it provides. The Council completed its assessment and decided to charge Ms Y a contribution towards her care. Mr X disagreed with the amount the Council assessed Ms Y needed to contribute. He said the Council needed to include other items as disability related expenditure. The Council considered the information Mr X provided and disagreed with him. The Council assessed Ms Y’s finances in line with legislation. There was no fault in how the Council completed its financial assessment, so I cannot question the outcome. There was no fault by the Council.
43. The Council assessed Ms Y’s social care needs in accordance with the Care Act. It decided Ms Y had eligible needs. The Council created the assessment and support plan, but Mr X disagreed with the plan. The Council has evidenced it considered all the information Mr X provided but disagreed with his requests. The Council is not refusing Ms Y the ability to use the plan flexibly, it is not agreeing to what Mr X wanted in the plan. The Council assessed what Mr X requested was not meeting an eligible Care Act need or Ms Y needed to pay for things from her benefits. There is no fault in how the Council completed its assessment when it decided the package of care, so I cannot question the decision. There was no fault by the Council.
44. However, the Council started Ms Y’s care and support plan in October 2021. The Council completed the plan and management signed it off in May 2023, 19 months later. Paragraph 12 confirmed the Care Act does not specify a timescale to complete reviews of the support plan. The Ombudsman expects a Council to sign off a support plan within a reasonable timescale. The Care Act also says the Council should review the plan every 12 months. The Council had not approved the plan at this time. While we appreciate the Council’s view it was engaging with Mr X in creating the plan, 19 months is not a reasonable timescale to issue a revised plan. This delay is fault, and this frustrated Ms Y and Mr X.

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Agreed action

45. To remedy the outstanding injustice caused to Mr X and Ms Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X and Ms Y for the delay issuing the care plan. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mr X £300 as an acknowledgement of the frustration, created by the Council’s delays completing the support plan.
• Remind relevant staff of the importance of completing timely reviews and issuing of support plans.
46. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

47. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X and Ms Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman