Summary: There was fault in the way the Council reviewed and changed a care plan. This has caused uncertainty about what the outcome would have been had all relevant matters been considered. The Council will apologise, make a symbolic payment and make service improvements. The Council has also agreed to carry out a reassessment.

The complaint

1. Ms X complains about the Council’s decision that her daughter, Y, should stop attending her current day centre and instead attend a cheaper provider. Ms X complains her needs and those of her daughter were not considered in line with the Care Act.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. As part of the investigation, I have considered the following:
• The complaint and the documents provided by Ms X.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014 (‘The Act’) and The Care and Support statutory guidance (‘The Guidance’).
• Department of Health and Social Care ‘Strengths-based approach: Practice Framework and Practice Handbook’, February 2019.
6. Ms X and the organisation 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

Care planning

7. 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.
8. The Government ‘Strength-based’ Framework, 2019 says ‘The concept of meeting needs recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into’, and ‘Promoting wellbeing does not mean simply looking at a need that corresponds to a particular service’, there should be a ‘genuine conversation about people’s needs for care and support and how meeting these can help them achieve the outcomes most important to them’. An assessment (or review) must be person-centred and a collaborative process.
9. Section 10.27 of the Guidance says in determining how to meet needs Councils may take into reasonable consideration its own financial and budgetary position when deciding how an individual’s needs should be met (but not whether those needs are met). However, the Council should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law duties. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.

Carer’s Assessment

10. Where somebody provides or intends to provide 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.
11. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
12. Carers should not feel coerced into providing more help than they can provide, which may be detrimental to their own wellbeing (Strengths-based approach: Practice Framework).

Reviews

13. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Care and Support Statutory Guidance says councils should review plans at least every 12 months.
14. The Guidance (Chapter 13) says reviews must be person-centered and outcomes-focused. The process must involve the person receiving care and also the carer where feasible. The review will help identify if a person’s needs have changed in which case a reassessment may be required. It should also identify other circumstances that may have changed. The Guidance says ‘The review must not be used as a mechanism to arbitrarily reduce the level of a person's personal budget’. A plan may however need changed even if the level of needs has not changed, for example because a carer’s availability may have changed. Where small changes are required, the Guidance suggests a proportionate ‘light touch’ approach.
15. Where the local authority is satisfied that a revision is necessary, it must work through the assessment and care planning processes of the Act to the extent that it thinks appropriate. The review should be a positive opportunity to take stock and consider if the plan is enabling the person to meet their needs and achieve their aspirations.
16. The law says, 'Where the local authority is proposing to change how it meets the person's needs, it must take all reasonable steps to reach agreement with the adult concerned about how it should meet those needs.' (Care Act 2014, Section 27)
17. The Guidance (13.13) says there are several different routes to reviewing a care and support or support plan including:
• a planned review (the date for which was set with the individual during care and support or support planning, or through general monitoring)
• an unplanned review (which results from a change in needs or circumstance that the local authority becomes aware of, for example, a fall or hospital admission)
• a requested review (where the person with the care and support or support plan, or their carer, family member, advocate or other interested party makes a request that a review is conducted. This may also be as the result of a change in needs or circumstances).

Personal Budgets

18. 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.

Direct payments

19. 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.

What happened

20. Y received support from adult social care under the Care Act 2014.
21. Y was attending Provider A, a day centre. From the documents I have seen Y has attended here since at least 2016. The care plan was updated in 2020, when costings for Provider A were £66.15 per day plus £12 per day transport (£312.60 per week).
22. A review of the care plan took place in Autumn 2023, at Ms X’s request, to move to direct payments instead of Council arranged support. It was noted Y continued to attend Provider A four days a week because Y ‘was not offered a five day a week service’. The Council suggested in response to my enquires this might have been because the day centre could not offer four days but Ms X told me it was because the Council had never assessed Y for funding for five days.
23. It was noted the short hours of the day centre meant Ms X never had a full day off. Ms X expressed a wish to work or volunteer. An option discussed was to employ a personal assistant (PA) for a few hours after the day service ended to allow for this. The social worker considered it would also benefit Y to go out with a PA in addition to attending the day centre. Ms X wanted Y to continue to attend Provider A but with extra support added to the care package.
24. Approximately ten days after the review discussion with Ms X and Y, the Council emailed other providers asking for ‘urgent day service provision’ for several customers from January, including Y. This was in response to the Council’s contract with Provider A ending. I cannot see this was raised with Ms X and Y in the previous discussion and review, although it is mentioned in the documentation completed subsequently.
25. The Council’s updated ‘strengths and need assessment’ document for Y states as there had been a change in need, a reassessment was required. However, it is specifically stated there had been nothing in Y’s life that had changed, and it was important that Y’s routine and lifestyle remained as unchanged as possible. The change justifying reassessment was in the status of Provider A, even though it turned out Provider A was not ceasing its service, and because Ms X had asked to move to direct payments. The Council confirmed to me it was the change in Provider A’s status that led to the review. It said it was uncertain whether Provider A was going to continue and so it carried out contingency planning for all the service users potentially affected, including Y.
26. In response to the Council’s requests to other daycare providers, Provider B replied they considered they could meet need and Y should visit.
27. Ms X appears to have been unaware of the consultation with other providers or change in the contract with Provider A when she chased the review outcome in December. Ms X was advised the request had gone to a funding panel. However, this did not include her request for additional hours, only whether Y should attend Provider A or move to Provider B.
28. When Ms X became aware the panel was considering Provider B she immediately telephoned the Council to say she considered only Provider A could support Y and did not want to look elsewhere. Ms X requested a direct payment to have choice of provision.
29. The ‘strengths and need assessment’ shows Y’s indicative budget was £480.61 per week and the cost of four days at Provider A was £307.16 per week (excluding transport). There was an issue about whether Y’s Personal Independence Payment (PIP) meant transport should be ‘removed’ from the package. Records showing the Council’s analysis indicate Ms X had declined two alternative providers as unsuitable being urban, not rural and because Y was settled at Provider A. The cost of Provider B was given as £203.20 per week for four days excluding transport.
30. Ms X asked for all communication going forward to be in writing. Ms X stated she was not refusing alternatives it was that the alternatives suggested were not suitable. Ms X requested five day per week support and said transport was non-negotiable and had always been provided. Y paid a contribution already towards care.
31. Following further correspondence, the officer was advised by a manager to submit the request to panel for a direct payment based on the lower daily cost of Provider B.
32. A funding application was then submitted to panel for Y which set out the respective costs of Provider A and B. The request explained:
• Provider B considered it was likely to be able to meet needs and was an urban setting;
• Y preferred quieter, rural settings;
• Ms X considered only Provider A suitable, and it would be disruptive for Y to move;
• Ms X had viewed the alternatives offered previously.
33. The application indicated five days had been requested but costs were provided on a four-day basis. No explanation for this was given. The request was for £50.80 ‘best value’ per day based on the cost of Provider B, but to be used towards Provider A (that is Ms X would have to top up the shortfall in the direct payment).
34. The direct payment of £203.20 per week was approved, a reduction in the previous budget. The Council explained its decision was based on best value as Provider B could meet needs at lower cost.
35. Ms X raised concerns the decision-making process was not in line with the Care Act, as well as concerns about how transport / Personal Independence Payment (PIP) and disability related expenditure (DRE) had been calculated. Ms X said Provider B could not meet Y’s needs, training or provide outdoor activities. Ms X requested four days at Provider A (£76.80 per day plus £12 per day transport), a weekly direct payment of £355.20. Ms X refused to sign the direct payment documents and has since continued to fund Provider A herself.
36. Ms X pointed out that the review had included a request to increase provision and the result had been provision had been reduced.
37. At appeal the Council upheld the decision the offer of Provider B was suitable.
38. The Council told me Ms X did not want to take on the role of employer via direct payments. The assessment does refer to this but says Ms X did want to use a PA but wanted support with finding and employing one.
39. Ms X told me Y was never offered additional PA support and she was never offered extra time off as a carer. Ms X says she was only ever offered Provider B and Y attended Provider A with council funding until the end of 2023.
40. Ms X told me her rationale for refusing a direct payment is because the Council is not offering equivalent provision in line with the Care Act
41. In response to my enquiries the Council indicated it considered it would be helpful to complete a new ‘strengths and needs assessment’ because it has not considered the need for five-day provision. It said it was unclear from the previous assessment why this was the case, and the officer who had completed the Autumn 2023 reassessment had now left the Council.

Analysis

42. It is not our role to carry out an assessment of Ms X or Y’s needs or to say what the care provision should be. I can only investigate whether the Council has properly assessed needs and fully explained how it reached its decisions.
43. The Care Act and the Guidance stress the importance of putting a person’s needs and wishes at the centre of the care planning process. If a Council is planning a change, particularly a reduction of support, it is even more vital that the person is consulted, given a chance to explain what their needs are, what outcomes they want to achieve and how this will affect their wellbeing.
44. I have found several areas of fault in how the Autumn 2023 review / ‘strengths and needs assessment’ was completed and the subsequent decision-making.
45. This was a parent requested review, which recognised Y’s needs had not changed. The only change in need was Ms X’s request to have more time to herself, that is Ms X was indicating the unpaid care she was ‘able and willing’ to provide was less than previously. Ms X also asked to move to direct payments. Ms X’s request for more hours of support was not considered and never put to the funding panel. This is fault.
46. That Ms X did not want to become an employer of PA’s using direct payments was not a barrier to additional support. Direct payments are voluntary; Ms X could have had a direct payment for the day centre support and Council provided PA’s.
47. The review coincided with the Council’s contractual relationship with Provider A changing. However, this was not necessarily a justification for a reduction in the budget. Provider A’s costs had not significantly changed since the previous review in 2020 and remained well below Y’s indicative budget. Provider A did not close its service.
48. The Guidance says a review must not be used as a mechanism to arbitrarily reduce a person's personal budget. While Y’s review did not start with the intention of reducing the budget, this appears to have become the focus when costs of alternative providers were received and were cheaper.
49. In determining how to meet needs the Council may take its own finances into account but should not set arbitrary upper limits on the costs it is willing to pay. I find the Council has wrongly considered ‘best value’ as meaning choosing the cheapest option. It is not for me to say whether Provider A, B or another provider was ‘best value’. The decision about which provider was suitable needed to be made in a person-centred way and consider all factors, including Y’s wishes and desired outcomes, and the impact on Y of a change in provision. This did not happen and was fault.
50. The Council did not go back to the family to explain the issue with Provider A’s contract that had arisen after the initial meeting or gain their views about alternative providers. Ms X found out about this only when the request for funding was being prepared. I find Ms X and Y were not involved in any meaningful discussion before the Council decided the budget should be reduced. This is fault and not in line with the Care Act 2014, which says the client should be actively involved in the care review.
51. There is no explanation as to why Y was funded for only four not five days. This was a longstanding matter and the wording in the 2023 assessment suggests it was the result of a previous funding decision, not a decision based on Y’s needs or provider capacity. The matter of five-day provision was raised by Ms X and should have been considered. The Council has now accepted this and agreed to carry out a fresh ‘strengths and needs assessment’.
52. There is no satisfactory explanation why the additional support beyond the hours of the day centre which was recommended was not considered and approved. There is no requirement to use direct payments if PA support is required, this service can be arranged directly by the Council. The new assessment will also need to consider all the issues Ms X raised in the Autumn 2023 assessment about wishing to reduce the amount of unpaid care she would provide.
53. I have not investigated the issues about DRE and PIP. I understand Ms X has had the calculations reviewed subsequently and these will be addressed again when the Council carries out the fresh assessment.

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Agreed action

Within four weeks of my final decision:

54. The Council will apologise to Ms X for the faults I have identified and the distress and uncertainty this has caused her and Y.
55. The Council will pay Ms X £250 to acknowledge her time and trouble spent pursuing her complaint.
56. The Council will arrange a comprehensive reassessment of Y’s needs and Ms X’s needs as a carer and backdate the resulting direct payment to the date the Council stopped funding Provider A.
57. The Council will provide explanations and calculations to Ms X of how it has calculated DRE or deductions from benefits as part of the new assessment.
58. Within two months from the date of my final decision, the Council should provide evidence to the Ombudsman to demonstrate that it has reminded staff how ‘best value’ is to be determined and that this must not just be the cheapest option but be determined with consideration of the relevant matters set out in the Act and Guidance.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. There was fault in the way the Council reviewed a care plan and reduced provision. This has caused uncertainty about what the outcome would have been had all relevant matters been considered. I am satisfied that the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman