Summary: Ms C complains about the Council’s decision to reduce her sister’s direct payment. I have found no procedural fault in the way the Council has reached its decision. It is however at fault for failing to address all Ms C’s complaints. To remedy the complaint the Council has agreed to apologise to Ms C and make service improvements.

The complaint

1. Ms C complains about services provided to her sister, Ms D. Ms C complains the Council wrongly reduced Ms D’s direct payment by half. Ms C also complains the Council failed to review Ms D’s care provision and respond to all her complaints.
2. Because of these failures Ms C says Ms D has not had the care she needs.

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The Ombudsman’s role and powers

3. 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)
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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What I have and have not investigated

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. I have not exercised the Ombudsman’s discretion to consider matters in 2023 at Ms C’s day centre. These included bullying and an incident of hitting. While I am aware Ms D would need to have support to make a complaint, I consider it would be impracticable to investigate the matters now. This is because of the likelihood of staff changes since the incident and that relevant records may no longer exist due to the passage of time.

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How I considered this complaint

7. I considered evidence provided by Ms C and the Council; and relevant law, policies and guidance.
8. Ms C 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

What should have happened

Assessment

9. Sections 9 and 10 of the Care Act 2014 says councils must 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.
10. The Care and Support (Eligibility Criteria) Regulations 2014 says a council has a duty to meet assessed eligible needs.

11. 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.
12. The Care and Support Statutory Guidance says,
13. “10.36 When developing the plan, there are certain elements that must always be incorporated in the final plan, [unless excluded by the Care and Support (Personal Budget Exclusion of Costs) Regulations 2014]. These are:
• the needs identified by the assessment,
• whether, and to what extent, the needs meet the eligibility criteria,
• the needs the authority is going to meet, and how it intends to do so,
• for a person needing care, for which of the desired outcomes care and support could be relevant,
• the personal budget,
• information and advice on what can be done to reduce the needs in question, and to prevent or delay the development of needs in the future.”

Carer’s Assessment

14. 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. This includes the practical and emotional support the carer provides to the adult.
15. 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)

What happened

16. Ms D lives in the community with her mother who I refer to as Mrs D. In May 2023 the Council assessed Ms D as needing 20 hours of care per week. Ms D used a direct payment to employ her sister Ms C to provide her with support including travelling to her day activities. This enabled Ms D to attend college twice a week and a day centre three days a week.
17. Because of an incident at the day centre Ms D stopped attending; the direct payment however remained the same. Ms C says the Council agreed to fund extra day support should the family identify alternative day care.
18. The Council records Ms C asked for extra support as Mrs D was unwell. An officer responded offering a carer’s assessment. The Council also records it told Ms C on 7 June it would not fund college courses and Ms D should fund these from her benefits.
19. In May 2024 the Council contacted Ms C asking of the whereabouts of Ms D and Mrs D as it needed to complete a review. It found that both were away, but later an officer met with Ms D and Mrs D to complete a review of Ms D’s care needs.
20. During the visit the officer told Mrs D the Council intended to reduce the direct payment as Ms D no longer attended the day centre and did not need support to access the day centre. Ms D was also now only attending college one day a week. The Council reduced the direct payment by half, this accounted for support to attend college and to engage in other activities such as going to the gym. Ms C was not present during the review and complained the remaining direct payment did not cover or consider the care Ms C and her mother continued to provide and pay for.
21. Ms C raised her concerns about the decrease with the officer. Ms C felt the officer’s response was unprofessional and insensitive inferring that Ms C’s primary concern was a drop in pay. The correspondence between the officer and Ms C became increasingly inappropriate.
22. Ms C made a formal complaint. The Council’s complaint response did not address the comments made by the reviewing officer or uphold Ms C’s complaints.
23. In response to my enquiries the Council says Mrs D has not had a carers assessment and is waiting for an assessment. The Council says it does not usually complete carer’s assessments for paid carers such as Ms C.

Is there fault causing injustice?

24. The Ombudsman is unable to criticise a professional judgement unless there is procedural fault. The Council has a duty to protect the public purse and can reduce a care package in line with assessed eligible needs. In this complaint Ms D had reduced her support at a day centre/college from five days per week to one. The Council assessed 20 hours per week support to access outside activities and gain her independence was more than Ms D needed. It therefore reduced this to 10 hours per week. This accounted for the support Ms C says she provided Ms D and support to access college once a week. While I understand Ms C is unhappy with this decision the Ombudsman can only criticise a decision if there is procedural fault. I have found no procedural fault in this part of the complaint.
25. I consider the support plan produced for Ms D is not in line with paragraph 10.36 of the Care and Support Statutory Guidance which sets out what a support plan must include. I have considered Ms D’s support plan and it identifies that Ms C needs supervision and prompting. These are needs which Mrs D has always met. I consider the Council is at fault for failing to clarify these are needs the Council does not have a duty to meet as Mrs D provides those services.
26. However I do not consider this fault has caused Ms D injustice. Other parts of the assessment say Mrs D supports Ms D in the home and the 20 hours originally assigned were only for activities outside the home. It is therefore more likely than not had the Council acted without fault its decision would not have changed. I would however suggest the Council amends the support plan to provide clarity.
27. The Council is also at fault for failing to properly consider whether Ms C is entitled to a carer’s assessment. While Ms C does provide paid care the Council should consider whether the support she provides outside of her paid hours entitles her to a carer’s assessment.
28. The relationship between the reviewing officer and Ms C broke down. The Council failed to address Ms C’s specific complaints about the reviewing officer. While councils should be proportionate in their complaint responses they should provide a substantive response to complaints made. I therefore consider the Council’s failure to consider this part of the complaint is fault and Ms C has not had all her complaints addressed.

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Action

29. I have found fault causing injustice. I consider the following agreed actions are suitable to remedy the complaint.
30. Within one month of the final decision the Council will:
1. apologise to Ms C about the failure to properly respond to all her complaints;
2. consider and provide Ms C a reasoned decision about whether she is entitled to a carer’s assessment. If she is, complete a carer's assessment within this time frame;
3. respond to Ms C’s complaint about the attitude of the officer involved.
31. Within three months of the final decision the Council will:
1. remind staff dealing with complaints about addressing all substantive complaints;
2. remind relevant staff through a staff circular or team meetings about when to offer carer’s assessments and ensuring requests are followed through.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice. I have now ended my investigation and closed the complaint based on the agreed actions above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman