Summary: Ms Y complained on behalf of Miss X that the personal budget in her care plan did not meet her care and support needs. We find the Council at fault for not following the statutory guidance when it completed its assessment and care plan for Miss X, and for inadequate complaint handling. This caused significant distress and uncertainty. The Council has agreed to apologise, make a symbolic payment and make service improvements.

The complaint

1. Ms Y complains on behalf of her adult daughter Miss X about her care plan the Council completed in summer 2024. In particular, she complains the direct payment in the personal budget for nighttime care does not meet Miss X’s care needs because the rate is too low to employ carers for the hours required. She complained this caused significant distress and uncertainty.

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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 may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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(1), as amended)

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What I have and have not investigated

5. I have investigated the period from summer 2024 when the Council carried out an assessment of Miss X’s care and support needs, until January 2025 when the Council gave its final response to Ms Y’s complaints.
6. I have not investigated matters after January 2025 because we do not usually investigate matters that happened after a person has complained to us.

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How I considered this complaint

7. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
8. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

Assessments

9. 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.

Care Plans, Personal Budgets and direct payments

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. When preparing a care and support plan the council must involve any carer the adult has.
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.
12. 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.
13. 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)

14. 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.

Reviews of care and support plans

15. 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.
16. There are several different routes to reviewing a care and 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) (Care and Support Statutory Guidance 2014)

What happened

17. This is a summary of the key events. It is not a complete chronology of everything that happened. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
18. Miss X has complex and serious care and support needs. During the period I investigated she employed four personal assistants to provide her care. She paid them using direct payments.
19. In summer 2024 the Council completed a needs assessment with Miss X and Ms Y present. At that time Miss X had a young child and was pregnant. Another adult lived with her who provided some care, but was not employed or paid to do so.
20. The assessment recorded that Miss X and Ms Y both thought the current personal budget was not meeting Miss X’s needs. They both wished for her care from her personal assistants to be increased to 24 hour support seven days a week.
21. The Council recorded it was difficult to decide what Miss X’s permanent needs would be following the pregnancy and she had declined in her health.
22. The following month the Council produced a care plan including a personal budget. It provided her direct payments to employ personal assistants. It included the following:

• Weekly daytime care of 15 hours per day for five days Monday to Friday, and 3 hours on Sunday.
• Weekly nighttime care of 6 nights per week. This was £92.50 per night. It did not specify how many hours of waking nighttime care was covered.

23. It also included additional daytime and nighttime payments to accrue over time to be available for additional periods of care.
24. Miss X’s circumstances significantly changed. This included the birth of her second child, worsening of her health, and a reduction in support when the other adult stopped living with her.
25. The Council responded to Miss X’s change in circumstances with a home visit in October and calls to Ms Y and medical professionals involved in Miss X’s treatment and care. The Council requested information from the medical professionals to consider the impact on Miss X’s care needs.
26. At the end of November Ms Y complained to the Council that Miss X’s personal budget was not covering the care she required. She specifically complained about the waking night payment of £92.50. She said it was not enough to pay for a personal assistant for the remaining 9 hours per night that were not covered by the 15 hours per day of daytime care. It would be below minimum wage.
27. Shortly after the complaint, the Council said it agreed to increase the support hours temporarily. It offered commissioned overnight support for Miss X from an agency, but Ms Y declined the offer.
28. The Council responded to Ms Y in December. It said the waking night payment of £92.50 was a fixed rate that was set by the Council. It said it could not be amended or altered by Miss X’s social worker. It said it was the responsibility of the person receiving the direct payment to pay the personal assistants they employed at least the national living wage. It said if the personal assistants had agreed to work additional hours, Miss X would need to agree and pay them a top up payment.
29. Throughout December 2024 and January 2025 Ms Y complained to the Council several times. She repeated her concerns the waking night rate did not cover the hours required. She referred to the offer of commissioned support. She said the agency would cost extra. She also said and reiterated Miss X’s circumstances and home arrangements had significantly changed. She told the Council of Miss X’s worsening health and reduction in support. She said this meant her care needs had substantially increased. She repeated she thought Miss X needed 24 hour care every day. She said Miss X could not afford to pay for top up hours because she was on benefits and her full disability living allowance went toward her care package.
30. The Council responded to Ms Y’s concerns several times. It reiterated the waking night rate would not be increased and it was Miss X’s responsibility to ensure her personal assistants received the national living wage. It stated the current direct payment in the personal budget was not for 24 hour care and Miss X’s social worker said she does not have 24 hour care needs. It did not clarify how many hours of care the personal budget was for. It also did not clarify how many hours of care the social worker assessed her as needing.
31. It acknowledged it had considered increasing Miss X’s personal budget, but had deferred the decision to explore what support might be available from Children’s Services.
32. In early 2025 the Council told Ms Y it had arranged a meeting between Miss X’s social worker and other relevant staff. It said that was its final response.

Analysis

The assessment of Miss X’s care and support needs

33. I have considered the Council’s assessment against the guidance.
34. The assessment noted the things Miss X could do, and the things she needed support to do. It recorded the outcomes Miss X wanted to achieve across all the relevant criteria. It recorded Miss X and Ms Y’s view the number of hours of care needed to be increased to 24 hour care every day, especially when the new baby arrived.
35. It recorded that Ms Y found the current support plan confusing, not what was agreed, and that there must have been a misunderstanding when the previous hours of care were discussed.
36. The Council noted the other adult that lived with Miss X in the needs assessment. It indicated that person provided some care. The Council was not required to meet any needs which were being met by a carer who is willing and able to do so, but the statutory guidance states it should have recorded where that was the case. This would have ensured that the entirety of Miss X’s needs were identified. It would have enabled the Council to respond appropriately if the other adult felt unable or unwilling to carry out some or all of the caring they were previously providing.
37. However, the Council failed to adequately record which of Miss X’s care and support needs were being met by the other adult.
38. The Council failed to record adequate detail about the amount of care it had assessed Miss X as needing. It merely concluded it was presently difficult to decipher what Miss X’s permanent needs would be following her pregnancy.
39. For the reasons above the Council did not properly follow the guidance when completing Miss X’s assessment. It failed to adequately identify the entirety of Miss X care and support needs, and which of those needs were being met by the other adult that lived with her. It was therefore at fault. It caused injustice to Miss X in the form of significant distress and uncertainty.

The care plan and personal budget

40. The guidance states the Council should have produced a care plan and personal budget that provided Miss X clear information about her identified needs and the money allocated to meet those needs. However, because the Council failed to adequately identify the entirety of Miss X’s needs, her personal budget could not provide clear information on how it could meet them.
41. This was demonstrated when Ms Y complained to the Council the waking night allowance was inadequate to meet the number of hours of care Miss X required during the nighttime. The Council had failed to identify how many of hours of care Miss X needed during the assessment. Therefore it could not provide clear information about how many hours of care the waking night was allocated to meet. Or how Miss X’s needs were being met in any remaining hours not covered by the personal budget.
42. It was also demonstrated when Ms Y told the Council the other adult was no longer providing any care. The Council had failed to identify how much care Miss X was eligible for, and how much of that care was being met by the other adult. Therefore it could not provide clear information about how the personal budget could meet her needs because it did not know what shortfall in care had occurred.
43. The Council did not properly follow the guidance when completing Miss X’s care plan and personal budget. It was therefore at fault. It caused injustice to Miss X in the form of significant distress and uncertainty.

Reviewing the care and support plan

44. The Council was aware that Miss X’s circumstances had significantly changed in November and December 2024.
45. The Council said it did not review Miss X’s care and support plan in December because her physical health was fluctuating significantly. It said it was not in a position to assess her long-term needs.
46. I acknowledge the Council’s actions following the change of circumstances from October 2024 demonstrates it kept Miss X’s care needs under review, sought relevant information, and offered additional funded support. For these reasons I do not find fault with the Council’s decision not to conduct a review of Miss X’s care and support plan
47. However, the Council did not complete a review of Miss X’s care plan until May 2025. This was several months after her circumstances significantly changed and Ms Y raised specific concerns.
48. The statutory guidance says councils should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. I find the time that elapsed shows the Council did not properly follow the statutory guidance because it failed to review Miss X’s care and support plan in a timely manner. It was therefore at fault. This caused injustice to Miss X and Ms Y in the form of significant distress and uncertainty.
49. I note the Council has subsequently completed a review of Miss X’s care plan and it is aware of recent changes in her circumstances. It has provided information on the level of care it is currently providing and its plans to reassess Miss X when it is able to do so. I have not investigated this, but I have taken it in to account when considering remedies for the injustice.
50. I have considered all the injustice above with reference to our guidance on remedies. I have decided to recommend the Council apologise and make a symbolic payment to acknowledge the distress caused. I have also decided to recommend service improvements to reduce the likelihood of injustice to others in the future from similar faults.

The Council’s complaint handling

51. The Council’s complaint responses focused on repeating that the monetary sum of the waking night allowance element of Miss X’s personal budget was not flexible.
52. I acknowledge Ms Y’s complaints were mainly about the waking night allowance being inadequate to pay for the required number of hours to meet Miss X’s care needs. Ms Y focused on the waking night allowance because that was the element of the personal budget that was unclear to her.
53. Ms Y was correct that it was unclear. The Council has since clarified the waking night allowance did not cover an agreed number of hours, but could be between seven to nine hours. The upper end of this would still result in hourly payments below the national minimum wage. The Council’s failure to clarify that at the time was fault.
54. I note the Council has subsequently revisited its waking night allowance and it now clearly provides eight hours of care at a rate above the national minimum wage.
55. The Council’s complaint handling caused injustice in the form of time and trouble to Miss X and Ms Y as they were left without an adequate outcome.
56. I have considered this injustice with reference to our guidance on remedies. We recognise there is inevitably time and trouble involved in bringing a complaint. I have decided to recommend the Council apologise to acknowledge the injustice.

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Action

57. Within four weeks of the date of this decision the Council should:
1. Apologise to Miss X and Ms Y for the injustice caused in relation to the needs assessment, care plan, failure to review the care plan and complaint handling. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
2. Make a payment of £400 to Miss X to acknowledge the distress caused by the care assessment, care plan and personal budget faults.
58. Within 12 weeks of the date of this decision the Council should:
1. Remind relevant officers of the Council’s duties regarding the areas of fault identified in this decision. This should include:

• Assessments must record eligible needs at a level of detail that is adequate to prepare a clear care plan and personal budget.
• Assessments and care plans must identify any eligible needs being met by a carer who is willing and able to do so. This must be recorded at a level of detail that is adequate to enable a prompt and effective response by the Council to any changes in circumstances (for example a breakdown in the caring relationship).
• Care plans and personal budgets that identify hours of care must record an accurate number of hours that a person is eligible for. This is to ensure it is clear how many hours of care the personal budget has been allocated to provide.
• Care plans must be reviewed promptly in line with the statutory guidance on planned, unplanned and requested reviews. Reviews should not be delayed or deferred whilst waiting for information from other Council departments or partner agencies.

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

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Decision

60. For the reasons explained in the analysis section I find fault in the Council’s decisions regarding its care and support assessment and plan for Miss X, and its complaint handling, causing injustice. I uphold Miss X’s complaint. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman