Summary: The Council is at fault as it failed to properly consider whether Miss X had fluctuating needs when carrying out care needs assessments so wrongly recommended her personal budget be reduced. The Council is also at fault as it cannot demonstrate it considered all Miss X’s claimed disability related expenditure. The faults by the Council caused significant distress and uncertainty to Miss X and put her to avoidable time and trouble which the Council has agreed to remedy.

The complaint

1. Miss X complains the Council:
1. Decided to reduce her care package from 24 hours per week to 3 hours per week. This caused significant distress to her and put her to avoidable time and trouble in having to challenge the decision;
2. Carried out a further assessment in 2017 which was inaccurate and caused distress to Miss X;
3. Carried out an inaccurate financial assessment and did not properly take account of all of Miss X’s disability related expenditure. As a result the Council is wrongly asking Miss X to pay a contribution to her care charges which she cannot afford.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 have:
• Considered the complaint and the information provided by Miss X;
• Discussed the issues with Miss X;
• Made enquiries of the Council and considered the information provided;
• Invited Miss X and the Council to comment on the draft decision.

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What I found

Care and Support Statutory Guidance

5. The Care and Support Statutory Guidance (the guidance) provides that the condition of an individual at the time of the assessment may not be entirely indicative of their needs more generally. So local authorities must consider whether an individual’s current level of need is likely to fluctuate and what their ongoing needs for care and support are likely to be. The local authority must consider a person’s care and support history over a period of time and may also take into account what fluctuations in need can be reasonably expected based on experience of others with a similar condition.

Financial assessment and Disability Related Expenditure

6. Councils can make charges for care and support services they provide or arrange. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. This is known as the minimum income guarantee (MIG). The MIG for 2018/19 for a single person, aged 25 or over but less than pension credit age was £91.40 and disability premium is £40.35. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances.

What happened

Care needs assessments

7. Miss X has Myalgic Encephalomyelitis (ME) and a number of other health conditions. The Council had assessed Miss X as being eligible for a care package. She received a personal budget for 24 hours of care per week. Miss X used direct payments to employ personal assistant (PA) to assist with her care needs.
8. In late 2016 officer A, a social worker, reassessed Miss X’s care needs. The assessment notes officer A discussed Miss X’s needs with her. Miss X advised each day was different and her needs depended on her energy levels. The Council then started to draw up a support plan to meet Miss X’s needs.
9. In May 2017 officer A and another officer visited Miss X to notify her that her personal budget would be reduced to three hours per week as the Council considered she did not have care needs which warranted 24 hours of care per week. The Council’s record of the visit notes the officers advised Miss X that the Council had made this decision as she was not using her direct payments as she had returned some funds to the Council. Miss X advised this was due to the Council’s delay of nine to ten months in 2015 in paying the direct payments which prevented her from employing a personal assistant (PA).
10. Miss X challenged the Council’s decision to reduce her personal budget. Eventually she made a complaint to a senior officer. The officer arranged to visit Miss X with officer A but this meeting did not take place. Miss X’s personal budget remained at 24 hours per week.
11. The Council arranged a further assessment for Miss X. This was carried out by officer B, a social worker, in July 2017. The assessment shows officer B noted Miss X’s needs changed on a daily basis and Miss X advised that due to her ME her energy levels changed from time to time. The Council’s records show officer B contacted Miss X’s GP practice for information. Miss X’s usual GP was not available so officer B spoke to another GP. Officer B also contacted Miss X’s dietician for information. Officer B recommended a personal budget of nine hours per week to meet Miss X’s care needs. Miss X challenged the assessment as she considered it was inaccurate and nine hours per week was insufficient to meet her needs. Miss X’s personal budget remained at 24 hours per week at this time.
12. The Council carried out a further assessment of Miss X’s needs in September 2017. Officer C carried out the assessment and identified that it was not possible to accurately predict the level of support Miss X required on a daily basis so she required some flexibility in her support. The Council assessed Miss X as requiring 27 hours of support per week. Miss X is satisfied with the outcome of this assessment.
13. I asked the Council to account for the different recommended personal budgets following each assessment as Miss X’s needs had not changed. The Council has said Miss X has fluctuating needs which were difficult for officers to assess. Officers A and B were unable to identify Miss X had care needs which warranted 24 hours of care per week. Miss X had also returned unused direct payments to the Council. Officer C arranged for the Council’s reablement service to visit Miss X at home to support and assess some of her needs. The Council has said this was vital in supporting officer C in assessing Miss X’s long term needs.

Disability Related Expenditure

14. The Council carried out a financial assessment for Miss X. It concluded she needed to pay a contribution of £58.77 towards her personal budget. Miss X said she could not afford to pay the contribution. Officer D, a financial assessment officer, visited Miss X to review her assessment. Miss X provided officer D with a list of expenditure which she considered to be disability related expenditure (DRE) and should be included in her financial assessment to reduce her contribution. Officer D carried out a temporary assessment which increased Miss X’s financial contribution.
15. Miss X made a complaint about how the Council had dealt with her care needs assessments and financial assessment. Officer E, a senior officer, did not uphold Miss X’s complaint regarding the care needs assessments. Officer E advised she would take legal advice regarding Miss X’s claimed DRE’s. In May 2018 officer E wrote to Miss X again. She advised the Council agreed to consider Miss X’s broadband and laundry powder as DRE but it did not agree Miss X’s heating and water costs should be DREs as she had not demonstrated they were higher than the average level. Miss X has said the Council did not ask her for her water bills and she has a water metre fitted. In July 2018 the Council carried out another financial assessment, including the DRE’s awarded. The assessment shows the Council applied the MIG of £133.32 and total DREs of £61.04. It calculated Miss X needed to make a contribution of £52.08 per week.
16. The Council has been unable to provide the legal advice it obtained at the time it considered Miss X’s financial assessment. The officer who gave the advice has summarised the advice given. However, the Council has not provided evidence to show it considered all Miss X’s full list of the DRE’s she is claiming.

My assessment

Care needs assessments

17. The Council is at fault in how it carried out Miss X’s care needs assessments and considered her care and support plans in late 2016 and July 2017. The Council has said Miss X had fluctuating care needs which were difficult to assess. But there is no evidence to show officer A and officer B considered whether Miss X’s needs fluctuated. The assessments show Miss X told officer A and B that her needs depended on her energy levels which fluctuated. There is no evidence to show the officers considered how this could affect her needs and level support required to meet those need. There is also no evidence to show the officers considered Miss X’s care and support history which may have shown Miss X’s needs fluctuated and why the Council had previously offered a personal budget of 24 hours per week. The guidance provides that councils should consider if a person has fluctuating needs. The Council’s failure to do so when assessing Miss X in late 2016 and July 2017 is fault.
18. The Council has said that officer C’s assessment was informed by referring Miss X to reablement for support and assessment. The Council could have referred Miss X to reablement for the earlier assessments if officers could not identify Miss X’s care needs and why her previous personal budget was 24 hours per week.
19. I have not considered whether officer B’s assessment contained inaccurate information. I consider the officers A and B’s assessments were inadequate as they did not properly consider Miss X’s fluctuating needs. Further consideration of whether officer B’s assessment contained inaccurate information will not achieve anything more for Miss X.

Financial assessment and DRE

20. The Council has applied the MIG to Miss X’s financial assessment and some DREs. But the Council has not demonstrated that it considered all the DRE’s requested by Miss X during her meeting with officer D. This is fault. The Council should be able to show it has properly considered all the DRE’s requested by Miss X and its decision on each one.

Injustice to Miss X

21. The Council’s failure to take account of Miss X’s fluctuating needs in the assessments of late 2016 and July 2017 has caused significant injustice to Miss X. The Council maintained Miss X’s personal budget at 24 hours per week while she challenged the assessments. So Miss X could continue to meet her care needs. But Miss X was caused significant distress by the Council’s intention to reduce her personal budget and she was put to avoidable time and trouble in having to challenge the Council’s decisions and complaint. This will inevitably have been more difficult for Miss X because of her medical conditions. The Council should remedy this injustice.
22. The Council’s failure to demonstrate that it has properly considered all Miss X’s requested DRE’s means she cannot be sure its financial assessment is correct and she is paying the correct contribution. The Council should remedy this uncertainty by reviewing Miss X’s requested DRE’s provided to officer D to see whether it should include more in her financial assessment.

Agreed action

23. That the Council:

1. Sends a written apology and makes a payment of £500 to Miss X to acknowledge the significant distress, avoidable time and trouble and uncertainty caused to her by the Council’s failure to properly assess her fluctuating needs, decisions to reduce her personal budget and failure to consider all her requested DREs. The Council should take this action within one month of my final decision.
2. Reviews the DRE’s requested by Miss X in her meeting with officer D and provide an explanation of the Council’s decisions to Miss X and the Ombudsman. If the Council considers it should include more DRE’s in Miss X’s financial assessment it should backdate these to the financial assessment of May 2018. If Miss X’s client contribution is reduced the Council should refund the excess paid by Miss X. The Council should take this action within one month of my final decision.
3. Reviews its guidance to officers carrying out care needs assessments to ensure they assess whether an individual has fluctuating needs in accordance with the Care and Support Statutory Guidance. The Council should take this action within three months of my final decision and explain to the Ombudsman how it intends to improve practice in this area.
4. Reviews its guidance to officers assessing claims for DRE’s to ensure all claimed DREs are considered and the Council’s decisions on each DRE are properly recorded, including the reasons for the decision. The Council should take this action within three months of my final decision and explain to the Ombudsman how it intends to improve practice in this area.

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Final decision

24. The Council is at fault as it failed to properly consider whether Miss X had fluctuating needs when carrying out care needs assessments so wrongly recommended that her personal budget be reduced. The Council is also at fault as it cannot demonstrate it considered all Miss X’s claimed disability related expenditure. The faults by the Council caused significant distress and uncertainty to Miss X and put her to avoidable time and trouble. The Council has agreed to remedy Miss X’s injustice as recommended so I have completed my investigation. Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman