Summary: We do not uphold a complaint about a reduction in Mrs X’s care hours. The Council carried out a review of the care and support plan and agreed an increase in hours. The records indicate Mrs X declined those hours as she does not want personal assistants to do personal care.

The complaint

1. Mr and Mrs X complain the Council reduced Mrs X’s hours and so she doesn’t have enough funding to meet her care and support needs. They said this meant there was not enough money in the direct payment account to meet costs. This caused avoidable distress, inconvenience and a loss of care and support.
2. Mr and Mrs X raised specific issues about:
1. The case being closed;
2. Not getting copies of care and support plans;
3. Not providing minutes;
4. The social worker not engaging with Mrs X;
5. The Council not dealing with concerns about the care agency; and
6. Processes discriminating against disabled people (the peer group process of discussing cases.)

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
5. 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.

6. Mr and Mrs X complained about a reduction in PA hours from 24 to 19. which happened in 2022. I have not investigated this complaint because it is late and it was reasonable for him to have complained about this at the time. Mr X complained to us in November 2023. I have investigated matters from the review of Mrs X’s care and support plan which took place in 2023.

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How I considered this complaint

7. I considered the complaint to us, the Council’s response and documents in this statement. I discussed the complaint with Mr X
8. Mr and Mrs 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

Relevant law and guidance

9. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
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. This includes the practical and emotional support the carer provides to the adult. (Care Act 2014, section 10)
11. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Accessing work, training, education
• Making use of facilities or services in the community
• Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)

12. The Court decided:
• A council’s duty under section 9 of the Care Act 2014 is not to achieve the person’s desired outcomes but to assess whether the provision of care and support would contribute to those outcomes; and
• The wishes of the person may be a primary factor, but they are not an overriding consideration.

(R (Davey v Oxfordshire CC))

13. Where a council assesses a person and decides they have care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. (Care Act 2014, sections 24 and 25)
14. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
15. There are three ways in which a personal budget can be used:
• As a managed account held by the local authority;
• As a managed account held by a third party; and
• As a direct payment (a direct payment is money a person gives to a council to meet agreed needs). (Care and Support Statutory Guidance 2014)
16. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32).

Summary of key events

17. Mrs X has physical disabilities. She has a direct payment (DP) which she uses to employ personal assistants (PAs). She also has two half hourly calls a day from a care agency.
18. A social worker carried out a review of Mrs X’s care and support plan in July 2023. The record of the review said:
• The review was happening because Mr X’s health had declined and he had been advised not to carry out any more care for his wife;
• Mr and Mrs X and their friend were at the review;
• Mr and Mrs X said they were using the DP to fund 25 hours of support. The social worker said they only had 19 hours a week and this was why Mrs X was running out of money;
• There had been a reduction of 5 hours (in 2022) because those hours were supposed to be used to pay for personal care and were being used for tasks the Council refused to fund like window cleaning and a deep clean of the house;
• The social worker suggested Mr X had a carer’s assessment, he could then have carer’s funding allocated to him to use towards additional hours of cleaning;
• Mr X showed the social worker a calendar where he expected PAs to be available for support. The social worker said Mrs X did not need 24-hour care and the Council would not fund it because Mrs X can be left on her own;
• Staff from the care agency were present at the first part of the review meeting. Mr and Mrs X explained they were having issues with carers not staying the allocated time, not completing certain tasks, not being friendly and not providing rotas in good time. The carer’s manager said they would discuss this in supervision with the carers;
• Mrs X explained the PAs did breakfast, drinks, snacks, washing, hoovering, medication boxes, ironing, fetching things, putting shopping away, meals, gardening, dentist and hospital appointments. Mrs X said there was not enough time for accessing the community. The social worker said Mrs X was using too much time for cleaning and the Council would not pay for ironing. Mrs X said she would not use the PAs to provide personal care as she had known them a long time and they were friends;
• Mr X told the social worker he supported Mrs X with personal care in the mornings and changed bedding; and
• At night, carers assist with getting Mrs X undressed and ready for bed.
19. The social worker noted the service provided was:
• Two calls a day by an agency, morning and evening, 30 minutes each. For transfers and dressing/undressing;
• 19 hours a week of PA support. Reduced from 24 hours as the 24 hours included time for personal care. However, Mrs X’s PAs were not providing personal care. Mr X did personal care;
• Mrs X’s current DP package was:
1. Seven hours for meal preparation
2. Four hours for maintaining the home and laundry
3. Eight hours for accessing the community (including support to do hobbies like gardening and sewing) and
• The total care package was 19 hours DP and 7 hours agency.
20. The outcome of the review was the Council decided to fund a care package of 28.75 hours a week: 7 hours agency and 28.75 hours PA support with a DP. The new DP was:
1. Seven hours support with meals
2. Two hours cooking
3. One hour cleaning
4. Eight hours accessing the community, hobbies
5. One hour laundry
6. Five and a quarter hours personal care in the morning
7. One hour a week for ad hoc/emergency care
8. As well: seven hours agency care
21. The review noted this was an increase in care of 9.75 hours. Any additional funding for gardening and housework needed to be through a carer’s assessment.
22. The review set out a suggested timetable for care and support. It said Mrs X could use a combination of agency and PA support or just PAs.
23. The social worker wrote to Mrs X with the outcome of the review. The letter set out the increase in hours described in paragraph 20 and explained what Mrs X could use the hours for. It explained there had been a reduction in 2022 by 4 hours (to 19 hours) because Mrs X had not been using the 5 hours allocation of funding for personal care.
24. Mrs X’s care and support plan set out the Care Act outcomes under each of the eligibility headings and set out how the DP funding could be used. It also set out the agency funding.
25. Mr X, his informal advocate and two local councillors contacted various officers and managers in the Council about the reduction in Mrs X’s DP. Officers and managers explained the Council would not fund the number of weekly hours of non-personal care that Mrs X was seeking as this was excessive. And the professional view was Mrs X did not need someone to be present with her all the time and could be left on her own safely. The records indicate Mr and Mrs X received copies of the review and care and support plan and an explanation by email about closing Mrs X’s case which confirmed she could still contact the team by phone if she needed to.
26. Mr X complained to the Council. Its response set out a summary of the review and said Mrs X had declined the increase in hours as these were for personal care and she did not want PAs to do this. If she accepted the increase, this would allow her to have about four hours a day of PA support. The response went on to say, the Council had offered a carer’s assessment and officers had offered to visit them to agree a final care and support plan as well as offered an independent advocate.
27. Mrs X had an unpaid HMRC bill and she also had no funds left to pay the PAs wages in November 2023. The Council made a one-off payment of £3400 to pay the bill, pay the PAs and to include a contingency. The letter made it clear that the Council would not do this again and Mrs X only had DP funding to cover 19 hours a week and needed to stick to this budget.
28. Unhappy with the Council’s actions, Mr and Mrs X complained to us.

Findings

The DP hours

29. It is not the Ombudsman’s role to decide how many hours Mrs X should have as a DP. This is for the Council. Before making any changes to a person’s care and support plan, we expect a council to carry out a review. This is because the law and guidance say a council needs to review a person’s care and support needs before revising a care and support plan. The Council completed a review. Mr and Mrs X’s views were sought and considered in the review. So there is no fault.
30. The records indicate the Council offered Mr X a carer’s assessment as a way of potentially getting additional carer’s funding which could be used for additional PA hours for cleaning. Mr X refused a carer’s assessment. He is entitled to do so. It is not fault by the Council to have offered one.
31. The Council explained Mrs X’s DP account was running out because she continued to fund 25 hours of PA support, while only having 19 hours in her budget. The Council acted without fault by making an additional payment for HMRC. If Mrs X continues to engage PAs for 25 hours a week, she will have the same problem and will be responsible for resolving it.
32. The records indicate Mrs X has high standards of housekeeping. This is her preference, but it does not mean the Council has to fund her preferences. Mr and Mrs X expect 24-hour care for Mrs X. The Council’s view is she can be left safely alone. It is not our role to make this judgement.

The case being closed

33. Mr X was unhappy there was a lack of ongoing involvement by a social worker. An officer explained in an email the social worker’s role was to review the care and support plan and this had happened. There is no obligation for the Council to provide an ongoing allocated social worker. I do not uphold this complaint.

Not getting copies of care and support plans

34. Mr and Mr X have now had copies of care and support plans. The records indicate the social worker arranged for further copies to be posted after Mr X said he hadn’t received a copy. I do not uphold this complaint.

Not providing minutes

35. Mr and Mrs X have had a copy of the review because there is a reference to the social worker hand delivering it. I do not uphold this complaint.

The social worker not engaging with Mrs X

36. The social worker and many other council staff have engaged with Mr and Mrs X appropriately. I do not uphold this complaint.

The Council not dealing with concerns about the care agency

37. The review record shows the agency was present at the review and discussed concerns about agency care. A manager from the agency was going to speak to care staff in supervision. My view is the Council took appropriate action to resolve the concerns raised and I do not uphold this complaint.

Processes discriminating against disabled people – the peer group process of discussing cases

38. Councils are entitled to have internal procedures for discussing and checking cases and funding. This isn’t discriminatory.

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Final decision

39. We do not uphold a complaint about a reduction in Mrs X’s care hours. The Council carried out a review of the care and support plan, agreed an increase in hours. The records indicate Mrs X declined the hours as she does not want personal assistants to do personal care.
40. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman