Summary: Ms X complains the Council delayed in reviewing Ms Y’s care plan following an increase in the hourly rate of her care provider. The Council is at fault as it delayed in carrying out a review of Ms X’s care plan and making a decision on whether to increase its direct payment rates. As a result Ms Y did not receive sufficient care for over three years which caused significant distress to her. The Council has agreed to remedy this injustice by apologising and making a payment of £1000.

The complaint

1. Ms X complains on behalf of Ms Y. She complains that the Council failed to increase the direct payment hourly rate when Ms Y’s care provider increased their hourly rate from April 2018 onwards and failed to regularly and properly review Ms Y’s care needs, support plan and direct payments. As a result Ms Y’s direct payments were not sufficient to meet her care needs and she had to accept a reduced care package.

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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 Ms X;
• Discussed the issues with Ms X;
• Made enquiries of the Council and considered the information provided;
• Invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

5. 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 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.
6. 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.
7. 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, with the final amount of the personal budget confirmed 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.
8. Direct payments are monetary payments made to individuals who ask for one 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

9. Ms Y has a physical disability and requires a significant amount of care. Ms Y received a care package of 70 hours per week plus some overnight care. Ms Y employed a care agency to deliver the care which she paid for with direct payments.
10. In spring 2018 an organisation assisting Ms Y notified the Council that Ms Y’s care provider would be increasing their hourly rate by £1.17 per hour from April 2018. The care provider then contacted the Council to advise Ms Y’s care plan was no longer appropriate due to the increased hourly rate. The Council placed Ms Y on a waiting list for her care plan to be reviewed.
11. Ms Y’s representative at the time, Ms Z, contacted the Council a number of times to chase for a review of the care plan. The Council then allocated Ms Y’s review to officer 1, social worker in July 2018.
12. Ms Y was then due to go into hospital so she was unable to participate in the review until October 2018. Officer 1 visited Ms Y at her home to carry out the review. Ms Y’s representative at the time, Ms Z, was also present. The Council’s records note Ms Y did not require extra hours of care but needed an hourly rate uplift. Officer 1 advised Ms Y’s case needed approval from the local Divisional Service Availability meeting. The Council’s records also note that all clients of the care provider needed reviewing before a decision about increased costs could be made as they share night support. Officer 1 also asked for Ms Y’s consent for her to speak to her care provider about the support provided.
13. In January 2019, Ms Z contacted the Council to chase progress on the review. Ms Z advised Ms Y had reduced her care by 5 hours per week as she could not afford the full care package due to the care provider’s hourly rate increase.
14. In February 2019 officer 1 carried out a further visit to Ms Y to proceed with the review. The Council’s records note Ms Y had reduced her care package by five hours per week but the impact of this was unclear.
15. A Council record from mid April 2019 notes again that all people supported by care provider needed to be reviewed for an understanding of the costs and to address fairly. A further record notes the Council would be seeking a legal view on how to progress. There is no evidence to show the Council took this action.
16. In May 2019 officer 1 asked Ms Y for details on what tasks were missing from her everyday care to understand the impact caused by reducing her care package by five hours per week. Ms Z advised Ms Y could not have a shower at times.
17. The Council decided it should carry out a new care assessment to encompass all of Ms Y’s care needs. Ms Z questioned why a new care assessment was required. She considered the Council had sufficient information from its earlier meetings with Ms Z and her care needs had not changed. Ms Z complained about the delays since the Council first became aware of the care provider’s rate increase in 2018 and said she would be seeking back payment for Ms Y.
18. Between July and December 2019 the Council sought further information from Ms Z about a specific care need regarding her continence and asked Ms Y to complete its 24/7 grid which would provide more information on the care she was receiving. The Council also asked for more information on her night time care. The Council also carried out a partial care assessment. Its resource allocation system showed an indicative budget which was significantly less than Ms Y’s existing personal budget.
19. Ms Y’s assessment did not progress further between 2020 and July 2021. The Council has said this was due to the COVID-19 pandemic and Care Act easements in response to the pandemic.
20. Ms X made a complaint on behalf of Ms Y in October 2020 about the delay. The Council responded and said Ms Y’s review had been obstructed by Ms Z’s approach and unwillingness to work with the Council in a collaborative way. It had been clear since July 2019 about the information it needed to progress the assessment. It could not consider the uplift to Ms Y’s direct payment rate until the assessment was complete. The Council did not make automatic inflationary increases to direct payments.
21. The Council completed Ms Y’s assessment in September 2021. The Council assessed Ms Y as still requiring 70 hours of support plus overnight care. It agreed to uplift the direct payment rates for a period of six months while it obtained further information including the 27/7 grid to identify support needs.
22. Ms Y’s care provider then gave notice to end it service to her. The Council has now commissioned care for Ms Y.
23. Ms X has said the delay in carrying out the assessment and review of Ms Y’s care plan has caused significant distress to her. Ms Y also had no option but to reduce her care package by five hours which did not meet her needs. She needed to stay in bed for an extra half hour per day because of the lack of care provision.
24. In response to my enquiries the Council has said:

• A direct payment is not automatically increased annually. The Council’s policy is that it can only be resolved once a review is completed to fully understand the needs of the individual, how their outcomes are being met and the appropriate level of funding to support this.
• It experienced difficulties in completing reviews with Ms Y for an extended period of time due to lack of information and evidence available to enable a clear review. The Council made numerous requests for information about what needs were not being met following Ms Y’s decision to reduce the care package.
• It acknowledges there was a delay in allocating Ms Y’s case to a social worker between April and July 2018 as a result of a waiting list and it did not keep Ms Y updated.
• There was limited progress between April and May 2019 due to a lack of clarity with the social care and commissioning teams about how to address the fee increase.
• Contact was limited between February 2020 and July 2021 due to the COVID-19 pandemic. There was no contact from Ms Y during this time other than Ms X’s complaint.

Analysis

25. The Council was notified in spring 2018 that Ms Y’s care provider was increasing its hourly rates. It made its decision to uplift the direct payment rates in late 2021, over three years later. On balance, I consider there is fault by the Council which caused this delay.
26. The Council did not commence the review for four months following the notification that the care provider had increased its rates. I note Ms Y was not available until October 2018 due to a hospital admission. But this delay could have been avoided if the Council had started the review in a timely way.
27. The Council’s decision that it had to review all clients of the care provider also delayed matters in 2018 and 2019. It is not clear why the Council needed to make a decision based on all clients rather than individually. This was not relevant to Ms Y’s care needs and would not be a person-centred decision. The Council has acknowledged there was a lack of clarity between the social care and commissioning teams on how to deal with the hourly rate increase. This indicates the Council’s procedures for dealing with care providers’ increases in hourly rates are not clear.
28. I acknowledge Ms Y and Ms Z did not provide all the information requested by the Council in 2019. However, the Council made its decision that Ms Y’s care package should remain at 70 hours per week and agreed the uplift in 2021 for six months without all the information it had asked them to provide. I therefore see no reason why the Council could not, and should not, have made the decision on Ms Y’s care needs and agreed the uplift on the same basis in 2018.
29. I have not considered if the Council correctly applied the Care Act easements during the COVID-19 pandemic or the impact of the pandemic on its service delivery. This is because I consider the Council could have made a decision on Ms Y’s care needs and agreed the uplift in 2018. The impact of the pandemic is therefore not relevant to my consideration.
30. The Council’s policy is to review a person’s care plan if a care provider increases their hourly rate. The Council should therefore carry out the review in a timely way given an increase in the hourly rate could have an impact on whether the person can continue to buy sufficient care to fulfil the care plan. On balance, I consider the delays by the Council outlined above meant Ms Y did not receive sufficient care for a period of three and half years. The Council should remedy this injustice.
31. I understand Ms Y is seeking for the uplift in the direct payments to be backdated to 2018. I do not consider this is an appropriate or proportionate remedy. Ms Y reduced her care package and I understand did not pay for any services privately to replace the care she missed. But Ms Y was caused significant distress by not having sufficient care for over three years, including having to take measures such as staying in bed for longer. Ms Y was also anxious about whether she could stay in her house. The Council should make a payment of £1000 to Ms Y to acknowledge the distress caused. This payment is in accordance with our guidance on remedies.

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Agreed action

32. That the Council:
1. Sends a written apology and makes a payment of £1000 to Ms Y for the distress caused to her by its delay in making a decision on her care needs and uplift of her direct payment rate which caused her to miss out on sufficient care for over three years.
2. Reviews its procedures for dealing with care providers increased hourly rates to ensure officers are clear about the process for dealing with these and to ensure care plan reviews are carried out in a timely way. This is avoid the delays experienced in this case.
33. The Council should take the action at a) within one month and the action at b) within two months of my final decision.

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Final decision

34. The Council is at fault as it delayed in carrying out a review of Ms X’s care plan and making a decision on whether to increase its direct payment rates. As a result Ms Y did not receive sufficient care for over three years which caused significant distress to her. The Council has agreed to remedy this injustice in an appropriate and proportionate way so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman