• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms C complained the Council reduced her care support hours, asked her to contribute towards her care and tried to force her to have a managed account rather than direct payments. Ms C says she suffered a loss of independence and a detrimental impact on her finances. We have found fault by the Council due to delay and poor record keeping but consider the agreed action of an increased period of waived fees together with a review of its processes for direct payments and care contributions provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains the Council has reduced her care support hours when there has been no change in her needs and is asking her to make a contribution towards her care. Ms C also complains the Council is trying to force her to have a managed account rather than direct payments. Ms C says because of the Council’s fault she has suffered a loss of independence and a detrimental impact on her finances.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, 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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How I considered this complaint

5. I read the papers provided by Ms C and discussed the complaint with her. I have also considered the Council’s response to my enquiries. I have explained my draft decision to Ms C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

Assessment

6. 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.
7. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

8. 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.

Reviews

9. 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.

Personal Budgets

10. 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. 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.
11. 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)

Direct payments

12. 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.

Charging for social care services

13. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
14. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

What happened

15. Ms C had a package of care in place from 2010. This was for 59.5 hours a week via Direct Payments (DP) and Ms C employed her own Personal Assistants (PAs). The Council says Ms C was assessed at the time as needing to pay £44 towards the cost of her care. Ms C did not pay the assessed contribution and the Council took no action to recover these payments.
16. The Council completed a telephone review in April 2020 which confirmed Ms C continued to have eligible needs and required the support of her PAs to help with daily living activities. This also noted the need for a face to face review as it was not clear from the telephone review that the care need amounted to the current level of hours being provided. The record of this review also set out Ms C’s agreement to send outstanding DP monitoring documents by post once she had copied them and that she needed to start paying her client contribution from April. It was also highlighted that the DP Agreement needed to be signed and returned as soon as possible. It was noted the DP could be moved to be managed by the Council if Ms C did not comply with its policy.
17. The Council recorded in May that Ms C had not paid her contribution since 2009 and that she had been advised she would need to contribute £66.34 towards her care from April 2020. Ms C telephoned the Council in May to say she had not been told she would need to pay towards her care. Ms C also said she had been told this would £48 in 2010 and asked why the amount had increased. The Council explained she would have received a letter from its finance team about her contribution. The Council’s records show a further financial assessment notification letter was sent to Ms C towards the end of May. The Council has not provided a copy of the letter. The Council also recorded it had advised Ms C her DP monitoring was not up to date despite several letters seeking this information.
18. The Council has provided a Direct Payments Agreement signed by Ms C dated 27 May. The sections setting out the gross amount of the DP, the amount of Ms C’s financial contribution to the cost of her care and resulting net DP payment and when this will start are not completed.
19. The Council wrote to Ms C in July about her DP. It noted Ms C had not provided the requested DP monitoring information or evidence to show DP funds which had been transferred to her personal account had been used to pay her PAs. The Council set out its intention to refer the DP account to a third-party payroll company to manage from August. This was to be discussed further at the upcoming review meeting.
20. The Council completed the face to face review in August. The record for this meeting refers to a previous 2019 review when a reduction in hours was discussed. It is recorded that the social worker provided a copy of the 2019 review by hand at the meeting and that it had also been discussed during the earlier telephone assessment. It was noted the previous review did not include any reference to using the DP to fund holidays. Ms C explained she had not been asked about this but that she would normally pay for 1 carer’s flight, accommodation and taxi fare and was planning a trip to Spain that year. The social worker advised this use was not included in Ms C’s support plan and must stop immediately. The issue around DP monitoring documents was also raised. The social worker confirmed Ms C needed a DP budget to assist with her care needs but not at the current level of hours and provided information about the appeal process. The proposed care hours were 29.45 weekly. Ms C also signed a further DP agreement at this meeting which is dated 12 August. The copy provided by the Council of this document is missing pages and so it is not possible to see if the sections setting out the gross amount of the DP, the amount of Ms C’s financial contribution to the cost of her care and resulting net DP payment and when this will start are completed.
21. The social worker explained the DP monitoring was a standard request and should be provided as set out in the DP agreement. The social worker noted she had provided details of the local Disabilities Advice Service which provided employment law, general DP advice and what training was available.
22. The social worker noted the following had been discussed at the above meeting:

• using DPs for holidays which was not on the support plan
• withdrawal of funds from DP account to private account
• DP account not up to date with monitoring
• client contributions from 2009 not paid
• from April 2020 client contribution of £66.34
• 2019 review
• April telephone review

23. Ms C telephoned the Council in early January 2021 about her DP. Ms C repeated she had not been told about having to contribute to her care costs. The Council referred to the information sent in May 2020 and her telephone call about the same issue at the time. The Council also referred to the signed DP agreement in which she agreed to the contribution. Ms C denied signing any such agreement.
24. The Council telephoned Ms C in June 2021 to explain it wanted to complete an occupational therapist (OT) assessment as part of a review of her needs in relation to her concerns about her current care hours. The Council completed this review in July with an OT. This noted the reduction from 59.5 hours to 29.45 hours and that Ms C disputed this reduction. Ms C stated the information about being able to stand and transfer was incorrect. A joint review joint with the OT was completed to assess transfers and moving/handling to establish if the current hours were meeting Ms C’s needs. It was noted Ms C was using more hours than agreed on her last care and support plan and was accruing debt as a result and that advice was provided. The joint decision was that 4 care calls during the day were enough to meet Ms C’s care and support needs and noted her DP hours could be used flexibly. It was also decided to increase the hours slightly to allow better access to the community. This review noted Ms C had still not provided DP monitoring information. The support plan records 34.75 hours weekly starting from the end of September. This also records that if Ms C did not provide monitoring information the DP would be managed by third party.
25. The Council completed a further review in August 2022 which confirmed the 34.75 hours weekly was enough to meet Ms C’s assessed needs. It also noted Ms C was still using 59.5 hours which was more than agreed in her last support plan. The Council raised both the outstanding DP monitoring information and client contribution arrears.
26. The Council has provided the Ombudsman with two financial assessments. The first assessment which does not include a date for when it was completed provides an amount of £87.19 for Ms C’s contribution towards the cost of her care. The second financial assessment is recorded as being completed on 13 September 2022. This provides an amount of £94.79 for Ms C’s contribution towards the cost of her care.
27. In its response to the Ombudsman, the Council has acknowledged the significant delay in the financial assessment process.
28. The Council says the current outstanding client contribution as at June 2023 was £38, 629.78. The Council has offered to waive the outstanding client contribution up until 27 May 2020 when Ms C signed the DP agreement. The waived debt would be £24,916.91.
29. The Council considers Ms C should pay the assessed financial contribution to her care of £94.79 from 28 May 2020. The outstanding amount from this date stands at £13,712.87. The Council has invited Ms C to contact it to discuss a suitable repayment plan.

My consideration

30. The Council has provided good evidence of the recent reviews of Ms C’s care and support needs which resulted in the reduction in the number of hours required to meet the assessed needs. I have found no evidence of fault in the way the Council has assessed Ms C’s needs or decided her care support hours.
31. There is also clear evidence that the Council has raised repeated issues with the management of Ms C’s DP. The signed agreement is clear that the DP can only be used to meet the agreed outcomes set out in the Care and Support Plan and the Council may suspend or terminate the DP if requested financial monitoring information is not provided. The agreement sets out the Council may provide four weeks notice to end the agreement or may end it with immediate effect if it is found the DP is being used illegally, inappropriately or not in the person’s best interests. At the point of Ms C’s complaint to the Ombudsman the Council had not taken action and the matter was ongoing. I have seen no evidence of fault in the Council’s contact with Ms C to advise her of the potential consequences of failing to comply with the terms of the DP agreement.
32. However, there is clear fault in the apparent failure of the Council to complete any financial assessment for the period from 2010 to 2020. I also note the only dated financial assessment provided is from September 2022. This provides an amount of £94.79 for Ms C’s contribution towards the cost of her care. The earlier DP agreements do not provide any financial information as noted above. I am satisfied Ms C was made aware of the need to contribute towards the costs of her care as this issue was discussed at her April 2020 telephone review, her own telephone call to the Council in May 2020, the subsequent face to face review meeting in August 2020 and Ms C’s further telephone call to the Council in January 2021. However, the Council has not provided a copy of a letter or other document advising Ms C of the outcome of any financial assessment or the amount of her assessed contribution before September 2022. This poor record keeping constitutes further fault.
33. On balance, and based on the information provided, I do not consider the Council’s proposal to waive outstanding fees to 27 May 2020 provides an adequate remedy to Ms C.

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Agreed action

34. The Council will take the following action to provide a suitable remedy to Ms C:
    • 1. increase the period of waived fees to the date of the September 2022 financial assessment and write to Ms C to confirm the amount of outstanding fees with details of what action is required to agree a suitable repayment schedule within one month of my final decision;
      2. review its direct payment process to ensure agreements are properly completed with the relevant financial information before signing within three months of my final decision;
      3. put in place arrangements to regularly review direct payment agreements to ensure they are being correctly managed and take prompt action as may be appropriate if this is not the case within three months of my final decision;
      4. review its financial assessment procedures to ensure assessments are regularly reviewed, a proper record is kept of all assessments and any client contribution is properly notified within three months of my final decision; and
      5. review its systems to identify how a failure to pay an assessed client contribution was not highlighted for several years and take such action as necessary to ensure this does not recur within three months of my final decision.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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