Summary: There was a long delay in reviewing the care package for Mr X which essentially left Mr and Mrs A to manage the care themselves. Subsequently there was a significant delay in resolving the Direct Payments budget for Mr X which caused considerable anxiety to his parents, Mr and Mrs A. The Council has agreed to apologise, offer a sum in acknowledgement of the distress caused by its failings, and take action to resolve the outstanding issues.

The complaint

1. Mr and Mrs A (the complainants) complain about the delay in resolving the budget for the care of their disabled adult son Mr A. The complain that the resources allocated were insufficient to pay the staff they needed to support Mr X. They also complain the Council has still not resolved the issue of Mr X’s disability-related expenses.

Back to top

The Ombudsman’s role and powers

2. 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)

Back to top

How I considered this complaint

3. I considered the information provided by the Council and by Mr and Mrs A. Both parties had the opportunity to comment on a draft of this statement and I considered their comments before I reached a final decision.

Back to top

What I found

Relevant law and guidance

4. 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.
5. 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.
6. 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 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.
7. 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)

8. 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.
9. NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
10. Where a package of support is commissioned or funded by both a council and an Integrated Care Board, this is known as a ‘joint package of care’. A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a council to meet.
11. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting.

What happened

12. Mr A lives in his own home supported by a package of care which the Council funds jointly with the local NHS and which is delivered through Direct Payments. Mrs X in particular developed a package of support for Mr X but more recently had to devote considerable time of her own because of difficulties in recruiting Personal Assistants (PAs) to support Mr X.
13. In October 2023 Mrs A complained to the Council that the budget had not been increased between 2015 and 2022, that no proper review had been carried out of Mr A’s care needs, that a promised 2.5% uplift of budget promised in May 2023 had not materialized and that she was finding it difficult to recruit PAs at the rate the Council would pay (which she thought was a blanket rate). She also complained that there had not been a carer’s assessment to show what she and Mr A were actually willing and able to do for Mr X.
14. The Council responded in December 2023. The operational manager who responded partly upheld Mrs A’s complaint about a delay in agreeing an uplift in the rate: she said following a reassessment of Mr A’s needs by a senior social worker in May 2023, the Council had written with an offer of hourly rates for PAs and agreed to honour a higher rate for the lead PA. She said the rates offered were over and above the ceiling rate which the Council had recently implemented for other clients (and not therefore a blanket rate as Mrs A suggested). She said the reason why the rate had not been implemented was because Mrs A had not agreed to the new rate and so there had been lengthy correspondence about the matter. She said, “To prevent any delays in (Mr X)'s support, we aim to finalise the most recent review and promptly proceed with the recommended costs”. Mrs A points out that she offered to discuss the new rates but had no response. She says the following correspondence was not in relation to the pay rate but the CHC funding concerns.
15. The manager also partly upheld Mrs A’s complaint that the budget was not ‘rationally sufficient” to meet Mr X’s eligible needs, which she said was demonstrated by the difficulty in recruiting staff. The manager said this was a nationwide problem but the Council had unusually agreed to Mrs A managing the recruitment herself because of the difficulties she was experiencing. The manager suggested other options such as a direct payment payroll service to assist with recruitment, or an agency. Mrs A says this was not ‘unusual’ and notes the Council’s policy on Direct Payments does not insist on the recruitment being managed by a third party.
16. The manager partly upheld Mrs A’s complaint that their reasonable request for a review had not met a timely response. She pointed out that the complexity of the situation had warranted a reassessment, which had been completed in May 2023, rather than a review; she added that the outcome of the reassessment had led to a recommendation that Mr X’s health needs were such that consideration should be given to 100% CHC funding. She said the NHS decision tool kit (the eligibility test) had been completed in November 2023 but the outcome remained in dispute.
17. Finally the manager said that a carer’s assessment had been completed and emailed to Mrs A in April 2023, so that aspect of the complaint was not upheld.
18. Mrs A complained to the Ombudsman. She said the Council had not given any rationale for how it had calculated the new Direct Payment rates. She said it had not yet paid the 2.5% uplift which it had agreed in April 2023. She said the lack of action and empathy by the Council had caused considerable stress and anxiety as well as impacting on her own mental health condition.
19. The Council’s sign-off form for the budget says, “For the last ten years [Mrs A says it is actually 17years, not 10] mum has used the direct payment to develop a comprehensive package of support for (Mr X), ensuring all of his needs are met, mum has been left to do this on her own with little to no oversight from COY until recent months. Unfortunately, it does not appear that since the initial set up of this direct payment in 2015 and 2022, that any review of this was completed. This has led to several issues within the direct payment budget including a lack of uplifts and excess spending within the direct payment budget”.
20. The form goes on to say that the current budget should be sufficient to pay the PA hourly rates but the Council had discovered that some of the budget was being spent on items not explicitly included in the care plan, such as a sensory garden, what it deemed excessive mileage, welfare activities etc. Mrs A says this is untrue and hurtful. She says, “during Covid the government encouraged direct payments to be used flexibly to mitigate the difficulties of the pandemic and not being able to get out. (Ref: Care Act easements: guidance for local authorities Gov UK). In view of this (the) then social worker…. agreed that (Mr X) could maintain £5k to enable him to develop and enjoy his garden and for craft activities he could do at home.”
21. The Council’s budget form said, “we have collaborated to come up with a budget that includes all the necessary elements of support broken down. This budget is now substantially higher in line with necessary increases.” There was reference to the dispute with the ICB over whether Mr X’s needs should attract CHC funding and the delay that had caused. The Council concluded, “Due to this delay, this amount should be backdated to 1st April 2023…. In addition a 2.5% 1 off uplift needs to be paid and backdated to 1st April 2024.” Mrs A says this has not happened: it has been backdated to 1 February 2024, not 1 April 2023.
22. The Council says the dispute with the ICB has not impacted on the resourcing of the support package. The Council legal team has challenged the ICB decision to stop funding 50% of the care package.
23. The Council says the care and support plan explains how stressful the situation was for Mrs A but says the carer’s support plan which was completed does not mention Mrs A’s own mental health concerns. It does indicate that she did not want a cash budget. Mrs A points out the assessment form from March 2023 says clearly that she” spoke about her own mental health and Bi Polar condition (sic), in the past she has become unwell when concerned about (Mr X) and his care and support”.
24. Mrs A says the outstanding Direct Payment increases have now finally been paid in December 2024. She says she still awaits the financial assessment of Mr X’s disability-related expenses.

Analysis

25. The Council failed for a long time to carry out the proper review of Mr X’s care and support needs. That left Mr and Mrs A to manage his care largely unsupported by the Council. That was fault which caused stress, anxiety and additional work for Mr and Mrs A.
26. There was a delay in paying the agreed uplifts. The Council says the budget was being managed in such a way that not all the elements were agreed in Mr X’s care plan, but as it had failed to review the care plan for a long period of time, it is not acceptable for it to blame Mr and Mrs A. The delay in paying the agreed uplifts was one factor which Mrs A believed impacted on her ability to recruit sufficient staff to cover the care package.
27. The dispute with the ICB did not impact on Mr X as the Council continued to fund the care package.
28. However, there was a lengthy delay in paying the agreed rate which caused considerable stress and anxiety for Mr and Mrs A. Mrs A says the Council has still not resolved the matter of Mr X’s disability-related expenses.

Back to top

Agreed action

29. Within one month of my final decision, the Council will apologise to Mr and Mrs A for the distress its delays have caused.
30. Within one month of my final decision the Council will offer £1000 to Mr and Mrs A in acknowledgement of the additional stress, anxiety and workload its inactions and failure to review and manage the care package properly have caused over a number of years;
31. Within one month of my final decision the Council will offer to review Mr and Mrs A’s carers’ assessments to ensure they meet their changing needs;
32. Within three months of my final decision the Council will provide me with evidence that Mr X’s disability-related expenses have been reviewed and that all necessary back payments (paragraph 21 above) have been made.
33. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

34. I have completed this investigation. I find that there was fault on the part of the Council which caused injustice to Mr and Mrs A. That injustice will be remedied by completion of the recommendations at paragraphs 29 – 32.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman