Summary: There was delay in arranging Mrs X’s care and support and interpreting service which caused a loss of service and affected not only Mrs X, but also Mr X, her informal carer, by causing distress and a loss of opportunity to have a break. There was also fault in complaint handling and a failure to make reasonable adjustments. There was some fault in the consideration of Mrs X’s disability related expenses, but this did not cause a financial loss. The Council will apologise, make payments to Mr X and take action set out in this statement.

The complaint

1. Mr X complained for his wife Mrs X that:
1. There was a six-month delay in arranging in place respite care
2. There was an overcharge
3. They never received a copy of the care and support plan
4. There was poor communication by the complaints team, a failure to respond to his complaint and a failure to make reasonable adjustments to enable Mrs X to give consent for Mr X to represent her in the complaint
2. Mr X also complained about discriminatory (sexist) remarks by an officer and about getting incorrect information about charging.

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What I have and have not investigated

3. I have investigated complaints 1(a) to 1 (d). I have not investigated the complaint at (2) because I do not consider there is significant injustice to Mr X, and Mrs X was not present during the call when the remarks were made and so is also not affected by injustice. And Mr X got the correct information about charging and so there is no injustice.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

5. 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)
6. 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

7. I considered Mr X’s complaint and discussed the complaint with him. I also considered documents set out in the next section of this statement and a recording of a call between Mr X and a member of staff from the Council’s complaints team.
8. Mr 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. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
10. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
11. Councils may charge people for care. To work out the charge, they take into account income and savings. Some types of income are not taken into account in a financial assessment. This is called ‘disregarded income’ and includes some benefits, earnings and some tax credits.
12. If a council includes disability benefits in the financial assessment, they must consider a person’s Disability Related Expenditure (DRE). DREs are expenses that a person has to pay connected to their disability. They are an allowance in a person’s financial assessment which may reduce their weekly charge (in some, but not all cases). DRE can include specialist items and services such as wheelchairs. They can also include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. Statutory guidance says:
• A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority.
• The care plan may be a starting point for considering DRE, but councils need to be flexible.
• DRE can be reasonable costs of gardening, cleaning or domestic help if necessary because of a person’s disability.
• It may be acceptable not to allow for items where a reasonable alternative is available at a lower cost. (Care and Support Statutory Guidance Annex C, 39 and 41)
13. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any organisation which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

14. Below is a summary of key events. I have not referred to every piece of information available, just the evidence relevant to the complaints I am investigating.

Mrs X’s care and support plan

15. Mrs X is deaf, has sight loss in one eye and has mobility issues. She communicates using British Sign Language (BSL).
16. Mr X provides most of Mrs X’s care and support. She also receives four hours a week of council-arranged home care. This care enables Mr X to have a break. The care worker sometimes accompanies Ms X on a trip to the community or she may have care in the home while Mr X rests.
17. Mrs X’s care and support plan of August 2021 said:
• She needed an interpreter to communicate and Mr X assisted with signing and advocacy as required
• She had problems with her right leg and used a stick for transfers
• Mrs X’s blood sugar needed close monitoring and Mr X checked this day and night. This was resulting in a high risk of carer breakdown because of his stress level.
• She had four hours a week of agency care.
18. The care and support plan was updated and approved by a manager in September 2022. It included the four hours of agency care in the September 2021 plan plus:
• 100 minutes a month from Interpreters Live (a BSL service). The weekly cost was £75 and a one off set up fee at £1250 plus VAT)

The total cost of the care package including Interpreters Live was £177.98 a week.

The Council’s actions to put in place the care and support in Mrs X’s care and support

19. In September 2021, a social worker made enquiries about whether there were any care workers who used BSL. There were none in the area. In October, the social worker told Mr X the Council could not find a care worker and there was a ‘gap’ in provision; because there were no care workers with BSL in the area.
20. In November, the social worker liaised with Ms X’s diabetic nurse and received advice that a care worker could easily be trained to support Mrs X with her diabetes. Also in November, the social worker liaised with a charity who provided BSL advocacy support, but they could not provide care workers with BSL. At the end of November, Mr X told the social worker he was becoming unwell due to stress.
21. The internal records indicate the social worker ended their involvement at the end of 2021 and the Council’s brokerage team was searching for a care provider for Ms X.
22. Mr X phoned the adult social care team at the start of February 2022 asking for an update about sourcing Mrs X’s care. The duty social worker left him a message saying staff were still looking for a care provider and would contact him when one was available.
23. At the start of March, Mr X spoke to the social worker who explained the request for a care package was on the Council’s brokerage system and was refreshed twice a week. A care agency said it could take Ms X’s care package. Mr X confirmed Mrs X could lip-read. The records suggest care started on 7 March. Ms X’s care worker did not use BSL. This was with Mrs X’s agreement.
24. Mr X and the social worker spoke in the last week of March. The social worker noted they read out Ms X’s care and support plan to Mr X and this had not changed, apart from the care worker did not have BSL. In April, Mr X told the social worker he was not sure he had a copy of the August 2021 care and support plan. The social worker said they would update the care and support plan.
25. Also in April, the social worker reviewed the care and support plan. Agency care had started and was working ok aside from some initial confusion about whether or not the care worker was insured to drive Mrs X. The social worker updated the care and support plan, but there was no change to the agreed provision of four hours. It is not clear whether the updated plan was sent to Mr and Mrs X.
26. In August 2022, Mr X asked if there was a BSL service that could be used electronically to support Ms X and the care worker to communicate. The social worker spoke to a national charity which suggested a live web BSL service. Mrs X’s care and support plan was then updated to include funding for this service.

Financial assessment, appeal against the financial assessment and complaint to the Council

27. A financial assessment officer (FAO) and Mr X spoke in the last week of March 2022 to complete a financial assessment for Mrs X. The FAO wrote to Mr X after the appointment asking for written evidence of Mrs X’s income and savings and for any DREs.
28. The FAO completed a financial assessment form. This set out Mrs X’s income, capital and deducted disregarded income. It included eye masks and a steam inhaler as DREs. Other items were not accepted as they were not connected to Mrs X’s disability or no evidence of expenditure was provided. I have summarised these below with the Council’s reasons in brackets:
• Printer and ink, tumble dryer (general household expense and not disability related)
• CCTV (general security. A doorbell ring camera could have been installed at a lower cost to allow Mrs X to check who was at the door)
• Dash camera (does not assist Mrs X’s disability to maintain driving)
• Mattress (purchased as a replacement item following a flood)
• Acupuncture, cleaning, gardening, repairs, energy costs (no evidence of expenditure)
• Vitamins, supplements and pads (query whether these can be provided free by the NHS)
29. At the end of March, the Council wrote to Mr and Mrs X with the charge. This was £141.19 a week from 7 March. The letter went on to explain that if the actual cost of Mrs X’s services was less than £141.19, then the lower amount would apply. The calculation included DRE of £2.06 (for eye masks and an inhaler)
30. The care agency collects client charges on behalf of the Council. Its records show it invoiced Mrs X for four hours a week of care at the hourly council contract rate for the first few weeks (£91.45) but after speaking to Mr X in April, reduced this to its private rate (£69.20).
31. Mr X complained to the Council in April about the matters I am considering and about other things. Mr X spoke to a council officer in April and said he wanted to appeal the financial assessment. The officer took down details over the phone. The appeal was allocated to a technical officer (TO). The TO and Mr X spoke by phone on three occasions in April. Mr X gave details of the DREs he wished to appeal. The TO explained the charging process. Mr X said Mrs X could not hang clothes out because of her disability and so required a tumble dryer and this should be a DRE.
32. The Council’s first appeal response said:
• The CCTV was 10 cameras and hardware. The system monitors more than just the person at the front door. Cheaper options for monitoring the front door were available at £50 to £100 and it was possible to connect the cheaper system to a TV.
• The tumble dryer is just a normal household item. They could use a cheaper item (clothes airer).
• Items needed to be purchased within the last 12 months to be included as DRE as the financial assessment was for the current year.
• The dashcam was a personal choice. Additional safety features on the car were not adaptations listed within the mobility scheme and were not incurred during the last 12 months.
• He needed to evidence cleaning, gardening, energy costs and odd jobs
• The complaint he had made would be dealt with separately.
33. The TO emailed Mr X a copy of the appeal response as he said he had not received it.
34. The Council emailed Mrs X at the start of May to seek her permission about the complaint Mr X had made about the delay in her care. Mrs X did not reply.
35. The TO spoke to Mr X about the complaint advising the Council had emailed Mrs X to seek her consent about the complaint. Mr X said Mrs X would need a BSL interpreter to discuss this. Internal records indicate an interpreter may have been booked. The records do not explain what happened about the interpreter, but the Council told me Mrs X’s consent had not been obtained. There is no evidence of an appointment between a member of the complaints team, Mrs X and an interpreter.
36. At the end of May, the TO and Mr X spoke about the tumble dryer. Mr X said Mrs X could not hang out washing and so this was an expense connected to her disability. He said they needed to buy a new one with a water can at the top as she could not empty one at the bottom of the machine.
37. The TO spoke to Mr X and gave him a number for the complaints team. The TO said there were technical problems with the number and the voicemail.
38. Mr X and the TO spoke several times in June. The TO advised he would review additional information from Mr X about DREs. He also explained the charging procedure and told Mr X the Council was organising a BSL interpreter to seek Mrs X’s consent to the complaint.
39. At the end of June, the TO gave a second appeal response regarding DREs. I have summarised this below:
• CCTV: The Council would allow the cost of a basic video doorbell system, but not the full cost of the system he installed
• Tumble dryer: Mr X said his wife could not hang out washing. This was refused as it is a household appliance. Cheaper options like a clothes airer were available
• Gardener was allowed
• Maintenance tasks like loft boarding and electrics are not disability expenses but would be general costs everyone would have to pay for
• He needed to provide an energy bill and projection. His estimate was less than the average usage so no DRE
• He needed to provide a letter confirming the vitamins and absorbent pants were needed for a health reason and were not available on the NHS
• Potatoes pasta and rice were just general foods and not an additional cost
• Personal Independence Payment (PIP) (care) is correctly included in the financial assessment
• PIP (mobility) has been disregarded
• The DREs for CCTV and gardening reduced the maximum weekly charge by about £7 to £134. As the actual cost of the care package was £91, Mrs X needed to pay £91, so the additional DRE made no difference.
• He needed to provide evidence of all purchases for the Council to consider them as DRE.
• The Council would take action to recover unpaid charges
• He had made a complaint which would be dealt with separately from the appeal of DRE.
40. In June and July there were several calls and emails between the TO and Mr X regarding the financial assessment and other issues. Mr X made it clear that typing emails was causing him pain due to his disability and was asking for phone calls instead.
41. At the start of July, Mr X managed to leave a voicemail on the complaints team answerphone. He said there was no ability to speak to anyone on the complaint team about his complaint and he needed calls because of a disability in his shoulder which meant he could not email. He said he had tried to call many times to leave messages but the TO said there was a problem with the answerphone.
42. Mr X and the complaints manager spoke in the middle of July. She emailed him after the call saying the Council’s complaints process had concluded and giving him contact details for the LGSCO. Mr X said during the call that he had received a copy of Mrs X’s care and support plan but not until seven weeks after the agency started providing care.
43. The TO and a member of staff from the care agency spoke in August. The agency explained it had at first charged Mrs X the Council’s hourly rate, but after the first three weeks it had charged its lower private rate (because Mrs X had to pay the full cost of her care and therefore this would result in a lower cost to her). However, she had not paid anything. The Council took back responsibility for collecting the debt.
44. The Council told me:
• The complaints team did not answer phone calls because of ‘significant and unexpected understaffing’. Instead, callers had to leave a message which would then ‘be actioned.’
• It had recruited extra staff to the complaints team and ‘hoped’ to be able to answer phone calls.
• It had agreed to fund monthly BSL interpreting support for Ms X. This could be used to progress the complaint with the Council.

Was there fault and if so did this cause injustice?

There was a six-month delay in arranging in place respite care

45. There was fault by the Council. It assessed Mrs X to have an eligible unmet need for four hours a week of care with a BSL care worker to meet her communication needs. The Council has a duty under section 18 of the Care Act 2014 to meet Mrs X’s eligible unmet care needs. It did not for six months and so was at fault. It did not meet her communication needs for 12 months as a BSL interpreting service was not sourced and added to the care plan until September 2022. I note the availability of a BSL care worker was not within the Council’s control, but the duty to meet eligible needs still applies.
46. Mr X suggested BSL support via a web interpreting service in 2022, but it should not have been left to him to identify such services. Interpreters Live could and should have been identified as a way of meeting Mrs X’s communication needs and put in place from September 2021 when the Council first approved Mrs X’s care and support plan.
47. Mr X had to chase the Council for updates and the Council was not proactive in updating him. This was poor communication and was also fault.
48. Mr X suffered a loss of the opportunity to have a break from his caring responsibilities. This is a loss of service. The records note he said he was stressed from his caring role and there was a high risk of carer breakdown. This is injustice.
49. While Mrs X’s care needs were being met because Mr X provided care, she also suffered injustice because between March and August 2022 she did not have any BSL support available to her. So her communication needs may not have been fully met because the care worker does not use BSL.

There was an overcharge

50. This complaint is about the agency, which collects charges on behalf of the Council, invoicing Mrs X a lower private rate. Because Mrs X’s care package is for a small number of hours, her assessed charge was higher than the actual cost to the Council of the four hours care it arranged. In these circumstances, the person pays the actual cost of the care to the Council, rather than their assessed charge. This isn’t fault, it is just the way the financial assessment process may work out where a person only needs a small amount of care and support.
51. Agencies do not typically charge a lower hourly rate for their private customers, but unusually this one does. The agency was attempting to help Mrs X out by charging her the lower private rate. There is no evidence of an overcharge. In fact, the agency, which was acting on behalf of the Council in collecting the charge, was trying to be helpful. I do not consider there is fault. The agency’s actions put Mrs X in a better position.
52. In terms of Mrs X’s financial assessment and in particular, the assessment of DRE, overall I am satisfied the Council dealt with all apart from one item in line with Care and Support Statutory Guidance (CSSG). CSSG says councils may allow a lower cost item or to ask for evidence an item is not available for free on the NHS.
53. However,I do not consider the Council properly took into account evidence from Mr X that Mrs X could not use a clothes airer because of her disability. The TO who completed the appeal should have looked at Mrs X’s needs assessment or care and support plan and given a fuller explanation of why he rejected the claim. There was a failure to consider Mrs X’s care and support plan which said she had difficulties with transfers and walked with a stick. This indicates she may not have been able to remove washing from a washing machine and hang clothes out safely using an airer as was suggested in the appeal responses. While it is the case that a tumble drier is an everyday piece of household equipment, this does not prevent it from being allowable as a DRE. CSSG emphasises the need to be flexible and to look at a person’s care and support plan as a starting point. I do not consider the appeal considered Mrs X’s individual circumstances. This was fault.
54. Although there was a failure to give adequate consideration of the tumble dryer as an expense related to Mrs X’s disability, I do not consider this caused her an injustice. Because even if the outcome was to allow it as a DRE, it is unlikely to have lowered her charge. If anything, had the Council included the cost of Interpreters Live in the care and support plan from August 2021, it would have increased the amount Mrs X had to pay because the cost of her care (£177) was then more than her maximum weekly charge. So she would have had to pay the weekly assessed contribution of £134 following the appeal, as opposed to the lower amount of £91 which was the actual cost of care to the Council.

They never received a copy of the care and support plan

55. Mr X said in one of his calls that he could not remember receiving a copy of the care and support plan. I cannot say whether this was because it was not sent or because of a problem with the postal service. There is not enough evidence of fault by the Council. I note an officer read out the care and support plan on the phone to him so he knew what it said. I also note Mr X said in a call with a member of the complaints team that he had received a copy of the care and support plan about seven weeks after care started. So any injustice is minimal.

There was poor communication by the complaints team, a failure to respond to the complaint and a failure to make reasonable adjustments to enable Mrs X to give consent for Mr X to represent her in the complaint

56. There was fault by the Council in complaint handling. The evidence from Mr X suggests he made multiple attempts to phone the complaints team. The case notes indicate there was a known problem with the team’s answerphone. There was also a failure to deal with Mr X’s request for reasonable adjustments because of his own disability. And a failure to follow through with the promise to provide a BSL interpreter to go through the complaint with Mrs X and check she gave consent for Mr X to act as her representative. This was not in line with the principles in the Equality Act 2010 as I have set out in paragraph 13 and was fault. It caused Mr X avoidable frustration and time and trouble.

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Agreed action

57. The Council will within one month of my final decision:
• Apologise to Mr X for the avoidable frustration and time and trouble set out in the previous paragraph. Make Mr X a payment of £250 to recognise this;
• Make Mr X an additional payment of £1000 to reflect the avoidable stress caused by the six-month delay in arranging Mrs X’s respite care. This is primarily a loss of service to Mr X because he could not have a break from his caring role;
• Apologise to Mrs X using a BSL interpreter and make her a payment of £500 to reflect the avoidable distress caused by the failure to arrange BSL interpreting support. This can be offset against her debt. (But not Mr X’s payments);
• Ensure the complaints team has sufficient staffing levels to respond to customers who because of their disabilities, require phone calls.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. There was delay in arranging Mrs X’s care and support and interpreting service which caused a loss of service and affected not only Mrs X, but also Mr X, her informal carer, by causing distress and a loss of opportunity to have a break. There was also fault in complaint handling and a failure to make reasonable adjustments. There was some fault in the consideration of Mrs X’s disability related expenses, but this did not cause a financial loss. The Council will apologise, make payments to Mr X and take action set out in this statement.
60. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman