Summary: Mr X complains the Council has failed to review/assess his needs properly, has failed to give him a personal budget which is sufficient to meet his eligible care needs and is denying him his reasonable preferences. The evidence does not support the claim that there has been fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to review/assess his needs properly, has failed to give him a personal budget which is sufficient to meet his eligible care needs and is denying him his reasonable preferences.

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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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X’s Advocate;
• discussed the complaint with the Advocate;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with the Advocate and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

5. Mr X is elderly and blind. He lives on his own. His family asked the Council to assess his needs in May 2017, as he had been paying for his own care but was running out of money. He had carers coming in twice a day: mornings to help with washing, dressing and breakfast; and evenings to help with an evening meal.
6. The assessment identifies the need for help with: dressing; undressing; washing his whole body; preparing meals; housework; shopping; managing finances. It says the Council would provide a package of care to meet these outcomes:
• managing and maintaining nutrition;
• maintaining personal hygiene;
• being appropriately clothed.
7. The assessment says Mr X’s family or “possible provision of domestic assistance” will meet these outcomes:
• being able to make use of the home safely;
• maintaining a habitable home environment.
8. It says his family will monitor:
• developing and maintaining family or other personal relationships;
• making use of necessary facilities in the local community, including public transport and recreational facilities or services.
9. Mr X’s 2017 care and support plan provided for a personal budget of £172.20 a week (£16.40 an hour), which the Council paid as a direct payment so he could continue to arrange his own care. This was to pay for a carer to visit for:
• 1 hour each morning to help with washing, dressing, showering at least once a week and breakfast;
• 30 minutes each evening to provide an evening meal.
10. The care and support plan says the Council would provide support or a personal budget to meet these outcomes:
• managing and maintaining nutrition – package of care to provide breakfast and evening meal;
• maintaining personal hygiene – package of care to prompt washing and help shower;
• being appropriately clothed – package of care to help dress/undress and prompt change of clothes when dirty;
• maintaining a habitable home environment – package of care to ensure floor spaces are kept clear and remove trip hazards;
• making use of necessary facilities in the local community, including public transport and recreational facilities or services – charity to offer day centre attendance.
11. At the request of his daughter, the Council reviewed Mr X’s package of care in March 2019. It spoke separately to Mr X and his daughter over the telephone. His daughter said he had stopped going out after having shingles in January 2018. She said it was expensive using a care agency to meet her father’s needs and was thinking about employing a Personal Assistant (PA). The Council said Mr X was receiving the agency rate of £16.44 an hour but this would go down to £12.00 if she employed a PA. Mr X said he was happy with the support he received, and didn’t want to change anything or go out during the day. The Council told Mr X’s daughter his needs had not changed and a charity may be able to help with social activities. She said it was difficult to find an agency which accepted the Council’s rate and she was not happy about having to pay more on top.
12. For the review the Council completed a Care Act Assessment. This says Mr X’s needs had not changed. It says he pays for an extra 30 minutes in the evenings so the carer can cook him an evening meal. The Council suggested ready meals so he would not need more than 30 minutes. It says Mr X pays privately for cleaning and paid carers to help with shopping, along with family. It says Mr X wants to achieve these goals:
• maintain a good level of personal hygiene – direct payment to support strip washing, showering and drying;
• to dress/undress and have clean clothes – direct payment to support prompting to get dressed/undressed and decide if clothes are clean/dirty;
• eat a balanced diet – direct payment to support preparing breakfast, lunch and dinner, heating up food and food shopping when needed;
• maintain a clean and habitable home to reduce the risk of falls – Mr X employs a cleaner. Direct payment to support with daily tasks such as changing bedding and tidying;
• regular social contact – daughter visits regularly and will try and find a volunteer visitor if Mr X agrees to this.
13. The Council told Mr X’s daughter it could commission his care (avoiding the need for a top-up). She said he had had a brief period of commissioned care but was not happy with it because of the variable times the carers came in. She said they preferred the choice and flexibility provided by direct payments, so did not take up the Council’s offer.
14. Mr X’s care and support provided for a personal budget of £177.24 a week based on an hourly rate of £16.88 for 10.5 hours a week.
15. Mr X’s Advocate complained to the Council in August, saying it had not done a proportionate review of his needs or provided a personal budget sufficient to meet his eligible care needs. He said the Council’s hourly rate was £17.56 but Mr X’s daughter could not find domestic support for less than £17.95 or personal care for less than £23.
16. When the Council replied in October it said:
• Mr X agreed to have an assessment over the telephone and clearly expressed his views, which it corroborated with his daughter. This was a proportionate and appropriate way to address Mr X’s needs.
• The Care Act 2014 says a personal budget is a statement which reflects the cost to the local authority of meeting the needs which it is required to meet. The agency rate of £17.56 is based on the average cost to the Council of buying quality care. It is under no obligation to pay more if someone could source care for the rate it had set.
• It disputed the claim that it had failed to promote an effective marketplace of care providers in its area.
17. However, the Council offered to pay Mr X £23 an hour for 10.5 hours of care, provided he agree to the Council provisionally commissioning his care. If it could do this for less than £23 an hour, it would set his personal budget at that rate and Mr X could decide whether to let the Council commission his care, or continue to do so himself while making additional payments. If it could not commission care for less than £23 an hour it would continue to fund Mr X’s personal budget at that rate until such time that it identified a care agency which would do it for less.

Is there evidence of fault by the Council which caused injustice?

18. I cannot find fault with the Council for reassessing Mr X’s needs over the telephone. The Care and Support Statutory Guidance (the Guidance) says assessments need to be proportionate. It also says they can be done in different ways, including over the telephone. There is no evidence to suggest the Council would have made a different decision if it had assessed Mr X in person.
19. The Care Act 2014 says the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. The Guidance says there will be cases where a person or third party makes an additional payment to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. I cannot find fault with the Council for paying an hourly rate based on what it would expect to pay if it commissioned Mr X’s care. The Council has offered to increase Mr X’s personal budget until it can test out what it would actually cost it to commission Mr X’s care. But Mr X has not taken up the Council’s offer. That is his choice, but it does not mean the Council has to pay more than it is currently paying.
20. Under the Care Act, the Council has a duty to meet Mr X’s eligible care needs. It is not under a duty to meet his preferences. His assessment and care and support plan would have to identify the need for calls at fixed times or for meals to be cooked, rather than heated up, by a carer for them to become more than preferences. But they do not do so.

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Final decision

21. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman