Summary: Mr X complained the Council and ICB failed to work together to provide him with a budget for support. We found no fault by the ICB or Council in how they worked together to provide Mr X with a budget for support. We found fault by the Council in its reference to older legislation in its Direct Payments contracts, which caused frustration to Mr X. The Council has taken action to update the contracts, and has agreed to send Mr X an updated version.

The complaint

1. Mr X complains that the City of Bradford Metropolitan District Council (the Council) and NHS West Yorkshire Integrated Care Board (the ICB) failed to work together to provide him with an integrated budget for both health and social care needs relating to his diagnosis of autism. Mr X says that while he was eligible for a direct payment from the Council, he should also have been eligible for a personal health budget from the ICB. Mr X complains these should have been integrated so he can purchase the support he needs.
2. Mr X says trying to navigate two separate processes to try and obtain the support he needs has caused him great stress and anxiety. Mr X also said he has experienced a lack of understanding of autism, and that he has fallen between the gaps of the two services. He says he has lost around a year’s worth of care that he could have had.
3. Mr X wants the Council and ICB to work together to provide him with an integrated health budget, so he has the flexibility to purchase the support he needs for both health and social care.

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The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
6. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
7. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I considered information from Mr X, the Council and the ICB.
9. Mr X, the Council and the ICB had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Personal Budgets

10. Everyone whose needs are met by the council must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money that has been allocated to meet the needs identified in the assessment and recorded in the plan. An indicative amount should be shared with the person, and anybody else involved at the start of care and support planning, with the final amount of the personal budget being confirmed through this process. The detail of how the personal budget will be used will be set out in the care and support plan. The personal budget must always be an amount sufficient to meet the person’s care and support needs.
11. There are three main ways in which a personal budget can be deployed:

• 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;
• as a direct payment (Care and Support Statutory Guidance 2014).

Personal Health Budgets

12. With a Personal Health Budget (PHB), people who are entitled to NHS continuing healthcare (CHC) can get their funding for both health and social care as a personal budget with which they can buy the care they need. This can be through direct payments. ICBs must ensure people who get a PHB have access to information and advice.

Delegating functions - NHS Act 2006

13. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.  
14. We will consider, in a complaint involving the NHS and the council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements.

Health and Care Act 2022

15. England’s 42 integrated care systems (known as ICSs) were formally established on 1 July 2022 as a result of the Health and Care Act 2022. They are ‘partnerships of organisations that come together to plan and deliver joined up health and care services’. ICSs have a clear focus on collaboration, prevention and care.

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What I found

Background

16. The Council assessed Mr X’s needs under the Care Act 2014 and found he was eligible for a personal budget. This was offered as a Direct Payment, and Mr X started an application for this.
17. After Mr X had begun his Direct Payment application with the Council, the ICB agreed an NHS Individual Funding Request (IFR). An IFR is when a clinician makes a request for funding for an individual when they consider the person would benefit from a treatment that is not usually available on the NHS.
18. Mr X asked the Council and ICB to provide him with a joint budget covering a Direct Payment and a Personal Health Budget. Mr X explained at the time of his request that the IFR would soon be coming to an end.
19. Mr X explained it had been onerous trying to navigate two separate processes: direct payments on the Council side and an IFR on the health side. Therefore, he sought a joint budget provided by both the Council and ICB so that all funding would be provided under one process, making it easier to deal with. Mr X said that under the Health and Care Act 2022, the services should be linked under one budget. He also raised concerns about how the Direct Payments contract was worded, as he said it referred to older legislation rather than the Health and Care Act 2022.

Complaint to the ICB

20. The ICB considered Mr X’s concerns under its complaint process. In the meantime, the Council advised Mr X to continue with the Direct Payments process, so that he would have some support in place while his complaint was being considered. Mr X later decided to continue with the Direct Payments process.
21. The ICB responded to Mr X’s complaint about Personal Health Budgets, and how the ICB was implementing the Health and Care Act 2022. The Council responded to Mr X on his concerns about the Direct Payments process and the contract wording.
22. Mr X was dissatisfied with the responses he received and complained to the Ombudsmen.

Complaint about lack of joint funding arrangements

23. As noted above, Mr X complained that under the Health and Care Act 2022, health and care services should be linked to provide him with a joined-up budget for support for his health and social care needs.
24. Mr X was eligible for a personal budget for support from the Council. However, the ICB said Mr X was not eligible for a PHB.
25. The NHS England guidance on PHBs states the following groups have a legal right to have a PHB:

• adults in receipt of NHS Continuing Healthcare (NHS CHC funding)
• children and young people eligible for continuing care
• people eligible for aftercare services under section 117 of the Mental Health Act and
• people eligible for an NHS wheelchair.

26. In responding to Mr X’s complaint, the ICB said Mr X did not meet the above criteria, and therefore he was not eligible for a PHB. The ICB said the usual process for a PHB is that the person is referred by a social worker or healthcare professional for assessment for NHS CHC funding, to determine whether there was a primary health need. It explained that therefore, the ICB policy on PHBs was not applicable for Mr X.
27. In its response to Mr X, the ICB acknowledged that the Health and Care Act 2022 aimed to deliver integrated care. However, it said the legislation did not specify the details of how collaboration should be achieved. The ICB also explained there are no combined or joint funding streams in its area for DPs and PHBs. It said that within the local health and care partnership, the organisations still had their own statutory responsibilities, and recommended Mr X speak to a social worker about receiving a direct payment from the Council and accessing support that way.
28. As noted above, a Section 75 agreement is when NHS organisations and councils to arrange to delegate their functions to one another. Both the Council and ICB said there was no local process that would allow them to link a budget for Mr X. The ICB said it worked collaboratively with the Council, particularly when a person was referred for a Continuing Healthcare checklist. However, it said in Mr X’s case, he was not eligible for a PHB.
29. Therefore I found no fault by the Council and ICB in not working together to provide a joint funding package for Mr X, as he was not eligible for a PHB and therefore there was no joint process for direct payments and PHBs that was available to him. The Direct Payments process was the only one for him to follow, and the Council and ICB communicated with each other and Mr X about this. Therefore I have not found fault by the Council or ICB in not offering a joint budget to Mr X.

Joint support for Mr X

30. The Care and Support Statutory Guidance, on cooperating generally, says a local authority must cooperate with each of its relevant partners (Section 6.78).
31. Both the ICB and the Council said they had worked collaboratively to help support Mr X. Following the Care Act assessment, Mr X’s social worker supported him with contacting his GP Practice and then the ICB regarding the NHS Independent Funding Request. The records indicate the ICB patient support team also liaised with the Council about the concerns Mr X had raised.
32. The ICB contacted Mr X to ask whether he wished for a joint response to his complaint, but I cannot see from the information provided whether Mr X specifically confirmed that he wanted a joint complaint response. The Council and ICB then sent Mr X separate responses to his complaint, although each referred to the involvement of the other organisation.
33. Therefore, while the Council and ICB did not have a system in place to offer a joint budget because Mr X was not eligible for a PHB, I found no fault in how they communicated with each other and Mr X so that he could access support and in responding to his complaint.
34. I recognise Mr X’s view that in seeking support through an IFR provided by the NHS, and DPs provided by the Council, he found navigating the two systems onerous. I appreciate this must have been difficult for him at a time when he was seeking support. However, the information provided indicates there was no joint process by which the Council and the ICB could offer a joint budget to Mr X, given he was not eligible for a PHB. However, the ICB and Council provided evidence to indicate they did communicate with each other to help support Mr X, and also offered to respond jointly to his complaint.
35. Therefore, based on the information I have seen at this stage, I have not found fault by the Council or the ICB in how they worked to support Mr X with funding for his support needs, and in handling his complaint.

Direct Payment contract

36. As part of his complaint that the Council and ICB did not work in line with the relevant legislation when providing his support, Mr X said the Council’s Direct Payments contract referenced the wrong legislation. Mr X complained the contract referred to the Community Care Act 1990, and the Health and Social Care Act 2001. Mr X said this was out of date, and should have referred to the Care Act 2014 and the Health and Care Act 2022.
37. The Council upheld Mr X’s complaint about the contract referring to the wrong legislation. It reviewed the contract paperwork, and made its Direct Payments team aware of the issue. The Council said it was in the process of updating its materials and would continue to use the current version of the contract until the new version was available to use in practice. The Council has taken reasonable steps to improve its services by updating the Direct Payment materials. However, I recognise the reference to the previous legislation was frustrating and confusing for Mr X. The Council has agreed to provide a remedy for Mr X on this point, as set out below.

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Agreed actions

38. I recommended that within three months of the final decision on this complaint, the Council:

• sends Mr X an updated version of the Direct Payments contract; and
• sends us confirmation that it has changed its Direct Payment contracts to reflect the current legislation, or tells us when it will do so, and provides us with an updated copy.

39. The Council has accepted my recommendation.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I found no fault by the Council and ICB in how they worked to support Mr X to access a joint budget for his support needs. I found fault by the Council in the wording of its Direct Payment contract, causing frustration to Mr X, and therefore uphold this part of Mr X’s complaint. The action the Council has agreed to take remedies the injustice to Mr X. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman