The Ombudsman's final decision
Summary: Ms X complained the Council is failing to meet her eligible care needs, has not properly assessed her financial situation and has given her inconsistent information about her care costs. The Council has failed to show how Ms X’s eligible needs are met through her support plan and has failed to properly consider her disability related expenditure. This has caused Ms X frustration and uncertainty. The Council has agreed to apologise to Ms X and pay her £250 to acknowledge the frustration and uncertainty caused. It has also agreed to review her needs assessment, support plan and disability related expenditure.
The complaint
Ms X complains the Council is failing to meet her eligible care needs, has not properly assessed her financial situation and has given her inconsistent information about her care costs. Ms X says her care needs are not being met and she is being charged more than she can afford to pay. Ms X wants a reassessment of her care needs and her financial assessment revised.
The Ombudsman’s role and powers
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) We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I have considered the information provided by Ms X and discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries.
I gave Ms X and the Council the opportunity to comment on a draft of this decision and considered any comments I received in reaching a final decision.
What I found
The relevant law and guidance Assessment of needs 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. Where the council identifies “eligible” care needs it will prepare a care and support plan that sets out how those needs will be met. The council can meet the person’s eligible needs by arranging for a care provider to provide care.
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.
Charging for adult social care The Care Act 2014 sets out the legal framework for charging. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014. Charges may only cover the cost the council incurs.
The guidance sets out that councils ‘must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. However, this should take place if there is a change in circumstance or at the request of the person’.
Councils must assess a person’s finances to calculate how much an individual should contribute to the cost of their care. The assessment must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee).
If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. This is called disability related expenditure (DRE).
When councils calculate how much people should pay towards their adult social care costs, they may take most of the benefits people receive into account. However, councils must automatically disregard some income, including the mobility component of Personal Independence Payments (PIP). There is no requirement automatically to disregard the rest of PIP (the care component). However, statutory guidance, which councils must have regard to, says councils: ‘…need to ensure that in addition to the minimum guaranteed income or personal expenses allowance… people retain enough of their benefits to pay for things to meet those needs not being met by the local authority.’ (Care and Support Statutory Guidance, Annex C, paragraphs 14 and 15)
Background
Ms X has a diagnosis of autism and physical health conditions which affect her mobility. In 2019 the Council carried out a financial assessment. Within this the Council allowed DRE of £89.91 a week. This included expenditure related to specific debts, food delivery and a wheelchair loan. The financial assessment concluded Ms X was required to pay £6.74 a week towards her care costs.
Ms X is unable to safely access the bath in her property which has previously been assessed as unsuitable for adaptation.
What happened In January 2020 the Council updated Ms X’s needs assessment as her care provider changed. Ms X says she has not had a reassessment of her needs since 2018. The assessment noted Ms X liked to be as independent as possible. It also noted Ms X was able to make decisions about her finances and tenancy with support. She received support from the housing association to manage her tenancy. She required support to prepare meals, particularly hot meals due to the risk of burns. She could not lift heavy objects and required support to ensure she ate healthy and nutritious meals. She also required support to manage paperwork, keep her home clean, let her dog out, with shopping and preparing food and to ensure she was appropriately clothed. It noted Ms X was unable to access the main bathroom in the house which was upstairs. Twice a week Ms X needed help to ensure she maintained her personal hygiene as she was unable to get in and out of the bath safely. She also needed support from formal carers to assist with dressing and undressing. It noted Ms X could take her own medication but could be forgetful so required prompting.
The assessment recorded Ms X: was offered an occupational therapist referral for equipment to assist with bathing but Ms X did not wish to accept this; had high levels of anxiety in relation to accessing the community; required support to access the community; did not need regular night support; received occasional support from a friend who assisted with meal preparation and social contact.
Ms X’s support plan set out she would receive 12 hours a week of support over four days from the care agency to support her with: having adequate meals daily, caring for her dog, attending medical appointments and living in a clean and tidy environment. It set out Ms X required support to maintain her personal hygiene and to assist with dressing and undressing but did not set out how these needs would be met. Under personal care it set out Ms X required support with dressing and undressing, formal support to strip wash and prompting with medication. It said these needs were being met but did not say how or by whom. The support plan set out Ms X should contact the Council if she felt she required more support.
The social worker later sought advice from an Occupational Therapist (OT) regarding a bath aid. Ms X refused the bath aid as she did not consider it hygienic or safe.
In late January 2020 Ms X emailed and asked the Council to reduce the care package to three times a week as she was feeling better emotionally.
In June 2020 the care provider updated the social worker that care was still in place and working well. The social worker replied by email and said they had offered Ms X bathing equipment, but she did not want this or support with personal care due to her own personal reasons.
In late October 2020 Ms X’s social worker advised Ms X they were leaving their team and had ended their involvement. They noted Ms X had a package of support in place and if Ms X had a change in needs where she required a reassessment she should contact the duty team.
In February 2021 the finance team contacted Ms X to carry out a financial assessment as she had not had one for three years. The officer noted Ms X said she was never due a financial assessment unless the financial situation changed. Ms X was unwilling to discuss this with the officer. Following this Ms X emailed the Council to complain. Ms X said her care needs were far beyond the support the Council provided and she funded the rest of her care on top.
The finance team wrote to Ms X in late February 2021. They set out that a person receiving a care package will be financially assessed to see if they were liable to pay any contribution towards the care they received and this should be done annually. They advised Ms X would be financially assessed and other costs which were previously included as DRE in her financial assessment would be removed as they should have been paid off by now. They advised an officer would contact Ms X to complete the assessment. If Ms X chose not to engage a light touch financial assessment would be carried out using figures from the Department for Work and Pensions.
Ms X emailed the finance team in March 2021 with details of her outgoings. She said she had to pay £50 a week to a private carer as the Council was not meeting her needs. An officer called Ms X. They asked about the private care and Ms X advised she paid £50 a week for this. Ms X says the private carer supported her with personal care and batch cooking. Ms X confirmed previous loans and debts were paid off. The notes record the officer advised her of the possible change in charges. She asked that someone call her so she could set up a direct debit to pay her care charges. Ms X also said her previous social worker had left and she was not getting support and she had made numerous calls but had not had a response. The officer requested a social worker call Ms X to discuss this further.
An officer called Ms X the next day to set up a payment method. The officer noted M X disagreed with the care charges as she was having to pay privately for care on top of what the Council provided. The officer went through the unfinalised financial assessment with Ms X which had included the £50 a week as DRE. In line with this Ms X agreed to set up a payment of £27 a week. The notes record that two weeks later, in mid April 2021, an officer spoke to a manager who advised them to remove the £50 a week private care as this was not evidenced in the support plan.
The Council wrote to Ms X that day with the revised financial assessment. The letter said ‘please be advised following the telephone call completed we were unable to include the additional £50 per week you spent on a private carer, this is something you would need to discuss with a social worker’. The assessment calculated Ms X needed to pay £82.01 per week towards her care charges. It took into account Ms X’s Employment Support Allowance (ESA) and the care component of her PIP. It allowed an amount for water rates and a standard DRE figure of £10 and ensured it left her with the minimum income guarantee.
Ms X emailed the Council on receipt of the letter. She was unhappy, having been told on the phone the payment would be £27 a week. Ms X then complained to the Council and stated it carried out a financial assessment and gave her a figure of £27 a week which she set up a standing order to pay. Ms X considered this a verbal contract. The Council then wrote requiring her to pay £82 a week. Ms X also complained the Council had failed to consistently implement the Equality Act when it came to helping her communicate effectively, knowing she had autism.
In relation to the £50 Ms X paid a private carer, the Council noted in its records that Ms X could not evidence this and it could not condone cash transactions. It noted there was no evidence in her care review that this was required.
The Council replied in May 2021. It explained it had communicated via email as this was how Ms X communicated with the Council. An officer had also phoned Ms X to discuss the financial assessment. It did not uphold the complaint and advised Ms X to call customer services if she required input from the social work team. It explained the financial assessment was provisional and it needed further information from Ms X about the payments she made for private care which she purchased for £50 a week. It advised it could not include this cost without approval from social care. It said based on her current care package her assessed financial contribution was £82.01 per week. It said if she wished to appeal her assessed contribution, she should contact adult social care to request a review of her care package.
Ms X complained again to the Council in October 2021 and sent further emails in November and December 2021. She remained unhappy with the assessed contribution. The Council advised it had already considered the complaint and had no further comment to make. It advised her to call the customer access service if she required a care reassessment and referred her to us.
Findings
The Council amended Ms X’s needs assessment and support plan in January 2020 when her care agency changed. The support plan noted Ms X received a package of care to support her with having adequate meals daily, with the care of her dog, to attend appointments and to live in a clean and tidy environment. However, the support plan does not set out any support in relation to the identified eligible needs of being appropriately clothed, to maintaining her personal hygiene or to prompt her with medication. There is also no evidence the care provider was supporting her with cooking or meal preparation given it attended initially four and then only three times a week. Ms X has unmet eligible care needs and the needs assessment and support plan did not show how these were to be met, or record that Ms X had declined support offered. This is fault.
In June 2020 when the social worker contacted the care agency, they noted Ms X did not want personal care support due to her own personal reasons. However, there is nothing in the assessment or support plan to reflect this. It does not show how her personal care needs will be met or indicate that she had declined support with these tasks. However, the records indicated Ms X was happy with the care package she received from the agency and the records do not show Ms X complained or requested further support with her personal care until March 2021. This does, however, leave a sense of uncertainty over what was discussed, agreed and understood by Ms X in relation to her support package.
When the Council updated Ms X’s needs assessment and support plan in January 2020 there is no evidence it provided her with a copy and there is no evidence the Council has reviewed or reassessed Ms X’s care needs since that date. This is fault. The Council missed an opportunity to review Ms X’s care and to identify whether she required or would accept additional support to meet her eligible care needs.
The Council contacted Ms X in February 2021 to carry out a financial assessment. The care and support statutory guidance sets out that councils must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. It suggests this should be done annually. Ms X had not had a financial assessment for three years, and although this is less frequent that recommended, there is no evidence this caused any injustice. It was not fault for the Council to carry one out at this time.
It is not the Ombudsman’s role to decide the amount a person should contribute towards their care, or what DRE allowances should be included in a financial assessment, that is the Council’s role. The Ombudsman’s role to consider if there is any fault in the way the Council came to a decision.
The Council included the care component of Ms X’s PIP in its calculations but did not include the mobility component of her PIP. This is in line with the relevant law and guidance and is not fault.
The Council allowed its standard amount of £10 for DRE. Ms X says she pays £50 a week for private care. However, Ms X has not provided the Council with any evidence such as invoices, receipts or bank statements in support of these payments. There is no reference to Ms X employing a private carer within her needs assessment or support plan. Without such evidence the Council cannot include this as DRE and so it is not at fault.
When an officer spoke to Ms X in March 2021 she agreed to set up a direct debit for £27 a week to pay her care costs. The Council later wrote and explained it could not include the £50 a week she paid for private care in the assessment so her contribution was calculated as £82.01 per week. The letter set out how her contribution was calculated.
It may have been more helpful if the Council had finalised the financial assessment before phoning Ms X or had telephoned Ms X to explain this change prior to sending the letter. However, the letter explained the reasons for the change and in its complaint response the Council advised it would need further information to include the private care costs in the financial assessment.
Ms X provided a breakdown of her expenditure to the Council. Ms X says she pays for take aways as she does not receive support with cooking and preparing meals, which are eligible needs identified in her support plan. She also pays for a gardener and additional sensory items to support her autism. Ms X contacted the Council regularly following the financial assessment to request a review. The Council acted appropriately in referring Ms X to us but there is no evidence the Council explored with Ms X whether there was additional DRE it should take into account or whether her needs assessment and care and support plan required reviewing in the light of her concerns. This was fault which caused Ms X frustration and leaves a sense of uncertainty over whether her financial contribution was correctly calculated, and whether Ms X has been offered the support required to meet her needs.
Agreed action
Within one month of the final decision on this complaint the Council has agreed to apologise to Ms X and pay her £250 to acknowledge the frustration and uncertainty caused to her by the failure to review her care needs and to properly record how her needs would be met.
Within two months of the final decision the Council has agreed to review Ms X’s care needs assessment and support plan. It has also agreed to review her DRE to consider whether additional items should be included in light of her identified eligible care needs. Any changes to her DRE should be backdated to April 2021.
Within three months of the final decision, the Council has agreed to remind relevant officers of the need to ensure that care and support plans accurately record how the Council intends to meet a person’s eligible needs. If support is offered but declined, this should also be clearly recorded on the person’s records.
Final decision
I have completed my investigation. The Council was at fault which caused Ms X an injustice which it has agreed to remedy.
Investigator's decision on behalf of the Ombudsman