The Ombudsman's final decision
Summary: Mrs X complains that the Council did not increase her direct payment in line with inflation and told her she couldn’t use an agency. We do not find the Council was at fault in this but we do find the Council was at fault in its delay alerting Mrs X to her overspending. We recommended the Council review Mrs X’s care and support plan and ensure her budget is enough to pay for adequate care and support. It has agreed to do this and backdate any shortfall.
The complaint
The complainant, whom I shall refer to as Mrs X, complains that the Council has failed to consider inflation in deciding the amount of her direct payments since 2015. She says the Council told her she shouldn’t use self-employed care workers on contract from an agency and that she is “making a choice to fund a [personal assistant] to cover your Live-In Carer breaks (2hrs a day), which is not an eligible need.”.
Mrs X says that in February 2021, she found she was running low on her direct payment funds and that the funding had not been increased since 2015. Mrs X says the average cost of a live in care worker has risen from £70 to over £90 and the introductory agency she used increased its fees. She has changed the agency she used for 10 years to reduce costs, but the direct payment is still not enough and the new agency is not good. She has had to pay the shortfall of over £7,000 from her personal savings and is now having to borrow money to pay her heating bill.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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 considered information from the Complainant and from the Council.
I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
Background
Reviews 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.
Personal Budgets 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.
There are three main ways a personal budget can be administered: as a managed account held by the local authority 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) Direct payments Direct payments are payments made to individuals who ask for one 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. The council has a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
What happened Mrs X lived at home with the support of care workers for many years. She received her personal budget through a direct payment and arranged her own care. Mrs X had live-in care workers from an introductory agency, and personal assistants to cover the live-in worker’s two hour breaks each day. The Council says her budget of £860.46 per week is sufficient to meet her needs and should also cover any contingency. It says she does not need someone available 24 hours a day as she is safe without a care worker for short periods during the day. Mrs X disagrees with the Council’s view. Mrs X employs both a live-in care worker at £808 per week, and personal assistants to cover their breaks at £210 per week and her budget is not enough for this.
Following a request from Mrs X, the Council offered to review Mrs X’s care and support plan in July 2021. Mrs X declined this as she wanted the Council to reassure her that her direct payment would be increased before proceeding.
Was there fault which caused injustice?
The Council provided a budget which it believed would cover the cost of Mrs X’s care and support. Mrs X commissioned care and support which was not in line with the Council’s care and support plan, and which cost considerably more than the budget she received. She did not address this with the Council and only recognised that the care she commissioned cost more than her budget in 2021. The Council should have identified, from its annual audits, that Mrs X was spending too much and was not operating her direct payment account in line with the agreement.
I did not ask whether the Council completed audits as required, but since it did not pick up on the significant overspend anyway, I consider it was at fault here. This contributed to Mrs X’s uncertainty about the support she was entitled to and should have been addressed before Mrs X had to borrow money for essential bills. Nevertheless, Mrs X did not accept the Council’s position when it responded to her complaint. She originally agreed to the terms of the direct payment, and this meant she could not commission care that was not affordable within the budget unless she paid towards it herself.
I am satisfied the Council did not object to the use of an agency, but that due to the care she commissioned, this cost more than she could afford within her budget.
The whole point of a review is to consider whether the care and support plan is meeting a person’s needs. The personal budget, and therefore the direct payment, is based on the person’s needs. The Council was therefore right to not agree an increase in Mrs X’s direct payment before completing the review.
Agreed action
To remedy the injustice identified above, I recommend the Council: Apologise to Mrs X in writing.
If it has not already, review Mrs X’s care and support plan, and consider whether the Council’s budget is realistic. If the budget is not realistic, it should consider whether it should have paid a higher budget since February 2021 and backdate any increase appropriately.
The Council has already written to Mrs X and visited her to begin the review. It should complete this within two months of my final decision.
Final decision
I have completed my investigation. The Council will remedy the injustice it caused when it completes the agreed actions.
Investigator's decision on behalf of the Ombudsman