The Ombudsman's final decision
Summary: We have discontinued our investigation into a complaint about the Council’s assessment of the complainant’s care needs, because it is late. There is no evidence of fault by the Council in how it has managed the complainant’s direct payments, and it has offered to reassess the complainant to address this issue. We have therefore completed our investigation.
The complaint
I will refer to the complainant as Mrs K.
Mrs K complains the Council: reduced the hours of care it funds; and has been underpaying the funds into her direct payments account, leaving a shortfall which makes it difficult to pay her carers.
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. 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) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I reviewed Mrs K’s correspondence with the Council, her care needs assessment and her support plan.
I also shared a draft copy of this decision with each party for their comments.
What I found
Legal and administrative background Assessment 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
An adult with possible care and support needs or a carer may choose to refuse an assessment. In these circumstances councils do not have to carry out an assessment.
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 council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. 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.
Direct payments are monetary 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.
What happened Mrs K has a physical disability which severely limits her ability to carry out normal daily tasks. In 2013, the Council assessed her and agreed to provide direct payments, to allow her to arrange and pay for carers to visit her at home several times each day.
In March 2019, the Council carried out a reassessment of Mrs K’s needs. As a result of this assessment, the Council decided Mrs K’s morning care routine could be completed in one-and-a-half hours, instead of the two hours which had previously been allocated to this visit.
Mrs K made a complaint to the Ombudsman about this in December 2019. However, as she had not yet made a formal complaint to the Council about it, it was not eligible for investigation by the Ombudsman, and we wrote to Mrs K to explain this.
Mrs K says she wrote to the Ombudsman again in May 2020, but at that point the Ombudsman was temporarily closed and not accepting complaints.
Since then Mrs K has also been in a series of correspondence with the Council about the amount of money it is paying into her direct payment account, which she says consistently falls short. This culminated in Mrs K making two formal complaints to the Council in March 2022, and referring the matter to the Ombudsman again in May.
The Council responded to Mrs K’s complaints in June. It explained the shortfall was because Mrs K was paying her carers for more hours than the Council had agreed to fund, and also at higher hourly rates than it had agreed. The Council said it wished to carry out a further reassessment of Mrs K in an effort to regularise these matters.
However, Mrs K has consistently refused to accept a reassessment by the Council, and says that all the law requires is a “light touch” review of her care plan.
Analysis I will address each aspect of Mrs K’s complaint in turn.
The Council’s reduction of the care it funds Mrs K complains the Council decided she needed a morning visit of only one-and-a-half hours, instead of the two hours she had previously been receiving. Mrs K says it is not possible to complete her morning routine properly in one-and-a-half hours.
I should first note it is for the Council, not the Ombudsman, to assess and decide what Mrs K’s care needs are, and the time in which they can be met. We do not provide a right of appeal against the Council’s decision and so we could not, under any circumstances, overturn its decision or direct it to act against its own professional judgement. Our role is instead to review the way the Council made its decision, and to identify any administrative fault which may have affected the outcome.
Either way, however, in this case I will not investigate Mrs K’s complaint because it is late. The law says a person should approach the Ombudsman within 12mths of becoming aware of the issue they wish to complain about – this is called ‘the permitted period’. The Council made its decision to reduce Mrs K’s hours in March/April 2019, and so the permitted period had passed more than two years before Mrs K resubmitted her complaint to the Ombudsman in May 2022.
I am aware Mrs K approached the Ombudsman about this matter in December 2019, at which point the matter was in time, but she had not made a complaint to the Council at that point and so we could not investigate then. We wrote to Mrs K at the time to explain this.
I also note Mrs K says she approached us in May 2020, but at that time we were not accepting new complaints because of the COVID-19 pandemic. This is true, but we re-opened for new complaints in July 2020. I do not consider this is a reason to overlook the fact Mrs K then waited nearly two more years before coming back to the Ombudsman with her complaint.
The law does allow us some flexibility in the application of the time limit; but, in order to accept a late complaint, we must be satisfied there is a good reason for a person’s delay in approaching us. We must also be satisfied it remains possible to carry out a robust and meaningful investigation.
The Council has provided me with a copy of its correspondence with Mrs K going back several years. This demonstrates Mrs K was both willing and capable to maintain a dialogue with the Council about her complaints during the permitted period, and so I am satisfied it is reasonable to expect her to have made her complaint to the Ombudsman in that time.
I also note we have previously refused to investigate a different complaint of Mrs K’s because it was late, which means she should have been aware of our time limit.
In addition to this, even if I were to investigate the Council’s assessment, the key issue here is Mrs K’s disagreement with its conclusions about her needs. As I have explained, this is not something I can actually make my own decision about; and so, if I found fault with the Council’s decision, I would need to recommend it carry out a reassessment. The Council has already offered this, but Mrs K has refused to accept it.
Taking these points together, I have discontinued my investigation of this element of Mrs K’s complaint.
The underpayment of direct payments The Council funds Mrs K’s care through direct payments. However, Mrs K complains it had consistently underpaid these, leaving a shortfall in her direct payment account.
Direct payments are where a council pays money into an account held by the person receiving care, or someone acting on their behalf, to allow them to arrange and pay for their own carers. In this case, the Council has calculated its payments into the account by multiplying the hours it has agreed to fund, by what it considers a reasonable hourly rate for a carer, and then adding on some additional elements such as the cost of insurance.
Mrs K has produced tables showing the Council’s payments into the account going back to 2019. These payments match precisely what Mrs K’s support plan says they will be. There is nothing here to suggest the Council has been underpaying the account.
However, it is also clear from Mrs K’s information that she has been paying her carers at a consistently higher hourly rate than that set out in her support plan. The information also shows she has several different carers, each earning a different hourly rate. As the Council has said, this would appear to explain why its payments into account do not cover her carers’ invoices, and have been leaving a growing shortfall in the account.
The Council has also pointed out Mrs K is paying her carers for the additional time she considers she needs, but which the Council has not agreed to fund.
I do not consider there is anything to suggest fault by the Council here. It has done what it said it would. Mrs K is entitled to pay her carers as she considers appropriate, but it is inevitable the Council’s payments will not cover the additional amount if it has not agreed to these hours or rates. This is not fault.
The Council has, on several occasions, asked Mrs K to allow it to reassess her. This would lead to the creation of a new, updated support plan which would include a consideration of the appropriate hourly rates for carers providing the care Mrs K needs. This appears a pragmatic way forward here.
It would also give the Council an opportunity to reconsider Mrs K’s hours. And, if it decided to maintain its 2019 decision about the hours, or reduce them further, this would provide Mrs K with a new opportunity to make an (in time) complaint to the Ombudsman.
I find no fault with this element of Mrs K’s complaint.
Final decision
I have completed my investigation with a finding of no fault.
Investigator's decision on behalf of the Ombudsman