Richmond CCG

9. Ms I complains on behalf of her late partner, Mr E. She complains that Richmond CCG’s new budget, which it created on 22 November 2018, reduced the overall budget and did not cover all costs. She feels this has been done in error and the reasons have not been communicated properly.

10. Ms I also disagrees with the CCG, as it stated that previously, Ms I had been overpaying their PAs by paying them in gross and not net.

11. Lastly, Ms I complains that the CCG did not support her after saying it would help her find a third party organisation that would run payroll for five PAs and manage the budget for a small amount per month.

12. As a result of the above, Ms I states that she and Mr E have experienced stress and anxiety. Ms I also states that she spent a considerable amount of time in chasing answers from the CCG, which is time she could have spent with Mr E. Lastly, Ms I has experienced financial loss from having to borrow funds to cover Mr E’s needs.

13. As an outcome to her complaint, she would like acknowledgement of failings, service improvements and a review of the new budget. She would also like financial compensation and financial reimbursement for any financial loss she experienced as a consequence of the inadequate budget.

14. At the point Ms I brought her complaint to us, Mr E had advanced dementia and Parkinson’s disease. Mr E sadly died in January 2021.

15. Since 2016, Mr E had been receiving 24 hour continuing health care (CHC) funding. This is NHS funding provided to cover the health and social care needs of people with complex health needs. The CCG reviewed Mr E’s health needs annually.

16. In 2017, Mr E began receiving his CHC funding via a personal health budget (PHB). A PHB is not additional money to CHC funding. It is a way of spending money differently so that a patient can get the care they need. A personal health budget allows a patient to manage their healthcare and support such as treatments, equipment, and personal care, in a way that suits them.

17. In Mr E’s case, the PHB was handled by a third party, RUILS. This is when someone independent of the individual and the NHS holds the budget and makes the arrangements for the agreed care and support.

18. On 6 November 2018, the CCG says it visited Mr E. The outcome of this was a change in Mr E’s budget, contained within the Support Plan. A Support Plan is where an individual’s needs are outlined, how they can be met, what the budget is, and how it should be spent.

19. On 22 November 2018, the CCG wrote to RUILS and Ms I stating that the care package had been reduced from £13,539.98 per month to £9,631.29 per month. This would be effective from 1 December 2018.

Overpayment from 2017 budget

22. Following the creation of a new budget in November 2018, the CCG wrote to Ms I advising that the hourly rate was for gross pay (gross pay is the total amount earned) rather than net pay (the amount after expenses are deducted). The CCG said that Ms I was paying the incorrect amount.

23. Ms I wrote back to the CCG on numerous occasions from 30 November 2018 to January 2019 to address this issue. In this correspondence, Ms I disagreed that she had been paying the PAs the wrong amount and she provided the payslips to support this.

24. To see what should have happened, we looked at the Support Plans from 2017 and 2018, which contain the different budgets.

25. We have also looked at what information the CCG gave to Ms I, and whether it was in line with the NHS England Guidance on Direct Payments for Healthcare: Understanding the Regulations.

26. On reviewing the 2017 support plan, we can see that there is not much detail included. Importantly, we have not seen any evidence that the CCG distinguished between gross and net pay. The plan merely states that Ms I should pay the personal assistants (PAs) £11 per hour on weekdays, £13 for the weekday night, £14 for the weekend days and £16 for the weekend evenings.

27. Section 6.1 of the guidance is useful in explaining what information should be included in the support plan. It explains that:

‘Direct payments must be set at a level sufficient to cover the full cost of each of the services agreed in the care plan’.

28. And it also states

‘When calculating the budget, CCGs should ensure that they recognise the additional ‘hidden’ costs. For example, if someone is employing an assistant, they must ensure that there is sufficient funding available to cover the additional necessary costs of employment such as tax, National Insurance, training and development, pension contributions, any necessary insurance such as public liability, emergency cover and so on’.

29. We can see that the support plan from 2017 did not have the above information. While it listed a variety of elements the budget could be used on, it did not explain or detail what hidden costs were and how they applied to the budget.

30. Based on the evidence, we are of the view the CCG did not provide the information in line with the guidance. We do not agree with the CCG’s statement that Ms I paid the wrong amount, as Ms I used the budget in the way that it appeared in the Support Plan. The guidance is clear in outlining that it is the CCG’s responsibility to ensure that the Support Plan is clear, and it highlights any hidden costs. The CCG did not do this. We therefore consider that Ms I is not responsible for any overpayments that occurred in this period.

31. We can see the 2018 Support Plan was in line with the guidance, as the CCG included the Employment Costs which started from 1 December 2018, the PA hours, annual leave, national insurance contributions (NIC), Tax, and Pension in the new budget. We consider therefore that the new budget from December 2018 was in line with the guidance.

32. Regardless, the evidence shows there are failings in the way the CCG communicated the budget in the 2017 support plan.

33. Ms I states that the CCG’s accusations that she had been overpaying the PAs have caused considerable stress and anxiety, particularly as she believes this has affected the new budget from 2018. It has also caused considerable stress because of concerns the CCG might ask for the amount back, despite it being an error.

34. We acknowledge the stress and anxiety that this accusation has caused Ms I, particularly as the CCG did not comment on what this supposed error meant for her. While we cannot comment on whether this has affected the new budget (as we will consider this as a separate complaint), we recognise the stress and anxiety these failings have caused.

35. Our Principles for Remedy state where maladministration or poor service has led to injustice or hardship, public bodies should try to offer a remedy that returns the complainant to the position they would have been in otherwise.

36. We have looked at what the CCG has done to put things right. We contacted the CCG in September 2020 to share our emerging thinking regarding this complaint part. The CCG wrote to us on 9 October 2020 and acknowledged that the 2017 Support Plan did not clearly identify the gross and net pay. It acknowledged that it could have done things differently, and it has learned from this. The CCG has committed to ensuring there is a clear identification of both gross and net pay in future Support Plans, as well as hidden costs. We can see that the CCG has done this with Mr E’s support plan from November 2018.

37. We are satisfied that the CCG has taken the appropriate remedial action to ensure this type of error does not happen in the future. As previously mentioned, Mr E’s Support Plan dated November 2018 reflects that the CCG has changed this. These actions are in line with our Principles.

38. However, we cannot see that the CCG has acknowledged these failings to Ms I, and it has also not remedied Ms I’s personal injustice of stress and anxiety. We therefore uphold Ms I’s complaint and we have made some recommendations in the ‘Recommendations’ part of this report.

November 2018 Budget

39. Ms I states that on 22 November 2018, the CCG sent her a new budget, which was significantly lower than the previous one. The 2017 budget was £13,539.98 whereas the 2018 budget was £9,631.29 a month.

40. Ms I raised concerns that the decrease in budget would leave them with a very small amount of money after paying their five PAs. She told the CCG that after third-party fees and additional costs, it would leave Mr E with only £154.62, which would not cover the costs associated with NIC, tax, workplace pensions, cover for PAs, holiday pay and bank holiday rates.

41. On 30 November 2018, the CCG wrote to Ms I advising that the budget decrease did not affect the hours and pay. It explained that the hourly rate was the same as before, but this time it included the hidden costs. The CCG also advised that Ms I should make requests for recruitment, training, DBS checks and Employer’s Liability when needed, which Ms I agreed to. However, Ms I did not agree with the rate, stating that it was too low and it did not cover all the necessary expenses.

42. On 8 January 2019, the CCG wrote to Ms I and reiterated that there was no reduction in the package of care itself, but the PAs were previously being paid gross pay rate and not the net pay rate, which is why the budgets seemed to look different.

43. We have already found failings in the way the CCG communicated what rates were applicable in the previous budget. However, in this budget, we can see the CCG explained the cost breakdowns in line with the guidance.

44. We can see that the budget from 2017 was around £13,538. However, the 2018 monthly budget was around £9,631.29 per month. The 2018 budget had at least £3,900 less.

45. The records show that the CCG removed several elements from the 2017 budget. This includes employment liability insurance (£1.90 per week), DBS checks (£5.77 a week), payroll set up (£50, plus £20 per PA, £4.04 a week), RUILS support (£138.46 per week), PA recruitment and training (£76.92 per week), managed account set up (£0.58 per week), Managed account fee (£100 per month) and contingency (£433.33 a month). Monthly, this adds up to:

· Employment liability insurance = £8.23

· DBS checks = £25

· Payroll Setup = £17.51

· RUILS support = £599.99

· PA recruitment and training = £333.32

· Managed account set up = £2.50

· Managed account fee = £100

· Contingency = £433.33

· Total = £1519.88

46. Based on our calculations, the new 2018 budget is around £551 less a week with all the costs the CCG removed from the plans.

47. We can attribute some of the decrease in budget due to the above deductions, but there is a discrepancy between budgets that is not clear. We acknowledge that the CCG has attempted to communicate the issue of rates to Ms I once she raised concerns, but there is no clear explanation why the budget is lower after removing the agreed elements.

48. We are also not satisfied that the CCG communicated this to Ms I prior to the changes in order to avoid any confusion or errors, which is not in line with section 6.3 of the Guidance which states:

‘Before making a decision to stop or reduce a direct payment, wherever possible and appropriate, the CCG should consult with the person receiving it to enable any misunderstandings of inadvertent errors to be addressed, and enable any alternative arrangements to be made’.

49. It also states

‘Whenever a direct payment is reduced or stopped, the CCG must ensure that the person receiving the direct payment is given reasonable notice, and an explanation regarding the reasons for the CCG’s decision. This must be done in writing, and it should be accessible and understandable to the person involved’.

50. Overall, there is evidence that the 2018 budget is lower than the 2017 budget. There is no evidence that the CCG consulted Ms I prior to these changes. We recognise the CCG visited Ms I in November 2018, and it effected the new payment from 1 December 2018, but given the complexity of the changes, this is not a reasonable amount of time.

51. Based on the evidence we have considered so far, we can see there are failings in the way the budget was communicated to Ms I, particularly regarding the discrepancy between the budgets. We also cannot account in full for the changes to the budgets and the CCG’s explanation of this change.

52. Ms I says that as a consequence of the above failings, she has suffered an enormous amount of stress and anxiety, and she has spent considerable time in pursuing this.

53. She has explained that because of the lack of clarity, she has spent a significant amount of time chasing the CCG and having to make sure that the budget covered Mr E’s needs. Ms I has felt extreme distress at this because she feels that this time could have been spent with Mr E.

54. Ms I also felt considerable anxiety at the prospect of having a smaller budget, as this would have meant a loss in continuity of care. Ms I advised that the PAs they had were accustomed to Mr E, and this was particularly important as he had dementia.

55. We can see that from November 2018 to at least April 2019, Ms I experienced stress, anxiety, and time she could have spent with Mr E instead. We also recognise that Ms I felt considerable anxiety at the fear of not having enough money to cover Mr E’s needs. We believe that all these injustices could have been avoided had the CCG’s communication been more robust from November 2018.

56. Ms I has explained that following her complaint to the CCG and us, the budget the CCG created in 2018 did not cover the costs associated with Mr E’s care. Ms I has also advised that since 2018, the CCG has not reviewed the care plan or budget, so it has carried on until Mr E sadly died.

57. She told us that after the complaint, she was able to use the surplus from the previous budget, which covered Mr E’s care. However, she eventually had to source financial assistance through private means, as the budget was no longer fit for purpose. This caused Ms I further anxiety for her and Mr E, as well as financial loss.

58. The CCG has explained that the budget has not gone into deficit as far as it knows.

59. In order to see whether Ms I’s injustice has been remedied, we looked at the Principles for Remedy. We recognise that the CCG has attempted to respond to Ms I’s concerns following her complaint, particularly in relation to the rates. However, the CCG has not acknowledged it could have done things differently and in line with the above guidance. The CCG has also not acknowledged the stress and anxiety that this situation caused Ms I. Lastly, the CCG has not looked at whether the budget caused any financial loss for Ms I. As such, we do not consider that Ms I’s injustice has been rectified.

60. For this reason, we have made some recommendations in the ‘Recommendations’ section of our report.

Third Party Assistance

61. In her letter to the CCG on 10 January 2019, Ms I explained that she was very satisfied with the third party, RUILS. But she states that in November 2018, the CCG told her should she wish to remain with them, she would personally have to make up the cost between what the CCG pays for third party providers and what RUILS charged.

62. Ms I states that the CCG mentioned another third-party provider called Hestia, which was a cheaper alternative. Ms I said that she was open to alternatives, but she requested some more information from the CCG about this company and others in order to make comparisons regarding services and rates. However, she said the CCG hadn’t sent any.

63. In its response to us in October 2020, the CCG said that it met with Ms I on several occasions to discuss alternatives, particularly Hestia. The CCG explained that it did not have a contract with RUILS and that RUILS was not the preferred provider for the CCG.

64. We can also see that the CCG wrote to Ms I’s MP on 20 May 2019 and explained that there were some changes to the overall budget, but these were related to third party agencies. It states:

‘These are the amounts that Richmond CCG will pay to any third-party agency to provide the services above. Anything an agency decides to charge above this will be the responsibility of the individual if they wish to use an agency of their choice’.

65. We have reviewed the evidence the CCG sent us. There is evidence that the CCG knew it would be changing providers in March 2018. Internal correspondence from the CCG states that it would inform PHB recipients about these changes. We can see that the CCG wrote to Ms I on 26 March 2018 advising her that RUILS would no longer be providing any services on behalf of the CCG. This letter stated that she would be contacted by her case manager to discuss this further. However, Ms I says she did not receive this letter.

66. We can also see there is a document named ‘Personal Health Budget Managed Account Responsibilities’ which is a CCG document. This document is useful in explaining what the process regarding third-party providers is and what PHB recipients should expect from the CCG. This document states:

‘The case manager will provide information on the range of providers for DP support that can offer services to people In Richmond’

67. The CCG has said that it has spoken to Ms I on numerous occasions, and it has provided us with guidance that tells us what support it should be giving Ms I. However, apart from the letter dated 26 March 2018, and the information about RUILS in November 2018, we cannot see that the CCG provided further information. The CCG has supplied us with a leaflet detailing Hestia’s services, but there is no evidence it sent this leaflet to Ms I. There is also no evidence that it provided any information about additional providers as it said it would.

68. The CCG has provided a communication sheet, which details when it contacted Ms I. This communication sheet does not reflect any contact from the CCG or the case manager with Ms I. The only entry we were able to see was on 16 May 2019, which was six months after Ms I initially asked for support.

69. While there is evidence the CCG told Ms I that it would no longer be working with RUILS, there is no evidence it contacted Ms I or offered further support as it said it would in line with what it said and its own guidance. Our Principles of Good Administration state that public bodies should give people information and, if appropriate, advice that is clear, accurate, complete, relevant and timely. We can see that in this case, this did not happen.

70. Based on what we have, there are failings.

71. Ms I states that as a consequence of this, she has suffered stress and anxiety. We recognise this impact.

72. We recognise that Ms I was already experiencing stress and anxiety due to the new changes in the budget. Ms I was concerned at this stage that the budget would not cover Mr E’s health needs, so we understand that the CCG telling her she’d have to personally pay extra for the third-party will have been a cause of anxiety.

73. We can see that this stress and anxiety could have been avoided had the CCG contacted Ms I back in March 2018 when it said it would. The CCG missed several opportunities to provide Ms I with further information, and this will have undoubtedly worsened the anxiety and stress she experienced.

74. We looked at our Principles for Remedy to see whether the CCG has put things right, and we can see that the CCG has not acknowledged the failure to support Ms I with finding an affordable third-party provider. The CCG has also not acknowledged the stress and anxiety this caused Ms I. Based on this, we have made some recommendations in the ‘Recommendations’ section of this report

1. We have investigated Ms I’s complaint and we were sorry to hear about the effect this situation has had on her and the late Mr E.

2. We have found failings in the CCG’s communication of the 2017 support plan, as it failed to make a clear distinction between gross and net pay, as well as clarifying what hidden costs it included.

3. We found that the CCG did not adequately communicate the new budget from 2018 with Ms I, which caused confusion. The CCG has also not explained why there is a discrepancy between the budgets after taking the agreed elements out. Lastly, we have found that while the CCG communicated that it would no longer recommend Ms I’s current third-party provider, it failed to support her in finding another one.

4. We have found that the failings have contributed to the stress and anxiety Ms I felt. We recognise that Ms I experienced a considerable amount of stress in having to chase up the CCG, and the CCG’s unclear communication caused her anxiety and left her in a state of uncertainty.

5. We also recognise that Ms I spent a considerable amount of time in ensuring that Mr E’s budget would meet his needs. In combination, this affected Ms I’s ability to spend time with Mr E during a difficult time. We believe these injustices could have been avoided had the CCG’s communication been more robust.

6. Ms I has also said that she experienced financial loss as a consequence of the budget the CCG set in November 2018. Ms I has said that Mr E’s needs were met in the first year, as there was surplus money left in the budget. However following this, she had to seek out assistance through private means. We have not been able to determine whether the financial loss Ms I experienced was a result of the 2018 budget or following budgets.

7. Because of the above, we have made recommendations. This includes for the CCG to do a comprehensive review of the 2018 budget and consecutive ones. This is to identify and explain what the discrepancies between the budgets are and to determine what financial loss Ms I has experienced as a consequence of these.

8. We have also recommended that the CCG compensate Ms I with £700 for the anxiety and stress she experienced, as well as time lost with Mr E between November 2018 and March-April 2019.

75. In considering our recommendations, we have referred to our ‘Principles for Remedy’. These state that where poor service or maladministration has led to injustice or hardship, the organisation responsible should take steps to put things right. Our principles say that public organisations should put things right and, if possible return the person affected to the position they would have been in the poor service had not occurred. If that is not possible, they should compensate them appropriately.

76. To decide on a level of financial remedy, we review similar cases where the person has experienced a similar injustice, along with our severity of injustice scale. Following this review, we recommend that within four weeks of the final report, the CCG should:

a. Acknowledge the failings we have identified in this report and apologise for the effect they have had on Ms I.

b. Pay Ms I £700 in recognition of the injustice she has experienced as a consequence of the failings we identified in this report.

77. And within three months since the final report, the CCG should:

c. Review its communication commitments regarding changes to PHB to ensure they are in line with the relevant guidance.

d. Review Mr E’s past and current plans and ensure that any cost discrepancies are outlined and explained to Ms I in order to avoid future errors. If the CCG has found these caused Ms I financial loss, the CCG should liaise with Ms I to reimburse her.