The Ombudsman's final decision
Summary: Mrs X complained about the Council’s adult social care provision to her daughter Miss Y, causing distress and poor mental health. We did not investigate late complaints or premature complaints. We found the Council at fault as it did not pay invoices for a service as necessary. However, we are satisfied it has already provided an appropriate remedy for this.
The complaint
Mrs X complains on behalf of her daughter, Miss Y, about the Council’s provision of adult social care services. Miss Y says: She is unhappy with the behaviour of a social worker, during a December 2021 care plan review and during a call in January 2022; She did not receive the full hours of care support due from March 2020 to September 2021; She received no care at all from September 2021 to February 2022; There was confusion around invoices and; She was unhappy with the outcome of a financial assessment.
Mrs X says the Council’s actions have caused distress and affected Miss Y’s mental health.
What I have investigated I have investigated the complaints above though I have limited my investigation to matters arising in the 12 months prior to Mrs X’s complaint to the Ombudsman. At the end of this decision I have set out why I have not investigated other matters.
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 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5)) 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 spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. This included: Miss Y’s care and support plans; The Council’s adult social care case notes for Miss Y; Correspondence exchanged between the parties; A chronology provided by the Council.
Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
What I found
Care and support Councils have a duty to meet the eligible needs of those ordinarily resident in their area. These needs are set out in a care plan.
Direct payments When someone is eligible for care and support, they can apply for direct payments. These let the person choose and buy the services they need, instead of getting them from the council.
Sometimes the council will agree to administer those payments, by making payment against invoices for services.
Financial assessment Where a council arranges care and support to meet a person’s needs, it may charge the adult. It will usually carry out a financial assessment to assess how much the person can afford to pay towards their care.
A council will assess a person’s capital and income.
Councils may take most of the benefits people receive into account. Those they must fully disregard are listed in the Care Act. This list does not include Personal Independence Payments. Others that they may disregard where someone receives care in a care home are not relevant in this case.
The Care and Support (Charging and Assessment of Resources) Regulations 2014 say in assessing income, a council must take account of any housing-related costs which the adult is liable to meet in respect of the adult’s main or only home. Such costs include mortgage, rent and council tax. It also sets out other payments a council must take account of. This does not include any debt or loan repayments.
Disability-related expenditure (“DRE”) In assessing a person’s finances a council will consider how much they spend on items related to their disability.
The Care and Support Act statutory guidance lists items a council should include as DRE. However, this list is not exhaustive and a council should include any reasonable additional costs directly related to a person’s disability.
The care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support.
It is up to a council to decide whether an item is directly related to a person’s disability and whether the cost claimed is reasonable.
Council’s charging policy The Council has provided a copy of its charging policy published in June 2021. Regarding DRE this says: “Evidence, e.g. receipts, will be requested to verify the expenditure. Items will be allowed on the basis of past expenditure. If there are plans to spend a certain amount of money in the future, this will be assessed as part of a future assessment.”
What happened The Council has provided a copy of Miss Y’s care and support plan dated October 2020. This shows Miss Y received direct payments to arrange 5 hours’ support herself made up of 3 hours from an autism charity and 2 hours from a care provider.
The plan reports Miss Y has Asperges and OCD. It says she needs support to develop a daily routine and with food shopping. This met the “eligible need” of support to maintain the home environment and food shopping. The plan also outlines the support Miss Y needs to access the community and develop relationships. This met the eligible need of accessing the local community and developing social relationships. The plan does not say Miss Y needs help managing paperwork or finances, though I note Mrs X interprets it as doing so.
On 27 August 2021 Miss Y told the Council her support worker had said they would stop providing support from 8 September. The care provider had not confirmed this but she was anxious as she could not manage food shopping alone. The Council agreed to check this with the provider.
On 2 September the Council told Miss Y her care provider could no longer support her because she was moving outside of its area. It asked Miss Y if she could still manage to find someone herself as before. Miss Y asked for a care directory, which it provided, and said she would contact the Council if she had any issues.
Miss Y moved on 8 September.
On 15 November Miss Y told the Council she had not found a new support worker and asked for a review of her care plan. Her mother, Mrs X, had helped her with shopping in the meantime but was finding this tricky. The Council said it would see if a personal assistant could be arranged in the interim. Its chronology of actions suggests it did not get back to Miss Y but intended to follow up with her during the care plan review.
On 1 December the Council met with Miss Y and reviewed her care plan.
On 16 December a social worker spoke to Miss Y and she agreed for the Council to source a community care package.
The Council completed internal paperwork and then contacted providers from the end of December.
A social worker spoke to Miss Y on 13 January 2022. Miss Y asked the social worker to chase up care providers as she had not heard anything.
On the same date Miss Y complained: Her previous care provider did not provide 5 hours’ weekly support as expected; she only received two hours maximum weekly.
When she moved the care provider cancelled her support without notice.
During her review in December 2021 the social worker upset her by suggesting she would cancel the autism support. The social worker also suggested she get rid of her pets to make it easier for her to find new accommodation, not taking account of how important they were to her.
During a call on 13 January 2022 the social worker was rude and said she was unable to find a care provider due to the pandemic and Miss Y should chase this herself. The social worker ended the call abruptly.
She had not yet received a copy of the December 2021 review and she wanted help with her financial assessment.
On 14 January a new care provider confirmed they would support Miss Y. The social worker updated Miss Y on the same date. The care provider started from 24 January 2022.
The Council carried out a financial assessment on 17 January.
On 20 January the Council spoke to Miss Y to discuss her complaint. Miss Y complained about the conduct of its social worker, her care and support plan and its decisions on DRE.
The Council has provided a copy of Miss Y’s care and support plan dated 21 January 2022. This reports Miss Y will receive 2 hours’ community care and 1.5 hours’ support from an autism charity per week.
The Council responded to the complaint in March 2022. It said: It updated her care plan in October 2020, with an autism charity providing 3 hours per week and a care provider 2 hours per week; The care provider says it provided all hours.
The care provider warned it could not continue once Miss Y moved. The Council tried to help her find a new provider. Then in November, when she said she could not find one, it sought to arrange this.
The social worker had different recollections of her comments in December 2021 but apologises for any distress; It will allocate a new social worker who will also review Miss Y’s care needs as she is unhappy with the last review.
It will check arrangements regarding invoicing and arrange for outstanding invoices to be paid. It would also arrange payments from the direct payment account for invoices from February 2022.
Miss Y was unhappy about care contributions but these were payable. It did not have to take into account her need to clear a third party debt. However, it would consider any request for DRE upon further evidence.
In April Miss Y complained to the Ombudsman.
On 12 April Miss Y replied to the Council, in summary: She had received inadequate care since March 2020; Initially the care provider was meant to provide 5 hours’ weekly support. From December 2020 she agreed for 1.5 hours’ support from the autism charity and 3.5 hours from the care provider. However, the care provider only accompanied her with shopping up to one hour per week.
The Council paid the care provider for 5 hours’ weekly support from May 2020 to September 2021 in error and it did not pay the autism charity; though it still provided its services.
The care provider stopped support when she moved, and she received little notice.
She was unable to find another provider and kept asking for help, but this was not forthcoming until the review agreed in December; At the review in December the social worker lacked empathy and understanding, was dismissive and abrupt; She disagrees with the views of the social worker in the December care plan. She was also unhappy with the latest review of March 2022, as she needs more support.
She outlined issues with her current care provider.
The Council should take account of her debts in assessing how much she can afford to pay for care. It was unfair to ask for receipts to evidence her costs. And it should also now consider the costs of her caravan.
The Council responded that it took account of Miss Y’s housing costs under her existing tenancy agreement. It could not make a further allowance for housing while the caravan was not Miss Y’s permanent home.
On 31 May the Council discussed the complaint with Mrs X.
In June 2022 the Council sent Miss Y its review decision on her DRE. This set out each item claimed, the Council’s decision and where appropriate, reasons for its decision on whether it agreed or refused DRE.
The Council also provided a final complaint response in June. In summary: The care provider says it provided 3 hours’ virtual online support and 2 hours’ in person support for shopping. The online support was due to the pandemic.
It apologised for any confusion around invoicing. It had since paid the autism charity.
The care provider did not give formal notice as they did not know Miss Y’s move date. There can be a shortage of providers and it would speak to the relevant team about the gap in service to explore any action.
It was currently reviewing her support with her.
It asked for receipts to support DRE in line with its charges policy.
When I spoke to Mrs X I asked why Miss Y did not bring any complaints about lack of care, dating from March 2020 to April 2021, to the Ombudsman sooner. She said the care provider told Miss Y it was only expected to meet priority services during the pandemic. Mrs X stepped in to help her daughter expecting this to only be a few weeks but the pandemic continued. Both Miss Y and Mrs X were struggling. Miss Y did complain to her social worker but he did not tell her to make a formal complaint. She considered the COVID-19 pandemic and the lockdown made for extenuating circumstances.
In comments on a draft decision Mrs X said: Miss Y did not receive a copy of the October 2020 support plan at the time. They are only now seeing this copy as provided by the Ombudsman. This was prepared following a call between the Council and Miss Y. However, Miss Y was unaware this was a review of her care plan and she did not have an advocate present. As Miss Y had not seen the plan she was unaware of the change in care hours or that the whole package would be financed by direct payments. This created confusion and problems which only came to light at the next review of December 2021.
The October plan clearly showed Miss Y needed support with maintaining her home environment and food shopping. This would include helping her manage paperwork and finances. Otherwise her home would not be able to be maintained if she got into financial difficulties and paperwork was not followed up.
They did not understand why Miss Y had to find her own carer in September 2021 as they thought this was funded by social care and so the Council should arrange it.
In November 2021 the Council agreed to find a personal assistant yet no support was in place until February 2022.
The confusion of what was paid by direct payments and what was paid by social care directly added to the issues with the social worker. The NAS was not paid until they complained. Miss Y was told to ignore invoices. This shows a lack of communication between departments.
Miss Y did not receive any documents from finance. The Council refused DRE for wipes despite allowing them in the past. She refers to its charging policy which says: “Items will be allowed based on past expenditure. If there are plans to spend a certain amount of money in the future, this will be assessed as part of a future assessment".- The Council chose not to accept the cost of the caravan, but could have done so knowing the circumstances were exceptional.
The Council “downgraded” Miss Y’s OCD on the December 2021 care plan.
She queries the benefits the Council is allowed to take into account during a financial assessment.
She queries why the Council is not responsible for the care provider’s lack of notice.
The Ombudsman overlooked information she provided by email of 13 July 2022.
The Council discriminated against her daughter as it did not make reasonable adjustments when considering her ability to provide receipts in evidence.
Findings
I cannot reach findings, even on the balance of probabilities, about the manner, tone or attitude of the social worker during the December 2021 review and January 2022 call. This is because the accounts of the social worker and Miss Y conflict and there is no other objective evidence of exactly what was said. I therefore cannot find fault. However, I note the Council apologised for any distress and gave Miss Y a different social worker. I am satisfied with its action in this regard.
From April 2021 Miss Y’s care plan provided for 2 hours’ weekly support from a care provider. I acknowledge Miss Y expected more hours however this is not supported by the Council’s records. In any event, Miss Y did not complain to the Council until January 2022, after the care provider had stopped its service. I cannot find the Council at fault for any shortfall in hours when it did not commission the service and it was unaware of any concerns in this regard.
The Council is not responsible for any lack of notice given by the care provider. This is because the Council did not contract with the care provider, rather it was arranged by Miss Y using direct payments. I therefore do not find fault.
I acknowledge Miss Y had no care provider from September 2021 to February 2022. Miss Y’s care plan and the Council’s records show Miss Y could arrange a new care provider herself. Therefore, I would not expect the Council to act unless Miss Y expressed difficulty. From November 2021, upon Miss Y’s request for help, the Council should have assisted her to find a provider. Its records show it did so. While I recognise it took two months for the care to start, the Council’s records show no undue delay between actions taken. I am also mindful Miss Y told the Council Mrs X was helping with food shopping in the meantime, though finding this difficult. In these circumstances I do not find the time taken by the Council amounts to fault causing significant injustice.
The Council did not ensure it paid invoices for the autism charity supporting Miss Y. This is fault. I recognise this caused Miss Y some uncertainty but otherwise this did not affect her service provision. I acknowledge the Council has since taken action to resolve this. I consider no further action or remedy is warranted.
There is no evidence of fault in how the Council decided on DRE. I say this because: The law does not require the Council to take into account Miss Y’s debts when calculating how much she can afford to pay for her care.
It is up to the Council to consider any claim for DRE and it is entitled to ask for evidence to support any claim, such as receipts.
That the Council agreed to DRE for items in the past does not mean it must agree to them going forward. Rather, the Council must reach a fresh decision based on the information and evidence available at the time.
The Council’s charging policy, when read in context, does not say all DRE agreed in the past will be agreed going forward. Rather, it suggests the Council will only allow for past expenses, not future hypothetical expenses.
The law says the Council can take into account the housing costs of a person’s main home in calculating DRE. There is no provision for the Council to consider the housing costs for two properties.
Final decision
I have completed my investigation. This is because I find fault by the Council that it has already remedied.
Parts of the complaint that I did not investigate I did not investigate Miss Y’s complaint about inadequate care from March 2020 to April 2021. This is because the complaint is late; there is no good reason why Miss Y, or Mrs X on her behalf, could not have brought a complaint to us sooner and; there is no other good reason to exercise discretion.
I did not investigate Miss Y’s complaints about: the care plan review of December 2021; the care plan review of March 2022 and; the level of support from the Council since February 2022.
This is because these complaints are related and were ongoing at the time of Miss Y’s complaint to us. They are also separable from my investigation above. However, the Ombudsman will assess a new complaint in this respect and decide whether to investigate.
I note Miss Y has further complaints about the Council’s adult social care provision from October 2020 to April 2021 following her recent receipt of the October 2020 care plan. Miss Y could not have complained to the Ombudsman about this sooner given this was new information, however the Council has not yet had opportunity to address these points. It is therefore premature for me to investigate. I would expect the Council to address this with Miss Y or Mrs X as her representative in the first instance.
I note Miss Y now complains the Council discriminated against her, by failing to make reasonable adjustments in its request for evidence. However, the Council has not yet had chance to investigate and respond to this complaint. It is therefore premature for me to investigate. I would expect the Council to address this with Miss Y or Mrs X as her representative in the first instance.
Investigator's decision on behalf of the Ombudsman