The Ombudsman's final decision
Summary: We will not investigate this complaint about the hourly rate of Ms B’s Direct Payments. This is because there is not enough evidence of fault with the action taken by the Council to warrant an Ombudsman investigation.
The complaint
Mr C complains on behalf of Ms B. Mr C says Ms B has complex care needs and the hourly rate of her personal budget does not meet those needs. Mr C says Ms B is worried she may lose her highly skilled team of personal assistants because she is unable to pay their costs. Mr C says this is against the principles of the Care Act 2014 and breaches the Equality Act.
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 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council responded to Mr C’s complaints and although he disagrees, the Council has explained Ms B’s assessed needs can be met within the personal budget provided to her by Direct Payments.
Mr C alleges the Council has not considered the Care Act statutory guidance and the Equality Act when deciding Ms B’s budget. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them. Nor is it not the role of the Ombudsman to arbitrate between a Council and client regarding disagreements of costs and rates. The Ombudsman has to determine whether there is fault causing injustice. In this case there is no evidence of administrative fault. The Council has explained the hourly rate is calculated based on the complexities and needs of the client. In this case Ms B’s personal budget is sufficient to meet her assessed care needs in line with the Care Act. The Care Act says a person can make informed decisions about how to meet their care and support needs. The Council says Ms B receives Direct Payments in order to recruit and retain personal assistants of her choosing at a fair rate of pay plus on costs for employer National Insurance, holidays, pension, payroll etc. and her personal budget is sufficient to meet her needs.
Final decision
We will not investigate Ms B’s complaint because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.
Investigator's decision on behalf of the Ombudsman