The Ombudsman's final decision
Summary: Miss X complained the Council failed to follow the recommendations from a previous Ombudsman investigation. Miss X complained the Council failed to correctly update and provide support from a care plan and carers support plan. Miss X also complained the Council used a care agency without consulting with either herself or Mr Y. Miss X also complained about delays in completing a Disability Related Expenditure assessment. We found fault with the Council delaying provision of respite care and failing to consult about the care agency. The Council agreed to apologise to Miss X and pay her half the respite care costs, minus the client contribution, from 21 June 2023 to 5 February 2024.
The complaint
Miss X complained the Council failed to issue a suitable Carers Support Package for her or a Care and Support Plan for Mr Y following the Ombudsman’s previous decision in December 2022.
Miss X also complained the Council failed to correctly update the information in the Care Plan and Carers Support Plan.
Miss X says the Council signed Mr Y up to a care agency service without consulting either Mr Y or herself.
Miss X also complained the Council delayed in responding to her requests for Disability Related Expenditure information and providing details of the financial cost to Mr Y for care and support services.
Additionally, Miss X complained a council officer attended her property in January 2023 while having Covid-19 and failed to take suitable precautions.
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, 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)
What I have and have not investigated I have not investigated any issues before December 2022 when the Ombudsman completed a previous investigation into Miss X’s concerns. Investigating any matters before this date would be double handling of Miss X’s complaints.
Miss X also brought a complaint to the Ombudsman about issues with Mr Y’s Education and Health Care Plan, Speech and Language Therapy and Occupational Therapy. This forms the subject of a separate complaint, and I will not address this here.
I have investigated Miss X’s complaints about the Council’s failure to carry out actions following the Ombudsman’s previous decision. I have also investigated Miss X’s complaints about the carers assessment, Mr Y’s care and support plan and complaint about the Disability Related Expenditure.
I have not investigated a complaint about a Direct Payment debt. This is because the Council has already taken suitable action to resolve this matter and there is no worthwhile outcome at investigating this matter further.
I have also not investigated Miss X’s complaint about the council officer visiting her in January 2023 when they had Covid-19. This is because the Council officer was not aware they had Covid-19 when they visited Miss X, despite having some symptoms, and the visit did not cause Miss X or Mr Y to contract Covid-19. As such, there is no significant personal injustice presented to either Miss or Mr Y because of this visit.
Since the Ombudsman accepted Miss X’s complaint for investigation on 15 January 2024, I have not investigated the Council’s updated care assessment completed on 24 January 2024. This is because the Council must have opportunity to address a complaint before the Ombudsman investigates. I have used this care assessment to decide the end point of my investigation and address injustice for faults before this date but have not investigated the suitability of the assessment itself. Should Miss X have concerns about the updated care assessment completed on 24 January 2024, this would be the subject of a new complaint with the Council.
How I considered this complaint
I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Both Miss X and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
Rules and Regulations Care Plan 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.
The Guidance sets out what should be considered a Disability Related Expense (DRE). The list includes: the costs of any privately arranged care services required, including respite care; day or night care which is not being arranged by the local authority; personal assistance costs, including any household or other necessary costs arising for the person; and other transport costs necessitated by illness or disability. (The Guidance, paragraph 40) The Guidance also says the following: The above list “… is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included.” (The Guidance, paragraph 40) That a person’s care plan “… may be a good starting point for considering what is necessary disability-related expense. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support.” (The Guidance, paragraph 41) 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.
Carer’s Assessment Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014) Carer’s Budgets and Respite The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. Part of the planning process should be to agree how the carer will use the personal budget to meet their needs. (Care and Support Statutory Guidance 2014) Direct payments Direct payments are monetary payments made to individuals who ask for them 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 must ensure 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.
After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014) What happened December 2022 to end of February 2023 In December 2022, the Ombudsman reached a final decision in Miss X’s previous complaint to the Ombudsman. The Council agreed to: Carry out a mental capacity assessment of Mr Y.
Consider its duties to provide transport to and from college for Mr Y.
Review Mr Y’s care plan on completion of the above and provide a properly calculated personal budget for the revised care plan.
Review Mr Y’s financial assessment on completion of the revised care plan.
Provide Miss X with a carers support plan.
Pay the carers grant promised in 2021 to Miss X.
Pay Miss X £500 for the delay and apologise to her.
On 30 December 2022, the Council sent Miss X a DRE claim form for Mr Y’s expenses. The Council chased Miss X for a response to this DRE claim form to which Miss X advised she would return this on completion of the care assessment.
The Council completed a mental capacity assessment of Mr Y on 25 January 2023. The Council also reviewed Mr Y’s support plan and completed a carers assessment at the same time.
By 14 February 2023, the Council had completed the care and support plan for Mr Y.
On 17 February 2023, the Council completed the draft carers support plan for Miss X. The Council agreed to pay Ms X £300 carers grant for 2021 and 2022. The Council also detailed it should provide regular ongoing respite for Ms X through Mr Y’s activities detailed in his care and support plan.
The Council wrote to Miss X on 20 February 2023 and confirmed it had completed the actions from the Ombudsman’s previous investigation. The Council confirmed it was waiting on the return of the DRE form by Miss X so cannot update Mr Y’s financial assessment until it receives this. The Council said it would update and backdate its financial assessments for Mr Y on receiving the DRE form from Miss X. The Council also provided Miss X with a copy of her carers support plan and Mr Y’s care and support plan.
Analysis December 2022 to end of February 2023 The Ombudsman’s previous decision set out actions the Council agreed to take following resolution of the previous case.
By the end of February 2023, the Council had sent a DRE form to Miss X, completed a mental capacity assessment of Mr Y, considered its duty to provide transport for Mr Y, updated Mr Y’s care and support plan, provided a draft carer support plan for Miss X and paid the backdated carers grants and £500 payment.
The Council completed a suitable review of Mr Y’s care and support plan and correctly completed a mental capacity assessment. The Council completed these in person with Mr Y and took on board relevant information available to it. The Council has detailed its consideration of Mr Y’s care and support needs in this review of his plan.
While Miss X has considered the Council failed to consider Mr Y’s full needs, the Council has acted in line with the regulations and I do not find fault.
The Council completed Miss X’s carers assessment by 17 February 2023. The carers assessment confirmed that Miss X was willing and able to continue to provide care for Mr Y. The carers assessment also considered Miss X’s activities beyond caring for Mr Y and looked to establish what support Miss X would need to continue caring for Mr Y. The carers support plan detailed that Miss X would receive ongoing regular respite four days a week. I do not find fault with the Council’s carers assessment.
The Council provided copies of the care and support plan and carers assessment to Miss X on 20 February 2023 and paid the relevant amounts detailed in the previous decision. The Council completed all the actions agreed following the conclusion of the Ombudsman’s previous investigation except for the financial assessment.
When the Council completed the review of Mr Y’s care and support plan in February 2023, it itemised each element of his care and support plan to provide a personal budget. The Council could not update Mr Y’s financial assessment to date because Miss X had not returned the DRE form. I do not find fault with the Council for this.
What happened March 2023 to end of May 2023 On 6 March 2023, Miss X said the carers support plan does not accurately reflect her needs as a carer. Miss X also complained the review meeting did not fully capture Mr Y’s needs in his care and support plan.
On 14 March 2023, the Council met with Miss X to discuss her complaint. The Council confirmed Miss X’s complaint included the review meeting not capturing Mr Y’s needs a failure to detail support Miss X needed on Friday’s and weekends. Miss X said she stopped previous direct payments because she was dissatisfied with the financial assessment. The Council said it would complete a financial assessment and look to provide 4 hours of respite care for Miss X on Friday and 8 hours across the weekend on the back of this. The Council says Miss X told it she did not wish for the 12 hours respite to start until the Council had completed the financial assessment and DRE assessment.
The Council contacted Miss X on 3 April 2023 to ask if Ms X had completed the financial assessment process yet so it could put in place the 12 hours of respite care. Ms X told the Council she would be submitting the DRE form shortly. The Council confirmed it would put in place the 12 hours worth of direct payments for the respite care as soon as the financial assessment and DRE assessment are finished.
The Council contacted Miss X again on 14 April 2023 about the respite care. Miss X confirmed she had declined for the respite care to start straight away and had wished to resolve the financial assessment before proceeding.
Miss X and the Council continued to liaise about the DRE assessment in April 2023 and May 2023. Meanwhile, the Council completed an annual review of Mr Y’s financial assessment based on the information it had available. The Council confirmed the outcome of this review to Miss X on 22 May 2023. This assessment confirmed the need for Miss X to provide a completed DRE assessment form to the Council.
Analysis March 2023 to end of May 2023 Following contact from Miss X in March 2023, the Council reconsidered the support needed for Miss X as Mr Y’s carer. By 14 March 2023, the Council had agreed that Miss X would benefit from 12 hours of respite care across Friday to Sunday.
The Council identified Miss X would benefit from 12 hours of respite care but Miss X said she did not want this respite care in place until the Council completed the financial assessment. Since Miss X declined provision of the respite care immediately, and Miss X had not returned the DRE form to the Council, I cannot find the Council at fault for not putting the respite care in place.
In May 2023, the Council completed an annual review of Mr Y’s financial assessment. The Council acted in line with the regulations by completing this annual review. Since the Council still did not have the DRE form returned by Miss X, it could not use this in the financial assessment. I do not find fault with the Council.
What happened June 2023 to 24 January 2024 In June 2023, the Council provided Miss X with a further copy of the carers support plan and reminded Miss X to provide her input. Miss X provided her input that she was happy to provide care for Mr Y but needed a respite package in place.
On 21 June 2023, the Council issued an updated carer support plan to Miss X. This included a £300 carers grant payment for 2023, the ongoing intermittent respite care and the promise to explore a comprehensive social care package for Mr Y to provide more formal respite.
On 31 August 2023, the Council told Ms X it had arranged for an interim respite care package with Provider 1 for 12 hours each week while it continued to await the outcome of the financial assessment. The Council arranged for this to start on 6 September 2023.
On 8 September 2023, Miss X returned the DRE form to the Council with supporting documentation.
Miss X made a formal complaint to the Council. Miss X complained the Council had failed to provide information about care plan reviews and respite care.
The Council provided a Stage 1 complaint response on 18 September 2023. The Council said: It completed a care plan review and carers assessment at the start of the year and provided these to Miss X on 20 February 2023.
It agreed to put in place a 12-hour respite care package for Miss X but agreed to wait for the outcome of the new client contribution assessment before putting this in place.
It has been waiting on receipt of the DRE form from Miss X to complete the financial assessment, which it had now received.
It had now set up a care agency to meet the 12-hour respite care need but the client contribution was £65.27 per week.
On 3 October 2023, Miss X responded to the Council’s complaint and said the Council failed to put the 12-hour respite care package in either Mr Y’s care plan or her carers support plan. Miss X said the Council’s financial assessment team could therefore not calculate the support costs needed. Miss X also complained about the Council putting in place Provider 1 in September 2023 without consulting Miss X or Mr Y.
Following a visit from Provider 1, Miss X said the provider failed to show the expected level of professionalism and courtesy required. This resulted in a withdrawal of the 12-hour respite care package on 5 October 2023.
On 24 October 2023, the Council provided its Stage 2 complaint response. The Council said: It had received Miss X’s DRE form on 8 September 2023 and apologised for the delay in providing the outcome of this assessment.
Care and carers plans are not living documents so will not always be an up-to-date reflection of a person’s needs. However, the Council said it can update these when new needs arise.
It provided Miss X with information about the care provider on 31 August 2023 before putting this in place.
It understands Mr Y does not wish to go with Provider 1 so it will arrange a meeting to discuss how to provide this respite care moving forwards.
It will waive any client contribution costs until Mr Y and Miss X confirm how they want the 12 hours respite care to be provided.
On 22 November 2023, the Council provided the outcome of the DRE assessment. The Council considered the full DRE requests in the form and decided the total DRE costs fall within the £10 weekly disregard the Council automatically applies during a financial assessment.
The Council continued to discuss providing respite care with Miss X. Miss X agreed for 12 hours of respite care to be provided through Provider 2 rather than as direct payments. Miss X also agreed for 36 hours of respite care three times per year through direct payments.
On 24 January 2024, the Council updated Mr X’s care and support plan to include the 12 hours of respite care through Provider 2 and the 36 hours of respite care through the direct payments. The Council arranged for Provider 2 to start from 5 February 2024. The Council provided Miss X with the care and support plan documents and direct payments agreement forms to sign and return.
Analysis Return of DRE form and assessment The Council asked Miss X to provide the DRE form and supporting documentation on repeat occasions until 8 September 2023. Without return of this form, the Council could not complete an up-to-date financial assessment of Mr Y. It was Miss X’s responsibility to return the DRE form to the Council and I do not find fault with the Council.
Once Miss X returned the DRE form to the Council, the Council completed its assessment of Mr Y’s DRE requests.
When considering if a cost is a DRE, the Council must consider any reasonable additional costs directly related to a person’s disability. The Council should consider each request and apply consistent rationale based on the individual merits of each cost.
The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
The Council has considered Mr Y’s DRE requests in line with the relevant legislation and guidance. It addressed each of the DRE requests and considered each on their own merits. The Council provided an explanation to Miss X why it allowed certain things as DREs and why it did not allow others. The Council has followed the correct process and made decisions about Mr Y’s DRE requests it was entitled to make. I do not find fault with the Council’s consideration of the DRE assessment.
Respite Care from Provider 1 In response to the draft carers plan in June 2023, Miss X told the Council she wanted formal respite care to be included in the carers plan and that this was missing. Miss X did not make any reference to awaiting the outcome of the financial assessment at this time but there was previous reference to awaiting the outcome of this financial assessment.
The Council issued the final carers plan promising to find a comprehensive social care package to provide respite for Miss X.
While the Council committed to finding a suitable respite package, it did not put this in place until 6 September 2023. This meant it took the Council nearly seven weeks to put in place an interim respite care package while it continued to resolve the DRE and financial assessment issues.
When the Council did contact Miss X about this interim care package it said it had found Provider 1 and that this would start from 6 September 2023. The Council did not liaise with Miss X or Mr Y about the suitability of Provider 1. The Council also did not provide either of them with opportunity to provide input on the care provider until after it had arranged for this care package to be put in place. This meant the Council did not make the provision of this interim care package a person-centred approach for Mr Y’s needs.
As a result of the failure to take a person-centred approach, this caused the respite care with Provider 1 to break-down. This was a foreseeable outcome of choosing a care provider without properly consulting either the person the care provider is to engage with or their carer. This was fault.
While the Council failed to properly consult either Miss X or Mr Y, the Council did provide warning to Miss X on 31 August 2023 about the chosen care provider. This meant Miss X had a week to express any concerns about Provider 1. Miss X did not voice any concerns about this provider or their ability to engage with Mr Y. While this does not remove the Council’s fault it does mitigate it.
The Council’s fault, through delays and failure to consult, has caused Miss X to miss 12 hours of respite from 21 June 2023 until 5 February 2024. This is mitigated against confusion caused by Miss X’s previous requests to wait on the outcome of the financial assessment and delays in returning the DRE form. Miss X also failed to raise concerns about Provider 1 following the Council telling her about this provider on 31 August 2023. We recommend the Council apologises to Miss X and pays her half the cost of the 12 hours of respite care, minus the client contribution, from 21 June 2023 to 5 February 2024. This will enable Miss X to source some catch-up respite care for that which she has missed.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Apologise to Miss X and pay her half of the cost of the 12 hours of respite care, minus the client contribution, from 21 June 2023 to 5 February 2024.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman