Summary: Miss Y complains the Council gave her incorrect information about elements of her social care, such as the rate of Disability Related Expenditure (DRE) and the hourly rate for her Personal Assistant. She also complains the Council invited her to a review meeting without adequate notice or advocacy support. The Council has already apologised for incorrect information given in one email about Miss Y’s DRE. There is no fault in the other parts of Miss Y’s complaint.

The complaint

1. Miss Y complains the Council provided incorrect advice about Disability Related Expenditure (DRE) and the amount payable to her Personal Assistant (PA).
2. Miss Y also says the Council did not give adequate notice for a review meeting which involved staff she had never met before. Miss Y also did not have the support of an advocate at this time. The Council then wrongly stated that Miss Y refused to attend the review meeting.
3. Miss Y says the above has caused her distress and significantly affected her mental wellbeing. 

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. 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)

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How I considered this complaint

6. During my investigation I contacted Miss Y’s advocate by email. I also spoke with Miss Y by telephone.
7. I made enquiries of the Council and considered its response. I also referred to the relevant law and guidance.
8. Miss Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should happen

Personal Assistants and Direct Payments

9. Direct payments (DPs) 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.
10. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
11. People may use DPs to employ a Personal Assistant (PA) to help met their care and support needs. Where a person uses a direct payment to employ a personal assistant, they become an employer with all the responsibility for PAYE, holiday pay, sick pay, redundancy, recruitment etc. Alternatively, people can hire a PA through an agency. The agency is then the employer.
12. The Council’s DP policy states, “The rate for employing Personal Assistants (PAs) is based on the Foundation Living Wage (as the starting point) plus an allowance that gives you enough money to meet the costs of being an employer, known as “on-costs”. This includes National Insurance, pension costs, holiday pay, mandatory training, statutory sick pay, payroll costs and employer’s liability insurance”.

Disability Related Expenditure

13. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

What happened

14. Miss Y has care and support needs and is eligible for social care support under the Care Act. The support which Miss Y receives is detailed in her support plan and is funded by Direct Payments (DPs). To help meet her assessed support needs Miss Y uses the services of a self-employed Personal Assistant (PA).
15. On 13 July 2022 the Council emailed Miss Y with a copy of her financial assessment and a breakdown of her DRE. The following day the Council emailed Miss Y to suggest a face-to-face meeting with an officer from its finance team “… for clarity around the care and support plan and what you can use the funding for”.
16. On 6 September 2022 the Council sent a copy of its frequently asked questions (FAQs) regarding DPs. The Council sent this to the advocate representing Miss Y at the time.
17. Following a change in the provider of Miss Y’s advocacy service, Miss Y was allocated a representative via the new advocacy agency from 6 January 2023.
18. A case note from 9 January 2023 confirms “Care Act assessment read and signed off”.
19. The records show that Miss Y’s social worker had a detailed telephone conversation on 7 February 2023 following Miss Y’s wish to look into recruiting a PA via an agency. Three weeks later, the Council emailed Miss Y to confirm, “you are able to use [agency name] recruitment to recruit PA's at the current rate of £19.78 per hour for self-employed PA's, agency PA's, or PA's recruited by [agency name]”
20. Miss Y thought the hourly rate to be paid direct to the PA was £19.78.
21. On 28 February 2023 the Council emailed Miss Y. This included the incorrect amount of DRE.
22. The Council spoke with a potential agency on 29 March 2023. The notes say: “[Miss Y] has become really confused regarding the PA rate and is of the understanding that the full amount of the Personal Budget should be paid to the PA. [Name removed] says she has tried to explain to [Miss Y] that the rate is inclusive of the on costs such as annual leave payments, sickness, National Insurance… I have advised that I will…. make arrangements to undertake a joint visit to go through everything with her”.
23. On the same day, the records show Miss Y’s social worker contacted the advocacy service to speak with Miss Y’s representative, “… she has not responded to my email request or any telephone messages that I have left for her requesting she makes contact… I requested that…. she makes contact with me as soon as possible so that arrangements can be made for them to support [Miss Y] in an advocacy role as part of her review”.
24. Miss Y’s social worker called Miss Y on 31 March 2023 to discuss her availability to meet and undertake a yearly review of her social care needs. The social worker suggested the attendance of an officer from the finance team to discuss any queries about the PA rates.
25. The call notes taken by the social worker record that Miss Y became ‘agitated’ and refused to attend the review because one year had not yet passed since the previous assessment in January.
26. Miss Y then called back to say she could attend a review, but only after all her upcoming hospital appointments had taken place. Miss Y said she also needed the support of her advocate before she could participate.

Was there fault by the Council causing injustice to Miss Y?

27. The Council has already acknowledged that the incorrect amount of DRE was included in an email sent on 28 February 2023. The Council quickly rectified this and apologised to Miss Y for any confusion caused. In my view, this is an appropriate remedy for the injustice caused by the mistake.
28. In relation to Miss Y’s PA, and the hourly costs, I am satisfied the Council has provided an appropriate level of information and advice, including the FAQs. Miss Y has also spoken in detail on the telephone with her social worker and the agency. Based on the information seen, I do not uphold this part of Miss Y’s complaint.
29. Miss Y also complains about the Council’s decision to invite her to a review meeting with a finance officer whom she had not previously met. She also says the Council failed to ensure she had appropriate advocacy support. The Council’s records show the social worker had made several unsuccessful attempts to contact Miss Y’s advocate in March 2023 before contacting Miss Y directly. The Council cannot be held responsible for the advocate’s alleged failure to respond.
30. I do not consider the Council acted with fault. It tried to ensure that Miss Y was supported and honoured her request to meet at her convenience and after any upcoming commitments. I appreciate Miss Y felt distressed by the phone call; however, we can only recommend a remedy for injustice caused by fault.

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Final decision

31. I have completed my investigation. The Council has already apologised for the confusion caused by the error in the email sent about Miss Y’s DRE. There is no fault in the other elements of Miss Y’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman