I’ve just come across this decision from the Ombudsman
Much of the case is about delay, but I particularly wanted to focus on the Direct Payments/Personal Budget aspect which I think has wider applicability for some home educating families.
The young man at the centre of this has learning disabilities, autism and aphasia. He has difficulties with writing, no speech and high anxiety.
Cornwall Council assessed the man as needing 40 hours a week but only made sufficient money available for half those hours.
This is what the Ombudsman said:
Both the Council and Ms X agree Mr Y needed 40 hours support a week. The Council used a standard rate of £9.50 an hour. FDLP used the rate charged by an agency of £16.50. The Council said in response to the Ombudsman’s enquiries that its guide price for the hourly rate if customers use an agency for their care is £15.59
I consider there is fault in the way the Council came up with the figure of £418 for the cost of Mr Y’s care. Mr Y lacks capacity to manage a personal budget – so could not employ his own personal assistants. Direct Payments guidance says the Council cannot give Mr Y a personal budget unless there is a suitable person willing to take on the role of managing it for him. The Council’s figure envisaged personal assistants, employed by Ms X, delivering 40 hours of care a week to Mr Y. However, Ms X did not want to employ her own staff and instead wanted to use an agency. I consider the Council was at fault in deciding the personal assistant rate of £9.50 an hour could meet Mr Y’s needs because it ignored a relevant factor – that the person identified as suitable to manage the personal budget – was not willing to be an employer. This means Ms X did not have enough money to pay an agency to provide the 40 hours care Mr Y was assessed as needing. So it follows that either Mr Y had fewer than 40 hours care per week, or Ms X had no choice but to employ a personal assistant directly, against her wishes or Ms X found the additional money to use an agency from her own or Mr Y’s resources.
It is worth noting that as a result of the Ombudsman’s investigation the Council ‘agreed to backdate any assessed care hours to 29 June 2009’
edyourself 
Very interesting decision. Good to see that in making the decision the LGO understood that it is not acceptable to make someone become an employer when they do not want to be one – that is, it is a choice and if agency staffing is what the seek then this has to be considered when agreeing financial package.
Here’s hoping LAs note this decision and comments around hourly rates and act accordingly so other claimants do not have to go through lengthy complaints process to ensure support at the correct, assessed, level.
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If other LAs don’t take note, I hope service users will prod them!
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If needed we certainly will!! And will direct others to do the same.
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