Council did not provide direct payments for support that it had identified was needed, and asked for evidence of how money not received had been spent.
Mr X is a disabled man whose mobility and daily living is impacted by health conditions. North Tyneside Metropolitan Borough Council assessed Mr X following an operation and identified the need to increase his support by ten hours per week (taking the total support he needed to 38 hours), but it then delayed authorising the increase by over two years.
When Mr X complained to the Council about the extensive delay, it asked him to evidence the payments he had made to his Personal Assistant for the additional hours, whilst knowing Mr X had not received the money to pay for the additional hours.
This caused Mr X significant and unnecessary distress over a number of years, whilst his Personal Assistant suffered financial losses from providing the necessary care without pay.
Two years after the assessment and decision to increase the budget by ten hours, Mr X was assessed again and based upon the same information as two years previously, the Council decided without explanation that he needed nearly a third less support, causing additional distress to Mr X.
Following the ombudsmen’s involvement the Council agreed to pay to Mr X the missing payments, backdated to the date of the previous assessment of his increased needs, to enable him to pay his Personal Assistant for the care already provided; pay the Personal Assistant £300 in recognition of his unpaid support provided to Mr X; re-assess Mr X and pay him £150 for his inconvenience; to review its processes to ensure current and future funding authorisations are not delayed.
Key Legal Issues
Delayed Payment Authorisation for Identified Care and Support needs: The Council was found at fault for delaying by over two years the authorisation of an additional ten hours of support per week which it had identified was needed.
Unreasonable Requests for Evidence: The Council was found at fault because it asked Mr X to evidence payments he had made to his Personal Assistant for the additional hours, whilst knowing Mr X had not received the money to pay for this. The unreasonable request further delayed the payments.
Reduced Support without justification: The Council was also found at fault because two years after the assessment which increased Mr X’s support needs to thirty eight hours per week, it undertook another assessment based on the same information, yet this time reduced his support needs to twenty six hours per week without any justification.
The Care Act 2014 places a duty onto local authorities to carry out an assessment for any adult who appears to require care and support, regardless of their potential eligibility for state funding.
Once an adult’s needs are sorted into eligible or non-eligible needs, the person is entitled to have the eligible ones met, although the local authority is in charge of making the decision as to how much care or funding is ‘needed’ for adequately and appropriately meeting those needs, which is a woolly concept in this day and age!
That decision is subject only to judicial review, for irrational, unreasonable, un-evidenced, unarticulated or fettered (over-rigid) decision-making.
Fortunately, there are 20 years of cases about councils who have been doing it that badly, so lots of examples which councils’ lawyers are obliged to tell the staff about.
One such case (called Killigrew) says that if a social worker thinks that the needs have diminished, s/he needs to be able to articulate their evidence basis for that conclusion. They can’t just be told to Go Forth and Subtract, just because the department is looking at a budget deficit.
There’s also a Monitoring Officer in every council, personally responsible for reporting illegality when it is referred to him or her, to the council’s elected members, unless of course the social care staff decide to behave properly after the Monitoring Officer’s intervention.
The local authority must also provide the person with a copy of its decision on eligibility. The individual’s care and support plan must include a personal budget which informs the individual about the money allocated to meet the identified needs.
The personal budget must be a sufficient amount to meet the individual’s care and support needs, and be transparently calculated, with any aspect being met by informal care by friends or relatives identified so that the calculation of the sufficiency of the amount for the rest of the need can be made accountable.
Mr X was therefore legally entitled to have his needs met, and for his personal budget to be an amount sufficient to meet his care and support needs, without delays and without ridiculously unreasonable requests.
The Ombudsman found that whilst the Council was entitled to a view that some support it had previously provided was for needs that were not now eligible but that it must keep in mind the flexibility and personal choice that direct payments were intended to promote. It should also consider that after a two year history of delaying payment for assessed eligible needs, the move by the Council to reduce its view of the man’s support needs would lack credibility.
The full Local Government Ombudsman’s report can be found at https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-011-515#point1
Considerations for Professionals
• How efficient are your processes for authorising funding requests?
• How well does your system identify delays in funding requests and how quickly are these delays able to be addressed? CASCAIDr will be coming after councils guilty of unconscionable delay, because it’s unlawful!
• Are your requests for additional information when reviewing use of direct payments, reasonable and valid, in the context of the overall situation – your own Panel’s or finance department’s conduct, and your knowledge of market conditions? Un-joined up ‘command and control’ culture can lead to massive Egg on Face, if anyone even cares about that, these days…
• Is there a justified reason underpinned by a solid evidence base for a reduction in care and support needs, and is there any conflict with the personal choice and flexibility supposedly integral to Direct Payments? If you calculate a budget set by reference to a rate per hour, do you allow the client to pay less for more hours, or more for fewer, without cavilling with them about that later? Or do you suggest that either way, they should be paying you back the money on the footing that they did not NEED the service they’d bought!! Get a grip, if so!
Questions for Clients / Service Users
Have you faced significant delays when awaiting funding decisions for identified care and support needs?
Have you experienced unreasonable requests for information, which further delayed the processes?
Have you had your increasing care and support needs reduced without justification?
If so, it’s all unlawful, and can be put right, but most probably only if you’re a bit legally literate.
You can be supported to use law and legal principle, via the dispute resolution services that CASCAIDr provides – the worse the behaviour is, the more likely it is to come within our Free Scope area of work.
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