Council at fault for failing to assess needs properly

Ombudsman’s decision date: 20 May 2019

What happened:

Miss X is an adult with a genetic disorder affecting her ability to do things for herself. She is registered blind.

The Council reviewed her needs in September 2017. It recognised that her needs had changed, and agreed a care and support plan. It stated at this point that Miss X required 24 hour support via a live in carer (for which service she had been using her personal budget of £766.50 a week) and personal assistants would supervise Miss X to complete some of her own domestic work. The Council suggested using a care phoneline as an alternative to overnight care, but Miss X did not want one.

The Council told Miss X they would then review her care and support plan in March 2019.

However, in February 2018 an early review took place which showed that Miss X needed support with mobility, was independent upstairs (but would benefit from a second rail on the stairs), was largely independent using the toilet, but needed help using the bath. Miss X’s father refused the extra safety rails.

The Council visited again in March 2018. The assessor took the view that some aspects of her health had improved. It was noted that Miss X could walk independently into the kitchen using the walls/doors for guidance and could find most of the tools she needed to make a hot drink. The assessor did have to help Miss X when pouring out water to make sure she did not scald herself.

During this visit Miss X told the assessor that she had no problems sleeping and did not get up during the night, therefore the assessor (again) suggested using a carephone for night-time support instead of a PA. However Miss X and her father did not agree to this because they had concerns about response times.

Miss X’s personal budget was reduced to £415.80 a week to pay for 36 hours of care and the Council produced a care and support plan based on this new personal budget. Miss X was told shopping, cleaning and laundry would no longer be part of her funded care package. Her budget was decreased as the Council held the view she was more independent, and therefore needed less help in regards to mental health, personal care, medication etc.

A reduction in a care plan is not in principle unlawful on the basis of a change in needs, if there is a solid evidence basis that the needs or at least the dependency has somewhat resolved through the coming about of an improvement or a lessening of dependency on paid care or the arrival of a new source of free care.

In June Miss X’s Solicitor complained to the Council about the decision to reduce her personal budget from £766.50 to £415.80 a week. While accepting her needs had reduced, he said it was not right to say she needed no help with medication, mental health or personal care. He said her need for help with communication, continence, housework, meals, medical appointments and mobility remained unchanged.

Also the Council had previously stated that they would review Miss X’s care and support plan in 2019, not 2018.

The Council responded in November stating that it was reasonable to review Miss X’s care and support plan within six months (which is true, in legal terms – they can do it as often as they like, in fact). They also agreed that although Miss X’s needs with communication and medication had not changed, it was reasonable to propose alternative ways of meeting those needs (which is also true, in law, and can be just the sort of change of circumstance that should trigger a re-assessment. Financial pressures meant that the council had to consider other ways of supporting people, such as the carephone that had been suggested. They also highlighted that the offer of rails had been declined and agreed to discuss further the impact of housework and cleaning on Miss X.

What was found

The Ombudsman could not find the Council at fault for reviewing Miss X’s needs within six months. The LGO decided that the date of March 2019 for the next review as stated in the care plan was a ‘clear mistake’ which was meant to say March 2018.

The LGO found that the Council was at fault for failing to do a proper needs re-assessment. When the Council identified changes in her circumstances it should have done a needs re-assessment before changing her care and support plan.

The LGO had to spell that out because without a needs assessment, it was unclear what her eligible care needs actually were at that time – and the Care Act says so in section 27 under the heading ‘Review’.

The council identified that these were the needs without specifying how much of anything was actually needed, and whether from family members for free or needed from a PA – which makes it difficult to challenge, unless it is accepted that the relatives were in fact willing to step up. This list is not actually the full Care Act domains list, please note – it contains some that are not relevant and misses out some that are:

  • communication – PAs and family to help with reading written communications; [so the split between the two has been left vague]
  • continence – PAs to help with occasional incontinence; [no input or number of hours is specified]
  • finances – Miss X’s father to help with finances and a company to manage her direct payment account; [management of finances is not part and parcel of the Care Act vision of what inability to achieve should then trigger as an entitlement]
  • housework – Miss X to employ a private carer; [how was this ‘agreed’ we wonder?]
  • social – eight hours of support from a PA; [this is a proper recording of inputs and not just outcomes]
  • meals – one hour of PA support at breakfast, lunch and tea to prepare meals and encourage Miss X to do what she can; [this is a proper recording of inputs and not just outcomes]
  • medical appointments – to contact the NHS for help if this is needed; [support, although not transport, to access to appointments can be a social care task: there is authority for that proposition as a matter of law]
  • medication care – help would be needed if prescribed medication; [what does this mean, we wonder? Help would be provided?]
  • mental health – Miss X said having a PA with her all the time prevents her from becoming anxious; [what does this mean, we wonder?]
  • mobility – equipment offered but not accepted;
  • personal assistant – eight hours to employ a PA for “social hours”; [this is a proper recording of input]
  • hygiene and dignity – PA to provide support, while maintaining independence; [unclear as to how much of this – even roughly – is accepted to be needed, so it makes the sufficiency of the budget unaccountable]
  • shopping – using benefits to employ a PA to take Miss X shopping, use an agency or order food online; [this is fine if the client is willing to do it or volunteers, but not on the footing that social care doesn’t ‘do’ this sort of thing]
  • equipment – offered but declined;
  • accommodation – Miss X rents a property from her brother;
  • laundry – PA to encourage Miss X to do what she can, use benefits to buy help from a PA or a care agency. [this is fine if the client is willing to do it or volunteers, but not on the footing that social care doesn’t ‘do’ this sort of thing]

The Act and Statutory Guidance say a care and support plan must include the needs identified by the assessment and “whether, and to what extent, the needs meet the eligibility criteria”.

Miss X’s new care and support plan did not address the eligibility criteria which demonstrated fault by the Council.

Although the Council was at fault for failing to do a proportionate needs re-assessment, the LGO stated that it could not be demonstrated that the council had failed to meet Miss X’s eligible needs. This is because the Council did not clearly identify what those needs were, and it was clear Miss X had become more independent since 2017.

The LGO stated that the Council needed to take action to ensure it properly complied with the requirements of the Act and Statutory Guidance in the future and remedy the injustice to Miss X by apologising and doing a needs assessment within six weeks.

Points on which practitioners and service users/carers/advocates could reflect, in light of this complaint report:

Section 27 of the Care Act makes review, and revision, where it is considered necessary, a statutory process, with definite steps and due process rights attached to it.

It provides for review from time to time, or as per a schedule, or on the basis of any reasonable request by or on behalf of a service user. Change of circumstances is not a trigger to a review, but to a re-assessment if a review has given rise to perceived changes affecting the plan, although the re-assessment is not a repeat every time of the full s9 assessment function, or the s24/s25 care planning function. All the due process rights attached to those steps are re-enacted specifically for a proportionate re-assessment of need and a fresh planning process, with discretion being left open to the council to decide how far back to go. In a case where the needs are perceived to have lessened, a deeper re-assessment must be done, because the improvement may have affected a person’s ability to achieve, (as defined by the regulations) OR the impact sustained as a result of being unable to achieve, both of which issues go to eligibility.

  • Is your council doing reviews so often that they never actually implement a care plan based on the previous review?
  • Is your council doing review for no good reason, or only ever for changes of circumstance that benefit the council (like a drop in the market price, albeit highly unlikely in 2019 due to lack of provider capacity and massive staffing problems – or a new way of meeting need, which saves money)?
  • Is your council accepting requests for reviews from people or their proxies, even if a scheduled review is not yet due? Is your council giving reasons for any refusal to do a review when one is asked for?
  • Does the council distinguish between requests for reviews by providers, who are under contract to the council already, to discharge certain functions in return for a fee, maybe regardless of what’s become of the client’s state of need?
  • Is the council care planning after a review on a woolly or unclear basis that stresses outcomes instead of outcomes and INPUTS – ie the input that is anticipated to have to be bought in and paid for sufficient to meet the assessed eligible unmet needs? We appreciate that Direct Payment clients have every interest in outcomes based specifications because they allow for flexibility and choice, but the other side of that coin is that there’s an inbuilt potential for disputes about what was a legitimate spend on adult social care needs, and what should simply not have been regarded as envisaged by the care plan – and for reclaim demands.

If you want help with regard to using law and legal principles to resolve matters such as these, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the website.

The full Local Government Ombudsman report of Kirklees Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-011-052

Please share:
error