Ombudsman’s decision date: 02/04/2019
Mr X had a physical disability, following an accident, and other chronic physical illnesses. He has been in receipt of a personal budget from Norfolk County Council for a number of years.
In July 2017, Mr X was informed that his personal budget was to be decreased significantly. It offered 17 hours per week of support to help with meals, medications, cleaning and access to the community. The amount, according to him, went from £19,147 to £9,559.
The Council told Mr X it no longer provided financial support for transport, petrol costs, window cleaning, hobbies and interests, short breaks and family activities, although these were seen to be important to preventing and reducing his needs.
A letter was sent to Mr X outlining his personal budget. A care plan was drawn up which was not consistent with the letter sent to Mr X – it contained extra hours for some of the things it had said it would not fund.
Mr X complained to the Council for changing his personal budget despite his needs not having changed (although that is not necessarily unlawful, in public law terms).
The Council stopped paying for travel to activities saying that he should pay for that out of the mobility element of his PIP).
It reduced the hourly rate for personal assistants, but later reinstated this after he complained that the new rate was insufficient in the market.
It repeatedly sent him documents, giving him conflicting information, and it delayed significantly in responding to each of his successive complaints.
He said the Council had not considered the impact on him of removing parts of his previous support plan. He met with the Social Worker in November 2017 for another look at his needs.
Mr X explained how his health and physical disabilities impacted on his ability to manage his needs without support, and the impact of this on his day-to-day life and wellbeing. He now felt isolated and at risk of physical and emotional decline.
He explained the personal outcomes he wanted to achieve and what support he felt he needed to achieve these.
The Social Worker told Mr X they would create a new plan for management approval.
However, Mr X did not hear anything further. Six months later, in May 2018, Mr X again wrote to the Council.
The Social Worker replied apologising for the delay in sending the documents to him and the distress this caused him.
The new plan said that Mr X’s needs for care and support in the future would be prevented or delayed by Mr X fully accessing the community with the support of his PA, being able to spend quality time with extended family, and not being limited by petrol expenses. The new care and support plan included 20 hours PA support, for personal care, home environment, laundry, meals and undertaking personal activities. Petrol costs would not be included in the personal budget as the Council still expected Mr X to cover this using the mobility element of his Personal Independence Payment.
The Council still did not explain however, how the new personal budget relating to his needs was drawn up and did not allow him to use the budget in a way that he felt met his needs.
This left Mr X feeling as though he had no choice over his personal budget, that his mental health and wellbeing was negatively affected, and that he had lost his independence making him feel isolated. Furthermore, Mr X felt that responses to complaints all took too long.
The Council told Mr X it had decided not to fund certain things because they did not fall into the “specified outcome categories” in the Care Act. The Ombudsman found that the Council applied this list to Mr X’s case strictly, with indifference to his individual needs and wishes, thus fettering its discretion. The Care Act lists specific eligibility categories and outcomes. However, it does not specify what support can be arranged to meet those outcomes, and so the Ombudsman found that the Council’s reasoning is flawed.
The LGO concluded however that Mr X was not properly involved in the process of review and assessment and his wishes and wellbeing were not taken into consideration. (See Care and Support Statutory Guidance Paragraph 10.5; Section 1 Care Act 2014).
The Council did not adhere to required processes under the Care Act 2014 with regard to the lack of involvement opportunity in the care plan; the lack of or the long delay in provision of paperwork; and when the plan did arrive there was not enough detail to comply with the Act; and finally, the provision of contradictory and historical information.
The Ombudsman said that the Council’s assessment of November 2017 would have been suitable as a remedy for Mr X’s complaint, had it resulted in a Care Act-compliant care plan. However, the Council had not provided Mr X with an updated assessment or care plan even following this further attempt to discharge its functions.
Following the ombudsman’s involvement, the Council agreed to apologise within one month for the cumulative effect of repeated faults regarding lack of timely response to complaints and lack of provision of an up-to-date care plan in spite of Mr X requesting one on a number of occasions.
The council was ordered to pay £1000 over and above Mr X’s personal budget in recognition of the distress that the Council’s faults had caused Mr X and for the avoidable time and trouble he went to in raising his complaint.
The Council agreed to produce a care plan for Mr X compliant with the Care Act, that clearly set out eligible needs and outcomes, and took into account Mr X’s wishes and wellbeing within two months. The Council should provide evidence to the Ombudsman that it has carried out these actions.
Legal Issues not specifically mentioned by the LGO
- It is not lawful for the Council to oblige a person to spend their PIP mobility allowance on care and support needs including costs of transport for leisure or education, or travel expenses for their PAs, or treat their benefit as defeating eligibility.
- And they can’t COUNT the mobility allowance for charging purposes.
- But they are allowed, under the Charging Regulations, to take a person below the Minimum Income Guarantee by charging full cost for any transport that IS provided, as a ‘non-care service’ (transport, shopping, cleaning etc are the examples given) so a council CAN say ‘there is no point in your not spending your Mobility Component on meeting your own needs’.
- As his needs had not changed one might think that the budget could not be changed but that is not the law. Cuts can be made on the footing that the last allocation was more generous than the minimum and that what is being offered now is still adequate and appropriate.
- Finances are able to be taken into account in relation to HOW needs are to be met (not WHETHER they are to be met, however). See Para 10.86 of the Guidance, based on the case law over many years.
- It is not lawful to make changes to a care and support package just because a Council wishes to address deficit cuts because that would be letting council budgetary difficulties determine the person’s own budget whereas assessments and care plans must be needs-led to be lawful.
- All councils have an obligation to explore subjective views of impact and preferred outcomes (see the Merton case). They must set out all identified needs (see s12); and the eligible needs (see s13); and the council’s care plan must identify how each of them is going to be met, and if not, why not (for instance because a carer has said that they’d be willing and available to meet some of the needs – CP v NE Lincs) (and see sections 24 and 25 Care Act 2014).
Considerations for professionals in health and social care public bodies
- Are you following a ‘conversations’ model that is not compliant with the Care Act?
- If so, how do you let service users know that they are entitled to deeper and more probing processes?
- Are you doing enough to be able defensibly to say that you’re involving clients and giving them the paperwork, to which they are entitled?
- Have you let reliance on assets and strengths and community based resources as a means of meeting need, blind you to the fact that signposting to them must be rational, accessible and not dependent on a person’s own financial situation?
- Have you fettered your staff’s discretion by reference to flat rates, or bans on budgets being used for specific types of things that are not excluded as aspects of care and support, without a lawful reason?
- Have you trained your assessment and care planning staff how to explain about by mobility allowance may as well be spent on meeting one’s own needs privately, whilst you cannot make a person do that, or assume that their mobility component will be enough for all of their care and disability related transport needs?
Questions for Clients / Service Users
- Does your council behave in any of the above ways, because if so, it may not be a complaint that you need to make, but a referral to the Monitoring Officer of the council, who is the lead on governance, in relation to illegality. Writing the complaint as a complaint but copying it to the Monitoring Officer highlighting points that you think might be breaches of the Care Act is the best free way to get a resolution, if the council still has any regard for the rule of law.
If you want help with that, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.
The full Local Government Ombudsman report in to Norfolk’s conduct can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-012-892