Council at fault for prematurely reducing support hours resulting in unmet eligible needs

Decision date: 18 Jul 2019

What Happened

Miss X has Asperger’s Syndrome, anxiety, depression and obsessive-compulsive behaviour. She has lived in a National Autistic Society (NAS) supported living scheme since 2008. She also has support from a mental health charity.

A February 2016 assessment of Miss X concluded that she had eligible needs in:

  • Autonomy
  • Personal Care
  • Practical Domestic Tasks
  • Meals and Nutrition
  • Friends and Being Part of the Community
  • Access to Work, Education and Learning
  • Transport
  • Keeping Safe from Harm and Helping others Around me Stay Safe

The Council completed another assessment in April 2017 (which was wrongly dated as 2016), which concluded that her eligible needs had remained much as they were in 2016.

However, the Council reduced her care package from 50 hours per week to 31. Miss X was also referred to the Council’s enablement team for short term support.

On 11th July 2017, a social worker visited Miss X, along with a worker from the Council’s enablement team to complete a short-term support plan. The support plan set out desired goals; to develop cooking skills and social interaction in the community, and to reduce reliance on support from NAS.

Miss X received 21 weeks enablement support from 2 August 2017.

The Council held a review in November 2017. The enablement support was ongoing and recorded as going well. The review document was unsigned.

However, Miss X said she was unhappy with the reduced support hours. She said she was no longer able to take part in activities she enjoyed which played a vital role in maintaining her mental health. As a result, she felt isolated and spent more than eight hours alone every day. She also said that the Council also refused to acknowledge her need for support to prepare meals at least twice a week, forcing her to rely on microwave meals.

Her representative submitted a complaint to the Council on her behalf in November 2017, saying it had failed to consider Miss X’s needs and the impact reducing the care package had on her mental health.

The Council met with Miss X and her representative in January 2018. Both parties agreed to put the complaint on hold to allow the enablement team to continue to work with Miss X and a subsequent review to be completed.

Over the 21 weeks of enablement support, it was recorded that “despite introducing techniques to manage [Miss X’s] anxiety around cooking, enablement observations were that [she] became anxious and easily distracted which could potentially become a risk when using the hob”. Support workers recorded that Miss X could prepare simple snacks and use the microwave.

The enablement support ended in March 2018. The final review showed that Miss X achieved goals in accessing the community and making friends, but she did not achieve the goal set for managing and maintaining nutrition.

The Council completed a multidisciplinary review of Miss X’s needs in August 2018. Miss X was present, along with her parents, a representative from a mental health charity, NAS, and a nurse from the community mental health team. 

  • Miss X expressed her dissatisfaction with the amount of support she was receiving, requesting a further 30 minutes per day of support for meal preparation, and additional support for social activities.
  • The NAS worker said Miss X was unable to plan, prepare and cook fresh meals independently. They also highlighted the fact that when [Miss X] had first left home to live independently she had required the 101 hours per week and progress has been made slowly.
  • The nurse (who saw Miss X every six months)  said that Miss X was stable, there had been no hospital admissions, but when she “last saw [Miss X] with her support worker in May 2018, they reported concerns that the support hours were under review again and felt that [Miss X’s] activities were rushed”.

The outcome of the review concluded Miss X needed support with most daily living tasks, some more than others. 

However, the allocated support hours remained unchanged, at 31 hours per week to be “used flexibly throughout the week”.

Miss X remained dissatisfied with the level of support she was receiving and reiterated the impact the reduced hours were having on her wellbeing. Her representative submitted a second formal complaint to the Council, following which the Council met with Miss X and NAS again in October 2018. 

A letter sent to Miss X outlining the outcome of the meeting stated that the support hours would not be increased and “I have explained to [Miss X], Adult Social Care has a responsibility to meet people’s eligible needs; this may not always include everything that people feel gives them the life they want, but direct payments allow people to prioritise and decide which areas are most important to them in meeting their outcomes”.

Currently, Miss X receives 31 support hours a week funded by a direct payment. NAS provide the support. A mental health charity acting as Miss X’s representative says Miss X is unable to attend social activities/groups alone and she spends many hours alone each day. She receives no support to prepare meals and relies on microwave meals.

What was found

The Local Government Ombudsman (LGO) found that the Council failed to properly consider a person’s physical and psychological needs. They must consider how a person’s needs may change or fluctuate and consider how it impacts on their wellbeing, which they did not adequately do.

It was not wrong for the Council to consider whether Miss X could increase her independence with support from the enablement team. However, it was wrong to reduce Miss X’s support hours, before the enablement support even began. At the point in which they reduced her hours, it couldn’t be known whether Miss X would be able to achieve the set goals, because they were untested. It was premature to suggest any reduction in support.

The Council says it reduced Miss X’s support hours to reduce her reliance of NAS support workers and increase her independence. It was clear she was unable to achieve these outcomes. Whilst she attended some ‘taster’ sessions’ in the community this was done with support, she was unable to attend all sessions, and was unable to maintain independence in accessing the activities she was introduced to. Consequently, she became increasingly socially isolated. The Council failed to address this.

The Council’s records showed that Miss X was unable to achieve independence in maintaining and managing nutrition. The Council’s assessments in 2016 and 2017 highlighted this to be an eligible need. It is not acceptable to suggest a person can manage on microwave meals alone. Where a person has an assessed eligible need, the Council has a duty to meet the need. In this case it is clear Miss X has eligible needs which are not being met. This is fault.

In accordance with national policy, support planning should be person-centred, and the person must have every reasonable opportunity to be involved in the planning to the extent that they choose and are able. The Council failed to do this which amounted to fault. Following the cessation of enablement support the Council implemented a support plan, despite objections from Miss X and her representatives. It made no reasonable attempt to resolve the dispute and reach an agreement. This effectively denied Miss X a voice. This is contrary to the principles and spirit of the Care Act.

To remedy the injustice caused, the Council will:

  • undertake a full reassessment of Miss X’s needs, taking account of all her physical and psychological needs, and the fluctuating nature of these needs. It should include the views of significant others in her life;
  • draw up a support plan from the assessment, and take all reasonable steps to reach agreement with Miss X;
  • provide Miss X with an apology from a director of adult services for the failures set out above, and make a payment to her of £250 for the time and trouble she has been put to pursuing the complaint with the Council and the Ombudsman

Points for the public

Lawful cuts can be made to care packages. The fact that one has had a budget for a given number of hours does not mean that that will always be the only lawful offer.

One obvious situation is where a person’s needs have objectively and evidently lessened. Case law says that if that is the council’s view, it needs to articulate that, rationally and transparently (the Killigrew case, involving Birmingham, from the late 1990s!)

Another situation is where there’s a reasonable belief that a new way of meeting need, using equipment or community based assets, can feasibly be adequate to continue to meet the need. That’s a view that has to be held genuinely and rationally by staff, on the facts of the individual’s actual condition, resilience, frailty, vulnerability and needs, because of the duty to promote wellbeing, and not just because the review team needs to make cuts overall.

Another situation is where a council genuinely believes that last time round its staff took leave of their senses and allocated money on the basis of want instead of need, or ignorantly and over-generously, perhaps not knowing any law. In that situation, they can of course offer a less generous package, and explain the error of their ways.

Another situation is where the market rate has gone DOWN, rather than up. That’s not worth a council suggesting as an explanation in the current market in 2019, perhaps, but if for instance the market were suddenly flooded with people from abroad, who were willing to live in this country and work in social care and they had the right to do so, the rate could go down, simply because of supply exceeding demand.

Another one is where they genuinely think that what they have been providing is doing some positive harm to the person, by undermining their independence, for instance, by making life too easy. That’s a difficult position for a social worker to advance, if someone is able to explain what difference the service makes to their lives, but it can be done, and has been done, in at least one decided case.

The point of all the above scenarios is that the council is the decision maker and can make cuts if it has good reason to – and is transparent about its reasoning; but not if it has no lawful reason to point to, or is just operating reviews so as to save money, by way of a strategy of starting off making savage cuts to any high cost package, and then waiting to see if anyone fights back.

Many will not be able to. So that approach maximises the power imbalance and is the antithesis of social work values and person-centredness.

Here, the LGO underlined that the council made no reasonable attempt to resolve the dispute and reach an agreement.

It’s not ok to cut someone’s hours BEFORE a lawful re-assessment or before an enablement service has been put in to trial someone’s capacities and inabilities.

It’s not ok to leave someone alone for 8 hours a day, if it does not promote their wellbeing.

It’s not ok to say that microwave meals are sufficient on their own for someone’s nutrition needs.

It’s not ok to say “We do now know that you’re not coping, but here’s an inadequate budget for you to spread as thin as needs be – it’ll be up to you to decide what’s best to do with it!” – because that fudges the distinction between what a professional thinks of as a want, and what is accepted to be a need.

If it’s a need it has to be met, rationally and appropriately.

If you want legal help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of Leicester City Council’s actions can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-016-053

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