Decision Date: 4th October 2019
Mr X complained on behalf of himself and his daughter, Ms Y.
Ms Y lived in supported accommodation.
The Council provided a personal budget to Ms Y in the form of direct payments. She employed her parents Ms and Mr X, to act as her PAs and provide care to her. She also paid a care agency to provide support.
In September 2016 the Council carried out a review of Ms Y’s care and support needs. The review was carried out by officer A, a social worker, and Mr X attended the review.
- District nurses had previously attended Ms Y three times a week, but Mr X considered Ms Y required additional personal care each day (due to the nature of the bowel management procedures).
- Mr X also requested an increase in the care package to support Ms Y’s social activities.
- Officer A and her manager considered Ms Y should be assessed by the district nurse to see if she was eligible for CHC funding; however, nobody increased the care package.
- Furthermore, the Council did not increase Ms Y’s hours for social activities, and the assessment process did not explain why.
- Ms Y’s previous care package included direct payments for four weeks of respite care. (Respite care is temporary care provided to a child or adult, designed to give care givers a short-term break). The assessment in September 2016 did not actually consider whether Ms Y still had an eligible need for respite care, but it was left out of Ms Y’s plan/budget.
Mr X wrote to the Council in November 2016 disagreeing with the outcome of Ms Y’s assessment. He said that Ms Y’s increased care needs were not being met pending her referral for a CHC assessment.
The Council agreed to carry out a further review of Ms Y’s needs.
Mr X made a formal complaint to the Council in December 2016. He complained that Ms Y was waiting to be allocated to a social worker, so her care and support assessment could not be finalised and her CHC assessment could not be progressed.
Officer B, a manager, discussed Mr X’s complaint with him on 20 January 2017. After Officer B failed to follow up the call in writing, Mr X escalated his complaint to stage 2 of the Council’s complaints procedure. After this he received written confirmation that:
- Officer B confirmed they would continue to pay four weeks of respite care until Ms Y’s needs could be considered at another review.
- She confirmed that the Council would not increase or decrease Ms Y’s direct payments until it could complete Ms Y’s assessment.
- Ms Y was on the waiting list for a social worker which was prioritised according to the level of risk but officer B could not say when a social worker would be allocated.
- Officer B noted that Mr X had informed her that he and Mrs X were providing more support to Ms Y than they should and would not be able to sustain this in the long term.
In July 2017 officer C, a social worker was allocated. She visited Ms Y and Mr and Mrs X to re-start the re-assessment.
Officer C discussed Ms Y’s care with district nurses to establish how often they needed to carry out the bowel management procedure, and what personal care they could provide afterwards. It was agreed that the procedure was needed daily, which also led to an increase in care needs (Ms Y’s need for hoisting into her wheelchair after the procedure); therefore the Council agreed to increase Ms Y’s direct payments to fund this need.
Mr X requested to be paid via Ms Y’s direct payments to administer her direct payments account. He was already the administrator of her DP, but was doing it for free.
Officer D, who dealt with direct payments, said he needed to discuss this further. His view was that Mr X may have needed to relinquish his administrator role if he wanted to continue to act as Ms Y’s PA.
The record notes officer D would make a further appointment with Mr X to discuss the matter further. There was no evidence to show the Council ever considered Mr X’s request further.
In October 2017 the Council decided Ms Y should no longer receive direct payments for four weeks of respite a year. The Council said Ms Y was not eligible for respite because she lived alone and paid Mr and Mrs X from her direct payments to care for her. Should Mr and Mrs X need a break from caring, Ms Y could fund another carer during their absence using her direct payments.
A March 2018 assessment confirmed that the Council would not pay for respite. The assessment noted that Ms Y went away four times a year, but these trips should be funded by her, as holidays. If care was required, the direct payments should be used for this. However, the LGO report highlighted, Ms Y’s care and support plan did not (at least not clearly) include provision for her own need for holidays or what arrangements Ms Y should make for her care if Mr and Mrs X were on holiday.
In May 2018 officer C visited Mr and Mrs X to discuss the assessment. Mr X requested to manage Ms Y’s direct payments and disputed the Council’s view that he could not as he was a paid PA. Mr X also disputed the Council’s position that Ms Y was not eligible for respite care payments.
In June 2018 the local clinical commissioning group (CCG) decided Ms Y was eligible for CHC funding backdated to 1 March 2017. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’.
Officers C and E (a manager) agreed to Mr X’s request for a one-off short respite break for Ms Y, the increase in Ms Y’s direct payments to be backdated, and for him to be paid for managing Ms Y’s direct payment account.
They agreed to backdate the increased direct payments from September 2016, when the Council first started the process of assessing Ms Y’s care and support needs, to March 2017, when Ms Y became eligible for CHC funding. The records showed Officer E agreeing to this in July 2018, stating she would write to Mr X to inform him of their decision; however, she never did.
The Council made a payment of £877.16 to Ms Y’s direct payment account in June 2018. It was not clear what this payment was for.
What was found
Reviews and reassessments of Ms Y’s needs
The Council’s review of Ms Y’s care needs in September 2016 was inadequate. The LGO found the council at fault because:
- There was no evidence that the Council properly explored if there was a need for the district nurse to attend on a daily basis and whether there were associated care needs such as hoisting.
- The assessment did not address Mr X’s request to increase Ms Y’s hours for social activities.
- The council removed respite care without explaining why or considering how Ms Y would manage if Mr and Mrs X took breaks or whether Ms Y had an eligible need for holidays or short breaks.
The Council agreed to reassess Ms Y’s care and support needs in November 2016. But it then delayed in allocating a social worker to Ms Y until July 2017. This delay was excessive and was fault.
Overall the Council took 21 months to carry out and complete a proper assessment of Ms Y’s care and support needs. The Care and Support Guidance provides assessments should be carried out over an appropriate and reasonable timescale. A delay of 21 months in most circumstances cannot be reasonable and acceptable. It was excessive delay.
In this case Mr and Mrs X told the Council that Ms Y’s care package was not sufficient and they were struggling to provide the care, so the Council should have progressed Ms Y’s assessment quickly. Had the Council properly assessed Ms Y’s needs in September 2016, it is likely such an excessive delay would have been avoided and the council would have had to have increased the package.
Despite her assessment taking 11 months, Officer C was not at fault in exploring whether Mr X’s request to increase Ms Y’s care package to include daily bowel evacuation was a health or social care need. The Council cannot fund health needs so it needed to properly establish if Ms Y’s needs were health or social care.
Ms Y was not entitled to respite care, as she did not live with Mr and Mrs X. The issue was that the Council did not address what arrangements Ms Y would be able to make for her care in order to allow Mr and Mrs X to take breaks, and whether her direct payments would be sufficient to cover the replacement care. The Council did not address this in Ms Y’s care and support plan and this is fault.
Officer C also referred to Ms Y funding care during a break from her direct payments. But this has not been addressed in Ms Y’s care and support plan. Nor has the Council addressed if Ms Y’s direct payments would be sufficient to fund a break, or care provided while she is on a break. So, it was difficult to see how Ms Y could fund such a break when the Council had not assessed if it is an eligible need or included provision for care on a short break in her care and support plan. This was fault.
Furthermore, the September 2016 assessment did not even address whether she was eligible for respite care that she’d had in the past. This was fault.
Payment for managing Ms Y’s direct payments
A key issue was the Council’s consideration of Mr X’s request to be paid for managing Ms Y’s direct payments.
The Council has said Mr X did not request a “managed direct payment account” but this was not the case – it was aware Mr X was managing Ms Y’s account in October 2017 and he requested payment for this in a meeting with officer C and in his meeting with officer E in June 2018. The Council did not consider Mr X’s request at the time he made it or following his meeting with officer E in June 2018 despite officer E undertaking to do so.
The Council’s policy was not to allow a paid carer to administer the direct payment account due to the potential conflict of interest and safeguarding issues. But the LGO said that the Council has to consider the circumstances of each case and whether there are good reasons to depart from its policy, or else be accused of fettering its discretion.
The LGO found that the Council did not consider the circumstances of Mr X’s case, namely that he administered Ms Y’s direct payments on an unpaid basis until she became eligible for CHC funding. There was no evidence to show the Council considered how Ms Y would administer her direct payments without Mr X. The Council’s record of July 2018 even show it agreed to pay Mr X for administering Ms Y’s direct payment account. Therefore, the LGO found that the Council should pay Mr X for managing the account.
The Council’s direct payment guidance states a position that was not unambiguous – it allowed for consideration of actual risk and issues.
‘Local authorities will need to have in place agreement between all parties about what steps to take in case of a dispute regarding the management of the payment by a household family member. This will be especially relevant where the person providing administrative and management is also the nominated or authorised direct payment recipient. It would not be appropriate to allow this where there is a risk that the direct payment may be abused, or there are other sensitivities such as potential safeguarding issues.’
The LGO highlighted that the Council needed to ensure its guidance explicitly refers to its policy that it will not generally allow PAs to manage the direct payment account, unless there are good reasons to do so. This would ensure direct payment recipients are clear about the Council’s policy, and highlight to officers they must consider all circumstances when making their decision on requests to manage direct payments from PAs.
Backdating of payments
In July 2018 Officer E agreed to Mr X’s requests for a one-off short respite break for Ms Y, the increase in Ms Y’s direct payments to be backdated, and for him to be paid for managing Ms Y’s direct payment account. However, officer E did not write to Mr X to notify him of her agreement, and the Council did not make the payments. This was fault.
The LGO stated that the Council should uphold its above agreements.
The Council was also at fault for the delay and manner of handling Mr X’s complaint.
The LGO found that the delays in completing Ms Y’s assessment did not cause significant injustice to her as Mr and Mrs X provided the increased care and social hours to her. However, it was unknown whether the Council would have provided direct payments for short breaks or holidays if it had properly considered if Ms Y had an eligible need for them. It was also unknown what arrangements would have been made for Ms Y’s care in Mr and Mrs X’s absence, which caused uncertainty to Ms Y. Ms Y also potentially missed a holiday as the Council failed to pay the one-off direct payment after agreeing to do so in July 2018.
There was significant injustice cause to Mr and Mrs X. The failure to properly assess Ms Y’s needs in September 2016, the excessive delay in completing Ms Y’s re-assessment and the failure to address how Ms Y’s care would be provided in Mr and Mrs X’s absence caused significant injustice to them. It is likely Ms Y’s direct payments would have been increased in September 2016 had the Council properly assessed her. So, Mr and Mrs X provided unpaid additional care and social support. Mr X was not paid for his time managing Ms Y’s direct payment account. Overall the faults by the Council have caused distress and put Mr and Mrs X to avoidable time and trouble.
The Council has agreed to:
- send a written apology and make a payment of £200 to Mr and Mrs X to acknowledge the distress and avoidable time and trouble caused
- send a written apology to Ms Y for the uncertainty caused
- backdate Ms Y’s increased direct payments for the period September 2016 to March 2017 when she became eligible for CHC funding as it agreed to do in July 2018;
- review its procedures to ensure social workers are allocated to carry out assessments within a reasonable timescale to avoid the excessive delays
- increase Ms Y’s direct payments from 2014 to March 2017 when she became eligible for CHC funding to allow her to pay Mr X for managing her direct payment account for the whole of the time he’d done it;
- make a one-off direct payment to Ms Y for a short break as it agreed to do in July 2018;
- review its direct payment guidance to ensure it includes information about the Council’s policy on carers managing the cared for person’s direct payment account so carers and direct payment recipients are clear about the Council’s policy.
- review its procedures to ensure officers give proper consideration to requests for a carer to be paid to manage the direct payment account.
- review its procedures to ensure officers consider arrangements for care when a PA is not available, for examples, holidays or sickness and detail those arrangements in the care and support plan.
Points for practitioners and service users and family carers
Respite – respite is not a service. Respite is a need, arising from absence of a carer, or a need to get away from one’s home or usual carers. If one’s carer is paid, one has to allow for holidays, and therefore one needs the extra money for paying holiday pay and for cover in the meantime. It’s usually 28 days that a person who’s paid by the week would get, annually. The funding for respite is the service response.
If one’s carer is not paid, all one’s carer need do is decline to be available. The absence of free care generates a need for respite cover, ie money to pay for what is normally provided for free in order that the needs are still met.
A person can be a paid carer for some of the time, and unpaid for the rest. When they go on holiday, one needs to pay for paid cover, and for replacing what would normally be free.
A holiday for the service user is a different thing. Holidays used to be explicitly able to be funded, under the old law, and a holiday can still be seen as a facility, under the new. But councils are generally reluctant these days to fund the actual accommodation, fun or the transport for the service user; it’s accepted that a person can go on holiday at their own expense, and if they need a carer to go with them, then a paid carer will need their expenses paid on top of the normal fee or salary, and an unpaid carer will need their holiday accommodation and transport paid for. If a care company is providing the carer then the question arises are they taking the trip over the period of their own annual holiday allowance, or going away as part of the company’s service, in which case their other roles will have to be backfilled. All of this is complicated and expensive, so it’s very common for a local authority to say that it will fund no more than £x for support to go on holiday as a budget or not allow any more than £x for DRE – it keeps the lid on costs and discourages people from complicating their lives by going away.
Of course some trips will mean that a person gets their care from relatives at the destination end for free and if sufficient notice is given to a person who would otherwise be charged for, that money may be saved and possibly allowed to be put towards the other costs that would not normally be funded publicly.
No principles can be stated without really knowing the facts.
We do think that it is hard to say that a person needs a holiday in order to meet their needs. We prefer to see respite as being cover for a carer to go away, or the means to give the carer a break by the person themselves going away but the question of how that should be funded is not clear in legal terms.
On the question of administering a direct payment, we think that the following principles emerge from the law and guidance regarding doing the actual care, along with the possibility of being self employed to do the payments administration:
A person who can nominate a person to help them manage, is still the employer in legal terms. So their manager is not the employer AND the employee at the same time. The manager is helping the real employer discharge their duties towards the employee.
A person who cannot nominate a person to help them manage, in terms of capacity, needs an Authorised Person. We are sure that the Authorised Person is the principal, not a mere agent. That means that if anyone is employed, the AP is the employer, and thus in this situation, that person would be both the employee (for the care) and the employer, which we agree is a daft position to put anyone in, even if the HMRC could understand the purpose of an arrangement like that.
It’s even more complicated if the Authorised Person is a deputy or attorney for finance and the service user is chargeable out of their own money towards the cost of the budget – because that status confers statutory agency, and that means that on paper that the individual is both agent and principal on the employment contract, for the employment role, AND the employee for the care, which is mind boggling.
A person can however be paid up to £1000 a year as a self employed anything now, without registering with HMRC, to reflect the reality of the gig economy, and the payments administration part of the Care Act regulations on direct payments hint at that being the better way to go about it – a fee per week, perhaps.
The part of the report on restitution for the work the parents put in is interesting. We think that it was issued a day after the decision in the Court of Appeal on 3 October in CP v NE Lincs in which restitution was ordered (a reasonable sum for the work done) for a period of an unlawfully inadequate care plan. We think that had the investigating officer known about that, it is likely that the recommendation would have included the notion that the couple should have been compensated for work that it was clear went beyond what was being willingly provided.
We think that the LGO is simply wrong on health needs funding in not finding fault for not upping the package pending a health decision. It is trite law that there are many needs that are both social in nature, as well as being health driven or related. It is well understood that a public body’s decision is lawful until otherwise challenged, so even if the social worker suspects that the needs are on the health side of the line, the council can’t simply say no, it isn’t meeting them, or no, they can’t be social care needs. That would be the sort of position that one would simply have to judicially review.
Other points of law or interest implicit in this report:
- It’s not ok to have a policy which firms up into a rule – fettering of discretion is a wrong.
- It’s not ok to make a cut without explaining the justification such as a lessening of needs.
- It’s not ok to ignore relevant considerations such as evidence of an increase in needs
- It’s not ok to ignore an explicit assertion that the carer is not able to do any more than they’re doing, whether paid or unpaid!
- It’s not ok to make a care plan so vague that it’s not possible to discern from it what it is supposed to cover; if it’s employed care, staff’s holiday absence cover will be essential and should be part of the calculation.
- It’s intriguing that the LGO report did not evaluate the legitimacy of the policy on PAs being administrators, by reference to the framework for the management of DP accounts where the person is cognitively impaired rather than incapacitated to understand a DP at all.
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The full Local Government Ombudsman report Somerset County Council’sactions can be found here