Decision Date: 4th September 2019
Mr D has cerebral palsy and requires care and support. He had been living with family in Council X’s area where he received direct payments to fund personal assistants.
In July 2018 Mr D moved to the Council’s area and started living alone. He emailed the Council on 3 July 2018 requesting his care package be transferred. He said Council X had agreed to fund his direct payments for the first six weeks after his move. His personal assistants continued to provide the care set out in the care and support plan developed by Council X.
A social worker from the new council visited Mr D on 1 August 2018 to assess his care and support needs.
Mr D’s night time care needs included the following: needing help to go to the toilet several times per night, repositioning (as he was unable to turn over without assistance), helping him when he was sick in the night, and helping him have a drink when necessary.
The social worker produced a care and support plan which had a care package totalling 47.5 hours per week. This included 30 minutes of care each night for getting ready for bed but nothing for later on.
Mr D was concerned the package did not provide enough support during the night. He asked for funding for a carer to stay overnight for three nights a week when he did not have family staying with him.
On 25 September 2018, the social worker told Mr D that night care could not be funded as this would lead to the cost of Mr D’s care package exceeding the maximum ceiling of what was usually paid out for care.
The Council proposed referring Mr D for an assessment for NHS continuing healthcare funding. It advised him to consult his GP about his night sickness, inability to turn over and his pain.
On 5 October 2018, after realising the mistaken statement, the Council clarified there was in fact no ceiling on the funding for Mr D’s care package. The Council said that the comment was retracted as soon as the manager became aware.
Initially Mr D declined a NHS continuing healthcare assessment; he said it was the Council’s responsibility to meet his night care needs. He later agreed to it and also contacted his GP. The Council referred Mr D to neurology, continence, and speech and language therapy services for assessment.
Mr D complained to the Council on 9 October 2018:
- It had failed to meet his night time care needs.
- This left him in a vulnerable position; he had fallen whilst trying to go to the toilet alone, had been sick in bed with no help until the morning, and being unable to reposition himself had caused pain.
- It had given him incorrect and contradictory information and had refused to answer his questions.
- It expected him to reduce his night care needs by approaching other services. He agreed to explore options and contact his GP but said he was not willing to over-medicate or use continence pads as he was not incontinent.
- He asked the Council to provide an emergency package of night care whilst he awaited the outcome of the continuing healthcare funding assessment.
On 28 November, Officer A responded to Mr D’s complaint. The Council accepted Mr D had eligible needs that affected him at night. The Council had asked Mr D to work with other professionals, but he had previously not co-operated, so the Council had been unable to carry out a full assessment of his needs. The Council agreed to fund night care three nights a week for three months, conditional upon Mr D co-operating with the assessments.
Mr D wrote to the Council on 18 January 2019. He said he was dissatisfied with the response and some of his queries had not been answered:
- Why was he told that there is a maximum ceiling of what is usually paid out for care?
- Why had it taken so long to provide him with night care?
- Why had it taken so long to respond to his complaint?
The Council replied on 25 January 2019:
- The comment was retracted as soon as the manager became aware on 5 October 2019 of what had been said.
- Initially it was not clear that Mr D had gaps in his night care and Mr D had “wanted [time] to take in and think about what his assessment would include”.
- The Council apologised for the delay. It had prioritised putting in place Mr D’s temporary support and completing his holistic assessment.
Mr D was later found not to be eligible for NHS continuing healthcare funding or for continence services. Mr D remained dissatisfied and complained to the Ombudsman in March 2019. The Council has continued to provide night care three days a week, reviewing this provision every month or so.
What was found
Firstly, there was no fault in the way the care assessment was done.
The LGO found fault in the care plan, as it did not set out how Mr D’s night time needs would be met.
The Council said it did not immediately fund night time care as it was carrying out an assessment of Mr D’s needs, involving other professionals such as neurology. The Council should have met Mr D’s eligible needs whilst these assessments were being done. If Mr D’s needs changed following the involvement of other services, the Council should then re-assess him and change the care package if necessary. By not doing this, the Council was at fault.
The LGO found that the fault caused Mr D injustice; the Council failed to meet Mr D’s night care needs for three nights per week from July 2018 to November 2018. This caused avoidable distress to Mr D; he had to privately fund some care, and fell during the night.
There was fault by the Council in the way it dealt with Mr D’s complaint. Whilst its procedure sets no timescales, it responded seven weeks after Mr D complained, which the LGO consider to be too long. Furthermore, its response did not deal with all of Mr D’s complaint. The Council has already apologised for the delay; however Mr D had had to chase the Council and seek help from an advocate to pursue his complaint, so the LGO considered he was caused needless time and trouble.
The Council agreed to apologise to Mr D and pay him £500 to acknowledge the impact on him of failing to meet his needs, and pay him £100 to acknowledge the time and trouble he was caused.
Points for the public, councils and advocates:
- This is one of those powerful ombudsman’s reports which make it clear that the LGSCO’s organisation has become the rational remedy to which to resort, if one’s council has been caught acting in disregard of the legal framework, whether inadvertently or cynically, and deliberately. That is especially true if one has more than £8K or a house, because one will not qualify for Legal Help, even if one could find a law firm who would take on one’s case.
- Councils (and to a lesser extent, CCGs) have been cost-capping for so many years that the average social work lecturer probably thinks it’s legal to do it – with all that that means for the ethics of the next generation of social workers. Council legal teams and senior managers know otherwise, however – they at least understand that it might NOT be lawful.
- There has never been a local authority that has been willing to take the issue all the way to court (a bit like the notion of what is an objectively fair price for care, as opposed to an objectively defensible one that providers will sign up to, in a lemming-like race to the bottom). None has wanted to be the one to risk setting the precedent that would disenable all the other authorities from doing it: the luckless Director, in that situation, would doubtless be ousted from the charitable members’ club that is ADASS.
- A council is legally obliged to meet professionally identified eligible unmet NEEDS. It is the decision maker, subject to judicial review on public law grounds, as to how the needs should be met, and the council is legally allowed to take its own financial straits into consideration, and the cost of comparable methods of meeting needs, as long as they are all defensibly adequate and suitable in the first place.
- A person’s needs do not stop at 7pm, in many cases. Night time needs cost more in the real world, to meet, than needs during the day. So if a person needs more than about 3 or 4 visits a day – and inevitably if they need more than telecare-type monitoring at night, or needs double handling, their care could cost more than a care home’s weekly fee.
- If a person’s needs can be seen as ‘health’ needs, primary / CHC or otherwise, ie if the local authority and the NHS have the wit to provide split packages of health and social care inputs, even if these are commissioned by the local authority as agent, or as delegate, for the NHS, then keeping people at home for a rate that is not obviously inequitable or over-generous if one looks at the spreadsheet for each organisation’s finances and spend, is possible.
- The Care Act guidance makes it clear that just because a need could or even ‘should’ be met by another organisation, it’s not acceptable to just assume that it will be or to send the client him or herself off to make that happen. There is the duty of co-operation under the Care Act – a mutual and reciprocal duty in a specific situation to require another partner agency to do something or else explain why NOT, in writing – a really effective fillip to good administration and joint working but only if public officers will actually use that duty (section 7 of the Care Act, please note).
- Councils believe, understandably, that because they could offer a care home, lawfully, as the most cost effective adequate means of meeting needs in the vast majority of cases on their books – they must also be able to offer a budget that is no more costly than a care home would be, even if that sum is known to be insufficient to meet the needs, if the person ‘chooses’ to stay at home.
- That is not what the law, and the notion of a statutory duty premised upon professional judgment, says, however.
- The council can offer a care home to most people if that would be cheaper (not all, and only if following the MCA if the person lacks capacity to consent to being moved to a care home). If it wants to walk away from a capacitated person who says Thanks, but No Thanks, it can do that, because it can’t make the person go into a care home.
- But if a council, because of fear of the local newspaper, the councillor, the MP or the courts, runs after that person and says “How about we offer you a cost capped care package so that you can have it as a direct payment and you decide how to spend it? Then we won’t be blamed when its inadequacy causes you harm…and you get to stay in your own home?” well, that is the council’s choice, not the client’s, and that is the choice to focus on here, we would suggest. If a council makes that choice, then it is still bound by the legal framework, which is to meet unmet need, defensibly adequately but only if it takes into account the relevant considerations: the environment and setting it is focusing the offer within, and that offer must be defensibly adequate to be lawful at all.
- The whole idea of s25 of the Care Act, setting out what must be in the statutory plan – and the interpretation and elucidation of that section in the CP vNE Lincs case, is that the plan must identify how the money will actually meet the deficits identified during the assessment, and reduce the impact of those deficits to something that is tolerable, instead of significant.
- This point – cost-capping – is the single most significant undecided legal issue of the last 20 years of community care law.
- A discussion of it, and all the relevant case law going back to 1996, via webinar recording, can be purchased from CASCAIDr for £100 a download via email@example.com. We broadcast this webinar over 2 years ago, before the Equalities and Human Rights Commission took up arms against over 30 CCGs proudly presenting their Best Value cost capping policies on their websites. Our attitude now, 2 years into the charity’s operation, is that one can lead people to knowledge and legal literacy, but one can’t necessarily make them drink it up and use it, if the knowledge is hard won, and difficult – and especially if they are in crisis at the time when they need to be calm and assertive.
CASCAIDr’s litigation strategy includes this issue, so if it’s happening in your area, get in touch, please. We will only get involved in a case that is unlose-able, in our view, because of its importance for the coherence of public law and duties in social welfare law for the whole country, in difficult times.
If you want 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 Sheffield County Council’s actions can be found here