Bath and North Somerset Council at fault for failing to address the shortfall in a personal budget

Decision date: 20/09/19

What happened

Ms X has a neuromuscular condition which affects her mobility (she uses a wheelchair) and hand and arm movements. She used to receive funding from both the Council and the Independent Living Fund (ILF) to meet her needs. She received both funding streams as payments with which she used to employ PAs to meet her needs 24 hours a day.

The ILF closed in June 2015 and its funding was transferred to local authorities.

The Council continued to provide the funding the ILF used to provide.

Ms X complained to the Council after it failed to address a perceived shortfall in her overall budget, first raised in August 2018, leaving her without enough money to pay her Personal Assistants properly.

Assessing Ms X’s care needs

In May 2015 just after the Care Act came into force, Ms X had completed an updated self-assessment of her needs. The Council’s records contained care and support plans produced around the same time, but they were incomplete and did not say what Ms X’s personal budget was. Nobody followed through with care planning, but the Council continued to provide the funding the ILF used to provide.

The Council accepts there was no Care Act compliant assessment or care and support plan done in 2015.

In August 2018, Ms X contacted the Council and arranged to meet her social worker in September. At the meeting Ms X said her personal budget was not enough to cover the cost of her PAs. She said she had used her direct payments contingency element and provided a spreadsheet with projected spend to March 2019. This showed that by December she would not have enough money left to pay her PAs.

It’s not totally clear from the report but the council knew that from Ms X’s perspective,

  • the current hourly rate was £9.75;
  • the average shortfall was £257.51 every four weeks;
  • this rate did not include any extra costs for bank holidays;
  • in part, pension contributions and increased National Insurance costs accounted for the shortfall;
  • In any event Ms X wanted to increase the hourly rate to £10.00 to £10.50 to retain her PAs, as they had not had a pay-rise for two years;

The Council’s record of the meeting said Ms X wanted the Council to use her 2015 self-assessment as the basis of an application to its Single Panel for increased funding as her needs had not changed significantly.

On 17 October Ms X’s friend and Accountant who was helping her informally told the Council that Ms X did not want screening for NHS Continued Healthcare.

The accountant also said this:

  • Ms X needed an hourly rate of £12.21 but, as this provided no flexibility, £12.50 was the minimum;
  • Ms X paid a higher rate for 24 and 31 December, as the only way to recruit people to work at those times.

The Single Panel was due to consider Ms X’s case on 18 October, but declined to make a decision as there were “no up-to-date documents”. The Social Worker sent Ms X an assessment form, which she said Ms X could complete as a self-assessment or a supported self-assessment with the Social Worker.

Ms X’s Accountant sent the Council a “support assessment” on 19 October. She asked it to consider the application for increased funding before the Single Panel meeting scheduled for 1 November, to allow time for additional funding over Christmas.

The Social Worker told Ms X’s Accountant the earliest date the Single Panel could consider her case was 1 November. The Social Worker said she could not attend that day but an Occupational Therapist who had supported Ms X during the last year would present her case. Ms X objected to this and said she would prefer to postpone the presentation of her case to the Single Panel so the Social Worker, whom she trusted, could do this. The Council said it could not postpone presenting her case to the Single Panel but that a Manager would present her case.

The record of the Single Panel meeting on 1 November reiterated that Ms X had said in her 2015 self-assessment that she needed help with toileting, feeding, repositioning day and night, going out to attend clubs and associations, showering, exercising, activities of daily living, cleaning and gardening. A social care professional had not assessed these needs. However, the Council acknowledged at that point that it had a duty under the Care Act to ensure the information contained in a self-assessment was accurate and complete in line with para 6.44 of the Care and Support Statutory Guidance.

The Council therefore wrote to Ms X on 15 November saying it needed to reassess her needs.

The Social Worker met Ms X on 22 November. Ms X provided an updated self-assessment. She did not give consent for the Council to hold her assessment in anything but paper form.

On 12 December the Social Worker told Ms X it needed to keep a record of the assessment electronically, as that is how the Council keeps all its records.

The Social Worker met Ms X again on 13 December to discuss her assessment. Ms X said she wanted her case presenting to the Single Panel before Christmas, as she would run out of money in January.

After the meeting the Social Worker completed the assessment.

This identified eligible needs that, not being met, would have significant impact on her wellbeing, including:

  • managing and maintaining nutrition
  • maintaining personal hygiene
  • managing toilet needs
  • being appropriately clothed
  • maintaining a habitable home environment
  • making use of the home safely
  • developing and maintaining family or other personal relationships
  • accessing and engaging in work, training, education or volunteering
  • making use of necessary facilities or services in the local community, including public transport and recreational facilities or services.

The Council’s resource allocation system identified an indicative personal budget of £766.60 a week compared to her previous budget of £1918.31 per week.

The Council’s Single Panel was due to consider an application for increased funding on 20 December but did not do so.

The Council wrote to Ms X on 11 January 2019. It said it needed more information in the assessment to more clearly identify the nature and extent of her needs. The Council accepted Ms X had needs which fell within the remit of the Care Act. However, she appeared to have some health needs which might have warranted joint funding with the NHS. The Council said it could not fund such needs, but that the NHS could fund them via a personal health budget. It claimed it needed information from health professionals despite Ms X previously having refused consent for the Council to get information from her GP or Physiotherapist. The Council also said it could not make a funding decision until it had a robust assessment but would continue to provide £1,918.31 a week, and that it would assign Ms X’s case to another Social Worker.

On 16 January Ms X told the Council she would respond to its letter. However, she said the existing funding was not enough to cover the cost of her PAs. She said she would owe almost £7,000 in holiday pay by the end of March. She said she had only been able to pay their wages because her PAs had chosen not to take most of their holidays. She asked the Council to provide some contingency funding.

On 18 January, Ms X replied to the Council’s letter of 11 January and sent it a copy of her manual handling plan.

On 23 January Ms X told the Council her GP would assess her breathing and swallowing on 6 February and that her Physiotherapist had written to the Council.

The Social Worker arranged to meet Ms X on 13 February to reassess her needs and completed the assessment on 11 March after having consulted healthcare professionals. The assessment says Ms X agreed to involve her Physiotherapist and her GP and identified eligible needs.

The Social Worker decided that, although Ms X’s needs had arisen from a health condition, her health needs were ancillary and incidental to her social care needs, and her care needs required the ongoing response and support of another person day and night. The Social Worker said that the current arrangement Ms X had had been meeting her needs well and had prevented health deteriorations which would have otherwise required increased specialist health input.

The outcome of the assessment was to seek approval for continued funding of the current care package with extra funds for increased employer costs (i.e. pensions).

On 18 March, the Council’s Single Panel considered the application for more funding (an increase from £1,918.31 to £2,268.00). It asked the Social Worker to clarify needs – distinguishing a health need from a social care need in line with the Care Act and NHS Continuing Healthcare Guidance.

The Social Worker told Ms X about the Single Panel’s decision and over the next few months the Council obtained further information from other professionals and visited Ms X.

It completed another assessment which the Single Panel considered on 19 August. The Council has not yet told Ms X the outcome.

Ms X’s complaints to the Council

On 3 December 2018 Ms X wrote a complaint to the Council about the time taken to deal with her request for more funding made in August 2018. She also complained about poor communication regarding the Single Panel process and that the Council had refused to disclose her Social Worker’s new contact details or update her about the status of her case.

On 29 January 2019, the Council replied to her complaint saying there was some delay in telling Ms X the outcome of the November Single Panel meeting and apologised, but that more information had been needed to complete an assessment. Ms X’s case had not been presented to the Single Panel since May 2015 and therefore the Council needed an up-to-date assessment to ensure her needs were being met by the most appropriate service. It apologised if Ms X had found the process intrusive, but said that it needed a detailed assessment to understand what support Ms X required. The Council claimed it would only withhold direct contact details if it did not know who the request came from.

On 5 February Ms X wrote to the Council and said that she was dissatisfied with the response to her complaint. The Council wrote back on 22 March with the outcome of its review of the response to her complaint. It said that the times taken to consider Ms X’s request for more funding reflected annual leave, sick leave and her preference to work with someone that she knew. It said Ms X had already received an apology for the two-week delay in telling her the outcome of the November Single Panel and that it could not add anything to what had already been said about the need for more information.

What was found

There could be no fault found with the Council for actually wanting to do a Care Act compliant assessment of Ms X’s needs. However, until such time that it completed an assessment and agreed a new care and support plan with Ms X, it must continue to meet her needs as agreed in 2015. The Ombudsman was of the view that the fact that the Council did not do this process properly should not be seen as having an adverse impact on Ms X. It was after all the the Council who had agreed to continue providing funding to meet Ms X’s care needs at the same level in 2015 without carrying out a detailed assessment of her needs.

The Council was however at fault for failing to address Ms X’s concern that the funding it even provided was no longer enough to meet the needs agreed in 2015. This resulted in Ms X not having enough money to pay her PAs everything they were owed (i.e. pension costs, national insurance and holiday pay). It also failed to produce a proper care and support plan.

The Ombudsman recommended that within 6 weeks the Council should write to Ms X apologising for the distress it has caused and the time and trouble she has been put to in pursuing her complaint and pay her £400. The Council should also increase Ms X’s personal budget so that she can pay her Personal Assistants what they are owed, backdating this to when her personal budget ceased being enough to cover the costs (i.e. increased pension and national insurance costs, and holiday pay) and continue to pay this until it has agreed a new care and support plan with her. The Council has agreed to do this.

Points for the public and for councils

Paragraph 6.46 of the Statutory Guidance says:

“Once the person has completed the [supported self-] assessment, the local authority must ensure that it is an accurate and complete reflection of the person’s needs, outcomes, and the impact of needs on their wellbeing. The process of a supported self-assessment begins with first contact and is only complete when this assurance has been secured. Until the process of assurance is complete and the local authority has ensured that it is accurate, it will not have discharged its duties under section 9 of the Care Act”.

This report makes us wonder what on earth councils think that they are doing when they introduce various forms of streamlined reviews and re-assessments (mostly called Conversations with numbers or letters before or after that word) FOR EXISTING CLIENTS WITH EXISTING CARE PLANS or system slow downs for reviews and re-assessments.

It has been the law since 1995 that once something has been written up into a care plan, then it must be delivered, unless or until a new valid re-assessment has taken place. If a council’s senior management is taking the view that a Conversations- or a ‘Flat Rate Offers of Everything-’ or a ‘Let’s see what telling them an indicative budget achieves – most will just take it-’ based approach can always be made Care Act compliant for those who DO challenge that approach to spreading scarce staff and budget around, they must know NO PUBLIC LAW AT ALL. The person’s rights under the old care plan continue to subsist and form the basis of a seemingly incontrovertible private law right to reimbursement.

Supported Self Assessment was a great hope before the Care Act for coping with austerity but withered on the vine once staff grasped that it didn’t obviate the need for their own work. (As if it ever could! Social work is a profession given the responsibility for gatekeeping under the law, for goodness sake, however un-person-centred and no doubt shocking that is to those driven to try to make things better outside of the legal framework.)

A person who has filled out their own statement of what their deficits and needs amount to has not been assessed: they have put their own view forwards, and that information has to be triangulated, corroborated, evidenced etc – assured in the words of the guidance, just in case it is out of line with what an objective professional view would be.

So it is hugely ironic that this report centres around a person doing a supported self assessment at the point the Care Act came into force, and it not being enough, therefore giving the council all the more apparent time before it had to spend MONEY on meeting needs – but then that inadequacy not being sorted OUT, because of the woman’s own attitude to information sharing.

Any council with any information sharing knowledge will know that the discharge of statutory functions overrides the need for consent to share information.

We think it is interesting in this report that the person who finally assessed the person thought that the care needs, albeit health derived, were still within the scope of the quality (nature and complexity) and quantity (intensity and frequency) of social services, (that is a proper way of thinking about the issue, and a defensible judgment) but that the social services ‘single’ panel thought that they could just disagree and leave the needs unmet.

Tough, we would have to say, applying the law.

Unless the CCG has found a person to have a primary health need, they won’t qualify for Continuing Health Care, which would make for totally free care. When a person fails to qualify for THAT status, it is absolutely right to say that then there should be a consideration of the specific inputs to consider if they should be regarded as properly the responsibility of the health service. If that isn’t accepted, the client can pursue that by way of a complaint, or a judicial review, as there is no ACTUAL national framework for that question or Secretary of State guidance. An alternative is that the council can have it out with their mates in the health service using a supposed inter-agency dispute resolution panel for which there is no ultimate tribunal, but the important thing is THE NEED HAS TO BE MET IN THE MEANTIME: a good half of ALL social care is provided on account of people being ILL, and that is the law – and that means it’s chargeable to them, whereas if it’s a health service, it’s not – the rest of the country funds it through taxation.

When one reminds oneself that the whole period of this complaint there was never a properly concluded care plan after a properly conducted assessment it is no wonder that the LGSCO has recommended backdating to the earliest point of Ms X suggesting that the plan was inadequate to cover what she was having to pay the PAs for the originally agreed number of hours.

We do NOT think that the LGSCO is saying that Ms X can claim to pay the Pas whatever she likes, for a moment: the cost that must be paid back would be the unavoidable costs: pension, holiday pay, NI increases.

We think that the LGSCO is saying that when they get around to finalising a proper care plan, THAT needs to be backdated too to compensate Ms X for the period of greater cost that she establishes NEEDED to be paid regarding the PAs. They stayed on without being given a payrise as to the past, and were being paid more than the NMW anyway. However, if there is evidence that she was under pressure from a particular date, and would not be able to retain them unless they were paid more, that would be able theoretically to be backdated a little and would ultimately have to be acknowledged. This is in line with the law of restitution flowing from unlawful public bodies’ conduct.

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The full Local Government Ombudsman report on the actions of Bath and North Somerset Council can be found here