Decision date: 6/11/19
Mr Y is on the autistic spectrum and lives at home with his parents who provide day to day support. Through direct payments he has been receiving 13 hours weekly support, at a rate of £22 per hour from a provider for approximately the last 12 years.
In the Council’s ‘Review of Community Care Assessment’ of September 2014 it was recorded that the hourly rate charged by the Care Provider was higher than the Council’s ‘usual rate’. It decided that Mr Y should continue to receive the support for one year until another provider could be found that could provide the same level of support. However, neither Mr Y nor his family were told about this plan and it was not implemented until 2017, when the Council realised it had not completed a review of Mr Y’s needs since 2015.
A social worker visited Mr Y and Mr & Mrs X on 3 November 2017 to put that right. Mr X said that the family were not made aware that a review was taking place.
The social worker recorded that the Council had failed to inform Mr Y and Mr & Mrs X of the Council’s panel decision in 2015, that funding for the Care Provider at £22 per hour had been agreed for one year “…with the intention of planning a transition period over to another service to bring [Mr Y’s] support hours back within the service rates.”
The social worker’s manager said that Mr Y could continue to receive support from the Care Provider but would have to contribute the difference between the Council’s rates and the Care Provider’s.
The social worker contacted the Care Provider on 27 November 2017 to discuss a reduction in the hourly rate from £22 to £18 per hour. This was not followed up with a formal written agreement.
Mr Y’s state benefits were not enough to cover the shortfall. Mr & Mrs X contributed towards the cost. Mr X said they had little choice to do so if Mr Y was to retain a service that was vital to his wellbeing.
Mr X was told that Mr Y would be allocated a different social worker, a new support plan would be completed and a carer’s assessment of Mrs X would also be completed.
The new care and support plan was completed on 6 April 2018 where the social worker told Mr and Mrs X “that changes to packages are required due to the reduction in funding from central government.”
On 29 June 2018 Mr Y received a letter that said his weekly direct payments had been reduced from £286 per week to just £196.50. The Council had backdated the decrease and therefore there had been an overpayment of £1162.72, which it planned to recoup from the next two direct payments at £786.24 per month. This left Mr Y with no direct payments to pay for support from the Care Provider in July and August 2018.
Mr X contacted the Council several times to complain and query the changes.
The Council wrote to Mr X in August 2018 to apologise for the lack of written confirmation about Mr Y’s decreased budget. It agreed to waive the backdated decrease.
The Council said: “Because [Mr Y] is using a provider who charges above the core rate, the difference per hour needs to be made up to the correct amount. This applies to any person who chooses to use a different provider whose charges are above other agencies and whose charges are not in line with the County Council agreed costs (core rate)”.
On 28 September 2018, the Council met the Care Provider to discuss Mr Y’s service and the hourly rate. The Care Provider agreed to charge £18 per hour and refund Mr Y the £728 extra he had paid over previous 14 weeks.
On 1 November 2018 the Council wrote to Mr Y to say following a consultation on charging for care services, it changed the way it calculated how much people paid for services. This meant that Mr Y’s direct payment would be reduced to £178.13 from 12 November 2018.
The Council wrote to Mr & Mrs X again on 17 December 2018 to say it had not given service users sufficient notice of the changes before implementation. To put that matter right it postponed the changes until April 2019 and apologised for any distress caused.
The Council provided the Ombudsman with a copy of its ‘Social Care charging leaflet’ which explained the changes the Council was making to “implement the Care Act and balance the books…”.
It explained that “citizens:
- will receive social care if there is no other way of supporting you
- will be provided with social care support in the most cost-effective way. This might mean that the Council will not wholly fund your preferred service… You will be expected to do as much as possible for yourself and to seek help and support from your family and friends before approaching the Council.”
The Council has since stated that the Social Care charging literature was out of date and was no longer in use. It provided a copy of its current literature ‘Supporting Adults’ which is Care Act compliant. The Council did not say when the change was implemented.
Mr X said that he had attempted to contact the Council, but that it had not engaged with him since he complained to the Ombudsman.
In April 2018 the Council completed a carer’s assessment for Mrs X which concluded that she had eligible needs as a carer and that she was entitled to £150 for a carer’s break as well as £1600 a year for respite. However, Mrs X had yet to receive a copy of this assessment and had not to date received any of the allocated funds.
What was found
In this case, the Council failed to assess the person’s needs properly and in accordance with the law. It was found at fault and responsible for injustice caused to Mr Y and his family.
To remedy the injustice caused, the Ombudsman stated that the Council should:
- provide Mr Y and Mr & Mrs X with an apology from a director of adult services for the failures set out above;
- review Mr Y’s assessment and produce a care and support plan which reflects his needs over a 7-day period and explain in detail, how these needs will be met, in consultation with Mr Y and Mr and Mrs X;
- make a symbolic payment of £1,000 to Mr Y to acknowledge his stress and worry and loss of respite service as a result of the Council’s failure to assess his needs and provide adequate support;
- reimburse Mr and Mrs X all monies they have paid to top-up Mr Y’s care;
- complete a new financial assessment and consider all relevant DRE;
- make a symbolic payment of £1,000 to Mrs X to acknowledge the Council’s failure to provide allocated respite funds;
- review Mrs X’s carer’s assessment and produce a support plan setting out how her needs will be met.
Within three months, the Council should:
- consider if other service users may have been affected by arbitrary upper limits on hourly rates, and take any necessary action to address this;
- amend its procedure to ensure the Council does not set arbitrary limits of hourly rates; and
- take steps to actively publicise its current literature and address our concerns (see paragraph 75) about the previous literature it has issued.
Points for the public, councils and service users and their families
Changing a person’s budget or plan
- There is no legal principle for service users that just because one has had something before, or even for a long time, that it must necessarily still be regarded as a need, or continue in the same form. This is all public money, the flow of which turns on continued satisfaction that a person has eligible unmet needs, after all.
- It is the law under s27 of the Care Act that a plan cannot be changed until a proportionate re-assessment has taken place, and although that’s not one under s9, it is subject to all the same principles, including the duty to promote wellbeing in all the guises given to that notion by s1 of the Act.
- It can be an inescapable consequence of a person’s condition that change is particularly hard to accommodate, and councils have to take account of that – it’s an inevitably relevant consideration, and there’s case law saying so, going back to the 1990s (Avon).
- Changing a home care provider is not against the law, even against the wishes of a client; funding a package based on the cost of alternative providers is not against the law, but only if they have been found to be willing and able in light of all relevant considerations, including the skill level required. The LGO said this:
- The Council says it wanted to transfer Mr Y to a cheaper service. However, it had not identified a suitable alternative. It is not acceptable for the Council to reduce support based on a supposed cheaper care provider that does not at present exist. It is not known whether any such care provider would meet Mr Y’s needs, and even if it did, the Council identified that because of his disability, a change of care provider would need to be done gradually over a twelve-month period. The Council is aware that for Mr Y continuity is crucial because he is distressed by a change of routine. The Council’s approach appears to have been financially motivated and did not have sufficient regard to Mr Y’s specific needs.
- The man had not been reviewed for two years anyway, since before the Care Act had come in. That was a breach of the year’s grace the government gave councils until April 2016.
- Anything less than annual review is a breach of the Guidance, albeit not a breach of anything specific in the Care Act or regulations.
The relevance of the chosen and continuing direct payment deployment route for the man’s personal budget
- This man had a direct payment. He was not commissioned for, by the council, acting as the council normally would. Yet the council sought to ‘persuade’ that provider to drop its rate to the man in question. This is interference with the market, not influence of it. It overlooks contract law.
- We wish the LGO had said so, but we really liked that the LGO reminded councils thus: ‘Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into’.
- Meeting the needs means funding a provider through commissioning OR a direct payment, who is willing and able to meet the assessed needs for a quoted price. That price in a market obviously has to reflect the reality of the contractual situation from that provider’s perspective – here, a direct payment relationship with the customer, on its own terms, not a bulk hours deal with the council, on ITS terms, in the context of competition for a valuable reliable source of income as ‘a core provider’.
- The Guidance hints that the deployment route (commissioning or direct payment) could be a justification for paying more than a council’s standard rate for meeting the same needs, (or not – the Guidance itself very unhelpfully avoiding saying what the response to that situation should actually BE) but also hints that it could be seen as a person’s own choice to go for a more expensive provider than is strictly necessary. We think that the LGO could have commented on the ultimate uselessness of the Guidance in this situation, drawing on parts that we have highlighted.
- See para 11.25 onwards:
- There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.
- 11.26 However, a request for needs to be met via a direct payment does not mean that there is no limit on the amount attributed to the personal budget. There may be cases where it is more appropriate to meet needs via directly-provided care and support, rather than by making a direct payment. For example, where there is no local market for a particular kind of care and support that the person wishes to use the direct payment for, except for services provided by the local authority. It may also be the case where the costs of an alternate provider arranged via a direct payment would be more than what the local authority would be able to arrange the same support for, whilst achieving the same outcomes for the individual.
- 11.27 In all circumstances, consideration should be given to the expected outcomes of each potential delivery route. It may be that by raising the personal budget to allow a direct payment from a particular provider, it is expected to deliver much better outcomes than local authority delivered care and support, or there may be other dynamics such as the preferred option reducing the need for travel costs, or out of hours care. In addition, efficiencies to the local authority (for example through an individual making their own arrangements) should also be considered. Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.
- 11.28 In cases where making a direct payment is a more expensive option to meet needs, the care plan should be reviewed to ensure that it is accurate and that the personal budget allocation is correct. The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs. It may be that the person can take a mixture of direct payment and local authority-arranged care and support, or the local authority can work with the person to discuss alternate uses for the personal budget. Essentially, these discussions will take place during the planning process and local authorities should ensure that their staff are appropriately trained to support personalised care and support, and to facilitate decision-making.
- Our thinking is that if the decision to continue funding by way of a direct payments reflected acknowledgement of the value of that route (since the provider was not a council contractor) and promotion of wellbeing for the man and his family, then the council should have found itself considering whether the contract in some way provided for wants rather than needs, or whether the high rate was driven by the need for Asperger’s specific skills, which had actually been noted in previous assessments. The findings support the conclusion that this was a needs rather than a wants situation. The LGO said this:
- Mr Y had not expressed a preference for a more expensive service, it was a service he had received for many years, and the Council’s own records acknowledge he would not have been able to cope with a sudden change of provider.
- Even after ‘helpfully’ securing a reduction to £18 an hour, the council failed to put that in writing, no doubt because it was not the contractor, but the provider told Mr X he continued to charge £22 an hour because it had never been formalised. The provider also negotiated privately for payment of mileage costs IF the family would not pay. This reflects contractual legal lack of grasp on the part of the provider too, UNLESS the council was acting as the client’s agent in negotiating, in which case the council SHOULD have formalised the reduction on behalf of Mr Y.
The relevance of the indicative budget versus the council’s ‘target’ rates to commissioned providers
- The manager said Mr Y could continue to receive support from the Care Provider, but he would have to contribute the difference between the Council’s set rate and the hourly rate set by the Care Provider.
- The man’s indicative budget was no less than it had been before, but the reviewing social worker was probably tasked to bring back further cuts.
- The social worker had recorded that the Council had failed to inform Mr Y and Mr & Mrs X of the Council’s panel decision in 2015, that funding for the Care Provider at £22 per hour had been agreed for one year, “…with the intention of planning a transition period over to another service to bring [Mr Y’s] support hours back within the service rates…. [Mr Y] has formed relationships with [Care Provider] and would potentially struggle to accept the change in services”.
- Reducing a package on account of it being above the council’s standard rate, in the face of no defensible response to the family’s position on NEED, conveys very poor levels of legal literacy – the illegality of that sort of approach having been long since established through judicial review case law. The LGO said this:
- The Council correctly points out, the Statutory Guidance allows it to consider the financial cost when deciding how much to pay to meet a person’s eligible needs. Cost can be a relevant factor in deciding between suitable alternative options for meeting needs. However, that does not mean choosing the cheapest option. The Council can consider best value, but it cannot make decisions based only on financial considerations as it appears to have done in this case.
- The Care Plan recorded that “[Mr Y] is not aware that there is a potential in the future he may have to manage on less hours weekly support”. But his parents were told that that was the case. The LGO said this:
- “The Council could not know what Mr Y’s future needs would be. His needs would determine the budget, so it is not possible to say now whether Mr Y’s budget would increase or decrease in the future.”
Recovery of a supposed overpayment
- When the council decreased the man’s direct payment, on account of its position on rates, it backdated the reduction and sought to simply deduct what they then saw as an overpayment, from the monies going forwards.
- This is a failure to meet needs as agreed, and is shocking, too. It left the man’s family with no money at all to pay for the care bill.
The approach to the carer’s stress levels
- The Council recorded Mrs X was experiencing stress because of her caring role and was prescribed anti-depressants in 2014. In April 2018 the Council completed a carer’s assessment which again recorded she was experiencing stress because of her caring role. The assessment concluded Mrs X had eligible needs as a carer and that she “is entitled to £150 to use for a carer’s break and also £1600 a year for respite for [Mr Y]”.
- Ignoring the wellbeing of a carer who is desperately overborne by the caring load, and ignoring commitments to other family members, is also clearly unlawful. A carer’s willingness and ability to carry on is relevant to a service user’s own re-assessment, essential before any cut to the service user’s budget, under s27, and the carer, having been assessed as entitled in her own right, had an unanswerable claim to the money allocated.
- Respite has been the need of the service USER in legal terms since April 1, 2015 and the £1600 should have been in HIS budget. The law is clear on that, and the LGO does not seem to have commented on that point. Mr Y was eligible for respite care but never got the money. That which is allocated must be delivered. It gives rise to an unanswerable claim for judicial review, and reimbursement.
- There was a charging element to this complaint too. The council’s charging policy was changed without adequate consultation and the impact on Mr X was that his income was taken below the minimum income guarantee, and then changed back again to his not having to contribute, but having to spend all his benefits on topping up.
- The LGO said this:
- Councils must ensure people have enough money to cover their day-to-day living costs. This is known as the minimum income guarantee. If a person’s weekly income is equal to or less than the minimum income guarantee, then they should not be charged. The current level is based on the means tested benefit plus a buffer of 25%. Mr Y had to top-up his personal budget from his state benefits, which were not enough to cover the shortfall. Thisleft him with less than the minimum income guarantee and caused him financial hardship.
Advice and Information as to how the local system supposedly works
- The LGO had concerns about some of the content of the Council’s social care support literature. The LGO said that councils cannot negate their duties by suggesting citizens seek help from family and friends before approaching the Council, because it might deter citizens from pursuing their legal rights. The leaflets said “you will receive support if there is no other way of supporting you” and the LGO said of this that it was misleading and contrary to the law, given the duty to meet needs. Councils cannot rely on carers/relatives providing unpaid care – they can only offset willing and able care from the record of eligible need.
Legal points about the LGO’s recommendations
- The LGSCO recommended repayment of all the monies spent by the complainant on top of the budget. Readers may think that this is tantamount to the LGO having decided for the council what the budget should have been, but the recommendation flows on account of the principle of restitution for unjust enrichment during a period of unlawful Care Act process when others were known to be spending money in place of the council’s statutory duties.
- The LGO did not recommend reimbursement of anything that had not already been found to have been due, in the past, to the man. There was no suggestion that the man’s needs had lessened, as required by law, if a council’s justification for a cut is that one’s needs have lessened.
- This council did not even say that the needs could be met by an alternative provider that it actually sourced, with the requisite level of skill; it merely said “You have to make do on less, because that’s what we want you to do”, and that is not what the law requires.
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The full report into Nottinghamshire’s failings in this matter can be found here:
https://www.lgo.org.uk/information-centre/news/2020/jan/nottinghamshire-man-s-care-package-reduced-because-of-financial-pressures-ombudsman-finds and then clicking on the PDF at the right-hand side.