Decision Date: 30th September 2019
Mr and Mrs X both had care needs. They had received a domiciliary care package since 2002. Since 2005 they received their personal budget as direct payments. Mr X received 28 hours of support each week and Mrs X 29 hours of support each week. Mr X also received a payment for his gym membership.
In June 2017 Mr X had a significant heart operation. In October 2017 Mr X received a contingency payment to assist with getting to and from his own hospital appointments. The direct payment request stated the Council had ‘agreed the contingency hours as a one off for this year at £212.88, this is for 4 hours x 6 times per year x £8.87 per hour to support with hospital appointments as and when needed’.
Mr X’s care and support plan of March 2018 referred to Mr X attending the gym in order to maximise his lung and heart capacity and so remain as physically and emotionally well as possible. It noted ‘gym membership is currently funded via DP but [Mr X] is aware that social services may not continue to fund in future as this need should be funded by Health’.
The 2018 care and support plan also included £212.88 for contingency for his hospital appointments.
In August 2018 Mr X requested a reassessment because he considered Mrs X’s care needs had increased after she had a stay in hospital
Mr X asked for an additional two hours a day of support for Mrs X while he was using a ventilator. A social worker arranged to visit Mrs X to reassess her care needs. They noted Mr X could not support with toileting needs when he was on the ventilator and Mrs X needed supervision when walking/transferring during this period.
The social worker put the request to the Council’s Panel for approval. It asked if Mrs X’s current support hours could be moved around or whether Mr X could use the ventilator when PA’s were around.
Mr X outlined Mrs X’s current support, and said there was no scope to move the contracted care hours, or when he used the ventilator or the ventilator itself.
Mrs X’s social worker and an officer from the Direct Payment Team visited Mr and Mrs X in October 2018. The social worker wanted some further information about what tasks the carers completed to support Mrs X but Mr X said he was unable to give a breakdown and said the PA’s had contracted hours. The social worker said that without this information the request for additional hours may be declined but they would put it forward.
At the visit, Mr X asked about the contingency budget. Mr X said they had used the contingency money for support for hospital appointments for him and Mrs X. He requested a further contingency amount which the officer agreed to put forward for approval.
In October 2018 Mr X received his yearly one-off direct payment for his employer costs. The amount did not include the £212.88 he had previously received as a contingency payment.
The social worker presented Mr X’s case to the Panel again in October 2018, requesting an additional two hours of support for Mrs X each day.
Mr X contacted the Council in November 2018 for an update on his application for extra hours for Mrs X and regarding the apparent removal of his contingency budget. The social worker advised they were responsible for Mrs X and were not assessing Mr X’s needs. They confirmed the Panel had refused the request for extra hours but had recommended an assessment for Continuing Healthcare (CHC) funding. The social worker also requested a falls detector for Mrs X which was installed. Later that month the NHS confirmed to the social worker Mrs X did not meet the criteria for CHC funding.
Mr X contacted the Council to complain about the refusal of the increased hours. The Council allocated an officer to visit him.
A case officer and an officer from the Direct Payments Team visited Mr X in February 2019. Mr X said he had previously received contingency money for hospital trips (2017) and this was agreed the previous September (in his 2018 care plan). The officer agreed to speak to their manager and to see what was agreed previously. They also noted the gym membership would be reviewed.
The Council replied to Mr X’s complaint in February 2019. It set out:
- Mr and Mrs X had a high cost care package, therefore it was discussed by a senior panel of Council personnel, who declined the additional hours asked for.
- Mrs X could be left on her own in a room whilst Mr X was at the property.
- It had considered CHC funding but she did not meet the NHS criteria.
- It did not consider it appropriate to give a contingency for travel and for escorting Mrs X to hospital appointments. The previous contingency had been for him.
- It stated the Council’s policy was that contingency money was to address emergencies. Hospital transport could be provided by the NHS should this be a health need.
- Following a review of Mr X’s direct payment, it decided Mr X’s gym attendance could no longer be paid from his direct payment as this was a health need and Mr X may wish to discuss it with his GP.
The two Council officers visited Mr X again in March 2019. The case officer sought to discuss how Mr X used his current hours but noted Mr X did not want to answer this. The notes record Mr X was not forthcoming with the answers.
Mr X remained unhappy and complained to the Council about gym funding and the conduct of the case officer.
The Council responded in May 2019. It explained Mr X had said he attended the gym to improve his lung capacity and improve his mobility. It considered these were health needs and Mr X should contact his GP for this via a personal health budget. It had spoken to the officer who said they were not rude or disrespectful. It confirmed the officer had contacted his GP who said Mr X needed to contact the GP directly.
What was found
Mr X received a direct payment towards his gym membership up until February 2019. Mr X’s care and support plan of March 2018 acknowledged the gym membership was funded by his direct payments but stated social services may not continue to fund this in future as this need should be funded by health. Mr X’s care and support plan of March 2019 referred to gym membership as a health need.
The intention of direct payments is to allow greater flexibility and choice as to how a person uses them to meet their eligible needs. Mr X said he needed to attend the gym to maximise his lung and heart capacity. These are health matters. The LGO stated that while attending the gym could be considered an eligible need under the category ‘Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services’, the gym membership itself was not. Therefore the Council was not at fault in withdrawing this sum.
Mr X received a contingency payment in October 2017 for transport to appointments as a one-off payment based on his circumstances at that time, following his operation. The Council said this figure was included again in Mr X’s March 2018 care and support plan in error, as the care plan was updated from a previous version. It had not identified the need for an additional contingency payment for 2018.
The Council’s inclusion of the contingency amount in Mr X’s March 2018 care and support plan was likely to have caused Mr X some confusion. However, the Council was under no obligation to continue to provide this funding purely on the basis that it was approved previously.
The Council considered Mr X’s request to continue the funding but decided not to. It said it would not normally expect to fund people to attend hospital appointments other than in exceptional circumstances where it is an assessed need. It said contingency money should be used in the event of emergencies and not for travel and escorting Mrs X to hospital appointments.
The LGO found no fault in that stance either.
Mr X was unhappy with the way the case officer reviewed his care and support in March 2019. There was another officer present at the review meeting who noted Mr X was unhappy and did not want to discuss the Council’s letter or how his hours of support were used. They also noted there was tension between Mr X and the case officer. It was clearly a difficult meeting.
However, there was no evidence to show the case officer was unprofessional or inappropriate. Mr X was unhappy the case officer was not a qualified social worker. The Care Act does not require the assessment to be carried out by a qualified social worker. There was no evidence of fault in the way the assessment was carried out.
Request for extra hours for Mrs X
There were no minutes of the Council’s Panel’s meetings and there were no record of who was on the Panel. It was therefore difficult for the LGO to determine exactly what was discussed or what the Panel’s reasoning was, at the time, for refusing Mr X’s request on behalf of Mrs X. This was fault.
However, the social worker’s communications with Mr X fed back what further information the Panel required and that it had suggested pursuing CHC funding.
In the complaint response to Mr X the Council said the Panel refused the request because it considered Mrs X could be left alone in a room when Mr X was on a ventilator. This reasoning was not set out anywhere else in the Council’s records and was not clearly explained to Mr X previously. This was fault. The poor record keeping and lack of clarity caused Mr X some frustration and uncertainty.
The Council agreed to apologise to Mr X for the frustration and uncertainty caused by the lack of clarity and poor record keeping around the Panel’s decision making and to provide evidence to the Ombudsman of the revised Panel procedures.
Points for the public and councils, service users and families and advocates
- Councils do not have to get social work decision-making done by social workers, under the Care Act. They just have to be competent. There is no definition of ‘competent’ until there is a case about it, which will probably happen along after a disastrous piece of decision-making by someone with no training, experience, or qualifications. Or a robot. The workers in this case were seemingly competent.
- Councils have to make the set of decisions in the Care Act and they can decide internally who actually makes them. For instance, in some councils the front line staff make the decisions – they are trusted to, as professionals, and it is understood that their view of what would constitute ‘significant impact’ arising from inability to achieve, should be taken as a professional judgement. In other places, middle managers make those decisions through supervising the case workloads of the front line staff, and second-guess statutory decisions such as eligibility. It is a public law principle that the standards of decision making required of public bodies by this country’s common law are applicable to the actual decision-maker.
- When it comes to allocating a sufficient BUDGET to meeting needs assessed to be eligible, it is common for staff to have the personal authority to commit low sums of money to clients’ cases without scrutiny. Above a certain cost level, however, a council will design its decision-making delegation scheme so as to require cases to be put before a panel.
- In our experience, it is almost inevitable that the Panel will have no constitution, no procedures, no rules for its governance, and no attendance by members of the public, no minutes, no records and no reasons that have been carefully articulated.
- When a panel such as that says it’s not ready to approve something, it’s not actually making a decision that counts for anything and it’s not refusing to fund the recommendation; it’s saying that it is the decision-maker and that it needs more information, and that’s not unlawful, necessarily, if the case is not too urgent and the supposed missing information is genuinely relevant. But if the information it is insisting on is ridiculous or irrelevant, then the council (let alone the actual commissioners making the contracts for services) has no right whatsoever to defer the meeting of a person’s assessed, eligible, unmet need, and scarcity of staff is not a lawful excuse for delay in that situation.
- When a Panel DOES make a final decision, it’s obliged by public law to be rational, procedurally fair, correctly informed as to its legal duties, and not fettering its discretion or ignoring human rights. The law of procedural fairness requires it to give brief reasons for its decision.
- The case of Merton invalidated a supposed ASSESSMENT and termination of a contract for someone in a care home, because it turned out that the council’s Panel had effectively made the decision that something was no longer needed, not the social worker. The council had told the worker what to present as having been decided, and the judge spotted that.
- The making of a decision by a Panel is not in itself wrong, as a panel could well be made up of senior social workers with much expertise. But in this Merton case, given the lack of records or minutes, the judge was entirely incapable of divining how it arrived at its decision and found it therefore to be an irrational decision and hence unlawful.
- The same principles would apply to the finalisation of the contents of a care plan or budget sign off panel discussion.
- Paragraph 10.86 of the Guidance says that in the case of a disputed budget, there should be a looking back at the prior steps of the process before care planning to see what the dispute turned on, and that the council should ‘state its reasons’ for not wishing to reach any formal agreement or budging any further from its position.
- That derives, we think from the Savva pre-Care Act case which said that expecting the social worker to go back to the client with the panel’s reasons was not fair or transparent and that the Panel itself as the decision maker, had to provide the reasons as part of switching the light on, and being procedurally fair to the client.
- It’s often very difficult to find out what a Panel’s role is. We have experience of a panel acting as if it was a decision-maker but then saying that all it was doing was quality controlling a middle manager’s decision that had been made based on a front line worker’s paperwork but in full knowledge that the Panel would not say yes to a budget over a certain amount for cleaning. We have no doubt whatsoever that that is unlawful at every stage, in terms of negating the input of the client, fettering the front line staff’s social work thinking, and then concluding a budget without reasons that could ever be defensible, since a cost cap is itself unlawful. We also know of a council where the Panel requires staff to come to panel if they CAN’T effect a reduction in a person’s costings, such that the front line is left to justify a cut as the final decision-maker, in person, but is not allowed to be the decision-maker if the person’s view is that the current budget and plan are still needed, even though the worker has seen the client and done the Care Act thinking!
- It’s not unlawful for a council to expect the Health Service to meet certain needs, because some needs related to health are such that they are beyond any defensible interpretation of the scope of social care and not ancillary or incidental to it (even when the person is not eligible for CHC for having an assessed ‘primary health need’) but the difficulty is that there’s no list of such things or even things that ‘should’ be provided by the NHS. That is how England works, in 2020, unfortunately.
- There is old case law that suggests that the cost of transport TO hospital for health inabilities is an NHS responsibility but that escorting there and prep to go can be social care needs (Heffernan).
- Gym membership is exactly the sort of thing that can be provided by social services under s8 (it’s a facility, obviously, on account of a physical or mental impairment or condition) but something that a council might have an agreement with Health for the latter to fund the cost as part of integration for instance. If it’s been accepted as needed, it can’t just be stopped without the council ensuring that the Health Service DOES fund it: the guidance is clear about that, so the findings above are at odds with that particular principle, we have to say.
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The full Local Government Ombudsman report of Kent County Council’s actions can be found here