London Borough of Bromley at fault for failing properly to consider a request for extra support

Decision Date: 17th October 2019

What Happened

Mr B complained on behalf of his adult daughter, Ms C.

Ms C was a young woman with a learning disability, communication impairment and some physical disabilities which made it difficult for her to live independently.

Ms C previously had a supported living placement. However, as her previous accommodation was to be sold, she moved to a residential care home providing 24-hour support in January 2017.

Ms C was allocated a personal budget to cover the cost of her placement. This included 13 hours a week of one-to-one support to support her community access.

In November 2017, the Council undertook a care review, completed it in February 2018 and agreed to continue the current care package.

The reviewing officer noted that Mr B had raised concerns that there would be no support available for Ms C should she wish to stay out after 10.00pm. She explained that Ms C would have to contribute privately towards the cost of such arrangements.

The completed review was sent to Ms C in March 2018, but Mr B did not receive a copy until May. He then wrote to the Council with some corrections. He also reiterated his view that Ms C should have the opportunity to access the community after 9.30pm if she wished.

The reviewing officer accepted that Ms C should be able to attend activities after 9.30pm and hoped that the provider could provide some flexibility. However, she also explained that staff at the residential home usually finished their shifts at 10.00pm and that support hours were shared by residents in the evening. She explained that Ms C could be provided with support for a late-night event but that she would have to pay for this as the Council would not duplicate its funding for the shared evening care….

There was further correspondence on this, and the Care Review was amended to reflect Mr B’s and the reviewing officer’s comments. However, the reviewing officer’s manager upheld the Council’s position that had been earlier conveyed. She also noted that Ms C had a full and active timetable of activities, was tired in the evening and regularly asked to go to bed shortly after 9.00pm.

Mr B contacted the Council again in October 2018 and repeated his request for late-night one-to-one support. The Council responded in January 2019 and explained that its position remained the same, and that it was not clear to them that Mr B’s position even reflected his daughter’s wishes.

Following a complaint to the Ombudsman, the Council reviewed the situation. It contacted Mr B, reviewed his result and responded to his concerns as follows:

  1. It apologised for the failure to circulate the review and for the time taken to respond to his correspondence.
  2. It explained that, at the time of his complaint, the service provider was unable to facilitate one-to-one activity after 9.00pm but could support occasional group activities after 10.00pm.
  3. The situation has since changed and the service provider now has night-time staff available to welcome back and settle residents at night, so C can go out with family and the home can accommodate this.
  4. The Council has also agreed to provide an additional five hours of one-to-one support a month for C to go out after 9.30pm, should she wish.
  5. The further support would be subject to review in January and June 2020.

What was found

Delay

The LGO found that there was delay in circulating the review papers to Mr B. They should have been sent to Mr B in order to allow him to comment before the review was signed off. The Council apologised for this, and for the delay responding to Mr B’s correspondence, but the LGO recommended it should also remind officers of the need to circulate papers to all relevant parties.

One-to-one support

The LGO considered it a reasonable request for a young woman to be able to access the community in the evening independently from her parents. The Council accepted that it should have investigated the request more fully and apologised to Mr B.

As to whether the Council had failed to meet an identified eligible need, the Council did not consider that to be the case, because Ms C had not herself expressed a wish to go out late. However, her father pointed out that this may be because she had become accustomed to the hours within the residential accommodation.

The LGO ultimately found that the Council was at fault in not looking further into Mr B’s request from 2018.

However, the LGO did not consider that there were sufficient grounds to conclude that the Council failed to meet an identified eligible need, because it was not clear that Ms C herself wanted additional support to go out later in the evening.

All in all, the LGO considered that the apologies provided and additional support offered were a suitable response to the injustice caused to Ms C and Mr B.

Points for the public, service users and their families and councils

  • Clarity over core or shared hours, which reduce the overall cost to the provider, and to the council, thereby allowing for the setting of a lower personal budget, is the bane of service users’ lives in residential and supported living settings.
  • Providers think that in order to get the work in the first place, they need to reflect the saving to them, of being able to look after two or more people together, and thus tender for the work on the footing of a price for an hour or a price for a shared hour.
  • There is nothing wrong with that, necessarily, because if service users don’t NEED one to one care (say at night when they are in bed), well, they can’t really assert that their needs should be costed out as if they DID have that need… But unless a person is going to live in a shared care setting, his or her budget can’t be pre-determined by the fact that LOTS of people with a learning disability or older people DO.
  • It would be much clearer how important this is to be transparent about, if the shared care hours were assumed to be in operation for a larger part of a given day, we think. Imagine them creeping into the afternoon, and then the morning. Hey presto, one has recreated a care home in a place where Housing Benefit pays for the accommodation. What a wizard wheeze!
  • The setting matters, to our minds. We absolutely accept that care homes are pushed to operate on flat rate basis – and they do, for older people. For people with a learning disability with parents able to advocate for their individuality, there’s been a movement away from flat rates and towards a commissioning culture of one to one hours in a care home on top of the basic offer of access to care and support 24 hours a day. That is a good development and consistent with an individuated focus on the needs of ANYONE in a care home. There will be a need to differentiate between hours for personal care and hours for out and about activities, shared or individual, in any care home fees negotiation that does not operate on a purely flat rate basis for all residents.
  • But the vision of shared care savings and telling people to run their lives on the basis of a schedule with their co-tenants is simply not consistent with the idea of people living independently in their own homes albeit with an onsite provider. Unless people accept that that is the ‘deal’ in return for signing the tenancy, of course, because it gets their loved ones out of a care home.
  • People (their parents, most often) are often seduced into so doing on the footing that their benefits will be so much higher than they would be in a care home, but their benefits will then be taken back through Care Act charging, and activities that would have been included, perhaps, on site in a care home, and in the care plan/package, will be regarded as a matter of choice for one’s own private expenditure.
  • These swings and roundabouts must be fully explored by aware astute advocates or supporters, we suggest.
  • Any one or all of the occupants in supported living might have a need for access to support whilst at home, but they won’t be being FUNDED for that individually, one can rest assured. The assumption of commissioners will be that the group won’t ever need that access to support all at the same time. That’s often called Background Support, or core hours.
  • We think that there’s a risk of the tail wagging the dog here, instead of the other way around, in many situations. That is, what has been pre-commissioned (the model, the approach, the vision) then drives people’s expectations of what they must accept, rather than their needs driving care planning, in professional terms.
  • If councils let it be known that they expect a shared care price to be offered to them, by all providers in the sector, or call for that approach as an aspect of market management, through tendering for ‘supported living’ as if it was a care home service, instead of a contract for non-residential services, they will be all the more likely to find that a person ‘can’ be provided for on a shared care basis. That is not bad if it’s true; it enables two people to get more care out of a budget than they would separately. But it does HAVE to BE true. And one has to watch out for that sort of assessment/approach/presumption creeping into the daytime hours, we fear.
  • We think that nobody could successfully argue that shared care assumptions are unreasonable during normal sleeping hours, which might be said to be between 11 and 7, say, but we don’t think that people should think it’s normal for people to be in bed at 9pm and NOT TO BE ABLE TO GO OUT – not even in a care home.
  • When one accepts a placement in an older person’s residential care home, one is perhaps not expected to be hugely mobile or interested in getting out frequently to go clubbing, perhaps.
  • It could also be said that in accepting a placement in a care home, one is accepting the regime that is in operation there, before one goes, so one needs to know whether the night time regime is deemed to start early, or how flexible one’s one to one hours can really BE.
  • But if this woman’s situation had been in a supported living tenancy, as before, ie not a care home, it would have been her own home, and she would have been theoretically free to go out whenever she liked, because she was not under a deprivation of liberty authorisation order and she would not have had a care plan for 24 hours of supervision whilst AT home that she had to accept.
  • We think that people therefore really need to know whether they are going to be able to secure support to go out when they WANT from an onsite team and what the restrictions are to make the package viable – before being satisfied with the legal sufficiency of the care package associated with signing a tenancy in supported living.
  • And here’s the thing that makes all that theorising a fundamentally LEGAL question: people’s personal budgets are able to be shared, but only with a person’s agreement. It says so in the Act!
  • We are not saying that a budget has to be the full cost of the individual’s needs as if there was no-one else there. A budget in the first place is in the discretion of a council, subject only to public law principles of rationality, fairness and lawfulness – so some assumptions about what makes for a tolerable quality of life and profile of support ARE essential for arriving at a budget in the first place, when one’s family knows what is what and the person appears to be someone who will thrive in supported living and share with other people who aren’t ever going to be non-disabled people.
  • We think that a key factor in who calls the shots here, or where power lies, is this: a person is not able to be MADE to go and live in a specific tenancy at a specific address as a condition of receiving any social care under the Care Act. The council does not provide that tenancy: it simply points to it, and thus it is not in its gift or provision to meet needs under the Care Act.
  • The size of the budget cannot therefore lawfully BE pre-set on the assumption that a person is not ‘needy enough’ to go into a particular house or justify a room there or that a person will only ever need care costed out on a pro rata shared care basis. They have to be willing to go in the first place, and nobody should be willing to go, until they know what the care plan is going to cover! People will be able to agree to share their budgets, if a person with a sensible view of risk agrees it’s worth it, we think, with deputyship or power of attorney over money or welfare.
  • The fact that a council cannot make a person go into any tenancy without the person’s own agreement or the agreement of a lawfully authorised person (unless the council takes on deputyship and acts in what are genuinely thought defensibly to be in the best interests of the person) is a relevant legal consideration that cannot be ignored.
  • That means that in principle, it is the service users and their families who have the power to decide to share their budgets, once set lawfully (ie not so unreasonably that no other council would conceive of taking the same approach AND taking all relevant considerations into account), not the local authority or the provider.
  • That realisation would fundamentally alter the economics of councils’ nomination of various of its clients to live together in settings that involved shared care assumptions, we think. But we do not expect that awareness to change just because this has been aired: councils have too firm a grip on that market, and can act in an anti-competitive way with impunity under our law. What they cannot do, though, is breach the Care Act, in relation to the lawfulness, sufficiency and transparency of individuals’ budgets: CASCAIDr is there to help people fight that trend.

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 London Borough of Bromley’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/other/18-016-782