West Sussex County Council at fault for complaint handling process when other allegations of fault were not upheld

Decision Date: 12th September 2019

What Happened

Mr Y complained on behalf of himself and his mother, Mrs X.

In August 2014 the Council agreed a support plan with Mrs X and Mr Y. The support plan provided Mrs X with a direct payment which her son would assist her to manage, of £243.43 a week

The plan said the maximum allowed to build up in the direct payment account was the equivalent to 8 weeks’ personal budget (£1947.44).

In April 2015 Mr Y contacted the Council suggesting changes to the support plan. He said Mrs X did not want to use agency carers and the money should instead be used to provide support at home so he could have more respite. He also asked for an increase in payments for the support he provided in line with DWP Carer’s Allowance increases.

Nothing happened, so in May Mr Y asked the Council to review Mrs X’s care and support plan.

In June the Council agreed to amend the support plan, pending a formal review. They reminded Mr Y the maximum allowed to build up in the direct payment account was £1947. The Council agreed to amend the personal budget to £246.29 once Mr Y arranged a new agency.

The Council reviewed Mrs X’s care and support plan in April 2016. The plan showed there had been no change in the original direct payment of £243.43.

The plan said that Mr Y’s preferred outcome was an increase in the amount he was paid, to bring him up to the minimum salary level for a private pension arrangement. The Council told him it would not be possible to increase the budget solely for this reason.

In November 2016 Mr Y complained to the Council that the care agency fees had increased but the Council had not increased funding. He said the funds were insufficient to pay for respite and so he was no longer having it.

After numerous no replies from the Council, in March 2017 Mr Y again asked for an increase in funding. He said he was about to book a few weeks’ respite. Although there were currently funds in the account he did not want to run the account down.

In October 2017 Mr Y complained formally that the Council had not reviewed the funding of Mrs X’s support plan over the last three years.

The Council told Mr Y it would carry out the review soon and it was looking for an advocate for Mrs X.

The report does not make it clear why the mother was regarded as needing an advocate, given that her son was regarded as appropriate for helping her to manage the account, and the LGO does not comment on that, but it may be that they thought that there was a conflict of interest, since he was also a paid carer.

In February 2018 Mr Y complained again about increased costs and no increase in funding. He recorded the total cost of care per week to be £293.49.

The Council carried out a review in April 2018 which reported the total cost of care per week to be £243.13.

Mr Y said the budget was not enough, but the direct payment account still maintained an surplus. The Council allows up to 8 weeks’ surplus to be accrued (£1947.44) and it may recover any surplus. The account balance was £2243.53.

In May 2018 Mr Y complained again that the Council had not addressed his complaints since November 2016 that Mrs Y’s support plan was underfunded.

In August 2018 the Council provided a final complaint response to Mr Y. It said there was never a need to increase the budget. Rather, there had been large surpluses of unused funds in the direct payment account indicating the budget had been more than sufficient to meet Mrs X’s needs.

Mr Y told the Ombudsman Mrs X sometimes refused domiciliary care which meant a large amount of unused funds built up. Prior to May 2016 he used those funds for respite. But after May he felt he needed to keep £2500 in reserve for emergencies – it was unclear to the LGO, why exactly he felt this way.

What was found

Delay in carrying out reviews

The Council should have reviewed Mrs X’s care and support plan every 12 months and certainly when Mr Y complained the plan was underfunded. The LGO noted the Council carried out a review in April 2014; made changes in June 2015; carried out a review in April 2016 and then April 2018. There was a significant delay between the 2016 and 2018 reviews – however, having reviewed the Council’s chronology, the LGO was satisfied the delays arose due to matters outside the Council’s control (a period of unstable mental health for Mrs Y over several months, the process of finding her an advocate etc). Therefore the LGO did not find the Council at fault in this regard

Increase in payment

The Council did not have to increase Mr Y’s pay as a carer. A council is not automatically obliged to apply inflationary increases to a direct payment just because a person wants a raise. (We think that the LGSCO meant that the council is not obliged to capitulate to asserted needs for increases in the cost of care, but we cannot agree that an increase in the national minimum wage does not trigger an inflationary increase, more often than not. It is clearly the law that the actual market rate in the area IS something that the council must have regard to. Increases to do with the national minimum wage, for instance, CANNOT be ignored by a council – because if everyone was ON the minimum wage last year, they cannot NOT be given a salary increase this year by their employer!)

The council’s responsibility is to ensure the direct payment is sufficient to meet a person’s needs, taking into account the reasonable cost of securing those services. In each review the personal budget was discussed and commented upon. As there were accruals in the account at each stage it did not identify any shortage in funding. They also did not have to increase what his mother could pay him for care, just because he wanted to reach the threshold for a private pension. Therefore the Council was not at fault.

Dealing with the complaint

The April 2018 review did not record payments to Mr Y. Mr Y raised this in his complaint to the Council but there was no evidence it addressed this point or explained the apparent error.

The April 2018 review said the Council would discuss with Mr Y about the reported increased costs but there was no evidence this took place.

The Council told Mr X there was always a surplus in the direct payment account and so no need to increase the direct payment. The LGO considered that this did not adequately address Mr Y’s complaint.

From November 2016 Mr Y said the amount paid in did not cover the amount he had to pay out. The Council did not directly address this in its communications with Mr Y.

(In effect, he was contending that the payments in were not keeping up with costs, and that to use up a contingency which was allowed for fluctuating need was not right, in principle. If the contingency arose, then the increased costs of meeting it would wipe it out sooner than the number of hours it had originally represented.)

In light of the above, the LGO considered the Council did not provide clear or consistent information and did not directly address Mr Y’s complaint about the direct payments. This amounted to fault.

Mr Y was caused injustice, as he was put to time and trouble complaining to the Council and he suffered distress and uncertainty while this matter was being unresolved. The Council was recommended to pay him £300 in recognition of the injustice.

There was no evidence Mrs X declined care due to any lack of funds, therefore there was no injustice found on her account.

Mr Y said he could not take respite due to the lack of funds, despite there usually being a surplus in the direct payment account. The LGO considered it was open to him to use the funds available, therefore there was no injustice caused to him regarding his respite. (We very much think that the rectitude of that finding turns upon the extent to which Mrs Y’s needs were planned for as fluctuating, and whether respite needs were explicitly accepted by Mr Y on depending on them so doing!!)

Points for the public and for councils

It will be seen here that our comments in brackets indicate that we are not able to endorse the validity of the LGSCO’s investigator’s findings wholeheartedly because they don’t fully  fit with the governing legal framework.

Contingencies vary in their nature. Some are unforeseen circumstances that nobody’s direct payment is designed to cover these days, and one must go back to the council and beg. Redundancy of the worker is a typical example.

Others must be planned for and come out of the rate paid overall, such as holiday pay – generally 28 days a year, on top of the basic budget for x hours times assumed price.

Respite is not a service. Respite cover is for when a carer is unwilling to care. Many councils make that element of a person’s budget into a fixed amount, and hope that carers assume that that is what they must survive upon, but that is legally not the case. No carer can be made to care, so when a person wants respite, they can jolly well take it, and that is a change of circumstances which triggers a review and a re-assessment. The leverage that a council has over too many carers just downing tools whenever they want is the moral dilemma that the council can then present: if the cost of paid-for care becomes too great, the council will no longer be able to regard it as practicable to keep the person in their own home, and will be swayed by the more cost-effective option (sometimes, depending on the person, the needs and their human rights and capacity to refuse) of care in a care home – not necessarily unlawful, as long as not a blanket policy, and not inappropriate for the individual.

So, here, the mother either ‘needed’ x hours of service, for which an hourly rate was needed, or she did not, or she was regarded as being likely to fluctuate, such that sometimes perhaps she would be too unwell to benefit from the kind of formal care that was to be delivered. That kind of inability to benefit is not ‘respite’ for an informal carer who’s still holding the fort, nor a justification for standing down a paid carer. For someone who is both, the informal care may well increase at those times. But even if the informal carer is not therefore more needed, they will not be able to be free of the normal informal care load in the same sense as if they were going to be on holiday and could pay out of the budget for proper replacement care. 

Therefore the notion that a built-up non-needed amount of money ‘could’ just be used on the kind of respite that was originally offered makes mathematical sense, and practical sense, but is not necessarily consistent with logical legal analysis to our minds; at least, not without an indication that it would all be reworked out on a proper review of the finances AND the care plan.

We think it’s very important that everyone grasps that the direct payment does not set the rate for the salary of the worker. The employer can pay the worker whatever they like, but they must use the direct payment received through the council’s award of a budget for meeting the assessed needs, to whatever degree of specificity is required.

The council is obliged to set the DP rate according to that which will be rationally sufficient to pay for the services, so it must look at the real local market for individual PAs, directly employed, by ordinary people, not the agency workers’ rate, (or the rate that a live-in person would be paid in return for having a place to live for free – and they tend to cost commission, weekly, if introduced to the employer), plus all rationally required on-costs that arise for an employer to take on that role lawfully.

The employment contract is between the client and the worker – and if this man’s mother had wanted to pay him more, she could have done, although she would have struggled, in most councils, to assert that private extra expenditure as DRE for the purposes of the charging assessment – see the Stockton v Stephenson case for how that can sometimes happen.

Any direct payment support officer ought to be able to explain the difference between paying a sum by way of a choice, for extra features of a service that go beyond meeting assessed needs, and HAVING to pay a sum out privately for want of the council’s own commissioned service, or the real life market, being able to deliver ON the means to meet acknowledged needs, or else go without having those needs unmet.

Of course a person should challenge a council’s rate and be willing to thrash out the evidence to show the needs can’t defensibly be regarded as being able to be met for the rate that is being offered to the client – but many people choose not to do so, for fear of losing the minimal budget that they have already been given. These LGO reports and commentaries should be giving people fresh hope and grit, but we live in difficult times.

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The full Local Government Ombudsman report of West Sussex County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-008-190