Norfolk County Council at fault for failing to produce a clear care plan and incorrect advice on direct payments and Disability Related Expenditure

Decision Date: 7th November 2019

What Happened

Mrs X complained on behalf of her adult son, Mr Y.

Mr Y was in his late twenties with learning disability and autism. He lived at home with his parents and a sibling.

In April 2017 the Council Met with Mr and Mrs X to review Mr Y’s needs.

  • Personal assistant hours were calculated to be 12 per week at £13.67 per hour, a total annual budget of £8,530.08.
  • The assessor recorded that Mr Y “needs to use his DLA/PIP payments for his mileage money and his other benefits money for activity fees”.

It was not clear how the Council quantified a sufficient response for each area of eligible need or how it calculated Mr Y needed 12 hours support per week.

Mrs X continued as Mr Y’s personal assistant (with permission from the council) for six hours a week because Mr Y found it difficult to accept outside support. The plan was to try to introduce a support worker to Mr Y to alleviate pressure on his family.

Mrs X complained to the Council in June 2017 saying she believed restrictions were being imposed on how Mr Y’s budget could be used, and disagreed with some parts of the plan. She said she had always been told he could use the money flexibly, eg for activities, days out and fuel, in the past.

The Council responded in September. It said that the agency commissioned to provide carer relief had not been implemented yet, because of Mr Y’s real struggle to get used to new people, and his “limited ability to engage with new providers as well as other services”. 

It also confirmed the Council would continue to include a mileage allowance of £1000 but said as Mr Y received the mobility component of Disability Living Allowance, the Council expected this be used towards transport costs to social activities.

Mrs X disagreed with the support plan and complained further to the Council. The Council decided not to implement the support plan (it still had not been implemented at that time).

It allocated a different social worker to review Mr Y’s care in October 2017.

After a delay due to an administrative error which the Council apologised for, it completed a further reassessment of Mr Y’s needs in July 2018. It was unclear from the report what was paid during that time for support.

The assessment identified Mr Y had eligible needs in social activities and accessing the community. The assessor highlighted to Mrs X that previously, activities money had been provided for through direct payments, but the expectation, now, was that Mr Y would have to use his benefits to pay for any social activities he wanted to access.

The assessor also recorded a discussion with Mrs X about the Council’s transport policy. As Mr Y received mobility allowance, the Council’s expectation was that this should be used towards transport/mileage costs instead of using direct payments, and funding for transport would be phased out over the next three months.

Part of the reassessment referred to the need for Mrs X as carer to have a break. A one-off payment of £310 was allocated to Mrs X as a carer’s budget for her own support needs – for activities away from the home for her. But the assessor did not record what support would be in place for Mr Y in Mrs X’s absence.

After receiving the completed care and support plan, Mrs X still felt she needed to ask the Council what the direct payment could be used for, as she said they had told her the money could only be used to pay a personal assistant or an agency. There was no personal assistant other than her, and she was only paid for six hours per week. Mrs X was also unsure how to access the specialist support Mr Y needed. She believed he should be able to spend his direct payments on social activities and accessing the community because they had been recorded as areas of eligible needs. There was no evidence the Council answered Mrs X’s questions.

The Council completed two financial assessments in April and July 2019. The April assessment showed Mr Y had a guaranteed minimum income of £189 per week, and a nil contribution towards his care. However the July assessment showed him has having a reduced guaranteed minimum income of £165, which therefore upped his contribution towards his care to approximately £22.15 (because it increased his disposable income).

Mrs X said the Council only enquired about Mr Y’s disability related expenditure, after the LGO started its investigation.

Mrs X also said she asked the Council about additional utility costs she incurred due to Mr Y’s disability. The Council told her that any additional costs over and above average usage would be split four ways, because there were four people living in the home.

The Council provided the LGO a copy of a letter it sent to Mr Y in May 2019. It explained DRE and gave an example of items that could be considered as DRE. It was not clear why the Council sent the letter in May 2019, when it did not reassess Mr Y until July 2019 and concluded a contribution to be due.

What was found

The LGO found that there was evidence of fault.

  • The Council failed to act in accordance with the Care Act in reviewing Mr Y’s care needs.
  • It failed to assess the total extent of Mr Y’s needs and failed to develop a clear support plan showing how the needs would be met.
  • The Council wrongly told Mr Y his direct payments could not be spent on social/community activities, which were identified as an eligible need.
  • It also gave Mrs X incorrect advice about DRE.

The Council was at fault with regard to the link between the assessment and the care plan, because it failed to record his total needs without carer support, and the hours Mrs X was willing and able to provide informally – it left it to her, and this was pressure to do more than she could.

It failed to quantify its view as to a sufficient response to areas of eligible needs, so it was not clear how the Council came to the decision as to how many support hours he required. It failed to be clear about what needs it would meet, and how it would meet those needs.

It was also at fault because the plan failed to explain what the payments it set out covered. The Council allocated Mrs X a carer’s budget, but it was not clear how she would able to use it given there were no respite care arrangements for Mr Y.

The family circumstances were complex with regard to finding a PA with whom Mr Y would feel comfortable. The Council recognised this but no progress was been made for over two years. The Council’s autism strategy said “The council will have services that stop things from going wrong for autistic people. This will include advocacy, information, advice and news about community and voluntary groups”. There was no evidence which showed Mrs X or Mr Y were actually offered such support. This was fault.

The Council told Mrs X that Mr Y’s direct payments could only be used to pay a personal assistant or a care agency. Such a statement suggested the Council was fettering its discretion. It is unlawful to apply a ‘blanket’ policy. Direct payments are designed to give people more choice and control over the care and support services they are assessed as needing. In this case Mr Y was restricted from using his direct payment to meet eligible needs. This was fault. Because of the restriction Mr Y was denied access to services to which he is entitled to and which he would benefit from, and therefore suffered injustice.

If a person is assessed as having to contribute towards their care, as Mr Y was in July 2019, the Council should enquire about any disability related expenditure during the assessment. The Council sent a letter to Mrs X in May 2019 about DRE. This was two months before the assessment. At that time, it would have had no meaning to Mrs X. In any event, officers should have asked about DRE during the assessment. In this case it did not, which was fault. (The DRE was not applicable for the April assessment, as he was not assessed as having to contribute to his care.)

During Mrs X’s discussions with the Council about increased utility usage Mrs X told her the usage would be split four ways because there were four people in the home. This was incorrect, and therefore fault. Additional costs arising out of a disability related need should be offset in full, or in some cases shared in another DRE assessment of any other disabled person living in the home.

The LGO stated that in relation to transport costs, the Council was not wrong in that mobility allowance can effectively be regarded as able to be used for transport; however it has the power to exercise discretion in considering transport costs. Privately shouldered transport costs over and above the mobility allowance could be considered as a DRE – the Guidance says so.

The LGO recommended the Council pay Mr Y £250 to acknowledge the restrictions placed on his usage of direct payments and produce a thorough care plan and financial assessment.

Points for the public, service users and families, and Norfolk’s social work and senior staff

This is a report (which although low-key in tone) illustrates most of the wrongs being done to clients nationwide, by a council that is regularly pulled up by the LGO, but continues seemingly to be dedicated to acting in breach of the Care Act. See the findings in a separate report mentioned at the bottom.

This report covers

  • Inadequate assessment
  • Inadequate budget setting
  • Inadequate care planning detail in relation to areas of assessed needs
  • Inadequate detail in the care plan as to which aspects of eligible needs would be regarded as covered by the sum of money provided
  • Inadequate attention to the known and planned for absence of the main informal carer
  • Inappropriate fettering on direct payment usage
  • Incompetent charging assessment communication and dubious stances on Disability Related Expenditure

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

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-012-426

Post Script: Norfolk County Council (18 012 427)

Decision date: 7th Nov 2019

The same conclusions were made in this case following a very similar set of facts; the LGO found that the Council failed to act in accordance with the Care Act in reviewing another client’s (Mr W’s) care needs. It failed to assess the total extent of his needs and failed to develop a clear support plan showing how the needs will be met. The Council wrongly told Mr W his direct payments could not be spent on social/community activities, which were identified as an eligible need. It also gave Mrs X, Mr W’s relative, incorrect advice about DRE.

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-012-427