Bracknell Forest Council at fault for improper assessments and for failing to inform family of its social care rights

Decision date: 04/11/19

What happened

Mrs X complained on behalf of her adult son, Mr Y, who has a severe learning disability and a genetic condition. Mr Y lived at home with his parents and was transitioning from children’s social services to adult services.

Mr Y attended a school for special educational needs. He also received 6 hours support a month from a care provider and had an Education, Health and Care Plan (EHCP).

Mr Y was due to leave school in June 2014 and so the Council completed a needs assessment where Mr Y’s father and main carer, Mr X, was recorded as stating that he needed more help with his caring role as he felt isolated and unable to work.

Mr Y began attending college for four days a week in September. He received 12 hours support a week during term time and an additional 144 hours during holidays.

The college course ended in July 2017 and Mr Y began a new course (one day a week) in September of the same year. His direct payments changed and there was no longer funding to cover the days that he was home. He lost funding for support during holidays and his EHCP ceased being active.

Mrs Y claimed she did not understand the reduced payments and was not warned about them. She said she could not find a suitable full-time course for Mr Y and that the family had to care for him on the days he wasn’t at college.

A social worker emailed Mrs X regarding an opportunity of a supported employment service. She said “Let me know if you would like to meet up to discuss what you have in mind for [Mr Y] on the days he is not supported or at [College] and if there is anything that can be done to support this?”.

Mrs X responded saying that Mr Y was still adjusting and that they would consider the offer. The social worker continued to support Mrs X with the paperwork for Mr Y’s state benefits being changed. However, there was no formal assessment or forward plan and the family continued to source daytime care options for Mr Y as they believed it was their responsibility.

At this time, Mr Y was attending a charity community group 2 days a week for 6 hours each day. The charity requested 1-1 support from the Council for Mr Y to cope with the increasing difficulties of managing his needs. There was no evidence of the Council having responded.

Mrs X continued to express her concerns about funding and about Mr Y’s wellbeing at the charity group. In March 2018, the Council reviewed Mr Y’s care and recorded Mr and Mrs X’s negativity about ongoing support mixed with unwillingness for change. They did not request additional support.

A support worker from the charity group contacted Mrs X in October to say that Mr Y’s behaviour had been particularly challenging recently. Mrs X asked for a suggested provision from the charity for a 1-1 support. She then decided that the charity support workers were unable to manage Mr Y and withdrew him from the placement.

Following this, Mr X found his role as Mr Y’s carer increasingly difficult. The family asked if he could be paid as a carer by the Council, which they refused on the grounds that payments could not be paid to family members living with the cared for person.

Mr Y began spending some weekends at his sister’s house in order for Mr X to have some respite. The family decided that the sister would act as Mr Y’s personal assistant for 12 hours a week until a new provider was found.

The Council undertook a financial assessment of Mr Y which included a Disability Related Expenditure (DRE) assessment. Mrs X believed that the allowed expenditure did not reflect all expenses as there were certain aspects of Mr Y’s life that were not accounted for (eg. the extra cost of heating the home whilst Mr Y was there during the day).

The Council reassessed Mr Y’s needs in November 2018 and recorded:

  • Mr Y required 24 hours support a day as well as needing full assistance in all aspects of his care.
  • Mr Y needed 1 to 1 support to access social and community activities three times a week.
  • Mr and Mrs X were unable to support Mr Y on three days a week and the family would benefit from additional support.
  • Caring for Mr Y was seriously impacting on Mr X’s health.

The assessor recommended Mr Y might need to be referred for an NHS continuing healthcare assessment. However, there is no evidence that the Council followed up on this at the time.

The Council completed a carer assessment for Mr X in November. It allocated him an annual carer’s budget of £650 but did not act on his request for increased support for Mr Y.

The Council undertook a care and support plan for Mr Y in December. It recorded that Mr Y’s sister would be his PA for 12 hours a week and Mr Y would receive an additional 6 hours funding per week in the form of direct payments to attend a community-based project.

Despite being agreed in December 2018 Mr Y did not receive any additional funding until February 2019. He could not start attending the community group until then as they would not admit him until the payments were in place. The Council did backdate these payments but the opportunity was lost.

The parents were offered two weekends a year by way of respite cover for Mr Y, in 2019.

Mrs X told the Council that the direct payments were not sufficient to cover Mr Y’s care needs. She asked for additional funding during college holidays in May 2019 and the Council agreed to fund this starting in June.

What was found

The Council was at fault for not already having a plan in anticipation of Mr Y’s course ending and his transition from full-time education into adulthood. The family had declined the Council’s suggestion that Mr Y’s needs be reviewed. However, the Council needed to have explained the process of adult social care to the family and the necessity for a formal assessment to reflect Mr Y’s changes in circumstance, as well as the impact that this would have on Mr and Mrs X.

After the correspondence between Mrs X and the social worker in 2017, Mrs X took on the responsibility of finding day care for Mr Y when she should not have had to. It was the role of the Council’s professional assessors to decide what Mr Y’s needs were and how to meet them. The Council failed to fully assess Mr Y’s needs and establish what the family were capable of and which needs they were willing to meet. As such, it was clearly not equipped properly to allocate a sufficient personal budget.

The LGO investigator said that the law is clear and to this effect: where the council is meeting some needs, but not others, the care and support plan should clearly set out the total care needs, which needs the carer will meet it will meet and how it will meet the outstanding needs. The council should give the person a personal budget to meet the eligible needs identified in the care and support plan. This should have been transparent and identified the care needs being met by Mr & Mrs X so that the calculation of the sufficiency of the amount for the rest of the need was transparent and accountable.

The Council told Mr X that he could not be a paid carer as he was living with his son. This is untrue and is possible if it is considered necessary, ie if there are clear reasons that only that family member can provide the support. The Council should have considered if Mr X’s circumstances were exceptional enough to formally justify paying him from the direct payment for caring for Mr Y.

There was no evidence that the Council ever responded to the community-based charity group’s concerns about Mr Y’s needs for 1-1 support. It should have completed a re-assessment and the failure to do so directly contributed to the breakdown of the placement.

Although the Council reassessed Mr Y’s needs and found that he needed 24 hour a day support, it was not clear what these payments would cover. Mr and Mrs X were left as unpaid carers which had placed the family under further strain. The family had not made an informed choice about the care they provide to Mr Y because they have not ever understood that they are not obligated to provide care.

Mr Y received 18 hours of paid support a week, which is below any objective defensible minimum for a person with his level of disability.

The Ombudsman also found the Council at fault for not properly considering all the expenses associated with Mr Y’s disability. The numerous failures have created avoidable distress and amounted to injustice.

Remedies

The Ombudsman has recommended that the Council

Within one month

  • Apologise to Mr and Mrs X for its failures
  • Review Mr Y’s assessment and produce a care and support plan
  • Make a symbolic payment of £1,000 to Mr Y to acknowledge the loss of services as a result of its failure to provide adequate support.
  • Make a symbolic payment of £400 a month to Mr and Mrs X, backdated from July 2017, (£10,400) until adequate support is in place, to acknowledge the impact on them of the Council’s failures to provide adequate support.
  • Review Mr X’s carer’s assessment and produce a support plan setting out how his needs will be met.
  • Consider whether there are exceptional circumstances in which Mr X can be Mr Y’s formal paid carer
  • Complete a new financial assessment and consider all relevant DRE
  • Offer Mr and Mrs X advocacy services

And within three months it should consider training needs of officers completing needs assessments under the Care Act.

Points for the public, councils, service users and families

It is valuable to note that the LGO did not refuse to investigate this complaint, even though the date of the start of the problems was more than a year before the complaint was made. In the investigator’s view, the alleged fault and injustice were significant and continuing.

In legal terms, had the gentleman sought legal aid, this is what would have been said by the Administrative Court:

  • Breach of the s4 Care Act duty regarding advice and information about how the local system works: the LGO said that “Information and advice are fundamental to enabling people, carers and families to take control of, and make well-informed choices about, their care and support.”
  • Breach of the assessment duty in s9 (even if the parents declined, that was not a discharge of the duty to assess Mr Y)
  • Delay in relation to the carer’s assessment duty in s10
  • Failure to promote wellbeing in s1
  • Failure to make an eligibility decision in s13
  • Failure to issue a care plan in accordance with the duty in s25
  • Failure to allocate a rationally sufficient personal budget in accordance with s26: the Council continued treating Mr and Mrs X as though Mr Y was a child and that they were responsible for his care, and the Council was simply responsible for providing them with breaks from their caring role, when as an adult, the entirety of Mr Y’s 24 hour care needs is the legal responsibility of the Council, except for those needs a carer is willing and able to provide.
  • Failure to exercise its discretion rationally in relation to permitting family members in the same household to be paid carers, under the direct payment regulations: the LGO instanced examples such as where substantial effort at recruitment has been unsuccessful due to exceptional local workforce pressures or geographic isolation; or where this is the only practical way of meeting the care needs.

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 on the actions of Bracknell Forest Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-013-073

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