Decision date: 24/09/19
Havering has been found to have committed a cardinal sin, under the Care Act, in terms of community care law, from which all other councils could learn, if only there was the will.
Social workers will recognise the behaviour from their own employers’ practice and will have to decide what to do about it, as they cannot act contrary to law, and expect to remain registered with the new regulator.
Ms X complained to her council, London Borough of Havering, and beyond, to the LGSCO, on behalf of her mother, Mrs Y, about its approach to meeting her needs. Mrs Y had advanced dementia and lived at home. Until July 2018 she funded homecare privately. Ms X and her sister visited daily and provided support at lunch, managed Mrs Y’s paperwork, finances and escorted her to any appointments.
Ms X contacted the Council in July 2018 to ask for assessment of Mrs Y, when her funds went below threshold for financial subsidy. The Council completed a needs assessment of Mrs Y in mid August and found that Mrs Y needed support in all areas of daily living, was doubly incontinent, and “…has difficulty retaining information and requires support to make decisions regarding her care needs”.
It was known that Mrs Y wanted a direct payment with which to buy services with the help of Ms X. The assessor concluded Mrs Y was at risk of falls, self-neglect, harm to herself and wandering. The social worker submitted a funding request for a ‘Request for Service Over £300’ for three homecare visits a day and three days at a day centre. This was agreed the same day. For reasons the council could not explain, Ms X never got a copy of the need’s assessment or support plan and there was a delay in setting up the direct payment so she carried on spending Mrs Y’s money privately.
Ms X contacted the Council on 26 September to report concerns about Mrs Y’s increased wandering, and to say that she had increased Mrs Y’s attendance at the day centre to four days a week. Ms X sent further emails to a social worker on 30 September and 1 October to say Mrs Y was increasingly disorientated and could not be left alone overnight. Ms X was staying with Mrs Y overnight to provide support.
Upon review on 3 October, the social worker concluded that Mrs Y’s needs had changed since August 2018 and offered Mrs Y respite care, which was declined. The social worker said the Council would undertake an assessment of Mrs Y’s capacity as a matter of urgency, but this was not started until 16 November.
Ms X emailed the social worker on 4 and 5 October reiterating the distress and disorientation Mrs Y was experiencing and wrote as follows: “As discussed yesterday I have had to arrange on a trial basis a live-in carer through [a care agency] for next week, the week commencing the 8th October as I am unable to continue looking after mum – the cost of this is approximately £900 a week and we will continue to send her to [day care] on a Monday, Tuesday, Thursday and Friday”.
Ms X says she did not have a support plan for Mrs Y so she was unable to provide carers with a plan and they just had “to manage without”.
The mental capacity assessor eventually concluded that Mrs Y was unable to understand the decision concerning matters relating to her accommodation. even when practical steps were taken to assist her. She was however recorded as declining residential care.
On 30 November the Council agreed funding for a live-in carer at its standard weekly cost of £854 and backdated the funding to 16 November. The new care and support plan said that Mrs Y needed a live-in carer to provide support in all areas of daily living, including support to engage in social activities outside the home, but that plan was not provided to Ms X, either.
Ms X was unhappy that the Council had not provided funding for Mrs Y to attend the day centre she had attended for two years. The social worker told Ms X social engagement should be provided as part of the live-in care package. Additionally Ms X complained that the funding should be backdated further because it had taken the Council over two months to complete the assessment.
No further backdating was offered and the council confirmed that it would not fund the live-in carer’s breaks because this was the agency’s responsibility. It said a copy of Mrs Y’s needs assessment was attached. Ms X disputed receiving it.
The Council contacted Ms X to say the complaint would be dealt with through the Council’s ‘appeals’ panel. Officers noted Mrs Y had had live-in care arranged by the family since 8 October 2018, and that she had been attending a day centre four days a week. The panel saw fit to query the need for day centre attendance when live-in care was being provided, and why the care agency was not covering the cost of the carer’s breaks, and why the family were continuing to provide support with shopping, domestic chores and attending appointments, when such tasks should be covered by the live-in care service, in its view. Officers wanted clarification on these issues before making a final decision. Funding for attendance at the day centre was refused. Backdating for live in care was only offered from 16 November 2018 at a weekly rate of £854 per week.
Ms X said the allocated funding did not cover the full costs of Mrs Y’s care and that none of the agencies on the list given to her by the Council charged the rate offered by the Council for the care. She says Mrs Y had had to top-up from her own funds to cover the shortfall, to the tune of £853.16 for just one month.
The Ombudsman asked the Council how many care agencies on its list charged the Council’s rates. Of the 22 providers on the Council’s list, there were none who advertised a live-in care service and also accepted Havering’s rates. Five providers accepting Havering’s commissioned rates for homecare, but this was a direct payment arrangement.
Ms X remained dissatisfied with this outcome; the Council offered to meet with Ms X to discuss the panel’s decision. Ms X declined, saying she intended to bring her complaint to the Ombudsman.
Ms X had told the Council from the outset that she wanted to purchase Mrs Y’s care via a direct payment.
In October, the officer said the payments would be based on the assessment completed in August 2018 because the social worker who completed the review in October had not formally requested an increase in the care package. The officer asked Ms X to confirm if a care package was already in place and said, “You would need to discuss the rate of pay with the carer(s) or if an agency then you would need to be aware of what they are going to charge as any expense that is greater than the LBH allocation amount will need to be covered by the service user ie your mum…”
Ms X received a direct payment contract from the Council on 10 October, the direct payments based on the September 2018 support plan. Despite signing within the week, she was told that the direct payments would be available only on 2 November 2018. She said the assessed contribution was incorrect as the assessment had included attendance at the day-centre, and that additional funding was required to cover the carer’s two-hour break (previously, carers had taken their breaks when Mrs Y had attended the day-centre).
The Ombudsman found that the Council had failed to assess Mrs Y’s needs properly and in accordance with the law. Although the Council had initially responded to Ms X’s for a need’s assessment for Mrs Y in a timely manner, it failed to provide Ms X with copies of the assessment and support plan. There was no good reason for this.
The Council agreed funding for home care visits in early September 2018 but failed to communicate this to Ms X.
It failed to provide the funding for Mrs Y’s care by way of the direct payments that had always been requested on behalf of Mrs Y, meaning that Mrs Y’s savings were spent down further.
Ms X had contacted the Council at the end of September to inform it of Mrs Y’s deteriorating condition and asked it to reassess her needs, with reasons relating to evidence of increased needs. This should have alerted the Council to the fact Mrs Y was still funding her care privately and had not received a care and support plan from the September assessment. The October re-assessment concluded Mrs Y needed overnight care, and identified the need for a mental capacity assessment to establish if Mrs Y could decide where she should live, and if she understood the risks of remaining at home. This was not completed until 16 November.
During that time Mrs Y remained at home and at risk and it was because of this Ms X took matters into her own hands and arranged a live-in care service.
The Council was at fault for not responding swiftly to the outcome of the October needs assessment and not arranging adequate care or funding. Had the assessment been completed sooner, a best interests decision could have been made about the type of care that the council could have been considered offering funding for.
The Council was aware of Mrs Y’s eligible need for overnight care in October but told Ms X that funding would be based on the previous assessment in September because of the absence of an internal step required of the officer. There was no logical basis for this decision which caused unnecessary stress and frustration for Ms X and further financial strain for Mrs Y.
The Council was also at fault for failing to carry out a financial assessment following the assessment in September and October 2018. Financial assessments should be completed after a needs assessment, but before the commencement of services, in order to enable people to make informed decisions about the implications of the council’s charges for the care.
The Council was aware none of the agencies on its provider list provided live-in care at the Council rates. The Council says it allocated Mrs Y “its standard rate for live-in care”. The personal budget was insufficient to cover the cost of the care. In Mrs Y’s case the personal budget was insufficient to cover the real cost of the care. This was fault and not in accordance with the Care Act or Statutory Guidance.
The Care and Support statutory guidance says, “The local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”.
When the Council allocated funding, it failed to backdate the payments to the correct dates. Funding for home care visits should have been backdated to the date the assessment was requested in July 2018, if it was confirmed Mrs Y was below the financial threshold at that point. The Council also failed to backdate payments for the live-in care service to the date when Mrs Y’s needs could only rationally be regarded as having changed (8 October 2018).
The Council told Ms X it would not cover the cost of the live-in carer’s breaks. The LGSCO was prepared to find that there was no fault by the Council on this point (but see our comment below as to when that would not be case, in legal terms, in our view.)
Mrs Y had suffered a quantifiable loss which the council knew about. She had little choice but to cover the shortfall in funding from her own funds. She should not have had to do so. The Council should reimburse her for everything spent unnecessarily.
Ms X had also suffered an injustice. The Council failed to communicate with her effectively. Consequently, she had had to chase the Council numerous times for responses to communication, copies of documents, financial assessments and to start the direct payment application. This caused her unnecessary stress and frustration.
To remedy the injustice to Mrs Y and Ms X the Council would, within one month
- undertake a reassessment of Mrs Y’s personal budget, taking account of the cost of available care suitable to meet Mrs Y’s needs
- establish how much Mrs Y has paid to cover the shortfall in her care and reimburse her in full.
- provide Ms X with a written apology for the failings identified in this statement and make a payment of £250 to acknowledge the time and trouble she has been out to pursuing this complaint with the Council and the Ombudsman.
Within three months, it would
- consider if other service users may have been affected by arbitrary upper limits on care fee rates, and take any necessary action to address this;
- amend its procedure to ensure the Council does not set arbitrary limits on care provision.
Points for the public, service users, councils and families
This is a wonderful example of what the Ombudsman can achieve. The report explores a technique, one that is commonplace in social services today, for attempting to ‘manage down’ the expectations of service users, regarding their rights to a proper care package.
Care planning and the budget allocation on which it depends, has always supposedly been needs–led, under community care law, not able to be resources-determined – ever since 1997. It is true that alternative adequate means of meeting need can be compared for cost-effectiveness and the cheaper (or best value) one offered. But that does not mean that the cheapest possible offer determines what must be offered if in fact what’s offered is declined, because it may have been declined for reasons that should not have been side-lined in the first place, to do with disputing its adequacy if ALL relevant considerations had been properly taken into account.
We suspect that no senior manager really wants to accept that that is the legal truth, because they are under so much pressure to save money in order to rise up the ranks.
The legal principles underpinning the Care Act and the legislation that preceded it explain why indicative budgets actually decide nothing, and why there has been case law regarding how even indicative budgets must be arrived at, lest people are manoeuvred into believing that the indicative budget is a ‘Take It or Leave It’ amount. Resource allocation systems are only a management accounting tool, designed to make it easy to put people’s personal budgets down, when more cuts are deemed necessary – but not often up, funnily enough, when labour becomes more scarce, such as since the Brexit vote, and the price of it invariably goes UP.
The law is that both the indicative – and more importantly, the final budget – must be rationally sufficient.
That’s a lawyer’s way of saying it must be based on the evidence available as to the real market rate for the relevant kind of care, and take all other relevant considerations into account, such as the effect on the price of the specialist skills required (or not) or the effect on the price of the anti-social hours required or the chunks or ad hoc unpredictable nature of the time required – and of course, the law on breaks, for people living in, most of whom are on an unmeasured basis of contract, with their service-using employers, on a negotiated daily average number of hours. That is not the case necessarily when the worker is employed by an agency, but it explains the focus in this report on the question of the cost of carer’s breaks, required under the Working Time Directive, regardless of the basis of contract.
We love the fact that the LGSCO refers to para 10.27 of the guidance regarding public law principles and the outlawing of any arbitrary cost cap, although we know that many councils would not accept that the rates they are offering ARE arbitrary. Many would say that one can only have £650 a week to spend on a live in care worker if that is what one wants, because that is what it would cost the council to place someone in a care home, locally. ‘That’s not arbitrary, therefore’, they would say – ‘no, that’s because we are allowed to take cost into account and if we could meet the needs adequately and appropriately, in terms of wellbeing, for less, then we can’t be made to pay more to meet someone’s preference to stay at home’.
The trouble with that, of course is that some people really do NEED to carry on living at home, and the primary legal duty is to meet need.
Even if they don’t objectively NEED to stay at home, they will often turn round and say ‘Thanks, but no thanks’, then, via their relatives, or an advocate.
Whilst it’s true that very few councils have the legal fortitude to walk away at that point, fearing press attention, and are even less likely to do so, if someone isn’t really capacitated to make that decision, it does then boil down to the council’s choice, rather than the person’s choice, if the council chooses NOT to walk away and pursues that person with another offer.
That choice, then, must be based on the real facts, the actual environment within which the person’s needs must then be seen to be located, and via the real market cost of the deployment option actually being contemplated.
Funnily enough, that’s ALWAYS a direct payment – we think because councils think that it distances them from prospective liability from harm, if an inadequate amount, accepted by an unaware person then turns out to be so inadequate that injury to the service user or PA, later ensues. They think that at least it won’t have been commissioned by the council, and that they will escape criticism because a capacitated relative has accepted the amount, after all!
CASCAIDr could tell councils (and CCGs) why this simply won’t wash, of course, but legal literacy in the Care Act is not the flavour of the month, what with Three Conversations and strengths-based assessment and care planning, and the Liberty Protection Safeguards training, taking up all the budget for that sort of thing!
In this report, it is interesting to note that Mrs Y lacked capacity but was recorded as ‘declining’ residential care in person and yet Ms X was not referred to as an authorised person for direct payments receipt…
Ironically, we should stress, this was not a case about a council saying ‘You can’t stay at home and have live-in care’ – as is the line most councils take, if a care home would be cheaper. It was a case about a council being positively willing to fund the purchase of a live in care service, which is wholly to be applauded. But that is not on, if the rate it is then going to offer is standardised, as if the council can set the rate, instead of respondingto it, and not backdated to the point when the expenditure was incurred, when the failure to conclude Care Act process was the council’s.
Market management is one thing, but the facts do have to underpin, and be reflected by, the rate offered; commissioners and panels do not set the rate if the council has no other means of meeting need, other than through purchase or provision of direct payments for use in a real and volatile market. We cannot help but point out what a different world it would be, if only social care providers understood that simple legal truth about the clients’ rights.
The LGSCO’s point that council was not wrong to contend that the fee for a live-in care service from an agency should cover the employee’s breaks is the only point on which we might part company with the findings. We think that that is right for an agency which is the employer of the staff, and that its weekly quotation for the service would have to cover the breaks that are required by law. But no council is in a position to require an agency to contract on the terms that it would insist on including for itself, if it was doing the commissioning, with other purchasers, such as private or direct payment clients, who do not enjoy the same commercial power.
As in this case, such a purchaser may not NEED a carer’s break to be covered, if the client is going to day care, as had previously been the position for Mrs Y. A person who was given a direct payment to employ a PA directly would of course need to pay for the carer’s break to be covered separately and would therefore need the funding in the direct payment. If a person employs a worker directly, they often have to pay an introduction commission, weekly, too, and there is no reason that a council could possibly use to justify not taking account of that fact when allocating budget. We think organisations such as TLAP and SCIE and direct payment support organisations and independent living centres should be pointing out these things to the sector.
We note that there was a suggestion that anything over the rate that was seen as ‘standard’ would have be paid for through a top-up, as if it was a want, and not a need. Businesses that provide direct payment purchasers with special services, such as continuity guarantees, flexibility with banking unwanted hours, fees remissions if one is hospitalised or on holiday, or care during anti-social hours – things that cannot be said to be part of ‘quality’ local authority commissioned services (whatever the Guidance might mean by that very slippery notion) – may well be seen to be triggering top-ups, but this was not one of those cases. The point is that the fees rate evidence pointed in one direction only in this case – Havering thought it could put blinkers on, against real world facts, and simply tell its clients to manage within a standard rate – effectively, making the clients deliver the savings sought, by hook or by crook, while Rome burned.
The reimbursement point here is pure gold, too, for advocates and advisers, because it is leverage which may actually deter councils from trying to get away with what is self-evidently in breach of the Care Act (whether breach of its due process or of its substantive requirements). The risk of having to disgorge the savings it thought it had been able to make may quell enthusiasm for another round of ideas such as Three Conversations or system go-slows to put off the point of having to fund anything – this happened in the 1990s, after the first wave of judicial reviews got underway after the Gloucestershire case. The Court of Appeal’s decision in CP v NE Lincolnshire provides the legal underpinning for this approach by the LGSCO, and it has been a very long time coming.
We think that the LGSCO is fast becoming a viable alternative to a Tribunal or the Administrative Court, given the amount of illegality that it is now dealing with, under the guise of ‘fault’ and remedies for ‘injustice’. We think it’s time to name and shame councils specifically in our write-ups of these reports, for acting unlawfully, irrationally, in terms of the evidence available to them, in breach of statutory duty, in breach of the rules of procedural fairness, for ignoring the Guidance without good reason, for fettering their discretion and for ignoring human rights (when that is appropriate criticism), instead of just saying that the council’s staff were ‘at fault’! But that is the LGSCO’s ROLE. All we would say is that when the law is clear, we feel it must now be recognised to be ‘fault’ when a council’s senior management doesn’t know the law or see any advantage in training its independently regulated staff to keep up with it. Before long, it may even be misfeasance in public office, for which no manager can be insured or indemnified by a council.
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You can find the full report into Havering’s wrongdoing here