West Sussex Council at fault for inadequate reassessments, poor record keeping, and incorrect back payments

Decision Date: 11th September 2019

What Happened

Ms D complained on behalf of her mother, Mrs M.

December 2016 reassessment

Mrs M had MS, and had previously been receiving a personal budget. The Council completed an annual reassessment of her care plan in December 2016.

Ms D complained that the Council did not carry out this re-assessment properly, as it did not include a visit to her mother. She said it was inaccurate (she was able to highlight mistakes to the LGO) and she did not receive a copy. The Council said that the information they provided was comprehensive, but accepted that the social worker should have visited Mrs M.

Complaint response

Ms D officially complained to the Council in February 2017. The Council allocated a new social worker to Mrs M and agreed to carry out a new assessment. However, it failed to respond formally to Ms D in writing.

The March 2017 assessment concluded Mrs M’s needs had not changed since the December assessment. Again, the Council failed to send a copy of this to Ms D. The Council invited Ms D in September 2017 to come for a meeting to discuss her concerns and frustrations about the two assessments.

The question of backdating the personal budget

As Ms D was unhappy about the way in which the Council had been reassessing her mother’s needs, she asked the Council in September 2017 for an urgent reassessment. The Council allocated the case to a new social worker, who carried out a review visit in October 2017. Following the review, the Council agreed to increase Mrs M’s personal budget from £342 to £450 per week.

The Council subsequently agreed to backdate this increase to March 2017. The Council said it decided to backdate it to March 2017, because it was not able to determine when exactly, between March and October 2017, Mrs M’s needs had increased.

Ms D complained the Council should have backdated the increase to December 2016, because it failed to carry out an appropriate assessment then, as well as in March 2017.

Residential Care recommendation

After the October reassessment, Ms D complained that the Council recommended that Mrs M should go to a care home. It said it would not provide the full cost of Mrs M’s home care. The LGO found that the Council fully and appropriately assessed Mrs M’s needs, and therefore found no fault in the Council’s decision.

Provision of an advocate

Throughout this whole process, Ms D was overloaded with information, therefore the Council recommended she seek discretionary advocacy support. Ms D referred herself to an advocacy service on 20 September 2017. However, soon after this, Ms D’s need for Care Act advocacy support changed to a need for legal support, to deal with matters brought up as a result of her mother’s financial assessment. 

The Council told Ms D it could make a referral for advocacy support for her mother from an IMCA (Independent Mental Capacity Advocate), but that Ms D did not meet the criteria for advocacy support for herself because, according to the Council, she had capacity to participate in assessments and meetings.

The Council also told Ms D that “you hold a Power of Attorney (to make financial decisions on behalf her mother) for your mother. If you are requesting support in this regard, I would suggest you seek the services of a Legal Professional if this is becoming unmanageable for you”.

Deprivation of assets

As part of the September 2017 financial assessment, it became apparent that Ms D’s property had been transferred into the name of her children (It was unclear from the report when the transfer took place). The Council explained to Ms D in November 2017 that by Mrs M transferring the property to Ms D, without getting any money for it, a Deprivation of Assets occurred. Mrs M should have received the market value for her property upon transfer. If she had, she would have more than £23,250 of capital, which would then have meant that Mrs M would have had to have paid for the full cost of her care support.

The Council said that if the property was not transferred back into Mrs M’s name, the Deprivation of Assets decision would stand and the Council would cease funding her care from 15 December 2017.

As a result, Ms D put the property back into her mother’s name in December 2017.

What was found

December 2016 reassessment

The Council should have carried out a visit to Mrs M to assess what support needs she had, within her home environment. It failed to do this, which the LGO found to be fault. The LGO also found no evidence the assessment records were sent to Ms D. This was also fault.

Complaint response

While the Council acted appropriately by organising a new reassessment by a different social worker, the Council failed to provide a written response to the specific complaint issues Ms D raised in February 2017.

The Council also failed to document the March 2017 reassessment / review, which was fault. As a result, the LGO was unable to conclude that the Council correctly assessed Mrs M’s needs in March 2017.

The conclusion itself (that Mrs M’s needs had not increased since the review in December 2016) was also incorrect, because that assessment was also being contested by Mrs M as part of her complaint.

Backdating direct payments

As the LGO was unable to say whether the Council correctly assessed Mrs M’s needs in March 2017, nor able to determine which specific information the Council considered when concluding Mrs M’s personal budget should stay the same (between December and March assessments), it decided that the Council should have backdated the increase to December 2016.

Provision of an advocate

The LGO found there was no fault by the Council in this regard. The Council offered to make a referral for advocacy support for Mrs M. It also concluded, and explained to Ms D, why she did not meet the criteria for advocacy support for herself. This was a judgement the Council was entitled to make.

Ms D’s need for support changed to one in which she needed legal advice / support, which she was ‘entitled’ to obtain on her own account as part her role as her mother’s PoA.

Deprivation of assets

The LGO found there was no fault by the Council. Mrs M’s asset was transferred at a time she was already receiving care and support which deprived her of capital that would otherwise be available to pay for her care, in the future. The Council made a decision in line with relevant guidance and the situation was quickly resolved by the family.

Points for the public, service users, councils and families

This is another example of the law requiring restitution (financial redress) for any period of illegality in reviewing an existing care plan. The law is that a care plan can’t be changed without a lawful re-assessment, so if a council hasn’t done one recently, then in theory, people could claim retrospective redress since the last valid one, although they would have to go to the LGO or bring judicial review proceedings, because the process since the last one would be regarded as valid unless challenged successfully, or found to be in breach of the Care Act by the LGO.

It is of interest to us that the LGO thought that a visit was essential in this case, presumably on account of Mrs M’s incapacity, because the Guidance says assessments and therefore re-assessments should be done face to face where a person lacks capacity to some obvious extent.

The breach of the Care Act in this case appears to have been the failure to visit, which is in fact a breach of the Guidance, not the Act or regulations. But we have no argument with the LGO in seeing failure to follow the Guidance as unlawful.

We would also point out that it is a carer’s statutory right to see the Care Plan, receive a copy, that is, if the adult asks that that should happen. If the person can’t make that request due to incapacity, the position reverts back to the ordinary law or information sharing: the council is the keeper of the record but can disclose it for best interests reasons. The fact that the carer has a right to be INVOLVED in a person’s assessment or care planning process, regardless of consent, puts the onus on a council to justify not sharing that care plan, to our minds, for some very good reason, as otherwise involvement is stymied.

See here:

9 (5) A local authority, in carrying out a needs assessment, must involve—

(a) the adult,

(b) any carer that the adult has, and

(c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

25 (3) In preparing a care and support plan, the local authority must involve—

(a) the adult for whom it is being prepared,

(b) any carer that the adult has, and

(c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

25 (9) The local authority must give a copy of a care and support plan to—

(a) the adult for whom it has been prepared, [so there would be one sent to the person anyway, and a person’s attorney would open that in the ordinary scope of their authority]

(b) any carer that the adult has, if the adult asks the authority to do so, and

(c) any other person to whom the adult asks the authority to give a copy.

It is impressive in this report, we think, that the family’s seemingly unaware transfer of the property into the family’s own names for free was reversed once they were told that they had done wrong. And that that did not affect the LGO investigator’s approach to the wrongdoing they had themselves suffered at the hands of this council.

We think it ought to have been said though, that since Mrs M was having care at home, her financial assessment would not have been able to take her property value into account; what the council achieved was good for its funding situation for the FUTURE, if and only if Mrs M went into a care home.

The point on advocacy is that carers are entitled to advocacy under the Care Act but only in relation to a support needs assessment of the carer herself, and even then, only if the carer suffers substantial difficulty in engaging. Here, there was no evidence of that, so Mrs D would have simply been signposted to statutory advocacy. We would have to agree with the LGO’s stance that if one is going to take on power of attorney, one has to get equipped with sufficient legal knowledge to know about the person’s rights to social care and the responsibilities of an attorney.

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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/assessment-and-care-plan/18-014-895