Milton Keynes Council at fault for needs assessment flawed by a ‘last resort’ policy, for leaving a paid personal assistant working without pay – and for providing a care package clearly insufficient to meet needs

Decision date: 26 June, 2019

What happened

Mr Y had Huntingdon’s Disease (HD), a complex progressive neurological condition. For some years Mr Y received direct payments to employ a care agency and a personal assistant (PA) to meet his care needs. Mrs Xwas the complainant on Mr Y’s behalf and although her relationship to him was not clear she clearly undertook some caring tasks.

Mr Y had long been assessed as having eligible needs including managing and maintaining nutrition and maintaining a habitable home environment.

In 2016, the Council assessed Mr Y as requiring 35 hours a week of care and support through a PA and a care agency. A support plan referenced the need for prompts to prepare food simply.

This support plan noted that the Council “no longer paid for shopping and domestic support” and that Mr Y “had to pay for these from his disability benefits”.

In April 2017, Officer A, a social work assistant carried out a review of Mr Y’s care and support needs finding that Mr Y continued to have needs around nutrition and maintaining a habitable home – Officer A noted that Mr Y was unable to get food and drink on some days.

Officer A again notified them that the Council no longer paid for shopping, domestic and meal preparation and she “encouraged” Mr Y to use his benefits for those services.

Officer A recommended his care package be reduced from 35 hours to 23.5 hours per week,

6 hours included for support with social and leisure activities and to enable Mr Y to see his children.

After that reduction, Mr Y’s shopping was then carried out by his PA without any payment.

In August 2017, the Clinical Commissioning Group assessed Mr Y to see if he was eligible for free care through Continuing Healthcare status. Mr Y was found ineligible for CHC at this time.

Mrs X informed Officer A that the care package was insufficient as Mr Y could not afford to pay for shopping and cleaning services, and he needed more prompting to eat. Officer A told Mrs X that prompting to eat was included in the care plan, and shopping and cleaning services were no longer funded.

In January 2018,Officer A reviewed Mr Y’s needs and noted that before recommending an increase in direct payments, Mr Y needed to see a Speech and Language Therapist (SALT) to assess his needs.

The SALT visited in February 2018 and concluded that Mr Y was at risk of choking while eating and that this could be minimised with supervision.

In late February 2018, Mrs X made a safeguarding referral to the Council raising concerns including that Mr Y was experiencing a number of falls and choking on food – she suggested he needed two people to support him while out and more care when eating.

The officer who discussed the safeguarding referral with Mrs X advised that they were waiting for the outcome of the SALT assessment before they could proceed. She informed Mrs X that they would not take further action over the safeguarding referral.

The SALT assessment was received in March 2018 and the Council convened and the MDT (Multi-Disciplinary Team) met to discuss his behaviour towards carers and his nutrition.

While the SALT had recommended discreet supervision with food, it appeared that Mr Y sometimes refused meals from his carers. It was agreed that a capacity test would be conducted by the SALT to determine whether Mr Y understood the risks of choking.

It was concluded that Mr Y did have capacity to understand the recommendations to help minimise risk of choking and an informed decision about unsupervised eating. However, officer A recommended that Mr Y’s care package be increased to 26 hours a week in order to allow for increased supervision at his main meal.

One of the professionals in Mr Y’s care noted that there were concerns that he did not have enough food in the house as Mrs X no longer paid his PA to go shopping and to do domestic chores. But Officer A found there was food available following a welfare check.

Later on, the Council increased his care package to 36 hours per week.

Following concerns from Mrs X about Mr Y’s conditions deteriorating further, the council reassessed Mr Y again and consulted professionals involved in Mr Y’s care including his dietician and specialists in Huntingdon’s Disease.

The Council recommended a care package of 52.5 hours a week which included a significant increase in support with nutrition.

Around this time, Mr Y was found eligible for CHC and his care package funding transferred to the CCG.

Mrs X complained to the Council on Mr Y’s behalf about the following:

  • The Council did not have enough understanding of Mr Y’s condition and did not provide a care package with enough hours to support Mr Y with eating and the number of carers needed when going out (Feb 2018).
  • The stress and burden placed on her.

The Council considered the complaint at Stage 1 but did not progress it to Stage 2 and they did not uphold Mrs X’s complaint.

In April, May and June 2018 Mrs X complained again and her MP also complained on her behalf.

The Council’s complaints procedure provided for a service director to respond to complaints from an MP and a senior officer for replies to complaints at stage 2.

Mrs X received a reply from a senior officer in July 2018 and the complaint was not upheld: it said that the Council did not allocate funds for carers to undertake shopping.

Following the MP’s complaint, the Council acknowledged that there had been a delay in responding to both Mrs X’s and the MP’s complaints saying it was due to unforeseen circumstances and the complexity of responding to both Mrs X and the MP.

Mrs X then made a complaint to the Council’s monitoring officer who responded that the Council did NOT have a policy not to allocate funds for cares to undertake shopping.

She acknowledged that the council were wrong not to allocate funds for Mr Y’s shopping and domestic tasks in Mr Y’s assessments of 2017 and 2018. The council considered that in the 2017 assessment, Mr Y’s shopping needs could be covered by online services but that did not strike the LGSCO as likely to be workable.

Mrs X then approached the Ombudsman with the following complaints about the Council:

  • They wrongly reduced Mr Y’s care package in 2017 on the footing it no longer funded shopping or domestic tasks despite Mr Y being assessed as having eligible needs in these areas
  • They wrongly expected Mr Y to arrange and pay for his own shopping and cleaning services despite the Council’s assessment that he is not required to contribute to his care
  • They wrongly reduced Mr Y’s social hours when the Council agreed to allow two carers to accompany him when he went out
  • They allowed Mr Y’s assessments to be carried out by staff unqualified (Officer A) in terms of awareness of his condition, to undertake assessments
  • They failed to deal with Mrs X’s safeguarding enquiry
  • The failed to deal properly with Mrs X’s and the MP’s complaints

Summary of investigation by ombudsman

The ombudsman did not consider events from as far back as 2016, because Mrs X could have brought a complaint about that, much earlier.

Although Mrs X also complained about the assessment during August/September 2018 not being in accordance with the Care Act and that the care package should have been recommended at 60 hours per week, the ombudsman did not investigate it because it was after the complaint had been made.

Findings on Mr Y’s care package

The Council was indeed at fault for reducing Mr Y’s Care Package from 35 hours to 23.5 hours on the basis that shopping, domestic and meal preparation tasks were no longer funded.

In fact, the Council has no such policy although Officer A and Senior Officers responding to stage 2 of a complaint thought that it was Council policy.

Theombudsman considered that the Council had communicated to its officers that they no longer funded domestic and shopping tasks. This was fault.

The Council was not able to have an overall policy to not fund eligible needs if they could not be funded in an alternative way. Decisions should have been made on eligible needs and, in the care and support plan process, consideration of how the needs were going to be met.

It was concluded that the assessment in August/September 2018 was comprehensive and had regard to the overall impact of Mr Y’s condition on his needs. The assessment also had appropriate input from a range of medical professionals and a Huntingdon’s Disease Specialist.

There was some evidence that Mr Y’s condition had deteriorated somewhat as he became eligible for CHC funding in September 2018. The Council could not show evidence of any particularly significant increase in need or that the much larger recommended provision was only attributable to Mr Y’s worsening condition.

The ombudsman inferred from the circumstances that the assessments of April 2017 and January 2018 might well have been flawed: at that point the council had insufficient specialist input and understanding of Mr Y’s needs and wellbeing as a whole.

Consequently, the council had not complied with the Care Act in considering what would constitute an adequate care package to meet Mr Y’s needs.

Findings regarding the Safeguarding concerns and complaints

Regarding the safeguarding concern raised by Mrs X, the ombudsman concluded that the council followed their procedure and explained their reasons for taking no further action. The ombudsman concluded that the outcome for Mr Y would have been no different if the Council had taken action as they would just have requested another needs assessment.

A further safeguarding concern that was raised by Mrs X while Mr Y’s PA was away and Mrs X was in hospital was not evidence of fault because the ombudsman found that the Council had checked that Mr Y was adequately covered with care at the time.

In relation to Mrs X and her MP’s complaints, the ombudsman concluded that the council did respond to all complaints and that the delays were not excessive and there were reasons for the delays relating to multiple complaint from Mrs X. Mrs X was concerned that a service director did not respond to her MP but the ombudsman did not find this as significant injustice.

Mrs X’s verbal complaints to the Council were not investigated because the ombudsman did not see these as being injustice separate to the inadequacy of Mr Y’s Care Plan.

Injustice

Mrs X reported that the inadequate care package severely affected Mr Y’s wellbeing with him experiencing significant weight loss caused by the care plan not meeting his nutritional needs. Since CHC funding and the increased care package, Mr Y had gained weight as reported by his dietician. It was found that the inadequate care plan had caused detriment.

The faults by the Council caused significant injustice to Mrs X. The inadequate care package placed more of a burden on Mrs X as she had to meet Mr Y’s needs herself while pursuing the inadequate care package with the council. This caused significant distress to Mrs X and put her to avoidable time and trouble.

Mrs X also had to pay herself for Mr Y’s PA to undertake shopping and domestic tasks from June 2018.

Mrs X reported that the inadequate care package caused distress to Mrs X’s and Mr Y’s children as they witness Mr Y losing weight and missing out on social activities due to lack of provision of carers.

Mr Y’s PA carried out his shopping and domestic tasks from April 2017 to June 2018 without pay. The Council should offer a remedy to Mrs X, Mr Y and their family and to Mr Y’s PA.

Agreed Actions:

  • A written apology and a payment of £3000 to Mr Y to acknowledge the inadequate care and support package
  • A written apology and a payment of £1000 to Mrs X to acknowledge the distress and avoidable time and trouble caused to her and the distress caused to the children by the inadequate care package.
  • A payment to Mr Y’s PA of £200 to acknowledge that she undertook Mr Y’s shopping and domestic tasks without pay from April 2017 to June 2018
  • Reimbursement to Mrs X on evidence of the payments, for having paid Mr Y’s PA from June 2018 to the date when Mr Y became eligible for CHC funding.
  • Review of the council’s procedures for carrying out care needs assessments to ensure the Council consulted appropriate professionals and specialists for service users with conditions it did not have appropriate knowledge of.
  • Review of its policy on meeting eligible needs to ensure the Council was not instructing officers that it would no longer pay for shopping and domestic tasks, and meal preparation if those needs could not be met in an alternative way. The council should inform the ombudsman of the action it would take to improve its practice in that area.

And within six months the council would:

  • Review the care packages of other service users who might have been affected by the Council’s fault in issuing its policy or instructions that it would not fund shopping, domestic or meal preparation services to see if those needs could be met in an alternative way.
  • reimburse any service users whose eligible needs were not met in an alternative way. The Council could carry out such a review as part of the service user’s six-monthly review.
  • report the findings of its review into whether other service users had been affected to the ombudsman.

Points for the public, service users, families and councils

The ombudsman did not really address the need for two carers for Mr Y when going out in the findings. The ombudsman only dealt with meal preparation rather than supervision of eating for Mr Y despite that being recorded as a need as well. The PA was only reimbursed for shopping and not domestic tasks . There is no mention of whether Mrs X was ever given a carer’s assessment

However, overall, this is another clear example of systemic top-down lack of grasp of the Care Act, meaning that the legal framework training needs to be refreshed.

The LGSCO has been saying that it is not appropriate (the organisation means not legal) to have a policy or allow staff to think that there is a policy of not providing shopping, cleaning and transport, since 2017, when the practice first emerged in complaints such as Hull’s complaint.

If the LGSCO could say why it is not legal, more often, we think it would be much more obvious to other councils the risk that they are taking when ignoring these decisions.

The reason it’s not legal are threefold:

  • Firstly, the domains which give rise to the eligibility criteria, when read with the statutory Guidance, mandate the clear policy lead from the Department of Health that shopping, cleaning and transport ARE indubitably part of the scope of social care services. It is not therefore possible, in terms of lawfulness, to pretend that they are not; it would defeat the statutory purpose under the Care Act.
  • Secondly, it is an unacceptably rigid fetter of the care planner’s professional judgment as to what is required adequately to meet the gaps in the person’s ability to cope in the context of the relevant domains.
  • It is also very likely to constitute the separate illegality of TELLING people to spend their own money on meeting their own needs, and no council is not allowed to do that. A person’s benefits are unknown to a council at the point of assessment, theoretically, and no more so on a re-assessment; and not relevant to the identification of needs or care planning. The only exception is if a person is seeking care in a care home, in which case it is relevant to care planning, because there is no duty owed to well-off capacitated people with above the capital threshold in liquid form, in that regard.

A person’s means, and the benefits that constitute those financial means for many ARE ONLY RELEVANT TO CHARGING.

  • It is possible for eligibility purposes that the FACT that a person is on a disability related benefit may ‘passport’ them through to some sort of advantage or entitlement locally that does not come from adult social care, but even then, that is only relevant to care planning if it is an alternative source of help that would make the person ABLE to achieve:
    • online shopping and free deliveries are an example, depending on the store, but no use if one can’t put the stuff away.
    • Mobility component may get one onto free local transport, but it’s not good if it doesn’t go where one needs it to go, or one can’t use public transport unescorted, because that person needs to pay, too!
  • Lastly, it is legal for a council to adopt a charging policy which would charge full cost to people who choose to seek NON-CARE services (loosely defined as non-hands ON, so shopping and cleaning and transport would be a good example) regardless of how low it takes their left over income below the minimum income guarantee, and thus making a person no better off than if they were buying their own services out of their own money, incentivising some to make that choice, ultimately – but adopting that sort of a policy has political consequences.

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The full report can be found at:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-003-035