Decision Date: 4th October 2019
Mr X was a carer for his mother Mrs Y. Mr X also had a lasting power of attorney for management of both her finances, and health and welfare.
Mrs Y received a direct payment which Mr X used to employ personal assistants to help support her.
Mr X had received a carer’s direct payment for over ten years.
Between 2015 and 2018 Mr X’s care needs were not reviewed. His 2015 plan stated he received 15 hours of support a week via DPs; generally to use as cover for 3-4 hours as a break from care, and the other for cover for his 11-12 hours a week continuing his voluntary work and professional training.
In 2018 the Council wrote to Mr X advising him to complete a financial assessment form.
In July, the officers visited and discussed the Council’s charging policy with Mr X. They gave him a letter and a charging leaflet. They explained that failing to complete a financial assessment could result in him being charged the full cost of his support that was provided directly to him as a carer.
Mr X signed the form to confirm he had received it but said he felt intimidated by the officers and signed under duress. It was unclear from the report what allegedly took place in the meeting or why Mr X felt threatened.
The Council paid its last DP to Mr X on 12th November 2018. It stopped because Mr X did not complete the financial assessment, and the Council assessed him as needing to pay the full cost of his support by default.
On 19th November Mr X complained to the council. His main complaint was that he should not be charged, but also about the visiting officer’s conduct.
On 8 January 2019, the Council replied to Mr X’s complaints.
It apologised that Mr X had felt intimidated and said it was normal practice for officers to discuss the charging policy so that everyone is aware.
It explained that Mr X was advised to complete a financial assessment form in April 2018. It said the letter he was given, said that failing to do so could result in being charged the full amount for her services. Also that the funding would cease from 29 October if he did not complete the form and return it to the Council.
What was found
Mr X’s support arrangement predated the Care Act, and it was unclear from the care plans whether the carer’s DP was intended to provide funding for support direct to Mrs Y, or to Mr X.
The LGO was satisfied that the DPs were intended to provide Mr X with time to do his own activities (volunteering etc), and therefore the money was intended to purchase care for Mrs Y during those times.
The LGO concluded that the evidence it had seen, showed that Mr X had been using the DP to pay carers to care for Mrs Y, and in the absence of any information to suggest that the Council had envisaged something else (eg for Mr X to use the money on himself), it could not lawfully charge him for that sort of input.
The LGO said that the Council should not have asked him to complete a financial assessment and therefore should not have assessed him as needing to pay the full cost of his support.
The Council was at fault in thinking that it could charge Mr X and caused him to be without support for almost one year. This caused Mr X significant and avoidable distress. Mr X had been without respite cover for his mother since October 2018, as the full cost of charging meant he had not been paid any support funding with which to finance cover, since then.
The Council was also at fault for its inadequate care plan. It did not meet the requirements of the Care Act, or even the preceding legislation. Care plans must include clear information about how payment is intended to achieve eligible needs, and Mr X should have been clear on what he could spend the money on.
The Council were at fault for trying to financially assess Mr X, however the LGO did not find fault in the officers’ personal actions towards Mr X. It was reasonable that the officer should be persistent in ensuring Mr X understood that failing to complete the assessment could result in being charged the full cost of his support, even if that was a misconception. The LGO concluded that ‘on the balance of probability, Mr X’s feeling of intimidation was not due to the officer’s approach. While the purpose of the discussion was fault, I found no fault in the officer’s actions in advising him about the charging policy.’
The LGO recommended that the Council reverse its charging decision so Mr X was not regarded as being due to be charged; complete a carer’s assessment for Mr X within two months, and pay Mr X £800 in recognition of the distress it caused and loss of service.
It was also told it should:
- Review cases where carers have been charged for the first time over the past year. The review should ensure the care plans are clear about whether the support is provided direct to the carer or the person they care for.
- Ensure those carers identified in the review, who use their direct payments to provide support direct to the person they care for, are not charged.
Points for the public, service users, families, councils, etc
It’s clear that restitution is due for anyone who is done wrong to, in public law terms. This man was being funded for his mother’s own care cover.
From 2015 onwards the amount should have been either in his mother’s care plan, or if she would not consent to assessment, his, but on the basis only of her agreeing to being assessed financially.
There was no way he could be charged.
That meant – since, the assessed charge wiped out the package of support, he got no respite, and he was indubitably and presumptively an unwilling carer.
So the money he got back ought to have been the same amount as the value of the respite which was 15 hours a week. If one assumes that that is £10 an hour, that is £150 a week. The report says that the payment was £196.50 but it is unclear whether 7 hours a week was used for paying for something that mattered to him (his professional development) and not for the cover.
The LGO investigator gave a recommendation which was not in line with other LGO responses of late, nor with the law. “In reversing the charging decision, the Council need not pay Mr X any backdated funds which may become due, as Mr X cannot now have the support he lost.”
The value of £150 over one year is £7800, (if it was £196.50 that is £10,218 and if it was just 8 hours spent on cover, that is £4160) – not £800, so we do not think this man got just satisfaction from the LGO. This was a clear-cut case of unwilling care being forced out of someone who was not funded for respite cover he was agreed to need, by virtue of a mistake as to the legal right to charge him.
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The full Local Government Ombudsman report of London Borough of Redbridge Council’s actions can be found here