Lambeth Council and the CCG at fault for delays in needs assessments and handling of a restitution claim

Decision date: 25/11/19

What happened

Mrs B was diagnosed with numerous health issues such as periodic paralysis, reactive hypoglycaemia and a compromised immune system. She contacted the Council in January 2015 to ask for a review of her needs but did not receive a reply.

Her needs were assessed as substantial under Fair Access to Care guidance in 2010, when she first began to receive support from the Council in the form of formal care and direct payments. Her needs and care package were reviewed annually until 2013. It was not clear why they were not reassessed in the subsequent years.

Mrs B moved house in March 2015 as her condition worsened, so that she could be nearer her adult daughter. She wrote to Lambeth Council to inform them of this and requested again that it reassess her needs and that it transfer her care package to the Council in her new area.

Lambeth Council admitted it had misinformed Mrs B that a social worker had been allocated to her when that was not the case. It also admitted to having missed opportunities to coordinate with the new Council about reassessing Mrs B’s needs.

In September, Mrs B moved back to the Lambeth area as this was where her specialist health team were located. The Council reassessed her needs in October and records show that the assessor believed an occupational therapy referral was necessary. However, the assessor never completed this referral. Mrs B claimed that she had opened discussions about adaptations that she felt her home needed but that the assessor had told her that these could not be completed. The Council found her ineligible for financial support by way of subsidised charges for home care, as she had capital over the £23,250 limit. She appealed the decision unsuccessfully

Mrs B’s GP wrote to the Council in December with information about her health problems to support her application for NHS Continuing Health Care (CHC). The GP felt Mrs B needed more care and a highly trained medical assistant. The GP filled out a CHC checklist for Mrs B which was sent on to the CCG’s agent, who in turn contacted Mrs B to organise the assessment process to start in February.

In May, a Decision Support Tool (DST) was completed by a multidisciplinary team. Mrs B requested a personal health budget from the CCG who did not make a decision until September. The CCG did grant Mrs B a one-off payment of £3,000 whilst she waited for the verdict. When it finally agreed to the personal health budget, it also agreed to backdate the cost of the package to May when the DST had been signed.

Mrs B complained to the Council and to the CCG.

What was found

The Ombudsman found the Council at fault for failing to review Mrs B’s needs in 2014 and 2015, and for the 7 month delay in providing her with a reassessment after she had specifically requested one. When it finally completed the review, it decided that Mrs B was responsible for the entire cost of her care and referred her to the CCG for healthcare funding.

Mrs B felt that this delay in assessing her needs meant that she had lost out on healthcare funding that she would have been eligible to receive sooner. The Ombudsmen could not confirm whether or not she would have been assessed as eligible sooner but did point out that it would have caused her distress and uncertainty either way.

It is likely that the information provided by Mrs B in her reassessment would have been sufficient to trigger the completion of a CHC checklist. The Council was at fault for failing to undertake this.

Mrs B claimed that the Council had purposefully delayed completing a CHC checklist for her to evade its statutory duties. However, the decision to withdraw funding was made by the Council’s finance team and was based solely on Mrs B’s finances.

The Council’s responsibility to complete a financial assessment and the action needed to complete the CHC checklist were two separate processes. Even if the Council’s finance team was aware the CHC process was underway this would not have led to a different decision or delayed the decision to withdraw funding in line with social care legislation. The Council provided the Ombudsmen with evidence about the financial assessment. There was no fault found in the way it decided Mrs B had to pay her entire cost of care.

The Council confirmed that the assessor who met with Mrs B in October never did refer her to an Occupational Therapist (OT). It subsequently provided Mrs B with false information about it being better to move, because of the layout of her home. This was fault which caused her inconvenience as she later found out that adaptations could have been made to her home. On balance, it is likely that Mrs B would not have been eligible for a grant following a means test because of her savings.

Mrs B complained that when the Council did finally assess her needs, they did so inadequately. The Ombudsmen could not find evidence that the assessor had made any effort to contact Mrs B’s clinician as was suggested. The Council was at fault for not proactively seeking information from health professionals in an effort to meet Mrs B’s needs.

The later assessment by the CCG did set about mapping her identified needs comprehensively. However, it then took 4 months to complete the DST, which is clearly not within the 28 day period outlined by the national framework for CHC. This was fault by the CCG.

It then took the CCG another 3 months to agree a personal health budget, although it did attempt to remedy this by apologising to Mrs B and making a payment to her. This payment did not conform to the Refreshed Redress guidance as it did not apply compound interest. Therefore the CCG continued to cause Mrs B injustice.

The backdating of the payment also failed to take into account the CCG’s delay in completing the DST, which should have been completed in February.

The CCG acknowledged its failures and agreed to make a new payment going back to February, and one that was in line with the Refreshed Redress guidance, once Mrs B had provided proof of expenditure. The Ombudsmen were encouraged by the proposed action but suggest the CCG calculate the redress based on the cost of the care package it had already agreed to instead of causing Mrs B more stress.

There was no evidence that Mrs B had actually contacted the Council to tell them she was moving before she had made the move to the new area, which may have helped speed up the process of transferring her care package. However, the Council still had a duty to react promptly to the situation when it came to light, which it failed to do.

Remedies

The Council would

  • Apologise to Mrs B for the uncertainty it caused her and the injustice she experienced.
  • Pay her £1,000 for the distress it caused her specifically when it delayed assessing her needs
  • Pay her £250 for the time and trouble it took her to pursue this complaint.

The CCG

  • Also apologise to Mrs B for the injustice it caused her
  • Pay Mrs B the full amount owed to her with regards to the compound interest with the Refreshed redress guidance for the period 16 February to 15 May 2016. Mrs B says this equals 13 weeks multiplied by the agreed weekly budget of £1,757.42 plus compound interest
  • Pay Mrs B £250 for the time and trouble it took her to pursue this complaint.

Points for the Public, service users, patients, family members, CCGs etc

This report goes into the complex relationship between CHC as a status and funding stream, and local authority care, charges for the latter, and the knotty issues that a claim for redress (restitution) can give rise to.

It is the legal truth that if one has over the £23250 capital threshold one is unlikely to qualify for any subsidy by way of a charge of less than full cost, but one could still be a person for whom the council’s rate for home care, might well have been cheaper than being a privately purchasing client – so it is frustrating that there is no clarity about whether Mrs B actually asked to have her needs met by the council, once she moved back to Lambeth, and was getting the services via that route in return for a commissioning fee, or was in fact getting them direct, herself.

The LGO thought that Mrs B had a point regarding the concern that she had had to increase her carer’s hours but had not paid the right pay. The LGO said that Mrs B was the employer and implied that she should have raised any increase in needs with the commissioning body before letting the carer increase the hours being put in, but didn’t go into whether that would have done any good over the relevant period.

It’s not clear to us from the LGO report, whether Mrs B was paying the carer through a Lambeth direct payment or privately, when the increase was made, whether the issue was a national minimum wage issue or a simple issue regarding the number of hours over which a previously agreed hourly rate was paid.

The LGO report does not mention that it is in fact the DUTY of the local authority to make a referral (and the referral is to be made by way of a checklist) under regulation 7 of the Assessment Regulations. That was a breach of the law, rather than just poor practice, therefore.

Benefiting from the 28 day rule (from positive checklist to DST recommendation) is getting harder it should be noted, since the National Framework made getting a checklist much rarer. The LGO insisted that the payment should be backdated to the point when the DST should have been concluded.

It is notable that CCGs are advised to apply the Retail Price Index for calculation of compound interest when considering restitution claims.

The index is calculated monthly, with an average for each calendar year. CCGs are advised to apply the average rate for the year for which care costs are being reimbursed.

CASCAIDr has succeeded in getting a CCG to pay proper compensation for the wasted time trouble and distress and legal expense caused by having to pursue a complaint / appeal over a 2 year period, by helping the client to issue proceedings in the County Court and limiting the claim to £10,000 to protect herself against a risk of costs. The CCG in question tried to contend that its standardised table allocating a given sum for a standard graduated degree of distress should be sufficient and that no legal advice was ever necessary for cases of this nature.

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 the London Borough of Lambeth Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/17-005-393