Cornwall Council at fault for delays in providing support

Decision date: 08/01/20

What happened

Ms B suffered from multiple physical and mental health problems and had been in receipt of a care package of 42 hours per week from her unnamed local authority (Council D), prior to moving to Cornwall.

Ms B’s care was organised through a direct payment to pay a personal assistant (PA).

The 42 hours were made up of 35 actual care hours with a 7 hour contingency as Ms B’s needs fluctuated greatly. Her needs assessment from Council D listed a number of aspects of daily life that she needed assistance with, including the maintenance of nutrition and personal hygiene. Ms B moved to Cornwall to be nearer her daughter, a professional carer, who had agreed to provide her with care whilst personal assistants were found.

Ms B planned to move on 26 May 2017 but deferred it until July as she had become ill around that time. Council D had properly referred her to Cornwall Council and agreed to pay her direct payments for 6 weeks after the supposed move date. However, Cornwall Council. She called the Council on 10 July whereupon it re-opened her case, assigned her a social worker and began making arrangements for its own first needs assessment.

The needs assessment was not carried out until 15 August, which was also the date Council D ceased funding Ms B’s direct payments, due to the social worker having been ill. When she did finally meet with Ms B, she let her know that she would be on leave for the next three weeks. She also offered Ms B support from an interim agency while the Council finalised its plan and suggested she register with a local GP.

There were further delays and Ms B did not receive the assessment until 22 September. Cornwall Council had decided that she needed only 29 hours of care a week (a drop of 13 hours per week) but Ms B claimed that this would not meet her needs. The assessment was finalised in November and allocated 29 hours of care per week to Ms B with an emergency care fund of £285. The Council said it would review the plan in 6-12 weeks and that it would reimburse the outstanding direct payments from 17 August but only at the rate of 29 hours per week.

The Council’s finance team then undertook a financial assessment but Ms B did not receive any direct payments until 17 January, more than 2 months later. She had already complained to the Council at the end of November. It responded on 9 January to say it had not upheld her complaint. She complained to the Ombudsman about the delays she experienced in the Council’s assessment of her needs and then waiting for the support to be implemented.

What was found

Assessment delay

The Ombudsman noted the lengthy period of time it took Cornwall Council to start supporting Ms B. Most of the delay was attributed to sickness or communication issues and there was little active fault by the Council here. The social worker was found to have been acting completely in line with the Care Act 2014. However, there was no reason nor evidence provided as to why the Council took over 2 months to begin sending Ms B the direct payments.

Provision of support delay

Cornwall Council were obliged to continue meeting Ms B’s needs as assessed by Council D and were at fault for not doing so. It could not give the Ombudsman an explanation as to why it took away the offer of direct payments and instead offered direct support from an agency. Moreover, Ms B had complex, fluctuating needs accompanying a traumatic past and this should have clearly indicated that a direct service was unsuitable. Her daughter was providing her care and should have been paid for it.

Ms B was effectively without Council support from August 2017 to January 2018 and this was fault on the part of Cornwall Council that amounted to a sizeable injustice. Ms B’s daughter was also caused injustice as she felt obligated to continue providing her mother with the support she needed, but was not paid properly for it. The Council did backdate its direct payments but using the figures that it had decided on (29 hours a week instead of the 42 in line with Council D’s care plan).

Assessments

It is not the job of the Ombudsman to comment on the outcome of assessments, only to decide whether the relevant Council has taken the proper steps and followed the correct legislation. The Ombudsman did not find Cornwall Council at fault for deciding to reassess Ms B’s needs as this is in line with the guidance. However, it did fail to provide a written explanation of how it reached the decision to reduce her support, or to provide any form of calculation that resulted in 29 hours support per week being appropriate for Ms B. This is fault.

The Council also failed to review the plan after 6-12 weeks as it said it would.

Remedies

Cornwall Council have agreed that, within 2 months:

  • Write to Ms B, apologising for the injustice caused to her and to explain how it justified coming to the decision to reduce her care package by 13 hours
  • Pay Ms B £300 and the equivalent of 13 hours support per week, backdated from 17 August to 17 January. This is a significant amount and was likely to be worth over £3,000
  • Review Ms B’s needs assessment and care plan
  • Ensure that its staff are aware of the statutory guidance regarding continuity of care

Points for the public, service users, families and anyone moving from one area to another

We despair at this kind of plain ignorance of the Care Act. The law is really clear. We know there to be a case going through judicial review about this sort of thing. We have heard of one council saying “You can’t have the money you’ve been having for years because we can’t work out why they gave it to you, but we haven’t asked for the assessment and we haven’t done one of our own as yet”!

The ombudsman’s report sets out the law on continuity when a person moves from one authority to another:

  • If the second authority has assured itself that the adult’s intentions are genuine, it must inform the first authority. Both authorities must identify a named staff member to lead on the case and be the ongoing contact during the move. They should both make themselves known to the person and lead on sharing information.
  • The first authority must give the second authority a copy of the care plan and any other information the second authority may ask for.
  • The second authority must complete a needs assessment.
  • The second authority’s assessment must consider whether any preventative services or advice and information would help either person meet those outcomes. The assessments should also consider the individual’s own strengths and capabilities and whether support might be available from family, friends or within the new community to achieve their outcomes. In carrying out the assessments, the second authority must take into account the previous care and support plan which has been provided by the first authority.
  • If the second authority’s needs assessment or the cost of meeting the needs is different from the first authority’s care plan, the second authority must provide a written explanation of the difference.
  1. If the second authority has not been able to complete the assessment before the person’s move, then it should:
    • Meet the needs for care and support that the first authority has been meeting.
    • In meeting the needs, it must take into account the outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.
    • In deciding how to meet the needs, the Council should involve the person and their carer. The Council should take all reasonable steps to reach agreement with the person.
    • These arrangements must be in place on the day of the move and continue until the second authority has carried out its own assessment and put in place a care and support plan which has been developed with the person.
    • Where there has been a delay in the move because of unforeseen circumstances, both authorities should maintain contact with the person to ensure that arrangements are in place for the new date of the move.

The LGO said this:

The guidance says the Council should have continued to meet the needs for care and support that council D had identified in its assessment and had been meeting. These arrangements should be in place on the day of the move and continue until the second authority has carried out its own assessment. My reading of the guidance is therefore that the Council cannot significantly change the care plan until it has carried out its own needs assessment.

  1. Council D provided Ms B with 42 hours of support per week, via direct payments. This is what the Council should have put in place. The Council changed this to an offer of direct support from an agency. I asked the Council why it took away the direct payments and it could not give an explanation.
  2. The offer of direct support was not in line with the Guidance and the continuity of support the Council was meant to provide. There was no reason why the direct payments were stopped. There was no indication that Ms B had misused the direct payments in any way therefore she was entitled to direct payments if this was her preferred method.
  3. More importantly, there were clear indicators that a direct service was not suitable for Ms B’s needs. Ms B had fluctuating needs which meant that, on some days she needed more support than on other days. It was difficult for agencies to offer this level of flexibility which was why Ms B relied on personal assistants who she paid by direct payments. Secondly, Ms B had mental health problems and had suffered a traumatic past which meant that she could not have strangers/different carers providing her care. 
  4. However, the guidance says that, if there is a reduction in the support following an assessment by the second authority compared to the support by the first authority, then the second authority must provide a written explanation on how it has reached that decision. The Council has failed to do so and this is fault.
  5. There is no explanation on how the Council arrived at the figure of 29 hours or the reduction in support of 13 hours and this is fault. I appreciate that Ms B has fluctuating needs so it is more difficult to allocate hours to outcomes and I also appreciate that there was no explanation in council D’s care plan on how it arrived at the figure of 42 hours.
  6. However, as the Council is reducing the support it must have prepared a calculation on how many hours Ms B spends on average over a certain period on the support to meet her needs/outcomes. It must have some justification for the figures it arrived at and it should have written to Ms B to explain this in detail.
  7. There is also fault in the Council’s failure to explain its position relating to night care. The plan said Ms B was allowed 3 x 10 hours night support as an emergency only. In its response to Ms B’s complaint the Council said this was ‘for emergency support only, not routine’. Therefore, Ms B thought she was only allowed 30 hours nighttime support a year which she said was not sufficient.

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 Cornwall Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-003-073

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