Decision Date: 19th December 2019
Mr B suffered from autism and a personality disorder, and had received direct payments (DPs) to employ a personal assistant for 12 hours per week. He also received informal support from Ms Y.
All correspondence between the Council and Mr B went through Ms Y, as Mr B ‘often had meltdowns when the Council contacted him directly’ and he had removed consent for the Council to contact him directly.
In June 2018 Ms Y emailed the Council to request a re-assessment. She said the Council had not reassessed Mr B for three years. She said she did not have consent to discuss Mr B’s case and the Council had not put in place an independent advocate.
The review took place in October 2018, where Ms Y said she was no longer able to provide informal support. Mr B asked the Council to increase his care package, to account for losing Ms Y’s support.
The Council later emailed a draft assessment to Ms Y asking for more details. Ms Y stated she would no longer deal with any communication between the Council and Mr B after 5.30pm the next day, and suggested the Council send the updated assessment to Mr B’s MP.
The Council sent Ms Y an updated assessment at 5.20pm of her last day communicating for Mr B. She stated she did not see the email before 5.30, that it was inappropriate for the Council to send the document so close to the deadline, and it should send it on the Mr B’s MP (which it did)
In late November 2018, Mr B’s MP wrote to the Council asking it to consider appointing an advocate and give any reasons for a delay in doing so. The Council obtained Mr B’s consent then, in December 2018, made a referral to its independent advocacy service on Mr B’s behalf.
In late January, the Council contacted the advocacy service, as it had not heard anything since its referral. The service said it ‘was not instructed to act for Mr B at this time so could not communicate with the Council or update it about the referral’ and suggested they contact Mr B. The Council did not contact Mr B, as they did not have Mr B’s consent to do so.
The Council received a complaint from Ms Y in early February 2019, stating that Mr B still did not have an updated care and support plan or an independent advocate. Ms Y complained that the Council had made a poor referral to the service, but did not explain in what way.
Mr B then contacted the Council directly to complain. He asked the Council if he had a choice in which service he used, because it seemed as though his advocate was allocated arbitrarily. He also complained he was going without hot meals due to the Council not completing the re-assessment.
The Council responded that Mr B did have a choice and provided information about other advocacy services he could contact. The Council asked Mr B to give consent for the advocacy service to share information with the Council, or alternatively, for Mr B to give his permission for the Council to contact him directly so it could complete the assessment.
Mr B did not give consent for either.
In March 2019, the Council sent a copy of the re-assessment document to Mr B via his MP. The Council also suggested an alternative advocacy provider. Mr B responded to say he wished to use a different provider, but not one the Council had so far suggested.
The new plan showed that Mr B would receive the same amount of hours as his previous plan had allowed for. It did not include provisions for informal support, as the Council found no evidence that his eligible needs had increased, and the hours provided were sufficient.
Mr B provided comments to the Council about the plan via email, to which they responded. This correspondence resulted in Mr B having a meltdown, and breaking his phone and several plates. Mr B sent an invoice to the Council for these, which they declined to pay.
Mr B also complained about the conduct and competency of the social worker on his case, and stated he would not agree to anything drafted by them again.
In September 2019 the Council wrote to Mr B, setting out how it would go forward. It asked Mr B to give consent for it to refer him to its new advocacy provider. It said another social worker would be available to complete a re-assessment from November 2019.
According to the LGO, Mr B’s correspondence to the Council regularly contained strong and, at times, abusive language. Mr B said this was due to his condition and the Council must accept this as a reasonable adjustment under the Equality Act. The Council highlighted it must balance this with its duty to protect the wellbeing of its staff.
What was found
The Council was not at fault for the way it completed Mr B’s reassessment. The LGO stated that although the reassessment was not completed within the desired 4-6 weeks, the delay was not because of any fault from the Council.
The LGO stated that whether or not there was a delay in sending the documents to the MP, it was clear that Mr B wanted an independent advocate appointed, who could act as the middle man for support. As soon as it became clear a timely appointment of an advocate was unlikely, it sent the document to Mr B via his MP. Therefore the LGO found no fault in the Council’s decision to wait for the appointment of an independent advocate, before continuing to finalise the re-assessment.
The Council was not at fault for the outcome of the assessment. The LGO stated that the Council had clearly set out why it considered 12 hours or support to be sufficient, and that informal support, and therefore its cessation, was never a factor that had affected his care plan.
The LGO stated that although the Council had a responsibility to provide an advocate, and Mr B remained without one, it was not through the fault of the Council. The Council was not at fault, because it was clear they made a referral. Mr B did not have to engage an advocate from the Council’s service and had been invited to choose an alternative service. The Council could have supported him to arrange another advocate, but only with his consent to contact with HIM. The Council asked for this consent, but Mr B declined. The LGO stated that the Council could only fulfil its duty to provide an advocate with Mr B’s consent.
The Council was not at fault in failing to provide interim payments, as there is nothing in the Act or Guidance that says Councils must make interim payments while an assessment is ongoing.
After the Council has completed an initial assessment of someone’s needs, the person may request direct payments instead of care arranged by the Council. While the Council is considering this request to receive the budget in that form, it should provide interim payments in line with the Guidance. However, this did not apply to Mr B’s situation as he was already receiving direct payments. The Council did not stop these while it completed the re-assessment. It continued to meet Mr B’s needs in line with the care plan throughout.
Any increase in direct payments would only take effect after completion of the re-assessment. In some cases, councils might backdate payments to the start of the re-assessment. However, again this did not apply here as the Council did not accept it needed to increase Mr B’s direct payments.
The Council was not at fault in the way it met Mr B’s communication needs. The LGO considered that it was clear from the correspondence that the Council made concerted efforts to communicate with Mr B in line with his wishes. It sent correspondence via Ms Y when she was acting on Mr B’s behalf and then through the MP when she was not.
Points for the public and council officers and advocacy organisations
This is a sad case indicating how difficult it must be for people with strong drives and entrenched stances borne of frustration to negotiate their way through a Care Act assessment, and to understand the law, which we think is correctly stated here, by the LGO.
No fault was found in terms of the manner and extent of attempts to communicate with the gentleman. Information sharing by people who are very anxious anyway is hard to get consent to, but the danger is that if people won’t consent or can’t be interpreted as consent, the council will take the person to be withdrawing from engagement or refusing services.
Here, the man thought that he should be given an increase because his informal source of free support had come to an end. That seems rational, but it overlooks the fact that it is only eligible needs – inability to achieve without assistance which causes a significant impact, that the council has to meet anyway. So unless what an informal carer has been willing and able to do has been noted, and allocated by agreement to offsetting eligible needs, it’s not possible for the person or any advocate to be able to tell what the sum of money then being allocated to the budget is supposed to cover, or what needs are regarded as needs but not eligible needs, such that the informal input is having no actual reduction impact ON the cost of the care plan.
Here, oddly, Mr B’s position was that the informal support of Ms Y WAS referred to in the previous plan that he’d had. It was on that footing no doubt that he expected the cessation of that input to lead to an increase in his budget, and the LGO doesn’t deal with that explicitly. The investigator said this:
“I understand Mr B says his needs have changed because Ms Y is no longer providing informal support. However, the Council has set out that informal support was never a factor in his care plan. It considers the hours set out in his care plan already are enough to meet his eligible needs, regardless of what additional informal support he may have previously received from friends. The Council has set out its professional view on this matter clearly and it is not my place to question that view.”
The nature of the advocacy being sought for Mr B is also unclear. If it was Care Act advocacy, which it certainly seems to have been, given the references made in the report to substantial difficulty, the legal framework is that the council appoints the advocate and would not have any reason or obligation to give a choice, but there is no reason why it should not, if it chose to, and could flex its commissioning and procurement arrangements.
The LGO report says that it was reasonable for the Council to expect Mr B would be aware an advocacy service would have to contact him at some point. The advocate does not require the consent of the person to ACT: their role is a statutory one. If the person won’t engage, the advocate making a reasonable and courteous approach, the advocate’s job is not done; the person’s substantial difficulties could be affecting that relationship as much as any other, and the advocate is appointed at the behest of the council to maximise the participation with the Care Act process.
Consent to information sharing, even, about a person with substantial difficulty in engaging would be done on a best interests basis, by any information holder, and lawfully, under the data protection legislation. But the more capacitated the person is, however, the more likely it is that the person might take against an advocate and get even more frustrated by the surreality of an advocate with whom the person does not get along.
Once engaged the advocate is then in a fiduciary and confidential relationship with the client, regardless of where the commissioning or funding has come from. The council does not control the advocate, under the Care Act. But neither does the client!
It is simply wrong for the LGO to say that “The Council can only fulfil its duty to provide an advocate with Mr B’s consent.” That would make the whole function of Care Act advocacy impossible to discharge. It is also wrong to suggest that a council needs someone’s consent to communicate WITH a person living in their area. A moment’s thought should highlight that that’s an ill-thought out position given the range of councils’ functions!
If it was Care Act advocacy, we cannot understand how it came about that the organisation refused the referral; it does not have the choice, under the framework for advocacy.
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The full Local Government Ombudsman report of Brighton and Hove City Council’s actions can be found here