Kirklees Council at fault for removing respite care and setting arbitrary limit to funding

Decision Date: 2nd March 2020

What Happened

Mrs X complained on behalf of herself and her husband, Mr X.

Mrs X had been her husband’s carer since he had a stroke 38 years previously.

Mr X would not willingly accept support from carers or go into a residential facility.

Mrs X was the sole provider of care and had no informal support as no family lived nearby. Mr X received 56 nights per year of respite care for Mrs X to have a break, at a cost of £125.64 a day. He received direct payments (DPs) to purchase respite services privately.

Reports dating between 2012 and 2016 all highlighted that Mr X’s needs had not changed, and that the support they received through DPs was ‘very important to them’. Mr & Mrs X used their DP to pay for short breaks/holidays in hotels with disabled facilities, often near to family. Mr & Mrs X expressed in multiple reviews how important this was to them both.

In August 2017 a review concluded the respite allocation was to be removed as the current way it had been spent “does not provide [Mrs X] with full carer relief from her role”.

A year later, in August 2018, Mrs X contacted the Council to ask for the respite care to be reinstated as she felt stressed, depressed and unable to cope.

In September a social worker reassessed Mr X. The social worker recorded that Mrs X was very tearful during the assessment, and concluded “Mr X’s needs have not changed since the last assessment a year ago, but his wife who is his main carer said she is not coping in her caring role and wanted the previous support package of short breaks/holidays to be put back in place as she said this is the only thing that helps her maintain her role as a carer and since this was removed from the care package life has been ‘unbearable’. I advised that holidays and short breaks are not something Kirklees fund anymore and asked if she could pay for these herself…”.

On 9 November Mrs X was told ‘some’ respite had been agreed. This turned out to be 19 nights a year. It was recorded that “options for respite have been discussed extensively, but [Mr X] refused to go into traditional 24 hour respite care and will not leave his wife”. 

Mrs X noticed on top of the number of nights being unexplained, that the budget for respite was lower than it had previously been, and contacted the social worker. The Social worker replied stating “I advised that the respite amounts have changed and the £125 a night she used to get is now a flat rate across the service of £73.87.”

Mrs X complained that “the Council’s blanket policy on the cared for person having to leave their carer to take respite did not take into account their unique circumstances, wishes and feelings…”. She said she was unhappy about the reduction to 19 nights’ respite a year and said she might challenge the decision.

Another care and support plan was completed in March 2019 which allocated budget for 19 nights respite care “£67.81 per night, and a one-off payment of £620 for Mrs X”.

Mrs X complained;

  • She could not understand why the respite budget was cut when their needs as a couple had not changed.
  • The Council was aware Mr X would not accept outside help.
  • The previous allocation of 56 nights’ respite allowed them the opportunity to have a break in hotels, often near family, and now it was more difficult because Mr X needed accommodation with disabled facilities which could be more expensive.
  • She says the current budget did not therefore even stretch to 19 nights because of the costs.
  • The reduction in respite had had a detrimental impact on them both.

What was found

Firstly, the LGO highlighted that between assessments between 2012 and 2017 indicated no change in Mr X’s needs. Secondly, the report stated that from the investigation, it appeared that the purpose of the visit in August 2017 was to review and reduce the respite provision, not Mr X’s needs.

The LGO stated that the social worker showed “little regard Mr & Mrs X’s wishes and feelings”, which was important because care services should be needs led rather than service led.

The Council withdrew all respite provision for over a year because the social worker believed the respite arrangement did not meet Mrs X’s needs as a carer. This was fault as there was no evidence to support this. It was a bald position with no justification, effectively. On the contrary Mrs X made clear how much she and Mr X valued the short breaks away. This allowed them to book hotels near to family. Family members then provided support to Mr X, so it did meet the need for the carer to have a break.

The LGO concluded that the withdrawal of the respite care impacted “significantly” on Mrs X as she suffered from stress and depression. “The Care Act requires Local Authorities to promote the wellbeing of adults in need and carers, and to do this in a way that satisfies certain principles, one of which is the assumption that individuals are best placed to judge their well-being, and should be allowed some control over their day-to-day life, including the care and support they receive.” The Council acted contrary to this principle which was fault.

After Mrs X asked the Council to reinstate funding for respite in 2018, the social worker told her they no longer ‘allowed’ DPs to fund short breaks/holidays. This would suggest the Council was applying a blanket policy. This would have amounted to fault, except the Council then went on to allow 19 nights per year. Still, this was a significant reduction from the previous 56 that had been funded.

The Council is allowed to reduce the amount of respite care provided, but it must explain the reasons for this. The LGO considered that as Mr X’s needs had remained the same since 2012, and any assessment should take into account the personal and family circumstances of the service user and their carers, there was no evidence which warranted a reduction in respite allocation.

The Council also reduced the daily rate for respite from £125.64 per night to £67.81 per night. A social worker stated that the Council had a “flat rate across the service” of £73.87 per night. This is contrary to the Care Act, and therefore fault. Everyone must have a personal budget regardless of how their care and support is commissioned and it won’t be able to be a flat rate for every person.

The Care and Support statutory guidance says, (para 10.27) “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties… The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”.

The LGO recommended that the Council;

  • Apologise and pay £250 for time and trouble pursuing the complaint.
  • Pay Mr & Mrs X £1,000 to acknowledge the loss of respite services for 13 months
  • Review Mr X’s assessment and care and support plan, including the number of allocated respite nights, in consultation with Mr & Mrs X.
  • Consider if other service users may have been affected by arbitrary upper limits on respite rates, and take any necessary action to address this
  • Amend its procedure to ensure the Council does not set arbitrary limits on care provision.

Points for the public, service users, councils and advocates – and social workers who need to face up to their management in order to feel like professionals

This report focuses on one of the most basic aspects of the Care Act and the case law that has been decided, under the old law and under the new law, by 2020.

There are cuts – lawful cuts, and UNLAWFUL cuts, that must be resisted by all concerned.

A cut is not unlawful simply because there is no change in needs: a response to an ongoing need could be cut, and still meet the need, but in a cheaper way, or be adequate to meet the need because the previous level was over-generous.

This cut was neither of those things: it was simply a MASSIVE cut from 156 nights that had once been assessed as needed, down to zero, on the basis of a blanket position which was in error of law in any event: a direct payment cannot conceivably be regarded as an inappropriate way of providing for respite for a carer, in the shape of a short break – and then up to 19 nights. That would have been an unbelievably mean allowance for respite in view of the previous assessed need. And it was not even asserted that the previous allowance had been over-generous.

A person cannot cost the council more just be being unwilling to go into a care home. On the other hand a capacitated person cannot just be PUT in a care home regardless of their consent. In that situation, the council can choose to bend, or it can choose to take the risk that the carer will be more likely to give up on caring if the service user’s stance is allowed to determine that no respite is then obtained.

A flat rate allowance per night is only lawful if it reflects what the rate is in the local market – for ordinary or specialised environments, given the person’s needs. A council in providing a direct payment might well say this is what ‘ordinary’ respite costs, and that’s all we are going to give you, if you choose to spend it on a holiday for the two of you. But it can’t say we pay £x and you will have to make £x do, even though x is not the cost of the type of overnight care that you would need. That is fundamentally wrong, under the Care Act, and unless people know that, they may simply take an inadequate Care Act budget, and provide by acquiescence just the evidence base that the council needs, saying to themselves as follows: ‘As nobody’s challenged 19 nights of respite at this price, that level of offer must be about right!”

Flat rating of this or that is the sort of policy that councils announce and then just make exceptions to, for the people who challenge, hoping that most will not, and that is not really an appropriate stance for any public body discharging legal duties based on needs-led thinking, we would suggest. It’s not a policy that can underpin any individuated duty to a person: whereas if it was the policy in relation to a power rather than a duty, that would be different.

Resources, or the lack of them, these days, are relevant to HOW needs are met, not WHETHER, and respite is always the service user’s need, if the impact of not having any is severe enough. It’s not the carer’s need.

Councils may well say – ‘Yes we know it’s needs led, when it comes to planning and allocating budgets, but how much of anything is enough, really?’ and we would say to that: ‘Enough to reduce the impact that you are supposed to have evaluated, to something less than ‘significant’ in your untrammelled and unfettered professional opinion’.

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 of Kirklees Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/19-008-980

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