Decision Date: 18th March 2020
Mrs X suffered from polymyalgia rheumatoid arthritis which affected movement in her arms. She had been receiving direct payments from the Council for over 10 years to pay for care, meaning that she had always been regarded as eligible for support by way of public funding, and on a means tested basis.
After her Personal Assistant retired, Mrs X used Agencies A and B to provide carers twice a day to meet her needs, with the Agencies attending alternative weekends.
In September 2019, the Council completed what was in effect a review and re-assessment, after a period where its reablement team was observing her engagement with the services, and they concluded that she was not eligible for support as she did not pass the threshold required.
The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs as being unable to achieve two or more of the following outcomes:
- Managing and maintaining nutrition;
- Maintaining personal hygiene;
- Managing toilet needs;
- Being appropriately clothed;
- Being able to make use of the adult’s home safely;
- Maintaining a habitable home environment;
- Developing and maintaining family or other personal relationships;
- Accessing and engaging in work, training, education or volunteering;
- Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- Carrying out any caring responsibilities the adult has for a child.
The Council only identified Mrs X as needing help to maintain personal hygiene.
Mrs X disputed this, and the LGO examined the Council’s re-assessment for flaws in approach.
The Council accepted that Mrs X’s only eligible need was that she needed help to maintain her personal hygiene.
Mrs X said she was able to wash her face and put her wig and make up on, but this took over an hour and she needed to rest afterwards due to the pain. The reassessment documentation noted that Agency B did not help with washing, but Mrs X said this was incorrect.
The re-assessment concluded Mrs X could be more independent if she bought equipment, such as a sponge on a stick.
Being Appropriately Clothed
Agency A stated that it only helped her dress her top half, which led the Council to suggest Mrs X could bend to dress her lower half herself. Mrs X stated that she had to sit rather than bend.
Agency A highlighted that Mrs X could not lift her arms high enough to wash under them, but the Council said this did not fit with Mrs X’s ability to put her make-up and wig on. Mrs X said again, she had to sit and lean forward to do this, and repeated that it took a long time and had painful consequences.
Agency B said it helped Mrs X with applying cream prescribed by her GP to her back and upper arms, but no other personal care. Mrs X also disputed this.
The Reablement Service said it saw Mrs X sit on a stool while carers helped take her top and cardigan off and Mrs X showed the weakness in her right arm. However, she asked the Reablement Service to leave before she managed the completion of other personal care tasks.
Managing and Maintaining Nutrition
Mrs X agreed she could manage eating, drinking and preparing food independently. However, Mrs X used her carers to prepare fresh vegetables for her to cook later in the day. They also opened tins for her.
Care Agency B said Mrs X often prepared her vegetables before they arrived. Mrs X disputed this.
The Assessment concluded Mrs X could achieve more independence if she bought equipment: electric tin opener; light weight baskets to cook vegetables; easy grip knives; a microwave or a table-top oven. Mrs X did not want to buy this equipment nor buy frozen or prepared vegetables to avoid the need for care and support.
Maintaining a Habitable Home Environment
The reassessment document said that the Council had previously funded domestic cleaning but this had stopped after a reassessment. Mrs X had subsequently secured a grant to fund a private cleaner. Mrs X said she could not do the cleaning as she was unable to grip.
Agency A made the bed, washed the pots; fed Mrs X’s dog, vacuumed, cleaned the hob, emptied the kitchen bin and took the recycling out;
Care Agency B did “general maintenance”, washed dishes, vacuumed and fed the dog;
Mrs X said she could not put her hands in hot or cold water because of the pain this caused.
The notes said that the Council suggested Mrs X buy a dishwasher, and that her private cleaner could do some of the tasks for her.
It concluded that “General household tasks such as feeding the dog, hoovering the kitchen rug, making the bed, washing the pots and taking the bin and recycling out are not eligible needs under the Care Act 2014.”
The assessment noted that Mrs X had built an ‘emotional reliance’ on her carers which reduced her anxiety. It suggested that she may benefit from help with her mental health but she did not want to pursue this with her GP.
In October, when Mrs X complained about the outcome of her assessment, the Council offered a reassessment using its Reablement Service instead of her Agencies, and that its Reablement Service would continue to support her until an alternative provider was found. The report did not explain why it would start looking for alternative providers.
Mrs X was worried about losing her Agencies, so turned down the offer of “reassessment” on that footing. The Council told her that the DPs would end on 8th December, but that it would continue to fund Agencies A and B whilst it reassessed her.
Mrs X accepted this offer.
After the third day of the Reablement team visiting to assess Mrs X, she sent them away. She said they tried to get her to do things she could not do.
Mrs X continued to pay the Agencies with money in her direct payment account, which the Council stopped paying into. As a result, Mrs X said that the council had told her that she needed to repay over £3,000 [for technical misuse although nothing more was said about that in the report].
Mrs X highlighted that Agency B had accepted the information it gave to the Council was not correct and that it provides the same support as Agency A.
What was found
The LGO first stated that when considering Mrs X’s ability to maintain a habitable home, the Council took account for eligibility purposes of the support provided by her private cleaner. That was fault.
The Council also told Mrs X various activities such as cleaning, washing up, making the bed and taking rubbish out were not eligible needs under the Care Act. This is not able to be said to be the case, and therefore this was also fault.
“A home where no cleaning or rubbish were taken out and the bed never made would not be sufficiently clean or safe.”
There was no dispute that Mrs X had not got any toileting needs, and needed support maintaining personal hygiene. However, there was a dispute over whether Mrs X could dress herself.
The LGO stated that in cases where there is a dispute over someone’s functional ability, it is good practice to ask an Occupational Therapist to do a functional assessment. In this case, the Council did not do one. The LGO did not find the Council at fault for in this regard, and pointed out that Mrs X’s unwillingness to allow officers watch her personal care hampered the Council’s ability to establish exactly what she was able to do for herself.
The LGO recommended that the Council reassess Mrs X properly to address the need for help in maintaining a habitable home and being appropriately clothed. It should also consider using an OT.
Points for the public, service users, service providers, families and advocates and the council workforce:
The Care Act Guidance requires all informal or self-funded support that a person is receiving from a human being to be ignored at the eligibility stage. That was therefore not only fault, to take the private cleaning help into account as offsetting needs and impact, but a breach of the public law obligation to act under the Guidance unless there’s a very good reason for departure.
One is not EVER assessing needs for services but needs as per the eligibility criteria – that’s clear from the Act, regulations and from the Guidance. The needs to be identified are the inabilities to achieve, as defined in the Regulations on eligibility – including reference to managing without assistance, and not experiencing significant pain, anxiety, distress or risk to self or others whilst ‘achieving’.
Many councils which have embraced strengths-based, conversations-based and asset-based assessment have done so without understanding the dangers into which it can lead a legally illiterate team: however sensible it is to be upbeat before assessment and signpost people to this and that and explore with them how they could help themselves, in theory, it cannot affect the scoring of the global amount of inability that they do have. It may make them feel less bad about it, which means that they may regard less in the end as a defensible offer, but following the Care Act is the very least one must do to do right by the client, ethically and procedurally, and professionally.
If this lady was really regarded as not eligible, then of course it was wrong to continue to spend down the direct payment which the council for reasons that are not clear, had left her with, as opposed to recovering. That is why there was a misuse finding which is not mentioned again in the LGO’s approach. However, there is no mention of the POWER to meet needs in a case where there is really only one area of inability to achieve. We think that the LGO’s investigator forgot to mention that and that the alleged demand for £3000 should therefore have been waived by way of a remedy, for a doubly-flawed decision making process on eligibility.
A council’s service response at the care planning stage is not able to be constrained by artificial stances (fetters of discretion) to the effect that ‘We don’t do this that or the other’.
The LGO found no fault with the council for suggesting use of equipment but we would have to part company with the LGO’s investigator on that score. Saying ‘It may well be that you struggle on this or that domain but you could cope better if you only bought a whole range of equipment which we won’t supply you with for free’ cannot be a defensible reason for regarding someone as ineligible. A person’s means are irrelevant to assessment, let alone their assumed means, or their means culled from a previous financial assessment!! And equipment must be provided for free!
The Care Act test for means-tested subsidised help by way of facilities, goods and services, (and where facilities, if they are comprised of equipment, must be provided for free) is significant impact arising from the difficulties assessed, to lead to a finding of eligibility.
When one’s council knows this to be the law, and quite possibly when one’s council ought to know, and has no excuse for not knowing, because of LGO investigations that make the law clear, and treat it as fault not to follow it, then carrying on ignoring it could become institutional abuse of power or misfeasance in public office, leaving the officers personally liable in damages, potential, if malice can be shown.
It’s only been 5 years since the Care Act was passed, so a need for a Care Act re-boot in terms of the staff, or senior management or interim management consultants working there, would seem to be required!
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The full Local Government Ombudsman report of North Yorkshire County Council’s actions can be found here