Decision Date: 3rd February 2020
Mrs C complained on behalf of her son, Mr D.
In 2016 Mr D was assessed as needing 6 weeks’ residential respite care per year, for which he had to contribute £810.
In November 2018 Mrs C complained to the Council after she asked for a statement of Mr D’s direct payment account and found that the Council had not paid any funds into Mr D’s account for respite care in the last two years. This meant that respite care was paid for using direct payments meant for his care at home.
The Council acknowledged that it had not paid any funds into Mr D’s direct payments account for respite care since 1 April 2017. This was despite evidence that annual reviews were carried out in 2016 and 2017, and a reassessment in April 2018, all concluding that Mr D should continue to receive respire care.
It therefore reinstated Mr D’s respite funding until the end of the financial year, when it would be reviewed.
Despite the Council not putting in respite care funding into Mr D’s direct payments account, there was still enough money to cover the costs he had needed to defray (up until November 2018 when Mrs C complained to the Council).
Mr D’s direct payment account was supposedly overseen / managed by a third-party company.
Mrs C believed that this company was commissioned by the Council, which would have meant that the Council was responsible for the quality of the company’s support.
However, Mrs C recently found out that this is paid for out of her son’s Personal Budget, which means the Council is not responsible.
Mrs C asked if the Council increases her son’s personal budget, whenever the fees charged by his respite care home or day centre go up. She felt the need
- For an overview / breakdown, at the start of each financial year, that shows how much the Council has allocated for her son’s Personal budget.
- Clarity about the process through which the Council carries over respite care funding from one year to the next.
- To change her son’s care support from direct payments to care that has been commissioned by the Council.
The Council told the investigator that:
- Any increase in provider fees are dealt with by the Council’s Commissioning Service. A provider has to submit a business case to this Service Team, who will review this and decide whether to accept it. If an uplift is agreed, personal budgets will be backdated to the date of the increase / request.
- It allocated a new social worker to Mr D to provide any further information to her and carry out a formal care review of her son’s support.
What was found
The LGO stated that the Council was at fault for stopping Mr D’s funding for residential respite care, despite his plans stating he still needed it.
Although Mr D had enough funds in his direct payment account to continue to pay for his respite care, it resulted in an injustice to Mrs C, as she spent time and trouble bringing the complaint, and was caused distress and uncertainty as to whether the Council would allocate funds for Mr D again.
Furthermore, there was no evidence an annual review of Mr D took place. The LGO did not mention fault in relation to Mr D necessarily, but stated that ‘it is clear that Mrs C is unaware of any annual care review having taken place in 2018. If there was one, it did not involve her and the Council did not share the outcomes of it with her and her son. This is fault’. The LGO reinforced that Councils must involve the person and their family when assessing and reviewing their care.
Points for the public, service users, councils, advocates etc
This complaint hints at the sort of thing we suspect is going on all over the country under the cover of so-called third party managed accounts: chaos.
An interesting point is made by the investigator that if the council is commissioning the management, it is responsible for neglect of the managerial responsibilities (for which no doubt it insists on an indemnity from the contractor) but that if the financing is structured through the direct payment as an additional amount for the entity doing the managing, then the direct payment holder ought to be contractually able to hold that agent to account for misconduct.
That level of analysis makes it surprising however that the investigator allowed the council to get away with suggesting that increases in the service cost within a person’s direct payment have to be justified to the council: the contract for those services is nothing to DO with the council, but a private arrangement between the DP holder and that company.
The commissioner in the council doesn’t have the same power to refuse increases to direct payment clients under the Care Act as it has when acting in pure private law with the providers who are on council commissioned framework contracts!
If the market rate for those privately arranged services goes up, then the client has to go back to the council and say that they need more and then decide whether to stick with that provider or go elsewhere, or challenge the council for failing to pay a sufficient market rate!
The report also leaves it unclear – if there was enough money for the home care and money for the respite despite the allocation for the respite not having been paid in for two years – how the excess had been built up.
If it was because aspects of the care plan for care at home were not in the end, needed, then it would in due course be reclaimed anyway.
That is not always the case if the care plan makes it clear that a person’s needs are extremely prone to fluctuate; a surplus at any given time does not indicate a lack of need, but funds there for when they ARE likely to be needed once again.
If it was because care at home had not been able to be sourced, and had been provided forcibly for free by carers, then there should have been more investigation, perhaps, as to injustice, in order to preserve the latterly paid in overlooked respite funds, for those who had had to the work.
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 Staffordshire County Council’s actions can be found here