Decision Date: 8th April 2019
Mr and Mrs J were both deafblind with learning difficulties. They employed Mrs K as a personal assistant (PA) and communications guide. Mrs J also provided care for her husband.
Mrs J was assessed in June 2016 as being eligible for support from the Council. She was deemed not to have capacity to employ a PA herself, only to consent to direct payments (DPs). The Council gave her a personal budget of £94.20 a week (including employment support costs), paid as a direct payment to employ a PA for eight hours. There is no indication of who WAS the employer, in the report.
The PA was employed to help her do things such as access the community, attend medical appointments and maintain family relationships. The care plan did not address other outcomes raised in the assessment, such as needing help to prepare food, or keep a habitable home.
In May 2017 Mrs J’s needs were assessed as her husband’s carer. The assessment recorded the risks to Mrs J’s mental health and safety when trying to meet her husband’s increasing needs, for example Mrs J could not maintain/family/other relationships as she could not leave Mr J for more than 24 hours.
The assessment concluded that Mrs J should receive a personal budget of £500 a year via DP for respite care.
The Council also assessed Mr J in June 2016, and was found eligible for support. It was also concluded that Mr J did not have the capacity to employ a PA directly himself, but could consent to DPs.
The Council allocated him a personal budget of £117.03 a week, with £57.15 paid as a direct payment to employ a PA for four hours and £59.88 which the Council used to buy support from a care agency for four hours. The plan stated that he would receive unpaid support in the home from his wife ‘who has her own issues’.
Again, like Mrs J, Mr J’s plan did not outline how all of his needs could be met for example being appropriately clothed and keeping a habitable home.
Between 5 May and 20 June 2017 the Council reviewed Mr J’s care and support plan. Due to the “strained” relationship between Mr J and the care agency, the Council agreed to pay his entire personal budget as a direct payment. The report did not elaborate on the apparent difficulties Mr J was experiencing with the care agency. The Council also increased the weekly care hours from 8 to 10, to reflect the extra demands being placed on his wife due to his decreasing vision. Mr J’s personal budget increased to £126.44 a week.
Mr and Mrs J’s complaint
In September 2017 their PA, Mrs K, complained to the Council about an assumed new cut in Mr & Mrs J’s support hours. She said that Mrs J’s support hours had been nearly cut in half and Mr J’s were less than half.
She also said they did not understand how their personal budgets had been calculated.
In November, the Council replied. It said Mr & Mrs J’s personal budgets were enough to meet their needs. It stated that Mrs J had struggled to understand direct payments and had an advocate (Mrs K) with her when it tried to explain them to her. It also said that when an officer met with Mr J to discuss mobility, they had felt verbally and physically threatened.
The Council arranged a further meeting for January 2018 with Mr and Mrs J. It wrote a letter highlighting the outcome of that meeting to Mrs K, who had also been at the meeting. The Council agreed to review their needs, and appoint two assessors; one from the sensory team and one from the learning disabilities team. The Council said it had agreed to appoint advocates for Mr & Mrs J. It said it would jointly review Mr & Mrs J’s needs, with their advocates.
Mrs J wrote to the Council the same day Mrs K received the letter stating that they were disappointed with the meeting. She said Mr J had not been able to follow what went on and that Mrs K had to explain much of what went on. She said officers had shouted at them and made them feel like children and that the Council had only apologised for the complaint taking so long. She said she wanted Mrs K at all their meetings and reviews.
In February 2018 the Council started reviewing Mr & Mrs J’s needs. They arranged for the meeting to take place at their GP, without Mrs K present. The Council were concerned that she was not properly representing their views (the LGO does not explain why it had this concern).
The Council arranged support for Mr & Mrs J for a review and proposed telling them Mrs K was not entitled to attend as support. It decided it would not go ahead with the review if they insisted Mrs K support them.
The Council accepted the Care Act 2014 allows for independent advocacy to be provided. It also accepts that Section 67(5) of the Care Act 2014 says the duty to arrange independent advocacy does not apply if it is satisfied there is a person:
“(a) who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and”
“(b) who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.”
The Council believed Mrs K fell within the definition in Section 67(5)(b) and so it had the right to exclude her from the February 2018 review meeting, and other meetings when it “does not consider it appropriate for [her] to be present, for example when discussing the care package”. Subsequently, she was not present for any later meetings.
It was unclear from the report exactly how the case was referred to the LGO.
What was found
First of all, the LGO highlighted that both Mr and Mrs J’s assessments and care plans in 2016 were flawed:
- they did not mention Mr & Mrs J having learning difficulties and only took account of needs arising from being deafblind
- the Council did not identify the need for Mr & Mrs J to have any support with the assessments (or the initial care and support plans)
- their care and support plan did not include all of their needs identified by the assessment. This meant that it could not be clear that their personal budgets were enough to meet their needs
All of the above amounted to fault.
Secondly, the LGO stated that just because Mrs K was a paid carer, did not mean that the Council could exclude her, if Mr and Mrs J wanted her with them. The Statutory Guidance (paragraph 6.30) says: “in all cases, the authority must also involve any other person requested” in the assessment process. It also says “When revising the plan the local authority must involve the person, their carer and any other person the adult may want involved, and their advocate where the person qualifies for one” (paragraph 13.27)
Therefore, the Council was at fault for preventing Mr and Mrs J from having their chosen representative at the review meeting.
Next, the LGO stated that the Mental Capacity assessments did not meet the criteria of the Mental Capacity Act 2005; it did not properly evidence the reason for its answers, but made “general and sweeping statements about Mr & Mrs J’s abilities.” This was fault.
Lastly the LGO said that disputes should not be allowed to prevent completion of the planning process, as this could result in eligible care needs not being met.
The LGO recommended that the Council:
- pay Mr and Mrs J £500 for the distress they were caused;
- pay Mrs K £250 for the avoidable trouble she has been put to in pursuing the complaint
- reassess Mr & Mrs J’s needs and updates their care and support plans
- ensures Mr & Mrs J are supported by Mrs K, if that is what they want, through the assessment and planning process
Points for the public, service users, councils, first contact teams, advocates, social workers and family members
We are astonished at the contents of this report because it conveys that Suffolk has not absorbed the Care Act and it’s been the law for over 5 years, now. Here’s the translation from the polite language of the LGSCO’s investigator:
- The council breached the Care Act in the following ways, acting unlawfully:
- The council ignored s9(5) of the Care Act – the duty to involve anyone nominated for involvement
- Failing to take account of all the needs, or apply all of the eligibility criteria
- Ignoring the rules as to respite: respite is not a carer’s service, but a service for the person being cared for (here, Mr J)
- Ignoring s25 of the Care Act regarding the contents of a lawful care plan
- Lack of transparency in relation to the calculation of the budget contrary to the Guidance.
- The contents of para 10.86 regarding disputes cannot be used as an excuse for failing to complete care planning or meeting eligible assessed needs.
- The question of whether Mr & Mrs J would need help managing the direct payments should have been a separate question to the question of capacity to have a direct payment. They could have nominated someone to be the employer; there is no indication who WAS the employer of Mrs K.
- The LGO report says this: given that they need help from a PA to manage paperwork, and there would be a conflict of interest in asking Mrs K to manage the direct payments used to pay her wages, it should have been clear that an independent agent was needed to help manage the direct payments for them (regardless of their capacity).
- A moment’s thought will make it clear that if they had capacity to HAVE a direct payment, they had capacity to nominate an agent. There IS a conflict of interest in relation to a worker being the manager of the payment, but it is not IMPOSSIBLE: payroll could have been commissioned. The point was that a person who has capacity to understand the essence of a direct payment remains the employer, even if they have to have a lot of help to manage the obligations of an employer. If a person cannot grasp what it is to be an employer, or that they need help to manage, they cannot HAVE a direct payment to be an employer and would have an agency rate, or a commissioned package from an agency. This is not necessarily a difficult area of law once one understands and applies the difference between being a principal (an authorised person holding in their own name, for a person lacking in capacity) and being someone’s mere helper (a nominated manager).
- In relation to involvement, and informal support role, we think that it must be that the council did NOT believe that Mrs K fell within the s67(5)(b) role, which is expressed in the negative, not the affirmative. The Independent Advocacy duty is suspended if there IS such a person – ie someone NOT employed to care. This lady WAS paid to care, so the council duty to supply an advocate WAS triggered, but that could not conceivably mean that she could be excluded from involvement, when the couple had specifically asked for her to be involved! If they thought she was inappropriate in some more telling way, that needed to be aired and addressed. Even then exclusion from involvement, is not an option open to the council. She could not be relied upon to be their informal supporter by the council, but she could be involved, and had to be, at the behest of the couple!
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The full Local Government Ombudsman report of Suffolk County Council’s actions can be found here