Decision Date: 07/09/20
Mrs X was a lady who lived in her own home with her husband. He was not able to provide any care for her. She had various medical conditions including chronic fatigue syndrome and was cared for in bed. Mrs X also had a psychological disorder that presented in physical symptoms suggesting physical illness or injury.
In April 2015, the Council carried out an assessment of her needs. It found that she was unable to achieve all the outcomes identified within the Department of Health Care and Support statutory guidance. The council then provided her with a package of care which totalled £1077.12. This included two hours per day for assistance with toileting, personal care and making a lunch and drink and 10-hour night sits to enable Mr X to get a night’s sleep. The package also included an amount from the Independent Living Fund which was covered by the Council when that fund ended. This provided 45 hours for a carer to sleep over five nights per week and 40 hours per week to employ personal assistants.
A review of Mrs X’s needs was undertaken in February 2018. It identified that the budget was meeting some of her needs but that the following were unmet:
- Staying safe and being protected from abuse and neglect.
- Achieving social and economic wellbeing.
- Maintaining domestic, family and personal relationships.
- Accessing suitable living accommodation.
- Contributing to society.
- Keeping up relationships and participating in the community.
- Complex health needs.
A further review took place in September 2018, on the basis that the council viewed Mrs X’s care package as ‘disproportionate to need’. The council consulted with health professionals including Mrs X’s GP, a respiratory nurse and a diabetic specialist nurse. It also consulted with a care co-ordinator from the agency it commissioned to deliver some of her care. The council also sought information as to her mental health needs and the local Mental Health Service confirmed that she was not receiving services from it.
The council referred to this review as a ‘care needs review/re-assessment’ on the basis of ‘a change in needs and circumstances.’
The council examined her existing care plan and identified in its re-assessment that her care needs could be rationalised and offered advice such as using a food processor to chop vegetables to free up carer time. It suggested that she managed a particular night time sweating need by the use of ice in flasks and ice packs. The respiratory nurse identified that Mrs x could administer her own oxygen supply, and it was on this basis that the council determined that Mrs X did not need night time care.
This resulted in a reduction to her personal budget after the council completed a risk assessment pertaining to the potential impact of a reduction in budget. The council wrote to Mrs X and told her that her direct payment would be £222.80 per week from November.
On 24th October 2018, the council visited Mrs X and observed a carer massaging her legs. Mrs X informed the council that she wanted to appeal the decision to cut her personal budget and the council responded to her comments as follows:
- the NHS Wellbeing Service and Mental Health Team could provide support for stress. She could also consider using a telephone helpline for older people;
- she should provide up-to-date medical evidence to support the need for carer intervention to prevent skin breakdown;
- restocking ice and ice packs four times a day would address overheating which could also cause flare ups of urticarial vasculitis (skin lesions caused by inflamed blood vessels);
- an agency could help with calls if she had difficulties recruiting personal assistants;
- if she was having problems finding a holistic practitioner she could take this up with her GP;
- the Respiratory Nurse had recommended an accessible form of oxygen for self-administration;
- sudden rises in blood pressure were a health need, rather than a social care need which a carer could help with;
- a medical report from 2008 did not confirm a current need for help managing continence;
- “proportionate” meant using other available resources (e.g. pendant alarm, the Wellbeing Service and the telephone helpline for older people) before providing formal care;
- it would need evidence of the support carers could provide to address urticarial vasculitis;
- it had not recommended blended food but using a food processor as less time consuming than grating vegetables by hand;
- overnight needs could be met by; using a pendant alarm; self-administered oxygen; leaving ice in flasks overnight; a continence review and aids; a medical review to evidence overnight needs; occupational therapy assessment; and a referral to environmental controls;
- it was offering a direct payment of £80 a week (equivalent to the cost of two days at a day centre) to address the need for social interaction;
- it had allowed time to clean the areas used for her (i.e. kitchen and bathroom). The Council had not funded practical tasks for some time, so Mr & Mrs X had to fund this out of their joint income;
- it could not increase her personal budget because of concerns that her carer would not continue to visit if her morning call was only 45 minutes;
- the Council was not providing funding for carers to massage her, but she could use some the budget for social support to pay for a massage.
It is clear that council had certainly ‘examined’ its responsibilities to meet Mrs X’s care and support needs. It met with her GP to better understand which of her needs were as a cause of a medical need and which were social needs which in our view reflects an intention to pass funding responsibility to health services where possible.
The council contacted Mrs X again in January 2019 and confirmed that it had not changed its position on her care plan. It recommended a key safe and pendant alarm for her and offered to refer her to an agency that could assist her with managing her direct payments. The council based its recommended care plan on four calls per day to meet her continence and personal care needs plus the equivalent of two days per week at a day centre to meet her social needs.
Through its contact with medical professionals, the council established that there were several factors Mrs X had identified as affecting her care needs that it could not substantiate. This related to whether she had formal diagnoses of various health conditions, and whether professional recommendations to apply creams and ice to pressure areas had been made. There were a number of aspects of her needs that could not be met through input from a carer such as assistance with esophageal bleeds and spasms across the lower chest.
The council upheld its decision to reduce her budget to £222.80 per week which was confirmed in a letter to Mrs X dated 6th February 2019. From 12th February 2019, Mrs X received a new package of care consisting of the following:
- arranged a care agency to provide a 45-minute call each morning to help with: a full body wash, dry and cream; change the bed, if necessary; empty and clean the commode; leave ice and ice packs; leave breakfast;
- provided £80 a week to meet social needs;
- provided a direct payment of £142.80 a week to employ PAs for three thirty-minute calls a day to help with toileting, nutrition and personal care.
A further review of her care was undertaken in May 2019. The care agency requested an additional 15 minutes support as their support often overran. Carers had been distracted from their tasks as Mrs X had wanted to talk to them. The care agency also reported that Mrs X was losing calf muscle due to the reduced call times as carers had too little time to apply her cream.
Mrs X confirmed that she had to talk with the carers as a result of spending so much time alone. The council did not increase the care package and confirmed in June 2019 that it was satisfied that the care package remained sufficient to meet her needs.
Mrs X chose to use her savings to buy additional care but told the LGSCO that her savings are running out.
What was found
The LGSCO identified that the council did not comply with the requirements of the care Act 2014 and the Care and Support (Eligibility Criteria) Regulations 2014 when carrying out Mrs X’s assessment in September 2018. It had identified a need for a reassessment because her needs had changed.What it did was carry out a review of her care plan which led to the subsequent changes. This was found as fault because it left doubt as to what her eligible needs were and ultimately doubt over what needs the council was responsible for meeting.
The council was also found at fault for failing to produce a care and support plan which complied with the Care and Support Statutory Guidance. The LGSCO also found the council at fault for failing to tell Mrs X the amount of her personal budget.
The LGSCO importantly flagged a need that was not reflected in the assessment. It made the assumption that ‘it seems likely Mrs X has an eligible need for help maintaining a habitable home as she is cared for in bed and cannot therefore clean the rooms used by or for her, or wash her clothes’. It established that the practice of this council was not to meet such needs and to inform people that they must fund this themselves. It highlighted that the council cannot fulfil its duty to meet eligible needs by telling someone to meet their own needs and this was found to be fault.
Although the LGSCO found several faults with the actions of the council, this did not mean that Mrs X’s previous, much higher budget should be reinstated. It identified that although the council had undertaken a flawed assessment, there was some evidenced justification that a reduction in personal budget would be appropriate. The LGSCO did however find the uncertainty of the assessment, failure to meet the need for help with housework and time and trouble of pursuing the complaint to have caused injustice to Mrs X.
The LGSCO made the following recommendations:
Within four weeks the council would:
- write to Mrs X apologising for the uncertainty caused by its flawed assessment and failure to fully meet her need for help maintaining a habitable home;
- pay her £650 for the failure to fully meet her need for help maintaining a habitable home;
- pay her £250 for the time and trouble it has put her to in pursuing her complaint;
- at a date to be agreed with Mrs X, complete a Care Act compliant assessment of her needs, including a decision on her eligibility, and produces a care and support plan which complies with the requirements of the Care and Support Statutory Guidance;
Within eight weeks provide evidence that it has:
- taken action to ensure all future assessments comply with the requirements of the Care Act;
- taken action to ensure in future everyone with eligible care needs receives a care and support plan which complies with the requirements of the Care and Support Statutory Guidance;
- taken action to ensure in future the Council fulfils its duty to meet the need for help maintaining a habitable home;
- produced a plan for identifying anyone else with an existing eligible need for help maintaining a habitable home which is not being met and correcting this.
The council was also required to consider the LGSCO report at its full council, cabinet or other delegated committee of elected members and provide the LGSCO with evidence that it had done so pursuant to s.31(2) Local Government Act 1974.
Points for the public, charging officers, financial affairs officers, service users, family members and advocates
At the crux of this complaint sits a council clearly not understanding its responsibilities under the Care Act 2014. There are three issues that arise:
- The council had assessed Mrs X’s needs and has an obligation to ensure that it is clear as to how it finds her eligible for social care to fund her care and support. The council undertook a ‘care needs review/re-assessment’ in september 2018, but this was in fact a review of her care plan. It considered how her needs were being met rather than what her needs were and embarked on a piece of work involving other professionals in what seemed to be an attempt to justify any continuation of spending on her care needs.
An assessment is not for a specific service, it’s purpose is to determine the person’s needs. The Care Act 2014 states the following:
Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan or a support plan, the authority must—
- to the extent it thinks appropriate, carry out a needs or carer’s assessment, carry out a financial assessment and make a determination under section 13(1), and
- revise the care and support plan or support plan accordingly.
If the council believed as it recorded in this instance that Mrs X had had a ‘change in circumstances’, then surely that would be her personal circumstances changing rather than that of the council! The council also cited that the provision of care at the time of review was ‘disproportionate to need’ so we suspect that the motivation to review her package of support less just over 6 months after a previous review had the motivation of reducing her budget. There is no harm in councils reducing budgets or changing the way in which they meet needs, however this must be legally compliant. This council’s focus on Mrs X’s ‘independence’ resonates with the case of Luke Davey (R (Davey) v Oxfordshire County Council  EWCA Civ 1308) which confirmed that the duty of the council is not to achieve all the outcomes a person wishes to achieve, but to assess whether the provision of care and support would contribute to those outcomes. Mrs X had a different view to the council as to her needs, and whilst the council tried to find evidence for those needs amongst professionals, it failed to make clear through proper care and support planning and the provision of an eligibility decision which needs it was going to meet. The LGSCO quite rightly found this as fault.
2. The second and most concerning aspect of this complaint is a finding of the LGSCO that the council had adopted a policy that it ‘did not meet’ the need for support to maintain a habitable environment. It is significant that this was missing from Mrs X’s assessment, as if the assessor had not even been aware that such needs exist and can be met by councils. The Department of Health Statutory Guidance is clear at paragraph 6.10 that the assessment has to consider all the needs – i.e. the ‘total extent of the needs before the local authority makes its decision on eligibility. This means the met and the unmet and includes medication and equipment if it solves the issue. Needs are considered in this way in case a person is meeting their needs, but whatever that source of support is then becomes unavailable to them, which could occur for example when a family member is no longer able to help with cleaning or shopping tasks.
Mrs X’s need for assistance with maintaining a habitable home environment wasn’t considered a need. The council failed at this point. Whilst a council forms its own view about whether the needs are met sufficiently, the council cannot indicate that one type of need takes a higher precedent than others as they do not. The Care and Support statutory guidance outlines this early on and at paragraph 1.6 states: ‘There is no hierarchy, and all should be considered of equal importance when considering ‘wellbeing’ in the round’. So councils simply cannot make arbitrary decisions that they will not or do not provide a particular type or frequency of support as this cannot possibly be person-centred practice.
3. The third aspect of this complaint that warrants attention is the responsibility of the council to be clear about its determination of eligibility. The Care Act 2014 states in s.13(2) ‘that having made a determination of eligibility the person must be given a written record of it’. This would have enabled clarity for both the council and Mrs X as to what needs the council intended to meet (or not). The LGSCO found this as fault. During review and the gathering of additional information, the council ascertained that Mrs X did not have the needs it first assessed her as having, and should have told her so. Instead she seemingly received no clear information on how her eligible needs had changed. The review undertaken should have triggered a re-assessment which would have resulted in another eligibility decision and in clarity much sooner.
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The full Local Government Ombudsman report of Hertfordshire County Council’s actions can be found here: