Decision Date: 12/03/2020
Mr C complained on behalf of his father, Mr B.
In January 2018 the Council organised reablement care for Mr B after was discharged from a short stay in hospital. It was unclear from the report as to whether his condition was well enough that he feasibly could have gone home.
It transpired that the reablement team were unable to provide care immediately, so the Council organised for Mr B to go into residential care on the 20th, until he could start receiving care at home on the 23rd.
Mr C agreed to pay a third-party top-up fee of £80 per week (from when the interim care started, whilst Mr B was in residential care), and Mr B would contribute £40 per week as a ‘flat-rate interim bed fee’ and the Council would pay the rest.
Reablement is free, so judging from the report, Mr C agreed to contribute in order for his father to go to the care home they both preferred.
When Mr B’s home care was due to start, on the 23rd, his family thought that he was not ready to return home and arranged for him to stay at the care home for a few days longer (after the Council discussed this with the care home).
After this arrangement was made, the Councils reablement team closed his case because ‘it did not know when he would be likely to access the proposed care”.
On 1 February the Council told the family that it would no longer contribute to Mr B’s care home costs, as he had chosen to stay there, rather than needing to stay there. Mr C agreed to pay for the care up to that point, but asked for a home care package to be put in place straight away.
The next day the Council completed a full care and support assessment.
By 12th March the Council had been unable to find a home care provider, so Mr B remained in the care home. It told his son, Mr C, that if he could find someone to deliver the care, he could receive direct payments. (Mr C had been paying for the residential care until the Council could find a suitable home care package).
Mr C agreed to the direct payments, and care was arranged (it was unclear who organised this) for Mr B starting 26 March. Mr B contributed around £40 per week towards this care.
In May the Council completed a financial assessment which concluded Mr B should contribute £179.09 per week from 23 January to 25 March (the period he was in residential care, but did not need to be. The reablement team closed their case when he went into residential care on the 23rd January). It sent Mr B an invoice for £1,609.08.
The Council also sent Mr C an invoice for £754.29 – his £80 weekly top-up fee for the entire period when Mr B was in residential care.
We assume that Mr C complained about both invoices, which led to the LGO investigation.
What was found
The LGO stated that the Council was not at fault for Mr B remaining in residential care, as it was his family’s choice. Both Mr B’s daughter and Mr C felt it would be best for him to stay in the care home.
However, after Mr B’s assessment on the 1st of February, his family asked the Council to arrange home care. The Council failed to arrange suitable home care, or alternative care, which was fault. Mr B was left paying a contribution towards a service which the LGO considered to be ‘completely disproportionate’.
The Council also failed to advise the family of direct payments after its assessment in February. It did not provide specific information to Mr C until 12th March, over five weeks after its assessment. This was fault.
The LGO highlighted that it seemed likely that if Mr C had known about the option of direct payments, care may have been arranged sooner, so the Council’s failure to tell him ‘significantly contributed to the overall delay’ in home care.
As Mr B’s needs were being met in the care home, the only injustice the LGO considered was a financial one. In residential care he paid a contribution of almost £140 per week more than when he received care at home. Mr C also had to pay a third-party top-up fee, which he would not have needed to do if home care had been arranged sooner.
The LGO recommended that the Council pay Mr B £700 in recognition of sums paid towards residential care, which he did not need, when the Council failed to arrange home care for him.
It also recommended that the Council pay Mr C £400 in recognition of the extra third-party top-up fee he had been paying during Mr B’s unnecessary residential care.
Points for the public, service users, hospital leavers, family and peer supporters, advocates, and councils etc
Initially, Mr B would have stayed in a residential care home for three days prior to his home care becoming available so that he could return home from hospital. He finally returned home 3 months later, after being informed only latterly about direct payments which enabled the care he required to be sourced.
The Council’s reablement service was not able to respond to the demands placed on it so Mr B and his family accepted a temporary stay within a residential home to enable him to be discharged from hospital. Mr C personally paid a third-party top up towards this care and although reablement support is free, his contribution reflected the fact that he chose the home he stayed in.
When his home care became available, his family did not think he was ready to return home so he remained in the residential home at their (and presumably his!) request. The Council was not found at fault in relation to its decision to no longer fund the placement, as this was Mr B’s choice to do so albeit with the support of his family who were concerned about him. The Council invoiced Mr B for the continuation of his contribution.
The Council then assessed properly for the first time, it seems, and Mr C and his family requested at that point for Mr B to return home with home care support. The Council were unable to provide this and offered no alternatives, but the care planner’s agreement that this is what he needed was a clear indication that Mr B was no longer making a choice to remain in a residential care home. He remained for a further 6 weeks until the Council found home care for him. The Council were found at fault for Mr B having to remain in the home when he did not need to and for him having to have paid towards that stay.
The Council can of course choose whether to charge a person where it is arranging to meet needs and in this case, the LGSCO required the Council to pay Mr B £700 towards the amounts paid that he didn’t need to, which was a choice that it should have had the sense not to make, given it is a breach of statutory duty to meet needs inappropriately.
The Council eventually provided Mr B information about direct payments when it could not source home care. Had it done so sooner Mr B could have returned home sooner. The Care Act 2014 (s.4(2)(b)) requires councils to ‘provide information on the choice of types of care and support available and the choice of providers available in the person’s area’. It is clear that in this case, Mr B was unaware that care providers in his area did have availability and if those were not contracted to the council, then it ought to have offered a direct payment.
There is no legal duty to tell anyone about direct payments, but after an assessment that ends up with an eligibility decision, there is a duty in s13 to consider what can be done about meeting need and find out whether the person wants the involvement of the council to move on to care planning. So it is good practice – especially when the council thinks it can manage the legal risk from failing to commission enough reablement or home care (or paying an inadequate price to attract more hours of supply?) by using what would sometimes, though not here, be an inappropriate setting to meet needs within. Telling people about direct payments means that in theory they can meet their own needs by buying from off framework providers, and by employing people directly.
The recommendation to reimburse Mr B for his expense for his unnecessary extended residential stay when home care was unavailable flows from the law of restitution – it is an order to disgorge the saving made from acting in breach of duty (see CP v NE Lincs on this site).
The specifics of a reablement service are a power, not a duty, that is enforceable as such; a reablement service is a form of prevention and reduction, and does not have to be provided, in legal terms, but it must be free.
When it is provided by way of deferring the need for a proper assessment, then clearly, it is being provided under s19 as a solution to an urgent need, and in that case, it is the sole justifiable way of exercising that power, so it does need to be commissioned as a spot contract, not just regarded as not available, and not just fallen back on , informally, when the nature of the setting would NOT meet someone’s needs appropriately. The duty to promote wellbeing includes the duty to promote people’s financial wellbeing, too!
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The full Local Government Ombudsman report of Leicestershire County Council’s actions can be found here