Cornwall County Council at fault for forcing a carer to carry on meeting needs by stopping direct payments and leaving any alternative source of care undelivered

Decision Date: 3 December 2020 

The LGO published this report notwithstanding agreement with most of the recommendations, because it was in the public interest to do so, given the significant fault, the injustice caused to the complainant and the Council’s refusal to make the suggested payment. 

Introduction 

Mrs D had significant and complex health needs and needs support with all aspects of daily living: cooking, mobility, toileting, personal care, dressing, cleaning, correspondence and attending appointments. Mrs D was prescribed oxygen for day and night use due to difficulties with her lungs; Mrs D’s daughter provided a significant amount of support every day. She felt she is the only one who can support her mother adequately. She worried about trusting her mother’s care to anyone else (an outside personal assistant or a care agency) as they do not know her and worried they will not be able to pick up signs she may be declining.  

Mrs D complained that Cornwall Council should not have stopped her Direct Payments in August 2018. She contended that the Council should also have allowed her daughter, who lived with her, to remain her paid carer. She pointed out that the Council failed to put a commissioned homecare service in place to provide her care when it stopped her Direct Payments, and because of that, her daughter was forced to continue to provide this care to her as an informal unpaid carer.  

The Council also failed to support her daughter in her role as her informal carer. This resulted in significant distress to her and her daughter, as well as financial hardship for her daughter. Her daughter could not take up any paid employment opportunities for herself, did not have enough breaks and was therefore unable to maintain her social life, engage with hobbies and interests and have regular time off to relax.  

Fault was found in many respects and the remedy that was agreed was that the council had to  

• apologise to Mrs D and her daughter for the faults identified and for the distress these caused;  

• pay Mrs D’s daughter an amount equivalent to what she would have received if the Council had continued to pay her for the care support for over a year until it found a care agency and offered Mrs D a commissioned care package in February 2020.  

• review Mrs D’s circumstances and decide if the Council should allow Mrs D a Direct Payment to pay her daughter to provide her care. If it decides to refuse this, the Council should provide a clear explanation in writing. If it approves this, the Council should provide clear information in writing about the Council’s expectations for managing the payments and details of support that is available to help Mrs D with this; and  

• share with its adult social care staff the lessons learned 

• pay the daughter £500 each for the distress she had suffered since September 2018.  

The Council had not yet agreed to pay £500 to Mrs D and the LGSCO gave the council 3 months to think about that and state its reasons.  

What happened 

Mrs D had been receiving Direct Payments (DPs) for several years. She had employed her children as her Personal Assistants (PAs) and had been paying them from her DPs for the care support they provided, on a self employed basis.  

After a DP review the council said she should provide evidence that all three PAs were registered with HMRC and had Public Liability Insurance in place. If she did not do this the Council would stop the direct payments. Mrs D also received an email with the contact details of an organisation (Disability Cornwall) who could help her with managing her DPs.  

The officer also raised their concerns about the way Mrs D was managing her DPs regarding not keeping timesheets and not recording support she received from her PAs. She had also not been paying her assessed weekly client contribution of £30.61 a week into the account from which the personal budget was managed.  

At the end of July 2018, Mrs D provided the evidence the Council had asked for, and clarified she only had one PA at the moment, her daughter who lived with her. Despite this, the Council stopped the DPs in early August 2018.  

In October 2018 it told her why it had done this, saying this was because of her failure to pay her assessed contribution; and because she found it difficult to manage her DPs and did not keep any records for her PA(s) so the Council could not verify what she was spending the money on.  

The letter also said that a DP could not be used to pay a close relative living in same household, unless the Council has agreed there were ‘exceptional circumstances’  

At the end of October 2018, Council records say Mrs D called in tears saying she was currently bedbound, and her daughter, as her unpaid carer, was on the verge of a nervous breakdown.  

In November, when an officer finally attended to re-assess her Mrs D said she felt bad that her daughter continued to care for her without receiving a payment. She had to give up work to carry out this caring role, which left her daughter without any money;  a care agency would not be able to provide the level of care her daughter gave, especially when she needs support at night and needs items to be exceptionally clean due to the risk of infection and ill health; and that her husband would not tolerate strangers in the house, which meant it would be virtually impossible to receive support from a care agency. 

Mrs D said due to her breathing condition she could not have people supporting her who smoke, have perfume, have pets, or have dusty/musty clothes, because it would impact heavily on her; and The daughter said she supported her mother 24/7 and did not mind that she always provided more hours of support than the Direct Payments had paid for.  

Mrs D’s daughter felt overwhelmed with her significant caring role and struggled financially. She was low in mood and frustrated. A carer’s assessment concluded that the carer role was not sustainable as she was unable to engage with any of her own ambitions or have time off while being assured her mother would be well supported. 

The outcome of the re-assessment was the Council would put formal care in place to meet Mrs D’s needs and enable her daughter to take up paid employment and improve her quality of life. Meanwhile, Mrs D would receive a one-off payment of £400.  

Mrs D and her daughter were still reluctant to accept support from a care agency. They felt that agencies would be unreliable and often late. The social worker reiterated the Council would not offer a direct payment and would look for a care agency instead. This made Mrs D and her daughter very upset. The matter was left in limbo. 

The social worker then started to get medical information from professionals involved in Mrs D’s care. She did this to determine if there were, as Mrs D claimed, any exceptional circumstances that showed the care could not be provided by a care agency or an outside PA.  

The GP surgery confirmed that Mrs D had complex medical needs, including hypersensitivity allergic reactions to certain substances, which affected her lung function. The GP also said they were not aware of any care homes Mrs D could go for respite where all potential triggers could be avoided.  

The council asked for the most recent reports detailing all of Mrs D’s diagnoses and information about known triggers to Mrs D’s allergies.  

The social worker chase up the response, but did not receive it. The Community Matron visited Mrs D to assess her health. She completed a checklist and sent this to the Council at the start of December 2018. This confirmed Mrs D’s breathing problems, which resulted in an inability to move around and put her at high risk of pressure sores, which would need to be monitored during personal care. It also noted Mrs D had depression for a long time and this had become much worse recently. 

The Council reinstated the DPs for six weeks, so she could pay her daughter to provide support to her, while “clarity was sought from health around clinical need to inform support required”. This was to allow the Council some time to consider evidence “in relation to [Mrs D’s] assertion that her complex needs cannot be met by a commissioned service” and thus evidence of “exceptional circumstances”.  

The DP payments were also backdated to the date they had stopped earlier in the year, so Mrs D’s daughter was paid for the support she provided between August 2018 and 25 January 2019.  

In mid-January 2019, the social worker sent an email to the Council’s service manager saying the GP’s response did not mention specific triggers for Mrs D’s breathing problems.  

Mrs D was required to try to speak to her GP and the District Nurse to get medical information to show how her health impacts her daily life and what environmental factors impact this; she said that if her home wasn’t cleaned thoroughly by her daughter, her health at home would decline even further; said she often needed support through the night and early hours of the morning. Some days she wanted to stay in bed with minimal support. If she decided that she and Mr D wanted to stay in bed, it would be intrusive to have a stranger come into their personal space to support her; and that strangers in the house would have a negative effect on her husband. Mrs D said his mental health would worsen, which would impact on his ability to be a source of company and support for her.  

Mrs D’s daughter said she felt she could not trust a stranger to pick up on signs when her mother is declining. Both she and Mrs D said as her mother’s condition fluctuates, she never knows how she will feel, so her needs could not be met by a pre-determined weekly-timetable.  

The record said that, due to the issues Mrs D and her daughter had identified, it was not possible to proceed with detailed support planning. Mrs D was insistent that her situation was an exceptional circumstance, and the social worker noted that more work would be needed to look into this.  

The DPs stopped after six weeks despite the Council having not yet completed its needs assessment and care planning. The social worker asked Mrs D and her daughter to keep a diary of how Mrs D felt and what support her daughter provided. Mrs D agreed to do this and send it to the social worker after 10 days.  

The social worker received the daily logs on 1 March.  Mrs D asked the social worker to put her “somewhere where I can be looked after properly until things are sorted out”. However, the social worker offered Mrs D some support from a care agency to enable Mrs D’s daughter to have some respite. Mrs D said she did not want ‘a sticking plaster’ but wanted matters sorted immediately. The Council decided that Mrs D had refused its proposal for interim care by a care agency.  

In early March 2019 the Council’s service manager said the Council should continue to “try and gain medical evidence to support exceptional circumstances”. The Council contacted Mrs D’s GP shortly after. The GP replied they did not have any further knowledge of specific triggers. Rather than calling the GP to discuss this further, and get further clarifications, the social worker responded by email asking for a medical judgement about ongoing daily care and if support can only be provided by the daughter.  

Mrs D was admitted to hospital in April 2019. Hospital staff told the hospital social worker that Mrs D was independent on the ward with her care needs. However, Mrs D explained that this was due to the sterile environment because of which her breathing improved.  

Mrs D mentioned again that she wanted a care agency to come twice a week to give the house a deep clean and for ironing tasks, to give her daughter a break.  

In April 2019, the Council decided there was not enough evidence Mrs D’s support could not be appropriately delivered by paid carers other than the daughter. It said that as Mrs D’s circumstances were not exceptional, she should not have a DP to pay her daughter.  

It offered an interim package of 22¼ hours per week, while Mrs D could try to get more evidence to support her case. This would consist of three visits per day and three hours a week to maintain the home.  

In May 2019, Mrs D’s GP wrote to the Council confirming what Mrs D had told the Council – her condition varied from day to day, she needed the flexibility of a live in-carer, which is exactly what her daughter provided. They confirmed Mrs D needed a particularly clean house as she is prone to picking up infections and her daughter spends four hours a day cleaning; anything less would be inadequate.  

The social worker wanted to know yet more information from Mrs D about her fluctuating needs.  

In late June 2019 the Council told Mrs D “The decision about the possibility of reinstating the direct payment has gone to management and they will be communicating a decision to you”.  

In July Mrs D told the social worker that, although she could go ahead with arranging carers, she did not want to have carers going in and out, three times a day. Also, she would need more hours a week for cleaning. In response, the Council said it expected all members of a household to contribute to cleaning.  

At the end of July 2020, Mrs D told the Council she was desperate and willing to try somebody to visit her once a day for three hours. In response, the social worker asked Mrs D to confirm at what time she would want the carer to come, there was no response, even though the social worker chased Mrs D up.  

Since mid-September the Council has been searching for a package of care. It has been unable to identify a care provider for months. Despite being unable to find a care agency, the Council did not consider setting up a DP for Mrs D again to enable her daughter to provide her care instead (at least in the interim), as had happened in the past. 

The Council’s position was that Mrs D still refused an offer to receive support by a care agency, at the end of February 2020.  

What was found 

The Council decided to stop Mrs D’s DPs in August 2018, even though it had not yet carried out a needs and carer assessment and had not yet identified a care agency who could take over the paid care provided by her daughter.  

As such, the Council in effect forced her daughter to continue to provide Mrs D’s care support. It also prevented Mrs D’s daughter from being able to find paid employment. This was fault, which caused Mrs D and her daughter significant distress.  

Stopping the DPs, even though Mrs D had provided the information it had asked for and without ensuring it had alternative care support in place, not carrying out the needs assessment and not finding an agency who could take over her care, was fault.  

Even though the Council felt it did not have enough information yet to make a decision about Mrs D’s exceptional circumstances, and there was no alternative care in place, it stopped the DPs again in January 2019. This was fault too.  

Since November 2018, the Council had been trying to gather information to decide how it can provide the care and support it accepts Mrs D needs. It reinstated the DPs for a short period, and backdated them, so Mrs D could be supported by her daughter. This remedied the financial injustice Mrs D’s daughter had experienced between August 2018 (when the DP first stopped) and January 2019, but  since February 2019, the Council has not provided Mrs D with the support she needed. As a result, her daughter was in effect forced to continue to provide this support on an informal basis. This was despite the carers’ assessment concluding this was unsustainable. This was fault too.  

The Council only provided a one off £400 carers payment during this time.  

While some of the delay in providing information was caused by Mrs D, it was ultimately the responsibility of the Council, and not the client, to get this information as part of a needs assessment.  

There has been considerable discussion about what care could be provided. The Council said it took until 11 September 2019 before Mrs D said she was willing to accept interim commissioned support. By mid-March 2019 Mrs D was saying she wanted support with cleaning and ironing, and she reiterated this in the hospital discharge summary in April. She also indicated she would try outside support if it could be delivered in one long visit, rather than several visits spread out over the day.  

The Council had not considered reinstating Mrs D’s direct payments in the interim to ensure it fulfilled its duty to meet her eligible needs. This was fault too.  

Since September 2018, the Council was ‘considering’ if Mrs D’s situation could be treated as an “exceptional circumstance”. This would mean she could receive DPs to pay for a family carer who lives in the same property (her daughter). According to the records the Council’s view was it had not received enough evidence to be able to conclude that any of the concerns raised by Mrs D meant that a care agency would never be able to provide Mrs D’s care support.  

The Council had to determine whether it was necessary to allow Mrs D’s daughter to be her paid carer. The Council failed to use its discretion and consider all the concerns Mrs D raised together. Even if there was no single issue that provided a decisive reason, the Council failed to consider if all the issues combined showed there was a clear enough case that it was necessary to make an exception, in terms of the quality of Mrs D’s care support, her overall wellbeing, and the wellbeing of her daughter and husband. This was fault.  

Progress towards resolution 

The Council told the LGSCO it would not pay Mrs D for any distress, because it says the delays were to a large extent caused by her and her refusal to accept commissioned care.  

Since then, Mrs D told the LGO that the Council offered a care package to her which she reluctantly accepted to try.  

However, her husband (who had mental health problems) could not cope with strangers visiting regularly.  

Her daughter has continued to provide her care but no longer lives with her; she lives nearby. This means that the restriction mentioned in the Care Act Guidance, that direct payments must not be used to pay a daughter or son living in the same household as the adult, no longer applies.  

Mrs D also confirmed again that she would agree for the DP to be managed by an outside agency.  

The council eventually changed its mind about agreeing to reimburse the daughter at the DP rate, and reconsider the position on refusing Mrs D a direct payment now that her daughter was not living int the same household.  

If it approves this, the LGSCO reminded that council that it  should provide clear information in writing about the Council’s expectations for managing the payments and details of support that is available to help Mrs D with this; if it refuses, it must provide reasons in writing as well.  

The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and the LGO would requires evidence of that. 

While it had agreed to pay Mrs D’s daughter a distress payment, it had not yet agreed to pay Mrs D. and the LGSCO required a decision within 3 months as to acceptance of that recommendation, with reasons if not.  

Points for the public of real importance – and senior managers and Monitoring Officers nationwide 

This is an example of the LGSCO applying public law – legal principles and case law under the Care Act. The LGSCO is not a court or a judge, but it must be maladministration for any council to fail to follow the clear law in the Care Act.  

This is a list of the things that the council could have been judicially reviewed for, in our view, if Mrs D had chosen to put her issue up the legal route, rather than complain. That would have cost her money, but she would have got the costs back from the council. The LGSCO is slower than the court, which is slow in and of itself, but at least the LGSCO does all the work.  

A happy medium between these two options is use of the Monitoring Officer remedy. That officer is bound to intervene to warn the Members if the council’s stance amounts to a likely contravention of an enactment (here the Care Act) or any rule of law (public law principles and case law that constitutes a binding precedent). 

Likely contraventions of an enactment or rule of law could have been asserted powerfully as follows: 

  • Failure to meet needs during the period where there was no money and no care – the council could not objectively say that the daughter was able to meet needs – see Ali Raja v Redbridge, 2020. 
  • Failure to address all the material that the council was provided with: that is a failure to take all relevant considerations into account and/or a failure to accord due weight to the extent of the impact that was being asserted and/or a failure to be transparent if in some way the evidence was not believed by the council. That is all unlawful by reference to public law principles – also enlarged upon in the Ali Raja case.  
  • Expecting household members to clean in order to meet a condition related need – because maintaining a habitable home environment to the extent that it is safe for the individual, is the responsibility of the council and no-one else. See CP v NE Lincs in its 2018 iteration – family members cannot legally be expected to care for adults. 
  • Failure to come to conclusions on the basis of the medical evidence, having spent an unconscionably long time about getting it in in the first place. That is unlawful – it was a failure to exercise the discretion regarding necessity for permitting the daughter to be paid, and that is a breach of public law principles. 
  • Failing to appreciate that if there is no care being provided, there could be only one justifiable response on the discretion to permit payment of a relative. Here, the council’s position was that it was stymied by Mrs D’s refusal to accept a lawful offer of commissioned care, but that stance is flawed by the recognition that the council did not even have access to sufficient service capacity.  
  • Having a ‘no capacity’ waiting list despite a breach of statutory duty – failure to commission enough care to meet needs. (This was all pre pandemic – please note that since March 2020, this state of affairs would now require the triggering of COVID-19 Easements. The social worker had said “My only reservation with recommending a care provider is the lack of resources and potential for her to be without care waiting on the no capacity list.” That is absolutely and undeniably unlawful because the ability of the social services’ team or the council’s procurement staff to AFFORD or FIND resources is not a defence to a mandatory duty to commission to meet need. If the council cannot find anyone to do it, it is legally obliged to go back to doing it itself, through in-house provision. Resources are relevant considerations for HOW the need is met, not WHETHER.  That has been the law since 1995.  
  • Failure to pay due regard to the wellbeing promotion duty in s1 of the Act, given the LGSCO’s findings about the failure to look at all of the evidence on necessity for making an exception regarding payment of the daughter in the round. 
  • Failure to provide the daughter with a support plan to meet the daughter’s care needs after the carer’s assessment. That is unlawful under s20, although it may have been that there was nothing that she would accept to reduce the impact on herself. 
  • Failure to make restitution in accordance with CP v NE Lincs in the Court of Appeal in October 2019 for the unjust enrichment to which the breach of duty gave rise to liability.  

We estimate that at 22 hours a week x £15 an hour for over a year, that is about £19,000, in total, which figure would have likely attracted a lot more publicity if it had been stated in the complaint report.  

The LGO published this report notwithstanding agreement with most of the recommendations, because it was in the public interest to do so, given the significant fault, the injustice caused to the complainant and the Council’s refusal to make the suggested payment. 

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 Cornwall County Council’s actions can be found here https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-004-581 

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