Buckinghamshire County Council at fault for deciding to stop Direct Payments without a formal review, without giving notice and without ensuring established needs would still be met on transfer to Continuing Health Care

Decision Date: 2nd April 2019

What Happened

Mr P began suffering from chronic pain in 2007. A subsequent round of surgery left him disabled and he used an electric wheelchair. Mr P’s wife was his full-time carer.

He was also under the care of a Trust’s Adult Mental Health Team (AMHT) due to having a recurrent depressive illness and dissociative disorder. He also had a Care Co-ordinator.

In May 2016 his Care Co-ordinator referred Mr P to the Council for an assessment to reduce the strain on Mrs P. The Council referred the case back to the AMHT for them to complete the assessments as its Care Act delegate under a s75 Health Act (partnership) agreement.

Mr P’s Care Co-ordinator completed the needs assessment at the end of July 2016, which proposed a package of carers visiting his home, to help with personal care, and a Direct Payment to allow Mr P to access the Jewish Association for Mental Illness day centre (JAMI), including transport costs.

Mr P said that they also discussed him being able to use his DPs for things such as going to watch football, rugby and cricket, going to the cinema and pursuing potential hobbies. He said they “agreed” to only list one thing on the assessment so as “not to over-complicate things”.

A panel considered his case August 2016 and agreed to fund the request for carers to visit Mr P. It also agreed for DPs to cover the costs of Mr P attending JAMI but rejected the application to cover travel costs to get there, for reasons that aren’t clear. The home care package began in September 2016.

Mr P was reassessed by the Council in February 2017, which concluded that Mr P would receive a Direct Payment of £267.25 a week to meet his assessed needs. Mr P began receiving a Direct Payment of £1,065 a month in April 2017.

The Social Worker also referred him to the CHC Team for a decision about CHC status. The CHC team conducted a decision support tool exercise in April 2017 and wrote to him mid-June 2017, confirming he was eligible for CHC funding.

In June 2017, the Trust replied to a complaint Mr P had sent in previously (the LGO report did not explain any details of the complaint). The letter stated that Mr P would receive back payments for the period 20th July 2016 (around the time when he was first assessed by the Care Co-ordinator), to 24th March 2017, so it must have been about his now funded needs, having existed back to that point, but perhaps never recognised, before.

Mr P’s Care Co-ordinator told him that he would need to provide receipts for that period in order for the back payments to be made, which he agreed to provide. Mr P never uploaded his evidence of receipts to the online system; he told the LGO that he has a large box of receipts. He said that he had a bad internet connection so the system would time out. However, he said that his Care Co-ordinator was aware of these problems and told him to keep the paper receipts which would be collected “when necessary for an audit”. Mr P still has those receipts.

In early July 2017 it was confirmed that Mr P would be paid a one-off sum of £6,160 for costs of travel and religious sessions for the past. The day he received the payments, Mr P made a bank transfer of £3,000 to Mrs P and £3,160 to his own account. He said that they used the funds to pay back sums to providers (Rabbis, reflexologists, etc) whose services he had used. The report did not outline what evidence he provided for that.

It was noted that these backdated payments were for costs of travel and religious sessions, although we are unclear why the cost of travel was allowed, when it has not been included in his care plan, and had been specifically rejected, previously.

For reasons that are unclear, the direct payments continued past the point of qualifying for CHC status. In March 2018 the AMHT asked the Council to stop Mr P’s DPs, seemingly without explanation. Mr P complained to the Trust about this.

The Trust replied stating that the DPs were suspended “as it was evident that Continuing Health Care was now in place to meet [Mr P’s] identified needs. There were also concerns that the Direct Payment had not been used for the purpose for which it was agreed and that this may need to be further explored”.

The Council and Trust sent a joint letter to Mr P in late August 2018. That letter said the DPs were stopped because CHC was in place. They said the CHC team had confirmed its support was meeting all of Mr P’s identified needs.

The Council and Trust highlighted that the CHC decision did not list any needs which were not covered by the CHC funding, therefore said this was evidence that Mr P did not have any outstanding needs. However, the CHC checklist had not included any information about Mr P’s cultural, religious or socialisation needs.

The Council completed its investigation into the suspected misuse of Mr P’s DPs in October 2018. It concluded that Mr P has not adhered to his original DP agreement (regarding the purpose of the payments), but that the notes were insufficient in showing that the consequences of misuse were explained to Mr P, likewise as to whether Mr P was ever warned that particular expenditure was not permitted. It also noted that the care plan records were incomplete and failed transparently to state what the DP was to be used for.

The Trust wrote to Mr P in October 2018 stating that he had used his DP for things outside of the agreement, totalling over £3,300. It said that it was not seeking repayment. It said it had asked AMHT to complete a new assessment with the CHC team, to make sure all of his needs were met.

Mr P complained, stating that the original backdated payment of £6160 was not enough. The Trust said they would make payments for the period between July 2016 and March 2017; 35 weeks of care. This would have amounted to £9353.75.

He also complained that the Trust had then stopped his DPs without notice. He also complained that the CHC funding did not include anything for his religious and cultural needs.

Mr P highlighted in his complaint that due to prior commitments he made when the DP was in place, ‘All the time I am begging and borrowing money from friends to pay for direct debits that need to be paid or I get handed over for collection’. Mr P said he and his wife were struggling financially as they had been trying to cover the payments that they were committed to paying via his Direct Payment. He said this had placed them in debt.

The LGO found that as of mid-February 2019 the Council and Trust said a joint assessment had just been completed by it and the CHC team. It said the assessment was yet to be finalised and agreed.

What was found

Delay in assessment

Mr P was referred to the Council for an assessment in May 2016, which was completed 9 weeks later. The Council’s policy states that assessments should be completed within 8 weeks. So the LGO considered that Mr P missed out on just over a week of funded care. This was fault.

Mr P said Mrs P lost out on three hours of work at £18 an hour each time she was unable to leave. Over two evenings this amounted to lost earnings of £108, which the LGO recommended the Council pay to Mr and Mrs P.

The LGO highlighted that regardless of the day‑to‑day arrangements under the Section 75 delegation agreement, the Council retained the ultimate responsibility for ensuring Mr P’s needs were properly assessed. 

Backdated Payments

In June 2017 the Trust said it would arrange a back payment for the period 20 July 2016 to 24 March 2017. The total back payment should have been £9,353.75. However, Mr P was only given £6,160. This was fault.

The LGO stated “it is difficult to understand where the £6,160 figure came from but there is no reassurance that it is a fair and correct calculation of the reimbursement it promised”.

Misuse of funds

The LGO stated that the care plan for how Mr P was to use his DP “was quite vague”.

The plan noted that Mr P wanted to attend JAMI, go on a beehive course, continue with his religious practice and education, go on an arts and craft course and go and watch his Premier League football team play.

The assessment recommended a package of support at home along with a DP for ‘5 days – JAMI day care and activities (mentioned above) to promote his emotional well-being and reduce isolation and suicidal ideation’.

The LGO looked at a DP account statement from April 2017- November 2017, where Mr P received £7,483 in DPs. The LGO deduced by investigation that Mr P had spent the money in the following ways:

  • £3,862.27 (51.6%) on religious classes and sessions
  • £1,921.25 (25.7%) on football, motor sport, cricket, rugby and other entrance tickets
  • £1,272.87 (17%) on fuel
  • £1,050 (14%) on reflexology.

The above amounts came from his DP funded by the AMHT.

Guidance is clear that Councils should only terminate DPs as a last resort. They may stop DPs where ‘it is apparent that they have not been used to achieve the outcomes of the care plan’ (CSSG, paragraph 12.73). If a Council does stop the DP, it must make sure there is no gap in support.

First of all, the LGO found no evidence that there was a review of Mr P’s DPs after the first 6 months, contrary to regulations, or before the account was suspended.

Furthermore, there was no evidence to show that Mr P was told any of his expenditure was not allowed, or that any further clarity was given about what the DP could or could not be spent on. There was also no evidence that Mr P was given a warning about the payments being suspended.

Given that the evidence suggested that the payments had been stopped because of the concerns over misuse of funds, rather than because CHC was in place, there was nothing to show that any alternative care was being put in place to replace the DPs.  Even if the presence of CHC funding influenced the decision to stop the Direct Payments, there was still uncertainty about whether the CHC package covered all of Mr P’s needs in October 2018, months after the DP stopped, as highlighted by the Audit team investigation. This is not in line with the National Framework for CHC. 

The issue of whether the CHC funding covered all of Mr P’s needs, including socialisation and religious and cultural needs, should have been clarified and made explicit before any funding was removed. This did not happen, which was fault. As a result of this fault there was still uncertainty about whether funds to meet Mr P’s identified socialisation and cultural needs were removed without alternative arrangements being in place to meet them.

All of this amounted to fault. There was fault in the decision to stop Mr P’s Direct Payment in April 2018. There should have been a formal review of the Direct Payment while it was active. Any concerns about its use should have been openly and explicitly discussed with Mr P and any restrictions on its use should have been made clear.

Remedies

The LGO recommended that the Council:

  • Pay Mrs P £108 to reimburse her for lost earnings caused by the delay in completing a needs assessment between May and July 2016.
  • Complete a new calculation of the back payment for Mr P’s Direct Payment for the period 20 July 2016 to 24 March 2017.
  • Make a new back payment to Mr P for any difference between the new calculation and the £6,160 it credited to him in July 2017.
  • Complete a calculation of the amount of Direct Payments Mr P would have received from the time the payments were stopped in April 2018 and the time when the new joint social care/CHC assessment was finalised and agreed. The Council will also make a back payment to Mr P for the full amount of the missed payments.
  • Pay Mr and Mrs P (jointly) £500 as a tangible acknowledgement of the avoidable stress they were caused by the faults in this case.
  • Ensure that appropriate systems and training is in place to keep Direct Payments under review, and that any concerns are appropriately addressed and followed up.

Points for the public, councils, Mental Health Trust delegates/partners, advocates, etc

CHC funding status is supposed to cover health, personal and social care needs, once someone is eligible. NHS bodies are not allowed just to meet the health bit and leave the person without what they have been funded for, before qualifying – that should have been challenged.  Once someone is eligible for CHC, they are not supposed to GET any more social care money at all, but if the CHC plan doesn’t extend to replacement money for the social care services, it is no wonder that the man kept thinking it was right that the DPs were continuing.

The Direct Payment derives from a person’s personal budget under the Care Act and the requirement of a budget is that it is rationally sufficient to cover the response to assessed eligible unmet needs that has been finalised in the care plan.

The case law requires that that plan is transparent as to how the money should be spent across the domains of need, and the Act makes it necessary to provide such a plan, even when that plan envisages a person getting a direct payment. Transparency in that particular regard means telling the person at least which domains they should regard the money as FOR, and anything that they must not spend the money upon, so that they know the scope of the flexibility that they are intended to enjoy, through the DP deployment route.  

Reimbursement/back payments are properly payable because of the law of restitution – the principle being that restitution is due for any period when a council is in breach of statutory duty, IF someone has spent their own money on supplying the shortfall of care, or stepped up to do the care, unwillingly, or been forced to lose their own income by dint of stepping in willingly in the emergency.

Here, the carer’s wages were reimbursed, and the man was paid direct payments for periods when there was no funding in place but his needs should have been acknowledged as having gone back to well before the time that they were recognised. Restitution is not normally provided where NO-ONE has spent or lost money or time; in such cases the person may be compensated for the assumed IMPACT of not having had the care, but the LGO does not always differentiate when making recommendations.

The complaint is also hard to follow regarding the actual access/consumption cost of the sporting and other activities and the fuel cost.

Some councils have long embraced the notion of people with eligible needs spending money on paying for leisure or recreation, as long as it is no more expensive than the cost of care for that person would be, at home, because it is better value, by dint of meeting many more of their wellbeing outcomes.

But others say that this discriminating in favour of people with social care needs, because the rest of the public can only have as much leisure or recreation as they can afford – they say that whilst they will pay the escort costs, that will only be up to a reasonable level of that activity over the course of the week. There is probably no objective universal answer as to whether leisure and recreation are responses to ‘wants’ or ‘needs’, or how much of them is enough to meet the needs, in the latter situation.

These consumption/access cost/transport issues arise mainly where a council has been more generous in the past and then makes cuts because of shortage of resources, saying that it is still providing an adequate response.

The only remedy, then, is judicial review, for either the way in which that cut has been made, or based on the irrationality of the cut itself, or the impact on a person’s human rights (article 8 would be the one to assert – and in this case, article 7 which is about the right to manifest religious belief).

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 Buckinghamshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/17-016-036

Leave a Reply

Your email address will not be published.