Decision Date: 28th September 2020
Miss X complained on behalf of Miss Y.
Miss X worked for a support agency and was Miss Y’s informal representative.
Miss Y had numerous mental and physical conditions and received direct payments from Calderdale to employ carers for 9.5 hours per week.
In August 2018 Miss X was told that she needed to have a Care Act assessment for her to continue receiving the DPs.
There was no evidence that a Care Act assessment was carried out during the subsequent meeting, where two social workers were present (Officer A and Officer B). Instead, the potential for Miss X to have an Individual Service Fund (a euphemism for a hybrid sort of a package explored in the Guidance) was discussed. After Miss X provided the necessary costings and evidence, there was nothing to show that the Council considered the ISF option any further.
In October 2018, Miss X was told by officer A that they had been unable to arrange a mental health assessment for Miss Y, and in the meantime a care package with the Council’s Shared Lives Service had been organised. Officer A also noted that to achieve parity with other service users, Miss Y’s care package should be reduced to 6 hours per week.
The LGO found no evidence that officer A discussed the option with Miss X and Miss Y or even considered how it could be suitable for her. Miss Y was unaware that the option was even being considered.
In November 2018 Miss Y’s original care provider (who had been employed using DPs) gave notice to officer A that it would be ending its service to Miss Y. The council did not notify Ms Y.
Officer A proposed a meeting with Miss X, Y and the care provider.
Miss X highlighted to officer A that she was concerned with their conduct, as the officer had asked Miss X not to tell Miss Y the reason for the meeting. Miss X was also concerned that officer A was considering reducing Miss Y’s personal budget without any lessening of need, if she did not accept the shared lives proposal and asked why Miss Y was not being given the opportunity to choose herself.
The meeting took place in December 2018. Officer A produced a care and support plan, however the LGO found no evidence that Miss Y was consulted or involved in the process. The outcome of the meeting was that Miss Y’s DPs would end in January 2019 (at the end of the provider’s notice period) because no service was being provided.
Miss Y complained in January 2019 and requested a new assessment. She complained that officer A disregarded her views and choices and did not tell her the purpose of the December 2018 meeting.
The Council did not reply, so Miss X complained again in July 2019. The Council eventually replied in September 2019 and did not uphold any of her complaints.
In May 2019 a social worker from the Community Mental Health Team was allocated to Miss Y for an assessment.
The assessment took place in February 2020 which found that Miss Y was eligible for about 9 hours of care per week.
The LGO report stated that Miss Y preferred a particular support agency to provide the care she needed, but this was not possible as that agency was not on the council’s framework so could not be commissioned by the council.
Miss X and Y took their complaint to the LGO.
What was found
Involving Miss Y
The LGO explicitly stated that the Council’s communication with Miss Y was poor. The Council failed to directly inform Miss Y that her care provider had given notice and was not clear about the purpose of the December 2018 meeting. The lack of transparency was fault which caused distress and frustration to Miss Y.
The Council failed to involve Miss Y in decisions about her care and support planning following the provider giving notice. This is contrary to the Care Act and Guidance, therefore this was considered to be fault.
Officer A failed to pursue the ISF as agreed, and failed to inform Miss Y whether this was or was not a viable option. The officer also pursued Shared Lives option without communicating with Miss X and Y. As a result, the care and support planning in 2018 ‘was not person centred which denied Miss Y control of her care’. This service failure contributed towards the distress caused to Miss Y by the council, therefore this was fault.
The Council was also at fault in proposing to reduce Miss Y’s support hours from 9.5 to 6 per week. There was no proper assessment or review, so its decision seemed ‘arbitrary’. The council later considered a budget of 9 hours per week to be correct. This would suggest that the council agrees that the proposed 6 hours was in fact insufficient.
The Council was also at fault for stopping Miss Y’s DPs. The Council said it stopped making payments, because a replacement care provider had not been identified. However, Miss Y still had eligible needs, and without the DPs, she could not employ other care providers. This was fault.
The LGO highlighted that the Council failed to consider the risks to Miss Y withdrawing her support may have. Again, there was no evidence to show that the Council discussed alternative options with Miss Y.
The Council was at fault with regard to this issue as Miss Y was left without care for 19 months. Miss Y had to purchase support from another organisation which would otherwise be provided for by direct payments.
Delay in assessment
Miss Y requested a Care Act assessment in January 2019, which the Council failed to act on. It did not carry out an assessment until February 2020. This was fault. The LGO stated “a delay of 13 months in allocating a social worker and carrying out a Care Act assessment would be excessive in most circumstances”.
It was particularly excessive in Miss Y’s case as the Council was aware she had eligible needs and no support in place.
Whilst the LGO noted that the Covid pandemic made assessment harder the LGO noted that, if the Council had acted in accordance with statutory guidance Miss Y would have had support and care provisions in place. Therefore, the LGO considered this period during the pandemic, totalling 19 months without care, to be relevant to the extent of the injustices suffered by Miss Y.
The LGO recommended that the Council:
- Send a written apology to Miss Y and make a payment of £500 for the distress caused by its poor communication, failure to involve her in decisions about her care, wrongly stopping her direct payments and delay in carrying out a Care Act assessment.
- Reimburse Miss Y for the cost of support she purchased since the date her direct payments were stopped until the Council reinstates a care package.
- Review procedures to ensure the delays experienced by Miss Y in allocating social workers, including those from the mental health trust, and carrying out Care Act assessments do not recur.
Legal Framework Points for the Public
This complaint illustrates the legal consequences of a number of different types of contraventions of rules of law.
Involvement, participation and consultation – even if someone is regarded as needing mental health assessment or a mental capacity assessment, they are presumed to be capacitated. In addition, they are entitled to be involved in their own assessment, albeit the concept of involvement is not defined. It clearly means more than being presented with a fait accompli or being excluded from discussions or being misled about the purpose of a meeting.
Breach of statutory duty – the law is that eligible assessed needs are met, and that direct payments cannot be stopped unless the care plan has been reviewed and revised lawfully. The absence of a provider does not mean that the direct payments must be terminated; the individual can choose to find another provider, or give up the direct payment if they are unable to do that. Their eligible needs do not thereby cease, and their entitlement to have them met goes on.
Restitution for breach of statutory duty – councils have to pay money back in some situations where their maladministration is characterised by breach of the law – because the council will in those circumstances have been unjustly enriched at someone else’s expense. Restitution flows if a person has spent their own money (or someone else has spent their money or put in labour for free but in circumstances when it could not have just been regarded as a gift or favour) on filling the gap left by the council’s breach – which is what happens when they mess up assessment in a way that is unlawful, or mess up care planning, in a way that gives rise to illegality. They do not have to pay back money JUST because they’ve done wrong. That would be damages for breach of statutory duty or for harm, and those remedies don’t exist in the law of community care. Restitution is about solving the problem of someone else’s expense or labour, triggering a liability on the part of the person who was left short by the council.
Delay – there are no time limits for starting or finishing the statutory decision-making functions that have to be done, under the Care Act, but public law principles say that every duty has to be done in a reasonable time. That always depends on the circumstances, but after a given point, based on professional judgment as to the circumstances, the excuses and the integrity of the system, or its lack of checks, very long delay will be regarded as unconscionable. That’s challengeable in the Administrative Court but the LGO offers a free alternative. One in which there is a lot of delay too, but it is better than having to give restitution back to the Legal Aid Agency by dint of the statutory charge biting on the compensation…
Arbitrariness – here, once some manager had hit upon the idea of Shared Lives being cheaper than a proper care package, there is a definite hint in the report that management thought that they could offer the value of the cheaper alternative package without thinking about whether it was appropriate or something that they could even regard as an offer within their gift. This is not the law.
The corollary of the principle that a personal budget must be sufficient is that if it is going to be reduced, there needs to be a rational reason, such as lessening of need, and an evidence basis for that. A service’s cost can be relevant to a budget, if it’s cheaper than the preferred one but only if it’s rationally adequate and appropriate and suitable.
Shared Lives – in this report it is not clear that anyone was suggesting that Miss X needed to move into a Shared Lives placement – there is another form of service where one goes to the Shared Lives Carer’s house for the day, as an alternative to day care.
Most Shared Lives package are not placements involving an accommodation arrangement in return for council money. More typically, the Shared Lives service merely commissions services in the nature of care and support and the individual or their property and finance deputy or appointee are signposted to a tenancy or a licence that would attract housing benefit to pay rent/an occupation fee. So they are not services that the council is arranging. A mere appointee has no authority to sign the tenancy or licence as an agent but everyone overlooks that because it means that the HB just starts to flow and the person is happily sort of secure. There is no proper registration or scrutiny of the Shared Lives carer for providing care in the place where the client is then living, even if that is personal care. Safeguarding Leads, and Chairs, commissioners and CQC are not interested in that issue, as far as we can tell.
But when the suggestion includes the idea of going to live at the Carer’s house, it ought to be obvious that the client has to be willing to GO and live somewhere else and pay for that, or can otherwise be lawfully placed, by the council, in a setting where there will be care (often personal care) together with accommodation – either with best interests consultation of relatives or the agreement of a welfare attorney or deputy.
There is a special registration regime for that, which means it doesn’t have to be registered as a care home as long as the Shared Lives service making the accommodation arrangement is itself registered. This is something that everyone chooses to overlook. Shared Lives carers are notoriously poorly paid for what they do on the footing that they are self-employed and can thus claim all sorts of expenses of running a household against their ‘fees’. At the same time the individual is not given a budget based on their real needs; they are given a budget that simply matches the fees that the commissioners have told the providers that they will ‘take’.
Most people working as Shared Lives carers are incredibly kind and willing and go far beyond the call of duty or the terms of the agreement with the Shared Lives service, providing a genuinely loving and attentive home for a person, and forming real relationships. We have no issue with the quality of service that can be delivered with this model. But this specialist sector needs to get clued up, it is suggested, before the model becomes discredited by the suggestion of collusion with councils in keeping people’s services suppressed to an artificially low level.
Direct payments and ISFs – an ISF is an arrangement where someone (the council or a direct payment holder) contracts with a provider not just for the services but also for looking after the budget or direct payment. It is not a third way. It is one form of deployment or another: a commissioned package with freedom on the part of the contracted provider to sub contract and an expectation that the budget will be deployed with involvement of the person or their family OR a direct payment where the holder puts the direct payment into the management of the provider of the services, to be a sort of broker or commissioning support agent for the client’s ongoing control and deployment of that budget.
If a person is at risk of losing a direct payment for whatever reason, to do with difficulties in managing it or spending it, and is committed to remaining with a particular provider, there is no reason at all why this cannot be set up as an ISF, as long as the DP holder is happy to nominate that entity to be the money manager. We despair as to why this is not understood and used to good effect.
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The full Local Government Ombudsman report of Calderdale Borough Council’s actions can be found here