Decision Date: 24th November 2020
Mr and Mrs X complained on behalf of their daughter, Ms Y.
Ms Y had been in receipt of care for many years. After the Independent Living Fund was ended in 2015, the Council took over funding and provision of care.
There is no detail as to whether the care was cut between 2015 and 2019, please note, as has happened in most councils where ILF had provided the first slice of the funding for care and the council had topped up the unmet need.
Ms Y lived with her parents, and had been employing her relative, Mr Z, as her main carer through direct payments.
Mr Z provided care for Ms Y during the day and provided three nights a week paid respite care where Ms Y would stay at his house. She also attended a supported work placement three days a week.
In March 2019 the Council undertook a Care Act review of Ms Y’s needs. A social worker met with Ms Y, Mr and Mrs X and Mr Z. They considered evidence provided from Ms Y’s GP and staff from the support placement.
The social worker completed a care and support plan:
- It reduced Mr Z’s paid hours from 43.5 to 40 per week.
- It reduced the respite care from 3 nights to once per week.
- It removed the transport service to and from the placement but advised that Ms Y should qualify for a mobility vehicle or allowance.
This came into effect in July 2019 after notice was given of the change, and nobody contested the plan at the time; the parents agreed the assessment was a proper reflection of the daughter’s needs.
Mrs X told the social worker at the review a month later that Ms Y had been unhappy since the changes. Ms Y’s manager at the placement confirmed that Ms Y’s behavioural routines had become increasingly obsessive and distressed.
The Council held a review meeting in September, where Mr and Mrs X told them clearly that Ms Y was not coping with the changes. They asked the Council to reinstate the previous level of care.
The Council recommended that Mr and Mrs X refer Ms Y to the local NHS community team for help adjusting to the changes.
Mr and Mrs X complained to their MP about the reduction of care provision. The Council replied stating that their actions were in line with the Care Act 2014.
Ms Y’s GP then wrote to the Council stating that since changes to her support, Ms Y’s behaviour was deteriorating.
Mr and Mrs X agreed to the NHS community team referral in December 2019. The team however decided that Ms Y did not have an unmet health need that required their specialist input and referred her back to the Council and GP.
In January 2020 the Council reviewed Ms Y’s care plan again, where her parents reiterated that her behaviour had deteriorated since the reduction of care.
The Council considered Mr and Mrs X’s views, the letter from Ms Y’s GP, the decision letter from the NHS team and feedback from Ms Y’s work placement. It decided the current care and support plan met Ms Y’s assessed needs.
Mr and Mrs X remained unhappy and complained to the LGO.
What was found
The LGO found that the Council were not at fault. It stated that when the Council reviewed the care and support plan in September 2019, it appropriately considered all the relevant information and decided the care and support plan met her needs adequately.
As the LGO found no fault in how the Council reached its decision, it could not question what that decision was.
When the Council completed a further review in January 2020, it considered all appropriate information: from Ms Y’s relatives, the GP, the NHS team and Ms Y’s work placement. The Council also met with Mr and Mrs X to discuss their concerns. Although Mr and Mrs X disagreed with the decision, there was no fault in how it was reached.
Points to note for Councils, professionals, people using services and their carers, advocacy providers, members of the public
When care and support planning and reviewing, Councils have to ensure that the personal budget is defensibly sufficient to meet the eligible needs of the person.
This Council followed the right process, which resulted in a decision that the individual’s budget ought to be reduced. This can be lawful, but only if the evidence is properly addressed.
Councils form their own view of how much to allocate the person within a personal budget but must ensure that this is through what’s known as ‘defensible decision-making’. It has to be rational, based on evidence, and with any countervailing considerations addressed rationally.
Councils must of course listen to the needs and wishes of the person, but caselaw (Merton) has identified that whilst the Council must take them into account they are not an overriding factor. The LGO found that the Council did take the right approach to this assessment, by taking into account a number of factors that resulted in an evidence-based and defensible decision.
The Care and Support statutory guidance provides good detail on reviews and states the following at paragraph 13.4:
13.4 The review will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment. It should also identify other circumstances which may have changed, and follow safeguarding principles in ensuring that the person is not at risk of abuse or neglect. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.
Using reviews to reduce budgets is a widely heard of activity. We know that this does happen, where a Council may go into a review already having decided it wants to reduce a resource commitment. However, this is open to challenge and should be challenged. Where there is a genuine change in circumstances of a relevant kind, Councils can be justified in reducing the allocation of personal budget for the person, and s.27(4) Care Act 2014 says this:
(4) 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—
(a) 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
(b) revise the care and support plan or support plan accordingly.
Revising the plan is where the change in personal budget comes in. The Council in this complaint was found to have acted in accordance with the Care Act 2014 and the guidance and therefore no fault was found.
In our view, the LGSCO missed an opportunity to comment on a key point of importance from the case law.
In this particular scenario, the impact of the change was evident from the challenging behaviour increasing. The council needed to ensure that its conclusions were based on the information received, in this case from the GP, family reporting and from the person, and there is no way anyone can tell from the report how the council satisfied the LGSCO that they had in fact addressed that evidence, as required by the Merton case (the leading case on re-assessment and what is required to make a change of plan lawful).
It helped that the parents had accepted the assessment was accurate, no doubt, and that they had not contested the principle of the change at the time.
But we are left wondering how on earth their parents coped with 2 nights less respite, without approaching a point where they would objectively have had to consider whether they could continue to accommodate their daughter. Respite is for care that is not otherwise available from a willing and able carer! There is this hint that it was getting tougher: “She was also waking more at night and wandering downstairs at night, which was becoming problematic for Mr and Mrs X.”
Despite this, they may have given no hint of becoming over-strained, of course, and the council may have sought in vain for any such sign. But the report is equally consistent with a council getting away with saying “Talk to the Hand”… so to our minds, this is an illustration of how the remedy for breach of the Care Act – judicial review – and the threshold for that remedy – evidence that the council did something that no reasonable authority would have done – plus the increasing difficulty in finding a lawyer willing to take these cases on, on legal aid, can make a council take a risk management approach to litigation, if it is confident that the allocation was defensibly sufficient to meet the needs in accordance with the Care Act 2014.
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The full Local Government Ombudsman report of Bradford Council’s actions can be found here