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CASCAIDr’s Q & A fund-raising campaign for 2020

Every year we raise money for the London Legal Support Trust – which supports voluntary sector organisations which provide legal advice about welfare law.

And that includes us, of course – so helping the LLST, helps us – and we really appreciate whatever you can donate this year.

Normally we walk a long, long way, but this year, we’re doing 10 days of answering 10 challenging LEGAL questions, instead.

These will be put up on social media, and as replies to questions posted, roughly one an hour between 9am and 7pm, for two weeks, with time off at the weekends!

They can be about the System in General and Advocacy (MON 28); Assessment and Eligibility (TUES 29); Budget Sign-Off and Care Planning (WEDS 30); Cuts and Revisions (THURS 1) and Supported Living, Ordinary Residence, and Housing Issues (FRI 2).

The second week, on the day the LLST  Walk would have happened, we’ll be doing Covid-related questions, Easements and Carers’ issues (MON 5); Mental Capacity and Choice (TUES 6); Direct Payments, “Managed Accounts” and Health Budgets (WEDS 7), Continuing Health Care and s117 aftercare (THURS 8) and Charging and Financial Assessment (FRI 9). Oh yes – and Human Rights, at any time!

They’re all drawn from the work we do daily (and we’d soooo love to be asked one that’s new! – if you’re up for that personal challenge!?)

Every day, at 1pm, the 3 juiciest questions in the subject areas above, will be answered and discussed, and the video made available on YouTube.

We want to get the sector talking about law again, in this era of ‘anything goes’, and we will do whatever it takes to make it interesting!

The ground rules are as follows:

No question can be more than 100 words long.

It can be made up of several parts, but that’s the limit.

You can post a question HERE below, in the Comment box, anonymously, or you can leave your name on it – it’s up to you.

We want you to anonymise the name of the council or CCG, or care provider, AND the name of the person it’s about.

We won’t feature your question if you’re really asking for legal advice via this route, about a specific problem. We want you to make your question a GENERAL one, in terms of the wording please, and we have to trust you to do that.

We’re doing this because even though we can’t walk during social distancing, we can use what we know, to spread the word even further, about people’s rights – right to something that most people had hardly heard of, before Covid – whilst others have always had to depend upon it, and local authority’s grasp of the legal framework underpinning it, for a decent quality of life, independence and dignity.

The law needs to matter! Otherwise, who gets what is just arbitrary, and able to be manipulated.

That is not fair to the fearful, the uninformed, or to incapacitated people

and nor is it fair to the tax paying public, either.

We want questions from service users, family carers, care providers and social workers please – from advocates, care and support brokers, direct payment support staff, peer support groups, other charities and from any activist law firms or campaigners.

No holds barred, as long as it’s on one of the topics set out above!

Our aim is to inspire 1000 people to give £10 each.

If we succeed, we can become a proper law firm, acting through authorised solicitors, with a regular crowd-funding capacity – and therefore extend our support into the issue of judicial review proceedings, without recourse to the legal aid system.

We think that that will have an impact on the local authority and CCG world of resource allocation and commissioning. More than that, though, we hope to revive interest in legal principle, as a strategic tool for ensuring that we do all GET what Parliament intended, even if no political party in living memory has ever fully funded what it collaborated over legislating for.

So PLEASE DONATE

HERE, please, not our usual button on our website, please – CASCAIDr’s Virgin Money Giving fundraising page link for this campaign can be found, here:

https://uk.virginmoneygiving.com/CASCAIDr20

Here is an example of the sort of question we mean, below, where one would normally put a Comment:

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Durham County Council at fault for failing to regularly inspect the property it had Deputyship over and make appropriate repairs

Decision Date: 24/03/2020

What Happened

Mr X complained on behalf of his late father, Mr Y.

The Council had been Mr Y’s deputy for financial affairs since 2016. Mr Y owned a retail business property which was let to Mr Z.

Mr Y lived in a care home, as a self-funder (judging from the report), paid for by using the income from renting the business property out. Rent was paid into Mr Y’s deputyship bank account, managed by the Council, until April 2019.

When the Council became Mr Y’s deputy in 2016, the Council sought legal advice about the rental agreement, and whether the lease had expired. It was identified that the lease would not end until Mr Z or Mr Y served notice. Neither had done so.

In May 2018 the Council was alerted to a water leak in the premises. It inspected the property for the first time since it gained Deputyship. It recorded damage, but then did not arrange for any repairs to be made. The Council, acting as Mr Y’s deputy were responsible for repairs and upkeep of the property.

In late 2018 Mr Z the tenant wanted to transfer his lease to Ms B. The Council Deputyship team sought further legal advice, and discussed the matter with Mr Z’s solicitors.

In January 2019, Mr Z left the business, intending to hand it over to Ms B. Mr Z remained leaseholder until the Council decided what should happen.

The Council made a best interests decision about what should happen to the lease under the Mental Capacity Act. In doing so it considered:

  • Mr Y’s earlier wish to rent out the property.
  • How important continued rental income was to meet Mr Y’s care costs.
  • The risk of not transferring the lease, meaning Mr Y losing rental income

It concluded (on a date unknown) that it was in Mr Y’s best interests to allow Mr Z to continue as the leaseholder, but that Ms B would occupy on some or other basis. Ms B would pay rent to Mr Z, and Mr Z would continue to pay rent into Mr Y’s deputyship bank account.

The Council ‘understood’ that this would be the arrangement until a new lease was drawn up under Ms B’s name. It continued to work with solicitors to arrange a new lease.

It is unclear from the report what Mr Z’s views were, so we can only assume that all parties agreed to the Council’s proposal on behalf of Mr Y.

The Council discussed repairs with Ms B, and inspected the property in February 2019, for the second time.

Unfortunately, Mr Y passed away in March 2019, by which time the new lease had not been finished and the Council had not arranged for any repairs. We do not know whether Mr X’s interest was as executor of a will or as a beneficiary as well.

Mr X complained to the Council that it had let Ms B take over the property without a lease or payment plan in place. He said the business had been let go into disrepair. Mr X says he is now having to go to avoidable effort to remove the new occupier so he could sell the property.

The Council replied to Mr X acknowledging that he was seeking legal advice about the council’s failures.

It also explained that as Mr Y was paying the full cost of his care, (either as a full cost charge or because he was well over the capital threshold, one cannot tell) it had taken the best interests decision as his Deputy to allow the premises to continue to be let. This was so that rental income could contribute towards his care costs.

On Mr Y’s death, the Council reimbursed Mr X with the balance of Mr Y’s estate.

What was found

The LGO stated that the legality of Mr Z’s tenancy and its transfer to Ms B was for the courts to decide. However, the investigator found that the Council sought the correct legal advice in regards to the lease, and based on that advice it found that Mr Z did have a continued right and obligations as a tenant.

There was no fault in how the Council made its decision in principle to transfer the lease to Ms B; it made a best interest decision about the lease, having regard to relevant information, its understanding of Mr Y’s previous wishes, and of his financial circumstances. Although Mr X disagreed with the decision, there was no fault in how the Council made it, in terms of the Mental Capacity Act.

However, the Council was at fault for failing to regularly check the property and make appropriate repairs. As Mr Y’s deputy for property, the Council only went inside the business twice during the three-year period of its deputyship. Any reasonable person would have done so more regularly. It did not promptly arrange repairs, and did not visit the property when Mr Z left (to check on its condition).

The LGO highlighted that these were important actions that should have been taken in order to protect Mr Y’s interests. They were actions any responsible person would have taken about their property. The Council’s failure to take these actions was fault.

The LGO said that the Council could have considered using a property manager to undertake tasks the Council considered it was unable to do.

Remedies

The LGO recommended that the Council pay Mr X £500 in recognition of the distress, time and trouble caused by the fault.

Points for the public, service users, hospital leavers, family and peer supporters, advocates, and councils etc

One cannot possibly discharge the fiduciary duties of a deputy in such a casual fashion. One is appointed on the basis that is fit and proper to be given the role, and one makes declarations about one’s approach the person’s property. The Council would have been aware that Mr Y held a property which was on lease to another party. It would have known that the arrangements required the Council to ensure that the property was maintained and at the very least inspected.

We can’t understand why the council thought that a factor for the MCA balance sheet was the risk of loss of rental income if the lease was not transferred, because Mr Z would have continued to be liable – as appears to have been the conclusion of all.

Logically, what should have happened was that the lease should have been assigned, and one needs the permission of the freehold owner to do that in most cases, but it cannot ever be unreasonably refused. That would have left Mr Z with the responsibility of sorting the assignment out in order to be personally free of the ongoing rental obligation. We wonder whether this permission was not given by the Council because of ignorance, or because of having to pay out of Mr Y’s assets for legal advice, but that makes no sense because they could have got advice from the council itself regarding that business tenancy.

We cannot tell from the report whether the gentleman was a self funder paying care charges directly, or a council placed person on a full cost charge based on his capital assets, and incapacity, which assets would have been depleted by having to sort out legal advice about the assignment; but it may be that there was a perception on the part of the council that he really needed to be able to keep on paying his care charges, in order to save the council from so doing; we simply cannot tell from the report.

What we can point out is that the Office of the Public Guardian (2015) sets out responsibilities for Councils in its Deputy Standards. These can be accessed here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/504368/SD6-Deputy-standards-public-authority-deputies.pdf

The Standards specifically recognise where a person may own a property they do not live in and at paragraph 1(d) advises Councils to ensure that the property is secured and maintained properly which would include keeping a record of regular inspection visits.

The Standards also refer officers to the need (at 3b (6)) to ‘Ensure that all decisions taken are free from any conflict of interest, be it personal or organisational.’

This Council clearly failed to follow this guidance and had to pay for the distress this caused Mr Y’s son. It needed to understand its role as more than just a decision-maker about finances, and recognise that if individuals own property then all the legal responsibilities sit with the Deputy including visits and maintenance. Councils often pay an outside agent for the actual day to day work involved in deputyship and appointeeship, so why this was not done we do not know. It may indicates a general dumbing down of local authority officers’ culture regarding these very important duties, in our view, which would be of grave concern.

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 Durham County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/other/19-008-136

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Cheshire West and Cheshire Council at fault for stopping direct payments without explanation and applying an arbitrary DRE disregard

Decision Date: 22/08/2019

What Happened

Mrs X complained on behalf of her daughter, Miss Y.

Miss Y had severe learning disabilities, and Mrs X was the appointee for Miss Y’s benefits. In September 2014, when she was 17, she moved into a 24 hour support living facility.

When she turned 18 (October 2014), the Council should have completed a financial assessment in preparation to move her over to adult services; however it failed to do so. At this time the Council did not have a functioning transition team, so children’s services were required to fund support for adults until the summer following their 19th birthday. In Miss Y’s case this was the summer of 2016.

Miss Y received funding from children’s services via direct payments (DPs) to help Miss Y access community activities and fund transport. The LGO identified that these were classed as a need from assessment records from children’s services, and from then also in subsequent adult care act assessments under ‘community activities’.

Mrs X told the LGO that the direct payments stopped when Miss Y moved to adult services (July 2016). As a result, Miss Y was left with no option but to fund the activities from her state benefits, and Mrs X contributed where necessary. Mrs X repeatedly asked the council why the DPs had stopped, but they never explained why.

The Council’s Adult Services told the LGO that the DPs were for horse riding lessons whilst Miss Y was living at home, and said it stopped them in 2016 because ‘At this time [Miss Y] was in receipt of welfare benefits – Employment support allowance and Personal Independence payment, “and funded activities through this income”’. It said “There is no guidance within adult social care as to what payments can be used for. As a local authority, this is something we are addressing through our disability board”. (it was unclear from the report if the Council was referring to the welfare benefits, or DPs)

The Council did not complete a financial assessment until September 2017. In recognition of this the Council waived all charges between 1 October 2014 to 7 April 2017 (the October date being the date from which they should have assessed her when she turned 18, but failed to do so).

The financial assessment highlighted that the Council applied a ‘standard’ allowance of £25 for Disability Related Expenditure (DRE), and her assessed contribution was £133.72 per week.

Subsequent financial assessments in 2018 and 2019 showed a £25 DRE disregard and Miss Y’s weekly contributions to be £119.67 and £124.57.

The Council told the LGO that it was because Mrs X did not provide information about additional DRE that it applied a standard allowance of £25 for DRE. Mrs X said that in 2016 she did not know that the cost of activities could be offset as DRE, but now that she was aware she could provide evidence of DRE. DRE should be considered within a financial assessment, but Mrs X highlighted that during the 2017 assessment, she was not asked about any DRE, and she did not receive a letter stating the outcome.

She began receiving invoices from the Council after the September 2017 financial assessment, which she refused to pay.

The Council said that Miss Y had accrued a substantial debt since April 2017; £113.72 a week until 2018; £119.67 a week until 2019; and £124.97 until 2020.

Mrs X complained that Miss Y could not afford the assessed contribution, and that paying this would significantly reduce her quality of life as she would be unable to participate in community activities, which were identified as an eligible need.

The Council acknowledged that activities such as horse-riding were “necessary due to her disabilities…”, and could likely be included as DRE. A needs assessment the Council started in February 2019 stated that “Making use of necessary facilities or services in the local community” were recorded as eligible needs, and noted that “[Mrs X] supports her daughter with involved activities in the week eg horse riding”. However it maintained that it needed further information from Mrs X.

What was found

Firstly, the Council’s failure to explain why they stopped DPs which funded activities assessed as an eligible need without notice was fault.

The Council told the LGO that the DP stopped because Miss Y transferred to adult services and it had no guidance on what the payments could be used for. The Care & Support Statutory Guidance 12.34 states, “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs”. In this case horse-riding and other activities met an identified eligible need. The LGO emphasised that there was no good reason for the Council stopping the payments. It acted contrary to the Care Act.

After the DPs stopped, the Council failed to include the cost of activities in a financial assessment completed in 2017. It allowed Miss Y an arbitrary DRE disregard of £25 per week because Mrs X did not provide information about additional DRE expenses. The LGO stated that the Council cannot expect citizens to understand the process. This was particularly relevant in this case, because Miss Y was new to adult services. Furthermore, the Council knew Miss Y attended community activities, so it did not need Mrs X to provide this information. The Council should have offset the costs as DRE, if the costs were not themselves IN the package/budget in the first place.

The LGO concluded that Councils should always consider individual circumstances and consider everything a person has to buy or pay for because of their disability. In this case it did not do so. This was fault.

The LGO recommended that the Council:

  • provide Mrs X with a written apology and pay her £250 for the time and trouble she went to bringing the complaint
  • develop a care plan for Miss Y setting out all her needs and how these will be met;
  • undertake a fresh financial assessment of Miss Y and consider all DRE in accordance with statutory guidance;
  • establish how much Miss Y spent funding any activities identified as an eligible need since 2016, and reimburse her in full for the effect that that would have had on its charges;
  • establish if, and how much, Mrs X has contributed towards Miss Y’s activities identified as an eligible need and reimburse her in full.
  • consider if other service users may be similarly affected, and take appropriate action;
  • ensure officers undertaking financial assessments and decision-makers act in accordance with statutory guidance.

Points for the public, service users, family and peer supporters, advocates, and councils etc

This Council’s systemic failures gave rise to this complaint. Without a Transitions Service, (whether staffed by adults’ or children’s services social workers) how any council can expect to discharge the difficult functions regarding ordinary residence for adults’ services, questions of mental capacity, once adult, questions about transition assessments which are a virtual statutory right under s58 Care Act, is beyond us.

The law and guidance require councils’ Children’s Services to continue to fund children’s services, if adult services is not ready to take over; not to start funding adult services!

Adult services then made an assumption that a need outlined in a children’s services assessment could and should be met by the person through their welfare benefits. This has long been outlawed by the LGO service. One can choose to but one does not have to. Non-care services such as leisure can be charged at full cost if in the package, regardless of the impact on the MIG, to incentivise one to do so, in which case it would almost always qualify as DRE. But one cannot be made to pay for one’s own needs out of one’s own money!

Stopping a Direct Payment without an explanation is clear breach of the Care Act. Changing the care plan without a proper review and revision process is a clear breach of the Care Act (section 27).

The Department of Health Statutory Guidance (12.68) sets out clearly what Councils should consider  in relation to the cessation of a direct payment:

12.68 ‘If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question’.

In Miss Y’s situation, to be able to continue to access the activities such as horse-riding that had been recognised in on-going assessment as meeting her needs, she was forced by the cessation of the direct payment to pay for her own activities. This will have impacted on the monies available to her for other aspects of her life. The Council had assessed her need and were responsible for meeting it unless or until s27 had been complied with. The purpose of the financial assessment process would have established what contribution if any Miss Y was required to make towards the cost of her care services.

The financial assessment process also failed to ask about any Disability Related Expenditure (DRE) incurred by Miss Y in meeting her needs. The Department of Health Statutory Guidance paragraph 39 further sets out that:

‘Where disability-related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority’.

The Council failed to ask about DRE (a wheeze that we see a lot of at CASCAIDr) and on completing its financial assessment applied an arbitrary figure of £25 based on the fact that no DRE information had been provided. The Council had expected Miss Y and her mother to know that DRE even existed! We would not be surprised if the LGO had gone the other way on that point because someone’s appointee owes a duty to keep themselves informed in order to manage benefits, but we are happy that the LGO thinks it unreasonable.

DRE can include a lot of aspects of a person’s care and support and there are no specific rules as to what definitely is or is not DRE but the Statutory Guidance prompts Councils at paragraph 40 with a long list of considerations, which includes day care which is not being arranged by the Council.

Since Miss Y’s direct payments had ceased, her expenditure on day activities (albeit wrongly happening) ought to have been taken into account as it was, at that time, not being funded by the Council.

The LGSCO has demonstrated here how it can require Councils to pay out in restitution for expenditure a person has incurred, from the saving of which the Council thought it had gained a benefit. The Council was responsible at that time for meeting the assessed needs, therefore should not have required Miss Y to fund this herself and acted in line with its responsibilities to meet assessed needs under the Care Act 2014. We heartily approve of the LGO extending that principle to monies spent by the parent from her own money. In the good old days, before even Fairer Charging policy, it was regarded that money extended to an incapacitated adult by a parent was not a gift, but a loan which required to be reimbursed – a principle for which the Mental Capacity Act now makes statutory provision in s7 and 8(2).

7 Payment for necessary goods and services

(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.

(2) “Necessary” means suitable to a person’s condition in life and to his actual requirements at the time when the goods or services are supplied.

8(2) If the expenditure is borne for P by D, it is lawful for D—

(a) to reimburse himself out of money in P’s possession, or

(b) to be otherwise indemnified by P.

We think that many Councils have whittled away at that approach, by lumping all such expenditure under the heading of “assets and strengths”!

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 Cheshire West and Cheshire Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-010-441
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Overview of common LGSCO complaints areas

Transitions

Transition is about the transfer of a child from children’s services to adults’ social care services when or around the time they turn 18. The two types of service are governed by different statutes (laws) and even the health service treats children’s health and mental health services differently to the way in which adults’ continuing health care and adult psychiatric care is rationed.

The LGO has investigated many instances of delay and apparent lack of grasp on the part of transition social workers as to what they are supposed to be doing at this point, or the way in which adults’ services, in their own councils, actually work. 

Many of the reports in this section involve delay in transfer and remaining on children’s packages (ironically often more generously funded) for a very long time for no good reason, plain lack of transfer to other agencies’ adult services such as Adults’ NHS continuing health care and a tendency to fall back on parent carers for want of appropriate provision presenting itself, some of which issues, we think will be price related, as opposed to existence related.

Restitution (reimbursement) of what others have spent on the young person’s needs, or the value of work done other than informally, in default, can sometimes be reclaimed in these situations.   

In some cases, a move of the parent from one area to another, or the need for the child to be differently accommodated, to how they were when they were in foster care or a children’s specialist facility, leads to ordinary residence / responsible NHS  commissioner disputes as well – and these are complex because there are always at least two different statutes butting up against each other here – often more, when you factor in Acts governing education which can go on to 25, and health care provision. 

When transitioning between Children’s and Adults services, the Care Act 2014 places a duty on Local Authorities to conduct transition assessments for children, children’s carers and young carers where there is a likely need for care and support after the child in question turns 18, and a transition assessment would be of ‘significant benefit’.

There should be no gap in services – children’s services continue, in legal terms, unless or until adults’ services are ready to take over, in terms of a person’s legal rights. Para 16.68 of the Care and Support Guidance says, if adult care and support is not in place on a young person’s 18th birthday, and they have been receiving children’s services (and should be receiving adult services), a council must continue providing the existing services until the adult services are in place, so there is no gap in provision.

Supported Living

“Supported living” is not a service that is listed as something that a council can even try to provide: it can procure care and support and accommodation, but when engaged in stimulating the market for supported living, councils largely procure the care and support element, merely to go into the accommodation where the person is living, usually under a tenancy.

It is often commissioned on a different basis to home care, (by the week and a generalised set of outcomes, as opposed to by the minute or by the task) so as to ensure that the person has access to support, for a number of background hours, all the time, from at least one person (shared care). It is a legal mystery that has never been gone into, in any decided case, as to HOW a person is ever assessed as needing a fraction of a person’s support for certain hours of the day, given that there is no such thing as a fraction of a person, or a need that might not pop up at night, and a person cannot be made to share their personal budget without agreement (see s25). It’s an example of how a given market of providers and a given purchasing sector of commissioners manage to support each other to ignore the Care Act in the interests of making or saving money.

Councils are not obliged to FIND a person’s housing, as a social service, in the main, and in fact are prohibited when a local Housing Authority owes a duty, unless exceptionally the specialist nature of the housing and the fact that it is provided and not tenanted is regarded as the only way in which the person’s needs can or will be met. Since the vast majority of not merely destitute but eligible people’s needs for shelter as opposed to care could be met in a care home, as opposed to ordinary housing, and most other people’s needs for shelter can be met by their being supported to enter into a tenancy paid for by housing benefit, there are very few people owed a duty of formal provision of ordinary housing as part and parcel of social services. Therefore, going into a tenancy that the client has been signposted to, along with other people who are already living there, is ultimately a choice, and what is not ever made clear to the clients and the families hoping for a forever home for their loved ones, is the basis on which other rights (to a proper care package, for instance) will be compromised if one says yes.

The LGO does not venture into criticising the way in which the market works in this field but has begun to point out that people MAY WELL qualify for the provision of housing, and not be able properly to be persuaded into taking up tenancies with individual rental payment obligations – particularly in the field of s117 aftercare.

Furthermore, it is not possible for a council to make a person go into any tenancy without the person’s own agreement or the agreement of a lawfully authorised person (unless the council takes on deputyship and acts in ways that are genuinely thought (defensibly and procedurally correctly) to be in the best interests of the person).

The LGO tends to focus on delay in coming clean about the primacy of the Housing Act through which people can be expected to find housing, in the majority of cases, and on inadequate support having been assessed for, in the interim before housing is secured, or withIN supported living housing projects.

Transport

Transport may be required in order to make a care plan’s contents even feasibly accessible. On the other hand, broader transport functions can be owed to a person via education duties, district council powers, tourism functions, children’s services and adults’ prevention and reduction services.

Transport is often seen as a way in which relatives can or even should contribute, by doing the driving, themselves; often regardless of the principle that they have to be willing and not just able!

Finally, the charging regulations treats transport as a non-care service, and allow councils to charge full cost for them, if included in a person’s care plan or budget, and to do so even if that charge takes the person below their minimum income guarantee, thereby complicatedly incentivising a person to spend their own money (usually their mobility component, which would otherwise be invisible!). So it’s a fraught topic for service users, families, advocates and the LGO!

We can see a trend in these reports of Councils being reluctant to provide transport these days at all, unless it’s obviously an exceptional circumstance. It is easy to challenge a decision as a fetter of discretion or an error of law, or irrational, if it renders the care plan incapable of fulfilment. The law states that Local Authorities are required to make transport arrangements they consider “necessary”, rather than exceptional. 

The reports often consider the facilitation of the attendance of young adults at institutions where the local authority has secured the provision of education for the adult concerned. When a council finds it is ‘necessary’ to provide transport for the young adult, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).

If you have access to a Motability vehicle, there is no legal obligation for you to use it, or your family member to use it to convey you to services; but you can expect not to be able to claim DRE for other travel expenses, if that is your or your family’s decision, at least not unless you can show that your expenses exceed your mobility component and the Guidance supports this approach.

One’s keeping a vehicle for no obvious reason or purpose may be reported to the DWP on the basis of non-use, but we know of no examples of that actually happening, as yet.

SEN/EHCPS

Education, Health and Care Plans (EHCPs) are legal documents that describe a child or young person’s combined special educational, health and social care needs. These replace the old SEN statements. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs of a health and social care nature, so that that there is no cliff edge, as such, at the age of 18.

The Ombudsman can investigate a complaint that a council has failed to appropriately address a child’s (SEN). This includes delay in assessing a child and issuing an Education Health and Care Plan (EHCP) and failing to implement an EHCP or carry out an annual review.

The Ombudsman will not investigate a complaint when the issues it raises can be dealt with through an appeal to the First Tier Tribunal (Special Educational Needs and Disability) (SEND). From September 2014 the Special Educational Needs and Disability Regulations 2014 and the Special Educational Needs and Disability 0-25 Code of Practice 2014 came into force.  These introduced new rules for personal budgets, and a requirement for greater involvement of children and young people over the age of 16 in decision making about their provision. They also included the ‘Local Offer’ which requires councils to provide advice and information about the SEN provision in their area. The Ombudsman can look at complaints about all of these elements.

If a child has an EHCP, the council has to work with the school to ensure the child gets the provision set out the plan. The Ombudsman can look at the school’s role in delivering the provision and how the council ensured the school provided the support as set out in the EHCP. If you complain the council is failing to arrange and maintain the specified provision, the LGO can look at this, but can only make findings about the council, not the school.

If the Ombudsman finds fault in how the council has addressed a child’s special educational needs it will consider the effect on the parent and the child. It may suggest a remedy ranging from an apology through to a financial remedy to make up for what the child has missed out on. 

Safeguarding/Harm/DoLS

Councils’ safeguarding duties under the Care Act, apply to an adult who has needs for care and support (whether or not the local authority is meeting any of those needs); is experiencing, or at risk of, abuse or neglect; and as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

Safeguarding is a responsibility, without it being a duty to ensure that nobody is ever harmed by themselves or others; the essence of it is probing, gently, and in a person centred way, to see if all is well, as if one was doing an assessment of need, and sometimes even though one is not being permitted to intervene by the person who is vulnerable and of concern. So it is a function that runs parallel to assessment and care planning, and which sometimes has to be discharged separately.

A council in receipt of a safeguarding referral can’t just ignore it; and neither they come to conclusions without taking the views of the person affected, into account. Councils’ staff need to explain what they’re worried about, and to do that, someone has to go out and engage, to see if the statutory threshold for even initiating any formal enquiry is even arguably met.

There is no threshold of significant harm any longer: a s42 investigation can be a few minutes’ conversation or a full-blown and formal investigation. The only threshold is being a person with care and support needs which make the person unable to protect themselves and being thought to be someone who may be at risk of abuse or neglect – those words themselves, abuse and neglect, being important parameters for consideration. Not all harm signifies ‘neglect’, whereas a pattern of it may well do so; not all negligence is neglect either. And not all upset and aggravation between people connotes ‘abuse’.

Few LGO reports provide compensation for mental or physical HARM, whether or not related to safeguarding or other Care Act complaints – focusing instead on time and trouble, and on distress and inconvenience; however sometimes where the inadequate social work or commissioning has led to harm, the LGO considers it necessary to reflect that fact in an award. This generally happens when a person did not receive the services that were intended to provide for the meeting of need, or, if they received those services, then so badly or so late that obvious avoidable harm resulted.

A deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements” (P v Cheshire West and Chester Council and another and P and Q v Surrey County Council). Once there is, or is likely to be, a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005 or a community DoL order from the High Court, by consent or otherwise. There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.

The LGO has recently started awarding compensation for poor delivery of the DoLS safeguards, especially where the council has misread the ADASS prioritisation guidance.

Restitution

Financial redress is sometimes recommended by the LGO when a person has suffered harm – as compensation for maladministration, rather than damages – when the implementation of a decision about a care plan response has been bad or delayed.

Generally speaking, however, poor social work decision making prior to implementation does not sound in damages, for public policy reasons.

But just recently, a remedy which is well known in the context of CHC status (NHS repayment of self funders’ fees for periods of care when the CCG should have been paying) has emerged as a remedy within the Care Act context too. It’s called Restitution.

The concept of Restitution is based on unjust enrichment on the part of the council in not having had to spend the money that the law required it to allocate. (see CP v NE Lincs, 2019, Court of Appeal, on this site).

These cases generally involve people who have been left without care, or paying privately for care that they should have been receiving from the Council and yet haven’t been getting that, because of some indefensible bit of illegality regarding process or substantive thinking, by the council, over a long period of time – not mere late or non-delivery AFTER a plan has been signed off.

Where an incapacitated person incurs a liability to someone else, even if that person lacks capacity to have agreed to pay for the substitute service needed in the meantime, THAT debt has to be seen as the measure of the reimbursement.

It can also arise in cases where the Council was at fault for removing care, setting arbitrary limits to funding, and delays, amongst other things. 

Provider Fault

When a Council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. A Care Home can be well within its rights to terminate a contract, but only in a way consistent with the terms of that contract. All providers to publicly funded clientele in the social care world owe human rights, directly, to the customers, under the Care Act (as do providers to CCGs for continuing NHS health care, but not under the Care Act; simply through the NHS Act, as delegates of the NHS’s own provision functions).

If the person spends their own money, or has a council funded direct payment instead of a care package of services, the system is that they’re contracting privately with a provider, and are responsible for sorting out their own issues with less than expected standards of service. But in either case they can go to the Ombudsman about a complaint, if it is not properly dealt with to a person’s satisfaction.

Generally, if the care is council commissioned, the council is primarily liable for sorting out complaints of inadequacy, after one has raised them with the provider, informally; if the council doesn’t do a good job there, one can take it further to the Ombudsman later.

Reports make it clear that issues are not always just the fault of the provider. The LGO has found the Council at fault in cases concerning providers who provide inadequate care, where often the care does not match up with the care outlined in a person’s care plan but nobody spots that; or the plan doesn’t match the assessment in the first place; or where the care provider terminates a person’s contract without sufficient notice but the council does nothing about that; or where providers fail to provide an adequate response to concerns or complaints and the council does nothing about that either; or the provider fails to investigate safeguarding concerns sufficiently and the council does nothing about that, despite being responsible for a proper s42 enquiry; or they charge incorrectly, raising issues surrounding contracts between service users and providers, and who is whose customer, at the relevant point in time.

The LGO has been seen to refer care homes to the CQC, recommend compensation in cases that involve harm/potential harm, and often provides recommendations for Councils and providers to improve their practice.

Power of Attorney

When someone makes (grants) a power of attorney, they act with capacity to appoint someone else to act on their behalf within a particular scope of tasks and decision.  A power of attorney gives the attorney the legal authority to deal with third parties such as the local council, and share information related to tasks within the person’s grant of authority. Some types of power of attorney also give the attorney the legal power to make a decision on behalf of someone else such as where they should be taken to live or whether they should see a doctor or accept medication (health and welfare).

When someone has an attorney or deputy managing their finances, that person is the commissioner, the purchaser, the contractor for the care being delivered – unless the attorney has triggered the needy person’s rights under the Care Act to have their needs met, in which case the attorney or deputy is just paying the charges rendered by the council – and then the council is once again the commissioner.

A power of attorney about health and welfare can give someone authority to deal with and refuse consent to things like one’s day-to-day care, your healthcare treatment etc. But it is not a power to demand things that the individual themselves would not be able to enforce.

Once a person has lost their mental capacity, it’s no longer possible to grant a power of attorney; a deputy must be appointed by the Court of Protection.

In relation to both types of decision-making, it is possible to apply to the Court of Protection for a decision to be made on a particular matter, by the Court, or if there is a continuing need they can appoint a deputy instead. So for instance, a tenancy CAN be signed by the attorney for finance, but whether it should or not in light of the overall assets available to the person might be a matter that comes before a Court; the court can order that a document can be signed by an authorised named person, giving substitute consent for the person lacking in capacity. But a deputy is usually needed to continue to ensure that the other tenants’ obligations beyond rent payment, are abided by (for instance, repairing damaged fixtures).

Councils don’t take on powers of attorney for members of the public. They will take on the role of appointee, if they think it’s necessary and not inappropriate, and councils’ officers such as Heads of Service or Client Affairs can be appointed as a deputy (as we see in one of the reports). The LGO highlights that good administration and practice is expected, citing OPG guidance but does not give a view on obvious conflicts of interest arising over charges or failure to checklist for CHC.

Not at fault

Councils are normally found not to be at fault if the LGO finds that the Council demonstrated it considered all the information sufficiently, stuck to its own policies and procedures, and did so in line with what is generally believed to be the current state of the law regarding its statutory duty.

If a decision is so irrational as to have been able to have emerged ONLY through a flawed approach, then even if there is no fault in the process, the LGO will often find fault simply based on the absence of any coherent reasoning. Likewise if an outcome turns on a decision as to the meaning of a word in legislation that is clearly contrary to existing case law on that wording, the LGO will often find that it was not open to the council to reach that opposite conclusion.

The LGO has to decide that there is fault in the way the assessment was carried out, rather than the outcome of the assessment or care planning or review process. Sometimes the Council offers to carry out another assessment; if a Council shows willingness to consider the impact its decisions have had on family members and the affected person, the LGO may be satisfied with the Council’s approach in such cases. These cases highlight that the LGO does not often interfere with day to day decisions so long as the correct procedures are followed.

It should be quite easy to be found not at fault by just being reasonably well informed about the legal framework and following statutory guidance; but it is common that even that is beyond councils, these days.

Mental Health Act

Under the terms of the MHA, a patient who has a mental disorder that is putting themselves or others at a risk of harm, and refuses treatment, may be detained for treatment if certain conditions are met. The majority of our LGO reports refer to s117 aftercare under the MHA, which is a FREE service for those whose liberty has been removed from them under the Act, for aftercare, when they leave hospital. You are entitled to s117 aftercare if you were detained under certain sections of the MHA (reports here refer to s3 detentions in the main). Section 117 aftercare services continue until such time as the NHS body and social services authority both decide a person no longer requires the services by way of aftercare (we think that this means for the purpose set forth in the statute, the avoidance of compulsory re-admission to hospital) and (according to the MHA code of guidance but not to the courts, or the LGO and PHSO, who are more flexible) hold a discharge meeting to which the person and their carer/family member is invited.

A lack of a s117 assessment process at the point of discharge from hospital is always fault, if a person is entitled – the person needs to be assessed and it needs to be explained why they need nothing, if that is the professional view. Outpatient appointments with the CMHT ARE a form of s117 aftercare, and they should not be regarded as just to be stood in line for; there’s a separate duty to ensure provision.

The bulk of these reports refer to failings in regards to s117 funding for accommodation.

Accommodation can generally only be part of section 117 aftercare if:

  • the need is for enhanced specialised accommodation (“accommodation plus”); [accommodation of an overall nature required in order to make the care services feasibly able to achieve the statutory purpose]
  • the “accommodation plus” reduces the risk of the person’s mental condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder. [ie the statutory purpose of aftercare now]
  • When accommodation is part of a person’s section 117 aftercare, it must be free to the person. 

Recent 2019/2020 reports say that Councils and NHS organisations should not advise people to claim benefits such as Housing Benefit to pay for accommodation that is part of their section 117 aftercare.

Housing

Councils’ Housing Authorities must provide free advisory services, assess an applicant’s case and agree a personalised housing plan, make inquiries, take reasonable steps to prevent homelessness, provide interim accommodation and take reasonable steps to secure accommodation (under their prevention and relief duties) and then secure ongoing accommodation (under the main housing duty to people who are homeless). The Localism Act 2011 gave power to local authorities the power to end the main housing duty by arranging an offer of suitable accommodation in the private rented sector.

The Homelessness Code of Guidance for Local Authorities provides statutory guidance on how to interpret and apply the homelessness legislation and contains details of good practice that local authorities should adopt. It is not legally binding but local authorities are required to have regard to it. Failure to have regard to the current Code can be used as a basis for an LGO complaint or judicial review challenge.

Where a local authority is satisfied that an applicant is homeless and eligible, it must take reasonable steps to help the applicant secure that accommodation becomes available for at least six months.

After the relief duty has ended, a council must then secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need.

From the complaints reports we can see the LGO gives weight to the fact that, especially after discharge from hospital, careful consideration should be given to applicants with a mental illness or learning disability who may have a particular need to remain in a specific area, for example to maintain links with health service professionals and/or a reliance on existing informal support networks and community links.

Where a local authority feels that an applicant is refusing to co-operate and that the refusal is ‘deliberate and unreasonable’, it can follow a specific procedure for notifying the applicant. Councils can be seen wrongly to have cancelled interim housing, due to missed or cancelled appointments.

Reports highlight that Councils need to do more than verbally warn a person before ending their duty, they need to clearly tell someone in writing the consequence of not attending appointments.

Hospital discharge

Hospital discharge is now governed by legislation in the Care Act – Schedule 3 and a set of regulations called the Care and Support (Discharge of Hospital Patients) Regulations 2014.  Covid-19 led the government to issue two versions of a new approach to hospital discharge however, March and August 2020.

No NHS professional is in a position to determine whether it is safe for a person to go home unless they know all the circumstances – including a firm idea of the actual budget that the council’s panel or other decision maker has approved of spending, for meeting the assessed needs of the specific person, and what is there waiting for them at home or in the bank account that might affect the shortfall between informally provided care, and social services’ arrangements.

The vast majority of findings of fault in this regard arise from Councils failing to carry out assessments. This may be after a patient is discharged, or maybe before discharge, resulting in a prolonged stay in hospital. This area of maladministration shows how hopeless it is to expect two different organisations with different agendas to integrate or even work in partnership together.

Hospital registrars and clinicians often maintain that someone is not ‘safe’ to go home, but without any idea of what is or is not waiting for them at home, what the environment is like, in terms of risk, or the lowest practicable amount of care that would need to be made available if the council were to do a lawful, rational, transparent, professional assessment of what was needed. Instead, very often, council staff on the hospital discharge team will simply say “We only do three visits a day” or “You can only have £575 a week, because that’s the cost of residential care” regardless of the ability or willingness of a family network to reduce the cost differential if the relative were to be cared for at home, regardless of the Mental Capacity Act, the wishes and feelings of the person in question, and regardless of the duty to promote well-being, specifically including emotional and psychological wellbeing etc. The LGO will focus on those failings, and sometimes refer to them as breaches of the law, or otherwise as fault.

Eligibility findings

One is not eligible, ever, for a service, one is eligible for HELP, and the response to the eligible need is for the care planner to decide about, using their professional competence, and subject to judicial review challenges on the usual grounds.

Eligibility is determined under a set of regulations which provide for three hurdles: the derivation of the difficulties, the number and range of domains of inability to achieve, as defined, and the additional question of impact on wellbeing caused by the difficulties.

The duty to meet eligible needs flows from a finding of eligibility that is subject only to modification

  • if one is not ordinarily resident, in the area, (in which case it becomes a power)
  • one is capacitatedly declining a service, really only after a finalised care plan has been shared
  • or one is over the capital threshold, in need of a care home, not incapacitated, and not having anyone else willing to make the arrangements
  • having informal care ably and willingly available.

The LGO prefers to not to stray onto the sphere of the assessor’s expertise, and continues to consider whether the process in deciding eligibility was reasonable, rather than the findings themselves. Councils are not likely to be found at fault for failing to find people eligible, if the Council followed the proper process.

However, if assessments indicate no change in needs, but the Council removes aspects of support, the LGO is more likely to come to a conclusion that Council acted contrary to guidance on interpreting the eligibility criteria, or the law, and find fault. It is possible for reductions or suspensions of care to happen lawfully, but not easily – it all turns on the reasons. A change in the price for care, or a change in the means for delivering care, would be other reasons a plan could be cut.

On a revision that extends backwards to the point of reconsidering someone’s ability to achieve as defined, a new eligibility decision is required by s13.

The LGO tends to uphold councils’ findings that a person is ineligible in cases where a person has refused to co-operate, or otherwise been unwilling to satisfy a council asking reasonable questions or making reasonable points, in the assessment, about the person’s actual inability to achieve. The test is person-centred and subjectively LED, but the council is the decision maker from an objective assessment on the application of the unable to achieve test – subject always of course to addressing the material offered up by the person claiming to be unable, properly in public law terms.

Failings to assess, reassess, review

This section of complaints covers a wide range of issues.

Reports highlight that people with complex needs are often discharged from hospital without assessment by social services, and that this is rarely from choice.

There are major problems with transition – a transition assessment is required to be undertaken as part of one of the statutory reviews of the EHC plan (Department of Health Statutory Guidance 16.11), unless there’s a very good reason why not.

People’s and Carers’ assessments are a statutory duty under the Care Act – triggered only by the appearance of needs for something or other by way of response, that’s in the nature of looking after a person – doing something for someone that they cannot do themselves.

The LGO highlights that it is not only the law but good practice to involve the person and their family in the assessment process.  The LGO is more likely to find fault if the Council has not even attempted to involve or inform the person or has overlooked rights to be involved or consulted, in the Care Act or the Mental Capacity Act.

With regard to revisions to plans, and especially where support is being reduced or removed or suspended, the LGO considers whether the Council properly re-assessed a person, in terms of what the impact would be of a reduced or differently constituted package of inputs.

A person should be reassessed/reviewed every year (6 months if on direct payments, because the financial probity issue is greater, there). The LGO affords Councils some leeway, but generally states that over a year is an unreasonably long time between reviews, and may be considered as fault. The LGO considers the facts of the case and whether the delay in initial assessment or review was ‘reasonable and acceptable’ because the public law test is how long has it been in light of all relevant circumstances. Failure properly to assess a person does have an impact, in that people may be left with insufficient support, for an indefensible amount of time, and their informal carers unreasonably put upon.

Section 27 of the Care Act makes review, and revision, where it is considered necessary, a statutorily underpinned process, with definite steps and due process rights attached to it. It provides for review from time to time, or as per a schedule, or on the basis of any reasonable request by or on behalf of a service user. A change in circumstances is the trigger to an unscheduled review, and to a proportionate re-assessment if a review has revealed changes perceived to affect the plan. The law is that when a Council claims to have identified a change in someone’s needs, it should be able to articulate on the basis of identified material what it thinks the change is.

Assessments are not assessments for services, but in terms of deficits, they are a good point to be considering the actual amount of support needed, ie how many hours of support, where and for what type. The LGO will only find fault, however, if the Council actually fails to meet the person’s needs at the stage of finalising the budget/care plan.

Disability Related Expenditure

Disability related expenditure is relevant to charging assessments whereby one’s own money, spent privately on things or services that are incurred (on account of one’s disabling illness or condition), and which are ‘needed’, (not merely in the sense of being accepted as ‘eligible’ needs under the Care Act, but things or services which are objectively definitely ‘needed’, and not merely indulged in or just wanted) – is deducted from one’s income count-up, so operating to reduce the remaining net income and thus the maximum charge for care that the council can make.

DRE is only taken off one’s other assessed income if one is in receipt of disability related benefits in the first place, and they are being counted in by the council’s discretionary charging policy in the first place (most do do this now). Some councils have flat rates of DRE which they will allow to be claimed, regardless of proof; amounts over and above that need to be established by reference to average household expenditure for non disabled people, and/or receipts, invoices, payments out, etc.

The LGO reports highlight that the Council’s DRE policy and the Care and Support Statutory Guidance both state that each person should be financially assessed on theirindividual needs and circumstances, because of the general principle of affordability underpinning charging.

There is no exhaustive list of items a council should or should not include as DRE. Councils are found at fault if they fetter their discretion by refusing to consider higher amounts than average spend by non disabled people, for DRE, based on an individual’s needs.

The LGO has noted that councils must take notice of cultural issues such as specific hair care for different ethnicities.

Disabled Facilities Grants

The reports focus on delays in the main, by the Council in making improvements to someone’s home using DFGs. After the making of the application according to local process, the local authority should respond, in writing, within six months of the application date. The local authority is required to provide notice in writing, approving or refusing the grant application as soon as reasonably practicable, and not later than six months after the date of the application. If an application for a disabled facilities grant is refused, the applicant is entitled to a written explanation from the local authority of the reasons why their application has been rejected and may consider challenging the authority’s decision by 

  • use of the local authority’s formal complaints mechanism
  • contacting the local authority’s monitoring officer or the Local Government Ombudsman in order to make a complaint
  • bringing judicial review proceedings.

Disabled Facilities Grants are mandatory after the Housing Authority considers reasonableness, practicability, necessity and appropriateness – and these days, there are other options such as discretionary smaller DFG and loans etc under the Regulatory Reform Order to enable councils often to say that one of these DFGs is not necessary.

The DFG system is now part of the Better Care Fund; a pooled budget seeking to integrate health, social care and, through the DFG, housing services.

Disabled Facilities GRANTS are just that: grants to the person who has applied for one in order to pay a builder for work. There’s a maximum amount and a means test which takes into account more money than the social services charging assessment would do. The DFG means test is based upon a mix of income and savings so that an assessed contribution is based on a combination of the two. The means test looks at your income and savings together with that of your spouse or partner, if you have one. Other members of the household aren’t included. The first £6,000 of household savings are exempted from the means test. 

The Local Authority can place a local land charge on the property for grants between £5k and £15k although these are at the discretion of each local authority. This means that if you move within 10 years, you may need to repay some of the grant.

The money is either to be used to fund a contract for works, which anyone can make and break, and take the consequences of that breach; or they are used by Housing Improvement Agencies.

Applicants are entitled to use their own contractors to quote for the work. You have to get at least 2 quotes for the work and the Council will only pay for the work once they are satisfied it is completed to an adequate standard. When using your own contractor, you are responsible as an employer for ensuring that they have the correct insurances in place. You can also do the work yourself but are only eligible to claim for the cost of materials.

The LGO emphasises that Councils must be satisfied that whatever works carried out, were sufficient. Normally complaints are also teamed with insufficient records or communication.

Councils’ Complaint Procedure

We only have one stand-out report in this category so far, but that is mainly because the only reason a matter goes to the LGO is that a person is dissatisfied with a council’s internal handling OF the complaint in the first place – so very many LGO reports at least touch on how Councils respond to complaints – normally slowly, or they do not respond to all aspects of a complaint. Councils should respond to all complaints, ‘in a timely manner’, and at the very least acknowledge the receipt of a complaint and tell you they are dealing with/considering the issues you have raised. You can make a complaint about the care/services you personally receive or have been affected by, if it’s someone else’s assessment or care plan or service that has fallen below expectations, or you can make a complaint on behalf of someone if they are unable to (due to mental/physical incapacity) or have asked you to.

Carers

Carers struggling with worsening conditions in loved ones and finding their situation very challenging but wanting to continue caring as long as they possibly can, are a common feature of Adult Social Services culture. These LGO reports highlight the key principle that when a council becomes aware that someone is caring for another adult and may have needs for support, it is under a duty to assess their needs, and review them as per the Guidance, ie at the very least, on an annual basis. It must consider the outcomes the carer wants to achieve, and look some way into the future, and how their needs might change in future. It must assess the carer in a timely manner, and, if it decides the carer has support needs, it must set out how it will meet those needs.

There are no cases on how one should assess the sufficiency of a budget for support, given that any carer can just respond to an inadequate one by stopping the care.

The LGO reports also flag up the assumptions made about carers’ willingness or ability to step up and just meet whatever needs the budget can’t cover, and that is unlawful, in the light of the relevance of the carer’s own position to the service user’s needs, in the first place, and the case law on the subject, which emphasises an objective view of a person’s ability to struggle on, even if they appear not unwilling to keep on trying (Ali Raja v Redbridge 2020).

Care Leavers

The law and government guidance set out councils’ legal duties to provide ongoing support for children leaving care. Councils have a responsibility to plan continuing support for all care leavers. This duty continues until they reach age 21. If the Council is helping them with education and training, that specific duty continues until age 25 or to the end of the agreed training. The report we have under this section concerns whether or not PhD studies were to be included on a pathway plan. The LGO considered that the Council should have helped with preparations and assess whether it should provide support beyond the complainant’s masters’ degree, as part of the Leaving Care responsibility.

Advocacy

These reports generally focus on where the Council has failed to appoint a person an advocate, or when they have failed to sufficiently involve a person’s advocate in it process.

Advocacy is there to help people who will struggle with engaging with Care Act processes, to be heard. The Care Act says that it is a duty when triggered, regardless of available resources (Haringey 2015) and must be provided in certain situations – and then provides for exceptions (where one has someone willing to do it informally and the person with substantial difficulties consents to that happening); and exceptions to that exception (for instance where the informal supporter, whilst not being inappropriate or unwilling, is in material disagreement with the council on an issue to do with the person needing the support.)

The Council must arrange an independent advocate to facilitate the involvement of the person in their assessment, in the preparation of their care and support plan and in the revision of their care if that person will have substantial difficulty in being fully involved in these processes and if there is no other appropriate individual available to support the person.

The Advocacy No. 2 regulations and guidance set out the role of the advocate and this includes assisting a person to challenge a process or decision by the Council where they are unable to challenge it without assistance, by way of an advocate’s report.

Direct Payments

The most prevalent issues arising from the virtual right to have one’s budget turned into a cash payment (direct payment) involve; the adequacy of the rate, the setting of arbitrary limits, delaying/incorrectly backdating payments, or delaying the approval of DPs and decisions about having one’s close relative in the same household actually getting paid for the work.

In terms of assessing the appropriateness of a Direct Payment and setting one up in a given situation, there are no set guidelines for how long this should take. The LGO considers it reasonable to expect services to complete a non-urgent application in 12 weeks.

As long as there are sufficient records and evidence, the LGO will sometimes be willing to go through exact care costs and time scales, and work out exactly how much of your DPs should be backdated and paid to you if the Council failed to do the calculation correctly in the first place.

The LGO reports emphasise that a Council cannot withdraw your DPs without a revision process, because the law is that any change to a care plan can only be done after compliance with s27 of the Care Act.

Delay

These reports touch on many areas: delays in care assessments, financial assessment, reviews, replying to complaints, implementing care, backdating payments, carers assessments… the list goes on. There are some extreme cases where people have been left un-assessed or unprovided for, for years. Delay arises because in public law terms, even mandatory duties are not immediately obliged to be discharged: they must all be discharged within a reasonable time, unless there is some other mandatory requirement in regulations, directions, policy guidance or Codes. The LGO will consider how reasonable or unreasonable/ how much injustice was caused by the delay. It considers how the delay impacts the persons wellbeing and outcomes, and whether it could have caused a person harm or merely distress and aggravation.

Charging

This section encompasses all issues surrounding councils’ charging policies: financial assessments, how a person’s contribution costs are calculated, valuation of assets, incorrectly charging someone care costs for things that have to be free, such as reablement, incorrectly backdating net payments of DPs, etc.

The LGO is willing to find a Council at fault, when its own local charging policy lacks clarity. Generally, care charges should be clearly explained to the person and their family/representative. They should also be given notice of upcoming charges in a timely manner, ie not receive an invoice out of the blue.

The LGO reports emphasise that a local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis but may vary according to individual circumstances, and it’s something that very few authorities do: they uprate a person’s income figures, according to benefits, but don’t seek to be told what the person has had to spend that year to survive. Thus people often have their real situations overlooked, which although a council does not have to allow for anyone’s debts or choices as to how to spend their money, does flaw any claim to be exercising discretion based on the facts of the individuals’ case, and does make a mockery of ‘affordability’ being the supposed bottom line.

Care plans and cuts

One of the largest categories in our collection of reports: a popular problem in the category is when a Council reduces a person’s care package without review or a revision process, or reduces it without justification and against the weight of the evidence on impact. The LGO always states that this is fault on the part of the council. It results in unmet needs, which causes injustice to the person.

Before anything in your care plan is changed, you must have some form of proportionate reassessment even if it is done alongside the review that identifies that something HAS changed.

Again, the LGO will highlight that it is the process followed during/after the assessment which will lead to a finding that the Council is at fault, rather than the outcome, necessarily. Poor communication between Councils and families will often lead to confusion and delay, resulting in needs being unmet, insufficient support, or financial burdens. Issues also arise when the person is not sufficiently involved in the assessment process. The LGO will usually recommend a subsequent assessment take place to clear up any ambiguities or shortcomings. Clarity is key. The LGO follows the law in this regard: the CP v NE Lincs case in 2018 held that the care plan must be transparent and robust, stating a personal budget pursuant to s26 that is rationally justifiable, and that the plan must clearly identify those parts of the eligible needs which the council believes the family or informal network or the person themselves is willing to shoulder.

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error

R (on the application of JG) v London Borough of Southwark

R (on the application of JG) v London Borough of Southwark

[2020] EWHC 1989 (Admin)

Case Background

JG is a profoundly disabled young woman who requires care and supervision with all aspects of her daily life

She was receiving care at home, by her parents and a team of paid carers funded by Southwark LBC.

Southwark had provided JG with care funding since 2013, by way of direct payments. She received funding for 58 hours of 1:1 support per week. In addition, her parents received fifteen hours of respite care a week, which they used to pay for further 1:1 support, making a total of 73 hours of 1:1 support per week (over 10 hours in every 24 hours).

Since December 2018 the Council had also been paying for a carer to stay overnight for 8 hours. This was originally made under an order for interim relief in earlier separate judicial review proceedings and since then had been continued on a ‘without prejudice basis’.

The Council now wanted to remove that 8 hours per night of funded provision.

JG was assessed in March 2020, by social worker Mr Choudry. The assessment concluded that she needed 2:1 care for two hours a day, but that otherwise 1:1 care was sufficient to meet her needs.

JG’s mother acting as her litigation friend applied for a judicial review of the March needs assessment, and also claimed that the Council failed to assess JG’s father and carer (CG).

The March 2020 Assessment

NG highlighted that, in her view, JG’s needs had increased after a hospital stay in late 2019, and that she needed more 2:1 care.

Mr Choudry oted that when JG was discharged from hospital, there were no recommendations to increase her care package, there was no OT report to indicate her needs had changed, and her recent behaviour support plan (Feb 2020) also gave no guidance as to whether JG required 2:1 or 1:1 support

Mr Choudry commented that NG was unable to state fully what the additional support would be for.

He said that NG was acting as a second carer to support her daughter, which in effect was providing 2:1 support, which was not an assessed need. and was choosing to act as the second carer.

Mr Choudry “felt that NG’s needs as a carer were overshadowing her daughter’s needs as she felt that JG needed additional support to manage her behaviour and she [was choosing to provide] this additional support as a means of managing her daughter’s challenging behaviour without regard to the recommendations of the recent behaviour support plan.”

Mr Choudry also pointed out that there had been “difficulties in arranging meetings with NG and real difficulties in obtaining objective information from her, regarding her daughter’s care and support needs”.

All four of JG’s carers suggested that she needed 2:1 support due to her challenging behaviour and non-compliance with her care at times.

Mr Choudry suggested training for her carers to help them manage her behaviour, and also pointed out that JG had been making progress with her independent living skills whilst attending college.

Mr Choudry concluded that JG would not ordinarily need 2:1 care, but due to the current un-adapted bathroom at home, she did. He said that the adaptation to the bathroom had been an ongoing recommendation but one where NG and CG had not agreed to the works until very recently.

He also concluded that her support was not being implemented in line with her behavioural support plan; for example, he noted that during personal care times the carer and her mother were in close proximity to JG, and that in one instance the carer held her arms and restricted her movements. This caused anxiety to JG, (which would need to be discussed at a best interests meeting as being a restriction and deprivation of her liberty). Mr Choudry suggested that JG’s anxieties could be reduced by some degree if she was involved in the task, for example giving her a flannel to hold. He stated that carers needed to understand her communication and work at her pace rather than being prescriptive during personal care times. He felt that “the care workers were not following any techniques from the behaviour support plan in order to manage the behaviour”.

Mr Choudry considered that this equated to care being done ‘to’, as opposed to being done with JG

NG also said that the claimant needed 2:1 support when out in the community. Southwark accepted that JG had the strength and ability to mobilise herself but required 1:1 care to help and support her. She took long walks each day, up to five hours, the support being funded by Southward. Mr Choudry had recommended that until JG’s mobility had been assessed the safest option would be for her to use an attendant-propelled wheelchair and be assisted by one carer.

Mr Choudry noted that JG had an erratic sleep pattern, but was ‘far from an insomniac’, and therefore recommended the removal of the night time carer, which cost the Council £50,000 a year. He suggested remote monitoring would be more beneficial. He also considered that if JG were living a supported living scheme she would be encouraged to go back to sleep and remain in her room.

He concluded that that the carers’ logs did not indicate that JG had a significant level of need that would warrant additional support which could not ‘reasonably’ be met by her parents who were willing carers.  

Held

Judge Allen said there were numerous challenges on grounds of rationality.

(1) Behavioural Support/Management

Judge Allen stated that there was sufficient evidence that JG’s behavioural plan was being followed, but that Mr Choudry did not examine the evidence sufficiently: “[Mr Choudry’s] conclusion that it was not being implemented was one which did not take full and sufficient account of the full range of the evidence before him. As a consequence, I consider that his report is materially flawed in this regard, going beyond simply disagreement to failure to take into account all evidence which a reasonable decision maker would take into account.”

2) Night time care

Judge Allen said “The essential issue here is the need to address the relevant evidence about the severity of the claimant’s sleep problems which…I do not consider has been done. Determining that this aspect of the assessment is unlawful does not entail the necessity of £50,000 per year funding having to be provided by the respondent in this regard. Any defects in the decision under challenge are open to being cured by a re-evaluation of the claimant’s needs on the basis of a full consideration of all the relevant evidence. It is entirely possible that a lawful assessment taking into account all the evidence would reach exactly the same conclusion as has been already reached. But the matter can clearly not be prejudged, and my task in this case is to consider the lawfulness or otherwise of the decision rather than the implications that may flow from it, in any event.

(3) Occupational Therapy Evidence

Judge Allen found that it was unlawful for Southwark not to have taken account of evidence of various professionals on JG’s need for a wheelchair when outside her home; “It does not appear to me that there was a sufficient evidential base for the decision maker to come to the conclusions he did with regard to the occupational therapy evidence, and accordingly this aspect of the decision is also, I find, materially flawed.

It was also irrational to decide JG was eligible for 2:1 care for two hours per day: “It is, as is argued, common ground that the claimant suffers from both urinary and faecal incontinence. She therefore requires showering not only at regular times in the morning but at unpredictable times in the day and night. As is argued, that need is not answered by a provision limited to two hours a day. Given the acceptance of the need in this regard, I agree that the limiting of this to two hours is irrational, and again this element of the decision is materially flawed.

Judge Allen concluded that

“Bringing all these matters together, I conclude that the claimant has made out ground 1 and identified elements of the assessment which are unlawful. This is not just a matter of disagreement. The legal test, as set out above, is a high one, and I have no doubt that Mr Choudry carried out a conscientious evaluation of the claimant’s circumstances. But there were, in my judgment, material pieces of evidence which he did not take into account in coming to the conclusions that he did and that the assessment is as a consequence unlawful.”

Carer’s Assessment

Judge Allen also found that Southwark Council had failed to complete a carer’s assessment for CG.

Judge Allen said: “The defendant argues first that CG is not a party. This point is, in my view, effectively answered by the argument that the purpose of the carer’s assessment is to assess among other things whether the carer is able and likely to continue to be able to provide care for the adult needing care and what support should be put in place to enable that to happen. Clearly, [CG] has a sufficient interest to pursue this point” – meaning that he could easily have been a proper party, and that a failure to assess him went to the heart of the matter of the extent of NG’s own needs, we think.

All in all, Judge Allen found aspects of the Council’s case to be so materially flawed as to require judicial review.

Commentary:

Reading between the lines, and taking into account the reference to the previous judicial review, we think that one can discern that there is a long standing dispute between this family and the council, and that the council thought that it could win this round. Family carers have to have evidence, just as much as a council’s staff are required to – it’s not always enough to say that ‘x always happens’, or ‘if we did x, then y would inevitably occur’.  When experts’ opinions are paid for in advance of a case, by families with a position to establish, it is inevitable that the experts take on board what the commissioning parents SAY; they do not owe a duty to a court at that point.

The judgment illustrates how difficult to ‘call’ such proceedings can be: the Oxfordshire (Davey) case went the other way (the council won that case) precisely because the social worker was thorough, moderate and conscientious in delivering an opinion that the family’s approach to care was not wholly ideal for the individual. Here, savings of £50K were at stake but Mr Choudry comes over as open and balanced – indeed, is described as conscientious, too – such that Southwark could, in another era, possibly have won this case. There is plenty of case law to the effect that social workers are to be given the benefit of the doubt given the role that they shoulder, in the system, and allowing for differences of professional opinion.

But that overlooks the fact that the courts will have been taking note of increasing lawlessness in Care Act decision-making: witness the upturn in LGSCO upheld complaints, for instance, and the number of those in which the council is simply said to have been acting outside the Care Act, or unlawfully, in light of clearly established principles. And then there has been the recent Redbridge case in which Fordham J came to one of the rarest ever conclusions in Care Act case law – namely that in relation to the exercise of the s19 POWER to meet needs, before an assessment, based on urgency, no reasonable authority could have conceivably concluded that there was any other way of meeting the needs in that case than the provision of 10 hours of paid care a night, to help the physically deteriorating mother cope with the needs of 2 adult sons. In both that case and this, the judges have focused on the sheer absence of engagement, by the staff concerned, with the evidence being put before them. The judges were not saying that the staff could not disagree, it should be noted – and nor need they explain every aspect of their reasoning – but that if they’re going to disagree, there must BE material on which it is objectively legitimate to rely in any such conclusion. That is to say, irrationality can be made out by focusing on the absence of any evidence that the body took account of a relevant considerations – that leaving out of the account makes for a decision that is unlawful in the public law sense, just as much as taking into account of irrelevant conclusions would, too.

https://www.bailii.org/ew/cases/EWHC/Admin/2020/1989.html

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I have been so empowered by that one meeting

“What would you suggest are the best options to continue learning from you and working with you?

I have been so empowered by that one meeting, I want to learn more and implement.”

KM

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What to say if your direct payment is not set up to cover the cost of PPE

To the duty worker for Direct Payments

My [relative/friend/partner] (who has confirmed that I am authorised to write in on [his/her] behalf) has a sizeable personal budget, from the council, based on assessed eligible needs for personal care and other services at home; it is paid as a direct payment and used to employ [one/two/three] PA[s], directly.

I am aware that in order to comply with the Care and Support Guidance, and be sufficient in public law terms, so as to be a lawful payment, the budget ought to cover the legal obligations of an employer. We cannot expect the PA[s] to pay for the PPE on the wages paid; that would not be reasonable on the part of any employer.

We have done the recommended risk assessment; the nature of the care provided has made us sure that we should be supplying (as a matter of legal obligation for the health and safety of both the PA[s] and the direct payment holder) proper PPE. [Name of the person] is not in the clinically vulnerable category but funding for PPE no longer turns on being in that group.

PPE for personal care was not ‘normally required’ before Covid, and my [relative/friend/partner]’s personal budget was not calculated to cover this cost.

We need to spend £x [put the amount in] a week to provide for the recommended reasonable level of care: single use disposable gloves, single use disposable plastic aprons, multi episode fluid-repellent face masks and surgical masks for non-direct contact input.

We think that the council should be increasing the size of the budget to cover the PPE or be supplying it to the employer, from what we can tell from the Guidance and national practice forums.  

Updated guidance for anyone with a direct payment dated 10 July 2020 says this:

“The government consider all PAs to be key workers, meaning they are eligible for provisions such as care for their children at local schools and PPE.

If your PA does not live in the same accommodation as you, there are a number of circumstances in which it is recommended that they wear more PPE than normal. These situations are described below in the section on wearing the right PPE and apply even if you do not have COVID-19 symptoms. If your PA has a clinical need for PPE as outlined in those situations, they are eligible to receive this.

If you or your PA cannot get PPE in this way, your direct payment is not set up to fund PPE, or different/additional PPE needed during the COVID-19 pandemic cannot be funded through your existing direct payment, you should contact your LA or CCG that provides your direct payment. They will help you to get the PPE you need.

This guidance applies whether you have symptoms of COVID-19 or not.

These recommendations apply:

• whether the client you are providing personal care to has symptoms or not, and includes all clients, including those in the ‘extremely vulnerable’ group undergoing shielding and those diagnosed with COVID-19

• whenever you are within 2 metres of someone (client or household member) who is coughing, even if you are not providing direct care to them

• to all personal care, for example: assisting with getting in/out of bed, feeding, dressing, bathing, grooming, toileting, dressings etc. and or when unintended contact with clients is likely (e.g. when caring for clients with challenging behaviour)

• whatever your role in care (i.e. applies to all staff, care workers, cleaners etc.)

The guidance sets out that:

  • when providing personal care which requires a PA to be in direct contact with you (for example, touching) or when within 2 metres of anyone who is coughing, the PA should use disposable gloves, a disposable plastic apron and a fluid-repellent face mask. Eye protection may be needed if there’s a risk of droplets from the individual reaching the PA’s eyes (for example, caring for someone who is repeatedly coughing or who may be vomiting)
  • new disposable gloves and plastic aprons must be used for each individual episode of care (for example, washing, directly helping take medication etc), whether the person has symptoms or not. Surgical and fluid-repellent face masks can be worn continuously for multiple episodes of care, providing the PA does not touch or remove the face mask in between each action. Eye protection can also be used continuously, dependent on a risk assessment. See the conditions in which this should be undertaken
  • when the PA’s care and support does not need them to touch you, but they need to be within 2 metres, gloves and an apron are not needed but a surgical mask is. For example, when your PA is removing medicines from their packaging, or preparing food
  • if you or any members of your household are in the ‘extremely clinically vulnerable’ category and have received a letter to ‘shield’, as a minimum, your PA needs single-use disposable plastic aprons, surgical mask and gloves. A fluid-repellent face mask is needed instead of a surgical mask, if direct contact is required. See more details on who should be shielding

The new guidance says this:

Getting appropriate PPE is very important, and LAs and CCGs have overall responsibility to ensure that you get the PPE you need to stay safe and receive the care and support you need.

Your direct payment might already be set up for you to buy the PPE you need. If this is the case, and you can buy this locally, you should do this first.

If that is not possible, you should speak to your direct payment support organisation, who may be able to help you in getting the PPE you need locally.

If that is not possible, you should speak to your LA or CCG urgently, who will help you to get the PPE you need. You should do this in advance of any of your PPE stock running out so there is time for that PPE to be delivered to you.

If your direct payment is set up so you have the money and responsibility for getting it, but you cannot buy it locally, your LA or CCG will get this for you from a national line.

The government guidance says to contact the commissioner of your direct payment who can provide assistance – and it should be noted: “If you cannot get PPE in this way, or the direct payment is not set up to fund PPE, ask the local authority or CCG that provides the direct payment to help get the required PPE.

Please would you refer the matter to your line manager, and from there to the legal department, before coming back to me about this difficult matter. The benefit to the council of my [relative/friend/partner]’s taking the direct payment and employing a person directly, does mean, we are sure, that the direct payment must cover the full cost of meeting the employer’s obligations.

Etc etc”

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Calderdale Metropolitan Borough Council at fault for arbitrary top up policies, for instructing service users to enter into top up agreement contracts with care homes directly, for failing to identify a suitable care home and for failing to undertake a needs assessment

Decision date: 26/02/20

What happened

Ms Y is an elderly lady who was receiving care in the Elderly Mentally Infirm (EMI) section of a Council-funded care home (Care Home A, a residential care home). She went into hospital in 2019 where the NHS agreed to provide the Funded Nursing Care (FNC) element for a nursing home placement pending an assessment of her needs.

A social worker (Social Worker A) met with Ms X, Ms Y’s daughter, in March to discuss a move to a nursing home. Social Worker A advised that Ms Y would need a ‘dual registered care home’ in case her needs lessened, or her condition improved, despite the fact that Ms Y’s needs had not yet been assessed. Social Worker A claimed that at this point that she gave Ms X a copy of the Council’s booklet on residential charges. On the same day, Social Worker A made a referral to the Council’s care home support service, which said Care Home A had refused to take Ms Y back, perhaps because she now had FNC funding. The social worker expressed her opinion that Ms Y did not actually ‘need’ specialist EMI nursing but nothing came of that viewpoint.

Several care home options were provided to Ms Y, but she said that each was either too expensive or had refused to take her.

Social Worker A ultimately purported to undertake a ‘proportionate assessment’ of Ms Y’s needs which stated that 24 hour nursing care (not EMI nursing care) should be able to meet her needs as her EMI behaviours were not currently having too great an impact. There was no evidence that she set Ms Y a personal budget.

In the following days Social Worker A contacted Ms X who expressed concern that there were no suitable care homes that the family could afford to top up, for placing Ms Y in, under a council contract. Social Worker A told Ms X that the Council would not help with top up fees, despite failing to identify a suitable home within Ms Y’s personal budget. She instructed Ms X to arrange an admission assessment for Ms Y when the family eventually found a care home that they liked – whereas assessment must in fact be arranged by the council who is going to be buying the placement. This was Care Home B. There was no judgment made by the social worker that Care Home B was even suitable, however.

Ms Y began her placement at Care Home B on April 1st; it was a council placement with an NHS contribution of the FNC element, plus third party top up. However, neither she nor any of her family members had signed a contract for paying a top up, or any third party top up agreement with either the council or the home. The Council transferred her case to Social Worker B.

The NHS reassessed Ms Y as having no nursing needs in May and withdrew the FNC, leaving the family unable to afford the placement at Care Home B.

Ms X contacted Social Worker B the next day to express her desire to complain about the withdrawal of FNC to the Council and to the CCG. Ms X said that Social Worker B insisted she complain only to the CCG and initially refused to provide any email address where she could register a complaint, stating that her personal address was ‘not secure’. Four days later, Social Worker B contacted Ms X to say that the decision to withdraw FNC was final and to explain that the Council would find suitable accommodation if the family could no longer afford the fees.

Ms X complained to the Council and then to the LGSCO. The CCG decided to reinstate FNC 7 months later in December and to backdate the payments, (presumably as a result of a complaint.) The Council provided the Ombudsman with a top up agreement for Care Home B, in which a relative agreed to pay the top up directly to the home. It lacked several pieces of information that are fundamental in order to comply with the Care Act 2014 statutory guidance, namely:

  • The amount to be paid
  • The frequency of payments
  • The amount in Ms Y’s personal budget that was specified for the care together with the accommodation
  • Provisions for reviewing the arrangement

What was found

Ms Y was assessed by Social Worker A as needing 24 hour nursing care. However, a full and proper needs assessment was never completed and the ‘proportionate assessment’ failed to set out any nursing needs to underpin that conclusion. This suggests that she did not follow a proper decision-making process, and is fault.

Social Worker A also failed to ensure the suitability of Care Home B.

The Council could not provide evidence that it had considered the suitability of any of the care homes it had offered Ms Y or whether they could be paid for in full by her personal budget. Nor could it provide evidence that Care Home A had actually reassessed Ms Y or even formally refused to take her back. It never actually set a personal budget for Ms Y and therefore could not possibly consider it, when establishing a top up fee. Moreover, it failed to ensure that the family were fully informed about the fees or whether they would be able to meet them if FNC was withdrawn.

The Ombudsman noted that the Council’s booklet on residential charges was not in line with the guidance set out in the Care Act 2014. It says that the top up fee is relative to the Council’s ‘standard rate’ instead of the personal budget of the service user and tells people to contract directly with care homes regarding top up fees. This double fault may have led to injustice for many others.

Remedies

Calderdale Metropolitan Borough Council has agreed that it will, within one month:

  • Pay Ms X £300 for the distress it caused her
  • Refund the family the full amount that they paid in top up fees to Care Home B
  • Undertake a full and proper needs assessment for Ms Y and continue to pay all fees until this completed and it has found her a suitable care home within her budget
  • Ensure that the Council contracts directly with Care Home B in the future

And within 3 months it has agreed to train staff on the care planning process and amend its literature to ensure both are compliant with the Care Act 2014 statutory guidance

Points for the public, councils, attorneys, advocates, charging and finance teams and commissioners.

It’s been the law for the last 20 years, at least, that top up commitments cannot be put into a direct contract with a care home. We cannot understand how after 5 years of the Care Act, ANY council can still be referring to the standard rate, and still be making the relatives go out and choose from homes that are more expensive than the budget that is being imposed on the person.

All we can say is that this is the law:

When a person needs to go to a care home, they will be offered a personal budget relative to their needs. IF they need nursing care, the rate will be higher for the placement than if they just need residential care. The FNC element is not part of anyone’s personal budget. It is a direct NHS contribution to the overall cost of a placement in a care home with nursing onsite.

The personal budget cannot be arbitrary – and it cannot be arbitrarily low, in relation to the actual cost to the council of sourcing adequate numbers of adequately suitable placements for the anticipated throughput of local applicants for Care Act support. It should not automatically default to the cheapest rate secured for any old care home with a space in it, or to any other arbitrary figure.

The budget has to relate to the assessed needs and the market cost, locally, of meeting those needs, suitably and appropriately.

The Care Act gives people a right of Choice of Accommodation of this nature – and that means that a person can go out of area if they want to, and the budget set will have to take account of the likely costs in that area.

The right turns about suitability, availability, a willing provider, and the COST. If the COST is more than the personal budget, once that has been set lawfully, then the person has to source a top up to assert their choice of preferred accommodation, and this must be written up clearly and in accordance with relevant regulations.

There might be many care homes that are OPEN and with vacancies which are not able to be regarded suitable to the person’s particular needs; the care manager is the decision maker about excluding those from the selection process, even if they are ‘wanted’.

There may be others that are suitable and appropriate but where the price of admission is more expensive, than the person’s personal budget, on account of luxury within the environment being more than is needed, as such, but inseverable from the concept of what does have to be bought by the council (things like wallpaper, fittings, environment, meal quality etc). The home needs to be able to explain why their price is on account of wants and not just meeting the needs being commissioned for.

One can only access those levels of care hone if there is a means to pay the shortfall without using the person’s own money between the lower and higher thresholds – usually a relative or third party’s willingness to pay that extra bit.

There will also be homes that are wanted, and suitable and appropriate but which have no vacancy or are run by providers who simply don’t want to do business with the council, because of its other terms and conditions or commissioners’ policies. One cannot choose to go into a home where there is no vacancy, and no willing provider to the council, however much one likes it.

The council making the placement must contract to pay for the entire amount of the placement, and CAN, if both the care home and the person paying the top up are willing, agree that the home should be paid directly simply for convenience (not legal liability). So, the council pays the shortfall then, and the person pays their charges to the home, if it’s been agreed, and the top up source pays the top up to the home. But the council is and MUST be liable for the whole amount directly to the care home.

The family are not decision-makers as to suitability or whether they themselves constitute an acceptable source of a top up: at most they are best interests consultees, if the client awaiting a placement lacks capacity. The council is the decision-maker, as with all publicly funded care packages. But public law says that councils must take account of all relevant considerations, including emotional and psychological wellbeing of the person, and the suitability of any accommodation that they are currently in, or in which they are proposed for placement.

That is an unavoidable part of a Care Act process and not one that can be done by what is called, disingenuously, a ‘proportionate assessment’ when what is really being recorded amounts to little more than a litmus paper screening test for ‘which patients needs a nursing/residential care home?’

In any hospital discharge situation, even if CHC decision making has been deferred until someone stabilises, or suspended altogether because of Covid-19 and the need for even more rapid discharge and freeing up of beds, an NHS nursing needs assessment is a critically important part of a proper decision making process about the rights and obligations of the patient to ongoing NHS input of some or all of the fees.

Qualifying for FNC doesn’t mean that ONLY a nursing home could possibly meet the needs, but it is a relevant consideration.

If no accommodation is available within the personal budget the council must arrange care in a more expensive setting and adjust the budget to ensure that needs are met. In such circumstances, the council must not ask for the payment of a ‘top-up’ fee.

Statutory guidance says the Council must ensure at least one care option is available that is affordable within a person’s personal budget. It means one suitable adequate appropriate option, to be lawful, in fact. Not Falling Villas, where nobody would put their worst enemy.

If the number of care homes in an area charging top ups for care home admission for council clients with a particular profile of need/categorisation, is more than about 30%, the likelihood is that the amount being paid for care packages in framework agreements by the commissioners is insufficient to enable care homes to stay in business; and in that situation, both the homes and the councils concerned are using top ups as a collusive bridge to sort out the problem that the government doesn’t give councils enough money to discharge their Care Act duties, by getting the relatives of those living in the area to pay for a part of the package that is clearly on account of eligible assessed needs, and not conceivably for mere wants.

Challenge in that sort of a situation was clearly contemplated by the cunning draftspersons behind the Choice Regulations: there is a ready-made piece of face-saving regulation that specifically allows a council to negotiate a smaller top up than was first thought necessary, so that it need never be successfully judicially reviewed for arbitrarily low personal budgets or inadequate regard to the true cost of care in the local market, when framing new procurement exercises.

If one is the resident not able to exercise one’s choice, because of the massive size of the top up, for the particular home wanted, and one manages to get oneself represented on legal aid for the purposes of a judicial review challenge to the size of that top-up, and the arbitrarily low fee being paid for the care you have been assessed as needing, one can often find that the funding will be pulled from under one, by virtue of settlement outside the door of the court, with an increased offer of a personal budget, made under this regulation:

Regulation 5(6) of the 2014 of the Care and Support and After-care (Choice of Accommodation) Regulations:

(6) For the purposes of this regulation the additional cost that is to be met by the payer may be less than the full amount of the additional cost referred to in section 30(3) of the Act, if the local authority agrees that a lesser amount should be paid.

In this case, the recommended remedy for repayment of the full amount of the top-ups paid is a form of restitution required for breach of the Care Act, in terms of returning Ms Y and her family to the financial position they would have been in, had the law been followed properly. That is why councils cannot afford NOT to follow the Care Act, if they wish to retain the trust and confidence of providers and clients alike.

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 on the actions of Calderdale Metropolitan Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-009-079

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Ali Raja & Anor, R (on the application of) v London Borough of Redbridge (Rev 1) [2020] EWHC 1456 (Admin) (05 June 2020)

What Happened

This case involved two adult men (A and B), aged 25 and 32, with severe physical and learning disabilities who lived with their mother (X).

A and B had extensive night time care needs. They needed to be repositioned numerous times to avoid pressure damage, and it was assessed in a 2017 care plan that X could “reasonably be expected to reposition her disabled sons at night-time, single-handedly”, despite X having her own health issues. She was not unwilling at the time, it should be noted, or dissenting from this view.

In July 2019 they sought urgent interim night time care as their mother’s health had declined and she said she could no longer cope with caring for her two sons without support. This was repeatedly declined.

The High Court granted interim relief (10 hours per day funded night time care) on the 12th of December 2019, and again confirmed this in January 2020 when the deputy judge continued interim relief and granted permission for judicial review.

The Law

The judge referred to an important case by way of background, for the uninitiated – R (GS) v Camden LBC [2016] EWHC 1762 (Admin) [2017] PTSR 140 at paragraph 19:

“The way the Care Act works is as follows:

Where it appears to a local authority that an adult may have need for care and support a care ‘needs assessment’ must be carried out by the local authority under section 9.

Having carried out that assessment, the local authority must go on to consider whether the assessed person has any eligible needs under section 13 and the Eligibility Regulations.

If the person assessed has eligible needs, the local authority is under a duty to provide support by section 18.

If the assessed needs are not eligible needs than the local authority has power under section 19 to meet those needs.”

Mr Justice Fordham added:

“Section 19(3) empowers the local authority to “meet an adult’s needs for care and support which appear to it to be urgent… without having yet

(a) carried out a needs assessment or a financial assessment, or

(b) made a[n eligibility] determination under section 13(1).”

Section 24(1)(a) requires a local authority, when acting under sections 18 or 19(1) to “prepare a care and support plan or a support plan for the adult concerned”.

Under section 25(1), the plan must specify the assessed eligible needs which the local authority is going to meet and the way in which it is going to meet them.

Section 27 provides for [existing] plans to be reviewed and revised, including a duty of re-assessment and re-determination in materially changed circumstances, and specifies how the local authority is to approach review and revision.”

The Statutory Guidance states that ‘urgent’ must take its everyday meaning, and “where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual’s care and support needs… Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow.”

Councils using a Three Conversations approach may need to consider whether their response to Conversations One and Two actually complies with this Guidance, it is suggested, in light of this case.

Rolling’ Judicial Review

This case is an example of a ‘rolling’ judicial review where some issues get resolved en route to court but there is something remaining still to be sorted out.

R (XY) v Secretary of State for the Home Department [2018] EWCA Civ 2604 [2019] 1 WLR 1297  discussed “rolling reviews” and concluded: “there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as ‘rolling’ or ‘evolving’, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties”.

Mr Justice Fordham stated

“This case called for, and illustrates the appropriateness of, the procedural flexibility which the Courts have described. The design of the claim was permissible, sensible and has been vindicated. The parties were able to focus on the substance, and so was the Court.

The central features of the case as brought were: a continuing statutory function regarding the meeting of needs; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response or not, such that if it was, the refusal was unreasonable in a public law sense.

The discipline came from being able to see clearly the basis on which the claimant says that the defendant is unlawfully failing to comply with a public law duty to act reasonably; and the basis on which the defendant says that its refusal is reasonable.

This approach could take in its stride the reality on the ground, that the parties would continue to communicate about the disputed issue between them.

There was no unfairness or prejudice. There was no problem of inadmissibility or irrelevance of fresh evidence. There was no need for the claim to be re-pleaded. The interests of both parties were protected, as the story of the case unfolded.”

Sole Justifiable Response

The central question which arose in this case… was whether an urgent night-time care need had arisen, because the mother could no longer reasonably be expected to do this, with the sole justifiable response being the urgent interim care provision to allow for night-time carers, pending a full reassessment of needs.”

“The grounds for judicial review put the ‘sole justifiable response’ point as follows:

(a) There is an urgent need for interim care because the claimants are known to require 24-hour care and [the mother] is no longer able to provide it at night;

(b) The only justifiable care to meet this need is funding for 10 hours’ night-time care per day …”

“that immediate funded night-time care is the sole justifiable response to meet their urgent needs”.

The defendant council argued that an interim injunction requiring night time care under section 19(3) was the wrong power to cite as the power in question:

“section 19(3) is only applicable before an initial statutory needs assessment has been conducted: “section 19 is without any application in this case”, since the claimants “seek … a reassessment and not an initial assessment of their needs”.

Secondly, where there have been prior assessments, and where there is a pre-existing care and support plan, the applicable statutory function to address any necessary additional action is “a review under section 27”; and “[u]ntil that review has been completed, the obligation on the Defendant is to meet the claimants’ needs as already assessed“.

Thirdly, in the context of a review under section 27, “if there was an obvious case for intervention, such as an emergency, or an easy adjustment to make… interim arrangements could be made”. This explains the passage in the Guidance at paragraph 13.34, referring to “interim packages to urgently meet needs while the plan is revised”. Such urgent interim action would “need to be provided under section 27, and in particular section 27(4)” [not under section 19….]

The defendant council actually suggested that since the claimants had, throughout, nailed their colours to the mast of section 19(3), the claim must fail for identifying the wrong power. “That is so, even if the defendant is acting unreasonably in failing to provide urgent interim care provision.”

Mr Justice Fordham disagreed with this view (unsurprisingly in our view);

“The fact that there is an existing care and support plan, to which the section 27 function of review and revision is applicable, does not exclude any application of section 19(3).

As the Guidance emphasises (paragraphs 13.8 and 13.27), the section 27 review and revision functions can engage the conduct of a further assessment under section 9(1).

The point can straightforwardly be tested by taking section 27(4). It provides as follows: “Where a local authority is satisfied that circumstances have changed in a way that affect care and support plan or support plan, the authority must – (a) to the extent it thinks appropriate, carry out and needs or carer’s assessment, carry out financial assessment and make a determination under section 13(1), and (b) revised care and support panel support plan accordingly.”

The “needs… Assessment” referred to in section 27(4)(a) would be a section 9(1) “needs assessment” (we are not sure the judge is 100% right about that, because s27 very carefully avoids referring a council back to s9, which would have been the obvious thing to do: it refers to a proportionate reassessment that is possibly a process out there all on its own, as is the care planning equivalent after a revision, but we do not think that it matters in the context of this case).

In the period of time before that section 9(1) needs assessment has been “carried out”, it would be a “needs assessment” which has not “yet” been carried out.

If section 9(1) applies, why not section 19(3)? On the natural and ordinary meaning of the words, section 19(3) would straightforwardly apply to that situation. This is a benign and protective interpretation. It means, simply, that the local authority has the discretionary power to meet care and support needs “which appear to it to be urgent”. It is especially important, given that Parliament referred to revision of the plan as being a step taken after the carrying out of the relevant (4)(a) assessments. That is a very strong indication that urgent needs, pending assessment, would be met not by urgent revision of the plans but by (3) urgent meeting of needs by way of provision of care and support.

It follows, from an examination of section 27(4) alone, that section 19(3) is not in principle restricted to the initial contact stage, and the position prior to the carrying out of a first “needs assessment”. It is to be noted that in section 19(3), Parliament spoke of the local authority as not “having yet – (a) carried out a needs assessment…”; it did not say “having yet – (a) carried out any needs assessment”.

The defendant had agreed from August 2019 onwards to carry out a full reassessment of the claimants’ needs for care and support. That full reassessment would constitute “a needs assessment” for the purposes of section 9(1).

In Mr Justice Fordham’s view, the previous judges’ granting of interim care, were orders relating to the taking of steps which the defendant had the legal power to take, pursuant to section 19(3). 

He stated that the defendants did also have the power to take urgent action pursuant to section 27, which empowers the local authority to revise a care and support plan.

“An urgent revision to a care plan could be made, and that could have been done in the present case. That could, moreover, be especially important if there is a situation where there is something temporary and urgent but where everyone agrees that there is no question of carrying out a further section 9(1) assessment.

In a case where there is to be a section 9(1) further assessment, the local authority has two overlapping powers. They operate in accordance with the ordinary and natural meaning of the words chosen by Parliament, to enable a local authority to respond to urgent needs. This approach is supported by paragraph 13.34 of the Guidance which contemplates that urgent care provision may be implemented not just through an urgently revised plan, but also “to urgently meet needs while the plan is revised.”

Mr Justice Fordham went on to identify three key themes in the defendant’s refusal to grant interim relief;

  1. “The defendant’s ‘inability’ to make any change without a reassessment of needs.

The defendants stated they were “not able to make changes to [the claimants]’ care support plans without completing a reassessment of their needs”. It described a needs assessment as being “required before we instil any change in the care package, urgent or otherwise”.

This language “was an unfortunate overstatement of the position.”

“The statute entrusted the defendant with a discretionary power to act without having completed a reassessment. It did so, even on what emerged as the defendant’s analysis of section 27. A discretionary power, together with repeated requests that it be exercised, required the defendant to address whether to exercise it. Instead, the language of the refusals ruled it out. In concrete human terms, the central question was whether the mother could reasonably be expected to continue to undertake the care provision of repositioning her sons at night, single-handedly? If the local authority was reasonably satisfied that she could, then it could justify refusing to provide urgent interim care. If, on the other hand, the local authority was reasonably satisfied that she could not, then I cannot see how it could in those circumstances justify refusing the urgent interim care provision. In the latter scenario, it would be “able” to make the provision, and the needs assessment would not be “required” before it did so. It needed to ask and answer the question.”

  1. “The defendants had a ‘health and safety’ concern about whether carers could be expected to reposition the claimants without appropriate equipment having first been installed.

The defendant said: “the local authority cannot send staff to undertake night-time care without the proper equipment in place” and “there are health and safety issues that the local authority required to consider[] before sending its staff, if any”.

“There can be no doubt that the defendant was reasonably entitled to be concerned about, and wish to evaluate, equipment and health and safety. However, that could not of itself be a complete answer to whether there was or was not an urgent need, justifying immediate interim action, notwithstanding that the health and safety assessment had not yet taken place.”

  1. “Whether the claimants’ solicitors had provided proper evidence to support the urgent need that they were describing as calling for urgent interim care provision.”

The defendants had argued that the evidence supplied by the occupational therapist did not stipulate that 24 hour care was ‘required’ or ‘urgent’. It stated in both the recommendations only that:

‘[the service users] would benefit from 24-hour care and support as his home environment. He has complex manual handling needs and care needs to justify this level of provision’.

Mr Justice Fordham stated that “In my judgment, the expert reports put forward could not reasonably be regarded as failing to “stipulate” that the additional night-time care and support was “required”, or “urgent”. The key reason given in legal services’ letter focused on the use of the language “would benefit from …” However, a full and fair reading of the reports show that they went far beyond recommending a course as being beneficial or optimal. In his careful and detailed reasons for the grant of interim relief on 12 December 2019, the judge Sam Grodzinski QC said this:

“a need for night-time care is clearly supported by the OT reports, and by what [the mother] states (supported by medical evidence [in] the bundle) about her physical inability to carry on providing such care at night time. The defendant’s… letter takes issue with whether the care needs are urgent, and notes that the OT report states that ‘[the claimant] would benefit from 24-hour care and support in his home environment’ (my emphasis). However, I do not interpret that sentence as implying that such care is regarded by Ms Hillier as an optional or aspirational benefit, rather than an immediate need in particular when the reports are read as a whole.

Mr Justice Fordham stated “I entirely agree with that assessment and cannot improve on it… In my judgment, for these reasons…the defendant was not acting reasonably – in the light of the experts’ reports put forward in October 2019 – in refusing to exercise its discretionary power to provide urgent night-time care and support. Nothing in the documents provides reasonable support for any conclusion that the mother could reasonably be expected to reposition the sons at night, single-handedly. Indeed, I have been able to find no evidence that the defendant – and certainly anyone with decision-making responsibility – asked itself that question and, if they did, as to how they answered that question. It follows that I do not accept Ms Rowlands’ submission that there was no unlawfulness as at the date when proceedings were commenced.

The mother’s continuing support

The defendants argued that that night time care was not urgent, because documents served on 23 April 2020 showed that X continued to reposition her sons herself at night-time, even with two carers in the house. X described herself as “always present at night, and “offers additional support”, stating that “she often sleeps next to [the second claimant], in order to offer him night time support”, “Before we had overnight carers, I would be solely responsible for providing any support, apart from during periods of respite. However, I still choose to assist the workers when they provide physical support.”

The defendant argued that this supported their view that X could meet their night time needs.

However, X explained to the court, using evidence from her GP, why she could no longer be expected to cope or really cope with the physical demands.

“I need surgery to relieve pressure on the spinal nerve which gives me quite a lot of pain when bending. Proposed surgery has a recovery period of 6 weeks, but without support I would have to continue my caring duties without a break. In my present condition I am unable to walk except for short distances indoors at home and not at all outdoors. I am in pain when I stand and can only do so for short periods. I have had a further MRI scan which shows a degenerative problem in my spine which is unlikely to be fixed by surgery. I also have the problem with my right shoulder which are reported to my GP and 2018, and pain to my knees and neck which I’ve been told is due to degeneration and I think the prognosis is not good. In addition, I have high blood pressure. Caring for the claimants is extremely physically demanding. The most physically demanding part is turning them at night, and as I explained in my first statement, I cannot physically do it anymore.”

Mr Justice Fordham highlighted that “the Court was shown no document which addressed the question whether the mother can reasonably be expected to reposition her sons at night, single-handedly, and concluded that she could.”

Conclusions

“The sole justifiable response was the continuation of the urgent interim care provision requested by the claimants, which became the subject of the interim relief orders of the court, which orders have now fallen away. I am satisfied that section 19(3) is a statutory discretionary power which was relevant and applicable in the present case. I am satisfied that the defendant could not justify as reasonable its refusal to act.”

“Until the documents disclosed on 23 April 2020, nobody grappled with the central, straightforward question in this case. Was the mother reasonably to be expected to reposition the claimants during the night-time, single-handedly?”

“The claim for judicial review succeeds. In all the circumstances, I will grant the remedy sought. I will convert into a final mandatory order the order made by way of interim relief by Mr Grodzinski QC on 12 December 2019 and continued by Mr Roger ter Haar QC on 15 January 2020. I have a discretion as to whether to order a remedy. I am satisfied that it is appropriate in this case to do so. The fact that the order embodies what I was told at the hearing is now a decision of the defendant is something which can be recorded in an appropriate recital. I regard as healthy the congruence between what I am ordering under my secondary, supervisory jurisdiction based on public law principles of review, and the position to which the defendant as primary decision-maker dealing with the merits has come in the end. Moreover, the story and circumstances of this case, including the fact that there was no decision letter communicating the new decision, reinforces my view that what is needed, in the current circumstances, is clarity.

What the defendant ultimately decides, once the various steps identified have been carried out, will be a matter for the defendant as the primary decision-maker under the statute. It goes without saying, but perhaps in the circumstances it is worth recording, that that ultimate decision will be the one which the defendant conscientiously considers to be correct, on the merits. In public law terms, it will need to be one which is justifiable as reasonably open to the defendant, on the evidence before it, for the reasons it identifies.”

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“CASCAIDr have provided me with invaluable support in constructing and articulating a case for consideration by Social Services in a council which for a considerable period of years have not followed the law as laid down in the Care Act or used established protocols and procedures necessary to ensure that my son’s Care Assessment, Support Plan and Budget were appropriately aligned and consistently applied. This situation has resulted in the family needing to devote a significant amount of resource, time and effort in an attempt to resolve the dilemmas it produced. The stress and anxiety created has had a direct impact on family members’ health and welfare. CASCAIDr’s support in re-establishing a relationship with the Council has been invaluable in providing the opportunity to resolve this impasse and move forward onto a more constructive footing”

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