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” 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 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.
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.
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.
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.
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.
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 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.
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 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).
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.
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.
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.
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.
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.