Archive for Local Government Ombudsmen’s Reports – Page 2

Worcestershire County Council at fault for failing to properly explain the charging and net direct payment process, failing to monitor a direct payment account, and failing to engage consistently with a person’s financial representative

Decision Date: 17th November 2020

What Happened

Mrs Y complained on behalf of her adult son, Mr X. 

Mr X was a man with Autism, previous mental health needs and communication difficulties.  His only income came from benefits. Mr X had been assessed by the Council as having eligible needs under the Care Act 2014. It was agreed his needs would be met via direct payments (DP). 

The LGO was told by the council that the direct payments were set up by a “Community Psychiatric Nurse under a previous working arrangement.”

All communication regarding Mr X’s care and finances went via Mrs Y. She was “the service user’s financial representative” and was listed as his appointee in October 2018. 

After a financial assessment was completed in October 2018, Mr X received a DP of £240 every four weeks to help promote his independence with daily living tasks.

The level of support Mr X required each week varied, so money could accrue in the account. 

Mrs Y stated that the Council paid £3430 into Mr X’s DP account before the October 2018 financial assessment without informing her. She only became aware of the deposit when she asked for account statements after the Council asked for payment of backdated contributions.

The October 2018 assessment concluded that Mr X should contribute £59.93 for his care each week, and informed Mrs Y of the outcome in a letter. 

Mrs Y said the letter was unclear about how much contribution was due, and said she expected to receive a bill later for the amount. 

Mr X received a letter and invoice from the Council for £2345 in backdated client contribution charges nine months later, in June 2019. The letter stated that if the debt was not settled the Council may take legal action. 

Mrs Y firstly complained that the Council should not have contacted Mr X directly, as it caused him much distress. She also disputed the amount, and broke down the care hours and cost Mr X received in a letter to the Council, and concluded that the contribution amount should be £1599. 

From discussions with the LGO, it became clear that Mrs Y thought that Mr X only paid a contribution for the support he used, rather than the whole direct payment paid. It was clear that the Council had failed to explain properly the DP process, which led to her not understanding the process properly. The council’s monitoring of the account had also been poor. 

Mrs Y sent numerous emails to the Council attempting to clear up the situation, but even after a senior member of the financial team told her they would investigate the situation further, she never heard anything back. 

On 7 July 2019, the Council paid £2160 into Mr X’s direct payment account without explanation. Mrs Y received no response when she queried the deposit with the Council. 

The Council removed the funds without explanation. 

Mrs Y formally complained on 31st July 2019, and the Council did not reply. 

Mrs Y complained again in November (specific issues raised were not set out in the report), and the Council replied to parts of her complaint. 

In February 2020, the Council wrote to Mr X directly again. It told him that the balance of DPs he could hold in his account was being reduced from 8 weeks to 6, and that the Council could reclaim anything over that amount. 

Mrs Y says that she was only informed on March 5th of this change. She was also told that the DP account was changed to a deposit only account and as a result she couldn’t access the account to settle any outstanding bills. 

Mrs Y remained unhappy, and eventually complained to the LGO.  

What was found

The LGO stated that although the Council said that the DP was a prior arrangement set up by a community psychiatric nurse, that arrangement no longer existed. Regardless, the Council remained responsible for the actions of whoever it contracted out direct payment support services to. Therefore, the fault lay with the Council.

The LGO stated that the DP process was not sufficiently explained. This was fault. There was evidence of confusion throughout, the information the Council gave was unclear, therefore  the LGO considered Mrs Y’s confusion understandable. 

The Council paid money into Mr X’s account without informing Mrs Y in October 2018, so a large sum gathered in the account. This was fault. The Council did the same again in July 2019 and failed to respond to Mrs Y’s queries. This added to Mrs Y’s confusion. 

The Council on numerous occasions contacted Mr X directly, despite being aware that Mrs Y was his financial representative and all communication should be through her. This was fault. The LGO said it was fortunate that Mrs Y was able to manage the situation to prevent significant distress to Mr X. 

Mrs Y refuted the amount of client contributions and contacted the Council about this. The Council failed to respond with a clear explanation. This was fault. 

Mr X’s client contribution increased from 30 May 2020 to £63.59 per week, and this exceeded the sum of the direct payment. As a result, the net direct payment to make up the budget was zero and has now ended.

The LGO recommended that the Council should:

  • Apologise to Mrs Y
  • Review Mr X’s support plan
  • if Mr X had missed out on eligible needs support,  offer additional support/appropriate activities
  • discuss the option of future direct payments or commissioned services with Mrs Y
  • pay Mrs Y £250 for her time and trouble pursuing the complaint
  • ensure direct payment recipients are provided with an adequate explanation of the process and ensure there is suitable arrangements in place to monitor.

Points to note for councils, professionals, people using services, carers and advocacy services

This complaint highlights the impact of poor information, poor communication and a lack of regard for the need to explain processes that may be unknown to those using services and/or their carers. 

The council needed to ensure from the outset that it gave information about direct payments. The Care and Support statutory guidance outlines the following at paragraphs 12.7 and 12.8:

12.7 The availability of direct payments should be included in the universal information service that all local authorities are required to provide. This should set out:

  • what direct payments are
  • how to request one including the use of nominated and authorised persons to manage the payment
  • explanation of the direct payment agreement and how the local authority will monitor the use of the direct payment
  • the responsibilities involved in managing a direct payment and being an employer;
  • making arrangements with social care providers
  • signposting to local organisations (such as user-led organisations and micro-enterprises) and the local authority’s own internal support, who offer support to direct payment holders, and information on local providers
  • case studies and evidence on how direct payments can be used locally to innovatively meet needs

12.8 This will allow people to be fully aware what direct payments are and whether they are something that are of interest. In addition to this general information, authorities must also explain to people what needs could be met by direct payments during the care and support planning process.

In this complaint, it is not surprising that Mrs Y became confused. The process was set up by a health professional, presumably with delegated authority to do so but the council remained responsible for ensuring that the person understood the process – and should have ensured that any delegate knew what they were doing.

It’s common that people think that they only need to pay if they use the care week by week, but that is not how the charging framework is seen by councils. They work the sums out over a year, and do not promise to keep the ratio of charge to care cost consistent.   

Had the council checked that the process was being properly managed it would have become aware much sooner that a problem existed. It could have certainly addressed the confusion Mrs Y had about the amount that Mr Y needed to contribute. 

The council had also needed to inform Mrs Y of the payment it would make. It responded to a complaint by removing the money without further explanation. 

The Care Act 2014 is very clear about the importance of communicating with the person’s representative, anyone named or anyone interested in the welfare of a person lacking in capacity, regarding their care and support planning. It was documented that Mrs Y supported Mr X with his finances and due to the lack of regard for this by the council she was required to manage the distress experienced by Mr Y when the council wrote to him directly. 

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 Worcestershire County Council’s actions can be found here

Durham Council at fault for failing to offer appropriate remedy after an officer made inappropriate comments

Decision Date: 24th November 2020

What Happened

Mr X complained on behalf of his grandmother, Mrs Y, who lived at home with him. 

Mrs Y received direct payments from the Council, and also contributed personally to her care. 

In May 2020 Mr X asked the Council to consider telephone and internet costs as disability related expenditure (DRE). He said that Mrs Y’s landline was essential for her telecare alarm system and allowed her to manage her online banking and shopping. 

The Council responded a month later stating “There is no evidence that the landline / mobile phone or internet are specifically required due to [Mrs Y’s] disability, and these appear to be for everyday usage, the same as the general population”.

Attached to this email (presumably mistakenly), were all the other email communication between officers discussing Mr X’s previous DRE requests. These emails contained personal comments about Mr X and his mental health. 

Mr X was extremely distressed by the emails and complained to the Council. He said that he believed that the officers’ comments were discriminatory, exacerbated his mental health issues and had unduly influenced the DRE decision. Finally, he said that the officers’ comments amounted to a breach of the Data Protection Act.

The Council responded to Mr X and stated that:

  • the DRE request had been reviewed by a manager who concluded that the correct process had been followed and that the decision was correct.
  • there was no evidence to suggest the request had been treated less favourably because of the comments made about Mr X’s mental health.
  • The comments made by officers had “…no place in the Council’s consideration of matters linked to your grandmother”, that the comments were unprofessional and unwarranted, and that “..officers had failed to comply with their duties in processing your personal data resulting in a breach of data protection legislation”.
  • apologised to Mr X saying she “unreservedly and unequivocally apologised on behalf of the Council for the actions of officers in making unprofessional and unwarranted comments” and said the matter would be dealt with accordingly by a senior officer.
  • refused Mr X’s request for financial compensation for the data breach saying, there had been no monetary loss on his part.

Mr X remained unhappy and complained to the LGO. 

What was found

The LGO stated that the Council has some discretion about what it considers as DRE. At the time of installation, Mrs Y’s support plan did not identify a need for the equipment, it was installed at her request. However, subsequent reviews found the telecare service to be an eligible need, so the Council allowed the cost of the alarm to be considered as DRE. However, because the landline was in place before the alarm system, the landline cost was not included as DRE. The LGO stated that as the Council considered the DRE request in accordance with the guidance, there was no fault in its decision

The LGO stated that although the officers’ comments in the email string were inexcusable, and led Mr X to believe he was being discriminated against, this was not actually the case. The comments did not influence the decision on DREs. 

The LGO stated that although the Council apologised for its officer’s comments, it refused to offer monetary payment. The LGO recommended that the Council offer a symbolic payment to acknowledge the impact its officers’ actions had had on Mr X of £300. 

Points to note for councils, professionals, people who use services and their carers, advocacy groups and members of the public

The LGO did not find fault with the way in which the land-line was considered as part of the Disability-related expenditure request for an income disregard. Councils do have discretion and in our view this is applied in variable ways by councils but here is what the Care and Support Statutory guidance says about this at paragraphs 40 and 41:

In assessing disability-related expenditure, local authorities should include the following. However, it should also be noted that the list in the Guidance is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included.

41) The care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support. For example, above average heating costs should be considered. 

What this does not help people with very much at all is a scenario where a person has an existing financial commitment, i.e. a land-line that underpins and is essential to enable the technology-enabled care. It appears to focus on new costs or costs over and above the costs that non-disabled people incur in order to have a landline in the first place. There isn’t any culture of allowing a percentage of an ordinary level expenditure because of the fact that it helps manage disability related needs. We don’t think that the law is that this person could terminate their landline and then have a new one and claim the whole of that as DRE. 

Oddly, the LGSCO makes reference to the following definition and imputes it to the Department of Health but it does not in fact appear in the current guidance at all. We suspect it is from NAFAO or from para 44 of pre-Care Act Charging Guidance (Fairer Charging) from pre-Care Act:

 “items where the user has little or no choice other than to incur the expenditure in order to maintain independence or quality of life”. 

As for the comments made between council officers, this led Mr X to view the decision regarding DRE as discriminatory. Whilst an appalling display of poor conduct, the LGSCO was satisfied that the comments had not prejudiced the decision-making. This is where the LGO can be really helpful in investigating the actions of a council. Initially a financial payment was refused by the council as it claimed there had been no loss, but with a prompt from the LGO also had to pay Mr X to acknowledge the impact of the fault. 

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

Shropshire Council at fault for the delayed allocation of a social worker

Decision Date: 23rd November 2020

What Happened

Miss X and Miss Z complained on behalf of their mother, Mrs Y, for whom they both held Lasting Power of Attorney for health and welfare. 

Mrs Y had a Care Act assessment in March 2019 which identified that she should be referred for a pendant alarm, a bathing assessment and a further assessment to determine her night-time needs. At the time she was living in her own home. 

In May 2019, Mrs Y told the Council that she wanted to move closer to her daughter Miss Z who lived in Stockport. Mrs Y was assessed as having capacity to decide where she lived. 

The Council told the LGO that it was agreed that Miss Z would explore options for Mrs Y as she was looking to move into ‘new housing’ rather than residential care. 

On the 1st July the Council put in place night time care for Mrs Y. A week later she fell at home and was admitted to hospital. The CCG arranged for Mrs Y to receive rehabilitation at a residential nursing home (Care Home A) on discharge. 

Miss X told the Council on 21st August 2019 August that the family wanted Mrs Y to move to Stockport as soon as possible. At the time, Mrs Y was living in care home A. 

On the 30th August, the Council undertook a further reassessment and concluded that Mrs Y no longer had capacity to decide where she lived. Miss Z agreed to transfer Mrs Y to a short term reablement service (Care Home B). This also took place on the 30th August. 

Mrs Y was reassessed on arrival, which concluded that Mrs Y required a nursing placement. 

In the end, Mrs Y returned to Care Home A on the basis that it could meet her nursing needs. 

As both Mrs Y’s daughters still wanted her to move to Stockport, she was added to the Integrated Community Service (ICS) Team waiting list for an allocated social worker at the end of September. 

Through October and November 2019, the family continued to chase the Council for a social worker to be allocated. They explained that Mrs Y’s health was deteriorating and provided evidence to show this. She now required psychological/cognitive care in addition to her physical care needs. 

On 20 November Miss X complained to the Council about the lack of support for Mrs Y. She asked for a social worker to “get the move sorted quickly and efficiently as a matter of urgency”. 

The next day a social worker undertook a care needs assessment of Mrs Y. 

On 8 January 2020 the social worker contacted Miss X and requested an update on their home preferences for Mrs Y and her move to Stockport. 

Miss X responded two months later and said that they were happy with the care Mrs Y was receiving at Care Home A, and that moving her now would be detrimental to her health and wellbeing. 

On 6 March the Council responded to Miss X’s complaint. 

  • It acknowledged that Mrs Y did not have a consistent social worker whilst she was under the care of the ICS team
  • It also acknowledged that the family had requested a social worker in October 2020 and accepted that there had been a delay in allocating the case. 
  • It apologised for the faults identified and for the delay in responding to the complaint.

Miss X remained unhappy and complained to the Ombudsman in March 2020 that the delay by the Council meant that her mother was now not well enough to move. 

Sadly, Mrs Y passed away in August 2020 and was not living near to her daughters. 

What was found

The LGO first established that the Council appropriately undertook all needs and mental capacity assessments in line with guidance. 

However, the Council was at fault for the delay in allocating a social worker when Mrs Y returned to Care Home A at the end of September 2019. The family repeatedly requested a social worker to facilitate a move for Mrs Y, the Council was aware that her health was deteriorating, and Mrs Y herself wanted to move closer to her daughters. The delay caused the family uncertainty. The Council’s explanation that the case was not considered a priority at the time because Mrs Y was safe and in a care home.

The LGO also said the Council was at fault for the delay it took in responding to Miss X’s complaint. 

The LGO recommended the Council apologise to the family, make a payment of £100 for the uncertainty and distress caused by the delay in allocating a social worker and a further £100 for the delay in responding to the complaint.

Points to note for councils, professionals, people using services and their carers, advocacy organisations

Whilst the LGO found that the council did act appropriately by its actions, the real fault here was regarded as the delay in allocating a worker to progress Mrs Y’s desire to move to Stockport. 

We would have to point out that one shouldn’t even NEED a social worker in order to make that move however  – anyone competent could have followed through on the decision to place Mrs Y out of area.

We would also point out that the report leaves it wholly unclear as to why the council would have been involved in this lady’s move to Stockport at all. If someone wants to move or IS moved to housing under their own steam or via the efforts of a benignly intentioned relative, the person loses their ordinary residence connection with the old area – UNLESS the person is going to go into a form of accommodation such as housing that counts as specified accommodation (such as sheltered or very sheltered tenancy). But even if that had been clearly the intention from the report, there is no discussion as to how Shropshire would have organised the allocation of a tenancy to a person from Shropshire, in Stockport!

Once she deteriorated of course, she would have needed a care home, and that WOULD have been specified accommodation so Shropshire would have remained liable.

It is easy to see that the initial request may not have ‘seemed’ urgent to the Council, but neither could the Council look into the future and establish how Mrs Y’s needs would change in the coming months. 

The Care Act 2014 could have enabled this Council to act sooner. It was first told of the desire to move to Stockport a couple of months after its initial assessment of her care needs. This was at a time when Mrs Y had capacity to tell the Council what she wanted to happen. 6 weeks later in July, the change in needs occurred. 

Section 19(3) says this:

A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

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

(b) made a determination under section 13(1).

On this basis, the Council could have chosen to meet Mrs Y’s needs in May. Its assertion in August that a reassessment needed to happen before decisions could be made failed to recognise that the Council had the power under s.19 to meet Mrs Y’s needs and then follow up with the reassessment later. 

It correctly followed procedures in terms of the process a Council uses to determine where a person will live and whether nursing care is a requirement etc, but in fact it had a power that could have been helpful in enabling this lady to move closer to her family. 

The Council deemed that because Mrs Y was safely living in a suitable care home, she was not a priority for allocating a social worker. This clearly did not allow for the possibility that her needs had changed, or that she had expressed a desire to move that the Council had not responded to some months earlier. It’s not a legitimate basis for allocating people to services or to staff resources, and hasn’t been legitimate since the Sefton case in the late 1990s.

The legislation does not specify timescales for meeting needs because councils have competing demands and pressures. It also does not dictate to councils how they must prioritise their workloads.

On the other hand, public law principles decree that any duty must be discharged within a reasonable time in light of the circumstances, and there is also a little known section in force from an Act brought into force as long ago as 1970 that says that councils must furnish Directors of Social Services with sufficient staff for the discharge of their function. It is an urban myth that councils can just freeze vacant posts – social services have been made a priority BY PARLIAMENT.  

When running any kind of a waiting list and hoping to get away with it, what any council needs is a manager with enough sense to run a system for ‘keeping in touch’ with those who are waiting for assessments and care planning and for using information as to changes in the person’s needs – because rational defensible delay is all about lawfully relevant considerations, not factors that are NOT lawfully relevant. 

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 Shropshire Council’s actions can be found here

Essex County Council at fault for requiring a deposit payment of 12 weeks of top up fees

Decision Date: 7th December 2020

What Happened

Mr C complained on behalf of himself and his mother-in-law, Ms A. 

Ms A had been allocated a personal budget of £585 a week, to help fund a care home placement. 

Mr C chose a care home that cost more than £1,300 a week, for reasons not explained in the report. 

The Council asked Mr C for a deposit payment of 12 weeks of top ups. This amounted to £9,934. Mr C complained that this made a ‘large hole’ in his finances. 

When investigated, the Council told the LGO that they had recently introduced this policy because occasionally people would stop paying the top up fees, and it then takes the Council around 12 weeks to re-home a client to an affordable home. In those circumstances the Council would use the deposit to cover the fees until the person could be moved. 

Mr C had made a Freedom of Information request to the Council regarding this new policy. The LGO highlighted that there was general information on the Council’s website about charging for residential care, but no information specifically regarding the right to choose a more expensive care home, top ups, or a copy of the Council’s Charging Policy for Residential Care. 

Mr C also asked for information relating to how long it takes to re-home a client if the top up stops. The Council told him 12 weeks but did not provide any evidence. 

Finally, the LGO highlighted that it was unclear how often a top up agreement breaks down. 

The Council told the LGO during its enquiries that:

  • it accepted that the requirement of a 12-week advance payment was too onerous and could have impacted on choice.
  • It had written to Mr C offering to lower the deposit to 4 weeks and refund the difference. Mr C finally accepted this offer. 
  • It had also offered Mr C an ex-gratia payment of £150 to remedy the time and trouble he spent on this matter. 
  • It would carry out a full review of the 12-week advance payment requirement, with a view to implement alternative and/or supplemental requirements.

What was found

The Council had recently introduced a policy enabling it to request a 12-week deposit for top-up fees based on its experience of having to find alternative, less costly accommodation for people whose finances drop below the threshold for council funding when a topper- upper ceases to be good for the monetary contribution they have taken on. 

The LGO highlighted that “neither the Care Act statutory scheme, nor the Care and Support statutory guidance (CASS), provides any clear authority for the Council to require a security deposit be paid as a condition of entering into a top-up fee arrangement.” 

It went on to state that “to the contrary, the 2014 Regulations provide that the Council must agree to a preferred choice of accommodation if the criteria in those regulations are satisfied, and the CASS Guidance suggests that the risk of any non-payment is to be borne by the Council (subject to it being able to recover any outstanding fees as a debt).”

The LGO emphasised that a key principle of the Care Act was to promote a genuine choice of accommodation. The approach the Council took in this case did not comply with the Care and Support Statutory Guidance and the Care and Support and After-care (Choice of Accommodation) Regulations 2014. This was fault. 

The LGO stated that if a person is required to provide a 12 week deposit up front, this is very likely to impact on a person’s choice or ability to get their preferred accommodation. This is fault.  There was no reason for the Council to depart from the guidance. 

The LGO agreed with the remedies the Council had already offered to Mr C. 

Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public

It is widely known that councils have limited resources with which to meet a lot of demand for care and support under the Care Act 2014. 

With regard to top up (payments for wants rather than needs, so the difference between a sufficient personal budget and a home’s full contractual cost) the council must contract for the full sum but can enter into an agreement with a third party for the difference. 

Any such written agreement must include details of: (i) the consequences of the payer ceasing to make top-up fee payments; and (ii) the effect of a change in the payer’s financial circumstances. Any unpaid top-up fees (along with other charges or fees) may be recovered by the Council as a debt, in civil proceedings, pursuant to section 69 of the 2014 Act.

The rate at which a council is able to do business for the anticipated number of beds needed for its duty to place people in care homes when needed, all depends on the market. Essex faced and won a judicial review about this some years ago, but it is unknown what the impact of that case has been in the area, over the longer term. Councils still have several statutory duties under the Care Act 2014, one of which pertains to commissioning for diversity in general outlined in s.5 – and for choice of a specific care home as the place the council must accommodate the person:

Promoting diversity and quality in provision of services

(1)A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market—

(a)has a variety of providers to choose from who (taken together) provide a variety of services;

(b)has a variety of high quality services to choose from;

(c)has sufficient information to make an informed decision about how to meet the needs in question.

This ought to mean that the individual has the means to make a choice about their care. It may be that Mr C had a minimal choice because the market is simply insufficient, the offered price arbitrarily low against the real position in the area, or that he had a preference for his mother-in-law to be cared for in the best home he could find, well in excess of the council’s personal budget allocation to Mrs A. 

The LGO is right in that there is no current guidance that provides for security deposits to be taken for care home top-ups. The CASS guidance states this in relation to top-ups:

8.33 Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act.

This could have offered Essex an alternative to a policy that impinged on people’s rights under the Care Act 2014. The Council could have agreed that the top-up element of the payment would be paid directly to the provider, even if the liability still had to be the council’s. The key thing is that the council is doing the buying and the contract rate must include the top up. 

The complainant had also made a Freedom of Information request and found minimal information online about the Council’s policy.  The warning to councils is if you are going to use a policy then make it reasonable and make it available. 

The Council had already identified that it needed to review the security deposit requirement within its policy. Whilst we at CASCAIDr can see a rationale for having such a policy, we support the need for individuals to be able to choose freely when considering care home options. Helpfully, the LGO found fault with this Council which has agreed to review its requirement to a much fairer 4-week deposit. 

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 Essex County Council’s actions can be found here

Solihull Metropolitan Borough Council at fault for failing to consider a person’s needs under s117

Decision Date: 26th November 2020

What Happened

Mrs A complained on behalf of her mother, Mrs B.

In 2016, Mrs B was discharged from hospital under s.3 Mental Health Act 1983 (MHA) to Care Home A.

In 2019 Care Home A alerted Mrs A to the fact that Mrs B’s needs had increased, including relating to her mental health.

As a result, the Council agreed with Care Home A to increase its funding to £700 a week, and Mrs A paid a ‘voluntary’ £35 top up each week, as she wanted to ensure her mother had proper support.

In 2020 Mrs A contacted the LGO as she was concerned about the quality of care Mrs B was receiving. She felt that the Council should increase the funding to £850. She also highlighted to the LGO that Mrs B was still under s.117 MHA, so should have her care funded.

During its investigations, the Council told the LGO that Mrs B was eligible for s.117 aftercare, however, she did not have any health needs that needed to be funded under the legislation. It stated that it would be happy to carry out a joint assessment with the CCG.

The Council completed a CHC Checklist for Mrs B, which determined Mrs B did not meet the threshold for a full assessment for CHC.

When the Council learned that Mrs A was paying a voluntary top up of £35, it increased its funding to £735.

The Council also told the LGO that it was developing a joint s.117 policy with the CCG and will incorporate some of the recommendations from guidance produced by the Association of Directors of Adult Social Care (ADASS) into developing this policy.

What was found

The Council had no evidence that it followed the proper process under s117. The guidelines require the clear identification of a named individual who has responsibility for co-ordinating the preparation, implementation and evaluation of the CPA care plan. The CCG told the LGO that it had no record of Mrs B’s s.117 or any assessment. This was fault.

The guidance produced by the Association of Directors of Adult Social Care (ADASS) requires that a person must have a plan which is clearly documented, includes the needs that arise from the mental disorder, the services required to meet those needs, and a timescale for all of this. The plan should also identify whether the need is a health need, social care need, or a joint need which should be met under s117.

The LGO stated that there was no evidence that such a plan was being drawn up. This was fault. The Council and CCG failed to appoint a care co-ordinator, therefore the fault was on behalf of them both.

As a result, Mrs B’s needs under s117 were not assessed, and therefore possibly not met. This is fault.

The LGO recommended that:

  • The Council and CCG apologise to Mrs A.
  • Carry out a s117 assessment and ensure the outcomes are properly communicated to Mrs A.
  • Continue with the joint review of the s117 process

Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public

Both the Council and Clinical Commissioning Group (CCG) were subject to the LGO’s scrutiny as this complaint related to their responsibilities regarding aftercare services under s.117 MHA, the one truly joint duty in the legal framework.

There is a duty on both parties to provide or arrange free aftercare services that will prevent and reduce the risk of readmission for the person as a result of their mental disorder. It can be jointly funded in shares for internal finalisation, and cross subsidy is acceptable. So whoever buys which bit, the plan has to be drawn up, and should identify which elements of the subsequent care and support the plan is supposed to cover. Anything else provided for an ordinary social care purpose would be chargeable under the Care Act. 

In this instance, the assessment and support planning that should have taken place should have been overseen by a care-co-ordinator and clearly identified how Mrs B’s needs would be met. Instead, Mrs B’s daughter was unclear and anxious to a point of needing medical input because she was so worried about her mother’s care.

Care planning for s117 aftercare should be done via the Care Programme Approach (CPA) framework (paragraph 45 of Annex A to the Care and Support Statutory Guidance and paragraph 33.14 of the MHA Code of Practice).

The Council and CCG were reviewing the way in which they managed s.117 cases together. This really was a too little, too late scenario for Mrs B and Mrs A. It appears that Mrs B may well have required nursing care but was moved into a residential care home that struggled to meet her needs. The lack of care plan clarity meant that Mrs A and presumably the care home were unclear as to what needs were being met and in what way. Mrs A rightly expressed concern in her complaint that her mother’s needs may not have been being met because of a shortfall in funding.  This could clearly have been resolved much sooner had the agencies agreed a clear policy sooner, rather than Mrs A having to complain to seek a resolve to the matter.

Many authorities with s117 responsibilities have come to policy decisions that mean an ‘agreed split’ is pre-determined to make this easier and less time consuming. In this situation however, it appears Mrs B was not really treated as having an entitlement to s.117 aftercare services. It seems as though this was an ‘afterthought’.

The Council and CCG both responded to the LGO recommendations and have apologised and offered the required explanation to Mrs A about her mother’s care. The MHA is not a new piece of legislation; it is almost 30 years old, so it is surprising that councils are still getting this everyday aspect of discharging statutory functions, so wrong.

It is worth noting that Solihull has been scrutinised by the LGO in another s117 case in the last 2 years, regarding the use of s117 to cover the full accommodation cost outside of a care home when specialist accommodation is needed, so that one might infer that progress is only being made very, very slowly.

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 Solihull Metropolitan Borough Council’s actions can be found here

Milton Keynes Council not at fault for requiring payment of an assessed contribution despite care costing less than anticipated

Decision Date: 22nd March 2021

What Happened

Mr B complained on behalf of his wife, Mrs B, who had dementia. 

Mr B had a Power of Attorney and managed her finances on her behalf. 

In 2020 Mrs B was assessed under the Care Act 2014 by the council and allocated a personal budget of £279.47 per week. Her care would be sourced via direct payments. She also received a financial assessment and was required to contribute £7.11 per week towards her care. 

Both Mr B and the Council paid these funds into the same account. 

The agreement regarding the direct payment policy stated:

  • the Council would pay Mrs B’s direct payment into a dedicated account;
  • Mr B would pay Mrs B’s assessed contribution into the same account; and
  • the money in the account would be used for Mr B to arrange care for Mrs B.
  • the Council may, following an audit of the direct payment account, recover any surplus.

A routine audit was undertaken in October 2020 of Mrs B’s direct payment account. It identified that Mr B had not paid in the assessed contribution since April. 

Mr B told the Council that he had been able to find care that cost less than Mrs B’s direct payment, so he believed he had not needed to pay in the assessed contribution.

The Council told Mr B that as part of the agreement he had signed, Mr B was required to pay in the assessed contribution, even if there were already sufficient funds in the account to pay for care. It told Mr B that the assessed contribution did not change if care cost less, and everyone who needed to contribute to their care must do so. 

Mr B was unhappy with the Council’s response and complained to the LGSCO. 

What was found

The LGSCO stated that the Council has a duty to calculate a personal budget and make direct payments in order to make sure there is enough money for a person to arrange care that meets their needs. It also has a duty (if it is going to charge at all) to decide how much a person should pay towards the cost of their care. 

The LGSCO stated that even if Mrs B’s actual received weekly cost of care was less than her personal budget, as long as it was more than her assessed contribution, she still needed to pay. In other words, the contribution requirement remained unaffected by the fact that care had been able to be bought for less than the budget, as long as the money actually spent on care was more than her assessed contribution. 

Any savings against the personal budget would be for the Council rather than the individual. Mr B failing to pay in her contribution effectively resulted in Mrs B receiving free care and she was not entitled to do so. 

Therefore, the Council was not at fault for requiring Mr B to pay Mrs B’s assessed contribution, and were able to recover any surplus in the account, subject to consultation with Mr B. 

Points to note for councils, professionals, people using services, carers and advocacy groups

Local authorities are of course entitled to financially assess and require individuals to pay towards the cost of their care. In this complaint that is exactly what has happened. Mrs B had been assessed as having sufficient funds to contribute towards her care costs. Whilst Mr B’s actions may sound logical to some, the fact is that where a council provides a personal budget, if one is assessed as being required to contribute, that contribution is required once the cost of the care actually bought from the gross budget exceeds the contribution. It did not make a difference whether Mrs B’s care cost £50 per week or the whole personal budget of £279 per week. Her contribution remained at the level that it had been assessed at. The charge in most councils is not ‘by the hour’ of care or a proportion of the cost of that care; it is as if the client’s contribution is the first slice and the council just pays up to the cost of what was spent, and can reclaim the difference between that and the budget.

The council had set out a clear agreement with Mr B as to responsibilities for paying into the account. It may have been helpful for the council to set out clearly that the payment should continue regardless of the cost of the weekly care but the LGSCO did not propose this. In the spirit of giving the right information and avoiding confusion there is a prompt in here for councils to consider. 

The LGSCO was correct in its finding that Mr B should have continued to pay the assessed contribution. Mrs B had no entitlement to free care as she had been assessed as having to contribute £7.11 per week. 

The wider impact of this sort of a report though is going to be found in Covid era cases where the person has not been able to BUY care at all, because of the combined effect of lockdown restrictions, shielding, providers’ difficulties with staff, and different council policies. 

If a person has not been able to buy care at all, during a specific period, and yet one still applies this yearly approach (the charge being for the relevant financial year), one will find that some people’s charges remain payable regardless of the fact that the overall charge is just a penny less than the amount of budget that was able to be spent. This approach effectively amounts to charges being taken and the council netting the saving on account of the needs not being able to be met. 

If the reclaim connotes a revision of the care plan and budget, retrospectively, then the financial assessment needs to be checked to ensure that this principle is not breached. 

But the fairness of it, overall, strikes us as dubious. When a person hasn’t had care for say 4 months, and yet is still expected to pay for that period, just because the amount of their contribution for that 4 months when added to the contribution for the period that they did have the care – say 2 months – is still less than the budget that was spent on the care for those two months, we suspect that that will come over as very unfair indeed. At the very least this should be explained explicitly to all, in charging policies, we think. 

The only rule that we can identify that makes this even feasibly defensible is the rule that says that the charges cannot be for more than the care received, when taken alongside the implication that there will be annual charging reviews because people’s income changes when the benefits go up! We think it might be better to translate a charge into a proportion of the spend, and apply that test on a monthly basis rather than an annual basis.

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 Milton Keynes Council’s actions can be found here

Calderdale Council at fault for poor communication, failing to involve a person in decisions surrounding their care, wrongly stopping direct payments and severe delays in carrying out an assessment

Decision Date: 28th September 2020

What Happened

Miss X complained on behalf of Miss Y. 

Miss X worked for a support agency and was Miss Y’s informal representative. 

Miss Y had numerous mental and physical conditions and received direct payments from Calderdale to employ carers for 9.5 hours per week. 

In August 2018 Miss X was told that she needed to have a Care Act assessment for her to continue receiving the DPs. 

There was no evidence that a Care Act assessment was carried out during the subsequent meeting, where two social workers were present (Officer A and Officer B). Instead, the potential for Miss X to have an Individual Service Fund (a euphemism for a hybrid sort of a package explored in the Guidance) was discussed. After Miss X provided the necessary costings and evidence, there was nothing to show that the Council considered the ISF option any further. 

In October 2018, Miss X was told by officer A that they had been unable to arrange a mental health assessment for Miss Y, and in the meantime a care package with the Council’s Shared Lives Service had been organised. Officer A also noted that to achieve parity with other service users, Miss Y’s care package should be reduced to 6 hours per week. 

The LGO found no evidence that officer A discussed the option with Miss X and Miss Y or even considered how it could be suitable for her. Miss Y was unaware that the option was even being considered. 

In November 2018 Miss Y’s original care provider (who had been employed using DPs) gave notice to officer A that it would be ending its service to Miss Y. The council did not notify Ms Y.

Officer A proposed a meeting with Miss X, Y and the care provider. 

Miss X highlighted to officer A that she was concerned with their conduct, as the officer had asked Miss X not to tell Miss Y the reason for the meeting. Miss X was also concerned that officer A was considering reducing Miss Y’s personal budget without any lessening of need, if she did not accept the shared lives proposal and asked why Miss Y was not being given the opportunity to choose herself.

The meeting took place in December 2018. Officer A produced a care and support plan, however the LGO found no evidence that Miss Y was consulted or involved in the process. The outcome of the meeting was that Miss Y’s DPs would end in January 2019 (at the end of the provider’s notice period) because no service was being provided. 

Miss Y complained in January 2019 and requested a new assessment. She complained that officer A disregarded her views and choices and did not tell her the purpose of the December 2018 meeting. 

The Council did not reply, so Miss X complained again in July 2019. The Council eventually replied in September 2019 and did not uphold any of her complaints. 

In May 2019 a social worker from the Community Mental Health Team was allocated to Miss Y for an assessment. 

The assessment took place in February 2020 which found that Miss Y was eligible for about 9 hours of care per week. 

The LGO report stated that Miss Y preferred a particular support agency to provide the care she needed, but this was not possible as that agency was not on the council’s framework so could not be commissioned by the council.  

Miss X and Y took their complaint to the LGO. 

What was found

Involving Miss Y

The LGO explicitly stated that the Council’s communication with Miss Y was poor. The Council failed to directly inform Miss Y that her care provider had given notice and was not clear about the purpose of the December 2018 meeting. The lack of transparency was fault which caused distress and frustration to Miss Y. 

The Council failed to involve Miss Y in decisions about her care and support planning following the provider giving notice. This is contrary to the Care Act and Guidance, therefore this was considered to be fault.

Officer A failed to pursue the ISF as agreed, and failed to inform Miss Y whether this was or was not a viable option. The officer also pursued Shared Lives option without communicating with Miss X and Y. As a result, the care and support planning in 2018 ‘was not person centred which denied Miss Y control of her care’. This service failure contributed towards the distress caused to Miss Y by the council, therefore this was fault.

The Council was also at fault in proposing to reduce Miss Y’s support hours from 9.5 to 6 per week. There was no proper assessment or review, so its decision seemed ‘arbitrary’.  The council later considered a budget of 9 hours per week to be correct. This would suggest that the council agrees that the proposed 6 hours was in fact insufficient.

Direct Payments

The Council was also at fault for stopping Miss Y’s DPs. The Council said it stopped making payments, because a replacement care provider had not been identified. However, Miss Y still had eligible needs, and without the DPs, she could not employ other care providers. This was fault. 

The LGO highlighted that the Council failed to consider the risks to Miss Y withdrawing her support may have. Again, there was no evidence to show that the Council discussed alternative options with Miss Y. 

The Council was at fault with regard to this issue as Miss Y was left without care for 19 months. Miss Y had to purchase support from another organisation which would otherwise be provided for by direct payments. 

Delay in assessment

Miss Y requested a Care Act assessment in January 2019, which the Council failed to act on. It did not carry out an assessment until February 2020. This was fault. The LGO stated “a delay of 13 months in allocating a social worker and carrying out a Care Act assessment would be excessive in most circumstances”. 

It was particularly excessive in Miss Y’s case as the Council was aware she had eligible needs and no support in place.

Whilst the LGO noted that the Covid pandemic made assessment harder the LGO noted that, if the Council had acted in accordance with statutory guidance Miss Y would have had support and care provisions in place. Therefore, the LGO considered this period during the pandemic, totalling 19 months without care, to be relevant to the extent of the injustices suffered by Miss Y.

The LGO recommended that the Council: 

  • Send a written apology to Miss Y and make a payment of £500 for the distress caused by its poor communication, failure to involve her in decisions about her care, wrongly stopping her direct payments and delay in carrying out a Care Act assessment.
  • Reimburse Miss Y for the cost of support she purchased since the date her direct payments were stopped until the Council reinstates a care package. 
  • Review procedures to ensure the delays experienced by Miss Y in allocating social workers, including those from the mental health trust, and carrying out Care Act assessments do not recur. 

Legal Framework Points for the Public

This complaint illustrates the legal consequences of a number of different types of contraventions of rules of law.

Involvement, participation and consultation – even if someone is regarded as needing mental health assessment or a mental capacity assessment, they are presumed to be capacitated. In addition, they are entitled to be involved in their own assessment, albeit the concept of involvement is not defined. It clearly means more than being presented with a fait accompli or being excluded from discussions or being misled about the purpose of a meeting. 

Breach of statutory duty – the law is that eligible assessed needs are met, and that direct payments cannot be stopped unless the care plan has been reviewed and revised lawfully. The absence of a provider does not mean that the direct payments must be terminated; the individual can choose to find another provider, or give up the direct payment if they are unable to do that. Their eligible needs do not thereby cease, and their entitlement to have them met goes on.

Restitution for breach of statutory duty – councils have to pay money back in some situations where their maladministration is characterised by breach of the law – because the council will in those circumstances have been unjustly enriched at someone else’s expense. Restitution flows if a person has spent their own money (or someone else has spent their money or put in labour for free but in circumstances when it could not have just been regarded as a gift or favour) on filling the gap left by the council’s breach – which is what happens when they mess up assessment in a way that is unlawful, or mess up care planning, in a way that gives rise to illegality. They do not have to pay back money JUST because they’ve done wrong. That would be damages for breach of statutory duty or for harm, and those remedies don’t exist in the law of community care. Restitution is about solving the problem of someone else’s expense or labour, triggering a liability on the part of the person who was left short by the council.

Delay – there are no time limits for starting or finishing the statutory decision-making functions that have to be done, under the Care Act, but public law principles say that every duty has to be done in a reasonable time. That always depends on the circumstances, but after a given point, based on professional judgment as to the circumstances, the excuses and the integrity of the system, or its lack of checks, very long delay will be regarded as unconscionable. That’s challengeable in the Administrative Court but the LGO offers a free alternative. One in which there is a lot of delay too, but it is better than having to give restitution back to the Legal Aid Agency by dint of the statutory charge biting on the compensation…

Arbitrariness – here, once some manager had hit upon the idea of Shared Lives being cheaper than a proper care package, there is a definite hint in the report that management thought that they could offer the value of the cheaper alternative package without thinking about whether it was appropriate or something that they could even regard as an offer within their gift. This is not the law. 

The corollary of the principle that a personal budget must be sufficient is that if it is going to be reduced, there needs to be a rational reason, such as lessening of need, and an evidence basis for that. A service’s cost can be relevant to a budget, if it’s cheaper than the preferred one but only if it’s rationally adequate and appropriate and suitable. 

Shared Lives – in this report it is not clear that anyone was suggesting that Miss X needed to move into a Shared Lives placement – there is another form of service where one goes to the Shared Lives Carer’s house for the day, as an alternative to day care. 

Most Shared Lives package are not placements involving an accommodation arrangement in return for council money. More typically, the Shared Lives service merely commissions services in the nature of care and support and the individual or their property and finance deputy or appointee are signposted to a tenancy or a licence that would attract housing benefit to pay rent/an occupation fee. So they are not services that the council is arranging. A mere appointee has no authority to sign the tenancy or licence as an agent but everyone overlooks that because it means that the HB just starts to flow and the person is happily sort of secure. There is no proper registration or scrutiny of the Shared Lives carer for providing care in the place where the client is then living, even if that is personal care. Safeguarding Leads, and Chairs, commissioners and CQC are not interested in that issue, as far as we can tell.

But when the suggestion includes the idea of going to live at the Carer’s house, it ought to be obvious that the client has to be willing to GO and live somewhere else and pay for that, or can otherwise be lawfully placed, by the council, in a setting where there will be care (often personal care) together with accommodation – either with best interests consultation of relatives or the agreement of a welfare attorney or deputy.

There is a special registration regime for that, which means it doesn’t have to be registered as a care home as long as the Shared Lives service making the accommodation arrangement is itself registered. This is something that everyone chooses to overlook. Shared Lives carers are notoriously poorly paid for what they do on the footing that they are self-employed and can thus claim all sorts of expenses of running a household against their ‘fees’. At the same time the individual is not given a budget based on their real needs; they are given a budget that simply matches the fees that the commissioners have told the providers that they will ‘take’. 

Most people working as Shared Lives carers are incredibly kind and willing and go far beyond the call of duty or the terms of the agreement with the Shared Lives service, providing a genuinely loving and attentive home for a person, and forming real relationships. We have no issue with the quality of service that can be delivered with this model. But this specialist sector needs to get clued up, it is suggested, before the model becomes discredited by the suggestion of collusion with councils in keeping people’s services suppressed to an artificially low level. 

Direct payments and ISFs – an ISF is an arrangement where someone (the council or a direct payment holder) contracts with a provider not just for the services but also for looking after the budget or direct payment. It is not a third way. It is one form of deployment or another: a commissioned package with freedom on the part of the contracted provider to sub contract and an expectation that the budget will be deployed with involvement of the person or their family OR a direct payment where the holder puts the direct payment into the management of the provider of the services, to be a sort of broker or commissioning support agent for the client’s ongoing control and deployment of that budget. 

If a person is at risk of losing a direct payment for whatever reason, to do with difficulties in managing it or spending it, and is committed to remaining with a particular provider, there is no reason at all why this cannot be set up as an ISF, as long as the DP holder is happy to nominate that entity to be the money manager.  We despair as to why this is not understood and used to good effect.

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 Calderdale Borough Council’s actions can be found here

Suffolk County Council and Trust at fault for failure to complete a CHC checklist and failure to discuss discharge planning with family members

Decision Date: 23rd July 2020

What Happened

Mr F complained on behalf of his mother, Mrs G.

Mrs G had been receiving privately funded care at home.

In October 2017 she suffered a fall and was admitted to hospital with a fractured arm.

On the 9th October Mrs G was admitted to the rehabilitation unit for treatment, as she was unable to mobilise with a trolley or frame. No CHC checklist process was carried out at this time.

The Trust carried out a ‘mini mental state’ examination, which Mrs G scored 9 out of 10. Therefore there were no recorded concerns about her mental capacity.

Mrs G followed a physiotherapy programme and was also assessed periodically by the OT team.

On the 7th November she met with a social worker to discuss discharge plans. Mrs G said she did not want to go home because she didn’t think she would manage, and instead wanted to go to a care home with a view of potentially staying there permanently. (She had previously stayed at that care home for respite care). She told the social worker that she wanted to source her care privately, and that if she did eventually decide she wanted to return home, she would reinstate her private care home package.

The social worker highlighted to Mrs G that if her savings fell below the threshold, she would need an assessment if she wanted to stay in the home permanently.

The next day Mr F had a discussion with the care home about options, and a discharge meeting to discuss further options was held with Mr F on the 11th of November.

On 13 November, a multi-disciplinary team meeting decided Mrs G was medically fit for discharge. The care home assessed Mrs G, and she was transferred there on 16 November.

Mr F complained to the Trust and Council. He felt Mrs G’s discharge to the care home was rushed, that the correct assessments were not done, there was a lack of support and information provided, and the family had not sufficiently been involved. He also complained that a CHC checklist was not done while Mrs G was in the rehabilitation unit. Mr F received responses from both but remained unsatisfied with the responses and complained to the LGO.

What was found

Although Mr F felt that Mrs G’s discharged was rushed, the evidence showed that Mrs G had been assessed appropriately by both the physiotherapy and OT teams. No outstanding needs were highlighted in the discharge summary, therefore there was no fault in discharging her to the care home.

The LGO highlighted that Mrs G had been deemed to have capacity and had stated that she wanted to privately fund her care. Therefore, there was no need to undertake an assessment.

Regarding involvement of the family, the LGO found that the Trust had sufficiently involved Mr F. It held numerous meetings with Mr F updating him on Mrs G’s progress and held appropriate discussions with him about the discharge planning.

However, the LGO found that there was a breakdown of communication between the social care team and Mr F. The social worker did not liaise with Mr F because it understood that Mr F was talking to ward staff about discharge planning. This was fault. The Council accepted that it ‘would have been helpful if the social worker had updated Mr F’.

The LGO highlighted that guidance from the Health and Care Professions Council (HCPC) states “You must communicate properly and effectively with service users and other practitioners”. It determined that there was an injustice to Mr F, because if he had been involved or informed about discussions with the social worker, he is likely to have had more information and understanding regarding discharge planning.

Finally, both the Council and Trust acknowledged that a CHC checklist was not completed until the day after Mrs G was discharged. This was fault. It should have been completed in the rehabilitation unit with Mrs G and Mr F present. This caused an injustice to Mr F, as he was left with some uncertainty, and it is likely he would have been better informed had he been present when the checklist was completed prior to Mrs G being discharged.

The LGO recommended that both the Council and Trust write to Mr F to apologise for the failure in completing the CHC checklist, and failure in discharge planning.

Public Law Legal Points for the public (and discharge co-ordinators) complaints staff and anyone interested in discharge to assess (D2A) during the pandemic or otherwise

The facts giving rise to the complaint occurred WELL before the pandemic as the report makes clear. At that point, the hospital discharge guidance that everyone was obliged to follow was in the Care Act and various regulations and guidance which sat uncomfortably with the NHS Framework for Continuing NHS Healthcare.

That Framework was update in October 2018 and big changes were made to the central role to be played in allocating STATUS to people before their discharge, of the process known as Checklisting for CHC.

The regulations had long since made it clear that even if a person is fit for discharge, medically speaking, that does not mean the NHS’s duty is OVER; not until that has been properly determined in cases where CHC status is a possibility can it be said that the NHS has finished the job it started in the acute phase of hospitalisation. Checklisting was critically important as a screening tool,  to sort out those people who MIGHT qualify (a positive outcome based on a low threshold of scored descriptors seeking to identify profiles of need that might constitute primary health need) from those who would most probably not (negative result).

The notion of the CCG paying for a step down bed or an interim bed when that crucial assessment could be done, in a non-acute setting, and then ultimately in the best possible environment for the person’s recuperation, was current even in 2017 for people with a positive checklist (the council paying for reablement for those with a negative checklist).

The 2018 changes made checklisting more the exception than the rule, unfortunately, which has created a perfect fog for all as to their rights. The issue is that people don’t understand the difference between an assessment of needs (of course that doesn’t have to be by a social worker, if the NHS is continuing to be responsible, and is not done under the Care Act) – on the one hand – and assessment of STATUS on the other – on which funding depends, for the longer term.

This mess has now become the gold standard and blueprint for Discharge To Assess (D2A) policy, pre pandemic, during the first lockdown and now, under the second phase of special Covid funding for NHS underwriting of the next stage of care after hospital (regardless of setting) for up to 6 weeks and thereafter by default, ongoing, if assessment (of status) has not occurred.

In our experience, no council’s advice and information materials or hospital discharge notes from the CCG or Hospital Trust are adequate to make sure people know who is responsible for what, and why, and under what. Forgive us for thinking that that is kind of important and not something that deserves to be left out of Matt Hancock’s White Paper on innovation and integration!

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 Suffolk County Council’s actions can be found here

Royal Borough of Greenwich at fault for delays in assessment and making unsubstantiated accusations

Decision Date: 1st July 2020

What Happened?

Mrs X and her family had lots of contact with their local Council because her husband, Mr Y, and two young children, suffered with physical health problems.

In July 2019 Mrs X requested the Council assess her and her husband under the Care Act. The report did not specify her reasons for doing so.

An assessment officer phoned her a few days later, on the 11th July. Mrs X told the LGO that this caller did not say they were an assessor and that the caller refused to carry out an assessment, which is why she initially complained to the Council.

However, the Council stated in its reply to her complaint, that the caller had indeed introduced herself as an assessor. It said that Mrs X had explained her and Mr Y’s needs but wanted a home visit. It said the Assessor explained the Council did all assessments by telephone and only arranged a home visit if it thought it was necessary and the person was eligible for services.

The Council said that Mrs X raised her voice and called the Assessor a “monkey, a slave and a zombie who only listened to managers”, then said she would make a complaint. The Council said it had closed her assessment as she had refused to participate. It highlighted that it had carried out an assessment of Mr Y in May (two months prior) but closed the assessment as Mr Y was not eligible for services.

Mrs X replied, denying all allegations made against her. She asked for a transcript of the call and made a date access request for the recording.

The Council replied it did not record calls and did not have any transcripts of her conversations.

Mrs X complained to the Council again on the 31st of July, stating that she still had not been assessed, and continued to deny the allegations of name calling.

The Council replied on 11 September. It apologised for the delay. It said Mrs X had not cooperated with the assessment because she ended the telephone call but would now arrange an assessment for her and husband at their home. It said there was no evidence of the alleged abusive language, so because it could not substantiate this, it should not have referred to it in its first letter. It apologised for this.

The Council assessed Mrs X and Mr Y in September 2019.

Mrs X complained to the LGO, because she wanted the Council to amend its records.

What was found

The LGO recognised that the Council had acknowledged it had no evidence of the allegations it put forwards and apologised to Mrs X. However it had not addressed the distress it caused her.

The Council has a duty to carry out Care Act assessments. The Council was at fault for stopping its assessments of Mrs X and Mr Y. The Council did not start the assessment process again until two months later in September. This delay caused Mrs X and Mr Y injustice as they had to wait longer the necessary for the Council to assess her needs and potentially meet them.


The Council agreed to:

  • Apologise to Mrs X and Mr Y for the delays in their assessments.
  • Pay Mrs X £150 for accusing her of using offensive terms when it had no evidence to substantiate this.
  • Pay Mrs X and Mr Y £150 each for the delay in their assessments.

Points for the public – especially during Covid

The duty to assess is not a duty that can normally be rationed on account on insufficient time or staff. It’s a duty that is triggered once an authority has evidence of the appearance of needs – any needs for care and support.

Then it’s a matter of professional discretion and judgment as to whether the presenting needs compel a face to face assessment – there is no duty to do a face to face assessment. The manner and timing must be person-centred, but the way in which to do an assessment, as long as the minimum thought process is gone through as per the statutorily listed issues, is up to the council. The guidance says that a person’s cognitive impairment from whatever cause may well make it necessary to do an assessment face to face, and that applies even during Covid, unless a council has adopted Easements.

It’s not lawful just to say ‘We’re not doing face to face assessments’, or ‘not doing assessments’ during lockdown. It’s a job, it’s a process, it’s a duty, and the world has not ended. Even a council that had adopted Easements would still have to make human rights based decisions about who to assess and how.

Councils’ own duties in relation to their own staff do not justify saying that assessments are suspended just so that nobody is at risk of contracting or passing on Covid.

Case law has already considered advocacy and Mental Health Act assessment during the pandemic, and it must always depend on the presenting needs, whether a non-face to face will do the job required under the Care Act.

The judgment regarding the MHA process overturned NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic and may require professionals to reassess people detained under the act on the basis of video assessments.

The reason the judgment went the way it did in the MHA case was because the WORDING of the legislation is compellingly strict : s 11(5) MHA provides that an application by an AMHP cannot be made unless that person has personally seen the patient within the period of 14 days ending with the date of the application”. In addition, s13(2) imposes on the AMHP an obligation “to interview the patient in a suitable manner”. Section 12 provides that the medical recommendations required “shall be given by practitioners who have personally examined the patient”. 

The MHA code of practice provides that a medical examination for these purposes must involve “direct personal examination of the patient and their mental state”.

Those exercising functions under the MHA are obliged to follow the code unless there is a cogent reason to depart from it. The references to “personally seen” in section 11(5) and to “personally examined” in section 12 date back to the 1959 Mental Health Act and were then replicated in the 1983 Act.

These were the important features in that case, that will not necessarily be the case in the Care Act context, where advice and information should have been provided in advance, no risk of detention (other than deprivation of liberty under DoLS) is concerned, and the person’s particular difficulties taken account of and advocacy arranged:

  • Where a law authorises the deprivation of a person’s liberty without recourse to the courts (“administrative detention”), the powers are to be construed “particularly strictly”.
  • Parliament in 1959 and 1983 would have understood the medical examination of a patient as necessarily involving the physical presence of the examining doctor, confirmed by the fact that a psychiatric assessment may often depend on much more than simply listening to what the patient says but on picking up cues through body language or carrying out a physical examination. There would have been no other option at the time.
  • The statutory history of the words used in the MHA (dating back to the nineteenth century) shows that they were intended to be “restrictive and circumscribed”, to address the problem of doctors certifying people as liable to detention without having seen them.
  • The fact that the code of practice requires physical attendance and NHS England’s Covid guidance makes clear that in person examinations are always preferable shows that medical examinations should ideally be carried out face-to-face. The decision whether to allow video conferencing involves balancing the need to ensure objective evidence to justify deprivation of liberty and maintaining the system of MHA detention during a pandemic, which is a matter for Parliament, not the courts.
  • The use of video conferencing could remain in force for some time after the end of the current pandemic. Again Parliament, and not the courts, can best address these matters, including by considering whether the changes should be time limited.

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 Royal Borough of Greenwich’s actions can be found here

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

Decision Date: 2nd April 2019

What Happened

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What was found

Delay in assessment

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

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

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

Backdated Payments

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

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

Misuse of funds

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

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

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

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

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

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

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

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

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

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

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

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


The LGO recommended that the Council:

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

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

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

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

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

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

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

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

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

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

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

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

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of Buckinghamshire County Council’s actions can be found here