Cornwall Council at fault for delays in approving direct payments

Decision Date: 28th October 2019

What happened

Ms X complained on behalf of Ms Z. Ms X was her legal representative and held a Lasting Power of Attorney for Ms Z.

Ms Z lived with a carer in a Shared Lives placement until her carer gave notice in early 2017.

It was agreed that she would move to live with Ms Y, a carer who ran a day centre and was previously known to Ms Z, in March 2017.

In June 2017 Ms Y became de-registered as a shared lives carer, which meant that funding would have to be arranged differently for her (Shared Lives Carers are self employed).

The Council did not re-assess Ms Z’s needs until July 2017 (the previous assessment had been in 2015). It was decided her needs were unchanged.

In August 2017, Mrs Y provided a copy of the tenancy agreement between herself and Ms Z and made a claim for housing benefit.

Discussions surrounding the cost of care began in September 2017. Ms Y outlined the care she provided and the details of cost. The Council replied suggesting that Mrs Y may want to consider providing some care ‘informally’ to reduce the cost of the package (to which in later correspondence she said actually she was prepared to accept the Council’s definition of formal and informal care in order to comply with the previous funding level provided to Ms Z.)The Council asked for more information, and wanted to explore other potential care options for Ms Z.

The Council visited Ms Z in October to discuss Ms Z’s care and support needs. The Council took the view that Ms Z lacked capacity around her care and support needs. It did not conduct a formal capacity assessment to reach this view. This led into a discussion about deprivation of liberty; it was agreed that if Ms Z left the house someone would need to follow her.

The Council did not contact Ms Y with information about payment for her paid care role until sometime in November 2017. The LGO did not obtain any evidence to show an exact date, but the Council agreed to make direct payments to Ms Y. These payments did not start until May 2018.

Ms X as the holder of the PoA was not notified of the decision.

Another meeting was required relating to issues surrounding Ms Z’s understanding of her own care needs and the potential deprivation of liberty.

Ms X telephoned the Council on the 30 November 2017, the morning of the arranged meeting to discuss Ms Z’s understanding of her care needs. Ms X said she had not yet received the outcome of the panel meeting or a copy of the care plan as previously requested. She said the meeting could not go ahead unless this information was provided.

An email from February 2018 from a social worker asking to arrange a meeting to discuss funding decisions and outstanding social work actions highlighted that the information Ms X requested in November was never provided, and the meeting never went ahead.

Ms X made a formal complaint to the Council on 6 June 2018 on behalf of Ms Z for the late payments, and also issues relating to Mrs Y’s treatment which were not part of the investigation.

The Council was at fault for the delay in payments

Ms Z moved in with Ms Y in March 2018. No actual payments were made to Ms Y until 10 May 2018, over a year after Ms Z first lived with Mrs Y.

The time taken to agree and pay direct payments was fault. There was evidence to suggest some housing benefit may have been paid but it is clear that Mrs Y had provided full time care for Ms Z for over a year without being paid.

Thanks to the hard work by Ms Y, Ms Z did not suffer. She was never worried her care would stop because of the lack of funding. However the LGO did consider that the delay by the Council in finalising the financial arrangements caused avoidable anxiety to Ms Z. This was injustice. The LGO recommended that the Council pay Ms Z £300 to recognise the anxiety she experienced by the Council’s delay.

The Council was also at fault for failing to review Ms Z’s care needs. They should have done that on no less than an annual basis, however it had taken them two. There was, however, nothing to suggest that her needs were not being met all along, fortunately.

When the LGO spoke to Ms X she was very complimentary about the care provided to Ms Z by Mrs Y. Again, there was no injustice thanks to Ms Y.

The social work actions surrounding Ms Z’s capacity and issues surrounding deprivation of liberty remained unresolved. The LGO requested the Council to show evidence it addressed this.

The complaint letter from Ms X mentioned issues relating to the day centre run by Mrs Y and the impact the delay had on Mrs Y.

The LGO stated “I do not have any authority to consider a complaint from Ms X on behalf of Mrs Y. The Ombudsman may be able to consider how Mrs Y has been affected but she would need to make a separate complaint.”

Points for the public, service users, families, shared lives carers and councils

It is clear in legal terms that Ms Z had a liability to pay for care as services rendered to someone likely lacking in capacity, under the Mental Capacity Act s7. That liability and the lack of any money to pay it was something that the LGO should have regarded as essential to sort out, in terms of leaving Ms Z without the money to pay Mrs Y.

We suspect that the omission was because the LGO’s investigator felt incapable of being seen to decide what rate the care was worth, and how many hours were needed.

That overlooks the basis on which restitution has to be paid, in light of the principle in CP v NE Lincolnshire (The Court of Appeal’s decision from October 2019)

This report touches upon the difficulties that the two different types of Shared Lives arrangement create for both carer and service user. A shared lives placement can be made, which includes payment for the accommodation AND the care by the SCHEME to an approved Shared Lives carer. If that care is personal care, thus being provided in an integrated arrangement where the care and the occupation rights are interdependent, that service is excused from registration as a care home by the CQC’s regulations which create an exemption for such arrangements as long as the local Shared Lives Scheme is the contractor for the arrangement.

However, if the person does not need the accommodation to be contracted for, because they have sufficient mental capacity to have a tenancy or a licence, or they have a finance and property power of attorney holder, or deputy, then they can contract themselves for housing, and simply have a Shared Lives service from the approved carer, paid for by the Scheme or by direct payments if the person’s ordinary personal budget is converted into that form of cash, so that the person’s deputy or attorney can purchase the care from the householder direct.

That is not going to be attractive to many councils however, if they’ve imposed low rates on Shared Lives providers that have been contractually accepted on the footing that at least a Shared Lives carer is self-employed, whereas a carer employed through a direct payment is not usually allowed to be, as far as the HMRC is concerned. It may well be that it’s dawned on people that the ordinary direct payment rate for a person under the Care Act could be significantly higher than the flat rate paid to Shared Lives Carers, and that is why they would not be interested in remaining on the approved list. A tenancy or even a licence can still attract housing benefit even if the person hasn’t got capacity to sign in their own name. The person DOES however need an Authorised Person if they want a direct payment arrangement at all – and that Authorised Person cannot really expect in all conscience to be the paid carer as well, because they’d be employing themselves! So the service user needs SOMEONE to take deputyship for or a power of attorney from them to make this vision work, lawfully.

This all begs the question whether a person providing care to a person UNDER what purports to be a Scheme’s Shared Lives arrangement that does NOT include the occupation rights part of the deal with the Scheme is exempt from registration under the separate category as provision of personal care in the place where the person is living. CQC says of course; but we are not so sure.

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

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