Decision Date: 20 Oct 2022
Ms X was severely sight impaired and had had her needs assessed by Leicestershire County Council for the first time in March 2020. She was found to have eligible social care needs around managing nutrition, personal hygiene, accessing and engaging in work, being able to make use of the home safely, and making use of necessary facilities or services in the local community.
Ms X’s early ASC paperwork contained two highlighted comments. The first was confirmation of her eligibility for support but no possibility for the Council to provide this due to the COVID-19 pandemic.
The second was a note that she did not wish to proceed with the ASC services at the time due to infection risk.
At the end of March 2020 Ms X contacted the Council about accessing its community shopping support service, following difficulties she had experienced and advice about the service, having spoken to a social worker. A month later she received her care needs assessment report and was advised to re-refer herself to the Council after the pandemic when her case would be re-opened, and support provided.
In December 2020, on behalf of Ms X, the Royal National Institute of Blind People (RNIB) contacted the Council asking for the social care support for her. They contacted the council again at the end of February 2021 pointing out that the Council had failed to complete a care plan following Ms X’s care needs assessment in March 2020. Consequently, in March 2021 the Council carried out another care needs assessment, the findings of which matched the first one.
The Council agreed 12 hours of weekly support from a PA through a Direct Payments budget but refused to backdate any payments, claiming Ms X had previously declined the support due to the pandemic. The RNIB pointed out that it was the Council who had taken this stance, and the Council apologised for the delay in arranging support at the end of December 2020, backdating the personal budget to that date.
In October 2021 RNIB complained to the LGO as no social care support for Ms X had been forthcoming even then, and no substantive response received from the Council. The Council issued a new care and support plan for Ms X in January 2022, providing a personal budget to meet this.
What was found
Leicestershire agreed to review processes and pay over £10,000 reparation to the woman for leaving her without support.
The Ombudsman found a lack of support to Ms X from the Council plus delays when the council assessed her care needs and prepared her care and support plan. There was also fault with the way the council handled its financial assessments including arranging Ms X’s personal budget.
Ms X felt she was refused social care support due to the pandemic, but the Council claimed she agreed to defer support arrangements until the risk of infection was reduced. However, the available evidence led to the conclusion Ms X did not voluntarily agree to postpone her social care support and as the Council did not adopt any COVID-19 Easement measures, it still had a duty to support Ms X’s eligible care needs. The Council’s failure to provide was fault. The LGO did not find fault in the Council’s approach to its charging policy though.
Despite awareness of Ms X’s eligible care needs the Council failed to provide social care support for over 21 months in all, from assessment in March 2020 until January 2022 when the care and support plan was finally issued, with a weekly budget of £224 a week – the delay causing injustice.
When cooking without help Ms X frequently burnt herself, and she also had several falls. The lack of support necessary for her to access the community and socialise increased her isolation and loneliness, which affected her emotional wellbeing. Delays and confusion within the Council’s social care processes caused Ms X distress, frustration and uncertainty.
The LGO recommended the Council apologise to Ms X for the injustice caused, pay Ms X £2,500 to recognise the distress thereby caused, a further £7,220 as what we presume was a rough equivalent of the personal budget payments and £300 to recognise the frustration, distress, time and trouble caused by the delay in arranging social care support.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
Leicestershire failed to prepare a care and support plan following a needs assessment; failed to carry out a financial assessment and provide support for eligible care needs; delayed with a care needs re-assessment, financial assessment, preparing the care and support plan and arranging personal budget payments; failed to comply with their charging policy in considering the DRE appeal and waiver request; and the staff were poor in their communication.
As a result of these omissions a person with fairly significant needs was injured, she burnt herself and had falls. She was also not able to socialise leaving her isolated and lonely.
Some LGSCO reports award large sums of money and specifically mention the need to put the person back in the position they should have been in – if for instance, the needs had been assessed as eligible but nothing provided. This is a remedy known as restitution in legal circles and might cover for instance the value of the lost services to which it was clear a person was entitled, especially if there is no evidence that a person has suddenly improved or deteriorated. In such cases any amount that should have been paid or funded can safely be applied backwards or forwards by the LGSCO.
By April 2021 the RNIB had got the council to agree to backdate the personal budget payments for Ms X to December 2020. We think it must have been paid because compensation for distress was recommended for that period. The Council’s further delays and failures meant Ms X’s personal budget payments only started in January 2022 – so that was another 55 weeks of delay in total for which she got another £7220. We wish the calculation of it had been more transparently set out and related to the personal budget she had gone without.
The Care Act does not place a specific timescale on a local authority with regard to the care planning process. However, the statutory guidance does say that the care and support plan should be produced in a timely fashion, proportionate to the needs to be met. In this case we get a steer from the LGCSO on what they would consider reasonable stating ‘a reasonable time for the Council to complete the whole process of assessments and start making personal budget payments [would be] by the beginning of May 2021.’
The LGCSO has been quite clear on the simple point that a duty is a duty, saying, ‘As the Council did not adopt any COVID-19 easement measures, it had a duty to support Ms X’s eligible care needs.’ No matter the difficulties created by the pandemic, by NOT having bothered to enact easements the duty to meet needs, assessed as eligible, subsisted.
The LGCSO also commented on RNIB bringing Ms X’s complaint more than 12 months after the date of the first care needs assessment, which was part of this complaint. The LGCSO decided that in the circumstances it was fair to exercise discretion and consider the complaint in its entirety, despite the delay in raising it. However, from a legal perspective, we would suggest that with every passing day when Leicestershire had not put the care plan into place it was a continuing breach and therefore one that would have been allowed to go forward for judicial review.
The council was also told to do the following:
- Review its processes to ensure preparing care and support plans for the Council’s residents with eligible care needs is an integral part of the assessment process. It should make sure all front-line staff are aware of the specific timescales for this part of the process.
This is merely requiring Care Act compliance and some internal performance management.
- Review all care needs assessments completed between March 2020 and March 2021 to identify the ones where no support followed, despite eligible care needs. If after these assessment cases were closed or support was not provided because of the Council’s difficulties during the COVID-19 pandemic, the Council should take action to remedy the injustice caused. The Council should share the findings and outcomes of its review with us.
This is making up for the past, for all other clients in the same position and must have been very costly.
- Remind relevant staff of the need to keep records when making decisions for Disability Related Expenditure and waiving care charges.
This is on account of the greater attention now being paid to DRE claims as an aspect of the Norfolk judgment about the potential for discrimination in relation to the Minimum Income Guarantee.
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The full Local Government Ombudsman report on the actions of Leicestershire Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-010-888