Enfield at fault for an unreasonable delay in carrying out a needs assessment, resulting in an incorrect backdating of funding

What Happened

Mr C complained on behalf of his mother, Ms M. 

Ms M moved to a residential placement at the end of June 2019. 

Although the report did not specifically state so, it seems that Ms M was self-funding at the point she moved to the care home. She had previously been living at a care home in another London Borough altogether. 

In July, Ms M’s GP wrote to the council requesting financial support for Ms M’s placement.  The report did not explain why it was the GP that made this request. 

The Council carried out a needs assessment on 20th November 2019, which concluded that Ms M’s need would appropriately be met in the care home where she was living. 

Ms M’s funding was approved by the Council’s funding panel on the 2nd January 2020. 

The Council told Mr C that it would only fund Ms M’s placement from the date it was approved by the panel.

Mr C contacted the Council stating he believed the Council should pay the fees from the date the GP contacted the Council asking for support. 

The Council stated:

  • It only provided funding from the date the service was approved by the funding resource panel, rather than the date contact was made regarding funding. 
  • It would not refund clients for placements which had originally been arranged on a private basis.
  • There was a delay in undertaking the assessment because the Council had to consider where Ms M’s place of ordinary residence was. 
  • It would fund Ms M’s placement from the 20th November onwards.
  • Ms M would not have to pay her assessed contribution from the period 20th November to the 2nd January. 

What was found

The Council undertook Ms M’s needs assessment four months after it was highlighted by the GP that Ms M needed support. The LGO stated that this was an unreasonable delay so the Council was at fault. The fault led to a delay in the Council funding Ms M’s placement. 

The Care Act Guidance states that determining a person’s ordinary residence must not delay the process of the Council meeting someone’s needs. The Council should have met Ms M’s needs first, then resolved the question of ordinary residence after. Consequently the Council delayed in meeting Ms M’s needs until the 2nd January. This was fault, too. 

The LGO stated that the Council should not use a funding panel to sign off ‘basic funding decisions’, as this can cause unnecessary delays. After reviewing the case the LGO stated that this case was not unique enough so as to require a panel, and in any case, a person should not be at a disadvantage if the Council decides a panel decision is needed. 

The LGO concluded that because the needs assessment should have been carried out by mid-August, within 28 days of the request, the Council should backdate Ms M’s personal budget to then. 

The LGO recommended that the Council should also apologise to Mr C for the faults identified, and the time, trouble and distress it caused him and review its policy and staff guidance

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

There are some basic errors by the Council in this situation which highlight a lack of awareness of the Care Act 2014, and public law principles, when decisions were being made. Other councils should learn from them. 

Firstly, a request for an assessment was made and presumably it was on account of the mother’s capital being known to have depleted below the capital threshold at which a person can start to be subsidised financially by their council. 

A council has the power under section 19 of the Care Act to choose to provide support to an individual in an urgent situation even without carrying out a needs assessment or regardless if the individual is ordinary residence in the area. 

Accepting that this situation may not have been ‘urgent’ the Council was still notified of an adult who may be (and was) in need of social care support and therefore the duty to carry out a needs assessment was triggered when the request was made by the GP. 

Secondly, and not mentioned at all by the LGSCO, it has been the law since the Sefton case in the late 1990s that eligibility decision-making in relation to a person who needs care home accommodation CANNOT LAWFULLY be deferred just because they are tucked up safely IN a care home at their own expense. Once their capital has gone under the upper threshold, they are entitled to the decision, one way or another, based on the eligibility criteria. 

There have been several reports of councils allowing people’s money to dissipate down and down, below even the lower capital threshold, until they have NOTHING, in terms of priority for assessment, in the last year or so. So there is no good reason for the LGSCO not to mention the legal underpinning for the organisation’s line on this kind of administrative fault.

As to backdating, neither the complainant nor the council was correct in their contentions, and there is a LEGAL reason why not, which should be stated loud and clear, in our view. It is that eligibility for the support, stems from eligibility being decided, or (in the case of a delay not of the person’s own making) whenever would have been a reasonable time in which a decision should have been able to be made, with regard to the date when it is first known that the person would be dipping under the capital threshold. 28 days is a good call by the LGO, because that used to be the old expectation when the government was aspirational enough to inspect local authorities and set actual target, before decimating the social services sector, through ‘austerity’. The right to the funding does not depend on a panel’s decision; there is no legal option but to meet the need once eligibility has been determined. All that the panel is doing is deciding HOW the need should be met – ie chesaply or less cheaply, in a case of ‘best value’ justifying a bigger spend than what would otherwise be the asserted ‘cost to the local authority’ of meeting the need. 

The LGSCO report neatly dodges dealing with this legal truth, by saying that this wasn’t a necessary case for a panel decision. Ironically, that stance really is eyebrow-raising, because it is of course wholly for a council to decide how and who makes its decisions about the shape, content and size of a care plan and budget. 

It would have been better to stick to public law principles and the Care Act, it is suggested.

Councils often create delays in ‘approving’ packages of care, however this only delays the commitment to fund the package of care, rather than suspend their liability. 

With regard to the ordinary residence debate, councils often refuse to fund care whilst they believe another authority could be liable. This is understandable in the context of shrinking budgets but the dispute resolution rules require one organisation or the other (usually the one with charge of ‘The Body’) to crack on and fund. 

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 London Borough of Enfield’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/20-008-889

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