What Happened
Ms X was receiving 9 hours of care per week, over three days, commissioned by the council with a care provider.
Her care was reviewed by Norfolk County Council at the end of March 2022 because Ms X felt her current hours were not enough to meet her care needs.
In April, an email was sent by the social worker to the care provider, asking if they had capacity to provide an additional two days of support at 3 hours per day, and if this support could start “the following week.”
Ms X was of the understanding the additional hours requested had been agreed but after a manager intervened, the increase in hours was not followed through on.
Ms X raised a complaint. She received an email from the social worker apologising for saying there would be an increase to 15 hours per week, with a suggestion the council would be able to increase the care from 9 hours to just 10 hours per week.
In August, the council responded to Ms X’s complaint, stating:
- “The original care plan was for a direct payment and personal assistant”
- “The Council arranged nine hours a week with a care provider, as a temporary measure, at a higher rate”
- “Ms X could use her budget to employ personal assistants at £12.67 an hour, this would allow for 15 hours of care per week, whereas the current care provider charged £27 an hour.”
What was found
The ombudsman found the council at fault for poor communication. The 15 hours of care had been agreed without the usual approval from a manager but then, having raised the expectations of Ms X, the Council went back on the decision to increase Ms X’s care and support. This caused Ms X avoidable frustration and distress.
Norfolk County Council increased Ms X’s care to 15 hours per week (we think from the provider, not as a direct payment) as originally agreed, and apologised for their misleading communication raising, Ms X’s expectations and causing her distress.
Points for the public, service users, service providers, families, advocates etc
The statutory decision-maker for s26 (budget) and s25 (planning) purposes can be anyone the council chooses to delegate the role to, as long as they’re objectively competent. It is common practice, and probably sensible from a financial planning point of view, for local authorities to place some form of management ‘sign off’ or oversight process over the allocation of funding for packages. These are often known as ‘panels.’
The issue here is that the social worker caused Ms X to believe her package of support would be increased prior to gaining management level agreement on the funding of it. The investigation report isn’t too clear on exactly what happened regarding the communication, which appears to be via email, but as fault was found we can assume the LGSCO was sufficiently satisfied the issue lay with the Council rather than Ms X’s misunderstanding what she had been told.
This does highlight a couple of issues, however.
Firstly, it shows the importance of good, clear and accurate communication with people regarding their care and support planning.
Poor communication is a frequent feature in complaints upheld by the LGSCO. How councils manage the statutory duty to involve people without communicating effectively is an interesting question. Our view is that it isn’t managed because nobody ensures that the front line staff, middle ranking supervision staff or senior management understands the meaning of the Care Act and the operation of the Guidance where the Act leaves practice decisions for each council to shape according to its own strategy.
The second issue is the transparency of the management processes around funding.
In panel-flavoured decision-making, senior staff have been given the role of deciding whether to accept the front line staff member’s recommendation as to eg eligibility, or more usually, what is it, and how much of that thing is it, that would do the statutory job of meeting the identified and still unmet needs. The concept of what is appropriate to meet need will often involve a choice between a better choice, and a not-so-great-but-not-outrageous approach, and managers or panels need to be the decision-makers as to what to spend from the budget they’re trying to remain within.
These panels are thus in charge of best value decisions, and best interests decisions, too, if their members have the fortitude and skill to articulate why they disagree with the person’s or their advocate’s or their family’s ‘bid’ or the staff’s view of best interests, that member of staff having seen the situation ‘on the ground’. That is why having a level of transparency about how panels operate, knowing that management panels have some form of constitution and knowing that natural justice permits representations to be made, is so important.
There is a question of inefficiency here though and whether a social worker’s needing to get management sign-off on an increase of 6 hours represents good value for money in and of itself.
Assuming that the staff member was Care Act trained and familiar with public law principles in the first place, one would like to think they could have presented a sufficiently evidenced assessment of how many hours support was now appropriate, to an extent that a manager not familiar with the person – maybe even a manager not on the panel, but sat at a desk somewhere BEFORE the panel, would struggle to disagree.
Another important point, that the LGSCO doesn’t comment on, is the legitimacy or otherwise of Council’s offer within their complaint response that “Ms X could use her budget to employ personal assistants at £12.67 an hour; this would allow for 15 hours of care per week, whereas the current care provider charged £27 an hour.”
This is like saying that the budget, if spent on an employee, would solve the issue. But that’s like saying ‘You can only have a Direct Payment if you’re able to work within the budget we first set, and by the way that means AGREEING to being an employer’. Several points could be made about that: it’s not ever going to work for everyone interested in choice and control; there aren’t sufficient PAs working directly these days as they can make a better rate from being employed by agencies – and isn’t explicitly allowed for by the Direct Payment framework or the guidance.
The full Local Government Ombudsman report on the actions of Norfolk County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-005-573