Decision Date: 28th November 2022
What happened
Miss X is physically disabled and had had a direct payment for some time.
After a 2019 assessment identified a high risk of bed sores, funding was agreed, for Miss X to receive night time, repositioning support, for which Miss X employed a PA five nights a week. The assessment said “Miss X is at high risk of developing pressure sores and could benefit from an increase in her care package to have care four to five nights per week to reduce this”.
Then due to disputed reassessments between 2019 and 2021, when her position was that her needs were increasing, Miss X overspent that budget, which was not increased in line with her representations.
In 2021 following a review triggered by the PA’s imminent emergency leave, and concerns about the management of the Direct Payment account, the Council proposed to remove Miss X’s night time support.
However, before making that decision, the Council engaged in discussions with professionals, including an OT, who explained Miss X had a pressure turning mattress; a district nurse who stated the development of sores was reduced by the mattress and that alternative options were available for some elderly clients, and also Miss X’s GP who stated no treatment for pressure sores had been given that the GP knew of.
Thereafter, the Council removed Miss X’s night time support and reduced the hours in the plan significantly, stating her care needs could be met by four daily care visits and two weekly visits for laundry, shopping and cleaning. The funding for the night time care stopped in January 2022.
However, Miss X’s DP budget, which the Council now stated she could apportion to best meet her own care needs, remained the same, for reasons unexplained, but Miss X could not afford further night care because of the state of the overspend on the account, arising from prior disputes that were never formally dealt with.
Miss X complained. The Council then sought further opinions from the tissue viability nurse, the district nurse and Miss X’s GP who all agreed there was a need for night time care. The Council then asserted Miss X’s needs were health-related. The notes said that “The Council cannot offer 24-hour support in a clients’ home – if the client requires 24 hour support a placement would need to be considered”. The Council then referred Miss X for a continuing health care (CHC) assessment which found her ineligible.
The Council said it had assessed Miss X’s needs and determined they could be met through the Hybrid air-flow mattress.
Miss X then complained to the Council and to the LGSCO regarding the Council’s failure to assess her needs correctly, specifically regarding:
- The failure to adjust payments in line with her increase in needs after 2019, resulting in an overspend in her Direct Payment (DP) account, which Miss X asserted had resulted in her inability to pay for essential care and caused her significant distress.
- The removal of night time support.
What was found
Regarding a) – given that the Council had already conceded that she should be provided with funds that ought to have been added after the increase in need beyond the 2019 assessment and that this action echoed the outcome the LGSCO would otherwise have recommended, for that set of problems, the LGSCO declined to investigate this matter. A complaint about those matters would have been out of time, without any satisfactory reason.
However, regarding b) – the 2021 review, the LGSCO found the Council was at fault in failing to provide the required reasons to explain how the (sudden) and significant reductions to Miss X’s care package were justifiable; and that Miss X’s distress in response to the Council’s denial of that need was entirely understandable.
They also found that given the risk of harm to Miss X, which both she and health professionals agreed was well managed by virtue of the night time care, the 2021 assessment, which ought to have been person-centred, had instead failed to properly consider night time support needs before it was withdrawn and appeared to have been prompted by financial matters as opposed to a change in Miss X’s needs. The 2021 Assessment did not include any specific consideration of Miss X’s overnight care needs. This was fault.
Advice from the TVN should have been obtained in the first instance and the fact that a GP qualified their colleague’s factual account of no treatment being needed by saying it was on account of being turned, should not have been overlooked. The conclusion that the mattress would do the job was not supported by the advice given by the relevant health professionals.
The Council did not discuss its intention to remove support for Miss X’s overnight care until a day or so before the cut was made. No opportunity was given to her to make representations as to why this should not happen.
Accordingly, the LGSCO recommended that within four weeks of its decision, the Council should apologise for the faults found, pay Miss X £500 for distress and uncertainty plus £250 for her time and trouble spent making a complaint. Also that a new assessment should take place which properly considers information from both Miss X and health professionals and pending the review outcome, funding for Miss X’s night time care needs be reinstated.
Further, the LGSCO directed that the Council should provide proof that it had “reminded” staff that a) needs should continue to be met during a review, particularly when without adequate care during a dispute. b) that service users need to be involved when proposing to make significant adjustments to support c) of the duty to set out how eligible needs will be met especially when reductions to care are proposed.
Finally the LGSCO required the Council to ensure staff were not fettering their discretion while making support planning decisions.
Points for the public – families, service users, brokers, advocates, social workers, management and lawyers
Although the full events that occurred between Miss X’s 2019 assessment and her 2021 review are not set out here, this report makes clear that a 2019 assessment identified an eligible need for night time support which (presumably) Miss X’s care plan defined would be met by a PA, paid for by an increase in direct payments. We think that she overspent on account of other increases in needs that were never funded, but on which she spent money from the fund.
Every person with a care package is entitled to a regular review. But in addition, if one has a direct payment one is entitled to a review at not more than 12 month intervals – looking at the financial position in particular – it all being sourced through public funds.
We can’t be sure what happened prior to the revision in 2021, but we think it unlikely that the LGSCO would have refused to look back on grounds of lateness of the complaint if there had been a re-assessment on which the revision downwards for the night time support had been clearly based.
So it seems likely to us that no actual proportionate reassessment of night time need occurred before the revision, and insufficient involvement opportunities were offered to the client. The whole purpose of the involvement duties regarding assessment, care planning and revisions is to give effect to the public law principles of participation and fairness. It is as if nobody has taught Croydon that public law governs the social work functions under the Care Act.
Instead, significant alterations were made to Miss X’s care package without sufficient regard to her wellbeing, without sufficient explanations as to how those reductions might have been justifiable (eg by dint of an improvement in Miss X’s condition), without sufficient or timely discussions with Miss X and in a manner that may appear driven by the desire to eradicate (as it did) the previously agreed (but not paid) and apparently overlooked night-time care funding. This is contrary to the Guidance:
13.4 The review will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment. It should also identify other circumstances which may have changed, and follow safeguarding principles in ensuring that the person is not at risk of abuse or neglect. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.
This guidance is based on public law, the principle having been established many years ago in case called Killigrew that if needs have resolved or lessened, of course there can be a cut but only if the improvement is rationally and objectively evidence based and not just because of good care that will then not be funded. The LGSCO report echoes the reasoning saying
29. If, as a result of a reassessment, a support package is reduced, or changed in a significant way, then the law requires that the Council provides a detailed and convincing explanation as to why, for example, because the person’s condition has improved substantially. In this case, there appears to have been no reduction in Miss X’s needs between 2019 and 2021.
It is telling here, we think, that the investigator acted as the Administrative Court would do in finding that the council’s differing from the professional opinion was not justified by any rational explanation: in legal terms, Croydon failed to address the evidence. Making a finding that went against the apparently current position of the council is not overstepping the role of the LGO if it cannot be satisfied that there WAS any effort to address the evidence: it is fault to fail to act in accordance with established legal principles.
When it comes to care planning, Councils may consider their finances as one feature of their consideration as to how (not whether) to meet needs, but it can only be one. In this case it appeared that funds and arbitrary mechanisms to cap costs at the equivalent of care home fees (such as is implicit in asserting 24 hour care could not be funded in a person’s home) were the Council’s driving concerns. Paragraph 10.27 of the Guidance outlaws this, in direct terms, but once again, that is because of the underlying public law principles that inform the Guidance in the first place.
Such arbitrary or blanket determinations are unlawful and equate to the Council fettering its discretion as to how to meet assessed needs. The investigator was trenchant in their summary of the evidence:
47 In this case, the Council appears to have initially taken the view that Miss X’s needs could not be met because they occurred at night, and this was not a service the Council provided because it was too expensive.
48 This is evidenced by the comment made in the case notes that “the Council cannot fund 24 hour care in a person’s home”. It went on to say such care could only be provided in a residential setting.
49 The Council seems to have viewed Miss X’s need to be turned at night to the equivalent of a 24 hour care package. It said the hours offered were enough for her to be able to manage. This demonstrates the Council’s focus was on budgets and not Mrs X’s needs or wellbeing.
52 This approach effectively capped the available budget for home care to that of a residential placement. Blanket policies of this nature are unlawful. It amounts to a fettering of the Council’s duty to meet an assessed need. Councils cannot simply take the cost of a residential care home as the benchmark figure for other care packages. In this case, such an approach would leave Miss X with little option of accepting residential care, or a reduced care package.
Also, when a revision is considered appropriate, s27(5) of the Care Act requires that councils must take all reasonable steps to reach agreement with the adult concerned about how it should meet those needs. That clearly had not been done in this particular case.
The full Local Government Ombudsman report on the actions of The London Borough of Croydon can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-000-071