What Happened
Mrs Y received a direct payment to cover fuel for transport and a membership payments to enable her to access the community – some religious and culturally appropriate groups and swimming at a local gym. Mrs Y’s daughter, Mrs X, complained about poor communication from the Council, delays completing home adaptations and that Mrs Y’s support and fuel payments were paused and then cancelled without communication, causing distress and uncertainty.
From June 2017 Mrs Y had been in receipt of a package of care from Surrey County Council. A direct payment was set up in December 2018 for a total of £43 per week to cover fuel, for family members to transport Mrs Y to groups that met her cultural needs, at a cost of £35 per week, and gym membership, to support with Mrs Y accessing swimming for her health and wellbeing, at a cost of £8 per week to cover the swimming entrance.
In April 2020, Mrs X was contacted by the council to check if the £8 per week for the swimming was being used. Mrs X advised the council she had not been using the £8 per week for that, but had instead been paying out of her own money to enable Mrs Y to access swimming at the gym.
The council suspended the direct payment, due to the pandemic closing down access to swimming and the groups. The plan was updated to reflect that suspension. The family coped privately with supporting Mrs Y during lockdown.
A care needs re-assessment took place in September 2021 with the direct payment being changed in October to £35 down from the original £43 per week to cover fuel to enable Mrs Y to access her cultural groups. Mrs X was informed via email of this change.
A review was then undertaken the following month in November 2021. This highlighted £8 per week of the original direct payment had been used on fuel to enable Mrs Y to access the community. The council advised only £35 per week was ever authorised to be used for fuel and the additional money spent would need to be recovered.
Mr B, Mrs Y’s son, contacted the council to discuss the September restarted payment which had been reduced by £8 per week as Mrs Y would like to access swimming once again. Mr B was informed by the council that if Mrs Y wanted to access the gym, “she would need to pay for this herself.”
In December 2021, Mrs X contacted the council for the fuel costs to be reviewed as these had increased and for the £8 per week swim payment to start again.
A review was completed in January 2022 with the council advising Mrs X that Surrey County Council would not fund the swimming for Mrs Y as this was a health need, however they would fund someone to support Mrs Y to go swimming. The fuel payment was increased to £40 per week and four hours were agreed for a personal assistant to take Mrs Y swimming.
A meeting took place in February 2022 by the council, it was agreed to increase the personal assistant hours to ten per week but remove the payment for fuel. It was said that Mrs Y had agreed to that.
Mr B had a conversation with the council in March 2022 to advise the family were willing to provide the support to Mrs Y to go swimming and they did not want to use a personal assistant.
Mr B was then informed that fuel was ‘no longer to be paid for under the direct payment.’
Following this, Mrs X emailed the council for the fuel costs to be reimbursed and the direct payment to go back to covering the fuel and gym payments to meet Mrs Y’s needs. The council advised Mrs X the direct payment ‘is not for fuel costs’ and is to be used for a personal assistant to take Mrs Y swimming and to events that meet her cultural needs.
Mrs X then proceeded with a complaint to the council about the change to the package of care and the Council not informing her of this change, stating that she thought there was a lack of information provided about changing the care plan.
In April 2022, the care plan was changed again, and backdated it supposedly to February 2022 to the previous change date, to include £40 per week fuel and four hours per week for a personal assistant.
The council also replied to Mrs X’s complaint advising that swimming was a health need and would not be funded. They apologised for the lack of communication to the family.
Mrs X spoke to the council in May 2022 to advise she was unclear about what the direct payment could be used for and her concerns about employing a personal assistant. The council responded advising a team can manage the account on her behalf if she did not want to be an employer. Mrs X responded in June advising that a Mr B would be the personal assistant and requested this be backdated to February when the other payments changed. But she wanted 10 hours, not 4, per week.
The council then requested further information about what support he would offer.
The council highlighted in June 2022 the family had overspent on fuel and the money for the personal assistant had not been used and would be reclaimed back.
Mrs X spoke to the Council in August requesting the ten hours per week be backdated. The council advised the package had gone back to four hours per week and £40 fuel per week and that the Council wanted further information about what support Mrs Y was receiving and from whom.
Mrs X then contacted the ombudsman.
What was found
The council were found at fault for not communicating or having discussions with the family prior to the later changes being made to Mrs Y’s support plan. The ombudsman could not find any evidence as to why the support changed from four hours per week, to ten hours per week or that these changes were discussed or communicated with the family before the changes took place.
The council were also found at fault for ever funding the swimming aspect of the care plan, as this was a health care need, however Mrs Y benefited from this payment so it did not cause her an injustice.
It was found that the council were not at fault for the care needs review in September 2021 as they included Mrs Y’s family in the review and communicated the changes.
At the time of this report, the case was awaiting a decision to be made by Surrey County Council in respect of backdating the increased personal assistant hours, and if Mr B would be able to provide the support.
Surrey County Council apologised to the family and agreed to pay Mrs X £100 for distress caused to both Mrs X and Mrs Y as a result of the poor communication. No investigation was made into the delay regarding adaptations as Surrey County Council are only responsible for the occupational therapist reports and not the actual move or adaptations to the home which is a responsibility of the Housing Authority.
Points for the public, service users, service providers, social work staff and management, families, advocates etc
There are a few sections and provisions within the Care Act 2014, Section 27 – and the Direct Payments Regulations that apply to this case, all predominantly around communication, the sharing of information and involving the person or relevant people within the process.
Section 27 of the Care Act 2014 covers a Council’s obligation to review the care and support plan.
Subsection 2(b) states a local authority may revise a care and support plan; and in deciding whether or how to do so, it must involve the adult to whom the plan relates, any carer that the adult has, and any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.
Subsection 27(4) of the Care Act 2014 states that a revision cannot take place without an assessment – a re-assessment for these purposes. S27(5) repeats the ordinary first time around care planning duty to take all reasonable steps to reach agreement with the adult concerned. That obviously requires some form of contact, and the report makes no mention of Surrey County Council contacting Mrs Y about her care plan changes in February 2022.
In September 2021 there was adequate involvement of family members, but with regard to the subsequent changes to support made in February 2022, when the personal assistant hours were increased from four to ten and fuel payments stopped, there was no evidence as to why the change occurred, or any that it was discussed.
This could be down to bad record keeping or because it simply did not happen, which is why Mrs X complained in March 2022 for the Council not informing her about the change. That would make it unlawful if Mrs X had been using the public law route.
The Care and Support (Direct Payment) Regulations, Review of Direct Payments regulation 7(1)(a) states that a local authority must conduct a review – in the case of someone having their budget by way of a direct payment – for the purpose of ascertaining whether the making of direct payments is an appropriate way to meet the adult’s needs at intervals not exceeding 12 months – after one within the first 6 months of the arrangement.
It then states under paragraph (2) that when complying with its duty in paragraph (1), the local authority must involve the adult; any carer that the adult has; the authorised person to whom the direct payment is being made, etc.
Perhaps this requirement is not known about in local authorities because it appears only in the regulations – but it does set it out in the Guidance:
12.24 The Care and Support (Direct Payments) Regulations 2014 set out that the local authority must review the making of direct payments initially within 6 months, and thereafter every 12 months…
The stance that swimming is a health need and thus cannot be funded by a council is a surprise in an LGSCO report. Funding access to swimming as a facility under s8 of the Care Act could be the means to promote a wellbeing need. The notion that it must be better to pay for several hours of an employee cost when a family is willing to take a person there for nothing as long as their fuel is paid, would seem to us to be a bizarre shot in the foot for Surrey to have administered to its own credibility as a person-centred care planning authority.
There is no bar at a legal level on spending direct payments on fuel costs. If transport is part and parcel of the meeting of needs, it obviously has to be funded. People are not required to convey their relatives to services; and concessionary transport may be no good at all as an informal way of getting a person there, if it’s not suitable for that task or the person can’t go alone. We suspect that the council’s reinstatement of the fuel payment was on account of the case law regarding financial support and funding of activities in the Suffolk holiday case known as BG.
The full Local Government Ombudsman report on the actions of Surrey County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-005-425