Decision Date: 21st November 2022
What happened
A pre-Covid19 Care Act assessment of Ms. K (who had learning difficulties) whilst she was living at home with her parents, Mr and Mrs X, had identified a weekly need for 24 hours of care and three days’ return transport for a daycare centre (8 hours each day) for which Ms. K paid an assessed contribution of £45 per week.
Closure of the centre during the pandemic prevented Ms. K from attending. After the pandemic Ms. K was offered 12 hours’ care (four, 3 hour half-days) at a different provision, and Mr. X, who subsequently reduced this to three days totalling 9 care hours, was expected to provide the transport.
In February 2022 a new financial assessment raised Ms. K’s weekly charge to £50.98 and Mr. X wrote to the Council requesting copies of Ms. K’s care plan, financial assessment and he complained that Ms. K had an increased charge despite her fewer care hours; was now paying for her own transport, and had not had a care review or contact with a care manager for 2 years.
In March 2022, a care manager apologised for the disruption to Ms. K’s care provision and upheld the complaint regarding changes to Ms. K’s care package without a care review and also regarding the lack of a financial assessment despite provision changes.
The care manager also stated a review manager would seek to understand the history of changes to the funded services as a result of Covid-19, carry out a reassessment of financial contributions, consider (Ms K’s) current needs, and work with Ms K and those important to her to formulate a robust Care Plan.
In late March 2022, while reviewing Ms. K’s needs, a social worker noted from Mr. X that Ms. K was still being charged for her 24 pre-pandemic hours (not the current 9), that transport should have been reinstated.
The social worker also enquired if full days were available from the daycare provider while Mr X persisted in voicing his concerns about Council invoices, which he saw as based on Ms. K receiving 24, not 9 care hours per week.
At the end of April 2022 a finance officer explained that Ms. K was not paying for all of her care, just an assessed contribution which was the maximum payable, even if her care cost more, and the amount of it went down.
The social worker then stated to Mr. X that she understood contributions had been explained, that Ms K was required to use her mobility vehicle instead of Council funded taxis, and that an additional half day was temporarily available at the day centre.
Mr X advised his car was not a mobility vehicle and asked why transport was not in place as it had been pre-pandemic. He complained about continued invoices and the Council failure to provide a taxi without which he could not accept the extra half day of care offered for his daughter, if he was expected to transport her.
Mr X complained to the LGSCO concerning:
- Ms. K’s invoices – which her father had been paying at a proportionately reduced amount
- The lack of carer’s assessments for himself or Mrs. X.
The Council advised Mr X that failure to pay the outstanding amount would lead to recovery action.
During the LGSCO’s investigation the Council said:
The daycare had lacked spaces but Ms K would be offered a place when available. They had increased the 9 hours available post-Covid to 16, over two and a half days which was working well for Ms. K and their records were faulty concerning the availability of a mobility car and so taxi transport had been reinstated via direct payments.
They also said that the financial assessment had been conducted according to required regulations, that Mr X had not been offered a carer’s assessment but Mrs. X had received one in 2017, and that the Council had also paused recovery action.
Mr. X said then that the Council had not accounted for living costs in the financial assessment and that the allowed disability related expenses (DRE’s) did not reflect the genuine actual outlay.
What was found
The Council were not at fault for the lack of provision during the pandemic and although there was a delay between services resuming and an annual review taking place, it did not lead to a change in services. However, the delay in assessing Ms. K’s care contribution did cause Mr. X to believe Ms K was being overcharged but, as the assessment had been conducted according to the correct regulations; which define that a person’s contribution (based on their resources and the minimum income guarantee) always remains the same irrespective of provision changes for as long as the funded provision is greater that the personal contribution the Council were not required to waive the debt owing for Ms. K’s care contributions.
However, the Council was wrong to assume Ms. K had a mobility vehicle to transport her to day care, resulting in the alteration of transport provision and costing both time and money.
The Council was also at fault in failing to offer timely or any carer’s assessments to Mr and Mrs X, thereby leaving them without the opportunity to identify potential support needs of their own, and thereafter potentially receiving any grants or services that may have supported them in the continuance of their caring role, if found to be eligible carers..
As such and recognising the Council had already reinstated Ms. K’s transport, the LGSCO directed that within one month of its final decision the Council should:
- Reimburse Mr. X for transport provided prior to its reinstatement and pay him a further £250 for his time spent providing that transport.
- Offer carers’ assessments to Mr and Mrs X and back pay, by one year, any payments that may otherwise have been made to them.
- Pay Mr. X £250 for having to remind the Council it had not carried out reviews and his time and trouble spent making a complaint.
The LGSCO stated that pending further comment from the parties, completion of the above measures would remedy the fault the LGSCO intended to find.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
This report makes clear that York City Council were required to pay restitution to Mr. X related to changes made to Ms. K’s care plan provisions including day care and transport, without first ‘remembering’ to carry out a post-Covid review and the proportionate reassessment of her needs that would have been required, for a significantly longer period than the recommended 12 months.
It does not however, explain the cause of the eight month delay between the lifting of all Covid related reductions to a package or a service, in July 2021 and Ms. K’s eventual needs review in March 2022.
Regarding carer assessments the Local Authority had a duty to offer and/or regularly review carers’ assessments for both Mr. & Mrs X given their status as carers and the associated appearance of need. Too often carers’ lack of understanding of what an assessment could achieve for them is allowed to justify regarding them as not wanted, even if the professional thinks that they are needed, and this is very much a function of Advice and Information, which is largely overlooked.
With regard to the financial assessment, it appears (though it is not specifically stated) that no new financial assessment was carried out following Ms. K’s initial, Covid related provision changes reduction. It was chaos at the time, but it was acceptable to defer financial re-assessment under government Guidance as long as a council told clients that they might be retrospectively re-assessed. Here, the perceived problem was that there was no reduction in charges to match the reduction in services but that was Mr X’s non-comprehension of the system in play; the charge is assessed as the maximum one can afford to pay, under the rules, regardless of the content of the package. So as long as the services that WERE accessed still cost more than the charge, the full charge was payable.
The report then indicates that in February 2022, Ms. K’s assessed charge was altered without a new financial assessment taking place, we suspect upon an uplift on benefits coming IN, without sufficient engagement with Ms. K’s family (thereby causing confusion and further problems) and without providing them with a copy of the new financial assessment.
Nevertheless, the precise chain of events regarding the financial assessment remains unclear given that the report states in February 2022, a new, undisclosed financial assessment, which raised Ms K’s contribution, had taken place following un-assessed care package changes and that it was notification of an increased weekly charge resulting from this undisclosed assessment which subsequently led Mr. X to request a copy of that assessment. However, whilst it is not clear if Mr X ever received that copy, it is clear that subsequently a care manager apologised for the lack of any financial assessment (since 2019) and offered a reassessment of financial contributions.
As such it may have been helpful if the LGSCO had provided more detail as the report currently appears to leave several questions unanswered or unexplored.
NB – For further information concerning a landmark ruling regarding charging policies (SH v Norfolk 2020) and CASCAIDr’s response about it to all Monitoring Officers, Finance Directors and DASSs within social services local authorities in England (cc to the LGSCO and NAFAO) please see:
https://www.local.gov.uk/letter-centre-adults-social-care-advice-information-and-dispute-resolution
The full Local Government Ombudsman report on the actions of The City of YorkCouncil can be found here:
https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-000-366