Decision Date: 8 February 2023
In July 2020, through their solicitor, Ms Y made a number of complaints to the Council on behalf of Mr X. Whilst not specifically set out in the report, it would appear from the reported facts, that the Council:-
(a) had failed to carry out a proper care needs assessment for Mr X since 2008;
(b) failed to investigate the insistence of using an advocate during a 2017 assessment; [this was not investigated so we cannot tell who was insisting on what, here]
(c) did not involve Ms Y in the 2017 assessment process; and
(d) ceased Ms Y’s carer’s direct payments.
In March 2021, in the Council’s final response to the complaint made through the solicitor, the Council agreed to a jointly-appointed independent social worker (ISW) completing a new care assessment for Mr X, which would ‘determine’ his Care Act eligibility and ‘make recommendations’ to the Council. It was also agreed that Mr X would be allocated to a different team with a different social worker. In addition, the Council would back-date Ms Y’s carer direct payments (DPs) as from 1 May 2019 at the rate they had been paid at until the completion of a new care plan for Mr X, which would total £10,857.14. Finally, the Council agreed to pay a total of £750 each to Mr X and Ms Y in recognition of their time, trouble and distress as a result of the failings in service.
Mr X and Ms Y subsequently made a complaint to the LGSCO in the same terms as above, but further contending that the Council had failed to implement the resolutions which were agreed in March 2021.
What was found
Regarding the implementation of the March 2021 complaint response:
In March 2021, the Council backdated Ms Y’s direct payments and paid her and Mr X £750 each. In April 2021, Mr X was allocated different staff (in accordance with what was agreed in March 2021) and in May 2021, Ms Y’s solicitor began arranging an ISW. This however, remained incomplete as the Council took eight months from the complaint in July 2020 until March 2021 to respond to Mr X and Ms Y’s complaint (above). Furthermore, the Council,without explanation, took a further three months between March 2021 and June 2021 to provide a list of potential ISWs. This was fault.
Following this, the Council agreed to continue the search for an ISW and provide a shortlist, which took a further nine months between July 2021 and March 2022. The Council said this was only partially its fault; the LGSCO disagreed, and found this delay was fault by the Council – it had ended up compiling the short list jointly. A further four months were spent determining which of those shortlisted for the ISW role should be appointed to complete the new assessment. This was not found to be fault; however the Council failing to respond to Ms Y’s solicitors on two separate occasions including as to the contents of the letter of instruction, was fault.
The LGSCO report noted that an ISW had been appointed and a report from them was due in January/February 2023 but that the overall 20-month delay in assessing Mr X was fault. This had left him unsure of whether his needs were being properly met and had also caused him distress. The Council agreed to backdate any increase in his personal budget for six months.
Regarding Ms Y’s carer’s support:
The LGSCO noted that Ms Y’s carer’s direct payments had continued until May 2021 and that the agreement by the Council to continue making the payments until then indicated it expected to complete Mr X and Ms Y’s assessments by then. In June 2021, the Council said Ms Y did not want a carer’s assessment until after Mr X’s assessment was completed. As such, this was Ms Y’s choice and not a fault on the Council’s part, who nevertheless agreed to backdate any identified service for six months after any carer’s assessment was completed for Ms Y.
The LGSCO noted the Council had agreed, within four weeks of the decision, to apologise to Mr X and Ms Y for the delays, pay each of them £460 for avoidable distress, complete Mr X’s care needs assessment through the ISW’s recommendation and backdate any increase in the personal budget for six months, complete a carer’s assessment for Ms Y and likewise backdate any identified service/funding for six months. The LGSCO ruled that the Council should provide it with evidence that these measures have actually been complied with.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The LGSCO did not investigate Mr X’s or Ms Y’s complaint about the lack of proper care assessments since 2008, or the issues relating to a 2017 assessment because these were late complaints (ie when someone takes more than 12 months to complain to the LGSCO about something a Council has done). The LGSCO does have the scope within their powers to look at more historical issues, but this has to be for good reason, as this has to be weighed against the possibility of unavailable records, the passage of time and the possible unfairness to the Council or other public body. The recent case of Birmingham (19 012 575) was one example of when the LGSCO considered there was good reason to go further back.
A person ‘should’ be reassessed/reviewed every year and, although the LGSCO does, in our experience allow some leeway on this, any gap over a year can be considered as fault. There may however be circumstances where the delay was ‘reasonable and acceptable’ and this would be looked at on a case by case basis, during an investigation by the LGSCO. This report brings out nicely that any failure to assess or re-assess, does not only impact the service user but also any informal carer(s) helping the service user for free.
The legal framework for review and revision is set out in Section 27 of the Care Act, which provides for review from time to time, or as per a schedule, or on the basis of any reasonable request by or on behalf of a service user or the carer affected by the plan, or with regard to their own plan. A change in circumstances is usually the trigger to an unscheduled review but it doesn’t have to relate to the service user – it can relate to the council’s situation, the market, changes of the provider’s staffing capacity, etc.
Section 10 of the Care Act sets out the legal framework for an assessment of a carer’s needs for support and the duties that the Council owes in this respect. In this case whilst the Council did cease direct payments, they agreed during the final complaint response to backdate Ms Y’s carer support payments at the same rate they had previously paid at, until the new care plan was in place. This resulted in a payment of over £10,000, which was to put Ms Y back in the position that she would have been in, had the council not ceased payments to Mr X. This is equivalent to the remedy of restitution, whereby public bodies of all types sometimes have to pay back money in circumstances where they would have been unjustly enriched at someone else’s expense (Ms Y’s).
The LGSCO would not have been able to quantify the amount itself without usurping the role of the council in terms of its decision as to the extent of the response required, to meet needs, so it was strategically sensible of the council to offer to do it for the 6 month period.
In fact, given a solicitor was involved for the complainant it would have been more prudent to leave that period open ended, in our view, lest the lawyer advised going to court for backdating for the gap between the level at which he HAD been funded, and the level it was now deciding he needed, if there was no evidence that he’d only recently deteriorated!
Process concerns and points of interest
The question would arise, who was assisting Mr X with the processes, if not Ms Y in 2017? And why was she not included if she had clearly been assisting and part of the process previously?
An Independent Advocate (IA) is one who works independently of the Council, appointed under the Care Act. Under the Care Act, the Council has a duty to arrange for an IA if there is no appropriate other person to support and represent the service user with that vulnerable person’s consent if he or she has capacity, and the council feels that the service user or carer would experience substantial difficulty being fully involved in the process, without support.
The Care Act allows a council to source help from outside to help it do assessments, or formally delegate the function of carrying out assessments. In both cases, the outside assessor is doing a professional task, on behalf of the council, acting as an agent. The former arrangement stops short of decision-making, whereas delegation extends the role to stand in the council’s shoes regarding the decisions about inability to achieve, and no doubt, the eligibility decision. Care planning similarly – most councils retain control over that!
In a delegation scenario, the council will remain liable in public law terms for the actions of that delegate, hence councils are entitled to instruct the delegate with regard to internal policy or practice guidance in the same manner as they would with their own staff. All such ‘instruction’, does of course have to be Care Act compliant, all the same – internal requirements cannot properly be imposed that are unlawful in public law terms.
Whilst any council may commission an ‘Independent’ social worker to carry out a care assessment, that ISW will be acting under the same legal framework as an in-house assessor. Truly independent social work is found in the context of a court- or jointly- appointed expert who is going to act as a witness for the parties and the court’s benefit.
Whilst the Council had already agreed, prior to the LGSCO’s involvement, to appoint an ISW, the LGSCO often recommends one and did include reference to that in the remedy. An ISW is usually appointed where poor practice by the Council has caused a breakdown of trust in competence or Care Act compliance, with the complainant, and the person is commissioned to act as if they were an independent expert owing a duty to a Court. But that is unusual, and it’s more common to find an ISE commissioned to act as the Council’s delegate or simply sourced to marshal facts about which the council’s own staff will make the eventual necessary professional judgment and in that sense, the ‘independent’ social worker may be instructed as if they were an internal member of staff on policy and practice or interpretation of the law.
The fact that there was an agreement to a joint instruction with the involvement of solicitors acting on behalf of Mr X and Ms Y, may indicate that the ISW here was instructed for dispute resolution purposes and may therefore have been expected to be fully independent, in the true sense of the word, as if acting as an expert witness. But the wording used in the report for the ISW’s scope of instruction was more akin to requiring a determination of needs (and we presume, eligibility), but recommendation only, regarding any response, so the report itself has been ambiguous, unfortunately. The agreement was described as ‘A jointly appointed Independent Social Worker (ISW) [to] complete a new social care assessment detailing Mr X’s eligibility which will also outline recommendations to the Council for their consideration.’
The LGSCO also recommended a further payment of £460 be made to both Mr X and Ms Y which is slightly higher than the usual scale of between £100 and £300 awards for distress. This was in addition to the sums already paid to them by the Council for previous service failings, and was perhaps awarded as a recognition of the prolonged period of time over which these failings had continued.
It is good to note that the report also highlighted that the council must consider the carer’s potential future needs for support – an aspect which we find is often overlooked. Logically, it should be for at least the next year until the next review.
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The full Local Government Ombudsman report on the actions of Cambridgeshire Council can be found here: