Decision Date: 10 January 2023
What happened
Ms X complained that the Council (Essex) failed to arrange funding for care and support for her son, Mr Y, in the form of direct payments. She also complained about his financial contribution.
Mr Y lived with autism and mental health issues. He moved to the Council’s area with his parents, with whom he lived, in June 2021. Prior to this, he was living in Council B’s area, where he received a direct payment in order to meet his care and support needs. Ms X, on behalf of Mr Y, used the direct payments to employ personal assistants. At this time Mr Y was not paying any financial contribution towards his care.
Ms X and Council B emailed the Council in April 2021 to advise that Mr Y would be moving to its area in June 2021. The Council’s records indicate it processed the referral at the beginning of July 2021.
A Social Worker for the Council completed an assessment for Mr Y in mid-July. This assessment determined that Mr Y was eligible for social care. Ms X requested that the care and support be set up via direct payments. The assessment noted the direct payments Mr Y was receiving from Council B had been working well.
In August 2021, the Social Worker completed the care and support plan, and a weekly direct payment was arranged which was the same as the previous amount received from Council B.
In October 2021, the Council completed a financial assessment with Ms X by phone which determined that Mr Y’s maximum weekly charge was £53.
Mr Y’s care plan was reviewed in November 2021. The outcome of this review was that Mr Y’s care provision was working well and meeting his desired outcomes. The review also noted some potential disability related expenditure (DRE):
- Extra electricity and washing powder for laundry
- Additional heating and cooking costs as Mr Y was at home all day
- Additional water costs as Mr Y washed his hands a lot due to a condition
- Internet, clothes, furniture, decorating, travel insurance, and holidays
The Council considered Mr Y’s DRE disregard request and agreed to DRE for laundry, water and electricity but did not agree to the other items as these were ‘normal costs everyone had to pay and there was no evidence of additional expenses connected to Mr Y’s disability’. The Council wrote to Ms X in March 2022 advising her of this [and presumably amended the maximum weekly charge].
Ms X complained to the Council in April 2022 about the delays in setting up Mr Y’s direct payments, leaving a significant gap in time between him moving to the area in June 2021, and receiving the first direct payment in October 2021. She further complained that this direct payment was only backdated to 23 August 2021 and complained that Mr Y could not afford the financial contribution he had been assessed to pay.
The Council responded to Ms X and apologised for the delay in arranging the direct payment and that the process was not as smooth as it could have been. It agreed to review the payments and ensure that the correct funding and dates applied. The Council advised that, due to the delay in completing the financial assessment, Mr Y would not need to start paying his financial contributions until 9 October 2021. Mr Y was advised to start paying his contribution into the direct payment account and a payment plan was drawn up for the arrears [from October 2021 to April 2022].
The Council further agreed to review Mr Y’s DRE following receipt of further evidence from the GP that additional costs were due to his disability or medical conditions.
In April 2022 Mr Y’s care and support plan was reviewed. Ms X remained unhappy with the charge but was happy with the care and support
What was found
The LGSCO found that the process of transferring Mr Y’s care and support was not in line with Care and support statutory guidance which sets out what should happen when an adult who receives care and support moves from one area to another. It says the council where the person is moving to should complete an assessment and develop a care and support plan before the move. In situations where this isn’t possible, the receiving council should continue to meet the person’s needs as was originally in place, until it has completed its own assessment.
The key to good care and support in these situations is continuity and communication between the authorities and the person (Care and Support Statutory Guidance paragraphs 20.4, 20.5 and 20.25).
Ms X and Council B referred Mr Y to the Council in April 2021, giving the Council plenty of notice of the move and time to complete its assessment. In failing to do so the Council caused Ms X avoidable distress and time and trouble complaining, as well as causing uncertainty for Mr Y in whether his care needs would be met. This was fault.
The LGSCO found no fault with the Council applying a financial contribution from Mr Y towards his care. The Care and Support (Charging and Assessment of Resources) Regulations 2014 give power to councils to charge for care and support as long as this is within the minimum income guarantee (MIG) which sets the minimum amount of money people must be left with before a council can charge them for their care.
The LGSCO found that the Council allowed Mr Y to keep notional rent [we presume this to be payments made to his parents, with whom he lived, towards household costs], mobility payments (taken as a vehicle) [these are mandatorily not counted], in addition to the MIG and so was satisfied that the Council completed its financial assessment in line with the Regulations. This was not fault.
The LGSCO recommended that the Council apologise to Ms X for the avoidable distress, time and trouble and pay her £150 within one month.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Section 37 of the Care Act 2014 applies where—
- an adult’s needs for care and support are being met by a local authority (“the first authority”) under section 18 or 19,
- the adult notifies another local authority (“the second authority”) (or that authority is notified on the adult’s behalf) that the adult intends to move to the area of the second authority, and
- the second authority is satisfied that the adult’s intention is genuine.
The Act is clear that the second authority must
- assess whether the adult has needs for care and support and, if the adult does, what those needs are, and
- where the adult has or is proposing to have a carer and it is appropriate to do so, assess whether the carer has or is likely to have needs for support and, if the carer does or is likely to, what those needs are or are likely to be.
In this case the Council were given ample notice to comply with their duty, notwithstanding the pressures that the COVID-19 pandemic placed on local authority waiting lists, and it is more than disappointing that one of the more basic tasks i.e., providing a like-for-like service, even in the short term, wasn’t complied with!
We are pleased that the LGSCO rightly addressed the Council’s failure to adhere to the continuity of care provisions. But the continuity duty is worded as follows:
S38(1)
… it must— (a) meet the adult’s needs for care and support, and the needs for support of any carer who is continuing as the adult’s carer, which the first authority has been meeting,
Ie to make the provision, so the payment from the previous council, should have been backdated as a matter of law.
The Council was fair in its agreement to review Mr Y’s DRE requests for internet, clothes, furniture, decorating, travel insurance, and holidays, following receipt of additional evidence from the GP that additional costs were due to his disability or medical condition, which demonstrates an open-mindedness that is too often lacking, and criticised, in similar LGSCO complaints.
The Care and Support Statutory Guidance sets out what should be considered as potential DRE, including:
- Costs of privately arranged care services,
- Personal assistance costs, including any household or other necessary costs,
- Transport costs necessitated by illness or disability.
The Guidance also states that the above list isn’t exhaustive and that ‘’any reasonable additional costs directly related to the person’s disability should be included’’ (Paragraph 40), and ‘’flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support’’ (Paragraph 41).
The full Local Government Ombudsman report on the actions of Essex County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-010-085