Decision Date: 5th May 2022
What happened
Ms D employed a personal assistant via direct payments which were provided to meet her eligible care needs. The PA left and Ms C, a family member, provided support until another PA could be employed. This was at the start of the pandemic, which made employing another PA difficult. The Council carried out a review, which established Ms C would continue providing care, pending employment of a new PA, and as such was placed in a situation where she was both a paid PA and an unpaid voluntary carer for Ms D.
In May 2019, an Occupational Therapist (OT) completed an assessment for aids and potential adaptations to Ms D’s property. During the assessment, the OT noted Ms C was hoisting Ms D on her own and advised against this. The OT suggested funding for a 45-minute morning call and three further 30-minute calls with two carers. The OT explained that funding was a social worker decision.
Through 2019 there were a number of issues.
Lockdown prevented employment of a new PA and Ms C struggled to provide the necessary care with the budget provided. A review by a social worker also noted the care package was not working, including noting Ms C was requesting a higher rate of pay.
Ms C contacted the Council twice in May and again in June, saying that she was struggling to care for Ms D. In July 2019, Ms C asked for extra support which was refused without any reassessment, saying Ms D already received four hours each day and three extra hours each week to access the community. In November 2019, Ms C raised more issues about Ms D’s care needs and the social worker again noted the risk around Ms C hoisting Ms D alone. Through this period Ms C was repeatedly told the care package budget could not be increased as she already had ‘the maximum.’
By April 2020, over a year later, the Council agreed to complete a reassessment, but COVID-19 prevented this until August 2020. Ms C said that from October 2020 she could no longer provide care. By May 2021 a care agency was commissioned to provide all of Ms D’s care.
Ms C complained that the Council had failed to provide Ms D with enough care, resulting in Ms C providing unpaid care and also having to leave her employment to support Ms D and also about the hourly rate of pay she received and underpayment of her wages. The wages were later resolved by the Council paying Ms C the difference and finally offering her a carer’s assessment. However, the Council refused to accept Ms C’s complaint on the basis she was a paid carer, stating there was a conflict of interest.
Ms C took a complaint to the Ombudsman about failure to provide an adequate direct payment and failing to listen to her requests leaving her with no choice but to provide extra care. This caused a decline in her health and well-being.
What was found
The LGO felt Ms C’s situation was unusual but was a short-term emergency measure that subsequently stretched over two years, with COVID-19 restrictions contributing to difficulties employing a PA and delays.
As Ms C was both a family member providing informal care as well as a paid PA, the LGO found the Council’s failure to consider her entitlement to a carer’s assessment properly as fault.
The LGO also found the lack of contract and employment information to be fault, noting that case notes showed Ms C was struggling and needed advice which was not forthcoming.
This created further issues around her hourly rate and being able to make informed decisions. There was also fault in the failure to complete a review/reassessment until August 2020, despite Council records showing Ms C was struggling and should not have been should hoisting Ms D alone. This was fault and not in line with paragraphs 3.19-21 and 13.32 of the Guidance.
The Council also told Ms C more than once it could not increase Ms D’s care package as it was already large. The Council did not base this decision on a review of the care plan or a reassessment. This was fault and not in line with paragraph 13.19 of the Guidance. Ms C therefore continued to struggle to support Ms D.
The Council refused to consider the complaint because it said there was a conflict of interest as Ms C was a paid employee. It failed to consider the context of the care Ms C provided and that she acted as both a paid and unpaid carer.
It was also unclear how the Council considered personal injustice sustained, regarding how a lack of services to Ms D affected Ms C. Ms C took the time and trouble in explaining this to the Council and it was a missed opportunity for the Council to consider her complaint before it reached the Ombudsman.
Ms C said because of the Council’s failures she suffered with stress and her physical and mental health was affected. Ms C also said she gave up a job to look after her family member. Ms C said the Council should pay her the extra amount the Council now pays a private agency for Ms D’s care package. She considered that this was the amount she should have received when she was providing care to the family member.
The LGO did not consider it appropriate to recommend a financial remedy which was based on what the Council would have paid a care agency for the period Ms C acted as a PA. This was because Ms C could have withdrawn her support at any point during the two years.
It is also unclear whether Ms C would have accepted an agency had the Council offered that option earlier. However the LGO did consider the Council’s actions causes Ms C stress, anxiety and frustration and recommended a financial remedy to reflect this.
The amount recommended by the LGO was at the upper end of their suggested range to reflect the extent of Ms C’s injustice.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
It was found that Ms C was hoisting alone and without assistance for some time. However, the Council failed properly to carry out a review, and so subsequently failed to undertake a reassessment, which may have led to further care services being provided.
The Council instead relied on the care package being ‘already large’ or ‘the maximum’ which should have been seen as fettering of its discretion and rung real alarm bells regarding breach of the Care Act (arbitrary cost cap – see para 10.27 of the Care and Support Guidance). An increase in service provision may have ensured that Ms C’s plan would have enabled Mrs C to continue with her paid employment.
These issues were already affecting Ms D and were sometime prior to COVID and the associated restrictions. If these had been addressed appropriately and not merely dismissed out of hand by the Council Ms D might not have had such difficulties and it would have been appropriate for the Ombudsman to state this in his report.
The lack of consideration of Ms C’s situation and that of the wider issues that added to these problems, ie COVID restrictions, flawed the Council’s determination regarding a conflict of interest. Ms C had been in a caring role for a number of years and it was only because of the onset of COVID that this had to change to become a mixed paid and unpaid carer. There is provision in s10 for precisely this mixed status kind of situation, and the council had itself waived the ordinary prohibition on a close relative in the same household providing the care.
We find it very interesting that the LGSCO referred to the possibility that is open to all carers, of refusing to care, as a good reason for not providing a financial remedy. We have to agree with the LGSCO on the law, but whenever we teach informal carers that they have a choice they most vehemently disagree, in the human sense. We suspect that because of the Covid link here, the LGSCO has made a policy decision not to open itself up to hundreds of potential complaints about people’s relatives wanting restitution from councils, given how many unpaid carers who simply stepped up without getting that clarified by ANY review, telephone or otherwise, at the start of Covid.
The report also found that the Council failed to provide proper information and advice regarding the roles Ms C was undertaking. This is a perpetual issue for all Councils and this report conveys a sense of widespread ignorance amongst the council staff here, of the legal framework, we have to say – the Care Act itself, the public law principles driving the nature of people’s legal rights, and the direct payment and carer framework too.
The full Local Government Ombudsman report on the actions of Birmingham City Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/20-012-501