Decision date: 08 May 2024
Summary: The LGSCO investigated a complaint against two Councils following an adult’s move to a new area, finding that both were at fault for failing to comply with the continuity of care provisions set out in sections 37 and 38 of the Care Act 2014 and the Statutory Guidance.
Devon County Council failed to complete a timely assessment of care needs when the adult moved into its area and breached its statutory duty by failing to meet the adult’s needs set out in the first council’s care and support plan until its assessment had been completed.
What happened:
K has learning difficulties and eligible needs under the Care Act 2014. She lived with her mother (Mrs B) and father at home. K was in receipt of a package of care from Council X (the council for the area in which they previously resided). This package of care was provided partly by way of direct payments and partly by directly commissioned services.
In August 2022 Mrs B informed Council X and Devon County Council that they intended to move to Devon in December 2022.
In November 2022, Mrs B emailed Devon County Council to confirm that they would be moving on 3 December 2022. She informed them that K would require day provision and funding for a Personal Assistant (PA) and attached information about K’s needs. Devon County Council told Mrs B that it had made a referral for K to have a needs assessment.
Council X continued to provide funding for K until 16 January 2023.
In January and February 2023, Mrs B contacted Devon County Council again as no assessment had taken place and K was struggling without support. Mrs B was told that K was on a waiting list and would be contacted once a social worker was allocated.
In the absence of any support, Mrs B paid K’s previous PA to travel from the area where they used to live, to Devon, to provide K support for two weekends.
In March 2023 a worker from Devon County Council’s Reaching for Independence Team started to visit K on a weekly basis, taking her out for travel training or social activities.
In April 2023 Devon County Council completed the needs assessment and determined that K required a PA for 18 hours/week as well as 3 nights a month at respite.
In May 2023 K started attending respite. In July 2023 K started receiving direct payments to fund a PA. These were backdated to 17 May 2023.
K was without support from January to May 2023. Mrs B said the lack of support caused emotional difficulties for K and the family struggled with the lack of respite from caring for K.
What was found:
When a person in receipt of social care chooses to move from one Council area (first council) to another Council area (second Council), both Councils must work together to ensure there is no interruption to the person’s care and support.
This process, referred to as ‘continuity of care’, is set out within sections 37 and 38 of the Care Act 2014, and further guidance is provided within Chapter 20 of the Care and Support Statutory Guidance.
The LGSCO found Council X and Devon County Council at fault for failing to follow this process:
- Council X was informed in August 2022 that K was planning to move to Devon and failed to notify Devon County Council to start the continuity of care process.
- Devon County Council claimed that it was notified by Mrs B of the move on 26 November, only 5 working days before the move. However, on consideration of the evidence, the LGSCO found that it was likely on the balance of probabilities that Mrs B herself informed Devon County Council of the move several months earlier. Devon County Council failed to start the continuity of care process when informed of the move.
- Devon County Council delayed carrying out the Care Act assessment and failed to ensure K’s needs were met until 5 months after she had moved to Devon.
The LGSCO recommended that both Council X and Devon County Council should make a payment to K for their failure to follow the continuity of care processes, which caused distress and led to an interruption of K’s care and support for 5 months.
The LGSCO also recommended that Devon County Council make a payment to K and Mrs B to recognise that it failed to ensure K’s needs were met between 16 January and 17 May 2023.
Council X issued an apology for the failing in this case and reviewed its procedures, developed a Transfer of Care Protocol and reiterated to staff the importance of following continuity of care provisions.
Council X also agreed to make payments of £300 to K and £300 to Mrs B in recognition of the distress and interruption to care.
Devon County Council agreed to:
- Apologise to K and make a payment of £1000 in recognition of her distress and lack of sufficient care during those 5 months.
- Apologise to Mrs B and make a payment of £2000 in recognition of her distress and as reimbursement for the cost incurred for paying for K’s support during that time.
- Provide training to staff in respect of the Council’s continuity of care duties.
- Review its procedures to ensure appropriate actions are taken when informed that an adult with care and support needs is moving to its area.
Points to note for councils, ICBs, professionals, people using services and their carers, advocacy groups, and members of the public
A council only has a duty to meet eligible needs for a person who is ‘ordinarily resident’ in its area (although it has powers that extend further than that). Where a person moves from one council area to another, ordinary residence transfers on the date of the move (there is an exception to this rule where the person receiving care from the council is moving into ‘specified accommodation’, as defined in regulations, in which case the person is deemed to remain ordinarily resident in the area they previously lived).
To ensure that adults moving between areas are not left without the care and support they need, there should be continuity of care, even though there is a shift in responsibility, when a person moves from one area to another.
In accordance with the continuity provisions set out within sections 37 and 38 of the Care Act 2014, and Chapter 20 of the Care and Support Statutory Guidance, the following procedure should be followed:
- The person or the first Council notifies the second Council that the person intends to move to its area.
- The second Council notifies the first authority that it is satisfied the adult has a genuine intention to move and provides the person with appropriate information over and above the general information it must provide to anyone in its area.
- The first council provides the second authority with copies of relevant documentation it holds, including care plans, recent needs assessment and personal budget.
- The second Council carries out a needs assessment, before the move, in theory.
- In practice, Councils are allowed to wait as long as they continue the basic profile of needs and budget allocation, having regard to the first authority’s care and support plan.
- Pending the move, the first Council must keep in touch with the second Council to check the progress being made to meet the person’s care and support needs when the move takes place and to make sure the person is kept informed.
- Both Councils are expected to identify a named staff member to lead on the case and ongoing contact during the move. They are jointly responsible for facilitating continuity of care within an acceptable timeframe.
- Where the second Council’s eventual own assessment would result in a different level of service to that provided by the first authority, it must explain in writing any difference to the adult.
- If the second Council has not finalised its assessment and/or arrangements to provide services when the person arrives in its area (which is usually the case), it must meet the needs set out under the first Council’s care and support plan until its own assessment has been finished.
- The first Council’s duty is then discharged.
In this case, Devon County Council breached its statutory duty as it failed to comply with the requirement (set out in Section 38) that, where an assessment has not been completed by the date of the move, the Council must meet the person’s needs for care and support which the first Council had been meeting. Devon County Council should have been providing support to K as per Council X’s needs assessment until it had completed its own assessment.
The thing we cannot understand is how a complaint to the council itself, on these facts, could possibly have been rejected, necessitating going the further stage to the Ombudsman.
This report is another example of the Ombudsman’s remedial recommendations needing to take account of the development in the wider public law legal framework – namely, the need for a council to pay restitution to put the person back in the financial position they would have been in had the Council known what its duty was and had decided to abide by it.
If you are affected by the issues in this report, please consider asking us a free One-off Question, at a level of principle, here.
The full Local Government Ombudsman report on the actions of Devon County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/23-012-482