Decision Date: 28 November 2024
Summary
Following a social care assessment in February 2023, despite Mr D’s eligible care and support needs not having changed in anyone’s opinion, the Council had wrongly appeared to reduce Mr D’s personal budget without providing an adequate explanation of how the revised plan could be seen to continue to meet his needs.
What happened
In January 2022, Mr D was assessed and given a care and support plan, which, according to his mother Mrs Y, sufficiently met his eligible care and support needs.
The personal budget was £653.24 per week (£33,968.48 per year) to fund personal assistants (PAs) to do 32 hours of support a week, including all associated costs; activities to maintain physical and emotional wellbeing, such as attending the gym, physio sessions and places within the community; and property maintenance in the budget, including a window cleaner and gardener.
In February 2023, Mr D’s needs were reassessed, with the assessment concluding that his in-place budget was working well and recommending that the funding for PAs should continue. Nothing in the assessment indicated that Mr D’s needs had changed or decreased since the previous assessment.
In July 2023, the Council issued a new care plan with a revised personal budget of £535.03 per week to fund 20 hours of support from PAs; mileage allowance for the PA to travel; life coach support for three hours every Saturday; gym sessions twice a week; property maintenance; respite support ‘floating’ for seven hours a week; and provision for Mr D to ‘request funding’ for PA support to attend activities of his choice.
Mrs Y complained to the Council concerning the apparent reduction in Mr D’s personal budget. She expressed her concern that the Council had accordingly neglected Mr D’s needs and requested a re-assessment.
The Council responded to the complaint, refusing a requested re-assessment, concluding that the most recent assessment was completed in line with the Care Act.
Whilst it appeared that Mr D’s support hours had been reduced, it said, in fact, an alternative service was offered in its place, such as the life coach who would support Mr D to develop his skills. In this way, the Council alleged that the overall personal budget had not been reduced, but was just to be used differently.
What was found
The Ombudsman identified that there was indeed a difference in the personal budgets allocated in the 2022 and 2023 plans.
Notably, the 2022 one provided for 32 hours of PA support each week whereas the 2023 included 20 hours of PA support alongside three hours of life-coaching and on-request support for Mr D to attend events. [In fact it seems to us to have included 7 hours of floating support as well, as far as we can see, so that would add up to 30 hours.]
In the 2023 plan, the Council did not provide any explanation as to why Mr D’s budget was able to be reduced or the justification for that cut. The review had concluded that Mr D’s in-place plan was working well and recommended that it remain in place. In the absence of any evidence to justify the revisions, the Council was at fault for making a change, and for failing to implement a care plan that actually reflected the findings of the assessment.
Once the Ombudsman got involved, the Council eventually provided a breakdown further evidencing that the personal budget, in fact, remained unchanged. As the revised weekly support plan amounted to £535.03 each week, approximately £118.21 was ‘left’ in the personal budget which could be used for Mr D to request approximately 9 hours of PA support each week to attend events.
Since this breakdown was not reflected in the July 2023 plan, however, the Ombudsman found the Council was nevertheless at fault. The revised plan merely indicated that Mr D could ‘request’ further support as needed, not necessarily equating to nine hours of support per week. This, therefore, could have resulted in a significant change to Mr D’s personal budget.
Such fault was deemed to have caused Mrs Y injustice as she unsurprisingly experienced confusion from the conflicting explanations given by the Council, alongside the time she put in pursuing the matter on Mr D’s behalf.
The Council needed to apologise and pay £150 to Mrs Y for the time and trouble caused by the identified fault; meet with Mrs Y and Mr D to discuss his care and support needs, requiring it to provide its rationale if it elected to continue to allocate only 20 set hours for weekly PA support. Mr D and Mrs Y were also to be allowed to comment on any changes made by the Council to the plan.
Before finalisation of any revised plan, the Council was ordered to continue to provide what was set out in the 2022 support plan, in a limited form of restitution.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This report underlines the significance of decision-making bodies giving reasons for their actions or assessments and abiding by the formalities of the Care Act.
There is nothing wrong with a flexible budget, with the broad areas on which it should be spent, allowing as much room for freedom as possible, being set down. They’re just remarkably rare these days, and sometimes they lead to conflict after the fact!
It’s possible, of course, that North Lincolnshire just failed to make clear that the budget ‘remainder’ (the difference between the old and the new) was for spending flexibly and that the old total was in fact still going to be funded, and that all the complainant needed to do was ‘ask’. Our instincts and experience do not make us think that that was likely, however. One would have thought that it might have realised that that was the cause of the complainant’s distress, somewhat sooner. Furthermore, the report says that the actual BUDGET was different, in the two iterations of the plan.
If the Council is to be believed about its original intention, the injustice experienced by Mrs Y was primarily caused by the lack of explanation and reasons given by the Council.
Not only did this result in confusion, but it also delayed and limited her ability to seek justice, as she was unable to engage with the Council’s arguments or understand their reasoning until the Ombudsman undertook further investigation.
If the Council had provided its reasoning initially, much time, resources, and stress could have been saved by all parties.
Furthermore, the Ombudsman’s remedy recommendations reflect its power to improve service provision.
The investigator reminded the Council that the ‘Care and Support Statutory guidance’ also says: “The plan must detail the needs to be met and how the needs will be met and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process and to the wellbeing principle in the Act”.
The decision is fortuitously in line with the case judgment in the Croydon case of P, in which that council had done a perfect assessment, but simply not understood it had to be followed through upon, with regard to a plan that was coherently linked through to it.
That is a senior management failing at the Panel level in our view – not understanding that a different sign-off to what is recommended is in fact the formal decision, which must be justified and still comply with the Care Act requirement that the plan ‘meets’ the assessed eligible unmet needs.
It is consistent with community care law that when an unlawful care plan has been finalised, the old one remains in effect, because there is nothing to replace the old one. On that footing, we can see why the investigator required reinstatement of the original plan until the Council had had a third run up to the wicket at discharging its functions properly.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s North Lincolnshire Council (23 020 813) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!