[Your name]
[Your address / organisation]
[Email]
Monitoring Officer
[Name of Council]
[Council address]
[Date]
Dear Monitoring Officer,
Possible unlawfulness of this Council’s carers’ policy in light of a recent Ombudsman’s decision
I am writing to you in your capacity as the Council’s Monitoring Officer in charge of governance under section 5 of the Local Government and Housing Act 1989.
I ask that you liaise with the Director of Adult Social Services (DASS) to establish whether this Council’s carers’ policy mirrors, in substance, the policy recently found non-compliant with the Care Act 2014 by the Local Government and Social Care Ombudsman (LGSCO) in decision 25 002 493 concerning Wirral Metropolitan Borough Council.
In that complaint, the Ombudsman found fault where Wirral operated a standard carers’ grant of £300, with an exceptional upper limit of £400, for carers with eligible needs, and applied that model to a Mrs X without proper regard to the particular content and conclusions of her carer’s assessment.
The decision records that:
· The Council told the Ombudsman it offers “a standard direct payment of £300 (up to a maximum of £400) to all carers who have eligible needs”.
· The Ombudsman concluded that “The Council’s approach to the payment is not in line with the law and guidance and is fault.
· The support the council offers to carers must be based on its assessment of their individual eligible needs and not a blanket approach.
· The possibility for carers to choose how the money is spent is irrelevant if £300 or £400 is insufficient to meet their needs.”
· Further, “The Guidance also says councils should not set arbitrary upper limits on how much it is willing to pay for support through certain routes. The Council’s upper limit of £400 is not in line with the Guidance and is fault.”
The Ombudsman found that Wirral’s policy and practice amounted to applying an unlawful blanket approach and setting an arbitrary upper limit, contrary to the Care Act 2014 and the Care and Support Statutory Guidance, which require that:
· carers’ eligible needs be identified through a Care Act-compliant carer’s assessment; and
· the Council then decides how to meet those individual eligible needs, with a support plan and personal budget sufficient to do so, rather than starting from a standardised grant figure.
The same decision also notes that Wirral’s carers’ policy was significantly overdue for review (8 years), and that the Council has now agreed to revise it so that “the care and support the Council makes available to carers must follow on from an assessment of the person’s individual needs” and to be clear that its previous approach of paying carers £300 as standard is no longer in force.
My concern is that if this Council’s carers’ policy operates in a materially similar way – for example, by:
· offering a standard one-off carer’s ‘grant’ or payment at a fixed level (with or without a stated “maximum”); and/or
· treating that figure as the default, rather than as one possible way of meeting individually assessed eligible needs – so not commissioning any actual services for carers who do not WANT to be given the money, for instance; and/or
· embedding any de facto cap on the amount that can be allocated to a carer through a particular route (such as a direct payment) by way of practice guidance to staff, even if not laid down in a policy,
– then there is a strong risk that the current policy and practice are not compliant with sections 10 and 20 of the Care Act 2014 and the Statutory Guidance, in exactly the way the Ombudsman has now explicitly criticised.
On that basis, for the purposes of section 5(2) of the 1989 Act, (your own duty) I suggest there is at least a likelihood that the Council is acting in contravention of
· the Care Act, sections 10 and 20
· s78 Care Act, in so far as the Guidance issued by the Secretary of State is required to be acted under by that section
· and of the established rule of law that ‘acting under’ Guidance means that it must be followed unless there is a very good reason otherwise (R (Rixon) v Islington LBC)
That, in turn, engages your duty to consider whether you must prepare a formal report to the authority’s elected Members.
I would therefore respectfully suggest that you:
1. Liaise with the Director of Adult Social Services, and any relevant Head of Service for Adult Social Care, to establish:
a. Whether this Council currently undertakes any formal commissioning of actual services for eligible carers, who do not want a direct payment?
b. operates any standard carer’s ‘grant’ or fixed “usual” amount or upper limit for carer direct payments analogous to the £300/£400 model described in the Wirral decision; and
c. Whether any such figure is being used as a blanket approach to meeting carers’ eligible needs, even if unstated, rather than as one possible outcome of an individualised assessment and support planning process.
2. If the policy and/or practice is materially similar to that criticised in paragraphs 29–32 of the Ombudsman’s Wirral decision, confirm:
a. Whether the DASS/HoS accepts that, in light of that decision and the clear wording of the Statutory Guidance on arbitrary upper limits, the current policy is obviously non-compliant with the Care Act and should be amended; and
b. Whether there is a clear plan and timescale to review and amend the policy and operational guidance so that:
o carer support is explicitly framed as following from individualised assessments of eligible unmet needs;
o services are commissioned where relevant for the specific sorts of needs identified, if an eligible carer does not request a direct payment
o any reference to a standard figure or upper limit is removed, or clearly subordinated to the requirement to set a personal budget sufficient to meet those needs; and
o staff are reminded that, where a carer declines a particular direct payment option, they must still consider other ways to meet the carer’s eligible needs (as the Ombudsman required Wirral to remind staff) – for instance under the power in s20, for Best Value reasons, or even where there is, for some other reason, no duty.
3. If the policy is the same or substantially similar, and the DASS/HoS is not willing to review and amend it, or does not accept that the Ombudsman’s reasoning demonstrates obvious unlawfulness, please indicate whether you consider your own duty under section 5(2) of the 1989 Act to have been triggered, such that you must prepare a report to the Council setting out the actual or likely contravention of the Care Act 2014 and associated guidance.
Given that the Ombudsman has already found fault and required policy change in broadly analogous circumstances, I suggest the governance risk is clear and that early clarification would be prudent.
I understand that it is common these days to regard the Monitoring Officer function as a duty that is owed to the Council as a whole, or that the individual should just make a complaint.
But I am a local council tax payer and as such, I do not think it is legally defensible to contend that the duty does not extend to providing the person who made the referral with a reply, indicating your conclusions with brief reasons. There are no standing rules of any kind to this remedy, and Parliament left it on the statute book despite bringing in complaints regulations much later. The MO remedy is clearly directed towards governance, as can be discerned from the Hansard debates at the time of its introduction, whereas the other remedy is geared towards maladministration.
I would regard the following as a sufficient response: either
· (a) written confirmation from you that your carers’ policy and practice do not, in fact, replicate the criticised Wirral model; or
· (b) where the current policy is materially the same, written confirmation as above in 2a. and 2b.
or,
· (c) in the circumstances of 3. above, written confirmation that you consider your section 5 duty to report to members has been engaged, or your brief reasons as to why you do not so conclude.
I would also be grateful for an acknowledgement of this letter and an indication of when you expect to be able to respond substantively.
Yours sincerely,
[Your name]