Somerset County Council (18 018 018)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 28 Oct 2019

The Ombudsman's final decision:

Summary: The Council was at fault when it reduced Mrs A’s direct payment and removed Mr A’s carer support. It failed to act in line with the Care Act 2014 and Care and Support Statutory Guidance. This caused avoidable confusion and distress. To remedy the injustice, the Council will, within two months, apologise, make payments and carry out fresh assessments.

The complaint

  1. Mr A complains Somerset County Council (the Council) reduced his wife Mrs A’s direct payments when her care needs had not changed. He also complains the Council stopped his carer’s direct payment. Mr A says the Council did not explain the reasons.
  2. Mr A told us he is contracted to provide 50 hours a week of care for Mrs A over five days and also provides unpaid care for her. Mr A would like the Council to continue to pay the direct payment it agreed in 2016.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. I investigated issues older than 12 months because Mr A’s complaint is about a reduction in care funding which arose because of a change to funding agreed in 2016. It would not be possible to investigate his complaint without considering the care and support plan of 2016.
  3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered:
    • Mr A’s complaint and supporting documents
    • The Council’s responses to her complaint and other complaint correspondence
    • Documents from the Council and the complainant described below
    • Comments from the parties on a draft of this statement.

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What I found

Relevant law and guidance

  1. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
  2. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
  3. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness (which includes a brain injury) and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
    • Managing and maintaining nutrition
    • Maintaining personal hygiene
    • Managing toilet needs
    • Being appropriately clothed
    • Making use of the home safely
    • Maintaining a habitable home environment
    • Accessing work, training, education
    • Making use of facilities or services in the community
    • Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014)

  1. If a council decides a person is eligible for care or carer’s support, it should prepare a care and support plan and where applicable, a (carer’s) support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
  2. The care and support plan must set out a personal budget. A personal budget is a statement which sets out the cost to the local authority of meeting eligible needs. (Care Act 2014, section 26)
  3. A person with eligible care needs can have a council arrange their care. Or, if they wish, they can arrange their own care using a payment the council gives them (‘direct payment’). (Care Act 2014, section 31)
  4. A council must keep a care and support plan and personal budget under review, generally and on a reasonable request from the person to whom the plan relates. A council can revise a care and support plan if circumstances have changed in a way that affects the plan, and if doing so, must involve the person. The council must take reasonable steps to reach agreement with the adult concerned. (Care Act 2014, sections 27 and 28)
  5. Statutory Guidance explains a council should review a care and support plan at least every year (Care and Support Statutory Guidance, Paragraph 13.32)
  6. If a person receiving care and support from one council (the first council) tells another council (the second council) that they intend to move, the second council must, if it is satisfied the person’s intention is genuine:
    • Provide the adult with such information as is appropriate
    • Carry out a needs assessment, having regard to the care and support plan from the first council. (Care Act 2014, section 37(1), (4), (6), (7))
  7. The first council must provide the second with a copy of the care and support plan, the personal budget and the most recent assessment of need and other information on request (Care Act 2014, section 37(5))
  8. If an adult receiving care and support moves to a different area and the second council has not yet carried out an assessment, the second council is required to meet the needs of the adult until it has carried out its own assessment. (Care Act 2014, section 38)
  9. A council must carry out a carer’s assessment where it appears a carer may have needs for support. The assessment must include an assessment of the carer’s ability and willingness to continue in the caring role, the outcomes the carer wishes to achieve in daily life and whether support could contribute to achieving those outcomes. Paid personal assistants are not normally regarded as carers under the Care Act 2014, except if the council considers the relationship between the disabled person and the person providing care is such that it would be appropriate for the latter to be regarded as a carer. Providing care includes providing practical and/or emotional support. (Care Act 2014, section 10)
  10. The Care Act 2014 makes clear that the local authority is able to meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs, and how they will be met. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role, and takes into account the outcomes the carer wishes to achieve in their day to day life. The manner in which the personal budget will be used to meet the carer’s needs should be agreed as part of the planning process. (Care and Support Statutory Guidance 2014)
  11. Statutory guidance explains councils do not have to meet needs met by an unpaid carer. The council should identify during the assessment, those needs met by an unpaid carer and determine whether they are eligible needs. Eligible needs are not required to be met by a council for as long as the unpaid carer continues to meet them. The care and support plan should record needs met by an unpaid carer and should consider putting in place plans to respond to any breakdown in the caring relationship. (Care and Support Statutory Guidance, paragraph 10.26)
  12. The NHS website explains Clinical Commissioning Groups (CCGs) have the power to decide what footcare services (podiatry) to commission for their local area. NICE guidance says footcare for long-term conditions like diabetes and arthritis should be available on the NHS. There is no guidance for foot health not associated with a long-term condition and so this means each CCG can decide what to make available on the NHS depending on local need. If a foot condition is not affecting mobility, it is unlikely a person will get NHS podiatry.

What happened

2016-2017

  1. Mrs A has physical disabilities, was eligible for care and was receiving a direct payment from Hampshire before she and Mr A moved to Somerset in March 2016. Mrs A used the direct payment to employ Mr A as her personal assistant (paid carer) for five days and a care agency for the other two days a week. Hampshire allowed Mrs A to employ Mr A as an exception to the normal rule that direct payments cannot be used to pay someone living in the same household who is a close relative.
  2. Mrs A’s direct payment continued when Mr and Mrs A moved, with the Council maintaining the same funding as Hampshire.
  3. The Council assessed Mrs A’s needs in August 2016. The 2016 assessment form the Council disclosed to me was mostly incomplete or blank. It did not say whether Mrs A had eligible needs or not.
  4. The Council completed a care and support plan in September 2016. Unlike the assessment described in the previous paragraph, the care and support plan set out Mrs A’s eligible needs and the support she needed to achieve her outcomes. Mrs A had eligible needs in most of the domains listed in paragraph ten. She needed:
    • Support to prepare and heat up meals
    • Support with cleaning after going to the toilet and support with washing and showering
    • Support to move within and outside the home, support with footcare (a pedicure, as long as within the weekly budget.) This also allowed Mr A some respite care as Mr A left Mrs A at the pedicure shop
    • Support with dressing and undressing
    • Prompts to take medicine
    • Support to access the community
    • Support for Mr A to have some respite from his role as a carer (agency employed by Mr A to do household tasks)
  5. The weekly personal budget for Mrs A was £612: £580 for her and £32 for Mr A’s needs as a carer. The support plan said the Council allowed Mr A to be Mrs A’s direct payment personal assistant, due to exceptional circumstances.
  6. There was no review of Mrs A’s care and support plan in 2017.

2018-2019

  1. A social worker completed an assessment of Mrs A in August 2018. Mr A told us he understood the social worker was completing a review at the time, not an assessment and he received a copy of the assessment form in November and added his comments. The outcome was Mrs A was eligible for care and support in most of the domains described in paragraph ten. The assessment noted Mrs A employed Mr A as her main personal assistant and she also had two other part time personal assistants. Mrs A used some of the direct payment for respite care (to pay people to do gardening and housework) to enable Mr A to have a break from his role. The assessment noted Mrs A felt the existing care and support arrangements were working well. Mr A told us the social worker told him there would be no changes to the care and support plan or personal budget.
  2. The Council completed a new care and support plan for Mrs A in August 2018. Mr A said he did not know the Council intended to issue a new plan until he received a copy in November. Mr A added his comments at a later date and he also added the time each care task took, which added up to 75 hours a week in total. The care and support plan described the tasks Mr A did. But there was no description of the needs being met by Mr A as a paid personal assistant as opposed to the needs met as Mrs A’s ‘unpaid’ carer.
  3. Mrs A’s personal budget was for 39 hours a week at £12.96 an hour or £505 a week.
  4. The Council’s peer forum discussed Mrs A’s care arrangements in September 2018. The note said ‘to be taken to management for discussion and referral to community agent to look at community resources.’
  5. In October 2018, managers discussed Mrs A’s care funding at a funding forum. The note said “direct payment to be reduced to within agreeable budget of £507. 39 hours at direct payment rate of £12.96”
  6. In November 2018, having received a copy of the assessment and care and support plan, Mr A complained to the Council about the issues he raises with the Ombudsman. Mr A told us the Council’s documents came as a surprise and he and Mrs A had not been involved in drafting the care and support plan and did not agree with it. Mr A complained about the reduction in funding and the assessor taking into account care provided by him when considering Mrs A’s care and support needs (for example, the care and support plan said Mr A was managing Mrs A’s nutritional needs well and failed to say Mrs A needed full support for these things.) He also complained the social worker carried out an assessment and drew up a care and support plan without their knowledge or involvement. He said the social worker told them the meeting was to review the existing care and support plan. The Council agreed not to implement the reduction in direct payment until it responded to the complaint.
  7. Mr A met with a manager in December to discuss his complaint. She responded in February 2019 saying:
    • The review ended up being a reassessment of Mrs A’s needs due to the care and support plan transferring from Hampshire
    • Guidance said a direct payment could only be used to pay a spouse in exceptional circumstances. The Council agreed Mr A could continue as Mrs A’s direct payment personal assistant.
    • There is no provision for carers support to paid carers. Where an adult is employed as a personal assistant, they are not normally regarded as a carer. The carers support of £32 would stop
    • Foot care was not allowed in the direct payment as it was a health need
    • The Council agreed Mrs A needed to be able to access the community but 15 hours a week was excessive
    • Mrs A’s direct payment would reduce by £77 a week and the carer’s support would stop.
  8. Mr A escalated his complaint. A senior manager met with him and Mrs A to discuss the complaint. The minutes of that meeting noted that there were a backlog of assessments overdue in 2016 and so management agreed Hampshire’s assessment would be held as an accurate picture of Mrs A’s eligible needs.
  9. The senior manager responded in May 2019 saying:
    • The Council did carry out an assessment in 2016
    • The meeting in August 2018 was a review of the Council’s 2016 assessment. This was overdue as there should have been a yearly review in 2017
    • The social worker should not have said there would be no change to the direct payment. This was not a decision the social worker could make
    • The funding forum was of the view Mrs A’s eligible needs could be met by 4 hours a day for personal care and meals and 11 hours a week for accessing the community. This allowed Mrs A time to access many of the activities she attended
    • The reduction was not about the Council’s social care budget
    • Mr A’s needs were considered, but as he was the paid carer for Mrs A, the funding forum felt there was enough flexibility in the personal budget to cover this
    • The Council agreed maintaining a habitable home could be an eligible need. The focus was on key areas of the home being hygienic
    • Footcare was a health need and if not provided by the NHS, needed to be funded privately. The same applied to eye and oral care
    • The Council upheld Mr A’s complaints relating to confusion about whether an assessment or review took place in 2016 and about a delay in the 2017 review taking place. It did not uphold the complaint about the reduction in funding.

Was there fault?

  1. There was fault in the Council’s assessment and care planning in 2016 and 2017 because:
      1. The Council should have completed an assessment in 2016 when Mrs A moved to Somerset. The assessment in September 2016 did not state Mrs A’s eligible needs and large parts of the form were blank. This was not in line with sections 9 and 37 of the Care Act 2014. I note, however, that the Council continued to provide the same funding as Hampshire and so in that respect, it acted in line with section 38 of the Care Act 2014.
      2. The Council completed a care and support plan in 2016. Mr A has no complaint about that plan. However, the Council failed to complete an annual review of the care and support plan in 2017. This was not in line with paragraph 13.32 of Care and Support Statutory Guidance
      3. The Council failed to carry out a carer’s assessment for Mr A as set out in section 10 of the Care Act 2014 and this was fault. The Council, however, provided carer’s support for Mr A by including a carer’s payment in Mrs A’s direct payment. Mr A should also have had his own carer’s support plan and the failure to provide this was not in line with section 25 of the Care Act 2014
  2. There was also fault in the Council’s actions in 2018 because:
      1. The social worker should have made it clear in August 2018 there was going to be a fresh assessment and care and support plan and not a review of the existing plan. The failure to be open was fault. Mr and Mrs A should have had the opportunity to comment on a care and support plan before it was finalised because sections 27 and 28 of the Care Act 2014 require councils to involve the person and to take reasonable steps to reach an agreement where changes to a care and support plan are contemplated.
      2. The current care and support plan did not set out those needs Mr A was meeting as Mrs A’s unpaid carer. In failing to make a distinction between eligible needs being met by Mr A as a carer and those being met by the direct payment, the care and support plan was not compliant with paragraph 10.26 of Care and Support Statutory Guidance.
      3. I note the Council’s view that Mr A cannot be a carer within the meaning of section 10 of the Care Act 2014 because he is contracted to care for Mrs A using the direct payment. This is a change from the Council’s position in 2016, when the Council was providing Mr A with carers support. The Council has not given a reason for the change in position. This was fault
      4. The Council is correct that in legal terms it cannot not fund NHS services. The Council said footcare was a health need and so it would not fund a direct payment for it. In this case, footcare is not a health need. She does not have any health-related foot conditions set out in any of the assessment paperwork. It is more likely a social care need: Mrs A cannot move her body to cut or file her toe nails by virtue of her physical disabilities. This is no different from a person who has arthritis in their hands being unable to brush or floss their teeth. The latter would not be regarded as an NHS service, but as part of standard personal care.

Did the fault cause injustice?

  1. The Council has not implemented any of the proposed cut. It agreed to wait for the decision on Mr A’s complaint to us. So there has been no loss of service.
  2. The fault I have identified, caused Mr and Mrs A avoidable distress, confusion and uncertainty.

Agreed action

  1. The Council will, within two months of my final decision:
      1. Carry out a fresh assessment of need for Mrs A and devise a fresh care and support plan. This should set out needs being met by Mr A as an unpaid carer and her eligible unmet needs.
      2. Carry out a carer’s assessment for Mr A and devise a carer’s support plan. I note that paid personal assistants are not normally regarded as carers for the purposes of section 10 of the Care Act 2014, however the Council accepted Mr A as a carer in the past and has not given an appropriate reason for a change in its view. The Council will carry out a carers assessment and complete a carers support plan for Mr A
      3. Involve Mr and Mrs A fully in the assessments and care and support plans/support plans and take reasonable steps to reach agreement.
      4. Ensure any changes to the direct payment are clearly explained in writing with reasons
      5. Preserve the existing direct payment until recommendations (a) to (d) are complete
      6. Apologise to Mr and Mrs A and pay them £250 each to reflect the avoidable distress described above.

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Final decision

  1. The Council failed to act in line with the Care Act 2014 and Care and Support Statutory Guidance when it reduced Mrs A’s direct payment. This caused avoidable confusion and distress. To remedy the injustice, it will, within two months, apologise, make payments and carry out fresh assessments.
  2. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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