Walsall Metropolitan Borough Council (19 001 770)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 02 Dec 2019

The Ombudsman's final decision:

Summary: there were significant faults in the way the Council reviewed Mrs X’s care and support needs and reduced her care package and Direct Payments. This caused her some hardship and severe distress. The Council has agreed to provide a suitable remedy.

The complaint

  1. Mrs X complains that the Council:
      1. issued multiple Care & Support plans in five months, wrongly calculated the cost of her care package and wrongly backdated a revised Care & Support Plan to August 2018;
      2. stopped her Direct Payments in December 2018 which left her without sufficient money to pay her personal assistants and put her into debt;
      3. delayed paying the arrears of Direct Payments it owed;
      4. took too long to refer a request for a Continuing Health Care (CHC) assessment to the NHS Clinical Commissioning Group (CCG) - it is now out of date and a new checklist must be completed;
      5. has not regularly reviewed her care needs and responded to her request for a new assessment.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 have spoken to Mrs X and considered all the information she sent me. I considered the Council’s comments and relevant documents from the social care records.
  2. I have written to Mrs X and the Council with my draft decision and considered their comments.

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What I found

The background

  1. Mrs X is a disabled pensioner who lives alone in rented accommodation. She was born with cerebral palsy, has no sight in one eye and has had two strokes. She also has asthma and bronchiectasis which cause shortness of breath. These conditions limit her mobility and restrict her range of movement. She says she sometimes loses consciousness and has falls in the home. She is prone to bladder infections and uses incontinence pads.
  2. Mrs X receives a retirement pension, pension credit and disability benefits.
  3. Mrs X does not have any informal care or support from friends or family members and pays for support. Mrs X uses Direct Payments to employ four personal assistants to help meet her personal care needs and prepare all her meals. They also do the laundry. Mrs X employs a cleaner privately to do housework. She needs to be accompanied when she leaves home to attend medical appointments and engages in social activities in the community.

The law and statutory guidance on reviews of care and support plans

  1. The Council has a duty under the Care Act 2014 to provide a care and support plan for a person who has eligible social care needs. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The care and support plan may include a personal budget. This is the amount the council has worked out it will cost to arrange the necessary care and support for that person.
  2. Section 27 of the Care Act 2014 sets an expectation that councils should conduct a review of a care and support plan at least every 12 months. As well as the duty to keep plans under review generally, the Act creates a duty for the local authority to conduct a review if the adult (or someone acting on the adult’s behalf) asks for one.
  3. The Care and Support Statutory Guidance (“the guidance”) includes comprehensive advice to help councils perform their duties under the Care Act 2014. Councils must have regard to the guidance.
  4. The guidance says the local authority must involve the person, their carer and any other individual the person may want to be involved in a review of their care and support plan, and take all reasonable steps to agree any changes.
  5. The guidance also stresses that the review should be proportionate to the needs to be met, and the process should not contain any surprises for the person concerned. Periodic reviews and reviews in general must not be used to arbitrarily reduce a care and support package. Such behaviour would be unlawful under the Act as the personal budget must always be an amount appropriate to meet the person’s needs. Any reduction to a personal budget should be the result of a change in need or circumstance.

Direct Payments

  1. Direct payments are cash payments made to individuals who ask for one to meet some, or all, of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.

Complaint a) the review of Mrs X’s Care and Support Plan

  1. Mrs X has had a Care & Support Plan in place for some years.
  2. In February 2018 Mrs X’s Care & Support Plan provided for the following support from Personal Assistants:
    • A daily morning call for 1½ hours to help Mrs X wash or shower, take medication, change pads and prepare breakfast;
    • A daily mid-day call for 1½ hours to help her shower, provide support with toileting, take medication and to prepare a cooked lunch;
    • A daily evening call for 1¼ hours to help her shower, take medication, prepare a light snack and support Mrs X with toileting;
    • An additional 10 hours per week to be used flexibly to enable Mrs X to attend appointments and engage in social activities in the community.
  3. In total the care package provided 39 hours and 45 minutes of support from personal assistants: 29 hours and 45 minutes for personal care and 10 hours of support to access the community. The total weekly personal budget was £397.50. This increased to £405.45 from April 2018.
  4. Mrs X had a financial assessment and was required to pay a weekly contribution of £54.68. This increased to £57.48 from April 2018 following the annual uprating of benefits.
  5. On 7 February 2018 a social worker made a joint home visit with an Occupational Therapist (OT). Mrs X said she would like extra hours to allow the personal assistants to accompany her to hospital appointments and a weekly hydrotherapy session. She said she could not afford to pay this herself. The social worker said she would struggle to justify a request for additional hours to support Mrs X with access to the community. In response to this draft decision, the Council says social care could not fund support to attend hospital appointments. It also said it had seen evidence that Mrs X had not regularly attended hydrotherapy sessions.
  6. The social worker asked the Resource Allocation Panel to consider Mrs X’s request in early March 2018. According to the case notes, the Panel decided:

“Length of calls needs looking at and reducing”

  1. The social worker asked the OT to visit Mrs X again on 5 April 2018 to review the length of the first morning call. By the time the OT arrived, the personal assistant had already helped Mrs X get up, change her clothes and have breakfast. The OT observed the personal assistant supporting Mrs X to walk to the wet room and take a shower. This took 55 minutes. The OT added a further 10 minutes for time to dry Mrs X’s hair and time to prepare breakfast. The OT recommended the morning call should remain at 1½ hours. She made a detailed note of her observations and recommendations in the social care case records.
  2. The social worker says her diary refers to a further review on 8 May 2018. But there is nothing in the case records to record a review on this date and no review documents were created then. Nor is there any record that the social worker had a conversation with Mrs X then about a proposed reduction in the care package.
  3. On 4 July 2018 the social worker contacted the OT. She noted the OT had not recommended any change to the morning call. She asked the OT whether it would be possible to reduce the length of the midday and evening calls. She said the Resource Allocation Panel was due to consider Mrs X’s case the following week and asked if the OT could attend.
  4. There is no record of the Resource Allocation Panel’s discussion and decision in July 2018 in the case records.
  5. The social worker completed a Care and Support Plan review document on 31 July. She did not record any changes in Mrs X’s eligible needs and ticked a box to say there had been no changes since the previous plan. She reduced the personal budget from £405.45 to £349.35 to provide 34 hours and 45 minutes of personal assistant calls. The key changes were:
    • the daily midday and evening calls were all reduced by 15 minutes;
    • the floating support for access to the community was reduced from 10 to 8½ hours per week.
  6. The document includes the following statement:

“I have been involved in completing this Care and Support Plan and my views and comments have been listened to and recorded. …

I will be given a copy of my support plan to keep at home …”

However, I have seen no evidence that the social worker shared this review document with Mrs X, or discussed the proposed reduction in support with her to try to seek her agreement to the changes. The social worker and Mrs X had not discussed the care package since the home visit on 7 February 2018. At that time, there was no indication the hours of support may be reduced so Mrs X did not have the opportunity to comment on this. On the contrary, the social worker had agreed to take Mrs X’s request for increased support to the Panel.

  1. On 31 July the OT contacted the social worker to reply to her enquiry about the length of the midday and evening calls. She expressed the view that Mrs X’s lunchtime and evening showers could be shortened if they were limited to washing the lower part of her body. She suggested the lunchtime call could be reduced to 1 hour and the evening call to 45 minutes to 1 hour. This advice was not based on any further observations by the OT of the time it actually took the personal assistant to complete tasks during the lunchtime and evening calls. No effort was made to seek Mrs X’s views on the proposed reduction in hours.
  2. The social worker produced a new Care & Support Plan on 15 August. It showed a reduction in the care package:
    • The morning call was unchanged - 1½ hours;
    • The midday call was reduced by 15 minutes;
    • The evening call was reduced by 15 minutes;
    • The floating support for access to the community was reduced to 8½ hours. This provided support from a personal assistant to allow Mrs X to attend church twice and make one shopping trip every week.

The Plan stated that a Direct Payment of £285.60 would meet the cost of the reduced care package. That figure was wrong - the correct amount for the reduced package was £354.45. The social worker’s manager authorised the new Care & Support Plan.

  1. The social worker emailed Mrs X an individual budget agreement form on 15 August. But she entered the wrong figure again for the Direct Payment - £285.60 per week. Mrs X refused to sign it because she disagreed with this figure. The social worker did not send Mrs X a copy of the August 2018 Care and Support Plan then.
  2. On 25 September 2018 the duty team noted in the records that the Care and Support Plan had been authorised but the Brokerage team had not yet been asked to process the reduction in the DP. So, it continued to pay £405.45 per week into Mrs X’s Direct Payment account. This continued until 20 November.
  3. On 20 November 2018 an officer in the Brokerage team noticed Mrs X had not signed and returned the form agreeing to the new personal budget. He asked the social worker to follow this up. The Brokerage team processed the new Plan on 20 November.
  4. Mrs X did not receive the revised Care & Support Plan until 20 December 2018. As she had not seen the Plan before, she had continued to pay the personal assistants to provide the number of support hours specified in the previous Care & Support Plan.
  5. After taking legal advice. and referring the case to the Resource Allocation Panel, the Council agreed to pay the shortfall between the amount of the DP in the old and the new Plans for 18 weeks from 15 August 2018 to 23 December 2018. It accepted Mrs X had not been informed of the reduction in the Direct Payment and she had not seen the revised Care and Support Plan until December 2018.
  6. The Council says it made two lump sum payments on the following dates:
    • £785.42 on 21 December 2018; and
    • £954.43 on 19 February 2019.

The Direct Payment support agency confirmed receipt of the payment of £785.42 Mrs X’s DP account. But it queried whether this figure was correct. It also continued to contact the Council to say the additional payment had not been received.

Complaint b) – the Direct Payments stopped

Complaint c) – delayed payment of arrears

  1. Mrs X did not receive a Direct Payment in the usual December 2018 payment cycle. Mrs X and a Direct Payment Support Officer from the organisation which helps her manage the Direct Payment account both contacted the Council to express concern about the missing payment.
  2. The Direct Payment Support Officer said the balance in Mrs X’s DP account had dropped to £2.05 on 18 December. She said Mrs X did not have funds to pay her personal assistants’ wages. She asked the Council to make an emergency payment. She estimated the Council owed £1,772.25. Mrs X told the social worker she was worried the personal assistants may not turn up over the Christmas period if she could not pay them.
  3. The Brokerage team had stopped the December 2018 payment when it received the new Care & Support Plan. Because the Plan showed a reduced Direct Payment of £354.45, backdated to 15 August 2018, it understood Mrs X had been overpaid £68.85 per week since August. It therefore stopped the December payment to recover the overpayment.
  4. On 20 December a manager from the Direct Payment support agency telephoned to confirm Mrs X had no money to pay her personal assistants. On the same day, the Resource Allocation Panel approved an emergency Direct Payment. A payment of £758.42 was credited to Mrs X’s DP account on 27 December 2018. This payment was intended to cover five weeks. Mrs X says this is less than the agreed amount.
  5. In early January 2019 the Direct Payment support agency queried the accuracy of this figures and asked to meet officers at Mrs X’s home. The social worker and her manager met Mrs X and two members of staff from the Direct Payment support agency on 16 January.
  6. The social worker apologised to Mrs X for making errors in the meeting. She agreed she had put the wrong figure on the Care & Support Plan. She said she had now updated the Support Plan with the correct figures. The manager agreed Mrs X’s case would be reallocated to a new area team when the errors with the Direct Payments had been resolved.
  7. Mrs X says members of her church loaned her money to pay the personal assistants over the Christmas period. Mrs X says she still needs to repay these debts.
  8. On 12 February the Resource Allocation Panel approved a one-off lump sum payment of £954. This was intended to be the second payment to pay the shortfall between the old and new Direct Payments for the period between August and December 2018. Mrs X sent us a bank statement which shows she received a payment of £402.92 from the Council on 22 February. She believes it owes a further payment of £551.08.
  9. On 13 February 2019 Mrs X completed a new financial assessment form. At the time she completed this form, she was receiving the standard rate of PIP for mobility and daily living components. On the same day a tribunal heard Mrs X’s appeal for the enhanced rate of both these PIP components. On 22 February the Tribunal informed Mrs X it had allowed her appeal and backdated the enhanced rate for both components.
  10. On 19 February 2019 the Council completed a new financial assessment. This led to a significant increase in Mrs X’s weekly contribution from £57.48 to £100.59. The Council had to take into account the increase in the rate of daily care component of PIP as income. In turn this increased Mrs X’s weekly client contribution.
  11. In March 2019 the Direct Payment support agency informed the social worker that the March Direct Payment had not been paid into Mrs X’s account. It said Mrs X was extremely distressed. The March payment was stopped because Mrs X had been classed as a “full charge” service user between 5 and 18 February 2019. This happened because the Brokerage team had not received a financial assessment form Mrs X returned by post. Mrs X completed another form on 13 February 2019 but this was not processed in time for the monthly March payment run. As a result, the Council treated Mrs X as if she was liable to pay the full charge and stopped the Direct Payment.
  12. In early March 2019 Mrs X made a complaint to the Council. She asked how the social worker could backdate the Care & Support Plan to August 2018 when she had not received it until December 2018. She made the point that she had already received and paid her personal assistants for support in accordance with the old Plan for that period. She also said the social worker had authorised the wrong amount in the Support Plan which had left her vulnerable and in debt.
  13. The Direct Payment support agency contacted the social worker and her manager in March and April 2019 to say Mrs X had not received the backdated payment she was due.
  14. In late March 2019 the team manager upheld Mrs X’s complaint that the social worker made errors when she calculated the hours of support and the cost of that support. She accepted this resulted in incorrect payments being made to Mrs X’s Direct Payment account The manager noted the social worker had already apologised to Mrs X. She said all the outstanding amounts would be paid to the DP account by 26 March.
  15. An officer in the team which handles financial assessments told the team manager that if Mrs X provided evidence to show her PIP award was lower than the figure used in the assessment it could be reviewed. She also said Mrs X could use the appeal procedure if she disagreed with the assessment of her income.
  16. In late April 2019 the Council confirmed Mrs X had not yet received the missing payment for February 2019 when she was treated as a full charge payer.
  17. The case notes say all the outstanding payments were made to the DP account by 2 May 2019. Mrs X’s case was transferred to a new area team on the same day. The Council says the next review of Mrs X’s Care & Support Plan is due in December 2019 and a new social worker will be allocated by then.

Complaint d) – referral for a Continuing Health Care assessment

  1. The social worker completed a Continuing Health Care checklist at a meeting with Mrs X and her representative on 15 June 2017. The social worker told Mrs X she met the threshold for a full CHC assessment.
  2. The social worker was required to give a copy of the checklist to Mrs X and her representative and forward it to the NHS Clinical Commissioning group who would arrange a full assessment. There is no evidence in the case records to record when this was done.
  3. When a manager investigated Mrs X’s complaint in 2019, she contacted the CCG who said it received the checklist on 29 August 2017.
  4. The social worker told the manager that the delay between June and August 2017 was probably due to workload pressures. By then the checklist was out of date and the CCG asked the District Nurses to complete a new one.
  5. A manager made an entry in the case records on 17 January 2018 to note that the CHC referral was still outstanding. She asked the social worker to contact the District Nurses.
  6. The case records show the social worker called the District Nurses team four times in late January and early February 2018. She asked if a District Nurse could visit Mrs X on 7 February 2018 when she and the OT already had a meeting planned.
  7. The OT and social worker visited Mrs X on 7 February 2018. A District Nurse did not attend - the social care case records do not make any reference to the reasons. According to the case notes, the delayed progress of the CHC assessment was not discussed in this meeting. The visit focused on the OT’s assessment of Mrs X’s functional abilities.
  8. In March 2019 the team manager upheld this part of Mrs X’s complaint. She accepted there had been inappropriate delay by the social worker in sending the checklist to CCG. She also commented that there seemed to have been a breakdown in communication between the CCG and the District Nurses. She suggested Mrs X could contact the District Nurses to request a new assessment.

Complaint e) – the Council has not regularly reviewed her care and support needs and responded to her request for a new assessment

  1. The Council completed an assessment of Mrs X’s care and support needs on 21 July 2016.
  2. The first unplanned review started on 28 June 2018 and was completed on 31 July 2018. The records say this review was triggered by a change in Mrs X’s condition although it is not apparent from the records that her needs had changed. It seems this review was carried out in response to the Panel’s request to reduce the hours in the care package.
  3. The next review started and was completed on 12 December 2018. It also found no change in Mrs X’s needs since the previous review.
  4. A further review started on 16 January 2019 and was completed two days later. It also found there had been no changes since the last review one month earlier.
  5. Mrs X requested a new assessment of her care and support needs when she made a formal complaint to the Council in early March. The Council did not address this in its response but confirmed her case would be transferred to a new area team when all the errors with the Direct Payments had been rectified.
  6. In response to our enquiries, the Council said the next review of Mrs X’s Care and Support Plan is due in December 2019.

Analysis

  1. The evidence indicates that the reduction in Mrs X’s care package and personal budget in August 2018 was driven by the Council’s wish to reduce the cost of the package rather than any identified change in Mrs X’s care and support needs. The social worker certainly did not identify any change in Mrs X’s needs during the home visit in February 2018. In March 2018 the Panel gave the social worker a clear direction to reduce the length of the calls.
  2. Councils are certainly entitled to review care packages and consider whether the person’s assessed needs can be met more efficiently. But the statutory guidance makes it clear that it is unlawful for reviews to be used to arbitrarily reduce a care and support package. In this case the review was not needs-led but seems to have been driven by the wish to secure savings. That was fault.
  3. The reduction in the care package was not based on any identified change in Mrs X’s circumstances or a reduction in her care and support needs. Mrs X was not given an opportunity to express her views on the proposed reduction in hours and the social worker did not try to seek her agreement. The Council’s approach did not follow the statutory guidance. The reduction in the care package and personal budget certainly came as a complete and unwelcome surprise to Mrs X. That was also fault.
  4. The Occupational Therapist had visited Mrs X to observe the morning call. She then confirmed it should remain at 1½ hours. She was not asked to carry out a similar exercise for the midday and evening calls. The decision to reduce the length of the midday and evening daily calls by 15 minutes was arbitrary because it was not based on any concrete evidence that Mrs X’s needs would still be met with reduced hours.
  5. There is no document recording the rationale for the social worker’s decision to reduce the care package.
  6. These faults were compounded by the failure to send Mrs X the revised Care and Support Plan until late December 2018. Mrs X continued to employ the personal assistants to work for 39 hours 45 minutes per week because she did not know the care package had been reduced.
  7. It was wrong for the Council to try to backdate the reduced care package to August 2018 when Mrs X had not been consulted or informed about the changes. The Council later reversed that decision. But I am likely to find significant faults in the way the review was carried out. I therefore consider the August 2018 Care and Support Plan is fundamentally flawed. It follows that the decision to reduce the personal budget in August 2018 was also flawed because the decision was not made properly and in line with the process set out in the guidance.
  8. There was a delay by the social worker in making the referral for a CHC assessment. The Council has accepted this was fault. The information on the June 2017 form is now out of date. I consider the Council should been more proactive and done more to assist Mrs X, in view of its admitted fault, rather than expecting her to contact the District Nurses to request a new assessment.
  9. These faults had a significant impact on Mrs X who is a vulnerable woman with serious disabilities. She suffered considerable distress because the Direct Payments were reduced, and then stopped on two separate occasions, and she worried about how she would pay her personal assistants. She was also put to time and trouble in making a complaint and had to borrow money to pay the personal assistants’ wages. She was not kept fully informed and she was not properly involved in the decisions made during the review process.

Agreed action

  1. Within one month of my final decision the Council will:
      1. arrange an urgent review of Mrs X’s care and support needs by a social worker in the new area team and ensure this is properly documented;
      2. until that review is completed, and a new Care and Support Plan has been produced, reinstate the February 2018 Care and Support Plan and the personal budget of £405.45;
      3. carry out a new financial assessment;
      4. backdate the Direct Payments based on the personal budget in the February 2018 Care and Support Plan to August 2018 (taking account of any payments already made) and pay the arrears due to Mrs X’s Direct Payment account;
      5. provide Mrs X and the Direct Payment support agency with details of its calculation of the backdated payment and send us a copy;
      6. arrange for a senior manager to apologise in writing to Mrs X and pay £500 to recognise the severe distress caused by the faults identified in this statement - this enhanced payment reflects the significant impact on Mrs X as a vulnerable person;
      7. establish whether Mrs X wishes to proceed with the CHC assessment now and, if she does, facilitate this by making direct contact with the District Nurses to arrange an assessment;
      8. provide us with evidence of changes it has made to processes, documents and staff guidance to prevent a recurrence of the faults identified in this investigation.

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Final decision

  1. I have completed the investigation and found Mrs X suffered significant injustice due to a series of faults by the Council. The Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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