Kirklees Metropolitan Borough Council (19 008 980)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 02 Mar 2020

The Ombudsman's final decision:

Summary: The Council withdrew respite care for thirteen months because Mr X would not accept residential respite. It then reinstated respite but reduced the number of nights. It also set an arbitrary upper limit on the amount it was willing to pay per night.

The complaint

  1. Mrs X complains the Council has reduced her husband’s respite care budget from 42 nights a year to 19 days a year and this has impacted on both their wellbeing

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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:
  • considered the complaint and discussed it with Mrs X;
  • considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
  • made enquiries of the Council and considered the responses;
  • taken account of relevant legislation
  • offered Mrs X and the Council an opportunity to comment on a draft of this document.

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What I found

Relevant legislation

  1. A council must carry out an assessment of any adult who seems to need care and support. 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. Having identified eligible needs through a needs’ assessment, the Council has a duty to meet those needs. (Care Act 2014, section 18)
  3. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
  4. A council should revise a care and support plan where circumstances have changed in a way that affects the care and support plan needs. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs. (Care Act 2014, s27(4) and (5))
  5. A council must consider whether to carry out a carer’s assessment if it appears the carer has need for support. It must assess the carer’s ability and willingness to continue in the caring role. It must also consider the results the carer wishes to achieve in daily life and whether support could contribute to achieving those results (Care Act 2014, s10)
  6. The Act says the local authority can meet the carer’s needs by providing a service directly. In these cases, the carer must still receive a support plan which covers their needs, and how they will be met. (Care Act 2014, s 25)
  7. The Council can also provide a carer’s personal budget, which must be sufficient to enable the carer to continue to fulfil their caring role. The Council should consider the carer’s wishes for their day-to-day life. The Council should try to agree the personal budget and its use during the planning process. (Care and Support Statutory Guidance 2014)

What happened

  1. Mrs X is 69 years old, she has cared for her husband, who is 72 years old, since he had a stroke 38 years ago. Mr X will not accept support from carers or go into a residential respite care facility.
  2. Mrs X says the Council has reduced Mr X’s allocated respite hours from 42 nights a year to 19 nights a year. This happened after a social completed a reassessment of Mr X’s needs in November 2018.
  3. I have seen a copies of Mr X’s needs assessments and support plans dating back to 2012. These show Mrs X provides support to Mr X throughout the day and night. Family do not live close by so Mrs X has no informal support. Mrs X supports Mr Y to ‘get out socially’. The review in 2014 records “[Mrs X] said that the support she and her husband get through Direct Payments is very important to them. She said that she doesn’t know how she coped before they got the Respite Care”. The records show Mr & Mrs X had 42 days a year respite care at a cost of £124.64 a day. They received a direct payment to purchase respite services privately.
  4. A review completed in 2016, records no real change in Mr X’s needs or the support Mrs X provided. The assessor concluded they continued to need 42 nights respite a year. A slight increase in cost was awarded, £125.64, due to ‘unit cost’.
  5. In August 2017, a social worker from the Council’s ‘Review Task Force’ visited Mr & Mrs X to complete a review of Mr X’s needs. This concluded no change in Mr X’s needs, or the support Mrs X provided. Mr & Mrs X confirmed they continued to use their direct payment to pay for short breaks/holidays, and that they valued this. They booked a variety of breaks in hotels with disabled facilities, often near to family. Mr & Mrs X expressed how important this was to them both. The social worker recorded “At this time, the respite allocation is to be removed as the current way it has been spent does not provide [Mrs X] with full carer relief from her role”.
  6. Mrs X says over the course of the next year she became stressed, depressed and felt unable to cope. She contacted the Council in August 2018 to express her feelings and ask that respite be reinstated.
  7. On 7 September 2018 a different social worker visited Mr & Mrs X to complete a reassessment of Mr X’s needs. The social worker recorded that Mrs X was very tearful during the assessment, and concluded, “The outcome of the assessment was that [Mr X’s] needs have not changed since the last assessment a year ago, but his wife who is his main carer said she is not coping in her caring role and wanted the previous support package of short breaks/holidays to be put back in place as she said this is the only thing that helps her maintain her role as a carer and since this was removed from the care package life has been ‘unbearable’. I advised that holidays and short breaks are not something Kirklees fund anymore and asked if she could pay for these herself…”. The social worker said she would send the completed assessment to ‘management’ it was “highly likely to be rejected”.
  8. On 9 November 2018 a social worker sent an email to Mrs X informing her ‘some’ respite had been agreed.
  9. Mrs X telephoned the social worker on 13 November 2018. Mrs X asked the officer why the allocated budget for respite was lower than it had been previously. The officer said “I advised that the respite amounts have changed and the £125 a night she used to get is now a flat rate across the service of £73.87 and only 19 nights have been agreed not the 56 that [Mr X] had previously”.
  10. The Council completed a review by email in February 2019. This shows no change in Mr X’s needs or the support Mrs X provides. The social worker recorded “Options for respite have been discussed extensively, but [Mr X] refused to go into traditional 24 hour respite care and will not leave his wife”. Mrs X received a carers allocation of £620 to use towards domestic help in the home, and a subscription to attend an amateur dramatic group. Mrs X’s feelings were recorded, that she believed the Council’s decision to limit respite allocation was short-sighted, and “the Council’s blanket policy on the cared for person having to leave their carer to take respite did not take into account their unique circumstances, wishes and feelings…”. Mrs X said she was unhappy about the reduction to 19 nights respite a year and said she may challenge the decision.
  11. A care and support plan was subsequently completed in March 2019. This records an allocated budget for 19 nights respite care “£67.81 per night, and a one-off payment of £620 for Mrs X as set out in the paragraph above.
  12. Mrs X says she cannot understand why the respite budget was cut when their needs as a couple have not changed. She says the Council is aware Mr X will not accept outside help. She says the previous allocation of 56 nights respite allowed them the opportunity to have a break in hotels, often near family, and now this is more difficult because Mr X needs accommodation with disabled facilities which can be more expensive. She says the current budget does not stretch to 19 nights away because of the costs.
  13. Mrs X says the reduction in respite has had a detrimental impact on them both.

Analysis

  1. It is not the Ombudsman’s role to decide if a person has social care needs, or if they are entitled to receive services from the Council. The Ombudsman’s role is to establish if the Council has assessed a person’s needs properly and acted in accordance with the law.
  2. In this case, the Council failed on a number of levels to act in accordance with the Care Act.
  3. Needs assessments should consider a persons’ physical and psychological needs. It must consider how a person’s needs may change or fluctuate and consider how this impacts on their wellbeing.
  4. From at least 2012 until 2017 the Council concluded Mr X needed 42 nights a year respite care, which the couple spent on short breaks/holidays. The Council was aware of this.
  5. It would appear the purpose of the social worker’s visit in August 2017 was to review the respite provision, not Mr X’s needs. The social worker told Mr X he needed to have respite care in a residential facility. Mr X made clear he has no desire to make use of residential respite facilities.
  6. The social worker showed little regard Mr & Mrs X’s wishes and feelings. Services should be needs led not service led. The Council withdrew all respite provision for 13 months because the social worker believed the respite arrangement did not meet Mrs X’s needs as a carer. There was no evidence to support this. On the contrary Mrs X made clear how much she and Mr X valued the short breaks away. This allowed them to book hotels near to family. Family members then provided support to Mr X.
  7. The withdrawal of the respite care impacted significantly on Mrs X. She began to shake and suffered from stress and depression.
  8. The Care Act requires Local Authorities to promote the wellbeing of adults in need and carers, and to do this in a way that satisfies certain principles, one of which is the assumption that individuals are best placed to judge their well-being, and should be allowed some control over their day-to-day life, including the care and support they receive. The Council acted contrary to this.
  9. Following Mrs X’s plea for respite to be reinstated the Council completed a reassessment of Mr X in September 2018. The social worker told Mrs X the Council no longer allowed direct payment monies to be used for short breaks/holidays. This would suggest the Council was applying a blanket policy, which would be fault, however, it is clearly not the case because the Council went on to authorise 19 nights respite care funding which the couple have spent on short breaks. This was a significant reduction from the previous allocation of 42 nights.
  10. The Council can reduce the amount of respite care provided but it must explain the reasons for this. It needs to show what circumstances have changed to warrant a reduction in provision. Any assessment should take into account the personal and family circumstances of the service user and their carers. Mr X’s needs have remained largely the same since 2012. I have seen no evidence which warranted a reduction in respite allocation.
  11. The Council also reduced the daily rate for respite from £125.64 per night to £67.81 per night. A social worker explained the Council had a “flat rate across the service” of £73.87 per night. This is contrary to the Care Act. Everyone must have a personal budget regardless of how their care and support is commissioned.
  12. The Care and support statutory guidance says, “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties… The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”.

Agreed action

The Ombudsman’s ‘guidance on remedies’ says a remedy needs to reflect all the circumstances including:

  • the severity of the distress;
  • the length of time involved;
  • the number of people affected (for example, members of the complainant’s family as well as the complainant);
  • whether the person affected is vulnerable and affected by distress more severely than most people.
  1. The Council will within one month of the final decision:
  • provide Mr & Mrs X with a written apology for the failings identified in this statement and make a payment of £250 to acknowledge the time and trouble they have been put to pursuing the complaint with the Council and the Ombudsman
  • pay Mr & Mrs X £1,000 to acknowledge the loss of respite services for 13 months
  • review Mr X’s assessment and care and support plan, including the number of allocated respite nights, in consultation with Mr & Mrs X.
  1. Within three months:
  • consider if other service users may have been affected by arbitrary upper limits on respite rates, and take any necessary action to address this
  • amend its procedure to ensure the Council does not set arbitrary limits on care provision.
  1. Provide evidence of all the above to this office.

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Final decision

  1. There is evidence of fault in this complaint. The Council withdrew respite care for thirteen months because Mr X would not accept residential respite. It then reinstated respite but reduced the number of nights. It also set an arbitrary upper limit on the amount it was willing to pay per night. This caused a significant injustice to Mr & Mrs X. They lost a service which they valued and to which they were entitled.
  2. The above action is a suitable way to settle the complaint.
  3. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman

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