The following text can be found on the Local Government & Social Care Ombudsman website and was sent to me by one of my comrades who will be contextualising the article for WILG recipients in Wales. As soon as she does I will share this with you but I thought it may be of interest for people to read the whole, harrowing story.
This is a case of a former ILF recipient who had to jump through hoops to force his Council (London Borough of Waltham Forest) to give him the care and support that he obviously needed. Although this former ILF recipient is based in England and therefore under a different legal jurisdiction, there are many similarities in our cases and determination to ensure justice is being served.
Hopefully, things won’t come to this for myself, but if they do I will be showing the same spirit to fight to the end. This has been a really good weekend with Wrexham AFC winning convincingly at the Racecourse and Welsh Labour falling into line with the rest of the Labour Party and agreeing to elect their next leader using OMOV (One Member One Vote).
The tide is turning and although we still have an uphill struggle on our hands I will move into the latter stages of the #SaveWILG campaign with renewed belief and energy.
The Ombudsman’s final decision:
Summary: The Council was at fault in its reassessments of the complainant, after his Independent Living Fund had been withdrawn. The Council agreed to appoint an independent social worker to review the complainant’s needs and this has resulted in the Council significantly increasing the complainant’s care hours. The Ombudsman is satisfied that this resolves the complaint.
- The complaint is made on behalf of the complainant by a Legal Rights Officer. I will call the complainant Mr X and the Legal Rights Officer as Mr Y.
- Mr X complained that the Council failed to assess him properly following the ending of the Independent Living Fund in 2015. Mr X says the Council cut his support considerably. As a result, Mr X has not had all his assessed needs properly met by the Council.
- In particular Mr Y was concerned that the Council was using the old, pre Care Act 2014 banding system regarding eligibility, that the Council failed to involve Mr X in the care and support planning process, that the Council failed to adequately account for the reduction in Mr X’s budget and that there were arbitrary caps to the level and care available.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I have obtained written information from Mr Y and from the Council. I have also spoken to Mr Y on the telephone and more recently to Mr X. The Council has also provided written comments and regular updates.
What I found
- The Care Act 2014 came into effect in April 2015. It replaced the previous Fair Access to Care Services (FACS). The Care Act 2014 aimed to create parity between local authorities in how need and support was assessed.
- Section 1 of the Care Act creates a new statutory principle to promote the adult’s well being. Section 13 requires a council to determine whether a person has eligible needs after they have carried out a needs assessment or a carer’s assessment.
Care Act 2014 assessments
- Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment of any adult who appears to need care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual in the assessment and, where suitable, their carer or any other person they might want involved.
- The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs, which are eligible for support, the following must apply:
- the needs must arise from or be related to a physical or mental impairment or illness; and
- because of these needs, the adult must be unable to achieve two or more of the following outcomes:
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of the adult’s home safely;
- maintaining a habitable home environment;
- developing and maintaining family or other personal relationships;
- accessing and engaging in work, training, education or volunteering;
- making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- carrying out any caring responsibilities the adult has for a child.
- To be eligible for support, not achieving those outcomes must be likely to have a significant impact on the adult’s well-being.
- Where the Council decides a person has eligible needs, it must meet these needs. When the Council decides a person is or is not eligible for support it must provide the person with a copy of its decision.
- The Council must provide a care and support plan which considers:
- What the person has
- What they want to achieve
- What they can do by themselves or with existing support
- What care and support may be available in the local area.
- The support plan includes a personal budget which is the money the Council has worked out it will cost to arrange the necessary care and support for that person. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan.
- The personal budget must always be an amount enough to meet the person’s eligible care and support needs. It can be administered by the Council, by a third party, or as a direct payment. Direct payments enable people to commission their own care and support to meet their eligible needs. The Council must consider requests for direct payments made at any time and have clear and swift procedures in place to respond to them.
- Eligibility determination must be made after the needs assessment. Councils still have the power to meet needs that are not considered eligible in order to help maintain wellbeing and independence. Councils should consider risk factors which can include physical safety.
- The Council should consider reviewing the care and support plan six to eight weeks after agreeing it, and then review it at least every 12 months. The Council must also conduct a review if the adult or a person acting on the adult’s behalf asks for one. (Care Act 2014, section 27)
- Councils must keep care plans under review to make sure they do not get out of date. Reviews must involve the cared for person and check if their circumstances or needs have changed.
- Reviews should cover important issues. Those particularly relevant to this complaint include:
- If someone’s needs or circumstances have changed.
- What is working and what might need to change in the person’s care.
- Reviews must not be used to arbitrarily reduce someone’s care and support package. And, where a council decides to significantly reduce the level of services, it must provide cogent reasons.
- The Mental Capacity Act 2005 explains that mental capacity assessments should always be about someone’s capacity to make a particular decision at a specific time. Councils should assume every adult has capacity to make decisions unless an assessment proves otherwise.
The Council’s procedures
- The Council’s Quality Assurance Meeting Panel (the Panel) considers funding for care packages. It has guidance about how it calculates a personal budget and it says that different weightings are given to different answers in the assessment.
- The Council uses a Resource Allocation System to determine funding of eligible needs.
- The Council has provided guidance to its social workers and occupational therapists about the new requirements of the Care Act 2014.
The Independent Living Fund (ILF)
- The ILF provided funding to eligible disabled residents. This was a Government based discretionary scheme to help people who had day and night care needs.
- The ILF had its own funding criteria. From July 2015 councils became responsible for all care provision rather than the ILF. The Department of Health stated that funding in respect of former ILF users would be distributed to councils on the basis of local patterns of expenditure. The Government provided nine months of funding (July 2015 to April 2016). But there was no requirement for councils to ring fence this money.
- Mr X is elderly, is registered blind, is doubly incontinent, suffers from severe arthritis throughout his body and from anxiety and from diabetes. He is also obese and is prone to falling. He has significantly reduced mobility. Mr X requires personal assistance in all areas of daily living.
- Mr X has been a service user since 2003. In addition to receiving funding from the Council, Mr X was in receipt of support from the ILF. Mr X was receiving a care package, consisting of £418.14 per week from the Council and £792.96 from the ILF. His package included night as well as day time support.
- When the ILF closed, the Council became fully responsible for meeting Mr X’s needs. Mr X says he did not have a carer with him or an advocate during the 2015 assessment and he had a number of complaints about the behaviour of the assessor. The assessment recorded that Mr X had high support needs in most activities.
- After this assessment, the Council reduced Mr X’s care package as the Panel agreed to provide 23.5 hours per week. Mr Y says this reduced Mr X’s care package by as much as by 75%. But the Council failed to provide reasons to explain this significant reduction. Mr X appealed this decision and asked the Council to reconsider. However, the Council’s decision remained the same.
- In December 2015 Mr X’s solicitors sent a pre-action protocol letter to the Council, threatening legal proceedings and stating that the Council had failed to carry out a lawful assessment or provide a lawful care and support package. The Council stated that it had carried out its assessment in conjunction with specialists from the National Health Service (NHS). The Council decided that Mr X did not require night time support because he was able to transfer out of bed using his zimmer frame.
- Mr X was unable to proceed with his proposed legal action because he was not eligible for legal aid. Mr X says that, as a result of the Council’s cut to his budget, he had to give notice to a number of his carers. Since the reduction in Mr X’s care package, Mr Y says he has struggled to maintain his independence safely and his well being.
- In October 2016, the Council agreed to deal with Mr X’s concerns as a formal complaint. As a result of a Freedom Information Request, Mr Y learnt that a number of the Council’s service users had had their care budgets cut.
- In July 2016, the Council carried out a reassessment of Mr X’s care package. Mr Y attended the reassessment which was undertaken by a social worker and an occupational therapist. Mr Y considered that the officers were mindful of what the Funding Panel would approve rather than what Mr X required. Further, the completed assessment and the care and support plan did not mention the outcomes of the Care Act eligibility criteria. So, as a result, Mr X’s needs in relation to particular outcomes were not given sufficient consideration.
- After the 2016 reassessment, the Council agreed 25.15 hours per week of support. This consists of 19.15 hours of support for personal care, 3 hours for socialising, 2 hours per week for counselling and 1 hour for support with paperwork and appointments. Mr Y maintained that this was not sufficient to meet Mr X’s eligible needs.
- The Council agreed to carry out a further assessment as a result of Mr X’s continued concerns. The Council also sought information from Mr X’s General Practitioner (GP). Mr X also applied for a Disabled Facilities Grant (DFG) so that he could install a level access shower.
- The Council provided some additional equipment to Mr X as assessed as necessary by the Council’s occupational therapist. This equipment was primarily to assist Mr X with his mobility, prevent falls and to provide safety.
Mr Y’s concerns
- Mr Y is critical that both the 2015 and 2016 assessments failed to properly identify Mr X’s eligible needs in the light of the requirements of the Care Act 2014.
- In particular, the Council had not sufficiently considered the impact of Mr X being doubly incontinent and that he could not manage his toilet needs without assistance. This was particularly relevant at night time. So, often Mr X had soiled himself and he had to wait until the arrival of the morning carer to wash him. This affected Mr X’s sense of independence and harmed his dignity and well being. It also meant that the morning carer’s time was spent washing and clearing up. Moreover, Mr X was vulnerable to falls at night times, when attempting to get to the toilet, resulting in him hurting himself.
- Mr Y was also concerned that there has been a lack of transparency in respect of the calculation of funding. The Council’s Resource Allocation System (RAS) is a software programme that calculates the indicative budget using the information in relation to service users’ needs assessments. Mr Y says that it is not clear whether the software is sufficiently sensitive to identifying all eligible needs. Further the guidance states that complex RAS models of allocation may not work for all client groups where people have complex needs.
- Mr Y considers that the RAS may place a cap on provision. He also raised a concern that the Council had not ring fenced the funding provided by Government to either former ILF clients or adult social care more generally.
- Mr Y says that the Council has not, over the past two years, provided cogent reasons for the significant reduction in Mr X’s care package, that the care and support plan did not show how eligible needs would be met by the personal budget, that reference was being made by officers to setting levels of care that the Panel would agree and that the Council may have reduced the care package for a number of clients who previously received ILF funding.
- In conclusion Mr Y states “The Council’s failure to provide a detailed breakdown in relation to all tasks required to meet Mr X’s needs and reference eligibility outcomes throughout both the needs assessment and care planning process has resulted in an arbitrary package that does not genuinely involve the individual’s view on what is needed and is a far cry from the person centred model that is required by the Care Act. That would not be as much of an issue for our client if his needs were being met by an adequate care package but because he has had a 75% reduction in support, this one size fits all approach is compromising our client’s physical and mental wellbeing”.
The Council’s response
- The Council says that, in line with many other local authorities, it did not ring fence the additional funding from the Government. It had the discretion to do this. It is also satisfied that each person has been robustly reassessed and, while some people have had their budget reduced, others have had an increase.
- The Council had arranged for Mr X to have four visits per day, three hours socialising per week, two hours counselling and one hour of support with appointments and correspondence. The Council says Mr X had chosen to take his care hours as a block each day, between 9am and midday, which it did not consider was helpful to him. But the Council recognised that this was Mr X’s preference because he finds it difficult to cope with a variety of carers arriving at different times of the day.
- At the time of the events of this complaint, the Council says it was using an old version of the care and support plan recording form which had the previous ratings under FACS. But the system has now been updated.
- The RAS produces an indicative budget but a final budget is determined after consideration of the client’s care and support plan.
- The Council says that, at the time of the assessments, Mr X was not bed bound and that he was able to get out of bed at night and either use his commode or downstairs toilet. The Council says Mr X demonstrated how he was able to mobilise independently by using his walking frame.
- In June 2015, the Funding Panel agreed 23.5 hours per week and in August 2016 this was increased to 25 hours and 15 minutes per week.
- The Care Act 2014 brought in significant changes to the assessment of need and provision of care. Its aim was to eliminate the previous post code lottery of provision through the introduction of national eligibility criteria and to ensure a person-centred approach to meet desired outcomes.
- The Council had failed to demonstrate what needed to be done at each care visit and no allocation was given to the substantial time required for Mr X’s toilet needs to be met. Moreover, Mr X was becoming reluctant to try to attempt to get out of bed at night time because he was prone to fall. This was also causing a decline in his wellbeing. It is also difficult to understand the Panel’s rationale for reducing Mr X’s care package in the way it has done.
- It is important that, in the spirit of the Care Act, the Council ensures that Mr X’s needs are properly recorded and provided for and that sufficient attention is given to the desired outcomes to prevent unnecessary decline in his wellbeing.
- Overall, I considered that there is evidence of fault by the Council in that I cannot be satisfied that the assessments of 2015 and 2016, and subsequent support plans, properly identified Mr X’s eligible needs because:
- The impact of being doubly incontinent was not properly assessed. The adaptations or equipment referred to by the Council did not appear to manage this difficulty bearing in mind the need to retain Mr X’s dignity. The Care Act outcome on managing toilet needs was therefore too restrictive;
- The impact of Mr X’s visual impairment and its effects on him in achieving the range of required outcomes was not fully recognized;
- Mr X required assistance to achieve all but one of the outcomes listed at paragraph 9. It was not clear how the care package was able to achieve this or the reasons for the significant cut in his care package since 2015;
- While the RAS is commercially sensitive, it was not clear how the Council allocated hours to need.
- Mr Y and Mr X had lost confidence in the Council’s ability and willingness to assess him in line with the Care Act. They feared that resources may be determining his level of need and subsequent care package.
- The most appropriate way to resolve this complaint was for there to be an independent assessment of Mr X’s needs and care package, carried out by an assessor who has some experience of working with visually impaired clients. Particular attention needed to be paid to Mr X’s toileting needs and consideration given to how he managed at night time and the implications this has had on the care hours he might require.
- We recommended that the Council carried out an independent assessment. The Council agreed and this assessment took place during the course of the Ombudsman’s investigation.
Independent assessment of September 2017
- Mr Y sent to the independent assessor the Council’s earlier assessments and support plans. The independent assessor recommended 93.25 care hours which was a significant difference between the Council’s previously recommended 25.5 hours.
- The Council’s Panel had to consider this assessment. However, during the course of this investigation, Mr X suffered a serious fall and was in hospital. This fall resulted in Mr X ‘s mobility being seriously affected and he is now in a wheelchair.
- In December 2017, the Council agreed a care package of 66.25 hours per week broken down to also ensure Mr X’s safe discharge from hospital. The Council also agreed to review the care package in January 2018 and the Team Manager visited Mr X at his home.
- Since then, there have been discussions between the Council, Mr Y and Mr X about night time support and other aspects of the care package. This has resulted in the Council agreeing to two carers arriving at 11.30pm for 30 minutes to help with Mr X’s toileting and to repositioning him in bed. The Council has also allocated one hour to help Mr X with shopping and it has provided Mr X with details of the wheelchair taxi service, although to date he has not been able to use this service.
- Mr X has indicated that the Council is now providing an acceptable care package and support plan and it is an improvement on what the Council had previously been willing to provide. Mr Y hopes that the lessons learnt from his complaint will have implications for the way the Council now undertakes all care assessments and support plans in future.
- The Council agreed the independent assessment of Mr X’s care needs and this has resulted in a significant increase in his care hours. I am satisfied that the Council has been at fault in its earlier assessments of Mr X for the reasons set out and for the reasons referred to by Mr Y. The remedy for this was for the Council to commission an independent assessment and to reconsider Mr X’s care package. The Council also agreed to pay £250 for Mr X’s time and trouble in making his complaints.
- However, Mr X’s health does seem to be deteriorating so it is important for the Council to keep a close watch on this and carry out regular reviews of the support package.
- The Council has followed the Ombudsman’s recommendations. However, subsequent to the independent assessment, Mr Y requested a substantial compensation payment to Mr X for his lost care hours and for the monies he spent on meeting his needs. However, this is not a matter which I investigated as part of this complaint.
- I therefore consider it is appropriate to end this complaint investigation given the independent assessment and the resulting new support plan has resolved most of Mr X and Mr Y’s original complaint.
- However, it is open to Mr Y or Mr X to make a further complaint to the Council first and then, if dissatisfied, to the Ombudsman, on the issue of his losses. It would also be possible for Mr X to consider making a legal claim against the Council.
- There is evidence of fault by the Council causing an injustice to Mr X. The Council has provided the recommended remedy. I have therefore completed this investigation and I am closing the complaint.