A council wrongly reduced a disabled man’s personal budget by arbitrarily capping respite payments at the equivalent cost of residential care, despite this being an unsuitable way of meeting his needs, the Local Government and Social Care Ombudsman has found.
As a result, his parents had to top up payments for carers so that the respite could be provided in the family home, after the man had gone 16 months without respite altogether because of a failure to agree the amount between Sefton council and the family. This prevented his parents having a break at a time when his father had health problems of his own.
The man, known as Mr Y, who has a severe learning disability and autistic spectrum disorder and lives with his parents, Mr and Mrs X, had been receiving council-commissioned 2-1 care, five days a week, at a day service run by a nearby council for over 20 years. He also had a direct payment for three hours’ care a week and four weeks’ respite a year, provided at home by carers from the day service.
In May 2016, the council began a reassessment of his needs, which was not finalised until July 2017 because, the council said, it was pursuing continuing healthcare funding for Mr X.
The assessor recorded that Mr Y spent a great deal of his week in the community and that incidents involving challenging behaviour had “greatly reduced over the years”, recommending he continue to attend the day centre five days a week but his support decrease from 2-1 to 1-1. The assessor also said that he should continue to receive four weeks’ respite a year, but that this would cost £500 a week, equivalent to the cost of a week’s placement in a care home. This was despite Mr and Mrs X wanting to continue with respite within the family home funded by direct payments.
‘Intimidating’ meeting with council
Mr and Mrs X were invited to a “formal meeting” with the council in March 2017 to discuss the assessment but weren’t given a copy of it beforehand.
Mrs X said she expected to meet with the reviewing officer but was instead met with seven council officers, which she found intimidating. During the meeting, council officers queried why Mr Y needed two carers when outside of his home.
The council agreed to halt the meeting so Mr and Mrs X could consider the assessment. The next day Mrs X contacted the council and said she believed the current care package met Mr Y’s needs and shouldn’t be changed while also complaining she hadn’t been given a copy of the assessment prior to the meeting.
Mr Y’s assessment was completed in July 2017 and a copy was sent to Mr and Mrs X, who disagreed with the outcome. In October, Mr Y’s case was transferred to a different team and a new social worker was allocated.
No direct payments were received for Mr Y’s respite care in 2017, which the newly allocated social worker later recorded was because of the lack of conclusion over how much funding he should receive.
In an assessment in April 2018, the social worker recorded Mrs X’s “frustration that there is an outstanding issue relating to [Mr Y’s] respite which has prevented them from having an extended break from their caring role last year”. The assessment also recorded that Mr Y’s needs had not changed, apart from in respect of accessing the community, for which the assessor said that his needs had reduced but that he still needed two carers.
Residential care ‘not suitable’
The council’s legal team then advised the social worker that Mr Y receive funding for respite in line with the equivalent cost for residential care despite a care home not being a suitable way to meet his needs. The social worker recommended in the April 2018 assessment he continue to receive four weeks’ respite a year at home through a direct payment. A further assessment in June 2018 recorded that his needs had not changed from the April assessment.
Mrs X submitted a formal complaint to the council in June 2018 saying she received no respite at all during 2017 and had received no payments for respite in 2018. She submitted a further complaint in July 2018 in response to the decision to pay Mr Y’s respite care budget at a residential respite rate that Mrs X said wasn’t enough to provide respite care in the home.
On 11 August, two weeks before a planned holiday, Mrs X contacted the council and said she hadn’t yet received direct payment to fund respite.
The council advised her to contact a residential home. Mrs X told the council Mr Y wouldn’t cope in a residential setting and reminded them he had 1-1 care at home and 2-1 in the community. She said the council told her Mr Y would receive care from one carer in a residential placement who would also be caring for others, which she said would not meet Mr Y’s assessed needs.
When Mrs X received the respite money it was less than had previously been paid, equivalent to the cost of a residential respite stay at £570 per week.
Forced to top up carers’ wages
The regular carers agreed to provide respite for Mr Y in the home at a reduced rate (£4.41 per hour) because Mrs X’s holiday was imminent, so Mrs X offered to top up the carers’ wages.
At a further meeting in December 2018, the social worker and her manager reiterated that the council would only pay for respite at the residential care rate, and the authority subsequently offered Mrs X two weeks’ respite at this rate by way of apology for the failure to provide it in 2017-18.
After Mrs X’s complaint was referred to the ombudsman, the council told the watchdog that the social worker had concluded that Mr Y’s needs could be met in a residential setting, but that the respite payment was provided as a direct payment in line with the family’s preferences.
It added: “The most cost-effective way to meet [Mr Y’s] needs was via a residential respite placement. As such, if the family chose another method to meet his needs, the council would only pay for a service up to the same value as the most cost-effective option”.
However, among a number of identified failings, the ombudsman found that all evidence showed residential care to be unsuitable for Mr Y, and it was unclear how the council concluded that it was.
Despite the April 2018 assessment concluding residential respite was unsuitable and the June 2018 assessment recommending he receive respite at home, the council reduced his respite payment, wrongly setting an arbitrary upper limit, the ombudsman found.
“In setting the amount of a direct payment…the council must ensure it is enough to buy services which will meet the person’s eligible needs,” the report said. “In Mr Y’s case, it failed to do so.”.
The watchdog cited the statutory guidance under the Care Act, which states that, though councils may take financial considerations into account in how they meet need (though not whether they should be), they should not set arbitrary limits on how much they will pay to meet a need as this “would not deliver an approach that is person-centred or compatible with public law principles”.
The ombudsman also criticised the April 2018 assessment for finding that Mr Y’s needs to access the community had reduced despite concluding that his need for 2:1 care in the community was unchanged.
‘Confusion and delay’
He also found evidence of “confusion and delay”, saying the pursuit of CHC funding should not have delayed the completion of the reassessment started in May 2016 and ending in July 2017.
While the watchdog found that the impact of the council’s failings on Mr Y were not significant, as his parents had continued to ensure his needs were met, he found Mr and Mrs X had suffered an injustice by missing out on sixteen months of respite care and being forced to contribute to carers’ wages.
The ombudsman also found that the council’s offer of two weeks’ respite at the residential rate in acknowledgement of its failure to provide respite in 2017-18 was insufficient because Mr and Mrs X missed out on a service which would have provided relief from their caring role.
This was particularly important because Mr X was experiencing his own health problems, the ombudsman added.
The ombudsman also said it was “poor practice” for the council, in March 2017, to invite Mr and Mrs X to a meeting about the reassessment without providing them with a copy of it in advance and informing them of the formal nature of the meeting.
In response to the findings of the ombudsman, a spokesperson for Sefton said: “Since 2018 Sefton Council has worked with the Social Care Institute for Excellence (SCIE) to roll out a programme of mandatory training and development for adult social care practitioners which covers the recommendations outlined in the report.
“We do not set an arbitrary limit to care provision and will always apply the Care Act principles.
“The council cannot comment on any individual cases, however we will continue to work with the ombudsman to address the recommendations outlined.”
The ombudsman recommended the council:
- Provide Mr and Mrs X with a written apology and make a payment of £250 to acknowledge the time and trouble they have been put to.
- Review Mr Y’s assessment and produce a care and support plan which reflects his needs over a seven-day period and explain how these needs will be met, including respite care, in consultation with Mr and Mrs X.
- Pay Mr and Mrs X £500 to acknowledge the uncertainty and worry caused by the council’s failure to provide sufficient direct payments to cover the cost of Mr Y’s respite care in 2017-18.
- Establish if, and how much, Mr and Mrs X contributed towards Mr Y’s respite care in 2018 and reimburse them in full.
- Undertake individual carers’ assessments of Mr and Mrs X and produce a support plan setting out how their needs will be met.
- 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.