A council failed to follow the Care Act when it reduced a man’s personal budget without involving him in the assessment or producing a support plan, the Local Government and Social Care Ombudsman has found.
The watchdog found the council failed to follow correct procedures when it reduced Mr B’s budget in 2016, causing him significant distress and incurring unnecessary legal costs.
In addition, the ombudsman found fault with the council’s delay in completing Mr B’s care assessment and said its failings had caused him “significant frustration and distress”.
Independent Living Fund closure
The 39-year-old man, known as Mr B, has complex physical health concerns and needs a significant degree of care and support.
At the beginning of 2015, Mr B was receiving 91 hours of support a week, funded partly by the council and partly by the Independent Living Fund (ILF).
With the ILF due to close in June 2015, the council started a reassessment of Mr B’s needs in May 2015, during which a social worker told Mr B that the council wished to reduce his care package to 77 hours each week, plus five hours’ flexible support. Mr B felt the council hadn’t properly considered all of the support he needed, and the council agreed to provide him with the same package as before from July 2015 on an interim basis.
The council accepts that it failed to complete Mr B’s reassessment, which the ombudsman said was a fault.
In August 2015, the council temporarily increased Mr B’s personal budget so that he could have more contact with his children and agreed to draft a new support plan to enable him to attend college.
Mr B’s advocate then told the council she and Mr B had tried to put together a support plan, but that she considered it too difficult for them to complete together. As a result, Mr B asked the council whether it would fund an independent support planner.
While a social worker sought advice on this from the council’s legal team, the ombudsman found no evidence this was provided. The council refused the request for an independent planner, a decision the ombudsman found was not made properly, without consideration of Mr B’s advocate’s view or legal advice.
In November 2015, after repeated requests from Mr B for additional support, the council decided to carry out an assessment of Mr B’s care needs which would include an assessment by an occupational therapist.
An OT visited Mr B twice between January 2016 and February 2016 in order to complete her assessment, but he disagreed with her view of the amount of time it would take him to carry out daily living activities.
Exclusion from planning process
During a meeting in June 2016 with his social worker and manager, Mr B was told that all the information the council had would be gathered into an assessment and put to the council’s resource allocation panel.
Mr B complained that he was being excluded from the care planning process, in breach of the Care Act, but the council said the process was ongoing and Mr B would be fully involved in it.
In September 2016, the council sent a review document to Mr B showing his funding for support would be reduced by about 50%. He was told the new budget had been signed off by senior management and his old package wouldn’t be reinstated.
The ombudsman found the council failed to follow correct procedures when deciding to reduce Mr B’s funding, particularly in their failure to complete a support plan and involve Mr B in the assessment and support planning process. Under sections 9, 25 and 27 of the Care Act 2014, councils must involve the adult in question in assessments, the support planning process and in revisions of support plans or reassessments. The council later accepted that its decision had been in breach of the Care Act and its statutory guidance and admitted that its records did not provide any rationale for the decision.
It also failed to follow its own procedures to give direct payment recipients four weeks’ notice of any changes to their payments, as Mr B was only given 10 days’ notice before his budget was reduced.
Legal action threatened
Mr B complained to the council about his budget reduction and received a response in September 2016 that acknowledged it shouldn’t have cut his payments.
Mr B engaged a solicitor, Mr X, who sent a pre-action protocol letter to the council, saying that by failing to carry out a lawful care assessment, provide rational reasons for a reduction in his package or giving Mr B the opportunity to review the decision before the reduction was made, the council had violated his human rights.
The council agreed to reinstate his package for 28 days to enable further discussion to take place and for the completion of the assessment and support plan.
In October, the council agreed for Mr B to carry out a supported self-assessment with an independent social worker, as Mr B didn’t trust any council employee to carry it out. However, Mr B was unhappy with the person chosen because he believed they were not registered or qualified, though the ombudsman concluded that they likely were. The council then wrote to Mr B saying that a council social worker and OT would carry out the assessment.
Independent social worker promise offer rescinded
The ombudsman said that the council’s decision to go back on its word to fund an independent social worker was a fault, and it led to Mr X threatening to judicially review the authority. After further discussion, the council agreed to fund an independent practitioner in October 2017. The assessment was completed in April 2018.
In May 2018, Mr X complained to the ombudsman about the council’s actions and the authoirty was asked to respond to his complaints. The council sent the ombudsman its response in September 2018 but Mr X and Mr B said they didn’t receive a copy until November. This delay was another fault by the council.
The council has also accepted that it did not follow the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 in the way it considered Mr B’s complaints. This was after Mr X had said that the council’s response did not include an explanation of how the complaint had been considered, failed to investigate specific points and did not tell Mr B of his right to complain further if he was dissatisfied, as the regulations require.
In its final response to Mr B’s complaint in 2018, the council offered an unreserved apology “for not providing [Mr B] with the expected standards it sets out to provide”.
While the council offered Mr B an initial remedy – £600 for the delay in completing his reassessment and £1000 for any distress caused by its actions – Mr B and Mr X considered this insufficient.
The ombudsman, in effect, agreed, recommending that the council pay £2,711.86 for the legal costs Mr B incurred as a direct result of its failure to follow correct procedures when it reduced his personal budget in August 2016, and a further £1,600 for the “significant frustration and distress” caused by the failings.
The watchdog also recommended the council arrange training on the Care Act for its adult social care staff, highlighting the failings in this case, or provide evidence that it has already done this. It should also review the way it deals with complaints, ensuring that it follows the relevant regulations.
The council has agreed to the recommendations.
In a statement provided to Community Care, Walsall Council said: “The council accepts there is learning from this case and is ensuring that this informs future improvements.”