A “financially motivated” local authority breached the Care Act by cutting a man’s longstanding personal budget by a third without identifying whether a cheaper way of meeting his needs could be found.
That was the key finding from a damning Local Government and Social Care Ombudsman report into Nottinghamshire council’s treatment of an autistic man, Mr Y, and his parents and carers, Mr and Mrs X.
The council’s failings, as identified by the watchdog, included:
- Setting an arbitrary rate for care, which meant that the personal budget it allocated to Mr Y was insufficient to meet his needs, contrary to the Care Act and its statutory guidance.
- Requiring Mr Y to make contributions to his care that meant his income fell below the minimum income guarantee, contrary to regulations on charging and financial assessments under the Care Act. Despite this, there was still a shortfall which Mr and Mrs X had to cover.
- Intending to transfer Mr Y’s care to a cheaper provider without having identified one.
- Not reviewing Mr Y’s needs for three years.
- Saying his budget may reduce in future, which added to Mr Y’s distress and was despite the fact that his future budget would be based on his assessed needs, which could not be predicted.
- Assessing Mrs X as being eligible for a carer’s personal budget as well as funding for respite care for Mr Y but not providing this, meaning they have both missed out on services and Mrs X has not had relief from her caring role.
- Issuing a leaflet to citizens that gave information that was contrary to the Care Act, including telling them that they “will receive social care if there is no other way of supporting you” and that they should “seek help and support from your family and friends before approaching the council”.
“The council’s approach appears to have been financially motivated and did not have sufficient regard to Mr Y’s specific needs,” the ombudsman said.
The council has accepted the ombudsman’s findings and agreed to his recommendations.
Mr Y, who lives at home with his parents, who provide his day-to-day support, has been receiving 13 hours of weekly support from an private provider of day services and outreach services for adults with learning disabilities or autism for about 12 years. Prior to the time covered by the report, the council had fully funded this at a cost of £22 an hour through a direct payment, though it did not have a contract with the agency.
Plan to switch provider
In a review of his needs in September 2014, the assessor recorded that the hourly rate charged by Mr Y’s care provider was above that of the council’s usual rate and that he should continue to receive the support for one year until another provider could be found, which was agreed by a panel in January 2015. The review also noted the importance of the service and the continuity of familiar care workers to Mr Y, and the fact that Mrs X was suffering significant mental health problems due to the strain of her caring role.
The council then failed to review Mr Y’s needs until 3 November 2017.
The reviewing social worker noted the council had failed to inform Mr Y and his parents of its 2015 decision to fund the care provider for one year, with the intention of planning a transition to another service paid at the council’s standard rates.
The social worker discussed the situation with her manager, who said Mr Y could continue receiving support from the care provider but he would have to contribute the difference between the council’s set service rate and the care provider’s hourly rate.
On 27 November 2017, the care provider and social worker agreed to a reduced hourly rate of £18 per hour, but this was not put in a formal agreement, which meant it didn’t come into effect
‘Upset and anxious’
She then visited the family again on 5 December 2017 to inform them that the council would only fund £15.12 per hour of Mr Y’s care costs but would seek to renegotiate the hourly rate from £22 an hour to £18 an hour, with Mr Y funding the difference. This made him upset and anxious.
Mr X complained to the council on 11 December 2017 saying Mr Y struggled with change and didn’t want a change of provider, to which the council responded in an undated letter that Mr Y would need to top up the shortfall if he wanted to continue using the same service. However, it then, in January 2018, said that Mr Y would receive a new support plan and would be moved to a new provider gradually over a year, after which the new provider would take over completely. It also said his budget may then reduce further depending on an increase in his independent living skills.
The social worker then visited the family in April 2018, which Mr Y did not attend. His parents said that they believed a move would be detrimental to him so they said they would cover the shortfall in council payments to ensure he retained the service.
Shortfall in budget
The resulting care and support allocated Mr Y an indicative budget of £238 per week, equivalent to about £18 an hour but only provided him with £196.56 per week, £89.44 per week less than he previously received. Mr Y’s personal independence payment benefit was insufficient to cover the shortfall, meaning his parents had to make up the shortfall.
While this plan was implemented in June 2018, it was backdated to 23 April, meaning it would recoup an overpayment of £1162.72 over the subsequent two months, which Mr X said left Mr Y with nothing to pay the care provider in July and August 2018.
Mr X complained to the council in June and again in July, saying the council hadn’t shown any regard to Mr Y’s wellbeing, and that he was still paying the care provider £22 an hour, rather than £18, as the reduction had not been formalised.
While the council subsequently waived the overpayment charge, it did not agree the £18 rate with the provider until October 2018. Though his direct payment varied subsequently it still left a shortfall between the council rate and the fee charged by the provider.
While the council recorded Mrs X experiencing mental health problems because of her caring role in 2018, it wasn’t until April 2018 that she received a carer’s assessment, which concluded that she was eligible for a carer’s personal budget plus a sum of respite care for Mr Y. However, she was not sent a copy of the assessment or the sums agreed. This was despite Mr X being diagnosed in July 2018 with a serious illness, for which Mrs X needed to provide him with care and support.
Decisions ‘solely based on finances’
Ombudsman Michael King said: “In this case the council reduced the man’s care package so he had to fund the shortfall from his benefits, which even then were not enough. His parents had little choice but to cover the cost of this, despite their son’s level of care having not changed in more than 12 years.
“While councils can consider the financial cost when deciding how much to pay a person to meet their eligible needs, they cannot make care decisions based solely on those financial considerations. This is what Nottinghamshire appears to have done in this case.
He recommended taht the council:
- Provide Mr Y and Mr and Mrs X with an apology from the director of adult social services for its failings.
- Review Mr Y’s assessment and produce a care and support plan that reflects his needs and explain in detail how these will be met.
- Make a symbolic payment of £1,000 to Mr Y in acknowledgement of the stress, worry and loss of respite caused by the council’s failure to assess his needs and provide adequate support.
- Reimburse Mr and Mrs Y all the money they have paid to top-up Mr Y’s care.
- Complete a new financial assessment.
- Make a symbolic payment of £1,000 to Mrs X to acknowledge the council’s failure to provide allocated respite funds.
- Review Mrs X’s carer’s assessment and produce a support plan setting out how her needs will be met.
- Consider if others have been affected by arbitrary upper limits on hourly rates and take necessary action to address this.
- Amend procedures to ensure the council doesn’t set arbitrary limits of hourly rates.
Ainsley Macdonnell, service director at Nottinghamshire, said: “We accept the findings of the ombudsman’s report.
“We have already apologised to the family for the distress this situation has caused them, we are working to comply with the recommendations and will report back on the actions we have taken.”