Council breached Care Act in decision to cut woman’s personal budget

Ombudsman finds Somerset council's failure to follow assessment and care planning duties caused 'avoidable confusion and distress' to couple

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A council breached the Care Act when it decided to reduce a physically disabled woman’s direct payment and removed carer’s support from her husband, the Local Government and Social Care Ombudsman has found.

The failings by Somerset council caused the couple avoidable confusion and distress, the watchdog said.

Mrs A moved from Hampshire to Somerset with her husband, Mr A, in March 2016. Hampshire council had allowed Mrs A to employ Mr A as an exception to the normal rule that direct payments cannot be used to pay someone living in the same house who’s a close relative.

Mrs A paid Mr A to care for her five days a week, then paid a care agency for the remaining two days. When Mr and Mrs A moved to Somerset, it maintained the same funding as Hampshire, in line with the Care Act’s requirements around maintaining continuity of care when a person moves into a new area without having been assessed by their new authority.

Blank and ‘mostly incomplete’ assessment

In August 2016, the council assessed Mrs A’s needs, however, the assessment, according to the ombudsman, was “mostly incomplete or blank” and failed to outline whether Mrs A had eligible needs.

The following month, the council completed a care and support plan for Mrs A, which, unlike the previous assessment, outlined her needs and support.

Under the Care Act, a person has eligible needs if these arise from a physical or mental impairment or illness and result in an inability to meet any two of ten outcomes, with a consequent significant impact on the person’s wellbeing.

Mrs A had eligible needs in relation to most of the ten Care Act outcomes. The weekly personal budget for Mrs A was £612: £580 for her and £32 for Mr A’s needs as a carer. The support plan said the council allowed Mr A to be Mrs A’s personal assistant due to exceptional circumstances.

There was no review of Mrs A’s care plan in 2017.

In August 2018, a social worker completed an assessment of Mrs A, which Mr A told the ombudsman he thought at the time was a review, not an assessment. During the assessment the social worker told Mr A there would be no changes to the care and support plan or personal budget.

Later that month, the council completed a new care plan for Mrs A, which said her personal budget would be reduced to £505 for 39 hours’ care. While it described the tasks Mr A did, it did not refer to the needs being met by Mr A as a paid personal assistant, as opposed to the needs met as Mrs A’s unpaid carer.

Complaint against funding cut

In November 2018, having received a copy of the assessment and care plan, Mr A complained about the following:

  • The reduction in funding and the assessor taking into account care provided by him when considering the extent of Mrs A’s care and support needs.
  • That the social worker carried out an assessment and drew up a care plan without their knowledge or involvement.

The council agreed not to implement the reduction in the direct payment until it had responded to the complaint.

Mr A met a manager in December to discuss the complaint. She responded in February 2019, confirming the reduction in Mrs A’s personal budget and saying that Mr A’s carer’s payment would stop as there was no provision for the council to provide carer’s support to someone who was a paid carer.

Mr A then escalated his complaint to senior management, which upheld part of his complaint, but not the aspect relating to the reduction in funding. Mr A then complained to the ombudsman.

Series of failings

The ombudsman found the council breached sections 9 (the duty to carry out assessments of care and support needs) and 37 (the duty to assess after being notified of a person’s move into a local authority’s area)) of the Care Act when it failed to assess Mrs A’s needs upon her moving to Somerset.

When it did complete an assessment in September 2016, large parts of the form were blank and it failed to state her eligible needs. The ombudsman also criticised the council’s failure to complete a review of Mrs A’s care and support plan in 2017, contrary to the expectation in statutory guidance that these take place at least annually

The council also breached section 10 of the Care Act by not assessing Mr A’s needs as a carer.

While the council provided carer’s support to him by including a carer’s payment in Mrs A’s direct payment, it did not give him a support plan, contrary to section 25 of the act.

The ombudsman said the social worker should have made it clear in August 2018 there was going to be a fresh assessment of Mrs A and a new care plan, and the failure to be open about this was a fault. Mr and Mrs A should have had the opportunity to comment on the care and support plan before it was finalised.

In failing to make a distinction between eligible needs being met by Mr A as a carer and those being met by the direct payment, the care plan was not compliant with the Care Act statutory guidance.

The council adopted the view that Mr A could not be a carer because he was contracted to care for Mrs A using the direct payment. However, this was a change from the council’s position in 2016 when it provided Mr A with carer’s support and its failure to give a reason for its change in position was a fault, the ombudsman found.

Recommended action

On the ombudsman’s recommendation, the council has agreed to:

  • Carry out a fresh assessment of need for Mrs A and devise a fresh care and support plan, which should set out needs being met by Mr A as an unpaid carer and her eligible unmet needs.
  • Carry out a carer’s assessment for Mr A and devise a carer’s support plan.
  • Involve Mr and Mrs A fully in the assessments and care and support plans/support plans and take reasonable steps to reach agreement.
  • Ensure any changes to the direct payment are clearly explained in writing with reasons.
  • Preserve the existing direct payment until the above recommendations are complete.
  • Apologise to Mr and Mrs A and pay them £250 each to reflect the avoidable distress they had been caused.

A Somerset County Council spokesperson said: “Somerset County Council agreed with the recommendations set out by the Ombudsman report.

“Somerset County Council is a learning authority and we have made changes to our systems and processes so that we can prevent this from happening again, we have apologised to the individual and her family and continue to work with them to make sure they are appropriately supported.”

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