Page 8 - Community Living Magazine 33 - 3

legal: ombudsman
Using the ombudsman when

councils break the Care Act

The Local Government and Social Care Ombudsman can be an effective
alternative remedy to the courts for Care Act breaches. It also offers certain
advantages, says Belinda Schwehr in the first of a two-part series

he Local Government and Social The complainant’s primary concern was a different provider whose charges are
Care Ombudsman (LGSCO) that the continued funding, although above other agencies and whose charges
Tinvestigates social care complaints. protected, was no longer enough to pay are not in line with the county council
It is therefore a way of getting for the needs that had last been agreed in agreed costs (core rate).” The parents had
information out and facts clarified 2015. This was because the costs had paid the difference personally.
without being formally hostile. gone up, leaving insufficient money to pay
Before you approach the LGSCO, you the personal assistants (PAs) everything
have to air the problem with the council. they were already owed, which was about “ The ombudsman
As long as you apply to the ombudsman £7,000 in holiday pay.
early enough, legal proceedings can still The LGSCO recommended backdating can be seen as a form of
be used within the subsequent few to the first time the client flagged up ‘error of law’ tribunal,
months if your complaint is not upheld. that the budget was inadequate and even if not a genuine
LGSCO reports provide lessons and would not cover what she was having to
ensure accountability, which rarely pay the PAs for the originally agreed appeal tribunal
happen with a court case. However, these number of hours. ”
reports do not count as precedents so, It was not saying that she could claim to
just because the LGSCO is critical of a pay the PAs whatever she thought they Section 27 of the Care Act means a plan
council for breaching the Care Act, the deserved, but rather that when the cannot be changed until a proportionate
public cannot assume that any other local council got around to finalising a proper reassessment has been done and,
authority will automatically shape up. care plan, the care plan needed to be although it does not necessarily have to
Some recent reports give a flavour of backdated to compensate for the period be as deep as an original assessment
what a complaint to the LGSCO can where costs were found to be greater and under section 9, it is subject to all the
achieve, particularly in relation to delays, needed to be paid. same principles, including the duty to
cuts and direct payments. The PAs had stayed on without being promote wellbeing.
given a pay rise. However, if there was Changing a home care provider is not
Getting personal assistant costs back evidence that the client had been under against the law, even if this is against the
Restitution being used as a principle of pressure regarding salary from a particular wishes of a client. Funding a package
good administration is a recent legal date, and should not have expected them based on the cost of alternative provision
development. Key to this is that the to stay on unless they were paid more, is also not automatically against the law,
LGSCO can be seen as a form of “error of that would have to be acknowledged and but can only be done if providers have
law” tribunal, even if not a genuine was grounds for backdating. been found that are willing and able
appeal tribunal. to provide the package in light of all
In a 2019 case concerning Bath and Lawful reassessment required relevant considerations, including the
North East Somerset Council, the Also in 2019, the ombudsman ruled that skill level required.
ombudsman said that, until a Care Act Nottinghamshire County Council had The ombudsman stated: “It is not
compliant asssessment had been failed to lawfully reassess the needs of a acceptable for a council to reduce
completed, the council must continue man with Asperger’s syndrome. support based on a supposed cheaper
to meet needs as previously agreed. The man’s care package had been stable care provider that does not at present
A proposed cut could not simply for 12 years. Nottinghamshire suggested exist… The council’s approach appears
be imposed. transfer to a cheaper provider without to have been financially motivated
The person’s rights to services specified actually sourcing one with the requisite and did not have sufficient regard to his
under the old care plan continue to level of skill. specific needs.”
subsist and form the basis of a private law It merely said, in short: “You have to The LGSCO recommended: a symbolic
right to reimbursement if someone has make do on less, because that is what we payment of £1,000 for stress and worry
paid for their delivery. want you to do.” This is not a defensible and loss of respite service; reimbursement
Over the whole period of this position within the legal framework. to the parents of all the money they
complaint, there had never even been An officer had said the man would have had paid to top up the man’s care to
a properly concluded care plan based to contribute the difference between the the level previously agreed; plus £1,000
on a reassessment once the person’s council’s set rate and the hourly rate set to his mother to acknowledge the
Independent Living Fund money by the care provider, arguing that: “This council’s failure to provide allocated
had ended. applies to any person who chooses to use respite funds.

8 Vol 33 No 3 | Spring 2020 Community Living www.cl-initiatives.co.uk