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legal: ombudsman

The welcome aspects of this LGSCO ignoring commitments to
response are: other family members
● ●The requirement that the council must are unlawful.
consider if other service users could A carer’s willingness
have been affected by arbitrary upper and ability to carry on
limits on hourly rates for budgets and are critical to a service
address this user’s own reassessment
● ●The price in any market must reflect the and the £1,600 should
reality of the contractual situation from have been in his budget
that provider’s perspective – here, a after 2015.
direct payment relationship with the The carer’s position
customer on the provider’s own terms needed to be factored
– not a “bulk hours” deal with the into any cut to the
council on the authority’s terms. service user’s budget,
If the decision to continue funding under section 27 of the
by way of a direct payment reflected that Care Act; and the carer,
the council acknowledged the value of having been separately
that route (for continuity, since the assessed as being
provider was not a council contractor) and entitled in her own right,
promotion of wellbeing for the man and had an unanswerable
his family, then it should have considered claim to the money
whether the contract for the higher rate allocated. The ombudsman said Nottinghamshire County Council should not
in some way provided for wants rather The LGSCO make decisions based purely only on financial matters
than needs, or whether it was driven by recommended that the
the need for skills specifically around council repaid all the money spent by the reduce long-term packages through
Asperger’s, which had been noted in complainant’s parents on top of the discussions of: family and community
previous assessments. budget. This recommendation flowed sources of support; assessment of risk
The man had not expressed a quite properly from the principle of levels and contingency planning; and
preference for a more expensive service; restitution for unjust enrichment during a long-term outcomes.
it was a service he had received for many period of unlawful Care Act process; This has to be right in law. Acceptance
years, and the local authority’s own others were known to be spending money of streamlined or interim offers is only a
records acknowledged he would not have in place of the local authority’s statutory choice if the person knows what they are
been able to cope with a sudden change duty to deliver on the care plan. giving up, and has the capacity to work
of provider. It was therefore more likely a out the pros and cons of that choice.
need rather than a mere want. If one can get this much from resorting
The LGSCO said: “The council correctly “ There is a trend in to the LGSCO, it becomes increasingly
points out the statutory guidance allows ombudsman reports that tempting to think of it as a form of
it to consider the financial cost when informal tribunal for unlawfulness,
deciding how much to pay to meet a certain practices do not get even it cannot offer a full-blown formal
person’s eligible needs. Cost can be a the benefit of the doubt appeal route. n
relevant factor in deciding between ● In the next issue, we will examine
suitable alternative options for but are called out significant LGSCO cases that concern
meeting needs. ” delays in finding appropriate care
“However, that does not mean choosing and excessive delays in completing
the cheapest option. The council can The LGSCO did not recommend assessments. n
consider best value, but it cannot make reimbursement of anything that had ● Local Government and Social Care
decisions based only on financial not already been found due to the man in Ombudsman: www.lgo.org.uk/
considerations, as it appears to have done the past. And there was no suggestion
in this case.” that the man’s needs had lessened, Belinda Schwehr is chief executive of
which is needed for a council to justify legal advice charity CASCAIDr (www.
Carer needs cutting payments. CASCAIDr.org.uk) and owner of the Care
Nottinghamshire County Council had also & Health Law consultancy. She has been a
completed a carer’s assessment for the Calling out wrongs barrister, solicitor advocate and university
mother, which recorded in 2018 that she There is a discernible trend in LGSCO law lecturer
was experiencing stress because of her reports that certain practices are no
caring role. It had previously noted this longer being given the benefit of the References
was happening in 2015. doubt but, instead, are being called out as Local Government and Social Care
Ombudsman (2019) Bath and North East
wrongs unless a council promptly offers
John Sutton/geograph.org.uk as a carer was “entitled to £150 to use for further due process. com/ybpg7ll6
The assessment concluded the mother
Somerset Council (19 000 003). https://tinyurl.
These practices include operating a
a carer’s break and also £1,600 a year for
Local Government and Social Care
flat-rate policy, quality control panels and
respite for [her son]” but the local
Ombudsman (2020) Nottinghamshire man’s
authority did not pay these sums.
many weeks of pre-assessment
care package reduced because of financial
signposting. They also include the Three
Ignoring the wellbeing of a carer who is
pressures, Ombudsman finds. Press release.
overburdened by the caring load and
https://tinyurl.com/rpkxp2b
www.cl-initiatives.co.uk Conversations approach, which seeks to Community Living Vol 33 No 3 | Spring 2020 9