Page 8 - Community Living Magazine 33-4

legal: ombudsman
Shedding light on shameful

practice: case studies

The Local Government and Social Care Ombudsman addresses errors tinged
with legal faults as well as maladministration, and highlights poor practice in
social care, says Belinda Schwehr in the second of a two-part series

hree recent cases examined by the irrelevant if it is the only means of The council never considered how Ms Y
Local Government and Social Care meeting need because that is the corollary would administer the payments without
TOmbudsman (LGSCO) highlight poor of an absolute duty to meet need. the carer’s help. The council’s record of
practice and the recompense achieved. July 2018 even showed it had agreed to
‘Excessive’ time before assessment pay the carer for administering the direct
Ample warning, long delay The Care Act guidance provides that payment account, so it was only right that
In a case concerning the London Borough assessments should be carried out over the council should actually do so.
of Merton (LGSCO, 2019a), a mother an appropriate and reasonable timescale. The ombudsman thought the woman’s
complained that the council had made In the next case, Somerset County Council direct payments would have been
inexcusable delays in finding her son took 21 months – described as an increased in September 2016 had the
suitable care, causing distress to both him excessive delay by the LGSCO (2019b). council properly assessed her. Therefore,
and her. the carers had provided unpaid, additional
The mother had phoned the council care and social support and the father had
“hundreds of times” and written The increasing numbers and done unpaid management.
“countless” emails. She was severely levels of fault indicate things It recommended backdating direct
frustrated by its approach. The council payments for the period when Ms Y had
was found to be at fault for causing have gone very badly wrong become eligible for NHS Continuing
unnecessary delays in finding her son with how the Care Act has Health Care (CHC) funding and increasing
appropriate care – the process took more her direct payments over the three-year
than eight months. been implemented period before she became eligible for CHC
The council knew that Mr C’s case was funding to allow her to pay him for
complex from the outset and had had managing her direct payment account.
ample warning that his placement was Additionally, the council had removed A “standard” offer of respite cannot
going to end. The authority had a duty to respite care, which had already been ever become a rule. Respite is a need,
meet his needs but did not do so. His old allocated, without explaining why or arising from the absence of a carer, as
care home even had to give notice to spur considering how the woman being cared well as a need to get away from one’s
the council into action. for (Ms Y) would manage if her parent home or usual carers for a while. If one’s
The council effectively forced the mother carers took breaks or whether she had an carer is paid, holidays must be allowed for,
to agree to have her son come home to eligible need for holidays or short breaks. so extra money is needed to pay for
stay with her – for what was supposed to A council officer had suggested funding holiday pay and cover in the meantime.
be two weeks but ended up being six. any care during a break out of her existing If a person’s carer is not paid, all the
Given the man’s physique, his poor direct payments. However, this had not carer needs to do to get a break is decline
self-control and the home environment, been addressed in Ms Y’s care plan. to be available. The absence of free care
he posed a risk to himself and his mother. A secondary issue was the council’s generates a need for respite cover – ie
His care plan stated he required consideration of a carer’s request to be money to pay for what is normally
one-to-one care in an environment where paid for managing Ms Y’s direct payments. provided for free so needs are still met.
others were on call, but the council left The council was aware that the father A person can be a paid carer for some
him at his mother’s house, in her care, for had been managing her account, and he of the time and unpaid for the rest. When
a lengthy period with little support. It paid requested payment for this in a meeting they go on holiday, the cared-for person
her £400 a week through direct payments with an officer early in the process. The needs to pay for paid cover, and to replace
but this was quite inadequate. council ignored that request for several what would normally be free.
She was awarded £3,000 and the son months, even though an officer had said Regarding carers being paid to administer
£2,000 to acknowledge the distress they would consider this. a direct payment, there is an explicit
caused and the loss of non-monetary The authority’s policy was not to allow discretion. The same rules apply to close
benefit. This was consistent with a right to paid carers to administer the direct relatives being paid for the actual care but
reimbursement of the money saved by payment account because of the potential only if the care is regarded as “necessary”.
the council during the period of failing to conflict of interest and safeguarding issues. A person who has capacity to have a
meet the son’s needs. The ombudsman said the council must direct payment at all can nominate
It is not the law that just because some consider individual circumstances and someone to help them manage it, and the
sort of necessary care is hard to procure, whether there are good reasons to depart direct payment holder would be the
it does not need to be bought. The price is from its policy or rein in its discretion. employer in legal terms. Therefore, the

8 Vol 33 No 4 | Summer 2020 Community Living www.cl-initiatives.co.uk