Three recent cases examined by the Local Government and Social Care Ombudsman (LGSCO) highlight poor practice and the recompense achieved.
Ample warning, long delay
In a case concerning the London Borough of Merton (LGSCO, 2019a), a mother complained that the council had made inexcusable delays in finding her son suitable care, causing distress to both him and her. The mother had phoned the council “hundreds of times” and written “countless” emails. She was severely frustrated by its approach. The council was found to be at fault for causing unnecessary delays in finding her son appropriate care – the process took more than eight months.
The council knew that Mr C’s case was complex from the outset and had had ample warning that his placement was going to end. The authority had a duty to meet his needs but did not do so. His old care home even had to give notice to spur the council into action. The council effectively forced the mother to agree to have her son come home to stay with her – for what was supposed to be two weeks but ended up being six. Given the man’s physique, his poor self-control and the home environment, he posed a risk to himself and his mother.
His care plan stated he required one-to-one care in an environment where others were on call, but the council left him at his mother’s house, in her care, for a lengthy period with little support. It paid her £400 a week through direct payments but this was quite inadequate. She was awarded £3,000 and the son £2,000 to acknowledge the distress caused and the loss of non-monetary benefit. This was consistent with a right to reimbursement of the money saved by the council during the period of failing to meet the son’s needs.
It is not the law that just because some sort of necessary care is hard to procure, it does not need to be bought. The price is irrelevant if it is the only means of meeting need because that is the corollary of an absolute duty to meet need.
‘Excessive’ time before assessment
The Care Act guidance provides that assessments should be carried out over an appropriate and reasonable timescale. In the next case, Somerset County Council took 21 months – described as an excessive delay by the LGSCO (2019b).
Additionally, the council had removed respite care, which had already been allocated, without explaining why or considering how the woman being cared for (Ms Y) would manage if her parent carers took breaks or whether she had an eligible need for holidays or short breaks. A council officer had suggested funding any care during a break out of her existing direct payments. However, this had not been addressed in Ms Y’s care plan. A secondary issue was the council’s consideration of a carer’s request to be paid for managing Ms Y’s direct payments.
The council was aware that the father had been managing her account, and he requested payment for this in a meeting with an officer early in the process. The council ignored that request for several months, even though an officer had said they would consider this.
The authority’s policy was not to allow paid carers to administer the direct payment account because of the potential conflict of interest and safeguarding issues. The ombudsman said the council must consider individual circumstances and whether there are good reasons to depart from its policy or rein in its discretion. The council never considered how Ms Y would administer the payments without the carer’s help. The council’s record of July 2018 even showed it had agreed to pay the carer for administering the direct payment account, so it was only right that the council should actually do so.
The ombudsman thought the woman’s direct payments would have been increased in September 2016 had the council properly assessed her. Therefore, the carers had provided unpaid, additional care and social support and the father had done unpaid management. It recommended backdating direct payments for the period when Ms Y had become eligible for NHS Continuing Health Care (CHC) funding and increasing her direct payments over the three-year period before she became eligible for CHC funding to allow her to pay him for managing her direct payment account.
A “standard” offer of respite cannot ever become a rule. Respite is a need, arising from the absence of a carer, as well as a need to get away from one’s home or usual carers for a while. If one’s carer is paid, holidays must be allowed for, so extra money is needed to pay for holiday pay and cover in the meantime. If a person’s carer is not paid, all the carer needs to do to get a break is decline to be available. The absence of free care generates a need for respite cover – ie money to pay for what is normally provided for free so needs are still met.
A person can be a paid carer for some of the time and unpaid for the rest. When they go on holiday, the cared-for person needs to pay for paid cover, and to replace what would normally be free. Regarding carers being paid to administer a direct payment, there is an explicit discretion. The same rules apply to close relatives being paid for the actual care but only if the care is regarded as “necessary”.
A person who has capacity to have a direct payment at all can nominate someone to help them manage it, and the direct payment holder would be the employer in legal terms. Therefore, the manager is not both the employer and the employee at the same time. The manager is just helping the real employer discharge his or her duties towards the employee.
A person who cannot understand the basics of a direct payment cannot nominate a person to help them manage it, and needs an authorised person instead. In such cases, the authorised person is the principal who makes decisions on care, not merely an agent who implements such decisions. That means if that same person wishes to be employed to care, the authorised person would be both the employee (for the care) and the employer. That is potentially a problematic position to take up voluntarily, even if HMRC could understand the purpose of such an arrangement.
Anyone, however, can now be paid up to £1,000 a year for self-employed work without registering with HMRC, reflecting the reality of the gig economy. The payments administration part of the Care Act regulations on direct payments hints at this being the better way to go about it – a small set sum per week or month, perhaps. 
‘Manifestly unacceptable’ wait
In a case involving the London Borough of Croydon (LGSCO, 2019c), which went back for more than three years, the LGSCO took the matter on despite the time lapse.
This was because a man’s current issues could not be logically separated from the older ones, and as his mother had been told that he had been “added to the council’s waiting list for an assessment”. Councils must carry out assessments within a suitable and reasonable timescale. In this case, both a transition and an adult’s assessment had been long overdue. The ombudsman found the authority at fault for failing to properly assess the man’s situation from as early as August 2015 when he became 18, and also at fault for failing to properly review his education, health and care plan (these plans should be reviewed at least annually).
Case law shows that the legitimacy of a wait for anything due under a statutory duty depends on the facts, the urgency and the wording of the specific duty. There is no such thing as a waiting list for assessment that is based on a shortage of staff – not one that is legal, anyway. The R v Bristol ex p Penfold (1998) case scotched the suggestion that assessment can be rationed; this is because it is a duty, and not a duty where the availability of resources can be a lawful consideration.
There is already a duty to ensure that all social services authorities have sufficient staff to discharge their functions, which is still in force under section 6 of the Local Authorities and Social Services Act 1970. This duty shores up the fundamental principle that, if there is only one way to meet a need, then it must be paid for. The duty to meet needs may have to be discharged through direct provision if no provider wishes to sell its services to a council – and that duty is a statutory function which must, in turn, be staffed.
The LGSCO said that the wait of approximately three years and nine months was “manifestly unacceptable”. The LGSCO concluded that the man had missed out on significant support provision since 2015, simply because the council had failed to assess him sooner. The council was persuaded to pay: the man £3,000, in recognition of that; his mother £1,000, for her frustration at its failure to act on her requests to assess; and a further £500 to her, in recognition of the significant time and trouble to which she had been put.
Reflecting legal decisions
As my previous article noted, the LGSCO is clearly becoming less coy about finding fault relating to ignorance of the law. The LGSCO is not a court, and has no jurisdiction to decide whether something is unlawful but, where case law says that something is “required”, “fundamental”, “essential”, “mandatory” etc for compliance with the Care Act, the LGSCO is bound, it seems, to reflect binding legal developments in its own consideration of what amounts to maladministration.
We think that the statistics about increasing numbers and levels of fault indicate that things have gone very badly wrong with oversight of the way in which the Care Act has been implemented.
The newly reformed all-party parliamentary group on social care should factor a lack of legal literacy into the analytical mix, for the sake of the green paper that has been so long in gestation. n ● This article is the second in a series of two on the ombudsman. The previous issue gave an overview of the service and its benefits
Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr. org.uk) and owner of Care and Health Law, a consultancy. She has been a barrister, solicitor advocate, presenter, writer and university law lecturer
References
R v Bristol CC ex p Penfold (1998) 1 CCLR 315, QBD Local Government and Social Care Ombudsman (2019a) London Borough of Merton (18 011 437). https://tinyurl.com/wgtqqqr Local Government and Social Care Ombudsman (2019b) Somerset County Council (16 016 755). https://tinyurl.com/yyuhsuay Local Government and Social Care Ombudsman (2019c) London Borough of Croydon (18 016 105). https://tinyurl.com/yxazgwct
