The Local Government and Social Care Ombudsman (LGSCO) investigates social care complaints. It is therefore a way of getting information out and facts clarified without being formally hostile. Before you approach the LGSCO, you have to air the problem with the council.
As long as you apply to the ombudsman early enough, legal proceedings can still be used within the subsequent few months if your complaint is not upheld. LGSCO reports provide lessons and ensure accountability, which rarely happen with a court case. However, these reports do not count as precedents so, just because the LGSCO is critical of a council for breaching the Care Act, the public cannot assume that any other local authority will automatically shape up. Some recent reports give a flavour of what a complaint to the LGSCO can achieve, particularly in relation to delays, cuts and direct payments.
Getting personal assistant costs back
Restitution being used as a principle of good administration is a recent legal development. Key to this is that the LGSCO can be seen as a form of “error of law” tribunal, even if not a genuine appeal tribunal. In a 2019 case concerning Bath and North East Somerset Council, the ombudsman said that, until a Care Act compliant asssessment had been completed, the council must continue to meet needs as previously agreed. A proposed cut could not simply be imposed. The person’s rights to services specified under the old care plan continue to subsist and form the basis of a private law right to reimbursement if someone has paid for their delivery. Over the whole period of this complaint, there had never even been a properly concluded care plan based on a reassessment once the person’s Independent Living Fund money had ended. The complainant’s primary concern was that the continued funding, although protected, was no longer enough to pay for the needs that had last been agreed in 2015. This was because the costs had gone up, leaving insufficient money to pay the personal assistants (PAs) everything they were already owed, which was about £7,000 in holiday pay. The LGSCO recommended backdating to the first time the client flagged up that the budget was inadequate and would not cover what she was having to pay the PAs for the originally agreed number of hours. It was not saying that she could claim to pay the PAs whatever she thought they deserved, but rather that when the council got around to finalising a proper care plan, the care plan needed to be backdated to compensate for the period where costs were found to be greater and needed to be paid. The PAs had stayed on without being given a pay rise. However, if there was evidence that the client had been under pressure regarding salary from a particular date, and should not have expected them to stay on unless they were paid more, that would have to be acknowledged and was grounds for backdating.
Lawful reassessment required
Also in 2019, the ombudsman ruled that Nottinghamshire County Council had failed to lawfully reassess the needs of a man with Asperger’s syndrome. The man’s care package had been stable for 12 years. Nottinghamshire suggested transfer to a cheaper provider without actually sourcing one with the requisite level of skill. It merely said, in short: “You have to make do on less, because that is what we want you to do.” This is not a defensible position within the legal framework. An officer had said the man would have to contribute the difference between the council’s set rate and the hourly rate set by the care provider, arguing that: “This applies to any person who chooses to use a different provider whose charges are above other agencies and whose charges are not in line with the county council agreed costs (core rate).” The parents had paid the difference personally.
“The ombudsman can be seen as a form of ‘error of law’ tribunal, even if not a genuine appeal tribunal”
Section 27 of the Care Act means a plan cannot be changed until a proportionate reassessment has been done and, although it does not necessarily have to be as deep as an original assessment under section 9, it is subject to all the same principles, including the duty to promote wellbeing. Changing a home care provider is not against the law, even if this is against the wishes of a client. Funding a package based on the cost of alternative provision is also not automatically against the law, but can only be done if providers have been found that are willing and able to provide the package in light of all relevant considerations, including the skill level required. The ombudsman stated: “It is not acceptable for a council to reduce support based on a supposed cheaper care provider that does not at present exist… The council’s approach appears to have been financially motivated and did not have sufficient regard to his specific needs.” The LGSCO recommended: a symbolic payment of £1,000 for stress and worry and loss of respite service; reimbursement to the parents of all the money they had paid to top up the man’s care to the level previously agreed; plus £1,000 to his mother to acknowledge the council’s failure to provide allocated respite funds. The welcome aspects of this LGSCO response are:
●●The requirement that the council must consider if other service users could have been affected by arbitrary upper limits on hourly rates for budgets and address this
●●The price in any market must reflect the reality of the contractual situation from that provider’s perspective – here, a direct payment relationship with the customer on the provider’s own terms – not a “bulk hours” deal with the council on the authority’s terms. If the decision to continue funding by way of a direct payment reflected that the council acknowledged the value of that route (for continuity, since the provider was not a council contractor) and promotion of wellbeing for the man and his family, then it should have considered whether the contract for the higher rate in some way provided for wants rather than needs, or whether it was driven by the need for skills specifically around Asperger’s, which had been noted in
previous assessments. The man had not expressed a preference for a more expensive service; it was a service he had received for many years, and the local authority’s own records acknowledged he would not have been able to cope with a sudden change of provider. It was therefore more likely a need rather than a mere want. The LGSCO said: “The council correctly points out the statutory guidance allows it to consider the financial cost when deciding how much to pay to meet a person’s eligible needs. Cost can be a relevant factor in deciding between suitable alternative options for meeting needs. “However, that does not mean choosing the cheapest option. The council can consider best value, but it cannot make decisions based only on financial considerations, as it appears to have done in this case.”
Nottinghamshire County Council had also completed a carer’s assessment for the mother, which recorded in 2018 that she was experiencing stress because of her caring role. It had previously noted this was happening in 2015. The assessment concluded the mother as a carer was “entitled to £150 to use for a carer’s break and also £1,600 a year for respite for [her son]” but the local authority did not pay these sums. Ignoring the wellbeing of a carer who is overburdened by the caring load and ignoring commitments to other family members are unlawful. A carer’s willingness and ability to carry on are critical to a service user’s own reassessment and the £1,600 should have been in his budget after 2015. The carer’s position needed to be factored into any cut to the service user’s budget, under section 27 of the Care Act; and the carer, having been separately assessed as being entitled in her own right, had an unanswerable claim to the money allocated. The LGSCO recommended that the council repaid all the money spent by the complainant’s parents on top of the budget. This recommendation flowed quite properly from the principle of restitution for unjust enrichment during a period of unlawful Care Act process; others were known to be spending money in place of the local authority’s statutory duty to deliver on the care plan.
“There is a trend in ombudsman reports that certain practices do not get the benefit of the doubt but are called out”
The LGSCO did not recommend reimbursement of anything that had not already been found due to the man in the past. And there was no suggestion that the man’s needs had lessened, which is needed for a council to justify cutting payments.
Calling out wrongs
There is a discernible trend in LGSCO reports that certain practices are no longer being given the benefit of the doubt but, instead, are being called out as wrongs unless a council promptly offers further due process. These practices include operating a flat-rate policy, quality control panels and many weeks of pre-assessment signposting. They also include the Three Conversations approach, which seeks to reduce long-term packages through discussions of: family and community sources of support; assessment of risk levels and contingency planning; and long-term outcomes. This has to be right in law. Acceptance of streamlined or interim offers is only a choice if the person knows what they are giving up, and has the capacity to work out the pros and cons of that choice. If one can get this much from resorting to the LGSCO, it becomes increasingly tempting to think of it as a form of informal tribunal for unlawfulness, even it cannot offer a full-blown formal appeal route.
- In the next issue, we will examine significant LGSCO cases that concern delays in finding appropriate care and excessive delays in completing assessments.
- Local Government and Social Care Ombudsman: www.lgo.org.uk/
Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of the Care & Health Law consultancy. She has been a barrister, solicitor advocate and university law lecturer
Local Government and Social Care Ombudsman (2019) Bath and North East Somerset Council (19 000 003). https://tinyurl.com/ybpg7ll6
Local Government and Social Care Ombudsman (2020) Nottinghamshire man’s care package reduced because of financial pressures, Ombudsman finds. Press release. https://tinyurl.com/rpkxp2b