LGO raps council over restrictions on care at expense of direct payments

The Local Government Ombudsman has criticised a county council for restricting service users’ options for care at the expense of their right to make the most of direct payments.

In one case, Kent County Council restricted the respite care available to a young woman with learning disabilities to its own residential care homes.

The Ombudsman, Anne Seex, said the local authority’s internal guidance – issued to care managers in July 2010 and restricting care in this way – did not comply with the law.

A previous Ombudsman had issued a report in 2009 finding maladministration by Kent in having a policy of restricting respite care for disabled children to its own residential homes.

And in a second report this month finding maladministration, Seex said the county council had tried to limit residential care for an elderly woman to its own homes or ‘pre-purchased’ beds in private homes.

The LGO said: “I am surprised and disappointed to find the maladministration recurring in services for adults with a learning disability. I appreciate the council’s need to use its resources as effectively as possible but that cannot be at the expense of peoples’ right to the choice and flexibility that direct payments give.”

Responding to the reports, Kent insisted that improvements had already been made in the light of the two cases.

The authority argued that the LGO’s criticisms “focused on the council’s process behind the care that was provided and did not suggest poor quality care”.

But it said it recognised that it had “got things wrong” in both cases.

Graham Gibbens, Kent’s Cabinet member for adult social care and public health, said: “It is important that we take responsibility for the things we got wrong in each case. We have apologised wholeheartedly in both cases and have taken lessons from both cases.

“In both situations, members of staff were working within the guidance that was issued at the time. However, while this might offer some kind of explanation, it is no excuse and we are constantly striving to improve the way we work in adult social care.”

The first case

In this case a young woman with learning disabilities did not receive the services she needed for a year.

The woman’s mother had contacted Kent in good time to begin planning the services she would need when she was 18.

The LGO report said a care manager should have been involved as soon as the woman was 17. However, this did not happen until four months after she was 18.

When appointed, the care manager assessed her needs as serious enough to be eligible for services and to include opportunities to socialise in the evenings and at weekends.

But there was a further four-month delay in producing a support plan. When the plan was produced, it failed to cover all the woman’s eligible needs.

In finding maladministration, the LGO also concluded that Kent had:

  • Not offered the woman a direct payment and the choice to organise her own care;
  • Failed to offer her mother a carer’s assessment;
  • Did not provide the mother with a break from her caring responsibilities until the head of service responded to her complaint;
  • Restricted respite care for the woman to its own residential care homes.

In addition, the council’s poor communication had led to “uncertainty, confusion and frustration” for the young woman and her family.

Kent has agreed to remedy the injustice, including by paying the value of the services the woman lost between becoming 18 and them eventually being provided.

The local authority will amend the form it uses for support plans and tell those entitled to respite care of their right to have direct payments.

Seex said: “The council’s failure to complete an assessment before the young woman was 18 caused her the injustice of losing services she was assessed as needing. The support plan that was eventually produced did not include services to meet these needs.” 

The second case

In this case, the LGO said Kent had wrongly refused to pay for short-term residential care for an elderly woman when she was released from hospital.

The woman needed to be in a home close to her daughter so she could visit. The daughter found a home from Kent’s approved provider list but the local authority refused to pay the fees.

Instructions from senior officers in adult social services had said that staff could only use the council’s own homes, or places it had pre-purchased, or community hospitals.

The daughter decided to pay for the mother to have a place for four weeks in a home that was not covered by Kent’s instructions.

She then complained to Kent about its refusal to pay, but senior managers would not change their approach.

At the end of the four-week period, it was agreed that the mother should stay in the home permanently. The council agreed to pay from this point but would not refund the first four weeks.

Kent’s head of policy and service standards in adult social services said he had not known about the instructions. The officers who issued them claimed they were a response to vacancies in pre-purchased places, budgetary pressures, and the need to free-up hospital beds.

However, the LGO ruled that the instructions were contrary to the 1992 Choice of Accommodation Directions.

The Directions state that a person can choose a permanent or temporary care home, subject to certain conditions being met (as they were in this case).

Kent has now agreed to apologise to the daughter and refund the £1,560 cost of the first four weeks of residential care.

The authority has also withdrawn its instructions and will identify other people who may have been adversely affected.

The Ombudsman said: “The council’s internal guidance said that staff could only use the council's own homes, or places it had 'pre-purchased', or community hospitals. The requirement to offer service users a genuine choice of placement when they are assessed as needing residential care is enshrined in law. The guidance did not adhere to these principles.”