The decision of the Local Government Ombudsman (LGO) on a complaint made against Cumbria County Council (Cumbria) tracked a local authority’s response to an elderly person’s deteriorating health. Mrs T received domiciliary care for 30 minutes each day to help with personal hygiene and to prepare breakfast. A year later this had increased to 1 hour and 45 minutes per day. The increase in service provision was as a result of representations made by Mrs T’s daughter that her needs had increased and that she (the daughter) was finding it increasingly difficult to cope.
Mrs T‘s daughter still felt that the service provision was insufficient and that this was maladministration. The LGO disagreed. A local authority is entitled to set up apply eligibility criteria which focus its limited community care resources where they are most needed. Cumbria had done this. They had re-assessed Mrs T’s needs on a number of occasions and in accordance with their criteria gradually expanded the services provided.
Cumbria offered Mrs T’s daughter respite care to offer her a break from caring. However, there was a dispute between her consultant geriatrician and care manger over the type of residential respite care that should be provided. The consultant suggested a home for elderly persons with mental illness whilst the care manager disagreed and Mrs T was placed in a respite care home. The LGO criticised this decision since it lacked input from a nurse practitioner and was contrary to another medical opinion. The care manager should have properly considered Mrs T’s needs before making a decision.
Mrs T’s daughter complained that Cumbria had improperly maintained her mother’s placement in a residential care home rather than a nursing home. Her daughter believed that Mrs T required relatively intensive nursing care which required a place in a nursing home. The LGO rejected her complaint on the grounds that Cumbria had been entitled to conclude that Mrs T’s needs did not call for a nursing home place. An updated community care assessment had been carried out before the move, which found that Mrs T could attend to most of her bodily functions if prompted and encouraged, was reasonably mobile and continent and the only specialist care required was an arm massage which could be provide by care assistants. When the residential care home in which Mrs T was first placed, served notice on her to quit, her nursing needs were assessed by Cumbria, who concluded that she did not require nursing care and her incontinence and massage could still be managed by care staff. Mrs T did not need a nursing home placement. She moved to residential care home outside Cumbria.
Mrs T’s daughter continued to argue for a nursing placement and a further nurse assessment was carried out by a different NHS Trust. This assessment concluded that Mrs T was fully doubly incontinent, unable to feed or wash herself in any way, was wheelchair bound and suffering from paranoia and severe dementia. It concluded that she needed 24-hour nursing care i.e. she required a placement in a nursing home. Mrs T’s care manager questioned this assessment, but the LGO was critical of her reaction since the care manager was not professionally competent to assess the extent of a person’s nursing needs. It also felt that it was not “unreasonable for the council to raise some questions about how the differences between the 2 assessments might have arisen.”
The LGO went on to say that even if the second nursing assessment was accurate, it did not follow that Mrs T had always been inappropriately placed in residential care home. Cumbria could not be said to have acted with maladministration by deciding that her needs could adequately be met by a placement in a residential care home. In any event, Cumbria conceded that Mrs T now needed a nursing placement and began to fund her placement.
Comment: It is not uncommon for social services departments to be faced with conflicting professional medical or nursing opinions that need to be resolved for a decision to be made as to what sort of services to offer – these are often essential reference points around which services are built, so they need to be clear, evidence based and articulate. In such a case, social services as the statutory decision maker for social care (including a person’s need to be in a nursing home) will need to choose which opinion to accept on the basis of credibility, weight and expertise, and their choice would not be liable to judicial review unless it was one that no reasonable authority could have made.