Ombudsman’s decision date: 29 Aug 2019
Mrs W is autistic and has a number of additional health related needs which require support.
Mrs W’s care plan was last issued in 2013, and had not been updated since then.
(NB. Under the Care Act Guidance, authorities are expected to review care and support plans at least every 12 months although it is not actually a statutory duty. The fact that the Care Act came in in 2015 and should have been the basis of every review since, was explored by the LGO, to a limited extent only – it might have been different if the report had been written after the Court of Appeal’s decision in CP v NE Lincolnshire Council – see below for why).
The plan stated that Mrs W was to receive support with some domestic tasks, such as managing her medication and dealing with mail, as well as to help access the community.
Salford City Council has delegated its adult social care functions to two local trusts, the Salford Integrated Care Organisation and the Greater Manchester Mental Health NHS Foundation Trust respectively. (NB that’s not unlawful, under the Care Act, but the council remains liable for the public law compliant discharge of those functions, and of course the NHS bodies should have got their staff trained in how to implement the relevant Care Act law if they were ever going to be able to do the job properly.)
Mrs W’s care was arranged by the latter organisation: ie, assessed for, and commissioned by that Trust.
Throughout 2018 Mrs W was in contact back and forth with the Council regarding payments to the agency who provided her with care.
In January, the agency contacted the Council to chase payment and at the end of the month the agency sent the Council an invoice. On 22 March, Mrs W contacted the Council to say she had been told the agency’s expenses had not been paid. In October, the Council made arrangements for a replacement care provider. However a dispute arose during an assessment of Mrs W relating to mileage expenses. Mrs W said the new agency charged 70p a mile expenses, which she described as “robbery”, and that the law states service users should not be required to pay an agency direct, but should instead pay the local authority.
It was unclear to the Local Government Ombudsman (LGO) when Mrs W made her initial complaint. She complained to the Council about her care plan, about the lack of autism training amongst Council staff and its handling of a safeguarding referral. The safeguarding issue was dealt with in a separate report. It was shown that she complained on 25th May 2018, and provided the LGO with a more comprehensive complaint letter dated 19 June. The Council, however, stated that Mrs W’s initial complaint was on 1 June. In either case, the Council’s first complaint response was on 25 July. That reply only addressed the safeguarding issue, and did not respond to her complaint about the care plan or lack of autism training.
Mrs W contacted the Council to express dissatisfaction with the complaint response on 31 July. The Council held a meeting with her on 9 August, and agreed a new Terms of Reference document for Mrs W’s complaint on 21 August. The Council said it would aim to provide her with a response by 3 December. The Council subsequently extended its target date for response to 6 February, when it visited Mrs W at home to verbally explain its complaint response. It then produced a written response, dated 28 February.
The Council addressed Mrs W’s complaint about her care plan. It noted she had a copy of her plan dated 2013, with an addendum from 2015, but that this included information which was out-of-date. The response acknowledged Mrs W needed support to access the community and with medical matters, and that she was “in further discussion” about the costs of mileage and wanted the Council to complete a financial assessment.
Despite the Council’s acknowledging that Mrs W’s care plan was created in 2013, it said that Mrs W had received regular reviews at a nurse-led clinic, after which a letter was sent to her GP with up-to-date information, which somehow “counted as her care plan”. Each letter described Mrs W’s demeanour during a recent appointment and her current medication. They also gave, under the title ‘Management/Care Plan’, a brief description of an ‘aim’ for her, for example, “to continue to use community facilities”.
Under the Care Act 2014, authorities should be reviewing care and support plans at least every 12 months to discharge the duty to keep care plans under regular review (see s27 and the Guidance for the reference to the once a year expectation). The review should ensure the plan accurately reflects a person’s up-to-date needs and desired outcomes, as well as planning the appropriate support. It should also include up-to-date budget information if there is a change via a revision process.
Mrs W told the LGO that an element of the 2013 plan was about her using a particular medication. However, since then, Mrs W had been diagnosed with a serious illness, which meant she could no longer use that medication. This highlights the importance of properly reviewing and updating care plans. There was no suggestion that Mrs W mistakenly used that medication when she should not, however it did demonstrate that she was placed at an increased risk of harm by virtue of the information just being copied over.
Mrs W also said the 2013 plan did not provide the appropriate support for her current needs. For example, using the support worker’s hours to attend hospital appointments, because of her serious illness, meant the other support she needed was sometimes neglected – she had missed hospital appointments simply because she has had no support to attend them.
What was found:
The LGO found that the letters from Mrs W’s GP were not a substitute for a proper care plan.
They did not explain Mrs W’s needs, the risks and difficulties her needs created, the support she needed to manage her needs, or when and how this support would be provided – the essence of the Care Act task.
The letters also made no mention whatsoever of how the support would be funded.
They did not count as a care and support plan within the meaning of the Care Act.
Of particular significance, Mrs W’s needs had not been assessed under the framework of the Care Act, which took effect April 2015.
Furthermore, even if these letters did count as a reviewed and updated care plan, they should have been provided at least once a year. A single letter from 2017 and a single letter from 2019 could not conceivably meet this requirement.
So, in the substantive sense, the LGO found that the last proper care plan produced for Mrs W was in 2013. Therefore the LGO found the Council at very significant fault.
The lack of a proper plan not only failed to clearly set out the support she needed, but also meant that the financial assessment process was not followed properly, resulting in her care providers terminating their services in October 2018 (because the agency’s care expenses were not paid for).
If Mrs W had had a proper care plan, financial obligations would have been clearly set out. There would have been no need to find a new package provider if the issue with expenses had not arisen.
In other words, Mrs W’s care plan had not been subject to a meaningful review or update since 2013 and this had indirectly led to her care package ending, because of a lack of clarity over payment of her support workers’ expenses.
The LGO found that injustice was caused to Mrs W, as she had problems accessing the community without support, meaning she even had difficulty shopping for groceries. She had been left in that position for more than 6 months, which the LGO found to be a serious injustice.
The Council was also found at fault in regards to the lack of autism training, but no injustice to Mrs W could be shown. The updated government 2015 statutory guidance places a requirement on local authorities to provide general autism awareness training for all front line staff, as well as specialist training for those in particular roles.
“In line with the 2010 statutory guidance, local authorities should be providing general autism awareness to all frontline staff in contact with adults with autism, so that staff are able to identify potential signs of autism and understand how to make reasonable adjustments in their behaviour and communication. In addition to this, local authorities are expected to have made good progress on developing and providing specialist training for those in roles that have a direct impact on and make decisions about the lives of adults with autism, including those conducting needs assessments. This expectation remains central to this updated statutory guidance.”
The Council confirmed it had not yet implemented this. This was fault. Although a general lack of understanding by staff about autism did not represent a personal injustice to Mrs W which could be remedied, the LGO did however highlight that it was very concerned the training had not been done, as other vulnerable people could have been negatively affected.
The Council’s initial response to Mrs W’s complaint did not address her concerns over her care plan or lack of autism training. It only replied to issues to do with safeguarding. This was fault.
The LGO found that although the Council’s second response acknowledged Mrs W’s complaints to a degree, it came after a long delay (almost four months). This caused Mrs W to be frustrated.
The LGO also found that a more meaningful investigation from the outset would have prevented the termination of her care package and the subsequent loss of support. Therefore the LGO found additional injustice to her arising from the fault. This fault was evidence of the Council’s commissioned service’s failure to adhere to the most fundamental parts of the Care and Support Statutory Guidance.
The Council agreed to reinstate Mrs W’s previous care and support plan, including the payment of her expenses, whilst it arranged to reassess her.
This fresh assessment would have to be carried out by a social worker with training and experience in the needs of autistic people.
The Council will then provide Mrs W with an updated care and support plan, in line with the requirements of the Care Act 2014, and will also undertake a financial assessment of her ability to contribute to the costs of her care.
The Council has also agreed to offer to pay Mrs W £1,000 to reflect her distress at the loss of her support package, and an additional £200 to reflect her time and trouble pursuing her complaint.
The Council has agreed to undertake a number of service improvements.
- It will undertake an audit of all adult care recipients in its area, to ensure their care and support plans have been appropriately reviewed and updated within the last 12 months. It will update the Ombudsman at the end of the review and explain what steps it is taken to rectify any issues the audit uncovers
- It will arrange training so that NHS staff carrying out the Council’s adult social care functions are up-to-date on their responsibilities around carrying out assessments and writing care plans
- It will begin to make arrangements for all relevant staff to receive autism awareness training, in line with the statutory guidance.
- It is arranging for briefings to be given to its own Chief Executive, Cabinet, and the Boards of the two delegated bodies responsible for being in breach of the Care Act and will provide evidence of that to the LGO.
Points for the sector:
- This is a perfect example of what can happen if an adult social care council delegates its own statutory responsibilities to people working in a radically different culture, who have had no legal literacy training in the framework applying to the delegated functions. The council remains responsible, in legal terms, so if this lady had brought judicial review proceedings instead of just complaining to the LGO, it would have been down to the council to handle the litigation, and that would have set a precedent that would then have stopped other councils just hoping for the best when told how to integrate by their wealthier NHS ‘partners’. CASCAIDr’s Trading Company’s expert trainers provide training in the legal framework, via www.cascaidr.org.uk, to any public body that sees the point of getting it right first time.
- The LGO said this: “This fault [letting the provider’s services lapse without sorting out the expenses dispute] was evidence of the Council’s commissioned service’s failure to adhere to the most fundamental parts of the Care and Support Statutory Guidance.”
- This is the first report we’ve seen where the LGO deals with the abject failure to revise a person’s care plan under the Care Act criteria, on time or even by 2016, which was the government’s deadline for the first proper review under the Care Act for all social care clients. We think that the LGO could have gone quite a bit further in terms of that being a breach of the Care Act and not just ‘fault’.
Points for individuals and advocates
- We see some scope in reports like this, for a resurrection of interest in judicial review proceedings, joined with a claim for restitution for what the claimant should have been provided with, now that the Court of Appeal has delivered its judgment in CP v NE Lincolnshire. The LGO made a compensation recommendation in an interesting parallel development based on what might have been expected to be the outcome had things been done properly, but restitution is a cause of action one issues in the courts. Judicial review has never been a claim that leads to compensation or damages, so there’s little money in it to make solicitors interested. But this might change things.
- Sure, one would need to ISSUE the proceedings, get the old decision quashed, and then get a second decision the next time around as to what should have been in the original care plan once it had been quashed. But we think that the legal argument first time round could surely be expanded to include a request for a decision on what should have been provided, if the claimant is correct that the decision is unlawful, and a request for agreement that no reasonable council could conceivably deny that it has been unjustly enriched in cases where the person’s needs were actually increasing, by dint of what the council has NOT had to spend…
- CASCAIDr will pursue complaints in similar cases so that the LGO recommends compensation in all such cases, not just for the distress but for the outlay to which a proper assessment or care planning job at the right time, would have necessarily led to – and independent social work assessments will be accessed so as to make the assertions coherent and irresistible.
- We are a charity and we charge for complaints but we don’t think you or your family will mind so much, if you are going to get some money back.
If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.
The full Local Government Ombudsman report of Salford City Council’s actions can be found here