Decision date: 5th August 2019
Mr X and Mrs X complained on behalf of their father, Mr A.
In February 2018 Mr A was admitted to hospital after a fall. It was unclear how he fell – records showed Mr A had previously disclosed he was a victim of domestic violence, and he was unsure if his wife had pushed him on this particular occasion. After making enquiries however, Mr X felt able to confirm that Mr A’s wife had not pushed him.
Plymouth Council then opened a safeguarding referral due to concerns that Mr A’s wife, who suffered from dementia, was on occasion violent towards him.
The Council closed the referral as it felt it did not meet the threshold for further enquiries. They also noted that Mr A would move hospital wards to allow him the opportunity to consider what he wanted to do about returning home.
Mr X said hospital staff told him that ‘a protection order’ had been put in place for Mr A and that he was not to tell his mother where Mr A had been moved to. Mr X said he had no reason to question what he had been told.
In March 2018, Mr A left the hospital and went to live in a care home (a short-term arrangement) and the Council opened another safeguarding referral. This referral was also closed, as it stated there was no immediate risk to Mr A (he was in the care home and therefore away from his wife). The Council also noted the safeguarding team did not need to take further action as the adult social team were involved.
The Council assessed Mr A’s care and support needs before he left the care home. The assessment decided Mr A did not have any eligible care and support needs as he could live independently. Furthermore, the notes stated that Mr A told the Council he did not want to return home while his wife was there. Mr X disputed this and said that Mr A did not tell the Council this.
Mr A left the care home at the end of March 2018. There were no safeguarding protection orders or safeguarding measures put in place for Mr A that would have prevented him from living with, or seeing, his wife.
Mr A went to live with Mr and Mrs X, and the Council completed another care and support needs assessment in April 2018. It noted again that Mr A was independent and did not have any eligible care needs. The LGO highlighted that the assessment did not contain any detail of what was observed during the assessment or explanation of why Mr A was thought to be independent.
Mr and Mrs X said the Council told them at this point that there was no protection/ safeguarding order in place. Mr X said by this time the relationship between Mr A and his wife had broken down.
The Council completed more care and support needs assessments in July 2018, October 2018, December 2018, and February 2019. These assessments assessed Mr A as having eligible care and support needs.
Mr and Mrs X made a complaint to the Council.
The Council’s first response did not uphold the complaint that Mr and Mrs X had been told there was a protection/safeguarding order in place for Mr A, as they were told by hospital staff, not the Council.
In a further response, the Council accepted that irrespective of whether the term ‘protection’ or ‘safeguarding’ order had been used, they had not made clear to the family that no order was actually in place. The Council apologised for this and for the confusion and distress this caused.
The Council also accepted that it missed important opportunities to fully explore the options available, for example moving the safeguarding referral forward, and that it did not have enough discussions with Mr X, Mrs X, and Mr A. The Council accepted there could have been a different outcome had these discussions taken place.
The Council also accepted some of the personal difficulties between Mr A and his wife could have been avoided, or at least greatly reduced, had it followed a different process.
The Council held a workshop with Mr X and Mrs X in December 2018 to discuss the areas of practice they felt needed improvement. At the end of this workshop, the Council identified some suggested actions to make improvements to its service.
What was found
The LGO found that there was miscommunication between the Council and Mr and Mrs X, which amounted to fault.
Despite it being clear that the Council had not put in place any safeguarding measures, it was understandable that Mr X believed that Mr A actually did have a protection order affecting his options.
Firstly, he was told so by a member of the hospital staff and therefore it would have followed logically that Mr X and Mrs X would assume that the reason why Mr A could not return home while his wife was living there was because of the protection/safeguarding order they had been told was in place – when really it was Mr A’s wishes – there was nothing legally keeping Mr A from returning to live with his wife.
The Council had tried to respect Mr A’s wishes not to return to his home while his wife was there, by encouraging Mr A to live with Mr X and Mrs X.
Mr X and Mrs X, however, believed this arrangement was because of the (non-existent) protection/safeguarding order. This miscommunication was fault.
This fault caused an injustice to Mr A – it was not possible to tell what the outcome could have been had this not happened, but at least potentially, the damage to the relationship between the two could have been avoided or reduced. This was distressing for Mr A. The fault also caused an injustice to Mr X and Mrs X – it was distressing for them to see their mother and father’s relationship deteriorate.
The Council was also at fault for their April 2018 needs assessment. The record of the assessment was very brief and did not include any detail of what was observed or discussed with Mr A during the assessment. There was also no analysis of the information to explain how the assessor reached the decision that Mr A had no eligible care needs. Care and support needs assessments should be clear and detailed. All relevant information should be included in the record to allow people to understand what has been observed and how the decision was reached.
The fault caused an injustice to Mr A because it could not be said to be clear that the Council had ever properly assessed his care and support needs in April 2018.
Points for councils and members of the public
- This case shows how very important it is that staff in a hospital discharge setting are well informed about people’s circumstances, since discharge process is now supposed to be streamlined and integrated.
- A ‘protection’ order or ‘a safeguarding’ order can only, in reality, refer to an order from the Court of Protection or the High Court under the inherent jurisdiction.
- It is perfectly possible that a safeguarding team MIGHT have obtained such an order, over the phone, without notice to Mrs A, and that the implication would have been that one or the other needed to vacate, but it’s not at all likely, given other remedies Mr A could have sought, regarding rights to occupy a matrimonial home, when violence has arisen, and bearing in mind the ambiguity in the evidence and the attitude of the safeguarding team that there was no real issue to investigate (even though that might well have been wrong on the facts; one just can’t tell).
- But if someone on the ward (nurse, manager or social worker) is going to use this kind of language, it’s hugely unprofessional for them not to know what they are talking about, or just to use this language loosely without being clear on the facts.
- The sub-text in this report seems to us to be that Mr and Mrs X were prevailed upon to have Mr A come and live with them on a false premise – ie that he could not legally go home, unless or until Mrs A vacated – or that in some way there was an order against HIM preventing his return. They may have been willing and happy to offer him that option, but it then seems as if everything that they were doing for him affected several assessments in which he was found ineligible without proper documentation. That’s a breach of the Care Act, in terms of process, and possibly an approach in apparent disregard of the very clear instructions in the Care Act guidance to ignore informal support for the purposes of the eligibility decision.
- The sparseness of the assessment information may have arisen from a Three Conversations approach, which is a sort of Care Act ‘Lite’ approach to managing the workload whilst councils are understaffed. If the LGO’s investigator thought that the approach in use in this council constituted fault, we’re puzzled as to why it wasn’t said fairly and squarely that the approach was not in compliance with the Care Act’s requirements. There have to be written reasons for a decision about eligibility (either way) under s13 of the Act.
- The Care Act Guidance is clear that informal support is not any reason for finding a person ineligible. A person could have 24 hour wrap-around informal support and still be eligible because human input that is being provided for free has to be invisible in relation to the questions central to eligibility decision-making – namely, ‘inability to achieve’ across the domains of daily living in the regulations setting out the national minimum quality of life standards that services depend upon, and secondly, the extent of the ‘impact’ on wellbeing of those deficits.
- So, regardless of that input from his relatives (which we can only assume was willingly provided) this man may always have been entitled to be regarded as eligible, albeit that there would possibly have been no duty to provide anything to meet his needs when he was being provided with those inputs by his family members.
- If the couple had in fact been extremely unwilling but felt that they had no option, and had made that clear to the care planners, this omission to follow Care Act process would be an example of the sort of circumstances that could give rise to an entitlement to restitution for the money from a direct payment that Mr A might have been given permission to pay over to close relatives in the same household for providing the care he was actually needing (under the doctrine in CP v NE Lincs, an analysis of which can be found on this site by using the search box.)
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 Plymouth City Council’s actions can be found here