Decision Date: 4th September 2019
Mrs A complained on behalf of her son, Mr B.
Mr B is a young adult with learning disabilities and autism. He has challenging behaviour and communication difficulties. Mr B lives with Mrs A and she is his main unpaid carer.
There was a mental capacity assessment in February 2018 which concluded Mr B did not have capacity to make decisions about his care arrangements. A best interests meeting took place in April decided it would be in Mr B’s best interests to move to supported living.
Mr B moved into supported living – a house ‘run’ by a Care Provider in May 2018.
The Council had completed a care and support plan for Mr B in 2017. This was before he moved into supported living. There was no new care and support plan completed in 2018. The 2017 plan said Mr B needed:
- Support with all aspects of personal care
- Specialist support from the mental health of learning disability team around his challenging behaviour
- Support with laundry and cooking
- Support to manage health appointments, take medication and apply creams
- Support from Mrs A to manage his finances
- Two to one support in the community to access appropriate activities.
The Care Provider then also drew up its own internal detailed care plans to meet Mr B’s care needs.
The Council funded a weekly care package for Mr B which included 40 hours of shared support, 35 hours of one to one support and 10 hours of two to one support in the community and a waking night member of staff. The Council said it was not aware of any incidents where Mr B did not have one to one staff or two to one in the community.
The Council opened a safeguarding enquiry to look into concerns from Mrs A about Mr B receiving poor care. The social worker noted that stains had been reported in his underwear (staff agreed to use a different washing powder to remove these) and there was an incident in July where Mr B became upset in the car; Mr B was pulling at the driver.
Mrs A became concerned and refused to let Mr B return to the placement after a weekend visit home at the end of July.
Professionals met at the start of August to discuss Mr B’s care.
- The issue of toilet hygiene was discussed and the plan was for Mr B to be referred to the occupational therapy team for a washer/dryer toilet
- Staff were applying creams to his skin several times a day.
- His support had been reduced by the Provider to one to one while travelling in the car but had since been increased back to two to one due to the incident.
- The consensus was it was in Mr B’s best interests to return to the placement and the Council would consider an application to court after seeking Mrs A’s views.
Mrs A did not change her mind about Mr B returning to the placement. She contacted the Care Quality Commission about her concerns Mr B was being neglected and this resulted in the Council considering the issues through a safeguarding enquiry.
The enquiry found no safeguarding concerns in relation to the placement and noted:
- Staff had taken Mr B to the GP as his eczema had flared up; he had medication for this, which had been applied by staff
- Staff completed body maps showing a mark on his ankle from his sandal rubbing which had healed and dry skin on his nipples, which were moisturised
- Professionals noted Mr B had increased his use of signing and seemed calm and happy at the placement
- The Council did not consider it was in Mr B’s best interests to remain at home because he was not accessing the community or developing social and life skills. It was approaching the Court of Protection for a decision about his future care.
What was found
The Council contracted with the Care Provider to deliver Mr B’s care and supported service at the supported living placement. The Council was responsible for any failings in Mr B’s care.
The LGO found there was no fault in the Council’s actions in relation to any hygiene or health matters. The Provider gave him medicine as prescribed, and attended to any personal hygiene issues sufficiently.
However the Council was at fault in failing to have an up to date care plan. Mr B’s plan should have been updated when he moved into the supported living placement; it should have set out Mr B’s needs around care and support and the staffing required to meet those needs. The failure to do so was fault and the Council failed to act in line with Sections 24 and 25 of the Care Act 2014.
Although there was no up to date care and support plan, the Council and Care Provider agreed Ms B should have two to one support in the car and in the community and the Care Provider’s detailed care plans reflected this. But Mr B did not receive two to one support and an incident happened. The LGO acknowledged that support had been reduced because of a lack of reported incidents, but this was a change to the agreed care and so Mrs A’s views should have been sought beforehand and the plan updated. Mr B’s care was not in line with Regulation 9 of the 2014 Regulations and this was fault.
(When investigating complaints about council-funded care placements, the Ombudsman considers the 2014 Regulations when determining complaints about poor standards of care. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences.)
The failure to deliver Mr B’s two to one support in line with the agreed care plan caused avoidable distress to Mr B at the time. Mrs A was also caused avoidable distress. The LGO recommended the Council apologise to them both.
Legal Points for members of the public, council staff and providers
The following points are well established in the case law:
- It is a breach of statutory duty not to fund/ deliver that which is in the care plan.
- A public body that contracts with a provider for the discharge of public duties is not generally responsible in civil law for the wrongs of the contractor when the contractor does not do what the contract says, even if harm results. But when the service contracted for is for the purpose of discharging a public duty, (ie meeting needs appropriately) the council cannot effectively delegate THAT duty or escape the remedies for its breach, which are judicial review, declarations, and restitution for unjust enrichment.
- There is an action in negligence that the client can bring against a provider IF the provider has directly caused HARM through failing to take reasonable steps to prevent foreseeable harm – the provider owes the duty OF care, whilst the council owes the duty TO care.
- There is no action in negligence for poor social work decision-making in the first place, and there is no action that the client can bring against the provider for breach of the contract with the council, because councils usually exclude the legislation which can extend contractual rights against the provider TO a third party. Whether there could be a client’s claim for negligent commissioning (eg not passing on known facts about the client, or not ensuring the contract implements the care plan, or not doing contract monitoring) has not been decided as yet.
- CQC requires providers to have care plans of their own: they are not allowed to change them just because they are short of staff, short of resources or under management pressure. That is because the contract should have required the delivery of the council’s care plan, where a council or CCG has been involved.
- The LGSCO has long been finding councils ‘responsible’ when they fail to monitor or improve performance issues on the part of the contractors they have chosen. Usually, compensation is recommended, although that is not the same as damages from the council. That fits with the above legal analysis, we think. Restitution for unjust enrichment, when someone has paid out money or rendered services other than as a volunteer, in situations when the council has acted unlawfully, is now being recommended.
- Usually, the contract that the council will have persuaded the contractor to sign will provide for the provider to indemnify the council against this sort of outcome. Providers are forced to take this sort of wholesale risk transfer in order to win valuable contracts for a lot of money, but they do choose to do this.
- A person’s public law rights to GET their needs met depend on specificity in the council’s Care Act care plan. The fashion for outcomes-based specification was all very well when personalisation policy led to flexibility and a broad-brush approach but austerity has made councils legally less generous (some councils at least); therefore every hour, every input, needs to be recorded, and translated into a contract with providers, who in the past were given wriggle room, for the sake of the client’s rights having any meaning.
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The full Local Government Ombudsman report of Kent County Council’s actions can be found here