Decision date: 3rd September 2019
Mrs R complained to her council, Merton, on behalf of her son Mr C.
The Care Act 2014 introduced a requirement for local authorities to promote individual well-being. It signified a shift away from local authorities providing specific services that supposedly meet the needs of groups of individuals classified by their medical diagnosis, towards the concept of meeting the needs of the individual and recognising that everyone’s needs are different and unique to them.
“Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into.” (Care and Support Statutory Guidance, Ch1).
Mr C was a young adult with an autism spectrum disorder (ASD), moderate learning difficulties, obsessive compulsive disorder (OCD) and epilepsy. He had lived in residential care funded by the council for several years that catered specifically for people with ASD. His transition (at the end of 2017) from the children’s provision to the adult’s facility within this home had been problematic. It was expected that he would share accommodation, however, Mrs R, his mother, stated that in her view, he needed to live alone.
Initially he shared with one other resident who remained in that person’s own room; therefore, Mr C essentially had the communal areas to himself, until January 2018 when a third resident moved in. At this point Mr C voiced his concerns to Mrs R. This coincided with a change to Mr C’s medication and a deterioration in his behaviour. He assaulted staff and expressed wishes to leave this placement. This situation was bought to the council’s attention by both Mrs R and the placement – however, the council’s communications to them both regarding this matter were poor.
Mr C became anxious about his uncertain future and his behaviour deteriorated. Mrs R identified a placement she considered suitable for Mr C. The placement assessed Mr C and offered him a place subject to funding; they then asked the council to agree funding to allow a transition to take place. The council failed to respond in a timely manner and later concluded they could not fully finance this without contribution from the CCG perhaps on a continuing health care basis (CHC) – for which Mr C needed an additional assessment.
The council then failed to refer Mr C for a CHC assessment, while also stating they needed two offers to make a financial decision on Mr C’s care. The offer from his potential placement was still open; however, the council found an alternative placement but Mrs R rejected it due to its asserted unsuitable environment. There was then an impasse.
Four months into this situation Mr C’s current placement gave the council notice to remove the client, and this further increased his anxiety. Mrs R made further complaints to the council who agreed there had been a delay in referring for a CHC application but still insisted it was needed to fund the preferred suggested placement. A further meeting saw the council apologise for not having done the CHC assessment; however, they now concluded that due to Mr R’s unstable situation a CHC assessment could not be carried out as it would “not give a true representation of his needs.” A senior manager said that the local care commissioning group, (CCG) and the Council were working to find appropriate placements and to avoid hospital admission. He said the Council would contact Ms R with ‘daily updates’.
This further delay escalated Mr C’s anxiety levels even higher resulting in him assaulting staff. He was evicted and returned to live with Mrs R. This solution had a severe impact on Mrs R’s health.
In October 2018, four months on from Mr C’s initial desire to leave his placement the council agreed that Mr C could move to the placement that Mrs R had initially identified, but a vacancy was not available for another 14 weeks. In the meantime, the council found respite care for Mr C and he was later assessed for, and awarded full CHC, and the placement was made permanent.
What was found:
Mrs R says she phoned the Council ‘hundreds of times’ and wrote ‘countless emails’. The council accepted that it was at fault due to its inadequate communication. This meant Mrs R spent much time on written communications which were simply not responded to, therefore forcing her to attend the council offices in person on several occasions. She was severely frustrated.
Delay in finding a new placement
The LGO found that the Council was at fault for causing unnecessary delays in finding Mr C appropriate care (the process took over eight months). It was recognised that Mr C’s needs were complex and therefore finding him a new placement would take time. However, the council knew this from the outset and had ample warning that his current placement was going to end.
Mrs R was concerned with the delay and miscommunications experienced while finding Mr C a suitable placement and the LGO found that even if there had been no errors in the way the council went about finding a new placement the delay in itself might well have been seen as a fault.
The council had a duty to meet Mr C’s needs and did not do so.
However, the LGO acknowledged that further errors had been made which also contributed to the delay so the review omission did not cause injustice in itself. These errors included losing papers, not contacting providers and failing to respond or inform others for over three weeks.
Frustrated with the council’s lack of action the other parties felt it necessary to resolve the situation and were left to communicate among themselves, a role that the council should have fulfilled. The home gave notice to spur the council into action, the LGO found.
While the LGO acknowledged the council did make some effort to find Mr C a place, given the complexity of his needs and the impending deadline, the council did not do enough, effectively forcing Mrs R to agree to have Mr C come home to stay with her. The original arrangement was for him to stay two weeks but he stayed for six. Given Mr C’s physique, his poor self-control and the environment of Mrs R’s home, he posed a risk to himself and Mrs R; this too was seen as a fault.
While Mr C’s care plan stated he required one to one care in an environment where others were on call, the council left Mr C at Mrs R’s house, in her care, for a lengthy period with little support. It paid her £400 a week through direct payments but this was, in the circumstances, quite inadequate. This was also a fault by the council, and this injustice caused distress to both Mr C and Mrs R.
The council was at fault for causing delay and for failures in communication. This fault caused Mrs R and Mr C distress. The complaint exposed serious flaws in the way which the council dealt with the crisis in Mr C’s care.
The LGO found that the council could have acted quicker and the council accepted this finding.
To remedy these injustices the council agreed that it will:
- Apologise to Mr C and Mrs R.
- Make a payment of £3000 to Mrs R and £2000 to Mr C to acknowledge the distress caused and the loss of non-monetary benefit (a large sum indicative of reimbursement of the money saved by the council during the period of failing to meet Mr C’s needs, it is suggested).
- Pay Mrs R £200 to acknowledge her time and trouble in bringing this complaint.
Points for the public and for councils
- There is an absolute duty to meet needs, once they are assessed as eligible, and unmet, as long as there is no capacitated refusal of services or capacitated voluntary stepping up by others to meet the needs identified.
- Failure to meet the need is a breach of statutory duty – it is unlawful, and it can be enforced through a referral to the Monitoring Officer or an application (funded by Legal Help and full legal aid, on a merits and means tested basis) for permission for judicial review.
- For any period of unlawfully unassessed care needs, or unlawfully unallocated or inadequate budget for meeting needs, there is a principle under the CP v NE Lincs case that restitution must follow, because the council in question will have been unjustly enriched by the saving made. The LGO report here refers to the award being for the loss of non-monetary benefit.
- This case has compelling similarities with the case involving Dorset’s failures to find a person a package for transitioning, in which complaint the parents also shouldered the council’s duty for it.
- It is not the law that just because some sort of necessary care is hard to procure, it does not need to be bought: the price is irrelevant if it is the ONLY means of meeting need, because that is the corollary of an absolute duty to meet need. Commissioners everywhere would do well to appreciate that this aspect of the Care Act legal framework will never change – it is a matter of law, and there is no point in simply contending that the price does not have to be raised by reference to how desperately poor the council is.
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The full Local Government Ombudsman report of London Borough of Merton’sactions can be found here