Decision Date: 12th September 2019
Miss X has physical health problems which affected her mobility and she also had a diagnosed personality disorder.
In 2017 she spent some time in hospital followed by a period of residential respite care. When she returned home, she received four calls a day. But by 2018 she was receiving three calls a day: late morning; late afternoon; and mid-evening.
In March 2018 the Council formally re-assessed Miss X’s needs, and identified that she needed help in areas to maintain healthy nutrition and personal hygiene, amongst other things.
That March 2018 care and support plan said the Council would provide two 30 minute calls a day, arrange for a hot lunch to be delivered and two hours support per week to help change her bed and tidy her house.
The Council did not identify a personal budget. Meaning that they did not identify a monetary figure to represent the cost of care they had identified in meeting Miss X’s needs.
The Council visited Miss X on 17 April to review her care. As a result, it reduced her support from 2 hours per week to 1 (bed changing and tidying).
Following advice from the NHS, the Council implemented a “strict routine” of limiting each call to 15 minutes on food preparation and 15 minutes of personal care within the two half hour personal care visits. The Council’s records said Miss X agreed to this.
The Council did not update her care and support plan to reflect the change from 2 hours to one, or to the delineation of the time on the personal care visits.
The Council called Miss X on 12 June to review her care. Miss X said she was not happy with the hot meals but was resigned to the change in her care and support plan.
Carers would undertake tasks such as preparing food and drinks, including hot food; emptying/cleaning the commode; providing personal care when Miss X agreed.
Twice Miss X declined having her hair washed. She was advised to say when she wanted it washing. Sometimes the carers refused to carry out tasks which were due to be covered by the weekly calls (e.g. moving boxes) or to cook food which would take too long.
Miss X complained to the Council many times.
On 22 January 2019 the Council responded to Miss X’s complaints. It said:
- she had made 23 complaints about her care since September 2018, including allegations of poor attitude, inadequate meals, stealing a bottle of water, taking a book without her knowledge, the carers not locking the door properly;
- it was sending two carers because of the level of accusations;
- Miss X was asking carers to do tasks not in her care plan and making complaints, whether they did what she asked or not;
- it would review Miss X’s care on 23 January and again in three months’ time. If at that point she was satisfied with the care being provided it would consider returning to a single carer visit;
- it would not give Miss X a “direct payment” form of personal budget to employ her own carers because she had debts which needed to be cleared before it would consider a direct payment. (It is unclear the nature of these debts from the LGO report)
What was found
After re-assessing Miss X’s needs in March 2018, the Council decided to provide two, rather than three, calls a day. It could do this, because when it reduced the calls to twice a day, it added in delivering hot meals every day. Any council is entitled to identify the most cost-effective way of meeting needs (subject to public law principles of course). Therefore there was no fault.
Also after that re-assessment, the Council identified the need for two hour long calls a week, but never provided them. There was nothing to explain why that was the case. That was fault by the Council.
After the review in April, the Council told Miss X it would provide one hour long call a week but did not update her care and support plan. There was nothing to explain the reason for this decision or how the weekly need could be met within one hour, rather than two.
Following advice from the NHS, the Council made other changes to the way it delivered care. This too should have resulted in an update to Miss X’s care and support plan. Failure to do so was fault by the Council.
The records of the care being provided to Miss X show it was not in line with her care and support plan. In particular, it was clear to the LGO that her need for help with bed changing and washing bedding was far greater than reflected in the care and support plan. The latter suggested it was a weekly need, but the care records showed it was more frequent than that. The need to change and wash the bedding was therefore known to be encroaching on the time provided for meeting her other needs.
However, there was not enough evidence to say these faults caused significant injustice to Miss X.
The carer’s records showed Miss X regularly refused personal care. They showed it was been open to her to have her hair washed and could ask for this whenever she wanted. It appeared Miss X’s main concern was around the provision of hot food. But the Council was meeting that need by having a hot meal delivered each day. Carers continued to heat food up for Miss X, but had refused to prepare more elaborate meals. That was not fault by the Council.
Nevertheless, the Council should review Miss X’s needs and update her care and support plan, so it can properly reflect her needs and the care being provided to meet them.
Miss X’s care and support plan did not identify her personal budget. That was fault by the Council. While there was no injustice as a result of this, the Council must correct this failure.
The Council confused personal budgets with direct payments. Everyone should have a personal budget. They also have the right to ask for direct payments. When Miss X did this the Council said it would not give her direct payments because of her debts. The Statutory Guidance says councils should “take all reasonable steps” to provide support to people who might need help managing direct payments. The Council should reconsider Miss X’s request for direct payments.
Points for the public and councils about the legal framework underpinning this sort of report
- SOMETIMES the LGSCO’s investigators get straight to the point in describing the actions and omissions of the councils they find against, as breach of the Care Act or not in accordance with the Care Act, or as unlawful. Others are more coy, describing it as fault, without cross-referring to well-established principles of law.
- We think that that ought to change, because at some point, now the Care Act has been around for 5 years and case law is emerging, the basic requirement of competence on the part of public officers and their management MUST include knowing the law well enough to get their day to day work done properly, such that ignoring these principles (or not knowing them) must itself be FAULT.
- In this report, there are at least 4 things that the report could have described as non-compliant with the Care Act.
- Failure to identify a personal budget – s26 Care Act
- Failure to include the personal budget in the formal Care Plan that must be produced, once someone has eligible unmet needs – s25
- Failure to give due consideration to someone’s request for a direct payment form of personal budget – s31 Care Act – possibly a fetter of discretion here by reference to the refusal based simply on ‘debts’ which should not go directly to the question of the appropriateness of a direct payment for meeting needs, or to someone’s ability to manage.
- Once someone’s plan has been signed off, it is a breach of statutory duty to fail to deliver what is in it – s18 provides a duty to meet the needs, the needs identified as those that require to be met in the assessment, and the care plan cannot be changed without a review and a re-assessment under s27!
All anyone has to do to sort this kind of breach of the law out is to refer it to the Monitoring Officer under s5(2) or 5A(2) of the Local Government and Housing Act 1989. There is a post on the purpose and scope of the Monitoring Officer’s role (which is a protected, independent and personal responsibility for good government, intended by Parliament to avoid illegality and adversarial hostilities at the level of litigation) on this site if you search for “Monitoring Officer.”
If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site. We don’t charge for triaging your issue and giving you a steer, or for clear, pressing, significant public law wrongs related to social services stances on assessment, eligibility, care plans (content or amount) or cuts or delay!
The full Local Government Ombudsman report of Stockport Metropolitan Borough Council’s actions can be found here