Essex County Council and Hertfordshire County Council at fault for failing to follow proper decision making processes when returning a person home from residential care

This post looks at unrelated cases involving Essex and Hertfordshire, but similar in outcome: cases which have both led to the LGSCO upholding complaints.

What Happened in Essex’s case

Decision Date: 21st August 2019

Mr X complained on behalf of his late mother, Mrs Y, now deceased.

Mrs Y was hard of hearing with mobility issues and had declining health. She had received four care calls at home per day. She also had a pendant for emergency calls when she fell.

Mr X said his sister, Ms Z, Mrs Y’s GP and him had all tried to persuade Mrs Y to go into residential care to no avail.

Mrs Y went into hospital in May 2018.

In June a social worker met with Mrs Y, her friend and Ms Z, her daughter, to discuss her discharge from hospital. The social worker heard from Mrs Y, a friend, Ms Z, Mrs Y’s GP and hospital staff and concluded Mrs Y “would benefit from an interim placement to enable a routine around her care needs with the view to returning home. This would also encourage her mobility and independence when she eventually returns home.” 

A further review was due 4 to 6 weeks later.

The social worker completed an information form for the care home which stated:

  • Mrs Y “uses a hearing aid on her right ear. She is extremely hard of hearing. Please speak clearly and stay close to enable flow of communication. Also give clear explanation during care provision”.
  • Mrs Y “is able to advocate for herself, however is supported by her children”.

From 28 June to 18 July a community support worker carried out a review of Mrs Y whilst she was in the care home. She found that Mrs Y was able to communicate clearly, and was only hindered by her hearing. She had hearing aids but they were not working very well. She also tried to use a pocket talker but Mrs Y said that did not help her.

The support worker concluded that “It would benefit Mrs Y to remain in a residential placement as if she returned home there would very likely be a significant impact on her well-being and there would probably be frequent re-admissions to hospital.”

On the 2 August after another review, the Council concluded that there was sufficient evidence to justify Mrs Y’s continued placement at the care home. It stated that Mrs Y continued to require 24 hour support and that the care home appeared to be the best option at that time. The family were in agreement with the Council’s conclusions.

Notes from the 8 August showed that the Council’s forum questioned why Mrs Y’s needs could not be met at home. The support worker advised the forum that it was because Mrs Y had night needs that could not have been met though gave no explanation as to why.

The Council then went on to say that since this review was presented (2 August) Mrs Y had significantly improved (information from the support worker).

A plan was agreed between the support worker and her team manager for Mrs Y to have a trial stay at home.

There were no other records to show how the Council decided Mrs Y should return home.

In response to the LGO enquiries the Council explained the support worker reviewed her care home records and found Mrs Y’s mobility and independence had improved. She also concluded that Mrs Y had no night time needs. On 17 August the support worker asked the Council to source a home care package for Mrs Y to return home.

A report dated 21 August report highlighted that Mrs Y did not want to go home. The support worker insisted her needs could be met at home and so the Council would not fund her continued stay in the care home.

Mrs Y returned home. After three weeks at home she had a fall and went into hospital. She died a few days later.

Mr X complained to the Council about the actions of its support worker. He considered the support worker was wrong to return Mrs Y home. He explained that Ms Z, her GP, care providers and him all had concerns about Mrs Y returning home. He also noted Mrs Y would not have been able to understand or communicate with the support worker during an assessment because of her hearing impairment. He felt the move home contributed to his mother’s death. At the least she would have suffered less had she remained in the care home, as she would have received care more quickly. As it was, she had to wait three hours on the floor at home for an ambulance.

Mr X discussed the complaint with a Council officer and found the support worker was not a trained or qualified social worker.

In October the Council officer dealing with Mr X’s complaint accidentally left a voicemail on Mr X’s phone. In this message Mr X could hear her discussing and ridiculing his complaint. He also noted, having made a decision for Mrs Y to return home, this was then delayed, incurring further care home charges.

The Council responded to Mr X’s complaint in November:

  • It recognised communication with Mrs Y and her family was poor and more could have been done to take into account the psychological and emotional impact of the decisions taken.
  • It accepted staff held an inappropriate discussion about Mr X and they were sorry. They would send him a personal apology.
  • The Council would feed back [internally] for appropriate action to be taken regarding their conduct.
  • It waived the final invoice in response to Mr X’s complaint about the delay in Mrs Y’s leaving the care home.

Mr X contacted the Ombudsman. He said the Council had not provided the apologies promised or confirmed it had taken disciplinary action against its officers. He was also concerned nothing had changed within the Council to prevent recurrence. Mr X said he and Ms Z had suffered distress.

In response to the LGO’s enquires, the Council stated:

  • The support worker took the initial view that Mrs Y should remain in a residential placement. However, Mrs Y then started to improve and her needs reduced. The Council said the support worker gathered evidence from the care home and found Mrs Y was mobilising independently and did not require night time support. She therefore arranged for Mrs Y to return home.
  • The support worker was aware of Mrs X’s hearing loss and identified strategies to ensure she could engage in conversations, including eye contact, seating positions and using a pocket talker as an aid.
  • The support worker did not record the reasons for the change in Mrs Y’s support or the views of others. The Council voluntarily accepted this was fault. It said that it now quality reviews her work to prevent recurrence. It has placed her on an action plan and under observation. It is also reviewing and updating its guidance on record keeping.
  • It had accepted fault in relation to the actions of its staff but failed to complete the promised actions. It therefore offered Mr X £200 for the time and trouble in bringing his complaint.
  • Staff failed to send Mr X apology letters due to human error. This has now been actioned.

What was found

Having reviewed the Council’s records the LGO was satisfied Council officers took appropriate steps to communicate with Mrs Y and were aware of her wishes.

It was not necessary for a qualified social worker to review Mrs Y’s needs, provided the support worker was suitably trained and took professional advice when necessary. The LGO was satisfied the support worker considered relevant information in deciding Mrs Y should remain in the care home. The support worker recorded the reasons for her decision and the evidence considered in the review record. This showed the Council followed a proper decision making process first time round.

Around 17 August 2018 the social worker decided Mrs Y should return home. The support worker did not complete a further review or otherwise record the reasons for this decision. Nor did she detail the evidence she relied on. There was also no evidence she had a further discussion with Mrs Y, her family or others before deciding Mrs Y should return home. There was a lack of evidence to show the Council followed a proper decision making process. This was fault.

This fault caused injustice; it caused Mr X and his sister Ms Z distress and left them uncertain as to whether Mrs Y’s death and suffering could have been avoided.

The Council had already outlined the actions taken to supervise the relevant support worker to prevent recurrence of this fault. The LGO was satisfied with the actions taken.

The Council accepted its staff held inappropriate conversations about Mr X and offered personal written apologies. However, it then did not provide these. This was fault. The Council has since provided these apologies. It also offered Mr X a payment for the time and trouble in bringing his complaint to the Ombudsman. The LGO was satisfied with this proposed action.

Overall, the LGO found that the Council failed to follow a proper decision making process when deciding to return Mrs Y home and Council staff had acted unprofessionally. To remedy the injustices set out above, the LGO recommended that the Council carry out the following actions:

  • Pay Mr X £200 for distress and uncertainty;
  • Pay Ms Z £200 for distress and uncertainty;
  • Pay Mr X £200 for the time and trouble in bringing his complaint

What happened in Hertfordshire’s case

Decision date: 27th August 2019

Ms C complained on behalf of her late mother, Mrs M.

Mrs M went into hospital in July 2017 with sepsis.

Ms C had a conversation with the hospital social worker who said that Mrs M would receive a four-week reablement support package, as she had specific enablement goals and that if Ms C could no longer cope with her mother’s night-time needs, her mother would have to go into a care home.

Mrs M left hospital on 22 August 2017. Three weeks later, the Council allocated Mrs M’s case to a reviewing officer to carry out the four week care review.

Ms C told the officer that she had arranged a privately paid two weeks respite break for her mother at a care home which would start on 18 September (Mrs M’s enablement support ended on the 19th). She used her mother’s savings. She thought that if her mother liked the home there would be an option to make the placement permanent. Ms C said decided this because she had been advised by the hospital social worker that if she could no longer cope, her mother should go into a care home.

Ms C extended her mother’s respite care several times before she concluded the care home was the best place to meet her mother’s needs, and her mother was totally settled and happy.

Mrs M’s permanent placement at the home started on 1 November 2017.

Ms C said she became aware on 20 November 2017 that her mother’s savings were far less than she had initially thought. She contacted the Council’s finance team, after which she received a letter on 29 November 2017. The letter said the Council had to carry out a financial assessment and a needs assessment.

The Council allocated a social worker, who arranged a visit for 5 December 2017. Ms C said that during the visit:

  • They briefly spoke about her care needs and her mother said she wanted to stay at the care home.
  • The social worker said he would review the care home’s care plans and speak to the care home staff.

The social worker told Ms C on 8 December that he was still waiting for some information from Mrs M’s GP to determine if there was evidence her mother could not be left on her own. The social worker said that according to the evidence at the care home, her mother did not have overnight needs. If that was indeed the case, the worker said Mrs M’s needs could be met within Flexicare accommodation.

In Flexicare housing, elderly people live together in flats they rent. Support is provided by on-site care staff and emergency support is available 24 hours a day. It also provides communal facilities and opportunities to socialise.

Ms C was not happy with this thinking and said her mother should not be moved from the care home where she settled so well.

The social worker said that he and his manager did not deem that her mother was eligible for residential care because she did not need constant supervision and did not have overnight needs.

Ms C received a copy of her mother’s needs assessment on 13 December 2017. It said:

  • Staying safe from harm section:
    • Mrs M did not recognise her limited mobility and would try to mobilise independently without appropriate support putting her at high risk of falls. Care home staff did not leave Mrs M on her own throughout the day.
    • Staff checked on her two-hourly overnight in case of any concerns. However, she routinely slept well overnight without any support needed.
  • Under Physical Health, it said:
    • Mrs M was at high risk of pressure areas developing. Carers needed to check and change her pads regularly to manage the risk of skin breakdown.
  • Ms C said the social aspect of being at the home had been good for her mother’s wellbeing. Her mother benefited from being in such a social environment, which was part of the reasoning for choosing the care home.

Ms C told the social worker the assessment was incomplete and incorrect, particularly that the assessment did also not say anything about her mother’s inability to use of a call bell to call for help. This is why staff would check her at night every two hours.

Ms C told the social worker that she had spoken to a manager of a Flexicare scheme who did not feel her mother’s needs could be met at the scheme. The manager said it would only provide night-time care support (between 10pm and 8am) on an emergency basis. Her inability to use a bell would be a risk to her safety and wellbeing if left alone in her own flat within a Flexicare environment. This was clearly not factored into the decision.

She asked the social worker for more detailed information about Flexicare and what care support it could provide. However, she only received a one-page sheet with minimal information.

Mrs M passed away on 8 January 2018, before she was moved to the Flexicare scheme.

What was found

The Council failed to carry out a review / assessment of Mrs M’s needs, to determine how her needs should best be met after her four weeks reablement support would end. As a result of this, and the advice the hospital social worker provided to Ms C, she decided to move her mother into a care home on a trial basis.

The Council acknowledged that it should have offered an assessment of Mrs M’s needs to enable Ms C to make an informed decision about possible care arrangements for her mother. The Council said it has since put a new team in place to review and assess people that have recently been discharged from hospital with short term services.

The Council failed to establish if Mrs M was able to make decisions about her care and/or where she wanted to live. This was fault.

As such, it failed to establish who the decision-maker was and only discussed with Ms C whether she wanted to consider Flexicare for her mother:

  • If Mrs M had capacity to decide where she wanted to live, the Council should have involved her mother in these discussions and ask her if she wanted to move into Flexicare.
  • If Mrs M did not have capacity to make this decision, the Council could have reassured Ms C that it would organise a best interests meeting with all stakeholders involved (including the care home), at which Ms C could raise her concerns.

The Council also did not sufficiently consider the impact of moving Mrs M from her care home. As Ms C repeatedly highlighted, she was settled and happy in the care home environment. As Mrs M was very vulnerable (a frail 93 year old with dementia) there could have been a drastic impact on her mental/emotional wellbeing. The LGO stated that the Council should have recommended to Ms C that Mrs M could remain in the care home.

The Council also acknowledged that it should have provided more specific information to Ms C, and should have better explained to her, how her mother’s needs could be met in Flexicare over a 24-hour period. The Council was asking Ms C to agree to its decision to move her mother out of the care home where she was settled and wanted to live, into an unfamiliar Flexicare setting. As such, it should have arranged a meeting with Ms C to discuss this in more detail.

The LGO recommended that the Council should provide an apology to Ms C for the faults identified above, the distress this has caused her and for the time and trouble she experienced in bringing the complaint. It should also pay her £200.

Important legal points for members of the public and for councils

  • Nobody should be given a period of short term care and simply left to their own devices, at the end of the period in which that short term care is ideally intended to succeed; the responsibility of whichever body is funding the interim or short term targeted care may well be ongoing, and withdrawing funding puts the funder in the position of pulling the plug on care without any accountable thinking as to whether the person needs more of same or something else.
  • A person’s capacity to make decisions for themselves (decisions of different types, because capacity is issue specific) needs to be made by the first professionals seeing the person because that status affects both financial assessment and who can share what information with whom; and assessment regarding the need to use restrictive measures, potentially, to effect or to implement a plan.
  • Any plan for long term care in anything other than a care home, will involve a decision as to who has capacity to sign a tenancy or a shared ownership agreement: one’s mother cannot be PUT into Flexicare, without deputyship, any more than can one’s learning disabled son or daughter, just because there’s housing benefit and a social worker under pressure to get the job done and the file closed.
  • Whether or not tenanted supported living or extra care is a good solution is a matter of weighing up the pros and cons, but ‘best interests’ decision making is never enough to effect a valid contract for accommodation or security of tenure. When a person lacks capacity, the council is the Best Interests decision maker on matter that the council will be paying for, but not about matters that it has no care planning function in respect of. The housing element of supported or extra-care living is not generally contracted for by the council at all.
  • Any review team seeking to persuade relatives around to supporting that choice, and taking deputyship if necessary, needs to appreciate that they need to OFFER that solution, and not impose it by making the meeting of needs dependent on or conditional upon the person contracting or being contracted for and paying for that accommodation.
  • Any sensible relative would therefore be most concerned as to the adequacy and sufficiency of the actual package of care services before going along with any such suggestion, even if the council can point to a place where there is a space, say, in a housing association or other sort of housing. It is puzzling to us at CASCAIDr as to why the LGO does not spell out that that is the law.
  • Anyone receiving 4 visits a day is likely costing the council as much as it might cost to place them in a care home, which is why many people are offered care homes, rather than ongoing care at home. That is not unlawful, as long as the cost aspect is not the only or driving force behind the thinking. But someone on 3 visits a day MIGHT cost less at home, and hence there is much pressure on workers to find people able to cope at home without night time input. Anyone’s ability to remember to use a pendant alarm if in difficulties is obviously a hugely relevant consideration for this sort of decision.
  • The longer a person has been in a care home, whether on a reablement package or through a family’s decision to use a person’s money or use their own for an interim stay in a care home, the more important it is for a social worker OR any care manager, to identify how they have concluded that it is going to promote their wellbeing to move them FROM that care home. Nothing else will be compliant with the article 8 human right to respect for one’s home and private life.
  • A Three Conversations Model will not do. The Care Act provides for all this sort of thing to be written up and reasons given and a management review embarked upon, if there is a dispute that is obviously unresolved. Even if it did not, public law principles apply and anyone affected by a public body’s decision is entitled to procedural due process, which will itself entitle the person and their family to transparency.
  • There is case law (the Merton case, post Care Act) to the effect that a ‘forum’ that is an actual decision-maker with regard to statutory functions needs to make its own thinking clear; if it is NOT a decision-maker, and the matter just goes back to the Support Worker on the case, then it is that support worker’s thinking that is accountable by reference to public law principles. The irony here of course is that the Forum no doubt regarded itself as the guardian of good quality social work, such that it should be a source of shame that it didn’t require minutes and evidence and a record of the reasoning that the support worker was planning on proceeding with! We think that the LGSCO should be highlighting that there is often legal underpinning for its conclusions, both for the good of the public land the local government sector, in case people just do not know that public law is what the Guidance is based on, and what the Act and Regulations are informed by.
  • Misfeasance in public office is a civil law wrong that can be made into legal action where there is evidence of maliciousness or spite on the part of public officers. Damages can be ordered, and no officer is able to be reimbursed through LA insurance for this kind of wrong, for the costs of defending themselves. We think that the LGSCO should remind the public and the Local Government sector of that fact when disrespectful behaviour is revealed to have occurred. The culture in local government is bad enough without people getting away with the sort of thing that happened in the Essex case.

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 Essex County Council and Hertfordshire County Council’s actions can be found here