London Borough of Hillingdon Council at fault for failing properly to explore options and reassure themselves of the consent of a service user to a hospital discharge care package decision

Decision Date: 12th September 2019

What Happened

Ms D complained on behalf of her (late) father, Mr F, about her parents having a care package ‘forced’ upon them. The package was not formally refused at first – it was accepted because (as often happens) the hospital thought that he was not ‘safe’ to go home without one.

Informed agreement to its delivery, given that social care is chargeable, but must be delivered even if the charges are not accepted, in order to meet assessed needs, was not facilitated properly.

Mr F went into hospital in March 2018. Ms D was the main carer for her parents and in her view, her father did not have capacity to make decisions. However, she was out of the country at the time, so her brother was looking after them when the father had a fall. 

Mr F was Greek and preferred communication through his son, the council’s records suggested.

The hospital’s social worker liaised with Ms D’s brother, who agreed to care services being put in place to support his mother in her role as Mr F’s informal carer. The social worker also made Ms D’s brother aware of the Council’s charging policy and the Council sent the financial assessment documents, a few days after the care services started.

The Council said Mr F had capacity to make decisions, although it is not clear how it came to that conclusion given its liaison with the son.

On 23 March 2018, the hospital asked the Council to carry out an assessment of Mr F’s needs. It concluded Mr F would need a package of care, consisting of four care calls by two carers.

The Council did not share a copy of the assessment with the family. It had errors in it, such as ‘Mr F will receive no assistance with food and medication at home’, which was simply not true but it had gone uncorrected.

The Council did not carry out a carer’s assessment with Mrs F. She would have been providing informal support at home regarding Mr F’s safety.

The care provider carried out a pre-service visit on 3 April 2018 and noted some of the help that Mrs F could and would willingly provide. The assessment and proposed support plan were both unsigned.

The care package started on 5 April 2018 and the social worker said she would review the care support after four to six weeks.

The Council sent a letter on 10 April 2018. It included a financial assessment form and a booklet. The letter explained that Mr F was receiving a chargeable service.

Ms D said the family has been given to understand that the Council would not have ‘allowed’ her father to return to his home, unless there was a care package in place. She also said her parents did not want any care support, but simply accepted what the hospital told them and did not raise any objections with the Council at the time.

Ms D said her mother could have provided all the support that was provided by the carers. She said that neither her mother, nor her father, wanted care support in place.

The review was not carried out after six weeks, as Mr F went back into hospital. In the interim, the care provider had raised no concerns about care support being refused. But Ms D said her parents never allowed the carers to provide care to her father. Her mother changed and fed Mr F before the carers arrived, which meant carers were often not doing anything at all during visits. When the LGO asked the Council to look at the daily care records to determine what care was provided during visits, the care provider said it had accidentally shredded these records. Therefore there was no evidence of the support the carers actually provided.

Ms D regularly asked the care provider to stop the care package. When the care provider said this would not be possible, because her father needed support, she asked the care provider to reduce it. The care provider explained that it needed to inform the Council of her request, who then had to agree and send a revised care plan to the provider. But there was no evidence the care provider ever discussed this with the Council, so liability for the charges kept on totting up. Nothing had been said to the Council, up to May 2018 about the family’s declining of services.

Ms D’s mother eventually took it into her own hands and barred the entrance to her home when the carers came. 

The care agency informed the Council on 19 June 2018, that Mrs F had reduced the care visits to twice a day (morning and evening). That is, she refused the carers entry for the lunch and tea call. The care provider said it was concerned that Mrs F felt under pressure to take care of her husband, however. The agency manager said that Ms D had also told her she was worried about her mother and the manager asked the social worker to call Ms D to discuss this.

An internal email from the Council dated 20 June 2018, said the social worker subsequently:

  • Spoke to Mr F, the son, who confirmed that his father did not want to be washed by the carers, and preferred his wife to do it
  • Spoke to Ms D who advised that her mother “is very stubborn and so is her father”. Ms D was concerned this was making her mother ill and would have welcomed input from the social worker direct to her mother.
  • Spoke to Mrs F who advised the package had been reduced to two visits a day for about a month. Mrs F became tearful and said she had promised her husband she would take care of him, because her husband did not want anyone else helping him. That is why she had requested the change.

F’s son called again on 6 July 2018 to say his father refused to complete the financial assessment documents and did not want his care package anymore. He wanted the Council to end it that day. The son asserted that he did not think that the father had the capacity simply to cancel the service (no doubt with the impact on his mother in mind) and the council allocated the case to a new social worker to carry out a review.

The care agency told the council on 12 July that the care package had stopped because Mrs F refused the support. The council spoke to Ms D who said her mother felt that they had been forced into having a package.  Ms D said she told this to the care provider on several occasions and believed this was the way to request cancellation. She thought that paying for half of the charges would be appropriate.

The Council said:

  1. All requests to cancel care must be made to the Council’s Social Care Direct team, and not to the care agency. Clients should be told about this during the assessment and support planning stage.

Comment: this is of course, a crucial part of advice and information, presumably overlooked because of the pressure that staff are under, or not part of a Conversations model for the process in some places*

  1. The family had many opportunities to cancel the service. Mr F’s son knew it was a chargeable service and he could have contacted the Council to stop it.
  2. Despite several requests, it had not received the information it needed to complete a financial assessment. As such, Mr and Mrs F must pay for the full cost of the care (£5,896.80).

Comment: that is the law, if one fails to fill out a financial assessment, because one is lawfully to be assumed to be able to pay the full cost of the service.

  1. It offered Ms D to contact the financial assessment team and provide the documents it has requested to complete an accurate financial assessment to determine what, if anything, Mr F has to contribute. However, Ms D did not provide this.
  2. If Ms D believed that she told the care agency that care was not needed, but the care provider ignored this, she should submit a complaint to the care agency.

Comment: a council can of course contract for a service, rather than deliver it through an inhouse provider arm. The council is the customer, when it does so.

It is a basic feature of a commissioned care package that the service user is the beneficiary of that service, not the purchaser or the client, and it is also a basic part of the law of England that no one adult is able to make decisions to give up statutory rights regarding care needs, on behalf of another, unless that person has welfare power of attorney or deputyship.

Thus it is unarguably right that the council is the decision maker – but that does not mean to say that the council can complain to the care agency for not passing refusal of service ON, when it is an essential part of the council’s own social work obligation to ensure that needs are met, carers’ wellbeing is taken into account, and incapacity regarding lack of insight into the consequences of refusing a service, is apparent or at least possibly raised.

What was found

The Council did not ‘force the care package’ on Mr F. The Council discussed the care support with Mr F’s son, who was aware there would be a financial assessment to assess whether his father would have to pay a contribution. Mr F’s son agreed there was a need to put a support package in place.

The Council was at fault however, in these respects:

  1. They did not ask Mr F if he agreed to having support in place and (if so) if he agreed to the proposed care and support plan – essential if someone is capacitated, lest care be foisted on someone without consent, because that is an assault.
  2. They failed to carry out a carer assessment to determine what support Mrs F needed to be able and willing to continue to provide her own informal support – essential (even if informally assessed, rather than formally) as a relevant consideration necessarily informing its care and support plan for Mr F.
  3. The Council did not inform Mr and Mrs F, the people who would be asked to pay for it, that there would be a financial assessment to determine if there would be a charge for the care package.

Instead, the Council carried out all key discussions about care support and how to pay for this with their son. The records indicated that Mr F’s son agreed his mother should receive support in her role as his father’s carer, and he accepted there would be a charge. However, there was no evidence this was shared and discussed with Mr and Mrs F. The council should have checked, and not just treated the son as the decision maker.

On the balance of probabilities the LGO considered that if Mr F senior had known about the proposed care plan, the type of care that would be provided by outside carers, and the possible costs for him involved, he would have refused the care package. 

The LGO identified these further faults:

  1. The Council failed to share a copy of the needs assessment with the family to enable them to provide comments to ensure it was accurate.
  2. The pre-service assessment and care plan from the care provider were not signed by Mr F or his wife to indicate they agreed with it.
  3. The Council failed to make clear to Mr F and his family whom they should contact if they wanted to reduce or stop the care package.
  4. The care provider failed to inform the Council, in a timely manner, that there were issues with regards to the delivery of the care package.
  5. The care provider destroyed all the records related to Mr F’s care, including his daily care records and records of communication with the family.
  6. While the Council carried out a telephone conversation with Mrs F regarding unwillingness to pay for unwanted services, it did not result in the Council urgently carrying out a care review visit to discuss these matters with both Mr and Mrs F.
  7. The Council told Ms D that, if she believed the care agency failed to pass on her mother’s request to stop the care package, she could make a complaint to the care provider. However, as the care provider was commissioned by the Council, the Council should have dealt with this as part of its own complaint investigation.

The LGO recommended that the Council write off the cost of Mr F’s care package, and apologise to both Mr and Mrs F for what had happened, and overhaul its internal processes and its expectations of commissioned providers.

Further points for the public and for councils:

In addition to the Comments that we have woven into the analysis of the LGO’s report in to this complaint we would make the additional points:

A person does not have to consent to a care package in order for it to be delivered; not all care packages involve touching or restraint, but they do involve coming onto one’s premises, quite often, so it’s polite and prudent to ask! Clearly though, incapacitated people can also have care delivered to them on a best interests basis if Mental Capacity Act thinking is done properly and those interested in the welfare of the person are properly consulted.

Here, the son thought that it was better to have the care; the daughter who was absent at the time it all happened might have been of the view that she and her mother would cope, or at least try to first.

Hospital registrars and clinicians often maintain that someone is not ‘safe’ to go home, but without any idea of

  • what is or is not waiting for them at home,
  • what the environment is like, in terms of risk,
  • what the attitude of other people in the home may be,
  • or the lowest practicable amount of care that would need to be made available if the council were to do a lawful, rational, transparent, professional assessment of what was needed.

Instead, very often, council staff on the hospital discharge team will simply say “We only do three visits a day” or “You can only have £575 a week, because that’s the cost of residential care” regardless of

  • the state of vacancies,
  • the ability or willingness of a family network to reduce the cost differential if the relative were to be cared for at home,
  • the Mental Capacity Act,
  • the wishes and feelings of the person in question,
  • the duty to promote well-being, specifically including emotional and psychological wellbeing
  • the duty to take into account the suitability of the person’s existing

accommodation

  • as well as the person’s human right to respect for their private life and their home.

Ignoring all those relevant issues, of both law and of fact, amounts to a fetter of discretion on the care planning thinking of staff, and is unlawful, although it is commonplace and thought essential, no doubt, by NHS colleagues required to manage the BEDS crisis.

The point is this: no NHS professional is in a position to determine whether it is safe for a person to go home (or has some sort of divinely ordained delegated power to commit any social services authority’s funds) unless they know all the circumstances – including a firm idea of the actual budget that the council’s panel or other decision maker has approved of spending, for meeting the assessed needs of the specific person.

You won’t get any of that out of a Discharge to Assess policy or Schedule 3 to the Care Act on hospital discharge, however. It’s public law, and the world of social care would be a very different place if it was considered professional misconduct for council social care and social workers to overlook it.

It’s the law for everyone’s benefit, not merely the well-informed.

The last point that needs to be made about this case is that it all makes sense once one realises that there was a likely cultural unawareness here, in this proud Greek family, as to how the social care system WORKS, and what the law says about how much one can be required to do by one’s spouse before one loses the capacity, through what might almost be described as coercion, to make up one’s own mind.

A long married couple may foreseeably be bound together by love, duty, morality, co-dependency, loyalty and concern, and all the more so, the worse the condition of the other is. Of course, autonomous individuals can sacrifice their own health and wellbeing if they are determined to provide care, for whatever reason, and thereby save the State money, and the service user, some money too.

But at some point, that may not still BE an autonomous decision; it might be made through ignorance, exhaustion, inability to challenge or through a culturally or gender-based sense of compulsion – and that is what professional social work interventions are for.

Social Services staff owe a Care Act duty to both carer and to cared for, sometimes to call time on willing efforts to meet a loved one’s, based on observations and discussions with the people concerned. They must assure any carer that it is OK to rely on the state, and make it clear to the cared for person that nobody is obliged, legally, to provide care for them. They can find that the stubborn service user who refuses even to be assessed in fact lacks capacity, if they only dare articulate a lack of insight from an actual evidence basis that they’ve observed. That means that they can provide the service regardless of refusal and refusal to pay charges, and save a carer from collapse, recovering the monies later, if they wish to. They can inform the carer of other legitimate solutions, rather than the carer going above and beyond what an ordinary person would think was the maximum one ought ever to take on.

To us, it is astonishing that the advice and information / first contact / hospital discharge stage of this family’s Care Act journey did not make any of that clear to them.

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The full Local Government Ombudsman report of London Borough of Hillingdon’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-012-812