Compensation for risk of or actual physical harm

LGO internal practice guidance states:

Where the complainant claims injury or harm to health as the main injustice, this is usually a matter for the courts to decide. But sometimes it is appropriate to acknowledge the impact of the fault has included harm, or risk of harm. Such harm, or risk of harm, can arise when the complainant, because of fault by the body in jurisdiction, did not receive services intended to provide protection [or we would add, received them so late that the LGO has found unacceptable delay as the fault].

In general, harm needs to be considered in the same way as distress: so, factors will include the severity of the harm or risk of harm; the length of time involved; the number of people affected (for example, members of the complainant’s family as well as the complainant); whether the person affected is vulnerable and affected more severely than most people; and any relevant professional opinion about the effects on any individual.

Where fault by the body exposed a complainant to the risk of harm (rather than actual harm), a remedy payment of up to £500 will usually be an appropriate acknowledgement of the impact of the fault.

Where the risk was significant, or harm actually occurred, a remedy payment of up to £1,500 may be recommended to acknowledge this.

Exceptionally, if there was significant actual harm over a prolonged period, we may recommend more.

Here are some report summaries where this Guidance has been followed, not all of which seem to be consistent, but it is difficult to guess, when one does not know the full facts:

Lincolnshire County Council (18 019 814)

A care provider stopped giving Mrs Y a particular medication (zopiclone, a sleeping pill). The care provider said Mrs X (Mrs Y’s daughter) instructed them to do so. However Mrs X denied ever stating this.

The LGO could not resolve the difference or establish exactly how the misunderstanding took place. However, it was concluded that the care provider was at fault for stopping Mrs Y’s medication without verifying this with the GP

Comment: a person’s next of kin is not the boss of the council commissioned staff, nor even of a directly employed person, if the instruction would put the needy person being cared for, at a foreseeable risk of harm! Even if a person giving the instruction is a welfare power of attorney holder or a deputy, a person taking money for care of another person cannot simply abdicate from the need to make a judgement about the consequences of the action – a person with lawful authority to consent to physical actions on another person’s body does not have a power to demand. They can be displaced, after all, or referred to Safeguarding. Even when that person is an Authorised Person for the purposes of using a direct payment, and in that capacity is an employer, there is no such thing as an unlimited power to give instructions to do what a person regards as foreseeably consequential harm to another. So verifying with a GP would be a basic aspect of competence, in our view.

The Council investigated the issue under its safeguarding procedures and there was no evidence of fault in the way it did this. The aim of safeguarding is to stop harm or the risk of harm. The safeguarding investigation found no evidence that the omission of the medication caused Mrs Y harm. Following the investigation, the care provider put procedures in place to ensure, in future, medication changes are verified with a GP.

No compensation was awarded.

Blackpool Borough Council (18 013 485)

Mr B raised concerns about the financial and psychological abuse of his father and step-mother (Mr and Mrs C) with the Council.

The person accused was Mrs D – Mrs C’s daughter, carer and appointee for the Department of Work and Pensions.

Mr B said Mrs D took money from his father, and that Mr C became agitated and distressed when Mrs C was taken out by Mrs D.

It took the Council 19 days to add the information provided by Mr B onto its care management system.

The Council accepted there was a delay in putting the information about Mr C’s concerns regarding the financial and psychological abuse of his father onto its care management system. The delay was short but any delay in processing Mr B’s concerns left Mr C at risk of abuse for longer than necessary. The Council recognised it was at fault, apologised and paid Mr C £100 for the unnecessary risk of harm he was exposed to.

Somerset County Council (18 007 672)

The Council should carry out reviews at least every 12 months under the Guidance. Mr X was due a review in May 2016, but it did not take place until April 2017. So, for almost one year, the Council did not know whether the support it provided was still meeting Mr X’s eligible needs. (This was fault.)

When Mr X asked for an assessment in October 2017, because he had lost his sight, the Council did not complete an assessment of his needs until March 2018. This was over four months later which, given the Care Act’s focus on prevention and early intervention, was too long. (This was fault too.)

Between the review in May 2015, and the assessment in March 2018, the Council became aware that Mr X:

  1. had problems related to his mental health and was involved with the community mental health team;
  2. had been in hospital twice because there were concerns about his health;
  3. was too unwell to complete several sessions of mobility training;
  4. was becoming increasingly isolated and needed to move to another property;
  5. required a second bedroom for carers to stay in overnight;
  6. had lost his sight.

The Council said these were all health related issues however, health needs do not exist in isolation from social care needs – they very often cause the latter. These issues were enough to indicate that Mr X’s social care needs may be increasing or changing. This meant the risk of not reviewing his support plan or assessing him when he asked was likely to be higher. The Council was at fault and the LGO said it put Mr X at an unnecessarily increased risk of harm.

Neither assessment completed in 2018 contained the information required by the Care Act 2014 or by the strengths-based approach handbook the council staff were supposed to be using. Neither assessment considered Mr X’s eligibility properly and neither assessment set out an adequate rationale for the support it provided. 

As Mr X did not get an adequate, completed assessment, and in fact his personal budget was reduced based on an inadequate assessment. Therefore the Council was at fault and increased Mr X’s risk of harm.

The LGO recommended the Council pay Mr X £800 for the distress, risk of harm and loss of service it caused.

Avery Healthcare Group (18 014 496)

Mrs Y lived at a care home. Mr X held powers of attorney for property and finance for her.

The records were not comprehensive; the LGO found from its investigation that there were only about 12 days of daily notes when there should have been 230 days.

Mrs Y had a fall. The Care Provider did not tell Mr X and it was not logged on the accident record. The falls risk assessment was not updated. A week after the fall, one of Mrs Y’s friends advised Mr X that Mrs Y was in hospital; the Care Provider had not even let him know about this. She had been admitted with a shoulder injury which Mr X believed was caused by the fall the previous week.

The LGO considered that on the balance of probability, Mrs Y was at a greater, avoidable, risk of harm than had the Care Provider kept accurate and clear records. The LGO recommended that the Council waive 50% of the charges towards the care home fees in recognition of the risk of harm (and other injustices caused not mentioned here).

North East Lincolnshire Council (18 009 775)

Mrs Y went to stay at a care home for nine days while her carer, Mrs X, went on holiday.

There was no record that Ms Y’s creams that she required were applied, and she says they were not. On the balance of probabilities, the LGO concluded they were not applied. This was not in line with her care plan and the Council was also at fault. It added to Ms Y’s distress and, although there was no evidence she had come to harm as a result, it unnecessarily increased the risk of harm to her.

Staff also used the wrong continence pads and the wrong equipment. The Council was at fault here, and this caused more distress. Again, although there was no evidence she experienced actual harm, it caused Ms Y to be at an increased, and unnecessary, risk of harm.

The LGO recommended the Council pay Ms Y £200 for the distress and risk of harm.

Jewel Home Support Ltd (18 003 469)

Ms X, who had autistic spectrum disorder (ASD) was diagnosed with advanced, inoperable cancer. From the beginning of 2018, she underwent weekly chemotherapy sessions. The Council provided direct payments for daily care.

It was emphasised to her carers the importance prompting Mrs X at every visit to take her medications and temperature. This was particularly important because it would help prevent damage to her immune system and possible hospitalisation.

Ms X kept a diary during the period she received care from Jewel Home Support. She recorded a number of occasions where they failed to prompt her to take her medication and temperature.

The daily carers’ records failed to show that they prompted Ms X to take her medication and temperature on 13 occasions. Taking this with Ms X’s own diary of events, the LGO concluded that the care provider failed to prompt around 24% of the time. This was fault.

Failure to prompt Ms X to take her temperature and medication had potentially serious consequences, in that it was an important part of managing her condition. The care provider had agreed to incorporate it into her care plan, and Ms X had stressed the importance of being prompted and the reasons why. So, Ms X was put at avoidable risk of harm when the carers failed to prompt her.

Carers also failed to change gloves between tasks on two occasions. Ms X’s cancer and its treatment meant she was susceptible to infection, the consequences of which could be potentially life threatening. The care provider’s failure on two occasions to maintain the standards of hygiene it had agreed with Ms X and included in the care plan meant she was put at risk of avoidable harm.

The LGO recommended the Council pay Ms X £400 in recognition of her distress and risk of harm she suffered.

Bolton Metropolitan Borough Council (17 017 535)

Ms X had many health problems which caused her significant difficulty with daily living. She had two personal assistants.

When her daughter moved away from home, she tried, unsuccessfully, to employ a third PA to help during evenings and weekends. She told the social worker about the difficulties she was having with agency B, who the Council contracted to provide this support. She said they did not answer the phone, failed to send CVs for ages, and then sent CVs which were not appropriate. This meant Ms X had not been able to recruit a PA and did not have any support for evenings or weekends although the Council had assessed that she needed it.

Ms X was discharged home after an operation, but was readmitted after her stitches burst. Council records noted the social worker called and spoke to Ms X’s family before she was readmitted; they had no particular concerns at the time.

On her second discharge home she was told to take it easy and that she would need extra help. Ms X said when she contacted agency B from the hospital to ask for urgent extra care, nothing happened and she returned home without any support for evenings and weekends. Within four days, she had to return to hospital after her stitches had burst for the second time.

She was in the intensive care unit for several days and in hospital for several weeks. She said she had no strength in her arms or legs and she couldn’t speak properly. She was not able to make a telephone call, so was unable to ask for help before she returned home. She was told not to lift anything heavier than a mug, but without another PA, she struggled to make her own food and drinks during weekends and evenings.

Ms X felt strongly that the second and third hospital admissions were due to insufficient support during recovery. She said stress causes her symptoms to increase, which in turn increased the long term impact of some of her health conditions

The Council was at fault when it failed to assess Ms X’s needs on returning home from hospital. It spoke to her family but it needed to speak to her. The LGO stated it could not say that was the reason for her two readmissions to hospital, however, it did conclude, on the balance of probability, the failure to ensure Ms X had adequate support put her at an increased risk of harm. It potentially contributed to the two readmissions to hospital and the serious implications for her health.

During the time at weekends when she did not get support, Ms X was not able to keep herself safe and properly medicated. The LGO considered that the stress caused by these events made her symptoms worse. Also, not being able to access her medication properly was harmful to her health and wellbeing. The Council was at fault here causing Ms X considerable, and avoidable distress, time, trouble, and harm.

The LGO recommended the Council pay Ms X £3,800 to acknowledge the significant and avoidable harm, distress, time and trouble it caused when it failed to provide sufficient support (amongst other things not discussed here)