East Sussex County Council at fault for delays in responding to a section 42 safeguarding concern and for the way it communicated about the client’s charges

Decision date: 5/11/19

What happened

Mr D is an adult who suffers from schizophrenia and alcoholism.

He was living at home with his father, Mr B, who has dementia, and his mother, Mrs B, who was a full time carer for Mr B.

Mr D’s sister, Mrs C, contacted the Council in January 2018 with concerns about the risks that her brother posed to their parents when he was drinking. She told an Officer that her mother was unlikely to ‘open up’ in the assessment if it took place with Mr D in the house. Various other professionals (including the GP, Mental Health Service, Emergency Duty Service) also raised concerns about Mr D’s behaviour and the Council agreed to visit the home and undertake an assessment.

Mr D was arrested at the house in February but no charges were brought against him. The Council reassessed Mrs B’s needs as a carer for both Mr B and Mr D, but there were no changes from the previous assessment and Mrs B declined any support.

Mrs C got in touch with Council again in March to express her frustration at the lack of action. A section 42 safeguarding referral was made to the local Neighbourhood Support Team.

In late March, Mr D was arrested again at the house for being abusive to his parents. The section 42 planning meeting was held the same day and the safeguarding enquiry was closed with a review meeting scheduled for May.

The case was referred to the Multi Agency Risk Assessment Conference (MARAC) and after a discussion in April, the Council conducted a professionals’ meeting to manage the risks. It produced a safety plan which it sent to the police and to Mrs C.

Another incident occurred in April when Mr D’s parents had to leave their house as they were too scared of him to stay. The Council reported the incident to the police.

The Council completed another carer’s assessment for Mrs B in May as well as a core assessment for Mr D and for Mr B. Mrs B declined support once again and later that night Mr D was arrested for a Breach of the Peace. Mr D was arrested again in early June after getting drunk and aggressive and scaring his mother.

There was a review meeting in September where it was decided that the case would stay open as safeguarding.

Mrs C contacted the Council again in September to raise further concerns for the safety of her parents.

An officer from the Council called Mrs B and suggested she request her son to leave the house and that she change the locks. The Officer recorded Mrs B as exhausted and reaching crisis point and the Council was of the opinion that it was in Mr and Mrs B’s best interest to go into temporary respite care. Mrs B was keen and visited a potential care home within a couple of days. The case notes state that Mrs B was aware of the possibility she might have to fund her own placement and that she was happy to pay a charge. She was advised that the cost might need to be negotiated as she did not need any care herself.

Mrs B went to the care home the following day as she was too afraid to stay in the house with Mr D. Mr B refused to go with her and was found drinking alcohol with Mr D two days later when the Council visited the house. Mr B was persuaded to leave with the Council Officers for the care home where Mrs B had been staying.

An emergency residential respite service was arranged for four weeks. The Council intended to put safety measures in place for Mr and Mrs B and that Mr D would be made to vacate the property.

Mrs B was admitted to hospital a week later. The Officer visited her and recorded that she was worried about the cost of contributing to the care home. A financial assessment referral was made later that day.

Mr B went into the care home and a Senior Practitioner undertook a Mental Capacity Assessment (MCA) which found that he lacked capacity, and that it was in his best interests to remain there. Records show that the care home confirmed Mr and Mrs B were funded for a four week stay.

Mr D moved out of the house in October and Mrs B agreed to change the locks. A case record said that Mrs B had been advised of the minimum charge per week (£132 approx.) for staying at the care home. Mrs C said that her parents were told their respite care would be fully funded.

A best interests meeting was held for Mr B’s care planning at the end of October with Mrs B, Mrs C and Mr D all present. The Council recommended that the locks be changed and a fence panel be installed to prevent access from back of the property.

The Council did not co-ordinate the work that was to be done until two weeks later after struggling to find a suitable contractor. Mrs C expressed her concerns about the cost of the fence panel.

Mrs B contacted the Council in November after receiving the financial assessments outcome letter. She said that she would not have agreed to stay at the care home had she been properly informed of the Client Contribution of £138 approx.

The safeguarding enquiries were closed in January 2019. Mr B returned to the care home after a brief period at home. Mrs B sadly died in hospital at the end of March 2019.

Mrs C complained to the Ombudsman about the delays in the Council’s response to her original safeguarding referral and that it had not properly communicated with Mrs B about the Charges.

What was found

Client Contribution (CC)

There were several occasions where the Council discussed the CC with Mrs B and the Council claim that she was fully aware of it, and had even agreed to it. However, the Ombudsman could not find any evidence of a follow up in writing.

Despite how quickly the care home placement was arranged, the Council needed to have ensured that Mrs B fully understood the financial implications. There was evidence that she was finding it difficult to retain and understand the information. The Ombudsman found the Council at fault for the way it informed Mrs B of the CC as written confirmation would have set out the details clearly and avoided any confusion. However, most of the CC was incurred by Mr B, whose care needs were best met by the Council providing temporary respite care. As it is likely Mr B would have ended up in the care home, the Ombudsman did not consider that the parents suffered a financial loss as a result of the fault. However, Mrs B did suffer avoidable distress and uncertainty about the CC over several weeks, which amounts to injustice.

Safeguarding

It took the Council two months to instigate the section 42 safeguarding enquiries after Mrs C contacted it with her concerns. This is clear fault and not in line with the Care Act 2014. Furthermore, the delay left Mr and Mrs B in an environment where they were at risk of abuse which amounts to injustice. It is also evident that Mrs C suffered frustration at the lack of action from the Council in response to her concerns.

The Council missed an opportunity to take action to safeguard Mr and Mrs B when Mr D was arrested in February and Mrs B had asked for help. It took no action to support her and directed her to a separate department, meaning that Mr D returned to the house. The Council was found at fault for the resultant continuation of risk of abuse.

The Ombudsman felt that the Council demonstrated a lack of understanding of inter-familial domestic abuse. It did not properly consider the effect that Mr D’s presence had on Mrs B and her ability to express herself fully, given the situation. Had the Council responded to Mrs C’s concerns in a timely manner, it is likely that Mr and Mrs B would have been able to return home earlier. This and the period of distress that Mrs C suffered amounted to injustice.

Mrs C complained that Mrs B was known to have been reluctant to agree to the proposed safety measures (changing of the locks, fence panel) and that she had changed her mind after the work had been carried out and she had been charged. The Council was not at fault as Mrs B had asked for it to be done and was aware of the cost. However, there were delays in the Council’s response to Mrs B’s complaints.

Remedies

The Council has agreed it will

  • apologise for the delays in responding to Mrs C’s concerns and pay her £250
  • pay the outstanding invoice of £100 for the fence
  • review safeguarding adult procedures and consider if there is sufficient guidance for staff on Domestic Abuse
  • take action, by training or other means, to improve Adult Social Care staff’s knowledge and awareness of inter-familial domestic abuse
  • share the learning from this case with relevant Officers and demonstrate what it has done to improve its practice in this area.
  • review procedures to ensure it provides written details of what charges are likely to be made for care home placements.

Points for the council, public, families and service users

This sort of case could have been dealt with by means of the inherent jurisdiction based on the mother’s vulnerability, as opposed to her lack of capacity.

The Meyers case involved a man who was obliged by a court order to get his son out of the house before he could go back to his own home to re-take up his own occupation rights, because of the extent of the danger presented by his commitment to his own son.

Not all domestic violence is apt for safeguarding under s42, but in a situation where the victim’s needs for care and support (assessed or not, eligible or not) are such as to prevent them from protecting themselves, from the likely abuse or neglect, then the two areas of concern obviously intersect.

Charges for temporary respite are discretionary across all local authorities, with most charging a small amount. This scenario was not one where they needed respite, as such, to our minds; they needed productive police work, to deal with their son, or Mr D needed services in his own right, to keep a handle on the situation and the risk he was presenting, or suitable housing.

It is worth noting that the LGO refused to investigate the complaint that Mr D did not receive adequate support from mental health services; the reason was that he could complain in his own right.

The report reminds the public that in 2015 the Ombudsman issued a Focus Report ‘Counting the cost of care: the council’s role in informing public choices about care homes’.

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 DO safeguarding, please note. We provide advice about public law Care Act illegalities.

The full Local Government Ombudsman report on the actions of East Sussex County Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-000-641

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