Norfolk County Council found at fault for failing to meet assessed eligible needs with a care plan that stepped up once a carer (both paid and unpaid) had refused to do any more – and now making restitution for that wrongdoing

Decision date: 24/1/20

What happened

Mr Y shared a house with his friend and carer, Ms X, who was also his Power of Attorney holder for health and welfare decisions. He suffered from numerous health conditions, incontinence and Dementia.

Ms X contacted Norfolk Council in April 2018 to get Mr Y’s needs reassessed. A social worker subsequently visited and produced a care and support plan.

This included a budget of 3 weeks’ respite a year for Ms X as Mr Y’s carer and 27 hours per week to pay her as Mr Y’s PA (Personal Assistant). A sitting service started in September giving Ms X two 8-hour days off a week.

She asked for another reassessment in December 2018 after Mr Y’s condition had worsened as she was finding herself unable to cope with his care needs. She also had her own personal health problems with her heart and high blood pressure. The social worker visited again and Mr Y agreed to go into respite stay in order for Ms X to have a break as his carer.

In January 2019, the Council changed Mr Y’s package to reflect the assessment, using contracted care to provide more support. It reduced Ms X’s paid PA hours from 27 to 22 and gave notice to the sitting service agency.

Care workers were supposed to visit the home:

  • 30 mins in the morning, 5 mornings a week
  • 45 mins the other 2 days to enable the carers to help Mr Y shower
  • 30 mins in the evening, 7 days a week

However, the Council was unable to source a provider for any of the above. It offered to assess Mr Y for residential care in response to Ms X’s concerns about the lack of support, which she refused.

The Council’s own reablement team said in late January that it could provide the morning and evening care visits. The team began visiting and providing care and reported that Mr Y had high level care needs.

His needs were then reassessed due to an increasing rate in his health deterioration. Ms X asked if the 2 days’ sitting service could be continued as she felt it was effective and there was a carer who Mr Y was familiar with. She asked again about a respite stay. The needs assessment stated that Mr Y did not want to live in residential care permanently.

The social worker recommended a care and support plan to the Council’s Funding Panel which included

  • a continuation of the two day 8-hour sitting service
  • one night sitting session a week
  • 40.5 hours direct payments per week for Ms X as Mr Y’s PA.
  • Four weeks’ intermittent respite

Ms X asked the Council again about a respite stay so she could have a break. The Council told her that it could organise a respite stay but that the visits provided by the reablement team would be discontinued if it did. Ms X felt that she needed a break and so contacted a potential care home and the Council, who arranged for Mr Y to stay for three weeks as part of his care package. The Council’s reablement team confirmed that it would not be providing the morning and evening visits upon his return home. Ms X agreed for Mr Y to return home after the three weeks and sought confirmation from the Council about the two day sitting service. She became concerned with the quality of the care being provided at the home and picked Mr Y up 6 days early. She needed help to get Mr Y in the car and this was facilitated by a worker from the sitting service which was still running at the time.

The Funding Panel declined the social worker’s proposed care package for Mr Y ‘due to the very high cost of the proposal. Alternatives need to be considered by [Mr Y] which would meet his care needs but at a lower cost’. The social worker arranged a meeting with their manager and proposed an alternative package for the meantime.

Ms X contacted the Council to request a full and proper re-assessment of Mr Y’s needs as well as a proposal of how it planned to meet them. The Council suggested returning to the care plan arranged for Mr Y in January or that he should go into residential care as it was a more cost-effective way of meeting his needs.

Ms X had still not heard anything back from the manager about the plan by March, when Mr Y was admitted to hospital following a fall. She raised her concerns with the Council who responded that the cost calculations for the proposed plan were very high and that a social worker would be in touch.

The Social worker contacted Ms X a couple of days later to say that the Council had agreed to three 8-hour days of the sitting service as interim care, along with 7 hours’ direct payments for her as Mr Y’s P.A.

Ms X asked the Council to continue paying her the 22 hours direct payment until it had secured other support. It said it was aware of Mr Y’s changing needs and arranged for a social worker to discuss the available options.

Mr Y was deemed fit for discharge from hospital at the end of March but had no formal care package in place. An Occupational Therapist (OT) declared that Mr Y needed a minimum of four care calls a day as well as two carers to help him transfer from bed to chair, one of whom needed to be experienced.

This was referred to the Council’s reablement team who refused to provide the support.

Ms X resigned as Mr Y’s PA in early April, telling the Council that she was no longer happy to provide the level of support she had been doing so previously.

She discussed Mr Y’s support needs with a social worker who proposed a 7-day sitting service with 9 hours a day.

The Council declined this proposal and asked the social worker to look through other options, including residential care.

Ms X did not believe that residential care would meet Mr Y’s needs and refused the social worker’s suggestion of a short term care bed. She asked when the three days a week sitting service would resume as had been previously agreed by the Council.

Ms X informed the social worker that a carer who was well known to Mr Y from the sitting service agency could provide a day time sitting service three days a week. She also said that she had arranged other support for the mornings and evenings not covered by the service.

The social worker passed this on to the Council’s brokerage team who refused to enter into a contract with the sitting service agency due to quality issues. It identified a different agency that could provide the three days a week sitting service it had agreed to fund back in March, but was still unable to source a provider to support with the daily care visits. Ms X asked the social worker to find out how long it would take to resolve these issues. She then told the social worker that she had agreed to pay privately for the specific carer to provide care for Mr Y four days a week as she hoped that the situation between the Council and the sitting service agency would be resolved promptly and that Mr Y would find it difficult to adjust to new carers. She confirmed that it wasn’t to be a permanent solution and that they would use another agency if the Council decided never to employ the previous one again.

In April, Mr Y was discharged from hospital. This was 2 and a half weeks after he was declared fit to leave. When Mr Y did return home, Ms X was receiving direct payments for 22 hours per week as Mr Y’s PA.

However, not a single other provision set out in the January care plan was being met. She complained to the Council and met with a senior manager to discuss ideas. The notes from the meeting record that the Council had financial limitations and had to consider the costs. The manager agreed to look into a proposed plan of 5 days’ a week sitting service + 7 hours’ direct payments for Ms X.

The Council contacted Ms X to arrange a financial assessment for Mr Y’s respite care stay. She claimed that this was the first time she was told that the charge for respite would be different to Mr Y’s weekly contribution to his care costs. The bill arrived at the end of May and was for £500.

A new social worker met with the privately paid carer, Ms X and Mr Y to reassess his needs. They proposed a plan including 7 days a week sitting service to the Funding Panel and identified a new agency that could provide the service. The Panel deferred the case in June, essentially asking the social worker to find a way to meet Mr Y’s needs at a lower cost.

Mr Y’s condition continued to worsen. Ms X acted reluctantly as his informal carer as the Council were still not providing any support. The social worker proposed four days’ sitting service and four one-hour long blocks on the other three days. Ms X accepted the proposal out of desperation, stating, “I am not happy about being manipulated to accept a plan that does not meet [Mr Y’s] needs without a huge input from myself”.

The social worker emailed a manager for advice on increasing Mr Y’s care in the short term. The manager replied, explaining the process: “What cannot happen is that we continue to allow the needs to be met by a combination of an informal carer who is stating they do not want to continue providing care, and agency care which is being commissioned and paid for by the carer or the person themselves. From our conversation and my review of the record, it seems we are way outside Care Act compliance in this case and need to take urgent steps to regularise the situation pending further investigation into how the person’s needs should be met in the long term”.

By mid June, Mr Y became difficult to feed as his health continued to decline. The Council finally approved a seven day 8-hour sitting service and set up the agency previously identified by the social worker to begin providing support the next day.

By late June, Ms X told the Council that Mr Y had only three to four days left to live. It advised her to contact its duty team if she needed overnight support. She got in touch with the team but it was only available for one night.

Mr Y sadly died in late June, 2019.

What was found

Following Mr Y’s stay in hospital, the Council provided zero support to Ms X or Mr Y. The only care he received was that which was paid for privately.

The Ombudsman found Norfolk County Council at fault for failing to meet Mr Y’s eligible care needs and for not producing a care and support plan to facilitate this. Not once did Mr Y receive the agreed night sitting service and this is fault which amounts to injustice.

The Council had agreed to reinstate the sitting service in March but then decided not to use the agency due to quality concerns. There was no fault found with this decision. However, the Council did fail to consider other ways in which it could meet this care need. It also failed to communicate with Ms X about whether it thought it could solve the issues with the agency.

During the time period, the Council was repeatedly advised to increase the level of support that Mr Y was receiving and it continually declined or deferred decisions based on the cost of the care. The Council is perfectly entitled to consider cost when making decisions, but it was unable to suggest a more cost-effective alternative. This is fault and resulted in Mr Y receiving less care than he needed.

The reablement team declined to resume responsibility for the morning and evening visits following Mr Y’s stay in respite care, despite being able to do so. The Council could not source a provider for these visits and was found at fault for not providing the care it had assessed was needed. There was also no formal care provision in place upon Mr Y leaving respite in February.

The Ombudsman noted the difficulty in attributing any part of Mr Y’s fall in March to a lack of support from the Council. However, it did leave Ms X with a sense of uncertainty about whether it could have been avoided.

Ms X received payment as Mr Y’s PA until April 2019 but was required to provide support far beyond what was paid for.

When she resigned, she made it clear to the Council the amount of care she was willing to provide as Mr Y’s friend. The Council did not ensure that she had the support she needed and made numerous assumptions about the support she would provide. This is fault. There is no evidence that the Council undertook a separate carer’s assessment for Ms X.

The Council knew and accepted in its own records that it was failing to comply with the Care Act 2014. It was therefore found at fault for failing to support Ms X as Mr Y’s carer and to supply him with an adequate care package.

The Council was not found at fault for the way that it calculated Mr Y’s contribution to the cost of the respite stay. However, it did not explain to either Mr Y or Ms X that there would be extra charges. This resulted in Ms X being sent a large and unexpected bill which caused her distress.

The Council caused Mr Y a financial injustice as he had to pay for private care to meet his needs. However, the majority of his needs were met by Ms X and so he did not suffer major injustice.

On the other hand, the Council’s actions caused Ms X a great deal of distress and confusion. She said that the relationship between herself and Mr Y had been ruined through the process.

Remedies

The Council agreed it will:

  • Apologise to Ms X for the distress it caused her and for failing to explain how the respite care cost was to be calculated.
  • Pay her £2,000 in recognition of the unpaid care she administered.
  • Refund Mr Y’s estate the cost of the care that was paid for privately from April to June 2019 (estimated at around £4,000) on receipt of evidence of the costs
  • Review its procedures to ensure carers’ assessments are offered separately and that the outcome is recorded.
  • Amend current procedure to ensure it is clear that current needs must be met whilst the Funding Panel makes decisions on proposed care packages.

Points for the public, service users, families, council and advocates

This could not be a clearer report for bringing out the link between law and LGSCO’s attitude to fault.

Not only is the LGSCO able to say what the law is, and thus what it is maladministration not to KNOW and stick to in the discharge of public functions – but also the LGO is able to expose the fact that the council’s officers knew that they were not acting in compliance with the Act.

Every aspect of the investigation calls out that it knew that it was acting unlawfully. It failed to give any weight at all to the unwillingness of the carer to carry on at the earlier level; it failed to provide an interim package for what was not in dispute; it left assessed eligible unmet needs, unmet and it allowed financial considerations to convince itself that the duty to meet need is really just an optional discretion.

We are not at all surprised that restitution (following the principles in the CP v NE Lincs decision in the Court of Appeal case) was recommended, to both the carer and the man’s estate, but in this case we would go further. We do not know why this is not evidence of misfeasance in public office – the knowing breach of the law by public officers, compensable in financial damages, and not able to be insured against.

If anyone from the council would care to reply, so that fairness is seen to be done, please do so on belinda@cascaidr.org.uk.

Here is a legal article from 2016 by Mark Aronson to consider:

http://www.lawcom.gov.uk/app/uploads/2016/01/apb_tort.pdf

“The tort of misfeasance in public office represents a “safety net” adjustment to that position, (that public law does not sound in damages) by allowing damages where the public defendant’s unlawfulness is grossly culpable at a moral level.

Briefly, misfeasance in public office is a tort remedy for harm caused by acts or omissions that amounted to:

1. an abuse of public power or authority;

2. by a public officer;

3. who either

a. knew that he or she was abusing their public power or authority, or

b. was recklessly indifferent as to the limits to or restraints upon their public power or authority;

4. and who acted or omitted to act

a. with either the intention of harming the claimant (so-called “targeted malice”), or

b. with the knowledge of the probability of harming the claimant, or

c. with a conscious and reckless indifference to the probability of harming the claimant.”

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 on the actions of Norfolk County Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-258