Provider (commissioned by Bristol County Council) at fault for not following emergency procedure and failing to provide care for one night (relevant to Coronavirus scenarios)

Decision Date: 18th December 2019

What Happened

Mrs B complained on behalf of her husband, Mr B.

Mr B received three visits a day from care workers. The last visit of the day was scheduled at 9pm, to help him get ready for bed, which involved using a hoist to use the toilet. Mrs B could not help with those tasks as she herself had health problems.

Mr B started using the Care Provider (CP) on 30th January 2019. On Friday 1st Feb, there were heavy snowstorms which affected the CP’s ability to get to its customers.

The CP said that they rang Mrs B at 21.30 that night, to say that Mr B’s carer had broken down in the snow, so would be over an hour late. It provided a screen shot showing a call made to Mrs B’s number at 21:30 on 1 February 2019, lasting 13 minutes. The CP said Mrs B was very aggressive and upset, saying 11pm was too late and ‘hung up’.

Mr and Mrs B said they never received the phone call. Mrs B provided evidence that she called the CP’s emergency number at 21:52, 22:16, 22:31 and 22:32 (all lasting less than 1 minute).

After failing to get through to anyone from the CP, she called Bristol City Council’s main number and the emergency council number shortly afterwards at 22:23 to say Mr B’s morning and lunchtime visits were amalgamated into one and no-one had turned up for the evening visit. Mr B had not been to the toilet all day. He needed to be hoisted over the toilet and into bed.

The duty worker advised Mrs B to call the Care Provider’s out of hours number and call back if she couldn’t speak to anyone.

She rang back at 22:35 to say the out of hours number was switched off.

The duty worker also tried to get in contact with the CP, could not, so tried to arrange alternative care for Mr B. Nothing was available so advised her to ring 111. He wrote the following summary and referred the case to Mr B’s social worker to follow up.

“This lack of service is effectively an adult safeguarding issue in terms of care provider neglecting their responsibilities, leaving [Mr B] with no help with toileting and getting to bed. There has been no communication from the care agency, neither is there any facility for [Mr and Mrs B] to communicate their needs to the agency. Please can the s/w treat this as such and take safeguarding actions.”

The CP said it did not receive any voicemails from Mrs B, or the duty worker that night. It suggested that because of the snow storm, the on-call worker would have been taking calls and doing visits at the same time, so calls to the emergency number would have been transferred over to her mobile phone, possibly affecting the receipt of voicemails.

The Care Provider rang Mrs B back on Monday 4 February 2019. Mrs B said she had made several calls to the emergency number but no-one had got back to her. Mr B had not had a visit and sat in his wheelchair all night with wet clothing.

The Care Provider investigated the complaint; it found no problems with its telephones, and assumed that Mrs B did not want the visit because she had said ‘what’s the point’ and hung up, when the CP said they would be late to the 9pm visit.

Following this conclusion, came a long back and forth dispute between the CP and Mrs B over the phone calls. On the 4 March 2019 the CP repeated its findings and the LGO stated that the two parties ‘agreed to disagree’.

On 17 March 2019 the Care Provider gave Mrs B notice that it would be terminating its service on 16 April, as it had reports of Mrs B acting aggressively towards staff.

Mrs B denied this, and asked if the CP would consider. The CP declined, so Mrs B found an alternative agency, and complained to the LGO.

What was found

Missed appointment

The LGO stated that ‘Given the discrepancies in the call records provided by the Care Provider and the additional evidence from Bristol City Council I am unable to safely conclude that the Care Provider called Mrs B at 9.30pm to offer a visit.’

The provider’s evidence was that it made a call to Mrs B at 9.30pm on 1 February 2019 which lasted for 13 minutes. But a separate screenshot did not correlate with this call: it was taken half an hour later than the first one and shows a missed call from Mrs B’s number followed by two outgoing calls to her number on a Friday.

The first screenshot should show details of the missed incoming call from and the two outgoing calls, but it only shows one outgoing call at 9:30pm.

The second screenshot could well have been earlier in the day or from a different Friday – one could not tell for sure.

From the LGO’s perspective, this called into question the validity of the first screenshot.

This, coupled with the duty worker also being unable to get through to the out of hours number that evening led the LGO to its decision).

Despite the CP failing to offer a visit, Mrs B called the out of hours number four times, as did the duty worker. The CP’s failure to respond to those calls, whether a message was left or not, was fault which led to Mr B being left in an unacceptable state for a whole night.

Emergency Procedure

The Care Provider provided a copy of its emergency procedure. It covered bad weather situations and it required the Care Provider to inform customers that visits may be late due to bad weather. It also required it to have an out of hours emergency number. Given the failure to answer or respond to messages and calls on the emergency number the LGO concluded that its emergency procedure was not followed.

Given Mrs B’s disability, Mr B’s visit should have been assessed as a priority one. There was no evidence that it was.

The Care Provider had a reasonable amount of evidence from its staff of Mrs B being rude and aggressive. The Care Provider decided to give notice due to the impact of this behaviour on its staff. The LGSCO noted that the provider had explained its reasons, considered Mrs B’s response and gave her adequate time to find a replacement.

However, in recognition of the distress caused to Mr and Mr B by the failure to do the care visit, the LGO recommended the CP pay Mr and Mrs B £300.

Points for the Public, Service Users, Families and Councils

There is no detail in this report as to what the council’s own Safeguarding Team thought of this matter. Bristol was technically at fault however, because all statutory duties – even if contracted to outside providers, or delegated to outside providers, remain the responsibility of the public body. The duty is owed by the council to the client under the Care Act and is non-delegable.

The provider’s emergency plan was not a bad one, and it’s an interesting thought in light of the Coronavirus Act modifications to the duty to meet needs, when to do otherwise would be a breach of human rights.

Its own plan required the Care Provider to:

  1. monitor weather reports and if required check on the condition of vulnerable customers living in isolated locations;
  2. assess safety of staff;
  3. keep a list of all staff with 4WD vehicles;
  4. advise customers when appointments may be late due to conditions;
  5. borrow 4WD vehicles to reach cut-off customers who need assistance; and
  6. prioritise services according to a risk rating.

Priority level one customers include those who lived alone or who live with someone who is unable to assist in an emergency. This category was then prioritised according to the number of visits per day.

The plan gave a mobile number for out of hours emergency situations.

Let us assume that the Care Act has been suspended. The only people who are getting their needs met, under commissioning arrangements giving effect to the Care Plan, are people for whom an omission would count as a breach of human rights.

According to the LGO, this gentleman should have been counted as priority one.

If one asks oneself what that would mean, in a staff shortage situation where the backstop is human rights, one has to ask whether not being able to go to the toilet would be a breach of article 3 or article 8.

We have to say that it is not likely – for a one-off situation. It’s shocking, and it’s not desirable, or excusable, but a person competing for a carer, with a life-sustaining need, is going to be preferred, in an emergency.

But if it was not every now and then but systemic, because of an evening visit being cut out of the care plan, to free up services for someone else, because of the virus, the sector will be looking back to the Elaine McDonald case, where incontinence pads were not thought to be inadequate in terms of respect for her dignity and autonomy, by the Supreme Court (or the European Court of Human Rights)

Comparing that with Enfield v Barnard, in 2002 – is interesting – in which case a breach of article 8 was found to have occurred, and in which damages were awarded for a breach of statutory duty, in the context of community care:

Having referred to his back injury and to the tortuous route up steps and down steps to the bath and WC in the lean-to at the back of the house, [Mr Bernard] said this this:

“Because my wife is doubly incontinent and only gets, frequently, less than 1 minute warning of the need to use the toilet, she commonly defecates or urinates before we reach the toilet.

The result has been that I have had to persistently clean the carpets, together with her clothes and bedclothes.

This is a problem, which arises several times each day.

I have to go to the laundrette often twice a day, and because of the layout of the house, I have had to buy adult size nappies for my wife together with disposal pants and wipes…

We only have benefits to live on and the additional cost of going to the laundrette twice a day and having to buy large amounts of floor cleaner and carpet cleaner has left us impoverished. We have not been able to pay the difference between our Housing Benefit and rent because we are so impoverished by these laundrette and cleaning costs.

Additionally, my wife’s role in bringing up the children is greatly limited. She cannot access the upper part of the house at all and it is a real struggle for her to leave her bedroom, which is in fact, the family’s living room. She has no privacy. We have six children, and she is in the living room, which is accessed directly from the front, street door.

Understandably my wife finds this state of affairs depressing and demeaning. It is very humiliating for her to constantly defecate or urinate in her clothing, as she is unable to reach the toilet. This happens as a result of the layout of the house and because the house does not have proper adaptations for a disabled person.”

https://www.escr-net.org/sites/default/files/caselaw/full_judgment_2.pdf

The Court said this, using ECHR jurisprudence already established at that point.

“Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.”

In Price a severely disabled woman had been imprisoned for three nights for contempt of court. In paragraph 30 of its judgment, the court said: “There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3.”

It should be noted that in that case male officers had been required to assist in lifting the applicant on to and off the toilet, and that “by the time of her release the applicant had to be catheterised because of the lack of fluid intake, and problems in getting to the toilet had caused her to retain urine”.

Although not conclusive, the fact that there was no intention to humiliate or debase the claimants is a most important consideration. The cases concerned with prisoners’ rights, upon which the claimants placed great reliance, must be treated with great caution outside the prison gates. A prisoner is in a uniquely vulnerable position: detained against his will, he is literally at the mercy of the prison authorities. It is understandable that the protection afforded by Article 3 should be rigorously applied in such circumstances, even if there is no intention to humiliate or debase.

By contrast the case under Article 8 is not finely balanced. Under Article 8 the claimants are entitled to respect for their “private and family life.” While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private or family life… In Botta v Italy [1998] 26 EHRR 241, the court said this in paragraphs 32 to 34:

“Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the state to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.

… I accept the defendant’s submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of Article 8. Respect for private and family life does not require the state to provide every one of its citizens with a house: see the decision of Jackson J in Morris v LB Newham [2002] EWHC 1262 (Admin) paragraphs 59 to 62. However, those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act.

Whether the breach of statutory duty has also resulted in an infringement of the claimants’ Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?

Following the assessments in September 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants’ family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities.

Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after their children. It would also have secured her “physical and psychological integrity”. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.

The Council’s failure to act on the September 2000 assessments showed a singular lack of respect for the claimants’ private and family life. It condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Article 8.

Accordingly, I have no doubt that the defendant was not merely in breach of its statutory duty under the 1948 Act. Its failure to act on the September 2000 assessments over a period of 20 months was also incompatible with the claimants’ rights under Article 8 of the Convention.”

In my experience in this court, dealing with a wide range of complaints against public authorities, most citizens who have suffered as a result of some bureaucratic error are not motivated, or at least not primarily motivated, by a desire for monetary compensation.

They institute proceedings because they feel outraged by what they see as an injustice and want “them”, the faceless persons in an apparently insensitive, unresponsive and impenetrable bureaucratic labyrinth, to acknowledge that something has gone wrong, to provide them with an explanation, an apology and an assurance that steps have been taken to ensure (so far as possible in an imperfect world) that the same mistake will not happen again. This assurance will at least give them the satisfaction of knowing that they have not suffered in vain.

If a public body takes all of those steps reasonably promptly, once the problem has been drawn to its attention, then it may well be the case that nothing more is required by way of monetary compensation in order to afford “just satisfaction” in very many cases.

Sadly, that is not the position in the present case. The defendants were repeatedly urged by the claimants’ solicitors to take action in numerous letters written between August 2001 and February 2002; most of those letters were simply ignored.

Through Counsel, the defendant agreed to the making of a mandatory order on 27th March 2002, but there has been no acknowledgment that the defendant was in error, no explanation, no apology, and nothing to indicate that the defendant’s procedures have been improved so that the same kind of mistake, the Housing Department failing to act on Social Services Department assessments, is less likely to occur in the future. Moreover, the defendant’s conduct in dealing with the matter was not confined to mere inaction. In February 2002 the Housing Department threatened to evict the claimants. The threat was soon withdrawn, but it should never have been made had there been proper liaison between the defendant’s Housing and Social Services Departments. After 27th March 2002 the defendant failed to comply with the original and then with the extended timescales set by the court. There may well have been a reasonable explanation but, again, there has been no apology or explanation, and the apparent delays were compounded by the defendant’s insistence, maintained until the 11th hour, that the offer of 66 Mitchell Road had discharged its statutory duty.”

“The parties had not considered the two other possible sources of information: the reports of the Local Government Ombudsman and the awards for pain and suffering in cases of minor personal injury. I invited them to make written submissions dealing with these matters, and I am most grateful for their very helpful responses. Mr Clayton referred to a number of decisions by the Local Government Ombudsman, recommending awards between (at current values) £16,530 and £2,120 for various failures in the field of social services: to provide care for a child with severe learning difficulties, to provide home care assistance for a mother with multiple disabilities, to provide a residential placement for a young man with learning disabilities, to provide a residential care home for an elderly lady, and adequate care at a multi-purpose day centre for a young man with sensory impairment. In all of these cases, the families who acted as carers suffered varying degrees of stress, exhaustion, anxiety and disruption to their lives. At the bottom end of the scale, a mere failure to recognise a carer’s needs merited an award of £2,000. Non-provision of services for a relatively short period of time can result in a substantial award (£5,000 for 11 months of stress and exhaustion). At the top end of the scale, in cases where there is a great deal of anxiety and disruption or extreme stress, significantly more has been recommended (£10,900). The highest recommended award (£16,350 at current values) included a significant element of pecuniary loss. The complainant had been unable to find a suitable job because of her care commitments, had sought medical treatment for depression, had exhausted her substantial savings and was reduced to living on income support, her previous standard of living having disappeared.”

It is very much in the interests of society as a whole that public authorities should be encouraged to respect individual’s rights under the Convention. A “restrained” or “moderate” approach to quantum will provide the necessary degree of encouragement whilst not unduly depleting the funds available to the defendant for the benefit of others in need of care.

For all these reasons, I am satisfied that the award to the claimants should be at the very top of the £5,000 to £10,000 range identified above.

Although there are two claimants it is important to avoid double counting, and since these damages are intended to give them just satisfaction for a breach of their Article 8 rights, it is sensible to start off with an overall figure to reflect the impact of the breach on their family life together, and then to apportion that figure between the two claimants having regard to the relative effects on their private lives.

Bearing all these factors in mind, I conclude that the appropriate figure is £10,000, and I apportion that £8,000 to the second claimant and £2,000 to the first claimant.”

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The full Local Government Ombudsman report can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-019-660

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