Warwickshire County Council at fault for the quality of care it commissioned

Decision date: 18/12/19

What happened

Mr and Mrs B complained to the Ombudsman about the care provided to their adult daughter, Ms X.

Ms X is disabled and non-verbal, and suffered a fall at a Mencap care home in Warwickshire during a stay of respite care. There was an assessed need for 84 days of respite care per year.

In October 2017, she fell whilst being supported in the shower by two carers. The shower chair that she had been sitting on had not been assembled properly and collapsed. The carers present had not been following Ms X’s care plan sufficiently and were ultimately to blame for the incident.

The care home investigated the incident but did not identify the fault until Mr and Mrs B voiced concerns. A senior member of staff wrote to them in December to accept responsibility for the original incident and to apologise for the subsequent investigation. It also apologised for the care provided to Ms X after the incident and for the way in which staff had communicated with Mr and Mrs B.

Then, almost a year later, the manager at the care home declared that Ms X could not use her usual bed as it had been deemed unsuitable. Mr and Mrs B complained about this to the Council, who agreed the situation had not been handled properly. They complained to the Ombudsman who referred it back to the Council. Mr and Mrs B complained again to the Ombudsman after an unsatisfactory response from the Council.

What was found

The care provided at the care home was commissioned by the Council and the Council therefore must bear responsibility for any faults found with it.

The care home confirmed that its staff were not following Ms X’s care plan and that this had directly led to her falling in the shower. It also said that its staff had failed to assess Ms X’s well-being sufficiently in the week after the incident. Staff were found to have made assumptions about why Ms X was upset, without seeking guidance.

Mr and Mrs B were very worried as Ms X had not been known to cry previously, but had done so when their son had visited. They believed she may have been in pain from the accident and the Ombudsman agreed.

They did not feel as though the Council had ever shown that it had taken steps to ensure similar incidents could not happen again at the care home. The Council said that Mencap have appointed a new manager, recruited a care coordinator and undertaken a number of training sessions with staff. The care home said that it has introduced observational assessments of staff to be carried out after any training, which should ensure learning outcomes can be practically applied.

Mr and Mrs B had not benefited from any respite care since the incident as they felt unable to use the care home.

The Ombudsman recognised that Mr and Mrs B suffered a loss in confidence, both because of the initial fall and because of the way in which it was investigated. However, the Council was considered to have ensured that care provided by the care home following Ms X’s fall was adequate. This amounted to ensuring that respite provision was in fact available – meeting Ms X’s assessed needs, which is all that it the council can be required to do by law regardless of how Mr and Mrs B feel about the provider.

The Council had since found a residential care provider that it believes could meet Ms X’s needs. However, it is nearly 40 miles away and Mr and Mrs B feel that is too far to be suitable.

There was doubtless fault in the way in which the care provider handled the issue about the bed and the effects that this had had on Mr and Mrs B. However this was in itself insignificant as they were unwilling to use the respite provision by this stage.

The parents requested some financial compensation for respite care that they have missed due to not feeling able to use the available provider. The Ombudsman considered the initial response to Ms X’s fall directly affected Mr and Mrs B’s confidence in the provider. However, the care home responded adequately in December, providing a sufficient basis for resuming care. Therefore, the Ombudsman declared Mr and Mrs B were left without respite care available to them for the 12 weeks between 10 October and 31 December 2017.

Remedies

The Ombudsman has recommended the Council, within one month:

  • Pay Ms X, Mr B and Mrs B £250 each for the injustices caused to them
  • Pay Mr and Mrs B a sum equivalent to the cost of the respite care that they have missed out on. This was calculated as such: 84 days a year is 1.6 days a week. They were deemed without available respite care for 12 weeks and so should be paid the cost of 12 X 1.6 = 19 days’ worth of respite care.

Points for the public

The report is another example of the non-delegable nature of the duty to meet needs appropriately and adequately. The fact that a contract between the council and the provider is the basis for the delivery of the services to meet assessed needs does not mean that the client has no rights against the council in public law. That is a public function and whether or not the provider is merely a contractor or regarded as a delegate of the council, the council continues to remain responsible for the discharge of the function.

The question of NEGLIGENCE is a separate thing: a provider owes a duty OF CARE directly to the client.

It is unclear why the rate being paid back for the unavailability of respite should have been the cost of the respite service, when a more obvious basis for compensation using legal principle would have been a reasonable rate for the care that they had to provide for those 19 days when respite should have been paid for.

The report illustrates that it is very much a matter of nuance whether a relative’s dissatisfaction with a provider amounts to sufficient evidence of unsuitability such that alternative suitable arrangements have to be made, or a position that signifies nothing with regard to the question whether the client’s care package should be regarded as having to change. Loss of confidence is one thing, but entrenchment against a provider who has genuinely attempted to do better, is another thing.

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

https://www.lgo.org.uk/decisions/adult-care-services/other/18-014-148