Decision date: 04/03/20
Ms G is on the autistic spectrum and suffers from a number of physical and mental conditions including severe anxiety disorder, depressive disorder, hypertension and severe chronic pain. She is unable to understand or communicate information effectively due to difficulties in sensory processing.
Ms G was treated for a number of years by a psychiatric consultant, Dr J. He wrote to City of Bradford Metropolitan District Council in 2013 to explain her need for formal social care support and to request that he be the one to assess her needs as they had formed a strong relationship over the years and he believed that it would help to speed up the process. This was agreed by the Service Manager and the completed assessment was considered by the Council at a panel meeting in June 2014.
The panel said that a direct payment would be the best way for Ms G to access support.
The Direct Payments team requested a copy of the referral form and a support plan from the Service Manager and Dr J promptly completed this with Ms G. The plan included support with organising daily tasks and access to mainstream services but lacked a figure for the number of hours required.
Dr J contacted the Service Manager in October as no support had been implemented and this was having an adverse effect on Ms G’s already severe anxiety. The Service Manager’s response declared the plan “completely unrealistic” and brought up the need for a financial assessment. Dr J emailed the Service Manager in December with a letter from Ms G which set out her social care needs. The Service Manager acknowledged receipt of the letter but nothing came of it.
In February 2015, Dr J got in touch with the Service Manager again and said that Ms G would like to meet in order to get things sorted. A meeting was arranged in May between Ms G, Dr J and representatives of the Council, in which handwritten notes were added to Ms G’s support plan.
Dr J emailed the Service Manager in June to request an interim payment for respite care while the matter was being resolved. He said that the delay in concluding the needs assessment / care planning process was having significant impacts on Ms G’s mental health.
The Service Manager’s reply claimed that the delay was due to the fact that it was senior managers who were dealing with her support planning and that they had other priorities. It went on to say that Ms G was eligible for support, that she would need a support worker with expertise in ASD and that the Council would agree to provide respite care through a family carer or Shared Lives.
In response, Dr J explained that these options of respite care were likely to be unsuitable for Ms G due to her difficulties in dealing with new people and environments. Dr J requested a confirmation letter that would set out what services would be provided to Ms G but the Service Manager never sent one, despite being chased up a number of times. Instead, he the Service manager said he was drafting a response letter written to the local MP about the concerns raised by Ms G.
The response to the MP accepted that the Council had delayed providing formal support to Ms G and gave several excuses which centred around the restrictions on the process caused by Ms G’s inability to communicate. It also said that the Council was willing to try a different approach that involved using an individual budget to help build a relationship between Ms G and a support worker.
Dr J wrote to the MP in September 2015 disputing the Service Manager’s assessment of Ms G as “hard to communicate with and having a difficult personality”. He said that the delays were due to the busy schedule of the Service Manager but that it had been agreed that the support plan would be backdated to the date when the panel had met in June 2014.
Following communications in 2016 and a complaint from Ms G, the Council initiated an investigation about the delay. The Assistant Director wrote to Ms G to apologise and to explain what the Council were prepared to fund. This included:
- £505 weekly for organising daily life and support with accessing mainstream services
- £750 per session for 10 sessions from a professional mentor, one day a week
- £800 per year for 2 days’ respite care every 3 months
- £400 per year for an activity break
The Council said that these funds would become available upon reaching an agreement on the management of them. There were several other areas of support listed on the plan which were not included in the letter. All of these items had “not at this point” marked next to them on the plan.
Ms G wrote to the Chief Executive of the Council in January 2017 to say that she had requested an emergency payment in order to get help with the preparation for the financial assessment but had never received a reply. She said that this had obstructed her access to social care.
The Council’s own complaint investigation concluded that there had been maladministration in Ms G’s needs assessment and that there had been comments in letters from the Council that were insensitive to her disability. The Council arranged a meeting for June to discuss the outcome of the investigation but claimed it did not receive a response to the offer. There is no evidence of any further action or review by the Council.
It’s not clear whether she got the offer, and didn’t reply and didn’t chase, however.
What was found
Documentary evidence showed that the Council had agreed to some of the support listed on the plan that Dr J had completed with Ms G. The Council claimed that the support offered was subject to the completion of the financial assessment and said that the Service Manager had withdrawn the offer as Ms G had refused to co-operate. There was no evidence to show how the Council made this decision and no evidence that it had explained the decision to either Ms G or Dr J. It never paid her a personal budget and this was fault; it never responded to her requests for an emergency payment to help fund some advice about that. There is no duty to provide that sort of help but not replying meant that she was simply paralysed by the matter being left in limbo.
The Council was found at fault for not providing Ms G with support since June 2014. The Council also failed to review Ms G’s needs annually, in line with the Care Act 2014.
The Council often blamed Ms G’s poor communication for the delays in providing her with support, when it was aware from the outset that it was extremely difficult for her due to her conditions. It failed to provide her with independent advocacy during the support planning process and this contributed to the delay.
The Ombudsman has not been provided with any documentary evidence that the Council agreed any reasonable adjustments with Ms G during her needs assessment, contrary to the Equality Act 2010.
There was fault in failing to ever reconsider the aspects of the support plan marked “not at this point” which caused Ms G uncertainty. Ms G said she had always wanted to return to work and the Ombudsman found on balance that had support been provided earlier, it would have likely alleviated some of her symptoms and she may well have been able to do that.
The Council was aware of the injustice it caused Ms G but had not even now tried to complete the support planning process, meaning that the injustice caused to her is ongoing.
City of Bradford Metropolitan District Council has agreed that within four weeks, it will:
- Apologise to Ms G by letter from a senior officer
- Pay Ms G £60,000 in recognition of its failure to provide her with the support that it had itself assessed her as requiring. The sum has been calculated as £1,000 per month for the 5 years she was left without support, based on the severe problems that she has faced over this period.
- Discuss with Ms G and her representative about the likelihood of the aforementioned payment affecting her entitlement to benefits. If necessary, the Council will also pay for an independent financial advisor.
And within 2 months, it will:
- Provide an action plan to the Ombudsman
- Ensure Ms G has access to a suitable independent advocate
- Ensure that all relevant documentation is shared with both Ms G and her representative
- Determine how to implement Ms G’s care package based on the last assessment
- Confirm its decisions to the parts of the support plan which were deferred and remedy any injustices caused by the delay
- Appoint a suitable person to review Ms G’s needs in line with the Care Act 2014, without delaying any implementation of a care package for her
- Consider the need to train its staff responsible for care and support planning around autism and the duty to make reasonable adjustments
- Consider its policies regarding people on the autistic spectrum and whether they are in line with best practice
Points for the public, service users, family and peer supporters, advocates and councils, complaints officers etc
This report is testament to the value of the LGSCO in a world in which nobody can guarantee getting to the Administrative Court for enforcing one’s rights.
One might congratulate the doctor on seeing this matter through, but it would have been much less time in the resolving if he had known how to get some help on the mandatory nature of public law duties in the social services arena. Ditto if she had been given an independent advocate, or had known about the Monitoring Officer function (governance, for contravention of enactments or rules of law).
It was not legal to delegate assessment in a finite way before the Care Act and it is not clear whether the council thought it was really agreeing that the doctor could ‘do’ the assessment or support Ms G in putting together a supported self assessment that was a wish list or starting position. However, the LGO took the view that no point had ever been taken about that and the council was entitled to do the latter, even under the old law – have help in fact gathering. If one is going to provide support it helps to know about the Care Act, and the LGSCO says that the doctor should have been provided with more support to achieve a good assessment.
This is not a report where the LGO investigator says that much about what is illegal in this saga, so we though we’d set it out here, for clarity’s sake:
It is unlawful to
- Start an assessment and not finish one for an unconscionably long time
- Start an assessment without providing information about it and the process, first, in accordance with the statutory Guidance, if there’s no good reason not to follow this Guidance
- Fail to provide a competent assessor when a person has a set of complex conditions
- Blame the client for communication failures when there is a reasonable likelihood that they are part of the person’s condition
- Start an assessment without an independent advocate when it must have been obvious that this woman would have substantial difficulty in engaging with the process
- Make care planning dependent on financial assessment (the LGO investigator omitted to criticise that approach but it is well established as unlawful by case law)
- Take financial means into account in relation to care planning
- Fail to make arrangements within a reasonable time to meet ANY of the assessed eligible needs, in an appropriate manner, and to a rationally sufficient extent – to reduce the impact of a person’s deficits to something less than significant, as a minimum
- Fail to seek agreement by means of all reasonable steps after care planning to the signing off of a care plan
Restitution of £60K
Financial redress is recommended in part by the LGSCO when a person has suffered harm – as compensation for maladministration rather than damages.
In this case the amount she had lost out on was not £1000 a month in lost services, but more like about £700 a week in lost services, which over 5 years would have been even more than was recommended. So the rounding down to £1000 a month might be compensation for harm. However, restitution was particularly appropriate in this case for the LGSCO to award, by way of recommendation because the decision that her needs required at least 34 hours a week (spreading out the lump sums into weekly amounts) had already been made.
Normally in the face of an unlawful decision, the LGO will be loath to be seen to be trying to work out what the council would have awarded by way of a budget if it had not been infected by the sort of insensitive, cynical and high-handed managerial behaviour here described, but in a case where there is no need, there can be no justification for not awarding financial redress: restitution is based on unjust enrichment on the part of the council in not having had to spend the money that the law required it to (see CP v NE Lincs, 2019, Court of Appeal).
“Based on the evidence available, I find the Council accepted as valid both the assessment from Dr J and some of the subsequent support plan. The Council has not provided Ms G with any support since it assessed her needs in June 2014. This is fault.”
The investigator specifically refused to allocate a value to the parts of the care plan that the council had deferred, without considering whether it was unlawful to do that, for such a very long time, without following up at all. “Not at this time” is not a reason for saying no, and it is not clear whether the needs were regarded as ineligible or that the way of meeting them proposed was considered to be not cost-effective.
Some information referred to Ms G as ‘saying’ she had a disorder or ‘she feels she has’ a disorder despite Dr J confirming Ms G’s diagnoses and associated disorders. The Council should have accepted this or been explicit about not doing so if it had reason to doubt this diagnosis; it is simply prejudice to write up a file in that way.
The most frustrating thing about this decision is that one gets no flavour at all from the report of the council’s excuses or its own perception as to how Ms G’s treatment at its staff’s hands did not merit more than an apology. Legal literacy matters in adult social care – operationally and strategically, and one wonders why the complaint did not reach the attention of the legal department or Monitoring Officer.
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The full Local Government Ombudsman report on the actions of City of Bradford Metropolitan District Council can be found here: