Gloucestershire County Council at fault for discontinuing support and for delaying reassessment

Decision date: 27/01/20

What happened

Mr X has learning disabilities and was previously provided with a 7 hour per week care package from Gloucestershire County Council that facilitated his independent living. The privatecare agency that supported him resigned in November 2017.

The Council then instructed its Reablement team to observe Mr X and to feed information into the pending reassessment of his care needs.

A worker spent 30 minutes on this observation for a total of 6 times over 3 weeks before the reassessment took place in the beginning of 2018.

Mr X’s mother said that the assessment was intimidating and unprofessional.

The assessment was completed in March 2018 and the council allocated 2.5 hours of support per week to Mr X (a 5 hour drop, per week). Furthermore, the 5 areas of needs in which he had been found to have eligible levels of deficit and impact on his previous assessment were cut to 2.

Mr X’s sister, Mrs D, complained about the reduction in support. She believed that her brother had been coping solely due to the support given by family members. The Care Act guidance requires that that input is ignored for the purposes of assessment.

The Council responded in October, agreeing to undertake another reassessment with a different social worker. These were not completed until January 2019.

Mrs D complained about the delay and general process, and requested the Council reimburse her for the costs of care that she had been providing her brother in the meantime. The Council apologised for the delay but failed to mention the reimbursement.

The new assessment was completed in April 2019, identified that Mr X had 1 extra eligible area of needs and proposed he receive 3.5 hours support per week. Despite the fact that Mrs D agreed with the needs assessment, she still believed the hours of support to be insufficient.

Mrs D complained to the Ombudsman after she had reached an impasse with the Council.

What was found

The Council undertook 2 assessments of Mr X’s needs, the second one at the behest of Mrs D. These assessments differed in the areas of eligible needs and in the proposed hours of support per week. As there is no evidence to suggest Mr X’s need had changed at all between assessments, the first one (and its resultant offer of 2.5 hours per week) must have been wrong. This was fault.

At the time of the previous care provider’s resignation, Mr X had been assessed as needing 7 hours of support per week. The Council had a duty to carry on providing this until a new care plan was confirmed after due process; it was fault not to. Any reduction in support should occur after reassessing needs and confirming a new plan. The Council should have provided Mr X with the correct hours of support at least until August 2018 when the new level of support was proposed. The fact that they didn’t left Mr X without support and left Mrs D as his informal carer for almost a year.

Then, when it offered 2.5 hours of support per week in August, the Council claimed that it did not start providing the care because the family refused it. The Ombudsman believed on balance that Mrs D had refused the offer. However, case records showed that it wasn’t actually offered to Mrs D until October 2018.

The Council was at fault for the lengthy amount of time it took to complete each assessment. The impact of the delays was compounded by the Council’s discontinuation of Mr X’s support service.

The Council claimed that it offered Mrs D a carer’s assessment in January 2018 but there is no evidence to support this. A carer’s assessment could have led to the offer of services and the lack of one is therefore fault that amounts to injustice.

Mrs D also complained about the unprofessional social work staff and poor communication. The Ombudsman could not find evidence of rude staff but decided on balance that some fault belonged to the Council for the communication in this case.

Remedies

Within 4 weeks, the Council has agreed to:

  • Apologise to Mr X and Mrs D and pay them each £1,000 in recognition of the time in which she was responsible for his care between November 2017 and October 2018 whilst he was left with an outdated support plan and no service at all [restitution for breach of the Care Act, effectively]
  • Pay them each a further £350 in recognition of the time between October 2018 and May 2019 that Mr X was left without a service and to acknowledge the delay in completing the support plan, the poor communication and the time Mrs D spent complaining (this was reduced in recognition of the fact that the council had made an offer in October 2018 which was refused by Mrs D).
  • Provide a written support plan for Mr X and arrange his care if he would still like to receive a service.

Points for the public, service users, advocates, complaint staff, and panels

This report is another example of the LGSCO applying the legal principle in the Court of Appeal case of CP v NE Lincs 2019 to recommend restitution for breach of the Care Act.

When a person has a care plan, its contents are that person’s rights, unless or until a new care plan is finalised. That has been the law since – oh, here’s a coincidence, the Gloucestershire case, in 1995!

The resignation of a care provider could well mean that a person needs a reassessment but the more important thing to do is to carry on honouring the care plan.

The LGO here was not purporting to decide that the man’s needs had not gone down; that would be beyond his jurisdiction. But since the re-assessment down to 2.5 and then 3.5 could not be regarded as free of fault, there was never a proper decision, and the LGO therefore legitimately looked back to the plan in force at the beginning of the saga.

It is somewhat frustrating that the LGO doesn’t explain anything about the council’s excuse for non-action between March and October 2018, especially in light of the council’s seminal contribution to the development of the case law on people’s rights within community care law.

  1. In its response to the Ombudsman the Council has acknowledged it could (my emphasis) have offered a replacement care service.
  2. But the Council should (again, my emphasis) have put in place a like for like service to support Mr X pending the reassessment. At that time, he was assessed as needing 7 hours of support and so the Council was duty bound to provide this.

There is one aspect of this report where we would have to part company with the LGO investigator’s approach: this is what was said:

In response to my enquiry about this the Council said a carer’s assessment was offered to Mrs D at the January 2018 assessment. There is no evidence of this within the case records I have seen. The care assessment states, “there are no people providing a high level of support”. Only if there were such persons would a carer’s assessment be offered (according to the prompt on the form).

From this, on balance I have concluded that the Council did not offer a carer’s assessment to any family member, including Mrs D. As the family, in particular Mrs D, were filling the gap left by the Council’s failure to provide a replacement care service for many months, it is highly likely that she was providing a high level of support that would trigger a carer’s assessment. I cannot say whether this would have then led to services being offered, but it may have. This is fault.”

We would have to disagree with the implication that a carer’s assessment needs to be triggered by a high degree of input. The duty to assess a carer no longer turns upon regular or substantial inputs – it is just as much a duty, without any room for a local threshold or a discretion – if it appears to the council that “a carer may have needs for support”. (A person who provides practical or emotional support can still count as a carer – that’s in the Care Act).

So it would not be lawful to hold back on carers’ assessments on the footing described above, but the LGO’s investigator does not seem to have spotted that additional aspect of legal framework unawareness.

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

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-005-899

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