Kirklees Metropolitan Borough Council at fault for withdrawing vital services and failing to recognise its responsibility to respond to a subsequent crisis.

Date of decision: 19/03/2020

What happened

Mr Y is a man with Alzheimer’s Disease who at the time of the complaint was living with his wife Mrs Y. She was his main carer. The complaint to the LGSCO was raised by Mr Y’s daughter, Ms X.

Mr Y received support from the local authority (Kirklees Council) through the provision of (an unspecified amount of) day centre attendance and an allocation of 28 nights’ residential respite per year to enable Mrs Y to have a break from caring for him.

Mr Y’s presentation was such that at times he was described as demanding and very challenging. At the day centre he often needed significant support to keep himself and others safe. This support came in the form of 1:1 care, which was provided informally by the day centre from September 2017 until it approached the Council in August 2018 identifying that Mr Y needed to have 1:1 support at the centre. The Council agreed to this and formal 1:1 support began in October 2018.

In January 2019 Mrs Y received an invoice (it is assumed for Mr Y’s care) for the 1:1 support for £800 despite not having been informed that there would be a contribution required.

She initially disputed that she had been informed of a liability to pay towards the 1:1 support by the day centre, who claimed that she had been informed. Mrs Y then paid the amount (we assume from joint funds or Mr Y’s funds, but it isn’t explained). The Council later acknowledged that it was unable to demonstrate a record of the information having been given to Mrs Y and refunded her the full amount.

A review took place on 19th February 2019. The review paperwork identified that Mr Y was ‘difficult to manage’ at the day centre, which was at the time finding it more difficult to use distraction techniques to support Mr Y. There were times where Mr Y was ‘removed’ from the setting to enable him and others to remain safe and he was taken for a walk outside.

The review noted that there were 28 nights per year allocated for carer respite and that this and the day centre attendance enabled Mrs Y to continue in her caring role for her husband. It also included reference to Mr Y having been ‘screened in for a DST’ but there was no evidence of a formal Continuing Healthcare (CHC) checklist. On 3rd April 2019, Mr Y was found not eligible for CHC by the CCG.

On 7th July 2019, Mr Y was placed in residential respite under a council contract. Mrs X reported that the day centre had become increasingly unable to respond to his needs and contacted Mrs Y on a Sunday afternoon to say that Mr Y could no longer attend. The Council withdrew the support at the day centre with immediate effect. No alternatives to the day centre attendance were offered or explored with Mrs Y despite the impact this would have for her as a carer.

At that point, Mrs Y was left with no support other than 28 nights per year respite from caring for Mr Y. She described his behaviour as ‘increasingly demanding and challenging’.

Just over a week later, the council undertook a re-assessment with Mr Y. The day care was removed from his care plan and the respite was increased to 35 nights per year. The documents show no record of any alternatives offered to Mr and Mrs Y. There was no record of what support the council would provide to Mrs Y with her day to day caring role despite the council having previously identified that Mr Y (respite is his service, not hers) needed that element of the package due to the nature of Mr Y’s needs and the impact on Mrs Y of meeting so many of the rest of his needs.

The council contacted Mrs Y a further 3 times in July and twice in August, September and January to check how things were going. Mrs Y informed them that she was ‘managing fine’. Mrs X became involved in supporting Mr and Mrs Y, which was deemed by the council as a suitable outcome for the family since they were coping well with no further support required at that time.

In August 2019, Mrs Y became unwell and was admitted to hospital. Mr Y’s residential respite stay was extended by the council. On 25th September 2019 she was offered a carer’s review, which she declined.

On 20th December, Mrs Y was asked to collect Mr Y from a residential home in which he was staying for respite purposes. His behaviour had become aggressive and violent and Mrs Y was asked to fund 1:1 care by the home (directly, for Mr Y) in order that he could continue to stay. This was at a cost of £14 per hour, to which she agreed, as she was concerned he would be violent towards her at home. She informed the council of this and spoke to a duty officer who advised her not to collect him and to complain to the home manager about the 1:1 request.

On 23rd December, Mrs X contacted the Council with concern about Mrs Y’s distress. She identified that Mrs Y felt pressured to pay for the 1:1 but had been told that ‘unless 1:1 is evidenced by the home, Kirklees will not fund the support’.

3 days later, the council contacted the home to request behaviour charts, despite this presenting as a crisis requiring an immediate response.

On 15th January 2020, Mr Y’s presentation was deteriorating. Mrs Y did not want him to return to the same home where he’d been before and was offered 3 alternative respite options. She was also asked if she wanted Mr Y to move into residential care but informed them that she was ‘not ready yet’ for such a move.

On 24th January 2020 Mrs X contacted the council again as Mr Y had had a urine infection and he and Mrs Y had had a bad week. Mrs Y resolved to ‘carry on over the weekend’ but requested that the council ‘find him somewhere’. She was advised to contact the council if she needed any additional support. On the Monday, the council contacted Mrs Y and offered to bring Mr Y’s review forward. They had explored respite vacancies but Mrs Y informed them that Mr Y was now 100% better so no further action was taken.

On 4th February 2020, Mrs Y made a request to the council for Mr Y to move into residential care on a permanent basis when the Council contacted her to arrange a review. During this call, the officer acknowledged that Mrs Y was experiencing increasing crises, which would then plateau, at which point Mrs Y would recover her willing ability to manage at home. Mrs X agreed with this analysis.

On 20th February, Mr Y went into respite again with a plan for this to become a permanent home for him.

What was found

The LGSCO findings focused on three key areas:

  1. The Council withdrew support to Mr Y without a review despite having clear evidence that Mrs Y would be at risk in her caring role. The Council revised Mr Y’s care plan by removing the day centre attendance without regard to due process.

The Council also failed to offer any alternative support to Mrs Y as a carer. There were documents evidencing that the Council agreed with the level of need by way of affirming the request for 1:1 support at the day centre and documenting that Mrs Y was dependent on the day centre support. Applying the statutory guidance, meeting needs is ‘intended to be broader than a duty to arrange or provide a specific service’ (Department of Health, Care and Support Statutory Guidance 10.10) and the Council was found at fault for failing to offer any alternatives to the day centre attendance. This exacerbated the stress and difficulties Mrs Y was experiencing in caring for Mr Y.

  1. The respite home should not have contacted Mrs Y to request that she take Mr Y home from respite. Instead it needed to make contact with the Council to request additional funding for 1:1 support. Mrs Y contacted the Council the same day and was advised not to collect Mr Y. The council failed to recognise this as a crisis situation and should have made contact with the home on the same day and not as happened, three days later.
  1. The Council should not have indicated that it would not fund 1:1 care for Mr Y. It had the ability to meet the need immediately, but instead allowed the pressure experienced by Mrs Y to continue with reference to a need for behaviour charts.

Remedies

Due to its failings, the Council was required to:

  • reimburse Mrs Y (Mr Y, in fact, who was the service user liable to a charge) the cost of 1:1 care
  • provide Mrs Y with a formal written apology for the failures identified above
  • pay Mrs Y £500 in acknowledgement of the lack of notice in terminating Mr Y’s day services
  • pay Mrs Y £500 for loss of day service and respite service
  • confirm the current care arrangements for Mr Y (since the arrangements were made in the middle of the LGO’s own Covid-related suspension of services). If he is not in permanent residential care, explain how his care needs are being met
  • undertake a carer’s assessment of Mrs Y (if Mr Y remains living at home)
  • reviews its response to crisis situations

and to provide evidence that it had done so to the LGSCO.

The council had already offered to reimburse Mrs Y for the 1:1 day centre care that her husband had been charged for as it had no written record that they had been informed of the charge.

The Council also offered to pay Mrs Y £200 for the distress that had been caused through the withdrawal of the day services and offered this as a method of apology. The LGSCO required the Council to pay the amounts set out above on the basis that the failings were more significant than initially acknowledged by the Council.

The LGSCO also required the Council to recognise its responsibilities under the Care Act 2014 which require the person and their carer to be involved in care planning. The Council in this case had failed to act, failed to involve Mr and Mrs Y in decision making, and as a result had caused additional distress and pressure to an already fragile situation.

Points for the public, service users, family and peer supporters, advocates, and councils etc.

There are multiple basic errors by the Council in this case in carrying out its functions under the Care Act 2014. Regarding public law, the LGSCO simply applied existing legal principles when it made the following findings:

  1. the decision to withdraw services without a review or revision process was fault by the Council;
  2. the Council failed to follow due process and involve Mr and Mrs Y in its decision-making;
  3. Mrs Y should be reimbursed for payment she had made given that she had not been informed that Mr Y would be required to pay;
  4. the Council failed to recognise and respond to a crisis situation which led to further pressure and distress for Mrs Y;
  5. the Council did not take responsibility for liaising with the commissioned respite care home when required and left this Mrs Y to cope with the pressure of the direct request to fund the requested 1:1 care (either as a top-up or as a further charge for Mr Y via the council system);
  6. the Council gave a decision not to fund the requested 1:1 care without a proper re-assessment, on the footing that it required specific evidence – whereas s19 gave the council the power to respond to urgent needs without re-assessment of Mr Y’s needs.

The Council decided to withdraw a vital service from a service user, despite knowing that a carer was already struggling to sustain her chosen informal contribution to his care.

The unlawfulness of that stance is underpinned by the Ali Raja v London Borough of Redbridge [2020] EWHC 1456 judgment which considers interim care provision whilst assessment has not been completed for whatever reason.

You can find the link here:

This important judgment confirmed that s.19(3) Care Act 2014 (power to meet needs) or s27 (revision after proportionate re-assessment) applies where an urgent situation arises that requires a response sooner than an assessment can be finalised, whether or not that is a first or revision assessment. The Council here had failed to recognise that although the day service was no longer able to meet Mr Y’s need, some other provision ought to have been found – if this had been framed in the context of a legal challenge, one would have contended that no reasonable authority could have conceivably concluded that Mrs Y was still able, however willing she was, after the pattern of crisis and moderate recovery had been established.

Carers struggling with worsening conditions in loved ones and finding their situation very challenging but wanting to continue caring as long as they possibly can, is a common feature of Adult Social Services culture. However, Council need to recognise the duties in the Care Act 2014 to have regard to the position of the carer as well as the service user (see s1 for the wellbeing elements that must be considered before every social services action or decision) and provision of due process which comes from public law, and which is a non-negotiable framework for decision-making.

In this case, the first clear failing was not responding to the eviction of Mr Y from the day service: that was a change of circumstances which could only be responded to with an immediate review and consideration of what else could be done to fill the gap, via a revision of the care plan under s27. The Care Act 2014 clearly states:

s.27(4) Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan or a support plan, the authority must—

(a) to the extent it thinks appropriate, carry out a needs or carer’s assessment, carry out a financial assessment and make a determination under section 13(1), and

(b) revise the care and support plan or support plan accordingly.

A council choosing to commission a day service cannot force a provider to admit someone who is unmanageable at the price the council is willing to pay, because the provider owes a duty of care to all and must remain the decision-maker as to whether it can adequately meet needs safely. But the whole point of the underlying duty is that the needs still have to be met by the council – somehow or other – and that is very important as we come out of Covid lockdown, when some services just won’t open again or re-admit. They are not bound to: the COUNCIL owes the fundamental duty to meet need, not the provider, who does it under CONTRACT.

What was required was a proportionate re-assessment by the Council where the focus would have been on ways in which meeting the ongoing eligible needs in a way that had regard to Mr and Mrs Y’s outcomes could potentially have been managed.

The person and their carer must also be involved in the revision (s.27 Care Act 2014) which gives the Council power to revise as long as it has regard to various things, importantly including involvement of the person and their carer – not even councils adopting the Easements during Covid-19 were able to avoid that duty.

The Council eventually carried out a revision assessment, but in doing so decided to increase the respite allowance by 7 days a year to make up for the loss of day centre attendance – but the family were able to do more than had been possible in the past, so that was not necessarily irrational in public law terms. The care plan needs to be sufficient to meet the needs and Mrs Y expressed herself as fine, quite regularly, between crises. But 7 days a year extra when the pattern of the crises was apparent, could not have been seen as adequate. In this situation, the offer of respite failed to address the day to day difficulties Mrs Y was experiencing in caring for her husband.

Whilst Mrs X stepped in to assist with care for Mr Y, and the family then ‘presented’ as not requiring additional care, the Department of Health Statutory Guidance (6.1115) outlines ‘Local authorities are not required to meet any eligible needs which are being met by a carer, but those needs should be recognised and recorded as eligible during the assessment process’. In this case the council needed to recognise the shortfall being met by Mrs Y, in meeting its obligations to respond to eligible social care needs and had it carried out an effective re-assessment once Mrs X had started to provide support, it should have regularly recorded checking with her whether she was willing and able, still, to do what she was doing. Nobody has a human right to carry on caring, no matter what the cost, but working WITH a dedicated family member is the humane and compassionate thing for councils to do, unless or until it seems out of step with what the council is willing to do for others.

The Department of Health Statutory Guidance (6.1113) also provides that when Council are considering fluctuating needs, they ‘must consider an individual’s need over an appropriate period of time to ensure that all of their needs have been accounted for when eligibility is being determined’. The Council in this case acknowledged that Mrs Y frequently experienced a crisis which then plateaued and had that information to hand over the course of its contact during 2019.This was as determined by the LGSCO ‘too little too late’.

The Council also acted unreasonably when Mrs X was told that it would not fund the 1:1 support for Mr Y to remain in the respite setting without further evidence from the care home. It allowed and even advised Mrs Y to contact the care home and take up her complaint about the cost of the 1:1 with them directly, when as commissioner, it ought to have bothered to pull the home up on this directly. It ignored the fact that s19 provides specifically for meeting urgent needs, even before they have been added to eligibility findings. Section 19(3) Care Act 2014 provides as follows:

A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

(a) carried out a needs assessment or a financial assessment, or

(b) made a determination under section 13(1).

This sends Council a clear message – do not overlook the powers that are available when faced with a crisis. The council needed to respond robustly to individuals and their carers experiencing crises. The duty officer’s response was fundamentally flawed and highlights a need for additional training and a clear process which this Council is now required to evidence for the LGSCO.

The LGSCO has again helpfully identified that the approach taken by this authority (failing to act several times, but only offering a mere £200 as an apology) was insufficient to make amends for the Council failing to act lawfully. Councils should be aware that if they get it wrong, taking a proper look at the failings and acknowledging this with a view to changing future practice and offering proper recompense, is likely to be required – and will fuel the complaint rate, if not offered.

Readers should note that there is a significant ambiguity in this case as to whether the charges purportedly MADE by the home were regarded as payments for ‘want’ outside of the council’s commissioned respite, which the home was (inappropriately) asking her to top up, as a relative, or as payments for the benefit of the respite stay, as if it was really for her sake, such that they (again inappropriately) thought she would obviously be PAYING herself, in person – OR if the charges were charges properly made to Mr Y, via the council’s normal charging system. Even then, any such normal charge for respite care should not have been negotiated with Mrs Y or addressed to her, because neither the concept of ‘best interests’ or being married to someone who needs social care, provide for any kind of liability for, or lawful authority over – the care charges or financial affairs of another adult! If she had power of attorney for Mr Y, then of course the report makes sense, but it is nowhere stated, by the investigator.

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The full Local Government Ombudsman report into the actions of the Kirklees Metropolitan Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-009-200