Date of decision 18/03/2020
Ms X is blind and has mental health problems. In February 2018 the Council provided her with 10.5 hours support per week as follows:
- 6 hours (broken into two 30 minute calls), six days a week (breakfast and lunch) to help with preparing food, cleaning, laundry, correspondence and reassurance over mental health;
- 1.5 hours for shopping;
- 1 hour to get to therapy sessions;
- 1 hour for “home care support”;
- 1 hour a month to get to medical appointments;
- 2.5 hours a month to visit a music shop.
The LGSCO report begins with describing this as an increased care package but one cannot tell from what, or when. What followed were multiple care package changes which led to confusion for both Ms X and the Council as to how exactly her identified needs were being met.
Between February 2018 and December 2019 when the complaint response was received, there was a series of documented and non-documented changes to the amount of support hours provided to Ms X to meet her eligible needs. The LGSCO report documents 6 changes, the first of which, later in February 2018, was a non-documented change from 6 days of daily calls to 5 days of daily calls.
On 20th June 2018 the Council visited Ms X in response to a safeguarding concern. She was described as distressed, having not taken her medication. The local NHS Crisis Home Resolution Treatment team (CHRTT) began to supervise Ms X taking her medication during the morning and evening until either carers could do so or blister packs were arranged.
The Council recorded that Ms X’s care provider would support her for 2 hours per day until 26th June 2018 and from then onwards they would visit twice per day at lunch and teatime but with no duration specified.
A day later on 21st June 2018, the fire brigade attended Ms X’s home as she had reported a fire that was not there. On 25th June 2018 the Council recorded that the twice daily visits from the care provider would continue. The duration remained unclear. Other council records confirmed that medication support was also being provided by the CHRTT during the same period.
On 28th June 2018 during a multi-disciplinary professionals’ visit, Ms X expressed that she wanted to remain living in her home with additional support. Council records show that on this date Ms X’s care plan changed again to care visits twice daily for 45 minutes (10.5 hours per week with no additional community support) to include medication support. It was left to Ms X to contact the Council with a proposal as to what support she would need to enable her to access the community.
On 9th July 2018, the care provider informed the Council that Ms X had been taking her own medication. The Council noted ‘this meant it was doing the usual 2 hours over 5 days and not the twice daily for 45 minutes agreed on 28th June 2018’. That would be 10 hours, instead of 10.5. The provider also informed the Council it had no capacity to support Ms X over the weekend.
The Council acknowledged it should find an alternative provider as Ms X needed medication support three times per day with an additional hour per week for assistance with shopping. Ms X agreed to this increase in her care package. She was offered 10.5 hours support per week until the weekend support was sourced.
On 17th July 2018, safeguarding records show Ms X as ‘compliant with her medication with support from carers’.
Ms X was also staying in temporary housing. A friend reported to the Council that her Personal Independence Payment (PIP) was ceasing as she had been unable to attend a meeting. Ms X’s PIP stopped on 31st July 2018.
An ambulance was called at the end of August 2018 as Ms X had taken her medication too early and was experiencing anxiety. At this point she had no support in place at weekends with her medication and had not been provided with a Braille dosset box. A referral was made to the Community Mental Health Team for their involvement with Ms X.
On 30th August 2018, a review was undertaken. The Care Plan was updated as follows which provided 18 hours’ support per week:
14 hours’ support = 3 visits per day (that would be 40 mins each over 7 days)
4 hours support to visit a café.
A week later, the weekly commissioned package of support had been changed to 12.5 hours:
3 visits per day of 30 minute duration (over 7 days)
2 hours per week shopping support.
The Council visited Ms X at the end of September 2018 as she had moved to permanent accommodation. It offered her support to familiarise with the local area.
The Council became aware that Ms X’s PIP was reinstated on 23rd November 2018, and told her that it would update her financial assessment. Her financial representative also told the Council he could no longer provide support to Ms X.
A review took place on 26th November 2018 and the Council agreed to increase Ms X’s care package but does not record how. It seems to have been thought that Ms X would be supported by charities to promote her independence and her care provider would approach her GP about accessing a Braille dosset box for her medication.
The complaint to the Council by Ms X’s advocate in December 2018 raised the following issues:
- Failure to provide a dosset box or support with the administration of medication;
- This had resulted in too many of the allotted 10.5 hours being used for medication;
- Access to the community had therefore been impacted;
- Ms X had required support during a safeguarding meeting and was unhappy with language used;
- The Council communications were not good enough and that she had lost her PIP as a result;
- Ms X’s previous records during 2017/18 were misleading and prejudiced.
The Council responded to this complaint in August 2019. It offered an apology for its delayed response and accepted that it should have sourced Ms X a dosset box prior to November 2018. It also accepted that the care provider had spent too much time supporting Ms X with medication so had increased her support hours and provided additional equipment to ensure that her need to access the community was met. It asked her for additional information about her experience of the safeguarding meeting and pertaining to her records. Finally, it accepted that although it had not responded quickly enough, it had not erred in its communication with other bodies.
The council then changed its mind and stated that this response was incorrect.
It stated that Ms X could dispense her own medication, with the right box, and that it did not commission the care provider to support her with prompts. It also stated that the care provider purchased a dosset box in November 2018 and the care provider had only offered her minimal support with medication which would not have impacted on her remaining hours. The Council claimed that Ms X’s overdoses were purposeful and referred to the safeguarding matter over which she raised concerns as a police matter.
What was found
The LGSCO found that the Council’s records were confusing and contradictory. This included the change in its response to the complaint. The LGSCO identified that the Council made several changes to Ms X’s care plan but didn’t update it when doing so.
With reference to the records, the Council was wrong in its determination that it didn’t commission support with medication for Ms X based on records viewed by the LGSCO. The LGSCO agreed however that the support provided with medication would not have impacted on her remaining support hours.
It found the council to be at fault for not having provided Ms X with support seven days per week as she must have been assessed her as needing, even if it was difficult to source care for weekends.
The LGSCO found that although Ms X had not been harmed by taking her medication too early, she had been distressed, which amounted to an injustice requiring an apology and financial redress.
The Council was also at fault for identifying the need for a Braille dosset box in August 2018 through its safeguarding process but failing to provide this until November 2018. This did however lead to it providing more support for Ms X, so she did not experience an injustice.
The LGSCO determined that the Council was not at fault for the terminology used in its safeguarding records as it had used phrases spoken by participants of the meeting. It also found that the Council was not at fault in relation to the cessation of Ms X’s PIP as she had had a financial representative at the time.
The Council accepted the following recommendations from the LGSO:
- to write to Ms X apologising and waiving £200 of her outstanding care charges;
- within eight weeks, identifying the action it needs to take to make sure officers update care and support plans whenever they make changes to the care being delivered.
Points for the public, service users, family and peer supporters, advocates, and councils etc.
This case is founded on confusion, but also on underlying breach of statutory duty of the kind that has been unlawful since 1995.
The inadequate recordings made by the Council each and every time the care package changed clearly underpinned the fault found by the LGSCO.
The real failing here relates to how this Council understood its obligations under the Care Act 2014. It needed to understand that
- A person with presenting deficits and inabilities to achieve, cannot be assessed as not having them one day a week, in the absence of some evidence of a very unusual degree!
- Once something is an eligible need, it has to be met, sufficiently and appropriately
- Once something has been written up in a care plan, it is a breach of statutory duty not to deliver it, and if the provider CANNOT, that may be a breach of contract on the part of the provider but that is irrelevant to the duty of the council to meet the assessed eligible need.
- It is not an acceptable discharge of the Care Act duties to use a streamlined approach which assumes or manipulates an unwell service recipient into accepting that adequate community based voluntary help will be accessed, or that they can just be left to come back if it doesn’t materialise.
- Each other than very small change to a care plan is a revision under s.27 of the Care Act 2014; the section gives the Council power to revise the care plan as long as it has regard to various aspects including involving the person, by way of a proportionate reassessment, as decisions made will be directly linked to their s25 care plan.
- The changes ought to be recorded and shared with the person and their advocate, as with the ORIGINAL care plan itself, because the plan that is being changed IS subject to s25 requirements for continuing accountability:
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.
(5) Where, in a case within subsection (4) the local authority is proposing to change how it meets the needs in question, it must, in performing the duty under subsection (2)(b)(i) or (3)(b)(i), take all reasonable steps to reach agreement with the adult concerned about how it should meet those needs.
25 (9) The local authority must give a copy of a care and support plan to—
(a) the adult for whom it has been prepared,
(b) any carer that the adult has, if the adult asks the authority to do so, and
(c) any other person to whom the adult asks the authority to give a copy.
So, firstly, for Ms X, the detail of her care plan was ambiguous – her assessed need for support with medication was only met by the Council five days per week, despite the absence of evidence that Ms X had any other support available to her to assist with this vital need. The amount of hours of support thought appropriate then varied from record to record.
The Department of Health Statutory Guidance (10.10) requires the Care plan to be sufficient to meet the need. The person is also entitled to know what their personal budget is and what this is based on.
The Council did have options at its disposal to support Ms X such as providing the support by way of care provider or a Braille dossett box. The NHS’s support on an interim basis was also available to Ms X during the wait for that piece of equipment. The Council records demonstrated the Council’s intention to commission medication support for Ms X, despite its later denial of this.
This is where the LGSCO found fault. The Council’s safeguarding process affirmed the need for Ms X to have support with her medication and it took 3 months before the dosset box was sourced by the care provider.
There are of course times where care providers are unable to respond to the demands from councils due to capacity issues: the whole point of a social care safety net through a statute containing duties is that the underlying public law duty to DO something about that, subsists, and is the council’s own non-delegable duty. Ms X’s needs had not changed at the point where the care provider could not offer weekend support; it would not have been unlawful for the Council to provide the support in a different way by changing the care plan, i.e. through the provision of a dosset box if that would be sufficient to meet the assessed need, but it could not just shrug its shoulders or just say that that was that, and offer sympathy!
The lack of clarity in this case echoes one of the potential pitfalls of the trend in the sector of streamlining Care Act processes, such as a ‘Conversations-based’ model offers to do: management enthusiasm for these types of approaches that cut the workload can make professionals believe that individuals don’t WANT bureaucracy and are happy with a chat. But the Care Act compels the writing up of these decisions and variations in all but cases of the smallest changes, because it is the writing up that makes for accountability – the role of a care plan has always been to provide a record of the council’s thinking under its statutory duty to allocate and organise enough inputs to be sufficient to meet the eligible needs. So, anything that avoids the due process rights in the Care Act inevitably eats into the protection of the person’s legal rights to social services funding. If assessment and care planning are diluted so that they are evidenced ONLY by way of conversation, those conversations may never be translated into the form of amended care plans, despite changes having been discussed and agreed with the person or the carer, and then what is being delivered is left to the vagaries of the provider sector, and its own workforce struggles. If things continue in that direction, the system will have slouched into anarchy and arbitrariness, all over again, despite the best efforts of Parliament to give people with disabling conditions some actual solid rights.
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The full Local Government Ombudsman report into the actions of Reading Borough Council can be accessed here: