Decision Date: 14th June 2017
Mr D complained on behalf of his brother, Mr C.
Mr C had a close relationship with his immediate family, and had been registered deafblind since 2001. He also had osteoporosis, epilepsy and autism.
Mr C had a placement in Lancashire (Placement A), paid for by South Tyneside, but his family were concerned about the quality of care he was receiving.
In particular, Mr D said that the staff failed to adequately manage Mr C’s nutrition and hydration. Also Mr D raised concerns about levels of staffing, fire safety concerns and activities.
A safeguarding meeting was held, which did not uphold Mr D’s complaints.
The LGO noted, however, that none of Mr C’s social workers had specific training in working with deafblind people.
At the end of 2013 Mr D identified an alternative placement for Mr C that they thought would better meet his needs. As Mr C lacked capacity to decide about his accommodation, the Council had to consider whether it would be in his best interests to be moved, under a council contract.
In June 2014 the Council told Mr D that it did not support the move, largely because it considered the move would disrupt Mr C and have negative impacts on him, and that the safeguarding concerns had not been upheld, so his current placement was most suitable.
When the Council considered this move, it was the only time an independent advocate was hired for Mr C, and even then, the LGO stated that it was apparent that it was still a struggle to communicate with Mr C.
Mr D told the LGO that he was unaware the Council were making decisions based on ‘best interest’ considerations, rather that he thought the move was only subject to further assessment and ‘familiarisation’.
Following the Council’s decision not to support the move, Placement A sought authorisation to care for Mr C in a way that amounted to a “deprivation of liberty”.
The Council approved the ‘deprivation’ for 12 months, following a recommendation by an independent social worker who assessed Mr C’s case.
Mr D complained that the assessor did not adequately consult the family, and that they did not want Mr C to continue at Placement A.
A social worker reviewed the decision, and recommended a referral to the Court of Protection, because a DoLS does not resolve a dispute as to deprivation of liberty. But the Council did not communicate this to Mr D or his family.
After July 2014, tensions between Placement A and Mr C’s family rose. Mr D stated that the care provider blocked access to Mr C’s care plans, staff would not speak to the family, and eventually, the care provider stopped allowing the family to enter the facility altogether.
All of this resulted in Mr D and his family removing Mr C from Placement A in December 2014, and they took him back to the family home. The Council did not challenge this decision.
The Council assessed Mr C’s care needs when he returned home, and concluded that he needed full time help to meet his personal care needs. It agreed with Mr D that it would pay an amount equivalent to the cost of employing a personal assistant to work with Mr C (for 48 hours per week) via direct payments. The Council even agreed Mr D could receive those funds as a ‘direct payment’ as he was the one meeting Mr C’s care needs.
This agreement was made in May 2015, and the Council backdated the payments to February. Mr D complained that they should have been backdated to December 2014, when he took over care for Mr C.
When Mr C initially left the care home in December 2014, his family asked the Council to look for an alternative placement, but the Council did not formally log this request until a month later, January 2015.
A vacancy with the Placement B was identified in February 2015. Placement B agreed to assess Mr C in early March. By the time this assessment took place, Placement B told the Council that although it could meet his needs, they had filled the vacancy.
Mr D complained that the Council’s delay in logging the request resulted in Mr C losing the chance of a place. The Council and Mr D both continued to look for other placement options.
What was found
In 2001 the Government issued statutory guidance about services for deafblind people, which it reissued in 2009. In December 2014 the Government replaced that guidance with new guidance effective from April 2015 when the Care Act 2014 took effect (Care and Support for Deafblind Children and Adults Policy Guidance). This guidance re-emphasised the points made in 2009, which stressed that any person undertaking an assessment for an adult with care and support needs “must be appropriately trained”.
The LGO stated that the Council had largely failed to ensure it followed the guidance. Mr C had several social workers since 2013 but none had specific training in working with deafblind clients. The only time Mr C received a specific deafblind assessment was in August 2014. This was fault.
This fault led the LGO to conclude that Mr C may not always have received appropriate evaluation or the most suitable care given his needs.
The LGO considered that the safeguarding procedure followed was thorough and comprehensive, and therefore the Council was not at fault here.
It did highlight however that there was some evidence that the provider could have met Mr C’s needs better at times, for example the extent of training could have been improved in order to meet Mr C’s communication needs as a deafblind client.
It concluded that while it did not uphold this part of the complaint, it understood some of Mr D’s concerns about the placement and therefore further understood why Mr D wanted an alternative placement for Mr C and had pursued this from 2013.
Rejected move from Placement A
The LGO accepted the reasons the Council rejected the move as reasonable, however the investigator highlighted the following failures:
- The Council failed to explain the decision making procedure to Mr D, so he did not know how the Council would take its decision or who would be involved.
- It took no specialist advice about Mr C’s needs as a deafblind client.
- In June 2014 there had been no needs assessment compliant with the pre-Act statutory guidance
- When it communicated its decision, the Council did not tell Mr D about the Court of Protection and Mental Capacity Act framework.
These failures amounted to fault.
Deprivation of Liberty
As already highlighted, the Council was at fault for failing to refer the dispute to the Court of Protection; however the LGO considered that this failure did not have an impact on the deprivation of liberty procedure the Council had already followed.
After Mr D complained, the Council agreed to review the authorisation. The reviewing social worker clearly set out Mr D’s views in the paperwork accompanying the review which appeared comprehensive. The review referred to the dispute about the care setting. It recommended referral to the Court of Protection. As the LGO already noted, the Council should have referred the dispute earlier, but its failure to do so did not flaw the DoL procedure that followed. Therefore found no fault in this regard.
Restriction of contact
There was no evidence the Council scrutinised the reasons put forward by the care provider for restricting the contact between Mr C and his family. This was fault.
Furthermore, the Council’s failure to investigate the restriction was fault.
Subsequent placement considerations
The LGO stated that there was a ‘limited delay’ in logging Mr D’s request for the Council to find alternative accommodation, but did not consider it to be the main reason for the vacancy in Placement B being filled. After this, the Council continued to look for suitable alternatives, and kept Mr D informed.
The LGO concluded that the injustice amounted to around four weeks’ avoidable delay and more time and trouble for Mr D in trying to find out what was happening.
Despite Mr D repeatedly requesting the Council to backdate the DPs to December, there was no evidence that the Council responded to his requests. It did not backdate the payments nor explain why not. This was fault.
By making reference to past complaints the Council gave the impression that it considered Mr D was being unreasonable in making fresh complaint. But this was clearly not the case even if not all his complaints could be upheld. The LGO considered that in referencing historic non-upheld complaints the Council undermined its engagement with those complaints discussed above, because it created an impression of bias against Mr D. The LGO said that it may have been unintentional but it was something the Council should consider carefully in the future.
In recognition of the faults identified, the LGO recommended the Council:
- Ensures that all Mr C’s future care needs assessments will be undertaken by appropriately qualified workers in line with the statutory framework for deafblind clients. The next assessment should take place within three months.
- If need be, the Council will buy in this service, should it not have appropriately trained and qualified staff.
- Ensures Mr C will also have access to appropriate advocacy services
- Pay Mr C £1000 in recognition of any distress caused by its actions.
- Pay Mr D £500 in recognition of his distress and time and trouble in pursuing this complaint.
- Backdate direct payments to December 2014 for when Mr D met Mr C’s care needs with no care and support plan or direct payment agreement in place.
- Undertake a review of its services for all deafblind clients in its area to ensure it is meeting the expectations set out in the statutory guidance. In particular, ensure that all affected clients have received assessments in line with statutory guidance in the past twelve months.
Points for the public, the council, advocates, family members and service users
The DoLS points are of interest because if the process was unlawfully carried out, then it could provide no safety for the council from a finding of unlawful deprivation of liberty. The LGO did not think that that caused injustice in this particular case. There is no mention of an IMCA ever having been appointed, for instance, or of any member of the family being made or considered for appointment as an RPR?
We do not know enough about the circumstances in which the family gave up on the care home and just removed the man to the family home; in some situations, that would have been regarded as a safeguarding matter, but it rather seems as if the council accepted that the home really was not defensibly suitable for the man a moment longer.
Regarding the backdating of the direct payments to the point when it would have been obvious that the needs had to be met, this is another example of the remedy of restitution being applied by the LGSCO. We think the soundness of this approach turns on it having been indisputably obvious to the council that the care from the relative was necessary and that it was provided under duress, and that it could not be regarded as having been provided voluntarily and for free by Mr D.
The LGO said this:
“I do not know if the Council had any reservations about Mr C leaving his care placement in Lancashire. But if so, these did not prevent it later agreeing the arrangement described above. So it accepted Mr D met Mr C’s care needs satisfactorily after February 2015. In which case I can find no reason therefore why the Council should not have backdated the payments to December 2014 also. Because I cannot see there was any difference in the facts surrounding Mr C’s care in those months.”
Other wrongs that sound in law, and not just in good practice, IF assessment events had occurred AFTER APRIL 2015, because of the introduction of the Care Act, would be as follows:
- Failure to organise competent assessment (Care Act assessment regulations)
Requirement for specialist expertise – deafblind individuals
6.—(1) An assessment which relates to an individual who is deafblind must be carried out by a person who has specific training and expertise relating to individuals who are deafblind.
(2) A local authority must facilitate the carrying out of the assessment by providing any person carrying out such an assessment with any relevant information which it may have—
(a) about the individual whose needs are being assessed; and
(b) in the case of—
(i) a carer’s assessment, about the adult needing care;
(ii) a child’s carer’s assessment, about the child needing care;
(iii) a young carer’s assessment, about the adult needing care.
(3) In this regulation, an individual is “deafblind” if the individual has combined sight and hearing impairment which causes difficulties with communication, access to information and mobility.
- Failure to make the care home commissioned by the council abide by the article 8 human rights it owed directly to the service user by virtue of the Care Act;
- Failure to make the Mental Capacity Act part and parcel of any care planning that will involve physically moving someone lacking in capacity
- Flawed best interests decision making, through taking no specialist advice about Mr C’s needs as a deafblind client, not ensuring needs assessment compliant with the statutory guidance, and not appointing an experienced advocate for an accommodation review.
- Failure to identify HOW direct payments were provided after the move home, to a person lacking in capacity (s32 of the Care Act requires an Authorised Person to be appointed)
- Failure to recognise that not backdating the payments amounted to unjust enrichment for breach of statutory duty
- Failure to conduct itself with due regard to the rules of fairness (including the avoidance of any perception of bias or pre-determination).
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The full Local Government Ombudsman report of South Tyneside Metropolitan Borough Council’s actions can be found here