Hertfordshire County Council at fault for mis-timing MCA assessment and poor records leading to unnecessary delays in decision-making for a service user and carer

Decision Date: 19/03/20

What happened

This complaint was made by Ms J, sister and main carer for Miss K about the Council’s actions between May 2018 and May 2019. There are still other complaints also being considered by the LGSCO, covering different actions by the Council.

Miss K is a lady in her 20s with Autism, a learning disability and Epilepsy. She has sensory processing and balance-related difficulties.

Ms J manages her direct payment on her behalf. Miss K left education in May 2018 whereby she was supported by the 0-25 team at the Council. Miss K and Ms J also had a solicitor who corresponded with the Council. Notes stated that Miss K experiences anxiety and communication difficulties and finds answering questions difficult.  

Ms J’s complaint consisted of several elements relating to Miss K’s review and Ms J’s carer’s assessment;

  • that the Council were using the review to undo the care it put in;
  • Miss K had received no respite break since March 2018;
  • a written record of the care plan was never received;
  • there was no contingency plan in place;
  • only an indicative budget was provided;
  • the review took too long to complete;
  • the advocacy service’s staff were not seen as independent by Miss K and
  • two separate carer’s assessments had resulted in no additional help or support for Ms J.

In April 2018, the 0-25 team arranged to review Miss K’s care plan and Ms J’s carer’s assessment. Their solicitor took the view that Miss K did not need to attend as she could not understand the issues. The Council disagreed and required Miss K to be present.

On 16th May 2018, the officer met with Miss K and Ms J at their home. There was no Council record of this meeting.

In June 2018, the officer met again with Ms J and subsequently set up an interim package of care for Miss K pending the outcome of her education appeal which would necessarily inform any further care planning.

In September 2018, a review was undertaken based on information from the two previous meetings. This led to a continuation of the interim package of care but identified the need for a new assessment as Miss K’s appeal to remain accessing education had been unsuccessful.

On 5th November 2018, the officer met with Miss K and Ms J. It is recorded that this visit focused on respite.

Following the meeting, the Council noted its concerns about Miss K’s capacity to make decisions.

Ms J made a complaint in December 2018, and the Council response was that it had only met Miss K twice so could not ascertain her wishes and therefore could not conclude that she lacked capacity. Council records noted the need to start from a presumption of capacity.

In December 2018 another officer was appointed to carry out a Mental Capacity assessment and the Council view was that Miss K required an advocate to support her with the process.

The advocacy service commissioned by the Council had a policy that its initial visit would always be with the social worker. Ms J complained that Miss K would therefore be unable to view the advocate as independent of the Council.

An advocate was appointed in February 2019 but this changed in March 2019 due to sickness. The Mental Capacity assessment was completed in April 2019, with the conclusion that Miss K lacked capacity to manage her care and support plan and that she needed an advocate to enable her voice to be heard (probably on account of material disagreement with Miss J; this can lead to the appointment of an advocate despite a willing and informal carer being involved and apparently supporting the person’s involvement under the Advocacy reguations.

Ms J requested changes to the assessment and stated that questions about future living options had upset Miss K. The officer disagreed with the proposed changes and that conclusion was upheld by the Council.

Complaint specifics – respite

Miss K had an allotted 12 nights per year to stay at a respite placement. She last stayed in March 2018. Council records stated that Miss K had received 8 nights’ respite until March 2018 and noted the use of a Personal Assistant to go away with Ms J and Miss K. 

In July 2019, the officer confirmed that the respite placement was still ‘active’ by email. Ms J complained that she raised the issue of respite with the officer as the provider had refused a booking. Communications about respite were not recorded in Council notes until August, where the Council agreed to look into the respite placement and alternative options.

In October 2019, the solicitor informed the Council that the respite placement was ‘no longer an option’ as Miss K had experienced anxiety attacks in August when she had been due to attend. Ms J had identified a different option that was linked to a centre Miss K attended.

On 13th November 2019, the officer confirmed by email that she would look into the alternative respite proposal which she later confirmed had no availability.

In December 2019 the Council confirmed the original respite placement’s report that there had been no difficulties when Miss K had stayed and it had not refused respite.

The council also identified that it was at that time funding 16 nights’ respite at a different respite placement and that the cost of the proposed placement would only enable Miss K to have 2 nights’ respite for the same amount.

Carer’s assessments

Ms J’s carer’s assessment was carried out in April 2018. The solicitor had informed the Council that Ms J thought Miss K’s review should take priority over her assessment. Ms J was found eligible for support, and required assistance with cleaning and gardening to enable her to sustain her caring role.

The Council explored community services to meet the need but were unable to source the support, so offered Ms J a direct payment. Her indicative budget was £75 per week.

In June 2018, the Council sent Ms J a copy of her assessment and Ms J requested changes. Council records from August 2018 show that the officer’s manager told Ms J that they would source the support through charities.

December 2019 records stated that Ms J had asked about the outcome of her assessment and notes that the officer had focused on ways to reduce her caring responsibilities. It also noted Ms J was not in employment and Miss K had a package that met more than her care needs.

It must be inferred from the complaint report that the payment was just not made, because the record keeping was so bad.

Holiday request

In April 2018, Ms J had requested support from the Council to enable her and Miss K to attend a family christening in Europe during August 2018. It would have cost several thousand pounds and the officer agreed to make a request for this funding.

Ms J gave the required evidence for the trip and the Council declined to fund the holiday related expenses on 20th July 2018. It stated that it had no duty to fund the non-care elements of the trip and offered £500 towards the care costs. The Council claimed that the relationships could be maintained by alternative means i.e. telephone calls. The council has no record of this decision which it says was made by a manager and conveyed to Ms J by the officer. 

The Council responded to the complaints made by Ms J in February 2019. It acknowledged that the Mental Capacity assessment needed to take place sooner and that delay had been caused by the advocacy organisation.

The Council responded to the complaint about respite by identifying that respite monies had been used for trips away with a personal assistant. The Council accepted that Miss K had received alternative respite and could use the respite allocation for Ms J’s proposed option, but that this would provide much less respite provision for the cost.

What was found

The LGSCO split the year the complaint concerned into three parts: interim care package, mental capacity assessment and the period after the assessment.

Interim Care package – the LGSCO found that the Council had appropriately provided Miss K with an interim package of support. It found no fault pertaining to the requirement for Miss K to attend her review and acknowledged that difficulties in arranging the meeting had led to delay in completion of the review.

Mental Capacity assessment – the LGSCO found fault as the Council had sufficient information to indicate a need to do this assessment in June when the interim plan was completed. The Council rightly started with a presumption of capacity but failed to start the assessment until early 2019. The LGSCO found the Council at fault as there was also a lack of relevant emails in its file.

Whilst Ms J disagreed with the questions asked during the assessment process, the LGSCO did not find fault with the Council in this regard. The LGSCO role is to consider the Council’s actions, so it found no fault with the delays caused by lack of availability of advocates.

The LGSCO found that Miss K nor Ms J suffered injustice because of the Council’s failings pertaining to the Mental Capacity assessment as the interim care package remained in place.

Period after the assessment – the LGSCO found that the Council correctly determined the need to carry out the Mental Capacity assessment prior to the review. It found no fault regarding the advocacy organisation as it was not subject to the LGSCO jurisdiction.

The LGSCO relied on the Council’s records in relation to the respite. Records were unclear as to when Ms J told them about the refusal of respite. It is on this basis that the complaint was not upheld by the LGSCO as it could not ascertain when the Council was informed and in any case the refusal would not have resulted from the Council’s actions.

The LGSCO acknowledged that Ms J preferred for Miss X to access a more expensive provision that would provide much less respite. A review of the provision for Miss X is subject to a separate complaint.

The LGSCO importantly identified that the Council was unclear that Ms J and Miss X going away with a personal assistant was ‘not respite’.

Ms J also complained that the Council failed to identify a contingency plan and provide a final budget. These matters are contained within a separate complaint. The LGSCO identifies that there were numerous delays that impacted on completion of the review. The review would have then prompted the final care plan document.

The LGSCO found fault in relation to the Council’s failure to meet Ms J’s assessed needs as a carer. It did not accept the Council’s reasoning that it had been focusing on Miss X’s needs and her review throughout the whole year. The Council also failed to record any decision relating to the funding request.

Finally, in relation to the holiday request, the LGSCO found fault with the Council as it had no record of its decision-making.

In terms of injustice, the LGSCO identified that the delays in carrying out the assessment, lack of records and holiday request funding may have led to uncertainty for Miss K and Ms J. The LGSCO reference a lack of evidence to determine whether Miss K and Ms J ‘missed out’ due to the Council’s fault.

Remedies

The LGSCO agreed with the Council that within one month it would write to Ms J with an apology for the delay in taking action following the carer’s assessment and for the inadequate records. The LGSCO also recommended a symbolic gesture of £100 be paid to Ms J in recognition that she may have experienced injustice caused by the uncertainty that resulted from the delays.

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

Whilst a somewhat complicated set of facts, there are some key legal issues in this complaint that warrant further expansion.

Firstly, the Council accurately recognised the importance of involving the person in their review process and started from a presumption of Miss K having capacity to be involved with her care planning. However, the Council was privy to information that indicated Miss K might lack capacity, but took 5 months to recognise that.

There is no reference to whether the implications for that lack of capacity had been properly worked through for the appointment of Miss J as an Authorised Person either.

Whilst it effectively recognised the need for Miss K to be supported by an advocate, this delayed the review process even further as the advocacy organisation couldn’t provide an advocate soon enough.

The Mental Capacity assessment was eventually completed almost a year later than the information held by the Council. Fortunately for this council, an interim care plan remained in place to support Miss K and prevented injustice to her.

Ms J raised the issue of the advocacy organisation’s policy compromising its independence. Whilst we do not know if that is what Miss K did experience, the LGSCO didn’t address this particular point in its response due to its jurisdiction. However, commissioners need to be aware that an advocacy service that does not meet initially with the person alone has potential to be viewed as biased.  This is an easy conclusion to arrive at, because there is a right for an advocate to see the individual in private.

In terms of seeing Miss K, the Department of Health Statutory guidance (6.40) states that ‘Local authorities should also consider the impact of the assessment process itself on the individual’s condition(s). People may feel uncertain and worried about what an assessment involves and may find the process itself to be strenuous. Local authorities should therefore give consideration to the preferences of the individual with regards to the timing, location and medium of the assessment’.

The Council did attempt to involve Miss K but only saw her twice. This meant it could not determine whether she had capacity to make decisions in relation to the management of her care and support. The learning here pertains to the importance of giving information in advance and really giving some thought to the way in which people can become involved and participate meaningfully as part of the practitioners’ preparation for an assessment – this requires more than just looking at the last review and arriving at a meeting.  

The issues with the respite service were a key consideration by the LGSCO. Miss K had been allocated 12 nights per year at a respite placement, but Ms J and the provider had different views on its refusal to accept a booking. Council records were insufficient to indicate when Ms J raised this as a problem, however it eventually resulted in the placement being deemed no longer suitable due to Miss K’s anxiety in relation to a stay. Ms J’s request for an alternative higher cost placement was rightly considered by the council, who had offered an alternative option that was available for Miss K. Councils do not have an endless budget with which to meet the needs of all its service users, therefore they can legitimately take into consideration that means can be met in a variety of ways, as long as all adequate and appropriate and say ‘here is a budget and if you wish to access a more expensive option, then this will reduce the number of nights respite you have’.

This is outlined in the Department of Health Statutory Guidance (10.27):

In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. 

The law in fact is that they can say that in relation to a person with capacity, or a person with a best interests or welfare deputy decision maker, but they cannot and must not say ‘Here is a budget, now make that do, for all the respite that you need.’ They must address the real local market rate for adequate respite, and only treat a person as able to spread it more thinly by buying something more expensive, if they have provided enough for the amount of respite they had concluded was needed in the first place, at the lower rate.

The Carer’s budget: The LGSCO said this: “I am not recommending any review of the carer’s assessment in this decision, as my understanding is, since these events, the Council has carried out a further review”.

We have to say that we think that the lack of implementation of the carer’s assessment should have been reflected in a restitutionary award, since Miss J had had an indicative budget but no care plan was ever formalised or delivered upon, and the council’s excuses for prioritising Miss K’s arrangements were not seen as justification by the LGSCO.

The Council were also found at fault for failing to meet Ms J’s needs as a carer following her assessment. Whilst she agreed for Miss X’s review to be a priority, the council failed to source support for her with cleaning and gardening. The care plan  must be sufficient to meet the need, and it goes without saying that sourcing cleaners or gardeners should not be as difficult for Councils as sourcing care and support for people with complex care needs and take the major part of a year. Whilst the signposting to charities as suggested by the Council manager can be a mechanism by which to meet a need, that support has to be available and if aimed at prevention or reduction, should normally take place prior to the assessment and not as a result of the assessment. 

The final point of importance in this complaint is that of the decision-making of this Council. Ms J requested support with a holiday to a family event. The request was considered but delay occurred which led to the decision being communicated to Ms J less than a month before the event. The decision was not properly recorded and therefore unclear to the LGSCO, but the Council did not consider its power to meet the need under s.19 Care Act 2014. It had the discretion to do so. The LGSCO raised the issue that the Council were unclear in recognising that Miss K’s trips away with a personal assistant and Ms J were not respite, in its opinion.

The Council took the view that it was not duty bound to provide the non-care elements of the trip – flights, accommodation, care hire, travel insurance – provided there were alternative means of maintaining family relationships.  The Council of course had a power to provide for facilities regardless of whether there was eligibility and must have adjudged its resources could stand a £500 contribution and offered it because of the delay in a decision. The lack of an efficient and prompt reviewing and care planning system was the maladministration here.  The delay in even making this decision later cost the Council an additional £100 by way of recommended compensation.

Advocacy: it is true that the LGSCO has no jurisdiction over advocacy organisations and can’t tell them how to discharge their role under the Care Act. Here, there were staff sickness issues as well. We would have liked to see the investigator underlining that the provision of independent advocacy is an absolute duty under the Haringey case that was one of the first to be heard after the Care Act came in. Scarcity is usually a matter of how much is being offered for the service, and the law is that it can’t be rationed by reference to available resources; it costs what it costs, so whilst actual scarcity during Covid might have been excused, for instance, it would not be lawful to say “We haven’t got sufficient advocates for the through-put of our statutory processes – you will have to do without, or wait”.

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The full Local Government Ombudsman report into the actions of Hertfordshire County Council can be accessed here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-001-890

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