Decision date: 17th January 2020
Mrs X complained on behalf of her adult son, Mr Y. Mr Y had severe learning disabilities, and had lived both at home and in supported living in the past.
In October 2017 Mr Y was detained under Section 2 of the Mental Health Act 1983, which allows for a maximum of 28 days’ detention for assessment.
Before he was detained, the Council had already been looking for a community placement for Mr Y. At the end of November the Council had identified three potential providers.
The LGO report stated that medical professionals agreed that whilst detention under the MHA was no longer necessary, Mr Y should stay in hospital while the Council arranged a new placement. That meant that a DoLS application needed to be issued, because he could not consent to care of that nature, even on a voluntary basis, due to his cognitive impairment.
After various meetings, by early January 2018, both the Council and Mr Y and his family had decided that what the report refers to as Placement 1 was the most favourable option. However, a panel subsequently rejected this placement due to ‘cost and incomplete plans’.
Despite the panel deciding placement 1 was too expensive, Mr Y still had a strong preference for going there. Mrs X also expressed strong reservations about considering other options given Y was so attached to his favoured choice, so his clinical staff continued meetings in hope of reducing the cost. This resulted, in February, in reduction of around £1,000 per week from the previously quoted fees for the care and support.
However, when the case returned to the panel, it again refused the so-called placement due to cost. It asked for other options to be considered.
By March 2018 Mr and Mrs X had instructed solicitors to act in Y’s interests and proceedings in the Court of Protection had started.
In April 2018 a ‘round table’ meeting took place, attended by the various parties under the supervision of and as directed by the Court. This resulted in an agreement for Y’s parents to pay a weekly top-up fee to enable his so-called placement with provider 1.
In this meeting the Council accepted Y had been shown around Provider 1’s property at a time it knew it was too expensive to achieve approval.
Deprivation of Liberty
The Council received an urgent self-authorisation by the hospital to deprive Mr Y of his liberty on 21 November 2017. Standard authorisation should have followed on within a specified time under the legislation, or been refused.
However, the Deprivation of Liberty Safeguards were not in place until 20th February 2018. This is because the Best Interests Assessor was not appointed until four weeks after the application; then the assessor then did not send her report until February, and there were delays in finding an external psychiatrist.
Mrs X complained to the Council. Mrs X said the failure to authorise Y’s DoLS meant he stayed in hospital longer than he otherwise would have, and Mr Y had his more general rights afforded under DoLS taken away and could not challenge it because she was unaware that the Council had appointed her as Y’s representative.
The Council allocated a manager from the learning disabilities department to respond to Mrs X’s complaint.
Mrs X said the manager had previous involvement in their case and was not independent enough (she had chaired meetings with the family and others as directed by the Court of Protection).
What was found
The LGO found no fault in the Council’s efforts to find Mr Y what the report consistently refers to as a placement. It can consider cost in making decisions.
The LGO also considered that whilst there was a delay in finding a placement, this was not only due to the Council’s actions. It had to rely on private suppliers sending and requesting relevant information, rather than it simply being a matter of cost.
However, the LGO stated that there was a significant problem with communication and raised expectations. It stated that the Council was often unable to fully explain to Mrs X what was happening in finding a placement for Y. The breakdown in communication lead the LGO to conclude that the Council raised Y’s expectations about moving to Provider 1’s property prematurely. This was fault.
Deprivation of Liberty Safeguards
The LGO stated that there was undoubtedly fault in respect of DoLS in this case.
The DoLS Code of Practice says, “assessments must be completed within 21 days for a standard DoLS”. There were problems in finding a BIA, and then the Council failed to chase up the report until February 2018; far beyond 21 days. This was fault.
“There was significant and unacceptable drift in this case far beyond 21 days. While some of the evidence I have seen explains why it happened, it does not justify it.”
The fault caused Mr Y injustice; the Council’s failure deprived Mr Y of his rights, particularly to challenge his stay at hospital. On balance, the LGO considered that Mr and Mrs X would have acted on Mr Y’s behalf if they had understood DoLS in the way they only did once the Council authorised it in February 2018. It was not unreasonable to assume they would have approached the Court of Protection sooner.
The LGO did not uphold Mrs X’s complaint that the DoLS failures caused Mr Y to be kept in hospital for longer than necessary, because the BIA report stated that Y may have been at risk of harm, so should not be free to leave the hospital. Therefore, Mr Y would have been in hospital whether his DoLS was in place or not, but it was unlawful in a technical sense.
The LGO stated that although the Council’s decision to appoint a manager not sufficiently independent of the case to investigate Mrs X’s complaint was fault, it did not cause any injustice as the response was suitable and approved by a director before sent to Mrs X.
The LGO recommended that the Council
- apologise to Mr and Mrs X for any uncertainty and frustration caused by the Council’s failure to properly manage Y and his parent’s legitimate expectations, and the unacceptable delay in authorising his DoLS.
- Carry out a senior level management review of the current timescales to process DoLS applications and clearly identify any issues, including with timeliness.
Points for the public, providers, service users, families, deputies and advocates
We have referred to the report’s treatment of the accommodation arrangement as a so-called placement, because whilst it is called a placement by the LGO, we think that a fundamental point to focus on is whether that is correct, or whether the arrangement was in fact going to be a tenancy, which should never be called a placement by anyone caring about the legal exactitude of the analysis being done.
There is no clarity as to whether “Placement 1” was a care home or a supported living setting. The only hint is that the provider was ‘in the process of buying the property’ which points towards it being a supported living setting, although that is not conclusive – it could have been being bought as a care home. We’ve set out in a footnote below, the references to a placement to show the ambiguity.
The reason this could matter to a significant degree will become obvious when one reads on.
The LGO investigator has inadvertently made a legal mistake in the report to which we have to call attention:
“The Deprivation of Liberty Safeguards (DoLS) came into force in April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.”
This is very wrong indeed. The safeguards do not apply in tenanted accommodation, and the balance of the evidence from this report suggests that that is what was being considered here. The Safeguards apply in care homes and hospitals only.
The law sets out the procedure to follow to get authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
In this case, it was the hospital’s responsibility to apply for authorisation. The Council was the supervising authority. On application, the supervisory authority must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation is already in place, before the urgent authorisation expires.
The Council granted an urgent authorisation in this case on 21 November 2017. The hospital made a standard application at the same time. There followed a significantly delayed response from the Council, meaning Y’s DoLS was not in place between 29 November 2017 until 20 February 2018. This means Y was not covered by the DoLS during that period as it could not be backdated.
The LGO investigator has also left some really difficult legal points unexplored and thus the reasoning and rationale for the outcome is ambiguous, too, in our view.
The report suggests that it was the responsibility of the council to find accommodation, whereas in fact the widespread and almost universal assumption in social services departments is that finding ordinary housing (where a care home is not needed) is not part of social care, and is a separate housing authority issue only.
Anyone who understands the specialist nature of supported living SERVICES would cavil at the notion that supported living housing is ordinary housing, and they would not be wrong. One never finds those houses advertised on Spareroom or occupied by a mixture of people, some without any disabilities. CLEARLY, TO THE WHOLE SECTOR, the houses in which these services are delivered are special in some way that is never explained. But the tenure of the properties is always delivered through a tenancy, usually with a property Deputy signing the contract for the occupation.
There is no legal reason why a council or a CCG can’t take occupation of the premises up on a long lease, and then offer SUB-tenancies to clients whose deputies are WILLING to commit the person to paying rent – usually the case when a person will qualify for housing benefit. There is no reason why the council or the CCG can’t guarantee voids, deficits etc with respect to the rent, either, if they don’t want to take up a lease themselves.
But that is not how the sector works at the moment. People are signposted to vacancies in existing households where tenants are living under the supervision of the specialist care provider; and they do not get into those vacancies unless the care provider nominates them, usually in return for guaranteeing the voids and deficits themselves, and thus tying the care to the accommodation.
Never mind the legality of that tying in, for a moment, in CQC terms, for registration: the obvious impact is that where one might live, and any choice in that matter, is covertly limited. The desire for shared care savings and the importance attached in managerial terms, to that concern, make commissioners think that it’s ok to make people wait in institutional care unless or until they go along with the idea that people will ultimately CHOOSE to go where the council tells them.
The legality of that has not been tested in court, and if it means making access to care to meet eligible assessed unmet needs, under the Care Act, conditional upon taking on a contractual liability for rent in a place of the commissioner’s choosing, we do not think it would pass muster.
The LGO has itself contributed to this debate by highlighting in three recent reports concerning s117 Mental Health Act clients that FINDING and providing the accommodation, even outside of a care HOME, CAN indeed be part of the statutory duty on the s117 authorities.
This direction of travel will have obvious implications for those with less than formal s117 status – such as this man, detained under s2, not s3 of the Mental Health Act, AND people who are voluntary patients technically, in ATUs, whose parents cannot feasibly or would prefer not to have them home to live in the family property.
It is beginning to be accepted that councils DO have to PROVIDE (not just signpost towards) accommodation, ie contract for it, so as to be able to provide it, and therefore to PAY for it.
Understanding this would logically mean that many people could get out of the institutional sector – escaping would no longer turn on the happenstance of qualifying for Housing Benefit and a VACANCY in an existing household where specialist services have been commissioned. But people would end up living singly, more often than at present, so costs would go up.
This may have been one of those cases, but one cannot tell. The LGO report uses the term ‘placement’ loosely – whereas a placement is only a placement if the occupation right is contracted for by the council. The LGO report refers to properties and the provider purchasing property 1 but without any clarity as to whether the plan was that it should become a registered care HOME or be tenanted. The parents agreed to pay a top up, which is normally an arrangement in a care HOME, for wants as opposed to needs; HERE, it is simply unclear what elements of the proposed plan were being regarded as wants and not needs, or whether the package was an integrated one for care together with accommodation, or one where the elements were being separated by a genuine tenancy and a separate commission of services. The latter IS possible, but very hard to find because in practice, the care provider nominates the client into the tenancy, so that the only way one gets into the house is if the provider has secured a big enough fee for that company to guarantee HB voids, deficits against the rent in the tenancy, or empty rooms due to incompatibilities.
So, this is an area that is part of our test case litigation, if anyone is interested in destabilising the entire market…which is not our aim, but which may be the outcome.
On the question whether the breach of the MCA, between an expired urgent authorisation and a standard one’s finalisation is a technical breach, or one that sounds in damages, the LGO report hints that it might well be technical – the report makes no recommendation of financial compensation, and equates technical breach to a finding of fault, but not one where injustice was caused.
We think that that is misguided, on the facts of this particular case, because of how it inter-related with the perceived acceptability of the care planning being interminably drawn out -and because of how it affected the parents’ perception of the legal situation and their own rights and opportunities for challenge. But it’s not a crystal-clear case. We would simply point out that that
- The LGO cannot determine the point as a matter of law, although of course has jurisdiction to consider the facts in light of its own policy on remedies.
- We have succeeded in getting £8K damages in a similar case where a person remained in a psychiatric facility for several weeks longer than he should have done, on account of reliance on the ADASS document mentioned below.
Here is the issue: it is common nationwide for councils to exceed DoLS timescales now, because
- Thousands more people needed the process if the law was to be complied with than the councils had been given the funding to organise
- ADASS has issues guidance as to how to prioritise the cases that should be being put through the process, and the culture in local government is to think that therefore that guidance must have some legal status or would somehow justify failure to abide by the law.
- There is no funding on offer from government for the appointment of litigation friends or even representatives in the numbers that would be needed were the system to be running properly
- There is legal aid for people to challenge deprivation of liberty if they want to, so councils are just leaving it to the most concerned families to bother to prioritise assessments
- The courts will now distinguish between REAL ‘substantive’ breach and only technical breach for the purpose of awarding financial compensation for breach of DoLS/human rights under article 5.
- The Liberty Protection Safeguards have been created, but not yet implemented (and now being brought in, only in 2022) – to extend paperwork-based safeguards to the supported living sector. Since it is a person’s own home, that will have to be carefully defined, or else safeguards extended to people living everywhere, even in a relative’s house, as a guest.
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The full Local Government Ombudsman report of London Borough of Haringey’s actions can be found here
Footnote on the ‘placement’
The Council has a responsibility for finding Y a placement – that responsibility is undefined – s23 of the Care Act prohibits the provision of accommodation if it’s the Housing Authority’s duty.
It has a list of approved private providers and uses a ‘brokerage’ process where they bid for a contract once the Council advertises a client’s requirements. Once it finds a suitable provider the case goes to a Council panel to agree whether the placement is acceptable and to sign off the cost – this could be a care home or a supported living contract.
By early January the Council identified a favoured location, which Provider 1 put forward. Provider 1 was in the process of buying the property, but it was also subject of interest from a competing provider. The Council said it would not commission Provider 1 until it was clear who owned the property – this could be a care home contract OR a supported living contract.
In April 2018 a ‘round table’ meeting took place, attended by the various parties under the supervision of and as directed by the Court. This resulted in an agreement for Y’s parents to pay a weekly top up fee to enable him to move to his preferred location with Provider 1. In this meeting the Council accepted Y had been shown around Provider 1’s property at a time it knew it was too expensive – again, inconclusive.