Staffordshire County Council at fault for delay in reassessment and not meeting an assessed eligible need

Decision Date: 03/03/2020

What Happened 

Mrs X complained on behalf of her grandmother Mrs Y.

Mrs Y lived in sheltered housing. In March 2018 the carer she had been privately funding fell ill, so Mrs X contacted the Council for support. 

The Council arranged to assess Mrs Y on 27 April. Until then, Mrs X arranged for three calls a day from Care Agency A to meet her care needs.

The assessment identified Mrs Y as having eligible care needs and arranged for a carer to visit four times a day to help with maintaining a habitable home environment, amongst other things (maintaining personal hygiene, managing toilet needs, being appropriately clothed, managing and maintaining nutrition)

Mrs X expressed that they would like to continue using Care Agency A, and Mrs Y had already established a good relationship with its carers.

The assessor noted that Agency A charged more than the Council’s hourly rate of £16.10. She said the Council could broker an arrangement with another care agency (B), which Mrs X accepted. The assessor said: “cleaning will have to continue as a private arrangement”. She also told Mrs Y cleaning, shopping and laundry would have to be set up as a private arrangement if Mrs X could not continue to help.The LGO report did not go into detail as to why. 

Care Agency B met with Mrs Y on the 8th of May to draw up a support plan to put in place the next day. 

On the 9th of May Mrs X told the Council Mrs Y was not happy with agency B and wanted to have direct payments so she could make her own arrangements. She said agency B had spent too long with Mrs Y the day before, and the carer who visited was “useless and didn’t do anything for her”, and would not do any of her shopping and cleaning. 

The Council told her she would have to pay privately for shopping and cleaning (despite it being included in her care plan) and said she would need direct payments to use Agency A and pay the difference as it charged more. 

Mrs Y agreed to this and said Mrs X would sort this out for her. Both care and direct payments were arranged by the 14th of May. 

Mrs X called the Council on 25 July to ask for a reassessment as she thought Mrs Y needed residential care. She thought that Mrs Y needed more than four calls a day and noted neighbours were going in between Agency calls to empty the commode and providing extra support. 

She called again on the 30th July to say that Mrs Y’s neighbours had entered her flat intoxicated on numerous occasions. The Council said to advise Mrs Y to use her pendant alarm if people came into her flat again, whilst the landlord tried to sort out the problem. 

Mrs X called again a month later on the 30th August, as she had still not heard anything further about Mrs Y’s reassessment. She said that Mrs Y’s health was deteriorating, and the police were now involved with the neighbour situation. The Council said it would prioritise the request for a reassessment.

The Council visited Mrs Y on 4 September. It decided there was no need to complete a reassessment as “Mrs Y had no night-time needs” and therefore would not consider residential care.

Mrs X in the meantime was also visiting her father daily, as he had recently suffered a stroke.

On the 8th of September Mrs X called the Council again, highlighting Mrs Y’s struggles; she had been seen by her GP because she said she did not want to be alive anymore, and the evening care call was too late for Mrs Y. 

The Council agreed to visit Mrs Y the next day to do a “safe and well assessment”. It said she was probably “too full of capacity to settle into a respite unit very easily”. !

During that visit Agency A said Mrs Y had “become extremely anxious and was screaming that she wanted to die and did not want to be alone anymore”. Her neighbour said Mrs Y regularly fell in the night and he was visiting her at least 12 times a day, but would not be able to continue doing so, and Mrs X still thought Mrs Y would be safer in residential accommodation. 

At that point, on the 10th September, the Council identified the need to do a full reassessment, more than 8 weeks after the request from her daughter.

Mrs Y went into hospital on 14 September as she had pains in her stomach. She died in hospital on 3 October.

The Council accepted there was a 13 day delay in responding to the reassessment request. (Although actually completing the reassessment took much longer) 

The Council said it’s general policy did include meeting the need for help maintaining a habitable home and from the report offered no explanation as to why it refused support as part of Mrs Y’s package when it was identified as an eligible need. 

What was found

The Council failed to help Mrs Y maintain a habitable home, despite it being assessed as an eligible need. This was fault. The Council could not fulfil their duty to Mrs Y by telling her she needed to pay for the support herself. 

The LGO highlighted that the Care and Support Statutory Guidance clearly states “there is no hierarchy of needs”. So the need for help maintaining a habitable home was just as important as the need for help maintaining personal hygiene, or any of the other outcomes identified by the Care and Support Statutory Guidance.

The Council accepted there was a delay in responding to Mrs X’s request for a reassessment on 25 July. They did not visit until the 4th of September despite Mrs X making it clear the current care package was not meeting Mrs Y’s needs (the neighbours were providing support and the care calls were not enough). This delay was fault. 

The Council did not complete an assessment on the basis Mrs Y had no night-time needs and would not therefore be eligible for residential care. That was also fault which the LGO stated resulted in it failing to address the inadequacies of the current care package.

The LGO was of the view that the Council should have considered respite care for Mrs Y in September 2018. However it ruled this out on the basis she was “too full of capacity” to settle in respite care. The LGO stated that it seemed likely that if anyone had discussed the possibility with Mrs Y, she would have been happy to accept the offer. 

The LGO could not provide a remedy to Mrs Y, as she had passed away. However recommended the Council write to Mrs X apologising for its failings and pay her £300 for the distress it has caused and the time and trouble it has put her to in pursuing her complaint. Furthermore, within eight weeks takes action to ensure officers consider the use of respite care when appropriate and it fulfils its duty to meet the need for help maintaining a habitable home.

Points to note for the public, service users, hospital leavers, family and peer supporters, advocates, and councils etc

This complaint highlights the way in which councils demonstrate a poor understanding of their responsibilities under the Care Act 2014, which in turn leads to inadequate support, delays and ultimately a significant impact on the person’s well-being. 

Taking the issues in this case, we can identify several ways that Staffordshire County Council failed Mrs Y, the first of which relating to its assessment and care planning. The council had assessed Mrs Y as requiring assistance with shopping, cleaning and laundry. Despite these needs being clearly contained within the care plan, it then tried to suggest that these had to be funded privately. Why, we ask, since the council had assessed and found Mrs Y eligible did it not then accept its responsibility to meet those eligible outcomes?

Put simply, this council had decided to apply a blanket policy of not funding certain ‘types’ of care. This is an arbitrary and therefore unlawful restriction of what it will and will not fund. The Care Act 2014 states this in respect of eligibility:

s.13(3) Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

  1. consider what could be done to meet those needs that do,
  2. ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

      (c) establish whether the adult is ordinarily resident in the local authority’s area.

Considering what could be done, does not mean that the council can just say that a person has to meet their own needs for a particular type of care. The Department of Health Statutory Guidance states that there is no hierarchy of needs and that certain types of needs should not be categorised as more important than others, so the person’s needs have to be looked at in their entirety. The council in this complaint failed to do just that. 

The council was also found at fault not only for its delay in assessing Mrs Y’s needs, but also for the basis on which it refused to assess, when Mrs X had clearly alerted it to a change in circumstances for Mrs Y. Under s.9 Care Act 2014, the law is clear about when and on what basis a council should assess:

  1. Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
  1. whether the adult does have needs for care and support, and
  2. if the adult does, what those needs are.

The law goes on to state that:

 s.9(3) 

The duty to carry out a needs assessment applies regardless of the authority’s view of—

  1. the level of the adult’s needs for care and support, or
  2. the level of the adult’s financial resources.

To state that a council will not assess or re-assess the person’s needs because they ‘have no night-time needs’ that would warrant a residential care placement completely overlooks the fact that a council is not assessing for a specific service such as day care or a care home, it is responsible for assessing the what the person’s needs are per the s.9 duty! 

The council then attempted to evade its responsibilities even further by identifying Mrs Y as ‘too full of capacity for respite care’ – we are not sure that this council understood that respite care could have been offered to Mrs Y and that this use of care could have informed a reassessment of her needs and supported her safety. It sounds as though the council was making an assumption that Mrs Y would simply choose to vote with her feet and not go into a care home even on a short term basis. It never offered this option to her – and saved paying the cost of the placement which could have made a real difference to Mrs Y’s health and well-being. We at CASCAIDr suggest that had Mrs Y not passed away, a significant financial remedy to her would have been highly appropriate. 

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of Staffordshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-011-306

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