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Thank you so much for the help and the recommendations

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Our phone call and your advice was exceptionally useful

“Our phone call and your advice was exceptionally useful and something of an alarming wake-up call, for which we are most grateful. And thank you for your great effort in identifying the points for us to consider, outlined in your most recent email today.”

Rotherham Council at fault for charging for care after a person’s assets had fallen below the threshold

Decision Date: 21st September 2020

What Happened

Mr Z complained on behalf of Miss X.  Mr Z had held lasting power of attorney for her financial affairs, and her health and welfare, since 2014. 

Miss X had lived at a care home for several years, as a self-funded resident.

In September 2016 Mr Z told the Council that Miss X’s funds would soon fall below the threshold of £23,250. 

Mr Z complained to the LGO that the Council failed to act properly after he alerted them to this fact. He made numerous complaints about the following issues:

A.  Delay in financial assessment – Mr Z told the care home and the Council in September 2016 that Miss X would no longer be a self-funded resident as her assets were about to fall below the relevant financial threshold.  The Council did not undertake a financial assessment.  

Mr Z chased the Council in January and July 2017 and eventually a social worker was appointed.  

The Council did not complete the financial assessment until the end of December 2017, by which time Miss X had only £4,000 left in her bank account.  The Council took over two years to complete a financial assessment despite repeated chasing from Mr Z between 2016 and 2018. 

It caused Miss X to have to pay the care home fees from her limited funds and led the care home to threaten to evict her when she had no money left.

B.  Paying the care home rather than Miss X  – the Council wrongly paid the care home about £20,000 in February 2018 instead of reimbursing Miss X, who had been paying the fees from her own funds. 

The Council then paid the care home around £16,000 in August 2018, but this payment was then cancelled in February 2019. 

Another payment was issued in March 2019 of around £28,000 which was then refunded to Miss X. 

The Council informed the LGO that the Council’s contract was with the care home, rather than Miss X, which is why it paid the care home. The Council said that the care home should have then refunded Miss X.

C.  Paying care fees after February 2018 – The Council completed a best interests assessment in January 2018 which concluded that Miss X should not be moved from the care home, where she had been a resident for several years. 

The Council failed to pay Miss X’s care fees after February 2018 as it had agreed. 

Thereafter the Council sought a weekly contribution from Miss X for her care.  The care home, and a social worker, told Miss X that if she could not find someone to pay the third-party top-up fee, then she would have to move out.  The care home used the money wrongly paid and then threatened to evict Miss X again when the lump sum ran out. 

The Council wrongly told Mr Z that Miss X owed almost £7000 in top-up fees.  

D. £7000 debt – The Council sent Mr Z a copy of an invoice in September 2019, stating that Miss X owed £7000.  Mr Z thought this was accumulated third-party top-up fees.  The Council explained it was the client contribution based on income.

The Council failed to provide an explanation of the figures or how these had been arrived at, and failed to explain this to Mr Z. 

What was found

Complaint A – The delay in assessing Miss X’s finances was fault. 

Complaint B – the LGO stated that although the Council could decide which account to pay into, Miss X or the care home, it was responsible for the delay that caused Miss X’s financial loss and for her placement as she could no longer afford it herself. The Council should have at least followed up with the care home to ensure Miss X had received the money she was owed. Failure to do so was fault. 

Complaint C – the Council in seeking a third-party top-up fee, because it had already decided that it was in Miss X’s best interests to stay at the care home, was at fault. That the Council discussed the matter with Miss X directly, rather than her financial attorney Mr Z, was also a fault

Complaint D – the Council in its unclear communication and manner in which it sought to recover £7000 from Miss X, was at fault. The LGO emphasised that Mr Z, like most people, was not an expert in adult social care, so it should not have been expected that he understood without clear explanation what the charges were for. 

Injustice caused

The £28,000 was not refunded to Miss X until March 2019, two and a half years after Mr Z first highlighted that Miss X could no longer pay for her own care. Both Mr Z and Miss X feared she would be evicted from the care home, particularly in early 2018 when the care home and Council were requesting third-party top-up fees.  Mr Z was very distressed on numerous occasions, and it greatly affected his and Miss X’s friendship for some time. Mr Z was also put to considerable time and trouble bringing action. 

Remedies

The LGO recommended the Council: 

  • Apologise to Miss X in writing and pay her £500 for the distress its actions caused her;
  • Apologise to Mr Z in writing and pay him £750, comprising £500 for the distress its actions caused him and £250 for his unnecessary time and trouble;
  • Review its policies and procedures relating to charging for care, amending them if necessary to ensure that money owed to a person is paid directly to them, or within a month to follow up any refund to care homes so it is properly passed on to the client.  Also to ensure that a residential care placement that is in a person’s best interest is not subject to third-party top-up fees;
  • Arrange training for relevant staff within three months of the final decision to ensure correct practice is embedded.

Points to note for councils, professionals, people who use services and their cares, advocacy providers and members of the public

This complaint highlights the gravity of councils delaying core functions such as carrying out a financial assessment and taking over the legal obligation to meet the needs (at a council rate). Two years in our view is wholly unacceptable and the LGO could have gone further and awarded interest on top of financial remedies for the delay. 

We can see here that the impact for the person of not knowing whether they would be evicted must have been extremely stressful and that councils should recognise the multitude of people who have never had contact about care with councils that are coming to the situation not knowing what the system is. The advice and information duty in the Care Act ought to be working by now!

To be clear, the Care and support statutory guidance requires councils to communicate well with individuals and at paragraph 8.16 says this:

‘Where a local authority has decided to charge, except where a light touch assessment is permissible (see paragraph 8.22 below), it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.’

The LGO was not correct in its conclusion that the Council could choose whether to pay the care home or Miss X. The smallest amount of legal analysis in the report would have distinguished between refunding what she had been obliged to pay as a self funder, and paying the care home from the date when the council made a contract in its own name, or should have done, backdating it to the point when she was known to be going under the threshold, if the care home would only agree. The trouble is that by the time this was sorted out, many months MORE of private person’s fees would have fallen due, and the care provided, at the rate that had been agreed, previously, by Miss X. Care homes do themselves out of repayment if they allow themselves to be bullied by commissioners into backdating the council rate to a far earlier point. 

The situation became so dire that Miss X was then asked for top-up fees from her last £14250, which is not unlawful if it is what a person would like, in order to stay put – but should never happen once a council has decided that the person ought not to be moved, in terms of what her needs compelled. 

This Council had time to act, to carry out the financial assessment, provide information and ensure that Miss X and Mr Z knew what was required of them. 

The LGO rightly found fault here – a two year delay is never going to be acceptable to anyone. 

This is yet another LGO report where no excuse or reason seems to be sought from the council for its inexplicable failure to do what has been the law for over 25 years in one shape or form. Redrafting of policies and providing staff training as was recommended here will be no good if nobody bothers to read the policies or absorb the training. 

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 Rotherham Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-008-361

Leicestershire County Council at fault for failing to do a risk assessment prior to an essential visit to a care home, and failing to take the appropriate PPE equipment which placed a person at an increased risk of harm

Decision Date: 17th March 2021

What Happened

Mrs X complained on behalf of her adult son, Mr Y, who had been living in a care home. 

In July 2020, a safeguarding concern was raised regarding the care home Mr Y was staying in, which resulted in the police, the Council and the CQC visiting the home at the same time. 

Mr Y was funded by a different authority to the one leading the safeguarding enquiry. 

The Police made enquiries into potential criminal activity and the CQC undertook an inspection which concluded improvements were required.

The Council attended in case the police needed to move people from the accommodation.

After the visits, Mrs X complained to the Council about previous actions taken by a social worker (social worker A). Mr Y had been upset by the visit, and Mrs X complained on his behalf that social worker A had:

  • accessed Mr Y’s notes without his permission and did not tell him how the information gathered would be stored;
  • put Mr Y at risk of contracting COVID-19 by not sanitising her hands, failing to wear a medical face mask, a face shield, gloves or an apron;
  • spoken to Mr Y for 50 minutes and sat less than 1.5 metres away from him; and
  • failed to share the risk assessment (undertaken before visiting the home) with Mr Y.

The Council replied in August, but explained the actions of a social worker manager, rather than social worker A’s actions. It stated that the social worker manager had:

  • visited the care home with her team, the Police and the Care Quality Commission in response to safeguarding concerns;
  • spoken to Mr Y in a smoking shelter and explained they were undertaking an investigation
  • maintained a two-metre distance from Mr Y at all times, wore a cloth mask and gloves provided by the care home, and used hand sanitizer when moving between tasks
  • did not access Mr Y’s notes, only his care plan record; and
  • did not store information on the Council’s system about him.

Mrs X remained unsatisfied with this response. She wrote back to the Council highlighting that she had not been complaining about the social worker manager, but about social worker A. 

She had been told by her son that when the first social worker had been told she could not access his records, she had said “You think you are the boss; you are wrong, I am” and read them without his consent.

She also stated that the Council was incorrect, as the social worker manager had not worn a facemask nor kept two metres away from him, because the smoking shelter was smaller than two metres in size. 

Mrs X also asked that the Council provide the outcome of the risk assessment undertaken before visiting the care home. 

The Council replied in October 2020, stating that it could not share details of the safeguarding concerns or the risk assessment as they contained confidential information. It maintained that the visit followed PPE guidance for frontline care pathway staff undertaking essential visits; the visit was essential, and there was no need for officers to wear PPE as they could remain more than two metres away from people. It still did not provide a risk assessment for the visit. 

The Council stated that it had no concerns over social worker A leading the safeguarding enquiry.

What was found

The LGSCO did not make any specific reference to either of the social workers’ actions. 

The Council was not at fault for the visit in July, as it was a response to safeguarding concerns. However, the Council should have been able to provide a copy of the risk assessment, and there should have been one, amounted to fault. The LGO considered that no risk assessment had been undertaken, even though the council had implied that there was one. 

The LGO said that the council officers would not have known what level of PPE would have been appropriate until they got to the care home, so should have had surgical masks with them. The fact that they did not, was fault. The LGO emphasised that this failure put Mr Y at risk of harm. 

At the time of the visit, the government had no official guidance for social workers in relation to PPE. However, when guidance was introduced, it required the use of surgical face masks but not the use of gloves or aprons. Therefore, the LGO stated that there “would have been no specific need for officers to wear gloves or aprons when visiting Mr Y”. The LGO did however recognise that each establishment would have its own requirements, which is why the Council officers agreed to wear gloves provided by the care home. 

The LGO recommended that the Council:

  • apologise to Mr Y for the distress it caused to him and the failure to do a proper risk assessment before visiting the care home;
  • ensure officers do risk assessments and record them before visiting people in their homes and take appropriate PPE with them to cover all possibilities.

Points for the public

It is difficult to tell what was really going on in this complaint; one can’t be sure whether Mr Y was perceived as a victim or as a perpetrator of the concern being investigated, and that is no doubt because the LGSCO wishes to protect everyone’s right to anonymity here.

When a local authority on the spot has to go and do safeguarding, the staff were absolutely within lockdown law to go and visit – they were acting in the course of a legal duty and doing their jobs. But of course they have to abide by Guidance, and the situation in a care home was acknowledged to require PPE. 

We can’t guess why the LGSCO says nothing about the actual diameter of the smoking shelter, since the council would appear to have been defending itself on the basis of the facts – and the facts could have been nailed. 

Neither can we guess why nothing was said about the allegation that the first social worker used hugely inappropriate language regarding access to records, in the face of lack of consent from a person who was not that safeguarding council’s client. 

The last puzzle is whether or not there was a risk assessment before the visit occurred. A risk assessment in this sort of situation is just posh language for this question: did anyone turn their minds to what they might have to do when they got there, and whether that required them to prepare for any duties that might arise – whether those duties would have been derived from the lockdown regulations, government guidance or the wider law, or simply out of respect for the care home’s staff and residents and any policies that there might have been in place there, for visiting, whatever the purpose. Here, the council implied that it had done one but the family could not have sight of it; but the LGSCO appears to have decided that none had occurred, and that one should have been done. Frustratingly, the LGSCO doesn’t analyse the question as to who should have been entitled to SEE that risk assessment. We would have thought that it was the Home’s management, in the first instance. 

The same principles would have applied to the police and CQC of course, but the LGSCO has no jurisdiction there, so we are not surprised to find nothing about that.

We cannot begin to estimate the number of complaints that there will be about this sort of thing once the LGSCO gets into its stride about incidents driven by the unique circumstances of early lockdown and it is too soon as yet to make any evaluation of the extent to which the legal framework was or was not complied with, in the sector, to our minds.

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 Leicestershire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-007-059

Cheshire East Council at fault for not having a process for reviewing Do Not Attempt Resuscitation (DNAR) documents in place

Decision Date: 1st February 2021

What Happened

Ms E complained on behalf of her late mother, Mrs F. 

Mrs F was a resident at Ingersley Court Residential Care Home. The Council arranged and partly funded her care.

On an undisclosed date, Mrs F complained to her carer that she felt sick at 7pm. The carer reported this to the team leader on duty. 

Mrs F still felt ill when she was checked on at 10:15pm. 

At 10:47pm Mrs F’s stomach felt worse, and she felt cold and clammy. Her carer stayed with her. 

At 11:15pm the carer called for an ambulance. (the report did not go into Mrs F’s symptoms at this point).  Around midnight when the paramedics arrived, they asked whether Mrs F had a ‘do not attempt resuscitation’ (DNAR) decision on file. 

The carer could not find a DNAR in Mrs F’s file, so called Ms E to inform her of Mrs F’s condition and ask about a DNAR decision. 

Ms E said that there was a DNAR on file, but since it could not be located the paramedics began resuscitation. 

Mrs F unfortunately passed away. 

Ms E complained that the care home took too long to call for an ambulance or herself to be informed of her mother’s condition. She also complained about the DNAR missing from Mrs F’s file, and finally about the state of Mrs F’s room when the family visited the next day. 

The care home stated Mrs F did not have a DNAR decision in place, the carer had called the ambulance at an appropriate time and contacted Ms E as soon as she could. It apologised for Mrs F’s room not being cleaned after she died and that in the future domestic staff would be instructed to ensure this did not happen again. 

Ms E was unhappy with this response and asked for a review. After its review, the care home maintained that it called for an ambulance at the right time, and apologised again for the unclean room. 

The Council also investigated Ms E’s complaint at this time. It stated: 

  • The carers could not call the family sooner as they were trying to manage an emergency;
  • The carers called for an ambulance when they saw Mrs F’s condition was deteriorating;
  • The care home manager spoke with Mrs F’s GP and the GP did not have a record of a DNAR decision;
  • The Council recommended the care home reviewed its DNAR records regularly, clearly recording the wishes of a resident to avoid contacting families in an emergency;
  • The state of Mrs F’s room was unacceptable, and the care home had reflected on how it should have agreed a mutual time when it knew the room was satisfactory for family members to attend.

Ms E remained unhappy with the Council’s response and complained to the LGO. 

What was found

The LGO stated that although Mrs F first reported feeling unwell at 7pm, and an ambulance was not called for until 11:15pm, the staff acted appropriately. When the staff began to have serious concerns, they promptly called for the ambulance. The team leader on duty waited with Mrs F until the paramedics arrived. The care home’s policy stated that if there were ever concerns regarding the health of their residents that the staff cannot manage, emergency services should be contacted. Therefore the care home acted in accordance with its policy and there was no fault in this regard. 

There was also no fault in the amount of time it took for the care home to contact Ms E to alert her to the situation. The LGO agreed with the Council in that the staff acted in Mrs F’s best interest. They were managing and prioritising an emergency situation, and the LGO was satisfied that Ms E was called at the safest opportunity. 

Ms E said that Mrs F did have a DNAR in place. During its investigations the LGO could find no record of this. However, the LGO did identify that the care home did not have a process to regularly review its DNAR records (to avoid contacting family in an emergency). This was fault. The care home informed the LGO that it has since implemented a review process. 

The LGO recommended that the Council:

  • Apologise to Ms E for the upset and distress caused by failing to have a proper process in place to review the DNAR documentation
  • Pay Ms E £300.

Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public

Those reading will note that the Council was found at fault in this complaint, albeit for the actions of the care home (here, omissions) as it remains responsible for those services provided to meet an individual’s needs.  The LGO can investigate complaints about bodies providing services on behalf of a Council and in this case was able to consider whether the actions of the care home should be found as fault. 

The issue that arose in this situation was that of a DNAR recording policy. DNAR rules were widely ignored during Covid by GPs and care home managers being told what to do BY GPs, but here the issue was that there was actually supposed to BE one, which could not be found, which meant that someone who may well have indicated that she did not want to be resuscitated, was put through the pain and indignity of an attempt being made. Ms E was called in an emergency and had clearly believed that the appropriate documentation of a DNAR was in place and that the process had all been gone through beforehand. This must have been a shock to her and she wouldn’t have been expecting such a call. 

The LGO was not able to find any documentation supporting Ms E’s position, and clarity would have been obtained sooner had the home been commissioned to do its job properly, or had thought to do it properly, for itself.  

Guidance from the British Medical Association, Resuscitation Council UK and Royal College of Nursing can be found on the link below and states this:

Decisions relating to CPR must be documented fully and clearly in both electronic and paper records. Healthcare providers using electronic records should have systems in place to ensure that decisions relating to CPR are available as soon as they are required. The format and content of an electronic CPR decision form should be similar to that of a paper CPR decision form’. 

https://www.bma.org.uk/media/1816/bma-decisions-relating-to-cpr-2016.pdf

The LGO recommended a financial payment to be made by the Council in respect of the distress caused by the situation. So although the LGO does not have the ability to ‘correct’ such errors and omissions, Councils should expect their contract monitoring staff to learn from these complaints and embed improved practice measures. When CQC starts to review councils’ commissioning practices under the Health and Care Bill it will be interesting to see what CQC takes from LGO reports such as this, assuming that commissioning for individuals is within its inspection purview (unclear as yet).

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 Cheshire East Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-018-012

Worcestershire County Council not at fault for the information it provided regarding third-party top-up fees, but at fault for failing to complete an annual review of the third-party agreement, and failing to check if the third-party was able to pay the fees

Decision Date: 13th November 2020

What Happened

Mrs X complained on behalf of her parents, Mr and Mrs Y.

Until the beginning of 2019, Mr and Mrs Y lived together at home. 

Mr Y was admitted to hospital in April. During this time, his other daughter, Mrs F, and Mrs X told the Council that they were applying for power of attorney for Mr Y’s finances. 

It was agreed between the Council and Mr Y’s family that he should be discharged to residential care. 

Mr Y was discharged to a residential care placement which was Council funded for 6 weeks whilst his long-term needs were assessed. 

The Council spoke to Mrs X in June to explain funding for care, third party top-up fees and options for accommodation. Mrs X signed a form stating that she understood Mr Y may need to contribute to his care, and the financial assessment process had been explained. 

Two weeks later the Council emailed Mrs X setting out two care home options that would be suitable for Mr Y. Home 1 cost £467 each week, with no third-party top up, and Home 2 cost £700 weekly with a £233 third-party top up fee. 

Mrs X replied to the Council discounting Home 1 due to its rating. The family had visited Home 2 and considered it as acceptable, but wanted to know if there were any other options available. 

The Council told the family that there were no other options available, and met with them to discuss funding options, client contributions and top-up costs. 

The next day Mrs X told the Council that they had decided the Home 2 top-up fees were unsustainable, but contacted the Council the following day changing her mind. Mrs Y preferred Home 2 and said she would pay the top-up. 

The Council began the process for organising a placement with Home 2, and said that Home 2 would assess Mr Y and send out the top-up details. 

Mr Y moved into Home 2 (date undisclosed), and the top-up payment application form was completed the day after. The application form included: 

  • both Mrs and Mr Y’s income, stating that they had a weekly disposable income of £332 after living costs
  • a written agreement between the Council and Mrs Y setting out 
    • the care home fees of £700
    • the Council’s weekly contribution of £467- including the resident’s assessed contribution; and
    • the third-party weekly contribution of £233.

The form stated that if the top-up fee was not paid then the Council may cease to fund the placement. 

Mrs X was granted power of attorney a week after Mr Y moved to Home 2. She completed Mr Y’s financial assessment and returned it to the Council. 

The Council wrote to Mrs X informing her that Mr Y’s contribution to his care was £239 weekly. 

Mrs X contacted the Council in September 2019 because she was confused as to why she had received two sets of invoices for Mr Y’s care. 

The Council explained that one invoice was for client contribution, and the other was the third-party top up fee. 

Mrs X replied to the Council stating that she had been unaware that client contribution and top-ups were different things. She highlighted that Mrs Y had put their joint income on the top-up form. 

The Council explained that if the top-up fee was unaffordable, they needed to give the Council four weeks’ notice so the Council could look into alternative accommodation for Mr Y. 

Mrs X complained to the Council (date undisclosed). 

The Council replied to Mrs X’s complaint in December 2019, stating that it had provided her and the family with sufficient information surrounding the financial assessment and contribution/top-up process. It said that if Mrs Y had put her correct income on the form then they would not have continued with the placement. 

The Council told the LGO that Mrs Y is meant to pay the top-ups directly to the Council, however, she had not made any third-party payments since July 2019. There was an outstanding balance of £13,880 for Mr Y’s care.

What was found

The LGO stated that the Council was not at fault for not offering further alternatives to Home 2, as it had already offered Home 1. Home 1 was within Mr Y’s personal budget, and although it was further away from family, the reason it was turned down was due to its ratings, not locality. 

The LGO considered that the Council provided sufficient information surrounding top-ups and financial assessments, and therefore was not at fault. Not only did they have numerous discussions with the family explaining funding streams, financial assessments, client contributions and top-ups, but both Mrs X and Mrs Y signed a document confirming they had been given the above information and understood that top-ups were separate from client contributions. 

However, the LGO stated that the Council must ensure that the third party is ‘willing and able’ to meet the costs. Mrs Y only completed the top-up form after Mr Y moved into the Home, therefore the Council did not consider whether she was ‘able’ to meet the costs. This was fault. However, the LGO stated that the fault did not cause significant injustice, because Mrs Y completed the form incorrectly. Had the Council received the (incorrectly filled out) form before Mr Y moved into the Home, it would not have made any difference to its decision making. The fact that Mrs Y filled out the form incorrectly, was not the Council’s fault. 

The Council was not at fault for stating that if Mrs Y could not afford the top-up fee then they must give 4 weeks’ notice to end the contract, as it was in line with the contract. Mrs X and Mrs Y did not give notice, but did not pay any of the top-ups. 

However, the Council was at fault, as it failed to take any action when the top-ups were not being paid. It also failed to complete an annual review for the third-party agreement in July 2020. This fault meant that the Council delayed in deciding whether it should move Mr Y to a cheaper home or pay the top-up fee itself. 

The LGO recommended that the Council:

  • Waive any outstanding top-up debt from July 2020 onwards when it should have reviewed the third-party agreement.
  • Tell Mrs Y if it intends to make the top-up payment, or whether it plans to transfer Mr Y to a different care home, following a further assessment of needs.
  • Remind staff of the need to complete annual reviews of third-party agreements.

Points to note for councils, professionals, people using services, carers and advocacy groups

This complaint pertained to information received by the complainant about third-party top-ups. Councils have a duty to ensure that the person has a choice of home, albeit that in this instance the choice of home that could be afforded within the personal budget had a poor quality rating. 

This was the reason that the complainant had chosen home 2, a more expensive but seemingly better quality home for her father when he was discharged from hospital. She had initially debated whether the third-party top up required was sustainable and the top-up form was in itself completed the day following Mr Y’s move into the home. 

The Care and Support Statutory guidance (Annex A) says this:

24) Before entering into the agreement, the local authority must provide the person paying the ‘top-up’ with sufficient information and advice to ensure that they understand the terms and conditions, including actively considering the provision of independent financial information and advice.

Note this is before entering into the agreement. In practical terms someone needing a hospital discharge into a home is going to need this to happen at pace. It may take time for families to assess options offered and their financial position in relation to paying a top-up and this may not be consistent with the speed at which discharges take place, let alone allowing for the emotional and decision-making elements of this situation. 

Many people struggle with the idea that their family member could be moved again and just want them to be settled if they are moving into a care home so it is important that councils get this right. Providing good information and at the right time can enable people to fully understand their obligations and the position of the council before making such decisions. 

This council did the following which was found to be sufficient:

  • The Council spoke to Mrs X and Mrs Y about the Council’s funding streams, financial assessments, client contributions and top-ups.
  • The Council differentiated between client contributions and third-party top-ups in its email to Mrs X about residential home options and costs; 
  • Mrs X signed to confirm the Council had provided information about financial assessments. 
  • Mrs Y signed a written agreement with the Council about third-party top-up costs. That agreement specified top-ups were separate from client contributions.

However, this council was found at fault for failing to consider whether the family member was both ‘willing’ and ‘able’ to pay the additional amount. 

The fault specifically related to the information the complainant had provided being inaccurate and this not having been identified by the Council as it failed to carry out a review of the top-up arrangement when required. Reviewing the top-up arrangement would have established that the information was incorrect and that there was a problem. Instead a debt totted up of £13,000. The LGSCO quite rightly recommended that the council waive the top-up back to when the review should have taken place. 

The complaint made by Mrs X also had a key area where the council was not found at fault.  This was in relation to choice. Many councils have a policy statement on choice. Here’s what the guidance says about choice of care home:

8.37 The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice. 

The LGSCO did not find the council at fault as it had offered at least one home within the personal budget. This may be difficult for individuals to appreciate where families have concerns about quality, but it is within the guidance. 

Our own view is that this LGO report comes over as somewhat weaker than many others from the organisation in this sphere; it treats the home as suitable despite its rating and it seems not to question the basis for treating the £467 as a feasibly defensible evidence-based fee for adequate, appropriate care. It puts us in mind of the training we did in 2015 – whereby we posited that the one care home in the area was called ‘Falling Villas’ just so that a council could always point to one home where there would always be a vacancy because nobody would want to go there! If this family had had Care Act advocacy, we think they would have had a clearer idea of their rights and the rights of the man in question. But because there was a family with a power of attorney it perhaps did not occur to the daughters that advocacy comes with the benefit of some specific Care Act knowledge.

If the council proceeds against Mrs X for the balance of the debt, in future, now the report has been finalised, we would suggest that she might consider defending the case on the basis that the only home offered by way of a benchmark for prices was not one that was defensibly suitable, for a local authority to make a placement within, by way of meeting needs, and that evidence shows that it was not a proper benchmark fee for the type of care that Mr Y needed – the evidence being available that no other care homes had vacancies at anywhere near that level or that all other such care homes required top ups of a hefty amount, without it being clear in what way the fee was for meeting wants rather than needs. 

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 Worcestershire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-017-588

LGO declined to investigate a complaint that an NHS Trust attempted to transfer care to Kent County Council without telling the family

Decision Date: 16th March 2021

What Happened

Mrs D complained on behalf of her daughter, Mrs F. 

Mrs F had been in receipt of a care plan as a result of her entitlement to aftercare services under s.117 Mental Health Act 1983.  Kent and Medway NHS and Social Care Partnership Trust (the Trust) were the lead agency. The local council Kent County Council were involved as responsible for the subject matter of the complaint. 

In 2018 Mrs F sent numerous letters to the Trust requesting medication changes, and requested the care plan to be removed from her records. Mrs D thought that the Trust had agreed to the requests, but later found that this was not the case. The LGO report did not explain this further.

In March 2019 Mrs F was mistakenly visited by the Council, as they were reorganising its services and allocated Mrs F to the wrong social care team. 

In July 2019 a meeting was arranged with Mrs F where the Trust invited the Council to attend. Mrs D thought that this meant the Trust were transferring Mrs F’s mental health care over to the Council. 

Mrs D raised concern about the transfer of Mrs F’s care with both agencies in September, but did not make a formal complaint. 

The Trust dealt with her correspondence through its complaints system. 

It sent a complaints response in October, stating that the Council was invited to the meeting in July because they both have a responsibility for aftercare planning under s.117.  It also stated that it could not remove Mrs F’s care plan from her records, but confirmed that her care plan was ‘closed’.

Mrs D formally complained to Kent County Council in February 2020, still believing that the Trust was attempting to transfer care over to the Council. Mrs D remained unhappy after the Council response in April, and complained again in October. 

The Council responded in December explaining that the March 2019 visit was an error due to its reorganisation. It also emphasised that Mrs F’s mental health care had not been transferred to its social care team, nor would it be in the future. 

Mrs D complained to the LGO because she believed that the Trust and Council secretly planned to transfer Mrs F’s care solely to the Council. 

Mrs D maintained that both the Trust and Council ‘clandestinely’ continued to discuss transferring Mrs F’s care. She stated that there was documentation showing the Trust involved a Community Interest Group as part of this process. The Trust explained that this group had no involvement with Mrs F’s care. 

What was found

The LGO found no fault regarding the August care plan, as the plan was closed and Mrs F already had a new care plan in place. 

There was also no evidence of fault from the Trust or Council in the way they carried out the meeting in July 2019. They both had responsibilities for care planning, and the LGO stated that it was beneficial that they had a collaborative approach in sharing information. 

There was some fault because the Council mistakenly allocated Mrs F to its social care team. However, as soon as the Council became aware of the error it removed Mrs F from the team. 

It was also clear to the LGO that Mrs F’s mental health care was not transferred to the Council, and that the Council explained that it would not be transferred in the future. Although the confusion caused Mrs F some anxiety, the LGO stated that the Council acted reasonably and proportionately with its assurances. 

With regard to the role played by the Community Interest Group, the Trust stated that it was not connected to the Council, but that it was a service that helped provide links between primary and secondary mental health care. The LGO stated that this was not sufficient evidence that the Trust was transferring care to the Council. 

The LGO concluded by declining to investigate further. It stated “there is insufficient evidence of serious harm to Mrs F from the faults and the organisations have already taken action to remedy the complaints”.

Points to note for councils, professionals, people using services, carers and advocacy groups

This complaint is one that demonstrates that where councils act reasonably and proportionately, the LGSCO will consider this when responding to complaints. 

The complaint raised related to a perceived transfer of mental health care between the NHS Trust and the Council. This was not the case, but the council did err in relation to the allocation of a social worker to become involved with a care plan review. 

It is pertinent however that the council addressed this as it realised and recognised that ‘restructuring’ its services had led to Mrs F’s case being allocated wrongly. The LGSCO identified that this was addressed promptly through an apology and reassurance to the complainant. 

Whilst this caused some uncertainty and anxiety, the LGSCO found that the council response was reasonable and proportionate, and that this therefore did not warrant further investigation. 

Communications from the Trust to the complainant were also clear. It provided a justifiable reason for inviting a social care representative to her review, this being to enable a holistic approach to her aftercare. Aftercare arrangements are expected to be jointly considered by both health and social care, so this denotes good practice on the part of the Trust and Kent County Council. 

The LGSCO remains available to those dissatisfied with the outcome of complaints procedures, but of course does not always choose to investigate where this would not be a good use of such a resource. 

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 Kent County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-006-958

Bradford Council not at fault for reducing a care package

Decision Date: 24th November 2020

What Happened

Mr and Mrs X complained on behalf of their daughter, Ms Y. 

Ms Y had been in receipt of care for many years. After the Independent Living Fund was ended in 2015, the Council took over funding and provision of care. 

There is no detail as to whether the care was cut between 2015 and 2019, please note, as has happened in most councils where ILF had provided the first slice of the funding for care and the council had topped up the unmet need.

Ms Y lived with her parents, and had been employing her relative, Mr Z, as her main carer through direct payments. 

Mr Z provided care for Ms Y during the day and provided three nights a week paid respite care where Ms Y would stay at his house. She also attended a supported work placement three days a week. 

In March 2019 the Council undertook a Care Act review of Ms Y’s needs. A social worker met with Ms Y, Mr and Mrs X and Mr Z. They considered evidence provided from Ms Y’s GP and staff from the support placement. 

The social worker completed a care and support plan: 

  • It reduced Mr Z’s paid hours from 43.5 to 40 per week. 
  • It reduced the respite care from 3 nights to once per week. 
  • It removed the transport service to and from the placement but advised that Ms Y should qualify for a mobility vehicle or allowance.

This came into effect in July 2019 after notice was given of the change, and nobody contested the plan at the time; the parents agreed the assessment was a proper reflection of the daughter’s needs. 

Mrs X told the social worker at the review a month later that Ms Y had been unhappy since the changes.  Ms Y’s manager at the placement confirmed that Ms Y’s behavioural routines had become increasingly obsessive and distressed. 

The Council held a review meeting in September, where Mr and Mrs X told them clearly that Ms Y was not coping with the changes. They asked the Council to reinstate the previous level of care. 

The Council recommended that Mr and Mrs X refer Ms Y to the local NHS community team for help adjusting to the changes. 

Mr and Mrs X complained to their MP about the reduction of care provision. The Council replied stating that their actions were in line with the Care Act 2014. 

Ms Y’s GP then wrote to the Council stating that since changes to her support, Ms Y’s behaviour was deteriorating. 

Mr and Mrs X agreed to the NHS community team referral in December 2019. The team however decided that Ms Y did not have an unmet health need that required their specialist input and referred her back to the Council and GP. 

In January 2020 the Council reviewed Ms Y’s care plan again, where her parents reiterated that her behaviour had deteriorated since the reduction of care. 

The Council considered Mr and Mrs X’s views, the letter from Ms Y’s GP, the decision letter from the NHS team and feedback from Ms Y’s work placement. It decided the current care and support plan met Ms Y’s assessed needs.

Mr and Mrs X remained unhappy and complained to the LGO. 

What was found

The LGO found that the Council were not at fault. It stated that when the Council reviewed the care and support plan in September 2019, it appropriately considered all the relevant information and decided the care and support plan met her needs adequately. 

As the LGO found no fault in how the Council reached its decision, it could not question what that decision was. 

When the Council completed a further review in January 2020, it considered all appropriate information: from Ms Y’s relatives, the GP, the NHS team and Ms Y’s work placement. The Council also met with Mr and Mrs X to discuss their concerns. Although Mr and Mrs X disagreed with the decision, there was no fault in how it was reached. 

Points to note for Councils, professionals, people using services and their carers, advocacy providers, members of the public

When care and support planning and reviewing, Councils have to ensure that the personal budget is defensibly sufficient to meet the eligible needs of the person. 

This Council followed the right process, which resulted in a decision that the individual’s budget ought to be reduced. This can be lawful, but only if the evidence is properly addressed. 

Councils form their own view of how much to allocate the person within a personal budget but must ensure that this is through what’s known as ‘defensible decision-making’. It has to be rational, based on evidence, and with any countervailing considerations addressed rationally.

Councils must of course listen to the needs and wishes of the person, but caselaw (Merton) has identified that whilst the Council must take them into account they are not an overriding factor. The LGO found that the Council did take the right approach to this assessment, by taking into account a number of factors that resulted in an evidence-based and defensible decision. 

The Care and Support statutory guidance provides good detail on reviews and states the following at paragraph 13.4:

13.4 The review will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment. It should also identify other circumstances which may have changed, and follow safeguarding principles in ensuring that the person is not at risk of abuse or neglect. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.

Using reviews to reduce budgets is a widely heard of activity. We know that this does happen, where a Council may go into a review already having decided it wants to reduce a resource commitment. However, this is open to challenge and should be challenged. Where there is a genuine change in circumstances of a relevant kind, Councils can be justified in reducing the allocation of personal budget for the person, and s.27(4) Care Act 2014 says this:

(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.

Revising the plan is where the change in personal budget comes in. The Council in this complaint was found to have acted in accordance with the Care Act 2014 and the guidance and therefore no fault was found. 

In our view, the LGSCO missed an opportunity to comment on a key point of importance from the case law.

In this particular scenario, the impact of the change was evident from the challenging behaviour increasing. The council needed to ensure that its conclusions were based on the information received, in this case from the GP, family reporting and from the person, and there is no way anyone can tell from the report how the council satisfied the LGSCO that they had in fact addressed that evidence, as required by the Merton case (the leading case on re-assessment and what is required to make a change of plan lawful). 

It helped that the parents had accepted the assessment was accurate, no doubt, and that they had not contested the principle of the change at the time. 

But we are left wondering how on earth their parents coped with 2 nights less respite, without approaching a point where they would objectively have had to consider whether they could continue to accommodate their daughter. Respite is for care that is not otherwise available from a willing and able carer! There is this hint that it was getting tougher: “She was also waking more at night and wandering downstairs at night, which was becoming problematic for Mr and Mrs X.” 

Despite this, they may have given no hint of becoming over-strained, of course, and the council may have sought in vain for any such sign. But the report is equally consistent with a council getting away with saying “Talk to the Hand”… so to our minds, this is an illustration of how the remedy for breach of the Care Act – judicial review – and the threshold for that remedy – evidence that the council did something that no reasonable authority would have done – plus the increasing difficulty in finding a lawyer willing to take these cases on, on legal aid, can make a council take a risk management approach to litigation, if it is confident that the allocation was defensibly sufficient to meet the needs in accordance with the Care Act 2014.

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 Bradford Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-001-351

Essex County Council at fault for delays in allocating a social worker, which delayed a person’s ability to move closer to family

Decision Date: 19th March 2021

What Happened

Mrs Z complained on behalf of her adult son, Mr Y. 

Mr Y had been receiving support from Essex County council since he was a child.

Prior to turning 18, Mr Y received support from social worker A through the Council’s Children’s, Young People and Family Services (CYPFS).

When Mr Y left full time education in 2018, he transitioned to the Council’s Adult Social Care team. The Council stated that Mr Y would need a new social worker with relevant skills and knowledge, so social worker A stopped providing support in February 2019. 

The LGO report stated that the Council maintained a care and support plan for Mr Y on a regular basis since 2018, which found he was eligible for support from social workers. Mr Y was also living in supported accommodation, but the report did not clarify the funding arrangement. 

Between February and December 2019 Mr Y did not have a social worker allocated to him. 

Mrs Z contacted the Council 10 times about the issue, and also highlighted that Mr Y wanted to move to Redbridge to be closer to his family. 

The Council did not respond to all of Mrs Z’s emails or calls. The responses Mrs Z did receive however, stated that Mr Y was not currently allocated to a social worker because he was being transferred between children’s and adult’s services.

Mr Y was allocated social worker B in January 2020.

Social worker B left the Council’s employment in April 2020, and stopped providing care to Mr Y. 

The Council did not allocate another social worker until September 2020. 

Mrs Z contacted the Council 3 times during this period, requesting a new social worker to be assigned. 

The Council did not reply to Mrs Z. 

After the social worker was allocated in September, Mrs Z remained unhappy and complained to the LGO. 

The Council told the LGO that the current social worker was still providing Mr Y support and helping to facilitate his move to Redbridge. 

What was found

There was a delay in the Council allocating Mr Y a social worker between February and December 2019. The Council stated in its defence that social worker A kept in contact with Mrs Z during this time. 

There is no right to a social worker under the Care Act, in explicit terms. However, since the council used social workers to implement care and support plans, and this person hadn’t had one for such a long time, the LGO stated that the Council was at fault for failing to provide a social worker, and also at fault for failing to respond to Mrs Z’s correspondence. 

Regarding the period between April and September 2020, the LGO highlighted that the Council suspended all social worker activity due to COVID-19 in March 2020. The LGO stated that social workers were instructed to make visits solely for safeguarding purposes. 

With that in mind, the LGO stated that the pandemic impacted the Council’s ability to provide Mr Y with a social worker from April onwards. It also said that the pandemic would also have impacted on its ability to facilitate Mr Y’s move to Redbridge, because most supported living providers were not accepting new residents. 

However, the Council failed to communicate any of this information with Mrs Z, despite her repeated attempts of contact.  The LGO stated that there was “no reasonable justification” for this, and therefore the Council was at fault for failing to respond to Mrs Z. 

These faults resulted in Mr Y not having a social worker for long periods of time, which meant that the Council were not meeting his assessed eligible needs. This injustice was made worse by the Council failing to respond to Mrs Z. Finally, but for the fault, the LGO considered it likely that Mr Y could have moved closer to his family sooner. 

The LGO recommended that the Council should:

  • apologise to Mr Y for not providing him a social worker between February and December 2019 
  • explain in writing to Mr Y why he was not provided with a social worker between April and September 2020
  • pay Mr Y £500 in recognition of the fault identified
  • should apologise in writing to Mrs Z about failing to communicate with her in a reliable and timely manner
  • pay Mrs Z £150 in recognition of her time and trouble spent pursuing her complaint
  • review its processes about the transition of customers from CYPFS to adult social care and allocating social workers without delay.
  • review and improve its communications policy to ensure timely and reliable responses to its customers.

Points to note for councils, professionals, people using services, carers and advocacy groups

Essex County Council failed in several ways in its interactions with Mr Y and Mrs X. However, it did start with the recognition that Mr Y ought to be supported by a social worker who was suitably trained or qualified to do so when transferring the care to its ASC department. 

A period of ten months to allocate a social worker was not surprisingly found to be unacceptable and this delay was characterised as fault. Whilst councils have backlogs and the challenges of sourcing and retaining qualified social workers, Mr Y had a support plan that was unsupported by a social worker. His case was allocated to a worker, but they only maintained contact regarding the lack of allocation, rather than the real issue of importance to him which would have been his care plan and subsequent wish to move. 

The Care and Support statutory guidance clearly identifies that councils must act promptly to meet identified needs. This includes ensuring that appropriate action is taken to facilitate care and support planning. Mrs Z should not have had to contact the council on ten occasions to obtain the promised support. 

Once a social worker was allocated to Mr Y they then left after 3 months, so again he remained without a social worker to progress his wish to move to be nearer to his family. The council claimed that the impact of Covid-19 had affected its ability to allow social workers to visit individuals except for safeguarding purposes. The delay that then ensued in 2020 led to a delay in Mr Y being able to move to supported accommodation, for which the council was found to be at fault. 

There will no doubt have been some challenges for all councils in ensuring that they responded to individual needs during covid-19, and there may well have been limitations to visiting potential accommodation but this council failed to communicate that properly to Mr Y. 

There is a clear message to councils within this complaint: communicate why you cannot do something. 

One puzzle for us is that the LGO reports that Essex ‘suspended all social worker activity other than safeguarding’. But it was not one of the councils that adopted Care Act easements, and yet the LGO said nothing about that? That (to our mind) amounts to leaving the impression that the LGO thinks that the pandemic itself justified breaching statutory duties, albeit that this was characterised as fault. 

Even if the LGO was happy to treat the pandemic as an unavoidably good reason for not allowing its social workers to visit Mr Y, the LGO doesn’t say why that also excused any other work required by the statute, without face to face work. 

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 Essex County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-003-299