Author Archive for Gabe Susman

Council at fault for failing to inform a person’s family of his discharge from hospital and failing adequately to consult with them about care home options and fees

Ombudsman’s decision date: 20 Jun 2019

What happened:

The complaint was brought by Mr X on behalf of his father Mr A, who had dementia. Mr X, along with his brother, had a Lasting Power of Attorney (POA) over Mr A’s health and welfare (not finance, from what one can tell from the report.)

In August 2017 Mr A was admitted to hospital following a fall at home. Mr A had fractured his neck. He stayed in hospital throughout August.

During this stay, Mr X and the wider family decided they could not manage caring for Mr A at home, any longer.

After an assessment, a social worker decided that Mr A lacked capacity to make his own decisions about his care, that he was unable to safely care for himself at home and it was in his best interests to move him into a care home.

It was recommended that Mr A be moved to a care home after his discharge from hospital. Mr X agreed with those recommendations.

The social worker then sent the assessment to the Council’s adult care brokerage service to find Mr A a place in a suitable home.

On 6th September 2017, the social worker met with Mr X and told him the brokerage service had found Mr A two possible care homes which had vacancies. Mr X told the social worker he wanted to discuss Mr A’s financial assessment with his brother, before they signed any agreement.

On the 7th September, records showed that hospital staff simply called Mr X and informed him they were in the process of discharging Mr A to a care home. Mr X said the hospital staff were vague about the details but said they would call the family back later, which did not happen.

The hospital discharged Mr A to the care home that evening. Neither the hospital nor anybody from the Council contacted Mr X to inform him of Mr A’s discharge.

The day after, Mr X asked the social worker why he was not informed Mr A’s discharge, and why the Council did not involve him or his brother in the decision about which care home Mr A should go to. He asked who had decided the care home would meet Mr A’s needs adequately – as that is part of the legal task before a care plan can be regarded as finalised.

The Council apologised to Mr X for the miscommunication regarding Mr A’s discharge. It said someone should have contacted Mr X when the care home had assessed Mr A and agreed to offer him the placement.

The social worker said they would review Mr A’s needs again within 6 weeks, but said that if Mr X had any concerns about the care home, he could raise them with the social worker, who would then be able to carry out an earlier review.

The social worker reviewed Mr A on 23 November 2017 and said the care home was meeting his needs and keeping him safe. They recommended he should stay at the care home. The review records showed Mr X was happy with the care provided to Mr A by the care home. At that point only it appears that the social worker informed Mr X of the care home fees and carried out a financial assessment which showed Mr A would need to pay for his own care

Mr X then complained to the Council. He complained that the Council discharged Mr A from hospital to the care home without consulting him or the wider family. He said Mr A arrived at the care home wearing just his hospital gown and was disorientated and distressed, and Mr X did not know his whereabouts for nearly 24 hours.

Mr X also disputed responsibility for the care home fees between 7 September (when Mr A arrived at the care home) and 23 November. He said the Council did not consult with him about the care home or the fees prior to 23 November, and therefore said neither he, nor Mr A were liable to pay for that period.

The Council responded to Mr X and apologised that it did not inform him about Mr A’s discharge to the care home. They were unsure why neither the brokerage team nor the social worker informed Mr X, but accepted that someone should have done. They said they would put plans in place to make it clear who was responsible for communicating with families in similar circumstances in future.

Mr X was unhappy with the Council’s response. He said the Council had not addressed his concerns about Mr A’s discharge and had not addressed his dispute around the care fees.

The Council wrote to Mr X and apologised again about Mr A’s discharge. The Council agreed it should not have happened and it was an unacceptable error. The Council said though that Mr X was aware of the financial implications of Mr A moving to a care home. The Council however agreed to waive the first week’s charges due to its errors and poor service around Mr A’s discharge.

Mr X remained unhappy and complained to the Ombudsman.

What was found

As Mr X and his brother had POA over Mr A’s health and welfare, the Council was at fault for failing to communicate with them after the hospital discharged Mr A. The fault caused both Mr A and Mr X distress, upset and uncertainty.

The LGO found that although Mr X had discussed Mr A’s discharge to a care home with the Council, there was no formal agreement in place about which care home it would be. The Council should have fully consulted with and sought Mr X’s agreement about the choice of Mr A’s care home, It should also have made Mr X aware of the cost implications of the care home. It did not, which also amounted to fault.

The Council said its brokerage team should have communicated directly with Mr X about Mr A’s discharge and choice of care home following a process change in August 2017. The Council accepted it was at fault and had already apologised to Mr X for the communication oversight. The Council had already updated its internal guidance and reminded the brokerage team of its communication responsibilities.

Despite the Council being at fault for not discussing the care home and its fees with Mr X,

records showed that Mr X was aware Mr A would be charged (at least something) for residential care. (NB there is no indication as to WHEN his full cost paying status was first discussed; it may have been volunteered by the family – see below for why this matters in legal terms.)

The LGO found that there was no delay by the Council in reviewing Mr A’s case; Mr A’s review took place on 23 November which Mr X and the wider family agreed to as a convenient date and the Council made it clear to Mr X that he was entitled to ask for an earlier review if necessary.

The LGO found no fault from the Council in not waiving the full six weeks of care home fees. Following the review Mr A stayed at the care home on a permanent basis. The review records showed Mr X was happy with the care provided to Mr A and raised no concerns prior to the first review. Despite the Council being at fault for not discussing the fees with Mr X, the records show there was no ongoing injustice to Mr A after he arrived at the care home because he was well cared for.

The Council waived the first week’s care home fees of £750 in recognition of the distress and uncertainty caused to Mr A by its poor communication around discharge. However, the LGO considered that as a remedy for the injustice to Mr A, not Mr X. Therefore the LGO recommended a further remedy for the injustice caused to Mr X. The Council agreed to pay Mr X £100 in recognition of the distress and uncertainty caused by its poor communication around Mr A’s discharge from hospital to the care home.

Points for care homes, brokerage teams and social workers, and points for families

  • When a person has a power of attorney for someone, despite their incapacity, the holder of the power of attorney counts as the incapacitated person’s statutory agent.
  • The agent has power to make contracts, pay bills, and disclose financial information, because that person stands in the very shoes of the person lacking capacity – that’s what statutory agency IS.
  • However, if a person’s attorney signs them into a care home as a self funder, the person in the care home is the principal, (ie the actual contractor through the agency of the attorney) and the law in this country is that the principal is liable for the fees, not the agent. The principal would be the one who would have to be sued by the care home if the attorney did not hand the fees over, and that principal would need a litigation friend to be appointed because of course they would not be able to conduct their own defence.
  • If a person clearly lacks capacity to make a contract, the fact that their relative withOUT a power of attorney has signed them into the home, does not make the person receiving the care into a contractor who owes anybody any money. You have to have capacity to be a contractor. The care home admissions officer must therefore be very careful to be sure of the status of the signatory. It may be that if no representative authority has been lawfully registered, the client’s son or daughter who has signed, has signed in their own name, and is the one who must be sued!!
  • If a person appears to have capacity and signs him or herself in, then the care home need not worry that the contract will be avoided later, if they had no obvious doubts about capacity at the time. If they should have spotted that it was likely, the contract might be voidable, but the person will still owe a reasonable sum for the value of the service they have been given, because of the doctrine of necessaries.
  • When a person lacks capacity at the point when they are in need of a care home placement, and nobody else authorised formally to make arrangements (make a contract) on their behalf, and nobody else (like a friend, spouse, or other relative) independently willing to do it in their own name, with their own money, for their loved one, it does not matter how rich they are: they are entitled to be placed under a local authority contract under s18 of the Care Act; the family should not be told to go off and “self fund” even if they voluntarily disclose that the person has above threshold assets – and the care home client will be a full cost payer if they DO happen to be wealthy enough to have above threshold assets, once that’s been ascertained.
  • That contract remains in place unless or until terminated by the council, so even if the financial assessment is later completed, it’s no good a council just telling the care home to send the bills to the client on the footing that somehow suddenly they’ve taken the contract over. The council needs to terminate, and have a good reason for believing that the person has got someone else to do it for them. If there is no good reason for believing that, the client’s family cannot BE MADE to get deputyship, in order to be made to take over the responsibility.
  • If a person with above threshold assets has an attorney who is WILLING to make contractual arrangements for a person, the council is entitled to rely on that willingness, and not make an emergency council placement.
  • In this case, the council appears to have made the placement on the basis of incapacity DESPITE there being a person with authority to contract. That is not unusual, or unlawful; because it’s quite common not to know the state of someone’s finances at a crisis point, ie whether they are above or below threshold – and if someone has less than the threshold, they should be able to access the council’s price, rather than the private rate that care homes charge. We just don’t know if Mr X and the brother knew how much money their father had at that very moment – they weren’t his finance attorneys.
  • Given Mr X was Mr A’s statutory welfare agent, shipping Mr A out of the hospital without even consulting a welfare attorney and without any authorised person’s consent into a fee paying setting, (if the assumption or information that the man was above threshold and would be paying the whole fee, not just charges) the discharge was hugely improper, in legal terms).
  • If the finances were unclear, so that the council had to contract, it was still wrong to touch Mr A without proper consultation of a welfare attorney.
  • In terms of charging, however, it MAY be that the financial assessment was only done at the point of review. Even so, there is nothing that we know of to stop a council tracing back for a further period and backdating the financial assessment to the point when it first began to pay for care, if the person had the same or more money at that earlier point.
  • It is not clear in the Care Act legal framework whether a council would be entitled to refuse to contract In the above case when there was a PoA, if the PoA said no on the footing that the financial position was unclear.
  • So since the council made the placement, but behaved really badly regarding hospital discharge, it sensibly waived a week’s worth of what would appear to have fairly been full cost fees.

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 London Borough of Enfield Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/18-007-704

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Council at fault for not reviewing a person’s care plan since 2013 and for its Care Act delegate (an NHS Foundation Trust) not doing so, since 2015

Ombudsman’s decision date: 29 Aug 2019

What happened:

Mrs W is autistic and has a number of additional health related needs which require support.

Mrs W’s care plan was last issued in 2013, and had not been updated since then.

(NB. Under the Care Act Guidance, authorities are expected to review care and support plans at least every 12 months although it is not actually a statutory duty. The fact that the Care Act came in in 2015 and should have been the basis of every review since, was explored by the LGO, to a limited extent only – it might have been different if the report had been written after the Court of Appeal’s decision in CP v NE Lincolnshire Council – see below for why).

The plan stated that Mrs W was to receive support with some domestic tasks, such as managing her medication and dealing with mail, as well as to help access the community.

Salford City Council has delegated its adult social care functions to two local trusts, the Salford Integrated Care Organisation and the Greater Manchester Mental Health NHS Foundation Trust respectively. (NB that’s not unlawful, under the Care Act, but the council remains liable for the public law compliant discharge of those functions, and of course the NHS bodies should have got their staff trained in how to implement the relevant Care Act law if they were ever going to be able to do the job properly.)

Mrs W’s care was arranged by the latter organisation: ie, assessed for, and commissioned by that Trust.

Throughout 2018 Mrs W was in contact back and forth with the Council regarding payments to the agency who provided her with care.

In January, the agency contacted the Council to chase payment and at the end of the month the agency sent the Council an invoice. On 22 March, Mrs W contacted the Council to say she had been told the agency’s expenses had not been paid. In October, the Council made arrangements for a replacement care provider. However a dispute arose during an assessment of Mrs W relating to mileage expenses. Mrs W said the new agency charged 70p a mile expenses, which she described as “robbery”, and that the law states service users should not be required to pay an agency direct, but should instead pay the local authority.

It was unclear to the Local Government Ombudsman (LGO) when Mrs W made her initial complaint. She complained to the Council about her care plan, about the lack of autism training amongst Council staff and its handling of a safeguarding referral. The safeguarding issue was dealt with in a separate report. It was shown that she complained on 25th May 2018, and provided the LGO with a more comprehensive complaint letter dated 19 June. The Council, however, stated that Mrs W’s initial complaint was on 1 June. In either case, the Council’s first complaint response was on 25 July. That reply only addressed the safeguarding issue, and did not respond to her complaint about the care plan or lack of autism training.

Mrs W contacted the Council to express dissatisfaction with the complaint response on 31 July. The Council held a meeting with her on 9 August, and agreed a new Terms of Reference document for Mrs W’s complaint on 21 August. The Council said it would aim to provide her with a response by 3 December. The Council subsequently extended its target date for response to 6 February, when it visited Mrs W at home to verbally explain its complaint response. It then produced a written response, dated 28 February.

The Council addressed Mrs W’s complaint about her care plan. It noted she had a copy of her plan dated 2013, with an addendum from 2015, but that this included information which was out-of-date. The response acknowledged Mrs W needed support to access the community and with medical matters, and that she was “in further discussion” about the costs of mileage and wanted the Council to complete a financial assessment.

Despite the Council’s acknowledging that Mrs W’s care plan was created in 2013, it said that Mrs W had received regular reviews at a nurse-led clinic, after which a letter was sent to her GP with up-to-date information, which somehow “counted as her care plan”. Each letter described Mrs W’s demeanour during a recent appointment and her current medication. They also gave, under the title ‘Management/Care Plan’, a brief description of an ‘aim’ for her, for example, “to continue to use community facilities”.

Under the Care Act 2014, authorities should be reviewing care and support plans at least every 12 months to discharge the duty to keep care plans under regular review (see s27 and the Guidance for the reference to the once a year expectation). The review should ensure the plan accurately reflects a person’s up-to-date needs and desired outcomes, as well as planning the appropriate support. It should also include up-to-date budget information if there is a change via a revision process.

Mrs W told the LGO that an element of the 2013 plan was about her using a particular medication. However, since then, Mrs W had been diagnosed with a serious illness, which meant she could no longer use that medication. This highlights the importance of properly reviewing and updating care plans. There was no suggestion that Mrs W mistakenly used that medication when she should not, however it did demonstrate that she was placed at an increased risk of harm by virtue of the information just being copied over.

Mrs W also said the 2013 plan did not provide the appropriate support for her current needs. For example, using the support worker’s hours to attend hospital appointments, because of her serious illness, meant the other support she needed was sometimes neglected – she had missed hospital appointments simply because she has had no support to attend them.

What was found:

The LGO found that the letters from Mrs W’s GP were not a substitute for a proper care plan.

They did not explain Mrs W’s needs, the risks and difficulties her needs created, the support she needed to manage her needs, or when and how this support would be provided – the essence of the Care Act task.

The letters also made no mention whatsoever of how the support would be funded.

They did not count as a care and support plan within the meaning of the Care Act.

Of particular significance, Mrs W’s needs had not been assessed under the framework of the Care Act, which took effect April 2015.

Furthermore, even if these letters did count as a reviewed and updated care plan, they should have been provided at least once a year. A single letter from 2017 and a single letter from 2019 could not conceivably meet this requirement.

So, in the substantive sense, the LGO found that the last proper care plan produced for Mrs W was in 2013. Therefore the LGO found the Council at very significant fault.

The lack of a proper plan not only failed to clearly set out the support she needed, but also meant that the financial assessment process was not followed properly, resulting in her care providers terminating their services in October 2018 (because the agency’s care expenses were not paid for).

If Mrs W had had a proper care plan, financial obligations would have been clearly set out. There would have been no need to find a new package provider if the issue with expenses had not arisen.

In other words, Mrs W’s care plan had not been subject to a meaningful review or update since 2013 and this had indirectly led to her care package ending, because of a lack of clarity over payment of her support workers’ expenses.

The LGO found that injustice was caused to Mrs W, as she had problems accessing the community without support, meaning she even had difficulty shopping for groceries. She had been left in that position for more than 6 months, which the LGO found to be a serious injustice.

The Council was also found at fault in regards to the lack of autism training, but no injustice to Mrs W could be shown. The updated government 2015 statutory guidance places a requirement on local authorities to provide general autism awareness training for all front line staff, as well as specialist training for those in particular roles.

“In line with the 2010 statutory guidance, local authorities should be providing general autism awareness to all frontline staff in contact with adults with autism, so that staff are able to identify potential signs of autism and understand how to make reasonable adjustments in their behaviour and communication. In addition to this, local authorities are expected to have made good progress on developing and providing specialist training for those in roles that have a direct impact on and make decisions about the lives of adults with autism, including those conducting needs assessments. This expectation remains central to this updated statutory guidance.”

The Council confirmed it had not yet implemented this. This was fault. Although a general lack of understanding by staff about autism did not represent a personal injustice to Mrs W which could be remedied, the LGO did however highlight that it was very concerned the training had not been done, as other vulnerable people could have been negatively affected.

The Council’s initial response to Mrs W’s complaint did not address her concerns over her care plan or lack of autism training. It only replied to issues to do with safeguarding. This was fault.

The LGO found that although the Council’s second response acknowledged Mrs W’s complaints to a degree, it came after a long delay (almost four months). This caused Mrs W to be frustrated.

The LGO also found that a more meaningful investigation from the outset would have prevented the termination of her care package and the subsequent loss of support. Therefore the LGO found additional injustice to her arising from the fault. This fault was evidence of the Council’s commissioned service’s failure to adhere to the most fundamental parts of the Care and Support Statutory Guidance.

LGO recommendations:

The Council agreed to reinstate Mrs W’s previous care and support plan, including the payment of her expenses, whilst it arranged to reassess her.

This fresh assessment would have to be carried out by a social worker with training and experience in the needs of autistic people.

The Council will then provide Mrs W with an updated care and support plan, in line with the requirements of the Care Act 2014, and will also undertake a financial assessment of her ability to contribute to the costs of her care.

The Council has also agreed to offer to pay Mrs W £1,000 to reflect her distress at the loss of her support package, and an additional £200 to reflect her time and trouble pursuing her complaint.

The Council has agreed to undertake a number of service improvements.

  • It will undertake an audit of all adult care recipients in its area, to ensure their care and support plans have been appropriately reviewed and updated within the last 12 months. It will update the Ombudsman at the end of the review and explain what steps it is taken to rectify any issues the audit uncovers
  • It will arrange training so that NHS staff carrying out the Council’s adult social care functions are up-to-date on their responsibilities around carrying out assessments and writing care plans
  • It will begin to make arrangements for all relevant staff to receive autism awareness training, in line with the statutory guidance.
  • It is arranging for briefings to be given to its own Chief Executive, Cabinet, and the Boards of the two delegated bodies responsible for being in breach of the Care Act and will provide evidence of that to the LGO.

Points for the sector:

  • This is a perfect example of what can happen if an adult social care council delegates its own statutory responsibilities to people working in a radically different culture, who have had no legal literacy training in the framework applying to the delegated functions. The council remains responsible, in legal terms, so if this lady had brought judicial review proceedings instead of just complaining to the LGO, it would have been down to the council to handle the litigation, and that would have set a precedent that would then have stopped other councils just hoping for the best when told how to integrate by their wealthier NHS ‘partners’. CASCAIDr’s Trading Company’s expert trainers provide training in the legal framework, via www.cascaidr.org.uk, to any public body that sees the point of getting it right first time.
  • The LGO said this: “This fault [letting the provider’s services lapse without sorting out the expenses dispute] was evidence of the Council’s commissioned service’s failure to adhere to the most fundamental parts of the Care and Support Statutory Guidance.”
  • This is the first report we’ve seen where the LGO deals with the abject failure to revise a person’s care plan under the Care Act criteria, on time or even by 2016, which was the government’s deadline for the first proper review under the Care Act for all social care clients. We think that the LGO could have gone quite a bit further in terms of that being a breach of the Care Act and not just ‘fault’.

Points for individuals and advocates

  • We see some scope in reports like this, for a resurrection of interest in judicial review proceedings, joined with a claim for restitution for what the claimant should have been provided with, now that the Court of Appeal has delivered its judgment in CP v NE Lincolnshire. The LGO made a compensation recommendation in an interesting parallel development based on what might have been expected to be the outcome had things been done properly, but restitution is a cause of action one issues in the courts. Judicial review has never been a claim that leads to compensation or damages, so there’s little money in it to make solicitors interested. But this might change things.
  • Sure, one would need to ISSUE the proceedings, get the old decision quashed, and then get a second decision the next time around as to what should have been in the original care plan once it had been quashed. But we think that the legal argument first time round could surely be expanded to include a request for a decision on what should have been provided, if the claimant is correct that the decision is unlawful, and a request for agreement that no reasonable council could conceivably deny that it has been unjustly enriched in cases where the person’s needs were actually increasing, by dint of what the council has NOT had to spend…
  • CASCAIDr will pursue complaints in similar cases so that the LGO recommends compensation in all such cases, not just for the distress but for the outlay to which a proper assessment or care planning job at the right time, would have necessarily led to – and independent social work assessments will be accessed so as to make the assertions coherent and irresistible.
  • We are a charity and we charge for complaints but we don’t think you or your family will mind so much, if you are going to get some money back.

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 Salford City Council’s actions can be found here

file:///C:/Users/owner/Downloads/REPORT%2019002111%20SALFORD%20CITY%20(1).pdf

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Council at fault for delay in carrying out a care needs assessment; failure to consider the significance of an ASD assessment and failure to retain an Advocate

Ombudsman’s decision date: 19th June 2019

What Happened

Ms X has a number of heath conditions, mental health conditions and Autism Spectrum Disorder (ASD). In July 2017 she wrote to the Council to request an assessment of her care and support needs.

The Council carried out a screening assessment which recommended Ms X be referred for a care needs assessment and that she may benefit from enablement. Ms X said the Council told her she was not eligible for an assessment (there are no Council records to support this), which led her to contact her GP in distress. The GP requested the Council carry out a face to face assessment with Ms X and also referred her for an assessment for suspected ASD.

The Council referred Ms X to the enablement team (where a team works with a person over a period of up to six weeks. It is not a care needs assessment.)

An appointment in August 2017 was made for an enablement officer to visit, but Ms X cancelled as she was unwell and felt she required an advocate, which was later arranged. (The Care Act and Guidance states that the Council must arrange an independent advocate to facilitate the involvement of the person in their assessment if they will have substantial difficulties in engaging and have no-one else appropriate to support their involvement).

That officer referred Ms X onwards for a care needs assessment, stating that her case was complex and not suitable for enablement. The Council has acknowledged it failed to make the referral.

Only after Ms X complained to the Council in November for failing to carry out a care needs assessment was she was contacted by an officer in January 2018 to arrange an assessment for February (the officer also contacted Ms X’s Advocate.)

The Council acknowledged and apologised for its delay, stating it was caused by the social work team requiring a more detailed handover from the enablement team which was not provided.

The assessment officer found Ms X had eligible needs as she could not manage and maintain nutrition, manage personal hygiene, maintain a habitable home environment, was not able to use her home safely or able to make use of services in the community.

She also noted Ms X was undergoing specialist consideration of an ASD and that Ms X considered her autism was at the root of her problems. However, there was no evidence to show whether the officer considered whether the officer needed specialist input from a third party in order to understand the effect of Ms X’s ASD on her needs or if she (the officer) needed to review the assessment once Ms X had a diagnosis. (The Care Act Assessment regulations require that assessors must have the skills, knowledge and competence to carry out the assessment in question. If they do not have experience in a particular condition, such as autism, they must consult someone with relevant experience.)

To meet her needs, the officer recommended a personal budget for 12.25 hours of support per week plus 2 hours per week for domestic and shopping support. This could be partly provided by three calls a day to Ms X.

The officer communicated back and forth with Ms X in order to obtain more information required by the domiciliary care panel, and informed Ms X of the panel’s decision (a personal budget of 12.25 hours of care per week and one hour per fortnight for domestic help), and told her she would complete the care plan.

This communication caused Ms X distress. She asked the officer to contact her Advocate as she was finding the information overwhelming- she did not understand what the panel or care plan was.

The call notes showed that the officer told Ms X that she the officer needed to speak to Ms X directly, as it was her own personal care plan. She had been communicating with Ms X rather than her advocate because the panel was requesting more detailed information and also said that Ms X had not asked her ONLY to contact her advocate.

In March Ms X made a complaint about the officer contacting her rather than her advocate to which the Council did not respond. Therefore Ms X made a further complaint in April. They responded in late May by email acknowledging they had overlooked Ms X’s original complaint.

The officer had sent Ms X an email in March outlining the agreed care plan (Direct payments, PA support 12.25 hrs weekly + additional 1 hour domestic care once a fortnight. A 45 min morning call, a 30 min lunch call and 30 min tea call). They received an email from Ms X’s advocate stating Ms X disagreed with the level of direct payments. It was finally agreed that Ms X would receive a personal budget of 12.25 hours per week plus 2 hours once a fortnight.

The case was then passed to the direct payments team. The records show Ms X’s advocate sent an email to the direct payments team notifying them that Ms X had not agreed with the care package and had decided to challenge it.

The Council just closed Ms X’s case. Ms X’s advocate stopped assisting her – because the commissioned advocacy service was expected to decide if a person is eligible for advocacy support.

However, the Care Act places a duty on the Council to appoint an advocate so it remains responsible for the actions of the commissioned advocacy service.

Ms X has said the Council should have retained her advocate to help her challenge the assessment.

In response to LGO enquiries, the Council clarified that it did not undertake care and support planning with Ms X as she had rejected the personal budget. Also that they did not carry out a financial assessment for her because they only do so after a care and support planning.

Ms X eventually accepted the personal budget following a stay in hospital because she needed care, but she strongly considered it to be insufficient to meet her needs.

In April 2018 Ms X was formally diagnosed with ASD. The Council’s records showed they were notified in May 2018. The NHS trust requested the Council review Ms X’s assessment in light of her diagnosis and additional needs associated with it. The officer replied to the email but there was no evidence to show whether she considered if Ms X’s needs should be reviewed in light of and following her diagnosis.

What was found

Ms X had requested a care needs assessment and the screening assessment recommended a care needs assessment. So the Council should have referred Ms X for a care needs assessment rather than to enablement.

The Council was again at fault as it delayed carrying out a care needs assessment for Ms X because it did not properly respond to the referral from the enablement team.

The Council was also at fault with reference to Ms X’s ASD diagnosis. At the time of assessment Ms X had not yet been diagnosed, but the officer was aware of her pending ASD assessment.

There was no evidence that the officer gave any attention to this fact. She should have considered if she could proceed with the assessment before the diagnosis, if she needed specialist input, or if Ms X’s care needs should have been reviewed after the ASD assessment. The Council’s failure to do any of those things was ‘fault’.

Further fault was shown as there was no evidence to show the Council had properly taken account of Ms X’s diagnosis of ASD after it came, or assessed her care needs in accordance with Care and Support Statutory Guidance. The Council actually went so far as to say to the LGO that it did not have evidence of an ASD diagnosis. This was definitely wrong as Council’s records showed that the NHS Trust informed them of her diagnosis. This was fault. The Council did not demonstrate the officer had experience of ASD. She should have sought input from another experienced practitioner as to whether Ms X’s care needs should be reviewed in light of her diagnosis.

The Council said it would look at the training it offers to staff regarding ASD as part of its review of the National Autism Strategy. The LGO suggested it would also be appropriate for the Council to review its procedures to ensure officers carrying out care needs assessments for people with ASD are aware they should seek appropriate specialist input if they do not have knowledge and experience of ASD.

The Council was also at fault for not retaining or providing an advocate to allow Ms X to challenge the personal budget. The Council also said that its system involved the commissioned advocacy service deciding if a person was eligible for advocacy support. The Care Act places a duty on the Council to appoint an advocate so it remains responsible for the actions of the commissioned advocacy service. The guidance shows an advocate should assist a person if they wish to challenge a decision or process. The advocate’s email to the Council’s direct payments team showed she was aware that Ms X wished to challenge the personal budget. So, the Council should have ensured it retained the advocate or provided another advocate to assist Ms X in challenging the personal budget.

The Council was not at fault in contacting Ms X rather than her advocate to discuss the panel’s decision on the personal budget. Ms X had not asked the officer only to contact her advocate at that time. It did not cause significant injustice to Ms X as the officer then contacted Ms X’s advocate at her request.

The Council should have started the financial assessment once it decided Ms X was eligible for support. The Council demonstrated that it is reviewing its processes to ensure it carries out financial assessments before it starts the care and support planning process.

The Council delayed in dealing with Ms X’s complaint. The Council’s complaints procedure provides it should respond within 25 working days. The Council greatly exceeded this target as it did not respond until 5 February 2018. It also acknowledged in its response of 25 May 2018 that it had failed to deal with Ms X’s complaint of March 2018.

These faults did cause injustice to Ms X.

The Council’s delay in carrying out the assessment caused distress to Ms X. It also put Ms X to avoidable time and trouble in having to contact the Council again to chase the assessment. The Council’s lack of clarity about her care plan and not having an advocate to help her challenge the personal budget also caused distress to Ms X. The Council’s delays in dealing with Ms X’s complaint and failure to deal with her complaint of March 2018 also caused avoidable time and trouble as Ms X had to make a further complaint.

The LGO found the failure properly to consider the potential significance of Ms X’s impending ASD assessment and whether Ms X’s care needs should be reviewed following the diagnosis cast doubt as to whether the Council properly identified Ms X’s needs. The LGO also doubted whether the personal budget provided would then have been defensibly sufficient to meet her needs.

The LGO stated that the Council should remedy this injustice by carrying out a reassessment of Ms X’s care needs. This should be carried out by an officer with experience of ASD or with input from an officer who has knowledge and experience of ASD. If, following the assessment the Council finds Ms X has increased care needs and her personal budget should be increased then it should backdate the payments to July 2017 when Ms X first requested an assessment. The LGO recommended that the council should also send a written apology and make a payment of £250 to acknowledge the distress and avoidable time and trouble caused to Ms X.

Points for councils and for clients and families or advocate:

  • Has your council sorted out a system at the front door for a competent member of staff to allocate the right sort of assessor to a person’s presenting problem? Ie face to face if their capacity is less than full? Person-centred, in terms of the manner and timing of the assessment according to when the person is at their best?
  • Has your council sorted out a system for recognising the complex decision making that is required around advocacy under the Care Act? A screening assessment is enough to put you on notice, if you are clued up, about the potentially substantial difficulties that a person would have in being properly involved in the processes that your council runs, and hence that means that you need to consider whether or not they have anyone else appropriate to support their involvement informally, and if so, do they consent to that person’s so doing, if the person with substantial difficulties has at least the capacity to understand that they don’t have to have their relative take on that role? Not every 19 year old with learning disabilities wants her mum there for discussing whether her sex life is affected by coercive control, or even known about by her parents.
  • If the person does not have anyone appropriate and willing to support their involvement informally, then advocacy functions are triggered and are not able to be delegated properly in terms of eligibility to the service itself. That is simply not right.
  • The advocate’s service cannot be limited to a standard number of hours: this report underlines that if a person wants to challenge the package, they are going to need the advocate to do an advocates REPORT under the legislation, and also support them in what para 10.86 of the Guidance says should be a management review, not just a signposting to complaints!
  • Does your council arrange for care and support planning even when a person says “You what?” when they first hear of the indicative budget? We are aware of many councils who think that if a person says no to the first sum mentioned, well they’ve said thanks but no thanks, and that that is the end of the matter.
  • This is appalling practice – the indicative budget is not any kind of concluded decision at all, and care planning law makes it clear that the plan has to be rationally able to be shown to cover all the assessed eligible needs, not that the needs have to be fitted to the sum first offered! Care planning law also says that any parts of the eligible assessed needs that are assumed by the council to be availably met from a willing and able informal source of free support need to be identified so that everyone knows where they stand. So it stands to reason that care planning is a duty – a statutory duty – even if the person doesn’t agree the budget.
  • If the council doesn’t start financial assessment BEFORE the finalisation of the budget, it can’t possibly comply with s25, which requires that the care plan contains the figures for the charges so that the figure for the council to find in order to make up the entire budget regarded as necessary for spending, is clearly apparent.

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 London Borough of Lewisham Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-001-147

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Council at fault for failing to fund care home fees in a case of alleged notional capital, where the attorney had gifted money to herself unbeknownst to the resident

Ombudsman’s Decision Date: 03 Jun 2019

What happened

In this case, Ms X complained that the Council wrongly required her late father to pay his full care home fees after his capital had fallen below the upper capital limit.

In deciding how much a person needs to contribute to their care fees, the Council must consider the upper and lower capital limits (the upper capital limit is currently £23,250 and the lower capital limit £14,250). People over the upper capital limit must pay the full cost of their residential care home fees by way of the charge, if the council has contracted for their benefit. If their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. The Care and Support Statutory Guidance states that in some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital. Notional capital may be capital, for example, that the council concludes that a person has deliberately deprived themselves of, in order to reduce the amount of the charges they have to pay for their care. A person’s capital is therefore the total of both actual and notional capital.

Ms X’s father, Mr Y moved to a care home in 2009. He was above the upper capital limit and therefore had to pay the full cost, himself, privately.

Ms X had power of attorney and assisted Mr Y with his finances.

In July 2016 Ms X asked the Council for assistance as Mr Y’s capital would soon fall below the upper limit. In September 2016 the council began to carry out a financial assessment. This assessment could not be completed as the Council officer found that Mr Y’s bank statements showed apparent significant gifting of capital over several years. Ms X explained to the officer that her late mother had left half of the parental home to her, in her will, but when the property was sold, the proceeds of sale went into Mr Y’s account which is why she had been withdrawing money from his account over the years.

The case was subsequently referred to the Council’s legal department where a safeguarding investigation into possible financial abuse was recommended. A social worker visited Mr Y to discuss the discrepancies in his bank accounts, but Mr Y could not follow what was being said and asked to stop the conversation. After numerous strategy meetings by the Council, Officers remained concerned that Ms X had taken money from Mr Y which she was not entitled to and agreed further enquiries were needed.

The Council asked Ms X whether she would give up her role as Mr Y’s attorney given the concerns about how Mr Y’s finances had been managed. Ms X would not agree; therefore the Council contacted the Office of the Public Guardian (OPG) about suspending or cancelling the power of attorney.

The OPG visited Mr Y to assess his mental capacity to manage his finances, whereupon they concluded that Mr Y had capacity to make decisions about his finances (despite his earlier visits where he could not follow what was being said) and that Mr Y confirmed he was happy for Ms X to continue as his attorney.

The Council’s records stated that by the time of second case conference was held in August 2017 it was clear Ms X had deprived Mr Y of over £50,000. This record was made more than one year after the original request for assessment was made.

During a meeting between Council workers and Mr Y in the care home (Ms X also present) it was explained to Mr Y that Ms X had taken more than her share of the proceeds of sale (£54,000), to which information Mr Y responded by saying he had no knowledge of the withdrawals and had not given her permission. A later meeting with the police in March 2018 saw that Mr Y did not wish to make a complaint about Ms X, so police took no further action.

After a return visit from a social worker to Mr Y with copies of his bank statements, Mr Y stated he wanted the local authority to manage his finances, not Ms X.

The Council calculated that had Ms X only taken the half share of the proceeds of sale as she was entitled to do, Mr Y’s capital would have fallen below the upper limit by 22 March 2018. Mr Y continued to pay his full care fees until this date, and the Council then began paying the care home directly. Based on Mr Y’s income and savings, the Council assessed his contribution towards the cost of his care from 22 March 2018 would have been £262.98 per week. It would then have reduced to £117.45 per week from 21 April 2018 and then increased to £121.13 per week from 14 May 2018.

The Council continued to pay Mr Y’s care home fees until his death on 14 July 2018.

The Council completed its safeguarding investigation with the outcomes showing:

  • Ms X withdrew large amounts of money that were not used for Mr Y’s benefit;
  • Mr Y was dressed in second-hand clothes as Ms X did not provide him or the home with means to buy any clothes and he had no access to a personal allowance; and
  • There was no evidence Mr Y had been able to give informed consent regarding how his money was being used and didn’t have access to his bank account statements.

The Council concluded, on the balance of probabilities, that Ms X had committed financial abuse against Mr Y.

Ms X made a formal complaint to the Council about the way it had dealt with her original request for assistance with Mr Y’s care fees. The Council confirmed they had not been able to complete the financial assessment in 2016 in a timely fashion because of the safeguarding concerns and stated they had not ever agreed to fund Mr Y’s care in 2016 because of the issues relating to financial abuse and would not backdate now. They stated that Mr Y’s assessed contribution for the period 22 March to 13 July 2018 totalled £2568.52 and remained unpaid.

What was found

In brief summary, the Council’s failure to fund Mr Y’s care home fees when his actual capital fell below the upper limit amounted to fault. This fault caused Mr Y an injustice which could not be remedied as he had since died. See further for more detail.

After a financial assessment of Mr Y in 2016, the Council identified that large sums of money had been transferred from his bank account to Ms X’s. In these circumstances the LGO would expect the Council to have considered whether Mr Y knew of and agreed to these payments. Records showed that officers were satisfied Mr Y had not known that Ms X was taking money from his account and had not given informed consent. The outcome of the safeguarding investigation was that Ms X had committed financial abuse against Mr Y. There no was suggestion that Mr Y had ever deliberately depreciated the value of his capital in order to reduce the amount he would have to pay for his care.

However, the Council had assessed Mr Y’s entitlement to assistance with the cost of his care based on his actual capital plus the notional capital of £54,000. This would have been correct if Mr Y had deprived himself of this money to reduce the amount he had to pay for his care, but that was not the case and amounted to fault.

The LGO also considered the council’s delay in obtaining legal advice and the safeguarding investigation amounted to fault. As did the length of time taken to complete the safeguarding investigation.

The LGO found that the Council did cause injustice, because if they had assessed Mr Y’s finances based on his actual capital and income, he would have been entitled to assistance in 2016. But in actual fact the failure to do so meant that Mr Y had to pay for his full care charges for longer than he should have. Unfortunately, as Mr Y has died, the LGO was unable to remedy the injustice.

The LGO found that it would be inappropriate to reimburse those fees to Ms X, as she had already effectively benefited from those funds. The LGO did however recommend that the council waive Mr Y’s outstanding care charges of £2568.52 (which the council agreed to).

Points for councils and services users, families and attorneys/deputies

  • It regularly happens that an attorney or deputy, in acting in what they believe to be the best interests of their loved one, pays themselves or family members, sums of money as gifts – on the footing that they KNOW that their mum or dad or other relative “would have wanted us to have it”.
  • The trouble with that is that the obligation to pay social care charges for care that is going to be provided is a legal obligation – not a contract, but an obligation arising from the legal framework for social care – and giving the owner’s assets away, even though the money does still belong to the person, is like defrauding the public of the contribution to how the whole system works.
  • Councils can’t take the view that one has got notional capital if one’s attorney has done this, if one had no capacity to have understood that that was happening, or no means to stop it.
  • If the person does still have capacity, (a power of attorney being operative, usually, even before that person loses capacity, as long as the person had envisaged the grant of the power operating in that way) they must be asked as part of safeguarding or financial assessment functions, what they think about this situation, and either to adopt it or distance themselves from it, and revoke the power of attorney that they granted, in the latter case. IF they do not do THAT, then the person can be regarded of acquiescing in the deprivation of assets. In that situation, the council can send the bill to the person who has actually taken possession of the money. If they do not do that, the council might then apply to the Court of Protection to remove the person who’s been doing this from the role of power of attorney, if they think that the person allegedly being taken advantage of is about to lose capacity, because then that person will have lost the power to revoke the grant of the power, and become more vulnerable.
  • The council is not able to pass the bill on or to sue an attorney for unpaid charges, that it has concluded the individual should be regarded as liable to pay on the basis of notional capital, when that is a proper conclusion for them to have made, on the footing of a proper finding of deliberate deprivation of assets (not a finding that could be made in this case, for the reasons stated. The claim is against the person or their estate, and then the person or estate must sue the attorney for breach of fiduciary duty FOR the individual who has been the victim of financial abuse.
  • CASCAIDr has heard of a council using something called a Third Party Debt Order which freezes the bank account of someone who owes money TO the person liable for the charges, but we are unsure of the legitimacy of this remedy in the case of breach of fiduciary duty, unless it is admitted in full.

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 North Yorkshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-004-915

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Council at fault for reducing personal budget without properly involving the recipient or complying with the Care Act

Ombudsman’s decision date: 02/04/2019

What Happened

Mr X had a physical disability, following an accident, and other chronic physical illnesses. He has been in receipt of a personal budget from Norfolk County Council for a number of years.

In July 2017, Mr X was informed that his personal budget was to be decreased significantly. It offered 17 hours per week of support to help with meals, medications, cleaning and access to the community. The amount, according to him, went from £19,147 to £9,559.

The Council told Mr X it no longer provided financial support for transport, petrol costs, window cleaning, hobbies and interests, short breaks and family activities, although these were seen to be important to preventing and reducing his needs.

A letter was sent to Mr X outlining his personal budget. A care plan was drawn up which was not consistent with the letter sent to Mr X – it contained extra hours for some of the things it had said it would not fund.

Mr X complained to the Council for changing his personal budget despite his needs not having changed (although that is not necessarily unlawful, in public law terms).

The Council stopped paying for travel to activities saying that he should pay for that out of the mobility element of his PIP).

It reduced the hourly rate for personal assistants, but later reinstated this after he complained that the new rate was insufficient in the market.

It repeatedly sent him documents, giving him conflicting information, and it delayed significantly in responding to each of his successive complaints.

He said the Council had not considered the impact on him of removing parts of his previous support plan. He met with the Social Worker in November 2017 for another look at his needs.

Mr X explained how his health and physical disabilities impacted on his ability to manage his needs without support, and the impact of this on his day-to-day life and wellbeing. He now felt isolated and at risk of physical and emotional decline.

He explained the personal outcomes he wanted to achieve and what support he felt he needed to achieve these.

The Social Worker told Mr X they would create a new plan for management approval.

However, Mr X did not hear anything further. Six months later, in May 2018, Mr X again wrote to the Council.

The Social Worker replied apologising for the delay in sending the documents to him and the distress this caused him.

The new plan said that Mr X’s needs for care and support in the future would be prevented or delayed by Mr X fully accessing the community with the support of his PA, being able to spend quality time with extended family, and not being limited by petrol expenses. The new care and support plan included 20 hours PA support, for personal care, home environment, laundry, meals and undertaking personal activities. Petrol costs would not be included in the personal budget as the Council still expected Mr X to cover this using the mobility element of his Personal Independence Payment.

The Council still did not explain however, how the new personal budget relating to his needs was drawn up and did not allow him to use the budget in a way that he felt met his needs.

This left Mr X feeling as though he had no choice over his personal budget, that his mental health and wellbeing was negatively affected, and that he had lost his independence making him feel isolated. Furthermore, Mr X felt that responses to complaints all took too long.

The Council told Mr X it had decided not to fund certain things because they did not fall into the “specified outcome categories” in the Care Act. The Ombudsman found that the Council applied this list to Mr X’s case strictly, with indifference to his individual needs and wishes, thus fettering its discretion. The Care Act lists specific eligibility categories and outcomes. However, it does not specify what support can be arranged to meet those outcomes, and so the Ombudsman found that the Council’s reasoning is flawed.

The LGO concluded however that Mr X was not properly involved in the process of review and assessment and his wishes and wellbeing were not taken into consideration. (See Care and Support Statutory Guidance Paragraph 10.5; Section 1 Care Act 2014).

The Council did not adhere to required processes under the Care Act 2014 with regard to the lack of involvement opportunity in the care plan; the lack of or the long delay in provision of paperwork; and when the plan did arrive there was not enough detail to comply with the Act; and finally, the provision of contradictory and historical information.

The Ombudsman said that the Council’s assessment of November 2017 would have been suitable as a remedy for Mr X’s complaint, had it resulted in a Care Act-compliant care plan. However, the Council had not provided Mr X with an updated assessment or care plan even following this further attempt to discharge its functions.

Following the ombudsman’s involvement, the Council agreed to apologise within one month for the cumulative effect of repeated faults regarding lack of timely response to complaints and lack of provision of an up-to-date care plan in spite of Mr X requesting one on a number of occasions.

The council was ordered to pay £1000 over and above Mr X’s personal budget in recognition of the distress that the Council’s faults had caused Mr X and for the avoidable time and trouble he went to in raising his complaint.

The Council agreed to produce a care plan for Mr X compliant with the Care Act, that clearly set out eligible needs and outcomes, and took into account Mr X’s wishes and wellbeing within two months. The Council should provide evidence to the Ombudsman that it has carried out these actions.

Discussion

Legal Issues not specifically mentioned by the LGO

  • It is not lawful for the Council to oblige a person to spend their PIP mobility allowance on care and support needs including costs of transport for leisure or education, or travel expenses for their PAs, or treat their benefit as defeating eligibility.
  • And they can’t COUNT the mobility allowance for charging purposes.
  • But they are allowed, under the Charging Regulations, to take a person below the Minimum Income Guarantee by charging full cost for any transport that IS provided, as a ‘non-care service’ (transport, shopping, cleaning etc are the examples given) so a council CAN say ‘there is no point in your not spending your Mobility Component on meeting your own needs’.
  • As his needs had not changed one might think that the budget could not be changed but that is not the law. Cuts can be made on the footing that the last allocation was more generous than the minimum and that what is being offered now is still adequate and appropriate.
  • Finances are able to be taken into account in relation to HOW needs are to be met (not WHETHER they are to be met, however). See Para 10.86 of the Guidance, based on the case law over many years.
  • It is not lawful to make changes to a care and support package just because a Council wishes to address deficit cuts because that would be letting council budgetary difficulties determine the person’s own budget whereas assessments and care plans must be needs-led to be lawful.
  • All councils have an obligation to explore subjective views of impact and preferred outcomes (see the Merton case). They must set out all identified needs (see s12); and the eligible needs (see s13); and the council’s care plan must identify how each of them is going to be met, and if not, why not (for instance because a carer has said that they’d be willing and available to meet some of the needs – CP v NE Lincs) (and see sections 24 and 25 Care Act 2014).

Considerations for professionals in health and social care public bodies

  • Are you following a ‘conversations’ model that is not compliant with the Care Act?
  • If so, how do you let service users know that they are entitled to deeper and more probing processes?
  • Are you doing enough to be able defensibly to say that you’re involving clients and giving them the paperwork, to which they are entitled?
  • Have you let reliance on assets and strengths and community based resources as a means of meeting need, blind you to the fact that signposting to them must be rational, accessible and not dependent on a person’s own financial situation?
  • Have you fettered your staff’s discretion by reference to flat rates, or bans on budgets being used for specific types of things that are not excluded as aspects of care and support, without a lawful reason?
  • Have you trained your assessment and care planning staff how to explain about by mobility allowance may as well be spent on meeting one’s own needs privately, whilst you cannot make a person do that, or assume that their mobility component will be enough for all of their care and disability related transport needs?

Questions for Clients / Service Users

  • Does your council behave in any of the above ways, because if so, it may not be a complaint that you need to make, but a referral to the Monitoring Officer of the council, who is the lead on governance, in relation to illegality. Writing the complaint as a complaint but copying it to the Monitoring Officer highlighting points that you think might be breaches of the Care Act is the best free way to get a resolution, if the council still has any regard for the rule of law.

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

The full Local Government Ombudsman report in to Norfolk’s conduct can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-012-892

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Council at fault for failing to produce any care and support plan, for delays in payments and for failing to provide any adequate interim arrangements

Ombudsman’s decision date: 17/04/19

What Happened:

Mrs F’s son, X, is an adult with autism and learning difficulties. X had already been given an Education, Health and Care plan (EHC) by Hillingdon Council.

A child or young person aged 19 to 25 with special educational needs (SEN) is entitled to such a Plan and it sets out the young person’s needs and what arrangements should be made to meet them. The Education Authority is responsible for making sure that all the educational arrangements specified in the EHC plan are put in place. Parents may appeal to the SEND Tribunal against the educational provision specified in an EHC plan, including the named placement.

Mrs F herself had and has health problems which require hospital appointments.

In December 2015 Mrs F had appealed to the SEND Tribunal to obtain the naming of ‘School 1’ in X’s EHC plan. In January 2017 the Tribunal upheld Mrs F’s appeal. Its decision said Mrs F “had agreed to pay for transport to and from School 1”.

In June 2017 however, Mrs F asked the Council to assess X’s care and support needs, which task was completed by a social worker on 12th September 2017. It found that X needed support to access the community at weekends and during school holidays but it failed to specify how many hours were needed.

The assessment also gave an indicative amount of the cost of X’s care but did not include a personal budget. A financial assessment was completed in July 2017 which found X was receiving benefits and had no savings. Even after this assessment was completed, the Council did not produce a care and support plan. There was no question but that a care plan was obliged to be put in place under the Care Act.

In addition the 2017 assessment found X needed support to travel to School 1, which was 60 miles from his home. Mrs F was driving X to school as agreed; however as her health had deteriorated, it was hard to drive and manage hospital appointments and she had therefore applied for travel assistance from the Council’s school transport team.

With regard to the care arrangements for X, Mrs F had admittedly taken time to make arrangements for a family friend to provide support hours as a personal assistant (to be paid for by direct payments). In November 2017 the council asked Mrs F to confirm the arrangements she had made in finding X a personal assistant. Mrs F’s original intended PA had told her he was unable to commit to the role, but by the 24th of November Mrs F told the Council she had found an alternative person. The social worker agreed to send X’s care and support plan to the direct payments team. However the LGO found there was no evidence it was done.

And despite the social worker passing on information about Mrs F’s own health problems, the Ombudsman found there was no evidence that an alternative package of care was considered whilst Mrs F was liaising with potential personal assistants.

Some or other part of the Council told Mrs F on 25 September 2017 that X was not eligible for school travel assistance as “the tribunal decision was to allow the placement as long as the parents provided transport”.

The social care side of the matter was transferred to a new social worker in December 2017, who started arranging a home visit. Hillingdon Council said “a re-assessment was felt to be appropriate given the amount of time that had passed from the initial assessment.” Regarding this assertion, the LGO could see no evidence that X’s needs or circumstances had changed in a way that would have affected that assessment and found that it was ‘fault’ for the Council to delay developing a care plan based on the original 2017 needs assessment.

The new social worker visited on 2 January 2018. The new social worker advised Mrs F that school transport could not be provided by social care and she should apply to the school transport team.

The social worker agreed to arrange a direct payment to enable X to access the community at weekends and in school holidays. Again, the LGO found there was no evidence this was actually done.

After this visit, a new EHC plan was issued. The new plan was not updated to reflect X’s social care needs identified in the September 2017 assessment.

Mrs F complained to the Council in February 2018 that the direct payments agreed in September 2017 had not yet been set up, to which the Council responded in March 2018, accepting there had been a delay and that the direct payment would be “progressed without any further delay”.

After this a telephone review was carried out presumably because nobody had ever identified what was actually needed in terms of amount. It found that X required 10 hours of support a week (for access to the community), and Mrs F required 6 nights a year of support (respite for X from being cared for by Mrs F).

Again, the Ombudsman saw no evidence that a care and support plan was produced. Neither was a personal budget organised.

The Council said the direct payments could not be put in place as a complete financial assessment had not been undertaken. They said that they had been attempting to make home visits (which were cancelled as Mrs F was taking X to School 1), and were also awaiting documents from Mrs F.

However, there was still no interim care and support provided to X whilst the Council waited for that information.

On the 25th July 2018 the Council told Mrs F that she was responsible for the full cost of X’s care until the financial assessment was completed. This time however it offered an interim care package. But even this never came to fruition as the Council said it could not make contact with Mrs F. Again, the case was transferred to a new social worker.

Mrs F complained to the Council in October 2018. She stated that because she was still left responsible for driving X to school, her health had deteriorated and she had been discharged from three NHS clinics because she had been unable to attend follow up appointments.

On the 1st of November 2018 the financial assessment was completed. X’s assessed contribution was £47.11 per week. On the 14th of November a home visit was arranged to prepare a care and support plan, which included support consisting of 5 hours support term-time for 38 weeks and 10 hours support per week non-term time for 14 weeks.

The Council also offered Mrs F a support package. Mrs F refused these packages (as they did not offer enough flexibility) and again requested direct payments.

Another financial assessment started in February 2019; however the Council told the LGSCO that they are still waiting for necessary documents. X is therefore still without support.

What the Ombudsman decided

The LGO found that after the September 2017 assessment, which concluded X had eligible needs requiring support, the Council should have produced a care and support plan setting out how this support would be provided. There was no evidence a care and support plan was ever produced to set out how this support would be provided or what his personal budget was. Failing to do so conflicted with the Care Act 2014, showing the Council was at fault.

The Council had suggested that a care and support plan would only have been an administrative exercise because no service (or direct payment) was being provided whilst he was believed to be a full cost payer, no financial assessment having been formally completed.

As far as the LGO was concerned, the Care Act says councils must produce a care and support plan in response to eligible needs and therefore found fault. And as the LGO pointed out, the Guidance says councils should act promptly to meet people’s needs. A completed financial assessment is not required before support its put in pace. The Council should have paid the direct payments and re-claimed them later, if X was found to be a full cost payer.

The LGO found that access to education may well be a social care need. Once the Council knew its colleagues from education had decided that X was not eligible for school transport, the social care team should have considered how X would access education on the days Mrs F had hospital appointments. It should have considered how X would access education on the days Mrs F had hospital appointments. It should have considered whether a personal assistant could have been used to take X to School 1 on those days. So X’s needs were not properly considered in a care and support plan and this was fault.

Further fault was shown in the delays in processing direct payments, and failing to put in place interim arrangements whilst awaiting financial assessment. The Guidance says councils must provide interim arrangements to meet care and support needs whilst direct payments are being arranged. Interim arrangements were not offered until July 2018. This was fault.

This all meant that both X and Mrs F were without support between October 2017 and November 2018. Mrs F’s health suffered as a result, and there was (and still is) no arrangement for X’s access to education if Mrs F cannot drive him.

The LGSCO recommended that Hillingdon pay X £500 to acknowledge the distress caused by failing to meet his eligible needs for over a year and to pay Mrs F £750 to acknowledge the impact on her of its failing to meet X’s needs. The council agreed to apologise to Mrs F and X and also to consider how X will access education when Mrs F is unable to take him to School 1.

Points for practitioners and service users/carers/advocates to reflect upon:

The Care Act contains duties, which have to be discharged, even if a council is short staffed and taking a light touch or ‘Conversations’ approach to statutory functions.

  • Is the council stretching out assessment and care planning beyond a reasonable time? There are no time frames IN the Care Act but public law principles and the Guidance says it should all be done in a timely manner.
  • Is the council putting Care Planning on ice until financial assessment is completed? This is not acceptable in the face of eligible assessed unmet needs: the production of a care plan does not depend on a completed financial assessment. Services can and should be provided in the interim and reclaims of any excessive amounts paid over net of eventual charges, reclaimed. Meeting the needs is the essential task imposed on the council.
  • Is the council putting Care Planning on ice where it is thought that a person’s charge would wipe out the value of an indicative budget? That is common, and the wrong way around because an indicative budget decides nothing; it is merely an estimate using averages and scored profiles of need, and cannot be regarded as the end of the process; care planning is needs led, and the indicative budget is just there as a sense check.
  • Is the council batting backwards and forwards elements of need between departments – eg children’s and education teams, or even that of the health service? Just because one body or one internal department won’t pay for something does not mean that the distinction between functions is concrete: there are many services and responses that overlap as between the statutory functions of the education authority, children’s services, adults’ services and the health service. The LGO is clear that there is no list of services that ‘aren’t’ or ‘can’t’ be social care services and ultimately that is a matter of law for a court to decide in a given case.

If you need help with the use of law and legal principle in relation to issues such as these, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report into Hillingdon’s fault can be found at https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/17-016-412

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Council at fault for failing to assess needs properly

Ombudsman’s decision date: 20 May 2019

What happened:

Miss X is an adult with a genetic disorder affecting her ability to do things for herself. She is registered blind.

The Council reviewed her needs in September 2017. It recognised that her needs had changed, and agreed a care and support plan. It stated at this point that Miss X required 24 hour support via a live in carer (for which service she had been using her personal budget of £766.50 a week) and personal assistants would supervise Miss X to complete some of her own domestic work. The Council suggested using a care phoneline as an alternative to overnight care, but Miss X did not want one.

The Council told Miss X they would then review her care and support plan in March 2019.

However, in February 2018 an early review took place which showed that Miss X needed support with mobility, was independent upstairs (but would benefit from a second rail on the stairs), was largely independent using the toilet, but needed help using the bath. Miss X’s father refused the extra safety rails.

The Council visited again in March 2018. The assessor took the view that some aspects of her health had improved. It was noted that Miss X could walk independently into the kitchen using the walls/doors for guidance and could find most of the tools she needed to make a hot drink. The assessor did have to help Miss X when pouring out water to make sure she did not scald herself.

During this visit Miss X told the assessor that she had no problems sleeping and did not get up during the night, therefore the assessor (again) suggested using a carephone for night-time support instead of a PA. However Miss X and her father did not agree to this because they had concerns about response times.

Miss X’s personal budget was reduced to £415.80 a week to pay for 36 hours of care and the Council produced a care and support plan based on this new personal budget. Miss X was told shopping, cleaning and laundry would no longer be part of her funded care package. Her budget was decreased as the Council held the view she was more independent, and therefore needed less help in regards to mental health, personal care, medication etc.

A reduction in a care plan is not in principle unlawful on the basis of a change in needs, if there is a solid evidence basis that the needs or at least the dependency has somewhat resolved through the coming about of an improvement or a lessening of dependency on paid care or the arrival of a new source of free care.

In June Miss X’s Solicitor complained to the Council about the decision to reduce her personal budget from £766.50 to £415.80 a week. While accepting her needs had reduced, he said it was not right to say she needed no help with medication, mental health or personal care. He said her need for help with communication, continence, housework, meals, medical appointments and mobility remained unchanged.

Also the Council had previously stated that they would review Miss X’s care and support plan in 2019, not 2018.

The Council responded in November stating that it was reasonable to review Miss X’s care and support plan within six months (which is true, in legal terms – they can do it as often as they like, in fact). They also agreed that although Miss X’s needs with communication and medication had not changed, it was reasonable to propose alternative ways of meeting those needs (which is also true, in law, and can be just the sort of change of circumstance that should trigger a re-assessment. Financial pressures meant that the council had to consider other ways of supporting people, such as the carephone that had been suggested. They also highlighted that the offer of rails had been declined and agreed to discuss further the impact of housework and cleaning on Miss X.

What was found

The Ombudsman could not find the Council at fault for reviewing Miss X’s needs within six months. The LGO decided that the date of March 2019 for the next review as stated in the care plan was a ‘clear mistake’ which was meant to say March 2018.

The LGO found that the Council was at fault for failing to do a proper needs re-assessment. When the Council identified changes in her circumstances it should have done a needs re-assessment before changing her care and support plan.

The LGO had to spell that out because without a needs assessment, it was unclear what her eligible care needs actually were at that time – and the Care Act says so in section 27 under the heading ‘Review’.

The council identified that these were the needs without specifying how much of anything was actually needed, and whether from family members for free or needed from a PA – which makes it difficult to challenge, unless it is accepted that the relatives were in fact willing to step up. This list is not actually the full Care Act domains list, please note – it contains some that are not relevant and misses out some that are:

  • communication – PAs and family to help with reading written communications; [so the split between the two has been left vague]
  • continence – PAs to help with occasional incontinence; [no input or number of hours is specified]
  • finances – Miss X’s father to help with finances and a company to manage her direct payment account; [management of finances is not part and parcel of the Care Act vision of what inability to achieve should then trigger as an entitlement]
  • housework – Miss X to employ a private carer; [how was this ‘agreed’ we wonder?]
  • social – eight hours of support from a PA; [this is a proper recording of inputs and not just outcomes]
  • meals – one hour of PA support at breakfast, lunch and tea to prepare meals and encourage Miss X to do what she can; [this is a proper recording of inputs and not just outcomes]
  • medical appointments – to contact the NHS for help if this is needed; [support, although not transport, to access to appointments can be a social care task: there is authority for that proposition as a matter of law]
  • medication care – help would be needed if prescribed medication; [what does this mean, we wonder? Help would be provided?]
  • mental health – Miss X said having a PA with her all the time prevents her from becoming anxious; [what does this mean, we wonder?]
  • mobility – equipment offered but not accepted;
  • personal assistant – eight hours to employ a PA for “social hours”; [this is a proper recording of input]
  • hygiene and dignity – PA to provide support, while maintaining independence; [unclear as to how much of this – even roughly – is accepted to be needed, so it makes the sufficiency of the budget unaccountable]
  • shopping – using benefits to employ a PA to take Miss X shopping, use an agency or order food online; [this is fine if the client is willing to do it or volunteers, but not on the footing that social care doesn’t ‘do’ this sort of thing]
  • equipment – offered but declined;
  • accommodation – Miss X rents a property from her brother;
  • laundry – PA to encourage Miss X to do what she can, use benefits to buy help from a PA or a care agency. [this is fine if the client is willing to do it or volunteers, but not on the footing that social care doesn’t ‘do’ this sort of thing]

The Act and Statutory Guidance say a care and support plan must include the needs identified by the assessment and “whether, and to what extent, the needs meet the eligibility criteria”.

Miss X’s new care and support plan did not address the eligibility criteria which demonstrated fault by the Council.

Although the Council was at fault for failing to do a proportionate needs re-assessment, the LGO stated that it could not be demonstrated that the council had failed to meet Miss X’s eligible needs. This is because the Council did not clearly identify what those needs were, and it was clear Miss X had become more independent since 2017.

The LGO stated that the Council needed to take action to ensure it properly complied with the requirements of the Act and Statutory Guidance in the future and remedy the injustice to Miss X by apologising and doing a needs assessment within six weeks.

Points on which practitioners and service users/carers/advocates could reflect, in light of this complaint report:

Section 27 of the Care Act makes review, and revision, where it is considered necessary, a statutory process, with definite steps and due process rights attached to it.

It provides for review from time to time, or as per a schedule, or on the basis of any reasonable request by or on behalf of a service user. Change of circumstances is not a trigger to a review, but to a re-assessment if a review has given rise to perceived changes affecting the plan, although the re-assessment is not a repeat every time of the full s9 assessment function, or the s24/s25 care planning function. All the due process rights attached to those steps are re-enacted specifically for a proportionate re-assessment of need and a fresh planning process, with discretion being left open to the council to decide how far back to go. In a case where the needs are perceived to have lessened, a deeper re-assessment must be done, because the improvement may have affected a person’s ability to achieve, (as defined by the regulations) OR the impact sustained as a result of being unable to achieve, both of which issues go to eligibility.

  • Is your council doing reviews so often that they never actually implement a care plan based on the previous review?
  • Is your council doing review for no good reason, or only ever for changes of circumstance that benefit the council (like a drop in the market price, albeit highly unlikely in 2019 due to lack of provider capacity and massive staffing problems – or a new way of meeting need, which saves money)?
  • Is your council accepting requests for reviews from people or their proxies, even if a scheduled review is not yet due? Is your council giving reasons for any refusal to do a review when one is asked for?
  • Does the council distinguish between requests for reviews by providers, who are under contract to the council already, to discharge certain functions in return for a fee, maybe regardless of what’s become of the client’s state of need?
  • Is the council care planning after a review on a woolly or unclear basis that stresses outcomes instead of outcomes and INPUTS – ie the input that is anticipated to have to be bought in and paid for sufficient to meet the assessed eligible unmet needs? We appreciate that Direct Payment clients have every interest in outcomes based specifications because they allow for flexibility and choice, but the other side of that coin is that there’s an inbuilt potential for disputes about what was a legitimate spend on adult social care needs, and what should simply not have been regarded as envisaged by the care plan – and for reclaim demands.

If you want help with regard to using law and legal principles to resolve matters such as these, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the website.

The full Local Government Ombudsman report of Kirklees Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-011-052

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Council found at fault by ombudsman after delaying a Carer’s Assessment for two years from the date requested and even then failing to provide the outcome of the assessment to the carer

Mr X had a disabled mother. Although she received support from a care agency after a hospital stay, and Mr X worked full time, Mr X still provided some support to his mother when she was at home.

Mr X requested a carer’s assessment in 2016 and this was agreed by London Borough of Waltham Forest and scheduled to take place after Mr X returned from a planned period away from home. The Council failed to carry one out until June 2018.

During the review of Mr X’s mother in February 2017, there was a record of consultation with Mr X about the need for an increased care package for his mother. However, there was no record of his needs as a carer or the amount of support that he offered in that role.

That assessment was based on Mrs C’s views of the support she received from family or friends. The document summarised the impact of caring on Mrs C’s main carer’s independence was “Little/no restriction on activities”. It did not specifically refer to Mr X.

The Council has no record of:

  1. referring to Mr X’s previous request for a carer’s assessment;
  2. advising Mr X how he could ask for a carer’s assessment; or
  3. offering Mr X a carer’s assessment.

Following a review of Mr X’s mother in May 2017, it was noted that Mr X’s brother was involved but not Mr X himself, in spite of his request for a carer’s assessment.

A carer’s assessment was finally done in June 2018 following a complaint, and two days after his mother was admitted to a residential care home. Mr X’s mother was permanently admitted to the care home in July 2018.

The carer’s assessment was sent to Mr X in September 2018 outlining some support but not offering to implement it without giving a reason. The assessor recorded Mr X’s view about how caring for Mrs C affected him when she was at home. Mr X said his caring role had caused significant deterioration in his physical and mental health and significant restrictions in other areas of his life.

The Council said to the LGO that the mother going into a care home meant Mr X no longer met the Council’s criteria to be considered his mother’s carer – because the care home now met almost all Mrs C’s needs. The Council did not tell Mr X how Mrs C becoming a permanent care home resident affected his carer’s assessment.

Waltham Forest were found at fault for delaying the carer’s assessment, not including the carer’s position on impact in a review of Mr X’s mother’s care plan, and then when they did undertake the assessment, taking 3 months to send their findings to Mr X.

Legal points

Without any discussion, the LGO report says this: “While she is cared for elsewhere Mr X cannot be seen as her carer.”

This is not in line with the Care Act and is probably an error of law.

Section 10 does not give a council the right to disregard practical or emotional support provided to a person and the setting makes no difference. It cannot be said that a council has no judgement to make about who is a carer and who is not, but the threshold is very low and the absence of any discussion of what Mr X actually did for his mother once she had gone to the care home is problematic.

Compensation was recommended of £100.

Full Local Government Ombudsman’s report can be found at

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-006-436

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Council and Clinical Commissioning Group at fault for the way they assessed care needs and entitlement to Continuing Healthcare funding, Ombudsman finds

The Council took too long to assess and to review changed needs. Additionally it did not fund a care home placement whilst CHC decisions were being made and financial assessments being completed.

The CCG’s related fault was with completing CHC checklists and a Decision Support Tool whilst delaying the reimbursement of care home fees.

What Happened

Mr T’s Huntington’s disease caused him to deteriorate over time.

His sister (Miss Q) contacted Essex County Council in August 2016 requesting support for her brother. Information about meals and aids was provided as well as referring him to the equipment service. However an assessment for equipment was declined by Mr T.

In February 2017 a social worker visited and assessed Mr T’s needs and referred Mr T for a CHC consideration. The CHC Checklist and consent forms were completed and received by the CCG resulting in a positive Checklist test in March 2017.

Mr T attempted suicide twice and his mental health was apparently declining. A specialist care home was discussed by Miss Q and the Council for her brother but when one was identified there was a wait for a vacancy to become available for Mr T. A respite placement was refused by the Council who instead put in place an interim care package at home until he was able to move into the care home in June 2017.

In July 2017 Mr T was assessed as eligible for CHC funding by the CCG.

However the care home fees already paid by Mr T to the care home whilst awaiting the funding decision by Mr T totalling £8750 were delayed in being reimbursed by the CCG.

In August 2017 the Council agreed to fund ‘without prejudice’ the care home placement whilst the issues with the CCG were resolved. The CCG were provided with copies of the paperwork they required by Miss Q on 26th September 2017 to evidence the payments made to the care home, and Miss Q accepted the CCG’s offer in writing on 7th October 2017.

The CCG authorised payment on 25th October and made the payment to Miss Q on 9th November 2017, by which point Mr T had died. The delays and issued encountered by Mr T and his family caused them considerable upset, as has the inconvenience trying to tackle the issues. Additionally the CCG’s delayed care home fee reimbursement impacted on the family’s ability to pay Mr T’s funeral costs.

Key Issues

The Council was found to be at fault because:

  • of the length of time taken to assess Mr T and put in place a care package for him;
  • there were delays in reviewing Mr T once it was apparent that there may be changes in his needs;
  • they did not fund Mr T’s placement whilst CHC processes were being completed (as to the reasons for which, there is nothing mentioned in the LGO’s report, as it happens).

The Clinical Commissioning Group was found to be at fault because:

  • delays and ambiguity regarding roles and responsibilities of professionals involved in the completion of CHC Checklists and the Decision Support Tool (DST)
  • delayed reimbursement of care home fees to Mr T.

Discussion

The Care Act 2014 places a duty on local authorities to carry out an assessment for any adult who appears to require care and support, regardless of their financial circumstances or likelihood of eligible needs. The assessment must be of the adult’s needs and the subsequent impact of those needs on the person’s wellbeing and the outcomes they wish to achieve.

According to Essex County Council’s own Key Performance Indicator ‘adults at risk’ should be given priority for assessments within 28 days.

In public law terms, and according to national guidance for the Care Act, the assessment should be done timeously, which means within an ‘appropriate and reasonable’ timeframe, considering also the urgency of needs, and any change in needs.

Council staff are obliged by regulation 7 of the assessment regulations to refer anyone who appears to them might be someone who might qualify for NHS CHC to the local clinical commissioning group.

Continuous Healthcare Funding (CHC) and FNC assessments and funding decisions based on up-to-date assessments of all the person’s relevant needs (social and personal as well) are the responsibility of the individual’s local Clinical Commissioning Group (CCG). However sometimes these responsibilities are delegated to other NHS organisations to undertake on behalf of the CCG.

Initially a health or social care professional will undertake a CHC Checklist (a screening tool exercise indicating whether a person MIGHT qualify for full CHC – set with a low threshold to be inclusive).

Each CCG and local authority should have an agreement as to which professionals (within those allowed by the rules) can complete the Checklist, but those involved in regularly assessing the individual’s needs (e.g. social workers) should be able to do this. The revised 2018 Framework for CHC makes further provision to ensure that checklists are not done needlessly, although there can be disputes about this and all that a professional needs to do is disagree that none is needed.

Upon completion of a ‘positive’ CHC Checklist which indicates possible eligibility for CHC, a full multi-disciplinary eligibility decision-making process follows, which involves the completion of a Decision Support Tool (DST) form which maps the actual needs assessment evidence on a scoring chart, and records a rationale for the MDT’s recommendation regarding the person’s qualifying for CHC funding.

Useful paragraphs in the Framework, to which the LGO could have referred, are here:

132. The DST is not an assessment of needs in itself. Rather, it is a way of bringing together and applying evidence in a single practical format, to facilitate consistent, evidence-based assessment regarding recommendations for NHS Continuing Healthcare eligibility. The evidence and rationale for the recommendation should be accurately and fully recorded.

And here:

21.1 Assessment in this context is essentially the process of gathering relevant, accurate and up-to-date information about an individual’s health and social care needs, and applying professional judgement to decide what this information signifies in relation to those needs. Both information and judgement are required. Simply gathering information will not provide the rationale for any eligibility recommendation; a recommendation that simply provides a judgement without the necessary information will not provide the evidence for any subsequent decision. Assessment documentation should be obtained from any professional involved in the individual’s care and should be clear, well-recorded, factually accurate, up to date, signed and dated.

The CCG’s designated decision-maker (often a Panel, but not necessarily so – it can be decided by any two people with the authority to take this next step) is supposed to ratify the recommendation in all but exceptional circumstances. This process should be completed within 28 calendar days from the date of receipt of the positive CHC Checklist. Any credibly unavoidable delays in the process should be explained and confirmed in writing to the individual.

If the CHC Checklist indicates the person is not even considered possibly to be eligible for CHC funding, the CCG should, in writing, advise the individual of their right to ask the CCG to reconsider. Once the CCG have reconsidered the individual can complain to the CCG as the final right of appeal if they are not happy with the decision. Most importantly any disputes between CCGs and local authorities regarding funding responsibility must not leave individuals without the support they need.

Considerations for Professionals in health and social care public bodies

  • How efficient are your processes for completing healthcare/nursing needs and Care Act assessments and a person’s right to a DST within a reasonable time of appearing to be someone who might qualify for CHC?
  • Are there clear joint arrangements confirming roles and responsibilities of professionals undertaking CHC checklists in light of the revised framework in place since October 2018?
  • Are you aware of regulation 7 of the Assessment regulations, which OBLIGE local authority staff to make referrals to the CCG based on their own independent judgements?
  • Are you delaying the funding of Discharge To Assess placements whilst awaiting CHC assessment processes to be completed? It would still be the NHS’s function so to do, if the person has already been positively checklisted. There is no justification for NOT checklisting a person, just because they are not yet in the next setting.

Questions for Clients / Service Users

  • Have you faced delays when awaiting assessments or for care packages to be put in place?
  • Have you been considered as someone who might be eligible for full NHS continuing health care status and funding?
  • Have you experienced ambiguity or delays in CHC eligibility considerations or funding? Interest is payable on reimbursements!
  • Have you been caught in a dispute between two statutory organisations, neither of whom are willing to pay for care needs whilst they resolve their dispute?
  • Has your CHC package been adequate, in your opinion? If not, HOW inadequate has it been? CCGs are governed by public law principles and the package must be rationally sufficient, transparent and accountably defensibly capable of meeting needs, taking all other legal principles into account, such as the one that says relatives cannot be MADE to provide the necessary care!

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

The full Local Government Ombudsman report can be found at

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/17-015-113

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R (on the application of Muriel Maguire) v Senior Coroner for Blackpool and Fyle and United Response and Ors [2019]

Jackie Maguire (52), who had Down’s syndrome and moderate learning difficulties, died in hospital in February 2017 of a perforated ulcer and pneumonia at the age of 52. She had lived for more than 20 years in a care home in Blackpool and required one-to-one support due to her severely compromised cognitive and communication abilities. By the time of her death, her mobility had become limited and she needed a wheelchair to move around outside.

An inquest took place in June 2018 which concluded that she had died of natural causes. During the inquest, the Coroner had made two rulings:

(1) that there was insufficient evidence to safely leave the question of neglect (whether there had been a gross failure to provide Jackie with basic medical attention) to the jury;

(2) that the enhanced investigative duty under Article 2 ECHR did not arise in this case (following Parkinson which had been decided in the High Court shortly before the inquest in this case took place).

These proceedings were a judicial review seeking to challenge those two decisions.

It was acknowledged that there was a series of failings in Jackie’s care by healthcare staff. These included a failure to make a home visit, failures to triage properly or elicit a full history from carers, poor telephone advice and poor liaison with ambulance services. However, the Coroner had concluded that these amounted to allegations of individual negligence, rather than the systemic or regulatory failings (as required by Parkinson).

Irwin LJ (with whom Farbey J & Lucraft HHJ agreed) summarised the ECHR case law on Article 2 as providing two principles:

(1) Article 2 is only engaged by an individual’s death if (a) there is evidence of systemic or regulatory dysfunction; or (b) if the state has assumed responsibility for the individual’s welfare or safety

(2) The key consideration in deciding whether the state has assumed responsibility for an individual’s safety is how close was the state’s control over the individual.

It was noted that previous case law had established that, where the state had detained an individual, such as in prison, in a psychiatric hospital, or in an immigration detention centr,e the level of control was high and Article 2 was likely to be engaged. However, the position where an individual lacked capacity to consent to care and treatment involving a deprivation of liberty was less clear cut:

“We agree that a person who lacks capacity to make certain decisions about his or her best interests – and who is therefore subject to DOLS under the 2005 Act does not automatically fall to be treated in the same way as Lord Dyson’s paradigm example [as in state detention]. In our judgment, each case will turn on its facts.

Where the state has assumed some degree of responsibility for the welfare of an individual who is subject to DOLS but not imprisoned or placed in detention, the line between state responsibility (for which it should be called to account) and individual actions will sometimes be a fine one. However, it was the function of the Coroner to draw it. This court will not interfere save on grounds of irrationality or other error of law. The Coroner’s approach reveals no such error. On the evidence before the Coroner, it was open to him to conclude that this was a medical case and that a jury could not safely find that Jackie died as a result of any actions or omissions for which the state would be responsible.” [paras. 48 & 49]

Comment: It is important to note that this judgement does not actually mean that the Coroner’s decision not to hold an Article 2 inquest in this case was correct, merely that it was not irrational on the evidence before him. Another Coroner might have decided differently. It is particularly important to note that academic and other evidence illustrating the widespread issue with premature deaths of people with learning disabilities in the UK was only put before the court during these proceedings (where it could not be legitimately considered) and had not been put before the Coroner. It is possible, therefore, that a future Coroner in a similar case, might be persuaded to see a series of individual failings as ‘systemic’ if such evidence were to be put before them. However, this judgement does mean that, for families, it is unlikely that a challenge to a Coroner’s decision not to hold an Article 2 inquest where an incapacitated adult dies whilst deprived of liberty in a care setting will succeed without both strong evidence of systemic or regulatory failings and this evidence having been put before the Coroner prior to the challenged decision.

It may be helpful to note also that changes to the Coroners and Justice Act 2009 made in 2017 (s.178 Police and Crime Act 2017) mean that Coroners are no longer automatically obliged to hold an inquest at all into the death of someone in a care setting where there is a valid DOLS authorisation or CoP welfare order authorising a DoL in place unless other grounds for doing so exist (such as that the death may have been unnatural). Guidance at: https://www.judiciary.gov.uk/wp-content/uploads/2013/10/guidance-no-16a-deprivation-of-liberty-safeguards-3-april-2017-onwards.pdf

Full Judgement: https://www.bailii.org/ew/cases/EWHC/Admin/2019/1232.html

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