Author Archive for Gabe Susman

A Local Authority and SF

[2020] EWCOP 19

Date: 20/04/2020

What Happened

X was a 20 year old woman with autism who received 24 hour care at a supported living placement.

In September 2019 the staff at her placement became very concerned that X was in contact with several men via social media and dating websites.

A number of these men had come to her placement and engaged in sexual relations. Only one of the men was actually identified, referred to here as ‘B’.

In January 2020 the Local Authority applied for an injunction against B to stop him from visiting X’s placement (pursuant to s.16(5) and s.48 of the Mental Capacity Act 2005), and then in February they applied for an injunction to stop ‘unknown persons’ attending her placement.

The Court of Protection Judge decided that X lacked capacity in regard to making decisions about her use of social media and internet use, and that it was in her best interests not to have any further contact with B, and therefore granted the injunction.

Issues arose regarding the Court of Protection’s power to grant injunctions. The judge discharged the original injunction, and then made an injunctive order against B in the same terms, but pursuant to the jurisdiction of the High Court.

The Judge then sought to determine whether the Court of Protection had the power to make injunctive orders and, if so, from which provisions of the Mental Capacity Act 2005.

What was found

The Judge stated that the Court of Protection ‘does indeed have the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.’

In deciding that, he considered;

  1. s.47(1) of the 2005 Act is drafted in wide and unambiguous terms”

s.47(1) states that “The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”.

  1. it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the Senior Courts Act 1981 to grant injunctive relief”

The High Court can make interlocutory injunctions by virtue of the provisions of s.37(1) of the 1981 Act, and s.47(1) highlights that the CoP has the same powers, rights privileges and authority as the High Court. Therefore, should have the power to grant an injunction.

  1. s. 48 of the 2005 Act states that the court has the power to make interim orders or directions … if it is in P’s best interests to do so.
  2. s.17(1)(c) of the 2005 Act permits the court to “prohibit contact between a named person and P”, which further supports the power to make injunctive orders by the CoP.
  1. it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act.

The Judge stated that “the provisions of s.16(5) are drafted in wide terms and enable the court to ‘make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)’”

  1. finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.

The Judge was further persuaded that the CoP had the power to grant injunctions as both Hayden J. and Cobb J. were of the same view;

“Counsel for the Official Solicitor referred me to the three authorities set out above. In the case of MASM (above) paragraph Hayden J. said, “The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014)”.

And later at paragraph 39 he said, “Section 16 it must be noted is framed in terms of the court making ‘orders’ and ‘decisions’ rather than the ‘declarations’ contemplated by Section 15. In this area Section 15 largely replaces the High Court’s Inherent Jurisdictional powers under which aegis the Family Division, prior to the Mental Capacity Act 2005, made declarations in respect of mentally incapacitated adults in regard to medical treatment and personal welfare.”

In the case of Re Leslie Whiting (above) Hayden J. made the following observations at paragraph 20, “The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny.”

Earlier in his judgment at paragraph 11 he had noted that, “On 28th November, the case was transferred to the High Court because, as I understand it, it was thought that the offices of the Tipstaff might be required. That is, of course, concerned with the apparatus of enforcement but it is perhaps important to note that section 47(1) of the Mental Capacity Act 2005, which relates to the general powers and effect of orders et cetera made in the Court of Protection provides: “(1) The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.””

The factual background to this case and early history of the orders made in this case are set out by Hayden J. in paragraphs 7 and 8 of his judgment,

“Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.

On 21st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows: “

Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”

He concluded the judgment at paragraph 20 with the following words,

“Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.”

In the case of North Yorkshire County Council (above) Cobb J. had made injunctive orders against an individual who posed a risk of harm to the vulnerable incapacitous adult who was the subject of the application in the Court of Protection. The factual matrix is set out in paragraphs 2 & 3 of the judgment of HHJ Anderson, before whom committal proceedings were listed for alleged breaches of the injunctions,

“The first of those injunctions was made without notice to George Elliot. The injunction order was set out in clear terms. The injunction prohibited him from contacting or attempting to contact the young woman who is the subject of these proceedings whether directly, face-to-face or indirectly by any means whatsoever including telephone, texting or messaging, email, Skype, FaceTime or through any social media platform including, but not limited to, WhatsApp, Twitter, Instagram or Snapchat”

At the time of that hearing, George Elliot was in prison following an alleged breach of a sexual harm protection order. The second injunction was made in his presence at an on-notice hearing, again before Cobb J. That hearing took place on 21 January 2019. Mr Justice Cobb amended the terms of the first injunction to make them more precise. It seems that the aim of the judge was to make it clear to Mr Elliot that the injunction included a prohibition on any communications even if initiated by the young woman at the heart of this case. So, therefore, an injunction was made in Mr Elliot’s presence prohibiting him from communicating with or attempting to contact her, whether directly, face-to-face, et cetera. The word “communicating” was put in the injunction in place of “contacting”

At paragraph 10 of her judgment HHJ Anderson said,

“I must take into account that this injunction was made in the Court of Protection to protect a vulnerable person from contact with Mr Elliot. I take into account that the terms of the injunction were spelled out clearly by Cobb J to Mr Elliot directly in court. The breaches were deliberate breaches of the court order where Mr Elliot had a choice and took the decision to breach the order.”

The judge discharged the “just in case” injunction against X under the jurisdiction of the High Court, and substituted it for an injunction in the same terms, made in the Court of Protection.

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Warrington Council at fault for breaching its duty under Section 47 of the Care Act to take reasonable steps to prevent or mitigate the loss or damage to a person’s belongings

Decision Date: 11th March 2020

What Happened

Ms C complained on behalf of her daughter, Miss B.

Miss B had originally been living in supported living accommodation, but decided she no longer wanted the support, and wanted to live somewhere else. Her social worker served notice to the care company on the 25th May 2017.

A few days later, Miss B was hospitalised under the Mental Health Act, and remained there until February 2018.

On 16th June 2017 the company manager reminded the Council that the notice period was ending on the 23rd June, and advised that Miss B’s belongings needed to be taken from the premises before then. The company also phoned Miss B whilst she was in hospital to state the same thing.

Miss B, feeling under pressure, arranged for a removal company to pack and store some of her belongings from the flat, but did not have enough money to remove every item.

The social worker attempted to contact the company on the 5th July for an update on the remaining items, but received an automated response stating the manager was on holiday. She then left a message for a different member of staff.

Miss B’s social worker left the Council on 21st July, so she was allocated a different officer on the 16th August.

The new social worker contacted the company on 1 November 2017, regarding the left over belongings.

The company had put some items in storage, but left others in the flat, which it then re-let. It provided an inventory for the items it had put into storage.

Miss B disputed the contents of the inventory.

When Miss B was discharged from hospital, in February 2018, she realised many of her belongings were missing. She told the company and the Council, and then later told the police as they suspected some things had been stolen.

Miss B and Ms C complained to the LGO after the Council stated there was nothing more they could do. Ms C said that the Council acted in breach of Section 47 of the Care Act, as it failed to protect Miss B’s belongings when she was in hospital and unable to deal with them. As a result, some of them were lost and others were damaged by the new tenants when the property was re-let.

After the LGO started its investigation, the Council asked Ms C for further information, including a comprehensive list of all the items she believed had gone missing from Miss B’s flat and an estimate of each item’s value, and met with Miss B and her family to discuss the situation.

The council offered to make a payment to Miss B for the lost belongings, which Ms C accepted on her behalf.

What was found

The Council tried to contend that they didn’t know her belongings were at risk. But it accepted in the end that the company directly contacting Miss B whilst she was in hospital was inappropriate, and ‘fell below the standard expected of a commissioned care provider” It accepted that, in doing so, the company “failed to protect her dignity and privacy.” The Council apologised for this.

The LGO highlighted that the Council knew Miss B had given notice to the company, and that she was in hospital, unable to deal with her belongings. The Council was also aware that Miss B’s things had to be removed from the flat by 23 June 2017. Therefore, it should have known they were at risk.

Furthermore, there was a period of one month when Miss B was without a social worker and unaware of what was happening with her belongings. The new social worker did not contact the company to find out what was happening with her things until November 2017.

Therefore the LGO concluded that the Council failed in its duty under Section 47 of the Care Act to take reasonable steps to prevent or mitigate the loss or damage to Miss B’s belongings.

The Council had already offered financial compensation to cover the loss of Miss B’s belongings, which was sufficient for the LGO. However, the LGO recommended that the Council pay a further £300 in recognition of the distress Miss B suffered.

The LGO did not investigate these parts of the complaint:

Ms C said the events affected Miss B’s health, resulting in hospital treatment. This point was essentially about liability for personal injury which is for the courts to decide, not the LGSCO (although that organisation does sometimes recommend compensation for harm resulting from maladministration).

Ms C also said the Council was in breach of Regulation 18 of the Care Quality Commission (Registration) Regulations 2009 in failing to notify the Care Quality Commission (CQC) of this incident. The LGSCO said it is for the CQC to make that kind of judgement, as the appointed regulator.

Points for the public, councils, families, housing providers, and advocates

Section 47 of the Care Act 2014 applies where an adult is admitted to hospital and it appears to the local authority that there is a danger of loss or damage to the adult’s belongings because:

the adult is unable (whether permanently or temporarily) to protect or deal with them, and no suitable arrangements have been or are being made.

Section 47 of the Act has not received much attention since its introduction. It is the successor to the old s48 of the National Assistance Act, and the LGO has interpreted it here to extend to a departure from supported living into a psychiatric hospital. There is no reason for the LGSCO not to have done that, on the wording of the section.

The company here was the care company, not the housing provider. Unless it was also the agent of the landlord, for housing management functions, which is common in the sector, it was not responsible for emptying the room, for the next tenant, or entitled to touch Miss B’s personal effects. It would not have been commissioned to have done so, not by the council, but it may have had an interest in the new tenant coming IN to the property, perhaps.

The wrongdoing on the part of the council’s commissioned provider, therefore, was touching the goods of the client without consent. If the company was the housing management agent, however, surrender of the property upon notice would mean that after a while, the goods would simply be forfeited. Here, knowing what had become of the woman and her current indisposition at the time, the provider and the council simply failed to do what was necessary.

And commissioned providers, owe human rights – particularly respect for a person’s private life, family life and the home. And any councils should have known that there is still a backstop responsibility for a person’s goods, if they are suddenly hospitalised.

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 Warrington Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/other/18-009-388

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Kirklees Council at fault for removing respite care and setting arbitrary limit to funding

Decision Date: 2nd March 2020

What Happened

Mrs X complained on behalf of herself and her husband, Mr X.

Mrs X had been her husband’s carer since he had a stroke 38 years previously.

Mr X would not willingly accept support from carers or go into a residential facility.

Mrs X was the sole provider of care and had no informal support as no family lived nearby. Mr X received 56 nights per year of respite care for Mrs X to have a break, at a cost of £125.64 a day. He received direct payments (DPs) to purchase respite services privately.

Reports dating between 2012 and 2016 all highlighted that Mr X’s needs had not changed, and that the support they received through DPs was ‘very important to them’. Mr & Mrs X used their DP to pay for short breaks/holidays in hotels with disabled facilities, often near to family. Mr & Mrs X expressed in multiple reviews how important this was to them both.

In August 2017 a review concluded the respite allocation was to be removed as the current way it had been spent “does not provide [Mrs X] with full carer relief from her role”.

A year later, in August 2018, Mrs X contacted the Council to ask for the respite care to be reinstated as she felt stressed, depressed and unable to cope.

In September a social worker reassessed Mr X. The social worker recorded that Mrs X was very tearful during the assessment, and concluded “Mr X’s needs have not changed since the last assessment a year ago, but his wife who is his main carer said she is not coping in her caring role and wanted the previous support package of short breaks/holidays to be put back in place as she said this is the only thing that helps her maintain her role as a carer and since this was removed from the care package life has been ‘unbearable’. I advised that holidays and short breaks are not something Kirklees fund anymore and asked if she could pay for these herself…”.

On 9 November Mrs X was told ‘some’ respite had been agreed. This turned out to be 19 nights a year. It was recorded that “options for respite have been discussed extensively, but [Mr X] refused to go into traditional 24 hour respite care and will not leave his wife”. 

Mrs X noticed on top of the number of nights being unexplained, that the budget for respite was lower than it had previously been, and contacted the social worker. The Social worker replied stating “I advised that the respite amounts have changed and the £125 a night she used to get is now a flat rate across the service of £73.87.”

Mrs X complained that “the Council’s blanket policy on the cared for person having to leave their carer to take respite did not take into account their unique circumstances, wishes and feelings…”. She said she was unhappy about the reduction to 19 nights’ respite a year and said she might challenge the decision.

Another care and support plan was completed in March 2019 which allocated budget for 19 nights respite care “£67.81 per night, and a one-off payment of £620 for Mrs X”.

Mrs X complained;

  • She could not understand why the respite budget was cut when their needs as a couple had not changed.
  • The Council was aware Mr X would not accept outside help.
  • The previous allocation of 56 nights’ respite allowed them the opportunity to have a break in hotels, often near family, and now it was more difficult because Mr X needed accommodation with disabled facilities which could be more expensive.
  • She says the current budget did not therefore even stretch to 19 nights because of the costs.
  • The reduction in respite had had a detrimental impact on them both.

What was found

Firstly, the LGO highlighted that between assessments between 2012 and 2017 indicated no change in Mr X’s needs. Secondly, the report stated that from the investigation, it appeared that the purpose of the visit in August 2017 was to review and reduce the respite provision, not Mr X’s needs.

The LGO stated that the social worker showed “little regard Mr & Mrs X’s wishes and feelings”, which was important because care services should be needs led rather than service led.

The Council withdrew all respite provision for over a year because the social worker believed the respite arrangement did not meet Mrs X’s needs as a carer. This was fault as there was no evidence to support this. It was a bald position with no justification, effectively. On the contrary Mrs X made clear how much she and Mr X valued the short breaks away. This allowed them to book hotels near to family. Family members then provided support to Mr X, so it did meet the need for the carer to have a break.

The LGO concluded that the withdrawal of the respite care impacted “significantly” on Mrs X as she suffered from stress and depression. “The Care Act requires Local Authorities to promote the wellbeing of adults in need and carers, and to do this in a way that satisfies certain principles, one of which is the assumption that individuals are best placed to judge their well-being, and should be allowed some control over their day-to-day life, including the care and support they receive.” The Council acted contrary to this principle which was fault.

After Mrs X asked the Council to reinstate funding for respite in 2018, the social worker told her they no longer ‘allowed’ DPs to fund short breaks/holidays. This would suggest the Council was applying a blanket policy. This would have amounted to fault, except the Council then went on to allow 19 nights per year. Still, this was a significant reduction from the previous 56 that had been funded.

The Council is allowed to reduce the amount of respite care provided, but it must explain the reasons for this. The LGO considered that as Mr X’s needs had remained the same since 2012, and any assessment should take into account the personal and family circumstances of the service user and their carers, there was no evidence which warranted a reduction in respite allocation.

The Council also reduced the daily rate for respite from £125.64 per night to £67.81 per night. A social worker stated that the Council had a “flat rate across the service” of £73.87 per night. This is contrary to the Care Act, and therefore fault. Everyone must have a personal budget regardless of how their care and support is commissioned and it won’t be able to be a flat rate for every person.

The Care and Support statutory guidance says, (para 10.27) “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties… The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”.

The LGO recommended that the Council;

  • Apologise and pay £250 for time and trouble pursuing the complaint.
  • Pay Mr & Mrs X £1,000 to acknowledge the loss of respite services for 13 months
  • Review Mr X’s assessment and care and support plan, including the number of allocated respite nights, in consultation with Mr & Mrs X.
  • Consider if other service users may have been affected by arbitrary upper limits on respite rates, and take any necessary action to address this
  • Amend its procedure to ensure the Council does not set arbitrary limits on care provision.

Points for the public, service users, councils and advocates – and social workers who need to face up to their management in order to feel like professionals

This report focuses on one of the most basic aspects of the Care Act and the case law that has been decided, under the old law and under the new law, by 2020.

There are cuts – lawful cuts, and UNLAWFUL cuts, that must be resisted by all concerned.

A cut is not unlawful simply because there is no change in needs: a response to an ongoing need could be cut, and still meet the need, but in a cheaper way, or be adequate to meet the need because the previous level was over-generous.

This cut was neither of those things: it was simply a MASSIVE cut from 156 nights that had once been assessed as needed, down to zero, on the basis of a blanket position which was in error of law in any event: a direct payment cannot conceivably be regarded as an inappropriate way of providing for respite for a carer, in the shape of a short break – and then up to 19 nights. That would have been an unbelievably mean allowance for respite in view of the previous assessed need. And it was not even asserted that the previous allowance had been over-generous.

A person cannot cost the council more just be being unwilling to go into a care home. On the other hand a capacitated person cannot just be PUT in a care home regardless of their consent. In that situation, the council can choose to bend, or it can choose to take the risk that the carer will be more likely to give up on caring if the service user’s stance is allowed to determine that no respite is then obtained.

A flat rate allowance per night is only lawful if it reflects what the rate is in the local market – for ordinary or specialised environments, given the person’s needs. A council in providing a direct payment might well say this is what ‘ordinary’ respite costs, and that’s all we are going to give you, if you choose to spend it on a holiday for the two of you. But it can’t say we pay £x and you will have to make £x do, even though x is not the cost of the type of overnight care that you would need. That is fundamentally wrong, under the Care Act, and unless people know that, they may simply take an inadequate Care Act budget, and provide by acquiescence just the evidence base that the council needs, saying to themselves as follows: ‘As nobody’s challenged 19 nights of respite at this price, that level of offer must be about right!”

Flat rating of this or that is the sort of policy that councils announce and then just make exceptions to, for the people who challenge, hoping that most will not, and that is not really an appropriate stance for any public body discharging legal duties based on needs-led thinking, we would suggest. It’s not a policy that can underpin any individuated duty to a person: whereas if it was the policy in relation to a power rather than a duty, that would be different.

Resources, or the lack of them, these days, are relevant to HOW needs are met, not WHETHER, and respite is always the service user’s need, if the impact of not having any is severe enough. It’s not the carer’s need.

Councils may well say – ‘Yes we know it’s needs led, when it comes to planning and allocating budgets, but how much of anything is enough, really?’ and we would say to that: ‘Enough to reduce the impact that you are supposed to have evaluated, to something less than ‘significant’ in your untrammelled and unfettered professional opinion’.

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 Kirklees Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/19-008-980

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Calderdale Metropolitan Borough Council at fault for arbitrary top up policies, for instructing service users to enter into top up agreement contracts with care homes directly, for failing to identify a suitable care home and for failing to undertake a needs assessment

Decision date: 26/02/20

What happened

Ms Y is an elderly lady who was receiving care in the Elderly Mentally Infirm (EMI) section of a Council-funded care home (Care Home A, a residential care home). She went into hospital in 2019 where the NHS agreed to provide the Funded Nursing Care (FNC) element for a nursing home placement pending an assessment of her needs.

A social worker (Social Worker A) met with Ms X, Ms Y’s daughter, in March to discuss a move to a nursing home. Social Worker A advised that Ms Y would need a ‘dual registered care home’ in case her needs lessened, or her condition improved, despite the fact that Ms Y’s needs had not yet been assessed. Social Worker A claimed that at this point that she gave Ms X a copy of the Council’s booklet on residential charges. On the same day, Social Worker A made a referral to the Council’s care home support service, which said Care Home A had refused to take Ms Y back, perhaps because she now had FNC funding. The social worker expressed her opinion that Ms Y did not actually ‘need’ specialist EMI nursing but nothing came of that viewpoint.

Several care home options were provided to Ms Y, but she said that each was either too expensive or had refused to take her.

Social Worker A ultimately purported to undertake a ‘proportionate assessment’ of Ms Y’s needs which stated that 24 hour nursing care (not EMI nursing care) should be able to meet her needs as her EMI behaviours were not currently having too great an impact. There was no evidence that she set Ms Y a personal budget.

In the following days Social Worker A contacted Ms X who expressed concern that there were no suitable care homes that the family could afford to top up, for placing Ms Y in, under a council contract. Social Worker A told Ms X that the Council would not help with top up fees, despite failing to identify a suitable home within Ms Y’s personal budget. She instructed Ms X to arrange an admission assessment for Ms Y when the family eventually found a care home that they liked – whereas assessment must in fact be arranged by the council who is going to be buying the placement. This was Care Home B. There was no judgment made by the social worker that Care Home B was even suitable, however.

Ms Y began her placement at Care Home B on April 1st; it was a council placement with an NHS contribution of the FNC element, plus third party top up. However, neither she nor any of her family members had signed a contract for paying a top up, or any third party top up agreement with either the council or the home. The Council transferred her case to Social Worker B.

The NHS reassessed Ms Y as having no nursing needs in May and withdrew the FNC, leaving the family unable to afford the placement at Care Home B.

Ms X contacted Social Worker B the next day to express her desire to complain about the withdrawal of FNC to the Council and to the CCG. Ms X said that Social Worker B insisted she complain only to the CCG and initially refused to provide any email address where she could register a complaint, stating that her personal address was ‘not secure’. Four days later, Social Worker B contacted Ms X to say that the decision to withdraw FNC was final and to explain that the Council would find suitable accommodation if the family could no longer afford the fees.

Ms X complained to the Council and then to the LGSCO. The CCG decided to reinstate FNC 7 months later in December and to backdate the payments, (presumably as a result of a complaint.) The Council provided the Ombudsman with a top up agreement for Care Home B, in which a relative agreed to pay the top up directly to the home. It lacked several pieces of information that are fundamental in order to comply with the Care Act 2014 statutory guidance, namely:

  • The amount to be paid
  • The frequency of payments
  • The amount in Ms Y’s personal budget that was specified for the care together with the accommodation
  • Provisions for reviewing the arrangement

What was found

Ms Y was assessed by Social Worker A as needing 24 hour nursing care. However, a full and proper needs assessment was never completed and the ‘proportionate assessment’ failed to set out any nursing needs to underpin that conclusion. This suggests that she did not follow a proper decision-making process, and is fault.

Social Worker A also failed to ensure the suitability of Care Home B.

The Council could not provide evidence that it had considered the suitability of any of the care homes it had offered Ms Y or whether they could be paid for in full by her personal budget. Nor could it provide evidence that Care Home A had actually reassessed Ms Y or even formally refused to take her back. It never actually set a personal budget for Ms Y and therefore could not possibly consider it, when establishing a top up fee. Moreover, it failed to ensure that the family were fully informed about the fees or whether they would be able to meet them if FNC was withdrawn.

The Ombudsman noted that the Council’s booklet on residential charges was not in line with the guidance set out in the Care Act 2014. It says that the top up fee is relative to the Council’s ‘standard rate’ instead of the personal budget of the service user and tells people to contract directly with care homes regarding top up fees. This double fault may have led to injustice for many others.

Remedies

Calderdale Metropolitan Borough Council has agreed that it will, within one month:

  • Pay Ms X £300 for the distress it caused her
  • Refund the family the full amount that they paid in top up fees to Care Home B
  • Undertake a full and proper needs assessment for Ms Y and continue to pay all fees until this completed and it has found her a suitable care home within her budget
  • Ensure that the Council contracts directly with Care Home B in the future

And within 3 months it has agreed to train staff on the care planning process and amend its literature to ensure both are compliant with the Care Act 2014 statutory guidance

Points for the public, councils, attorneys, advocates, charging and finance teams and commissioners.

It’s been the law for the last 20 years, at least, that top up commitments cannot be put into a direct contract with a care home. We cannot understand how after 5 years of the Care Act, ANY council can still be referring to the standard rate, and still be making the relatives go out and choose from homes that are more expensive than the budget that is being imposed on the person.

All we can say is that this is the law:

When a person needs to go to a care home, they will be offered a personal budget relative to their needs. IF they need nursing care, the rate will be higher for the placement than if they just need residential care. The FNC element is not part of anyone’s personal budget. It is a direct NHS contribution to the overall cost of a placement in a care home with nursing onsite.

The personal budget cannot be arbitrary – and it cannot be arbitrarily low, in relation to the actual cost to the council of sourcing adequate numbers of adequately suitable placements for the anticipated throughput of local applicants for Care Act support. It should not automatically default to the cheapest rate secured for any old care home with a space in it, or to any other arbitrary figure.

The budget has to relate to the assessed needs and the market cost, locally, of meeting those needs, suitably and appropriately.

The Care Act gives people a right of Choice of Accommodation of this nature – and that means that a person can go out of area if they want to, and the budget set will have to take account of the likely costs in that area.

The right turns about suitability, availability, a willing provider, and the COST. If the COST is more than the personal budget, once that has been set lawfully, then the person has to source a top up to assert their choice of preferred accommodation, and this must be written up clearly and in accordance with relevant regulations.

There might be many care homes that are OPEN and with vacancies which are not able to be regarded suitable to the person’s particular needs; the care manager is the decision maker about excluding those from the selection process, even if they are ‘wanted’.

There may be others that are suitable and appropriate but where the price of admission is more expensive, than the person’s personal budget, on account of luxury within the environment being more than is needed, as such, but inseverable from the concept of what does have to be bought by the council (things like wallpaper, fittings, environment, meal quality etc). The home needs to be able to explain why their price is on account of wants and not just meeting the needs being commissioned for.

One can only access those levels of care hone if there is a means to pay the shortfall without using the person’s own money between the lower and higher thresholds – usually a relative or third party’s willingness to pay that extra bit.

There will also be homes that are wanted, and suitable and appropriate but which have no vacancy or are run by providers who simply don’t want to do business with the council, because of its other terms and conditions or commissioners’ policies. One cannot choose to go into a home where there is no vacancy, and no willing provider to the council, however much one likes it.

The council making the placement must contract to pay for the entire amount of the placement, and CAN, if both the care home and the person paying the top up are willing, agree that the home should be paid directly simply for convenience (not legal liability). So, the council pays the shortfall then, and the person pays their charges to the home, if it’s been agreed, and the top up source pays the top up to the home. But the council is and MUST be liable for the whole amount directly to the care home.

The family are not decision-makers as to suitability or whether they themselves constitute an acceptable source of a top up: at most they are best interests consultees, if the client awaiting a placement lacks capacity. The council is the decision-maker, as with all publicly funded care packages. But public law says that councils must take account of all relevant considerations, including emotional and psychological wellbeing of the person, and the suitability of any accommodation that they are currently in, or in which they are proposed for placement.

That is an unavoidable part of a Care Act process and not one that can be done by what is called, disingenuously, a ‘proportionate assessment’ when what is really being recorded amounts to little more than a litmus paper screening test for ‘which patients needs a nursing/residential care home?’

In any hospital discharge situation, even if CHC decision making has been deferred until someone stabilises, or suspended altogether because of Covid-19 and the need for even more rapid discharge and freeing up of beds, an NHS nursing needs assessment is a critically important part of a proper decision making process about the rights and obligations of the patient to ongoing NHS input of some or all of the fees.

Qualifying for FNC doesn’t mean that ONLY a nursing home could possibly meet the needs, but it is a relevant consideration.

If no accommodation is available within the personal budget the council must arrange care in a more expensive setting and adjust the budget to ensure that needs are met. In such circumstances, the council must not ask for the payment of a ‘top-up’ fee.

Statutory guidance says the Council must ensure at least one care option is available that is affordable within a person’s personal budget. It means one suitable adequate appropriate option, to be lawful, in fact. Not Falling Villas, where nobody would put their worst enemy.

If the number of care homes in an area charging top ups for care home admission for council clients with a particular profile of need/categorisation, is more than about 30%, the likelihood is that the amount being paid for care packages in framework agreements by the commissioners is insufficient to enable care homes to stay in business; and in that situation, both the homes and the councils concerned are using top ups as a collusive bridge to sort out the problem that the government doesn’t give councils enough money to discharge their Care Act duties, by getting the relatives of those living in the area to pay for a part of the package that is clearly on account of eligible assessed needs, and not conceivably for mere wants.

Challenge in that sort of a situation was clearly contemplated by the cunning draftspersons behind the Choice Regulations: there is a ready-made piece of face-saving regulation that specifically allows a council to negotiate a smaller top up than was first thought necessary, so that it need never be successfully judicially reviewed for arbitrarily low personal budgets or inadequate regard to the true cost of care in the local market, when framing new procurement exercises.

If one is the resident not able to exercise one’s choice, because of the massive size of the top up, for the particular home wanted, and one manages to get oneself represented on legal aid for the purposes of a judicial review challenge to the size of that top-up, and the arbitrarily low fee being paid for the care you have been assessed as needing, one can often find that the funding will be pulled from under one, by virtue of settlement outside the door of the court, with an increased offer of a personal budget, made under this regulation:

Regulation 5(6) of the 2014 of the Care and Support and After-care (Choice of Accommodation) Regulations:

(6) For the purposes of this regulation the additional cost that is to be met by the payer may be less than the full amount of the additional cost referred to in section 30(3) of the Act, if the local authority agrees that a lesser amount should be paid.

In this case, the recommended remedy for repayment of the full amount of the top-ups paid is a form of restitution required for breach of the Care Act, in terms of returning Ms Y and her family to the financial position they would have been in, had the law been followed properly. That is why councils cannot afford NOT to follow the Care Act, if they wish to retain the trust and confidence of providers and clients alike.

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 on the actions of Calderdale Metropolitan Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-009-079

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London Borough of Hammersmith and Fulham found at fault for delays in completing a sensory assessment and in implementing reablement support

Decision date: 25/02/20

What Happened

Ms C has impaired sight and was initially referred by her GP for a social care assessment in March 2018 due to Ms C feeling isolated and unsupported at home.

The Local Authority (LA) arranged an assessment with her before the end of the April. That turned out to be only a ‘screening’ assessment which identified that Ms C would ‘like’ her assessment to consider her need for support to access the community safely, community-based support that would promote her independent living skills and support her to develop friendships and a support network. Ms C identified that she wanted to continue to operate her business making hats and wigs from home but required some additional support to be able to do so. She also identified that she struggled with some aspects of cooking.

The main outcomes of the initial conversation for Ms C were that she would like a PA to assist her within the community, support with housework, support with shopping and cooking meals and support to enable her to manage her personal care independently.

The LA deemed that a referral to a specialist sight impairment team would be useful as a more thorough assessment was required.

Ms C waited from May until August for this assessment to take place.  According to the records, the Sensory Loss Team manager asked for extra information and cancelled the referral on 15 May 2018. The social worker sent more information the following day. However, there was no evidence the SLT manager considered this, or that the social worker assured herself the SLT had now accepted the case. In fact it was not opened at SLT level. In August a new process identified the same outcomes as before but nobody DID anything about implementing the suggested routes for support.

The assessor did not provide Ms C with any update on progress or the outcome of the assessment process.

In November 2018, the LA carried out a further assessment of Ms C’s needs. This was not recorded, however, so the LGSCO was unable to ascertain if this was properly carried out. From this assessment there was no referral for mobility support or for reablement services which would have benefited Ms C. The assessor had also agreed to investigate voluntary community support that might meet Ms C’s outcomes. There is no evidence that this took place. They only ordered her a light for use at home.

The assessor ultimately concluded that Ms C’s outcomes could be met with 8 hours’ support per month. Ms C disagreed with this. There was no evidence as to how the 8 hours was regarded as appropriate by the worker or any evidence of discussion as to some of her needs perhaps not being eligible. Ms C was not provided with advice as to how else her needs might be supported, if they were not, nor what she could do to source help for herself.

Ms C initiated the complaints process in August 2019 but made it clear to the LA that she wanted the proposed support whilst her complaint was progressed.

Following a councillor’s enquiry, a further assessment of her needs took place by a Senior Practitioner and member of the Sensory Impairment Team. This assessment also concluded that her needs could be met with 8 hours’ support per month. In addition to this the assessor deemed that Ms C would benefit from mobility practice with a senior sensory worker and some reablement input. But again, nothing actually happened to take any of it forwards.

In October 2019, a mobility assessment took place. Ms C again highlighted the difficulties she had with accessing the community due to her impaired vision. This resulted in 3 sessions of mobility training. She has still not yet received reablement input regarding her use of the kitchen.

The LA comments on the case to the LGO were that urgent needs, where risk was identified if nothing were to be done, would be met whilst an assessment process continued. The LA confirmed that there was one sensory impairment worker and the wait time varied between 2 weeks and 4 months. On average, this wait would be 6-8 weeks. The LA acknowledged that a clear pathway for people with sensory loss or impairment was required and since November 2018 has restructured its teams to allow for quicker referrals.

What was found

Applying the statutory guidance that the LA should carry out an assessment over an ‘appropriate and reasonable timeframe’ (Department of Health, Care and Support Statutory Guidance 6.29), the LGSCO found the LA at fault.

The LGSCO also made reference to the ADASS position statement in relation to this area which highlights the importance of the local Adult UK Eye Health and Sight Loss Pathway. It identified that all those involved with vision rehabilitation should ensure that the assessment process is carried out promptly due to the potential impact for the person in need of support. The ADASS document says this:

The RNIB recommends that assessments are carried out within 28 days, and that support begins within 12 weeks of a person’s initial contact with the local authority.”

The LGO investigator said this: “The Adult UK Eye Health and Sight Loss Pathway referred to above, says that:

A Specialist Visual Impairment assessment of social care need, should be followed by a Visual Impairment Rehabilitation Programme, followed by a Community Care Assessment.’ ”

The three months Ms C had to wait for a sensory assessment was determined to be an unacceptable delay and therefore the LA were found at fault.

The lack of evidence that the LA had explored community-based options that may support Ms C was found to indicate fault as well.

The LA failure to record the assessment that took place in November 2019 was also fault.

Ms C had experienced four assessments and a 20-month period until her mobility assessment and is yet to receive reablement support in respect of domestic and household tasks, cooking and personal care support.

The LGSCO found fault in the failure to communicate with Ms C about the delays in the assessment process, the outcomes of her assessments or share her subsequent assessment and support plan documents with her.

The LGSCO also found the council at fault for its lack of supervision and support systems in place which had allowed Ms C’s case to ‘drift’.

Remedies

Ms C experienced significant injustice because of the LA’s failings. The delays in her receiving mobility and reablement support led to a delay in the development of her independence. The delays in receiving support to access the community prolonged the period of isolation she has experienced along with the risks presenting both within her home and when accessing the community.

The report also conveys the tone and approach of a ‘Three Conversations’ based model where Conversation One is what is the problem really about and what can be done about it by the service user; Conversation Two is about whether there is any immediate risk, and Conversation Three is about whether the council really has to spend any money at all.

That sort of approach being found to be ‘fault’ is a very important lesson for councils, it is suggested. Of course assessment and care planning can be conversation based, and use of that model need not be maladministrative OR unlawful; but it must deliver on all the obligations in the Care Act, and be located within the steps envisaged by the Act itself, which would rather tend to raise the question whether it saves any time at all, to our minds.

The LA was required to provide Ms C with an apology and compensation for fault:

  • £500 for the distress she experienced.
  • £2,000 for the unreasonable delay in providing Ms C with a care package, between March 2018 and August 2019
  • £950 for the unreasonable delay in providing Ms C with mobility support and reablement support as already found to be needed.
  • The council must deliver the reablement support already found to be needed.
  • Review its decision only to allocate one hour a month for ensuring Ms C’s house is clean and free from trip/fall hazards, and subsequently explain to Ms C how it has calculated this.
  • The LA’s agreement to review its decision in regard to the allocation of support hours for Ms C’s direct payment to access the community and the allocation of hours required for keeping her home clean and for her personal care, was also required.

The LA was also required to issue a reminder to its staff about the importance of sharing the outcome of assessments and to ensure that people receive a copy of their assessment and/or support plan promptly, as per sections 12 and 25 of the Care Act.

Additionally, the LGSCO required the LA to carry out a review of its pathway for sensory impairment within 8 weeks and to ensure that people received support services within 12 weeks of assessment.

The LA accepted the recommendations and has confirmed that it is reviewing and finalising its pathway for people with visual impairment and the process to allocate and monitor cases within the Sight Loss Team.

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

This case highlights the reality of lived experience of LA systems and processes. The delays that Ms C experienced will no doubt have impacted significantly on her wellbeing and outcomes.

In public law legal terms, the LGO effectively followed the legal principles that have been established over many years, in finding

  1. that the delay was unreasonable and indefensible;
  2. that the assessment and/or the care plan were irrational in the sense of not appearing to be based on any defensible reasons or evidence and thus merely arbitrary
  3. that the council was in breach of statutory duty in failing to provide that which had been regarded as an essential means to meet the needs (kitchen reablement and until lately, the mobility training)
  4. that the council had acted in error of law in suggesting or expecting the client to use her own benefits to pay for the meeting of eligible assessed needs
  5. that the council had acted in breach of some of the paperwork-based duties in the Care Act regarding copies of decisions and the plan.

The GP referral was clear; Ms C felt isolated and lacking support and it took 20 months and four assessments to provide her with only some of the support likely to be required, objectively, to meet her eligible assessed needs.

The specialist nature of Sight Loss Teams was recognised by the LA, albeit through learning from Ms C’s situation. The delays for her could easily have resulted in significant harm to her given the lack of support made available to her.

The LA needed to be clear in its communication and provide Ms C with a copy of its assessment and draft care plan. This would have enabled her to understand how it had arrived at its recommendation of 8 hours’ support. The practitioner could have explained this to her and listened to her concerns that this support would not meet all her outcomes – she could have asked for a senor manager’s review under para 10.86 of the Guidance, or made a referral to the Monitoring Officer for consideration of contravention of the Care Act.

An outcome of the assessment was for the LA to explore how voluntary community organisations could support Ms C’s outcomes. The LGSCO found no evidence that this had happened. These sources of support ought to have been considered and identified through the early prevention and reduction stages of asset-based assessment. Considering this support as an outcome of the concluded assessment highlights a trend towards an over-reliance by LA on ‘non-funded’ support, or ‘cost avoidance’ regardless of whether free sources of support are any more suitable or likely to work, than they were when first offered at the initial screening stage. This can and will lead to likely breach of statutory duty findings, when eligible deficits are not actually met under the Care Act 2014.

An apparent feature of this case was the lack of management oversight. Whilst the LA will be responsible for many referrals at once, this referral was not managed in an effective way – and it emerged from poorly managed ‘Transformation’, too! The delays between referrals to teams and the repeated assessments indicate that the LA was ‘starting again’ each time it carried out a new piece of work. This will no doubt have been a negative experience for Ms C. The system of case management clearly failed in this situation but highlights a strong message for operational teams in respect of the oversight needed, especially when working with people with visual impairments, and the right of a person (in common sense terms, and in a spirit of alternative dispute resolution) under para 10.86 of the Guidance, to a proper look by a senior officer (we call this a management review) to see why any steps taken to date have not resulted in an agreed care plan. That kind of review is a means of actually saving any council from ‘egg on face’ and should be embraced. We can only hope the consultant interim senior manager, likely being well-paid for Transforming the council’s system, was on performance related pay and has had to disgorge any fee already paid, to retain their reputation!

The LA was not found to be at fault for its decision not to provide support to Ms C whilst the assessment process was carried out. That was because the LGSCO understood that that position was predicated upon there not being evidence of imminent risk, pending finalisation of the assessment.

Given that an assessment can now take months, we always advise councils that there is really no justification in public law terms for spinning out an assessment over many stages, and no justification whatsoever for not backdating a budget to the point where a person would have been found eligible, after a timely and well managed assessment, had it not been for delays that were the council’s own fault.

The amount of compensation recommended may have been expressed as compensation for unreasonable delay but to our minds it bears a strong resemblance to what 8-10 hours a month of care would have cost the council. That is equivalent to a restitutionary remedy and fits with this approach on backdating to the point of a finding of eligibility, to our minds.

Restitution has emerged only recently as a remedy in adult social care and can only, in our view, flow from situations where a council has already decided that someone needed something, but not delivered it; or where no reasonable council could have failed to conclude that a given level and type of service was in fact needed but avoided that decision. In the former situation, the money not paid could be pursued in private law proceedings after a letter before action; in the latter, public law proceedings are required and the claim must be added in to the paperwork and any letter before action.

The council had suggested that Ms C’s benefits should be used for much of what she wanted, in terms of cleaning or accessing the community, for instance. The LGSCO firmly pointed out the error of its ways, there. If a need is being assessed, a person’s means, including their benefits, are irrelevant. They are not part of assets or strengths-based assessment! The council would not even know of them on a first assessment, as the charging process would not have started. So eligibility is to be decided regardless of benefits; when it comes to care planning, a person may CHOOSE to spend their money on wants, but they do not have to offer to do so, and cannot be told to do so regarding their eligible unmet NEEDS.

That is basic Care Act law, and it is great that the LGSCO said so.

However, a council can incentivise a person to spend their own money by use of the discretion in the charging regulations to charge full cost for non-care services, (examples being meals on wheels, shopping or transport services or recreational activities) even if it takes a person below the Minimum Income Guarantee. That means a person can be made effectively no better off for getting their services arranged through the council than if they were buying privately. Most councils do not do this the legal way, but just suggest spending a person’s own benefits during prevention, reduction and assessment, and must be challenged in so doing.

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 into the actions of the London Borough of Hammersmith and Fulham can be accessed here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-019-465

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Knowsley Metropolitan Borough Council at fault for failing to appoint an advocate for a man who lacked mental capacity when his parents could not reach an agreement about his care – and for not being receptive to information about his best interests

Decision date: 28/01/20

What happened

Mr Y is on the autistic spectrum and lacks mental capacity. He lived with his mother, Mrs X – however, nobody holds a power of attorney for him.

He had previously lived with his father, Mr X, who provided his care and support before suffering a stroke which left him disabled.

Mrs X suggested respite care to facilitate some breaks in her care responsibilities. The Council assessed Mr Y’s needs and offered short visits and short overnight stays, supported by a familiar face from his day care service.

The Council claimed that some of these stays were successful. However, Mr X strongly disagreed and said that his son was experiencing anxiety as a result of the respite care. Mr Y told staff himself that he did not wish to attend. The Council said that as well as Mrs X being in favour of the respite care, it believed that it was in Mr Y’s best interests to start decreasing his dependence on family.

Mr Y left the respite care centre and walked to his father’s house 4 times in the second half of 2018. This journey included several busy roads and as Mr X believed Mr Y was at high risk of harm as he lacks mental capacity.

The Council referred Mr Y to an independent advocacy service and declared a safeguarding concern. The advocate said Mr Y was clear that he did not want to attend the respite care and Mr X refused to return his son to the home. The Council decided not to arrange any more respite care.

Mr X complained to the Ombudsman about Knowsley Council’s failure to properly provide support to his son. He also asked if it would reassess its decision to prevent him seeing his son alone without having a care worker there to manage risks.

What was found

The Ombudsman found Knowsley Council at fault for not referring Mr Y to an advocate sooner as he lacked capacity and his parents were of clearly conflicting opinions. Not fully understanding Mr Y’s wishes left him distressed and at risk of harm.

Mr X was clearly an individual who had an interest in Mr Y’s welfare and well-being. However, there was no evidence that the Council properly requested or considered information from him and this was fault.

The Council’s own complaints procedure had found no fault in its handling of the case.

These faults caused Mr X and Mr Y an avoidable injustice and risk.

Remedies

Knowsley Metropolitan Borough Council agreed to

  • Write to Mr X apologising for the distress it caused and confirming that it will include him in future decisions about Mr Y’s care
  • Pay Mr X £500 on behalf of Mr Y
  • Consider Mr X’s invitation to re-assess any risks arising from Mr X’s medical conditions preventing Mr Y spending time alone with Mr X.

Points for the public, families, advocates and councils

The LGO’s investigator had to grapple here with the way that the MCA framework should, by now, have become part and parcel of care planning – but has not – within some local authorities.

Care planning that involves anything comprising restraint or the imposition of a regime on someone that they do not seem to welcome raises MCA issues, which no council or provider can fail to grapple with, if they wish not to be sued for assault. Compliance with the MCA is the only way to acquire that cloak of legal protection that s5 of the MCA provides. It is not planning care that triggers MCA issues; it’s implementing a care plan, which a council does through a third party, that could constitute an assault, if it is NOT properly decided as being in a person’s best interests.

Secondly, advocacy is there to help people who will struggle with engaging with Care Act processes, to be heard. The Care Act says that it is a duty and must be provided in certain situations – and then provides for exceptions (where one has someone willing to do it informally and one consents to that happening). There is an exception to that express exception in the Act that one is not owed a DUTY if one has appropriate and willing informal relatives to support one’s participation for free, in the following situation: where there is a material disagreement between one’s natural supporters and the council in relation to a person with substantial difficulties in engaging:

4.—(1) The exception in section 67(5) of the Act does not apply in the circumstances specified in paragraphs (2) and (3).

(3) The circumstances specified in this paragraph are that—

(a) there is disagreement on a material issue between the local authority and the person referred to in section 67(5) of the Act in the case of the individual; and

(b) the local authority and that person agree that making arrangements under section 67(2) of the Act in relation to the individual would be in the best interests of that individual.

This is a difficult structure: an exception to an exception to a duty, where the exception to the exception only applies if two things coincide: the disagreement, and the agreement on the part of the disagreeing informal supporter that having an independent advocate would be in the best interests of the person! That seems to imply that if that agreement is not forthcoming, the exception to the exception does not apply, and thus the existence of the disagreeing relative as the supporter, with the consent of the person with substantial difficulties, would prevent entitlement to a funded advocate.

In that situation, we advise councils to check that the cognitively impaired person understands that they can choose not to consent to their relative acting for them, in that supporting role, or, if there is no possibility of obtaining that consent they can regard the person as entitled to an advocate in any event OR able to regard the disagreeing relative as not appropriate any longer, so that the person is entitled to an advocate in any event.

Here, where it was agreed that the person despite having strong wishes and feelings was someone who did lack capacity, the two best interests consultees were not agreed on the plan for respite, and the father was therefore in the situation in the regulations above.

There should have been an advocate appointed from the very beginning, not just once there was a safeguarding concern, under the Care Act.

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 on the actions of Knowsley Metropolitan Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-007-077

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Plymouth City Council at fault for its handling of care provision and severe delay in the complaint response

Decision date: 10th January 2020

What Happened

Ms B complained on behalf of her father, Mr B.

In December 2017 Mr B was discharged from hospital after suffering a stroke, and received three visits a day from the council’s reablement team.

Three weeks later, in January 2018, the Council assessed his needs. Mr B’s family did not agree with the proposed plan, stating that it did not provide sufficient support. They asked the council to consider a move for Mr B into extra care housing.

A panel considered Mr B’ application in January, but needed more information about his needs.

A different officer assessed Mr B in the middle of February. A care and support plan was drawn up, which included three visits a day. Before that care package was put in place Mr B was admitted to hospital for a few days and when he was discharged, his family requested a period in residential care.

The Council arranged a care place, but after a few days Mr B was asked to leave as he was smoking in his room.

The Council arranged for care at his home but the LGO stated ‘this [offer] was lost as the family were not able to accept it quickly enough.’

Mr B returned home on 10 March and care was not in place until 15 March.

At this time the panel considered Mr B’s application for extra care housing. It was approved and Mr B moved to an extra care place at the end of March.

Ms B complained in January 2018 that the lack of proper support planning meant that an agreement for him to move to extra care housing was delayed. Ms B ended up chasing the Council for a reply and then complained to the LGO. The Council responded to the complaint in January 2019.

The Council accepted a number of faults:

  • Delay in carrying out an assessment of Mr B’s needs. It took three weeks when the target was 48 hours;
  • Delay in completing the assessment and referring it to the extra care panel;
  • Failures in communication and responses by the first social worker;
  • Failure to share the care plan with the family and Mr B;
  • Problems with carrying out the assessment for continuing health care funding;
  • Failure to make a referral for an advocate;
  • Sharing the care plan with the care home before the family; and,
  • Delay in responding to the complaint.

The Council provides its adult social care responsibilities through Livewell South West (LWS) which said it had made changes and improvements to the Discharge to Assess Service, in that people discharged from hospital to their own home are now seen, within 2 hours of discharge (it is not clear from the report whether that meant in their own home, or within 2 hours of being fit for discharge, at the hospital).

LWS said it would pay £500 for the faults but that she “would need to take legal advice on any claim for financial redress as that would not be considered through the complaint process.”

What was found

The LGO ultimately decided that there was fault in the Council’s handling of care provision for Mr B, in its consideration of his suitability for extra care housing, the handling of the respite placement and in its complaint handling.

The LGO found no fault in the care and support Mr B received. There was a delay in the initial assessment; however he had still received support from the reablement team. The LGO stated it ‘could not say the care that was in place over that period fell significantly short of what Mr B required’, and therefore found no fault. The LGSCO did not actually recommend reimbursement of the daughter’s travel costs back and forth because of finding that there was nothing inadequate or inappropriate about the care that WAS provided by the reablement team.

The delay did however have consequences for Mr B’s extra care housing request. The LGO stated the panel rejected his request in January because it was uncertain Mr B’s needs met the requirements for extra care housing. Had there not been a delay in carrying out his initial assessment, all the necessary information should have been before the panel by the February meeting. Mr B would therefore have been able to move a month sooner to extra care housing which was a place more suited to his needs. This month long delay was fault.

The LGO also found fault in the Council delaying implementing care for Mr B when his placement ended. From March 10th-15th he received no support, which was fault.

The LGO also found fault in the council’s significant delay in its complaint response. The Council stated that it took a year to respond because it had a ‘significant backlog’. The LGO asked the Council to prove there is no longer a backlog.

Lastly, the LGO agreed with the faults the Council accepted in its complaint response.

The LGO recommended the Council pay Mr B £500 to reflect the month delay for extra care housing and the five days where he and his family lacked support. It recommended a further £750 to Ms B in recognition of its poor complaint handling – she had had to buy leave from her job to cope with the delay. So this was more than its delegate, LWS, had offered.

Points for the public, families, service users, councils, complaints officers etc

This is one of those reports where we would have liked to see the author calling out breach of the Care Act for what it is.

If one takes the list of issues, one can add to those complaints, the section number that the wrongdoing was a breach of. That means that the council had acted unlawfully, not just with fault.

The LGO isn’t a court, but there is no obvious point or public interest, in our view, in NOT making the public aware of the obligations of any council.

  • Delay in carrying out an assessment of Mr B’s needs. It took three weeks when the target was 48 hours;

There is no time scale in the actual Care Act or the regulations (the Guidance says timely assessments are necessary) for assessment (or finalisation of a care plan) but the law says that it has to be done within a reasonable time, given all relevant considerations.

If a council proactively sets itself a 48 hour target, it is an arguable breach of a legitimate expectation to then fail to meet it and it suggests that the council has insufficient staff for the discharge of its functions, and that is in breach of the mandatory duty in s6 of LASSA 1970.

  • Delay in completing the assessment and referring it to the extra care panel;
  • Failures in communication and responses by the first social worker;
  • Failure to share the care plan with the family and Mr B;

It is the law that the care plan must be provided to the client and to any family member who the client asks it to be given to. Section 25(9) says so!

(9) The local authority must give a copy of a care and support plan to—

(a) the adult for whom it has been prepared,

(b) any carer that the adult has, if the adult asks the authority to do so, and

(c) any other person to whom the adult asks the authority to give a copy.

  • Problems with carrying out the assessment for continuing health care funding;
  • Failure to make a referral for an advocate;

This is a legal duty, if the criteria are met, to appoint an advocate, where the person has no-one else willing and able to support participation informally.

  • Sharing the care plan with the care home before the family; and,
  • Delay in responding to the complaint.

The expectation in the rules, although it is not a mandatory requirement, is no longer than 6 months!

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 Plymouth City Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-008-907

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Wakefield City Council at fault poor care provided by contractor

Decision Date: 07th February 2020

What Happened

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

Mrs and Mrs Y lived in their own home. The Council commissioned a carer to visit each day to help with things like personal hygiene and taking medication. The services included help to

  • Get up in the morning, wash, dress and have breakfast;
  • Settle them into their chair downstairs;
  • Prepare lunch, use the toilet and settle again in their chairs;
  • Prepare supper, use the toilet, wash, undress and get into bed;
  • Take medication.

From May 2019 the Council commissioned a new provider as the old one gave notice. Soon after, the Council started receiving complaints from numerous people, including Mr and Mrs Y, about the care being received.

Mrs X complained that carers were late, left soiled sheets unchanged, failed to shower Mr and Mrs Y, and failed to help with other personal hygiene matters. One example Mrs X gave of late attendance was a carer showing up at 11am instead of 8am.

This was a list of the complaints:

  • Late arrivals to deliver care, and at least one care session missed;
  • The contractor had nobody available to take calls when Mrs X or Z tried to call them to find out what had happened with the carer;
  • Beds not changed when wet. The care plan says carers should check the beds because Mr and Mrs Y suffer incontinence and if wet, put the bedding in the washing machine;
  • The carers on occasion failed to shower Mr and Mrs Y, or shave Mr Y as set out in the care plan;
  • Failure to help Mr and Mrs Y use equipment;
  • Failure to dress Mr and Mrs Y suitably;
  • Failure to help with personal hygiene and put teeth in;
  • Putting eye drops in the wrong eye;
  • Failure to apply skin creams at the right time.

Throughout June 2019 there were numerous meetings between the social worker, Mrs X and the contractor, resulting in the contractor and its branch manager agreeing to take action to improve punctuality and standard of care.

However, in July, Mrs X told the social worker that despite there being some improvements, they were still unhappy with the contractor.

The family insisted on ending the Council’s service on 25 August 2019 and with help from the social worker hired a different contractor and paid for the care privately from choice.

The contractor’s documentation advised service users to contact the Ombudsman. Mrs X complained direct to the Ombudsman, although the service was a council commissioned service, not a privately arranged service. The Council has changed the complaints procedure to encourage families to complain first to the Council in such cases.

What was found

The LGO concluded that the care contractor failed to provide the standard of care Mr and Mrs Y and Mrs X could reasonably expect. It highlighted that nobody should be left in soiled clothes or bedding, as it is not going to preserve their dignity.

The LGO said that the contractor failed significantly to provide the care at the right times and to the right standard. As the Council’s contractor, the Council was responsible for the poor care. “We expect councils to carefully oversee the care delivered and to swiftly take up any concerns raised by clients.”

Despite the social worker taking action throughout June, the LGO stated that the Council ‘did not do enough to ensure significant improvement leading to a service equal to the service previously enjoyed by Mr and Mrs Y’. The new service should have met the same standard as the previous care.

The failings in care amounted to fault, and resulted in significant distress for Mr and Mrs Y, and Mrs X. The LGO recommended the Council apologise and pay Mrs X £750.

Points for the public, families, service providers, councils, etc.

This report makes it clear that quality issues are not always just the fault of the provider. If a council owing Care Act duties to a person or a couple as here chooses to contract that service to a provider, the council cannot get out of the obligation inherent in the duty to meet needs, to meet needs adequately and appropriately and to a reasonable standard.

There was an era some years ago when directors of adult services went on record saying that they didn’t need contract monitoring staff because CQC was there to regulate providers. How naïve that must have seemed, and how unaware of the local government legal framework for securing best value.

Under the Care Act, if a council contracts with a provider for hands-on care, then it is the customer and the provider owes a duty of CARE through that contract to the service user.

If the person spends their own money, or has a council funded direct payment instead of a care package of services the system is that they contract privately with a provider, and are responsible for sorting out their own issues with the standards. But in either case they can go to the Ombudsman about a complaint if it is not properly dealt with to a person’s satisfaction.

That is perhaps the reason that the new provider, unused to be commissioned by the council, had apparently contractual documentation in place advising its clients to go direct to the Ombudsman.

This report underlines that if the care is council commissioned, the council is primarily liable for sorting out complaints of inadequacy after one has raised them with the provider, informally; if the council doesn’t do a good job there, one can take it further to the Ombudsman later.

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 Wakefield City Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/19-004-546

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Dorset Council at fault for failing to consider ‘support for mortgage interest’ (SMI) issues properly in a financial assessment

Decision Date: 10th February 2020

What Happened

Mrs B complained on behalf of Ms C, as deputy for her property and financial affairs.

Ms C lived in a bungalow and had 24 hour care funded by the Council. The bungalow was a shared ownership property partly owned by a housing association. Ms C’s 50% share was covered by a mortgage company sponsored by the government.

Ms C paid rent to the housing association, and interest towards the mortgage.

Up until March 2018, the rent was paid through housing benefits and the Department for Work and Pensions (DWP) paid the interest. After which, the government stopped paying the interest, and introduced ‘support for mortgage interest’ (SMI) (effectively a loan from the DWP to help pay your mortgage).

Mrs B did not apply for an SMI at that time. She stated she was unable to apply for an SMI loan as Ms C’s deputy but would instead need approval from the Court of Protection. She was also reluctant to make any application that would increase Ms C’s debts.

Instead, she started to pay the interest with Ms C’s benefits. As a result, Ms C’s housing costs went up, and Mrs B expected that Ms C’s contribution for her social care charges would therefore go down.

However Ms C’s next financial assessment included the SMI she could have claimed as ‘notional income’, which meant her contribution stayed the same.

Notional income is income that a person doesn’t actually have. For example income a person has deliberately deprived themselves of, or income available on application.

Mrs B complained to the Council for not including Ms C’s interest payments as a housing cost.

The Council replied stating Ms C ‘was effectively failing to claim a benefit which she is entitled to and under the Care Act 2014, she can be treated as claiming an income, even when her representative chooses not to claim the benefit.’ It said Mrs B was ‘effectively asking the tax payer to meet the cost of the mortgage payments’, and asked for proof from the CoP that she could not enter into an SMI loan.

In contact with the LGO, the CoP stated:

  • Mrs B did not have the authority to take out the SMI loan in Ms C’s name under the current court order. She would have needed to make a new application to the CoP for permission.
  • Its legal team did not feel that the SMI loan should be construed as a benefit as a benefit was not repaid, whereas a loan would have to be. However it was for the DWP to give the definitive answer.

A legal adviser also agreed that SMI was probably not a benefit but a loan. He said that, unfortunately, the guidance and regulations were silent on the issue of SMI as they were written before the introduction of SMI and there had been no case law on the issue so far.

What was found

The LGO highlighted that the Council’s main reason for treating the failure to apply for an SMI as notional income, was because SMI was considered a benefit. The LGO concluded that an SMI was a loan, therefore it was a deferred liability, not a benefit.

The LGO stated that whether failing to apply for an SMI could be considered as notional income was a grey area, and that the Council failed to address this sufficiently in their financial assessment.

Furthermore, to determine notional income, you must be certain that the application would be a success. The LGO considered that there was no certainty in this case, because Ms C couldn’t apply for herself as she lacked capacity, and it was not certain what the CoP would decide, if Mrs B applied.

All in all there was fault in how the Council considered the SMI during its financial assessment.

The LGO said that ‘as the law and guidance are unclear and open to interpretation, it seems sensible that the Council should form a policy position on this, to aid consistent decision making’.

It recommended that the Council refund Ms C’s charges based on treating the interest payments as spending that could have been covered by SMI until the point it has formulated a policy on SMI and reassessed Ms C’s finances.

Points for the public, service users, deputies, attorneys, appointees, charging officers etc

Notional income is a grey area for charging purposes, especially when it comes to benefits. Most councils’ charging policies will treat a person as getting whatever the are entitled to, and deem people as likely to be successful, and the welfare benefits adviser will seek to maximise income – for the benefit of the council as much as anyone else, it must sometimes seem

We think that there is a public policy against allowing a council to treat people as effectively obliged to claim whatever might be available to them in benefits, because it is a question of personal decision-making and not unusual for people to be very against relying on the state. That is the beauty of social care being a service, not a benefit; people can sometimes feel better about accepting services, if they are reluctant to just take money.

It seems to us to have been a daft argument that not claiming was equivalent to asking the taxpayer to fund the person’s services; claiming the money to pay the interest would have amounted to just as much contribution from The Taxpayer as getting further subsidised for the cost of social care services. The point was that it would have sucked money from one public purse into another one – the council’s – and that the council did not want to be the worse off. But a person’s ordinary income benefits or GRANTS (the ones used here to pay the interest on the mortgage) are indeed their own money, and are able to be spent on housing costs, which do have to be allowed for, in the financial assessment.

This deputy took her responsibilities seriously and could not be made to conclude that it was in the person’s best interests to make an application for permission. The point that SMI is clearly a loan and not a benefit (it is secured by a charge on the property in favour of the DWP Secretary of State).

“Voluntary payments of a minimum of £100 (unless the outstanding balance is less) can be made at any time. Repayments will normally be made from the proceeds of any sale, transfer, assignment or disposition, or from the estate of the deceased person. Where there is not sufficient equity in a property, repayment will be limited to the amount available after any prior ranking charges against the property have been repaid.”

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 Dorset County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-005-009

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Gloucestershire County Council at fault for discontinuing support and for delaying reassessment

Decision date: 27/01/20

What happened

Mr X has learning disabilities and was previously provided with a 7 hour per week care package from Gloucestershire County Council that facilitated his independent living. The privatecare agency that supported him resigned in November 2017.

The Council then instructed its Reablement team to observe Mr X and to feed information into the pending reassessment of his care needs.

A worker spent 30 minutes on this observation for a total of 6 times over 3 weeks before the reassessment took place in the beginning of 2018.

Mr X’s mother said that the assessment was intimidating and unprofessional.

The assessment was completed in March 2018 and the council allocated 2.5 hours of support per week to Mr X (a 5 hour drop, per week). Furthermore, the 5 areas of needs in which he had been found to have eligible levels of deficit and impact on his previous assessment were cut to 2.

Mr X’s sister, Mrs D, complained about the reduction in support. She believed that her brother had been coping solely due to the support given by family members. The Care Act guidance requires that that input is ignored for the purposes of assessment.

The Council responded in October, agreeing to undertake another reassessment with a different social worker. These were not completed until January 2019.

Mrs D complained about the delay and general process, and requested the Council reimburse her for the costs of care that she had been providing her brother in the meantime. The Council apologised for the delay but failed to mention the reimbursement.

The new assessment was completed in April 2019, identified that Mr X had 1 extra eligible area of needs and proposed he receive 3.5 hours support per week. Despite the fact that Mrs D agreed with the needs assessment, she still believed the hours of support to be insufficient.

Mrs D complained to the Ombudsman after she had reached an impasse with the Council.

What was found

The Council undertook 2 assessments of Mr X’s needs, the second one at the behest of Mrs D. These assessments differed in the areas of eligible needs and in the proposed hours of support per week. As there is no evidence to suggest Mr X’s need had changed at all between assessments, the first one (and its resultant offer of 2.5 hours per week) must have been wrong. This was fault.

At the time of the previous care provider’s resignation, Mr X had been assessed as needing 7 hours of support per week. The Council had a duty to carry on providing this until a new care plan was confirmed after due process; it was fault not to. Any reduction in support should occur after reassessing needs and confirming a new plan. The Council should have provided Mr X with the correct hours of support at least until August 2018 when the new level of support was proposed. The fact that they didn’t left Mr X without support and left Mrs D as his informal carer for almost a year.

Then, when it offered 2.5 hours of support per week in August, the Council claimed that it did not start providing the care because the family refused it. The Ombudsman believed on balance that Mrs D had refused the offer. However, case records showed that it wasn’t actually offered to Mrs D until October 2018.

The Council was at fault for the lengthy amount of time it took to complete each assessment. The impact of the delays was compounded by the Council’s discontinuation of Mr X’s support service.

The Council claimed that it offered Mrs D a carer’s assessment in January 2018 but there is no evidence to support this. A carer’s assessment could have led to the offer of services and the lack of one is therefore fault that amounts to injustice.

Mrs D also complained about the unprofessional social work staff and poor communication. The Ombudsman could not find evidence of rude staff but decided on balance that some fault belonged to the Council for the communication in this case.

Remedies

Within 4 weeks, the Council has agreed to:

  • Apologise to Mr X and Mrs D and pay them each £1,000 in recognition of the time in which she was responsible for his care between November 2017 and October 2018 whilst he was left with an outdated support plan and no service at all [restitution for breach of the Care Act, effectively]
  • Pay them each a further £350 in recognition of the time between October 2018 and May 2019 that Mr X was left without a service and to acknowledge the delay in completing the support plan, the poor communication and the time Mrs D spent complaining (this was reduced in recognition of the fact that the council had made an offer in October 2018 which was refused by Mrs D).
  • Provide a written support plan for Mr X and arrange his care if he would still like to receive a service.

Points for the public, service users, advocates, complaint staff, and panels

This report is another example of the LGSCO applying the legal principle in the Court of Appeal case of CP v NE Lincs 2019 to recommend restitution for breach of the Care Act.

When a person has a care plan, its contents are that person’s rights, unless or until a new care plan is finalised. That has been the law since – oh, here’s a coincidence, the Gloucestershire case, in 1995!

The resignation of a care provider could well mean that a person needs a reassessment but the more important thing to do is to carry on honouring the care plan.

The LGO here was not purporting to decide that the man’s needs had not gone down; that would be beyond his jurisdiction. But since the re-assessment down to 2.5 and then 3.5 could not be regarded as free of fault, there was never a proper decision, and the LGO therefore legitimately looked back to the plan in force at the beginning of the saga.

It is somewhat frustrating that the LGO doesn’t explain anything about the council’s excuse for non-action between March and October 2018, especially in light of the council’s seminal contribution to the development of the case law on people’s rights within community care law.

  1. In its response to the Ombudsman the Council has acknowledged it could (my emphasis) have offered a replacement care service.
  2. But the Council should (again, my emphasis) have put in place a like for like service to support Mr X pending the reassessment. At that time, he was assessed as needing 7 hours of support and so the Council was duty bound to provide this.

There is one aspect of this report where we would have to part company with the LGO investigator’s approach: this is what was said:

In response to my enquiry about this the Council said a carer’s assessment was offered to Mrs D at the January 2018 assessment. There is no evidence of this within the case records I have seen. The care assessment states, “there are no people providing a high level of support”. Only if there were such persons would a carer’s assessment be offered (according to the prompt on the form).

From this, on balance I have concluded that the Council did not offer a carer’s assessment to any family member, including Mrs D. As the family, in particular Mrs D, were filling the gap left by the Council’s failure to provide a replacement care service for many months, it is highly likely that she was providing a high level of support that would trigger a carer’s assessment. I cannot say whether this would have then led to services being offered, but it may have. This is fault.”

We would have to disagree with the implication that a carer’s assessment needs to be triggered by a high degree of input. The duty to assess a carer no longer turns upon regular or substantial inputs – it is just as much a duty, without any room for a local threshold or a discretion – if it appears to the council that “a carer may have needs for support”. (A person who provides practical or emotional support can still count as a carer – that’s in the Care Act).

So it would not be lawful to hold back on carers’ assessments on the footing described above, but the LGO’s investigator does not seem to have spotted that additional aspect of legal framework unawareness.

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 on the actions of Gloucestershire County Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-005-899

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