Author Archive for Gabe Susman

R (on the app of SH through her litigation friend MH) v Norfolk County Council & Sec State for Health and Social Care [2020]

This was a challenge to Norfolk’s adult social care charging policy on the grounds that it discriminated against severely disabled people contrary to Article 14 ECHR (Human Rights Act).

The challenge was brought on behalf of SH, a 24-year-old woman with Down’s Syndrome, Severe Learning Difficulties and Physical Disabilities who lived with her mother (MH). SH was in receipt of both ESA (support group) and PIP (enhanced daily living and enhanced mobility) and had a package of care including day services, overnight respite and some community support, via a Direct Payment under the Care Act.

In order to establish that different treatment amounts to discrimination (a violation of article 14), it is necessary [R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51] to establish four elements:

(1) the circumstances must fall within the ambit of a separate Convention right (ie a right under another article of the Convention).

(2) the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”.

(3) the claimant and the person who has been treated differently must be in analogous situations.

(4) objective justification for the different treatment must be lacking.

The parties agreed that SH’s income from benefits was ‘property’ which fell within the protection against being deprived of possessions “except in the public interest and subject to the conditions provided for by law…” by Article 1 of the First Protocol to the European Convention on Human Rights (A1P1).

The council argued that “severely disabled” was not a sufficiently specific status to qualify for protection from discrimination under Article 14.

However, the judge concluded without difficulty (and by reference to several previous cases including Mathieson v Secretary of State for Work and Pensions [2015]) that the status could readily be defined quite precisely, in terms of eligibility for ESA support group and PIP enhanced daily living and was, therefore, an ‘other status’ within the meaning of Article 14.

The claimant argued that: “The difference in treatment relied upon by SH is that the Charging Policy has a disparate impact on severely disabled people like SH compared with its impact on others. The proportion of earnings that she and other severely disabled people with high care needs and significant barriers to work are required to pay under the Charging Policy is greater than the proportion of earnings that people who are disabled but not severely disabled are required to pay. Less disabled people will have lower levels of assessable benefit (they will not be paid daily living PIP at the enhanced rate) and (unlike SH and other severely disabled people, who are entitled to ESA at the support group rate because they are not capable of paid work) may have earnings from employment or self-employment which will be entirely disregarded from their assessments. The way the Charging Policy is constructed means that, because her needs as a severely disabled person are higher than the needs of a less severely disabled person, the assessable proportion of her income is higher than theirs. Her needs-based benefits are awarded at higher rates (daily living PIP and ESA) and are fully assessed, and their earnings from employment or self-employment are not available to her and other severely disabled people, but are not assessed.

The two persons, or two groups of people, in the case are, on the one hand, the severely disabled (with high needs which result in higher assessable benefits and no access to earnings from employment or self-employment) and, on the other hand, everyone else receiving Council services covered by the Charging Policy.” [paras. 66 & 67]

The council’s position that, because the policy is the same for everyone, there is no difference in treatment, was quickly dismissed by the judge on the grounds that it is well established that a difference in impact can result in indirect discrimination, despite the same rules being applied.

The council also argued that individuals subject to the charging policy earning income from employment were not in an analogous position to severely disabled individuals such as SH, but the judge disagreed.

The council also contended that SH’s higher level of needs would result in higher disability related expenses (DREs), which would be disregarded in assessment of her charges and that this disregard was thus equivalent to the disregard of earnings for those able to work. The judge identified that the definition of DREs under the Charging Policy was “not at all coterminous with the higher rate of PIP” and further, that DRE was “harder to prove and claim than the blanket disregard of outside earnings for those able to get them.”

He further identified that “much of SH’s higher need, and of those like her, is met by the Council services themselves, none of which is carved out as disability related expenditure: on the contrary, the Charging Policy requires her to pay for it with every penny of the assessable income she has.”

Consequently, he took the view that “Neither the evidence nor the Charging Policy suggests to me that the DRE regime reduces to any significant extent, let alone eliminates, what would otherwise be differential treatment.”

The judge concluded that the positions of: (a) a severely disabled person with higher assessable benefits and no access to earnings; and (b) everyone else receiving Council services covered by the Charging Policy, with lower or no such benefits and, potentially, income from earnings which would be automatically disregarded – were analogous for the purposes of the ‘different treatment’ comparison and that there was a difference in treatment between the two groups.

(4) The test of objective justification for different treatment is a high one. Firstly, whether the difference is “a proportionate means of achieving a legitimate aim” and, secondly, whether the justification for the adverse effect of the rules is “manifestly without reasonable foundation”.

Thus, it was not the Charging Policy itself which had to be justified, but, rather, the differential impact which it was having.

The council’s evidence included a stark account of the financial challenges of austerity for local authorities and demonstrated a conscientious process of consultation and phased introduction of a less favourable Charging Policy which included measures intended to mitigate the impact on affected individuals. The judge identified that these mitigation strategies were primarily focussed on supporting access to employment amongst affected individuals, a mitigation which was not available to SH.

He also identified that the council’s consultation and consideration process had not identified or discussed the differential impact between severely disabled individuals unable to access employment and others affected by the Charging Policy.

Crucially, the judge also identified that the council did not seem to have ever considered the alternative approach specifically suggested by the Care Act guidance of setting a maximum percentage of disposable income (over and above the minimum income guarantee) which may be taken into account in charges, highlighting that para 8.47 of the Care Act Guidance said the Council “should” consider this approach.

Overall, the judge concluded that the differential impact on these analogous groups “was overlooked and not considered or consciously justified at all. It appears to have been a consequence that was unintended and unforeseen. None of the additional mitigations had structurally addressed that discriminatory impact. There was an appeals process, but the Council was defending SH’s claim and there was no proposal to alter the differential impact on her or on others like her.” [para.88]

The justifications put forward by the council focussed largely on the council’s financial situation. The judge was sympathetic to the difficult position facing the council, but quoted Swift J in R (TP) v Secretary of State for Work and Pensions [2019] that “Saving public expenditure can be a legitimate aim but will not of itself provide justification for differential treatment unless there is, in the case in hand, a reasonable relationship of proportionality between the aim sought to be achieved, and the means chosen to pursue it (i.e. the measure under challenge)” [para. 90]

The clear words of the Care Act guidance warning against exactly the policy decision the council had taken were decisive, since they explicitly identified an alternative policy which the council could have pursued without causing the differential treatment:

“The Guidance warns against the approach adopted by the Council (of assuming that all of the legally assessable income was available to be taken in charges). It also suggests an alternative, which could be used to raise the same amount of revenue (applying a maximum percentage of disposable income to be taken into account in charges).”

The judge found that there was no relationship between the aims identified and the specific discriminatory impact in issue at all. The discrimination was not proportionate to those aims. It was not reasonably linked to them. [para. 91]

Overall, the judge concluded: “The objectives identified are not sufficiently important to justify discriminating against the most severely disabled as compared with the less severely disabled in order to advance it. The discriminatory impact is not rationally connected to the objective at all. A less intrusive measure was suggested by the Guidance but was not considered. Balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objectives, the discriminatory effect is irrational, unnecessary, and wholly out of proportion.” [para. 93]

Consequently, the differential impact of the Charging Policy on the severely disabled was found to be manifestly without reasonable foundation.

Comment

The specific aspects of the policy which were successfully challenged here were:

(1) Reducing the Minimum Income guaranteed under the council’s charging policy to the minimum statutory level;

(2) Taking the full amount of PIP enhanced daily living into account as income for assessing adult social care charges.

This is an extremely important judgement which is likely to have implications well beyond Norfolk.

The two factors successfully challenged upon are now commonplace in the Charging Policies of councils across England, as they have sought to claw in as much money as possible in charges to shore up their finances in the face of heavy cuts to funding from central government.

Local authorities should urgently review their Charging Policies to see whether one or both of these elements are present.

Where they are, it will be necessary to review the decision making process that led to their current policy and consider whether

(a) The differential impact of the current policy on (i) severely disabled people unable to move into employment and with higher level of benefit entitlements; and (ii) others affected by the charging policy – was explicitly considered in that process, and whether any justification advanced for pursuing their current policy was specifically both linked to, and proportionate to that different treatment;

(b) The specific alternative approach of applying a maximum percentage of disposable income to be taken into account in charges was fully considered.

In doing so, councils would be wise to take careful note of Care Act Guidance paras. 8.46 & 8.47:

“8.46 Local authorities should consult people with care and support needs when deciding how to exercise this discretion. In doing this, local authorities should consider how to protect a person’s income. The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person’s income above the minimum income guarantee (MIG) is available to be taken in charges.

8.47 Local authorities should therefore consider whether it is appropriate to set a maximum percentage of disposable income (over and above the guaranteed minimum income) which may be taken into account in charges.

Charging policies are notoriously difficult to challenge, the reference in the Guidance to ‘affordability’ being disingenuous, appeals processes being wholly a matter of preference in each council, and with most council’s officers obviously ill-equipped to bring public law expertise to bear upon individuals’ challenges to the financial assessment outcome.

The real value of this case to the advice sector is that it shows that discrimination law is a discrete factor that needs to be taken account of by advisers, when looking for grounds for public law challenges to charging policies.

Thank you and M for all your incredible support

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We have won our appeal against the CCG

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Free draft Letter Before Action for use by anyone being excluded from hospital or care home visits to anyone believed to be dying (ADAPT as appropriate)

[YOUR HOME ADDRESS]

[YOUR POSTCODE]

[HOSPITAL CEO’S NAME/CARE HOME MANAGER’S NAME]

[HOSPITAL TRUST’S/CARE HOME’S NAME]

[HOSPITAL’S/CARE HOME’S ADDRESS]

By email only to:

[CEO / CARE HOME MANAGER’S EMAIL ADDRESS] (IF A HOSPITAL, google ceo of trust email. It can usually be found at www.ceoemail.com)

[IF A HOSPITAL – PALS EMAIL ADDRESS] (google PALS email address of hospital trust)

[DATE]

Dear Sirs,

RE: Notification of potential Judicial Review Proceedings – Urgent action required

I am the [SPECIFY YOUR RELATIONSHIP/’FRIEND’ STATUS] of [PATIENT’S/CLIENT’S NAME], [PATIENT’S/CLIENT’S DOB], [PATIENT’S/CLIENT’S ADDRESS], [PATIENT’S NHS OR COUNCIL’S SOCIAL SERVICES NUMBER (if known)].

[PATIENT’S/CLIENT’S NAME] is currently accommodated in [WARD/ROOM X IN YOUR CARE HOME] and was admitted on [DATE] for [ILLNESS/ ISSUES].

We have been informed [PROGNOSIS OF END OF LIFE] on [DATE] by [WHOM].

I requested a visit to [PATIENT’S/CLIENT’S NAME] on [DATE]. This was refused by [STAFF NAME & ROLE] and the reason provided was the No Visitors policy due to Covid-19.

Whilst I understand that the [HOSPITAL/CARE HOME] is taking steps to curb the spread of Covid by implementing a ban on visitors, there are certain circumstances where exemptions to this policy must be made. The nationally applicable lockdown regulations allow people out of their homes and to form gatherings for the purpose of visiting people who are reasonably believed to be dying, and the implication or corollary must be that such people must be allowed to be visited.

(8) Exception 6 is that it is reasonably necessary for P to leave or be outside P’s home to visit a person (“D”) whom P reasonably believes is dying, and P is—

(a) a member of D’s household,

(b) a close family member of D, or

(c) a friend of D.

It is simply not within the power of the [NHS/the council or its delegate and chosen provider for the duty to meet a person’s needs appropriately and lawfully] to ignore the wider legal framework when engaged in the management of health and safety obligations to staff and [patients/clients].

There two sets of people’s legal rights and freedoms that a No Visiting Policy offends against here; the Human Rights Act requires conscientious balancing of other people’s interests, which has not been done in this case, as far as we are aware.

In addition to these exemptions, it is unlawful (in public law terms) to apply a blanket policy to any area of decision making that turns on judgment or discretion, or to fail to consider individual circumstances. Failure to do so is fettering discretion and grounds for judicial review proceedings.

Both the NHS and central Government guidance to care homes have made clear that ‘end of life’ patient visitors are exempted from no visiting policies.

Moreover, the failure to consider and allow a visit in our individual circumstances violates our Article 6 and Article 8 Convention Rights.

Actions you are expected to take immediately to prevent an urgent judicial review claim

· Urgently consider this request to allow me to visit [PATIENT’S/CLIENT’S NAME]. I am willing to undergo any rapid diagnostic test and wear full PPE. I do not have any symptoms of Covid-19.

· If the [HOSPITAL/CARE HOME] maintains the position not to allow visits, please provide reasons in writing and confirm the LEGAL basis for so doing, and in addition why it is considered to be the outcome of a conscientious balancing of the rights of the individual and the protection of health or the rights and freedoms of others.

· Due to the severity of [PATIENT’S/CLIENT’S NAME’s] prognosis and urgency of the situation, a response is requested immediately and no later than 1 hour from the timing of this email.

· If a response is not received within this timescale and to the terms above, I will consider issuing urgent judicial review proceedings and seek damages for human rights breaches should my [RELATIVE/FRIEND] die and the visit has remained prohibited.

· Costs will be sought as held in M v Croydon Borough of London [2012] EWCA Civ 595, [2012] 3 All ER 1237

I would be grateful if a decision maker contacts me immediately to discuss this further on [YOUR OWN TELEPHONE NUMBER] in order to arrange visitation and prevent the necessity of further action.

Yours faithfully

[YOUR OWN NAME]

Minimal fault findings for London Borough of Hackney in its response to safeguarding referrals, and a finding to develop its policy of communications management for complainants.

Decision date: 07/02/20

What happened

Ms C was an elderly woman who was provided care at home by an agency commissioned by the Council. Her daughter, Ms B, spoke to a nurse and raised concerns about the quality of care that the agency was providing. The nurse made a safeguarding referral to the Council, who agreed to provide Ms C with a different agency whilst the first one conducted an internal investigation. This resulted in the dismissal of staff members, improvements to service quality and the sending of an apology letter to Ms B, whereupon the Council closed the investigation.

Ms C was admitted to hospital (hospital 1) for a lengthy stay in mid 2017. The hospital made another safeguarding referral after observing Ms C displaying verbally abusive behaviour to her mother and to staff. The concerns were upheld.

Ms C was taken to a day appointment at a separate hospital (hospital 2) in September who made a further two safeguarding referrals regarding hospital 1. The referrers said that Ms B had found her mother unaccompanied at reception, wearing a hospital gown with no shoes or coat. She had bruising on her upper arms and had not received her morning dose of insulin.

The Council held a safeguarding meeting in January 2018 but had to cut it short due to Ms B’s behaviour (The report stated that Ms B was not allowing other people to speak and was not allowing the meeting to proceed in an orderly manner). Another safeguarding meeting was held shortly after in which Ms B told the Council that she felt hospital 1’s mistreatment was personal and as a result of the many concerns that she had raised with them. She had been banned from hospital 1 and so the Council considered exploring an alternative primary hospital for her.

Hospital 1 made a safeguarding referral (its second, but the fourth overall) due to Ms B’s continued abusive behaviour. 

The Adult Community Rehabilitation Team made a safeguarding referral in January 2018 regarding Ms B’s obstruction of health and care services being provided to Ms C.

The district nursing team made a safeguarding referral regarding Ms B in February. Ms C had suffered a burn which needed daily treatment. The district nursing team was concerned about the safety of the nurses attending the property while Ms B was present following an incident between Ms B and one of the nurses. The team asked Ms B not to be at the property when the nurses provided care but Ms B refused. This meant the nursing team was unable to provide care for several days.

Ms C sadly died in March 2018. The Council decided not to pursue its investigations into the remaining open safeguarding referrals against Ms B, for reasons not explained in the report. 

In a meeting between Ms B and the Council in April, she attributed her mother’s death to the Council’s improper response to the numerous safeguarding referrals. The Council explored each referral with her and directed her to the Ombudsman if she was unhappy with its actions. Another meeting was held in May which resulted in the Council agreeing to refer the case to the Safeguarding Adults Board (SAB). The SAB wrote to Ms B in July to say that it had unanimously agreed that the criteria for a review had not been met and that there was no evidence to suggest that Ms C’s death was due to abuse or neglect.

Ms B continued to raise complaints with the Council. The adult social care team restricted her contact with the Council to a single point: a senior manager that she could only email.

Between the 10th and 23rd of July Ms B made at least 60 calls to various departments of the Council and said that she would not stop calling until she was able to speak with someone. The Council wrote to her on the 25th of July to say that due to her aggressive behaviour and inability to stick to the communication plan it had given her, it was terminating all contact with her. Again it directed her to the Ombudsman.

Ms B visited the Council offices the next day and was allegedly abusive to staff before the police were called. The customer service team informed her that she would be banned from attending the Service Centre without a pre-booked appointment for 12 months. The Council’s legal team wrote to her in September to issue a warning letter that she was not to contact Council staff or the SAB in relation to this matter. It threatened legal action and an injunction if she failed to adhere to this but said if she had social care needs she could contact the Council where she was ordinarily resident. 

What was found

The Ombudsman found fault in London Borough of Hackney Council for a month’s delay in actioning the enquiry it started about hospital 1 following the two safeguarding referrals sent by hospital 2; the guidelines give 5 days.

The LGSCO found the council at fault for failing to be clear as to how it determined Ms B’s ordinary residence. She had indicated that she had care and support needs, therefore the council ought to have informed her as to how it reached this decision, which was fault. 

The Ombudsman found no fault in the Council’s restriction of communications with Ms B. A lot of her complaints were unclear, aggressive and were centred around previous complaints that had been upheld. Furthermore, the Council’s Adult Social Care Team followed proper procedure and offered her a route of communication that did not affect other service users. 

The Council was also at fault for failing to give end dates on all but one of the restrictions it imposed on Ms B.

Remedies

Within one month, the Council would:

  • Review the restrictions placed on Ms B’s contact with it;
  • Send a letter to Ms B to apologise for the injustice it caused her, to inform her of the outcome of the review and to explain how it considered the Care Act Guidance when making the decision to restrict her contact;
  • Ensure that any further restrictions have a timescale and a review date set and;
  • Review the decision as to ordinary residence and inform Ms B how it considered the care Act guidance regarding ordinary residence when making its decision.  

Points for the public, charging officers, financial affairs officers, service users, family members and advocates

This complaint involved seven safeguarding referrals, 3 of which pertained to the actions of the complainant and were not considered by the LGSCO. It highlights the way in which councils need to act promptly in response to safeguarding referrals – taking a month when the guidelines state 5 days is clearly going to be too long especially where a vulnerable person is at risk of harm. 

The complainant’s mother was the person at the heart of these referrals. The council was not found at fault for the actions it took in relation to the safeguarding referrals and it was identified that although Ms C passed away, the situation did not meet the criteria for a review by the Safeguarding Adults Board. 

The complainant disagreed with these actions and through her attempts to raise concerns the council found it necessary to restrict her contact with its officers. The council in this complaint did not have a policy that supported it sufficiently to manage the contact received by the complainant, which led to the LGSCO recommendation that it ensure that it gives a timescale for review of any future restrictions for complainants. 

The LGSCO provides support to councils in understanding the need for such policies and the link to this guidance can be found here:

https://www.lgo.org.uk/information-centre/reports/guidance-notes/guidance-on-managing-unreasonable-complainant-behaviour

The final issue with this complaint relates to ordinary residence. Ms B was told by the council to seek support from the local authority area in which she is resident. ‘Ordinary residence’ is not explicitly defined in the Care Act 2014, therefore the phrase should take its normal meaning. it is a relevant term when someone is living in one area and seeking the support of a local authority in another area, or when someone moves between areas and informs the decision as to whether a council has to meet eligible needs of a person. 

The Care and Support statutory guidance (paragraph 19.15) says this:

Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

Whilst the LGSCO report contains little information about the decision itself, the council still should have told Ms B the basis for its decision-making and made clear to her any right to challenge the decision. 

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 London Borough of Hackney Council can be found here:


https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/19-002-845

Hertfordshire County Council at fault for its policy which states it does not meet identified needs for support to maintain a habitable environment

Decision Date: 07/09/20

What Happened

Mrs X was a lady who lived in her own home with her husband. He was not able to provide any care for her. She had various medical conditions including chronic fatigue syndrome and was cared for in bed. Mrs X also had a psychological disorder that presented in physical symptoms suggesting physical illness or injury. 

In April 2015, the Council carried out an assessment of her needs. It found that she was unable to achieve all the outcomes identified within the Department of Health Care and Support statutory guidance. The council then provided her with a package of care which totalled £1077.12. This included two hours per day for assistance with toileting, personal care and making a lunch and drink and 10-hour night sits to enable Mr X to get a night’s sleep. The package also included an amount from the Independent Living Fund which was covered by the Council when that fund ended. This provided 45 hours for a carer to sleep over five nights per week and 40 hours per week to employ personal assistants. 

A review of Mrs X’s needs was undertaken in February 2018. It identified that the budget was meeting some of her needs but that the following were unmet:

  • Staying safe and being protected from abuse and neglect.
  • Achieving social and economic wellbeing.
  • Maintaining domestic, family and personal relationships.
  • Accessing suitable living accommodation.
  • Contributing to society.
  • Keeping up relationships and participating in the community.
  • Complex health needs.

A further review took place in September 2018, on the basis that the council viewed Mrs X’s care package as ‘disproportionate to need’. The council consulted with health professionals including Mrs X’s GP, a respiratory nurse and a diabetic specialist nurse. It also consulted with a care co-ordinator from the agency it commissioned to deliver some of her care. The council also sought information as to her mental health needs and the local Mental Health Service confirmed that she was not receiving services from it. 

The council referred to this review as a ‘care needs review/re-assessment’ on the basis of ‘a change in needs and circumstances.’

The council examined her existing care plan and identified in its re-assessment that her care needs could be rationalised and offered advice such as using a food processor to chop vegetables to free up carer time. It suggested that she managed a particular night time sweating need by the use of ice in flasks and ice packs. The respiratory nurse identified that Mrs x could administer her own oxygen supply, and it was on this basis that the council determined that Mrs X did not need night time care. 

This resulted in a reduction to her personal budget after the council completed a risk assessment pertaining to the potential impact of a reduction in budget. The council wrote to Mrs X and told her that her direct payment would be £222.80 per week from November. 

On 24th October 2018, the council visited Mrs X and observed a carer massaging her legs. Mrs X informed the council that she wanted to appeal the decision to cut her personal budget and the council responded to her comments as follows:

  • the NHS Wellbeing Service and Mental Health Team could provide support for stress. She could also consider using a telephone helpline for older people;
  • she should provide up-to-date medical evidence to support the need for carer intervention to prevent skin breakdown;
  • restocking ice and ice packs four times a day would address overheating which could also cause flare ups of urticarial vasculitis (skin lesions caused by inflamed blood vessels);
  • an agency could help with calls if she had difficulties recruiting personal assistants;
  • if she was having problems finding a holistic practitioner she could take this up with her GP;
  • the Respiratory Nurse had recommended an accessible form of oxygen for self-administration;
  • sudden rises in blood pressure were a health need, rather than a social care need which a carer could help with;
  • a medical report from 2008 did not confirm a current need for help managing continence;
  • proportionate” meant using other available resources (e.g. pendant alarm, the Wellbeing Service and the telephone helpline for older people) before providing formal care;
  • it would need evidence of the support carers could provide to address urticarial vasculitis;
  • it had not recommended blended food but using a food processor as less time consuming than grating vegetables by hand;
  • overnight needs could be met by; using a pendant alarm; self-administered oxygen; leaving ice in flasks overnight; a continence review and aids; a medical review to evidence overnight needs; occupational therapy assessment; and a referral to environmental controls;
  • it was offering a direct payment of £80 a week (equivalent to the cost of two days at a day centre) to address the need for social interaction;
  • it had allowed time to clean the areas used for her (i.e. kitchen and bathroom). The Council had not funded practical tasks for some time, so Mr & Mrs X had to fund this out of their joint income;
  • it could not increase her personal budget because of concerns that her carer would not continue to visit if her morning call was only 45 minutes;
  • the Council was not providing funding for carers to massage her, but she could use some the budget for social support to pay for a massage.

It is clear that council had certainly ‘examined’ its responsibilities to meet Mrs X’s care and support needs. It met with her GP to better understand which of her needs were as a cause of a medical need and which were social needs which in our view reflects an intention to pass funding responsibility to health services where possible. 

The council contacted Mrs X again in January 2019 and confirmed that it had not changed its position on her care plan. It recommended a key safe and pendant alarm for her and offered to refer her to an agency that could assist her with managing her direct payments. The council based its recommended care plan on four calls per day to meet her continence and personal care needs plus the equivalent of two days per week at a day centre to meet her social needs. 

Through its contact with medical professionals, the council established that there were several factors Mrs X had identified as affecting her care needs that it could not substantiate. This related to whether she had formal diagnoses of various health conditions, and whether professional recommendations to apply creams and ice to pressure areas had been made. There were a number of aspects of her needs that could not be met through input from a carer such as assistance with esophageal bleeds and spasms across the lower chest. 

The council upheld its decision to reduce her budget to £222.80 per week which was confirmed in a letter to Mrs X dated 6th February 2019. From 12th February 2019, Mrs X received a new package of care consisting of the following:

  • arranged a care agency to provide a 45-minute call each morning to help with: a full body wash, dry and cream; change the bed, if necessary; empty and clean the commode; leave ice and ice packs; leave breakfast;
  • provided £80 a week to meet social needs;
  • provided a direct payment of £142.80 a week to employ PAs for three thirty-minute calls a day to help with toileting, nutrition and personal care.

A further review of her care was undertaken in May 2019. The care agency requested an additional 15 minutes support as their support often overran. Carers had been distracted from their tasks as Mrs X had wanted to talk to them. The care agency also reported that Mrs X was losing calf muscle due to the reduced call times as carers had too little time to apply her cream. 

Mrs X confirmed that she had to talk with the carers as a result of spending so much time alone. The council did not increase the care package and confirmed in June 2019 that it was satisfied that the care package remained sufficient to meet her needs. 

Mrs X chose to use her savings to buy additional care but told the LGSCO that her savings are running out. 

What was found

The LGSCO identified that the council did not comply with the requirements of the care Act 2014 and the Care and Support (Eligibility Criteria) Regulations 2014 when carrying out Mrs X’s assessment in September 2018. It had identified a need for a reassessment because her needs had changed.What it did was carry out a review of her care plan which led to the subsequent changes. This was found as fault because it left doubt as to what her eligible needs were and ultimately doubt over what needs the council was responsible for meeting. 

The council was also found at fault for failing to produce a care and support plan which complied with the Care and Support Statutory Guidance.  The LGSCO also found the council at fault for failing to tell Mrs X the amount of her personal budget. 

The LGSCO importantly flagged a need that was not reflected in the assessment. It made the assumption that ‘it seems likely Mrs X has an eligible need for help maintaining a habitable home as she is cared for in bed and cannot therefore clean the rooms used by or for her, or wash her clothes’. It established that the practice of this council was not to meet such needs and to inform people that they must fund this themselves. It highlighted that the council cannot fulfil its duty to meet eligible needs by telling someone to meet their own needs and this was found to be fault. 

Although the LGSCO found several faults with the actions of the council, this did not mean that Mrs X’s previous, much higher budget should be reinstated. It identified that although the council had undertaken a flawed assessment, there was some evidenced  justification that a reduction in personal budget would be appropriate. The LGSCO did however find the uncertainty of the assessment, failure to meet the need for help with housework and time and trouble of pursuing the complaint to have caused injustice to Mrs X. 

Remedies

The LGSCO made the following recommendations:

Within four weeks the council would:

  • write to Mrs X apologising for the uncertainty caused by its flawed assessment and failure to fully meet her need for help maintaining a habitable home;
  • pay her £650 for the failure to fully meet her need for help maintaining a habitable home;
  • pay her £250 for the time and trouble it has put her to in pursuing her complaint;
  • at a date to be agreed with Mrs X, complete a Care Act compliant assessment of her needs, including a decision on her eligibility, and produces a care and support plan which complies with the requirements of the Care and Support Statutory Guidance;

Within eight weeks provide evidence that it has:

  • taken action to ensure all future assessments comply with the requirements of the Care Act;
  • taken action to ensure in future everyone with eligible care needs receives a care and support plan which complies with the requirements of the Care and Support Statutory Guidance;
  • taken action to ensure in future the Council fulfils its duty to meet the need for help maintaining a habitable home;
  • produced a plan for identifying anyone else with an existing eligible need for help maintaining a habitable home which is not being met and correcting this.

The council was also required to consider the LGSCO report at its full council, cabinet or other delegated committee of elected members and provide the LGSCO with evidence that it had done so pursuant to s.31(2) Local Government Act 1974. 

Points for the public, charging officers, financial affairs officers, service users, family members and advocates

At the crux of this complaint sits a council clearly not understanding its responsibilities under the Care Act 2014. There are three issues that arise:

  1. The council had assessed Mrs X’s needs and has an obligation to ensure that it is clear as to how it finds her eligible for social care to fund her care and support. The council undertook a ‘care needs review/re-assessment’ in september 2018, but this was in fact a review of her care plan. It considered how her needs were being met rather than what her needs were and embarked on a piece of work involving other professionals in what seemed to be an attempt to justify any continuation of spending on her care needs. 

An assessment is not for a specific service, it’s purpose is to determine the person’s needs. The Care Act 2014 states the following:

s.27(4)

Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan or a support plan, the authority must—

  1. to the extent it thinks appropriate, carry out a needs or carer’s assessment, carry out a financial assessment and make a determination under section 13(1), and
  2. revise the care and support plan or support plan accordingly.

If the council believed as it recorded in this instance that Mrs X had had a ‘change in circumstances’, then surely that would be her personal circumstances changing rather than that of the council! The council also cited that the provision of care at the time of review was ‘disproportionate to need’ so we suspect that the motivation to review her package of support less just over 6 months after a previous review had the motivation of reducing her budget. There is no harm in councils reducing budgets or changing the way in which they meet needs, however this must be legally compliant. This council’s focus on Mrs X’s ‘independence’ resonates with the case of Luke Davey (R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308) which confirmed that the duty of the council is not to achieve all the outcomes a person wishes to achieve, but to assess whether the provision of care and support would contribute to those outcomes. Mrs X had a different view to the council as to her needs, and whilst the council tried to find evidence for those needs amongst professionals, it failed to make clear through proper care and support planning and the provision of an eligibility decision which needs it was going to meet. The LGSCO quite rightly found this as fault. 

2. The second and most concerning aspect of this complaint is a finding of the LGSCO that the council had adopted a policy that it ‘did not meet’ the need for support to maintain a habitable environment. It is significant that this was missing from Mrs X’s assessment, as if the assessor had not even been aware that such needs exist and can be met by councils.  The Department of Health Statutory Guidance is clear at paragraph 6.10 that the assessment has to consider all the needs – i.e. the ‘total extent of the needs before the local authority makes its decision on eligibility.  This means the met and the unmet and includes medication and equipment if it solves the issue. Needs are considered in this way in case a person is meeting their needs, but whatever that source of support is then becomes unavailable to them, which could occur for example when a family member is no longer able to help with cleaning or shopping tasks.  

Mrs X’s need for assistance with maintaining a habitable home environment wasn’t considered a need. The council failed at this point. Whilst a council forms its own view about whether the needs are met sufficiently, the council cannot indicate that one type of need takes a higher precedent than others as they do not. The Care and Support statutory guidance outlines this early on and at paragraph 1.6 states: ‘There is no hierarchy, and all should be considered of equal importance when considering ‘wellbeing’ in the round’. So councils simply cannot make arbitrary decisions that they will not or do not provide a particular type or frequency of support as this cannot possibly be person-centred practice. 

3. The third aspect of this complaint that warrants attention is the responsibility of the council to be clear about its determination of eligibility. The Care Act 2014 states in s.13(2) ‘that having made a determination of eligibility the person must be given a written record of it’. This would have enabled clarity for both the council and Mrs X as to what needs the council intended to meet (or not). The LGSCO found this as fault. During review and the gathering of additional information, the council ascertained that Mrs X did not have the needs it first assessed her as having, and should have told her so. Instead she seemingly received no clear information on how her eligible needs had changed. The review undertaken should have triggered a re-assessment which would have resulted in another eligibility decision and in clarity much sooner. 

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 Hertfordshire County Council’s actions can be found here:

REPORT 19000200 Hertfordshire County Council (192KB)       

Royal Borough of Windsor and Maidenhead at fault for failing to properly consider the risks when separating a married couple of 59 years, failing to provide adequate care and failing to provide appropriate complaint responses

Decision Date: 25/08/2020

What Happened

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

Mr and Mrs Y had been married for 59 years. In recent years their health had deteriorated, which led to Mrs Y receiving a care package from Bespoke, assessed by Optalis in January 2017 (from the report is seems as though this was Council commissioned, but did not explain any details, and specifically states they were assessed by Optails, rather than the Council).  

Mr Y was not assessed until August 2017, which identified that he provided some care for Mrs Y, and identified a need for ‘social inclusion’.

Mr X and his sister Ms Z, had previously provided some level of care, and continued to check in on them periodically. 

In January 2018 Mr and Mrs Y were both admitted to hospital. 

Mrs Y

Mrs Y was admitted into hospital with severe dehydration. Ms Z raised concerns with the Council about the level of care being provided by Bespoke. She said Mrs Y’s mood had deteriorated and she was refusing to drink. Ms Z did not believe care workers were prompting Mrs Y with fluids, did not stay the full time and may have fed her food which was too hot (she thought Mrs Y had a burn on her tongue).

The Council completed a safeguarding enquiry which concluded: 

  • calls were between 5 and 40 minutes. On one occasion Mr and Mrs Y missed out on a total of one and a half hours of care in one day, which the Council noted was significant
  • care logs did not record care workers prompting Mrs Y with fluids
  • care workers had not identified Mrs Y’s burnt tongue. 

As a result, Bespoke implemented a food and fluid chart to monitor intake, and agreed to complete full care time. The issue of the burnt tongue was not solved. 

The Council noted, presumably through the safeguarding enquiry assessments, that the current amount of 4 care calls a day, were not sufficient to provide care to Mrs Y, and that she needed 24 hour care. 

Mrs Y’s family highlighted to the Council that they were very interested in a live-in care worker, because a long-term care placement could have a huge negative impact on Mr and Mrs Y’s mental health, as they had been married so long. To this, the Council stated it may not be able to meet the cost of a live-in carer, and ‘discussed the possibility of combining Mr and Mrs Y’s budgets’ (the report did not go into specifics of what their budgets provided for). There were notes to show that there was a proposal to use a direct payment for both Mr and Mrs Y and fund a live-in care worker and that the family mentioned the possibility of topping up the Council funding if it was not enough.

On 12 March, a social worker emailed the operations manager giving an outline of Mr and Mrs Y’s case. She stated that “[Mrs Y] and her husband have been married for over 50 years and the importance of remaining together appears important to both [Mr and Mrs Y]. [Mrs Y] will noticeably react to her husband’s visits to her in hospital placing his face in both her hands. [Mr Y] has also noticeably declined since [Mrs Y] has not been at home, becoming withdrawn and less able to manage his personal care and nutritional needs”. 

The social worker said she had completed a care needs assessment, mental capacity assessment, and a best interests decision but said “these have not been recorded yet”. The LGO found no evidence that any of these were completed. 

The social worker said it was hoping to be able to arrange DPs for both Mr and Mrs Y, but that it would take a while to arrange, so in the meantime she asked the manager to agree to a nursing home placement for Mrs Y. 

The manager agreed, so Mrs Y was admitted to the care home. There was no evidence of a complete needs assessment. 

Late in the month, the social worker phoned Ms Z to advise that Mrs Y had settled into the care home and was eating and drinking well. They discussed a possible return home, but Ms Z was undecided, she could see that Mrs Y was benefitting from the care, but was unsure how Mr Y would cope. They agreed to wait until the family had discussed options to make a best interests decision about Mrs Y’s long term care. That same day, the Council recorded Mrs Y’s placement as permanent.

Mr Y

Three days after Mrs Y was admitted to hospital in January 2018, Mr Y was also taken to hospital, suffering from dehydration. 

When he was due to be discharged, Mr X complained to Optalis that home would not be a suitable place for Mr Y. It transpired through the LGO’s investigation that Mr Y was not assessed when discharged from hospital. 

Mr Y was discharged to his home with a care package from Bespoke, but later readmitted to hospital, and again discharged. 

In March, Mrs Y’s social worker requested a review of Mr Y’s care package, because she was aware that separating Mr and Mrs Y could have a detrimental impact on their mental and physical health. 

The review was conducted by a student social worker, who noted that there were no changes needed to his support plan, despite Ms Z highlighting that Mr Y was ‘very low’ and had not been eating or drinking since Mrs Y had been in hospital. 

In mid-March, Mrs Y moved into a care home while Mr Y remained at home. At the end of March, Mr Y was admitted to hospital with sepsis and acute kidney infection.

Mr Y was discharged home after around three weeks, following an Occupational Therapist (OT) assessment. The Council increased his package of care to four calls daily.

Mr Y was readmitted to hospital the following day. The ambulance service raised a safeguarding alert citing concerns of neglect and acts of omission. A care worker had visited and was not able to help Mr Y to mobilise as he was too weak and unstable and there were no mobility aids available. 

Mr X was unaware of this safeguarding concern, and the Council had no evidence he or the family were ever alerted. 

The social worker told Mr X that they would need to meet in the hospital and plan Mr Y’s discharge once all reports were completed and he was medically fit.

The hospital would not discharge Mr Y until an OT had visited his home to assess it and he had support in place. The OT discussed plans with the family and they said they would like Mr Y to be at home with Mrs Y because of his depression due to being away from her. They said Mr Y would end up back in hospital if discharged home without 24-hour care. The OT said she felt Mr Y’s needs could be met at home with care workers. She said she would order a hospital bed for him and do a home assessment.

Mr X wrote to the Council and said it had given no consideration to Mr and Mrs Y being married for nearly 60 years. Mr Y would spend his days sitting in the same chair all day except when care workers visited and helped him to the toilet. He asked when Mr Y would have support to visit Mrs Y.

The Council replied stating that it said it would not be appropriate for Mr Y to move into a care home, as was established through assessments. It said if the family could no longer support Mr Y there were “voluntary organisations that could help with shopping and he could pay privately for cleaning and ironing. Voluntary organisations could also provide a befriending service if Mr Y wanted company at home.”

On the 10th of May, Mr Y was discharged from hospital. The Council arranged for Carewatch to take over from Bespoke as it could not restart at the required time.

The next day, Mr X emailed the social worker to complain. He said that

  • He had visited Mr Y the night before and found him in urine-soaked clothes and pad from that morning. He had helped him to bed. 
  • A care worker from Carewatch had visited and left before Mr Y returned from hospital. 
  • Family provided him with an evening meal as he had none, and when a carer turned up at 8:20pm (40 minutes early), Mr Y had said it was too early to go to bed so was left fully clothed in his chair. 
  • The care worker stayed 10 minutes, not the required 30, and did not toilet Mr Y, left all the lights on and left Mr Y’s walking stick far from his chair. 
  • Mr Y tried to get this unaided as he had been sent home without a walking frame. 
  • Mr X said there were no food and fluid charts in place. 

The Council followed up with Carewatch about the failed visits and lack of food and fluid charts, and with the hospital to get the walking frame delivered. A social worker visited and noted Mr Y was happy to be at home. She explained to Mr Y what the care workers should do during each call and spoke to Carewatch to stress that Mr Y should be helped to bed on the last call. She asked Carewatch to arrange for the quality officer to visit Mr Y and this also took place the same day.

On 16 May, the Council completed a risk assessment for Mr Y to go and visit Mrs Y twice a week with a care worker. It agreed a total of three hours weekly for the two visits to Mrs Y

Sadly, towards the end of May, Mr Y collapsed and died in his home with a care worker present. 

The care worker called an ambulance, and called again a second time when he realised Mr Y was not breathing. When the crew arrived, they asked the care worker if he had performed CPR, but the care worker had not, as he had been told by Carewatch not to perform CPR at all. The ambulance service raised a safeguarding alert with the Council. This safeguarding investigation concluded that the allegation was not substantiated, and the LGO was satisfied that the enquiry was carried out properly. 

When the LGO enquired about the lack of Care Act assessments for Mr Y, the Council said that it had experienced high staff and management turnover. It acknowledged that it failed to assess the impact of separating Mr and Mrs Y. The Council said it had since implemented various quality measures and was working to achieve a consistent level of best practice.

What was found

Assessments

The Council took seven months, from January to August 2017, to assess Mr Y’s needs in his own right. This was too long. The Council was at fault. Mr Y’s needs were not adequately met for many months putting him at an avoidable, increased risk of harm.

The LGO found no adequate assessment which properly considered Mr Y’s needs in line with the Care Act after he was admitted to hospital in January 2018. This was fault. As a result, there was no consideration of the risk to Mr Y, despite numerous concerns raised by his family. 

There was no evidence that the Council gave due consideration either to a live-in care arrangement, or a placement with Mrs Y, despite having said it would. This meant the Council could not be clear about the support Mr Y needed or that it met his needs adequately. The LGO stated that this caused Mr Y significant and undue distress and risk of harm. It also caused him actual harm, as everyone involved accepted that this contributed to his worsening condition.

There was also no evidence of the decision for Mrs Y’s residential placement to become permanent. This was fault. This caused her to be at an increased, and undue, risk of harm. Mrs Y did not have capacity to decide about her own care so a best interests decision was needed for this (although the report does not mention a capacity assessment having taken place). There was no record of a best interest decision. This was also fault.

Finally, the LGO highlighted that Mr Y’s separation from Mrs Y due to her move to the care home and the expressed concerns about this, engaged article 8 of the Human Rights Act. Again, there was no evidence that the Council considered whether it was appropriate to limit this right in the circumstances, or any consideration of their human rights at all. Failure to regard its responsibilities was fault. This fault caused significant and undue stress, frustration and outrage to Mr X and Ms Z as they repeatedly raised their concerns, as well as Mr Y because he was unable to see his wife. 

Quality of care

The care provided before January 2018 was inadequate, as it resulted in the hospitalisation of both Mr and Mrs Y. The LGO stated that the failure to provide the care as planned put Mr and Mrs Y at an increased and undue risk of harm.

Mr Y was also left without the care he needed from Carewatch. This was also fault and caused Mr Y to be at an increased and undue risk of harm.

Complaint handling 

The Council was at fault for the way it communicated with Mr X about the arrangement with Optalis and Carewatch. They failed to fully involve him in the process and keep him actively informed. Failure to do so was fault and caused Mr X significant and undue time and trouble, stress and outrage.

Remedies

Unfortunately, Mrs Y had also passed away by the time this complaint was brought. 

The LGO recommended that the Council:

  • apologise to Mr X and Ms Z 
  • pay Mr X and Ms Z £750 each to recognise the distress it caused in failing to properly consider the risks of separating Mr and Mrs Y
  • pay Mr X a further £500 for the time and trouble and distress he was caused in bringing his complaint
  • review any cases where couples are separated by their care needs, to ensure the risks and human rights were fully considered for both parties. Also, that adequate contact is included on the care and support plans
  • review assessment practice across the Council to ensure it is consistent and Care Act compliant
  • ensure it has an effective mechanism for following up where complaints about poor practice have been received and to check that improvements are made and sustained
  • put in measures to ensure complaints about several agencies receive a coordinated response
  • review its commissioning practice when services are rated “Requires improvement” to ensure it considers any increased risk to people.

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

This complaint highlights the impact that councils can have through their failures to know their legal responsibilities and to act upon them.Mr and Mrs Y both had care needs, with Mrs Y’s needs identified and planned for initially with care at home. The quality of that care was clearly not good enough which led to safeguarding processes that also recognised the needs of Mr and Mrs Y. 

The couple had a series of hospital admissions, therefore the council knew that they had needs, yet took seven months to assess Mr Y in his own right. Here we have seen poor recording, but more importantly poor practice on the whole. This man was discharged from hospital without proper assessment of his needs and the risks of him returning home and upon readmission, the hospital helpfully refused to allow him to be discharged without an OT assessment and without an appropriate care package in place. 

Mrs Y on the other hand had hospital admissions, and was then admitted to a care home on a temporary basis. The council did engage with their family to seek a view about how they could both best be supported, however ignored the request for live-in care despite suggesting that their budgets could be combined to fund such care. The issue that many councils neglect to consider is that a person’s budget is not a couple’s budget – each person has their own budget identified through the assessment process. A person’s budget has to be sufficient to meet their outcomes, and had this council assessed Mr Y sooner, it may have been viable for their budgets to be used flexibly enough to provide them with live-in care and keep them together at home. 

The council failed in several ways including in recordings of the assessment and mental capacity assessment process. It had no records of actions claimed to be undertaken by a social worker. What it did have were the student social worker’s comments that there were no changes needed to Mr Y’s support plan despite it being evident that Mr Y had been feeling very low since he and his wife were separated by her health needs and that he had not been eating and drinking since her admission to hospital. We hope that the council will learn from this experience and ensure that both student and qualified social workers understand that such a change in presentation and activity for a person does amount to a need to revise a support plan. 

Councils are obliged to consider the person’s wishes and feelings as part of the assessment process. This situation also engaged Article 8 ECHR as the care arrangements for this couple created a separation that clearly had an impact for their right to a private family life. This couple had been married for 59 years and spent the end of their lives separated. They had been provided with two inadequate care agencies, despite the council being obliged to commission sufficient quality services for people to access care from under s.5 Care Act 2014. 

The decision-making in relation to Mrs Y’s care home placement highlights the impact that each individual decision along the way has had. The decisions pertaining to Mrs Y were as follows: 

  • that her needs were significant enough for her to require 24 hour care in a care home;
  • that the council would set up direct payments to enable Mr and Mrs Y to remain at home together with live-in care. 
  • that until these were set up it was in Mrs Y’s best interests to remain in the care home despite the separation from Mr Y and 
  • finally, that a best interests meeting was needed to determine where her needs would best be met in the long-term. 

So why, we ask, did the council record her placement as permanent on the same day it agreed a best-interests meeting was needed? It appears that this council had no real intention of enabling a person-centred approach for Mr and Mrs Y despite being very clear about the duration of their marriage and potential impact of separation.  

The involvement of the LGSCO in this complaint flags the danger of councils not being aware of or merely disregarding their legal responsibilities. Helpfully the LGSCO has suggested financial remedies, however, since Mr Y has passed away, there can be no remedy that will address the distress and anguish this couple will have experienced at the hands of the council. 

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

https://www.lgo.org.uk/information-centre/news/2020/sep/elderly-man-suffers-after-council-splits-him-from-his-wife

Warwickshire Council at fault regarding mental capacity assessments and failure to provide an advocate

Decision Date: 28/02/2020

What Happened

Ms X, an Independent Mental Health Advocate, complained on behalf of Mr B.

In March 2016 Mr B became an in-patient at a hospital for adults requiring mental health care; it was unclear from the report whether this was voluntary or not.

A mental capacity assessment in January 2017 concluded that Mr B lacked capacity to make decisions regarding his current or future needs.

In April, after his health had improved, Mr B moved to a care home for people with mental health conditions.

The LGO report did not go into any detail as to what his status under the MHA was, and did not mention how it was decided he would move to a care home, or whether his mental capacity assessment was reviewed.

The Council sent Mr B a financial assessment form, which he completed with ‘support during a meeting’ held in July.

In September the Council told Mr B he would have to pay £87.15 per week for his care, backdated to April.

Mr B refused to pay the charges. He said that he had not been told he would have to pay when he moved into the care home.

The Council said that it tried to arrange an advocate for Mr B, probably in connection with the care planning part of the process, but the advocacy service would not accept the referral.

The LGO report does not state when the Council tried to find an advocate, or the reasons the service declined the referral. It simply states ‘An Independent Mental Capacity Advocate (IMCA) must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff) whenever a local authority is proposing to arrange accommodation (or a change of accommodation) in a care home, and the person will stay in the care home for more than eight weeks. The IMCA represents and supports the person who lacks capacity and they will provide information to make sure the final decision is in the person’s best interests.’ Also, the report did not state whether the Council tried different advocacy services – generic ones as well as Care Act or IMCA advocacy services.

The Council took Mr B to the local citizens’ advice bureau in November, where an advisor told Mr B that he did have an obligation to pay the charges. Mr B still refused to pay the charges.

Since July 2017 (three months after moving into the care home), Mr B had repeatedly told the Council he was unhappy living there, and wanted support to move to different accommodation where he could live independently.

The Council said that it helped him make enquiries about suitable supported housing, by helping him attend the Council’s housing department. Again, the report did not specify when, nor whether it carried out any reviews during this period. It is not clear whether any social worker supported him to present as homeless, because he was unsuitably housed, as opposed to merely seeking to register.

In August 2018, the Council again made a referral for an advocate for Mr B to be present when discussing his options for accommodation.

The advocate, Ms X, complained to the Council:

  • the Council had failed to carry out capacity assessments in relation to Mr B’s understanding of the decision to move into the care home, and the financial implications of that decision.
  • the Council had not arranged for an advocate to support Mr B with the financial assessment, or his discharge from hospital.
  • she highlighted that Mr B said he had not agreed to the placement and did not understand that he might have to pay.

In September 2018, the Council undertook a capacity assessment to decide if Mr B had capacity to choose his housing options, live independently and manage his finances independently. Not until February 2019 was it concluded that he was deemed to lack capacity in all areas of the assessment. Again, from the report it is unclear why it took so long to make this conclusion.

The next month, a professionals’ meeting concluded that it would be in Mr B’s best interests to move.

The Council then began taking steps to find alternative accommodation.

Mr B agreed to accept an appointee to manage his benefits and support him with the payment of his bills.

The appointee (undisclosed), found that Mr B’s capital had increased above the threshold for benefits and recommended that he pay some of the outstanding care charges to reduce his capital below the benefits threshold.

The Council said it was then agreed in a multi professionals’ meeting that it was in Mr B’s best interests to pay £3500 of the outstanding charges, which was organised the next day.

Ms X said the decision to repay some of the outstanding charges was made before the best interests meeting, and Mr B did not have an advocate during that process.

She went on to make a safeguarding referral, concerned that Mr B was put under pressure to pay the money.

As a result of a safeguarding meeting, it was agreed to make an application to the Court of Protection for an appointed deputy to manage Mr B’s finances. The report did not state when this meeting took place.

After the £3500 that Mr B already paid, he still owed around £8500 in care contributions.

What was found

When Mr B was discharged from hospital, he was assessed to lack capacity to consent to his placement, and the decision to place him was made in his best interests. The LGSCO highlighted that the Council should have instructed an IMCA to represent and support Mr B. It did not do so, which was fault.

The Council then carried out a financial assessment without establishing whether Mr B had capacity to take part in that assessment. This was fault. The LGO stated that it seemed likely that Mr B would have had substantial difficulty engaging with the assessment process, so the Council should have arranged for an independent advocate to support and represent Mr B. It did not do so, which the LGSCO found as fault. We at CASCAIDr do not agree with the LGSCO on this point as the law does not require councils to provide advocates for the purposes of financial assessment.  

The report states that the statutory guidance requires that a capacity assessment should be carried out when a person’s capacity is in doubt

The LGO stated that the Council should have carried out a capacity assessment to determine if it thought that Mr B had capacity to manage his finances independently. It did not do so until September 2018. This was fault.

Mr B repeatedly said he was not happy living in the care home. Again, the Council should have carried out a capacity assessment to determine if Mr B had capacity to decide where to live. It did not do so until September 2018. This was fault.

The LGO stated it was not satisfied that the decision that Mr B should pay £3500 of the outstanding care charges was made properly. There were no records to show how the decision was made and what factors were taken into account, or that Mr B was provided with the support of an advocate during the decision process. This was fault.

Remedies

The LGO recommended that

  • the Council pay £1000 to Mr B in recognition for distress caused by the build-up of arrears
  • the Council will make a decision about where it would be in Mr B’s best interests to live.
  • The Council should support Mr B to move to alternative accommodation, if it is decided that it is in his best interests to move; and
  • The Council should provide training to social care staff on the Mental Capacity Act.  The training will cover when capacity should be considered, when capacity assessments should be carried out, when best interests decisions should be made and when it is necessary to arrange an advocate. Staff will also be reminded to properly record capacity and best interests decisions.

The LGO further stated: “I am not recommending that the Council write off the outstanding arrears, but I consider it should make a payment to Mr B as a remedy for the distress he suffered as a result of its failings.” It did not recommend a specific amount.

Points for the public, charging officers, financial affairs officers, service users, family members and advocates

There are three key points that arose from this complaint. Firstly, the council carried out a mental capacity assessment when Mr B was in hospital in January 2017. What it failed to do was to appoint an independent advocate to support Mr B. The Care Act 2014 (s.67(4)) sets out that a council must appoint an advocate in the context of care planning as it was with Mr B when the following is satisfied:

The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—

(a)        understanding relevant information;

(b)        retaining that information;

(c)        using or weighing that information as part of the process of being involved;

(d)        communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).

Mr B was moved to a care home for people with mental health problems 3 months after the mental capacity assessment failed to include an advocate. Whilst we do not have the detail of that move from the LGSCO report, we know that it was not until August 2018 that the council referred him for advocacy support and was taking active steps to seek alternative accommodation. This is not just fault, but a clear breach of the requirements of the Mental Capacity Act 2005. This legislation affirms in s.39(4) and (5) that when a council is making arrangements to provide a person who lacks capacity with accommodation such as Mr B’s placement in a care home, this is what it must do:

(4) Before making the arrangements, the local authority must instruct an independent mental capacity advocate to represent P unless they are satisfied that—

(a)          the accommodation is likely to be provided for a continuous period of less than 8 weeks, or

(b)          the arrangements need to be made as a matter of urgency.

(5)          If the local authority—

(a)          did not instruct an independent mental capacity advocate to represent P before making the arrangements because they were satisfied that subsection (4)(a) or (b) applied, but

(b)          subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements, they must instruct an independent mental capacity advocate to represent P.

The LGSCO report found fault with this council for failing to provide an advocate for the purposes of financial assessment. This is not what the law says. The Care Act 2014 says nothing about a requirement for a person to have an advocate for that purpose. What it does is outline circumstances in which an advocate may be required to be appointed in s.67.

The Department of Health Statutory Guidance sets out the following in relation to advocacy support:

8.18 At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the local authority must find out if the person has any of the following as the appropriate person will need to be involved:

  • enduring power of attorney (EPA)
  • lasting power of attorney (LPA) for property and affairs
  • lasting power of attorney (LPA) for health and welfare
  • property and affairs deputyship under the Court of Protection
  • any other person dealing with that person’s affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

8.19 People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be ‘forced’ to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead.

In Mr B’s situation, the LGO report identifies that he was ‘supported during a meeting’ to complete the financial assessment form and it is at this point that the council got it wrong. What LGO says about Guidance requiring a capacity assessment whenever capacity is in doubt is not true. The council should have assessed Mr B’s capacity because of the responsibility of the council to source an advocate if one is needed. When supporting Mr B to move to alternative accommodation, the council then carried out a mental capacity assessment and this took five months to conclude that he lacked capacity to make decisions about his finances. He should have received the support much sooner as we can see from the LGSCO report that he ‘agreed’ to an appointee acting on his behalf who then determined that paying a £3500 debt was in his best interests. It is unclear whether the council were acting as appointee for him, and if they were we would have been concerned at this being a clear conflict of interest. We do suspect that this was the case, given the appointee determining the need to repay a debt that Mr B incurred without having had the relevant support in relation to his finances.

The LGSCO was right to determine that the decision-making by the appointee was in doubt – the recording should have indicated how the decision was made. However, when someone has an appointee, they are ‘appointed’ by the person who would not then require an advocate as the person’s interests become the responsibility of the appointee.

In terms of the reimbursement of £3500 to Mr B, the LGSCO determined that once the Deputy was appointed, if it decided that the payment was wrong then Mr B would be reimbursed. Depending on how long that would take, Mr B would still be unable to use this money and it is our view that a reimbursement on the basis of goodwill could have addressed this for Mr B.

The complaint was raised by Mr B’s independent mental health advocate who clearly knew some law and did her job in raising this on Mr B’s behalf. The challenge to the council led to the LGSCO recommendation for training for social care staff. This training was required to focus on the basics including when a mental capacity assessment be considered, carried out and when an advocate should be appointed. It is disappointing that these matters are still an issue for councils despite the number of years the Mental Capacity Act 2005 has been in force. 

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

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-017-301