Author Archive for Gabe Susman

London Borough of Tower Hamlets at fault for failing adequately to consider appeals relating to disability related expenditure

Decision Date: 18/03/ 2020 

What Happened

Mr Y complained on behalf of Ms X. The LGO report did not state the relationship between the two. 

Ms X had been receiving direct payments for home care. In October 2017 the Council carried out a financial assessment and concluded that she should contribute £66.26 per week towards her care. In this assessment, Ms X stated that her only disability related expenditure (DRE) was that she used a taxi card. The report does not indicate what information Ms X was given in advance of the assessment. 

After she was told the amount she should contribute to her care, Ms X appealed against the decision, and listed numerous additional items she wanted to be taken into account as DRE. 

The Council carried out another charging assessment at the end of 2017, and found that her contribution level should not change. 

Again, Ms X appealed in January 2018. She listed the DREs she wanted to claim and the expenditure for each one. These included a special diet (as she had diabetes), supplements, special footwear and a special mattress. The list also included travel expenses.

In March 2018 the Council reassessed Ms X’s DREs, and allowed for an additional £5 per week. This reduced her contribution to £61.26, backdated to the end of 2017. This financial assessment did not include details of which DREs the Council allowed, and the LGO deduced that the Council did not include travel expenses as a DRE. 

Ms X appealed the decision once more. 

In May 2018 the Council carried out another reassessment, and this time allowed for £28.12 in DREs (for Ms X’s shoes, dietary needs and mattress). Ms X’s contribution was therefore reduced to £38.14 per week.

Ms X asked the Council why it did not regard travel and dietary supplements as DREs, and in June Mr Y provided additional evidence to the Council regarding expenditure on dietary supplements. The Council responded with a further financial assessment in August and allowed a further £10 a week for her dietary needs, reducing her contribution to £28.14 per week, backdated to October 2017. 

Every time the Council reassessed Ms X, it suspended its invoices.The LGSCO did not focus on whether the Council wrote to Ms X to inform her that a debt was accruing, nor is there evidence that it proposed she commence making a nominal payment.  Therefore Ms X did not pay a contribution during those times, so accrued arrears of over £1400. Ms X appealed and asked the Council to waive the arrears.

The Council’s appeal panel decided not to waive the arrears. Ms X was advised to contact the Council’s debt recovery team to arrange a repayment plan. 

Ms X complained that the Council took too long to complete the reassessments, which the Council accepted and offered a payment of £100. 

What was found

The LGO considered that the Council did not give adequate consideration to Ms X’s appeal and request for DREs in January 2018. This was fault. It could have requested more information regarding the DREs she was requesting at that point, rather than in May 2018. 

This fault caused an unnecessary delay in reaching a decision on the DREs. This delay caused Ms X uncertainty in knowing what her contribution would be, and time and trouble bringing the complaint. The LGO recommended a further £100 payment on top of what the Council had already offered. 

The LGO did not consider that the Council should waive her arrears, because she would always have had to contribute to her care, regardless of the delay. 

The LGO recommended the Council apologise to Ms X and take £200 off her arrears in order to reduce them. 

It was also told to review its procedures for considering requests for DREs to ensure officers give adequate consideration to requests, including promptly seeking any additional information required, to avoid the delays experienced by Ms X. 

The Council should also ensure it keeps proper records of its decisions on DREs and reasons for those decisions. The Council should then inform the Ombudsman of the action taken to improve its practice in this area.

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

The Department of Health statutory guidance sets out factors that can be included as DRE and it can be found here:

https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#charging-and-financial-assessment

A key point from this complaint is that there is no appeal provided for, within the charging system, other than a complaint – hence the repeated financial assessments that took place in response to Ms X raising a complaint about the amounts she had been assessed as having to pay towards her care. 

The person in that situation either has a review of the financial assessment or makes a formal complaint, or refers the matter to the Council’s Monitoring Officer as an indication of potential judicial review proceedings regarding the decision made by the Council if there is an underlying legal challenge. It appears that this complaint reflects a situation many people might find themselves in when they have not been given information in advance about DRE and financial assessments, only to be ground down by repetitions of the same process and (potentially more mistakes) to work out what they should or should not be paying.

We think it makes sense for councils’ charging officers to take note of the hint from para 10.86 of the Care Act Guidance  that when something is disputed or challenged, it makes sense to look back – ie do a management review of the earlier parts of the process to see where one might just have gone wrong. That is what addressing a customer’s perspective is all about!

Each time the amount Ms X challenged the contribution amount, she provided no further additional information on the DRE than had already been supplied. The Council simply failed to consider all of the information she had provided, each time it assessed her financial contributions. 

The LGSCO did not recommend any financial remedy for Ms X other than £100 for the uncertainty and time and trouble for each time she had to “appeal”. This was in addition to the £100 which the Council had already offered her. The LGSCO found that since she would have had to have paid towards the cost of her care anyway, she was not financially inconvenienced because of the Council’s failings. This is an important point, which highlights that even where a council’s process creates fault, this does not mean that a person will have their contribution waived. 

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

The full Local Government Ombudsman report of London Borough of Tower Hamlets actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-008-359

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JG, R (on the application of) v LB of Southwark

[2020] EWHC 1989 (Admin)

Case Background

JG was a ‘profoundly disabled young woman’ who requires care and supervision with all aspects of her daily life.

She received care at home, by her parents, and a team of paid carers funded by the Council (the defendant).

Southwark Borough Council had provided JG with care since 2013, using direct payments. She received funding for 58 hours of 1:1 support per week. In addition, her parents received fifteen hours of respite care a week, which they used to pay for 1:1 support, making a total of 73 hours of 1:1 support per week.

Since December 2018 the Council had also been paying for a carer to stay overnight for 8 hours. This was originally made under an order for interim relief in previous judicial review proceedings and since then had been continued on a ‘without prejudice basis’.

The Council now wanted to remove that 8 hours per night funded provision.

JG was assessed in March 2020, by social worker Mr Choudry. The assessment concluded that she needed 2:1 care for two hours a day, but otherwise 1:1 care was sufficient to meet her needs.

JG’s mother applied for a judicial review of the March needs assessment, and also claimed that the Council failed to assess JG’s father and carer (CG).

The March 2020 Assessment

NG highlighted that, in her view, JG’s needs had increased after a hospital stay in late 2019, and that she needed 2:1 care.

Southwark’s Mr Choudry noted that when JG was discharged from hospital, there were no recommendations to increase her care package, there was no OT report to indicate her needs had changed, and her recent behaviour support plan (Feb 2020) also gave no guidance as to whether JG required 2:1 or 1:1 support.

Mr Choudry commented that NG was unable to state fully what the additional support would be for.

He said that NG was acting as a second carer to support her daughter, which in effect was providing 2:1 support, which was not an assessed need, and that she was choosing to act as the second carer.

Mr Choudry “felt that NG’s needs as a carer were overshadowing her daughter’s needs as she felt that the claimant needed additional support to manage her behaviour and she was providing this additional support as a means of managing her daughter’s challenging behaviour without regard to the recommendations of the recent behaviour support plan.”

Mr Choudry also pointed out that there had been “difficulties in arranging meetings with NG and real difficulties in obtaining objective information from her regarding her daughter’s care and support needs”.

All four of JG’s carers however suggested that she needed 2:1 support due to her challenging behaviour and non-compliance with her care at times.

Mr Choudry suggested training for her carers to help them manage her behaviour, and also pointed out that JG had been making progress with her independent living skills whilst attending college.

Mr Choudry concluded that JG would not ordinarily need 2:1 care, but due to the current un-adapted bathroom at home, she did. He said that the adaptation to the bathroom had been an ongoing recommendation and one where NG and CG had not agreed to the works until very recently.

He also concluded that her support was not being implemented in line with her behavioural support plan, for example, he noted that during personal care times the carer and her mother were in close proximity to JG, and that in one instance the carer held her arms and restricted her movements. This caused anxiety to JG, (which would need to be discussed at a best interests meeting as being a restriction and deprivation of her liberty).  Mr Choudry suggested that JG’s anxieties could be reduced by some degree if she was involved in the task, for example giving her a flannel to hold. He stated that carers needed to understand her communication and work at her pace rather than being prescriptive during personal care times.  He felt that “the care workers were not following any techniques from the behaviour support plan in order to manage the behaviour”.

Mr Choudry considered that this equated to care being done ‘to’, as opposed to being done with JG.

NG also said that the claimant needed 2:1 support when out in the community. Mr Choudry stated that until JG’s mobility had been assessed the safest option would be for her to use an attendant-propelled wheelchair and be assisted by one carer.

Mr Choudry noted that JG had an erratic sleep pattern, but was ‘far from being described as an insomniac’, and therefore recommended the removal of the night time carer, which cost the Council £50,000 a year. He suggested monitoring would be more beneficial. He also considered that if JG were living a supported living scheme she would be encouraged to go back to sleep and remain in her room.

He concluded that that the carers’ logs did not indicate that JG had a significant level of need that would warrant additional support which could not reasonably be met by her parents.  

Held

All in all, Judge Allen found aspects of the Council’s case to be materially flawed suchthatthere were numerous challenges on grounds of rationality.

(1) Behavioural Support/Management Plan

Judge Allen stated that there was sufficient evidence that JG’s behavioural plan was being followed, but that Mr Choudry did not examine the evidence sufficiently; “[Mr Choudry’s] conclusion that it was not being implemented was one which did not take full and sufficient account of the full range of the evidence before him. As a consequence, I consider that his report is materially flawed in this regard, going beyond simply disagreement, to failure to take into account all evidence which a reasonable decision maker would take into account.

2) Night-time care

Judge Allen said “The essential issue here is the need to address the relevant evidence about the severity of the claimant’s sleep problems which…I do not consider has been done. Determining that this aspect of the assessment is unlawful does not entail the necessity of £50,000 per year funding having to be provided by the respondent in this regard. Any defects in the decision under challenge are open to being cured by a re-evaluation of the claimant’s needs on the basis of a full consideration of all the relevant evidence. It is entirely possible that a lawful assessment taking into account all the evidence would reach exactly the same conclusion as has been already reached. But the matter can clearly not be prejudged, and my task in this case is to consider the lawfulness or otherwise of the decision rather than the implications that may flow from it, in any event.

(3) Occupational Therapy Evidence

Judge Allen found that it was unlawful for Southwark not to have taken account of evidence of various professionals about JG’s need for a wheelchair when outside her home; “It does not appear to me that there was a sufficient evidential base for the decision maker to come to the conclusions he did with regard to the occupational therapy evidence, and accordingly this aspect of the decision is also, I find, materially flawed.

It was also unlawful to decide JG was eligible for 2:1 care for two hours per day; “It is, as is argued, common ground that the claimant suffers from both urinary and faecal incontinence. She therefore requires showering not only at regular times in the morning but at unpredictable times in the day and night. As is argued, that need is not answered by a provision limited to two hours a day. Given the acceptance of the need in this regard, I agree that the limiting of this to two hours is irrational, and again this element of the decision is materially flawed.

Judge Allen concluded that

“Bringing all these matters together, I conclude that the claimant has made out ground 1 and identified elements of the assessment which are unlawful. This is not just a matter of disagreement. The legal test, as set out above, is a high one, and I have no doubt that Mr Choudry carried out a conscientious evaluation of the claimant’s circumstances. But there were, in my judgment, material pieces of evidence which he did not take into account in coming to the conclusions that he did and that the assessment is, as a consequence, unlawful.”

Carers’ Assessment and sufficient interest to be joined in the case

Judge allen also found that Southwark Council had failed to complete a carer’s assessment for CG.

Judge Allen said: “The defendant argues first that CG is not a party. This point is, in my view, effectively answered by the argument that the purpose of the carer’s assessment is to assess among other things whether the carer is able and likely to continue to be able to provide care for the adult needing care and what support should be put in place to enable that to happen. Clearly, [CG] has a sufficient interest to pursue this point.”

The judgment can be read for free here:

https://www.bailii.org/ew/cases/EWHC/Admin/2020/1989.html

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Royal Borough of Kensington and Chelsea at fault due to poor communication, delay in assessments and delay in care and support.

Date of decision: 18/03/ 2020

What Happened

Ms X complained on behalf of her grandmother, Mrs Y.

Mrs Y had previously had a council funded care package, which included 3 care visits per day.

In December 2018, Mrs Y was admitted to hospital after a fall. Before she was discharged back home, an assessment identified that Mrs Y needed two carers to visit 4 times a day, and for a hospital bed to be put in her home.

Mrs Y’s family made a number of complaints about the preparation for going home and about care that she received after being discharged on the 14th February 2019.

  • The day Mrs Y arrived home, she complained that she was left sitting on her chair from 5pm until 7pm when the carers arrived.
  • Mrs Y’s family thought she needed additional equipment, including a fall sensor.
  • Ms X said that the carers were leaving Ms Y in a high backed chair between visits, which made her feel unsafe.
  • Ms X also complained that the carers were not arriving on time, nor doing the chores they should.

There was no evidence that the Council ever responded to Ms X’s concerns or requests.

The Council were also unable to provide the LGSCO with evidence that an Occupational Therapist was consulted when assessing Mrs Y. 

Mrs Y was admitted to hospital again on the 5th March after falling out of bed.

Before she was discharged, a social worker assessed Mrs Y’s capacity. During this meeting Ms X highlighted that she was concerned Mrs Y did not have a continuity of carers, and they were not doing enough to get Mrs Y up and motivated. From the report, it seems that Ms X expressed these concerns to the social worker during the meeting. Again, there was no evidence the Council considered her statements.

On the 19th March an assessment concluded again that Mrs Y needed two carers, 4 times daily. It said that an OT would review her needs when she was at home. Mrs Y was discharged the next day.

For reasons not explained in the report, Mrs Y was admitted to hospital again on the 25th March, which was before the OT could visit. Ms X complained to the Council. She, again, raised concerns about the carers, stating that they had failed to complete the log book, left Mrs Y without food and drink and Mrs Y had suffered numerous falls

On the 29th March Mrs Y left hospital. Mrs X asked the Council who would be providing the care, and the Council told her it would be the same care agency as before, but they would review the situation in the following days. The report did not explain the reason for continuing with the same agency, and the LGO found no evidence the Council considered the quality of care provided, or updated Ms X on any review.

At the end of April, Mrs Y was admitted to hospital for the fourth time (again the report did not clarify for what reasons); once more, Ms X complained to the Council about her concerns surrounding the care she was receiving.

The Council completed a care and support plan on 22 May which said Mrs Y would be bedbound and cared for in bed, and that an OT will later assess her. Ms X challenged this position in June, stating that she should have a hoist, and that she already had severe pressure sores.

Mrs Y was due to leave hospital on 21 May but after contacting her family, the hospital found they were unaware of this, so delayed discharge until 23 May.

On 24 May Mrs Y’s family asked for the Carers to lift Mrs Y out of bed to alleviate the sores, but the Council said the OT would have to make an assessment first, which was arranged for the 6th June.

By the 23rd June an OT still had not visited, and Ms X complained to the Council about the lack of appropriate care and equipment.

The OT visited on the 27th June and ordered a mobile hoist to assist Mrs Y to leave her bed. We do not know how long it took to put this support in place.

Mrs Y went into hospital again on 3 July, and the hospital raised safeguarding concerns.

A multi team meeting on 9th July stated Mrs Y sores may have arisen due to lack of care from carers as reported by Ms X.

On the 14th August Mrs Y was discharged to a care home to continue treatment of her pressure sores. The LGO did not go into further analysis as to whether this was avoidable, or how the decision was made.  

The Council recorded the hospital’s safeguarding alert on 19 August (they had raised concerns on the 4th of July). It stated Mrs Y’s pressures sores deteriorated while at home despite the care package and district nurse involvement. The Council decided to fully investigate the concerns. It planned a safeguarding meeting on the 30th October, but it did not actually take place until mid-December because of a lack of availability of relevant persons.  

Ms X sadly passed away on 4th October.

The safeguarding meeting concluded that:

  • The allegation of neglect was substantiated.
  • There was evidence of a multi-agency delay in the provision of care and support.
  • The neglect could have been avoided if the care was organised in a timely manner by Community Health and the Council.
  • The cumulative result of lack of communication, delay in assessments by the District Nurses, Social Work Team and Occupational Therapy service, amounted to neglect in care.
  • However, the neglect did not cause or accelerate Mrs Y’s death.

As a result, the safeguarding team stated:

  • Different services should coordinate more robustly with each other and respond more swiftly in case of emergencies.
  • The communication between hospital and community-based service needed to improve to avoid delay in assessments and service provision.
  • The Manager asked the Council to complete a Lessons Learnt exercise and an Action Plan for improvement

The Council agreed it should have responded more swiftly. It said they would do this by using an escalation process to inform the manager in case there is a risk of neglect or delay in service provision.

What was found

There was no evidence the Council actually considered or responded to Ms X’s repeated concerns about the quality of care provided. This was fault.

The Council did not always complete OT assessments at the appropriate times in order to ensure she would be safe at home after discharge from hospital. This was fault.

Mrs Y was bedbound when she left hospital on 23rd May and therefore at risk of pressure sores. The OT did not assess her and order a mobile hoist until 27 June. This was fault.

Overall, the LGO stated that the Council neglected in its care of Mrs Y due to poor communication, delay in assessments and delay in care and support. This was fault.

Despite this, the LGO could not recommend a remedy for Mrs Y, as she had since passed away. Furthermore it could not say that the Council’s actions caused her death, as the Coroner’s Court was the appropriate place for that sort of finding.  It did however recommend that the Council pay Ms X £500 in recognition of the distress and uncertainty she suffered.

The LGO was satisfied that the Council had sufficiently recognised its faults, and the need for better communication with service users and family members. It had already started working on an action plan to address faults with delays and service provision, which the LGO asked for a copy of.

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

This Council initially failed to assess Mrs Y’s needs properly upon discharge from hospital.

There was no evidence that the Council involved the right professionals at the right time which would have included the input of an occupational therapist (OT).

Mrs Y’s family expressed concern that she had been discharged without equipment and identified soon after discharge that the care provider was failing to meet Mrs Y’s needs, which included leaving her sat in a chair. 

These concerns were not taken seriously by the council, in fact the LGSCO could find no evidence that the Council responded at all. The only explanation must have been shortage of staff: the report is redolent of NON-discharge of functions, not merely poor discharge of what was expected of any council.

In fulfilling its legal responsibilities, councils’ members have a duty under s.6(6) Local Authority Social Services Act 1970 to ensure that where they have appointed a Director of Social Services, the authority ‘shall secure the adequate provision of staff for assisting him in the exercise of his functions’.

This complaint highlights a shortfall in this area that resulted in significant risk to Mrs Y’s well-being.

This complaint covered a period in which Mrs Y had several falls resulting in hospital admission. Had the Council responded properly when concerns were first raised and reviewed her needs, it would have recognised that this lady was at risk of falls and provided a care plan that was sufficient to meet her needs and ensure her safety. Unfortunately, when the OT did get round to visiting in March 2019, Mrs Y had suffered another fall and was further admitted to hospital.

There were further delays in OT input following later hospital admissions and coupled with delays in input from community health services and social work involvement, the safeguarding meeting in October 2019 quite rightly found that neglect by the care agency was substantiated but exacerbated by the cumulative effect of poor joined up working.

Upon discharge in March 2019, Mrs Y received care from the same agency. Ms X complained again about the quality of care, but there is no evidence that direct payments were offered to enable Mrs Y to have a choice about who supported her. There was also no evidence that Ms X was ever given information about how to make a safeguarding referral. The Care Act 2014 (S.4(2)) outlines the responsibilities of councils to ensure that they establish an information service that must provide:

…information and advice on the following matters in particular—

  • the system provided for by this Part and how the system operates in the authority’s area,
  • the choice of types of care and support, and the choice of providers, available to those who are in the authority’s area,
  • how to access the care and support that is available,
  • how to access independent financial advice on matters relevant to the meeting of needs for care and support, and
  • how to raise concerns about the safety or well-being of an adult who has needs for care and support.

After further admissions and further complaints about the care agency, as Mrs Y had developed significant pressure sores, a multi-agency meeting resulted in a safeguarding referral being made in July 2019 which then took the Council four months to respond to! Ms X had already been raising concerns since February 2019 which in our view represents an unconscionable delay.

For a person experiencing that a council that will not listen to concerns raised there is a further option little known of, by those with a complaint, in our experience. Under the Local Government and Housing Act 1989, councils are required to appoint a ‘Monitoring Officer’. This person has the role of ensuring that councils carry out their functions lawfully, which includes a duty to report to Members if there is a contravention of any local government related statute or rule of law.  Contact with the Monitoring Officer to identify where a council is failing to meet legal obligations may be sufficient to draw prompt attention to issues such as a vulnerable person’s safety.

Mrs Y sadly passed away in October 2019, before the safeguarding meeting took place. The LGSCO considered that a personal remedy for the distress she experienced at the hands of the council would have been appropriate had she not passed away. We at CASCAIDr suspect that this would have been a significant financial remedy in lieu of the poor quality care and support provided to Mrs Y by this council.

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 the Royal Borough of Kensington and Chelsea’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/19-008-936

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Lincolnshire County Council, Lincolnshire Partnership NHS Foundation Trust and Lincolnshire East CCG found jointly at fault for failing to work together properly with regard to s117 aftercare

Decision date: 24/03/20

What happened

Support

Ms P complained that failings from Lincolnshire County Council (the Council), Lincolnshire Partnership NHS Foundation Trust (the Trust) and Lincolnshire East Clinical Commissioning Group (the CCG) resulted in her not receiving 30 hours of PA support between April 2017 and May 2018.

Ms P was entitled to s117 aftercare having been previously detained under section 3 of the Mental Health Act 1983. She received agency support up until March 2017, when it gave notice. She made a request to her social worker at the time to advertise for a PA but was told to go through an agency and that she needed ‘more specialist support.’ A psychologist working with Ms P told the social worker that their view was that Ms P did have the capacity to employ her own PA.

Ms P complained that she had made several more requests to advertise for her own PA due to bad experience with agencies but they were refused each time. The psychologist told Ms P that she did not know why requests were refused. Later in the report, the social worker had indicated the need for Ms P to have agency support to cover sickness and other absences.

The trust began looking for specialist agencies to support Ms P as a previous care agency had expressed concerns about her behaviour. It failed to make a decision about whether or not she could manage employing a PA.

The Trust was acting under delegated authority by way of agreement under s.75 NHS Act 2006 as often exists with integrated community mental health services. In carrying out its delegated functions, the Trust liaised with the CCG as Ms P’s care was to be funded jointly by health and social care. The decision taken was that notwithstanding the points made by the social worker about absence cover, an agency would ensure that support staff were supported and supervised.

An agency was found to be suitable for Ms P in June but she missed a meeting in July and then said she did not want to use it. Ms P had expressed her unhappiness at the trust sourcing a ‘specialist agency’ to provide her support.

In a meeting with ‘The Bureau’ – a company supporting people in the area to manage Direct Payments and employ PAs – in August, professionals agreed with Ms P that she could use an agency for 15 hours a week and employ a PA for another 15. However, 30 hours were advertised to local agencies

Ms P rejected all applications for the role as her PA in September, October and November. She said she was reluctant to consider interim support which was offered by way of social care assistant until the planned support had been sourced. Ms P did not want to build a relationship with a person who was not in a permanent role and had expressed this much earlier to the psychologist.

In December, Ms P accepted support from an agency and said she would no longer look for a PA. The report is unclear as to how this decision was taken, but outlines Ms P having rejected care agencies and a multitude of personal assistants. However, support had still not begun by February 2018 due to a string of meetings cancelled meetings by Ms P. The agency said it couldn’t proceed with the support.

In February 2018, Ms P made the decision that she wanted to receive 15 hours of support from a PA and 15 from a care agency but then cancelled several care agency appointments.

The Bureau advertised again in April 2018 for 30 hours of support. Ms P employed a PA from May. At this point, Ms P was still being permitted to decide that she wanted to recruit a PA again.

Assessments and information sharing

Ms P complained that social care assessments were carried out without her knowledge or proper involvement and were based on inaccurate, out of date information about her diagnosis. She said that her records from the Trust contained an assessment, which included a mental health diagnosis that she did not have, dated in February 2017. She said the social care assessment incorrectly said she had attacked others, took a knife to a social group for unknown reasons, and included that she had a mental health diagnosis she did not have. The Trust later apologised to her for misrepresenting her mental health diagnosis in documentation.

Ms P’s social worker emailed her psychologist in June to apologise for any upset caused to Ms P. She claimed that she had been told that assessment meetings caused Ms P unnecessary stress and that she had decided not to put her through this and to complete the assessment in order to organise funding.

Then, in August 2017 Ms P met with the social worker who said she would amend the assessment. However, she amended the ‘needs’ section when that had not been discussed at the meeting. The social worker said she did not know how it had happened and that she would correct it, but failed to do so.

Ms P met with her new social worker in January 2018 and complained that the assessment had still not been amended. The same happened again in June and then in July.

The Trust apologised to Ms P in a complaint response and acknowledged that it had shared irrelevant and inaccurate information with others. The new social worker sent out an amended support plan and risk assessment in August.

s117 meetings

Ms P complained that she was asked to attend ‘s117 meetings’ in September 2017 but that they were then carried out without her presence after she was told they had been cancelled.

The Trust claimed that Ms P’s psychologist had emailed on the day of the meeting to say that Ms P was unable to attend. The professionals went ahead and met anyway, but carried out the assessment of her needs at a later date.

Community Mental Health Team (CMHT)

Ms P complained that she did not receive adequate support for her needs from the CMHT. She said that she had not been accepted as she fell under the remit of the learning disability team, but that she was told otherwise by the learning disability team as she did not have a learning disability. The eating disorder service she was referred to told her to see an autism team. Ms P’s case was passed around divisions of the Trust many times, including at least two separate crisis teams.

Ms P missed her CMHT assessment in May 2017, although the report does not state why. It wrote to her in June to say if she had not made contact by the end of the month it would discharge her.

There was confusion around whether or not Ms P was on the Care Programme Approach (CPA). In September, the psychologist brought it to the attention of the CCG’s case manager who agreed Ms P should have a care co-ordinator allocated.

Ms P was assessed by the CMHT in late October. It spoke to her social worker in November and said it was unclear what role it could have in her support. It said Ms P’s needs were social care and that it had no record that she was entitled to s117 aftercare. Ms P’s fast-track access to the CMHT had expired and it no longer offered this long term. It said it would request further information from the psychologist to aid its decision but there was no evidence that it had done so. It told the psychologist that Ms P could access the crisis team. However, the crisis team had made it clear that it would not accept a referral for Ms P.

What was found

Support

The Ombudsman found that the Trust was entitled to decide that Ms P’s PA support should not be paid for through Direct Payments but that they had not made the decision in line with the guidance. It should have documented its decision and its rationale for its decision. There was no evidence that the Trust came to a decision until September, when the Bureau had advertised 30 hours of support. This clearly caused Ms P distress and uncertainty. The report does not indicate why Ms P was not offered the option of direct payments.

There was no evidence that the Trust stopped Ms P from hiring her own PA so the Trust was not found at fault for the lack of support between April and May 2017. Furthermore, support was available to Ms P from July through an agency but she chose not to accept it.

Assessment

The Trust should not have reviewed Ms P’s needs assessment without her knowledge or participation. It also failed to provide her with a copy of the assessment. This amounted to fault and would have caused Ms P an injustice in the form of distress. Had she been involved in the assessment, the incorrect diagnosis would not have been sent out to agencies, which was further fault. It took the Trust far too long (a year) to update the assessment.

s117 meetings

The CCG completed a health needs assessment for Ms P in 2014 and failed to do so again until 2019. This assessment was a mechanism for the CCG and social care to determine the split of funding for s.117 aftercare services. The LGSCO found this as fault as the delay would have caused Ms P frustration.

CMHT

s117 aftercare should be planned through the CPA framework and there was no good reason for this not to have happened.  Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT).

The Ombudsman was concerned with the number of times that Ms P attempted and failed to receive support from the various sections of the Trust and that she was denied so often because of inaccurate information on her records. The Trust was at fault for failing to ensure that its teams worked properly together in Ms P’s best interests. This was fault which led to more distress.

Remedies

Lincolnshire County Council, Lincolnshire Partnership NHS Foundation Trust & Lincolnshire East Clinical Commissioning Group will, within 1 month, jointly:

  • Write to Ms P to acknowledge and apologise for the injustices caused to her.
  • Pay Ms P £250 each in recognition of these

And within 2 months, senior officers from all three organisations will jointly investigate the faults in Ms P’s care and agree on how to prevent similar outcomes in the future.

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

This complaint centred around the Trust acting in its delegated capacity to manage the individual’s aftercare planning. This included the requirement to start aftercare planning as soon as possible after admission, in accordance with the Mental Capacity Act Code of Practice. Had that been done for Ms P, with a proper and accurate assessment of her needs the many months of attempted and failed recruitment of both personal assistants and care agencies could have been avoided.

A person entitled to s.117 aftercare services does not fall into the exempt categories within Schedule 1 Care and Support (Direct Payments) Regulations 2014 so it is unclear as to what the factors really were that led the Trust and CCG to believe that using an agency to support Ms P for 30 hours a week was the best route. Decisions were made without a proper assessment of her capacity to recruit or work with a PA. The Trust’s reasoning on direct payments when pushed was this: it was in her “best interests to have an agency involved to provide continuity in the event of staff sickness or unavailability…support workers should have access to support and supervision and this is more easily provided by an agency”.

It has to be said that Ms P was reluctant to engage with support and appointments. The LGSCO identified this when the investigator said:

“However, I must take into account that from June/July 2017 support was available to Ms P (through an agency) and she chose not to accept it. There is evidence of numerous attempts by the Trust to secure agency care throughout the period Ms P complains about. This did not go ahead for various reasons. Even once the Bureau advertised for a PA in September 2017, it took months to find an applicant Ms P was happy to employ. That was not within the Trust’s control. There is no way of knowing whether Ms P would have successfully recruited a PA had an advert been placed sooner.”

The report indicates that Ms P’s mother tried to cover the gap in care and support but found this difficult because of her own health. The LGSCO found evidence that the Trust had agreed to offer her a carers’ assessment but there was no evidence that it did.

Ms P complained that an assessment took place which did not involve her. Whilst involving the person sits under the Care Act 2014 for needs assessments, this is only cited as good practice in the Mental Health Act Code of Practice for s.117 assessments.

The information that was drawn into a needs assessment contained incorrect information. Records had identified that there was no evidence of Ms P behaving aggressively for over ten years, yet this risk was still stated in her assessment. Any prospective care provider would have been concerned at the risks involved with supporting someone with such paperwork. The Trust rightly apologised for these failings.

There was evidence of confused responses in relation to Ms P, with different departments finding it difficult to determine who was best placed to support Ms P. She was passed between the CMHT, Learning Disability services and the crisis team.  She also received support via the eating disorder service. There was additional confusion as to whether she was supported using the Care Programme Approach.

The Mental Health Act Code of Practice (chapter 34) sets out when the Care Programme Approach should be used:

  • 34.6  The CPA should be used in secondary and tertiary mental healthcare to assess, plan, review and coordinate the range of treatment, care and support needs of those people in contact with secondary mental health services who have complex needs. Active involvement of and engagement with the patient are at the heart of the CPA, which focuses on reducing distress and promoting social inclusion and recovery.

The Trust showed a poor understanding of its responsibilities towards Ms P. The Code also requires the Trust to maintain a record of all those entitled to s.117 aftercare, but in the latter part of the report, the CMHT confirmed that it did not have a record of her statutory entitlement despite having received a referral on that basis some three years earlier.

The CMHT also failed to recognise this status as it decided it could not work with her as she had ‘social care needs’. This meant that Ms P may not have received the support she should have done, based on the CMHT judgment that she had no ‘health’ needs, clearly oblivious of her s.117 entitlement.

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 Lincolnshire Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-012-682

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RE AHK (A PATIENT) (2020)

What Happened

P was 26, and was at end-stage renal failure, and needed inpatient treatment for dialysis. He also had a severe personality disorder, with a history of suicidal tendencies.

In July 2020 he refused dialysis treatment for a ‘significant period of time’, which resulted in a near cardiac arrest. He had also stopped taking his medications and refused blood tests, which meant that doctors did not have access to key medical indicators surrounding his overall health.

In August, the Court sanctioned a regime of coerced dialysis, which involved chemical and physical restraint, in his best interests.

After the Court sanctioned these measures, there was a period where P complied with his medical treatment, without the need for any restraint or coercion. 

Consequently, presumably because he started to resist again, the NHS Trust formed the view that although he lacked capacity a lot of the time, the Court order was no longer in P’s best interests. It sought a declaration that it would be in P’s best interests to provide dialysis only when he was co-operative, but to provide palliative care if he refused.

What was found

The Trust asked for the case to be heard the following week. This meant that the Court would have had to have let the original order stand (the coercive dialysis treatment), whilst knowing that the Trust no longer considered it to be in P’s best interests. Or, it would have to make an order for the interim period, without hearing the evidence, which it stated it was not prepared to do. Therefore, the case was heard immediately.

The critical care consultant found it distressing to recount P’s resistance to treatment, and the measures they had had to take in restraining him. Multiple members of staff were required to hold P’s limbs before sedating him, which was considered by all to have seriously compromised his dignity. It would not have been nice for them either, but the point is that an incapacitated person is entitled to receive care even if they are resisting. Their need is not able to be severed from their incapacity; it is not their capacitated choice to resist.

It was noted that some days P was able to supress his suicidal thoughts, and therefore accepted treatment in order to live, but sometimes he became so overwhelmed that he wanted to die, so then resisted dialysis.

The judgement mentioned that P had a seven-year-old son, with who he had a ‘loving, joyous relationship’. It was highlighted that P’s son, in certain circumstances, was the only reason he wanted to go on. The judgement made no other reference to the son, or consider what may be in his interests.

The Trust was seeking a declaration to reflect the fact that it would be in P’s best interests to give him dialysis when he was co-operative, but if he refused the trust would accede to his resistance and provide palliative care. If he refused treatment, death would likely follow within hours or a few days.

A central question was whether P appreciated the risks.

For P, the situation was a utilitarian calculation of risk: on the one hand death, on the other hope. The trust wanted guidance from the court that they were doing the right thing, or whether his dignity was now so compromised (by the traumatic process of restraint and sedation) that it was wrong to pursue that current treatment plan. That treatment plan did, however, give P a chance of living.

The Court stated that it could not envisage any circumstances where the already sanctioned regime would go against P’s wishes and feelings. It highlighted that it was clear that a psychological care package was key.

Therefore the Court refused to grant the NHS Trust that it would be in P’s best interests to provide dialysis only when he was co-operative, and to provide palliative care if he refused treatment,

The Court endorsed proposal for an interdisciplinary meeting to join the dots between P’s psychological and physical challenges.

I am sorry I can’t find you the case link. It’s an ex tempore judgment and there is no way of looking it up but soon, it will be in the Community Care Law Reports I expect or on the 39 Essex street journal. The reference is  [2020] 8 WLUK 254

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Durham County Council at fault for failing to regularly inspect the property it had Deputyship over and make appropriate repairs

Decision Date: 24/03/2020

What Happened

Mr X complained on behalf of his late father, Mr Y.

The Council had been Mr Y’s deputy for financial affairs since 2016. Mr Y owned a retail business property which was let to Mr Z.

Mr Y lived in a care home, as a self-funder (judging from the report), paid for by using the income from renting the business property out. Rent was paid into Mr Y’s deputyship bank account, managed by the Council, until April 2019.

When the Council became Mr Y’s deputy in 2016, the Council sought legal advice about the rental agreement, and whether the lease had expired. It was identified that the lease would not end until Mr Z or Mr Y served notice. Neither had done so.

In May 2018 the Council was alerted to a water leak in the premises. It inspected the property for the first time since it gained Deputyship. It recorded damage, but then did not arrange for any repairs to be made. The Council, acting as Mr Y’s deputy were responsible for repairs and upkeep of the property.

In late 2018 Mr Z the tenant wanted to transfer his lease to Ms B. The Council Deputyship team sought further legal advice, and discussed the matter with Mr Z’s solicitors.

In January 2019, Mr Z left the business, intending to hand it over to Ms B. Mr Z remained leaseholder until the Council decided what should happen.

The Council made a best interests decision about what should happen to the lease under the Mental Capacity Act. In doing so it considered:

  • Mr Y’s earlier wish to rent out the property.
  • How important continued rental income was to meet Mr Y’s care costs.
  • The risk of not transferring the lease, meaning Mr Y losing rental income

It concluded (on a date unknown) that it was in Mr Y’s best interests to allow Mr Z to continue as the leaseholder, but that Ms B would occupy on some or other basis. Ms B would pay rent to Mr Z, and Mr Z would continue to pay rent into Mr Y’s deputyship bank account.

The Council ‘understood’ that this would be the arrangement until a new lease was drawn up under Ms B’s name. It continued to work with solicitors to arrange a new lease.

It is unclear from the report what Mr Z’s views were, so we can only assume that all parties agreed to the Council’s proposal on behalf of Mr Y.

The Council discussed repairs with Ms B, and inspected the property in February 2019, for the second time.

Unfortunately, Mr Y passed away in March 2019, by which time the new lease had not been finished and the Council had not arranged for any repairs. We do not know whether Mr X’s interest was as executor of a will or as a beneficiary as well.

Mr X complained to the Council that it had let Ms B take over the property without a lease or payment plan in place. He said the business had been let go into disrepair. Mr X says he is now having to go to avoidable effort to remove the new occupier so he could sell the property.

The Council replied to Mr X acknowledging that he was seeking legal advice about the council’s failures.

It also explained that as Mr Y was paying the full cost of his care, (either as a full cost charge or because he was well over the capital threshold, one cannot tell) it had taken the best interests decision as his Deputy to allow the premises to continue to be let. This was so that rental income could contribute towards his care costs.

On Mr Y’s death, the Council reimbursed Mr X with the balance of Mr Y’s estate.

What was found

The LGO stated that the legality of Mr Z’s tenancy and its transfer to Ms B was for the courts to decide. However, the investigator found that the Council sought the correct legal advice in regards to the lease, and based on that advice it found that Mr Z did have a continued right and obligations as a tenant.

There was no fault in how the Council made its decision in principle to transfer the lease to Ms B; it made a best interest decision about the lease, having regard to relevant information, its understanding of Mr Y’s previous wishes, and of his financial circumstances. Although Mr X disagreed with the decision, there was no fault in how the Council made it, in terms of the Mental Capacity Act.

However, the Council was at fault for failing to regularly check the property and make appropriate repairs. As Mr Y’s deputy for property, the Council only went inside the business twice during the three-year period of its deputyship. Any reasonable person would have done so more regularly. It did not promptly arrange repairs, and did not visit the property when Mr Z left (to check on its condition).

The LGO highlighted that these were important actions that should have been taken in order to protect Mr Y’s interests. They were actions any responsible person would have taken about their property. The Council’s failure to take these actions was fault.

The LGO said that the Council could have considered using a property manager to undertake tasks the Council considered it was unable to do.

Remedies

The LGO recommended that the Council pay Mr X £500 in recognition of the distress, time and trouble caused by the fault.

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

One cannot possibly discharge the fiduciary duties of a deputy in such a casual fashion. One is appointed on the basis that is fit and proper to be given the role, and one makes declarations about one’s approach the person’s property. The Council would have been aware that Mr Y held a property which was on lease to another party. It would have known that the arrangements required the Council to ensure that the property was maintained and at the very least inspected.

We can’t understand why the council thought that a factor for the MCA balance sheet was the risk of loss of rental income if the lease was not transferred, because Mr Z would have continued to be liable – as appears to have been the conclusion of all.

Logically, what should have happened was that the lease should have been assigned, and one needs the permission of the freehold owner to do that in most cases, but it cannot ever be unreasonably refused. That would have left Mr Z with the responsibility of sorting the assignment out in order to be personally free of the ongoing rental obligation. We wonder whether this permission was not given by the Council because of ignorance, or because of having to pay out of Mr Y’s assets for legal advice, but that makes no sense because they could have got advice from the council itself regarding that business tenancy.

We cannot tell from the report whether the gentleman was a self funder paying care charges directly, or a council placed person on a full cost charge based on his capital assets, and incapacity, which assets would have been depleted by having to sort out legal advice about the assignment; but it may be that there was a perception on the part of the council that he really needed to be able to keep on paying his care charges, in order to save the council from so doing; we simply cannot tell from the report.

What we can point out is that the Office of the Public Guardian (2015) sets out responsibilities for Councils in its Deputy Standards. These can be accessed here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/504368/SD6-Deputy-standards-public-authority-deputies.pdf

The Standards specifically recognise where a person may own a property they do not live in and at paragraph 1(d) advises Councils to ensure that the property is secured and maintained properly which would include keeping a record of regular inspection visits.

The Standards also refer officers to the need (at 3b (6)) to ‘Ensure that all decisions taken are free from any conflict of interest, be it personal or organisational.’

This Council clearly failed to follow this guidance and had to pay for the distress this caused Mr Y’s son. It needed to understand its role as more than just a decision-maker about finances, and recognise that if individuals own property then all the legal responsibilities sit with the Deputy including visits and maintenance. Councils often pay an outside agent for the actual day to day work involved in deputyship and appointeeship, so why this was not done we do not know. It may indicates a general dumbing down of local authority officers’ culture regarding these very important duties, in our view, which would be of grave concern.

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 Durham County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/other/19-008-136

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Cheshire West and Cheshire Council at fault for stopping direct payments without explanation and applying an arbitrary DRE disregard

Decision Date: 22/08/2019

What Happened

Mrs X complained on behalf of her daughter, Miss Y.

Miss Y had severe learning disabilities, and Mrs X was the appointee for Miss Y’s benefits. In September 2014, when she was 17, she moved into a 24 hour support living facility.

When she turned 18 (October 2014), the Council should have completed a financial assessment in preparation to move her over to adult services; however it failed to do so. At this time the Council did not have a functioning transition team, so children’s services were required to fund support for adults until the summer following their 19th birthday. In Miss Y’s case this was the summer of 2016.

Miss Y received funding from children’s services via direct payments (DPs) to help Miss Y access community activities and fund transport. The LGO identified that these were classed as a need from assessment records from children’s services, and from then also in subsequent adult care act assessments under ‘community activities’.

Mrs X told the LGO that the direct payments stopped when Miss Y moved to adult services (July 2016). As a result, Miss Y was left with no option but to fund the activities from her state benefits, and Mrs X contributed where necessary. Mrs X repeatedly asked the council why the DPs had stopped, but they never explained why.

The Council’s Adult Services told the LGO that the DPs were for horse riding lessons whilst Miss Y was living at home, and said it stopped them in 2016 because ‘At this time [Miss Y] was in receipt of welfare benefits – Employment support allowance and Personal Independence payment, “and funded activities through this income”’. It said “There is no guidance within adult social care as to what payments can be used for. As a local authority, this is something we are addressing through our disability board”. (it was unclear from the report if the Council was referring to the welfare benefits, or DPs)

The Council did not complete a financial assessment until September 2017. In recognition of this the Council waived all charges between 1 October 2014 to 7 April 2017 (the October date being the date from which they should have assessed her when she turned 18, but failed to do so).

The financial assessment highlighted that the Council applied a ‘standard’ allowance of £25 for Disability Related Expenditure (DRE), and her assessed contribution was £133.72 per week.

Subsequent financial assessments in 2018 and 2019 showed a £25 DRE disregard and Miss Y’s weekly contributions to be £119.67 and £124.57.

The Council told the LGO that it was because Mrs X did not provide information about additional DRE that it applied a standard allowance of £25 for DRE. Mrs X said that in 2016 she did not know that the cost of activities could be offset as DRE, but now that she was aware she could provide evidence of DRE. DRE should be considered within a financial assessment, but Mrs X highlighted that during the 2017 assessment, she was not asked about any DRE, and she did not receive a letter stating the outcome.

She began receiving invoices from the Council after the September 2017 financial assessment, which she refused to pay.

The Council said that Miss Y had accrued a substantial debt since April 2017; £113.72 a week until 2018; £119.67 a week until 2019; and £124.97 until 2020.

Mrs X complained that Miss Y could not afford the assessed contribution, and that paying this would significantly reduce her quality of life as she would be unable to participate in community activities, which were identified as an eligible need.

The Council acknowledged that activities such as horse-riding were “necessary due to her disabilities…”, and could likely be included as DRE. A needs assessment the Council started in February 2019 stated that “Making use of necessary facilities or services in the local community” were recorded as eligible needs, and noted that “[Mrs X] supports her daughter with involved activities in the week eg horse riding”. However it maintained that it needed further information from Mrs X.

What was found

Firstly, the Council’s failure to explain why they stopped DPs which funded activities assessed as an eligible need without notice was fault.

The Council told the LGO that the DP stopped because Miss Y transferred to adult services and it had no guidance on what the payments could be used for. The Care & Support Statutory Guidance 12.34 states, “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs”. In this case horse-riding and other activities met an identified eligible need. The LGO emphasised that there was no good reason for the Council stopping the payments. It acted contrary to the Care Act.

After the DPs stopped, the Council failed to include the cost of activities in a financial assessment completed in 2017. It allowed Miss Y an arbitrary DRE disregard of £25 per week because Mrs X did not provide information about additional DRE expenses. The LGO stated that the Council cannot expect citizens to understand the process. This was particularly relevant in this case, because Miss Y was new to adult services. Furthermore, the Council knew Miss Y attended community activities, so it did not need Mrs X to provide this information. The Council should have offset the costs as DRE, if the costs were not themselves IN the package/budget in the first place.

The LGO concluded that Councils should always consider individual circumstances and consider everything a person has to buy or pay for because of their disability. In this case it did not do so. This was fault.

The LGO recommended that the Council:

  • provide Mrs X with a written apology and pay her £250 for the time and trouble she went to bringing the complaint
  • develop a care plan for Miss Y setting out all her needs and how these will be met;
  • undertake a fresh financial assessment of Miss Y and consider all DRE in accordance with statutory guidance;
  • establish how much Miss Y spent funding any activities identified as an eligible need since 2016, and reimburse her in full for the effect that that would have had on its charges;
  • establish if, and how much, Mrs X has contributed towards Miss Y’s activities identified as an eligible need and reimburse her in full.
  • consider if other service users may be similarly affected, and take appropriate action;
  • ensure officers undertaking financial assessments and decision-makers act in accordance with statutory guidance.

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

This Council’s systemic failures gave rise to this complaint. Without a Transitions Service, (whether staffed by adults’ or children’s services social workers) how any council can expect to discharge the difficult functions regarding ordinary residence for adults’ services, questions of mental capacity, once adult, questions about transition assessments which are a virtual statutory right under s58 Care Act, is beyond us.

The law and guidance require councils’ Children’s Services to continue to fund children’s services, if adult services is not ready to take over; not to start funding adult services!

Adult services then made an assumption that a need outlined in a children’s services assessment could and should be met by the person through their welfare benefits. This has long been outlawed by the LGO service. One can choose to but one does not have to. Non-care services such as leisure can be charged at full cost if in the package, regardless of the impact on the MIG, to incentivise one to do so, in which case it would almost always qualify as DRE. But one cannot be made to pay for one’s own needs out of one’s own money!

Stopping a Direct Payment without an explanation is clear breach of the Care Act. Changing the care plan without a proper review and revision process is a clear breach of the Care Act (section 27).

The Department of Health Statutory Guidance (12.68) sets out clearly what Councils should consider  in relation to the cessation of a direct payment:

12.68 ‘If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question’.

In Miss Y’s situation, to be able to continue to access the activities such as horse-riding that had been recognised in on-going assessment as meeting her needs, she was forced by the cessation of the direct payment to pay for her own activities. This will have impacted on the monies available to her for other aspects of her life. The Council had assessed her need and were responsible for meeting it unless or until s27 had been complied with. The purpose of the financial assessment process would have established what contribution if any Miss Y was required to make towards the cost of her care services.

The financial assessment process also failed to ask about any Disability Related Expenditure (DRE) incurred by Miss Y in meeting her needs. The Department of Health Statutory Guidance paragraph 39 further sets out that:

‘Where disability-related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority’.

The Council failed to ask about DRE (a wheeze that we see a lot of at CASCAIDr) and on completing its financial assessment applied an arbitrary figure of £25 based on the fact that no DRE information had been provided. The Council had expected Miss Y and her mother to know that DRE even existed! We would not be surprised if the LGO had gone the other way on that point because someone’s appointee owes a duty to keep themselves informed in order to manage benefits, but we are happy that the LGO thinks it unreasonable.

DRE can include a lot of aspects of a person’s care and support and there are no specific rules as to what definitely is or is not DRE but the Statutory Guidance prompts Councils at paragraph 40 with a long list of considerations, which includes day care which is not being arranged by the Council.

Since Miss Y’s direct payments had ceased, her expenditure on day activities (albeit wrongly happening) ought to have been taken into account as it was, at that time, not being funded by the Council.

The LGSCO has demonstrated here how it can require Councils to pay out in restitution for expenditure a person has incurred, from the saving of which the Council thought it had gained a benefit. The Council was responsible at that time for meeting the assessed needs, therefore should not have required Miss Y to fund this herself and acted in line with its responsibilities to meet assessed needs under the Care Act 2014. We heartily approve of the LGO extending that principle to monies spent by the parent from her own money. In the good old days, before even Fairer Charging policy, it was regarded that money extended to an incapacitated adult by a parent was not a gift, but a loan which required to be reimbursed – a principle for which the Mental Capacity Act now makes statutory provision in s7 and 8(2).

7 Payment for necessary goods and services

(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.

(2) “Necessary” means suitable to a person’s condition in life and to his actual requirements at the time when the goods or services are supplied.

8(2) If the expenditure is borne for P by D, it is lawful for D—

(a) to reimburse himself out of money in P’s possession, or

(b) to be otherwise indemnified by P.

We think that many Councils have whittled away at that approach, by lumping all such expenditure under the heading of “assets and strengths”!

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

The full Local Government Ombudsman report of Cheshire West and Cheshire Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-010-441
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Overview of common LGSCO complaints areas

Transitions

Transition is about the transfer of a child from children’s services to adults’ social care services when or around the time they turn 18. The two types of service are governed by different statutes (laws) and even the health service treats children’s health and mental health services differently to the way in which adults’ continuing health care and adult psychiatric care is rationed.

The LGO has investigated many instances of delay and apparent lack of grasp on the part of transition social workers as to what they are supposed to be doing at this point, or the way in which adults’ services, in their own councils, actually work. 

Many of the reports in this section involve delay in transfer and remaining on children’s packages (ironically often more generously funded) for a very long time for no good reason, plain lack of transfer to other agencies’ adult services such as Adults’ NHS continuing health care and a tendency to fall back on parent carers for want of appropriate provision presenting itself, some of which issues, we think will be price related, as opposed to existence related.

Restitution (reimbursement) of what others have spent on the young person’s needs, or the value of work done other than informally, in default, can sometimes be reclaimed in these situations.   

In some cases, a move of the parent from one area to another, or the need for the child to be differently accommodated, to how they were when they were in foster care or a children’s specialist facility, leads to ordinary residence / responsible NHS  commissioner disputes as well – and these are complex because there are always at least two different statutes butting up against each other here – often more, when you factor in Acts governing education which can go on to 25, and health care provision. 

When transitioning between Children’s and Adults services, the Care Act 2014 places a duty on Local Authorities to conduct transition assessments for children, children’s carers and young carers where there is a likely need for care and support after the child in question turns 18, and a transition assessment would be of ‘significant benefit’.

There should be no gap in services – children’s services continue, in legal terms, unless or until adults’ services are ready to take over, in terms of a person’s legal rights. Para 16.68 of the Care and Support Guidance says, if adult care and support is not in place on a young person’s 18th birthday, and they have been receiving children’s services (and should be receiving adult services), a council must continue providing the existing services until the adult services are in place, so there is no gap in provision.

Supported Living

“Supported living” is not a service that is listed as something that a council can even try to provide: it can procure care and support and accommodation, but when engaged in stimulating the market for supported living, councils largely procure the care and support element, merely to go into the accommodation where the person is living, usually under a tenancy.

It is often commissioned on a different basis to home care, (by the week and a generalised set of outcomes, as opposed to by the minute or by the task) so as to ensure that the person has access to support, for a number of background hours, all the time, from at least one person (shared care). It is a legal mystery that has never been gone into, in any decided case, as to HOW a person is ever assessed as needing a fraction of a person’s support for certain hours of the day, given that there is no such thing as a fraction of a person, or a need that might not pop up at night, and a person cannot be made to share their personal budget without agreement (see s25). It’s an example of how a given market of providers and a given purchasing sector of commissioners manage to support each other to ignore the Care Act in the interests of making or saving money.

Councils are not obliged to FIND a person’s housing, as a social service, in the main, and in fact are prohibited when a local Housing Authority owes a duty, unless exceptionally the specialist nature of the housing and the fact that it is provided and not tenanted is regarded as the only way in which the person’s needs can or will be met. Since the vast majority of not merely destitute but eligible people’s needs for shelter as opposed to care could be met in a care home, as opposed to ordinary housing, and most other people’s needs for shelter can be met by their being supported to enter into a tenancy paid for by housing benefit, there are very few people owed a duty of formal provision of ordinary housing as part and parcel of social services. Therefore, going into a tenancy that the client has been signposted to, along with other people who are already living there, is ultimately a choice, and what is not ever made clear to the clients and the families hoping for a forever home for their loved ones, is the basis on which other rights (to a proper care package, for instance) will be compromised if one says yes.

The LGO does not venture into criticising the way in which the market works in this field but has begun to point out that people MAY WELL qualify for the provision of housing, and not be able properly to be persuaded into taking up tenancies with individual rental payment obligations – particularly in the field of s117 aftercare.

Furthermore, it is not possible for a council to make a person go into any tenancy without the person’s own agreement or the agreement of a lawfully authorised person (unless the council takes on deputyship and acts in ways that are genuinely thought (defensibly and procedurally correctly) to be in the best interests of the person).

The LGO tends to focus on delay in coming clean about the primacy of the Housing Act through which people can be expected to find housing, in the majority of cases, and on inadequate support having been assessed for, in the interim before housing is secured, or withIN supported living housing projects.

Transport

Transport may be required in order to make a care plan’s contents even feasibly accessible. On the other hand, broader transport functions can be owed to a person via education duties, district council powers, tourism functions, children’s services and adults’ prevention and reduction services.

Transport is often seen as a way in which relatives can or even should contribute, by doing the driving, themselves; often regardless of the principle that they have to be willing and not just able!

Finally, the charging regulations treats transport as a non-care service, and allow councils to charge full cost for them, if included in a person’s care plan or budget, and to do so even if that charge takes the person below their minimum income guarantee, thereby complicatedly incentivising a person to spend their own money (usually their mobility component, which would otherwise be invisible!). So it’s a fraught topic for service users, families, advocates and the LGO!

We can see a trend in these reports of Councils being reluctant to provide transport these days at all, unless it’s obviously an exceptional circumstance. It is easy to challenge a decision as a fetter of discretion or an error of law, or irrational, if it renders the care plan incapable of fulfilment. The law states that Local Authorities are required to make transport arrangements they consider “necessary”, rather than exceptional. 

The reports often consider the facilitation of the attendance of young adults at institutions where the local authority has secured the provision of education for the adult concerned. When a council finds it is ‘necessary’ to provide transport for the young adult, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).

If you have access to a Motability vehicle, there is no legal obligation for you to use it, or your family member to use it to convey you to services; but you can expect not to be able to claim DRE for other travel expenses, if that is your or your family’s decision, at least not unless you can show that your expenses exceed your mobility component and the Guidance supports this approach.

One’s keeping a vehicle for no obvious reason or purpose may be reported to the DWP on the basis of non-use, but we know of no examples of that actually happening, as yet.

SEN/EHCPS

Education, Health and Care Plans (EHCPs) are legal documents that describe a child or young person’s combined special educational, health and social care needs. These replace the old SEN statements. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs of a health and social care nature, so that that there is no cliff edge, as such, at the age of 18.

The Ombudsman can investigate a complaint that a council has failed to appropriately address a child’s (SEN). This includes delay in assessing a child and issuing an Education Health and Care Plan (EHCP) and failing to implement an EHCP or carry out an annual review.

The Ombudsman will not investigate a complaint when the issues it raises can be dealt with through an appeal to the First Tier Tribunal (Special Educational Needs and Disability) (SEND). From September 2014 the Special Educational Needs and Disability Regulations 2014 and the Special Educational Needs and Disability 0-25 Code of Practice 2014 came into force.  These introduced new rules for personal budgets, and a requirement for greater involvement of children and young people over the age of 16 in decision making about their provision. They also included the ‘Local Offer’ which requires councils to provide advice and information about the SEN provision in their area. The Ombudsman can look at complaints about all of these elements.

If a child has an EHCP, the council has to work with the school to ensure the child gets the provision set out the plan. The Ombudsman can look at the school’s role in delivering the provision and how the council ensured the school provided the support as set out in the EHCP. If you complain the council is failing to arrange and maintain the specified provision, the LGO can look at this, but can only make findings about the council, not the school.

If the Ombudsman finds fault in how the council has addressed a child’s special educational needs it will consider the effect on the parent and the child. It may suggest a remedy ranging from an apology through to a financial remedy to make up for what the child has missed out on. 

Safeguarding/Harm/DoLS

Councils’ safeguarding duties under the Care Act, apply to an adult who has needs for care and support (whether or not the local authority is meeting any of those needs); is experiencing, or at risk of, abuse or neglect; and as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

Safeguarding is a responsibility, without it being a duty to ensure that nobody is ever harmed by themselves or others; the essence of it is probing, gently, and in a person centred way, to see if all is well, as if one was doing an assessment of need, and sometimes even though one is not being permitted to intervene by the person who is vulnerable and of concern. So it is a function that runs parallel to assessment and care planning, and which sometimes has to be discharged separately.

A council in receipt of a safeguarding referral can’t just ignore it; and neither they come to conclusions without taking the views of the person affected, into account. Councils’ staff need to explain what they’re worried about, and to do that, someone has to go out and engage, to see if the statutory threshold for even initiating any formal enquiry is even arguably met.

There is no threshold of significant harm any longer: a s42 investigation can be a few minutes’ conversation or a full-blown and formal investigation. The only threshold is being a person with care and support needs which make the person unable to protect themselves and being thought to be someone who may be at risk of abuse or neglect – those words themselves, abuse and neglect, being important parameters for consideration. Not all harm signifies ‘neglect’, whereas a pattern of it may well do so; not all negligence is neglect either. And not all upset and aggravation between people connotes ‘abuse’.

Few LGO reports provide compensation for mental or physical HARM, whether or not related to safeguarding or other Care Act complaints – focusing instead on time and trouble, and on distress and inconvenience; however sometimes where the inadequate social work or commissioning has led to harm, the LGO considers it necessary to reflect that fact in an award. This generally happens when a person did not receive the services that were intended to provide for the meeting of need, or, if they received those services, then so badly or so late that obvious avoidable harm resulted.

A deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements” (P v Cheshire West and Chester Council and another and P and Q v Surrey County Council). Once there is, or is likely to be, a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005 or a community DoL order from the High Court, by consent or otherwise. There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.

The LGO has recently started awarding compensation for poor delivery of the DoLS safeguards, especially where the council has misread the ADASS prioritisation guidance.

Restitution

Financial redress is sometimes recommended by the LGO when a person has suffered harm – as compensation for maladministration, rather than damages – when the implementation of a decision about a care plan response has been bad or delayed.

Generally speaking, however, poor social work decision making prior to implementation does not sound in damages, for public policy reasons.

But just recently, a remedy which is well known in the context of CHC status (NHS repayment of self funders’ fees for periods of care when the CCG should have been paying) has emerged as a remedy within the Care Act context too. It’s called Restitution.

The concept of Restitution is based on unjust enrichment on the part of the council in not having had to spend the money that the law required it to allocate. (see CP v NE Lincs, 2019, Court of Appeal, on this site).

These cases generally involve people who have been left without care, or paying privately for care that they should have been receiving from the Council and yet haven’t been getting that, because of some indefensible bit of illegality regarding process or substantive thinking, by the council, over a long period of time – not mere late or non-delivery AFTER a plan has been signed off.

Where an incapacitated person incurs a liability to someone else, even if that person lacks capacity to have agreed to pay for the substitute service needed in the meantime, THAT debt has to be seen as the measure of the reimbursement.

It can also arise in cases where the Council was at fault for removing care, setting arbitrary limits to funding, and delays, amongst other things. 

Provider Fault

When a Council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. A Care Home can be well within its rights to terminate a contract, but only in a way consistent with the terms of that contract. All providers to publicly funded clientele in the social care world owe human rights, directly, to the customers, under the Care Act (as do providers to CCGs for continuing NHS health care, but not under the Care Act; simply through the NHS Act, as delegates of the NHS’s own provision functions).

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’re contracting privately with a provider, and are responsible for sorting out their own issues with less than expected standards of service. 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.

Generally, 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.

Reports make it clear that issues are not always just the fault of the provider. The LGO has found the Council at fault in cases concerning providers who provide inadequate care, where often the care does not match up with the care outlined in a person’s care plan but nobody spots that; or the plan doesn’t match the assessment in the first place; or where the care provider terminates a person’s contract without sufficient notice but the council does nothing about that; or where providers fail to provide an adequate response to concerns or complaints and the council does nothing about that either; or the provider fails to investigate safeguarding concerns sufficiently and the council does nothing about that, despite being responsible for a proper s42 enquiry; or they charge incorrectly, raising issues surrounding contracts between service users and providers, and who is whose customer, at the relevant point in time.

The LGO has been seen to refer care homes to the CQC, recommend compensation in cases that involve harm/potential harm, and often provides recommendations for Councils and providers to improve their practice.

Power of Attorney

When someone makes (grants) a power of attorney, they act with capacity to appoint someone else to act on their behalf within a particular scope of tasks and decision.  A power of attorney gives the attorney the legal authority to deal with third parties such as the local council, and share information related to tasks within the person’s grant of authority. Some types of power of attorney also give the attorney the legal power to make a decision on behalf of someone else such as where they should be taken to live or whether they should see a doctor or accept medication (health and welfare).

When someone has an attorney or deputy managing their finances, that person is the commissioner, the purchaser, the contractor for the care being delivered – unless the attorney has triggered the needy person’s rights under the Care Act to have their needs met, in which case the attorney or deputy is just paying the charges rendered by the council – and then the council is once again the commissioner.

A power of attorney about health and welfare can give someone authority to deal with and refuse consent to things like one’s day-to-day care, your healthcare treatment etc. But it is not a power to demand things that the individual themselves would not be able to enforce.

Once a person has lost their mental capacity, it’s no longer possible to grant a power of attorney; a deputy must be appointed by the Court of Protection.

In relation to both types of decision-making, it is possible to apply to the Court of Protection for a decision to be made on a particular matter, by the Court, or if there is a continuing need they can appoint a deputy instead. So for instance, a tenancy CAN be signed by the attorney for finance, but whether it should or not in light of the overall assets available to the person might be a matter that comes before a Court; the court can order that a document can be signed by an authorised named person, giving substitute consent for the person lacking in capacity. But a deputy is usually needed to continue to ensure that the other tenants’ obligations beyond rent payment, are abided by (for instance, repairing damaged fixtures).

Councils don’t take on powers of attorney for members of the public. They will take on the role of appointee, if they think it’s necessary and not inappropriate, and councils’ officers such as Heads of Service or Client Affairs can be appointed as a deputy (as we see in one of the reports). The LGO highlights that good administration and practice is expected, citing OPG guidance but does not give a view on obvious conflicts of interest arising over charges or failure to checklist for CHC.

Not at fault

Councils are normally found not to be at fault if the LGO finds that the Council demonstrated it considered all the information sufficiently, stuck to its own policies and procedures, and did so in line with what is generally believed to be the current state of the law regarding its statutory duty.

If a decision is so irrational as to have been able to have emerged ONLY through a flawed approach, then even if there is no fault in the process, the LGO will often find fault simply based on the absence of any coherent reasoning. Likewise if an outcome turns on a decision as to the meaning of a word in legislation that is clearly contrary to existing case law on that wording, the LGO will often find that it was not open to the council to reach that opposite conclusion.

The LGO has to decide that there is fault in the way the assessment was carried out, rather than the outcome of the assessment or care planning or review process. Sometimes the Council offers to carry out another assessment; if a Council shows willingness to consider the impact its decisions have had on family members and the affected person, the LGO may be satisfied with the Council’s approach in such cases. These cases highlight that the LGO does not often interfere with day to day decisions so long as the correct procedures are followed.

It should be quite easy to be found not at fault by just being reasonably well informed about the legal framework and following statutory guidance; but it is common that even that is beyond councils, these days.

Mental Health Act

Under the terms of the MHA, a patient who has a mental disorder that is putting themselves or others at a risk of harm, and refuses treatment, may be detained for treatment if certain conditions are met. The majority of our LGO reports refer to s117 aftercare under the MHA, which is a FREE service for those whose liberty has been removed from them under the Act, for aftercare, when they leave hospital. You are entitled to s117 aftercare if you were detained under certain sections of the MHA (reports here refer to s3 detentions in the main). Section 117 aftercare services continue until such time as the NHS body and social services authority both decide a person no longer requires the services by way of aftercare (we think that this means for the purpose set forth in the statute, the avoidance of compulsory re-admission to hospital) and (according to the MHA code of guidance but not to the courts, or the LGO and PHSO, who are more flexible) hold a discharge meeting to which the person and their carer/family member is invited.

A lack of a s117 assessment process at the point of discharge from hospital is always fault, if a person is entitled – the person needs to be assessed and it needs to be explained why they need nothing, if that is the professional view. Outpatient appointments with the CMHT ARE a form of s117 aftercare, and they should not be regarded as just to be stood in line for; there’s a separate duty to ensure provision.

The bulk of these reports refer to failings in regards to s117 funding for accommodation.

Accommodation can generally only be part of section 117 aftercare if:

  • the need is for enhanced specialised accommodation (“accommodation plus”); [accommodation of an overall nature required in order to make the care services feasibly able to achieve the statutory purpose]
  • the “accommodation plus” reduces the risk of the person’s mental condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder. [ie the statutory purpose of aftercare now]
  • When accommodation is part of a person’s section 117 aftercare, it must be free to the person. 

Recent 2019/2020 reports say that Councils and NHS organisations should not advise people to claim benefits such as Housing Benefit to pay for accommodation that is part of their section 117 aftercare.

Housing

Councils’ Housing Authorities must provide free advisory services, assess an applicant’s case and agree a personalised housing plan, make inquiries, take reasonable steps to prevent homelessness, provide interim accommodation and take reasonable steps to secure accommodation (under their prevention and relief duties) and then secure ongoing accommodation (under the main housing duty to people who are homeless). The Localism Act 2011 gave power to local authorities the power to end the main housing duty by arranging an offer of suitable accommodation in the private rented sector.

The Homelessness Code of Guidance for Local Authorities provides statutory guidance on how to interpret and apply the homelessness legislation and contains details of good practice that local authorities should adopt. It is not legally binding but local authorities are required to have regard to it. Failure to have regard to the current Code can be used as a basis for an LGO complaint or judicial review challenge.

Where a local authority is satisfied that an applicant is homeless and eligible, it must take reasonable steps to help the applicant secure that accommodation becomes available for at least six months.

After the relief duty has ended, a council must then secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need.

From the complaints reports we can see the LGO gives weight to the fact that, especially after discharge from hospital, careful consideration should be given to applicants with a mental illness or learning disability who may have a particular need to remain in a specific area, for example to maintain links with health service professionals and/or a reliance on existing informal support networks and community links.

Where a local authority feels that an applicant is refusing to co-operate and that the refusal is ‘deliberate and unreasonable’, it can follow a specific procedure for notifying the applicant. Councils can be seen wrongly to have cancelled interim housing, due to missed or cancelled appointments.

Reports highlight that Councils need to do more than verbally warn a person before ending their duty, they need to clearly tell someone in writing the consequence of not attending appointments.

Hospital discharge

Hospital discharge is now governed by legislation in the Care Act – Schedule 3 and a set of regulations called the Care and Support (Discharge of Hospital Patients) Regulations 2014.  Covid-19 led the government to issue two versions of a new approach to hospital discharge however, March and August 2020.

No NHS professional is in a position to determine whether it is safe for a person to go home unless they know all the circumstances – including a firm idea of the actual budget that the council’s panel or other decision maker has approved of spending, for meeting the assessed needs of the specific person, and what is there waiting for them at home or in the bank account that might affect the shortfall between informally provided care, and social services’ arrangements.

The vast majority of findings of fault in this regard arise from Councils failing to carry out assessments. This may be after a patient is discharged, or maybe before discharge, resulting in a prolonged stay in hospital. This area of maladministration shows how hopeless it is to expect two different organisations with different agendas to integrate or even work in partnership together.

Hospital registrars and clinicians often maintain that someone is not ‘safe’ to go home, but without any idea of what is or is not waiting for them at home, what the environment is like, in terms of risk, or the lowest practicable amount of care that would need to be made available if the council were to do a lawful, rational, transparent, professional assessment of what was needed. Instead, very often, council staff on the hospital discharge team will simply say “We only do three visits a day” or “You can only have £575 a week, because that’s the cost of residential care” regardless of the ability or willingness of a family network to reduce the cost differential if the relative were to be cared for at home, regardless of the Mental Capacity Act, the wishes and feelings of the person in question, and regardless of the duty to promote well-being, specifically including emotional and psychological wellbeing etc. The LGO will focus on those failings, and sometimes refer to them as breaches of the law, or otherwise as fault.

Eligibility findings

One is not eligible, ever, for a service, one is eligible for HELP, and the response to the eligible need is for the care planner to decide about, using their professional competence, and subject to judicial review challenges on the usual grounds.

Eligibility is determined under a set of regulations which provide for three hurdles: the derivation of the difficulties, the number and range of domains of inability to achieve, as defined, and the additional question of impact on wellbeing caused by the difficulties.

The duty to meet eligible needs flows from a finding of eligibility that is subject only to modification

  • if one is not ordinarily resident, in the area, (in which case it becomes a power)
  • one is capacitatedly declining a service, really only after a finalised care plan has been shared
  • or one is over the capital threshold, in need of a care home, not incapacitated, and not having anyone else willing to make the arrangements
  • having informal care ably and willingly available.

The LGO prefers to not to stray onto the sphere of the assessor’s expertise, and continues to consider whether the process in deciding eligibility was reasonable, rather than the findings themselves. Councils are not likely to be found at fault for failing to find people eligible, if the Council followed the proper process.

However, if assessments indicate no change in needs, but the Council removes aspects of support, the LGO is more likely to come to a conclusion that Council acted contrary to guidance on interpreting the eligibility criteria, or the law, and find fault. It is possible for reductions or suspensions of care to happen lawfully, but not easily – it all turns on the reasons. A change in the price for care, or a change in the means for delivering care, would be other reasons a plan could be cut.

On a revision that extends backwards to the point of reconsidering someone’s ability to achieve as defined, a new eligibility decision is required by s13.

The LGO tends to uphold councils’ findings that a person is ineligible in cases where a person has refused to co-operate, or otherwise been unwilling to satisfy a council asking reasonable questions or making reasonable points, in the assessment, about the person’s actual inability to achieve. The test is person-centred and subjectively LED, but the council is the decision maker from an objective assessment on the application of the unable to achieve test – subject always of course to addressing the material offered up by the person claiming to be unable, properly in public law terms.

Failings to assess, reassess, review

This section of complaints covers a wide range of issues.

Reports highlight that people with complex needs are often discharged from hospital without assessment by social services, and that this is rarely from choice.

There are major problems with transition – a transition assessment is required to be undertaken as part of one of the statutory reviews of the EHC plan (Department of Health Statutory Guidance 16.11), unless there’s a very good reason why not.

People’s and Carers’ assessments are a statutory duty under the Care Act – triggered only by the appearance of needs for something or other by way of response, that’s in the nature of looking after a person – doing something for someone that they cannot do themselves.

The LGO highlights that it is not only the law but good practice to involve the person and their family in the assessment process.  The LGO is more likely to find fault if the Council has not even attempted to involve or inform the person or has overlooked rights to be involved or consulted, in the Care Act or the Mental Capacity Act.

With regard to revisions to plans, and especially where support is being reduced or removed or suspended, the LGO considers whether the Council properly re-assessed a person, in terms of what the impact would be of a reduced or differently constituted package of inputs.

A person should be reassessed/reviewed every year (6 months if on direct payments, because the financial probity issue is greater, there). The LGO affords Councils some leeway, but generally states that over a year is an unreasonably long time between reviews, and may be considered as fault. The LGO considers the facts of the case and whether the delay in initial assessment or review was ‘reasonable and acceptable’ because the public law test is how long has it been in light of all relevant circumstances. Failure properly to assess a person does have an impact, in that people may be left with insufficient support, for an indefensible amount of time, and their informal carers unreasonably put upon.

Section 27 of the Care Act makes review, and revision, where it is considered necessary, a statutorily underpinned process, with definite steps and due process rights attached to it. It provides for review from time to time, or as per a schedule, or on the basis of any reasonable request by or on behalf of a service user. A change in circumstances is the trigger to an unscheduled review, and to a proportionate re-assessment if a review has revealed changes perceived to affect the plan. The law is that when a Council claims to have identified a change in someone’s needs, it should be able to articulate on the basis of identified material what it thinks the change is.

Assessments are not assessments for services, but in terms of deficits, they are a good point to be considering the actual amount of support needed, ie how many hours of support, where and for what type. The LGO will only find fault, however, if the Council actually fails to meet the person’s needs at the stage of finalising the budget/care plan.

Disability Related Expenditure

Disability related expenditure is relevant to charging assessments whereby one’s own money, spent privately on things or services that are incurred (on account of one’s disabling illness or condition), and which are ‘needed’, (not merely in the sense of being accepted as ‘eligible’ needs under the Care Act, but things or services which are objectively definitely ‘needed’, and not merely indulged in or just wanted) – is deducted from one’s income count-up, so operating to reduce the remaining net income and thus the maximum charge for care that the council can make.

DRE is only taken off one’s other assessed income if one is in receipt of disability related benefits in the first place, and they are being counted in by the council’s discretionary charging policy in the first place (most do do this now). Some councils have flat rates of DRE which they will allow to be claimed, regardless of proof; amounts over and above that need to be established by reference to average household expenditure for non disabled people, and/or receipts, invoices, payments out, etc.

The LGO reports highlight that the Council’s DRE policy and the Care and Support Statutory Guidance both state that each person should be financially assessed on theirindividual needs and circumstances, because of the general principle of affordability underpinning charging.

There is no exhaustive list of items a council should or should not include as DRE. Councils are found at fault if they fetter their discretion by refusing to consider higher amounts than average spend by non disabled people, for DRE, based on an individual’s needs.

The LGO has noted that councils must take notice of cultural issues such as specific hair care for different ethnicities.

Disabled Facilities Grants

The reports focus on delays in the main, by the Council in making improvements to someone’s home using DFGs. After the making of the application according to local process, the local authority should respond, in writing, within six months of the application date. The local authority is required to provide notice in writing, approving or refusing the grant application as soon as reasonably practicable, and not later than six months after the date of the application. If an application for a disabled facilities grant is refused, the applicant is entitled to a written explanation from the local authority of the reasons why their application has been rejected and may consider challenging the authority’s decision by 

  • use of the local authority’s formal complaints mechanism
  • contacting the local authority’s monitoring officer or the Local Government Ombudsman in order to make a complaint
  • bringing judicial review proceedings.

Disabled Facilities Grants are mandatory after the Housing Authority considers reasonableness, practicability, necessity and appropriateness – and these days, there are other options such as discretionary smaller DFG and loans etc under the Regulatory Reform Order to enable councils often to say that one of these DFGs is not necessary.

The DFG system is now part of the Better Care Fund; a pooled budget seeking to integrate health, social care and, through the DFG, housing services.

Disabled Facilities GRANTS are just that: grants to the person who has applied for one in order to pay a builder for work. There’s a maximum amount and a means test which takes into account more money than the social services charging assessment would do. The DFG means test is based upon a mix of income and savings so that an assessed contribution is based on a combination of the two. The means test looks at your income and savings together with that of your spouse or partner, if you have one. Other members of the household aren’t included. The first £6,000 of household savings are exempted from the means test. 

The Local Authority can place a local land charge on the property for grants between £5k and £15k although these are at the discretion of each local authority. This means that if you move within 10 years, you may need to repay some of the grant.

The money is either to be used to fund a contract for works, which anyone can make and break, and take the consequences of that breach; or they are used by Housing Improvement Agencies.

Applicants are entitled to use their own contractors to quote for the work. You have to get at least 2 quotes for the work and the Council will only pay for the work once they are satisfied it is completed to an adequate standard. When using your own contractor, you are responsible as an employer for ensuring that they have the correct insurances in place. You can also do the work yourself but are only eligible to claim for the cost of materials.

The LGO emphasises that Councils must be satisfied that whatever works carried out, were sufficient. Normally complaints are also teamed with insufficient records or communication.

Councils’ Complaint Procedure

We only have one stand-out report in this category so far, but that is mainly because the only reason a matter goes to the LGO is that a person is dissatisfied with a council’s internal handling OF the complaint in the first place – so very many LGO reports at least touch on how Councils respond to complaints – normally slowly, or they do not respond to all aspects of a complaint. Councils should respond to all complaints, ‘in a timely manner’, and at the very least acknowledge the receipt of a complaint and tell you they are dealing with/considering the issues you have raised. You can make a complaint about the care/services you personally receive or have been affected by, if it’s someone else’s assessment or care plan or service that has fallen below expectations, or you can make a complaint on behalf of someone if they are unable to (due to mental/physical incapacity) or have asked you to.

Carers

Carers struggling with worsening conditions in loved ones and finding their situation very challenging but wanting to continue caring as long as they possibly can, are a common feature of Adult Social Services culture. These LGO reports highlight the key principle that when a council becomes aware that someone is caring for another adult and may have needs for support, it is under a duty to assess their needs, and review them as per the Guidance, ie at the very least, on an annual basis. It must consider the outcomes the carer wants to achieve, and look some way into the future, and how their needs might change in future. It must assess the carer in a timely manner, and, if it decides the carer has support needs, it must set out how it will meet those needs.

There are no cases on how one should assess the sufficiency of a budget for support, given that any carer can just respond to an inadequate one by stopping the care.

The LGO reports also flag up the assumptions made about carers’ willingness or ability to step up and just meet whatever needs the budget can’t cover, and that is unlawful, in the light of the relevance of the carer’s own position to the service user’s needs, in the first place, and the case law on the subject, which emphasises an objective view of a person’s ability to struggle on, even if they appear not unwilling to keep on trying (Ali Raja v Redbridge 2020).

Care Leavers

The law and government guidance set out councils’ legal duties to provide ongoing support for children leaving care. Councils have a responsibility to plan continuing support for all care leavers. This duty continues until they reach age 21. If the Council is helping them with education and training, that specific duty continues until age 25 or to the end of the agreed training. The report we have under this section concerns whether or not PhD studies were to be included on a pathway plan. The LGO considered that the Council should have helped with preparations and assess whether it should provide support beyond the complainant’s masters’ degree, as part of the Leaving Care responsibility.

Advocacy

These reports generally focus on where the Council has failed to appoint a person an advocate, or when they have failed to sufficiently involve a person’s advocate in it process.

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 when triggered, regardless of available resources (Haringey 2015) and must be provided in certain situations – and then provides for exceptions (where one has someone willing to do it informally and the person with substantial difficulties consents to that happening); and exceptions to that exception (for instance where the informal supporter, whilst not being inappropriate or unwilling, is in material disagreement with the council on an issue to do with the person needing the support.)

The Council must arrange an independent advocate to facilitate the involvement of the person in their assessment, in the preparation of their care and support plan and in the revision of their care if that person will have substantial difficulty in being fully involved in these processes and if there is no other appropriate individual available to support the person.

The Advocacy No. 2 regulations and guidance set out the role of the advocate and this includes assisting a person to challenge a process or decision by the Council where they are unable to challenge it without assistance, by way of an advocate’s report.

Direct Payments

The most prevalent issues arising from the virtual right to have one’s budget turned into a cash payment (direct payment) involve; the adequacy of the rate, the setting of arbitrary limits, delaying/incorrectly backdating payments, or delaying the approval of DPs and decisions about having one’s close relative in the same household actually getting paid for the work.

In terms of assessing the appropriateness of a Direct Payment and setting one up in a given situation, there are no set guidelines for how long this should take. The LGO considers it reasonable to expect services to complete a non-urgent application in 12 weeks.

As long as there are sufficient records and evidence, the LGO will sometimes be willing to go through exact care costs and time scales, and work out exactly how much of your DPs should be backdated and paid to you if the Council failed to do the calculation correctly in the first place.

The LGO reports emphasise that a Council cannot withdraw your DPs without a revision process, because the law is that any change to a care plan can only be done after compliance with s27 of the Care Act.

Delay

These reports touch on many areas: delays in care assessments, financial assessment, reviews, replying to complaints, implementing care, backdating payments, carers assessments… the list goes on. There are some extreme cases where people have been left un-assessed or unprovided for, for years. Delay arises because in public law terms, even mandatory duties are not immediately obliged to be discharged: they must all be discharged within a reasonable time, unless there is some other mandatory requirement in regulations, directions, policy guidance or Codes. The LGO will consider how reasonable or unreasonable/ how much injustice was caused by the delay. It considers how the delay impacts the persons wellbeing and outcomes, and whether it could have caused a person harm or merely distress and aggravation.

Charging

This section encompasses all issues surrounding councils’ charging policies: financial assessments, how a person’s contribution costs are calculated, valuation of assets, incorrectly charging someone care costs for things that have to be free, such as reablement, incorrectly backdating net payments of DPs, etc.

The LGO is willing to find a Council at fault, when its own local charging policy lacks clarity. Generally, care charges should be clearly explained to the person and their family/representative. They should also be given notice of upcoming charges in a timely manner, ie not receive an invoice out of the blue.

The LGO reports emphasise that a local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis but may vary according to individual circumstances, and it’s something that very few authorities do: they uprate a person’s income figures, according to benefits, but don’t seek to be told what the person has had to spend that year to survive. Thus people often have their real situations overlooked, which although a council does not have to allow for anyone’s debts or choices as to how to spend their money, does flaw any claim to be exercising discretion based on the facts of the individuals’ case, and does make a mockery of ‘affordability’ being the supposed bottom line.

Care plans and cuts

One of the largest categories in our collection of reports: a popular problem in the category is when a Council reduces a person’s care package without review or a revision process, or reduces it without justification and against the weight of the evidence on impact. The LGO always states that this is fault on the part of the council. It results in unmet needs, which causes injustice to the person.

Before anything in your care plan is changed, you must have some form of proportionate reassessment even if it is done alongside the review that identifies that something HAS changed.

Again, the LGO will highlight that it is the process followed during/after the assessment which will lead to a finding that the Council is at fault, rather than the outcome, necessarily. Poor communication between Councils and families will often lead to confusion and delay, resulting in needs being unmet, insufficient support, or financial burdens. Issues also arise when the person is not sufficiently involved in the assessment process. The LGO will usually recommend a subsequent assessment take place to clear up any ambiguities or shortcomings. Clarity is key. The LGO follows the law in this regard: the CP v NE Lincs case in 2018 held that the care plan must be transparent and robust, stating a personal budget pursuant to s26 that is rationally justifiable, and that the plan must clearly identify those parts of the eligible needs which the council believes the family or informal network or the person themselves is willing to shoulder.

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AG [2015] EWCOP 78

The facts

DG appealed a decision made in the Court of Protection regarding her daughter, AG.

AG was a young woman who had a learning disability, autistic spectrum disorder and had suffered from depression. She lived partly with her mother, and partly in her own property.

There were numerous reports and allegations about tensions between DG and AG, which resulted in a safeguarding investigation. This ended with an ‘inconclusive’ determination, but resulted in AG returning to her own property with 24 hour care put in place by the Local Authority.

A few months later, further allegations and counter-allegations were between AG, DG and the care home, that AG was being physically and emotionally abused by DG, that Local Authority care staff were providing inadequate care to AG, that DG was mismanaging AG’s medication and that DG and AG had verbally abused and assaulted care workers. 

The Local Authority applied to the CoP where Judge Rogers made orders that AG lacked capacity to litigate or make decisions about her residence and care, and that it was in her best interests to live at the accommodation identified in the Local Authority care plan (supported living accommodation).  He also stated that it was in AG’s best interests to have contact with DG in accordance the Local Authority’s contact plan (supervised).

DG appealed the decision on four grounds. The major thrust of her argument was that Judge Rogers failed to make findings of fact in relation to the allegations that had triggered the proceedings.

What was found

The appeal was dismissed.

Sir James Munby, President of the CoP, set out five reasons for why he dismissed DG’s main ground for appeal.

1. There is no requirement to establish any ‘threshold’ of wrongdoing in proceedings relating to an adult.  (Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam))

Sir James Munby went on to endorse Wall J’s analysis:

“the absence of any threshold criteria equivalent to those contained in section 31 of the Children Act 1989, “raises the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues.” His answer was as follows (paras 18, 21):

“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.

Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”

2. Judge Rogers had carefully and accurately weighed the legal consequences of not having a fact-finding enquiry.

Judge Rogers stated, “I bear in mind, however, that those allegations … are strongly denied by DG and, applying a normal approach to the forensic fact finding enquiry, in the absence of the specific findings. I do not hold them in the background, as it were, by way of a suspicion lurking over DG.”

3. The factual context had progressed since proceedings were issued and the Judge was concerned with “future planning”;

Sir James Munby stated that “although the proceedings had been issued against the background of the safeguarding concerns arising out of the various allegations, matters had progressed and the court was faced with a different landscape. Judge Rogers correctly recognised that he was looking at the present position and looking to the future. Given how matters then stood, the degree of enquiry undertaken by Judge Rogers was … entirely sufficient to inform the decisions in respect of future planning for AG that the court was tasked with making. A lengthy and costly finding of fact hearing would have been entirely disproportionate.”

4. There was no suggestion that the independent social worker’s analysis had been adversely influenced by the allegations;

5. DG had not sought to challenge the decision not to hold a fact-finding at earlier hearings, so it was too late.

This case underlines that Safeguarding processes (whatever stage of a quick enquiry, a pre-enquiry conversation or a full blown independent investigator forensic exercise might have been thought appropriate) need not get hung up over the making of ‘findings’ if the person in charge of it keeps in mind that not even the Court will find it necessary to do so in most cases.

The essence of safeguarding, at least where the solution will be found in a change to a public body’s care plan (rather than the suspension, disciplining or professional regulation of a person, or criminal proceedings) is that the commissioning council or CCG doing the paying for the care, IS the decision maker as to what happens next. That legal authority is subject only to the law of mental capacity and public law principles about the adequacy of teh care package in light of all relevant considerations, regarding the Care Act or the framework for CHC. So the hundreds of families who see a decision to start proceedings in the Court of Protection in which they are the defendant, as a personal slight to them, and their care, could perhaps be less anxious and better off understanding that the Administrative Court offers them and their loved ones the means to attack inadequacies in the care plan or the budget at a much earlier point, before things become entrenched and soured by everyone taking offence or gossiping behind the scenes about alleged ‘perpetrators’.

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

The full report can be found here:

https://www.bailii.org/cgibin/format.cgi?doc=/ew/cases/EWCOP/2015/78.html&query=(tenancy)+AND+(%22Mental+Capacity+Act%22)

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