Author Archive for Gabe Susman

Thanks so much for your frank reply

“Thanks so much for your frank reply. You are quite right that I could well have an axe to grind. I feel that I am keeping my sister’s best interests at heart and her husband is not; he has his own agenda – but how are you to know that, just because I say that’s how it is? I do appreciate how straight you are. It is all very sad. Of course I will make a donation. Your advice is great.”

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Care home at fault for terminating residence without notice, and charging incorrectly, the ombudsman finds.

Country Court Care Homes did not provide the seven day notice period stated within its own contract with the resident, which prevented an independent assessment of the resident and caused the resident to have to move to another care home at short notice, causing distress.

Facts

A gentleman who had lived at Neale Court for over a year and who had, as Neale Court agree, become a member of its family, was summarily discharged from the home when he was in hospital, on the footing that his needs were no longer able to be met. The resident later died, ending his days in another care home, and his brother in law who administered his finances made a complaint.

The care home contract stated that in the event that the care home was no longer able to provide the level of care needed by the resident, it had the right to terminate the agreement with seven days’ written notice.

However, prior to taking this decision the care home undertook only a very ‘minimal’ assessment of the resident in hospital.

On 5 September 2017, a senior staff member from Home P attended the hospital to assess the patient/resident.

On 8 September 2017, it informed the brother in law the resident could not return to Neale Court. 

The home said it contacted the hospital to say it would not be accepting the resident back to its care. The hospital said it found out through the resident’s sister on 9 September 2017. The hospital said it called Home P to inform it that the patient had not had a nephrostomy tube fitted, as had been assumed by the assessing care worker based on a leaflet at the end of his bed.

However, Home P maintained that it still could not meet the resident’s needs.

During a previous hospital admission, a healthcare checklist had been completed. The view of ward staff had been that the scores were overly high and there was no evidence in the notes to support an application for funded nursing care. The hospital said it informed Home P of this at the time and Home P was willing, then, to accept the gentleman back into its care.

The brother in law said he emailed Home P on 10 September 2017 to say his wife had spoken to staff at the hospital, who said her brother had not undergone surgery and his care needs were just the same as the previous time he had been discharged from hospital. 

The home denied the hospital told it that the resident did not have a nephrostomy tube but maintained that in any case, it was not the only reason it felt it was unable to meet the resident’s needs.

The gentleman was very distressed that he was not able to return to Home P, where he had made many friends and had made his home.

The brother in law challenged the home’s opinion. He researched the medical issues that Home P said the resident was facing, and, in summary, presented the case that there was nothing so severe that would require nursing care.

The brother in law said he was told to clear his relative’s room. The Home say that he was told there was ‘no immediate rush’. It accepts it said the room would be continued to be charged until it was cleared.

The resident was then assessed by two other residential homes. Both offered him a place, with the view that he did not need nursing care. He was discharged from the hospital into a residential home on 28 September 2017.

Findings

The ombudsman felt the home was honest in its assessment that the man’s needs could no longer be met, even if it was mistaken. It was not unreasonable for Home P to have concerns about its ability to manage his care. It was within its rights to determine that it could no longer meet the needs of the resident.

However, the assessment notes take by Home P were not comprehensive. It appears to have completed a very minimal assessment of the resident in hospital and his condition. In complaint correspondence with the Ombudsman Home P had said that a care worker’s notes about leaflets placed at the end of his bed about how to recover from surgery led it to think the man had undergone surgery. The ombudsmen said that a more thorough investigation of his condition than this should have been made.

The care home did not give him the seven days’ written notice outlined in its contract before ending his residential licence.

Initially the home said that the part of the contract that referred to the possibility of getting an independent assessor was in relation to an increase in fees. It indicated it was not relevant to this case as there was no fee increase, but a discharge.

The LGO did not consider the contract was clear on this point but in any event, the home gave other unsatisfactory reasons why it did not suggest getting an independent assessment. It said it was only told of the resident’s brother in law’s disagreement with its assessment, after discharge had been finalised.

The home thus prevented an independent assessment being undertaken (provision for which was made within the home’s own contract) and thus blocked the opportunity of challenging the home’s assessment and getting a review of the decision made, before the contract and residential licence ended, which was important, even if the care home had gone on and upheld its original decision.

With regard to fees and whether the invoice was correct, it was not clear whether the man was a patient in hospital for over six weeks. He was contractually required to pay the full fee for the first six weeks. For any remaining time he would have only to pay 85 per cent of the full fee.

Incorrect fees were charged as the correct amount was less than the invoiced amount. This could have been a simple miscalculation. However the home also delayed in notifying the resident of his discharge from the home, which the ombudsman thought should have led to a reduction of the invoice by the three day delay. If he was in hospital for more than 6 weeks, the 15% reduction would also have had to have been factored in.

With regard to the end of contract wear and tear charge, the contract advised that at termination of a stay where the resident had stayed in a room for over six months, the care home may charge a fee of up to £495 as a contribution towards the total costs of restoring a room following any ‘excessive wear and tear’, payable in the final statement of account – a ‘dilapidation charge’. In this case, the home added a fee of £250 as an end of contract charge for ‘dilapidation’.

The ombudsman decided this fee could not be a ‘dilapidation charge’ because there was no evidence that the resident had created ‘excessive wear and tear’, and no justification for the charge given by the care home, who added the fee on after the final statement of account was already issued. Eventually the home removed this charge. The LGO and the complainant both took the view that the charge was removed because there was no evidence it was justifiable or any explanation available as to why it had been charged. That the fee had been added in the first place was found to be inappropriate and considered arbitrary, by the ombudsman.

With regard to complaint handling, the home had not bothered with the brother in law’s complaints because the resident had moved to another care home and it saw no point in spending the time on such matters. The LGO determined that dealing with complaints is not just about resolving immediate mistakes but about learning from complaints. The home’s inaction showed a lack of resolve to learn from complaints made about its practice.

Discussion

Residents who are have fees paid or partially paid for by a local authority would be protected by the local authority’s contract which would usually take precedence over any other contract issued by a care home. However if the local authority is not involved in the funding arrangement, for example if the resident is paying the care home fees privately as a ‘self-funder’, then the local authority will have no contractual involvement, as was the case here.

Thus the care home’s own contract would apply. In this case the care homes contract was found to contain a clause regarding financial charges for wear and tear of the resident’s room, which the home decided to apply after the final invoice and without flagging up any evidence of any such excessive wear and tear occurring. This could be considered an unfair term, and certainly the ombudsman found fault with the care home for apparently applying an arbitrary charge, along with other incorrectly calculated fees.

Additionally even plainly fair terms in this case were not applied fairly, as the contractual notice period was not applied.

Confusing or unfair care provider contracts are not new issues. Consumer organisation ‘Which?’ previously investigated care home contracts and highlighted unfair terms and an unwillingness to prove sample contracts. The Competition and Markets Authority (CMA) then also investigated care homes in 2017, concerned about potential breaches of consumer law in their practices and contracts. Following a consultation in 2018 the CMA launched its consumer law advice for care homes, explaining what they need to do to ensure they are treating residents fairly including contractual terms and complaints procedures. In addition a short guide to consumer rights for residents and their families was also created (links below).

Considerations for Professionals within the provider sector

  • How do you ensure that you are contracting with a capacitated person? Do you check whether the person signing the contract is lawfully entitled as the agent of the resident (ie has finance LPA or deputyship, or informal agency through the as yet capacitated resident’s request)? Do you check to see if the person signing means to be signing in their own right, for themselves, to be liable?
  • How fair are your contractual terms in contracts with individuals?
  • What about those terms detailing reviews and fees increases, and whether there is a need for acceptance? What if a provider does not receive acceptance but the resident does not move out? Is a debt consisting of the notified increase recoverable in that situation as would be the case in a private school’s contract? Is the provider entitled to treat absence of acceptance as the giving of notice?
  • How confident are you that your actual practice is in line with the contractual terms?
  • Are your invoices easy to check, for clients or their proxies to be sure of accurate invoicing?

Questions for Clients / Service Users

  • Are you clear of the meaning of the contractual terms of your residential licenses for privately contracted stays?
  • Are the contractual terms fair?
  • What about those regarding increases? Do they fit with the CMA’s view as to what is fair or unfair? Do the price increase clauses provide for acceptance of the variation, or deem it from silence, and what is the consequence of silence, if the resident then dies after several months of invoices at the higher fee? Does omission to accept count as the giving of notice? The provider may be entitled to give notice if its request for an increase is not met, as with a private school increasing its fees.
  • Is the care provider’s invoice sufficiently detailed and easy to check?

Date: 7th August 2019

For advice and support please contact: advice@cascaidr.org.uk

The CMA guidance ‘Care Homes: consumer rights for residents and their families’ can be found at: https://www.gov.uk/government/publications/care-homes-short-guide-to-consumer-rights-for-residents

Here is an excerpt:

Terms and conditions

If you’re paying for your own care, there will be a contract between you and the care home. The terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that you can easily understand your rights and responsibilities.

Terms must be written and agreed with you in a fair and open way.

If a term in a contract is unfair, it will not be valid and the care home cannot hold you to it. Unfair terms include those which put you, or the person who signs the contract on your behalf, at an unfair disadvantage (for example, because they give the care home more rights than you).

Terms which may be unfair include those that:

  • hold you to ‘hidden’ terms that you have not had the chance to read and understand
  • do not hold the care home responsible if things go wrong and it is their fault.
  • require fees to continue to be paid for extended periods after a resident has died
  • allow the care home to make unexpected changes to your fees
  • require any upfront payments, unless it is a fair deposit or an advance payment of the regular residential fees

The full Local Government Ombudsman report can be found at

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/17-015-611

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Secretary of State for Work and Pensions v MM (Scotland) [2019]

This case concerned the application of one of the criteria for Personal Independence Payment: ‘Engaging with other people face to face’, a type of need that occurs most commonly amongst those with mental health needs and/or neurodevelopmental conditions (such as Autism).

The two central issues were:

(1) What “social support” means and how it differs from “prompting”

(2) Whether “social support” only covers help given during an interaction or whether help given in advance is also relevant.

The criterion is represented below.

Activity 9: Engaging with other people face to face

Descriptor 9b: Needs prompting to be able to engage with other people (2 points)

Descriptor 9c: Needs social support to be able to engage with other people (4 points)

The Decision of the Court

It is inherent to the structure of PIP that, broadly speaking, each descriptor reflects a greater degree of disability than the previous descriptor.

The Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”) Schedule 1 defines ‘social support’ as:

“support from a person trained or experienced in assisting people to engage in social situations

It was the training or experience required by the supporter rather than the nature of the support itself which differentiated ‘prompting’ in 9b from ‘social support’ in 9c. A need for support from any person (including a friend or family member) could qualify as ‘social support’, but only where it was necessary (rather than merely desirable) for the support to be provided by a person with relevant training or experience (rather than merely any person with whom the claimant was familiar or had a positive relationship) could it count for 9c purposes [paras. 33-35]. Thus the

“twin requirements of necessity and relevant training or experience” [para. 34]

differentiated between “social support” and “prompting”, even though

“the nature of the support provided might not differ between 9b and 9c” [para. 35].

(2) Lady Black dismissed the Secretary of State’s argument that only a need for support to be provided face to face during the engagement itself could satisfy a relevant descriptor. In her view, such a narrow construction of ‘support’ would

“stand in the way of other means of support which work for the particular claimant, and would also be likely to impede attempts to improve the claimant’s abilities to handle matters without support at all, or with diminished support.”

[para. 41]

She also pointed to the wide range of types of interaction included and identified that the physical presence of a supporter may be inappropriate and/or counter-productive in such sensitive situations as a medical examination or romantic encounter.

It was fundamental to the requirements for PIP eligibility that the claimant’s condition must be relatively long-term or permanent (lasting at least 12 months) and that each specific need must be present at least 50% of the time. The need itself must, therefore, be a continuing need (rather than a past need from which the claimant has recovered or is improving), however:

“There is nothing in the wording of descriptor 9c, or the definition of “social support”, to require actual presence of the supporter during the engagement, nor yet to require that the support is timed to coincide with the engagement, rather than being provided in advance, or indeed afterwards.” [para.43]

Comment

Lady Black resisted the temptation to specify in more detail the types, nature, timing or duration of support which would or would not be sufficient to meet a descriptor and decided that reading in a need for a temporal or causal link between the support and the engagement was incorrect. ‘Need’ was not a relative term. If only trained or experienced help would be sufficient for the claimant to be able to engage with other people face to face, then they would satisfy 9(c) “social support”. If any familiar, well-meaning but inexperienced support would do, then they would not (although 9(b) might still be satisfied). She concluded:

“Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe, in the abstract, which other forms of support will be sufficient. It will be a question of fact and degree, and is something that will have to be worked out on a case by case basis, by those with expertise in making assessments and decisions in relation to claims, keeping the wording of the provision firmly in mind.” [para. 46]

In practice, of course, short of their case being considered in detail by the Supreme Court, most claimants will have to take their chances as to the expertise and knowledge of the wording of the provision of the particular assessor and decision-maker assigned their claim. Nevertheless, this judgement should be of assistance (at least at FTT level) in clarifying that the support is needed by many individuals with relevant needs where it has perhaps been denied before.

Although this case originated in Scotland, this criterion is exactly the same in England.

Full text at: https://www.supremecourt.uk/cases/docs/uksc-2017-0215-judgment.pdf

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it made all the difference to have someone who was prepared to listen to us

“When we sent the letter that CASCAIDr had put together, we did get a response from the Council. It helped to show them that the points we were making about R were valid, and made a case for R to attend the education trust for an additional two days. The council is now funding two days and R is funding a third. His day care place elsewhere on a Friday is also funded now. This arrangement is likely to continue until he is at least 25. It would have been highly detrimental for him to be left unoccupied for most of the week as had been the case for most of last year. This put his progress back for a time that he is only now regaining. He now enjoys living at his supported living for the most part – he has a friend there who looks out for him. Thank both of you for helping with the letter that seems to have had a positive effect for R. I enjoyed my conversations with your caseworker and it made all the difference to have someone who was prepared to listen to us after the negativity we’d had from Social Services.”

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I trust your knowledge and all this would not have been possible without your precious input

“[After support with an LGO complaint about charging and disability related expenditure] Here is the wonderful result so far. It is still in draft and the final decision  by Ombudsman will be published soon, but I could not wait to share the news with you. I trust your knowledge and all this would not have been possible without your precious input. I would like  you to make it public through your charity  It is important for other parents to understand the technicality of the deductions due to DRE: so important and so hidden away, that most parents I talked to did not even know the existence of this possibility to reduce the contribution to the Council.”

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

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

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

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

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

The Council has no record of:

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

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

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

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

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

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

Legal points

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

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

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

Compensation was recommended of £100.

Full Local Government Ombudsman’s report can be found at

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

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There will certainly be a ripple effect across Social Work teams following the course

“A small win (but with big individual impact) was when a Social Worker delegate decided not to close a case, which was what was going to happen before the course! The Social Worker has said that there is much more to explore and nuances that need to be considered – I think they meant fluctuating needs. There will certainly be a ripple effect across Social Work teams following the course. I think this will lead to more effective ways of assessing and detailed rationales around decision-making.”

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We are eternally grateful for the knowledge that you have so eloquently imparted

“What you deliver has a real impact on systems change (cultural change) – a difficult metric to measure sometimes. This also means it will have a direct impact on people’s lives (service users and professionals). It truly was an awesome three days of learning.  As a city, we are eternally grateful for the knowledge that you have so eloquently imparted”

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Thanks for empowering us both

“This is the time to get things sorted once and for all. I now feel I have the confidence and knowledge to discuss J’s rights with social care.  Thanks for empowering us both.”

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I’m so grateful for your response it really does help to be put in the picture from a legal point of view.

“I’m so grateful for your response it really does help to be put in the picture from a legal point of view. 

I absolutely see myself as fighting not just for myself but for other people that are struggling to make ends meet and not have this life destroy them physically and mentally.”

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