Archive for Local Government Ombudsmen’s Reports

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

Please share:
error

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

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

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

What Happened

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

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

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

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

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

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

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

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

Key Issues

The Council was found to be at fault because:

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

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

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

Discussion

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

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

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

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

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

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

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

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

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

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

And here:

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

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

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

Considerations for Professionals in health and social care public bodies

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

Questions for Clients / Service Users

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

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

The full Local Government Ombudsman report can be found at

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

Please share:
error

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Please share:
error

A considered riposte to the question posed by Peter Feldon “If unmet need is so rife, why are there so few complaints about it?”

Having taken some time off from managing the flood of referrals received weekly about dodgy practice in adults’ social work, to read Mr Feldon’s article, in Community Care, my jaw dropped.

It doesn’t feel as if nobody’s complaining, HERE!

However, on a more careful reading, it may just be that it’d been inappropriately edited with a title that didn’t QUITE fit the content.

Whatever the reason, though, I have some suggestions to make as to why there might well be fewer complaints than one would expect, given the current national outpouring about unmet need, the further delay to the Green Paper and examples everywhere of the funding crisis, now highlighted by Panorama’s 2 part TV documentary.

Mr Feldon cites the slew of articles and sources, referencing massive unmet need, and then says this:

            “Yet, very few people actually complain about decisions not to meet their needs where these do not meet the eligibility criteria.”

Unmet needs that do not meet the eligibility criteria are not needs that there’s a duty to meet anyway – they are a social problem, not a legal problem, and that’s always been the law. And it’s quite hard to assess someone as INeligible, if one is doing assessment properly, these days (and not just using a 3 conversations model!) – because the criteria are based in law and not mere Guidance, and the Guidance exhorts councils to read the criteria in an expansive and inclusive way.

However, for most people, the devil lies in the detail of the care plan; Mr Feldon went on to say this:

“However, there are a significant number of people who complain about their needs being under-met; this occurs when a person – judged to meet the eligibility criteria – believes their personal budget is insufficient to meet their needs.”

He cites 315 complaints made to the LGSCO where the investigation appeared in the ombudsman’s category of assessment and care planning. The yearly figures have gone down a bit from that level, since 2016, but say approximately 300 a year, in that category. There was ONE example out of 23 cases actually mentioning “unmet need”, where the decision was overturned regarding ineligibility of need. In the other cases, “The most frequent reason for needs being unmet was as a result of delays, most commonly in assessment/reassessment or putting in place elements of the care and support plan.” Delay in and of itself is usually explained in reasonable terms, and is not usually what lawyers would call unconscionable, but just unfortunate. Mr Feldon did not say whether these complaints had been successful or not but it would not be surprising if the LGSCO tended to give councils the benefit of the doubt in most cases of delay.

However, Mr Feldon went on to say –

There were nearly 300 upheld complaints in this three-year period that include reference to personal budgets and, of these, one of the main complaints was about reductions in the personal budget, resulting in some of the individual’s eligible needs not being met or being under-met.”

To my mind, that is one third of all social care complaints about assessment and care planning over three years, where the complaint was upheld that some eligible needs had not been met.

That is surely not a small proportion or a small tally, on any footing.

The case law says (and always has said) that unmet eligible need is unlawful. The LGSCO’s remit, however, is maladministration (now called ‘fault’), not legality.

Moreover, if something is alleged to be positively unlawful, the LGSCO may refuse jurisdiction altogether and refer the complainant to the court system – although the possibility of using legal proceedings is not conventionally regarded as feasible by the LGSCO for most people, in terms of financing them, or the relationship of dependency that may be affected for the worse.

So – our reasoning is that if the LGSCO regularly said that council conduct was in ‘breach’ of the Care Act, or ‘unlawful’, the LGSCO would be criticised for usurping the role of the courts, undermining the protections for councils (ie the need for formal permission for judicial review proceedings from the Administrative Court; the three month time limit; and the practical hurdle presented by the qualification requirements for legal aid funding) that are legitimately and lawfully enjoyed by social care departments.

These days the LGSCO reports use the euphemism ‘not in line with the Care Act’ – see for example the most recent successful complaint against Barking and Dagenham, where a catalogue of incompetence is set out, for all to wince at, because the behaviour regarding top-ups is so widespread.

Secondly, the LGSCO can’t proceed with a complaint without being satisfied that the complainant has given a chance to the council to resolve the matter. The ombudsman has conventionally expected a complaint to be made via the formal social services complaints service, but this is not what the law actually says.

Rather, the law requires that the matter has been brought to the attention of the council with an opportunity to investigate and respond, and there is another way of achieving this, which is using the Monitoring Officer remedy.

We mention this because Mr Feldon’s article does not explore how many first level complaints or referrals to the Monitoring Officer about unmet need may have been successful in the same period.

CASCAIDr has been using the MO remedy for over a year now – so all those cases should be added to the tally as well, where councils have shifted their position and seen the error of their ways – the ILLEGAL error of their ways.

In order to work out whether unmet need is defensible in a given case, or not, one needs to be well enough informed to be able to pinpoint the bit of the Care Act where the council has maybe gone wrong, in legal terms.

It’s not hard to do that, if you know how public law works (the law regulating the behaviour of public bodies). One simply needs to have recourse to the wording of the Care Act and Regulations to sort out the things that a council is legally OBLIGED to do from the things that the council MAY or should do – the latter are powers, and not obligations. It is by having done that exercise that CASCAIDr has produced a Care Act questionnaire with section numbers and case law included, for our own caseworkers to go through, with our clients. It provides a framework for the sort of probing of the facts, and the contents of the letter that must then be written, if one is going to access either the management review that one is entitled to expect in the case of a disputed care package or budget, (see para 10.86 of the guidance recommending this process and REASONS being stated, before a person should even be asked to complain) or the Monitoring Officer’s attention (no mention of that governance officer’s duty is even made in the Guidance!).

Whatever one thinks of the editing, however, there’s a problem in the content of Mr Feldon’s commentary, itself, in our view:  

“It is understandable that addressing unmet need per se is not at the forefront of complaints because there is no statutory definition of the term. In fact, there is no reference at all to individual unmet need in the Care Act and the accompanying Guidance. The legislation recognises that individuals will have care and support needs that are not eligible, which local authorities will mostly not meet, and these are described as ‘non-eligible needs’. There is a duty to explain the decision not to meet needs and provide information and advice to individuals to assist them in preventing, reducing and delaying needs that have been determined as non-eligible, and this must be done in writing. But there is no obligation to determine or record whether non-eligible needs are met or unmet.”

We have to disagree with Mr Feldon as to that analysis of the legal framework.

In public law terms, the requirement of identification of any needs for care and support, and then of the needs which are Care Act eligible needs, and then of the eligible needs that are going to be met by the council – means that any eligible needs that are NOT intended to be met will all be able to be derived from the process laid down in the statute by a process of elimination. If there is a good reason for not meeting eligible needs, then that is not unlawful, but if there is no such justification, its existence is unlawful. Simple, really, we think.

Here are some obviously valid legal reasons for not meeting eligible unmet need:

  • It is someone else’s duty although two agencies are empowered to provide the same sort of service. Eg health inputs when the person’s eligible needs are in fact enough to amount to the CHC construct of ‘primary health need’; housing needs when the person’s need for accommodation is not essentially associated with the practicability of delivering the care and support that is needed; education needs when the person needs the education in order to fulfil educational potential and not merely to access it as an aspect of wellbeing;
  • It is someone else’s choice to meet the need: eg an agency that is not bound to do so, but is willing – such as a CCG willing to make a health contribution to the council in recognition of needs at night being objectively health-related, or its funded input representing health-related deterioration prevention, or something like that;
  • Or, alternatively, the clear, capacitated choice, and most usually, the choice of a willing and able informal carer, or someone who wishes to contribute funding to meet the need, such as a charity, the ILF (when it existed) or the person themselves, or their finance deputy if they lack capacity. Anyone can of course, choose, still, to spend their own money or benefits on meeting their own needs, and may well appreciate that they or their loved one will get a whole lot more choice and control, if they do so;
  • The fact that the person is not ordinarily resident in the area;
  • The fact that the person has needs for a placement in a residential or nursing home and is above the financial threshold and not also lacking in mental capacity to contract for themselves (or if capacity is lacking, that person has nobody lawfully authorised and / or willing to arrange the necessary care for that person, in their own or anyone else’s contractual name).
  • The fact that the person in question, having heard what they might be able to be provided with, says ‘Thanks, but er, no thanks’.

That legal analysis is derived from the fact that s13 of the Act says this must be done, after an eligibility decision is taken: 

(1) Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2) Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

(3) Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority’s area.

This has been the law since 1995, when the 1990 legislation was first interpreted in the Gloucestershire case to turn on the council sector’s judgment as to

  • what sort of situation necessitated (under the CSDPA 1970) or ‘called for’ (under the 1990 Act) any council to meet needs determined to be eligible;
  • what constituted a rational and lawful approach to the concept of eligibility
  • what constituted a lawful approach to allowing resources difficulties to move the line (when councils could themselves MOVE that line, locally),
  • how MUCH of a service to provide to meet needs – a decision that must be based on a competent lawful judgement in the first place, not driven by a departmental limited budget.

This sort of writing was available then to anyone with the internet: (I know because I wrote it!)

“In Gloucestershire, ‘unmet need’ finally received judicial attention.  It need no longer be a matter for anxiety, for fear that acknowledging a need creates absolute liability to provide for it, such that unmet need is necessarily unlawful.  Unmet “human” need may now be openly acknowledged to arise, in fact, but it will now be unlawful in only one situation.  Unmet need outside the eligibility criteria will exist lawfully within what is contemplated by statute.  It is only if a need has been acknowledged, as such, and the authority has also acknowledged that it must intervene to provide something, but then run out of money, or otherwise failed to meet need appropriately, that the need will be ‘unmet’ in both human and in legal terms, and also unlawful. 

If this clarification encourages recording of actual unmet need, then the planning process will eventually benefit. The whole idea of recording unmet human need is to encourage service responsiveness and strategic planning for the future.”

It’s true that a lot of effort is made these days by councils to avoid even identifying that need may not really be thought of as met by what is being offered, and even more so, where the need has been deemed to be eligible. Here are some examples of how they try to get away with that:

  • Councils don’t assess needs, or eligibility, in terms of services into which the client will then be squished, just because they’ve been bought by the council in advance, any longer (in theory, at least but try telling that to a commissioner of respite or reablement services that are going spare!): the Guidance tells them not to, but this makes it even easier to be vague about the amount of any particular service that is actually regarded as needed to meet the need;
  • Councils don’t specify inputs as much as they used to in care plans, because sector leaders and think-tanks have told them that outcomes-based specification is much better for ‘flexibility’ and person-centredness. It’s true, but it also enables fudging by providers and commissioners, and reduction of one-to-one hours and other expensive elements of a package without the outcome of ‘a happy safe client’ actually being noticeably lacking – if they’re photographed on a good day, for the review!
  • Councils don’t like to record any view as to how many HOURS of need, their weekly rate is actually supposed to cover, for live-in care clients, Shared Lives clients, or for an individual in supported living or under a block contract arrangement.
  • Councils don’t evidence their reasons for setting the rate for DP clients to employ their PAs at (the law says it must be sufficient to reflect the local market and half of Europe has gone home, so it can only be going up, logically?). The guidance says it must reflect appropriate quality provision as well!
  • Councils allow providers to put unregulated workers onto tasks that have been subtly re-worded so as to avoid even counting as ‘personal care’ tasks for regulated workers only (eg by changing ‘prompting together with supervision’ in a contract or a plan, to prompting … and prompting and er, just prompting….) so even if the company is still CQC registered, many of its staff are not regulated and so are cheaper to employ.

The legal truth is that anyone who knows what they’re doing with the law can FORCE a council to acknowledge unmet eligible need. When one factors in the CP v NE Lincs case it’s even easier. That case assured all informal unpaid carers that they can actually expect the bit that they are going to carry on doing, to be recorded in the s25 Care Plan, so that the personal budget being offered, inclusive of their charging contribution, can actually be seen to cover all the rest of whatever has been identified as eligible! Or more often these days, NOT to cover the rest, rationally and feasibly adequately!

“…The duty is a clear one derived from section 26 of CA 2014 and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which … would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected.” 

Councils have been trying out prioritisation for years, out of desperation or sheer ignorant collusion with an ideology of austerity, regardless of the rule of law, and leaving it unclear as to when a priority is so low that it won’t ever be met. Here’s an example from Community Care’s back catalogue in this vein:

            “The terms of reference for Derby council’s resource panel revealed a prioritisation system is in place “to target available resources at those in the greatest need”. The system has three categories, with the lowest priority being people in the community who require a “personal budget to develop their independence, confidence and community inclusion”. The document states that the available budget will be “allocated according to these priorities” and where the budget is not available, “some requests may be held in date order and reviewed on a regular basis to consider the risks” in delaying the start of support.”

The lawyer’s comment on that at the time was this:

“It is not unlawful to use a prioritisation approach, however the wording of the policy suggests that in cases where the budget is not available, eligible needs are potentially being left unmet.”

To be clear: waiting lists within reason and when lawfully ordered, are not ever going to be easy to prove to be unlawful in public law terms – even where there is a duty to meet need – because there is also a reasonable time allowed for discharging any legal duty. So the context, the urgency and the impact of leaving the need unmet for even a short while are all necessarily relevant considerations for professional judgement, and these really pressing cases are resolved as soon as one sends a letter to the Monitoring Officer in councils where senior management has preserved any notion of ethics. It has never been legal to downgrade a duty to a discretion by treating financial difficulties as an excuse for not discharging the duty, say, unless or simply until it suits the authority better. This was established in 1997 in the Sefton case, and in the South Lanarkshire case in Scotland in 2002, where the duty to place people in residential care was emphasised to be a duty, regardless of available resources.

So it is all there, for those who want to fight back.

A third factor in complaints being low, though, is this. Faced with a county-wide ‘blanket’ cut to service levels or funds, or a ‘Take It or Leave It’ approach to indicative budgets – one would need to get over all the natural tendencies that vulnerable and dependent people invariably struggle with – eg fear of loss of current funding, or hostilities, given the power balance is hugely uneven; suspicion or even paranoia and absolute certainty that it will only go badly for them if they raise their heads above the parapet to challenge what has been done; even resigned stoicism if they read the newspapers and see it’s happening everywhere, but don’t actually know that a council is not allowed to use its budget position as a reason for not discharging the statutory duty, and that there is a LINE, under which a council cannot go, just because it is hard up!

The identification of that line, we do absolutely grant Mr Feldon, is a matter for the courts, not the ombudsman, who concentrates on poor process rather than the sufficiency or unreasonableness of the outcome – but when the process is set out in statute and regulations, and councils ignore the law, or the outcome is so choke-worthy as to suggest that no rational decision- maker could have arrived at it, if they understood how the interpretation and governance of law works, the LGSCO really has no option but to castigate authorities for maladministration – or what is now called ‘fault’. Those thinking of going to that organisation, should take heart from the statistics, and not delay.

Those natural tendencies – all deterrents to saying to a social worker’s manager, in writing: ‘Do you really mean that? That’s what’s supposed to meet my needs, then, is it?’ led us to set up CASCAIDr. Someone has to point out that all this is wrong: not just a little bit wrong, but the very antithesis of social work professionalism and values. Those values should not be able to be destroyed by austerity; they should have been able to survive councils being squeezed by central governments – of any political persuasion. In fact the profession has allowed the value of the social care safety net to be diluted by ignoring the legal truth that care planning MUST be individuated and needs-led and turn upon professional judgment, not managerial edict. If sector leaders had pointed that out to government, the Care Act might not have been passed into law in its current form, but it was, thankfully.

However, instead of delivering on its promise, its open-textured references to discretion and sufficiency and transparency have been exploited to the maximum; the discomfiture should be that some Adults Services Directors and Monitoring Officers have been very well paid for participating in that systemic dilution, whilst their employing councils still owe statutory duties to the public, of which their elected Members may be blissfully unaware.  

Our conclusion is that whilst one can lead horses to water (make legal literacy more accessible) one cannot make them drink (ie use law to enforce their rights) if the poor horse is afraid of the gate (ie of the social worker, care manager or Panel) or can’t see what’s over the other side (concerns about conflict, victimisation, etc), or is worried about whether a shoe will come off (withdrawal of the current offering) or has a rider (advocates? brokers? family member?) who just doesn’t know how to get the best out of the track (the Care Act ‘customer journey’) or the horse itself (the service user’s own views and comments).

Belinda Schwehr

CASCAIDr

Please share:
error

Council at fault after delaying authorisation of ten hours’ additional support for over two years, the ombudsman finds

Council did not provide direct payments for support that it had identified was needed, and asked for evidence of how money not received had been spent.   

Mr X is a disabled man whose mobility and daily living is impacted by health conditions. North Tyneside Metropolitan Borough Council assessed Mr X following an operation and identified the need to increase his support by ten hours per week (taking the total support he needed to 38 hours), but it then delayed authorising the increase by over two years.

When Mr X complained to the Council about the extensive delay, it asked him to evidence the payments he had made to his Personal Assistant for the additional hours, whilst knowing Mr X had not received the money to pay for the additional hours.

This caused Mr X significant and unnecessary distress over a number of years, whilst his Personal Assistant suffered financial losses from providing the necessary care without pay.

Two years after the assessment and decision to increase the budget by ten hours, Mr X was assessed again and based upon the same information as two years previously, the Council decided without explanation that he needed nearly a third less support, causing additional distress to Mr X.

Following the ombudsmen’s involvement the Council agreed to pay to Mr X the missing payments, backdated to the date of the previous assessment of his increased needs, to enable him to pay his Personal Assistant for the care already provided; pay the Personal Assistant £300 in recognition of his unpaid support provided to Mr X; re-assess Mr X and pay him £150 for his inconvenience; to review its processes to ensure current and future funding authorisations are not delayed.

Key Legal Issues

Delayed Payment Authorisation for Identified Care and Support needs: The Council was found at fault for delaying by over two years the authorisation of an additional ten hours of support per week which it had identified was needed.

Unreasonable Requests for Evidence: The Council was found at fault because it asked Mr X to evidence payments he had made to his Personal Assistant for the additional hours, whilst knowing Mr X had not received the money to pay for this. The unreasonable request further delayed the payments.

Reduced Support without justification: The Council was also found at fault because two years after the assessment which increased Mr X’s support needs to thirty eight hours per week, it undertook another assessment based on the same information, yet this time reduced his support needs to twenty six hours per week without any justification.

Discussion:

The Care Act 2014 places a duty onto local authorities to carry out an assessment for any adult who appears to require care and support, regardless of their potential eligibility for state funding.

Once an adult’s needs are sorted into eligible or non-eligible needs, the person is entitled to have the eligible ones met, although the local authority is in charge of making the decision as to how much care or funding is ‘needed’ for adequately and appropriately meeting those needs, which is a woolly concept in this day and age!

That decision is subject only to judicial review, for irrational, unreasonable, un-evidenced, unarticulated or fettered (over-rigid) decision-making.

Fortunately, there are 20 years of cases about councils who have been doing it that badly, so lots of examples which councils’ lawyers are obliged to tell the staff about.

One such case (called Killigrew) says that if a social worker thinks that the needs have diminished, s/he needs to be able to articulate their evidence basis for that conclusion. They can’t just be told to Go Forth and Subtract, just because the department is looking at a budget deficit.

There’s also a Monitoring Officer in every council, personally responsible for reporting illegality when it is referred to him or her, to the council’s elected members, unless of course the social care staff decide to behave properly after the Monitoring Officer’s intervention.

The local authority must also provide the person with a copy of its decision on eligibility. The individual’s care and support plan must include a personal budget which informs the individual about the money allocated to meet the identified needs.

The personal budget must be a sufficient amount to meet the individual’s care and support needs, and be transparently calculated, with any aspect being met by informal care by friends or relatives identified so that the calculation of the sufficiency of the amount for the rest of the need can be made accountable.

Mr X was therefore legally entitled to have his needs met, and for his personal budget to be an amount sufficient to meet his care and support needs, without delays and without ridiculously unreasonable requests.

The Ombudsman found that whilst the Council was entitled to a view that some support it had previously provided was for needs that were not now eligible but that it must keep in mind the flexibility and personal choice that direct payments were intended to promote. It should also consider that after a two year history of delaying payment for assessed eligible needs, the move by the Council to reduce its view of the man’s support needs would lack credibility.

The full Local Government Ombudsman’s report can be found at https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-011-515#point1

Considerations for Professionals

• How efficient are your processes for authorising funding requests?

• How well does your system identify delays in funding requests and how quickly are these delays able to be addressed? CASCAIDr will be coming after councils guilty of unconscionable delay, because it’s unlawful!

• Are your requests for additional information when reviewing use of direct payments, reasonable and valid, in the context of the overall situation – your own Panel’s or finance department’s conduct, and your knowledge of market conditions? Un-joined up ‘command and control’ culture can lead to massive Egg on Face, if anyone even cares about that, these days…

• Is there a justified reason underpinned by a solid evidence base for a reduction in care and support needs, and is there any conflict with the personal choice and flexibility supposedly integral to Direct Payments? If you calculate a budget set by reference to a rate per hour, do you allow the client to pay less for more hours, or more for fewer, without cavilling with them about that later? Or do you suggest that either way, they should be paying you back the money on the footing that they did not NEED the service they’d bought!! Get a grip, if so!

Questions for Clients / Service Users

 Have you faced significant delays when awaiting funding decisions for identified care and support needs?

 Have you experienced unreasonable requests for information, which further delayed the processes?

 Have you had your increasing care and support needs reduced without justification?

 If so, it’s all unlawful, and can be put right, but most probably only if you’re a bit legally literate.

 You can be supported to use law and legal principle, via the dispute resolution services that CASCAIDr provides – the worse the behaviour is, the more likely it is to come within our Free Scope area of work.

For advice and support, please contact: advice@cascaidr.org.uk or make a referral on our top menu bar Referral Form link

Please donate via CASCAIDr’s Online Donation Page – top right of this site – the MyDonate button.

Please share:
error

LGO decision on financial abuse through non-payment of social care charges

This LGO’s decision from July 2018 offers some guidance on LA duties where vulnerable individuals have a DWP appointee. 

Background

The service user, a young woman, had disabilities causing deficits regarding keeping herself safe and living independently. She lived with her father who acted as her DWP appointee; he dealt with her correspondence and managed her finances.

She received a DP to support delivery of her care, and in her direct name; she was financially assessed as able to make a contribution. He father failed to pay most assessed contributions for 18 months or so, running up a debt of about £2000.

She was deemed to have capacity to choose her father to look after her finances, and initially said she wished him to continue doing so, which the DWP took serious account of. But he continued to let arrears mount up for another year, and the debt increased; the daughter then expressed a wish to take more control of her finances, and she moved into supported living.

The father agreed with the LA that he would stop acting as appointee but he did not action that agreement.

When the care staff at her tenanted accommodation realised she didn’t have enough money to meet her costs, they raised a safeguarding alert with the LA.  The LA neither held any strategy meeting or formally assessed her capacity and said the debt created did not constitute “significant harm” (this was pre-Care Act) – but did contact the DWP

Eventually the DWP revoked the father’s appointeeship.  The LA said the debts – by now totalling almost £3000 – were the daugher’s responsibility and would not be waived. The daughter got a representative to tell the LA that she didn’t fully understand how to manage her finances, but could do so, with support.

The Ombudsman held that the LA realised that that the woman needed help with her finances because the DWP had appointed Mr X as her appointee in the first place. They were aware that the father was not spending the daughter’s money in her best interests, and may not have understood his responsibilities.  It was aware that the daughter was kept short of money.

Findings of the LGO

The LGO view was that the LA should have completed a capacity assessment around finances.  If the LA was relying on the statutory presumption it should have recorded that it was doing so because there was enough doubt to raise the need to consider whether the presumption was rebutted. 

It should have supported the woman to manage her own finances if with support, she would be able to manage her finances; if she had capacity the LA should have considered other ways to support her vulnerabilities and sought her consent.

The council failed to give the daughter sufficient information or support to make an informed decision about who should manage her finances, and to ensure she understood the DP agreement she had signed.  It failed to meet her communication needs or consider appointing an advocate. It LA failed to consider properly whether she was or could be subject to financial abuse and failed to protect her from significant harm (a substantial debt).  It was aware that she didn’t wish to challenge her father due to her fear that it would damage their relationship but should have thought about what that could expose her to, in a more structured way.

Recommendations of the LGO

The LGO recommended that the LA should waive all arrears (almost £2000) accruing after it realised that the father was not paying the daughter’s assessed contributions; pay her £350 for the avoidable distress, time and trouble caused to her and ensure that assessments and support plans address finances adequately when there is any indication that the person needs support in that area; and finally, ensure communication needs and safeguarding concerns are appropriately recorded.

Considerations/learning for councils  

How do you ensure that appointees are clear, regarding their obligations to pay assessed contributions on behalf of the person for whom they act?

And how does this sit with a council’s need to exercise their discretion, conscientiously, to consider discounts from assessed income, for DRE – private expenditure from the funds, which are, after all, still the client’s funds, over which the council has no preferred creditor status?

Does the existence of an appointee act as a ‘flag’ for any council or CCG that the person they act for is more likely to be vulnerable/ require additional safeguards?

How effective are the council’s mechanisms for ensuring that vulnerable individuals understand their financial obligations e.g. regarding acceptance of DPs? 

How good are the capacity assessments around being able to understand the basics of a direct payment in the first place, let alone manage the payment and management obligations, such that an Authorised Person may be needed, to hold a budget as a principal, not merely as the manager (the agent) of a capacitated client? 

How good are councils at supporting individuals to have capacity around managing their own benefits based finances and/or make informed decisions about others managing them?

How do councils arrange to act quickly to avoid debts accruing to vulnerable individuals, particularly where someone else is not making required payments on their behalf?

How promptly do councils or CCGs raise alerts with the DWP if they have concerns about an appointee’s actions?

Do they ever use the specific duty of co-operation, if the DWP seems reluctant to engage with them – this would force the DWP to respond in writing, under the Care Act, s7.

How would your local safeguarding professionals respond to situations such as this?

The decision can be found at – https://www.lgo.org.uk/decisions/adult-care-services/charging/17-015-575

Please share:
error

The Monitoring Officer – a ballistic missile for service users, when faced with unconscionable delay in getting a decision on a care package or budget!

This post is for flagging up that there is a much easier way of challenging a local authority’s actions or decisions, policies or practices, than complaining, and it’s not widely publicised. The people responsible for managing this system don’t even agree about its scope, but that doesn’t mean that the words in the statute don’t mean what they say!

It’s use of the Monitoring Officer’s own enforceable and mandatory independent statutory duties to keep a roving eye or ear out, for alleged unlawfulness within his or her council. Its existence means that all you have to do is know enough about law to be able to string 3 or 4 paragraphs together (about the Care Act, the Guidance or the Regulations, in the case of adult social care issues) to lay out for a Monitoring Officer a coherent arguable case on why what’s been done, or is about to be done or not done, is simply not defensibly lawful. 

This duty was first created under an Act that goes back to 1989, when governance no doubt meant something different to people working in the public sector, to what it tends to mean now.

The attached document ‘What is this information FOR’ is an explanation of what the Monitoring Officer is there to do, and a table of nearly all the Monitoring Officers in adult social care councils in England and Wales, together with their email addresses. A few are missing and will be added if anyone can give me the information, which should be in the public domain.

How to contact these Officers: if you ring up a council you will often find the receptionist doesn’t have the means to find out who the Monitoring Officer is, and that makes us MAD! So we have put this together, although it may not be up to date – email addresses to use for reaching their attention.

Monitoring Officers’ list

There used to be an excel spreadsheet supplied by a data supplier to our CEO for money, but it was a breach of the terms of the licence for her to share that with the public. She then used it to enquire of Monitoring Officers, directly, whether they object to their email addresses being publicised, and where that was the case, she has left the name blank, given a generic address instead, or otherwise checked data that is publicly available to advise people how to get in touch with the relevant Officer, before gifting this material to the charity. Her logic is that the information as to the Officer’s name could not be refused if the council was asked for the person’s contact details, and if the council’s receptionist does not know, anyone could use an FOI request to the council to find out who is their designated Monitoring Officer – since the law says that there has to be one!

If there are references to Acting or Interim in the job title, they may well have changed recently.

There is also a justification for publishing their email addresses, without explicit consent, for Data Protection Purposes. If anyone thinks that making it easier to uphold the law in adult social care, by telling people how to use a remedy that’s been provided through the will of Parliament, is not a legitimate interest, on my part, as a data controller, then they are able to complain about this to the Information Commissioner, with whom CASCAIDr is registered.

We very much hope that people will put two and two together, and equip themselves to do polite, informed battle for their or their loved one’s care packages and budgets.

CASCAIDr will do these letters for free for people who have FREE SCOPE issues as described on our home page. If a problem is not within that scope, but is still one where illegality lies at the heart of the dispute, then we will do this for an affordable fee.

One needs to use our referral form, under the Free Advice Tab, to enquire, please

If one were to be simply ignored by the Monitoring Officer, that could be a breach of the law by him or her, in person, and would also be likely to be maladministration, for the consideration of the Local Government Ombudsman.

What is this information for

Getting Legal Help and Legal Aid

Law firms don’t HAVE to offer legal aid funded services; and very few firms nationally, do legal aid work for community care matters, even if you would qualify, by reference to your means – and there’s a merits test as well. But there’s a search tool below, for finding the firms that offer this service. 

The Public Law Project is now a Charity, and can be a good place to go for advice about where ELSE to go.

The Disability Law Service has a legal aid certificate as well for this area of law.

If you know of any others, please tell me their names, by email belinda@cascaidr.org.uk

Don’t forget that you can now go straight to SOME barristers through what is called Direct Professional … or direct public access arrangements: google “community care law” or “social care law” alongside the word barrister and email or telephone the clerk and ask whether these arrangements operate in those chambers or with a specific named barrister whom you’ve found on a search.

Law firms offering community care legal services, in no particular order:

Ben Hoare Bell; Simpson Millar; Irwin Mitchell; Pannone’s; Bindmans; TV Edwards; DPG Law; Martin Searle Solicitors; Edwards Duthie; Switalski’s; Cartwright King; Ridley & Hall; MG Law; Foster & Foster; Sinclairs; Howells; Stephensons; Jackson Canter; Latimer Lee, Wrigleys; Clarke Wilmott; Julie Burton Law (in Wales); Burroughs Day (Quality Solicitors); Alison Castrey Ltd; David Collins (best for providers arguing about fees, but it is not known whether they take on individuals’ own claims about fees, other than for CHC); Brunswicks (mainly for providers); Bates Wells and Braithwaite (mainly for providers’ arguments and particularly charitable providers) and Anthony Collins Solicitors (also focusing on Providers’ work).

If you could only afford legal advice if you were financially assisted, you need legal aid or crowdfunding. Use this link below, together with the ‘Category’ filter on the linked site, to check out if there’s a firm local to your postcode, with a contract for Community Care work – they are few and far between, these days, but most will deal with you on the phone or online, so distance need not be a problem…

http://find-legal-advice.justice.gov.uk/

Search facility for legal aid solicitors

Please share:
error

Local Government Ombudsman’s recent reports on issues arising around transition from children’s to adults’ services

Hertfordshire County Council (16 009 954)

 

Adult social care · Transition from children’s services · Review of Care and Support Plan · Decision date 27.9.17

 

Facts:

In this case the subject, Ms Y, was cared for by her sister, Ms X, after their mother died.

She was a young woman entitled to adult social care and was also subject to an EHCP.

While Ms Y still had an EHCP, she had transferred to adult services and this complaint was about the review processes for the care and support plan under the Care Act 2014.

Principally the complaint concerned the delay in reviewing Ms Y’s care and support package. There were various changes to the care and support package through 2015. Decisions in relation to the funding were made at a Council Panel and during 2015 there were nine occasions when the Panel considered this case. Payments through 2015 varied as there were changes in the support plan which included, for example, additional sums to pay for activities and transport.

Early in 2016 the sister stated the payments were reduced significantly. The Council stated that the reduction was likely due to the change in services provided by an agency, to the Council providing direct payments.

Ultimately in 2017 the payments were reinstated to 2015 levels, but the Ombudsman found that the information provided by the Council about the support package was confusing and it was not possible to establish the rationale for all the past payments.

The Ombudsman did not investigate complaints regarding the education part of the EHCP as Ms Y had a right of appeal to the SEND tribunal. Ms Y had appealed to the Tribunal regarding the ability of Ms X to continue to attend college for a third year.

Outcome:

Complaint upheld · Payment of £200 for avoidable distress

 

The Ombudsman’s approach

The decision sets out a summary of the Care Act 2014 provisions in relation to assessments and reviews. It references the Care and Support Statutory guidance as the decision notes that reviews must not be used to arbitrarily reduce someone’s care and support package.

The Ombudsman did find fault, as the Panel’s decisions, which were significant in terms of deciding eligibility and support, were not properly recorded and minuted. As a result, it was not always possible to understand the rationale behind decisions.

“Panel decisions, which are very significant in deciding eligibility and support, are not being properly recorded and minuted and therefore it is not possible to understand always the rationale behind decisions. This amounts to fault and the Council needs a system of recording reasons for Panel decisions. There should also be a record of the information which the Panel has considered when reaching its view.”

Comment:

This approach chimes exactly with the approach of the court to Panel maladministration in the Merton judicial review in 2017.

The Ombudsman did not make a finding as to whether the care and support plan was sufficient or not during 2016. Therefore, the agreed compensation of £200 was a limited amount purely to cover Ms X’s avoidable distress caused by the confusion about payments.

The Council stated that overall it was satisfied that it had met Ms Y and Ms X’s needs and that they had not missed out on a proper support package and the Ombudsman was satisfied with that, whereas a Court might have probed further and regarded the absence of reasoning as suggestive of irrationality, in and of itself.

 

Note

The SEN Code of Practice requires that the Local Authority must set out in Section H2 of the EHCP any adult care and support that is reasonably required by the young person’s learning difficulties or disabilities (Para 8.70).

This is also echoed in the Care and Support Statutory Guidance at Para 16.65/16.66, although it is not actually what the regulations regarding Section H2 say (focusing as they do, on children and young people….not adults):

“For people over 18 with a care and support plan, this (implicitly, what should go  into H2) will be those elements of their care and support which are directly related to their SEN….”

By the time of the Ombudsman’s decision the outstanding issue regarding Ms X’s college attendance had been resolved and the appeal to the SEND was not pursued.

Note that from 3 April 2018, for a person who is still a child/young person, a SEND tribunal hearing an appeal about the Education aspect of an EHC, will be able to make non-binding recommendations regarding the health and social care aspects of the plan.

 

 

Hertfordshire County Council (16 012 970)

 

Adult social care · Transition from children’s services · Failure in planning move from one provision to another · Interim arrangements · Agency unable to provide contracted service · Decision date 13.9.17

 

Facts:

The Ombudsman’s decision notice has a lengthy account of the difficulties faced by this family once their son, D, was unable to remain at his residential placement. The adult was 23 years of age and had severe autism, learning difficulties and challenging behaviour.  The residential home where D lived originally had given a standard 3 month notice on the placement: in effect it declined to keep him on at the care home, because of incidents with other residents. At the end of that period alternative provision had not been agreed and, following an incident, the placement was terminated with 12 days’ notice.

The family provided care at home for a lengthy period before a resolution was reached as to their son’s accommodation.

The social worker completed a care and support plan for D for his period at his parent’s home, but this was largely based on his previous residential environment, and stated that he ‘may’ need 2:1 care.

This was not actually provided, and indeed, on some days, nobody attended and nothing was done about that, causing enormous distress for all, given the extent of this man’s needs.  

When the worker was away for the first two weeks of August, the agency could not arrange cover but did not inform Mrs A until she called to ask why nobody had arrived. According to Mrs A’s records, D only had care from the agency for four days in August.

Eventually, the assessment was updated and whilst it contained most of the same information as before, it included new details about D’s behaviour following his return home. It recorded his level of need in all domains as exceptional, both alone and with his family, and had more details about how support workers should deal with aggressive episodes. According to the assessment, D was supported with a 2:1 staff ratio in the community (although this was not actually happening). It concluded that D requires full-time care on a minimum 1:1 basis, with consistent carers. The support plan did not change, despite these changes.

In the November the Council agreed to provide direct payments to Mrs A for the care she was providing to D. It paid her around £630 per week, based on 47.5 hours of care, and backdated the payments to 20 June.

The Council said that it continued to offer other services but Mrs A preferred to keep the direct payments. Mrs A refuted this and said she wanted to return to work but continued caring for D because there was no suitable alternative.

Following some incidents at home, the Council arranged for Agency Y to support D with two workers for 11 hours per day from Monday to Friday. This started in January. Mrs A’s position was that if the Council could now actually put this in place so quickly, it should have done so much earlier. The Council’s position was that Mrs A decided to pursue other options and receive the direct payments, but by December she accepted that she could no longer care for D herself; hers was that she made this decision not through choice but through lack of any apparently acceptable alternative.

The council then agreed that the agency would support D until he moved into Council accommodation.

There were housing application difficulties related to capacity to enter into a tenancy, necessitating an application to the Court of Protection, and then D assaulted Mrs A.

Ultimately the young man was placed in an out of county of residential unit that had previously been rejected by his parents due to its location away from the family home.

Outcome:

Complaint upheld · Payment of £1500 compensation

In this case the young person had transitioned to adult social care and the Ombudsman’s considerations related to the Council’s duties under the Care Act 2014.

Fault was found with the Council in relation to its planning for D’s move from residential accommodation, the lack of clarity regarding his specific support needs, the poor service from a commissioned agency, delay in arranging suitable interim provision and the Council’s response to the complaint.

The uncertainty, disruption and gaps in provision during this period caused D and his mother significant injustice.

 

The Ombudsman’s approach:

In particular, the Ombudsman focused on the duty of local authority to meet eligible needs and to review the care and support plan if there is a change in circumstances (see Care and Support Statutory Guidance, 13.18).

Further the Ombudsman emphasised that the local authority remains responsible for the quality of services provided by contracted agencies and has a duty to ensure there are sufficient good quality providers (see Care and Support Statutory Guidance, Chapter 4).

The Ombudsman considered that insufficient planning had taken place during the 3 month notice period from the original care home, but even if it had, it still might not have avoided D returning home, as an interim measure.

However, the lack of planning meant that the agency engaged to support D at home as an emergency solution was not actually capable of providing the support needed.

The Council was at fault for the lack of planning and problems with the support package.

Further when the Council did find a second agency to provide support, it was at fault for not confirming arrangements, which meant it lost the services of that agency.

The Ombudsman did not find fault for the local authority delaying updating the care and support plan until 2 months after D returned home as it gave potential providers a ‘good idea of his needs and risks’ and in view of the very special extent of his needs, the Ombudsman did not think it would have changed the outcome in approaching providers.

The Ombudsman did not find fault with the delay in making an application for independent living accommodation to the local housing authority. The delay was caused as D’s situation fell outside the current allocation’s policy and it took time for discussions which lead to D being treated as a special case.

It was further delayed when D’s parents were advised that they would need to apply to the Court of Protection as D did not have capacity to sign the tenancy agreement.

The Ombudsman’s view was that the complications were unforeseen, and the Council had worked with the family to resolve them.

Comment:

Although the complaint was upheld, compensation was recommended, and charges were returned to reflect non-delivery of services, there are a number of surprising conclusions on the part of this LGO approach.

The Council was, throughout,  under a duty to provide information and advice in relation to care and support including advice on relevant housing and housing services.

Advice could have been provided at an earlier stage regarding the ability or otherwise of D’s parents to sign any tenancy agreement on D’s behalf.

Competent legal advice could have identified that it is a moot point whether the case law (Oxford City Council) on incapacity and applications for homelessness provision, applies to joining the housing register. Given D’s needs it seems reasonable to assume that he was unlikely to have capacity to enter into to tenancy agreement well prior to leaving his original residential accommodation.

Once supported accommodation was being considered and the assault had occurred, the Council could have provided advice about how the prospects of accessing such accommodation could be brought forwards, through benign eviction by the parents.

The decision does not explore what arrangements existed between the Council and the housing authority, if any, to ensure individuals with care and support needs are able to obtain suitable living accommodation.  The Council has a duty under Section 3 of the Care Act 2014 to ensuring the maximum integration of the care and support provision with housing provision (see 3(1) and 3(5) CA14).

It is not clear how or why the Ombudsman found the level of provision available to the council for the meeting of needs that it was obliged to meet, was sufficient, or sufficient to comply with its responsibilities under Section 5 of the Care Act 2014 to ensure that there is choice of quality services in the market in services for meeting care and support needs.

The decision sets out, to a limited extent, when parents/carers may be justified in refusing a service; it is a double edged decision as is shown by the fact that the Ombudsman did not find fault during the period where Mrs A was receiving direct payments for directly providing care whilst looking for agencies that could possibly meet needs.

Here the Ombudsman found that D’s mother was justified in refusing the respite care that was offered as an interim measure to cover the gaps in provision.

What is not clear is why this was justified when refusing care from the third agency in September was not.

It is also surprising that nothing was said about the obligations of the original provider under the Human Rights Act for anyone accommodated by a council under the Care Act: such providers are legally directly liable for delivery of human rights, which ought to affect any provider’s approach to serving notice. It is not suggested that this could prevent the giving of notice, but at the very least, article 8 rights must compel conscientious alternative dispute resolution where that could conceivably help.

All in all our view was that this was a case which might have produced a successful outcome by way of a judicial review of housing and/or social services decisions or failures to MAKE decisions. Equally, it has to be remembered that a well prepared authority will win a judicial review by establishing that they were rationally optimistic with regard to the suitability of options explored. The parents may have been perceived as simply being too demanding or worse still, obstructive of agencies doing their best in difficult circumstances.

 

 

 

Durham County Council (16 012 258)

 

Adult social care · Transition from children’s services · delay in carrying out transition assessment · Gap in provision · Decision date 25.4.17

 

Facts:

Y lived at home with his mother and received outreach and respite services from children’s services.

Y had been referred to adult social services when he turned 16 and had been allocated a social worker prior to his 17th birthday.

The transition assessment only started when he was 17½. This lead to a 3-month gap in the provision of respite services.

Outcome:

Complaint upheld · Payment of £1000 compensation

 

The Ombudsman’s approach:

While the decision refers to the statutory guidance that Council must carry out a transition assessment “when there is significant benefit to the young person or carer in doing so” the decision does not actually express any view on the time that that would be.

The decision found the Council had not fettered its discretion by usually starting transition assessments when young people were 17½.

It accepted that the Council looked at individual cases although in this case the Ombudsman considered that the assessment had been started too late: allowing 6 months meant that there was a significant risk that provision would not be in place as the young person found change difficult and his current provision could not take over 18’s.

While the Council had identified a respite placement in that time Y’s mother did not consider it suitable. Mrs X’s refusal of the placements offered was reasonable, given they were intended for persons aged over 25 and Y was only just 18. 

The Ombudsman found that if the assessment had started earlier it might have been possible to start the provision that Y’s mother had found without any gap in service. Y’s mother’s reasonable refusal of the offer did not mean she was responsible for ending the respite service. It was the Council that had not continued the respite services that it assessed that Y needed – in this case by not identifying provision that could meet this need when the existing provider could not continue.

The decision does say that where a Council is unable to organise alternative provision by the time a young person reaches 18 it should maintain the existing provision until its replacement is ready. This reflects section 17(ZH) in the Children Act 1989 which states that the Council should continue providing services under Section 17 of the Children Act 1989 until a conclusion has been reached on the transition assessment. A conclusion is not considered reached until the Council begins to meet any assessed needs. The practical problem arises when, as in this case, the actual respite provision will not continue to provide a service to the young person post 18 so a new respite provider was needed regardless of which statutory regime was applied. The Care and Support Statutory Guidance makes clear at paragraph 16.53 that the transition period should be planned to ensure that there is not a sudden gap in meeting the young person’s needs.

Comment:

We are aware of other cases where CAMHS units are not contracted by NHS England to keep young persons beyond their 18th birthday – a voluntary patient or a sectioned patient is therefore at risk of this situation unless the relevant Adults’ Services or s117 teams do the necessary planning and commence it in good time.

 

Kent County Council (15 007 344)

 

Adult social care · Transition from children’s services · investigation of complaint by Council· Gap in provision · Decision date 9.2.17

 

 

Facts:

Miss B was released from a secure hospital after a year at age 17. She returned home as a temporary measure while the Council helped her secure accommodation. Miss B complained about the lack of support following her release from the secure hospital, not dealing with her complaints or providing her with information about the statutory complaints process. It was unclear whether Miss B had been advised about the statutory complaints process: the service manager indicated that Miss B had been happy with the outcome of the complaint and the Council’s records indicated that Miss B had been contacted to see if she was happy with the response to her complaint and no reply had been received.  

Outcome:

Complaint upheld

 

The Ombudsman’s approach:

The Ombudsman determined that the Council should have confirmed whether Miss B was happy with the outcome of its stage 1 response and made sure she knew her options under the statutory complaints process. This part of the Miss B’s original complaint to the Ombudsman was upheld but, as the Council had agreed to deal with the outstanding aspects of Miss B’s complaint regarding the lack of support she had received, there was no need for further investigation.

Comment:

The decision places the onus on the Council to ascertain whether the complainant is happy with the outcome of a complaint and to ensure that a complainant is aware of the statutory complaints process rather than relying on a lack of response to their enquiry.

 

Essex County Council (16 011 102)

 

Adult social care · Transition from children’s services · 7-month gap in provision · Decision date 7.2.17

 

Facts:

P was 19 years old and profoundly deaf and had learning difficulties. He turned 18 and was referred to Adult Social Care in March 2014. P attended a residential school for the deaf until December 2015 when it closed, and he returned home.

His social care assessment was updated and a request for a support package was put to the Council’s Panel. The package was not agreed as further information regarding costs was sought.

It took 7 months for the package to be agreed in which time P and his mother were without adequate levels of support which meant P’s independence skills regressed and placed strain on his mother.  

His mother complained that P had no adult social care or educational provision from the time he left the special school.

Outcome:

Complaint upheld · Payment of £2,200 compensation. It was agreed that the Council would apologise and pay £1450 to Miss N and £750 to P.

 

The Ombudsman’s approach:

The Ombudsman’s decision sets out the legal requirement that the Council must continue to provide services under the Children Act assessment until it conducts an assessment for adult social care under the Care Act.  This reflects the provision of the Children Act 1989 Section 17(ZH).

The recorded facts of the decision do not make it clear whether services were being provided under the Children Act 1989 or whether the transition to adult social care had already happened. The facts simply refer to the updating of his social care assessment. But whether or not services were being provided under the Children Act or the Care Act, the reality was that P’s placement at his residential school came to an end earlier than anticipated due to the school’s closure and so alternative provision was needed.

The social worker who updated the social care assessment recommended a package of support, but the Council Panel did not agree to this package while the costs were explored. As a result, nothing was put in place. While the Council was entitled to have considered the cost in determining how the eligible needs were met, it was not entitled to treat cost as relevant to an option not to meet the needs. Therefore, the Council should have met the eligible needs that were identified under a Care Act assessment or continued to meet the assessed needs under the Children Act (even if the type of provision needed to change).

Comment:

This approach is wholly consistent with social care legal principle.

Oddly, the decision does not deal with P’s educational provision although this was part of the original complaint.

The Ombudsman did assume that P would have stayed at school longer but for his school’s closure.

There is no reference in the decision to whether P was subject to an EHCP or could have transferred to one under the transitional arrangements under the Children and Families Act 2014.

P’s mother did accept a support package for P which was subsequently offered by the Council although it did not make provision for any remaining educational needs.

The Ombudsman considered, had P been able to stay at his school that would have given more opportunity for planning P’s transition to adult life.

Had P been subject to a statement, and then an EHCP, transition planning should have started in Year 9. The Children and Families Act guidance in recommending that transition planning should have already been started in Year 9 is not necessarily referring to the process called a transition assessment under the Care Act – one of those is an assessment against adult services criteria, after all.

Even without an EHC, however, a transition assessment should have taken place when it was of significant benefit to P, if regarded as requested.

 

 

Stockton-on-Tees Borough Council (16 004 812)

Adult social care · Transition from children’s services · Monitoring of transition plan · Delay · Decision date 6.1.17

Facts:

This young person, C, had severe autism and learning difficulties. He had a statement of SEN and attended a special school. He was able to stay at school until he was 19 (July 2015) and thereafter his mother requested he attend college from September 2015.

This request was first made at C’s Annual Review in year 9 in 2010 and transition was discussed again at the Annual Review in 2013.  

The Council converted his statement to an EHCP at the Review in February 2015. The funding for this placement was agreed at the Council’s education, health and care panel in April 2015 but then also needed to be agreed by the Council’s Children’s Multi-agency panel. This occurred in June 2015. A final EHCP was sent out in May 2015 but without naming a college. The revised EHCP named the college in July 2015 and the college confirmed his place in August 2015. This was shortly before C started at the college in September 2015.

His parents complained that his transition was inadequate and rushed, leading to him needing 6 months to settle in college and causing them distress.

Outcome:

Complaint upheld · Payment of £100 compensation

 

The Ombudsman’s approach:

The Ombudsman found fault as the Council had not consulted the college until after issuing the final EHCP. This is in breach of Section 39(2) of the Children and Families Act 2014. The Ombudsman found that had the Council consulted the college following the review in February it could have been named in the final statement issued in May. Therefore, it could have been done 2 months earlier and this caused unnecessary uncertainty and anxiety resulting in injustice.

The Ombudsman also found fault that the transition plan discussed in the Year 9 review was not monitored in later reviews.

The SEN Code of Practice 2015 required, for those attending post-16 provision in September 2015, that the EHCP must be completed by 31.5.15 (para 9.183). The Council had complied here in the sense it had issued a final EHCP but not one that had the college named. For subsequent years where there is a transition to or between post-16 institutions these should be completed by 31 March prior to September entry. For entry at other times of the year 5 months before date of entry (paras 9.180 & 9.181).

Comment:

The decision does not address whether the conversion and review in February 2015 should have been held sooner to allow consultation with the college at an earlier time nor does it set out the consequences of the failure to monitor the transition plan from 2010. The Ombudsman considered that the Council could have consulted with the college following the review in February 2015 and issued a Final EHCP by May 2015. It does not consider whether the Council would have done this, as the Council did not agree the funding for the provision until the second panel in June 2015. If the Council had named the college in a Final EHCP in May 2015 the Council would have been committed to providing that provision.

 

Buckinghamshire County Council (16 002 997)

 

Adult social care · Transition from children’s services · Failure to arrange services when young person turned 18 · Decision date 3.1.17

 

Facts:

Mr X was due to transfer from children’s services to adult services once he reached age 18 in August 2016.

He received respite care as a child and would need a new respite care placement when he became 18.

The Council started his transition process in October 2014, but it was not pursued and there was no further action until March 2016.

At that point the Council was unable to get plans in place for his transition when turned 18.

The Ombudsman stated that the Council was aware of the need to plan for Mr X almost 2 years in advance. It should have been able to ensure a new respite placement in good time.

Outcome:
Complaint upheld · Payment of £2817.50 compensation, most of which was for missed mentoring sessions and there was a sum of £250 to both Mr X and his sister for distress caused.

 

The Ombudsman’s approach:

The Ombudsman found that the Council was at fault for not arranging respite care in August 2016 but also concluded that the fault ended when the Council offered alternative placements and direct payments in September 2016.

 Mr X’s sister who cared for him would have accepted direct payments for a placement that she felt suitable. The sister did not consider the placements offered suitable for his assessed needs.

The Ombudsman declined to express a view on whether that decision was correct or not but did not find fault from September 2016 onwards.

Comment:

In other LGO decisions, a reasonable refusal of an offer has not brought the ‘fault’ to an end.

 

Nottinghamshire County Council (16 002 691)

 

Adult social care · Transition from children’s services · Agency actions following serious case review·

 

Facts:

This young person had been involved with statutory services from the aged of 12 and had increasing mental health difficulties. She became detained in several mental health settings during her adolescence and in 2013 she transferred from children’s mental health services to adult mental health services and the day after her 18th birthday she was moved to a low secure adult mental health unit. Her self-harm escalated leading to her taking her own life.

A coroner’s inquiry and serious case review found the staff did not fully realise the risk of suicide or that it was escalating. The Coroner also highlighted that a transfer to an adult unit the day after her 18th birthday was not in her best interests.

Following the serious case review that ensued, the woman’s parents complained that not enough had been done to improve health and social care services.

 

Outcome:

Decision date 30.11.16 · Complaint not upheld

 

The Ombudsman’s approach:

The Adult Serious Case Review made various recommendations in respect of the agencies that had been involved with this young person.

The Ombudsman ascertained from each what steps they had taken or were taking to respond to the recommendations of the report.

The Ombudsman’s approach was to consider what governance arrangements were in place to oversee the implementation of the recommendations and he was satisfied that such steps were in place. Therefore, the complaint about the SCR was not upheld.

The Ombudsman did not comment on the appropriateness of the recommendations nor whether they had been effective in improving health and social care services. The Ombudsman’s role is to investigate ‘maladministration’ and ‘service failure’. The quality of the work done would be subject to other inspection regimes relevant to the individual agencies.

 

Comment:

It is important to note that this is not a failed complaint in relation to the original failures in service: it was a complaint about a serious case review.

 

 

Kent County Council (16 006 992)

 

Adult social care · Transition from children’s services · Care leaver · accommodation · Decision date 29.11.16

 

Facts:

When she was a child Ms X received supported housing from the Council. To access the local housing authority discretionary housing scheme for care leavers the Council needed to send a nomination form to the local housing authority. The Council failed to do this and as a result Ms X was not able to obtain accommodation.

 

Outcome:

Complaint upheld · Compensation of £1500

 

Comment:

The Council acknowledged the error and offered £1500 in compensation but, as it was not the local housing authority, it could not provide a remedy in terms of housing.

Following an approach by the Ombudsman the local housing authority, although not at fault, helpfully agreed to include the care leaver in the housing scheme for that year.

 

Northamptonshire County Council (16 005 582)

 

Adult social care · Transition from children’s services · Adequacy of transition plan · Decision date 17.11.16

 

Facts:

The young person, Y, was provided with services under Section 17 of the Children Act as a child in need by Northamptonshire County Council and he had a child in need plan.

At 14 he was transferred to the transition team who were responsible for young people from age 14 to 25.

If there were minor changes needed to the existing core assessment and child in need plan the team would produce a new Transition Care Plan incorporating the support in the child in need plan/core assessment.

The Council did review this young person’s care plan following a complaint regarding the lack of specific detail and produced a more detailed plan.

The parents complained that something called a Transition Care Plan by the council should detail the support and provision to meet his eligible needs.

Outcome:

Complaint not upheld

 

The Ombudsman’s approach:

The Ombudsman found that certain details could be added to the plan but the absence did not result in injustice. The Ombudsman considered that it would be helpful if the Council added to the plan were the social worker’s name, the date and that the frequency of visits by the allocated worker.

Comment:

The decision does not specifically engage with whether what was wanted by the parents was a Transition Assessment under the Care Act. Rather, the report seems to accept that since the boy who was the subject of the complaint was 16, then what the council called a Transitions Care Plan was not referring to any statutory requirement under the children’s or the adults’ legal framework.

Without more information this was not an inappropriate finding, we feel.

 

 

Please share:
error