Archive for Local Government Ombudsmen’s Reports

Calderdale Council at fault for poor communication, failing to involve a person in decisions surrounding their care, wrongly stopping direct payments and severe delays in carrying out an assessment

Decision Date: 28th September 2020

What Happened

Miss X complained on behalf of Miss Y. 

Miss X worked for a support agency and was Miss Y’s informal representative. 

Miss Y had numerous mental and physical conditions and received direct payments from Calderdale to employ carers for 9.5 hours per week. 

In August 2018 Miss X was told that she needed to have a Care Act assessment for her to continue receiving the DPs. 

There was no evidence that a Care Act assessment was carried out during the subsequent meeting, where two social workers were present (Officer A and Officer B). Instead, the potential for Miss X to have an Individual Service Fund (a euphemism for a hybrid sort of a package explored in the Guidance) was discussed. After Miss X provided the necessary costings and evidence, there was nothing to show that the Council considered the ISF option any further. 

In October 2018, Miss X was told by officer A that they had been unable to arrange a mental health assessment for Miss Y, and in the meantime a care package with the Council’s Shared Lives Service had been organised. Officer A also noted that to achieve parity with other service users, Miss Y’s care package should be reduced to 6 hours per week. 

The LGO found no evidence that officer A discussed the option with Miss X and Miss Y or even considered how it could be suitable for her. Miss Y was unaware that the option was even being considered. 

In November 2018 Miss Y’s original care provider (who had been employed using DPs) gave notice to officer A that it would be ending its service to Miss Y. The council did not notify Ms Y.

Officer A proposed a meeting with Miss X, Y and the care provider. 

Miss X highlighted to officer A that she was concerned with their conduct, as the officer had asked Miss X not to tell Miss Y the reason for the meeting. Miss X was also concerned that officer A was considering reducing Miss Y’s personal budget without any lessening of need, if she did not accept the shared lives proposal and asked why Miss Y was not being given the opportunity to choose herself.

The meeting took place in December 2018. Officer A produced a care and support plan, however the LGO found no evidence that Miss Y was consulted or involved in the process. The outcome of the meeting was that Miss Y’s DPs would end in January 2019 (at the end of the provider’s notice period) because no service was being provided. 

Miss Y complained in January 2019 and requested a new assessment. She complained that officer A disregarded her views and choices and did not tell her the purpose of the December 2018 meeting. 

The Council did not reply, so Miss X complained again in July 2019. The Council eventually replied in September 2019 and did not uphold any of her complaints. 

In May 2019 a social worker from the Community Mental Health Team was allocated to Miss Y for an assessment. 

The assessment took place in February 2020 which found that Miss Y was eligible for about 9 hours of care per week. 

The LGO report stated that Miss Y preferred a particular support agency to provide the care she needed, but this was not possible as that agency was not on the council’s framework so could not be commissioned by the council.  

Miss X and Y took their complaint to the LGO. 

What was found

Involving Miss Y

The LGO explicitly stated that the Council’s communication with Miss Y was poor. The Council failed to directly inform Miss Y that her care provider had given notice and was not clear about the purpose of the December 2018 meeting. The lack of transparency was fault which caused distress and frustration to Miss Y. 

The Council failed to involve Miss Y in decisions about her care and support planning following the provider giving notice. This is contrary to the Care Act and Guidance, therefore this was considered to be fault.

Officer A failed to pursue the ISF as agreed, and failed to inform Miss Y whether this was or was not a viable option. The officer also pursued Shared Lives option without communicating with Miss X and Y. As a result, the care and support planning in 2018 ‘was not person centred which denied Miss Y control of her care’. This service failure contributed towards the distress caused to Miss Y by the council, therefore this was fault.

The Council was also at fault in proposing to reduce Miss Y’s support hours from 9.5 to 6 per week. There was no proper assessment or review, so its decision seemed ‘arbitrary’.  The council later considered a budget of 9 hours per week to be correct. This would suggest that the council agrees that the proposed 6 hours was in fact insufficient.

Direct Payments

The Council was also at fault for stopping Miss Y’s DPs. The Council said it stopped making payments, because a replacement care provider had not been identified. However, Miss Y still had eligible needs, and without the DPs, she could not employ other care providers. This was fault. 

The LGO highlighted that the Council failed to consider the risks to Miss Y withdrawing her support may have. Again, there was no evidence to show that the Council discussed alternative options with Miss Y. 

The Council was at fault with regard to this issue as Miss Y was left without care for 19 months. Miss Y had to purchase support from another organisation which would otherwise be provided for by direct payments. 

Delay in assessment

Miss Y requested a Care Act assessment in January 2019, which the Council failed to act on. It did not carry out an assessment until February 2020. This was fault. The LGO stated “a delay of 13 months in allocating a social worker and carrying out a Care Act assessment would be excessive in most circumstances”. 

It was particularly excessive in Miss Y’s case as the Council was aware she had eligible needs and no support in place.

Whilst the LGO noted that the Covid pandemic made assessment harder the LGO noted that, if the Council had acted in accordance with statutory guidance Miss Y would have had support and care provisions in place. Therefore, the LGO considered this period during the pandemic, totalling 19 months without care, to be relevant to the extent of the injustices suffered by Miss Y.

The LGO recommended that the Council: 

  • Send a written apology to Miss Y and make a payment of £500 for the distress caused by its poor communication, failure to involve her in decisions about her care, wrongly stopping her direct payments and delay in carrying out a Care Act assessment.
  • Reimburse Miss Y for the cost of support she purchased since the date her direct payments were stopped until the Council reinstates a care package. 
  • Review procedures to ensure the delays experienced by Miss Y in allocating social workers, including those from the mental health trust, and carrying out Care Act assessments do not recur. 

Legal Framework Points for the Public

This complaint illustrates the legal consequences of a number of different types of contraventions of rules of law.

Involvement, participation and consultation – even if someone is regarded as needing mental health assessment or a mental capacity assessment, they are presumed to be capacitated. In addition, they are entitled to be involved in their own assessment, albeit the concept of involvement is not defined. It clearly means more than being presented with a fait accompli or being excluded from discussions or being misled about the purpose of a meeting. 

Breach of statutory duty – the law is that eligible assessed needs are met, and that direct payments cannot be stopped unless the care plan has been reviewed and revised lawfully. The absence of a provider does not mean that the direct payments must be terminated; the individual can choose to find another provider, or give up the direct payment if they are unable to do that. Their eligible needs do not thereby cease, and their entitlement to have them met goes on.

Restitution for breach of statutory duty – councils have to pay money back in some situations where their maladministration is characterised by breach of the law – because the council will in those circumstances have been unjustly enriched at someone else’s expense. Restitution flows if a person has spent their own money (or someone else has spent their money or put in labour for free but in circumstances when it could not have just been regarded as a gift or favour) on filling the gap left by the council’s breach – which is what happens when they mess up assessment in a way that is unlawful, or mess up care planning, in a way that gives rise to illegality. They do not have to pay back money JUST because they’ve done wrong. That would be damages for breach of statutory duty or for harm, and those remedies don’t exist in the law of community care. Restitution is about solving the problem of someone else’s expense or labour, triggering a liability on the part of the person who was left short by the council.

Delay – there are no time limits for starting or finishing the statutory decision-making functions that have to be done, under the Care Act, but public law principles say that every duty has to be done in a reasonable time. That always depends on the circumstances, but after a given point, based on professional judgment as to the circumstances, the excuses and the integrity of the system, or its lack of checks, very long delay will be regarded as unconscionable. That’s challengeable in the Administrative Court but the LGO offers a free alternative. One in which there is a lot of delay too, but it is better than having to give restitution back to the Legal Aid Agency by dint of the statutory charge biting on the compensation…

Arbitrariness – here, once some manager had hit upon the idea of Shared Lives being cheaper than a proper care package, there is a definite hint in the report that management thought that they could offer the value of the cheaper alternative package without thinking about whether it was appropriate or something that they could even regard as an offer within their gift. This is not the law. 

The corollary of the principle that a personal budget must be sufficient is that if it is going to be reduced, there needs to be a rational reason, such as lessening of need, and an evidence basis for that. A service’s cost can be relevant to a budget, if it’s cheaper than the preferred one but only if it’s rationally adequate and appropriate and suitable. 

Shared Lives – in this report it is not clear that anyone was suggesting that Miss X needed to move into a Shared Lives placement – there is another form of service where one goes to the Shared Lives Carer’s house for the day, as an alternative to day care. 

Most Shared Lives package are not placements involving an accommodation arrangement in return for council money. More typically, the Shared Lives service merely commissions services in the nature of care and support and the individual or their property and finance deputy or appointee are signposted to a tenancy or a licence that would attract housing benefit to pay rent/an occupation fee. So they are not services that the council is arranging. A mere appointee has no authority to sign the tenancy or licence as an agent but everyone overlooks that because it means that the HB just starts to flow and the person is happily sort of secure. There is no proper registration or scrutiny of the Shared Lives carer for providing care in the place where the client is then living, even if that is personal care. Safeguarding Leads, and Chairs, commissioners and CQC are not interested in that issue, as far as we can tell.

But when the suggestion includes the idea of going to live at the Carer’s house, it ought to be obvious that the client has to be willing to GO and live somewhere else and pay for that, or can otherwise be lawfully placed, by the council, in a setting where there will be care (often personal care) together with accommodation – either with best interests consultation of relatives or the agreement of a welfare attorney or deputy.

There is a special registration regime for that, which means it doesn’t have to be registered as a care home as long as the Shared Lives service making the accommodation arrangement is itself registered. This is something that everyone chooses to overlook. Shared Lives carers are notoriously poorly paid for what they do on the footing that they are self-employed and can thus claim all sorts of expenses of running a household against their ‘fees’. At the same time the individual is not given a budget based on their real needs; they are given a budget that simply matches the fees that the commissioners have told the providers that they will ‘take’. 

Most people working as Shared Lives carers are incredibly kind and willing and go far beyond the call of duty or the terms of the agreement with the Shared Lives service, providing a genuinely loving and attentive home for a person, and forming real relationships. We have no issue with the quality of service that can be delivered with this model. But this specialist sector needs to get clued up, it is suggested, before the model becomes discredited by the suggestion of collusion with councils in keeping people’s services suppressed to an artificially low level. 

Direct payments and ISFs – an ISF is an arrangement where someone (the council or a direct payment holder) contracts with a provider not just for the services but also for looking after the budget or direct payment. It is not a third way. It is one form of deployment or another: a commissioned package with freedom on the part of the contracted provider to sub contract and an expectation that the budget will be deployed with involvement of the person or their family OR a direct payment where the holder puts the direct payment into the management of the provider of the services, to be a sort of broker or commissioning support agent for the client’s ongoing control and deployment of that budget. 

If a person is at risk of losing a direct payment for whatever reason, to do with difficulties in managing it or spending it, and is committed to remaining with a particular provider, there is no reason at all why this cannot be set up as an ISF, as long as the DP holder is happy to nominate that entity to be the money manager.  We despair as to why this is not understood and used to good effect.

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

The full Local Government Ombudsman report of Calderdale Borough Council’s actions can be found here

Suffolk County Council and Trust at fault for failure to complete a CHC checklist and failure to discuss discharge planning with family members

Decision Date: 23rd July 2020

What Happened

Mr F complained on behalf of his mother, Mrs G.

Mrs G had been receiving privately funded care at home.

In October 2017 she suffered a fall and was admitted to hospital with a fractured arm.

On the 9th October Mrs G was admitted to the rehabilitation unit for treatment, as she was unable to mobilise with a trolley or frame. No CHC checklist process was carried out at this time.

The Trust carried out a ‘mini mental state’ examination, which Mrs G scored 9 out of 10. Therefore there were no recorded concerns about her mental capacity.

Mrs G followed a physiotherapy programme and was also assessed periodically by the OT team.

On the 7th November she met with a social worker to discuss discharge plans. Mrs G said she did not want to go home because she didn’t think she would manage, and instead wanted to go to a care home with a view of potentially staying there permanently. (She had previously stayed at that care home for respite care). She told the social worker that she wanted to source her care privately, and that if she did eventually decide she wanted to return home, she would reinstate her private care home package.

The social worker highlighted to Mrs G that if her savings fell below the threshold, she would need an assessment if she wanted to stay in the home permanently.

The next day Mr F had a discussion with the care home about options, and a discharge meeting to discuss further options was held with Mr F on the 11th of November.

On 13 November, a multi-disciplinary team meeting decided Mrs G was medically fit for discharge. The care home assessed Mrs G, and she was transferred there on 16 November.

Mr F complained to the Trust and Council. He felt Mrs G’s discharge to the care home was rushed, that the correct assessments were not done, there was a lack of support and information provided, and the family had not sufficiently been involved. He also complained that a CHC checklist was not done while Mrs G was in the rehabilitation unit. Mr F received responses from both but remained unsatisfied with the responses and complained to the LGO.

What was found

Although Mr F felt that Mrs G’s discharged was rushed, the evidence showed that Mrs G had been assessed appropriately by both the physiotherapy and OT teams. No outstanding needs were highlighted in the discharge summary, therefore there was no fault in discharging her to the care home.

The LGO highlighted that Mrs G had been deemed to have capacity and had stated that she wanted to privately fund her care. Therefore, there was no need to undertake an assessment.

Regarding involvement of the family, the LGO found that the Trust had sufficiently involved Mr F. It held numerous meetings with Mr F updating him on Mrs G’s progress and held appropriate discussions with him about the discharge planning.

However, the LGO found that there was a breakdown of communication between the social care team and Mr F. The social worker did not liaise with Mr F because it understood that Mr F was talking to ward staff about discharge planning. This was fault. The Council accepted that it ‘would have been helpful if the social worker had updated Mr F’.

The LGO highlighted that guidance from the Health and Care Professions Council (HCPC) states “You must communicate properly and effectively with service users and other practitioners”. It determined that there was an injustice to Mr F, because if he had been involved or informed about discussions with the social worker, he is likely to have had more information and understanding regarding discharge planning.

Finally, both the Council and Trust acknowledged that a CHC checklist was not completed until the day after Mrs G was discharged. This was fault. It should have been completed in the rehabilitation unit with Mrs G and Mr F present. This caused an injustice to Mr F, as he was left with some uncertainty, and it is likely he would have been better informed had he been present when the checklist was completed prior to Mrs G being discharged.

The LGO recommended that both the Council and Trust write to Mr F to apologise for the failure in completing the CHC checklist, and failure in discharge planning.

Public Law Legal Points for the public (and discharge co-ordinators) complaints staff and anyone interested in discharge to assess (D2A) during the pandemic or otherwise

The facts giving rise to the complaint occurred WELL before the pandemic as the report makes clear. At that point, the hospital discharge guidance that everyone was obliged to follow was in the Care Act and various regulations and guidance which sat uncomfortably with the NHS Framework for Continuing NHS Healthcare.

That Framework was update in October 2018 and big changes were made to the central role to be played in allocating STATUS to people before their discharge, of the process known as Checklisting for CHC.

The regulations had long since made it clear that even if a person is fit for discharge, medically speaking, that does not mean the NHS’s duty is OVER; not until that has been properly determined in cases where CHC status is a possibility can it be said that the NHS has finished the job it started in the acute phase of hospitalisation. Checklisting was critically important as a screening tool,  to sort out those people who MIGHT qualify (a positive outcome based on a low threshold of scored descriptors seeking to identify profiles of need that might constitute primary health need) from those who would most probably not (negative result).

The notion of the CCG paying for a step down bed or an interim bed when that crucial assessment could be done, in a non-acute setting, and then ultimately in the best possible environment for the person’s recuperation, was current even in 2017 for people with a positive checklist (the council paying for reablement for those with a negative checklist).

The 2018 changes made checklisting more the exception than the rule, unfortunately, which has created a perfect fog for all as to their rights. The issue is that people don’t understand the difference between an assessment of needs (of course that doesn’t have to be by a social worker, if the NHS is continuing to be responsible, and is not done under the Care Act) – on the one hand – and assessment of STATUS on the other – on which funding depends, for the longer term.

This mess has now become the gold standard and blueprint for Discharge To Assess (D2A) policy, pre pandemic, during the first lockdown and now, under the second phase of special Covid funding for NHS underwriting of the next stage of care after hospital (regardless of setting) for up to 6 weeks and thereafter by default, ongoing, if assessment (of status) has not occurred.

In our experience, no council’s advice and information materials or hospital discharge notes from the CCG or Hospital Trust are adequate to make sure people know who is responsible for what, and why, and under what. Forgive us for thinking that that is kind of important and not something that deserves to be left out of Matt Hancock’s White Paper on innovation and integration!

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

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

Royal Borough of Greenwich at fault for delays in assessment and making unsubstantiated accusations

Decision Date: 1st July 2020

What Happened?

Mrs X and her family had lots of contact with their local Council because her husband, Mr Y, and two young children, suffered with physical health problems.

In July 2019 Mrs X requested the Council assess her and her husband under the Care Act. The report did not specify her reasons for doing so.

An assessment officer phoned her a few days later, on the 11th July. Mrs X told the LGO that this caller did not say they were an assessor and that the caller refused to carry out an assessment, which is why she initially complained to the Council.

However, the Council stated in its reply to her complaint, that the caller had indeed introduced herself as an assessor. It said that Mrs X had explained her and Mr Y’s needs but wanted a home visit. It said the Assessor explained the Council did all assessments by telephone and only arranged a home visit if it thought it was necessary and the person was eligible for services.

The Council said that Mrs X raised her voice and called the Assessor a “monkey, a slave and a zombie who only listened to managers”, then said she would make a complaint. The Council said it had closed her assessment as she had refused to participate. It highlighted that it had carried out an assessment of Mr Y in May (two months prior) but closed the assessment as Mr Y was not eligible for services.

Mrs X replied, denying all allegations made against her. She asked for a transcript of the call and made a date access request for the recording.

The Council replied it did not record calls and did not have any transcripts of her conversations.

Mrs X complained to the Council again on the 31st of July, stating that she still had not been assessed, and continued to deny the allegations of name calling.

The Council replied on 11 September. It apologised for the delay. It said Mrs X had not cooperated with the assessment because she ended the telephone call but would now arrange an assessment for her and husband at their home. It said there was no evidence of the alleged abusive language, so because it could not substantiate this, it should not have referred to it in its first letter. It apologised for this.

The Council assessed Mrs X and Mr Y in September 2019.

Mrs X complained to the LGO, because she wanted the Council to amend its records.

What was found

The LGO recognised that the Council had acknowledged it had no evidence of the allegations it put forwards and apologised to Mrs X. However it had not addressed the distress it caused her.

The Council has a duty to carry out Care Act assessments. The Council was at fault for stopping its assessments of Mrs X and Mr Y. The Council did not start the assessment process again until two months later in September. This delay caused Mrs X and Mr Y injustice as they had to wait longer the necessary for the Council to assess her needs and potentially meet them.


The Council agreed to:

  • Apologise to Mrs X and Mr Y for the delays in their assessments.
  • Pay Mrs X £150 for accusing her of using offensive terms when it had no evidence to substantiate this.
  • Pay Mrs X and Mr Y £150 each for the delay in their assessments.

Points for the public – especially during Covid

The duty to assess is not a duty that can normally be rationed on account on insufficient time or staff. It’s a duty that is triggered once an authority has evidence of the appearance of needs – any needs for care and support.

Then it’s a matter of professional discretion and judgment as to whether the presenting needs compel a face to face assessment – there is no duty to do a face to face assessment. The manner and timing must be person-centred, but the way in which to do an assessment, as long as the minimum thought process is gone through as per the statutorily listed issues, is up to the council. The guidance says that a person’s cognitive impairment from whatever cause may well make it necessary to do an assessment face to face, and that applies even during Covid, unless a council has adopted Easements.

It’s not lawful just to say ‘We’re not doing face to face assessments’, or ‘not doing assessments’ during lockdown. It’s a job, it’s a process, it’s a duty, and the world has not ended. Even a council that had adopted Easements would still have to make human rights based decisions about who to assess and how.

Councils’ own duties in relation to their own staff do not justify saying that assessments are suspended just so that nobody is at risk of contracting or passing on Covid.

Case law has already considered advocacy and Mental Health Act assessment during the pandemic, and it must always depend on the presenting needs, whether a non-face to face will do the job required under the Care Act.

The judgment regarding the MHA process overturned NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic and may require professionals to reassess people detained under the act on the basis of video assessments.

The reason the judgment went the way it did in the MHA case was because the WORDING of the legislation is compellingly strict : s 11(5) MHA provides that an application by an AMHP cannot be made unless that person has personally seen the patient within the period of 14 days ending with the date of the application”. In addition, s13(2) imposes on the AMHP an obligation “to interview the patient in a suitable manner”. Section 12 provides that the medical recommendations required “shall be given by practitioners who have personally examined the patient”. 

The MHA code of practice provides that a medical examination for these purposes must involve “direct personal examination of the patient and their mental state”.

Those exercising functions under the MHA are obliged to follow the code unless there is a cogent reason to depart from it. The references to “personally seen” in section 11(5) and to “personally examined” in section 12 date back to the 1959 Mental Health Act and were then replicated in the 1983 Act.

These were the important features in that case, that will not necessarily be the case in the Care Act context, where advice and information should have been provided in advance, no risk of detention (other than deprivation of liberty under DoLS) is concerned, and the person’s particular difficulties taken account of and advocacy arranged:

  • Where a law authorises the deprivation of a person’s liberty without recourse to the courts (“administrative detention”), the powers are to be construed “particularly strictly”.
  • Parliament in 1959 and 1983 would have understood the medical examination of a patient as necessarily involving the physical presence of the examining doctor, confirmed by the fact that a psychiatric assessment may often depend on much more than simply listening to what the patient says but on picking up cues through body language or carrying out a physical examination. There would have been no other option at the time.
  • The statutory history of the words used in the MHA (dating back to the nineteenth century) shows that they were intended to be “restrictive and circumscribed”, to address the problem of doctors certifying people as liable to detention without having seen them.
  • The fact that the code of practice requires physical attendance and NHS England’s Covid guidance makes clear that in person examinations are always preferable shows that medical examinations should ideally be carried out face-to-face. The decision whether to allow video conferencing involves balancing the need to ensure objective evidence to justify deprivation of liberty and maintaining the system of MHA detention during a pandemic, which is a matter for Parliament, not the courts.
  • The use of video conferencing could remain in force for some time after the end of the current pandemic. Again Parliament, and not the courts, can best address these matters, including by considering whether the changes should be time limited.

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

The full Local Government Ombudsman report of Royal Borough of Greenwich’s actions can be found here

Buckinghamshire County Council at fault for deciding to stop Direct Payments without a formal review, without giving notice and without ensuring established needs would still be met on transfer to Continuing Health Care

Decision Date: 2nd April 2019

What Happened

Mr P began suffering from chronic pain in 2007. A subsequent round of surgery left him disabled and he used an electric wheelchair. Mr P’s wife was his full-time carer.

He was also under the care of a Trust’s Adult Mental Health Team (AMHT) due to having a recurrent depressive illness and dissociative disorder. He also had a Care Co-ordinator.

In May 2016 his Care Co-ordinator referred Mr P to the Council for an assessment to reduce the strain on Mrs P. The Council referred the case back to the AMHT for them to complete the assessments as its Care Act delegate under a s75 Health Act (partnership) agreement.

Mr P’s Care Co-ordinator completed the needs assessment at the end of July 2016, which proposed a package of carers visiting his home, to help with personal care, and a Direct Payment to allow Mr P to access the Jewish Association for Mental Illness day centre (JAMI), including transport costs.

Mr P said that they also discussed him being able to use his DPs for things such as going to watch football, rugby and cricket, going to the cinema and pursuing potential hobbies. He said they “agreed” to only list one thing on the assessment so as “not to over-complicate things”.

A panel considered his case August 2016 and agreed to fund the request for carers to visit Mr P. It also agreed for DPs to cover the costs of Mr P attending JAMI but rejected the application to cover travel costs to get there, for reasons that aren’t clear. The home care package began in September 2016.

Mr P was reassessed by the Council in February 2017, which concluded that Mr P would receive a Direct Payment of £267.25 a week to meet his assessed needs. Mr P began receiving a Direct Payment of £1,065 a month in April 2017.

The Social Worker also referred him to the CHC Team for a decision about CHC status. The CHC team conducted a decision support tool exercise in April 2017 and wrote to him mid-June 2017, confirming he was eligible for CHC funding.

In June 2017, the Trust replied to a complaint Mr P had sent in previously (the LGO report did not explain any details of the complaint). The letter stated that Mr P would receive back payments for the period 20th July 2016 (around the time when he was first assessed by the Care Co-ordinator), to 24th March 2017, so it must have been about his now funded needs, having existed back to that point, but perhaps never recognised, before.

Mr P’s Care Co-ordinator told him that he would need to provide receipts for that period in order for the back payments to be made, which he agreed to provide. Mr P never uploaded his evidence of receipts to the online system; he told the LGO that he has a large box of receipts. He said that he had a bad internet connection so the system would time out. However, he said that his Care Co-ordinator was aware of these problems and told him to keep the paper receipts which would be collected “when necessary for an audit”. Mr P still has those receipts.

In early July 2017 it was confirmed that Mr P would be paid a one-off sum of £6,160 for costs of travel and religious sessions for the past. The day he received the payments, Mr P made a bank transfer of £3,000 to Mrs P and £3,160 to his own account. He said that they used the funds to pay back sums to providers (Rabbis, reflexologists, etc) whose services he had used. The report did not outline what evidence he provided for that.

It was noted that these backdated payments were for costs of travel and religious sessions, although we are unclear why the cost of travel was allowed, when it has not been included in his care plan, and had been specifically rejected, previously.

For reasons that are unclear, the direct payments continued past the point of qualifying for CHC status. In March 2018 the AMHT asked the Council to stop Mr P’s DPs, seemingly without explanation. Mr P complained to the Trust about this.

The Trust replied stating that the DPs were suspended “as it was evident that Continuing Health Care was now in place to meet [Mr P’s] identified needs. There were also concerns that the Direct Payment had not been used for the purpose for which it was agreed and that this may need to be further explored”.

The Council and Trust sent a joint letter to Mr P in late August 2018. That letter said the DPs were stopped because CHC was in place. They said the CHC team had confirmed its support was meeting all of Mr P’s identified needs.

The Council and Trust highlighted that the CHC decision did not list any needs which were not covered by the CHC funding, therefore said this was evidence that Mr P did not have any outstanding needs. However, the CHC checklist had not included any information about Mr P’s cultural, religious or socialisation needs.

The Council completed its investigation into the suspected misuse of Mr P’s DPs in October 2018. It concluded that Mr P has not adhered to his original DP agreement (regarding the purpose of the payments), but that the notes were insufficient in showing that the consequences of misuse were explained to Mr P, likewise as to whether Mr P was ever warned that particular expenditure was not permitted. It also noted that the care plan records were incomplete and failed transparently to state what the DP was to be used for.

The Trust wrote to Mr P in October 2018 stating that he had used his DP for things outside of the agreement, totalling over £3,300. It said that it was not seeking repayment. It said it had asked AMHT to complete a new assessment with the CHC team, to make sure all of his needs were met.

Mr P complained, stating that the original backdated payment of £6160 was not enough. The Trust said they would make payments for the period between July 2016 and March 2017; 35 weeks of care. This would have amounted to £9353.75.

He also complained that the Trust had then stopped his DPs without notice. He also complained that the CHC funding did not include anything for his religious and cultural needs.

Mr P highlighted in his complaint that due to prior commitments he made when the DP was in place, ‘All the time I am begging and borrowing money from friends to pay for direct debits that need to be paid or I get handed over for collection’. Mr P said he and his wife were struggling financially as they had been trying to cover the payments that they were committed to paying via his Direct Payment. He said this had placed them in debt.

The LGO found that as of mid-February 2019 the Council and Trust said a joint assessment had just been completed by it and the CHC team. It said the assessment was yet to be finalised and agreed.

What was found

Delay in assessment

Mr P was referred to the Council for an assessment in May 2016, which was completed 9 weeks later. The Council’s policy states that assessments should be completed within 8 weeks. So the LGO considered that Mr P missed out on just over a week of funded care. This was fault.

Mr P said Mrs P lost out on three hours of work at £18 an hour each time she was unable to leave. Over two evenings this amounted to lost earnings of £108, which the LGO recommended the Council pay to Mr and Mrs P.

The LGO highlighted that regardless of the day‑to‑day arrangements under the Section 75 delegation agreement, the Council retained the ultimate responsibility for ensuring Mr P’s needs were properly assessed. 

Backdated Payments

In June 2017 the Trust said it would arrange a back payment for the period 20 July 2016 to 24 March 2017. The total back payment should have been £9,353.75. However, Mr P was only given £6,160. This was fault.

The LGO stated “it is difficult to understand where the £6,160 figure came from but there is no reassurance that it is a fair and correct calculation of the reimbursement it promised”.

Misuse of funds

The LGO stated that the care plan for how Mr P was to use his DP “was quite vague”.

The plan noted that Mr P wanted to attend JAMI, go on a beehive course, continue with his religious practice and education, go on an arts and craft course and go and watch his Premier League football team play.

The assessment recommended a package of support at home along with a DP for ‘5 days – JAMI day care and activities (mentioned above) to promote his emotional well-being and reduce isolation and suicidal ideation’.

The LGO looked at a DP account statement from April 2017- November 2017, where Mr P received £7,483 in DPs. The LGO deduced by investigation that Mr P had spent the money in the following ways:

  • £3,862.27 (51.6%) on religious classes and sessions
  • £1,921.25 (25.7%) on football, motor sport, cricket, rugby and other entrance tickets
  • £1,272.87 (17%) on fuel
  • £1,050 (14%) on reflexology.

The above amounts came from his DP funded by the AMHT.

Guidance is clear that Councils should only terminate DPs as a last resort. They may stop DPs where ‘it is apparent that they have not been used to achieve the outcomes of the care plan’ (CSSG, paragraph 12.73). If a Council does stop the DP, it must make sure there is no gap in support.

First of all, the LGO found no evidence that there was a review of Mr P’s DPs after the first 6 months, contrary to regulations, or before the account was suspended.

Furthermore, there was no evidence to show that Mr P was told any of his expenditure was not allowed, or that any further clarity was given about what the DP could or could not be spent on. There was also no evidence that Mr P was given a warning about the payments being suspended.

Given that the evidence suggested that the payments had been stopped because of the concerns over misuse of funds, rather than because CHC was in place, there was nothing to show that any alternative care was being put in place to replace the DPs.  Even if the presence of CHC funding influenced the decision to stop the Direct Payments, there was still uncertainty about whether the CHC package covered all of Mr P’s needs in October 2018, months after the DP stopped, as highlighted by the Audit team investigation. This is not in line with the National Framework for CHC. 

The issue of whether the CHC funding covered all of Mr P’s needs, including socialisation and religious and cultural needs, should have been clarified and made explicit before any funding was removed. This did not happen, which was fault. As a result of this fault there was still uncertainty about whether funds to meet Mr P’s identified socialisation and cultural needs were removed without alternative arrangements being in place to meet them.

All of this amounted to fault. There was fault in the decision to stop Mr P’s Direct Payment in April 2018. There should have been a formal review of the Direct Payment while it was active. Any concerns about its use should have been openly and explicitly discussed with Mr P and any restrictions on its use should have been made clear.


The LGO recommended that the Council:

  • Pay Mrs P £108 to reimburse her for lost earnings caused by the delay in completing a needs assessment between May and July 2016.
  • Complete a new calculation of the back payment for Mr P’s Direct Payment for the period 20 July 2016 to 24 March 2017.
  • Make a new back payment to Mr P for any difference between the new calculation and the £6,160 it credited to him in July 2017.
  • Complete a calculation of the amount of Direct Payments Mr P would have received from the time the payments were stopped in April 2018 and the time when the new joint social care/CHC assessment was finalised and agreed. The Council will also make a back payment to Mr P for the full amount of the missed payments.
  • Pay Mr and Mrs P (jointly) £500 as a tangible acknowledgement of the avoidable stress they were caused by the faults in this case.
  • Ensure that appropriate systems and training is in place to keep Direct Payments under review, and that any concerns are appropriately addressed and followed up.

Points for the public, councils, Mental Health Trust delegates/partners, advocates, etc

CHC funding status is supposed to cover health, personal and social care needs, once someone is eligible. NHS bodies are not allowed just to meet the health bit and leave the person without what they have been funded for, before qualifying – that should have been challenged.  Once someone is eligible for CHC, they are not supposed to GET any more social care money at all, but if the CHC plan doesn’t extend to replacement money for the social care services, it is no wonder that the man kept thinking it was right that the DPs were continuing.

The Direct Payment derives from a person’s personal budget under the Care Act and the requirement of a budget is that it is rationally sufficient to cover the response to assessed eligible unmet needs that has been finalised in the care plan.

The case law requires that that plan is transparent as to how the money should be spent across the domains of need, and the Act makes it necessary to provide such a plan, even when that plan envisages a person getting a direct payment. Transparency in that particular regard means telling the person at least which domains they should regard the money as FOR, and anything that they must not spend the money upon, so that they know the scope of the flexibility that they are intended to enjoy, through the DP deployment route.  

Reimbursement/back payments are properly payable because of the law of restitution – the principle being that restitution is due for any period when a council is in breach of statutory duty, IF someone has spent their own money on supplying the shortfall of care, or stepped up to do the care, unwillingly, or been forced to lose their own income by dint of stepping in willingly in the emergency.

Here, the carer’s wages were reimbursed, and the man was paid direct payments for periods when there was no funding in place but his needs should have been acknowledged as having gone back to well before the time that they were recognised. Restitution is not normally provided where NO-ONE has spent or lost money or time; in such cases the person may be compensated for the assumed IMPACT of not having had the care, but the LGO does not always differentiate when making recommendations.

The complaint is also hard to follow regarding the actual access/consumption cost of the sporting and other activities and the fuel cost.

Some councils have long embraced the notion of people with eligible needs spending money on paying for leisure or recreation, as long as it is no more expensive than the cost of care for that person would be, at home, because it is better value, by dint of meeting many more of their wellbeing outcomes.

But others say that this discriminating in favour of people with social care needs, because the rest of the public can only have as much leisure or recreation as they can afford – they say that whilst they will pay the escort costs, that will only be up to a reasonable level of that activity over the course of the week. There is probably no objective universal answer as to whether leisure and recreation are responses to ‘wants’ or ‘needs’, or how much of them is enough to meet the needs, in the latter situation.

These consumption/access cost/transport issues arise mainly where a council has been more generous in the past and then makes cuts because of shortage of resources, saying that it is still providing an adequate response.

The only remedy, then, is judicial review, for either the way in which that cut has been made, or based on the irrationality of the cut itself, or the impact on a person’s human rights (article 8 would be the one to assert – and in this case, article 7 which is about the right to manifest religious belief).

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

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

Cornwall County Council at fault for forcing a carer to carry on meeting needs by stopping direct payments and leaving any alternative source of care undelivered

Decision Date: 3 December 2020 

The LGO published this report notwithstanding agreement with most of the recommendations, because it was in the public interest to do so, given the significant fault, the injustice caused to the complainant and the Council’s refusal to make the suggested payment. 


Mrs D had significant and complex health needs and needs support with all aspects of daily living: cooking, mobility, toileting, personal care, dressing, cleaning, correspondence and attending appointments. Mrs D was prescribed oxygen for day and night use due to difficulties with her lungs; Mrs D’s daughter provided a significant amount of support every day. She felt she is the only one who can support her mother adequately. She worried about trusting her mother’s care to anyone else (an outside personal assistant or a care agency) as they do not know her and worried they will not be able to pick up signs she may be declining.  

Mrs D complained that Cornwall Council should not have stopped her Direct Payments in August 2018. She contended that the Council should also have allowed her daughter, who lived with her, to remain her paid carer. She pointed out that the Council failed to put a commissioned homecare service in place to provide her care when it stopped her Direct Payments, and because of that, her daughter was forced to continue to provide this care to her as an informal unpaid carer.  

The Council also failed to support her daughter in her role as her informal carer. This resulted in significant distress to her and her daughter, as well as financial hardship for her daughter. Her daughter could not take up any paid employment opportunities for herself, did not have enough breaks and was therefore unable to maintain her social life, engage with hobbies and interests and have regular time off to relax.  

Fault was found in many respects and the remedy that was agreed was that the council had to  

• apologise to Mrs D and her daughter for the faults identified and for the distress these caused;  

• pay Mrs D’s daughter an amount equivalent to what she would have received if the Council had continued to pay her for the care support for over a year until it found a care agency and offered Mrs D a commissioned care package in February 2020.  

• review Mrs D’s circumstances and decide if the Council should allow Mrs D a Direct Payment to pay her daughter to provide her care. If it decides to refuse this, the Council should provide a clear explanation in writing. If it approves this, the Council should provide clear information in writing about the Council’s expectations for managing the payments and details of support that is available to help Mrs D with this; and  

• share with its adult social care staff the lessons learned 

• pay the daughter £500 each for the distress she had suffered since September 2018.  

The Council had not yet agreed to pay £500 to Mrs D and the LGSCO gave the council 3 months to think about that and state its reasons.  

What happened 

Mrs D had been receiving Direct Payments (DPs) for several years. She had employed her children as her Personal Assistants (PAs) and had been paying them from her DPs for the care support they provided, on a self employed basis.  

After a DP review the council said she should provide evidence that all three PAs were registered with HMRC and had Public Liability Insurance in place. If she did not do this the Council would stop the direct payments. Mrs D also received an email with the contact details of an organisation (Disability Cornwall) who could help her with managing her DPs.  

The officer also raised their concerns about the way Mrs D was managing her DPs regarding not keeping timesheets and not recording support she received from her PAs. She had also not been paying her assessed weekly client contribution of £30.61 a week into the account from which the personal budget was managed.  

At the end of July 2018, Mrs D provided the evidence the Council had asked for, and clarified she only had one PA at the moment, her daughter who lived with her. Despite this, the Council stopped the DPs in early August 2018.  

In October 2018 it told her why it had done this, saying this was because of her failure to pay her assessed contribution; and because she found it difficult to manage her DPs and did not keep any records for her PA(s) so the Council could not verify what she was spending the money on.  

The letter also said that a DP could not be used to pay a close relative living in same household, unless the Council has agreed there were ‘exceptional circumstances’  

At the end of October 2018, Council records say Mrs D called in tears saying she was currently bedbound, and her daughter, as her unpaid carer, was on the verge of a nervous breakdown.  

In November, when an officer finally attended to re-assess her Mrs D said she felt bad that her daughter continued to care for her without receiving a payment. She had to give up work to carry out this caring role, which left her daughter without any money;  a care agency would not be able to provide the level of care her daughter gave, especially when she needs support at night and needs items to be exceptionally clean due to the risk of infection and ill health; and that her husband would not tolerate strangers in the house, which meant it would be virtually impossible to receive support from a care agency. 

Mrs D said due to her breathing condition she could not have people supporting her who smoke, have perfume, have pets, or have dusty/musty clothes, because it would impact heavily on her; and The daughter said she supported her mother 24/7 and did not mind that she always provided more hours of support than the Direct Payments had paid for.  

Mrs D’s daughter felt overwhelmed with her significant caring role and struggled financially. She was low in mood and frustrated. A carer’s assessment concluded that the carer role was not sustainable as she was unable to engage with any of her own ambitions or have time off while being assured her mother would be well supported. 

The outcome of the re-assessment was the Council would put formal care in place to meet Mrs D’s needs and enable her daughter to take up paid employment and improve her quality of life. Meanwhile, Mrs D would receive a one-off payment of £400.  

Mrs D and her daughter were still reluctant to accept support from a care agency. They felt that agencies would be unreliable and often late. The social worker reiterated the Council would not offer a direct payment and would look for a care agency instead. This made Mrs D and her daughter very upset. The matter was left in limbo. 

The social worker then started to get medical information from professionals involved in Mrs D’s care. She did this to determine if there were, as Mrs D claimed, any exceptional circumstances that showed the care could not be provided by a care agency or an outside PA.  

The GP surgery confirmed that Mrs D had complex medical needs, including hypersensitivity allergic reactions to certain substances, which affected her lung function. The GP also said they were not aware of any care homes Mrs D could go for respite where all potential triggers could be avoided.  

The council asked for the most recent reports detailing all of Mrs D’s diagnoses and information about known triggers to Mrs D’s allergies.  

The social worker chase up the response, but did not receive it. The Community Matron visited Mrs D to assess her health. She completed a checklist and sent this to the Council at the start of December 2018. This confirmed Mrs D’s breathing problems, which resulted in an inability to move around and put her at high risk of pressure sores, which would need to be monitored during personal care. It also noted Mrs D had depression for a long time and this had become much worse recently. 

The Council reinstated the DPs for six weeks, so she could pay her daughter to provide support to her, while “clarity was sought from health around clinical need to inform support required”. This was to allow the Council some time to consider evidence “in relation to [Mrs D’s] assertion that her complex needs cannot be met by a commissioned service” and thus evidence of “exceptional circumstances”.  

The DP payments were also backdated to the date they had stopped earlier in the year, so Mrs D’s daughter was paid for the support she provided between August 2018 and 25 January 2019.  

In mid-January 2019, the social worker sent an email to the Council’s service manager saying the GP’s response did not mention specific triggers for Mrs D’s breathing problems.  

Mrs D was required to try to speak to her GP and the District Nurse to get medical information to show how her health impacts her daily life and what environmental factors impact this; she said that if her home wasn’t cleaned thoroughly by her daughter, her health at home would decline even further; said she often needed support through the night and early hours of the morning. Some days she wanted to stay in bed with minimal support. If she decided that she and Mr D wanted to stay in bed, it would be intrusive to have a stranger come into their personal space to support her; and that strangers in the house would have a negative effect on her husband. Mrs D said his mental health would worsen, which would impact on his ability to be a source of company and support for her.  

Mrs D’s daughter said she felt she could not trust a stranger to pick up on signs when her mother is declining. Both she and Mrs D said as her mother’s condition fluctuates, she never knows how she will feel, so her needs could not be met by a pre-determined weekly-timetable.  

The record said that, due to the issues Mrs D and her daughter had identified, it was not possible to proceed with detailed support planning. Mrs D was insistent that her situation was an exceptional circumstance, and the social worker noted that more work would be needed to look into this.  

The DPs stopped after six weeks despite the Council having not yet completed its needs assessment and care planning. The social worker asked Mrs D and her daughter to keep a diary of how Mrs D felt and what support her daughter provided. Mrs D agreed to do this and send it to the social worker after 10 days.  

The social worker received the daily logs on 1 March.  Mrs D asked the social worker to put her “somewhere where I can be looked after properly until things are sorted out”. However, the social worker offered Mrs D some support from a care agency to enable Mrs D’s daughter to have some respite. Mrs D said she did not want ‘a sticking plaster’ but wanted matters sorted immediately. The Council decided that Mrs D had refused its proposal for interim care by a care agency.  

In early March 2019 the Council’s service manager said the Council should continue to “try and gain medical evidence to support exceptional circumstances”. The Council contacted Mrs D’s GP shortly after. The GP replied they did not have any further knowledge of specific triggers. Rather than calling the GP to discuss this further, and get further clarifications, the social worker responded by email asking for a medical judgement about ongoing daily care and if support can only be provided by the daughter.  

Mrs D was admitted to hospital in April 2019. Hospital staff told the hospital social worker that Mrs D was independent on the ward with her care needs. However, Mrs D explained that this was due to the sterile environment because of which her breathing improved.  

Mrs D mentioned again that she wanted a care agency to come twice a week to give the house a deep clean and for ironing tasks, to give her daughter a break.  

In April 2019, the Council decided there was not enough evidence Mrs D’s support could not be appropriately delivered by paid carers other than the daughter. It said that as Mrs D’s circumstances were not exceptional, she should not have a DP to pay her daughter.  

It offered an interim package of 22¼ hours per week, while Mrs D could try to get more evidence to support her case. This would consist of three visits per day and three hours a week to maintain the home.  

In May 2019, Mrs D’s GP wrote to the Council confirming what Mrs D had told the Council – her condition varied from day to day, she needed the flexibility of a live in-carer, which is exactly what her daughter provided. They confirmed Mrs D needed a particularly clean house as she is prone to picking up infections and her daughter spends four hours a day cleaning; anything less would be inadequate.  

The social worker wanted to know yet more information from Mrs D about her fluctuating needs.  

In late June 2019 the Council told Mrs D “The decision about the possibility of reinstating the direct payment has gone to management and they will be communicating a decision to you”.  

In July Mrs D told the social worker that, although she could go ahead with arranging carers, she did not want to have carers going in and out, three times a day. Also, she would need more hours a week for cleaning. In response, the Council said it expected all members of a household to contribute to cleaning.  

At the end of July 2020, Mrs D told the Council she was desperate and willing to try somebody to visit her once a day for three hours. In response, the social worker asked Mrs D to confirm at what time she would want the carer to come, there was no response, even though the social worker chased Mrs D up.  

Since mid-September the Council has been searching for a package of care. It has been unable to identify a care provider for months. Despite being unable to find a care agency, the Council did not consider setting up a DP for Mrs D again to enable her daughter to provide her care instead (at least in the interim), as had happened in the past. 

The Council’s position was that Mrs D still refused an offer to receive support by a care agency, at the end of February 2020.  

What was found 

The Council decided to stop Mrs D’s DPs in August 2018, even though it had not yet carried out a needs and carer assessment and had not yet identified a care agency who could take over the paid care provided by her daughter.  

As such, the Council in effect forced her daughter to continue to provide Mrs D’s care support. It also prevented Mrs D’s daughter from being able to find paid employment. This was fault, which caused Mrs D and her daughter significant distress.  

Stopping the DPs, even though Mrs D had provided the information it had asked for and without ensuring it had alternative care support in place, not carrying out the needs assessment and not finding an agency who could take over her care, was fault.  

Even though the Council felt it did not have enough information yet to make a decision about Mrs D’s exceptional circumstances, and there was no alternative care in place, it stopped the DPs again in January 2019. This was fault too.  

Since November 2018, the Council had been trying to gather information to decide how it can provide the care and support it accepts Mrs D needs. It reinstated the DPs for a short period, and backdated them, so Mrs D could be supported by her daughter. This remedied the financial injustice Mrs D’s daughter had experienced between August 2018 (when the DP first stopped) and January 2019, but  since February 2019, the Council has not provided Mrs D with the support she needed. As a result, her daughter was in effect forced to continue to provide this support on an informal basis. This was despite the carers’ assessment concluding this was unsustainable. This was fault too.  

The Council only provided a one off £400 carers payment during this time.  

While some of the delay in providing information was caused by Mrs D, it was ultimately the responsibility of the Council, and not the client, to get this information as part of a needs assessment.  

There has been considerable discussion about what care could be provided. The Council said it took until 11 September 2019 before Mrs D said she was willing to accept interim commissioned support. By mid-March 2019 Mrs D was saying she wanted support with cleaning and ironing, and she reiterated this in the hospital discharge summary in April. She also indicated she would try outside support if it could be delivered in one long visit, rather than several visits spread out over the day.  

The Council had not considered reinstating Mrs D’s direct payments in the interim to ensure it fulfilled its duty to meet her eligible needs. This was fault too.  

Since September 2018, the Council was ‘considering’ if Mrs D’s situation could be treated as an “exceptional circumstance”. This would mean she could receive DPs to pay for a family carer who lives in the same property (her daughter). According to the records the Council’s view was it had not received enough evidence to be able to conclude that any of the concerns raised by Mrs D meant that a care agency would never be able to provide Mrs D’s care support.  

The Council had to determine whether it was necessary to allow Mrs D’s daughter to be her paid carer. The Council failed to use its discretion and consider all the concerns Mrs D raised together. Even if there was no single issue that provided a decisive reason, the Council failed to consider if all the issues combined showed there was a clear enough case that it was necessary to make an exception, in terms of the quality of Mrs D’s care support, her overall wellbeing, and the wellbeing of her daughter and husband. This was fault.  

Progress towards resolution 

The Council told the LGSCO it would not pay Mrs D for any distress, because it says the delays were to a large extent caused by her and her refusal to accept commissioned care.  

Since then, Mrs D told the LGO that the Council offered a care package to her which she reluctantly accepted to try.  

However, her husband (who had mental health problems) could not cope with strangers visiting regularly.  

Her daughter has continued to provide her care but no longer lives with her; she lives nearby. This means that the restriction mentioned in the Care Act Guidance, that direct payments must not be used to pay a daughter or son living in the same household as the adult, no longer applies.  

Mrs D also confirmed again that she would agree for the DP to be managed by an outside agency.  

The council eventually changed its mind about agreeing to reimburse the daughter at the DP rate, and reconsider the position on refusing Mrs D a direct payment now that her daughter was not living int the same household.  

If it approves this, the LGSCO reminded that council that it  should provide clear information in writing about the Council’s expectations for managing the payments and details of support that is available to help Mrs D with this; if it refuses, it must provide reasons in writing as well.  

The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and the LGO would requires evidence of that. 

While it had agreed to pay Mrs D’s daughter a distress payment, it had not yet agreed to pay Mrs D. and the LGSCO required a decision within 3 months as to acceptance of that recommendation, with reasons if not.  

Points for the public of real importance – and senior managers and Monitoring Officers nationwide 

This is an example of the LGSCO applying public law – legal principles and case law under the Care Act. The LGSCO is not a court or a judge, but it must be maladministration for any council to fail to follow the clear law in the Care Act.  

This is a list of the things that the council could have been judicially reviewed for, in our view, if Mrs D had chosen to put her issue up the legal route, rather than complain. That would have cost her money, but she would have got the costs back from the council. The LGSCO is slower than the court, which is slow in and of itself, but at least the LGSCO does all the work.  

A happy medium between these two options is use of the Monitoring Officer remedy. That officer is bound to intervene to warn the Members if the council’s stance amounts to a likely contravention of an enactment (here the Care Act) or any rule of law (public law principles and case law that constitutes a binding precedent). 

Likely contraventions of an enactment or rule of law could have been asserted powerfully as follows: 

  • Failure to meet needs during the period where there was no money and no care – the council could not objectively say that the daughter was able to meet needs – see Ali Raja v Redbridge, 2020. 
  • Failure to address all the material that the council was provided with: that is a failure to take all relevant considerations into account and/or a failure to accord due weight to the extent of the impact that was being asserted and/or a failure to be transparent if in some way the evidence was not believed by the council. That is all unlawful by reference to public law principles – also enlarged upon in the Ali Raja case.  
  • Expecting household members to clean in order to meet a condition related need – because maintaining a habitable home environment to the extent that it is safe for the individual, is the responsibility of the council and no-one else. See CP v NE Lincs in its 2018 iteration – family members cannot legally be expected to care for adults. 
  • Failure to come to conclusions on the basis of the medical evidence, having spent an unconscionably long time about getting it in in the first place. That is unlawful – it was a failure to exercise the discretion regarding necessity for permitting the daughter to be paid, and that is a breach of public law principles. 
  • Failing to appreciate that if there is no care being provided, there could be only one justifiable response on the discretion to permit payment of a relative. Here, the council’s position was that it was stymied by Mrs D’s refusal to accept a lawful offer of commissioned care, but that stance is flawed by the recognition that the council did not even have access to sufficient service capacity.  
  • Having a ‘no capacity’ waiting list despite a breach of statutory duty – failure to commission enough care to meet needs. (This was all pre pandemic – please note that since March 2020, this state of affairs would now require the triggering of COVID-19 Easements. The social worker had said “My only reservation with recommending a care provider is the lack of resources and potential for her to be without care waiting on the no capacity list.” That is absolutely and undeniably unlawful because the ability of the social services’ team or the council’s procurement staff to AFFORD or FIND resources is not a defence to a mandatory duty to commission to meet need. If the council cannot find anyone to do it, it is legally obliged to go back to doing it itself, through in-house provision. Resources are relevant considerations for HOW the need is met, not WHETHER.  That has been the law since 1995.  
  • Failure to pay due regard to the wellbeing promotion duty in s1 of the Act, given the LGSCO’s findings about the failure to look at all of the evidence on necessity for making an exception regarding payment of the daughter in the round. 
  • Failure to provide the daughter with a support plan to meet the daughter’s care needs after the carer’s assessment. That is unlawful under s20, although it may have been that there was nothing that she would accept to reduce the impact on herself. 
  • Failure to make restitution in accordance with CP v NE Lincs in the Court of Appeal in October 2019 for the unjust enrichment to which the breach of duty gave rise to liability.  

We estimate that at 22 hours a week x £15 an hour for over a year, that is about £19,000, in total, which figure would have likely attracted a lot more publicity if it had been stated in the complaint report.  

The LGO published this report notwithstanding agreement with most of the recommendations, because it was in the public interest to do so, given the significant fault, the injustice caused to the complainant and the Council’s refusal to make the suggested payment. 

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

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

London Borough of Bromley at fault for setting an arbitrary limit on a personal budget and failing to show how assessed needs could be met within the final sum offered

Decision Date: 14th September 2020

What Happened

Ms X complained on behalf of her relative, Ms Y. 

Ms Y was a working age adult with long term health conditions.

Ms Y lived in her own house but received care at home (arranged by the Council). Ms X visited daily and helped to provide some care. 

Ms X had been given power of attorney over Ms Y’s welfare and finances as Ms Y had envisaged lacking capacity. 

In 2016 it was evident that Ms Y’s needs were increasing. After a hospital stay, Ms X, Ms Y and the Council all agreed that the only way to meet Ms Y’s needs would be in a care home. 

Whilst the Council tried to arranged appropriate residential care, Ms Y was discharged home with a home care package which cost £1061.76 per week.  

After receiving the homecare package for a time, Ms X and Ms Y changed their view about residential care. They thought that the home care package in place was the best way to meet Ms Y’s needs, and Ms Y now wanted to stay in her own home. 

The Council reviewed Ms Y’s needs (at an undisclosed date) which concluded that Ms Y’s needs required 24-hour care 7 days a week to ensure her safety and wellbeing (she had an unacceptably high risk level for falls). 

The Council acknowledged Ms X and Ms Y’s preference for home care and accepted it would be the least restrictive option (an aspect to which regard should be had in promoting wellbeing in s1 of the Care Act)

The Council set out the costs:

  • Residential care for a young person was £850 to £1600 per week
  • A local care home said it could provide care for £890 a week.
  • The cost of live-in care was said to be £864 a week, for those with low needs, £977 for those with medium needs, £1090 for those with high needs

In February 2017, the Council set Ms Y’s budget as £823 per week for home care, which would be made via direct payment to Ms X. It is not explained how that was calculated, in the report.

Ms Y’s care plan stated that its aim was to ‘provide support to remain at home’; however under each of the sections setting out her eligible needs it said, ‘this need will be met through 24-hour care in a residential care home’, which was not the case at all, given the discussions. It also set out ‘the need is met through a POC (package of care)’.

In May 2017 Ms X told the Council that Ms Y’s personal budget did not cover the cost of her care. 

The Council said that the budget could not be increased as it was ‘the maximum personal budget for 24-hour live-in care for someone under 65 years’, and suggested she contact a provider known to manage 24 hour care packages to sort something out within budget. 

During a review by the care manager in July 2017 Ms X again highlighted that the budget did not cover the cost of care, and that she felt the pressure to provide additional care for Ms Y. 

Ms X provided evidence from numerous care providers that actual costs were around £950 to £1300 a week to highlight that Ms Y’s budget did not meet her needs in terms of average rates in their locality. However, a review panel did not support this proposed increase in budget, stating that there was ‘not enough evidence of an increase of needs’. 

A year later in April 2018, a review highlighted that Ms Y’s friends and family were providing care to fill the gaps. Again the Council did not increase the personal budget. 

Another year later, in January 2019, another review was undertaken. Again, Ms X highlighted that the budget was not enough. Again, Ms X, Ms Y and the care home manager agreed that Ms Y should continue to receive care at home. 

Ms X ended up complaining to the Council:

  • Ms Y’s personal budget was not enough to meet her needs and she had been telling the Council this for two years. 
  • The direct payments funded two carers, one overnight seven days a week and one for five days a week – the personal budget did not cover the costs of weekend care and Ms Y had had no option but to fund this herself at a cost of £440 per month. 
  • The budget was also not sufficient to cover the cost of carers’ holiday pay, sick pay or required taxes.
  • She asked the Council to review and increase the budget so she could employ enough carers to meet Ms Y’s needs. 

The case was send to a funding panel, and the care manager provided a list of cost comparisons as at that point: 

  • Cost of an available local care home – £1050 per week;
  • Direct payments for daytime and a managed service for night-time care – £2078.93 per week;
  • Direct payments for 24-hour care – £2352 per week; (this would have covered at least two carers, probably 3 on shift, it is thought)
  • Cost of a fully managed service – gave a comparison figure of £1016.09 per week for a service user who had a significantly lower level of night-time need than Ms Y (so this was not an adequate comparator for the actual level of need)
  • It provided no comparison for the costs of care on a live-in care model, which it had agreed was the least restrictive option when it assessed Ms X’s needs in 2017, although it had not been what was wanted at that time.

The panel increased Ms Y’s personal budget to £1050 per week, the equivalent to the cost of residential care costs at this later point, even though there was no statement of intent to put her in a care home at that point.

The Council replied to Ms X’s complaint. Amongst other things, it highlighted that the April 2018 review concluded that Ms Y’s needs were actually being met by the DP and family members. 

Ms X remained unhappy and complained to the LGO. She said she was only providing support because the personal budget did not meet Ms Y’s needs. Ms Y had been paying £110 per week to fill the gaps of care, and Ms X had no choice but to provide extra care herself, because of the Council’s ongoing refusal to set a realistic budget. 

In response to LGO enquiries, the Council said that Ms Y received the ‘maximum’ personal budget, and that it was sufficient to meet her assessed needs. 

It said that the decision to pay for extra support was Ms X’s. 

It highlighted that Ms Y and Ms X had both originally agreed that a care home would be best for Ms Y, so if Ms X wanted to give up her caring role, the most economical way to meet Ms Y’s needs would be in a care home. 

The Council said it was able to cap DPs and that Ms Y’s direct payment had been capped at the level of residential care that could meet her needs.

What was found

Statutory guidance states that a personal budget must (rationally) cover the cost of meeting a person’s needs and should be (rationally) based on the cost of local quality provision. 

Councils can consider the cost of different care options when allocating personal budgets – see paragraph 10.27 of the Guidance. 

Case law going back to the 1990s also supports Councils being allowed to limit budgets based on meeting needs, not preferences, as long as the comparisons are all adequate responses to needs in terms of professional judgment in the first place.

However, Ms Y’s care and support plan failed to set out how her needs could be met through 24 hour OR even by live in care, within the budget allocated. This was fault. Ms Y’s personal budget was insufficient to pay for the care based on the costs provided in the care plan. Even if it was based on the lowest level of need, the budget would have been £40 short a week of the £1090 costing obtained a long time ago for live-in care. 

The Council told Ms X that the budget could not be increased, as it was the maximum budget allowed for a working age adult at home with 24-hour care. However, the Guidance is clear that Councils should not set arbitrary upper limits for personal budgets. This was fault. 

There was a lack of detail in the care and support plan setting out how Ms Y’s needs would be met by 24-hour live-in care based on the budget available. This was fault. This meant that it was unclear to the panel why the budget was not accepted to be actually  meeting Ms Y’s needs which then resulted in missed opportunities to review and alter Ms Y’s budget to meet her needs. 

When the Council did review Ms Y’s personal budget in 2019, it used the care home comparison rather than the live-in care costs to set the budget. This was fault. 

Ms X had been complaining about the insufficient budget since 2017 and the Council repeatedly said it would not increase it. 

As a result, Ms X had to provide care herself and Ms Y covered the gaps in costs. Ms X was also caused distress and time and trouble taking the complaint to the LGO. 

The LGO emphasised that personal budgets must reflect the cost of meeting a person’s needs, and that Councils cannot have arbitrary ceiling for personal budgets. Given that the woman was realistic about care home provision, the Council could have regarded that as not obviously Inappropriate as a response to eligible needs, and used care home pricing information when setting the personal budget, but only if it could show how the budget would meet the needs in the actual setting in which it was going to be deployed. It failed to do so, which was fault. 

The LGO concluded that between February 2017 and March 2019, the budget was not enough to meet Ms Y’s needs as assessed and set out in her care and support plan. Ms Y had been forced to use her own money to pay for additional care and support at weekends. The LGO calculated that Ms Y received around £40 a week less than she should have for 26 months (based on the cost of live-in care as a way that would have met her needs in a way that was similar to the service profile for which the money had actually been used).

The LGO recommended:

  • The Council pay Ms Y £4500 to make up the shortfall in funding, and to acknowledge the time and trouble she was put to. 
  • Apologise to Ms X and pay her £500 to acknowledge the strain she was put under
  • Review Ms Y’s care plan to clearly set out how her needs could be met within a budget. 

Points for the public, advocates, services users, lawyers, carers, managers and complaints staff (in CCGs as well as councils!)

This is a shocking case of legal illiteracy, in view of decided case law, on the part of Bromley’s senior management, it has to be said. 

The LGO said that the council had not addressed the proper calculation process for identifying a sufficient personal budget, because it hadn’t set out in the budget or plan, HOW the money was going to be able to meet the needs, and therefore it hadn’t got an evidence basis or rationally set about ensuring that the budget was sufficient to cover those real costs.

Instead, they’d consistently offered an alternative sum, based on what other methods could achieve, even though some of them were not accepted as even feasibly affordable by the council, and some were not accepted as adequate, or appropriate, by either side. 

The rate set eventually was a care home rate – the woman had made it clear that that was not her preference, but she was not implacably opposed to the idea, nor of the view that it would not ever be conceivably appropriately meet her needs. Very few people have needs that CANNOT be met in a care home, therapeutically appropriately; nor do many have needs that no care home will at least try to meet.  So that was not an irrelevant consideration.  However, it then went on to set the budget at that rate whilst saying it was the client’s choice not to spend it that way. In fact, it was the council’s choice not to walk away on the footing that the woman was refusing a lawful offer of care, and that is why the LGSCO is right to say it was still bound to meet needs in the real world, lawfully.

The LGSCO then hinted that if the council had paid £40 a week more, ie the rate it had established some years earlier as able to pay for live in care, it would have been good enough.

The woman had not had live in care, and by this time, may or may not have changed her mind but we can’t tell from the report. The point is that even if she had not, the budget awarded was short of even THAT rate, and that rate would not have been the same, so much later on as in 2017. So the rate being put forwards as ‘sufficient’ was not one that anyone could have got the necessary profile of care FOR, even with a live in model of care, rather than hours bought on shifts.

It was thus a fantasy rate – arbitrary, in terms of legal language – without any evidence basis as to it being conceivably enough.

We think that the LGO was right, on arbitrariness and sufficiency, but not fully right, in hinting that paying £40 more would have sufficed. The rate that was being used as a bench mark was from years previously. 

Secondly that rate was simply mentioned in the report without anyone bothering to explain that councils don’t actually BUY live-in care: they don’t employ individuals to live in people’s houses.

When they need more than about 11-13 hours of care needs to be met within a 24 hr period, they pay an agency or a direct employer’s rate for a rota of three carers being on shift – and one of those workers might be a ‘real’ live in carer, or one of the three might at any time be called a live in worker on the agency’s accounts, for saving money on the night time shift, because they will generally be sleeping and not awake. But they do not live there – they have homes of their own, elsewhere. So the cost to the local authority is not ever going to be the same as the cost to an individual of employing 2 live in carers, to cover a genuine need for access to help, 24 hours a day. An individual will have to find an employee, or two employees to rotate shifts and the accommodation overnight, and most introductions agencies who even help in that regard charge an ongoing weekly commission!

Lastly, we think that in actual fact, the real legal principle lurking under the layers of ambiguity here is this, which the LGSCO did not engage with: councils can only take the cheaper of two alternative adequate means of meeting a need for ‘capping’ or finalising their offer in another setting which the client is said to be ‘preferring’ or ‘choosing’, when the content of the notional ‘alternative’ package that’s been priced up as cheaper is one that is actually in the gift of the council – ie one that they can provide or contract for, without needing special favours from the person in question, such as 

  1. moving house to a different tenancy where the client has to pay rent but the care will be cheaper, 
  2. or letting a person in to live with them in their own personal private space, 
  3. or being a direct employer so as to avoid the corporate overhead and profit element in a fee to a company
  4. or accepting personal care from a spouse, even if the spouse is willing
  5. or accepting ‘shared’ care, by agreement, through a s25(11) Care Act agreement to do just that, thereby removing the risk from the council for failure to meet all the individuals’ needs, as individuals, with compliant s26 budgets which cover all of each of their separately assessed needs.

A person may not want to move house, in fact, and they can’t be made to – see the Perry Clarke case from 2015: they have Care Act rights already, without moving. 

They may have the room spare, but not want to have someone live with them, or baulk at the thought of having an actual employee, or be dead set on not turning their relationship into one where their spouse becomes their carer.  

And as to the last instance at e), a person with a learning disability in supported living may not have had the first clue that their budget has been reduced by dint of an assumed agreement to put up with shared care – as the price of getting OUT of an ATU or care home, usually, in to what is naively accepted by people’s relatives as a ‘Forever Home’ where all will be perfect, and who assume that THEY have power to agree, in a person’s best interests. 

But that is letting a council off of a statutory duty, which is only something that a welfare power of attorney holder or deputy can possibly have the authority to do. It is telling that there is no reference at all in s25(11) to how this sharing might even BE agreed, for people lacking in capacity to risk manage for themselves and absolve the authority of some form of responsibility in some sort of cause of action or regulatory forum or court or enquiry, should harm actually ensue from the sharing meaning that there’s not enough staff to go around in an emergency.

In fact, in most instances of supported living, the clients’ enhanced benefits will be taken, instead, by way of social care charges, and not even available to spend on activities that ARE a choice, instead of an imposition. And the care provider will have guaranteed the voids and HB deficits to the landlord, in return for nominations to the house, ensuring that the separation between tenure and care arrangements collapses, although CQC does nothing about that. Clients will be persuaded against direct payments, even though that possibility could in fact be delivered through Authorised Persons, who might also be regarded as having the power to ‘agree’ to share.

So much for personalisation, autonomy and control, in the face of commercial interests and austerity! 

Therefore, in all those cases we’ve identified, the adequate cost-effective ‘solution’ being priced up is not really ‘available’ to the council as part and parcel of its Care Act deployment and implementation powers, and hence not actually able to be compared or put on the table as if it was lawful. And all for good legal reasons, assault, human rights, and s25(11) of the Care Act – the options above cannot be regarded as solutions that meet needs, without a person’s consent. Which is why those options are not able to be cost-compared, as lawfully relevant considerations, unless the person DOES genuinely consent – and that means understanding that they don’t have to – they will still have legal rights to a properly identified care package or budget.

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

The full Local Government Ombudsman report of London Borough of Bromley’s actions can be found here

Sefton Council at fault for failing to engage an appropriately qualified deafblind assessor

Decision Date: 24Th September 2020

What happened

Ms C complained on behalf of her client, Ms B.

Ms B was deafblind within the meaning of the Assessment Regulations 2014.

Ms B had a care needs assessment in 2018. This assessment was completed by an assessor who was qualified to level 6 in deafblind assessments. The assessor said they had been advised not to specify hours of care deemed appropriate, as this gave rise to raised expectations, but she provided a guideline and the woman received a care plan that provided for 49 hours of support a week.

In 2019 Ms B was allocated a different social worker to complete a review (although the report calls it a reassessment. It’s not clear from the report whether that process was really just a review, (a look at how the care plan was working) or a reassessment because a review had considered that the care plan needed to change, in which case s27 requires a re-assessment of a proportionate nature.

This time around, the officer was qualified to level 3 in deafblind assessment.

Ms B complained to the Council that a higher qualified assessor was needed, but the Council disagreed.

On the 11th September 2019 a judge (in unrelated proceedings) ordered that any social care assessment for Ms B should be carried out by an assessor qualified to at least level 5.

The ‘re-assessment’ was paused, pending correspondence with the court, and finding a level 5 assessor.

In November 2019 a new social worker was allocated to Ms B who was not qualified to level 5 or above. The records stated that the need for a level 5 qualified assessor was being actioned, but noted: “There is no immediate requirement for an unscheduled reassessment as I’ve not been made aware that her Care Act needs have changed, but she is due a formal review. She does have health needs however, and we need to establish those in order to apply for health funding.”

Ms B received an email in January 2020 from the Council stating that health funding had been secured and asking whether Ms B required any further support from adult social care at this time. The Council did not receive a reply.

The Council said that having neither a reply from Ms B nor a referral for reassessment it could not arrange an unscheduled review, so the next reassessment would be the scheduled 2020 annual review.

The Council also said the court order did not specify that the Council had to complete a reassessment, only that any assessment should be completed by a level 5 qualified assessor.

What was found

The LGO stated that the Council was not at fault for using a level 3 qualified assessor to undertake the assessment it began, before the court order was made. The statutory guidance to the Care Act 2014 refers to assessors for the deafblind being qualified to level 3, or above where needs are complex, however the statutory guidance does not define complex needs. The LGO highlighted that this means that the statute allows for a level of professional judgement as to what qualifies as ‘complex’.

However the Council was still at fault, because the 2019 ‘re-assessment’ process was not ever completed. An appropriately qualified assessor had still not been allocated, therefore the whole Care Act process was incomplete, resulting in no updated care plan. This was fault.

The LGO recommended that the Council apologise, pay her £150 and begin the process of engaging a level 5 or above deafblind assessor in order to complete the reassessment.

Points for the public

To our minds, this is an unsatisfactory complaint report.

There are two legal questions here, not differentiated.

The first is whether the 2019 process was a review or a re-assessment after a review. In the latter case, it would have needed to be completed by a properly qualified assessor even if no change of the plan were to be required.  If it was just a review, then it was wrong of the investigator to call it a re-assessment; and the guidance appertains to assessments, and not to reviews, which can be done by a wider range of people, without specific training.

The second question was whether a re-assessment was actually needed (regardless of whether the beginning of the process had been a review or a re-assessment AFTER a review) in order to apply for health funding.

The investigator ought to have been clear about whether the social worker was relying on previously documented ‘health needs’ from 2018 for the CHC full funding (or part funding from the CCG) application (or checklist, if one was used), or whether there was an acknowledgement by the council by then, of a deterioration or intensifying of need which was thought to take meeting her needs over the limits of social care services into the concept of ‘primary health need’ or services that could not be said to be social care services. That thinking would have required a re-assessment.

We think it is typical of the Covid era that the Family Court thought it could tell a council what to do by way of decision-making about the level of training above the minimum for a particular person who is owed a duty by the council. It is in the council’s discretion, as long as level 3 staff are available – complexity could be indicated in any number of ways.

But regarding training and qualifications generally for the assessors of this client group, the definition of deafblind matters, for those who might come within it. It is the ONLY condition specifically referred to in the Assessment Regulations as compelling an assessor with specific qualifications related to that condition. It’s not the NHS definition on its site here, NHS stance on deafblindness but a regulations-based definition – see reg 6(3) below:

Assessment Regulations:

Requirement for specialist expertise – deafblind individuals

6.—(1) An assessment which relates to an individual who is deafblind must be carried out by a person who has specific training and expertise relating to individuals who are deafblind.

(2) A local authority must facilitate the carrying out of the assessment by providing any person carrying out such an assessment with any relevant information which it may have—

(a) about the individual whose needs are being assessed; and

(b) in the case of—

(i) a carer’s assessment, about the adult needing care;

(ii) a child’s carer’s assessment, about the child needing care;

(iii) a young carer’s assessment, about the adult needing care.

(3) In this regulation, an individual is “deafblind” if the individual has combined sight and hearing impairment which causes difficulties with communication, access to information and mobility.

Specific training is referred to in the Guidance as follows:

6.92….This specialist assessment must be carried out by an assessor or team that has training of at least QCF or OCN level 3, or above where the person has higher or more complex needs.

6.93 Training and expertise should in particular include; communication, one-to-one human contact, social interaction and emotional wellbeing, support with mobility, assistive technology and rehabilitation. The type and degree of specialism required should be judged on a case by case basis, according to the extent of the person’s condition and their communication needs. Local authorities should also recognise that deafblindness is a dual sensory condition which requires a knowledge and understanding of the 2 respective conditions in unison, which cannot be replicated by taking an individual approach to both senses.

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

The full Local Government Ombudsman report of Sefton Metropolitan Borough Council’s actions can be found here

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

Decision date: 07/02/20

What happened

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

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

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

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

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

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

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

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

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

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

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

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

What was found

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

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

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

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


Within one month, the Council would:

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

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

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

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

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

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

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

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

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

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

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

The full Local Government Ombudsman report on the actions of London Borough of Hackney Council can be found here:

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

Decision Date: 07/09/20

What Happened

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What was found

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

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

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

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


The LGSCO made the following recommendations:

Within four weeks the council would:

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

Within eight weeks provide evidence that it has:

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

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

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

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

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

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


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

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

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

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

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

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

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

REPORT 19000200 Hertfordshire County Council (192KB)       

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

Decision Date: 25/08/2020

What Happened

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

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

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

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

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

Mrs Y

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

The Council completed a safeguarding enquiry which concluded: 

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

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

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

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

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

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

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

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

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

Mr Y

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What was found


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

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

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

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

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

Quality of care

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

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

Complaint handling 

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


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

The LGO recommended that the Council:

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

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

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

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

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

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

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

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

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

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

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

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