Archive for Local Government Ombudsmen’s Reports

Wiltshire Council at fault for inadequate financial assessment, and concluding that there had been a deliberate deprivation of assets

Decision Date: 4th December 2019

What Happened

Mrs B complained on behalf of her father Mr C, who had Parkinson’s disease.

The dates are important in this report, so we have highlighted them.

Up until 2013, Mr C’s wife (Mrs C) had been informally caring for him. Over the years there had been communication between Mrs B and the Council discussing support for Mr C – for example he needed a level-access shower.

After a stay in hospital Mr C was successfully discharged without any care plan, and a month later in July 2013, a social worker visited Mr and Mrs C for a benefits check. The social worker completed applications for higher rate attendance allowance for Mr C and attendance allowance for Mrs C in September.

In late 2013 Mrs B contacted the Council to say that her mother had a serious illness. She explained that Mrs C was struggling as Mr C’s main carer due to her own care needs.

An initial assessment was undertaken in October 2013, and a support package was put in place for four weeks to help Mr C with dressing / undressing, bathing, getting in and out of bed, food preparation and taking medication, but was cancelled after one further month, following a review.

The LGO’s report did not explain why it was cancelled, or who by.

The Council undertook a financial assessment (no indication as to the date of the assessment), to determine whether Mr C would need to contribute towards his care (again, it was unclear from the report why they assessed his finances after the support plan had already been cancelled.) The Council assessed Mr C’s income and concluded that he would not have to make any financial contribution, because the house the couple lived in was not relevant to charges for care at home.

In December 2013, Mr and Mrs B bought their present home which had an annex next door, converted from a former stable building and treated as a separate dwelling. They bought the home with the intention of converting the annex as a space where Mr and Mrs C could one day live, to be close by for any support they needed.

In order to purchase their present home and its annex, Mr and Mrs B extended the term of their mortgage by 12 years and increased their own mortgage amount by £300,000.

Extensive renovation works were needed to convert the annex from an inaccessible two-storey dwelling to an accessible single-level dwelling suitable for a person with disabilities. Mr B saved up receipts totalling £69,402.13.

Mr C was admitted to hospital again in late March 2014. When he was discharged in April, his needs were reassessed (as his previous care package had been cancelled), and the Council agreed to put in a twice-daily care package.

Mr and Mrs C moved into the annex on 6 October 2014.  The Council completed a further assessment of Mr C’s needs. He declined respite care but said he would consider using day care that was discussed.

It is not clear whether he then received any social care at all. The couple’s daughter later contended that it was not foreseeable that he would need care, and thus potentially be charged, but it is not possible to tell from the report what the actual position was about services between October and November or between October and the following February where the couple’s previous home was sold.

On 7 November 2014, Mr and Mrs C signed a deed putting their previous home into Trust and agreed that 90% of the net proceeds of the sale of their home would go to Mrs B. The remaining 10% would go to Mr and Mrs C (or the surviving partner).

The house was sold in February 2015. £78,892.92 of the net sale proceeds were paid to Mr and Mrs B, with £8,765.00 paid to Mr and Mrs C.

Mrs C passed away in April 2015. Mr C inherited the money from Mrs C.

The Council reassessed Mr C’s needs in April 2015 and agreed to providing “double-up” care. The report did not indicate how long exactly the support was planned for, but the Council arranged to review his needs in September, where they authorised his support plan for a further 26 weeks.

The financial assessment process did not begin until 2017 – for reasons unexplained. The Council asked Mrs B for details of the equity release from Mr and Mrs C’s former home, and for verification of the conversion of the annex.

The financial assessment was finally completed in 2018.

  • It decided that Mr C should be liable for the full costs of his care from February 2015.
  • Having regard to the guidelines on deprivation of assets, it considered that, at the time the property was sold, Mr C would have had a reasonable expression of the need for care and support.
  • It noted that some of the proceeds of the sale had been used to adapt the annex, but that Mr C had acquired no legal interest in the annex.
  • It concluded that there had been deliberate deprivation of assets and that Mr B was liable for the cost of his care.

There followed further correspondence between the Council, Mrs B and her solicitor. However, the Council maintained its position but continued to fully fund Mr C’s care.

What was found

The LGO recommended that the Council review its financial assessment of Mr C.

Mr and Mrs B explained that the work to convert the annex from an inaccessible two-storey dwelling to a level-access dwelling suitable for a person with a disability was substantial. However, the Council only took into consideration receipts totalling £7,564.56, despite on several occasions Mr and Mrs B providing receipts totalling £69,402.13 for the full cost of conversion. The LGO did not recite what the council’s reasoning was for only considering that small, specific portion of the conversion costs.

The Council also questioned why there was no change in ownership to reflect the payment to Mr and Mrs B. Mr and Mrs B explained that with a mortgage of £300,000 on their overall home it was unlikely that the mortgage lender would consent to a change in ownership.

Moreover, Mr and Mrs C would have been unable to place a second charge on their own property, as there was already an encumbrance on the property due to earlier equity release.

Mr and Mrs B explained that the reason for the Trust was to make sure that they were reimbursed for the money they spent on renovating the annex. They said the Deed of Trust was not 100% in their favour, which was indicative of repayment rather than an attempt to circumvent the rules. They received £78,892.92 and provided receipts for the works totalling £69,402.13.

Mrs B stated that had the annex not been converted she would have been unable to provide support to her mother and father, so the cost to the public purse would have been much greater.

The Council explained that in carrying out the financial assessment it took into account the receipts for conversion costs totalling £7,564.56.

However, it said it would have expected Mr C to have retained a share in the annex and / or the sale proceeds.

The LGO concluded that there was fault in the way that the Council undertook its final assessment because it only took into consideration receipts for works undertaken totalling £7,564.56. It did not consider the receipts totalling £69,402.13 which Mr and Mrs B provided on several occasions.

Furthermore, at the time that Mr and Mrs C sold their home, they each had an equal share in the property. The Council should therefore have considered the question of deprivation of assets separately in respect of Mr and Mrs C’s shares. It had not done so and this was fault.

Given the substantial difference between the two sums, the LGO recommended the Council reviews its financial assessment. It recommended the Council

  1. review its decision in light of the fact that Mr and Mrs C owned equal shares in their former home;
  2. reconsider whether some or all of the renovation costs should be excluded from the calculation of Mr C’s capital;
  3. once it has completed the review, consider whether there has been any fault causing injustice which would warrant a remedy.

Points for the public and for charging officers

This complaint brings out the fact that the Care Act made deprivation of assets an issue for those needing to pay for home care, not just care home care.

What puzzles us about this report is that the law is that the value in one’s property is not relevant to financial assessment if it would be disregarded anyway.

From what we can tell, the value of the couple’s property would not have been relevant to any financial assessment at the time the man received services, because he was always receiving care at HOME.

Yes, of course we see that the property money was turned into cash, when it was not his main or only home, but if the couple had been bridging in order to move when they needed to, that would have given rise to a debt related to accommodation. It does not appear to have been foreseen that Mrs C would die so soon after moving into the annex with her husband.

To our minds, the man and his wife arranged their finances in order to pay for somewhere to live. If, say, he had merely promised to pay his daughter the money by way of rent over the rest of his life, it would not have been relevant, at all – it would have been a legitimate commitment for housing costs. Paying her back for converting it, could never be seen as deliberate deprivation of income OR capital assets in our view.

Yes, they entered into the trust deed AFTER the move, and that was a disposal of the bulk of the remaining equity, half of which was his.

And yes, the man probably knew that he needed support, when he entered into that trust, but the motivation was the antithesis of avoiding paying for care, as far as we can see.

Ultimately, he and his wife, whilst still his carer, needed support and he used their (and what became his) money, to obtain a place to live – an environment in which that support could be secured.

That does not seem to us to be a scenario where one could ever hope to justify concluding that the significant motivation for the disposal was the avoidance of a liability to pay for care!

The current Care Act guidance (which was not in force at the time when the Trust deed was entered into) says this:

11) There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:

(a) whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?

(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

There is also an example in the current guidance regarding ‘Max’ and ‘David’ which although about someone moving into a care home and then freeing up their share of the previously owned property, seems to us to be in point:

At the time the property is sold [for this, read the Trust Deed was entered into..], Max’s 50% share of the proceeds could be taken into account in the financial assessment [for Max’s services in the care home], but, in order to ensure that David is able to purchase the smaller property, Max makes part of his share of the proceeds from the sale available. [We think that this is comparable to agreeing to repay the expenditure on conversion of the property]

In such circumstance, it would not be reasonable to treat Max as having deprived himself of capital in order to reduce his care home charges.”

It does not seem to be lacking in credibility either, that the Trust, rather than a loan repayment agreement, was needed, because if there could be no second charge on the property the couple had previously owned (equity release is often geared to take up the whole of the value of the property) the expenditure by the daughter and son in law for the benefit of the parents, would have been unsecured.

The only point we would make is that the couple put a lot more into Trust than was needed to repay the debt, but the LGO says nothing about that. We think that that extra would have been an appropriate amount to pay by way of a reasonable fee for 6 months’ occupation of the annex prior to the freeing up of the proceeds of sale – and indeed, the owners had increased their own mortgage to make this project work.

So, overall, we are astonished that this approach was taken by the council – and applaud the LGSCO’s implicit engagement with the question of significant motivation.

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 Wiltshire Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-017-678

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Provider (commissioned by Bristol County Council) at fault for not following emergency procedure and failing to provide care for one night (relevant to Coronavirus scenarios)

Decision Date: 18th December 2019

What Happened

Mrs B complained on behalf of her husband, Mr B.

Mr B received three visits a day from care workers. The last visit of the day was scheduled at 9pm, to help him get ready for bed, which involved using a hoist to use the toilet. Mrs B could not help with those tasks as she herself had health problems.

Mr B started using the Care Provider (CP) on 30th January 2019. On Friday 1st Feb, there were heavy snowstorms which affected the CP’s ability to get to its customers.

The CP said that they rang Mrs B at 21.30 that night, to say that Mr B’s carer had broken down in the snow, so would be over an hour late. It provided a screen shot showing a call made to Mrs B’s number at 21:30 on 1 February 2019, lasting 13 minutes. The CP said Mrs B was very aggressive and upset, saying 11pm was too late and ‘hung up’.

Mr and Mrs B said they never received the phone call. Mrs B provided evidence that she called the CP’s emergency number at 21:52, 22:16, 22:31 and 22:32 (all lasting less than 1 minute).

After failing to get through to anyone from the CP, she called Bristol City Council’s main number and the emergency council number shortly afterwards at 22:23 to say Mr B’s morning and lunchtime visits were amalgamated into one and no-one had turned up for the evening visit. Mr B had not been to the toilet all day. He needed to be hoisted over the toilet and into bed.

The duty worker advised Mrs B to call the Care Provider’s out of hours number and call back if she couldn’t speak to anyone.

She rang back at 22:35 to say the out of hours number was switched off.

The duty worker also tried to get in contact with the CP, could not, so tried to arrange alternative care for Mr B. Nothing was available so advised her to ring 111. He wrote the following summary and referred the case to Mr B’s social worker to follow up.

“This lack of service is effectively an adult safeguarding issue in terms of care provider neglecting their responsibilities, leaving [Mr B] with no help with toileting and getting to bed. There has been no communication from the care agency, neither is there any facility for [Mr and Mrs B] to communicate their needs to the agency. Please can the s/w treat this as such and take safeguarding actions.”

The CP said it did not receive any voicemails from Mrs B, or the duty worker that night. It suggested that because of the snow storm, the on-call worker would have been taking calls and doing visits at the same time, so calls to the emergency number would have been transferred over to her mobile phone, possibly affecting the receipt of voicemails.

The Care Provider rang Mrs B back on Monday 4 February 2019. Mrs B said she had made several calls to the emergency number but no-one had got back to her. Mr B had not had a visit and sat in his wheelchair all night with wet clothing.

The Care Provider investigated the complaint; it found no problems with its telephones, and assumed that Mrs B did not want the visit because she had said ‘what’s the point’ and hung up, when the CP said they would be late to the 9pm visit.

Following this conclusion, came a long back and forth dispute between the CP and Mrs B over the phone calls. On the 4 March 2019 the CP repeated its findings and the LGO stated that the two parties ‘agreed to disagree’.

On 17 March 2019 the Care Provider gave Mrs B notice that it would be terminating its service on 16 April, as it had reports of Mrs B acting aggressively towards staff.

Mrs B denied this, and asked if the CP would consider. The CP declined, so Mrs B found an alternative agency, and complained to the LGO.

What was found

Missed appointment

The LGO stated that ‘Given the discrepancies in the call records provided by the Care Provider and the additional evidence from Bristol City Council I am unable to safely conclude that the Care Provider called Mrs B at 9.30pm to offer a visit.’

The provider’s evidence was that it made a call to Mrs B at 9.30pm on 1 February 2019 which lasted for 13 minutes. But a separate screenshot did not correlate with this call: it was taken half an hour later than the first one and shows a missed call from Mrs B’s number followed by two outgoing calls to her number on a Friday.

The first screenshot should show details of the missed incoming call from and the two outgoing calls, but it only shows one outgoing call at 9:30pm.

The second screenshot could well have been earlier in the day or from a different Friday – one could not tell for sure.

From the LGO’s perspective, this called into question the validity of the first screenshot.

This, coupled with the duty worker also being unable to get through to the out of hours number that evening led the LGO to its decision).

Despite the CP failing to offer a visit, Mrs B called the out of hours number four times, as did the duty worker. The CP’s failure to respond to those calls, whether a message was left or not, was fault which led to Mr B being left in an unacceptable state for a whole night.

Emergency Procedure

The Care Provider provided a copy of its emergency procedure. It covered bad weather situations and it required the Care Provider to inform customers that visits may be late due to bad weather. It also required it to have an out of hours emergency number. Given the failure to answer or respond to messages and calls on the emergency number the LGO concluded that its emergency procedure was not followed.

Given Mrs B’s disability, Mr B’s visit should have been assessed as a priority one. There was no evidence that it was.

The Care Provider had a reasonable amount of evidence from its staff of Mrs B being rude and aggressive. The Care Provider decided to give notice due to the impact of this behaviour on its staff. The LGSCO noted that the provider had explained its reasons, considered Mrs B’s response and gave her adequate time to find a replacement.

However, in recognition of the distress caused to Mr and Mr B by the failure to do the care visit, the LGO recommended the CP pay Mr and Mrs B £300.

Points for the Public, Service Users, Families and Councils

There is no detail in this report as to what the council’s own Safeguarding Team thought of this matter. Bristol was technically at fault however, because all statutory duties – even if contracted to outside providers, or delegated to outside providers, remain the responsibility of the public body. The duty is owed by the council to the client under the Care Act and is non-delegable.

The provider’s emergency plan was not a bad one, and it’s an interesting thought in light of the Coronavirus Act modifications to the duty to meet needs, when to do otherwise would be a breach of human rights.

Its own plan required the Care Provider to:

  1. monitor weather reports and if required check on the condition of vulnerable customers living in isolated locations;
  2. assess safety of staff;
  3. keep a list of all staff with 4WD vehicles;
  4. advise customers when appointments may be late due to conditions;
  5. borrow 4WD vehicles to reach cut-off customers who need assistance; and
  6. prioritise services according to a risk rating.

Priority level one customers include those who lived alone or who live with someone who is unable to assist in an emergency. This category was then prioritised according to the number of visits per day.

The plan gave a mobile number for out of hours emergency situations.

Let us assume that the Care Act has been suspended. The only people who are getting their needs met, under commissioning arrangements giving effect to the Care Plan, are people for whom an omission would count as a breach of human rights.

According to the LGO, this gentleman should have been counted as priority one.

If one asks oneself what that would mean, in a staff shortage situation where the backstop is human rights, one has to ask whether not being able to go to the toilet would be a breach of article 3 or article 8.

We have to say that it is not likely – for a one-off situation. It’s shocking, and it’s not desirable, or excusable, but a person competing for a carer, with a life-sustaining need, is going to be preferred, in an emergency.

But if it was not every now and then but systemic, because of an evening visit being cut out of the care plan, to free up services for someone else, because of the virus, the sector will be looking back to the Elaine McDonald case, where incontinence pads were not thought to be inadequate in terms of respect for her dignity and autonomy, by the Supreme Court (or the European Court of Human Rights)

Comparing that with Enfield v Barnard, in 2002 – is interesting – in which case a breach of article 8 was found to have occurred, and in which damages were awarded for a breach of statutory duty, in the context of community care:

Having referred to his back injury and to the tortuous route up steps and down steps to the bath and WC in the lean-to at the back of the house, [Mr Bernard] said this this:

“Because my wife is doubly incontinent and only gets, frequently, less than 1 minute warning of the need to use the toilet, she commonly defecates or urinates before we reach the toilet.

The result has been that I have had to persistently clean the carpets, together with her clothes and bedclothes.

This is a problem, which arises several times each day.

I have to go to the laundrette often twice a day, and because of the layout of the house, I have had to buy adult size nappies for my wife together with disposal pants and wipes…

We only have benefits to live on and the additional cost of going to the laundrette twice a day and having to buy large amounts of floor cleaner and carpet cleaner has left us impoverished. We have not been able to pay the difference between our Housing Benefit and rent because we are so impoverished by these laundrette and cleaning costs.

Additionally, my wife’s role in bringing up the children is greatly limited. She cannot access the upper part of the house at all and it is a real struggle for her to leave her bedroom, which is in fact, the family’s living room. She has no privacy. We have six children, and she is in the living room, which is accessed directly from the front, street door.

Understandably my wife finds this state of affairs depressing and demeaning. It is very humiliating for her to constantly defecate or urinate in her clothing, as she is unable to reach the toilet. This happens as a result of the layout of the house and because the house does not have proper adaptations for a disabled person.”

https://www.escr-net.org/sites/default/files/caselaw/full_judgment_2.pdf

The Court said this, using ECHR jurisprudence already established at that point.

“Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.”

In Price a severely disabled woman had been imprisoned for three nights for contempt of court. In paragraph 30 of its judgment, the court said: “There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3.”

It should be noted that in that case male officers had been required to assist in lifting the applicant on to and off the toilet, and that “by the time of her release the applicant had to be catheterised because of the lack of fluid intake, and problems in getting to the toilet had caused her to retain urine”.

Although not conclusive, the fact that there was no intention to humiliate or debase the claimants is a most important consideration. The cases concerned with prisoners’ rights, upon which the claimants placed great reliance, must be treated with great caution outside the prison gates. A prisoner is in a uniquely vulnerable position: detained against his will, he is literally at the mercy of the prison authorities. It is understandable that the protection afforded by Article 3 should be rigorously applied in such circumstances, even if there is no intention to humiliate or debase.

By contrast the case under Article 8 is not finely balanced. Under Article 8 the claimants are entitled to respect for their “private and family life.” While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private or family life… In Botta v Italy [1998] 26 EHRR 241, the court said this in paragraphs 32 to 34:

“Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the state to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.

… I accept the defendant’s submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of Article 8. Respect for private and family life does not require the state to provide every one of its citizens with a house: see the decision of Jackson J in Morris v LB Newham [2002] EWHC 1262 (Admin) paragraphs 59 to 62. However, those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act.

Whether the breach of statutory duty has also resulted in an infringement of the claimants’ Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?

Following the assessments in September 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants’ family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities.

Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after their children. It would also have secured her “physical and psychological integrity”. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.

The Council’s failure to act on the September 2000 assessments showed a singular lack of respect for the claimants’ private and family life. It condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Article 8.

Accordingly, I have no doubt that the defendant was not merely in breach of its statutory duty under the 1948 Act. Its failure to act on the September 2000 assessments over a period of 20 months was also incompatible with the claimants’ rights under Article 8 of the Convention.”

In my experience in this court, dealing with a wide range of complaints against public authorities, most citizens who have suffered as a result of some bureaucratic error are not motivated, or at least not primarily motivated, by a desire for monetary compensation.

They institute proceedings because they feel outraged by what they see as an injustice and want “them”, the faceless persons in an apparently insensitive, unresponsive and impenetrable bureaucratic labyrinth, to acknowledge that something has gone wrong, to provide them with an explanation, an apology and an assurance that steps have been taken to ensure (so far as possible in an imperfect world) that the same mistake will not happen again. This assurance will at least give them the satisfaction of knowing that they have not suffered in vain.

If a public body takes all of those steps reasonably promptly, once the problem has been drawn to its attention, then it may well be the case that nothing more is required by way of monetary compensation in order to afford “just satisfaction” in very many cases.

Sadly, that is not the position in the present case. The defendants were repeatedly urged by the claimants’ solicitors to take action in numerous letters written between August 2001 and February 2002; most of those letters were simply ignored.

Through Counsel, the defendant agreed to the making of a mandatory order on 27th March 2002, but there has been no acknowledgment that the defendant was in error, no explanation, no apology, and nothing to indicate that the defendant’s procedures have been improved so that the same kind of mistake, the Housing Department failing to act on Social Services Department assessments, is less likely to occur in the future. Moreover, the defendant’s conduct in dealing with the matter was not confined to mere inaction. In February 2002 the Housing Department threatened to evict the claimants. The threat was soon withdrawn, but it should never have been made had there been proper liaison between the defendant’s Housing and Social Services Departments. After 27th March 2002 the defendant failed to comply with the original and then with the extended timescales set by the court. There may well have been a reasonable explanation but, again, there has been no apology or explanation, and the apparent delays were compounded by the defendant’s insistence, maintained until the 11th hour, that the offer of 66 Mitchell Road had discharged its statutory duty.”

“The parties had not considered the two other possible sources of information: the reports of the Local Government Ombudsman and the awards for pain and suffering in cases of minor personal injury. I invited them to make written submissions dealing with these matters, and I am most grateful for their very helpful responses. Mr Clayton referred to a number of decisions by the Local Government Ombudsman, recommending awards between (at current values) £16,530 and £2,120 for various failures in the field of social services: to provide care for a child with severe learning difficulties, to provide home care assistance for a mother with multiple disabilities, to provide a residential placement for a young man with learning disabilities, to provide a residential care home for an elderly lady, and adequate care at a multi-purpose day centre for a young man with sensory impairment. In all of these cases, the families who acted as carers suffered varying degrees of stress, exhaustion, anxiety and disruption to their lives. At the bottom end of the scale, a mere failure to recognise a carer’s needs merited an award of £2,000. Non-provision of services for a relatively short period of time can result in a substantial award (£5,000 for 11 months of stress and exhaustion). At the top end of the scale, in cases where there is a great deal of anxiety and disruption or extreme stress, significantly more has been recommended (£10,900). The highest recommended award (£16,350 at current values) included a significant element of pecuniary loss. The complainant had been unable to find a suitable job because of her care commitments, had sought medical treatment for depression, had exhausted her substantial savings and was reduced to living on income support, her previous standard of living having disappeared.”

It is very much in the interests of society as a whole that public authorities should be encouraged to respect individual’s rights under the Convention. A “restrained” or “moderate” approach to quantum will provide the necessary degree of encouragement whilst not unduly depleting the funds available to the defendant for the benefit of others in need of care.

For all these reasons, I am satisfied that the award to the claimants should be at the very top of the £5,000 to £10,000 range identified above.

Although there are two claimants it is important to avoid double counting, and since these damages are intended to give them just satisfaction for a breach of their Article 8 rights, it is sensible to start off with an overall figure to reflect the impact of the breach on their family life together, and then to apportion that figure between the two claimants having regard to the relative effects on their private lives.

Bearing all these factors in mind, I conclude that the appropriate figure is £10,000, and I apportion that £8,000 to the second claimant and £2,000 to the first claimant.”

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 can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-019-660

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London Borough of Bromley at fault for failing to consider sufficiently if a care home could meet a person’s needs

Decision Date: 26th November 2010

What Happened

Mr X complained on behalf of his father, Mr B, who was from Gujarat. Mr B spoke Guajarati with only a limited amount of English, and was Jain, so in observance of his faith he followed a strict vegetarian diet with no eggs, onion, or garlic.

The Council assessed Mr B as needing residential care in January 2019.

The Council suggested he move to a nearby home, but Mr X found that no staff member could speak Guajarati and the home could not cater to Mr B’s dietary needs.

Instead, Mr X found Mr B an alternative home (home A), in an alternative borough, which had Guajarati speaking staff, social and religious events in that language, and could provide meals suitable for Jains. However, this home was more expensive.

The Council agreed to increase Mr B’s personal budget to around £200 per week more than it would usually pay. In an email to Mr X, the Council confirmed that it had “agreed to fund at the residential rate…at £637pw”. This still left a shortfall of nearly £240 per week.

Before Mr B moved into Home A, the Council wrote to him with information surrounding paying with his care, for example information about third party top-ups.

After Mr B moved, Mr X started to receive bills, and he realised he had misunderstood how the funding would work. He had thought that the Council would pay £637 and that Mr B could make up with shortfall using his pension. However, the Council’s figure already included Mr B’s contribution, so the further shortfall was for Mr X and the family to find.

The Council assessed Mr B’s income and decided he should pay £240 per week and that Mr X would still need to pay a top up of a further £240 per week. By this time Mr B had settled into the home and his family did not want to move him.

Mr X complained to the Council that he was told too late about the top up fees, and that the Council were unable to meet Mr B’s needs elsewhere.

The Council responded, stating it had sent him information about how the fee was broken down and a link to its guide before Mr B moved in. It said also that Mr B’s needs could have been met within the Council’s rate of £637 per week but Mr X had chosen a more expensive home, knowing that the family would have to pay a top-up fee.

What was found

The LGO found that the Council was at fault because it could not evidence that it investigated available homes sufficiently or offered a suitable place within Mr B’s personal budget.

Internal emails highlighted the Council had considered whether it was able to offer Mr B a choice of homes, but not sufficiently.

The emails confirmed the Council’s stance that it ‘expected’ all care homes to provide services to adults of various ethnic, cultural and religious backgrounds. However, this was not enough for the LGO. The Council had to actually be satisfied that the home it offered could actually provide the services within the personal budget.

Despite the misunderstanding, the LGO found no fault by the council in how it communicated with the family regarding the top-up fee. The relevant information was made available to Mr B, and the LGO considered the mistake to be genuine.

The LGO recommended that the Council take over payment of the third party top-up, pay Mr X the total of the top-up payments he has made to date, and investigate how other homes could meet Mr B’s language and religious needs within his personal budget. If the Council were unable to find an alternative home, it should continue to pay the top up-fees, if they were able, Mr B could move to the cheaper home or Mr X and his family could resume paying the fees.

Points for the public, service users, commissioners, families and care homes

The Care Act guidance requires councils to commission a good quality and diverse range of services.

A council cannot claim to have commissioned reasonably if there is no provision for ensuring that people’s religiously driven dietary requirements are met, within a fee rate, because it is a person’s human right to manifest their religious beliefs, within reasonable limits, in the context of affecting other people in the care home.

Councils, under the Care Act, and care homes providing for people’s needs to be met in care homes and providers providing for home care in the community, owe human rights directly to members of the public, if the service is funded publicly, including through a direct payment.

The Care Act makes that the law by the requirement that councils promote wellbeing and by the principle that the Guidance must be followed unless there is a very good reason not to.

One would not even be surprised if Ramadan or Kosher sensibilities were funded so as to be assured of observance, in council contracts with care homes seeking to provide an environment that was person-centred for people of Islamic or Jewish faiths. Whether that is done on a flat rate basis or on the basis of a person-centred NEED makes no difference: it just needs to be done for the care to be minimally appropriate.

The fact that a religion may be less well represented in an area may be a good reason for negotiating a spot contracted for extra fee for observing a specialist diet. This man though, was merely committed to being a vegetarian, with a particular disdain for eggs onions and garlic, which one would not see as unusual these days, now that ethical veganism has been regarded as a philosophical belief by at least one tribunal in 2020.

We think that the language point is even more important and goes to the essence of the capability and appropriateness of the proposed service, to meet the needs of the service user.

Whether the environment’s offering of Gujarat culture and Guajarati speakers actually ‘justified’ another £200 above the asserted normal rate for people of this man’s level of need is another matter, and we cannot know whether Bromley’s usual rate was an arbitrarily low one in the first place.

But that is all irrelevant in this specific context: if there is only one way to meet the assessed eligible needs, then it is not the family’s fault that the provider has had the commercial sense to charge more for providing a scarce resource. It was a NEED and not a want, we think a court would have said, had the matter gone to a court.

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

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-001-438

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Inspiration Care Limited at fault for ending its service inconsistently with its service agreement

Decision date: 29th November 2019

What Happened

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

Miss Y was assessed as needing 56 hours’ support a week at home, including an escort to and from her work placement. Miss Y contracted for the services of the Care Provider to deliver her care package using direct payment (DP).

In June 2018, the Care Provider had several staff changes over a short period of time. Mrs X complained to the Council about the effect this had on Miss Y’s standard of care. She said:

  • before the staff changes the Care Provider arranged an on-call service so Miss Y could contact support workers if she was feeling unwell or anxious. Mrs X said this service ended without any warning;
  • the Care Provider escorted Miss Y to and from her work placement. Mrs X has complained about one occasion when the support worker did not arrive which caused Miss Y considerable distress;
  • Miss Y had capacity to manage her own finances, but the Care Provider restricted access to her money, financial records and care notes, by locking them away in a filing cabinet;
  • Miss Y’s support hours were used inappropriately by staff for their personal commitments;
  • the Care Provider lost the keys to Miss Y’s home.

After sending its complaint response, the Care Provider terminated its service agreement with Miss Y, giving 28 days’ notice. Mrs X said the Care Provider did not explain why it ended the agreement and did not give Miss Y enough time to find an alternative care provider. This meant Miss Y had to move into a residential care home for two weeks.

The Care Provider eventually arranged a meeting to discuss Miss Y’s complaint at short notice and therefore she did not have the opportunity to have a representative present.

The Care Provider said it did tell service users about the staff changes and tried to contact Mrs X and her family. It said that the on-call service did not end, it did not keep a copy of Miss Y’s house keys, and disputed that support workers failed to escort her from her work placement. It did however accept that Miss Y was taken to a member of staff’s slimming class, but said Miss Y agreed and they were only there for a short time.

What was found

The LGO said that ‘regardless of which version of events is correct, many of the matters complained about would not meet the threshold for fault or have caused Miss Y any significant injustice.’ Evidence suggested that Miss Y was told about the staff changes, and that despite being taken to a staff member’s private appointment, she agreed to it. Therefore the LGO did not find fault or injustice here.

The LGO did however find fault in the Care Provider restricting access to Miss Y’s finances.

Despite being assessed as having capacity, the Care Provider said it put the restrictions in place to protect Miss Y’s personal information following the introduction of the General Data Protection Regulation (GDPR). However, it then accepted that it misunderstood the GDPR requirements and gave staff further guidance.

Despite the LGO finding fault, there was no injustice found to have been caused to Miss Y, as she still received support each day.

The LGO did not find fault in there being no representative for Miss Y present during their meeting, because the Care Provider gave Miss Y the option to postpone. As Miss Y was happy to go ahead, the LGO could not say the Care Provider was at fault.

The LGO saw ‘some evidence of fault’ in the way that the Care Provider ended its service agreement. It was not at fault over the length of its notice period but was at fault for the circumstances it ended the agreement.

The contract of services between the Care Provider and Miss Y stated 28 days’ notice will be given in writing to terminate the contract.

The Care Provider said it had a meeting with Miss Y to discuss the termination of the service agreement and confirmed the 28 day notice period. It said the written minutes from this meeting were sent to Miss Y.

Miss Y had to move into a residential care home for two weeks as there was a delay before her new provider could arrange care. The LGO did not find the Care Provider at fault for this, as it was outside of their control, and the notice period it gave was in line with its contract.

The LGO did highlight however that ‘while the Care Provider was entitled to end the service agreement, the reason for ending the service was a little unclear and did not seem to fall within the circumstances listed in its service agreement.’ The LGO said that although the minutes were sent to Miss Y, it would have been beneficial to send Miss Y a letter to confirm the outcome of the meeting and the reasons for ending the agreement. The LGO failed to go into what injustice may have been caused by that omission, however.

The LGO recommended that the Care Provider apologise to Miss Y for ‘not ending the service in line with the service agreement.’

Points for the public, service users, and families, advocates or council staff

Notice over a reasonable period is likely to be implied into any support provider’s contract for personal services, because in this country it is accepted that one cannot and should not enforce on a provider the obligation to provide services that are essential to a person’s wellbeing against its will. It would be asking for trouble.

So, the law is that there’s either a reasonable notice period to be implied or an express provision detailing the timing.

These days, a prudent provider would not just stop there, but would detail the circumstances in which it might envisage giving notice, the most obvious one of which would be the person’s direct payment falling behind the market rate for care in the area.

Another typical termination trigger might inability to meet the person’s needs by reason of specified (or unspecified) situations. There are LGO reports in this section as to care homes not really being able to explain why a person could not be re-admitted back to the home after hospital discharge, and not having deteriorated, so the LGO can evaluate the reality of the situation and will find fault sometimes.

Another one might be irretrievable breakdown, a claim to which the LGO tends to respect, because of knowing you can’t make an unwilling provider keep someone on their books.

Our view is that there should also be scope for challenging notice on any such grounds, within providers’ contracts with direct payment clients.

That is because all providers providing services to those who are publicly funded, do owe human rights directly to the funded client. Given the upheaval that termination invariably causes for the service user, it would be only reasonable conscientiously to attempt to resolve a matter, and not regard the making of a complaint as the reason for the termination in the first place.

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 Inspiration Care Limited’sactions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-011-402

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Three LGO decisions focused on autism highlight some potentially relevant issues for public authorities

Statutory guidance states that local authorities must ensure that all frontline staff have general autism awareness so staff can identify potential signs of autism, understand how to make reasonable adjustments in their behaviour and communication.

The Autism Act 2009 required the government to produce statutory guidance for NHS and local authorities on working with autistic people. The guidance was originally published in 2010, and was updated in 2015. At paragraph 1.4, it says:

In line with the 2010 statutory guidance, local authorities should be providing

general autism awareness to all frontline staff in contact with adults with autism, so that staff are able to identify potential signs of autism and understand how to make reasonable adjustments in their behaviour and communication.

In addition to this, local authorities are expected to have made good progress on developing and providing specialist training for those in roles that have a direct impact on and make decisions about the lives of adults with autism, including those conducting needs assessments.

This expectation remains central to this updated statutory guidance”.

  1. Salford City Council (19 002 111)

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-111

What Happened

Mrs W was autistic and had a number of health needs which caused her to need support. Mrs W had never had a financial assessment and her care plan was both several years out of date and incomplete. This resulted in a dispute between herself and her support provider, and a complaint to the Council.

Findings

The LGO firstly highlighted that having a care plan so out of date and inadequate put Mrs W at an increased risk of harm, which was fault. An inadequate assessment leads to inadequate care, leading to (an increased) risk of harm.

The updated government 2015 statutory guidance under the Autism Act places a requirement on local authorities to provide general autism awareness training for all front line staff, as well as specialist training for those in particular roles.

The Council had not implemented this, which was fault. They had no-one trained in autism to undertake assessments. However, the LGO could not demonstrate that Mrs W suffered any actual injustice.

  1. Staffordshire County Council

https://www.lgo.org.uk/decisions/adult-care-services/other/17-014-693

What happened

Mr B had Asperger’s syndrome, a learning disability and OCD. The dispute with his Council related to his wish to move to supported living, which the Council felt his lower level of needs did not justify.

Mr B’s lawyer arranged for an assessment to be carried out by an independent autism specialist. This concluded that the Council’s assessment was flawed because it did not offer insight into Mr B’s communication difficulties and rigid thinking.

The specialist found that Mr B’s care and support needs had been significantly underestimated and the Council was failing to meet them: Mr B needed support from staff with a good understanding and experience of working with autistic adults.

Findings

The LGO found fault because the Council was unable to provide any evidence that its officers had autism training or previous experience of working with adults with autism. The Act places a legal requirement on local authorities that all assessors must have the skills, knowledge and competence to carry out the assessment in question.

Guidance also states that if an assessor does not have experience in a particular condition (such as autism), they must consult someone with relevant experience”. There was no evidence that they consulted specialists in relation to Mr B’s autism. Had they done so, the outcome of the assessment may have been different, and thereby the LGO could show that Mr B was caused a significant injustice.

3. Stockport Metropolitan Borough Council (18 014 455)

https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/18-014-455

What Happened

Miss X had highly complex needs including Atypical Autism, learning disabilities and dyslexia. She was also diagnosed with a “communication disorder affecting both her receptive and expressive language skills”.

After a hospital stay, Miss X was discharged to Hostel H. It was clear that she was troubled and vulnerable. Her family requested safeguarding procedures begin, as they felt she was at risk of harm. Miss X was never formally given a care assessment and no safeguarding procedures were properly completed. A Learning Review began, but was not completed (Miss X passed away).

Findings

The LGO quoted the (NICE) Quality Standard on Autism (2014), which sets out minimum standards for delivery of services to those with autism. It says, ‘All health and social care practitioners involved in working with, assessing, caring for and treating people with autism should have sufficient and appropriate training and competencies to deliver the actions and interventions described in the quality standard’.

The Learning Review found some officers did not fully understand Miss D’s needs resulting from her autism and, therefore, the best way to communicate with her. The Council’s said it had no record of the duty housing officer who interviewed Miss D receiving any autism training. As a result, the Council missed an opportunity to communicate in the most effective way with Miss D. This was fault.

Again, the LGO emphasised the link of lack of autism support, back to inadequate, or in this case, a complete lack of a care plan or assessment. Without an up to date care plan, needs cannot be properly identified and the Council cannot plan how they will meet those needs. Notwithstanding the duty to assess any adult with an appearance of need for care and support, Miss D had strong indications of eligible needs

The LGO went into great length about the Council’s failings to properly assess, start safeguarding procedures, and delays in general. However mention of autism training was brief.

Comparisons

So it is noteworthy that the remedies across the three cases included:

  • Arranging for all relevant staff to receive appropriate training on autism and making reasonable adjustments
  • Reviewing of assessment(s) by appropriately trained/ skilled persons and/ or a specialist assessor
  • Financial payment to redress fault.

It is also noteworthy that the LGO in all cases highlighted the importance of care plans when assessing Council failings.

The LGO was readier to find a Council at fault for inadequate assessments, rather than inadequate autism training.

The LGO could find the causal link, the actual injustice caused to the complainant, by comparing the care they received and the care they should have been receiving according to their plan (or their last plan).

In comparison with issues to do with autism training, the level of detail discussed by the LGO was brief. (See for example decision one, where no injustice was identified from the lack of autism training)

Considerations/ learning for all public authorities:

  1. Is autism awareness training for all front line staff (including LA and CCG staff) mandatory and appropriately refreshed?
  2. Do training records evidence compliance with statutory / NICE requirements across SW practice?
  3. Are we confident that staff know when to seek additional specialist support?
  4. Are staff with additional specialist autism skills available, either to undertake assessments etc or to support those who are doing so? If yes, from where / whom / and within what timeframe?
  5. Are all relevant staff able to recognise the need to make reasonable adjustments and adequately skilled in making such adjustments, to avoid discrimination?
  6. Communication needs are a theme across these three decisions: how do we ensure that our communication with individuals takes account of their communication needs e.g. needs are noted at first contact and further routine opportunities thereafter, so that information is provided in a format they can understand?

A summary reminder of the Accessible Information Standard requirement is embedded within this document

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Sandwell Borough Council at fault for placing a person in a care home which could not meet their needs, twice.

Decision Date: 15th November 2019

What Happened

Mr X complained on behalf of his mother Mrs Y. He complained that two care homes (care home A and care home B), did not meet his mother’s needs.

Mrs Y had dementia. In November 2017 the Council placed Mrs Y in care home A as an emergency short-term placement, for her best interests and to meet her needs.

Care Home A

Mrs Y’s time in care home A was challenging. Notes showed that she became verbally and physically aggressive when staff tried to assist with her personal care, particularly when it came to showering. She often refused to eat or drink, refused to bathe and refused to allow GPs to give her a check up.

In December the GP agreed to contact the mental health team, and the Community Psychiatric Nurse (CPN) visited several days later. They agreed to liaise with the doctor from the mental health team.

In early January 2018 the Council officer allocated to Mrs Y’s care held a best interests meeting at care home A. The meeting concluded it was in Mrs Y’s best interests to remain in the care home as it was unsafe for her to return home, but that Mr X and his family would be welcome to come to the care home to assist with things like showering, or getting her up in the morning.

Circumstances did not improve, so care home A applied for a Deprivation of Liberty Safeguard (DoLS) assessment in mid January. The assessment for that process (best interests assessment) noted that the care provider should work more effectively with the family to address Mrs Y’s needs, but ultimately it advised that the current placement was unsuitable for Mrs Y’s needs.

The Council officer contacted care home A for an update in mid-January. A staff member explained Mrs Y’s behaviour had not improved and her appetite was poor. She was losing weight and they were unable to weigh her as she refused to stand on the scales. Family were still carrying out personal care as she would not let staff assist. The CPN was monitoring Mrs Y weekly and the Doctor had prescribed new medication to try and boost her appetite.

As a result of Mrs Y’s discomfort and declining health, and the care home struggling to manage her care, Mrs Y was moved to care home B in late February 2018.

Care Home B

After her admission, Mrs Y’s behaviours escalated; she was spending more time in bed, was refusing personal care and medication and was physically aggressive towards care staff. Mr X and his family were continuing to support Mrs Y with bathing and showering.

Mrs Y had numerous visits and assessments from GPs, mental health workers and other teams. The doctor from the mental health team had visited and in his professional opinion Mrs Y was still inappropriately placed. The Quality Team raised concerns about the quality of records completed by the care home as there was a lack of ongoing record keeping, particularly about Mrs Y’s current difficulties.

In May, care home B contacted the Council to request a review. It reported it was unsure what else it could do to support Mrs Y. The Doctor from the mental health team had visited and recommended a specialist hospital admission. “The Doctor had increased Mrs Y’s medication but felt Mrs Y needed nursing care as her condition had progressed to advanced dementia. The care home said Mrs Y required support from three to four staff members.”

The Council found a bed in a unit for those with challenging behaviours which assessed Mrs Y and felt it could meet her needs. Mr X did not accept the referral as he said he did not want Mrs Y moved around or moved somewhere, unless he had seen it.

In June, the Council closed a safeguarding referral from the home itself, because it thought that the problem was really a dispute about a delay in a review or re-assessment rather than a safeguarding concern. The GP also raised a safeguarding concern. The social worker spoke to the mental health team and arranged to visit. The safeguarding team closed the referrals as it considered this was a care management issue.

The Council had screened Mrs Y for continuing health care (CHC) in June, but she did not meet the criteria. The staff at care home B stated they were no longer managing to meet her needs. Mr X had yet to visit alternative providers. The social worker explained if a placement decision was not made soon Mrs Y may need to be moved to a temporary placement in her best interests or alternatively, the mental health team Doctor may decide to detain her under the Mental Health Act for a period of assessment in hospital.

By June Mr X had visited a number of places but was not happy with any of them. He considered Mrs Y did not need nursing care as she was now being more co-operative with personal care. The care home reported Mrs Y’s behaviours were a bit better but they were still struggling with certain aspects of her care. The Doctor still advised that Mrs Y needed nursing care.

In late June 2018 the Council held a multi-disciplinary team meeting with Mr X, the care home and the mental health team Doctor to complete a continuing health care (CHC) decision support tool document (to assess whether Mrs Y now met the criteria to receive NHS funding for her care if her needs were identified as constituting a primary health need).

The care home considered Mrs Y’s behaviour had improved to a level they could manage with support from the mental health team. The DST exercise concluded Mrs Y did not meet the criteria for CHC funding at that time.

However, by the end of July Mrs Y’s behaviours had deteriorated again; she continued to be physically and verbally abusive when receiving personal care. The Doctor, care home manager, CPN and social worker agreed a best interests’ decision was required regarding care and accommodation as care home B really could not meet Mrs Y’s needs. Mr X asserted that Mrs Y’s behaviour had improved 100% but the records showed that she was still challenging, including physical aggression towards staff. She had not had her night-time medication at 50% of the past fortnight and was refusing food and drink at that time, so could not even be covertly medicated. 

The best interests meeting in August concluded Mrs Y needed to be detained in hospital under section 2 of the Mental Health Act for a period of assessment in hospital. She had since moved to a nursing home.

What was found

Care Home A

Although the records showed that care home A made significant efforts to assist Mrs Y with personal care, she did not receive personal care as she should have. The LGO considered that she could not be showered against her will, (with which we would disagree, respectfully if her reluctance was regarded as lacking in capacity) but found care home A to be at some low level of fault.

At the best interests meeting in early January 2018 the Council noted Mrs Y was spending long periods of time in bed, refused showers and was not co-operating with personal care. It was agreed by all parties there, that it would be in Mrs Y’s best interests to remain at the home, with Mr X and his family assisting with her showering. The LGO considered that the Council failed properly to monitor or assess if this shared responsibility (with a view to staff taking over hygiene roles) was actually working. This was fault (in terms of the Care Act obligation to review after changes to the care plan, that is, on the part of the council.) Mr X and the family were put to the additional strain of having to shower Mrs Y (but had agreed). This also impacted on Mrs Y’s dignity and caused her avoidable distress.

Mrs Y’s behaviour did not improve and the best interests assessor raised concerns about the suitability of the placement. Care home A did provide some care and support to Mrs Y. However, it could not fully meet her needs. The Council failed to move Mrs Y until mid-February 2018. This delay was fault.

Care Home B

Care home B was a similar type of care home to care home A and so it was unlikely that it would be any the better able to meet her needs. The LGO considered that given Mrs Y’s history of non-compliance with care and physical and verbal aggression, there was no evidence the Council properly considered whether care home B was actually suitable for Mrs Y. The Council failed to ensure Mrs Y was moved to a suitable care home to meet her needs and this was fault.

Care home B completed a pre-assessment of Mrs Y which was inadequate with regard to communication of the difficulties care home A had in relation to Mrs Y’s personal care or of Mrs Y’s verbal and physical aggression. This was fault. The poor pre-assessment suggested care home B was not fully aware of Mrs Y’s needs when it agreed to her admission.

As with care home A, care home B made significant efforts to address Mrs Y’s behaviour. It involved the Council’s Quality Team and contacted the GP and mental health team. However, it could not fully meet Mrs Y’s needs; her family were still bathing her, the mental health team doctor considered she was incorrectly placed, etc.

It was assessed that care home B was not a suitable place for Mrs Y, but Mr X was unhappy with the alternative options. Although it was appropriate to consider Mr X’s views, the Council was responsible for deciding what was in the best interests of Mrs Y as it was the commissioner of the care and it should have taken action to move Mrs Y sooner. Mrs Y remained in an unsuitable care home for longer than she should have which was fault. As a result Mrs Y did not receive all the care she needed.

The Council’s complaint investigation focused purely on whether Mrs Y was neglected but Mr X had also complained he was not happy with the care provided and that Mrs Y’s needs were not met “and it is evident that they were not”. The complaint response was inadequate and this is fault.

The LGO recommend that the Council reduce the bill for charges for the care at care home A by 25% to acknowledge Mrs Y’s needs were not fully met by the care home; reduce the bill for care at care home B by 50% to acknowledge the impact on Mrs Y’s dignity and the distress caused to her by its failure to fully meet her needs; and apologise and pay Mr X £250 to acknowledge the distress, time and trouble and frustration he was caused by the Council’s failings.

There was also a ‘lessons learned’ set of commitments recommended, the most important of which are these:

  • the need to assess the suitability of alternative care homes when it is clear a care home is not meeting a resident’s needs;
  • when it should act in a resident’s best interest to move a person;
  • ensure care homes complete appropriate pre-assessments before care home admission;

Points for the public, service users, families, council commissioners and best interests assessors and care homes

This report is a classic of its kind, because underlying its findings is a legal framework that has been the law for over 10 years –

  • the relationship between safeguarding and care management and legislative functions for meeting need
  • and the relationship between restraint, force and best interests,
  • and the relationship between the Best Interests assessor working under the DoL safeguards for scrutinising deprivation of liberty, and the stance of the commissioner of the care – more often than not, the employer of the BIA being the very council paying for the care.

We do get that care home ‘A’ tried really hard; it thought that the woman was positively refusing care, but we do not see any focus by the LGO on whether there was a capacity assessment which would have justified imposition of care in her best interests, even though the care home would, we are sure, needed to have charged more for it, and maybe would have felt it could not hope to persuade the council.

Disinclination to USE the MCA, to legitimise forceful imposition of care, although it goes against the grain, is a step on the way to negligent failure to take steps to avoid foreseeable harm, we would suggest, at least arguably).

The BIA on a DoLS process is able to say that the regime not only constitutes deprivation of liberty but that it is not justified by reference to the necessary and proportionate test, if the care is unsuitable for the longer term. It is the law that when the BIA says that DoL is ‘justified but for a short term period only’, the most that can be done is minimal deprivation of liberty whilst essential steps are taken, regardless of the price, to secure suitable accommodation. Ironically, in a suitable setting, one might be more free and less restricted, because the provider does not NEED DoLS authorisation if one is sectioned under the Mental Health Act to keep the person safe, and one can treat without consent, for a mental disorder, under s3.

Here, whatever the view of the BIA, the relative is presented as both holding out for some improvement, which did seem to happen for a while, and yet also standing in the way of a new placement being made. If a doctor rationally and coherently advises that nursing care is needed, it is inappropriate for any council not to secure a placement in a suitable care home registered for nursing.

It’s not clear where the initiative for the move to care home B actually came from. The report says that Mr X informed the Council officer that a staff member from care home B would be assessing Mrs Y with a view to moving her there, as if it came from the family. It is not clear whether the fault there lay with the council or care home B, but pre-assessment is done for BOTH the council and the incoming provider for their own separate purposes – to nail the detail of disclosure of the actual needs of the client and enable sign off of a budget, based on needs (but within the context of existing commissioned contracts or frameworks) so that an admission decision can be made on a proper footing by both sides.

The report said this, without indicating whose documentation this was – the council’s, under Care Act commissioning arrangements or the new care home’s paperwork or commentary/evaluation:-

“the pre-admission assessment noted Mrs Y had dementia. In relation to mood, the yes/no boxes were left blank in relation to ‘does the customer experience episodes of low mood’, ‘does the customer experience fluctuating moods’, ‘is there anything in particular that causes the customer to feel unhappy’ and ‘does the customer become physically aggressive towards others’. The form noted Mrs Y had a CPN. In relation to the question ‘does the customer show signs of anxiety’, the handwritten comment stated ‘only around personal care’. Under mobility assessment ‘does the customer require assistance to bath/shower’ the handwritten comment stated ‘guidance and support, prompting’. Under the personal care assessment, it stated she needed prompting with personal care, guidance with dressing, she preferred a shower/body wash and needed guidance with mouth care. The nutrition assessment noted Mrs Y did not have any special requirements but required prompting. The sleeping assessment noted Mrs Y slept in her clothes on top of the bed.”

If a person is agreed by professionals to be unsuitably placed in care home A, then a competent care manager simply must decide what it is about that environment or the regime that is unsuitable, and what is then required to be purchased in order that that problem is solved. And this information must be properly passed on to any new provider otherwise there is no consensus as to what the contract or the contract price is FOR

Ensuring that the next candidate for the responsibility of meeting needs KNOWS the nature and scope of the issues being presented by the person, capacitatedly or otherwise, is crucial for fair commissioning for a rate that is feasibly enough to ensure the person is not just being shoved from pillar to post, amongst providers, none of whom are providing nursing care, and some of whom may well be underpaid and admitting unmanageable clients ‘in the dark’.

Even if nursing care was what then became necessary, it could not be just ‘any old care home that happens to be CQC rated as fit to be open for business’, even if it IS registered for nursing care.

That is because the essence of any care plan is to meet the needs adequately and appropriately, and in the context of accommodation, that means suitably. Suitable accommodation is part and parcel of promoting wellbeing: regard must be had to the suitability of where one IS and the suitability of where one might well next be placed, for the care planning process to have been discharged lawfully.

If the relative was going round and preferring some to others, and regarding all as unsuitable, we suspect that the back story there would have been affected by the council’s usual rate, the woman’s personal budget not having gone up on account of her challenging behaviour, and the apparent need for a top up to obtain even basically adequate care, although that is not stated in the report. The rate for residential or nursing care that the council was paying could well have been arbitrarily low, thereby encouraging the son to think that the family would need to pay more by way of a top up than in fact was the case, to ensure his mother was properly accommodated and cared for in a nice place.

We think it’s interesting that Sandwell’s safeguarding co-ordinator was doing great triage (assessment and commissioning failures are not necessarily abuse or neglect) but still not achieving resolution of the problem. In that case one has to ask why it is not institutional abuse, if an organisation is ignoring its Care Act duties for reasons to do with staff shortages. A duty is a duty, and it can’t be budget determined, and has to be needs led, and the council is obliged to furnish the Director with sufficient staff for the discharge of all its functions. It is isn’t the situation on the ground, that adds up to a systemic failure which IS then a safeguarding issue, and one for the Monitoring Officer, we think.

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 Sandwell Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-000-504

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Thurrock Council at fault for failing to include DRE in financial assessments

Decision Date: 20th November 2019

What Happened

Mr C represented Mrs B formally through a power of attorney and complained on behalf of Mrs B.

In 2013 Mrs B received 1.5 hours of care in her home per week, and a July financial assessment showed that she had potential disability related expenses (DRE) of £43 a week for shopping, gardening, house and window cleaner and chiropody. The report did not state the consequential charge being levied but DRE must have reduced it.

Another financial assessment in October 2013 concluded that Mrs B needed to contribute £22 a week towards her care, but the financial assessment failed to include her DRE in error.

By October 2017 Mrs B’s support had increased to 10.5 hours per week.

Mr C took over management of Mrs B’s finances in 2018, after which it became apparent that the Council had not included her DRE in any of her financial assessments since 2013.

In August 2018 the Council completed a reassessment and recalculated the DRE as £88 and Mrs C’s contribution as £7 per week.

A refund of £4197 was made to Mrs B on 21 June 2019 on account of another attempt at calculating who owed what to whom. Mr C complained that this was not sufficient.

What was found

The Council was at fault as it failed to include Mrs B’s DRE from June 2013. The Council accepted this, and agreed to increase the refund by an extra £3874. The additional refund was an estimation of the increase of DRE in line with the increase of Mrs B’s care needs over the years. The LGO considered that even though the amount was estimated, it considered it a reasonable one.

In addition to the refund of £8071, the Council agreed to carry out a new financial assessment for Mrs B.

Points for the public, charging officers, councils, families and service users.

Disability related expenditure is one’s own money spent privately on things or services that are incurred on account of one’s illness or condition, and which are ‘needed’, not merely in the sense of being accepted as ‘eligible’ needs under the Care Act, but privately funded from that choice so to do, but things or services which are objectively definitely ‘needed’, and not merely indulged in or wanted.

DRE is taken off one’s other assessed income if one is in receipt of disability related benefits and they are being counted in by the council’s charging policy in the first place; so the concept operates to make invisible, if accepted, some of one’s own committed money, on the footing that one needs to spend it anyway.

Some councils have flat rates of DRE which they will allow to be claimed, regardless of proof; amounts over and above that, need to be established by reference to average household expenditure for non disabled people, and/or receipts, invoices, payments out, etc.

Some councils have a policy that the need has to have been referred to in the care plan, and the important thing is to note that that does not and cannot mean only that which is referred to in the part that would otherwise be publicly funded eligible need because the Guidance prohibits that. A council could reasonably perhaps say that DRE would be allowed, if the needs x y and z that had been noted during assessment had been noted during care planning as going to be met through this voluntary ongoing private outlay; so that whether they were needs that were already found to be eligible – or NOT – the impact thereby managed would be treated as managed, and not requiring to be met or counted in, by the council.

That would not necessarily be unreasonable but it would be hard to explain. The wider point here is that having to get it pre-agreed at the care planning stage where people are ignorant of their RIGHTS would tend to mean that most people did not get it sorted at that stage at all. That would be open to organisational manipulation and the agenda to save money at all costs by making the public shoulder all that they can. It would also be open to the criticism that it overlooks that the person’s own money REMAINS their own money, even if the charging framework kind of assumes that whatever is not disregarded by finance staff in the council IS available for charges, up to the maximum percentage that the council’s charging policy seeks to recover – even if a person is spending it perfectly reasonable on friends, relatives, and consumption of the pleasures of life, as well as their own view of their own needs.

This report does not go into how it could be that a council failed to allow for any of that for 6-7 years, or whether it was doing the same to other people. It also failed to explain how it calculated and recalculated the DRE.

Once the omission was noted, it seems that it was accepted that the council should err on the side of generosity, with regard to accepting without invoices over that unduly long period that the expenditure would have existed and would have been slowly going up (and that would mean that interest did not also have to be paid!). That is good administrative practice, in anyone’s view, we think.

We think that it is interesting to note that an action for restitution of an unlawfully calculated charges is something that might be limited to 6 years, or maybe even longer, if the logic behind the claim to recover money is based on the doctrine of one’s mistaken liability to pay, as here, as opposed to the choice to spend money on unlawfully missing services, which is very much more of an unjust enrichment basis for the claim. Limitation periods do not run until ‘the mistake’ has been identified, thus stretching the period for recovery out further. Even if one might say having an attorney to act in the management of a person’s own money means that this should have been spotted sooner, limitation is not an attractive defence for any wrongdoing council to have to mount against a vulnerable adult.

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 Thurrock Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-019-831

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Sandwell Council at fault for allowing a person to be charged under a private ongoing contract, entered into wrongfully, without involving the council who had paid the home for respite

Decision Date: 21st November 2019

What Happened

Miss X complained on behalf of her late father, Mr F.

Miss X was the main carer for her parents, Mr F and Mrs T. They both had up to date care plans and financial assessments. In August 2018 they went to a residential care home on a respite placement, commissioned and funded by the Council. Mrs T left in late August, and for reasons unexplained in the LGO report, Mr F stayed on a permanent basis. Also not mentioned in the report is whether Mr F was deemed to have mental capacity or not, a feature absolutely central, in our view, to the points made by the LGO about the contract he had been prevailed upon to enter into unbeknownst to his family.

During November 2018, Mr F wanted to return home to his wife and Miss X. The care home told Miss X that she had to give 30 days’ notice as required in the contract (without specifying which contract they meant, perhaps – it is impossible to tell).

Mr F left the care home in December 2018 with 12 days still remaining on the notice period.

The final invoice sent to Miss X showed Mr F’s fees as charged at the private rate, rather than the lower Council commissioned rate under the original contract. It included a charge for the 12 days’ notice period.

Miss X complained to the care home about the final invoice. She said that the contract made no reference to the 30 days’ notice period, and was unhappy about the higher rate. The care home said that the Council had agreed to fund Mr F’s care fees until the end of November 2018, after which he became a private resident, and that she had been fully informed about the notice period before Mr F’s placement began at the very beginning of his stay (for respite).

What was found?

The Council had not previously investigated Miss X’s complaint, because she complained directly to the care home.

After the LGO made enquiries, the Council concluded that the care home had entered into a private funding agreement with Mr F, and this was against the contractual conditions in place between it (the Council), and the care home. It was unclear from the report how that second contract had come about or how the nature of the contract changed from temporary respite care, to a more permanent agreement.

From the LGO report we can only glean that the nature of the contract changed in November, when Mr F incorrectly became a ‘private resident’.

Seeking to secure the entry of Mr F into a private contract was fault on the part of the care home. It meant the care home thought it could charge Mr F at private rates for the latter stages of his stay.

The LGO considered that although it was the care home that incorrectly contracted with Mr F, the Council had already begun addressing these faults with the care home. It stated ‘as the Council commissioned the care, the findings of fault are findings against the Council as the care home was acting on the Council’s behalf.’

As the private arrangement had come about as a result of fault, the original agreement between the care home and the Council legally remained in place, as far as the LGO was concerned.

The contract between the care home and the Council only allowed for a one-week notice period, but care home insisted that Mr F give 30 days’ notice.

This was fault and meant Miss X was left with an avoidable final invoice for Mr F’s care fees which caused her distress and time and trouble.

The Council said it would address these faults with the care home and proposed to pay all of Miss X’s outstanding fees owed to the care home. The LGO considered this a suitable remedy to the injustice caused to Miss X.

Points for the public, families, service users, deputies attorneys and care homes

This complaint and the report into it illustrate that it is essential to know what a person’s status is at any given point on the ‘Care Act’ or ‘private care’ services continuum.

These clients were commissioned for at the beginning – that means that they were getting temporary respite care, which is always (in our view) contracted for on the basis of week by week. Notice does still have to be given, but by the Council. The nature of the contract is not for a fixed term. Temporary respite care is never charged for (from the council to the client) at the same rate as private or even council funded long term care.

The basis of service provision between a home and an individual should not be turned into privately funded care services provision on the quiet, in terms of ethics, we think, without more thought – because that will often amount to clear exploitation of the fact that the person probably doesn’t know that they have a right to have care home care paid for under the Care Act, (subject to charging back by the council, of course) IF they have eligible assessed unmet needs after a period of respite, AND have less than the threshold amount of being assumed to be able to meet their own needs, OR if they lack mental capacity to make a private care arrangement and have no-one else to make it for them or on their behalf. That is the law. Care home owners need to act professionally and that means knowing the law as to their clients’ rights.

We are frustrated not to know whether the council had ever even thought that IT had ended the respite contract, ie that Mr F was going home but he or his family changed their minds about that, and never told the council?

Even if the council’s contract had never been properly terminated by the care home or by the council it does not mean that it ran on, as a matter of law, if another contract superseded the prior one for care of the very same man by the same care home. A court would regard the old contract as terminated by conduct, we feel. But it all depends on how any such later contract had been supposedly brought into being, and that would turn on the capacity of the gentleman in question.

The ethics of what’s happening would turn on the question of what the care home knew of the person’s financial circumstances: if it knew the man was not well off, by some means or another, then not telling a person about their rights to Care Act and council responsibility would be really poor practice. If the person presents as or was known to be wealthy, and capacitated, though, it’s quite a bit different, we think, and open to a home to offer a person the chance to stay on in the same room for more money, simply because that IS the model on which the care sector operates.

If a person is fully capacitated (which we do not know in this case from the report), and had been benefiting from inexpensive subsidised respite care regardless of a full Care Act assessment, or a financial assessment, and seemed well off, one can understand why a care home might well say to that person, ‘Do you want to stay on for a bit longer? We’d love to have you and here is a contract….’

And if that person can sign a document, and does, then the care home would not think that it was doing anything wrong. That is what happens, after all, on a 12 week disregard – at the end of that contract, on the council’s paperwork, people stay on although their equity in their house has become visible and they are ‘above threshold’, and the ABSENCE of an ongoing arrangement under a deferred payment agreement, for instance, by the council, is taken, in cases where someone is capacitated, as justifying the conclusion that they are now choosing to stay in that care home. We know this is the law because of all the ordinary residence decisions by the Secretary of State when the place where the council care home contract was originally made is out of area but the person stays on and becomes the responsibility of the out of area council when their capital finally depletes under the threshold, later on.

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 Sandwell Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-005-086

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Surrey Council at fault in handling of safeguarding procedure and failing to intervene when a care home refused a patient’s return

Decision Date: 25th November 2019

What Happened

Mrs R and Miss S complained on behalf of their mother, Mrs T, who had died since the events recounted in the report.

Mrs T had Alzheimer’s disease which had meant she had needed to live in a Council commissioned care home since July 2017.

On 12 August 2018, Care Home staff discovered a water leak. They called out for a plumber immediately, who attending within an hour from discovery of the leak.

The water leak caused water to seep into the corner of Mrs T’s room, nearest the door.

From the 18th August, Mrs T’s family noticed that she was less alert than usual. They had discussions with the nurse, who arranged a doctor’s visit. Mrs T was prescribed antibiotics, and the Care Home started monitoring her food and drink intake more closely. The records showed Mrs T’s food and fluid intake was lower than usual and she appeared lethargic.

On 30 August, Miss S received a call from the Care Home to say Mrs T was not eating, drinking or taking her antibiotics. Miss S asked why her mother had not been taken to hospital. She was informed by the paramedic who had prescribed Mrs T’s antibiotics that ‘they were not to take Mrs T to hospital because her care plan stated this was against her wishes’.

Miss S and Mrs R both went to the Care Home to insist their mother be taken to hospital. When Mrs T was admitted, she was diagnosed with community acquired pneumonia and dehydration and treated accordingly.

Nurses at the hospital made a safeguarding referral to the Council following concerns highlighted to them by Mrs R and Miss S.

Mrs R and Miss S had a meeting on 13 September 2018 with the Care Home managers (it was unclear if there was a Council member present). Neither the Council or Care Home had records of this meeting, so the LGO relied on Miss S’s account:

  • Mrs R and Miss S asked why their mother had not been moved out of her room when the walls were very wet, and the room smelt damp, even after they had pointed it out and complained about it to the nurse. The Care Home managers disagreed that Mrs T’s room was significantly wet or damp and said the electrician had confirmed there were no issues with the electrics in any part of the Care Home.
  • Mrs R and Miss S questioned why the Care Home decided not to call Mrs T’s doctor or admit her to hospital. The Care Home manager said there had been a misunderstanding of Mrs T’s care plan and the paramedic attending had incorrectly believed she was on her end of life plan, which excluded admission to hospital. The manager apologised to Mrs R and Miss S for this error.

The Care Home provided the Council with a chronology of events following the water leak in response to its safeguarding enquiry.

  • The Care Home explained that no residents needed to be moved from their usual rooms as a result of the water leak, but some were moved to allow contractors unrestricted access to the area to renew plaster that had been damaged.
  • Mrs T’s room had some minor water damage on the walls which needed to be redecorated rather than replastered.
  • The Care Home had a CQC inspection three days after the leak had occurred and which had not identified significant issues with the way in which the Care Home dealt with the water leak.

In October 2018, when Mrs T was deemed fit for discharge, Mrs T’s family were informed by the hospital that the Care Home had said it was unwilling to accept Mrs T back to the home.

From the report, it seems this was out of the blue. Her family were very distressed and contacted the Council the next day who provided them a list of alternative care providers.

Mrs T remained in hospital until 17 October 2018, when she was discharged to a different care home. Her family were extremely upset the Care Home had refused to take their mother back without discussion.

The Council concluded its safeguarding enquiries on 24 October 2018 and decided further action was not required. While Mrs R and Miss S disputed the accuracy of the answers and information the Care Home had given to the Council, they maintained their wish for their mother to return to the home as they believed it was in her best interests. The Care Home managers at the meeting said they felt unable to see a way forward when Mrs T’s family continued to disagree with the Care Home’s handling of matters following the water leak. The Care Home felt their relationship with Mrs T’s family had irretrievably broken down.

Mrs R and Miss S say their mother was very well cared for in her new care home but never fully recovered from her time in hospital. Mrs T passed away in February 2019.

What was found

There was fault in the Council’s handling of safeguarding concerns about the care provider’s actions just before Mrs T was admitted to hospital with dehydration and pneumonia.

The Council also failed to appropriately intervene when the care provider decided to refuse Mrs T’s return from hospital, which caused avoidable distress to Mrs T and her family.

Water Leak

The LGO said that the Care Home’s response to the water leak appeared to have been prompt and appropriate. It took immediate action by calling plumbers, and repair works were completed within a week.

However, the LGO was concerned with the mismatch of evidence arising from the safeguarding enquiry. The Care Home said the water damage to Mrs T’s room was minimal, whereas Mrs R and Miss S provided the LGO with photographs, which showed the water damage to the walls immediately outside and inside Mrs T’s room and electrical sockets. The photographs highlighted to the LGO that Mrs R and Miss S’s worries were understandable. It stated ‘the presence of water around an electrical source, no matter how short-lived, is extremely concerning’.

The Council had seen the same photographs that the LGO had seen, during its safeguarding enquiries. The LGO considered after examining them itself, that the Council did not properly explore the risk of electric shock to Mrs T. This was fault.

It was not however thought possible for the LGO to establish that there was a direct link between the water leak at the Care Home and the decline in Mrs T’s health leading to her hospital admission.

Food and Fluid intake

The LGO stated that there was enough evidence to find that Mrs T did not receive enough hydration in the nine days before her admission to hospital. The Care Home did not adequately record her levels of fluid intake and its records showed little effort to encourage Mrs T to take fluid more often or to provide her with food at times when she was awake.

The LGO stated that was fault, which also suggested a breach of the CQC fundamental standards.

Hospital Discharge

According to Council notes, the Care Home initially sought to assess Mrs T in preparation for her return. Neither the Council nor the Care Home provided the LGO with any explanation for why its decision suddenly changed. The LGO concluded that the relationship breakdown was due to the aftermath of the perceived inadequate management of the water leak risks.

The Council did not question the Care Home’s decision, or seek to arrange a meeting between the Care Home and Mrs T’s daughters, as per CQC guidance (“if issues or conflict develops, the care provider should first meet with the visitor and try to resolve them). This was fault.

Mrs R and Miss S felt strongly that any areas of disagreement between them and the Care Home should not impact on their mother’s care. They were keen to repair the relationship with the Care Home because medical advice suggested it would be better for Mrs T’s recovery to return to a familiar environment.

The Council’s failure to question or challenge the Care Home’s actions in refusing Mrs T’s return to its care home meant it had overlooked her needs. The Council and the Care Home still had a duty to/of care to Mrs T.

The LGO stated that if Mrs T was medically fit for discharge, the Care Home could not refuse her return where there was no question (in truth) of it no longer being ‘unable’ to meet her needs. Its actions here and the Council’s failure to address this show a disregard for her welfare, which was fault.

The Council agreed to make an apology and payment of £200 each to Mrs R and Miss S for the distress, time and trouble caused by not properly liaising with them when the Care Home refused Mrs T’s return from hospital and for not investigating their complaints about the Care Home with sufficient rigour.

Points for the public, care home managers, service users and families and council’s safeguarding officers

  • When a Council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them, in a public law sense (regarding the duty to meet needs). As the Council was funding Mrs T’s placement, their contract with the care home should have provided for a notice period to ensure certainty and to avoid distress, rather than just send the family out a list of alternate providers. The Council, as it was the commissioner of the care, should have upheld the terms of its contract with the Care Home.
  • A Care Home can be well within its rights to terminate a contract, but only in a way consistent with the terms of that contract. As the Care Home already breached that duty, when the LGO referred to the Council and Care Home owing Mrs T a duty of care we can infer that it meant a duty was owed to the council to terminate only for real grounds of inability to meet needs, and to the client, in respect of her fundamental human rights. The LGO also touched upon this when it considered Mrs T’s daily food and fluid intake.
  • The fact that all publicly funded care providers under the Care Act owe human rights to the client is something that councils (also owing human rights) need to regard as a matter for their own contract monitoring staff, or else suffer the consequences of liability in damages.

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 Surrey County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/18-012-625

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Greenwich Council and Trust at fault for failing to put eligible needs onto a care plan, and for failing to follow a discharge plan

Decision Date: 7th November 2019

What Happened

Mr P complained on behalf of his late mother, Mrs D. She had bladder cancer, heart failure and kidney failure, Parkinson’s Disease and other conditions.

Mr P complained about the care provided by the Royal Borough of Greenwich (the Council), Oxleas NHS Foundation Trust (Oxleas), Kings College Hospital NHS Foundation Trust (Kings), and Bexley Clinical Commissioning Group (the CCG). He complained that:

  • After Mrs D was discharged from hospital in April 2016 she did not receive adequate care and support to change her stoma bag.
  • When Mrs D was discharged from hospital in December 2016 the district nurses failed to visit every day as planned
  • When asked to take over care on 22 December, the district nurses failed to do so care, leaving her without care for a few days.

Stoma care

Mrs D had a stoma bag since early 2016.

She originally said did not need help from district nurses to help her manage the stoma care because she could do it herself with support from her sister. A specialist stoma nurse visited to give her advice. She also had support from carers employed by the council with her stoma care.

A few months after the bag was fitted, Oxleas noted that carers from the Council were changing the stoma bag, while the Council noted that the district nurses were visiting Mrs D to help with stoma care. There was no information as to why Mrs D could no longer manage with help from her sister.

On 13 May, the Council completed a social care assessment which arranged for a care agency (Blue Ocean) to help empty and attach Mrs D’s bag. The contracts made no specific reference, (that was a commissioning failure).

On 19 May, Mrs D told a district nurse (nurse K) from Oxleas that a carer had refused to change her leaking stoma bag as they had no training in stoma care. The nurse changed the bag, explained to Blue Ocean that it was their responsibility and arranged to show a carer how to do it. Numerous appointments were arranged, but there was no evidence that the training ever took place.

There were many difficulties surrounding stoma-related care; nurses said carers should change the bag, whilst Blue Ocean said it was the nurses’ job. The Council also gave contradictory information; at first a social worker said the district nurses should change the bag, and then the Council wrote to Mr P to clarify that in fact the carers should manage routine stoma care. This inconsistency resulted in Mrs D frequently being covered in urine because of the bag leaking.

Nursing visits 12th-22nd December

After a stay in hospital in December 2016, discharge arrangements were made for Mrs D. A doctor completed funding paperwork for the CCG (presumably a Nursing or Health Needs assessment done in conjunction with a social care assessment because there is no suggestion that she was regarded as eligible for CHC). This said the that the heart failure nurse would visit intermittently and that district nurses should visit Mrs D and deal with pain management. The hospital made a referral to Oxleas and someone there ordained that nurses would visit daily.

After the first visit, the day after Mrs D was discharged (12th December), the nurse noted Mrs D’s carers were managing her personal care, and that the district nurses should visit once a week only for palliative care.

Mr P sent an email expressing concerns about the district nurses *what about them? Just this coming once a week? The hospital discharge nurse agreed it would be appropriate for the nurses to check in weekly. Oxleas said it would reassess Mrs D’s needs. This reassessment (16th December) again said district nurses would check in daily. After this reassessment, nurses adhered to daily visits until the 22nd December.

No nursing visits after 22nd December

On 21 December, an Oxleas health care assistant visited Mrs D. Also that day, the district nurses decided to reduce their visits to Mrs D visits to three times a week. They did not record why they decided this or whether Mrs D and her family knew about the change.

On the morning of 22 December, the care agency called the CCG to say it would stop providing care to Mrs D that evening. The CCG emailed Oxleas and asked that the district nurses assist Mrs D with her personal care.

Mr P complained to the Council about the care agency cancelling its care; however the LGO explained why it did not address this in its report: the agency said it planned to stop its service on 16 December because of tobacco smoke in the house. Mr P refuted this, but there were conflicting accounts of events which an investigation by the Ombudsmen would not resolve.

On the morning of 23 December, a health care assistant from Oxleas visited Mrs D. The district nurses recorded that they tried to phone in the evening but there was no answer and they left a message. During Oxleas’ investigation a staff member gave a statement that Mrs D and her sisters had agreed that the next visit would be 26 December, but there was no mention of this in the records.

The only district nursing record on 24 December was a note at 21:06 which said the nurses could not contact Mrs D.

On 25 December, Mrs D went to hospital and sadly died on 28 December of pneumonia, which antibiotics failed to resolve.

What was found

  • The Council was at fault as it failed to include the need stoma support on her care plan, and failed to ensure she was supported with this by trained carers. This contributed to Mrs D experiencing distress and embarrassment from leaking stoma bags, and also caused the family distress.
  • Oxleas was at fault for not continuing to assist Mrs D with stoma care until it had made sure she had care from trained and competent carers with this. This contributed to Mrs D’s experiencing distress and embarrassment from leaking stoma bags, and also caused the family distress.
  • Oxleas was at fault for not following the recommended discharge plan from 12 – 15 December. This did not cause injustice to Mrs D but caused Mr P unnecessary anxiety and distress.
  • Oxleas was at fault because nurses did not visit Mrs D from 22 – 25 December. This left Mrs D without access to personal care, and caused distress to her family.

Stoma Care

As it identified in May that Mrs D needed support to manage her stoma care, the Council should have included on the care plan that Blue Ocean’s carers needed to support Mrs D with this, and ensured they were competent to do so.

If it had, the confusion about whose role it was and consequent difficulties for Mrs D and her family could have been largely avoided. The Council wrongly believed changing the bag was a nursing need. Though stoma care is generally a personal care need rather than a nursing need (the LGO had taken advice from a clinical advisor but no authority for the proposition with regard to the legal framework is cited) nurses should identify any gaps in care delivery when completing discharge assessments. They should ensure people are safe and should take responsibility for delegating tasks to others.

The LGO was not satisfied that Oxleas made sure the carers were adequately trained. It became apparent that some of them could not competently manage the stoma care.

The LGO stated that in its conflict with Blue Ocean over which of them should change the bag, Oxleas appeared to have lost sight of Mrs D’s need to receive competent support consistently. Leaks from the bag caused damage to mattresses and carpets, and Mrs D was frequently left sitting in urine all night. It was therefore unsurprising to the LGO that the family became distressed and frustrated.

All in all, the LGO found it more likely than not, that Mrs D could not manage her stoma care without help. Therefore, the failure of the Council and Oxleas to ensure she consistently received competent care and support with her stoma care caused Mrs D to experience distress and embarrassment due to leaks from the stoma bag. In turn, this caused distress to her family.

Nursing visits between 12th and 22nd December

After Mrs D’s discharge of 12 December, Oxleas should have followed the instructions on the discharge plan, which included visiting Mrs D daily and monitoring her weight and blood pressure.

Nurse K said district nurses always complete their own assessment of nursing needs when someone is discharged from hospital, and she concluded Mrs D did not need daily visits.

The LGO stated that although district nurses could and should complete their own assessments, they should follow recommended discharge plans unless they have established, in liaison with other professions as appropriate, that the recommendations are no longer required.

Nurse K’s record of her visit of 13 December said a GP was present. Oxleas’ investigation report incorrectly said this was Mrs D’s GP. In actual fact it was a trainee GP from a different GP practice. Therefore, this was not someone who could make decisions about Mrs D’s care.

Therefore, departing from the discharge plan was fault. There was no evidence it caused any harm to Mrs D, but it caused unnecessary anxiety and stress to Mr P.

Visits after 22nd December

The district nurses should have continued to visit Mrs D each day from 22 December. They should not have stopped visiting without properly establishing through assessment and care planning that Mrs D did not need support.

There were several entries in Oxleas’ records which said staff could not contact Mrs D by phone so left a voicemail. Mrs D had been living at her sister’s house for months, and this information was stored on Oxleas’ records. It appeared the staff on duty in the evenings were calling the wrong phone number, even though they had the right number. Staff should also have contacted her next of kin when they could not get in touch with her.

In consequence of these failures, Mrs D was left without care from 22 to 25 December. This caused distress to her family.

The LGO recommended that the Council and Oxleas each pay Mr P and his brother £250 in recognition of its failings, and apologise.

Points for the public, service users, families, councils and CCGs working (or trying to work) in integrated delivery schemes

We cannot BELIEVE the contents of this report, in terms of the system failure that it represents, regarding letting people slip between the gaps in the system. It is evidence of obvious negligence (possibly actionable negligence, if it had caused foreseeable harm, and not just institutional neglect of which to be ashamed) set out in the report, in our view. The investigator however concluded that Mrs D’s death would not have been prevented even if the district nurses had visited each day.

When a person has a complex care package based on health and social care conditions, or might need one with two strands in it, it is absolutely essential that the liable authorities co-operate and understand that each is working under a legal framework.

That framework does not say that stoma care is personal care, but it doesn’t say it isn’t. The law is that unless it’s clear that it’s NOT care, or clearly agreed locally that it’s for the local health service to provide, then social services needs to take responsibility for it. Historically, the care of the stoma itself has always been a district nursing responsibility.

That which is in the care plan is supposed to be in a contract. It is no good if the contract is so anodyne and standardised that it doesn’t descend to the detail of what’s required. At the very least it must mention the council’s care plan and the care plan must be specific as to inputs to be lawful, and valid and transparent.

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 Essex Royal Borough of Greenwich’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/17-000-791

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