Archive for Local Government Ombudsmen’s Reports

Windsor and Maidenhead Council at fault for delays, and failing to communicate, when unacceptable behaviour threatened a placement

Decision date: 24th September 2019

What happened

Mrs B complained on behalf of her father, Mr C.

Mr C had a diagnosis of Alzheimer’s disease. He also suffered from chronic leg ulcers and arthritis and used a walking stick to assist with his mobility.

The council assessed Mr C’s needs and fully funded the care home placement where he had lived since January 2017.

The care home carried out a mental capacity assessment. This assessment considered the probability of someone’s being cognitively able to make a specific decision, when they need to. The mental capacity act (MCA) 2005 asks firstly, does the person have an impairment and does that impairment make them unable to make a specific decision when they need to by reference to 4 further questions, related to whether the person understands the decision to be made, the information provided, can retain the information for long enough to consider the pros and cons, and grasps the likely consequences of their decision. The outcome was that Mr C had capacity in relation to agreeing to his placement and matters relating to his care and support and therefore could make his own decisions and be responsible for any consequences. He asked the care home to ensure his relatives were kept informed.

A year later, in early 2018 the care home started to record concerns about Mr C’s behaviour, relating to his verbal abuse towards staff and the use of his walking stick to try and strike staff or objects when he felt frustrated. It was noted that Mr C often became frustrated if he could not find certain objects, was unable to contact his children or did not like the food. His frustration was related to his belief that staff were not assisting him adequately to solve these problems.

By the end of June 2018 Mr C’s behaviour had escalated. He deliberately set off a fire alarm to gain attention when he did not like the food on offer. Other incidents recorded that Mr C had made rude comments, sworn and refused help from specific carers.

The care home held a meeting in July with Mr C and his daughter Mrs B regarding his behaviour and attitude towards staff. The care home manager explained that Mr C’s racist views and comments were unacceptable and warned him that his placement would be terminated if he continued to behave in this way. The manager went on to state that Mr C waving his walking stick aggressively at staff was unacceptable, but Mr C responded that he did not believe staff would find this threatening. He did not acknowledge that he was frequently racially abusive.

The meeting recorded the seriousness of his behaviour and the consequences, should it continue and recorded that Mr C and Mrs B apparently understood that this was the case.

Following this meeting the manager contacted the council to request a review of Mr C’s placement as well as revising Mr C’s internal care and support plan to include his kknown ‘triggers’, and the actions staff should take to minimise them.

The care provider’s policy for managing behaviours was not a bad one. It said that staff should focus on identifying and minimising the triggers which may have a negative impact on a resident’s behaviour. The policy stated unacceptable behaviour is usually triggered by an unmet need or a symptom of the resident’s condition. The policy encourages staff to focus on the causes rather than the action of the behaviour. The policy gives guidance on assessing and managing concerning behaviour, as well as the steps staff should take to record and deal with individual incidents.

It took the council 10 weeks to follow up the request for a placement review; however, when contacted on the 1st October 2018 the manager reported a review was no longer necessary as Mr C had moved to the dementia unit during renovations.

It is unclear why the manager said this as in the 18 weeks to 20 November, following the July meeting about Mr C’s unacceptable behaviour 37 further incidents were recorded involving Mr C, including verbal abuse of staff related to race or ethnicity.

The incident that appeared most critical in determining Mr C’s placement happened on 14th October 2018. Mr C requested help. When carers went to assist it is reported Mr C had placed a full bottle of urine on the end of his walking stick and was waving it around spilling urine on himself and carers.

Eight days later, on 22nd October 2018, the care home contacted the council to inform them of the contractual termination to Mr C’s placement. It took the council more than three weeks to contact Mrs B. On 13th November 2018 the council advised Mrs B that Mr C had been asked to leave. Mrs B stated she had already heard this information from carers at the care home and was angry that she had found out this way, rather than through official channels. Mrs B was also upset that the delay in informing her had shortened the period she had to review potential new placements for Mr C. On 18th November 2018 the care home manager spoke to Mr C’s son Mr D and two days later met him in person, to discuss his father’s unacceptable behaviour, including the incident with the walking stick and urine bottle that had led to the decision to terminate Mr C’s placement. Mr D was informed that the care home would continue to accommodate and care for Mr C while a new placement was found. On 26th November 2018 Mr C was moved to another care home. He died shortly afterwards within 3 months.

Mrs B complained to the care provider about the decision to terminate Mr C’s placement. Mrs B specifically highlighted problems with the quality of care given to Mr C and the fact she had heard rumours of Mr C’s eviction from carers weeks before the council contacted her. Mrs B was unhappy that the care home had not formally notified her of the placement termination or made attempts to meet with her or her brother to discuss problems relating to Mr C’s behaviour in order to better manage Mr C’s needs and prevent termination of his placement. The care provider responded to Mrs B’s complaint. They referred to the meeting in July 2018 where they had outlined the consequences if Mr C’s unacceptable behaviour continued. The care provider also explained it had served notice to the council rather than Mr C directly as the council funded the placement. The care provider did not uphold Mrs B’s complaint.

Mrs B was dissatisfied with the response and replied stating that there had been no formal meeting about Mr C’s behaviour, just a simple conversation, and that the reason she gave for Mr C setting of the fire alarm had not been investigated and that her finding out about the placement termination from carers was unacceptable given that staff had not reported any problems when Mr C attended his memory clinic appointment in October 2018. The care provider replied stating it had discussed with Mrs B the impact of her father’s behaviour on other residents and stated it had acted appropriately by sending notice to the council as they were the funding authority. The care provider explained that they had advised Mr C of the reasons why his placement would be ending, however, he had declined to let them inform Mrs B. Given Mr C had the capacity to make decisions of this nature, the care provider needed to respect Mr C’s wishes.

What was found

Delays in council communication

The LGO found the council was at fault for not responding in a timely manner to the request for a care review. The LGO stated that the council’s delay in acting was a fault as it left the care home to manage Mr C’s unacceptable behaviour alone, even though it was the council who had a duty to ensure Mr C’s needs were met appropriately.

The LGO also found the council was at fault for not contacting Mrs B or Mr D when it received the notice that their father’s placement was ending. The council accepted that it did not engage with Mr C or his family to try and resolve the issues and maintain his placement. The council acknowledged that the lack of time it gave Mrs B to research new placements caused her distress that could have been avoided and they will reiterate to staff about the importance of informing and involving individuals’ families.

Incomplete care home records

The LGO reviewed Mr C’s care and support plan that listed actions staff should take to minimise and manage unacceptable behaviour. The LGO concluded that there was adequate information recording Mr C’s behaviours but limited strategies listed to aid staff in managing and minimising them. The care home had addressed how to manage Mr C’s dislike of the food available but not how to respond to problems relating to his personal care or contact with his family.

The LGO found the care home at fault for not recording all incidents involving Mr C’s behaviour on separate incident forms and following their procedures to notify family of each incident. The LGO concluded that because of this Mrs B and Mr D may have not known the full extent of their father’s unacceptable behaviour and were then confused by the home’s decision to terminate the placement. The LGO considered the existing incident reports and accepted that the home’s decision to terminate the placement was inevitable as it was no longer meeting Mr C’s needs. Staff had the right to work without receiving verbal or physical abuse; the home had a duty to provide staff with an environment which fulfilled their rights.

The LGO noted that the care home records were inadequate. The meeting minutes did not include sufficient details to determine what was said by whom or that Mr C and his family appreciated the consequences of his continued unacceptable behaviour. The LGO recorded that the council were the funding authority and they should have been involved in meetings where the risk to Mr C’s placement was discussed.

Agreed Outcomes

It was not possible to remedy any injustice to Mr C hence the LGO made recommendations to remedy the injustice Mrs B had experienced and to improve the council’s and care provider’s procedures.

The LGO reminded the council that it is responsible for all services it commissions. To remedy the injustice to Mrs B the council were instructed to make an apology and pay £200 for the distress and uncertainty caused by not properly liaising with her when her father’s placement provider served notice to end the placement.

To prevent this situation recurring the council were to ensure all staff working in adult social care were reminded of the need to fully involve family / interested parties in any key decisions. The council should work with all care providers it commissions to ensure appropriate systems to record information are in place and to ensure that the council attends all meetings where discussions about residents’ placements are taking place.

Points for the public and for Health and Social Services

  • The responsibility for managing unacceptable behaviour falls on both the council as the funding authority choosing to rely on a purchased placement, and the care provider, who needs to be alert to strategies and the concept of what is or is not within the person’s power to control.
  • The council should support the care provider, be actively involved in meetings and make sure everyone involved is fully aware of the consequences should the unacceptable behaviour continue. Even if capacitated and simply stubborn, people cannot really be said to be being given a chance to make an informed decision if they are not told the legal truth that no provider has to keep them forever, if they present as an unattractive prospect, in terms of duties to staff and other residents.
  • This case highlighted the need to keep full clear factual records that could be used at a later date to clarify who said what and when. Therefore, making clear what that person’s understanding of the situation was and that they understood how the information would affect future decisions, was essential – Mr C’s understanding, which was shown to be less than 100%, unless he was just being bloody-minded about the effect of waving his stick at people and being abusive, not just his relatives.
  • The importance of clear communications with all parties is crucial for preventing misunderstandings and the breakdown of working relationships. However, this causes a dilemma when the client has capacity to make decisions and specifically states that others involved should not be informed. It’s useful for a provider to be able to say to a client taking that stance that his family – still counting as carers, if visiting and providing emotional or practical support – do have a legal right to be involved in care planning matters. That is usually enough to achieve acquiescence at least on the part of the client with some latent sense of shame at his or her behaviour, seen objectively.
  • It is fascinating to us that this report makes no mention of the Human Rights Act, which is directly applicable to all private organisations providing publicly funded care to council clients. The article 8 right to respect for a person’s home and relationships is not a right to stay in a home forever, nor a right to override a provider’s contractual right to terminate a service contract that it simply wants to be rid of now, but it does connote a conscientious duty to try to resolve issues about behaviour, which the home did not live up to in this situation. Then again, neither did the council, even more affected in everything it does, by the Human Rights Act!

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 Windsor and Maidenhead County Council’sactions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/18-017-393

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Bath and North Somerset Council at fault for failing to address the shortfall in a personal budget

Decision date: 20/09/19

What happened

Ms X has a neuromuscular condition which affects her mobility (she uses a wheelchair) and hand and arm movements. She used to receive funding from both the Council and the Independent Living Fund (ILF) to meet her needs. She received both funding streams as payments with which she used to employ PAs to meet her needs 24 hours a day.

The ILF closed in June 2015 and its funding was transferred to local authorities.

The Council continued to provide the funding the ILF used to provide.

Ms X complained to the Council after it failed to address a perceived shortfall in her overall budget, first raised in August 2018, leaving her without enough money to pay her Personal Assistants properly.

Assessing Ms X’s care needs

In May 2015 just after the Care Act came into force, Ms X had completed an updated self-assessment of her needs. The Council’s records contained care and support plans produced around the same time, but they were incomplete and did not say what Ms X’s personal budget was. Nobody followed through with care planning, but the Council continued to provide the funding the ILF used to provide.

The Council accepts there was no Care Act compliant assessment or care and support plan done in 2015.

In August 2018, Ms X contacted the Council and arranged to meet her social worker in September. At the meeting Ms X said her personal budget was not enough to cover the cost of her PAs. She said she had used her direct payments contingency element and provided a spreadsheet with projected spend to March 2019. This showed that by December she would not have enough money left to pay her PAs.

It’s not totally clear from the report but the council knew that from Ms X’s perspective,

  • the current hourly rate was £9.75;
  • the average shortfall was £257.51 every four weeks;
  • this rate did not include any extra costs for bank holidays;
  • in part, pension contributions and increased National Insurance costs accounted for the shortfall;
  • In any event Ms X wanted to increase the hourly rate to £10.00 to £10.50 to retain her PAs, as they had not had a pay-rise for two years;

The Council’s record of the meeting said Ms X wanted the Council to use her 2015 self-assessment as the basis of an application to its Single Panel for increased funding as her needs had not changed significantly.

On 17 October Ms X’s friend and Accountant who was helping her informally told the Council that Ms X did not want screening for NHS Continued Healthcare.

The accountant also said this:

  • Ms X needed an hourly rate of £12.21 but, as this provided no flexibility, £12.50 was the minimum;
  • Ms X paid a higher rate for 24 and 31 December, as the only way to recruit people to work at those times.

The Single Panel was due to consider Ms X’s case on 18 October, but declined to make a decision as there were “no up-to-date documents”. The Social Worker sent Ms X an assessment form, which she said Ms X could complete as a self-assessment or a supported self-assessment with the Social Worker.

Ms X’s Accountant sent the Council a “support assessment” on 19 October. She asked it to consider the application for increased funding before the Single Panel meeting scheduled for 1 November, to allow time for additional funding over Christmas.

The Social Worker told Ms X’s Accountant the earliest date the Single Panel could consider her case was 1 November. The Social Worker said she could not attend that day but an Occupational Therapist who had supported Ms X during the last year would present her case. Ms X objected to this and said she would prefer to postpone the presentation of her case to the Single Panel so the Social Worker, whom she trusted, could do this. The Council said it could not postpone presenting her case to the Single Panel but that a Manager would present her case.

The record of the Single Panel meeting on 1 November reiterated that Ms X had said in her 2015 self-assessment that she needed help with toileting, feeding, repositioning day and night, going out to attend clubs and associations, showering, exercising, activities of daily living, cleaning and gardening. A social care professional had not assessed these needs. However, the Council acknowledged at that point that it had a duty under the Care Act to ensure the information contained in a self-assessment was accurate and complete in line with para 6.44 of the Care and Support Statutory Guidance.

The Council therefore wrote to Ms X on 15 November saying it needed to reassess her needs.

The Social Worker met Ms X on 22 November. Ms X provided an updated self-assessment. She did not give consent for the Council to hold her assessment in anything but paper form.

On 12 December the Social Worker told Ms X it needed to keep a record of the assessment electronically, as that is how the Council keeps all its records.

The Social Worker met Ms X again on 13 December to discuss her assessment. Ms X said she wanted her case presenting to the Single Panel before Christmas, as she would run out of money in January.

After the meeting the Social Worker completed the assessment.

This identified eligible needs that, not being met, would have significant impact on her wellbeing, including:

  • managing and maintaining nutrition
  • maintaining personal hygiene
  • managing toilet needs
  • being appropriately clothed
  • maintaining a habitable home environment
  • making use of the home safely
  • developing and maintaining family or other personal relationships
  • accessing and engaging in work, training, education or volunteering
  • making use of necessary facilities or services in the local community, including public transport and recreational facilities or services.

The Council’s resource allocation system identified an indicative personal budget of £766.60 a week compared to her previous budget of £1918.31 per week.

The Council’s Single Panel was due to consider an application for increased funding on 20 December but did not do so.

The Council wrote to Ms X on 11 January 2019. It said it needed more information in the assessment to more clearly identify the nature and extent of her needs. The Council accepted Ms X had needs which fell within the remit of the Care Act. However, she appeared to have some health needs which might have warranted joint funding with the NHS. The Council said it could not fund such needs, but that the NHS could fund them via a personal health budget. It claimed it needed information from health professionals despite Ms X previously having refused consent for the Council to get information from her GP or Physiotherapist. The Council also said it could not make a funding decision until it had a robust assessment but would continue to provide £1,918.31 a week, and that it would assign Ms X’s case to another Social Worker.

On 16 January Ms X told the Council she would respond to its letter. However, she said the existing funding was not enough to cover the cost of her PAs. She said she would owe almost £7,000 in holiday pay by the end of March. She said she had only been able to pay their wages because her PAs had chosen not to take most of their holidays. She asked the Council to provide some contingency funding.

On 18 January, Ms X replied to the Council’s letter of 11 January and sent it a copy of her manual handling plan.

On 23 January Ms X told the Council her GP would assess her breathing and swallowing on 6 February and that her Physiotherapist had written to the Council.

The Social Worker arranged to meet Ms X on 13 February to reassess her needs and completed the assessment on 11 March after having consulted healthcare professionals. The assessment says Ms X agreed to involve her Physiotherapist and her GP and identified eligible needs.

The Social Worker decided that, although Ms X’s needs had arisen from a health condition, her health needs were ancillary and incidental to her social care needs, and her care needs required the ongoing response and support of another person day and night. The Social Worker said that the current arrangement Ms X had had been meeting her needs well and had prevented health deteriorations which would have otherwise required increased specialist health input.

The outcome of the assessment was to seek approval for continued funding of the current care package with extra funds for increased employer costs (i.e. pensions).

On 18 March, the Council’s Single Panel considered the application for more funding (an increase from £1,918.31 to £2,268.00). It asked the Social Worker to clarify needs – distinguishing a health need from a social care need in line with the Care Act and NHS Continuing Healthcare Guidance.

The Social Worker told Ms X about the Single Panel’s decision and over the next few months the Council obtained further information from other professionals and visited Ms X.

It completed another assessment which the Single Panel considered on 19 August. The Council has not yet told Ms X the outcome.

Ms X’s complaints to the Council

On 3 December 2018 Ms X wrote a complaint to the Council about the time taken to deal with her request for more funding made in August 2018. She also complained about poor communication regarding the Single Panel process and that the Council had refused to disclose her Social Worker’s new contact details or update her about the status of her case.

On 29 January 2019, the Council replied to her complaint saying there was some delay in telling Ms X the outcome of the November Single Panel meeting and apologised, but that more information had been needed to complete an assessment. Ms X’s case had not been presented to the Single Panel since May 2015 and therefore the Council needed an up-to-date assessment to ensure her needs were being met by the most appropriate service. It apologised if Ms X had found the process intrusive, but said that it needed a detailed assessment to understand what support Ms X required. The Council claimed it would only withhold direct contact details if it did not know who the request came from.

On 5 February Ms X wrote to the Council and said that she was dissatisfied with the response to her complaint. The Council wrote back on 22 March with the outcome of its review of the response to her complaint. It said that the times taken to consider Ms X’s request for more funding reflected annual leave, sick leave and her preference to work with someone that she knew. It said Ms X had already received an apology for the two-week delay in telling her the outcome of the November Single Panel and that it could not add anything to what had already been said about the need for more information.

What was found

There could be no fault found with the Council for actually wanting to do a Care Act compliant assessment of Ms X’s needs. However, until such time that it completed an assessment and agreed a new care and support plan with Ms X, it must continue to meet her needs as agreed in 2015. The Ombudsman was of the view that the fact that the Council did not do this process properly should not be seen as having an adverse impact on Ms X. It was after all the the Council who had agreed to continue providing funding to meet Ms X’s care needs at the same level in 2015 without carrying out a detailed assessment of her needs.

The Council was however at fault for failing to address Ms X’s concern that the funding it even provided was no longer enough to meet the needs agreed in 2015. This resulted in Ms X not having enough money to pay her PAs everything they were owed (i.e. pension costs, national insurance and holiday pay). It also failed to produce a proper care and support plan.

The Ombudsman recommended that within 6 weeks the Council should write to Ms X apologising for the distress it has caused and the time and trouble she has been put to in pursuing her complaint and pay her £400. The Council should also increase Ms X’s personal budget so that she can pay her Personal Assistants what they are owed, backdating this to when her personal budget ceased being enough to cover the costs (i.e. increased pension and national insurance costs, and holiday pay) and continue to pay this until it has agreed a new care and support plan with her. The Council has agreed to do this.

Points for the public and for councils

Paragraph 6.46 of the Statutory Guidance says:

“Once the person has completed the [supported self-] assessment, the local authority must ensure that it is an accurate and complete reflection of the person’s needs, outcomes, and the impact of needs on their wellbeing. The process of a supported self-assessment begins with first contact and is only complete when this assurance has been secured. Until the process of assurance is complete and the local authority has ensured that it is accurate, it will not have discharged its duties under section 9 of the Care Act”.

This report makes us wonder what on earth councils think that they are doing when they introduce various forms of streamlined reviews and re-assessments (mostly called Conversations with numbers or letters before or after that word) FOR EXISTING CLIENTS WITH EXISTING CARE PLANS or system slow downs for reviews and re-assessments.

It has been the law since 1995 that once something has been written up into a care plan, then it must be delivered, unless or until a new valid re-assessment has taken place. If a council’s senior management is taking the view that a Conversations- or a ‘Flat Rate Offers of Everything-’ or a ‘Let’s see what telling them an indicative budget achieves – most will just take it-’ based approach can always be made Care Act compliant for those who DO challenge that approach to spreading scarce staff and budget around, they must know NO PUBLIC LAW AT ALL. The person’s rights under the old care plan continue to subsist and form the basis of an unarguable private law right to reimbursement.

Supported Self Assessment was a great hope before the Care Act for coping with austerity but withered on the vine once staff grasped that it didn’t obviate the need for their own work. (As if it ever could! Social work is a profession given the responsibility for gatekeeping under the law, for goodness sake.)

A person who has filled out their own statement of what their deficits and needs amount to has not been assessed: they have put their own view forwards, and that information has to be triangulated, corroborated, evidenced etc – assured in the words of the guidance, just in case it is out of line with what an objective professional view would be.

So it is hugely ironic that this report centres around a person doing a supported self assessment at the point the Care Act came into force, and it not being enough, therefore giving the council all the more apparent time before it had to spend MONEY on meeting needs – but then that inadequacy not being sorted OUT, because of the woman’s own attitude to information sharing.

Any council with any information sharing knowledge will know that the discharge of statutory functions overrides the need for consent to share information.

We think it is interesting in this report that the person who finally assessed the person thought that the care needs, albeit health derived, were still within the scope of the quality (nature and complexity) and quantity (intensity and frequency) of social services, (that is a proper way of thinking about the issue, and a defensible judgment) but that the social services ‘single’ panel thought that they could just disagree and leave the needs unmet.

Tough, we would have to say, applying the law.

Unless the CCG has found a person to have a primary health need, they won’t qualify for Continuing Health Care, which would make for totally free care. When a person fails to qualify for THAT status, it is absolutely right to say that then there should be a consideration of the specific inputs to consider if they should be regarded as properly the responsibility of the health service. If that isn’t accepted, the client can pursue that by way of a complaint, or a judicial review, as there is no ACTUAL national framework for that question or Secretary of State guidance. An alternative is that the council can have it out with their mates in the health service using a supposed inter-agency dispute resolution panel for which there is no ultimate tribunal, but the important thing is THE NEED HAS TO BE MET IN THE MEANTIME: a good half of ALL social care is provided on account of people being ILL, and that is the law – and that means it’s chargeable to them, whereas if it’s a health service, it’s not – the rest of the country funds it through taxation.

When one reminds oneself that the whole period of this complaint there was never a properly concluded care plan after a properly conducted assessment it is no wonder that the LGSCO has recommended backdating to the earliest point of Ms X suggesting that the plan was inadequate to cover what she was having to pay the PAs for the originally agreed number of hours.

We do NOT think that the LGSCO is saying that Ms X can claim to pay the Pas whatever she likes, for a moment: the cost that must be paid back would be the unavoidable costs: pension, holiday pay, NI increases.

We think that the LGSCO is saying that when they get around to finalising a proper care plan, THAT needs to be backdated too to compensate Ms X for the period of greater cost that she establishes NEEDED to be paid regarding the PAs. They stayed on without being given a payrise as to the past, and were being paid more than the NMW anyway. However, if there is evidence that she was under pressure from a particular date, and would not be able to retain them unless they were paid more, that would be able theoretically to be backdated a little and would ultimately have to be acknowledged. This is in line with the law of restitution flowing from unlawful public bodies’ conduct.

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

The full Local Government Ombudsman report on the actions of Bath and North Somerset Council can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-000-003

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Oldham Metropolitan Borough Council at fault for incorrectly charging for services

Decision date: 13th September 2019

What Happened

Mr X complained on behalf of his mother-in-law, Mrs Y.

Mrs Y went into hospital in May 2018 with breathing problems. The Council visited her on 20 June where they decided she would benefit from their Reablement service. The Council proposed three calls a day to help with food preparation and medication, and to ensure safety when washing, showering and dressing.

Mrs Y said she did not want direct help with personal care. She also said she did not want long-term services.

Mrs Y returned home on 20 June. When the Reablement Team visited, Mrs Y said she did not need any help and could cope on her own.

Following contact from Mr X, the Reablement Team visited again on 25 June. Mrs Y agreed to accept one call a day from the Reablement Team in the mornings. She would not accept a call in the evenings, although the Council offered one.

Mrs Y went back into hospital on 2 July with breathing problems and a temperature.

On 12 July Mrs Y was fit to go home. The Council assessed her needs. The Council told her she would need calls from two carers four times a day and would also need to live downstairs.

The Council did not identify any grounds to question Mrs Y’s mental capacity. The assessment contained a “client declaration” which included these statements:

  1. “I confirm that it has been explained to me that I will be required to pay towards my care and support needs and the amount will depend on my financial circumstances. I understand that the maximum could be the full cost of my services and that the financial assessment completed calculates how much my contribution will be,”
  2. “I understand that if I refuse a financial assessment I will have to pay the full cost for my services, if I change my mind at a later date any reduction in my charges will not be backdated”.

When the Council visited the next day, Mrs Y reluctantly agreed to accept the proposed care package. The Council told Mrs Y about its charging policy and the need for a financial assessment, to which she agreed.

Mrs Y’s July care and support plan said; Mrs Y’s indicative personal budget was £172 – £240 a week but did not identify an agreed personal budget. It referred to four calls a day.

On 17 August the Council assigned an Officer to do a financial assessment for Mrs Y, to find out how much she could afford to pay towards the cost of her care. On 21 August Mrs Y told the Officer she would need a day to gather information, so the Officer arranged to visit her the next day. The Council had no record of a visit on 22 August, nor anything to explain why it did not go ahead.

Mrs Y went back into hospital on 29 August. The Council visited her on 31 August to discuss the arrangements for returning home. The care agency said it could restart its visits on 3 September.

The Council visited Mrs Y in hospital again on 3 September. There was a long record of the visit, which suggested it took the form of a review of her needs before her return home later that day. It again said Mrs Y would receive four calls a day from the care agency.

By 11 September Mrs Y was back in hospital.

The Council tried calling Mrs Y on 17 September to arrange a home visit on 25 September to review her needs, but she was still in hospital. Its records said it arranged for a letter to be sent to her about visiting at 10.30 on 25 September.

The Officer assigned to do Mrs Y’s financial assessment tried calling her on 19 and 20 September but there was no answer and no facility to leave a message.

The Council visited Mrs Y to review her care package on 25 September. Mrs Y said she had not received a letter about the visit. After reviewing her needs, the Council said it would reduce the number of carers visiting on each call from two to one.

The Council wrote to Mrs Y on 26 September. It said she had not responded to three attempts to complete a financial assessment. It said she would therefore have to pay the full cost of her care.

Mrs Y went into hospital again on 3 October. The Council was going to restart her package of care when she went home but Mrs Y cancelled it. Her family met her care needs.

By January 2019 they were struggling to cope and contacted the Council again. But Mrs Y died later that month.

There was no dispute over the fact that Mrs Y had over £23,250 in capital, so would have had to have paid the full cost to the council of her care. Mr X said:

  1. they knew there would be a charge for care but did not know when reablement stopped and the chargeable care started;
  2. the first they knew about the charge was when the Council wrote to Mrs Y on 26 September;
  3. Mrs Y thought she would be paying £7 a week;
  4. Mrs Y would not have agreed to care if she had known what she would have been expected to pay.

The Council accepted its invoice for care provided from 1 to 8 October did not take account of the fact Mrs Y went into hospital on 3 October. It therefore corrected this.

What was found

The Council did not give Mrs Y the opportunity to have someone else with her when it assessed her needs in hospital.

It is unrealistic to expect people to remember everything they have been told, particularly when they have been ill in hospital. The Council should provide written information so people can make informed decisions about their care.

The Statutory Guidance says care and support plans must include the final personal budget. But the Council’s care and support plans only included the indicative personal budget. The Council must have known how much the care it was commissioning would cost. It should have shared this information with Mrs Y. Furthermore, there was no evidence the Council ever gave Mrs Y a copy of her care and support plan, as required by the Statutory Guidance.

The Council did not refer Mrs Y for a financial assessment until over a month after it assessed her needs. There was nothing to explain why the financial assessment first planned for 22 August did not go ahead. The Council later told her she had failed to respond to three attempts to do a financial assessment. But the evidence did not support that claim. When the Council could not get through to Mrs Y over the telephone, it should have written to her to arrange a date for a financial assessment.

The failings above amounted to fault.

It may have been clear to the Council that when it started providing care in July it was no longer providing reablement care. But it was not clear to Mrs Y or her family because the Council did not provide clear information. When told what she would be charged, Mrs Y decided to cancel the care arranged by the Council.

Given that Mrs Y decided to cancel her care when she realised how much she had to pay, the LGO considered that it seemed likely she would not have accepted chargeable care if the Council had provided clear information about the charges at the start.

The LGO recommended the Council apologise to Mr X for its failings, waive 50% of the care charges and pay him £250 to reflect the time and trouble he was put to in pursuing his complaint.

Points for the public and for councils

  • It does not emerge from this particular report that there is an important difference between refusing a needs assessment, refusing a financial assessment, refusing to pay charges and refusing a service.
  • If one is legally literate, it is obvious that that difference can matter for the purposes of assessing fault and illegality.
  • Refusing an assessment of needs is a legal right if one has capacity. If one does NOT, there is still a duty to assess, otherwise how would cognitively impaired or cognitively atypical entrenched people ever get services?
  • Refusing a financial assessment is one’s right but it doesn’t negate a duty to meet assessed needs. The law is that one pays for one’s services, unless one satisfies the council that one’s means compel a reduction of the full price.
  • Refusing to pay for the charges is irrelevant to the right to have one’s needs met – the council can sue the person for the debt.
  • Refusing services, with mental capacity, goes directly to the heart of the duty to meet needs. It discharges to the council from the duty.
  • If one refuses services BECAUSE of the cost, one is doing oneself out of the right to receive care. That may well be one’s choice but it needs to be an informed choice, knowing that one can still receive the services and argue about the cost later. Many people would of course prefer not to court hostilities and debt recovery process but many people will NEED the services regardless and won’t have family willing or able nearby, to step up, to save on the expense / inherit more.
  • The whole point of a charging policy is that it’s a political choice to balance public and private and free resources so that ill and disabled people live an affordable but reasonable quality of life. If nobody tells the Members that people are refusing care because of the cost social care subsidies of the needy will disappear completely and we will all be left to the happenstance of our own savings and the private market in services.
  • Reablement cannot be charged for, for the first 6 weeks. It’s a service that is provided by way of prevention and reduction of longer term needs and it is a different thing to a post assessment service provided by way of a care plan.
  • A care plan MUST be produced after a finding of eligible assessed unmet needs. It must be transparent, evidence based and rationally sufficient.
  • It is never enough to just put in an indicative amount because the Care plan will not be finalised and the charges have to be based on the finalised care plan.

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 Oldham Metropolitan Borough Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-017-415

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Hampshire County Council at fault for failing to backdate direct payment to match increase in cost of care

Decision Date: 12th September 2019

What Happened

Mr X complained on behalf of his daughter, Miss X.

The Council provided Miss X with a personal budget to pay for a live-in carer and another care agency to provide cover.

Following a review of Miss X’s needs in December 2017, the Council gave her a personal budget of £1,138.86 a week (£922.28 for the live-in carer, £216.58 for cover).

Miss X had £45,235.83 sitting in her direct payment account. The Council reclaimed £37,447.54, leaving her with enough to pay for six weeks of care plus an outstanding invoice.

When the Council next assessed Miss X’s own finances in February 2018, it decided she could afford to pay £86.17 a week towards her care. This increased to £89.96 in April 2018.

The care agency providing cover for the live-in carer’s breaks told the Council it was increasing its charges from 9 April 2018. The Council therefore wrote to Miss X saying it would increase her personal budget.

Mr X said he told the council in June the cost of the live-in care would increase from 24 June 2018, but the Council had taken no action over this.

On 6 March 2019 the Council wrote to Mr X apologising for delays in resolving his daughter’s direct payments. It said her personal budget was £1,161.42 a week (£944.84 for the live-in care and £216.58 for cover), and it would backdate the budget to 24 June 2018. That decision did not take account of the increase agreed to be paid since April 2018.

On 20 March 2019 the Council invoiced Miss X for £4,674.53 due to a supposed overpayment of her direct payment “as advised in the letter recently sent to you”. But its recent letter had made no reference to an overpayment.

Mr X has since paid this money back to the Council from his daughter’s direct payment account.

After he complained again, the Council wrote to Mr X on 15 April. It apologised for not taking account of the increase in the hourly rate for the live-in carer’s cover from “1 April 2019” when it should have said April 2018.

The Council’s records of its own payments to Miss X show it did not take off her increased assessed contribution until May 2019, this explaining the apparent overpayment.

What was found

There was no dispute over the fact the Council took too long to respond to Mr X’s concerns. However, it had still not corrected all of its errors. In March 2019 the Council confirmed it would backdate an increase in the cost of the live-in carer to 24 June 2018, but through its considerations the LGO found that it did not actually do this.

  • That was fault by the Council.

The Council failed to take off Miss X’s contribution from its payments to her, until May 2019.

While that was fault by the Council, which added to the confusion, the Council was entitled to ask for the money to be repaid.

Nevertheless, the LGO recommended the Council pay financial redress to Mr X, to reflect the time and trouble put to in making the complaint for his daughter.

Points for the public and for councils

This is precisely the sort of incompetence that the complaint system should always be able to resolve and there is no law involved here.

There is no clue in this report how the council s intransigence or lack of attention failed to put the matter right at the earlier internal stage, or why the poor family had to go to this extent of complaining further, which is mind-boggling, to us.

A direct payment can be paid net so that any increase in charges that is valid and unchallenged can be reflected in a lower direct payment. The person’s budget remains the same.

If that is not done, by reason of incompetence, then that is an overpayment – a double payment – and of course the council can reclaim it but they have to get the year right and not overlook that the direct payment itself may have to be amended on account of increases in the price of care.

It seems to be beyond the wit of a software company to makage those two issues in conjunction with one another, for councils in general.

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 Hampshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-007-332

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Stockport Metropolitan Borough Council at fault for providing care contrary to contents of current care plan

Decision Date: 12th September 2019

What Happened

Miss X has physical health problems which affected her mobility and she also had a diagnosed personality disorder.

In 2017 she spent some time in hospital followed by a period of residential respite care. When she returned home, she received four calls a day. But by 2018 she was receiving three calls a day: late morning; late afternoon; and mid-evening.

In March 2018 the Council formally re-assessed Miss X’s needs, and identified that she needed help in areas to maintain healthy nutrition and personal hygiene, amongst other things.

That March 2018 care and support plan said the Council would provide two 30 minute calls a day, arrange for a hot lunch to be delivered and two hours support per week to help change her bed and tidy her house.

The Council did not identify a personal budget. Meaning that they did not identify a monetary figure to represent the cost of care they had identified in meeting Miss X’s needs.

The Council visited Miss X on 17 April to review her care. As a result, it reduced her support from 2 hours per week to 1 (bed changing and tidying).

Following advice from the NHS, the Council implemented a “strict routine” of limiting each call to 15 minutes on food preparation and 15 minutes of personal care within the two half hour personal care visits. The Council’s records said Miss X agreed to this.

The Council did not update her care and support plan to reflect the change from 2 hours to one, or to the delineation of the time on the personal care visits.

The Council called Miss X on 12 June to review her care. Miss X said she was not happy with the hot meals but was resigned to the change in her care and support plan.

Carers would undertake tasks such as preparing food and drinks, including hot food; emptying/cleaning the commode; providing personal care when Miss X agreed.

Twice Miss X declined having her hair washed. She was advised to say when she wanted it washing. Sometimes the carers refused to carry out tasks which were due to be covered by the weekly calls (e.g. moving boxes) or to cook food which would take too long.

Miss X complained to the Council many times.

On 22 January 2019 the Council responded to Miss X’s complaints. It said:

  1. she had made 23 complaints about her care since September 2018, including allegations of poor attitude, inadequate meals, stealing a bottle of water, taking a book without her knowledge, the carers not locking the door properly;
  2. it was sending two carers because of the level of accusations;
  3. Miss X was asking carers to do tasks not in her care plan and making complaints, whether they did what she asked or not;
  4. it would review Miss X’s care on 23 January and again in three months’ time. If at that point she was satisfied with the care being provided it would consider returning to a single carer visit;
  5. it would not give Miss X a “direct payment” form of personal budget to employ her own carers because she had debts which needed to be cleared before it would consider a direct payment. (It is unclear the nature of these debts from the LGO report)

What was found

After re-assessing Miss X’s needs in March 2018, the Council decided to provide two, rather than three, calls a day. It could do this, because when it reduced the calls to twice a day, it added in delivering hot meals every day. Any council is entitled to identify the most cost-effective way of meeting needs (subject to public law principles of course). Therefore there was no fault.

Also after that re-assessment, the Council identified the need for two hour long calls a week, but never provided them. There was nothing to explain why that was the case. That was fault by the Council.

After the review in April, the Council told Miss X it would provide one hour long call a week but did not update her care and support plan. There was nothing to explain the reason for this decision or how the weekly need could be met within one hour, rather than two.

Following advice from the NHS, the Council made other changes to the way it delivered care. This too should have resulted in an update to Miss X’s care and support plan. Failure to do so was fault by the Council. 

The records of the care being provided to Miss X show it was not in line with her care and support plan. In particular, it was clear to the LGO that her need for help with bed changing and washing bedding was far greater than reflected in the care and support plan. The latter suggested it was a weekly need, but the care records showed it was more frequent than that. The need to change and wash the bedding was therefore known to be encroaching on the time provided for meeting her other needs.

However, there was not enough evidence to say these faults caused significant injustice to Miss X.

The carer’s records showed Miss X regularly refused personal care. They showed it was been open to her to have her hair washed and could ask for this whenever she wanted. It appeared Miss X’s main concern was around the provision of hot food. But the Council was meeting that need by having a hot meal delivered each day. Carers continued to heat food up for Miss X, but had refused to prepare more elaborate meals. That was not fault by the Council.

Nevertheless, the Council should review Miss X’s needs and update her care and support plan, so it can properly reflect her needs and the care being provided to meet them.

Miss X’s care and support plan did not identify her personal budget. That was fault by the Council. While there was no injustice as a result of this, the Council must correct this failure.

The Council confused personal budgets with direct payments. Everyone should have a personal budget. They also have the right to ask for direct payments. When Miss X did this the Council said it would not give her direct payments because of her debts. The Statutory Guidance says councils should “take all reasonable steps” to provide support to people who might need help managing direct payments. The Council should reconsider Miss X’s request for direct payments.

Points for the public and councils about the legal framework underpinning this sort of report

  • SOME of the LGSCO’s investigators sometimes waste no time in describing the actions and omissions of the councils they find against as breach of the Care Act or not in accordance with the Care Act, or unlawful. Others describe it as fault, without cross-referring to established principles of law. We think that that ought to change, because at some point, now the Care Act has been around for 5 years and case law is emerging, the basic requirement of competence on the part of public officers and their management MUST include knowing the law well enough to get day to day work done properly, such that ignoring these principles must itself be FAULT.
  • In this report, there are at least 4 things that the report could have described as non compliant with the Care Act.
    • Failure to identify a personal budget – s26 Care Act
    • Failure to include the personal budget in the formal Care Plan that must be produced once someone has eligible unmet needs – s25
    • Failure to give due consideration to someone’s request for a direct payment form of personal budget – s31 Care Act – possibly a fetter of discretion here by reference to the refusal based simply on ‘debts’ which should not go directly to the question of the appropriateness of a direct payment for meeting needs, or to someone’s ability to manage
    • Once someone’s plan has been signed off it is a breach of statutory duty to fail to deliver what is in it – s18 provides a duty to meet the needs, the needs identified as those that requires to be met in the assessment, and the care plan cannot be changed without a review and a re-assessment under s27!

All anyone has to do to sort this kind of breach of the law out is to refer it to the Monitoring Officer under s5(2) or 5A(2) of the Local Government and Housing Act 1989. There is a post on the purpose and scope of the Monitoring Officer’s role (which is a protected, independent and personal responsibility for good government, intended by Parliament to avoid illegality and adversarial hostilities at the level of litigation) on this site if you search for “Monitoring Officer.”

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site. We don’t charge for triaging your issue and giving you a steer, or for clear, pressing, significant public law wrongs related to social services stances on assessment, eligibility, care plans (content or amount) or cuts or delay!

The full Local Government Ombudsman report of Stockport Metropolitan BoroughCouncil’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-010-209

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Leeds Council at fault for its approach to cultural norms and quality of care provided through its commissioning

Decision Date: 11th September 2019

What Happened

Miss J was diagnosed with rheumatoid arthritis as a child. She lives in an adapted property with her young daughter. Miss J’s health condition means she is unable to lift her arms above her shoulders and uses a wheelchair to get around.

Hair Care

The Council supported Miss J for several years with a complex care package. She received 68 and a half hours of commissioned care per week to help with daily tasks such as personal care, cleaning, food preparation and caring for her daughter. Sometime in late 2017, the carer trained to meet Miss J’s full hair care needs moved to another post and was unable to continue supporting Miss J and her daughter.

In November 2017, the Council completed a financial assessment to review the amount of DRE (disability related expenditure) Miss J should receive and how much she should contribute towards her care costs. The Council advised Miss J it was unable to include her hair care costs of £25 per week as DRE because its policy only allowed for hair washing at a maximum cost of £10 per week.

Miss J contacted the Council to explain that her hair care costs were higher because of her Afro-Caribbean heritage.

She said her health condition meant she was unable to maintain her and her daughter’s hair daily and had to get a hairdresser to wash and braid their hair weekly. Miss J explained the various stages involved in maintaining Afro-Caribbean hair to ensure it stayed clean and healthy, which included braiding to minimise the amount of daily upkeep and stress caused to the hair and scalp.

Miss J asked the Council to reconsider the financial assessment which she said was discriminatory to her and other people of Afro-Caribbean origin.

The Council responded to Miss J and explained that it understood from her most recent care and support plan that she did not require help to shower and wash her hair. The team manager responding to Miss J said they had consulted Miss J’s social worker and Afro-Caribbean colleagues to help gain a better understanding of the issue. The team manager noted from her colleagues that braiding was not ‘required’ to maintain Afro-Caribbean hair and could therefore not consider this method of hairstyling as a DRE. While the team manager apologised for any offence caused, they concluded Miss J had not been discriminated against during the financial assessment and were unable to uphold her appeal.

Miss J approached her Member of Parliament (MP). The MP wrote to the Council to ask it to reconsider its decision.

Miss J told the team manager she found the comments in their response insulting and degrading. Miss J said the method the team manager had used to further their understanding of the issue was inappropriate and did not take account of Miss J’s individual needs or circumstances. Miss J also clarified that she could not wash her own hair and requested another appeal against the decision to refuse her hair care costs as DRE.

The same manager responded to Miss J’s correspondence three months later. The manager upheld their decision not to cover Miss J’s hair care costs as DRE and signposted her to the Ombudsman if she remained dissatisfied.

The Council wrote to Miss J when it received notification from the Ombudsman that she had escalated her complaint. The Council noted Miss J’s care and support plan included provision for carers to meet her hair care needs but said that it had now understood the commissioned care provider had been unable to provide suitably trained carers to meet this need.

They accepted Miss J’s receipts showing her hair care costs and decided to allow the maximum £10 per week DRE for hair washing that its policy provided for. They agreed to backdate the weekly DRE allowance for hair washing to the date Miss J was first invoiced to contribute to her care costs. It also confirmed her ongoing contribution to care costs would be reduced until her hair care needs could be met in full by her carers, since she wasn’t getting that service out of them. The Council maintained it could not cover Miss J’s entire hair care costs as DRE.

Quality of Care

In addition to her hair care, Miss J started to raise concerns about the commissioned care provider in November 2017.

She reported problems with one carer being unreliable and another carer smelling of alcohol. She said carers would regularly arrive late and leave early.

Part of Miss J’s care package was to support her with parenting. The delayed arrival of carers in the morning meant her daughter was often late for school, had to go without breakfast and the result was that she had to rely on support from relatives.

The Council agreed for Miss J to bank hours of missed care, for her to use when she needed more help with caring for her daughter (during school holidays for example). (Presumably, it agreed that with the Care Provider, under contract performance monitoring provisions.)

Miss J stressed to the Council that she did not want her daughter to become a young carer as a result of the gaps in the support.

In October 2018, Miss J had to raise concerns with the Council again as carers continued arriving late or missing appointments.

Miss J contacted the Council again in February 2019 as she continued to have issues with the commissioned carers. She listed times between August 2018 and the beginning of December 2018 when there had been problems with lateness, missed appointments or reduced hours of care.

Miss J asked the Council for a review of her care and support plan to deal with the issues about her hair care and the quality of care.

The Council met with Miss J and two of the care provider’s managers in May 2019. The care provider’s managers confirmed they would be available to cover any shifts that were cancelled at short notice, by providing a large pool of carers. The Council noted Miss J had accrued 123 hours of missed care between June 2017 and March 2019, which it was agreed that Miss J was able to use flexibly to provide more support on specific days if needed. 

Debt Recovery

Miss J stopped making payments towards her care costs in November 2017, when she first reported problems to the Council. The Council adjusted the amount Miss J owed when it agreed to allow the £10 per week DRE for hair washing, since it meant that her contribution towards her care charges was logically reduced.

Miss J’s outstanding debt for care costs was reduced from £1,332 to £612.

The Council referred the otherwise outstanding arrears to a debt collection agency who has since returned the matter to the Council as Miss J has refused to pay.

Miss J felt the Council should not have instructed the debt collection agency to pursue her for a contribution to her care costs whilst she was in dispute about the quality of care she had received. She found the experience of agents visiting her property to collect the debt distressing.

What was found

Hair care

The Council has assessed Miss J and her daughter’s hair care as an eligible need in her care and support plan. When the care provider was not able to meet this need, Miss J asked the Council to agree for her hairdressing costs to be classed as DRE. Miss J’s request should have been referred to her social worker to initiate a review of Miss J’s care and support plan rather than a financial assessment of her contribution towards her care costs. The lack of a joined-up approach and communication between the financial assessment and adult social care teams in Miss J’s case meant this error was not identified sooner. This was fault and caused avoidable distress and frustration to Miss J.

The Council was at fault when the same officer reviewed and responded to Miss J’s appeals. The Council only realised and corrected the error when the Ombudsman notified it Miss J had escalated her complaint. The Council’s delay in identifying its error put Miss J to further inconvenience which could have been avoided.

The Council’s DRE policy and the Care and Support Statutory Guidance both state that each person should be assessed on their individual needs and circumstances. There is no exhaustive list of items a council should or should not include as DRE. The Council was at fault as it fettered its discretion when it refused to consider allowing a higher amount of DRE for Miss J’s hair care costs based on her individual needs and circumstances.

The approach the Council took of asking Afro-Caribbean colleagues was fault as it failed to take account of Miss J’s individual needs and caused unnecessary distress and offence.

Quality of Care

There were persistent issues with the hours of care Miss J received since November 2017. The hours she banked were considerable, and the LGO advised that concerted efforts needed to be made to avoid this fault happening again.

The Council’s agreement for Miss J to bank the hours of care missed, helped her to use those hours flexibly. The LGO considered that this went some way towards remedying the difficulties she and her daughter experienced. The LGO further recommended that the Council commence monthly monitoring of the care provider’s performance to ensure the measures it put in place remain effective.

The issues Miss J had with missed and late care visits also had an impact on her daughter. There was little evidence to show if the Council considered it owed a duty to Miss J’s daughter under section 17 of the Children Act 1989 as a child in need. The LGO recommended that the Council consider assessing whether Miss J’s daughter needed support as a young carer.

Debt recovery

The Council’s financial assistance policy states it will pursue people who fail to pay the contributions towards their care costs and this action may include taking the individual to court to recover the arrears. Although the Council complied with its policy in Miss J’s case by pursuing the arrears, more should have been done to recognise the link between her non-payment and the issues she experienced with the quality of her care. The distress Miss J experienced from receiving contact and visits to her home from debt collection agents might have been avoided if the Council had resolved the issues she was having with her care sooner.

Points for the public and councils

CASCAIDr sees problems relating to dispute care charges when the care has been

  1. Not delivered at all
  2. Delivered but found seriously wanting in terms of quality
  3. Delivered but delivered late

In any contractual context, anyone paying for a service themselves, privately, or through a direct payment, would expect the provider to acknowledge the breach of contract, by reference to

  1. Crediting the person with the charge for undelivered care
  2. Crediting the person with a reduction in the fee for care that was not of a reasonable standard
  3. Crediting the person with a reduction in the fee for care that was delivered but which was delivered late
  4. Compensation for the aggravation and distress caused to anyone supposed to benefit from the service (here the woman’s daughter as well as the woman) because the essence of contract is for support and comfort and wellbeing, and this kind of damage is wholly foreseeable and not remote

When a person is commissioned for by the council, they are entitled to

  1. Have what was planned for, actually delivered
  2. Have it delivered to a reasonable standard
  3. Have it delivered on time, more often than not
  4. Not be charged more for the service than it cost the council
  5. Not be charged more for the service than the reduced cost to the council should have been calculated to be after the council as contractor had held the provider to account.

We would say that it stands to reason then, that a reduction should have been made against the charges thought to be outstanding, not merely on account of the increase in DRE arising out of the hair care dispute, but also on account of the poor provision which the council took so long to ramp up an acceptable quality of performance, upon.

The Care Act guidance is crystal clear that debt recovery process should only be embarked upon after a rational and conscientious attempt has been made to resolve the reasons for the dispute.

On the hair care front, it seems obvious to us that a council has got to take notice of cultural issues in relation to the adequacy of a care plan and therefore the sufficiency of the budget. If it accepts that hair CARE is part of it, then shaving would be implicitly part and parcel for a man; ritual shaving would be part and parcel for a Muslim, and managing hair in what is a completely normal way (braiding) should be part and parcel of a care package for someone not able to do it for themselves, particularly if one is sensitive to the needs of a child to fit in and convey respect for cultural norms. We are not talking here about an asserted need for something as personal as pubic vag-azzling, are we?

How a council finds out about cultural norms, if NOT by asking around (but not merely in-house colleagues who are handy!) and researching is beyond us, but of course it should start with asking the person themselves how important it is to THEM and their child in this case.

If a plan provides for hair CARE, and not merely washing, and the person cannot get that service from the commissioned provider, the council MUST, in legal terms, allow the person to claim the cost of meeting that need (the need that it owes a duty to meet out of public monies) as DRE.

Whether doing so will make a difference to the overall balance between the client’s preserved personal money, and the money received from the council is a matter of maths in individual circumstances affected by a council’s wider charging policy. All that can be said is that the LGSCO is not WRONG to say that the two concepts are different, and that if a need in a plan is not being met, that plan needs to be reviewed and the problem sorted through re-commissioning – or by providing a split budget, some in direct payment form.

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 Leeds City Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-016-024

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London Borough of Merton Council delay in finding suitable placement was inexcusable

Decision date: 3rd September 2019

What happened

Mrs R complained to her council, Merton, on behalf of her son Mr C.

The Care Act 2014 introduced a requirement for local authorities to promote individual well-being. It signified a shift away from local authorities providing specific services that supposedly meet the needs of groups of individuals classified by their medical diagnosis, towards the concept of meeting the needs of the individual and recognising that everyone’s needs are different and unique to them.

“Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into.” (Care and Support Statutory Guidance, Ch1).

Mr C was a young adult with an autism spectrum disorder (ASD), moderate learning difficulties, obsessive compulsive disorder (OCD) and epilepsy. He had lived in residential care funded by the council for several years that catered specifically for people with ASD. His transition (at the end of 2017) from the children’s provision to the adult’s facility within this home had been problematic. It was expected that he would share accommodation, however, Mrs R, his mother, stated that in her view, he needed to live alone.

Initially he shared with one other resident who remained in that person’s own room; therefore, Mr C essentially had the communal areas to himself, until January 2018 when a third resident moved in. At this point Mr C voiced his concerns to Mrs R. This coincided with a change to Mr C’s medication and a deterioration in his behaviour. He assaulted staff and expressed wishes to leave this placement. This situation was bought to the council’s attention by both Mrs R and the placement – however, the council’s communications to them both regarding this matter were poor.

Mr C became anxious about his uncertain future and his behaviour deteriorated. Mrs R identified a placement she considered suitable for Mr C. The placement assessed Mr C and offered him a place subject to funding; they then asked the council to agree funding to allow a transition to take place. The council failed to respond in a timely manner and later concluded they could not fully finance this without contribution from the CCG perhaps on a continuing health care basis (CHC) – for which Mr C needed an additional assessment.

The council then failed to refer Mr C for a CHC assessment, while also stating they needed two offers to make a financial decision on Mr C’s care. The offer from his potential placement was still open; however, the council found an alternative placement but Mrs R rejected it due to its asserted unsuitable environment. There was then an impasse.

Four months into this situation Mr C’s current placement gave the council notice to remove the client, and this further increased his anxiety. Mrs R made further complaints to the council who agreed there had been a delay in referring for a CHC application but still insisted it was needed to fund the preferred suggested placement. A further meeting saw the council apologise for not having done the CHC assessment; however, they now concluded that due to Mr R’s unstable situation a CHC assessment could not be carried out as it would “not give a true representation of his needs.” A senior manager said that the local care commissioning group, (CCG) and the Council were working to find appropriate placements and to avoid hospital admission. He said the Council would contact Ms R with ‘daily updates’.

This further delay escalated Mr C’s anxiety levels even higher resulting in him assaulting staff. He was evicted and returned to live with Mrs R. This solution had a severe impact on Mrs R’s health.

In October 2018, four months on from Mr C’s initial desire to leave his placement the council agreed that Mr C could move to the placement that Mrs R had initially identified, but a vacancy was not available for another 14 weeks. In the meantime, the council found respite care for Mr C and he was later assessed for, and awarded full CHC, and the placement was made permanent.

What was found:

Poor communication

Mrs R says she phoned the Council ‘hundreds of times’ and wrote ‘countless emails’. The council accepted that it was at fault due to its inadequate communication. This meant Mrs R spent much time on written communications which were simply not responded to, therefore forcing her to attend the council offices in person on several occasions. She was severely frustrated.

Delay in finding a new placement

The LGO found that the Council was at fault for causing unnecessary delays in finding Mr C appropriate care (the process took over eight months). It was recognised that Mr C’s needs were complex and therefore finding him a new placement would take time. However, the council knew this from the outset and had ample warning that his current placement was going to end.

Mrs R was concerned with the delay and miscommunications experienced while finding Mr C a suitable placement and the LGO found that even if there had been no errors in the way the council went about finding a new placement the delay in itself might well have been seen as a fault.

The council had a duty to meet Mr C’s needs and did not do so.

However, the LGO acknowledged that further errors had been made which also contributed to the delay so the review omission did not cause injustice in itself. These errors included losing papers, not contacting providers and failing to respond or inform others for over three weeks.

Frustrated with the council’s lack of action the other parties felt it necessary to resolve the situation and were left to communicate among themselves, a role that the council should have fulfilled. The home gave notice to spur the council into action, the LGO found.

While the LGO acknowledged the council did make some effort to find Mr C a place, given the complexity of his needs and the impending deadline, the council did not do enough, effectively forcing Mrs R to agree to have Mr C come home to stay with her. The original arrangement was for him to stay two weeks but he stayed for six. Given Mr C’s physique, his poor self-control and the environment of Mrs R’s home, he posed a risk to himself and Mrs R; this too was seen as a fault.

While Mr C’s care plan stated he required one to one care in an environment where others were on call, the council left Mr C at Mrs R’s house, in her care, for a lengthy period with little support. It paid her £400 a week through direct payments but this was, in the circumstances, quite inadequate.  This was also a fault by the council, and this injustice caused distress to both Mr C and Mrs R.

Outcome

The council was at fault for causing delay and for failures in communication. This fault caused Mrs R and Mr C distress. The complaint exposed serious flaws in the way which the council dealt with the crisis in Mr C’s care.

The LGO found that the council could have acted quicker and the council accepted this finding.

To remedy these injustices the council agreed that it will:

  • Apologise to Mr C and Mrs R.
  • Make a payment of £3000 to Mrs R and £2000 to Mr C to acknowledge the distress caused and the loss of non-monetary benefit (a large sum indicative of reimbursement of the money saved by the council during the period of failing to meet Mr C’s needs, it is suggested).
  • Pay Mrs R £200 to acknowledge her time and trouble in bringing this complaint.

Points for the public and for councils

  • There is an absolute duty to meet needs, once they are assessed as eligible, and unmet, as long as there is no capacitated refusal of services or capacitated voluntary stepping up by others to meet the needs identified.
  • Failure to meet the need is a breach of statutory duty – it is unlawful, and it can be enforced through a referral to the Monitoring Officer or an application (funded by Legal Help and full legal aid, on a merits and means tested basis) for permission for judicial review.
  • For any period of unlawfully unassessed care needs, or unlawfully unallocated or inadequate budget for meeting needs, there is a principle under the CP v NE Lincs case that restitution must follow, because the council in question will have been unjustly enriched by the saving made. The LGO report here refers to the award being for the loss of non-monetary benefit.
  • This case has compelling similarities with the case involving Dorset’s failures to find a person a package for transitioning, in which complaint the parents also shouldered the council’s duty for it.
  • It is not the law that just because some sort of necessary care is hard to procure, it does not need to be bought: the price is irrelevant if it is the ONLY means of meeting need, because that is the corollary of an absolute duty to meet need. Commissioners everywhere would do well to appreciate that this aspect of the Care Act legal framework will never change – it is a matter of law, and there is no point in simply contending that the price does not have to be raised by reference to how desperately poor the council is.

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 Merton’sactions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/18-011-437#point1

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Council AND NHS at fault for failing to update care plans in readiness for transition, and follow up safeguarding concerns

Combined decision date: 20 November 2019

What happened

This complaint was investigated by a person working on behalf of both the NHS ombudsman and the local government ombudsman and it looked into failures by not only Surrey County Council but also the Devon Partnership NHS Trust, Pembroke Surgery, Devon Clinical Commissioning Group and the Royal Devon and Exeter NHS Foundation Trust and Torbay and South Devon NHS Foundation Trust

Ms X complained to the council about the care her sister Miss Y was receiving. The period in question was before the coming into force of the Care Act.

Over the period in question Miss Y received care in a care home, which was paid for and overseen by the council but facilitated in a different geographical area. Miss Y’s overall care was provided by her placement provider alongside interventions from several hospital trusts and her GP.

Miss Y had severe learning difficulties and is not able to communicate verbally. She had severe behavioural issues and complex physical health needs. Miss Y needed 24 hour supervision.

She had a diagnosis of bipolar disorder, (a mental health condition) albeit contested by Ms X, and council records from 2013 recorded Miss Y as having possible ‘autistic traits’.

Due to delays in service and follow through inadequacies, or any apparent grasp as to why it might matter, Miss Y had not been formally assessed for an autism spectrum disorder (ASD).

Up until 2013 Miss Y had been living at a specialist residential placement funded by the council. This facility was due to close and residents moved to supported living on the same site with the same carers. A best interests meeting was held; all parties agreed the move to supported living was in Miss Y’s best interests. In July 2013, the Council carried out a social care assessment for Miss Y as part of the transition process. This found Miss Y had “a profound learning disability with autistic traits.”

In November 2014 the care home asked the council to complete a care review for Miss Y ahead of her move. It took the council three months to do so and they agreed Miss Y needed a new assessment to facilitate a support plan. The council then took another four months before a new needs assessment was done by which time Miss Y had moved and been in supported living for a month. She would have had to become a tenant of a housing provider, to take up tenure, although the complaint report does not explain how this was organised with lawful authority.

In June 2015 Miss Y had moved into assisted living. This move had been planned for many months; however the council had not put in place specific plans for the transition, although the care home provider stated it did not foresee any major problems.

The Council said Miss Y’s transition had been carefully managed. It said “a series of assessments, including risk management assessments, and devised care plans” had been completed as part of this process. However, the joint investigator found no evidence of these documents in the Council’s records or those of the service provider that assumed responsibility for the care home (shortly before it became assisted living) in March 2015.

Within eight weeks of moving Miss Y’s behaviours escalated. Miss Y had difficulties with sleeping, manic behaviour, and changes in eating patterns for which her service provider sought advice from Miss Y’s GP.

Throughout this period the local NHS intensive assessment and treatment team (IATT) were involved with Miss Y’s medication management alongside her GP.

During this time Miss Y was being treated to manage her diagnosed bipolar disorder; although the suggestion of ASD had been made many years earlier, no assessment to confirm this had ever been provided.

The changes to Miss Y’s medication appeared not to address her symptoms and eventually she reached the point in August 2015 where carers thought Miss Y needed detaining under the Mental Health Act (MHA).

Placement 2 contacted the IATT again on 10 August 2015 to discuss Miss Y’s care. A manager from the placement reported that Miss Y’s “behaviours are highly erratic, unable to settle, she has a distressed look and an increased appetite” but said her sleep pattern had improved. The following day, an IATT officer also spoke to the day centre. He noted Miss Y “continues to present as highly agitated, unable to settle or calm.” The following week a manager from Placement 2 contacted the IATT team again to report that Miss Y’s behaviour had deteriorated following a reduction in her Risperidone medication and that she had barged another resident, leading to that resident being admitted to hospital. An IATT consultant noted Miss Y was experiencing a hypomanic episode. This led the consultant to

stop Miss Y’s Risperidone medication and commence her on Olanzapine (an

alternative antipsychotic medication). This appears to have had little effect and a manager from Placement 2 contacted the IATT the following day to advise that the placement “simply cannot cope with [Miss Y’s] behaviour as there are serious concerns for [Miss Y] and the other residents’ safety.” The Placement 2 manager also contacted the Practice, reporting “Patient’s condition worsened – manic, has already injured another resident who had to go

to hospital, is stripping staff’s clothes off”. By 24 August 2015, the Devon Trust’s notes record that Miss Y was “covered in bruises and has a swollen hand” and had damaged fittings in her room. On 24 August 2015, a new consultant from the IATT reviewed Miss Y. He wrote to the Practice to express the view that Miss Y’s care package was approaching

crisis point. He suggested Miss Y’s escalating behaviour may be an “autistic crisis”.

In September 2015 Miss Y was sectioned under the MHA; however, the assessment Miss Y received on admission to the mental health facility identified that she had a broken hip. Miss Y was then transferred to the main hospital for surgery. Miss Y stayed under the care of the hospital who operated on her hip until February 16 at which point, she was transferred to another physical health hospital Trust.

Miss Y spent a further two months with them until April 2016 when she moved to a new out of area placement (a care home again).

Despite all the organisations involved and Miss Y’s injuries, no one made any safeguarding referrals.

Ms X complained that:

  • The council failed to provide Miss Y with appropriate social care input and did not manage her transition properly.
  • The council did not follow up on Miss Y’s autistic traits with a formal autism assessment and the hospital trust did not review Miss Y’s diagnosis as suggested.
  • The IATT also failed to assess Miss Y for autism leading to Miss Y being prescribed inappropriate psychotropic medication and the medication Miss Y did receive was inappropriately monitored.

What was found:

Care planning

The LGO considered the council’s management of Miss Y’s care planning. Local authorities are required to review a new service user’s care plan once they start receiving care. Government guidance requires the frequency of ongoing reviews to be “proportionate to the circumstances of the individual”. It was regarded as good practice for a council to carry out a review within 4 to 6 weeks after a service starts and at least yearly. The council were not able to find most of Miss Y’s records for the period before she moved into supported living. Although the council did review Miss Y there is no evidence to suggest they completed the re-assessment that the review stated was needed. Therefore, Miss Y went through the transition to supported living with no specific arrangements in place. The council eventually completed this assessment four weeks after Miss Y moved, yet the paperwork was virtually identical to the review carried out six months previously and did not contain information relating to how Miss Y was adapting to the new living and care arrangements. The council was judged to be at fault for lack of detailed planning to support Miss Y’s transition.

The LGO were unable to be certain that this lack of planning impacted on Miss Y’s behaviour as the closure of where she was living meant that she needed to move in any event, and therefore some degree of stress from the change was inevitable. However, the LGO acknowledged that the lack of council planning most likely contributed to Miss Y’s distress and caused uncertainty for Ms X.

Diagnosis

The LGO acknowledged that Miss Y’s healthcare professionals were aware that autism was a possible diagnosis. Given this feature, alongside Miss Y’s behaviour and clinical history, the LGO found the mental health trust at fault for not at least considering ASD alongside Miss Y’s current diagnosis, and for not promptly arranging a formal autism assessment for Miss Y.

The LGO was unable to speculate what the outcome of Miss Y’s autism assessment might have been but accepted that the fault in not carrying out this assessment would have significantly affected the outcomes of Miss Y’s care; specifically in relation to the medication Miss Y received.

Escalating behaviour

The LGO investigated whether there was a collective failure to investigate Miss Y’s escalating behaviours. The LGO found up until October 2014 Miss Y’s condition had been stable. In December 2014 Miss Y was noted to have a change in behaviour patterns and it was noted that the IATT would need to review her medication. They did, and no changes were deemed necessary. Due to problems sleeping, Miss Y was prescribed sleeping medication by her GP. The sleeping medication made no difference to Miss Y so her GP changed her antipsychotic medication and made another referral to IATT. Prolonged communications were exchanged between Miss Y’s carers, her GP and the IATT who then changed Miss Y’s medication again.

The LGO was satisfied that records were sufficient for healthcare professionals to recognise her pattern of deterioration. The LGO was happy that Miss Y received appropriate care and medication for her primary diagnosis of bipolar disorder. However, when it became clear that the strategy of providing Miss Y with medication was ineffective other possible causes for Miss Y’s symptoms should have been explored. the Devon Trust should have arranged an Autism assessment for Miss Y. It was also open to the Devon Trust to seek an urgent second opinion with regards to Miss Y’s care. However, it did not do so.

and Miss Y’s condition continued to deteriorate until she was sectioned. This is evidence of fault by the Devon Trust. This represented a missed opportunity to explore other possible interventions for Miss Y and caused uncertainty and distress for Ms X.

Whilst in hospital under Mental Health section, the investigator considered whether the continued medication was properly monitored. He found that the decision, in November 2015, not to reduce Miss Y’s medication while her hip was healing was reasonable, but that this decision and similar decisions taken after this point should have been made on the basis of full medication reviews. He found no evidence of a medication review in the Devon Trust’s records for the period from October 2015 to Miss Y’s discharge in April 2016. This is fault, although it did not cause injustice as such, because the Devon Trust consultant who eventually reviewed Miss Y in March 2016 thought that it would not be appropriate to change her medication until her condition had been stable for several months.

Safeguarding concerns

Section 42 of the Care Act 2014 states that a local authority must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. The local authority must also decide whether it or another person or agency should take action to protect the person from abuse or risk. Statutory guidance on the issue says that workers across all the organisations involved in Miss Y’s care needed to be vigilant about adult safeguarding concerns. The guidance recognises that early information sharing is key to the adult welfare.

The investigator does not appear to have been able to get to the bottom of why the mental health trust did not raise safeguarding concerns to the council. He was also concerned that both Miss Y’s placement and her GP also failed to raise safeguarding concerns. Miss Y’s records from each of these organisations revealed plenty of concerns over the risk she posed to herself and others, and this should have prompted a safeguarding referral. The LGO found the council the hospital trust and the GP at fault for not raising safeguarding concerns.

Other health issues

Ms X asked the LGO to investigate how Miss Y’s health may have been affected by other conditions such as gluten intolerance. The LGO found that the GP had acted appropriately when considering Miss Y’s digestion issues, however found that the GP was at fault for failing to undertake a physical health check to determine whether there was an underlying physical cause.

However, the LGO was not convinced that the GPs failure to carry out a physical health check had had a significant impact on Miss Y’s care. Miss Y had no symptoms that would have suggested a gluten allergy, which can be tested for, as opposed to gluten intolerance which is difficult to test for with someone with communication difficulties, apparently.

Ms X asked the LGO to investigate Miss Y’s medication throughout her time in hospital. The LGO concluded that Miss Y’s medication was not inappropriate given her diagnoses and environment throughout this time.

Restrictive clothing

A best interests meeting of professionals and Miss X had concluded that using onesie suits at night for Miss Y was the best option, considering the health risks from her tendencies involving her own faeces. Placement 2’s view was that onesie suits had been in use for Miss Y since the 1990s and subject to multidisciplinary review over many years. Nevertheless, the investigator found that Placement 2 should have completed a new mental capacity assessment in accordance with the provisions of the MCA to reflect Miss Y’s recent change of circumstances – a move into independent living, not a care home, where there is a 24 hour duty of care and managerial control that is based on that duty – whereas the nature of the responsibility is different in independent living. This would have allowed for a fresh decision to be taken on whether use of the onesie suits was in Miss Y’s best interests. This was fault by Placement 2 (acting on behalf of the Council), although the investigator did not think that it led to injustice, because it was clearly in Miss Y’s best interests.

Complaint handling

Paperwork records of communications between Ms X and the council showed Ms X had indicated she was satisfied with the proposed arrangements.

The LGO did not consider the length of time it took the council to respond to Ms X’s complaint unreasonable (it was a complex complaint involving many organisations) but did find the council at fault of failing to arrange a co-ordinated response to Ms X. The LGO concluded that Ms X was entitled to one co-ordinated response from the council rather than individual responses from the various organisations (council, GP and hospitals trusts) involved.

To remedy the situation

The council, the hospital trust and the GP were asked to write to Ms X and Miss Y to apologise for:

Failure to make a safeguarding referral: all three are to pay Miss Y £100 each to compensate for the missed opportunity to reduce her risk and the council to pay £100 to Ms X for the distress this caused.

For failure to manage Miss Y’s transition between placements the council was asked to pay Miss Y £200 in recognition of the impact this fault had on her, and to pay Ms X £100 for the distress this uncertainty caused.

Due to the hospital’s failure to undertake regular medication reviews for Miss Y the hospital was asked to pay Ms X £100 for the uncertainty this had caused her.

For their failure to organise and Autism assessment they were asked to pay Ms X £200 for the distress this caused.

Points for the public and for Health and Social Services

  • The local authority is expected to review all clients on their caseload with 4 – 6 weeks of a change in care provision and at least yearly thereafter, under the Guidance. This expectation helps prevent changes in a person’s wellbeing going unnoticed and gives an early warning of potential problems, giving the local authority a chance to adapt what it has commissioned, and act on the issues and to minimise distress to clients and their carers.
  • Safeguarding concerns are of the utmost importance. The policies and procedures in place within organisations should be followed and concerns raised. Raising potential concerns as early as possible is critical to minimise potential problems and maximise safely of vulnerable individuals.
  • Much legislation and guidance exists for organisations when dealing with service users who are unable to make decisions for themselves. The Mental Capacity Act 2005 (MCA), via a mental capacity assessment should ensure that actions taken by organisations are in the individual’s best interests and in NHS terms, should therefore provide a clinical reason for the treatment detailed in an individual’s care plan.
  • There is guidance specifically relating to people with learning difficulties and the use of medication in the NHS England document on stopping over-medication of people with a learning difficulty, autism or both. The National Institute for Health and Care Excellence (NICE) guidelines covering people with challenging behaviour and learning difficulties emphasise taking into account underlying physical and mental health problems when assessing challenging behaviour.

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

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Kent County Council at fault for failing to update care plan and provide the support outlined in care plan

Decision Date: 4th September 2019

What Happened

Mrs A complained on behalf of her son, Mr B.

Mr B is a young adult with learning disabilities and autism. He has challenging behaviour and communication difficulties. Mr B lives with Mrs A and she is his main unpaid carer.

There was a mental capacity assessment in February 2018 which concluded Mr B did not have capacity to make decisions about his care arrangements. A best interests meeting took place in April decided it would be in Mr B’s best interests to move to supported living.

Mr B moved into supported living – a house ‘run’ by a Care Provider in May 2018.

The Council had completed a care and support plan for Mr B in 2017. This was before he moved into supported living. There was no new care and support plan completed in 2018. The 2017 plan said Mr B needed:

  • Support with all aspects of personal care
  • Specialist support from the mental health of learning disability team around his challenging behaviour
  • Support with laundry and cooking
  • Support to manage health appointments, take medication and apply creams
  • Support from Mrs A to manage his finances
  • Two to one support in the community to access appropriate activities.

The Care Provider then also drew up its own internal detailed care plans to meet Mr B’s care needs.

The Council funded a weekly care package for Mr B which included 40 hours of shared support, 35 hours of one to one support and 10 hours of two to one support in the community and a waking night member of staff. The Council said it was not aware of any incidents where Mr B did not have one to one staff or two to one in the community.

The Council opened a safeguarding enquiry to look into concerns from Mrs A about Mr B receiving poor care. The social worker noted that stains had been reported in his underwear (staff agreed to use a different washing powder to remove these) and there was an incident in July where Mr B became upset in the car; Mr B was pulling at the driver.

Mrs A became concerned and refused to let Mr B return to the placement after a weekend visit home at the end of July.

Professionals met at the start of August to discuss Mr B’s care.

  • The issue of toilet hygiene was discussed and the plan was for Mr B to be referred to the occupational therapy team for a washer/dryer toilet
  • Staff were applying creams to his skin several times a day.
  • His support had been reduced by the Provider to one to one while travelling in the car but had since been increased back to two to one due to the incident.
  • The consensus was it was in Mr B’s best interests to return to the placement and the Council would consider an application to court after seeking Mrs A’s views.

Mrs A did not change her mind about Mr B returning to the placement. She contacted the Care Quality Commission about her concerns Mr B was being neglected and this resulted in the Council considering the issues through a safeguarding enquiry.

The enquiry found no safeguarding concerns in relation to the placement and noted:

  • Staff had taken Mr B to the GP as his eczema had flared up; he had medication for this, which had been applied by staff
  • Staff completed body maps showing a mark on his ankle from his sandal rubbing which had healed and dry skin on his nipples, which were moisturised
  • Professionals noted Mr B had increased his use of signing and seemed calm and happy at the placement
  • The Council did not consider it was in Mr B’s best interests to remain at home because he was not accessing the community or developing social and life skills. It was approaching the Court of Protection for a decision about his future care.

What was found

The Council contracted with the Care Provider to deliver Mr B’s care and supported service at the supported living placement. The Council was responsible for any failings in Mr B’s care.

The LGO found there was no fault in the Council’s actions in relation to any hygiene or health matters. The Provider gave him medicine as prescribed, and attended to any personal hygiene issues sufficiently.

However the Council was at fault in failing to have an up to date care plan. Mr B’s plan should have been updated when he moved into the supported living placement; it should have set out Mr B’s needs around care and support and the staffing required to meet those needs. The failure to do so was fault and the Council failed to act in line with Sections 24 and 25 of the Care Act 2014.

Although there was no up to date care and support plan, the Council and Care Provider agreed Ms B should have two to one support in the car and in the community and the Care Provider’s detailed care plans reflected this. But Mr B did not receive two to one support and an incident happened. The LGO acknowledged that support had been reduced because of a lack of reported incidents, but this was a change to the agreed care and so Mrs A’s views should have been sought beforehand and the plan updated. Mr B’s care was not in line with Regulation 9 of the 2014 Regulations and this was fault.  

(When investigating complaints about council-funded care placements, the Ombudsman considers the 2014 Regulations when determining complaints about poor standards of care. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences.)

The failure to deliver Mr B’s two to one support in line with the agreed care plan caused avoidable distress to Mr B at the time. Mrs A was also caused avoidable distress. The LGO recommended the Council apologise to them both.

Legal Points for members of the public, council staff and providers

The following points are well established in the case law:

  • It is a breach of statutory duty not to deliver that which is in the care plan.
  • A public body that contracts with a provider is not generally responsible for the wrongs of the contractor when the contractor does not do what the contract says.
  • But when the service contracted for is for the purpose of discharging a public duty, (ie meeting needs appropriately) the council cannot effectively delegate THAT duty.
  • There is no action in negligence for poor social work decision making, and there is no action that the client can bring against the provider for breach of the contract with the council, because councils usually exclude the legislation which can extend contractual rights against the provider TO a third party.
  • But there is an action in negligence against a provider IF the provider has caused HARM through failing to take reasonable steps to prevent foreseeable harm.
  • The LGSCO has long been finding councils ‘responsible’ when they fail to monitor or improve performance issues on the part of the contractors they have chosen. Usually, compensation is recommended, although that is not the same as damages. Usually, the contract that the council will have persuaded the contractor to indemnify the council against this sort of outcome.
  • A person’s public law rights to GET their needs met depend on specificity in the council’s Care Act care plan. The fashion for outcomes based specification was all very well when personalisation policy led to flexibility and a broad brush approach but austerity has made councils legally less generous (some councils at least) and therefore every hour, every input, needs to be recorded, and translated into a contract with providers who in the past were given wriggle room.
  • CQC requires providers to have care plans of their own: they are not allowed to change them just because they are short of staff, short of resources or under management pressure. That is because the contract should have required the delivery of the council’s care plan, where a council or CCG has been involved.

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 Kent County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-000-949

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Sheffield City Council at fault for failing to meet night time needs

Decision Date: 4th September 2019

What Happened

Mr D has cerebral palsy and requires care and support. He had been living with family in Council X’s area where he received direct payments to fund personal assistants.

In July 2018 Mr D moved to the Council’s area and started living alone. He emailed the Council on 3 July 2018 requesting his care package be transferred. He said Council X had agreed to fund his direct payments for the first six weeks after his move. His personal assistants continued to provide the care set out in the care and support plan developed by Council X.

A social worker from the new council visited Mr D on 1 August 2018 to assess his care and support needs.

Mr D’s night time care needs included the following: needing help to go to the toilet several times per night, repositioning (as he was unable to turn over without assistance), helping him when he was sick in the night, and helping him have a drink when necessary.

The social worker produced a care and support plan which had a care package totalling 47.5 hours per week. This included 30 minutes of care each night for getting ready for bed but nothing for later on.

Mr D was concerned the package did not provide enough support during the night. He asked for funding for a carer to stay overnight for three nights a week when he did not have family staying with him.

On 25 September 2018, the social worker told Mr D that night care could not be funded as this would lead to the cost of Mr D’s care package exceeding the maximum ceiling of what was usually paid out for care.

The Council proposed referring Mr D for an assessment for NHS continuing healthcare funding. It advised him to consult his GP about his night sickness, inability to turn over and his pain.

On 5 October 2018, after realising the mistaken statement, the Council clarified there was in fact no ceiling on the funding for Mr D’s care package. The Council said that the comment was retracted as soon as the manager became aware.

Initially Mr D declined a NHS continuing healthcare assessment; he said it was the Council’s responsibility to meet his night care needs. He later agreed to it and also contacted his GP. The Council referred Mr D to neurology, continence, and speech and language therapy services for assessment.

Mr D complained to the Council on 9 October 2018:

  • It had failed to meet his night time care needs.
    • This left him in a vulnerable position; he had fallen whilst trying to go to the toilet alone, had been sick in bed with no help until the morning, and being unable to reposition himself had caused pain.
  • It had given him incorrect and contradictory information and had refused to answer his questions.
  • It expected him to reduce his night care needs by approaching other services. He agreed to explore options and contact his GP but said he was not willing to over-medicate or use continence pads as he was not incontinent.
  • He asked the Council to provide an emergency package of night care whilst he awaited the outcome of the continuing healthcare funding assessment.

On 28 November, Officer A responded to Mr D’s complaint. The Council accepted Mr D had eligible needs that affected him at night. The Council had asked Mr D to work with other professionals, but he had previously not co-operated, so the Council had been unable to carry out a full assessment of his needs. The Council agreed to fund night care three nights a week for three months, conditional upon Mr D co-operating with the assessments.

Mr D wrote to the Council on 18 January 2019. He said he was dissatisfied with the response and some of his queries had not been answered:

  1. Why was he told that there is a maximum ceiling of what is usually paid out for care?
  2. Why had it taken so long to provide him with night care?
  3. Why had it taken so long to respond to his complaint?

The Council replied on 25 January 2019:

  1. The comment was retracted as soon as the manager became aware on 5 October 2019 of what had been said.
  2. Initially it was not clear that Mr D had gaps in his night care and Mr D had “wanted [time] to take in and think about what his assessment would include”.
  3. The Council apologised for the delay. It had prioritised putting in place Mr D’s temporary support and completing his holistic assessment.

Mr D was later found not to be eligible for NHS continuing healthcare funding or for continence services. Mr D remained dissatisfied and complained to the Ombudsman in March 2019. The Council has continued to provide night care three days a week, reviewing this provision every month or so.

What was found

Firstly, there was no fault in the way the care assessment was done.

The LGO found fault in the care plan, as it did not set out how Mr D’s night time needs would be met.

The Council said it did not immediately fund night time care as it was carrying out an assessment of Mr D’s needs, involving other professionals such as neurology. The Council should have met Mr D’s eligible needs whilst these assessments were being done. If Mr D’s needs changed following the involvement of other services, the Council should then re-assess him and change the care package if necessary. By not doing this, the Council was at fault.

The LGO found that the fault caused Mr D injustice; the Council failed to meet Mr D’s night care needs for three nights per week from July 2018 to November 2018. This caused avoidable distress to Mr D; he had to privately fund some care, and fell during the night.

There was fault by the Council in the way it dealt with Mr D’s complaint. Whilst its procedure sets no timescales, it responded seven weeks after Mr D complained, which the LGO consider to be too long. Furthermore, its response did not deal with all of Mr D’s complaint. The Council has already apologised for the delay; however Mr D had had to chase the Council and seek help from an advocate to pursue his complaint, so the LGO considered he was caused needless time and trouble.

The Council agreed to apologise to Mr D and pay him £500 to acknowledge the impact on him of failing to meet his needs, and pay him £100 to acknowledge the time and trouble he was caused.

Points for the public, councils and advocates:

  • This is one of those ombudsman’s reports which make it clear that the LGSCO’s organisation has become the rational remedy to which to resort, if one’s council has been caught acting in disregard of the legal framework, whether inadvertently or cynically, and deliberately.
  • Councils (and to a lesser extent, CCGs) have been cost-capping for so many years that the average social work lecturer probably thinks it’s legal to do it – with all that that means for the ethics of the next generation of social workers.
  • Council legal teams and senior managers know otherwise, however – they at least understand that it might NOT be lawful. We know that because there has never been a local authority that has been willing to take the issue all the way to court (a bit like the notion of what is an objectively fair price for care, as opposed to an objectively defensible one that providers will sign up to, in a lemming like leap….). None has wanted to be the one to risk setting the precedent that would disenable all the other authorities from doing it: the luckless Director, in that situation, would doubtless be ousted from the charitable members’ club that is ADASS.
  • A council is legally obliged to meet professionally identified eligible unmet NEEDS. It is the decision maker, subject to judicial review on public law grounds, as to how the needs should be met, and the council is legally allowed to take its own financial straits into consideration, and the cost of comparable methods of meeting needs, as long as they are all defensibly adequate and suitable in the first place.
  • A person’s needs do not stop at 7pm, in many cases. Night time needs cost more in the real world, to meet, than needs during the day.
  • So if a person needs more than about 3 or 4 visits a day – and inevitably if they need more than monitoring at night, or double handling, their care could cost more than a care home’s weekly fee.
  • If a person’s needs can be seen as ‘health’ needs, primary / CHC or otherwise, ie if the local authority and the NHS have the wit to provide split packages of health and social care inputs, even if these are commissioned by the local authority as agent, or as delegate, for the NHS, then keeping people at home for a rate that is not inequitable if one looks at the spreadsheet for each organisation’s finance officers, is possible.
  • The Care Act guidance makes it clear that just because a need could or even ‘should’ be met by another organisation, it’s not acceptable to just assume that it will be or to send the client him or herself off to make that happen. There is the duty of co-operation under the Care Act – a mutual and reciprocal duty in a specific situation to require another partner agency to do something or else explain why NOT, in writing – a really effective fillip to good administration and joint working but only if public officers will actually use that duty (section 7 of the Care Act, please note).
  • Councils believe, understandably, that because they could offer a care home, lawfully, as the most cost effective adequate means of meeting needs in the vast majority of cases on their books – they must also be able to offer a budget that is no more costly than a care home would be, even if that sum is known to be insufficient to meet the needs, if the person ‘chooses’ to stay at home.
  • That is not what the law, and the notion of a statutory duty premised upon professional judgment, says, however.
  • The council can offer a care home to most people if that would be cheaper (not all, and only if following the MCA if the person lacks capacity to consent to being moved to a care home). If it wants to walk away from a capacitated person who says Thanks, but No Thanks, it can do that, because it can’t make the person go into a care home.
  • But if a council, because of fear of the local newspaper, the councillor, the MP or the courts, runs after that person and says “How about we offer you a cost capped care package so that you can have it as a direct payment and you decide how to spend it? Then we won’t be blamed when its inadequacy causes you harm…and you get to stay in your own home?” well, that is the council’s choice, not the client’s, and that is the choice to focus on here, we would suggest. If a council makes that choice, then it is still bound by the legal framework, which is to meet unmet need, defensibly adequately but only if it take into account the relevant considerations: the environment and setting it is focusing the offer within, and that offer must be defensibly adequate to be lawful at all.
  • The whole idea of s25 of the Care Act, setting out what must be in the statutory plan – and the interpretation and elucidation of that section in the CP vNE Lincs case, is that the plan must identify how the money will actually meet the deficits identified during the incentives, and reduce the impact of those deficits to something that is tolerable, instead of significant.
  • This point – cost capping – is the single most significant undecided legal issue of the last 20 years of community care law.
  • A discussion of it, and all the relevant case law going back to 1996, via webinar recording, can be purchased from CASCAIDr for £100 a download via belinda@cascaidr.org.uk. We broadcast this webinar over 2 years ago, before the Equalities and Human Rights Commission took up arms against over 30 CCGs proudly presenting their Best Value cost capping policies on their websites. Our attitude now, 2 years into the charity’s operation, is that one can lead people to knowledge and legal literacy, but one can’t necessarily make them drink it up and use it, if the knowledge is hard won, and difficult – and especially if they are in crisis at the time when they need to be calm and assertive.

CASCAIDr’s litigation strategy includes this issue, so if it’s happening in your area, get in touch, please. We will only get involved in a case that is unlose-able, in our view, because of its importance for the coherence of public law and duties in social welfare law for the whole country, in difficult times.

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 Sheffield County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-018-362

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