Archive for Local Government Ombudsmen’s Reports

Kirklees Council at fault for the poor quality of care and record keeping evident at an agency it commissioned (Locala HomeCare Limited)

Decision date: 06/01/20

What happened

Ms X suffered from a progressive condition and required supports with all aspects of her personal care, which she received at home from an agency. Her package was funded by the Council and the NHS and both were therefore responsible for ensuring that the care they funded was proper and satisfactory.

Ms X’s husband, Mr Z, complained to the Ombudsman about the quality of care provided by Locala HomeCare Limited (the agency) and about the Council’s delayed response to his concerns. Mr Z said that there was no issue with the service until November 2017, when Locala changed the team of carers that provided Miss X with support. Locala claimed that it had done so as a result of complaints from members of the original team about Mr Z’s behaviour. It had a policy for dealing with violent or aggressive behaviour from service users or those connected to them.

Mr Z  then got in touch with the Council and with Locala as he was concerned that the new carers were refusing to apply deodorant or face cream to his wife without a prescription. This issue was solved by Ms X signing a disclaimer.

Mr Z continued to voice concerns about the quality of care provided at various points between December and the following June. In March, Locala ceased to provide carers later than 8pm, forcing a compromise which involved Mr Z being the one to hoist her into bed. Locala contacted the Council in May 2018 to say it was going to stop providing Ms X with care. The Council identified another care agency but Mr Z declined as it was not suitable for Ms X. A separate agency started providing her with care in July but again there were problems. Ms X’s care was taken over by yet another care agency in September and she was by the time of the complaint happy with the service she was receiving.

What was found

Quality of care

The evidence supplied by Locala regarding the change of teams in November was a contact log that described how two carers felt humiliated as a result of Mr Z’s complaints about the standard of care they were providing. It did not reference any violent or aggressive behaviour, which would have warranted the switch-over with regards to Locala’s policy. The Ombudsman felt that Mr Z had made a complaint as he was entitled to and that Locala should have dealt with the situation under its complaints procedure. This was fault.

The Council’s contract with Locala had scheduled care visits as such:

  • 60 mins in the morning
  • 30 mins at lunch
  • 30 mins for teatime
  • 45 mins in the evening

and stated that the agency must ask for a review of the care plan should they feel it was incorrect.

Roughly 40% of the 652 of Ms X’s care visits (where the start times were available) between November 2017 and July 2018 began over 30 minutes outside of the target time. Locala called ahead to give notice of early or late arrivals for a mere 2% of these mis-timed visits. One of the night calls lasted from 6.05pm until 6.35pm, meaning that Miss X would have been put into bed at this time.

Although Ms X had reluctantly agreed to Locala’s new call times in March, it was fault to start her bedtime calls as early as it had done, as it did not meet her needs. Mr Z provided diary entries that recorded Miss X’s unhappiness throughout the period. One quoted her as having wished she could “go to Switzerland and end it all.” Clearly this would have also been distressing for Mr Z.

Roughly 10% of the 417 visists (where the start and end times were available) between November and July ended more than 15 minutes before they should have, including visits that were only supposed to be 30 minutes in duration. This fault led to a number of occasions where Ms X did not receive the care she needed, leaving Mr Z to provide it.

Locala was also at fault for failing to maintain accurate records of Ms X’s care and decisions regarding it. There were huge holes in the records of care visits, in violation of Regulation 17. There was no evidence that Locala had given an approximate list of call times around November, even though that was agreed. The company changed its call times three times. Locala failed to comply with Regulations 9 and 18 by communicating that it could not give Miss X access to the care she needed when she needed it, due to competing demands.

The records, despite being incomplete, supported Mr Z’s claims regarding the low quality of personal care provided by Locala.

Toiletries/Cosmetics

The Ombudsman considered that both Locala and Kirklees Council were aware of the concerns about staff refusing to apply everyday cosmetics to Miss X. The care agency was at fault as it did not provide staff with clear guidance in this matter. The Council was also at fault as Locala’s commissioner as it did not act on Mr Z’s concerns.

Complaints process

Mr Z complained to the Council 7 times between November and July and raised concerns with Locala on 12 occasions. However, the matter was not put through the Council’s complaints procedure. It was aware of Ms X and Mr Z’s concerns from November but failed to direct them through the proper channels or to ensure that Locala had resolved them. These faults led to Mr Z spending a large amount of avoidable time pursuing the pair’s complaints, amounting to an injustice.

Ending the contract

The Council was made aware that Locala planned to end its contract for Ms X’s care in March 2018. However, it did not begin identifying alternatives until May, by which point there were none. This was fault as it had not ensured a variety of commissioned services from which Miss X could choose.

Upon the termination of its contract with Locala, the Council sourced a new care provider but refused to pay for the new package as a commissioned managed service. Despite having previously stated that she did not want to receive her care package in the form of Direct Payments, the Council required Miss X to use them to pay for the new provider. Miss X has since changed providers again to another suggested by the council and is now happy with her care but remained unsure about whether or not she could choose not to use Direct Payments.

Remedies

  • Within a month: to send a written apology to Mr Z and Ms X, taking care to also explain Direct Payments to Ms X and reassure her that her needs will still be met by the Council if she decides against them in the future.
  • Within two months: each pay £500 to Ms X and £150 to Mr Z to remedy the injustices mentioned and the distress that this lengthy period must have caused them.
  • Within three months: review, amend and evidence the policies and procedures that failed Ms X and Mr Z.

Points for the public, service users, contract officers, providers etc.

The Council told the LGO it ‘required’ Miss X to use Direct Payments to pay for Providers A and B because they were not providers the Council commissioned in its area. The Council had a ‘framework’ of 25 directly commissioned home care providers that covered six areas within its geographical boundary. This consisted of one main provider per area, plus ‘back-up’ providers. When Locala’s contract to provide Miss X’s care ended, the Council had no other commissioned providers in the area that could meet Miss X’s needs, calling at the required times. It has no mechanism to pay Providers A and B directly and so insisted Miss X used direct payments.

The LGO investigator went on to say this, and one has to focus on what is actually being said:

“This is contrary to the Care Act 2014 and CSSG. It fails to ensure service users such as Miss X have a variety of providers and services to choose from, or that there are sufficient services available for meeting their needs. It also puts service users such as Miss X in a situation where they have to use direct payments to receive personalised care and support.”

The council said to the LGO that “the framework is important as it offers surety in terms of quality and level of service and that it is provided at appropriate cost” but that it was “working on a new system that can be used where there is a shortage of available providers in the framework; and it hopes the new system will be in place by April 2020.”

This needs unpicking from a legal perspective, we think. First of all, there is no right to ‘CHOOSE’ a provider of one’s preference if one is having HOME care (unlike with care home care, where there’s a limited right to choose a particular provider, whether or not the preferred one is on a framework, or even in the area). Most councils will commission bulk contracted hours from a range of local providers, usually based on geography to enable speedy transfers from one house to the next.

There IS, as the LGO says, a Care Act duty to commission for diversity sufficiency and quality. Unfortunately, in public law terms, that’s a target duty – not an enforceable duty of much use to an individual.

One can test this by asking just how many domiciliary care providers per area, in a spread-out county council, would have to be on the framework for there to be a sufficient choice? For those clients most difficult to please, any more than 1 would give choice, but 2 or 3 (or even 10) might not be enough; and yet this narrowing down of the number of providers who make it on to any council’s framework, has been undertaken by most councils, nationwide, by now, in order to save money and force efficiencies and sub-contracting off of the public procurement radar. There is little hope of that ever being declared unlawful, in our view.

For a person who wants a provider who happens to have failed or refused to jump through the hoops of whatever commissioning approach applies locally to public procurement, Direct Payments do provide the only route to choice. If a council hasn’t commissioned appropriate care, or specialist care, or flexible enough care, it won’t have been able to set a personal budget properly based on local quality provision, and then the person’s budget will need to be challenged!

The suggestion that public procurement rules are something that simply prevents a solution to this problem, when there is a shortage of adequate available providers, is shocking to us; the individually enforceable duty to meet needs will already have been triggered. It is NOT lawful to operate WITHOUT sufficient commissioned services in order to meet those needs.

If a new provider was ultimately able to be found by this council, which WAS on the framework, then of course the council cannot refuse to meet the need through that route.

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 Kirklees Metropolitan Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-002-031

Please share:
error

Worcestershire County Council at fault for inadequately dealing with complaints about the quality of care in a care home it commissioned

Decision date: 16/01/20

What happened

Mrs Y suffered from a variety of medical conditions including diabetes and dementia. She lived at home with her husband until he sadly died in June 2018. Worcestershire County Council arranged for Mrs Y to move to a care home (originally called Gold Hill, now called Blossom House) run by the provider Wishmoor Limited.

Her son, Mr X, complained to the Council about the quality of care his mother received at the care home, and later complained to the Ombudsman about the lack of support offered by the Council with regard to this matter.

Mr X began to raise concerns very early on in his mother’s occupation of the home. The care provider claimed that she repeatedly refused to get up or eat breakfast in the morning. Mrs Y’s legs swelled due to inactivity. In July, she was found with faeces all over herself and her room by family members who said they could not find any staff to help. When Mr X voiced his worries about her staying in her room and not eating or drinking properly, a staff member said that this was to be expected as the family had ‘dumped’ Mrs Y at the care home.

The family claimed that staff at the care home were regularly giving Mrs Y sugary food and drinks, which was highly inappropriate due to her diabetes. Staff said that they did this as Mrs Y was not eating or drinking very much. However, there is no record of this approach in any care plan. The family fought to move Mrs Y to a different care home that eventually accepted her at the same rate as Gold Hill/Blossom House. However, the Council failed to set out the correct responsibilities for the new care provider under the General Data Protection Regulation (GDPR) which meant that Mrs Y was at the care home for 7 weeks.

Within a day of being at the new care home, Mrs Y was admitted to hospital with malnourishment, kidney failure and dangerously high blood sugar levels. She sadly died two weeks later.

Mr X complained to the care provider in October that his mother’s health had rapidly declined during her residency there. He forwarded the complaint to the Council as it was responsible for commissioning the care. The Council responded by telling him that he did not have legal authority to act on his mother’s behalf and that he therefore was unable to go through the normal complaints process. Mr X found this very upsetting and an Officer from the Council wrote to him a week later to apologise and to say that it would pass his complaint to its quality assurance team. The Officer also told Mr X that some documents he had emailed were encrypted and therefore unable to read. He directed Mr X to provide any further information by post.

The care provider wrote to Mr X in December to offer its condolences. It said simply that it had undertaken an internal investigation and was happy to send all documentation to solicitors. When this was chased up, the care provider claimed that Mr X needed a grant of probate to evidence that he was executor.

What was found

Records

The standard of records kept by the care provider was unacceptable and even some of Mrs Y’s needs that had been recorded were then ignored. Specifically, the risks regarding her type II diabetes were not mentioned in her care plan and her diet at the care home was inappropriate. There were no efforts to involve the family in her care, which could have helped reduce the injustices caused by this fault.

The care provider was also at fault for failing to consider the reasons behind Mrs Y’s difficult behaviours. It should have treated her incontinence and decrease in food/drink intake as a change in needs and referred the matter to the social worker and to Mrs Y’s GP.

These faults put Mrs Y at an increased risk of harm and probably had negative effects on her mental health. They also caused her family avoidable stress and uncertainty.

The Council’s complaints process

The Council applied an indiscriminate policy that people could not have complaints made on their behalf if they did not have legal representation. It did not consider Mrs Y’s best interests and refused to consider Mr X’s complaint because he was unable to share her information. This was fault and the Ombudsman noted that he could find nothing in her records or care plan that Mr X should not have known about

Furthermore, Mr X’s concerns could have initiated safeguarding procedures for all the residents of the care home but these were left unconsidered by both the Council and the care provider.

The Ombudsman had significant concerns about the Council’s approach to Mr X’s complaints and the implications for people who cannot speak for themselves. A copy of the final decision was sent to the CQC to assess the potential breaches of regulations 9, 12, 14 and 16.

Remedies

The Council has agreed to:

  • Apologise to Mr X and pay him £500 to acknowledge its faults and the injustice they have caused.
  • Ensure every Gold Hill/Blossom House resident has an adequate care plan

Within three months:

  • Monitor the service at the care home and ensure the issues surrounding this case are being worked on.
  • Retrain its staff in how to handle complaints.

Points for the public, complaints officers, councils, advocates, family members and care homes

This is a shocking story of abject disregard for the legal framework. We find it hard to believe that the council thought that it could ignore the Complaints Regulations, in running something called a complaints system, and are surprised that the LGO does not say more about that.

Persons who may make complaints

5(1) A complaint may be made by

(a) a person who receives or has received services from a responsible body; or

(b) a person who is affected, or likely to be affected, by the action, omission or decision of the responsible body which is the subject of the complaint.

(2) A complaint may be made by a person (in this regulation referred to as a representative) acting on behalf of a person mentioned in paragraph (1) who

(a) has died;

(b) is a child;

(c) is unable to make the complaint themselves because of

(i) physical incapacity; or

(ii) lack of capacity within the meaning of the Mental Capacity Act 2005; or

(d) has requested the representative to act on their behalf.

(4) This paragraph applies where

(a) a representative makes a complaint on behalf of

(i) a child; or

(ii) a person who lacks capacity within the meaning of the Mental Capacity Act 2005; and

(b) the responsible body to which the complaint is made is satisfied that the representative is not conducting the complaint in the best interests of the person on whose behalf the complaint is made.

(5) Where paragraph (4) applies

(a) the complaint must not be considered or further considered under these Regulations; and

(b) the responsible body must notify the representative in writing, and state the reason for its decision.

But on top of that, there is the apparent unawareness on the part of the council that people for whom it commissions care are owed a non-delegable duty BY THE COUNCIL (regardless of the care provider being the way in which the council has chosen to meet the needs) to ensure that the care is adequate and appropriate and in accordance with a care plan.

Here it seems as if the care provider’s plan was at fault for not mentioning the diabetes, but the framework of the Care Act assumes and requires that any council doing an assessment will gather up ALL the needs, and ensure that they are ON the care plan, even if they are health needs that the council does not have to meet by way of arrangements IN the care plan. That care plan is the council’s responsibility under s25 of the Care 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 on the actions of Worcestershire County Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/18-018-809

Please share:
error

Wiltshire County Council at fault for using the Matrix Assessment Tool to reduce the of level respite care and transport provisions

Decision Date: 12th April 2018

What Happened

Mrs N complained on behalf of her adult son, Mr P.

Mr P was cared for at home by his parents. He had complex needs, including severe learning difficulties and epilepsy.

Mr P’s father, Mr N, had recently become disabled, which meant that Mrs N was carer for both. Mr P qualified for a Motability vehicle.

Since leaving school, Mr P had attended a day care facility, which also provided his residential respite care. This centre was 10 miles away from his family home, until they all moved to a location 25 miles away in late 2015. The Council provided transport for Mr P to the day care placement.

The Council used its ‘Matrix Assessment Tool’ to allocate the amount of support to Mr P and his family.

The Matrix Assessment Tool

The Council adopted its ‘Matrix Assessment Tool’ (‘MAT’) in 2007. Its stated purpose was to ‘ensure limited resources could be fairly allocated to families based on need’. There are four stages:

Stage one: assess applicant’s need for respite care. The MAT allocates a score in various categories to reflect the applicant’s level of disability or need.

Stage two: assess the ‘current provision of service’. This provides a second score which must be subtracted from the ‘need’ score.

Stage three: assess ‘the carer’s situation’. The ‘carer’s score’ is then added to the previous total.

Stage four: The Council assesses those requiring respite care and lists applicants according to their scores. The Council then calculates the number of respite beds available. It then divides the number of beds available by the number of beds required. This calculation creates the ‘coefficient’. The Council then multiplies the score of each service user by the coefficient. This produces a number which will be the number of nights’ respite s/he will receive that year.

For example; the Council has 1400 bed nights available and the apparent demand is for 2750 bed nights. The Council has half the number of beds it needs which produces a coefficient of 0.5. With this coefficient in place, an applicant with a score of 160 would receive 80 nights’ respite care (160 multiplied by 0.5).

Until 2016, the Council provided Mr P with 104 days of respite care per year (4 consecutive nights every other week).

The Council accepted that Mr P’s needs had not changed since 2013.

When the family moved house at the end of 2015, Mrs N wanted Mr P to keep his existing care package, so before they bought the property, she had emailed the Council; ‘Good morning, my son uses adult care services in the [local town] area, receiving transport to and from [Mr P’s] day care centre. Could someone make contact with me please as we have now sold our house and need to know if the house we are about to offer on is still [in] the catchment area’.

A few days later, the Council wrote back saying the house was ‘in our catchment area’. Mrs N wrote again saying ‘we have tried to get some guide lines as to where we can move to whilst keeping [Mr P’s] all-important care package and understood, as long as we didn’t move to [local village] which we understood was the boundary, we should be fine’. There was no record that the Council ever responded, and Mrs and Mr N went ahead with buying the new property.

In June 2016 the Council told Mrs N it was cutting Mr P’s transport funding, and asked her to provide 2 journeys a week to the day care centre. The alternative was that she could pay the Council £30 per trip.

The Council also told her it was cutting his respite care from 104 nights to 68, using the MAT.

Mrs N complained about these decisions. She was paying the Council for transport, because she highlighted that she still had to care for her husband, so the three hour round trip to Mr P’s day care would leave Mr N uncared for at home. The Council said Mr N did not need constant care. There was nothing mentioned in the report as to whether Mr N had a care package in place or if he had been assessed.  

A September 2016 annual review of Mr P’s needs concluded that there was no change in Mr P’s needs, and that they were all being met.

Mrs N complained about the outcome of this assessment. She said that the respite care was not enough, and complained about the transport. 

The Council maintained that he should only receive 68 days respite a year, as per his MAT score. It said Mrs N had been receiving a level of respite care above that which it gave in similar cases.

After several meetings and lengthy email exchanges, the Council confirmed that it would be imposing the changes to the transport and respite care allocation.

The Council said that that the changes would be introduced ‘gradually’ and fully in place by April 2017, but actually introduced the changes immediately.

The Council wanted Mr P to attend a day care facility closer to their new home, and highlighted that it would be cheaper.

Mrs N said this was ‘non-negotiable’. She had specifically checked with the Council that they could move to their new house and Mr P would be able to continue with his care package.  

She also highlighted that her need for respite had increased right at the time the council cut it, because of Mr N’s needs.

The LGO asked the Council to restore respite care whilst it investigated Mrs N’s complaints. The Council responded ‘…The allocation of support being provided is at the top level…therefore I am not able to agree funding a person above the amount the council deems appropriate’. The report did not state who from the Council replied.

What was found

Overall, the LGO found that the Council was at fault for the way in which it reduced both the level of respite care and the transport provision.

Funding limits

The Council cannot set maximum budget levels. Eligible needs (including for respite) must be met no matter what the cost (if there is only one way of meeting them). The Council said Mr P’s disability fell into a certain band and therefore his funding could not exceed a certain level. The LGO emphasised that this approach does not accord with the Care Act. The Council may use bandings as a guide but, as the Care and Support Statutory Guidance states, such systems are unlikely to work in complex cases like Mr P’s.

Transport

The Council’s decision to ask Mrs N to provide transport/additional funding seemed to be based on a general withdrawal of provisions/cost cutting exercise. This was not in line with the Care Act, as it was not based on assessments of needs, and therefore amounted to fault.

The Council’s guidance on transport says ‘The test of eligibility is ‘Would the failure of the Council to provide transport result in an eligible need for services going unmet?’ In this case it would, because asking Mrs N to provide transport would have resulted in Mr N’s needs being unmet (he would have been alone for 6 hours).

The Council also has a duty to consider the wishes of those involved; service users and carers. It cannot force an unwilling carer to provide care she reasonably states she cannot give. There was no evidence that the Council considered whether Mrs N would be able to provide the transport.

The Council was at fault for the way it reduced funding for transport. It failed to follow its own guidance, and comply with the Care Act.  This resulted in Mrs N being required to pay £60 per week towards the cost of transport when she should not have been.

The Council agreed to repay Mrs N, but it argued the amount should be reduced by the Council’s weekly transport contribution (payable by all users) multiplied by the number of weeks reduction.

The Council charges all transport users £3.70 a day (£18.50 a week). The LGO accepted this as fair, so the Council agreed to repay Mrs N £747.50.

The Matrix Assessment Tool

The MAT predated the Care Act. Its purpose was to ration available resources.

The Care Act requires councils to meet eligible needs. It does not allow rationing for any reason. If a council cannot meet an eligible need, it must pay someone else to meet it.

The MAT is, therefore, incompatible with the Care Act. The Council was at fault for continuing to use it.

The Council was also at fault for introducing the reduction in care as quickly as it did. In practice, the reduction was made almost immediately.

The LGO recommended that the Council:

  • Apologise to Mrs N
  • Restore the previous level of respite care pending a re-assessment compliant with the Care Act 2014
  • Confirm it will offer her 24 days respite care to be taken at a time of her choosing in recognition of the respite care wrongly withdrawn
  • Pay Mrs N £747.50 in recognition of money she paid the Council for transport
  • Pay Mrs N £500 in recognition of distress and time and trouble
  • Review its policy and procedure on respite care to reflect the requirements of the Care Act 2014
  • Review other files for evidence of use of the MAT. It should write promptly to anyone similarly affected and review their cases
  • Review the files of anyone whose transport was cut to ensure these cuts were compliant with the Care Act
  • Inform the Ombudsman of the numbers of people involved and undertake to review all cases within a further three months
  • Ensure all staff receive training in the requirements of the Care Act and the relevant guidance
  • Review all relevant documents to ensure they reflect the current law.

Points for the Public, Councils, service users, advocates, commercial providers of RAS or other rationing tools etc.

We do expect this report to cause a certain amount of choking in social services management circles, and we salute the ombudsman for saying it like it is.

Effectively, the LGO is saying that if a tool cuts the sums that have been plugged INTO the calculation to levels that are arbitrary and renders the council apparently unwilling to meet assessed eligible unmet needs, then that tool is done for as non-compliant with the Care Act.

That will cause consternation amongst providers of such tools who have made money by dint of allowing councils to implement budget cuts on THEM by turning down the allocation of the pounds to points ratio, in the resource allocation tool. Of course it’s legal to do that if there’s an evidence base for so doing, like the cost of the services going down, but how likely is THAT, these days, we would ask?

Here’s the legal reasoning behind the LGO’s stance: ever since Savva and KM, the public law principle in play (for a RAS or other tool to be a lawful starting point for care planning) has been that there must be a rational nexus between needs and points; the points and the pounds allocated to the points – and between the pounds and the local market rate for quality provision. Without that, it’s not possible for a council to say that the personal budget has been rationally calculated to be sufficient to meet needs, and thus able be signed off as “the cost to the local authority”.

When one applies the law to the context of respite, there’s a lot more to be said, too.

Respite is the service user’s need, not the carer’s. A carer can say NO at any point. They don’t have to prove that they are unable to care. The Guidance and the caselaw make it totally clear that there is no obligation in the UK for an adult to care for any other adult; it’s the State’s responsibility, unless someone is willing. Respite therefore is not something that can ever be rationed. A person’s willingness to carry on caring informally is only relevant to the council’s overall discretion whether to support a person to stay in their own home, or elects to make an offer to meet the person’s need in a different adequate alternative setting in which the council can make a placement contract. If a person says they’re not caring on a given date, the council has to meet the needs, if they have been logged as needs that were eligible. Flat rate offers of x weekends or y days of ‘respite’ are just a starting position, not a lawful discharge of the care planning function for the client.

“There are many variations of systems used to arrive at personal budget amounts, ranging from complex algorithmic-based resource allocation systems (RAS), to more ‘ready-reckoner’ approaches. Complex RAS models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as in the case of deaf-blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS model is being used, local authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs” (Care and Support Statutory Guidance 2014, 11.23)

Thus no council can say before it spent thousands on a RAS, that it wasn’t warned of the risks.

One might suggestion that social work discretion, social work supervision and forums that develop social work values driven consensus as to how much of anything is enough for meeting needs, would be a better way forwards.

Transport is a bit different. Transport will be an essential part of a service offer, but transport is often subsidised by a person’s district council, for those on benefits related to disability, and transport within a care package can be charged at full cost under the Charging regulations, so that it’s often cheaper for a person to sort their own transport solutions out.

If someone has a Motability vehicle and someone willing and able to drive it, then whilst their needs may be eligible, but won’t need to be met under s18.

Therefore we can’t say we think that the council was wrong to set itself the question ‘would a need be unmet?’ The question was no doubt designed to make carers really struggle to have the moral fortitude to be seen to say no, they wouldn’t be doing that journey. Mrs N could have and should have just said no.

Since she didn’t appear to say no at any point, one can understand why a council would feel entitled to exploit that ongoing willingness, but recent case law makes that no longer possible. Cases like Redbridge require a council to go on, if choosing to treat acquiescence as good enough, specifically to address evidence about ability, and make a reasonable decision about that.

We think that the LGO got the answer right but for the wrong reason, therefore. We do not think it was correct of the LGO to make the Wiltshire internal question stretch to cover the question whether Mr N’s father would then have unmet needs! If he did not need to be supervised at all times, the LGO could not legitimately decide that he did; and therefore the LGO should just have said Mrs N has been conveying that she is unwilling.

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 Wiltshire County Council’s actions can be found here by clicking on the PDF download at the right-hand side.

https://www.lgo.org.uk/information-centre/news/2018/apr/councils-cannot-cap-personal-budgets-under-care-act-ombudsman-warns

Please share:
error

London Borough of Haringey at fault for poor communication surrounding placement options and severe delay in authorising a Deprivation of Liberty Safeguards application

Decision date: 17th January 2020

What Happened

Mrs X complained on behalf of her adult son, Mr Y. Mr Y had severe learning disabilities, and had lived both at home and in supported living in the past.

In October 2017 Mr Y was detained under Section 2 of the Mental Health Act 1983, which allows for a maximum of 28 days’ detention for assessment.

Before he was detained, the Council had already been looking for a community placement for Mr Y. At the end of November the Council had identified three potential providers.

The LGO report stated that medical professionals agreed that whilst detention under the MHA was no longer necessary, Mr Y should stay in hospital while the Council arranged a new placement. That meant that a DoLS application needed to be issued, because he could not consent to care of that nature, even on a voluntary basis, due to his cognitive impairment.

Placement

After various meetings, by early January 2018, both the Council and Mr Y and his family had decided that what the report refers to as Placement 1 was the most favourable option. However, a panel subsequently rejected this placement due to ‘cost and incomplete plans’.

Despite the panel deciding placement 1 was too expensive, Mr Y still had a strong preference for going there. Mrs X also expressed strong reservations about considering other options given Y was so attached to his favoured choice, so his clinical staff continued meetings in hope of reducing the cost. This resulted, in February, in reduction of around £1,000 per week from the previously quoted fees for the care and support.

However, when the case returned to the panel, it again refused the so-called placement due to cost. It asked for other options to be considered.

By March 2018 Mr and Mrs X had instructed solicitors to act in Y’s interests and proceedings in the Court of Protection had started.

In April 2018 a ‘round table’ meeting took place, attended by the various parties under the supervision of and as directed by the Court. This resulted in an agreement for Y’s parents to pay a weekly top-up fee to enable his so-called placement with provider 1.

In this meeting the Council accepted Y had been shown around Provider 1’s property at a time it knew it was too expensive to achieve approval.

Deprivation of Liberty

The Council received an urgent self-authorisation by the hospital to deprive Mr Y of his liberty on 21 November 2017. Standard authorisation should have followed on within a specified time under the legislation, or been refused.

However, the Deprivation of Liberty Safeguards were not in place until 20th February 2018. This is because the Best Interests Assessor was not appointed until four weeks after the application; then the assessor then did not send her report until February, and there were delays in finding an external psychiatrist.

Mrs X complained to the Council. Mrs X said the failure to authorise Y’s DoLS meant he stayed in hospital longer than he otherwise would have, and Mr Y had his more general rights afforded under DoLS taken away and could not challenge it because she was unaware that the Council had appointed her as Y’s representative.

Complaint

The Council allocated a manager from the learning disabilities department to respond to Mrs X’s complaint.

Mrs X said the manager had previous involvement in their case and was not independent enough (she had chaired meetings with the family and others as directed by the Court of Protection).

What was found

Placement

The LGO found no fault in the Council’s efforts to find Mr Y what the report consistently refers to as a placement. It can consider cost in making decisions.

The LGO also considered that whilst there was a delay in finding a placement, this was not only due to the Council’s actions. It had to rely on private suppliers sending and requesting relevant information, rather than it simply being a matter of cost.

However, the LGO stated that there was a significant problem with communication and raised expectations. It stated that the Council was often unable to fully explain to Mrs X what was happening in finding a placement for Y. The breakdown in communication lead the LGO to conclude that the Council raised Y’s expectations about moving to Provider 1’s property prematurely. This was fault.

Deprivation of Liberty Safeguards

The LGO stated that there was undoubtedly fault in respect of DoLS in this case.

The DoLS Code of Practice says, “assessments must be completed within 21 days for a standard DoLS”. There were problems in finding a BIA, and then the Council failed to chase up the report until February 2018; far beyond 21 days. This was fault.

“There was significant and unacceptable drift in this case far beyond 21 days. While some of the evidence I have seen explains why it happened, it does not justify it.”

The fault caused Mr Y injustice; the Council’s failure deprived Mr Y of his rights, particularly to challenge his stay at hospital. On balance, the LGO considered that Mr and Mrs X would have acted on Mr Y’s behalf if they had understood DoLS in the way they only did once the Council authorised it in February 2018. It was not unreasonable to assume they would have approached the Court of Protection sooner.

The LGO did not uphold Mrs X’s complaint that the DoLS failures caused Mr Y to be kept in hospital for longer than necessary, because the BIA report stated that Y may have been at risk of harm, so should not be free to leave the hospital. Therefore, Mr Y would have been in hospital whether his DoLS was in place or not, but it was unlawful in a technical sense.

Complaint

The LGO stated that although the Council’s decision to appoint a manager not sufficiently independent of the case to investigate Mrs X’s complaint was fault, it did not cause any injustice as the response was suitable and approved by a director before sent to Mrs X.

Remedies

The LGO recommended that the Council

  • apologise to Mr and Mrs X for any uncertainty and frustration caused by the Council’s failure to properly manage Y and his parent’s legitimate expectations, and the unacceptable delay in authorising his DoLS.
  • Carry out a senior level management review of the current timescales to process DoLS applications and clearly identify any issues, including with timeliness.

Points for the public, providers, service users, families, deputies and advocates

We have referred to the report’s treatment of the accommodation arrangement as a so-called placement, because whilst it is called a placement by the LGO, we think that a fundamental point to focus on is whether that is correct, or whether the arrangement was in fact going to be a tenancy, which should never be called a placement by anyone caring about the legal exactitude of the analysis being done.

There is no clarity as to whether “Placement 1” was a care home or a supported living setting. The only hint is that the provider was ‘in the process of buying the property’ which points towards it being a supported living setting, although that is not conclusive – it could have been being bought as a care home.  We’ve set out in a footnote below, the references to a placement to show the ambiguity.

The reason this could matter to a significant degree will become obvious when one reads on.

DoLS

The LGO investigator has inadvertently made a legal mistake in the report to which we have to call attention:

“The Deprivation of Liberty Safeguards (DoLS) came into force in April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.”

This is very wrong indeed. The safeguards do not apply in tenanted accommodation, and the balance of the evidence from this report suggests that that is what was being considered here. The Safeguards apply in care homes and hospitals only.

The law sets out the procedure to follow to get authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.

In this case, it was the hospital’s responsibility to apply for authorisation. The Council was the supervising authority. On application, the supervisory authority must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation is already in place, before the urgent authorisation expires.

The Council granted an urgent authorisation in this case on 21 November 2017. The hospital made a standard application at the same time. There followed a significantly delayed response from the Council, meaning Y’s DoLS was not in place between 29 November 2017 until 20 February 2018. This means Y was not covered by the DoLS during that period as it could not be backdated.

The LGO investigator has also left some really difficult legal points unexplored and thus the reasoning and rationale for the outcome is ambiguous, too, in our view.

The report suggests that it was the responsibility of the council to find accommodation, whereas in fact the widespread and almost universal assumption in social services departments is that finding ordinary housing (where a care home is not needed) is not part of social care, and is a separate housing authority issue only.

Anyone who understands the specialist nature of supported living SERVICES would cavil at the notion that supported living housing is ordinary housing, and they would not be wrong. One never finds those houses advertised on Spareroom or occupied by a mixture of people, some without any disabilities. CLEARLY, TO THE WHOLE SECTOR, the houses in which these services are delivered are special in some way that is never explained. But the tenure of the properties is always delivered through a tenancy, usually with a property Deputy signing the contract for the occupation.

There is no legal reason why a council or a CCG can’t take occupation of the premises up on a long lease, and then offer SUB-tenancies to clients whose deputies are WILLING to commit the person to paying rent – usually the case when a person will qualify for housing benefit. There is no reason why the council or the CCG can’t guarantee voids, deficits etc with respect to the rent, either, if they don’t want to take up a lease themselves.

But that is not how the sector works at the moment. People are signposted to vacancies in existing households where tenants are living under the supervision of the specialist care provider; and they do not get into those vacancies unless the care provider nominates them, usually in return for guaranteeing the voids and deficits themselves, and thus tying the care to the accommodation.

Never mind the legality of that tying in, for a moment, in CQC terms, for registration: the obvious impact is that where one might live, and any choice in that matter, is covertly limited. The desire for shared care savings and the importance attached in managerial terms, to that concern,  make commissioners think that it’s ok to make people wait in institutional care unless or until they go along with the idea that people will ultimately CHOOSE to go where the council tells them.

The legality of that has not been tested in court, and if it means making access to care to meet eligible assessed unmet needs, under the Care Act, conditional upon taking on a contractual liability for rent in a place of the commissioner’s choosing, we do not think it would pass muster.

The LGO has itself contributed to this debate by highlighting in three recent reports concerning s117 Mental Health Act clients that FINDING and providing the accommodation, even outside of a care HOME, CAN indeed be part of the statutory duty on the s117 authorities.

This direction of travel will have obvious implications for those with less than formal s117 status – such as this man, detained under s2, not s3 of the Mental Health Act, AND people who are voluntary patients technically, in ATUs, whose parents cannot feasibly or would prefer not to have them home to live in the family property.

It is beginning to be accepted that councils DO have to PROVIDE (not just signpost towards) accommodation, ie contract for it, so as to be able to provide it, and therefore to PAY for it.

Understanding this would logically mean that many people could get out of the institutional sector – escaping would no longer turn on the happenstance of qualifying for Housing Benefit and a VACANCY in an existing household where specialist services have been commissioned.  But people would end up living singly, more often than at present, so costs would go up.

This may have been one of those cases, but one cannot tell. The LGO report uses the term ‘placement’ loosely – whereas a placement is only a placement if the occupation right is contracted for by the council. The LGO report refers to properties and the provider purchasing property 1 but without any clarity as to whether the plan was that it should become a registered care HOME or be tenanted. The parents agreed to pay a top up, which is normally an arrangement in a care HOME, for wants as opposed to needs; HERE, it is simply unclear what elements of the proposed plan were being regarded as wants and not needs, or whether the package was an integrated one for care together with accommodation, or one where the elements were being separated by a genuine tenancy and a separate commission of services. The latter IS possible, but very hard to find because in practice, the care provider nominates the client into the tenancy, so that the only way one gets into the house is if the provider has secured a big enough fee for that company to guarantee HB voids, deficits against the rent in the tenancy, or empty rooms due to incompatibilities.

So, this is an area that is part of our test case litigation, if anyone is interested in destabilising the entire market…which is not our aim, but which may be the outcome.

On the question whether the breach of the MCA, between an expired urgent authorisation and a standard one’s finalisation is a technical breach, or one that sounds in damages, the LGO report hints that it might well be technical – the report makes no recommendation of financial compensation, and equates technical breach to a finding of fault, but not one where injustice was caused.

We think that that is misguided, on the facts of this particular case, because of how it inter-related with the perceived acceptability of the care planning being interminably drawn out -and because of how it affected the parents’ perception of the legal situation and their own rights and opportunities for challenge.  But it’s not a crystal-clear case. We would simply point out that that

  • The LGO cannot determine the point as a matter of law, although of course has jurisdiction to consider the facts in light of its own policy on remedies.
  • We have succeeded in getting £8K damages in a similar case where a person remained in a psychiatric facility for several weeks longer than he should have done, on account of reliance on the ADASS document mentioned below.

Here is the issue: it is common nationwide for councils to exceed DoLS timescales now, because

  • Thousands more people needed the process if the law was to be complied with than the councils had been given the funding to organise
  • ADASS has issues guidance as to how to prioritise the cases that should be being put through the process, and the culture in local government is to think that therefore that guidance must have some legal status or would somehow justify failure to abide by the law.
  • There is no funding on offer from government for the appointment of litigation friends or even representatives in the numbers that would be needed were the system to be running properly
  • There is legal aid for people to challenge deprivation of liberty if they want to, so councils are just leaving it to the most concerned families to bother to prioritise assessments
  • The courts will now distinguish between REAL ‘substantive’ breach and only technical breach for the purpose of awarding financial compensation for breach of DoLS/human rights under article 5.
  • The Liberty Protection Safeguards have been created, but not yet implemented (and now being brought in, only in 2022) – to extend paperwork-based safeguards to the supported living sector. Since it is a person’s own home, that will have to be carefully defined, or else safeguards extended to people living everywhere, even in a relative’s house, as a guest.

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 Haringey’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-003-309

Footnote on the ‘placement’

The Council has a responsibility for finding Y a placement – that responsibility is undefined – s23 of the Care Act prohibits the provision of accommodation if it’s the Housing Authority’s duty.

It has a list of approved private providers and uses a ‘brokerage’ process where they bid for a contract once the Council advertises a client’s requirements. Once it finds a suitable provider the case goes to a Council panel to agree whether the placement is acceptable and to sign off the cost – this could be a care home or a supported living contract.

By early January the Council identified a favoured location, which Provider 1 put forward. Provider 1 was in the process of buying the property, but it was also subject of interest from a competing provider. The Council said it would not commission Provider 1 until it was clear who owned the property – this could be a care home contract OR a supported living contract.

In April 2018 a ‘round table’ meeting took place, attended by the various parties under the supervision of and as directed by the Court. This resulted in an agreement for Y’s parents to pay a weekly top up fee to enable him to move to his preferred location with Provider 1. In this meeting the Council accepted Y had been shown around Provider 1’s property at a time it knew it was too expensive – again, inconclusive

Please share:
error

North Yorkshire County Council at fault for failing to properly consider the need for maintaining a habitable home and being properly dressed

Decision Date: 18th March 2020

What Happened

Mrs X suffered from polymyalgia rheumatoid arthritis which affected movement in her arms. She had been receiving direct payments from the Council for over 10 years to pay for care, meaning that she had always been regarded as eligible for support by way of public funding, and on a means tested basis.

After her Personal Assistant retired, Mrs X used Agencies A and B to provide carers twice a day to meet her needs, with the Agencies attending alternative weekends.

In September 2019, the Council completed what was in effect a review and re-assessment, after a period where its reablement team was observing her engagement with the services, and they concluded that she was not eligible for support as she did not pass the threshold required.

The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs as being unable to achieve two or more of the following outcomes:

  • Managing and maintaining nutrition;
  • Maintaining personal hygiene;
  • Managing toilet needs;
  • Being appropriately clothed;
  • Being able to make use of the adult’s home safely;
  • Maintaining a habitable home environment;
  • 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; and
  • Carrying out any caring responsibilities the adult has for a child.

The Council only identified Mrs X as needing help to maintain personal hygiene.

Mrs X disputed this, and the LGO examined the Council’s re-assessment for flaws in approach.

Personal Hygiene

The Council accepted that Mrs X’s only eligible need was that she needed help to maintain her personal hygiene.

Mrs X said she was able to wash her face and put her wig and make up on, but this took over an hour and she needed to rest afterwards due to the pain. The reassessment documentation noted that Agency B did not help with washing, but Mrs X said this was incorrect.

The re-assessment concluded Mrs X could be more independent if she bought equipment, such as a sponge on a stick.

Being Appropriately Clothed

Agency A stated that it only helped her dress her top half, which led the Council to suggest Mrs X could bend to dress her lower half herself. Mrs X stated that she had to sit rather than bend.

Agency A highlighted that Mrs X could not lift her arms high enough to wash under them, but the Council said this did not fit with Mrs X’s ability to put her make-up and wig on. Mrs X said again, she had to sit and lean forward to do this, and repeated that it took a long time and had painful consequences.  

Agency B said it helped Mrs X with applying cream prescribed by her GP to her back and upper arms, but no other personal care. Mrs X also disputed this.

The Reablement Service said it saw Mrs X sit on a stool while carers helped take her top and cardigan off and Mrs X showed the weakness in her right arm. However, she asked the Reablement Service to leave before she managed the completion of other personal care tasks.

Managing and Maintaining Nutrition

Mrs X agreed she could manage eating, drinking and preparing food independently. However, Mrs X used her carers to prepare fresh vegetables for her to cook later in the day. They also opened tins for her.

Care Agency B said Mrs X often prepared her vegetables before they arrived. Mrs X disputed this.

The Assessment concluded Mrs X could achieve more independence if she bought equipment: electric tin opener; light weight baskets to cook vegetables; easy grip knives; a microwave or a table-top oven. Mrs X did not want to buy this equipment nor buy frozen or prepared vegetables to avoid the need for care and support.

Maintaining a Habitable Home Environment

The reassessment document said that the Council had previously funded domestic cleaning but this had stopped after a reassessment. Mrs X had subsequently secured a grant to fund a private cleaner. Mrs X said she could not do the cleaning as she was unable to grip.

Agency A made the bed, washed the pots; fed Mrs X’s dog, vacuumed, cleaned the hob, emptied the kitchen bin and took the recycling out;

Care Agency B did “general maintenance”, washed dishes, vacuumed and fed the dog;

Mrs X said she could not put her hands in hot or cold water because of the pain this caused.

The notes said that the Council suggested Mrs X buy a dishwasher, and that her private cleaner could do some of the tasks for her.

It concluded that “General household tasks such as feeding the dog, hoovering the kitchen rug, making the bed, washing the pots and taking the bin and recycling out are not eligible needs under the Care Act 2014.”

The assessment noted that Mrs X had built an ‘emotional reliance’ on her carers which reduced her anxiety. It suggested that she may benefit from help with her mental health but she did not want to purse this with her GP.

In October, when Mrs X complained about the outcome of her assessment, the Council offered a reassessment using its Reablement Service instead of her Agencies, and that its Reablement Service would continue to support her until an alternative provider was found. The report did not explain why it would start looking for alternative providers.

Mrs X was worried about losing her Agencies, so turned down the offer of “reassessment” on that footing. The Council told her that the DPs would end on 8th December, but that it would continue to fund Agencies A and B whilst it reassessed her.

Mrs X accepted this offer.

After the third day of the Reablement team visiting to assess Mrs X, she sent them away. She said they tried to get her to do things she could not do.

Mrs X continued to pay the Agencies with money in her direct payment account, which the Council stopped paying into.  As a result, Mrs X said that the council had told her that she needed to repay over £3,000 [for technical misuse although nothing more was said about that in the report].

Mrs X highlighted that Agency B had accepted the information it gave to the Council was not correct and that it provides the same support as Agency A.

What was found

The LGO first stated that when considering Mrs X’s ability to maintain a habitable home, the Council took account for eligibility purposes of the support provided by her private cleaner. That was fault.

The Council also told Mrs X various activities such as cleaning, washing up, making the bed and taking rubbish out were not eligible needs under the Care Act. This is not able to be said to be the case, and therefore this was also fault.  

“A home where no cleaning or rubbish were taken out and the bed never made would not be sufficiently clean or safe.”

There was no dispute that Mrs X had not got any toileting needs, and needed support maintaining personal hygiene. However, there was a dispute over whether Mrs X could dress herself.

The LGO stated that in cases where there is a dispute over someone’s functional ability, it is good practice to ask an Occupational Therapist to do a functional assessment. In this case, the Council did not do one. The LGO did not find the Council at fault for in this regard, and pointed out that Mrs X’s unwillingness to allow officers watch her personal care hampered the Council’s ability to establish exactly what she was able to do for herself.

The LGO recommended that the Council reassess Mrs X properly to address the need for help in maintaining a habitable home and being appropriately clothed. It should also consider using an OT.

Points for the public, service users, service providers, families and advocates and the council workforce:

The Care Act Guidance requires all informal or self-funded support that a person is receiving from a human being to be ignored at the eligibility stage. That was therefore not only fault, to take the private cleaning help into account as offsetting needs and impact, but a breach of the public law obligation to act under the Guidance unless there’s a very good reason for departure.

One is not EVER assessing needs for services but needs as per the eligibility criteria – that’s clear from the Act, regulations and from the Guidance. The needs to be identified are the inabilities to achieve, as defined in the Regulations on eligibility – including reference to managing without assistance, and not experiencing significant pain, anxiety, distress or risk to self or others whilst ‘achieving’.

Many councils which have embraced strengths-based, conversations-based and asset-based assessment have done so without understanding the dangers into which it can lead a legally illiterate team: however sensible it is to be upbeat before assessment and signpost people to this and that and explore with them how they could help themselves, in theory, it cannot affect the scoring of the global amount of inability that they do have. It may make them feel less bad about it, which means that they may regard less in the end as a defensible offer, but following the Care Act is the very least one must do to do right by the client, ethically and procedurally, and professionally.

If this lady was really regarded as not eligible, then of course it was wrong to continue to spend down the direct payment which the council for reasons that are not clear, had left her with, as opposed to recovering. That is why there was a misuse finding which is not mentioned again in the LGO’s approach. However, there is no mention of the POWER to meet needs in a case where there is really only one area of inability to achieve. We think that the LGO’s investigator forgot to mention that and that the alleged demand for £3000 should therefore have been waived by way of a remedy, for a doubly-flawed decision making process on eligibility.

A council’s service response at the care planning stage is not able to be constrained by artificial stances (fetters of discretion) to the effect that ‘We don’t do this that or the other’.

The LGO found no fault with the council for suggesting use of equipment but we would have to part company with the LGO’s investigator on that score. Saying ‘It may well be that you struggle on this or that domain but you could cope better if you only bought a whole range of equipment which we won’t supply you with for free’ cannot be a defensible reason for regarding someone as ineligible.  A person’s means are irrelevant to assessment, let alone their assumed means, or their means culled from a previous financial assessment!! And equipment must be provided for free!

The Care Act test for means-tested subsidised help by way of facilities, goods and services, (and where facilities, if they are comprised of equipment, must be provided for free) is significant impact arising from the difficulties assessed, to lead to a finding of eligibility.

When one’s council knows this to be the law, and quite possibly when one’s council ought to know, and has no excuse for not knowing, because of LGO investigations that make the law clear, and treat it as fault not to follow it, then carrying on ignoring it could become institutional abuse of power or misfeasance in public office, leaving the officers personally liable in damages, potential, if malice can be shown.

It’s only been 5 years since the Care Act was passed, so a need for a Care Act re-boot in terms of the staff, or senior management or interim management consultants working there, would seem to be required!

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 North Yorkshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-013-234

Please share:
error

Lancashire County Council at fault for failing to ensure the right provision was in place at a care home, resulting in an unwanted move

Date Decided: 12th February 2020

What Happened

Mrs A complained on behalf of her mother, Mrs X.

Mrs X was living in a care home fully funded by the NHS after a fall in 2017. In June 2018 the Council took over the funding of her care when the CCG took the view that she no longer qualified. The report does not mention what the state of the evidence of needs was or whether it was updated to justify that decision.

Mrs X had ‘considerable mobility needs’, requiring two carers for all transfers and repositioning. She was at high risk of falling and it was stated in the June 2018 handover that she ‘needed a recliner chair’.

Mrs A contacted the home (the report did not specify when), concerned that Mrs X was slipping down in her chair in the lounge. The home manager said it had provided a “tilt-in-space” (recliner) chair for Mrs X in January 2018, and had requested a referral to the NHS Occupational Therapist (OT) for an assessment.

A further referral was made in June 2018 both to NHS and Social Care OTs to ensure the right assessment for Mrs X, after the prior referral via a GP was ‘not completed properly’. Between June 2018 and January 2019 Mrs X was on the waiting list for a specialist assessment.

The care provider passed on the information to the OT that “(Mrs X) is struggling to maintain her position in the current riser recliner and needs review for postural alignment in seating.”

A ‘chair’ assessment was eventually completed on 28 February 2019.

The OT recommended Mrs X would benefit from a tilt-in-space armchair but stated that her seating needs ‘were not bespoke’. There is no explanation as to what had happened to the previously provided chair.

In March the Council contacted a private company to arrange possible purchase of a chair.

In April, Mrs A was told by the care home that the chair would cost around £2,000 so the care home management team were being consulted. There is no hint of any explanation in the report as to why – if the council was seeking to commission a chair – Mrs A was also seeking a decision from the Care Home.

In May, the care home served notice to the council for Mrs X’s placement, stating it could no longer meet her needs due to the equipment needed. She said the private seating company had brought a chair which suited Mrs X but “the care provider would not accept and pay for it.”

Mrs A complained to the home stating that if they had accepted the purchase of the chair, Mrs X would not have to move. Mrs A said she explained to the care home manager the chair would be provided by the Council but said the home manager told her Mrs X would “never have the chair in this care home”. No explanation of whether the manager agreed that this had been said, was given however, or why.

The care home stated that the chair was ‘required for comfort’, therefore could not approve the purchase based on need.

The Council then agreed to purchase the chair for Mrs X as a clinically identified need.

The care home went on to tell Mrs A that they could still not meet Mrs A’s needs as they had problems bathing her, and CQC regulations would not allow the care provider to bed-bath Mrs X. Mrs A said she had never been told about this before and no risk assessment had described it as a problem.

The Council stated that the care home gave sufficient notice, and in the end, Mrs X moved to another care home.

Mrs X’s social worker thought that the home served notice because of the perception that the family was ‘overly demanding’, in addition to Mrs X being described as ‘non compliant with care’. Mrs A also highlighted that the home had never asked the Council to fund the chair, but had simply given notice.

The OT was asked to comment and said this:

“The criteria for provision of specialist seating and equipment in care homes has, in the past been quite subjective, therefore, we are currently reviewing the criteria as per the Royal College of Occupational Therapists “Care Homes and Equipment Guiding principles for assessment and provision” and this will be added to our [practice guidance]on the intranet, once finalised”.

What was found

The LGO highlighted that there was some ambiguity over the need for a specialist chair. The assessment stated the need was not ‘bespoke’, but the Council ended up funding the chair as a need anyway.

The care provider said it gave notice because it could not meet Mrs X’s needs, but even when the chair was funded, it refused to continue providing care. The LGO stated that it ‘would have been helpful if the Council had taken the lead on the provision of the chair from the start and not left Mrs A to communicate with the care home’.

Despite the notice period being met (in the Council’s view, on its own contract), the LGO stated that it was fault on the part of the Council’s commissioned care provider to put Mrs X, a vulnerable elderly person, in a position where she had to move homes.

The LGO recommended that the Council pay Mrs X £500 in recognition of the distress caused by an unnecessary move, and review the way it liaises with families and care providers about the recommended provision of specialist equipment.

Points for the Public, Care homes, commissioners, family members, assessors, advocates

This is a frustrating report from the LGO because it doesn’t address the elephant in the room: who is responsible for the provision of equipment? Is it part of the concept of meeting needs, and therefore the council’s responsibility? Or is it part and parcel of being a decent care provider that that private or voluntary sector business funds the equipment out of its margins? Or is the health service’s responsibility for a person because the equipment need is related to the person’s ill-health? Regardless of the status of the person entitled or not to continuing NHS health care…?

CQC Regulation 15 addresses premises and equipment in terms of cleanliness and maintenance but not who pays for what, although the National Framework implies otherwise   

https://www.cqc.org.uk/guidance-providers/regulations-enforcement/regulation-15-premises-equipment

Likewise regulation 19 which addresses fees does not specify equipment

https://www.cqc.org.uk/guidance-providers/regulations-enforcement/regulation-19-fees#guidance

Where individuals in receipt of local authority commissioned care or NHS Continuing Healthcare require equipment to meet their care needs, there are several routes by which this may be provided:

a) If the individual is, or will be, supported in a care home setting, the care home itself may need to provide certain equipment in order to meet regulatory standards or as part of its contract with the commissioner, if a given position on equipment has been agreed. Further details of the regulatory standards can be found on the Care Quality Commission’s website but they don’t specify who is to buy what.

b) Individuals who are eligible for local authority care in a care home and NHS Continuing Healthcare should have the same access to standard joint equipment services as other people – the equipment is provided potentially, to council clients, under the Care Act, and not as part and parcel of the duty to meet the needs for care together with accommodation and the same must be true for NHS CHC patients, we think. Therefore, when planning, commissioning and funding joint equipment services CCGs should ensure that the needs of current and future recipients of NHS Continuing Healthcare are taken into account.

If one asks whether self-funding people in care homes should be able to access equipment services, we think that the answer is no, because councils are not allowed to meet the needs or fund the needs of those over the capital threshold.

c) Some individuals in receipt of council care in a care home or under a NHS Continuing Healthcare contract will require bespoke equipment (or other non-bespoke equipment that is simply not available through routes (a) and (b) above) to meet specific assessed needs.

The more specialist the equipment the more probable it is that CCGs should make appropriate arrangements to assess and meet these and any subsequent equipment needs that might arise, including responsibility for any essential servicing and repair that might be required for particular items of equipment – because of responsibility for health needs that are beyond the scope of what can be expected as part of a package of social care.

CCGs should ensure that there is clarity about which of the above arrangements is applicable in each individual situation, including responsibility for any essential servicing and repair that might be required for particular items of equipment CCGs are reminded of their ability to utilise Personal Health Budgets as a means of meeting equipment needs (including servicing and repair).

The fact that there is no really clear answer to this issue, which must be a commonplace issue, is one reason people think that social care should be integrated with the health service because there would then be no turf wars about this sort of expenditure. We think that that is naïve, though, because instead of that there would just be arguments about whether it was a need or a want.

Reading between the lines it seems to us that there was some clash of positions going on between the family and the care home manager here, who reportedly ‘left’ soon after Mrs X was moved. But the fact of the matter is that on a care home contract between the council and a care home, most contracts permit the home to terminate on notice, on the grounds that it is no longer able to meet the person’s needs. And if there is a dispute about equipment between the commissioners and the sort of paralysis in joint working that one hears about all the time, it is not surprising that a care home would simply stand on its rights.

In so doing, it must however remember that publicly funded clients in care homes are owed human rights by the provider directly. That translates not into a right never to be asked to leave, but a right to expect disputes to be grappled with conscientiously in light of the obligation to pay respect to the person’s attachment to their home, and their private and family life. It doesn’t seem to us that anyone reminded the home of that in this scenario, and that was the fault of the commissioner, ultimately, who ought to know that that fact can be brought to bear upon any provider thinking of giving notice.

We don’t know why the LGO’s investigator doesn’t mention that feature of the case.

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 Lancashire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-006-812

Please share:
error

Hertfordshire County Council at fault for mis-timing MCA assessment and poor records leading to unnecessary delays in decision-making for a service user and carer

Decision Date: 19/03/20

What happened

This complaint was made by Ms J, sister and main carer for Miss K about the Council’s actions between May 2018 and May 2019. There are still other complaints also being considered by the LGSCO, covering different actions by the Council.

Miss K is a lady in her 20s with Autism, a learning disability and Epilepsy. She has sensory processing and balance-related difficulties.

Ms J manages her direct payment on her behalf. Miss K left education in May 2018 whereby she was supported by the 0-25 team at the Council. Miss K and Ms J also had a solicitor who corresponded with the Council. Notes stated that Miss K experiences anxiety and communication difficulties and finds answering questions difficult.  

Ms J’s complaint consisted of several elements relating to Miss K’s review and Ms J’s carer’s assessment;

  • that the Council were using the review to undo the care it put in;
  • Miss K had received no respite break since March 2018;
  • a written record of the care plan was never received;
  • there was no contingency plan in place;
  • only an indicative budget was provided;
  • the review took too long to complete;
  • the advocacy service’s staff were not seen as independent by Miss K and
  • two separate carer’s assessments had resulted in no additional help or support for Ms J.

In April 2018, the 0-25 team arranged to review Miss K’s care plan and Ms J’s carer’s assessment. Their solicitor took the view that Miss K did not need to attend as she could not understand the issues. The Council disagreed and required Miss K to be present.

On 16th May 2018, the officer met with Miss K and Ms J at their home. There was no Council record of this meeting.

In June 2018, the officer met again with Ms J and subsequently set up an interim package of care for Miss K pending the outcome of her education appeal which would necessarily inform any further care planning.

In September 2018, a review was undertaken based on information from the two previous meetings. This led to a continuation of the interim package of care but identified the need for a new assessment as Miss K’s appeal to remain accessing education had been unsuccessful.

On 5th November 2018, the officer met with Miss K and Ms J. It is recorded that this visit focused on respite.

Following the meeting, the Council noted its concerns about Miss K’s capacity to make decisions.

Ms J made a complaint in December 2018, and the Council response was that it had only met Miss K twice so could not ascertain her wishes and therefore could not conclude that she lacked capacity. Council records noted the need to start from a presumption of capacity.

In December 2018 another officer was appointed to carry out a Mental Capacity assessment and the Council view was that Miss K required an advocate to support her with the process.

The advocacy service commissioned by the Council had a policy that its initial visit would always be with the social worker. Ms J complained that Miss K would therefore be unable to view the advocate as independent of the Council.

An advocate was appointed in February 2019 but this changed in March 2019 due to sickness. The Mental Capacity assessment was completed in April 2019, with the conclusion that Miss K lacked capacity to manage her care and support plan and that she needed an advocate to enable her voice to be heard (probably on account of material disagreement with Miss J; this can lead to the appointment of an advocate despite a willing and informal carer being involved and apparently supporting the person’s involvement under the Advocacy reguations.

Ms J requested changes to the assessment and stated that questions about future living options had upset Miss K. The officer disagreed with the proposed changes and that conclusion was upheld by the Council.

Complaint specifics – respite

Miss K had an allotted 12 nights per year to stay at a respite placement. She last stayed in March 2018. Council records stated that Miss K had received 8 nights’ respite until March 2018 and noted the use of a Personal Assistant to go away with Ms J and Miss K. 

In July 2019, the officer confirmed that the respite placement was still ‘active’ by email. Ms J complained that she raised the issue of respite with the officer as the provider had refused a booking. Communications about respite were not recorded in Council notes until August, where the Council agreed to look into the respite placement and alternative options.

In October 2019, the solicitor informed the Council that the respite placement was ‘no longer an option’ as Miss K had experienced anxiety attacks in August when she had been due to attend. Ms J had identified a different option that was linked to a centre Miss K attended.

On 13th November 2019, the officer confirmed by email that she would look into the alternative respite proposal which she later confirmed had no availability.

In December 2019 the Council confirmed the original respite placement’s report that there had been no difficulties when Miss K had stayed and it had not refused respite.

The council also identified that it was at that time funding 16 nights’ respite at a different respite placement and that the cost of the proposed placement would only enable Miss K to have 2 nights’ respite for the same amount.

Carer’s assessments

Ms J’s carer’s assessment was carried out in April 2018. The solicitor had informed the Council that Ms J thought Miss K’s review should take priority over her assessment. Ms J was found eligible for support, and required assistance with cleaning and gardening to enable her to sustain her caring role.

The Council explored community services to meet the need but were unable to source the support, so offered Ms J a direct payment. Her indicative budget was £75 per week.

In June 2018, the Council sent Ms J a copy of her assessment and Ms J requested changes. Council records from August 2018 show that the officer’s manager told Ms J that they would source the support through charities.

December 2019 records stated that Ms J had asked about the outcome of her assessment and notes that the officer had focused on ways to reduce her caring responsibilities. It also noted Ms J was not in employment and Miss K had a package that met more than her care needs.

It must be inferred from the complaint report that the payment was just not made, because the record keeping was so bad.

Holiday request

In April 2018, Ms J had requested support from the Council to enable her and Miss K to attend a family christening in Europe during August 2018. It would have cost several thousand pounds and the officer agreed to make a request for this funding.

Ms J gave the required evidence for the trip and the Council declined to fund the holiday related expenses on 20th July 2018. It stated that it had no duty to fund the non-care elements of the trip and offered £500 towards the care costs. The Council claimed that the relationships could be maintained by alternative means i.e. telephone calls. The council has no record of this decision which it says was made by a manager and conveyed to Ms J by the officer. 

The Council responded to the complaints made by Ms J in February 2019. It acknowledged that the Mental Capacity assessment needed to take place sooner and that delay had been caused by the advocacy organisation.

The Council responded to the complaint about respite by identifying that respite monies had been used for trips away with a personal assistant. The Council accepted that Miss K had received alternative respite and could use the respite allocation for Ms J’s proposed option, but that this would provide much less respite provision for the cost.

What was found

The LGSCO split the year the complaint concerned into three parts: interim care package, mental capacity assessment and the period after the assessment.

Interim Care package – the LGSCO found that the Council had appropriately provided Miss K with an interim package of support. It found no fault pertaining to the requirement for Miss K to attend her review and acknowledged that difficulties in arranging the meeting had led to delay in completion of the review.

Mental Capacity assessment – the LGSCO found fault as the Council had sufficient information to indicate a need to do this assessment in June when the interim plan was completed. The Council rightly started with a presumption of capacity but failed to start the assessment until early 2019. The LGSCO found the Council at fault as there was also a lack of relevant emails in its file.

Whilst Ms J disagreed with the questions asked during the assessment process, the LGSCO did not find fault with the Council in this regard. The LGSCO role is to consider the Council’s actions, so it found no fault with the delays caused by lack of availability of advocates.

The LGSCO found that Miss K nor Ms J suffered injustice because of the Council’s failings pertaining to the Mental Capacity assessment as the interim care package remained in place.

Period after the assessment – the LGSCO found that the Council correctly determined the need to carry out the Mental Capacity assessment prior to the review. It found no fault regarding the advocacy organisation as it was not subject to the LGSCO jurisdiction.

The LGSCO relied on the Council’s records in relation to the respite. Records were unclear as to when Ms J told them about the refusal of respite. It is on this basis that the complaint was not upheld by the LGSCO as it could not ascertain when the Council was informed and in any case the refusal would not have resulted from the Council’s actions.

The LGSCO acknowledged that Ms J preferred for Miss X to access a more expensive provision that would provide much less respite. A review of the provision for Miss X is subject to a separate complaint.

The LGSCO importantly identified that the Council was unclear that Ms J and Miss X going away with a personal assistant was ‘not respite’.

Ms J also complained that the Council failed to identify a contingency plan and provide a final budget. These matters are contained within a separate complaint. The LGSCO identifies that there were numerous delays that impacted on completion of the review. The review would have then prompted the final care plan document.

The LGSCO found fault in relation to the Council’s failure to meet Ms J’s assessed needs as a carer. It did not accept the Council’s reasoning that it had been focusing on Miss X’s needs and her review throughout the whole year. The Council also failed to record any decision relating to the funding request.

Finally, in relation to the holiday request, the LGSCO found fault with the Council as it had no record of its decision-making.

In terms of injustice, the LGSCO identified that the delays in carrying out the assessment, lack of records and holiday request funding may have led to uncertainty for Miss K and Ms J. The LGSCO reference a lack of evidence to determine whether Miss K and Ms J ‘missed out’ due to the Council’s fault.

Remedies

The LGSCO agreed with the Council that within one month it would write to Ms J with an apology for the delay in taking action following the carer’s assessment and for the inadequate records. The LGSCO also recommended a symbolic gesture of £100 be paid to Ms J in recognition that she may have experienced injustice caused by the uncertainty that resulted from the delays.

Points for the public, service users, family and peer supporters, advocates, and councils etc.

Whilst a somewhat complicated set of facts, there are some key legal issues in this complaint that warrant further expansion.

Firstly, the Council accurately recognised the importance of involving the person in their review process and started from a presumption of Miss K having capacity to be involved with her care planning. However, the Council was privy to information that indicated Miss K might lack capacity, but took 5 months to recognise that.

There is no reference to whether the implications for that lack of capacity had been properly worked through for the appointment of Miss J as an Authorised Person either.

Whilst it effectively recognised the need for Miss K to be supported by an advocate, this delayed the review process even further as the advocacy organisation couldn’t provide an advocate soon enough.

The Mental Capacity assessment was eventually completed almost a year later than the information held by the Council. Fortunately for this council, an interim care plan remained in place to support Miss K and prevented injustice to her.

Ms J raised the issue of the advocacy organisation’s policy compromising its independence. Whilst we do not know if that is what Miss K did experience, the LGSCO didn’t address this particular point in its response due to its jurisdiction. However, commissioners need to be aware that an advocacy service that does not meet initially with the person alone has potential to be viewed as biased.  This is an easy conclusion to arrive at, because there is a right for an advocate to see the individual in private.

In terms of seeing Miss K, the Department of Health Statutory guidance (6.40) states that ‘Local authorities should also consider the impact of the assessment process itself on the individual’s condition(s). People may feel uncertain and worried about what an assessment involves and may find the process itself to be strenuous. Local authorities should therefore give consideration to the preferences of the individual with regards to the timing, location and medium of the assessment’.

The Council did attempt to involve Miss K but only saw her twice. This meant it could not determine whether she had capacity to make decisions in relation to the management of her care and support. The learning here pertains to the importance of giving information in advance and really giving some thought to the way in which people can become involved and participate meaningfully as part of the practitioners’ preparation for an assessment – this requires more than just looking at the last review and arriving at a meeting.  

The issues with the respite service were a key consideration by the LGSCO. Miss K had been allocated 12 nights per year at a respite placement, but Ms J and the provider had different views on its refusal to accept a booking. Council records were insufficient to indicate when Ms J raised this as a problem, however it eventually resulted in the placement being deemed no longer suitable due to Miss K’s anxiety in relation to a stay. Ms J’s request for an alternative higher cost placement was rightly considered by the council, who had offered an alternative option that was available for Miss K. Councils do not have an endless budget with which to meet the needs of all its service users, therefore they can legitimately take into consideration that means can be met in a variety of ways, as long as all adequate and appropriate and say ‘here is a budget and if you wish to access a more expensive option, then this will reduce the number of nights respite you have’.

This is outlined in the Department of Health Statutory Guidance (10.27):

In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. 

The law in fact is that they can say that in relation to a person with capacity, or a person with a best interests or welfare deputy decision maker, but they cannot and must not say ‘Here is a budget, now make that do, for all the respite that you need.’ They must address the real local market rate for adequate respite, and only treat a person as able to spread it more thinly by buying something more expensive, if they have provided enough for the amount of respite they had concluded was needed in the first place, at the lower rate.

The Carer’s budget: The LGSCO said this: “I am not recommending any review of the carer’s assessment in this decision, as my understanding is, since these events, the Council has carried out a further review”.

We have to say that we think that the lack of implementation of the carer’s assessment should have been reflected in a restitutionary award, since Miss J had had an indicative budget but no care plan was ever formalised or delivered upon, and the council’s excuses for prioritising Miss K’s arrangements were not seen as justification by the LGSCO.

The Council were also found at fault for failing to meet Ms J’s needs as a carer following her assessment. Whilst she agreed for Miss X’s review to be a priority, the council failed to source support for her with cleaning and gardening. The care plan  must be sufficient to meet the need, and it goes without saying that sourcing cleaners or gardeners should not be as difficult for Councils as sourcing care and support for people with complex care needs and take the major part of a year. Whilst the signposting to charities as suggested by the Council manager can be a mechanism by which to meet a need, that support has to be available and if aimed at prevention or reduction, should normally take place prior to the assessment and not as a result of the assessment. 

The final point of importance in this complaint is that of the decision-making of this Council. Ms J requested support with a holiday to a family event. The request was considered but delay occurred which led to the decision being communicated to Ms J less than a month before the event. The decision was not properly recorded and therefore unclear to the LGSCO, but the Council did not consider its power to meet the need under s.19 Care Act 2014. It had the discretion to do so. The LGSCO raised the issue that the Council were unclear in recognising that Miss K’s trips away with a personal assistant and Ms J were not respite, in its opinion.

The Council took the view that it was not duty bound to provide the non-care elements of the trip – flights, accommodation, care hire, travel insurance – provided there were alternative means of maintaining family relationships.  The Council of course had a power to provide for facilities regardless of whether there was eligibility and must have adjudged its resources could stand a £500 contribution and offered it because of the delay in a decision. The lack of an efficient and prompt reviewing and care planning system was the maladministration here.  The delay in even making this decision later cost the Council an additional £100 by way of recommended compensation.

Advocacy: it is true that the LGSCO has no jurisdiction over advocacy organisations and can’t tell them how to discharge their role under the Care Act. Here, there were staff sickness issues as well. We would have liked to see the investigator underlining that the provision of independent advocacy is an absolute duty under the Haringey case that was one of the first to be heard after the Care Act came in. Scarcity is usually a matter of how much is being offered for the service, and the law is that it can’t be rationed by reference to available resources; it costs what it costs, so whilst actual scarcity during Covid might have been excused, for instance, it would not be lawful to say “We haven’t got sufficient advocates for the through-put of our statutory processes – you will have to do without, or wait”.

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 into the actions of Hertfordshire County Council can be accessed here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-001-890

Please share:
error

London Borough of Croydon Council at fault for severe delays and unexplained systemic failures in transitioning to adult services, carers’ assessments and direct payments for the package

Decision date – 24/09/2019

What happened                

Miss Y is a lady with significant care needs arising from her multiple health conditions. She has a life-limiting illness and also has epilepsy and learning disabilities.

This complaint concerned Miss Y and her main carers Mr and Mrs X and the process of transition from Children’s services to Adults’ Services.

Her care package consisted of 13 hours’ support per week provided through a direct payment. She also had a draft Education Health and Care plan (EHCP).

In June 2017, the Council reviewed Miss Y’s draft EHC without identifying a transition social worker, and did not consider Miss Y’s care needs. Miss Y’s care needs had not been reviewed since 2014, in fact.

In October 2017 Officer A was allocated to carry out a child’s needs assessment. The report suggests that Miss Y was due to turn 18 in November 2017 and finds that this child’s needs assessment was completed after she became 18.

The assessment identified she would need care and support beyond 18.

Mr and Mrs X complained that this ought to have been an adult’s assessment to which the Council responded that Mr and Mrs X had been informed they could request an adult assessment at the time. The facts as to that issue were unresolved.

Officer A referred Miss Y to the Clinical Commissioning Group (CCG) for a Continuing Healthcare (CHC) assessment at this point. The CCG did not progress this and nobody followed that up, it seems.

Officer B became involved for care planning based on an indicative budget generated by a Resource Allocation System (RAS).

Mr and Mrs X did not agree that this budget was sufficient to meet Miss Y’s needs. There was no evidence that a care plan was ever produced or that the Council considered what care package would actually meet Miss Y’s needs.

In July 2018, the Council produced a care plan for the summer holidays. Mrs X complained that this was produced too late in the term and included activities that were unsuitable for Miss Y.

In October 2018, Officer C was allocated as Miss Y’s social worker and recommended a personal budget of 85 hours per week for Miss Y plus 15 hours’ commissioned nurse services and 36 nights of respite per year.

Miss Y was again referred to the CCG for an assessment for CHC funding. The CCG decided Miss Y was eligible for CHC funding in December 2018. A proper care package commenced in January 2019, but this meant that between November 2017 and Jan 2019, she had been potentially underfunded and gone without services.

Stopped Direct Payments

In 2018, direct payments were stopped three times by the Council which it stated was due to the children’s and adults’ direct payment systems not being aligned. This resulted in Mrs X being unable to pay carers twice and a fine from the HMRC.

Liability Insurance

Mrs X encountered difficulties sourcing Employer’s Liability insurance as insurers requested confirmation that carers had received appropriate training from a medical professional to carry out administration of medication and other procedures. The Council needed to fund or provide this training and had ultimately agreed to do so; the LGO could not understand why this had not been done a long time sooner once the issue was raised.  

In November 2018 Mrs X informed them that the resulting lack of support was having a significant impact on her and her family’s wellbeing. The Council did not progress the medical procedures training until April 2019 despite having informed direct payment recipients by newsletter that carers may require training to satisfy insurance requirements.

Carers’ Assessments

Mr and Mrs X requested carers’ assessments in June 2017. Despite a commitment by the Council to complete these in August 2018, they were not undertaken until re-prompted by the LGSCO in April 2019.

EHC Plan

The Council had issued a final EHC plan in February 2017 which Mr and Mrs X disagreed with as it was based on out of date information.

The Council committed to review this in June 2017 and issued an amended plan in March 2018. Council records showed that Officer C attended an EHC review in December 2018 and alerted the special needs co-ordinator, who had failed to attend, that Miss Y would need an appropriate post-19 education provision.

A fresh draft EHC plan was sent for Mr and Mrs X to comment on in April 2019 and the Council has not even yet finalised this plan.

Complaint responses

In April 2018 Mrs X complained to the Council about the lack of transition and care planning, the failure to carry out carers’ assessments and the insurance difficulties. The Council did not uphold this complaint for unexplained reasons and did not seek to address the insurance issue or carry out carers’ assessments. 

Mrs X complained in May 2018 about the direct payments stopping. The Council failed to respond to that complaint.

In June 2018 Mrs X made a further complaint. The Council agreed to arrange carers’ assessments and asserted that the insurance issue was resolved. It also advised that it was ‘awaiting approval’ of the package of care.

Mrs X complained again about the same thing but the Council did not respond. It said it had taken the matter as already resolved.

In November 2018, the Council wrongly informed her that she had completed stage one of the Children’s complaints procedure – wrongly because it appertained to Adult Social Care.

What was found

The LGSCO found the Council at fault for failing to consider the right timing for a transitions assessment and to carry this out when requested by Mr and Mrs X in 2017 when their daughter was still 17. That is a statutory duty.

The Council was also found at fault for deciding to undertake several Child’s needs assessments because it had failed to review Miss Y’s care needs since 2014. By the time a review occurred, Miss Y was an adult. The assessment did identify Miss Y had eligible care needs, which minimised the consequence of the Council’s process failings.

The LGSCO found the Council more significantly at fault for failing to carry out the care planning and provide a care package to meet her needs. This included the failure to provide a suitable care package throughout the summer holidays.

Officer C recommended a package of care for Miss Y which the LGSCO deemed that the Council would have been obliged to provide from her 18th birthday had it carried out the required transitions assessment and subsequent care planning.

Whilst the Council was not at fault for the failing of the CCG to progress the initial CHC referral, it was found at fault for failing to meet Miss Y’s care and support needs pending the outcome.

Direct Payments

The Council was found at fault for stopping the direct payments which meant that Mrs X was unable to pay carers between March and May 2018. The LGSCO considered this to be significant delay in putting right their own system alignment errors.

Liability Insurance

Whilst the Council did not provide an explanation for failing to provide relevant information to its direct payment recipients, the LGSCO found that it should have been aware of the issue regarding training for carers delivering medical interventions prior to Mrs X raising it.

The LGSCO found the Council at fault for failing to progress the training. It did attempt to source the training but was unable to do so for unexplained reasons and then did not pursue the request for many months.

Carers’ assessments

The Council was at fault for failing to carry out the carers’ assessments despite the complaints made by Mrs X.

Complaints

The Council was correct in dealing with Mrs X’s complaint as an Adult Social Care complaint. The LGSCO took issue with the content of its response. It failed to address the issues of the carers’ assessments, insurance and transition planning. The Council failed to write to Mrs X in August 2018 to confirm the resolution of her complaint. In November 2018 it was also wrong to inform Mrs X that her complaint had been considered under the Children’s complaints procedure.

The LGSCO considered the injustice to Mr and Mrs X and Miss Y which resulted from the Council’s failings. It determined that the delay with the transition assessment and care planning had led to significant injustice.

Miss Y turned 18 in November 2017 and from that date, the LGSCO identified that the Council should have provided the increased package of care. Instead it continued to provide an insufficient care package until January 2019. The impact for Mr and Mrs X was significant as they were unable to plan work, annual leave and time away from caring as insufficient respite was available. This caused them significant distress. Miss Y also missed out on being able to access respite.

Whilst Miss Y did not miss out because the EHC plan was not finalised, the LGSCO recognised that Mr and Mrs X experienced significant uncertainty about her future education.

The Council’s failings in relation to the liability insurance were also found to have caused Mr and Mrs X significant injustice. They had to cover carer shortages whilst uninsured and had to spend time pursuing the Council to address the matter. Mr and Mrs X also had to spend time pursuing the Council in relation to the stopped direct payments which caused them distress. Its unexplained failure to respond only added to their distress and frustration.  

Remedies

The LGSCO made several recommendations that the Council should:

  1. Within one month issue a written apology to Mr and Mrs X and pay £10,000 to acknowledge the significant distress caused by its failure properly to plan Miss Y’s transition from children’s to adult care services and the 13 month delay in providing an adequate care package and delay in carrying out a carers’ assessment. The apology should also cover the key areas of its failings.
  2. Also within one month send a written apology to Miss Y and pay her £1000 to acknowledge the failure to provide adequate respite care and the uncertainty caused by its failure to issue a final EHC plan following the annual review of July 2018.
  3. Issue a final EHC plan for Miss Y within two months of the LGSCO’s final decision.
  4. Review its transition assessments to ensure officers actively consider and evidence their decision on when they consider it is of benefit to the young person to start the transition assessment. This should include timelines to highlight any potential delays.
  5. Reviews its EHC plan procedures to ensure it starts transition planning in year 9 for children with assessed care needs and includes a timescale for issuing final EHC plans to ensure the delays experienced in this case do not recur. The process reviews required should be a joint review with Social Care and SEN departments and take place within three months of the LGSCO decision.
  6. The Council should also explain to the Ombudsman how it has improved its practice.

Points for the public, service users, transitioning young people, family and peer supporters, advocates, and councils etc.

This report gives the impression of a council team in disarray, completely disconnected from the legal framework governing the rights of its clients. It failed Miss Y and her parent carers significantly, although this has led to another useful example of a hefty recommended award by way of remedy, alongside apologies and changes to practice.

One of the causes of distress raised in this complaint was that of the Employer’s Liability insurance for direct payment holders. Many such people will be managing care and support arrangements for people with complex needs who require medically trained support staff – it is not unlawful to fund input from carers with specific skills, unless the tasks amount to registered nurse nursing. A person who is trained by a nurse to do something can be competent then to do it and it is not uncommon for insurers to make this a condition. However, we do not understand how the 15 hours of specified nursing services could ever have been regarded as part of the council’s Direct Payment funding, and this is a frustrating aspect of the report.

The council could choose to provide training if it did not want to increase the budget to enable the responsible person to purchase it directly, but it could not just do nothing and leave the employers exposed to inability to get insurance.

The changes to transition practice were clearly required. The Care Act 2014 (s58) and Care and Support statutory Guidance para 16.7 emphasise the individualised nature that assessment and planning for transition should be characterised by:

16.7 Transition assessments should take place at the right time for the young person or carer and at a point when the local authority can be reasonably confident about what the young person’s or carer’s needs for care or support will look like after the young person in question turns 18.

In this complaint, there can be no doubt that regardless of its failure to review Miss Y’s care needs for a three-year period, Miss Y had significant care needs that the Council would have been aware of.

By dint of that fault, the Council had managed to provide a very minimal package of 13 hours per week support, perhaps due to the parallel nature of the education and NHS children’s health inputs within the plan. Its failure properly to assess and develop a care plan with Miss Y and Mr and Mrs X meant that her care package remained insufficient for an indefensible time. The LGSCO’s judgement was that the increased care package would have been in place from her 18th birthday (November 2017) but for the Council’s failings. It took until January 2019 to increase the care package and provide sufficient and adequate support.

The cost saving to the Council in this period would have almost certainly outweighed the remedial amounts it had to pay arising from the LGSCO decision. The measure of restitution, had the case been taken to the Administrative Court, following the precedent of CP v NE Lincs in the Court of Appeal (search ‘Lincs’ in the search box on the right) is the cost of what would have had to have been regarded as the only reasonable response on the facts, and on any rate per hour that is a lot more than £10K.  In this case, the LGO’s investigator appears happy to have concluded that had it not been for the delay related fault, the young woman would have got a package of care over 2 years earlier, of at least this profile, because of officer C’s recommendation.

85 hours per week, less 13 hours provided, x £10 an hour x (say) 56 weeks = £40,320.

Restitution is only likely to be awarded where a council can be shown to have known that those put into the position of having to provide the care, were not able to be considered to be doing it truly voluntarily; and that evidence is missing from the report and maybe from the facts. So that might be a reason for awarding a large sum but one not underpinned by a specific calculation.

We have to say that unless the LGSCO makes an intended restitutionary awards explicit, councils will be likely to take the risk that such underfunding and poor practice will still result in a saving, even if there are further LGSCO complaints!

On any footing, the absence of a package of that size, and the implications of what it meant that they would have felt they had no option but to do, must have been significant – time spent chasing the Council, uncertainty about Miss Y’s future care and support and alongside the other issues such as the ceased direct payments, a lack of insured carers and the Council’s lack of response to Mrs X’s complaints.

Carers’ assessments are a statutory duty under the Care Act, not upon mere request, but on any appearance of needs for support, which a request would normally be adequate evidence of. It is frustrating that the investigator does not underline that the ignoring of the request was very probably a breach of statutory duty in this complaint.

Respite would have inured to the parents’ benefit, but is the client’s entitlement, such that loss of it should be reflected in the award to the service user, and £1000 was more than the value of the respite cover that had been recommended, so that was a fair outcome.

The transition assessment is required to be undertaken as part of one of the statutory reviews of the EHC plan (Department of Health Statutory Guidance 16.11). The Special Educational Needs Co-ordinator was not part of the review in December 2018 and despite the officer’s efforts to raise this with them, Miss Y still had no finalised EHC plan at the conclusion of this complaint.

The LGSCO has clearly indicated that the Council’s transitions process needs addressing and has issued a tough timeframe for it to make improvements.

This Council (and others who want to avoid creating similar poor press) must do better when it comes to departments and agencies such as Health working together. This is not a new concept, but clearly the confusion around whether Miss Y should have an adults’ or transition form of child’s assessment, the lacked of joined up reviewing, the cessation of the direct payment because information systems ‘weren’t aligned’ and even the complaints department not knowing what ‘type’ of complaint it was, all signal system failures within the Council’s understanding of what constitutes good transitions practice, and nobody taking responsibility for these gaps.

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 into the actions of London Borough of Croydon Council can be accessed here

https://www.lgo.org.uk/decisions/adult-care-services/transition-from-childrens-services/18-015-014

Please share:
error

Sefton Council at fault for failing to carry out a mental capacity assessment

Decision Date: 3rd February 2020

What Happened?

Mr X complained on behalf of his son, Mr A.

Mr A had a brain injury which impacts to some extent on his cognitive functioning and mobility. His mother Mrs X, was given appointeeship by the Department for Work and Pensions (DWP) for the purpose of managing Mr A’s benefits payments.

In 2008, the Council waived Mr A’s assessed contributions for his care and support. They identified that Mr A lacked insight into the importance of support, felt he did not need it and therefore he would not pay.

The Council saw that this would lead to Mr A refusing his care package, which would in turn lead to a worsening of his well-being and put him at risk. It would also lead to an increase in his needs at a later point.

The Council reviewed its decision in 2010, and came to the same conclusion; if the care package was cancelled, it would lead to a worsening in Mr A’s well-being, make him more vulnerable, and increase his needs at a later date.

In 2016, the Council completed a reassessment of Mr A’s care and support needs and continued to waive Mr A’s assessment contributions.

The Council did not then review Mr A until March 2019.

During this assessment, the social worker noted that ‘there was no reason to suspect Mr A lacked insight into his care needs’. He was able to explain why he thought he could manage without the support, and also said he would be willing to contribute to the costs.

The social worker referred Mr A for a financial assessment which assessed Mr A’s contribution to be just over £73 a week.

Mr X complained to the Council stating:

  • Mr A should not have to pay for his care and support as he lacked the mental capacity to manage his finances.
  • The Council had not explained what had changed.
  • The Council did not complete a mental capacity assessment for Mr A.

The Council subsequently arranged for a mental capacity assessment.

What was found

The LGO highlighted that it is at the Council’s discretion whether or not to charge for care and support. Here, the Council used its discretion in 2008 and 2010 to waive Mr A’s contribution, which it was entitled to do so. Therefore the Council was not at fault there.

It was fault that the Council did not review its decision until 2019. However, there was no injustice caused to Mr A, as he continued to benefit from not having to pay towards his care, and there were no concerns raised that his plan was not meeting his needs.

The Council did not complete a mental capacity assessment for Mr A. This was fault.

But once again, the LGO considered that the fault caused no injustice to Mr A, because even if he was assessed to lack capacity, it remained at the Council’s discretion to decide whether or not to charge for care.

The faults identified above however, did cause Mr X injustice, overall. They caused him distress, and he had to take time and trouble to make the complaint.

The LGO recommended that the Council apologise to Mr X for the distress and time and trouble caused by its failure to complete a mental capacity assessment for Mr A.

Points for the public, charging officers, service users, appointees etc

This is a bizarre outcome for a complaint in our view; charging does not turn on mental capacity; liability for charges does not arise from contract and thus does not need offer and acceptance to be evidenced, let alone capacitated acceptance. It arises as a result of the statute making social care chargeable.

Secondly, whether or not someone wants to pay, does not determine whether they get care: it’s irrelevant, and so is their agreement or otherwise. Refusing services IS sufficient to stand a council down, and discharge it from its duty of care – ONE very good reason why a council would be acting imprudently if it took people’s refusal of care as automatically capacitated just because there’s a presumption. If that presumption turns out to be obviously shaky – a situation say, where the person should have been appreciated to be entrenched, or distracted, or troubled or depressed and refusing on account of those issues, and harm befalls the person soon afterwards. And that’s why any council needs to come to its own conclusion about a person’s mental capacity in that situation – when about to walk away.  

There is no point in doing a mental capacity assessment in the circumstances described in this report. It is not a ‘Mental Capacity Act’ decision involving touching or restricting or restraining the service user. The decision whether or not to charge under the Care Act does not need the cover of s5 of the Mental Capacity Act to give the charging officer any protection against action for assault or trespass to his person. The MCA does not give a person a POWER to act, or make effective, something that NEEDS a person’s consent to BE of legal effect, such as a contract or a tenancy; it gives people a defence to the normal consequences of doing whatever is proposed regardless of the fact that the person can’t consent.

It would only be if the man had purported to refuse services that it would have been necessary to assess his capacity; if he in fact said he didn’t want services, and clearly understood that he could qualify for them regardless of being willing to pay, but that not paying could lead to legal proceedings against him, he would have been perfectly free to refuse the offer and the council would have been entitled to walk away.

DWP Appointeeship is not triggered by incapacity, in the MCA sense of the word, regarding one’s finances. The test is being incapable of managing one’s benefits, and that is not quite the same; it is broader, and admits of more reasons, including physical incapability, for an appointee to be needed, than cognitive dysfunction.

We do not grasp what Mr X, the father of the service user, had gone through that could amount to injustice. He was not the appointee; his wife was the appointee.

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

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

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-005-279

Please share:
error

Staffordshire County Council at fault for stopping respite care funding, and not sufficiently involving the person and their family in assessments and reviews

Decision Date: 3rd February 2020

What Happened?

Mrs C complained on behalf of her son, Mr D.

In 2016 Mr D was assessed as needing 6 weeks’ residential respite care per year, for which he had to contribute £810.

In November 2018 Mrs C complained to the Council after she asked for a statement of Mr D’s direct payment account and found that the Council had not paid any funds into Mr D’s account for respite care in the last two years. This meant that respite care was paid for using direct payments meant for his care at home.

The Council acknowledged that it had not paid any funds into Mr D’s direct payments account for respite care since 1 April 2017. This was despite evidence that annual reviews were carried out in 2016 and 2017, and a reassessment in April 2018, all concluding that Mr D should continue to receive respire care.

It therefore reinstated Mr D’s respite funding until the end of the financial year, when it would be reviewed.

Despite the Council not putting in respite care funding into Mr D’s direct payments account, there was still enough money to cover the costs he had needed to defray (up until November 2018 when Mrs C complained to the Council).

Mr D’s direct payment account was supposedly overseen / managed by a third-party company.

Mrs C believed that this company was commissioned by the Council, which would have meant that the Council was responsible for the quality of the company’s support.

However, Mrs C recently found out that this is paid for out of her son’s Personal Budget, which means the Council is not responsible.

Mrs C asked if the Council increases her son’s personal budget, whenever the fees charged by his respite care home or day centre go up. She felt the need 

  • For an overview / breakdown, at the start of each financial year, that shows how much the Council has allocated for her son’s Personal budget.
  • Clarity about the process through which the Council carries over respite care funding from one year to the next.
  • To change her son’s care support from direct payments to care that has been commissioned by the Council.

The Council told the investigator that:

  • Any increase in provider fees are dealt with by the Council’s Commissioning Service. A provider has to submit a business case to this Service Team, who will review this and decide whether to accept it. If an uplift is agreed, personal budgets will be backdated to the date of the increase / request.
  • It allocated a new social worker to Mr D to provide any further information to her and carry out a formal care review of her son’s support.

What was found

The LGO stated that the Council was at fault for stopping Mr D’s funding for residential respite care, despite his plans stating he still needed it.

Although Mr D had enough funds in his direct payment account to continue to pay for his respite care, it resulted in an injustice to Mrs C, as she spent time and trouble bringing the complaint, and was caused distress and uncertainty as to whether the Council would allocate funds for Mr D again.

Furthermore, there was no evidence an annual review of Mr D took place. The LGO did not mention fault in relation to Mr D necessarily, but stated that ‘it is clear that Mrs C is unaware of any annual care review having taken place in 2018. If there was one, it did not involve her and the Council did not share the outcomes of it with her and her son. This is fault’. The LGO reinforced that Councils must involve the person and their family when assessing and reviewing their care. 

Points for the public, service users, councils, advocates etc

This complaint hints at the sort of thing we suspect is going on all over the country under the cover of so-called third party managed accounts: chaos.

An interesting point is made by the investigator that if the council is commissioning the management, it is responsible for neglect of the managerial responsibilities (for which no doubt it insists on an indemnity from the contractor) but that if the financing is structured through the direct payment as an additional amount for the entity doing the managing, then the direct payment holder ought to be contractually able to hold that agent to account for misconduct.

That level of analysis makes it surprising however that the investigator allowed the council to get away with suggesting that increases in the service cost within a person’s direct payment have to be justified to the council: the contract for those services is nothing to DO with the council, but a private arrangement between the DP holder and that company.

The commissioner in the council doesn’t have the same power to refuse increases to direct payment clients under the Care Act as it has when acting in pure private law with the providers who are on council commissioned framework contracts!

If the market rate for those privately arranged services goes up, then the client has to go back to the council and say that they need more and then decide whether to stick with that provider or go elsewhere, or challenge the council for failing to pay a sufficient market rate!

The report also leaves it unclear – if there was enough money for the home care and money for the respite despite the allocation for the respite not having been paid in for two years – how the excess had been built up.

If it was because aspects of the care plan for care at home were not in the end, needed, then it would in due course be reclaimed anyway.

That is not always the case if the care plan makes it clear that a person’s needs are extremely prone to fluctuate; a surplus at any given time does not indicate a lack of need, but funds there for when they ARE likely to be needed once again.

If it was because care at home had not been able to be sourced, and had been provided forcibly for free by carers, then there should have been more investigation, perhaps, as to injustice, in order to preserve the latterly paid in overlooked respite funds, for those who had had to the work.

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 Staffordshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-003-615

Please share:
error