Archive for Local Government Ombudsmen’s Reports

Nottinghamshire County Council at fault for not reviewing a direct payment for 4 years, then for unreasonably seeking recovery of £75,000 and refusing to discuss that decision

Decision date: 19th November 2019

What Happened

In May 2012 Mrs B started getting a direct payment for social care, primarily to employ a personal assistant.

Between April and July 2013 the Council audited the direct payment, checking bank statements provided by Mrs B. It did not raise any concerns.

In May 2015 the Council wrote to Mrs B requesting original bank statements, timesheets, and wage slips, invoices, receipts, tax and national insurance contributions, employer’s and public liability insurance policy and any other paperwork from 20th June 2011 to 30th April 2015. There is no record of the Council receiving that information or actually carrying out the audit in 2015.

A council report dated 30th June 2016 raised concerns about some expenditure, changes to printed out online bank statements, misuse of funds and fraudulent statements. A letter to Mrs B dated the following day said she had been selected for a “random audit” covering from 12th July 2011 to 30th April 2015.

The Council finished this audit in August 2016, deciding Mrs B had misused part of the direct payment and had not provided wage slips for some of her overnight care from her husband.

On 19th October Mrs B conceded to a social worker that she had not managed the direct payment account well. On 4th November 2016, going forwards, the Council confirmed that Mrs B would get 44 hours a week care, 25 of which would be provided by her husband.

The LGSCO’s report states without further detail that on 8th November the payroll aspects of the direct payment was switched the Penderels Trust.

On 12th November she received a demand for repayment of £53,145.25 of the direct payment. Mrs B disputed the demand on 18th November, asked for a meeting about it on 19th December (2016) and chased the request on 6th January 2017. On 20th January the Council said a meeting was not needed.

Mrs B said the £53,145.25 was properly used to pay her husband to meet her needs and backed this up with the fact that the NHS now funded a larger care package. The Council said she had failed to evidence the care he provided (but it accepted that he had provided 25 hours a week care and that this was an appropriate way to meet her eligible needs) and that she further had spent £21,768.26 on items not covered by the care plan (some of which, however, were included on bank statements she had shown the Council in 2013).

It is not clear from the LGSCO’s report whether the items were ones were not explicitly covered by the plan but which did contribute to meeting her eligible needs, or whether they were entirely inappropriate. The report says that “Based on [the support plan and bank statements] I understand why the Council has concerns,” suggesting they may have looked inappropriate, but also that “Without any annual reviews or communication with Mrs B about concerns between 2012 and 2016 I cannot see how she could have known she was not managing her direct payments account properly.”

What was found

The Ombudsman found fault with the Council for:

  • failing to carry out annual reviews of the direct payment;
  • failing to make Mrs B aware of concerns after the 2013 audit, thus not giving her a chance to amend her spend or improve her record keeping;
  • failing to consider properly whether to recover the whole £53,145.25 paid to her husband even though it accepted that he had been providing 25 hours per week care throughout the period, and that it had made no objection to him being employed.

As the LGSCO points out, a partner can only be employed on using a direct payment if the local authority considers it necessary [as per regulation 3, the Care and Support (Direct Payments) Regulations 2014]; but this was not in question here]

The Ombudsman was also concerned that there was:

  • no evidence that the Council considered whether the misuse was intentional and thereafter whether or not to recover the money, as required by its own guidance;
  • no evidence that it had a proper discussion with Mrs B or ever gave her a chance to provide further information or evidence;
  • no evidence that it considered the circumstances in which she spent the money, or the impact of its failure to communicate any concerns about spending between 2012 and 2016.

The LGSCO recommended that the Council:

  • recalculate the overpayment to her husband, not reclaiming the whole £53,145.25, but only what he was paid over and above the agreed and acknowledged 25 hours per week;
  • write off the £21,768.26 spent on non-care-plan items (because of the lack of opportunity for Mrs B to put this right due to the Council’s fault);
  • apologise for the failures in how it dealt with her direct payments account and for failing to consider meeting with her to explain its concerns in more detail.

The Council agreed to all recommendations.

Points for the direct payments users, carers, the public and councils

The Ombudsman investigated this “late complaint” even though the events happened considerably more than a year ago, because the Council did not make Mrs B aware of their concerns until 2016, and since then she had been in regular correspondence with them about it: this is an appropriate use of discretion, and the one year rule is only meant to limit the bringing of matters which have been closed for some time.

The Council’s repeated own failure to support Mrs B to manage her direct payment better largely outweighed her mismanagement, although the Ombudsman accepted the Council was right to recover payments to her husband over and above what was in the agreed care plan. Other spending on non-care plan items was written off due to the Council’s chronic failure to help her identify it as mis-spending.

Although Mrs B had signed direct payment agreements committing her to keep wage slips, and she had (in part) failed to do so, the LGSCO considered that this failure was not decisive because the Council already accepted that the (25hpw) care had been provided, even if it had not been evidenced with wage slips. 25 hours a week at an average rate of £7 an hour per year is about £9000 per year, and therefore even 6 years of that amount of work would have wiped out the whole reclaim.

The Council’s own local direct payments policy and staff guidance (but not its actions) were compliant with the law, allowing employment of family members and/or partners living in the same household to be employed on a case-by-case basis, requiring annual direct payments reviews, and requiring possible misuse of funds to be discussed with the service user and rational decisions made as to (a) whether the misuse was deliberate and (b) whether or not it should be recovered, and stating that a care plan should clearly specify what the direct payment could or couldn’t be spent on.

The care and support statutory guidance does not specifically discuss recovery of mis-spent direct payments funds under section 33(5) of the Care Act 2014, but Annexe D on recovery of debts in general stresses that due to the vulnerability of service users and the duty to meet their eligible needs and to consider their well-being, “6) … possible debts must be discussed with the person or their representative” and “8) Local authorities should also bear in mind that they are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as the wellbeing principle set out in the Care Act. Given this, a local authority will wish to consider all other reasonable avenues before utilising the powers provided under the Act.”

Public law principles of legality, rationality and fairness require the council to follow the law and guidance unless there is good reason not to, to give clear reasoned decisions which appropriately weigh relevant reasons, and to allow an opportunity to respond with counter arguments or new evidence. None of these principles was applied by Nottinghamshire County Council in this case.

The report doesn’t go into the extent to which the council explored whether Mrs B was still able to manage direct payments, or might have been be able to do so with assistance. It’s not clear whether Penderels doing the payroll and payments was the client’s choice or imposed upon her as a condition of having a direct payment.

“Difficulties will not necessarily mean that the person cannot manage. There is inevitably a learning process when people begin to receive direct payments. People may make mistakes but still be capable of managing direct payments in the longer term. Even experienced direct payment recipients can have problems at times, but, with some support, be capable of overcoming them.” (Guidance on direct payments: For community care, services for carers and children’s services, England 2009)

It seems likely to CASCAIDr, given the information provided by the Ombudsman, that the decision to switch the direct payment tobeing managed by Penderels, which is to say one that was managed on Mrs B’s behalf by a provider nominally of her choice, will in reality also have been made peremptorily without compliance with public law principles, with no consultation, no proper discussion of the decision with Mrs B, and no serious attempt to consider alternative solutions to the issues in the management of the direct payment.

The concept of ‘a managed account’ is quite ironic, much as was the name In Control for the movement that got Personalisation off to an early start around 2005 – begging the question who is managing and who is in charge or control!

‘Managed’ here, could mean ‘managed, whether or not the person likes the outcome’ or it could mean ‘managed on behalf of and at the behest of the DP holder’.

There is no possibility under the Care Act of taking a direct payment away from a mentally capacitated individual and then making them have one where they are not in control of the manager, (unless they agree of course, for fear of losing the employment of a relative); it’s not a direct payment then, at all, and nor is it a payment with access to a person to help one meet the requirement of capability to manage the responsibility for the payment. If the council is anything more than an AGENT when purporting to ‘manage’ in this sense, then it is really simply purchasing and contract managing a commissioned service, not a direct payment at all.

If such processes had duly taken place, we cannot guess whether or not a managed account would or would not have been found to be a proportionate and satisfactory arrangement, or whether (for example) more regular monitoring by the Council would have been enough of a safety net while Mrs B to learned better direct payment management skills. Perhaps this just seemed to Mrs and Mr B a lower priority for challenge than the £75,000 debt the Council was alleging, while the LGSCO will have had no reason to consider this, as it was not raised by the parties; but it is at least conceivable that it was just as unlawful.

As the statutory guidance does not specifically discuss appropriate recovery of misspent or unspent direct payments, the pre-Care Act direct payments guidance (also statutory) remains of some relevance here: “130 … Reviews should be undertaken in partnership, allowing for the fact that people may not get everything right first time and that it is normal for people to want to change their minds and make adjustments to improve things. Where problems arise, councils should be prepared to consider the reasons for such problems. Rather than assuming that the risks to that person of receiving direct payments are too high, councils should be prepared to work with the recipient to identify changes that can enable them to manage, perhaps with a greater level of assistance in the short or longer term.”

In the continual tension between legal duties, social work values and best practice, and financial management, and as councils struggle with increasingly constrained funding settlements from central governments, the system is tearing apart. It is common for councils unlawfully to seek to save money by relying on an unpaid carer even when that carer is unwilling (but unaware that the law gives them a choice), and common to find Councils taking hasty and improperly reasoned decisions not to allow spouses, partners, and close relatives or their partners to be employed and paid through a direct payment, when there is nobody else willing to do the care at all, for the value of the budget allocated. Compounding those tendencies by seeking for inadequate reasons and without due process to claw back money paid and spent on care, is indefensible for professionals in the public sectcor.

If you need help with matters of this nature, please use the referral form on the top line menu bar of this site.

The full Local Government and Social Care Ombudsman report of Nottinghamshire County Council’s actions can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/19-000-339

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Milton Keynes Council (and Milton Keynes CCG, and its delegate, an NHS Foundation Trust) found at fault for delays in s. 117 planning, assessment and aftercare and for refusing to reimburse care fees

Decision date: 26/11/19

What happened

Miss A was diagnosed with a number of physical and mental conditions including cerebral palsy, a personality disorder and hemiplegia. She also suffered a brain injury at birth. Her mother, Mrs B, complained to the Ombudsman about the care provided to her daughter when she was detained in October 2014 under section 3 of the Mental Health Act 2014 after attempting to commit suicide. Mrs B also complained about the lack of s. 117 aftercare planning and that the Council caused Miss A great distress when it attempted to move her out of her settled, privately funded accommodation.

Following the detention, Miss A spent time in several mental health units and by late 2016 was a patient at a mental health hospital named The Dene. She was allowed periods of leave from The Dene and coped reasonably well during these periods. It was decided by a mental health tribunal that it would be beneficial for Miss A to be discharged from section into a community rehabilitation facility named Cherrywood. Miss A visited Cherrywood and agreed that she would stay once a bed became available. She moved back into her parent’s home whilst awaiting the placement.

Miss A took an overdose in February 2017 but was not sectioned again and returned to her parent’s house. She decided that she no longer wished to move to Cherrywood and upon receiving this information, the Central and North West London NHS Foundation Trust (the Trust) made a referral to its Specialist Therapies Service. Miss A declined the service.

The Council claimed it had not been made aware of Miss A’s discharge from hospital, not had it been involved in any s. 117 discharge planning meeting. Furthermore, it had not received any requests for an adult social assessment until April 2017.

In May, Miss A’s social care worker visited the house to undertake an adult social care assessment, with Miss A’s mother also present. They were given a support budget projection which included direct payments, 14 hours of which were supposed to be spent on agency support for Miss A.

In June, a meeting was held between Miss A’s parents and several professionals from the Council and the Trust to arrange a s. 117 aftercare plan. Miss A did not wish to be present during the assessment but the Council claimed that both of her parents vehemently stated that she did not want support from any secondary mental health services provided by the Trust.

It is not clear who signed or what sort of a contract reflected the next arrangement but in July Miss A’s parents organised for her to stay in a privately funded supported living facility. Within a month there had been an incident where Miss A was aggressive and vandalistic, and said that she had taken another overdose. Her mental capacity was subsequently assessed and it was found that she did have the capacity to make decisions about care and accommodation. Miss A was allowed to remain in the facility.

The Trust told the Ombudsman that Miss A has simply declined care when discharged, but that after a meeting it held with the Council at the end of August, it was agreed that each party would share the cost of funding Miss A’s 14 hours of care a week (no doubt to reflect that a s117 services should have been arranged). But in September, another social care assessment led to the amount of hours of care allocated to Miss A being reduced to only 3 a week.

At this point the Council was funding Miss A’s accommodation at the facility, but the family were paying for 84 hours care for her per week, presumably as a matter of negotiation as to what was needed, with the provider.

The Council claimed that Miss A made it clear in September that she did not want to remain in the facility and that she wished to go home. As this was not on offer, Miss A met with her social worker to discuss other potential options. The options included shared supported living for people with mental health needs and a tenancy with support.

In November, the social worker supported Miss A to meet a housing organisation who agreed to help find accommodation. A suitable property was identified and a tenancy was agreed to begin January 2018. However, several incidents occurred before Miss A was able to move into the placement. She was alleged to have vandalised her own and her neighbour’s flats and to have assaulted staff in December. Then, on January 4th, Miss A set fire to her flat and was arrested and charged with criminal damage and affray. She was found guilty and released on a 12 month community order.

The Council claimed that there was no evidence to suggest that supporting Miss A’s move out of privately funded care had any effect on her behaviour. Mrs B said that it was exactly this that caused her daughter great distress, which ultimately led to her setting fire to her room.

What was found

Whilst the Council claimed that it was unaware of Miss A or her impending discharge in 2016 its social work teams were co-located with the Trust’ and the Trust certainly knew of the possibility of discharge. Mental health assessments and provisions are supposed to be shared between the Council and the Trust under the Care Programme Approach (CPA) and there should be proper information sharing protocol in place to avoid situations like these. It was therefore fault by both the Council and the Trust to not consider Miss A’s potential s. 117 needs together, while she was still in hospital.

No formal s. 117 aftercare plan was ever produced whilst Miss A was sectioned. Even so, the Trust regarded her as needing to be discharged into a community rehabilitation facility. The Ombudsman evidenced this as reason enough to assume that accommodation should have been part of her s. 117 aftercare – ie provided.

After being discharged to her family home it took 6 months before the Trust or the Council undertook a s.117 aftercare assessment at all. Referral for social care assessment was not sufficient as she should have been jointly assessed under the CPA. Both organisations shared the responsibility under the CPA. However, the Ombudsman was unable to state definitively whether:

  • Miss A would have accepted any support, as she had refused it in the past
  • Her attempted suicide could have been avoided
  • The incidents involving Miss A assaulting staff or setting fire to her room later could have been avoided

Regardless, the impact of the lack of s. 117 aftercare was likely detrimental to Miss A’s health. Opportunities to minimise risk were missed directly due to this delay and Miss A and her family had lost faith in the organisations by the time it was eventually completed. Delay getting her an alternative setting once Cherrywood became unavailable were foreseeable and there is no evidence the Trust had a back-up plan in place.

The s. 117 assessment itself was insufficient when completed as Miss A was not present and her parents did not sign it and it was therefore not in line with MHA Code of Practice. The investigator said this:

“Miss A’s lack of engagement in not wanting to be involved in assessments is understandable. The evidence available suggests she experienced increased anxiety when being assessed or dealing with professionals. In a short space of time from December 2016 to September 2017, she had undergone several assessments and been told of referrals to various teams. Historically, Miss A had negative experiences with some of these teams, so it is understandable she did not want to engage. Her parents were also frustrated with what was happening. Had the organisations assessed her properly under the CPA this would have alleviated the need for several assessments and her needs would have been considered holistically.”

The Ombudsman found no fault in the social care assessment, when was eventually carried out in May. The amount of care set out in the assessment was therefore not appropriate for investigation. The subsequent assessment in September was also completed appropriately but the investigator did not say the same thing.

The Council and the Trust both were responsible for the rehabilitation and sourcing of accommodation for Miss A. Mrs B felt she had no other option but to arrange a supported living placement for her daughter due to the lack of planning from both organisations. The Council and Trust should have funded the supported living care fees. This was fault which lead to injustice as Mrs B was left out of pocket for the care.

The Ombudsman found no fault with the social worker’s support of Miss A’s desires to live more independently and no fault with the Council’s subsequent actions. Miss A had capacity and there was no tie found to the events that resulted in her being jailed between January and June 2018.

Remedies

The CCG and Council together are responsible for providing s. 117 aftercare. With that in mind, the Ombudsman recommended that the Council, Trust and the CCG:

By December 23rd:

  • Refund Mrs B for the cost of the supported living service fees she’d paid for and apologise for not having done so already – the sum of £23,000, which appears to have been the amount spent on care and support
  • Apologise to both Miss A and Mrs B for the lack of a s. 117 aftercare plan and for the uncertainty that it brought about.
  • Pay Miss A £1500 and Mrs B £1000 in recognition of these injustices

By February 20th:

Provide a plan of action of how this sort of situation could be avoided in the future. This will include how to notify and cooperate with each other about assessments and discharges.

Points for councils and NHS mental health trusts – and service users, families, people awaiting s117 care plans, people in ATUs, advocates, lawyers etc

This is a shocking case of disregard of the rule of law, albeit things are always harder with a person with a personality disorder and fluctuating capacity and strong drives. It makes our CEO wonder what on earth she was doing giving of her time voluntarily to attend the s117 discussion group working as part of the review of the Mental Health Review. The LGSCO’s investigation doesn’t probe very deeply into the aspects that would assist with legal analysis either. One would have to ask what use is law, and therefore considering changing it, if nobody abides by it and nobody thinks it matters? One would also have thought that a sum of money of the size of £23000 having to be reimbursed would have been newsworthy to the wider public and NHS management and council leadership, but it seems not.

The LGO report asserts that the following legal principles emerge from s117 of the Mental Health Act: we agree other than where we have commented in bold

  1. “Accommodation can generally only be part of section 117 aftercare if:
  • the need is for enhanced specialised accommodation (“accommodation plus”); [accommodation of an overall nature required in order to make the care services feasibly able to achieve the statutory purpose]
  • the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); [this is no longer a safe statement of the law after the amendments to the MHA in the Care Act – see the Hansard debates which likely broadened the interpretation so as to cover any mental health condition] and
  • the “accommodation plus” reduces the risk of the person’s mental condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder. [ie the statutory purpose of aftercare now]
  • When accommodation is part of a person’s section 117 aftercare, it must be free to the person. [yes, when it is, but that does not include when a person chooses to take a tenancy to meet their own needs – they just need to know that they can, and are not limited to going where the council/trust s117 teams point to, which will only be places where services are already in situ and involve shared care] Councils and NHS organisations should not advise people to claim benefits such as Housing Benefit to pay for accommodation that is part of their section 117 aftercare.” [agreed – but the LGO has excused councils from paying that element of local government money back, ironically, as if it is all part of one pot alongside s117 funding!!]

It’s not clear here whether the parents merely paid for the services at the point of their daughter moving in, or for the services and an occupation licence, or whether they or Miss A signed a tenancy with a landlord and for the private company to provide support to Miss A.

If the whole package came through one contract, and the services constituted care, as opposed to support, it would have been a registrable care home.

Someone with a personality disorder probably needs prompting together with supervision regarding personal care and thus care, not merely support, but the LGSCO’s investigator does not explore that problem. It’s not clear even who paid for the accommodation costs in the private supported living setting. We are told that it was not the parents; and it was not the council and trust, so it must have been Miss A through Housing Benefit, we think. That tenancy was no doubt separate, on paper, from any contract for care, which is perhaps the answer to this registration conundrum.

It’s not clear either whether the reduction in support from 14 hours a week to three was on account of a lessening of need or because a resource allocation system had been scored differently to before, or simply on account of cuts. S117 care planning is needs led just like social care – not budget driven, in legal terms.

Anyone reading this report with a relative awaiting discharge needs to get legal aid for the person to get judicial review of the s117 planning function, if housing is not considered, no decision is made about the integral significance of the nature of the housing for the delivery of the statutory aftercare purpose; if the planning team even hints that the only option is a tenancy in an existing setting where services are shared, or if no competent assistance to apply as homeless to the housing authority is on offer. Those are the preliminary points that need to be PUT forcefully by anyone attending a discharge planning meeting, so that this sort of thing never happens again.

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 Milton Keynes Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/other/17-018-823

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Brighton & Hove City Council not at fault for its reassessment outcome, its advocacy appointment procedure or lack of interim payments pending re-assessment

Decision Date: 19th December 2019

What Happened

Mr B suffered from autism and a personality disorder, and had received direct payments (DPs) to employ a personal assistant for 12 hours per week. He also received informal support from Ms Y.

All correspondence between the Council and Mr B went through Ms Y, as Mr B ‘often had meltdowns when the Council contacted him directly’ and he had removed consent for the Council to contact him directly.

In June 2018 Ms Y emailed the Council to request a re-assessment. She said the Council had not reassessed Mr B for three years. She said she did not have consent to discuss Mr B’s case and the Council had not put in place an independent advocate.

The review took place in October 2018, where Ms Y said she was no longer able to provide informal support. Mr B asked the Council to increase his care package, to account for losing Ms Y’s support.

The Council later emailed a draft assessment to Ms Y asking for more details. Ms Y stated she would no longer deal with any communication between the Council and Mr B after 5.30pm the next day, and suggested the Council send the updated assessment to Mr B’s MP.

The Council sent Ms Y an updated assessment at 5.20pm of her last day communicating for Mr B. She stated she did not see the email before 5.30, that it was inappropriate for the Council to send the document so close to the deadline, and it should send it on the Mr B’s MP (which it did)

In late November 2018, Mr B’s MP wrote to the Council asking it to consider appointing an advocate and give any reasons for a delay in doing so. The Council obtained Mr B’s consent then, in December 2018, made a referral to its independent advocacy service on Mr B’s behalf.

In late January, the Council contacted the advocacy service, as it had not heard anything since its referral. The service said it ‘was not instructed to act for Mr B at this time so could not communicate with the Council or update it about the referral’ and suggested they contact Mr B. The Council did not contact Mr B, as they did not have Mr B’s consent to do so.

The Council received a complaint from Ms Y in early February 2019, stating that Mr B still did not have an updated care and support plan or an independent advocate. Ms Y complained that the Council had made a poor referral to the service, but did not explain in what way.

Mr B then contacted the Council directly to complain. He asked the Council if he had a choice in which service he used, because it seemed as though his advocate was allocated arbitrarily. He also complained he was going without hot meals due to the Council not completing the re-assessment.

The Council responded that Mr B did have a choice and provided information about other advocacy services he could contact. The Council asked Mr B to give consent for the advocacy service to share information with the Council, or alternatively, for Mr B to give his permission for the Council to contact him directly so it could complete the assessment.

Mr B did not give consent for either.

In March 2019, the Council sent a copy of the re-assessment document to Mr B via his MP. The Council also suggested an alternative advocacy provider. Mr B responded to say he wished to use a different provider, but not one the Council had so far suggested.

The new plan showed that Mr B would receive the same amount of hours as his previous plan had allowed for. It did not include provisions for informal support, as the Council found no evidence that his eligible needs had increased, and the hours provided were sufficient.

Mr B provided comments to the Council about the plan via email, to which they responded. This correspondence resulted in Mr B having a meltdown, and breaking his phone and several plates. Mr B sent an invoice to the Council for these, which they declined to pay.

Mr B also complained about the conduct and competency of the social worker on his case, and stated he would not agree to anything drafted by them again.

In September 2019 the Council wrote to Mr B, setting out how it would go forward. It asked Mr B to give consent for it to refer him to its new advocacy provider. It said another social worker would be available to complete a re-assessment from November 2019.

According to the LGO, Mr B’s correspondence to the Council regularly contained strong and, at times, abusive language. Mr B said this was due to his condition and the Council must accept this as a reasonable adjustment under the Equality Act. The Council highlighted it must balance this with its duty to protect the wellbeing of its staff.

What was found

The Council was not at fault for the way it completed Mr B’s reassessment. The LGO stated that although the reassessment was not completed within the desired 4-6 weeks, the delay was not because of any fault from the Council.

The LGO stated that whether or not there was a delay in sending the documents to the MP, it was clear that Mr B wanted an independent advocate appointed, who could act as the middle man for support. As soon as it became clear a timely appointment of an advocate was unlikely, it sent the document to Mr B via his MP. Therefore the LGO found no fault in the Council’s decision to wait for the appointment of an independent advocate, before continuing to finalise the re-assessment.

The Council was not at fault for the outcome of the assessment. The LGO stated that the Council had clearly set out why it considered 12 hours or support to be sufficient, and that informal support, and therefore its cessation, was never a factor that had affected his care plan.

The LGO stated that although the Council had a responsibility to provide an advocate, and Mr B remained without one, it was not through the fault of the Council. The Council was not at fault, because it was clear they made a referral. Mr B did not have to engage an advocate from the Council’s service and had been invited to choose an alternative service. The Council could have supported him to arrange another advocate, but only with his consent to contact with HIM. The Council asked for this consent, but Mr B declined. The LGO stated that the Council could only fulfil its duty to provide an advocate with Mr B’s consent.

The Council was not at fault in failing to provide interim payments, as there is nothing in the Act or Guidance that says Councils must make interim payments while an assessment is ongoing.

After the Council has completed an initial assessment of someone’s needs, the person may request direct payments instead of care arranged by the Council. While the Council is considering this request to receive the budget in that form, it should provide interim payments in line with the Guidance. However, this did not apply to Mr B’s situation as he was already receiving direct payments. The Council did not stop these while it completed the re-assessment. It continued to meet Mr B’s needs in line with the care plan throughout.

Any increase in direct payments would only take effect after completion of the re-assessment. In some cases, councils might backdate payments to the start of the re-assessment. However, again this did not apply here as the Council did not accept it needed to increase Mr B’s direct payments.

The Council was not at fault in the way it met Mr B’s communication needs. The LGO considered that it was clear from the correspondence that the Council made concerted efforts to communicate with Mr B in line with his wishes. It sent correspondence via Ms Y when she was acting on Mr B’s behalf and then through the MP when she was not. 

Points for the public and council officers and advocacy organisations

This is a sad case indicating how difficult it must be for people with strong drives and entrenched stances borne of frustration to negotiate their way through a Care Act assessment, and to understand the law, which we think is correctly stated here, by the LGO.

No fault was found in terms of the manner and extent of attempts to communicate with the gentleman. Information sharing by people who are very anxious anyway is hard to get consent to, but the danger is that if people won’t consent or can’t be interpreted as consent, the council will take the person to be withdrawing from engagement or refusing services.

Here, the man thought that he should be given an increase because his informal source of free support had come to an end. That seems rational, but it overlooks the fact that it is only eligible needs – inability to achieve without assistance which causes a significant impact, that the council has to meet anyway. So unless what an informal carer has been willing and able to do has been noted, and allocated by agreement to offsetting eligible needs, it’s not possible for the person or any advocate to be able to tell what the sum of money then being allocated to the budget is supposed to cover, or what needs are regarded as needs but not eligible needs, such that the informal input is having no actual reduction impact ON the cost of the care plan.

Here, oddly, Mr B’s position was that the informal support of Ms Y WAS referred to in the previous plan that he’d had. It was on that footing no doubt that he expected the cessation of that input to lead to an increase in his budget, and the LGO doesn’t deal with that explicitly. The investigator said this:

“I understand Mr B says his needs have changed because Ms Y is no longer providing informal support. However, the Council has set out that informal support was never a factor in his care plan. It considers the hours set out in his care plan already are enough to meet his eligible needs, regardless of what additional informal support he may have previously received from friends. The Council has set out its professional view on this matter clearly and it is not my place to question that view.”

The nature of the advocacy being sought for Mr B is also unclear. If it was Care Act advocacy, which it certainly seems to have been, given the references made in the report to substantial difficulty, the legal framework is that the council appoints the advocate and would not have any reason or obligation to give a choice, but there is no reason why it should not, if it chose to, and could flex its commissioning and procurement arrangements.

The LGO report says that it was reasonable for the Council to expect Mr B would be aware an advocacy service would have to contact him at some point. The advocate does not require the consent of the person to ACT: their role is a statutory one. If the person won’t engage, the advocate making a reasonable and courteous approach, the advocate’s job is not done; the person’s substantial difficulties could be affecting that relationship as much as any other, and the advocate is appointed at the behest of the council to maximise the participation with the Care Act process.

Consent to information sharing, even, about a person with substantial difficulty in engaging would be done on a best interests basis, by any information holder, and lawfully, under the data protection legislation. But the more capacitated the person is, however, the more likely it is that the person might take against an advocate and get even more frustrated by the surreality of an advocate with whom the person does not get along.

Once engaged the advocate is then in a fiduciary and confidential relationship with the client, regardless of where the commissioning or funding has come from. The council does not control the advocate, under the Care Act. But neither does the client!

It is simply wrong for the LGO to say that “The Council can only fulfil its duty to provide an advocate with Mr B’s consent.” That would make the whole function of Care Act advocacy impossible to discharge. It is also wrong to suggest that a council needs someone’s consent to communicate WITH a person living in their area. A moment’s thought should highlight that that’s an ill-thought out position given the range of councils’ functions!

If it was Care Act advocacy, we cannot understand how it came about that the organisation refused the referral; it does not have the choice, under the framework for advocacy.

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 Brighton and Hove City Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-001-190

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Royal Borough of Kingston upon Thames Council at fault for delays in a deprivation of assets investigation

Decision date: 18/12/19

What happened

In 2007, Mr D and his brother accepted the grant of an Enduring Power of Attorney (EPA) from their mother, Mrs J. She lived with her husband and suffered from a number of health problems, including dementia.

In 2017, Mrs J was assessed in hospital as not having the mental capacity to decide where she should live or what care she should receive. She was discharged in September with a package including 24 hour a day home care. There is no detail in the report as to how long that degree of incapacity may have affected her, unfortunately.

In the EPA there was a restriction on gifts, which is prudent, in any grant of PoA, and indicates that there was no intention at the time of the grant that there should be any opportunity for either of the attorneys to help themselves to assets.

Mr D had declared a bank account on the assessment form that was a joint account between his mother and her husband. The normal rule is that half each would be assumed for financial assessment. He however stated on the assessment form that his father had agreed to give his (Mr D’s) brother £45,000 to pay to extend the leasehold interest on his property and that that money was in the account and that that meant that the account was effectively ALL his father’s money, not shared in half or even a notional half.

The Council undertook a financial assessment of Mrs J and wrote to Mr D on 12 October 2017 to declare that it felt that there had been a deprivation of assets.

The Council considered 50% of the savings on the joint account and also included a further £19,500 in their assessment of Mrs J’s capital assets in respect of the gift to the brother. This took her above the upper threshold, rendering her responsible for the full cost of her care.

Mr D explained that Mr J had agreed to give money to his brother in early 2016 although there was no written evidence of that intention, but the legal process of extending the lease was taking time. The money for this was coming from funds that Mr J had put into the savings account, and treating it as spoken for was not an attempt to deprive Mrs J of her assets.

After being disputed by Mr D, the case was delegated to the Council’s fraud team in January 2018. However, there was no evidence of any action within this investigation until a meeting was held between Mr D and the Council in April. Mr D claimed that the manager at the meeting assured him that as far as he was concerned, there had not been a deprivation of assets.

Then in May, the Council referred Mr D to the Office of the Public Guardian (OPG) who deal with and investigate complaints about the actions of attorneys. The OPG confirmed to the Council in October 2018 that it was taking no further action with the matter.

Mr D complained to the Council in December 2018. It responded in February 2019 acknowledging that the investigation delays had been due to procedural problems. It apologised to him and claimed to have reviewed its processes since. Mr D then complained to the Ombudsman as he felt the Council had ignored his questions and refused to progress the complaint to Stage 2.

What was found

The Council eventually considered foreseeability and intention and concluded there had been no deprivation of assets.

However, there was fault in the Council’s decision in its letter of 12 October 2017 that there had been a deprivation of assets. Councils must consider the questions in the Guidance before they can determine whether there has been deprivation, that is, whether care needs and costs could have been foreseen at the time the disposal was agreed and whether the disposal had been deliberate to avoid care charges. In October 2017, the Council had not considered these points. It was therefore fault to say there had been deprivation.

The Royal Borough of Kingston upon Thames Council was found at fault by the Ombudsman for deciding that there had been a deprivation of assets in October 2017 before it had had regard to the requirements of the Care and Support Statutory Guidance.

The Council was also at fault for the length of time it took to complete the investigation, when it eventually decided that there had been no deprivation of assets. This fault amounted to an injustice for Mr D.

Mr D also complained about the malicious way in which he perceived he had been treated by the Council. There was no evidence to support his claims of malice and the Council was found not at fault for referring him to the OPG, failing to answer questions in his complaint or for refusing to proceed his complaint to Stage 2, as it completed these actions in line with the relevant guidance and policies.

Remedies

The Council has agreed to write to Mr D apologising for the injustice it has caused him in regard to the avoidable distress caused by delays in the investigation. It will pay him £500 to acknowledge this and the time and trouble he was subjected to.

Points for the public and for council officers

It’s not possible from this report to be clear about the reasons why the FATHER putting money INTO the joint savings account and then that being earmarked for a gift to the son was regarded as deliberate deprivation of assets by the MOTHER. The actions of the attorneys could be counted as the actions of the person, and the LGO will be willing to impute the actions of attorneys if the person still has capacity, but less willing, if the person does not, at the time. However this was not action by the attorneys – the money had been put in the account by the father.

If it was indeed traceable that the father had offered the son £45K of his own money but the funds were just ‘resting’ in the joint account pending their being needed by the son, then the normal assumption that jointly held assets should be split down the middle would be rebutted.

But nobody can tell because of the way in which the investigator has left things unsaid, unfortunately.

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 The Royal Borough of Kingston upon Thames Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-004-207

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Milton Keynes Council (and Milton Keynes CCG, and its delegate, an NHS Foundation Trust) found at fault for delays in s. 117 planning, assessment and aftercare and for refusing to reimburse care fees

Decision date: 26/11/19

What happened

Miss A was diagnosed with a number of physical and mental conditions including cerebral palsy, a personality disorder and hemiplegia. She also suffered a brain injury at birth. Her mother, Mrs B, complained to the Ombudsman about the care provided to her daughter when she was detained in October 2014 under section 3 of the Mental Health Act 2014 after attempting to commit suicide. Mrs B also complained about the lack of s. 117 aftercare planning and that the Council caused Miss A great distress when it attempted to move her out of her settled, privately funded accommodation.

Following the detention, Miss A spent time in several mental health units and by late 2016 was a patient at a mental health hospital named The Dene. She was allowed periods of leave from The Dene and coped reasonably well during these periods. It was decided by a mental health tribunal that it would be beneficial for Miss A to be discharged from section into a community rehabilitation facility named Cherrywood. Miss A visited Cherrywood and agreed that she would stay once a bed became available. She moved back into her parent’s home whilst awaiting the placement.

Miss A took an overdose in February 2017 but was not sectioned again and returned to her parent’s house. She decided that she no longer wished to move to Cherrywood and upon receiving this information, the Central and North West London NHS Foundation Trust (the Trust) made a referral to its Specialist Therapies Service. Miss A declined the service.

The Council claimed it had not been made aware of Miss A’s discharge from hospital, not had it been involved in any s. 117 discharge planning meeting. Furthermore, it had not received any requests for an adult social assessment until April 2017.

In May, Miss A’s social care worker visited the house to undertake an adult social care assessment, with Miss A’s mother also present. They were given a support budget projection which included direct payments, 14 hours of which were supposed to be spent on agency support for Miss A.

In June, a meeting was held between Miss A’s parents and several professionals from the Council and the Trust to arrange a s. 117 aftercare plan. Miss A did not wish to be present during the assessment but the Council claimed that both of her parents vehemently stated that she did not want support from any secondary mental health services provided by the Trust.

It is not clear who signed or what sort of a contract reflected the next arrangement but in July Miss A’s parents organised for her to stay in a privately funded supported living facility. Within a month there had been an incident where Miss A was aggressive and vandalistic, and said that she had taken another overdose. Her mental capacity was subsequently assessed and it was found that she did have the capacity to make decisions about care and accommodation. Miss A was allowed to remain in the facility.

The Trust told the Ombudsman that Miss A has simply declined care when discharged, but that after a meeting it held with the Council at the end of August, it was agreed that each party would share the cost of funding Miss A’s 14 hours of care a week (no doubt to reflect that a s117 services should have been arranged). But in September, another social care assessment led to the amount of hours of care allocated to Miss A being reduced to only 3 a week.

At this point the Council was funding Miss A’s accommodation at the facility, but the family were paying for 84 hours care for her per week, presumably as a matter of negotiation as to what was needed, with the provider.

The Council claimed that Miss A made it clear in September that she did not want to remain in the facility and that she wished to go home. As this was not on offer, Miss A met with her social worker to discuss other potential options. The options included shared supported living for people with mental health needs and a tenancy with support.

In November, the social worker supported Miss A to meet a housing organisation who agreed to help find accommodation. A suitable property was identified and a tenancy was agreed to begin January 2018. However, several incidents occurred before Miss A was able to move into the placement. She was alleged to have vandalised her own and her neighbour’s flats and to have assaulted staff in December. Then, on January 4th, Miss A set fire to her flat and was arrested and charged with criminal damage and affray. She was found guilty and released on a 12 month community order.

The Council claimed that there was no evidence to suggest that supporting Miss A’s move out of privately funded care had any effect on her behaviour. Mrs B said that it was exactly this that caused her daughter great distress, which ultimately led to her setting fire to her room.

What was found

Whilst the Council claimed that it was unaware of Miss A or her impending discharge in 2016 its social work teams were co-located with the Trust’ and the Trust certainly knew of the possibility of discharge. Mental health assessments and provisions are supposed to be shared between the Council and the Trust under the Care Programme Approach (CPA) and there should be proper information sharing protocol in place to avoid situations like these. It was therefore fault by both the Council and the Trust to not consider Miss A’s potential s. 117 needs together, while she was still in hospital.

No formal s. 117 aftercare plan was ever produced whilst Miss A was sectioned. Even so, the Trust regarded her as needing to be discharged into a community rehabilitation facility. The Ombudsman evidenced this as reason enough to assume that accommodation should have been part of her s. 117 aftercare – ie provided.

After being discharged to her family home it took 6 months before the Trust or the Council undertook a s.117 aftercare assessment at all. Referral for social care assessment was not sufficient as she should have been jointly assessed under the CPA. Both organisations shared the responsibility under the CPA. However, the Ombudsman was unable to state definitively whether:

  • Miss A would have accepted any support, as she had refused it in the past
  • Her attempted suicide could have been avoided
  • The incidents involving Miss A assaulting staff or setting fire to her room later could have been avoided

Regardless, the impact of the lack of s. 117 aftercare was likely detrimental to Miss A’s health. Opportunities to minimise risk were missed directly due to this delay and Miss A and her family had lost faith in the organisations by the time it was eventually completed. Delay getting her an alternative setting once Cherrywood became unavailable were foreseeable and there is no evidence the Trust had a back-up plan in place.

The s. 117 assessment itself was insufficient when completed as Miss A was not present and her parents did not sign it and it was therefore not in line with MHA Code of Practice. The investigator said this:

“Miss A’s lack of engagement in not wanting to be involved in assessments is understandable. The evidence available suggests she experienced increased anxiety when being assessed or dealing with professionals. In a short space of time from December 2016 to September 2017, she had undergone several assessments and been told of referrals to various teams. Historically, Miss A had negative experiences with some of these teams, so it is understandable she did not want to engage. Her parents were also frustrated with what was happening. Had the organisations assessed her properly under the CPA this would have alleviated the need for several assessments and her needs would have been considered holistically.”

The Ombudsman found no fault in the social care assessment, when was eventually carried out in May. The amount of care set out in the assessment was therefore not appropriate for investigation. The subsequent assessment in September was also completed appropriately but the investigator did not say the same thing.

The Council and the Trust both were responsible for the rehabilitation and sourcing of accommodation for Miss A. Mrs B felt she had no other option but to arrange a supported living placement for her daughter due to the lack of planning from both organisations. The Council and Trust should have funded the supported living care fees. This was fault which lead to injustice as Mrs B was left out of pocket for the care.

The Ombudsman found no fault with the social worker’s support of Miss A’s desires to live more independently and no fault with the Council’s subsequent actions. Miss A had capacity and there was no tie found to the events that resulted in her being jailed between January and June 2018.

Remedies

The CCG and Council together are responsible for providing s. 117 aftercare. With that in mind, the Ombudsman recommended that the Council, Trust and the CCG:

By December 23rd:

  • Refund Mrs B for the cost of the supported living service fees she’d paid for and apologise for not having done so already – the sum of £23,000, which appears to have been the amount spent on care and support
  • Apologise to both Miss A and Mrs B for the lack of a s. 117 aftercare plan and for the uncertainty that it brought about.
  • Pay Miss A £1500 and Mrs B £1000 in recognition of these injustices

By February 20th:

Provide a plan of action of how this sort of situation could be avoided in the future. This will include how to notify and cooperate with each other about assessments and discharges.

Points for councils and NHS mental health trusts – and service users, families, people awaiting s117 care plans, people in ATUs, advocates, lawyers etc

This is a shocking case of disregard of the rule of law, albeit things are always harder with a person with a personality disorder and fluctuating capacity and strong drives. It makes our CEO wonder what on earth she was doing giving of her time voluntarily to attend the s117 discussion group working as part of the review of the Mental Health Review. The LGSCO’s investigation doesn’t probe very deeply into the aspects that would assist with legal analysis either. One would have to ask what use is law, and therefore considering changing it, if nobody abides by it and nobody thinks it matters? One would also have thought that a sum of money of the size of £23000 having to be reimbursed would have been newsworthy to the wider public and NHS management and council leadership, but it seems not.

The LGO report asserts that the following legal principles emerge from s117 of the Mental Health Act: we agree other than where we have commented in bold

  1. “Accommodation can generally only be part of section 117 aftercare if:
  • the need is for enhanced specialised accommodation (“accommodation plus”); [accommodation of an overall nature required in order to make the care services feasibly able to achieve the statutory purpose]
  • the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); [this is no longer a safe statement of the law after the amendments to the MHA in the Care Act – see the Hansard debates which likely broadened the interpretation so as to cover any mental health condition] and
  • the “accommodation plus” reduces the risk of the person’s mental condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder. [ie the statutory purpose of aftercare now]
  • When accommodation is part of a person’s section 117 aftercare, it must be free to the person. [yes, when it is, but that does not include when a person chooses to take a tenancy to meet their own needs – they just need to know that they can, and are not limited to going where the council/trust s117 teams point to, which will only be places where services are already in situ and involve shared care] Councils and NHS organisations should not advise people to claim benefits such as Housing Benefit to pay for accommodation that is part of their section 117 aftercare.” [agreed – but the LGO has excused councils from paying that element of local government money back, ironically, as if it is all part of one pot alongside s117 funding!!]

It’s not clear here whether the parents merely paid for the services at the point of their daughter moving in, or for the services and an occupation licence, or whether they or Miss A signed a tenancy with a landlord and for the private company to provide support to Miss A.

If the whole package came through one contract, and the services constituted care, as opposed to support, it would have been a registrable care home.

Someone with a personality disorder probably needs prompting together with supervision regarding personal care and thus care, not merely support, but the LGSCO’s investigator does not explore that problem. It’s not clear even who paid for the accommodation costs in the private supported living setting. We are told that it was not the parents; and it was not the council and trust, so it must have been Miss A through Housing Benefit, we think. That tenancy was no doubt separate, on paper, from any contract for care, which is perhaps the answer to this registration conundrum.

It’s not clear either whether the reduction in support from 14 hours a week to three was on account of a lessening of need or because a resource allocation system had been scored differently to before, or simply on account of cuts. S117 care planning is needs led just like social care – not budget driven, in legal terms.

Anyone reading this report with a relative awaiting discharge needs to get legal aid for the person to get judicial review of the s117 planning function, if housing is not considered, no decision is made about the integral significance of the nature of the housing for the delivery of the statutory aftercare purpose; if the planning team even hints that the only option is a tenancy in an existing setting where services are shared, or if no competent assistance to apply as homeless to the housing authority is on offer. Those are the preliminary points that need to be PUT forcefully by anyone attending a discharge planning meeting, so that this sort of thing never happens again.

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 Milton Keynes Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/other/17-018-823

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Cornwall Council at fault for delays in providing support

Decision date: 08/01/20

What happened

Ms B suffered from multiple physical and mental health problems and had been in receipt of a care package of 42 hours per week from her unnamed local authority (Council D), prior to moving to Cornwall.

Ms B’s care was organised through a direct payment to pay a personal assistant (PA).

The 42 hours were made up of 35 actual care hours with a 7 hour contingency as Ms B’s needs fluctuated greatly. Her needs assessment from Council D listed a number of aspects of daily life that she needed assistance with, including the maintenance of nutrition and personal hygiene. Ms B moved to Cornwall to be nearer her daughter, a professional carer, who had agreed to provide her with care whilst personal assistants were found.

Ms B planned to move on 26 May 2017 but deferred it until July as she had become ill around that time. Council D had properly referred her to Cornwall Council and agreed to pay her direct payments for 6 weeks after the supposed move date. However, Cornwall Council. She called the Council on 10 July whereupon it re-opened her case, assigned her a social worker and began making arrangements for its own first needs assessment.

The needs assessment was not carried out until 15 August, which was also the date Council D ceased funding Ms B’s direct payments, due to the social worker having been ill. When she did finally meet with Ms B, she let her know that she would be on leave for the next three weeks. She also offered Ms B support from an interim agency while the Council finalised its plan and suggested she register with a local GP.

There were further delays and Ms B did not receive the assessment until 22 September. Cornwall Council had decided that she needed only 29 hours of care a week (a drop of 13 hours per week) but Ms B claimed that this would not meet her needs. The assessment was finalised in November and allocated 29 hours of care per week to Ms B with an emergency care fund of £285. The Council said it would review the plan in 6-12 weeks and that it would reimburse the outstanding direct payments from 17 August but only at the rate of 29 hours per week.

The Council’s finance team then undertook a financial assessment but Ms B did not receive any direct payments until 17 January, more than 2 months later. She had already complained to the Council at the end of November. It responded on 9 January to say it had not upheld her complaint. She complained to the Ombudsman about the delays she experienced in the Council’s assessment of her needs and then waiting for the support to be implemented.

What was found

Assessment delay

The Ombudsman noted the lengthy period of time it took Cornwall Council to start supporting Ms B. Most of the delay was attributed to sickness or communication issues and there was little active fault by the Council here. The social worker was found to have been acting completely in line with the Care Act 2014. However, there was no reason nor evidence provided as to why the Council took over 2 months to begin sending Ms B the direct payments.

Provision of support delay

Cornwall Council were obliged to continue meeting Ms B’s needs as assessed by Council D and were at fault for not doing so. It could not give the Ombudsman an explanation as to why it took away the offer of direct payments and instead offered direct support from an agency. Moreover, Ms B had complex, fluctuating needs accompanying a traumatic past and this should have clearly indicated that a direct service was unsuitable. Her daughter was providing her care and should have been paid for it.

Ms B was effectively without Council support from August 2017 to January 2018 and this was fault on the part of Cornwall Council that amounted to a sizeable injustice. Ms B’s daughter was also caused injustice as she felt obligated to continue providing her mother with the support she needed, but was not paid properly for it. The Council did backdate its direct payments but using the figures that it had decided on (29 hours a week instead of the 42 in line with Council D’s care plan).

Assessments

It is not the job of the Ombudsman to comment on the outcome of assessments, only to decide whether the relevant Council has taken the proper steps and followed the correct legislation. The Ombudsman did not find Cornwall Council at fault for deciding to reassess Ms B’s needs as this is in line with the guidance. However, it did fail to provide a written explanation of how it reached the decision to reduce her support, or to provide any form of calculation that resulted in 29 hours support per week being appropriate for Ms B. This is fault.

The Council also failed to review the plan after 6-12 weeks as it said it would.

Remedies

Cornwall Council have agreed that, within 2 months:

  • Write to Ms B, apologising for the injustice caused to her and to explain how it justified coming to the decision to reduce her care package by 13 hours
  • Pay Ms B £300 and the equivalent of 13 hours support per week, backdated from 17 August to 17 January. This is a significant amount and was likely to be worth over £3,000
  • Review Ms B’s needs assessment and care plan
  • Ensure that its staff are aware of the statutory guidance regarding continuity of care

Points for the public, service users, families and anyone moving from one area to another

We despair at this kind of plain ignorance of the Care Act. The law is really clear. We know there to be a case going through judicial review about this sort of thing. We have heard of one council saying “You can’t have the money you’ve been having for years because we can’t work out why they gave it to you, but we haven’t asked for the assessment and we haven’t done one of our own as yet”!

The ombudsman’s report sets out the law on continuity when a person moves from one authority to another:

  • If the second authority has assured itself that the adult’s intentions are genuine, it must inform the first authority. Both authorities must identify a named staff member to lead on the case and be the ongoing contact during the move. They should both make themselves known to the person and lead on sharing information.
  • The first authority must give the second authority a copy of the care plan and any other information the second authority may ask for.
  • The second authority must complete a needs assessment.
  • The second authority’s assessment must consider whether any preventative services or advice and information would help either person meet those outcomes. The assessments should also consider the individual’s own strengths and capabilities and whether support might be available from family, friends or within the new community to achieve their outcomes. In carrying out the assessments, the second authority must take into account the previous care and support plan which has been provided by the first authority.
  • If the second authority’s needs assessment or the cost of meeting the needs is different from the first authority’s care plan, the second authority must provide a written explanation of the difference.
  1. If the second authority has not been able to complete the assessment before the person’s move, then it should:
    • Meet the needs for care and support that the first authority has been meeting.
    • In meeting the needs, it must take into account the outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.
    • In deciding how to meet the needs, the Council should involve the person and their carer. The Council should take all reasonable steps to reach agreement with the person.
    • These arrangements must be in place on the day of the move and continue until the second authority has carried out its own assessment and put in place a care and support plan which has been developed with the person.
    • Where there has been a delay in the move because of unforeseen circumstances, both authorities should maintain contact with the person to ensure that arrangements are in place for the new date of the move.

The LGO said this:

The guidance says the Council should have continued to meet the needs for care and support that council D had identified in its assessment and had been meeting. These arrangements should be in place on the day of the move and continue until the second authority has carried out its own assessment. My reading of the guidance is therefore that the Council cannot significantly change the care plan until it has carried out its own needs assessment.

  1. Council D provided Ms B with 42 hours of support per week, via direct payments. This is what the Council should have put in place. The Council changed this to an offer of direct support from an agency. I asked the Council why it took away the direct payments and it could not give an explanation.
  2. The offer of direct support was not in line with the Guidance and the continuity of support the Council was meant to provide. There was no reason why the direct payments were stopped. There was no indication that Ms B had misused the direct payments in any way therefore she was entitled to direct payments if this was her preferred method.
  3. More importantly, there were clear indicators that a direct service was not suitable for Ms B’s needs. Ms B had fluctuating needs which meant that, on some days she needed more support than on other days. It was difficult for agencies to offer this level of flexibility which was why Ms B relied on personal assistants who she paid by direct payments. Secondly, Ms B had mental health problems and had suffered a traumatic past which meant that she could not have strangers/different carers providing her care. 
  4. However, the guidance says that, if there is a reduction in the support following an assessment by the second authority compared to the support by the first authority, then the second authority must provide a written explanation on how it has reached that decision. The Council has failed to do so and this is fault.
  5. There is no explanation on how the Council arrived at the figure of 29 hours or the reduction in support of 13 hours and this is fault. I appreciate that Ms B has fluctuating needs so it is more difficult to allocate hours to outcomes and I also appreciate that there was no explanation in council D’s care plan on how it arrived at the figure of 42 hours.
  6. However, as the Council is reducing the support it must have prepared a calculation on how many hours Ms B spends on average over a certain period on the support to meet her needs/outcomes. It must have some justification for the figures it arrived at and it should have written to Ms B to explain this in detail.
  7. There is also fault in the Council’s failure to explain its position relating to night care. The plan said Ms B was allowed 3 x 10 hours night support as an emergency only. In its response to Ms B’s complaint the Council said this was ‘for emergency support only, not routine’. Therefore, Ms B thought she was only allowed 30 hours nighttime support a year which she said was not sufficient.

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 Cornwall Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-003-073

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Norfolk County Council at fault for failing to give full and proper information regarding the cost of care and for not checking the care provider’s invoices

Decision date: 3/1/20

What happened

Mr K had been assessed by Norfolk Council as needing 7 hours of home care per week, split into 30 minute visits twice a day, which began in February 2018. The Council did not complete a financial assessment for Mr K until April 2018, when it was decided that his maximum contribution would be £81 per week. The charges were backdated to late February and increased to £96 from April onwards. They were then reduced to £60 per week until the end of May.

Mr K gave notice for the care being provided to stop, when he received the invoices, as the staff employed by the provider only stayed for 10 minutes on average. He did not feel as though he should pay for an hour’s care a day when in reality he was receiving less. Mr K agreed to pay for the care he had actually received but claimed that the Council had failed to tell him that he was to pay for the service.

The Council explained that the charges were due to an increase in Mr K’s personal contribution because of a reduction in his Disability Related Expenditure. It claimed that the amount of hours of care that Mr K fluctuated weekly and that he was rarely invoiced for the full amount. It also claimed to have confirmed the accuracy of the invoices with the care provider.

What was found

The Ombudsman found no fault in the time it took the Council to complete Mr K’s financial assessment or the delay in telling him about the charges.

The Council provided log sheets from the care provider which confirmed that there were inconsistencies between the amount of care provided and the amount of care charged for. This meant that the Council did overcharge Mr K several times, which is fault that amounts to injustice.

Furthermore, the Ombudsman found that the care provider had been rounding up the amount of time its staff had worked to the nearest 15 minutes. This in itself was not fault but it needed to have been explained to Mr K and the Council was not able to provide evidence that it had done so.

The Council’s claims that it had confirmed the accuracy of the hours worked by the care provider staff were false. The Ombudsman found the Council at fault for not properly checking the invoices, and this fault led to an injustice to Mr K.

Remedies

The Council has agreed that within 6 weeks, it will:

  • Review charges and provide an invoice for the actual hours worked. This invoice should charge a maximum of 15 minutes per visit due to the Council’s failure to properly explain the charges to Mr K.
  • Pay Mr K £50 for his time and trouble

Points for the public, council staff and charging officers

If this man was due to be having 7 hours of care a week, and the maximum he was assessed to have to pay was £96 a week, that is a charge of £13.71 an hour in early 2018.

That means that he was assessed to be a full cost payer, or very close to being a full cost payer (full cost meaning the full cost of the service as commissioned by the council.

If he received say only 3.5 hours a week, at £13.71, by ensuring that nobody ever stayed longer than 15 minutes, but was charged according to his charging assessment, he would then have been charged more by the council than the cost of what he had received, at that rate, in which case, that was unlawful, because there is an absolute prohibition on charging more than the cost of the service!

The LGO was told that the council had checked the invoices and that the charges levied had been correct but the LGO was obliged to disagree, having looked at them. So the charging officers were mistaken, at best.

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 Norfolk County Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-009-101

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Sheffield City Council and the CCG jointly at fault for delays in needs assessments and for failing to properly communicate and coordinate to reduce the impact of the lack of co-operation

Decision date: 28/11/19

What happened

Mr C is and was non-verbal, on the autistic spectrum and suffered from epilepsy and a brain injury. He lived at his home and was cared for by Personal Assistants (PAs) who need specialist training as he communicated through them using a letter board. He received care and support through the CCG and from Direct Payments funded by the Council in a split package.

Mr C’s mother, Mrs C, had provided all other aspects of care for him since the Independent Living Fund (ILF) was closed by the government in June 2015. At this point, Mr C contacted the Council with concerns over his worsening anxiety. He had requested an increase in his care package to fund another PA in order for his mother to act as a facilitator instead of actually providing personal care.

The Council agreed to reassess his needs and got in touch with the CCG to review how the funding for Mr C’s care plan should be split between them. A support plan created by his social worker in September 2015 documented the unfunded care provided by Mrs C and expressed the necessity for an increase in the support package to sufficiently meet Mr C’s needs. The CCG then assessed Mr C’s specifically healthcare needs in October as sufficient to warrant a jointly funded care package.

Nothing happened to get this underway, until March 2016 when a new care manager was assigned to review the plan. However, it wasn’t until December the same year that the CCG was contacted about considering 24 hour care for Mr C. The CCG felt they had been provided with insufficient evidence to support the need for a PA every night and offered only 1 flexible night a week. The care manager suggested that the PAs record what care they provided at night to show the necessary input.

The LGO said as follows:

  1. The support plan [September 2015] documents that Mr C explained he had “a direct payment that is used to employ PAs to support me throughout the day. There is currently not enough money in my budget to employ PAs to support me 7 days a week. My Mum supports me when the PAs are not working.” At this stage, Mr C employed PAs for six hours, six days a week, and a PA for five and a half hours on the remaining day. He also employed a PA to provide a sleeping night for four nights per week.
  2. The social worker completing the plan noted that Mr C required constant supervision during the day because of seizures and falls linked to his epilepsy. He noted that Mr C would be unable to press a button or trigger an alarm if he were alone. The social worker also documented that Mr C’s anxiety had increased, and this was a particular risk at night. He went on to say: “Due to Mr C’s health conditions he requires 24 hour support to ensure that he is safe and well cared for and all of his health needs are met… Currently the support package in place needs increasing to meet his needs. Without a care package in place Mr C’s health and wellbeing would be significantly impacted upon.”

A new care manager was assigned in May 2017 and yet another in September 2017. Meanwhile, Mr C’s mother became ill and unable to provide care for him and the Council temporarily increased Mr C’s budget through ‘Service Amendments’. Further amendments were issued in June, August and October of 2017 and January, March and July of 2018.

The Council completed a questionnaire which again stressed that Mr C’s support package had to be increased to meet his care needs. The CCG completed an annual DST review but declared there was still “insufficient information to carry out a social and health JPOC split”. Mr C complained to the Council about the suffering he had experienced as a result of the series of delays in reassessing his needs. The Council apologised and claimed that the process would be completed promptly, adding that it had acted on the delays by issuing temporary Direct Payment increases.

In July 2018 Mr C’s funding was increased as the joint support plan was authorised. He says he now receives the care and support that he needs.

What was found

The evidence suggests that Mr C’s care plan was left unreviewed for nearly 3 years and this is clearly not in line with the 12 month guidance in the Care Act 2014. These delays were attributed in part to the poor communication and cooperation between the Council and the CCG. Mr C was asked over and over to relay the same information to social workers and CHC assessors, and to provide evidence to the CCG and the Council about the level of care he required, despite 4 separate social workers stating that he needed more support.

The LGO said this:

  1. It is understandable that Mr C felt frustrated by these repeated requests, and that he found them intrusive and troublesome. He also told us receiving conflicting information from the Council and CCG was confusing, and caused him anxiety about how much his care might change or reduce. Mr C said he felt his and his PAs’ views on his needs were being ignored.
  2. The CSSG states that “information sharing should be rapid and seek to minimise bureaucracy… Particular consideration should be given to ensuring that health and care planning processes are aligned, coherent and streamlined to avoid confusing the person with two different systems.” It goes on to say that local authorities should “seek to work with health colleagues to combine health and care plans wherever possible… In combining plans… is it vital to avoid duplicating processes.”

The Council and CCG were both at fault in this case for failing to ensure that review processes were “aligned, coherent and streamlined”. There was more than once occasion when each body carried out similar reassessments of Mr C within 2 months of the other. There was no evidence provided as to why these could not have been conducted jointly. The Ombudsman felt that this was particularly concerning due to Mr C’s poor communication and that he was struggling with the reassessment process as early as 2015.

The LGO thought it was likely that Mr C would have received the increase in his care package sooner if he had been reassessed more quickly. This joint fault by the CCG and the Council therefore caused Mr C an injustice. Mrs C also suffered an injustice as she was left to provide unfunded care to her son.

Remedies

The Council and CCG have agreed that within four weeks, they will send a written apology to Mr C.

Within 8 weeks, they will jointly:

  • Pay Mr C £1500 in recognition of the care he would likely have received and for the distress suffered by the delay in reassessment.
  • Pay Mrs C £300 for the injustice caused by effectively leaving her responsible for Mr C’s care at certain points.
  • Undertake a review of their agreement to improve assessment and care planning processes for service users whose care is jointly funded.

Points for the public, CCGs, families, service users, advocates and councils

For many years it was not accepted by Primary Care Trusts when a person failed to qualify for Continuing National Health Service health care services that they ought still to be considered from the perspective of what specific inputs were such as to be the sort that the NHS ought to pay for, because they were not realistically to be expected to be provided and funded by way of social services (which are of course chargeable).

This CCG and council seem to have had a theoretical compact for joint funding but in reality, the local authority could never make the CCG come to a conclusion and take on the contracting or funding responsibility that a joint package entails. That is a failure of leadership at a senior management level and no doubt to do with the attitude in some parts of the health service that it will just humour local authority counterparts instead of recognising the impact on the individual patient or family.

What we cannot understand is why the LGO investigator did not award restitution of a much larger sum. If the shortfall of input was even only 8 hours a week over 3 years, the cost of that input would have been £12,000. Perhaps the mother did not wish to claim for the cost of the additional input, but there is a great deal of legal and ombudsman precedent in favour of that having been the right way to frame the redress for injustice.

Very few councils and CCGs that we know of even attempt combined forms of assessment. Very few councils even manage to combine different types of assessment all under the auspices of social services, let alone the assessments of another organisation, so that even combining children’s, carers’ and service user’s assessment within one process simply does not happen. We think that that is because the resource allocation algorithms don’t work across a combined number of clients or funders.

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 Sheffield City Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/17-019-772

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Leicestershire County Council for the quality of care at a home it commissioned and for failing to respond adequately to concerns

Decision date: 20/12/19

What happened

Mrs C was an elderly lady who lived at home with no care needs up until suffering a fall in June 2017, which led to her admittance to hospital. She was then discharged to The Elms Care Centre, Ibstock, initially for 4 weeks’ respite care but she subsequently remained as a short-stay resident. She later moved to be close to a relative in March 2018.

During the period she was cared for at the Elms, Mrs C had capital above the upper threshold but was not considered by the council to have capacity to manage her financial affairs. It therefore agreed to pay for her care whilst another of her daughters, Mrs B, tried to obtain legal authority to manage her finances.

Mrs B complained to the Ombudsman about a number of aspects of the quality of care her mother received whilst resident at the care home, when the council was commissioning the care. These are set about below.

Care Planning

The care provider undertook a ‘short stay care plan’ for Mrs C upon her arrival. The plan was brief, incomplete and reviewed monthly but it was not ever amended. For example, it failed to record all of her medicine prescriptions.

Separate risk assessments were undertaken by the provider for Mrs C’s skin integrity and for risk of falls.

The first of these assessments was carried out in August 2017 and was again reviewed monthly but never amended.

Of the two falls risk assessments, neither actually recorded Mrs C’s name. Both were incomplete or inaccurate and contradictory of each other.

The Ombudsman was provided with two review sheets of the risk assessments but the date of assessment recorded differed on each. Both claimed that the original assessments were ‘still reflective’ of Mrs C’s risk levels.

Mrs C’s falls

Mrs C suffered a fall at the care home on 4 September 2017, which is when one of the above risk assessments was dated. She was X-rayed at a hospital the next day which revealed a fractured wrist. The care provider asked Mrs B to pay £102 as the fee of a member of staff accompanying Mrs C to the hospital but did not chase for payment when Mrs B refused to pay. In the following safeguarding investigation by the Council, the staff member claimed that it was a manager who had told her to try to bill Mrs B.

Mrs C suffered a second fall at the care home in February 2018 whereupon the provider communicated with the GP who advised medication for pain if there was any.

The safeguarding investigation

Mrs B complained to the Council in April 2018 about the quality of care her mother received at The Elms Care Centre and about the Council’s management of the case.

The Council had commissioned a social worker to investigate the complaint as a safeguarding matter in May and it was completed in October. They delay was purportedly due to separate delays in the exchanging of notes between Mrs C’s old GP practice and her new one.

The investigation found that a pharmacist had tried to prescribe Mrs C with a tub of aqueous cream for her skin but that the care provider had told them it was unnecessary. However, the Council recorded no other faults with the home and concluded their investigation. It wrote to Mrs B in October to relay the findings. Mrs B got in touch with the Council in December and it was only then that it directed her to the Council complaints team and explained why and apologised for how long the investigation took.

Record keeping

The Ombudsman was not provided with any evidence of the Council having assessed or visited Mrs C after she first entered the care home. There were brief recordings of the fall Mrs C suffered but no evidence of the Council considering the matter further. There was also no record of any contact from Mrs B. However, Mrs B was able to provide evidence that she had contacted the Council about her mother’s fall on 7 September. She voiced concerns via email to the correct address of a social worker that she has communicated with before and after. The Ombudsman also noted that every single other email sent by Mrs B was recorded by the Council.

What was found

A CQC report based on an inspection in July 2018 found that care plans at the home lacked sufficient detail to support person-centred care. It also found that the systems in place to monitor the quality of care were inconsistent and that clients’ access to activities were limited.

The care provider was mostly at fault for its poor record keeping and review scheduling. This was a factor in Mrs C not being provided with the medical treatment she required after falling from her chair. The Ombudsman could not conceive how or why the care home failed to obtain an X-ray for Mrs C on the day it acknowledged having clear evidence of her pain. The lack of any kind of review of the risk assessments for Mrs C’s last 3 months staying at the home and the fact that neither of her risk assessments were accurate or complete reinforced the idea of a wholly chaotic approach taken by the care provider to how it recorded and responded to falls.

The Ombudsman considered the care home to have failed to comply with the fundamental standard in Regulation 12. It was also brought into question whether or not the provider met the standards of good management, set out in Regulation 17.

There was some concern with the adequacy of the Council’s subsequent safeguarding investigation as it did not pick up on the deficiencies of the provider’s record keeping. There was no evidence that the Council made an effort to prevent another attempt by the care provider to bill patients or their families for hospital appointments. It should have alerted the CQC to the provider’s practice. However, this fault was not found to have led to any direct injustice as Mrs C was in a safe place by the time the investigation commenced.

The Council’s management of Mrs C’s case was assessed separately to their safeguarding investigation. In order to meet her needs when she moved into the care home, the Council needed to have assessed or at the very least reviewed them. It failed to do so and this is fault which resulted in injustice to Mrs C and to Mrs B.

The Council was also at fault for failing to consider how it could investigate all of Mrs B’s concerns (Mrs C’s activities at the home, for example) or to assess its own management of the case. The Council failed to direct Mrs B to its own complaint procedure or to the LGO after its safeguarding investigation which amounted to further frustration for Mrs B.

Remedies

The Council agreed that it will, within 20 working days:

  • Apologise to Mrs B and Mrs C for the injustice caused to them
  • Write off 10% of the outstanding charges for Mrs C’s care
  • Pay Mrs B £500 to acknowledge the avoidable stress this has caused her

and within 3 months

  • Give its social work staff clear and consistent advice about its expectations of them when they are made aware of residents experiencing falls, in terms of record keeping and safeguarding referrals. Guidance on assessing the suitability of care home placements is also required.
  • Review care planning records for ALL residents of the care home

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

Points for the public and services users, as well as care providers

This is a shocking case of what goes on in some care homes. It reveals how the monitoring of care plans of publicly funded clients can sadly sometimes do nothing further to improve the chances of a resident getting proper care. Here, the idea of asking a social worker to sort out the problem through the safeguarding function, before even trying to treat it as a complaint may have been well intentioned, but it did not impress the LGO.

We think that this report bodes poorly for the chances of clients during Covid-19 if they deteriorate in a home where it is similarly chaotic – eg for getting an ambulance or getting admitted to hospital.

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

https://www.lgo.org.uk/decisions/adult-ca\re-services/charging/19-001-489

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London Borough of Croydon at fault for delays in making housing adaptations, inadequate communication and poor complaints handling

Decision Date: 10th January 2020

What Happened

Mr G complained on behalf of Mr and Mrs H.

Mr H and had been a resident of a neurological care centre since 2013 after suffering a severe stroke. Mrs H visited him at least 5 times a week, which involved a round trip of over 70 miles. She was also a wheelchair user.

In 2015 Mr and Mrs H applied for re-housing. After events the LGO declined to go into, due to time limits for late complaints, they were awarded Band A status on the housing register.

In January 2018 the Council found a property for Mr and Mrs H. It allocated it to them on 19 April.

On 17 May, Mr and Mrs H accepted the property after visiting it with an officer from the housing department (officer 1).

The Council did not send Mr and Mrs H a letter confirming their acceptance of the accommodation until August. There were no records of any meetings the officer had with Mr and Mrs H either.

The property needed major adaptations before Mr and Mrs H could move in. The adaptations required planning permission, which was granted on 20 July.

On the 28th September Mr and Mrs H visited the property with Officer 1. They said that she advised them the works were due to start on 1 October. The Council also kept no record of this visit.

On the 7th of February 2019 Mr and Mrs H complained to the council, as the works had not started yet, and the Council had not contacted them since officer 1 visited in September the year before.

The Council responded to the complaint on 1 May. It advised the delay was because of having to draw up plans and get planning permission. It advised work had started and should take about five and a half months.

On 7 May 2019 Mr G complained to the Ombudsman on Mr and Mrs H’s behalf.

What was found

The Council highlighted that due to Mr and Mrs H’s circumstances and specific adaptations they needed, it was a challenge to find somewhere for them to move to. It said the adaptations cost over £350,000. The LGO considered that these facts indicated the extensive nature of the adaptations, so there was always a large likelihood that there could be a delay between Mr and Mrs H accepting the property, and them actually moving in.

However, the LGO calculated the delay to be 6 months. It identified the start date as October 1st 2018 (because Officer 1 told Mr and Mrs H works were due to start on the house then), but the works did not actually start until the end of March 2019. This was fault.

Furthermore, the lack of records and communications with Mr and Mrs H was extremely poor. This was fault. The LGO stated that at the very least there should have been a record of the meetings Officer 1 had with Mr and Mrs H, and definitely should have been regular updates to Mr and Mrs H.

Finally, the Council’s complaint response was inadequate. It stated that the delay was due to gaining planning permission, which was factually incorrect, because it was already granted, and the works did not start until seven months after. This was also fault.

The LGO considered that the avoidable delay in the starting the work had a significant impact on Mr and Mrs H, so the LGO recommended the Council pay between £150 and £350 per month for delays in housing adaptations and £250 for distress and uncertainty.

All in all the LGO recommended a total payment of £2350.

Points for the public and councils

We cannot believe that the adaptations cost £350,000. We don’t know of any council that would invest that sum of money in rented accommodation in order to get someone out of a setting where their needs were being met. We think it might have been £35,000. There is no explanation of exactly how the council behaved so ineptly, which is frustrating.

The recommendation for compensation refers to the Guidance that the LGSCO has set out for itself and shows how, in a suitable case, the ombudsman will put the amount up to the top of the ‘tariff’.

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 Croydon’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/other/19-001-861

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