Archive for Local Government Ombudsmen’s Reports

London Borough of Tower Hamlets at fault for failing adequately to consider appeals relating to disability related expenditure

Decision Date: 18/03/ 2020 

What Happened

Mr Y complained on behalf of Ms X. The LGO report did not state the relationship between the two. 

Ms X had been receiving direct payments for home care. In October 2017 the Council carried out a financial assessment and concluded that she should contribute £66.26 per week towards her care. In this assessment, Ms X stated that her only disability related expenditure (DRE) was that she used a taxi card. The report does not indicate what information Ms X was given in advance of the assessment. 

After she was told the amount she should contribute to her care, Ms X appealed against the decision, and listed numerous additional items she wanted to be taken into account as DRE. 

The Council carried out another charging assessment at the end of 2017, and found that her contribution level should not change. 

Again, Ms X appealed in January 2018. She listed the DREs she wanted to claim and the expenditure for each one. These included a special diet (as she had diabetes), supplements, special footwear and a special mattress. The list also included travel expenses.

In March 2018 the Council reassessed Ms X’s DREs, and allowed for an additional £5 per week. This reduced her contribution to £61.26, backdated to the end of 2017. This financial assessment did not include details of which DREs the Council allowed, and the LGO deduced that the Council did not include travel expenses as a DRE. 

Ms X appealed the decision once more. 

In May 2018 the Council carried out another reassessment, and this time allowed for £28.12 in DREs (for Ms X’s shoes, dietary needs and mattress). Ms X’s contribution was therefore reduced to £38.14 per week.

Ms X asked the Council why it did not regard travel and dietary supplements as DREs, and in June Mr Y provided additional evidence to the Council regarding expenditure on dietary supplements. The Council responded with a further financial assessment in August and allowed a further £10 a week for her dietary needs, reducing her contribution to £28.14 per week, backdated to October 2017. 

Every time the Council reassessed Ms X, it suspended its invoices.The LGSCO did not focus on whether the Council wrote to Ms X to inform her that a debt was accruing, nor is there evidence that it proposed she commence making a nominal payment.  Therefore Ms X did not pay a contribution during those times, so accrued arrears of over £1400. Ms X appealed and asked the Council to waive the arrears.

The Council’s appeal panel decided not to waive the arrears. Ms X was advised to contact the Council’s debt recovery team to arrange a repayment plan. 

Ms X complained that the Council took too long to complete the reassessments, which the Council accepted and offered a payment of £100. 

What was found

The LGO considered that the Council did not give adequate consideration to Ms X’s appeal and request for DREs in January 2018. This was fault. It could have requested more information regarding the DREs she was requesting at that point, rather than in May 2018. 

This fault caused an unnecessary delay in reaching a decision on the DREs. This delay caused Ms X uncertainty in knowing what her contribution would be, and time and trouble bringing the complaint. The LGO recommended a further £100 payment on top of what the Council had already offered. 

The LGO did not consider that the Council should waive her arrears, because she would always have had to contribute to her care, regardless of the delay. 

The LGO recommended the Council apologise to Ms X and take £200 off her arrears in order to reduce them. 

It was also told to review its procedures for considering requests for DREs to ensure officers give adequate consideration to requests, including promptly seeking any additional information required, to avoid the delays experienced by Ms X. 

The Council should also ensure it keeps proper records of its decisions on DREs and reasons for those decisions. The Council should then inform the Ombudsman of the action taken to improve its practice in this area.

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

The Department of Health statutory guidance sets out factors that can be included as DRE and it can be found here:

https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#charging-and-financial-assessment

A key point from this complaint is that there is no appeal provided for, within the charging system, other than a complaint – hence the repeated financial assessments that took place in response to Ms X raising a complaint about the amounts she had been assessed as having to pay towards her care. 

The person in that situation either has a review of the financial assessment or makes a formal complaint, or refers the matter to the Council’s Monitoring Officer as an indication of potential judicial review proceedings regarding the decision made by the Council if there is an underlying legal challenge. It appears that this complaint reflects a situation many people might find themselves in when they have not been given information in advance about DRE and financial assessments, only to be ground down by repetitions of the same process and (potentially more mistakes) to work out what they should or should not be paying.

We think it makes sense for councils’ charging officers to take note of the hint from para 10.86 of the Care Act Guidance  that when something is disputed or challenged, it makes sense to look back – ie do a management review of the earlier parts of the process to see where one might just have gone wrong. That is what addressing a customer’s perspective is all about!

Each time the amount Ms X challenged the contribution amount, she provided no further additional information on the DRE than had already been supplied. The Council simply failed to consider all of the information she had provided, each time it assessed her financial contributions. 

The LGSCO did not recommend any financial remedy for Ms X other than £100 for the uncertainty and time and trouble for each time she had to “appeal”. This was in addition to the £100 which the Council had already offered her. The LGSCO found that since she would have had to have paid towards the cost of her care anyway, she was not financially inconvenienced because of the Council’s failings. This is an important point, which highlights that even where a council’s process creates fault, this does not mean that a person will have their contribution waived. 

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 Tower Hamlets actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-008-359

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Royal Borough of Kensington and Chelsea at fault due to poor communication, delay in assessments and delay in care and support.

Date of decision: 18/03/ 2020

What Happened

Ms X complained on behalf of her grandmother, Mrs Y.

Mrs Y had previously had a council funded care package, which included 3 care visits per day.

In December 2018, Mrs Y was admitted to hospital after a fall. Before she was discharged back home, an assessment identified that Mrs Y needed two carers to visit 4 times a day, and for a hospital bed to be put in her home.

Mrs Y’s family made a number of complaints about the preparation for going home and about care that she received after being discharged on the 14th February 2019.

  • The day Mrs Y arrived home, she complained that she was left sitting on her chair from 5pm until 7pm when the carers arrived.
  • Mrs Y’s family thought she needed additional equipment, including a fall sensor.
  • Ms X said that the carers were leaving Ms Y in a high backed chair between visits, which made her feel unsafe.
  • Ms X also complained that the carers were not arriving on time, nor doing the chores they should.

There was no evidence that the Council ever responded to Ms X’s concerns or requests.

The Council were also unable to provide the LGSCO with evidence that an Occupational Therapist was consulted when assessing Mrs Y. 

Mrs Y was admitted to hospital again on the 5th March after falling out of bed.

Before she was discharged, a social worker assessed Mrs Y’s capacity. During this meeting Ms X highlighted that she was concerned Mrs Y did not have a continuity of carers, and they were not doing enough to get Mrs Y up and motivated. From the report, it seems that Ms X expressed these concerns to the social worker during the meeting. Again, there was no evidence the Council considered her statements.

On the 19th March an assessment concluded again that Mrs Y needed two carers, 4 times daily. It said that an OT would review her needs when she was at home. Mrs Y was discharged the next day.

For reasons not explained in the report, Mrs Y was admitted to hospital again on the 25th March, which was before the OT could visit. Ms X complained to the Council. She, again, raised concerns about the carers, stating that they had failed to complete the log book, left Mrs Y without food and drink and Mrs Y had suffered numerous falls

On the 29th March Mrs Y left hospital. Mrs X asked the Council who would be providing the care, and the Council told her it would be the same care agency as before, but they would review the situation in the following days. The report did not explain the reason for continuing with the same agency, and the LGO found no evidence the Council considered the quality of care provided, or updated Ms X on any review.

At the end of April, Mrs Y was admitted to hospital for the fourth time (again the report did not clarify for what reasons); once more, Ms X complained to the Council about her concerns surrounding the care she was receiving.

The Council completed a care and support plan on 22 May which said Mrs Y would be bedbound and cared for in bed, and that an OT will later assess her. Ms X challenged this position in June, stating that she should have a hoist, and that she already had severe pressure sores.

Mrs Y was due to leave hospital on 21 May but after contacting her family, the hospital found they were unaware of this, so delayed discharge until 23 May.

On 24 May Mrs Y’s family asked for the Carers to lift Mrs Y out of bed to alleviate the sores, but the Council said the OT would have to make an assessment first, which was arranged for the 6th June.

By the 23rd June an OT still had not visited, and Ms X complained to the Council about the lack of appropriate care and equipment.

The OT visited on the 27th June and ordered a mobile hoist to assist Mrs Y to leave her bed. We do not know how long it took to put this support in place.

Mrs Y went into hospital again on 3 July, and the hospital raised safeguarding concerns.

A multi team meeting on 9th July stated Mrs Y sores may have arisen due to lack of care from carers as reported by Ms X.

On the 14th August Mrs Y was discharged to a care home to continue treatment of her pressure sores. The LGO did not go into further analysis as to whether this was avoidable, or how the decision was made.  

The Council recorded the hospital’s safeguarding alert on 19 August (they had raised concerns on the 4th of July). It stated Mrs Y’s pressures sores deteriorated while at home despite the care package and district nurse involvement. The Council decided to fully investigate the concerns. It planned a safeguarding meeting on the 30th October, but it did not actually take place until mid-December because of a lack of availability of relevant persons.  

Ms X sadly passed away on 4th October.

The safeguarding meeting concluded that:

  • The allegation of neglect was substantiated.
  • There was evidence of a multi-agency delay in the provision of care and support.
  • The neglect could have been avoided if the care was organised in a timely manner by Community Health and the Council.
  • The cumulative result of lack of communication, delay in assessments by the District Nurses, Social Work Team and Occupational Therapy service, amounted to neglect in care.
  • However, the neglect did not cause or accelerate Mrs Y’s death.

As a result, the safeguarding team stated:

  • Different services should coordinate more robustly with each other and respond more swiftly in case of emergencies.
  • The communication between hospital and community-based service needed to improve to avoid delay in assessments and service provision.
  • The Manager asked the Council to complete a Lessons Learnt exercise and an Action Plan for improvement

The Council agreed it should have responded more swiftly. It said they would do this by using an escalation process to inform the manager in case there is a risk of neglect or delay in service provision.

What was found

There was no evidence the Council actually considered or responded to Ms X’s repeated concerns about the quality of care provided. This was fault.

The Council did not always complete OT assessments at the appropriate times in order to ensure she would be safe at home after discharge from hospital. This was fault.

Mrs Y was bedbound when she left hospital on 23rd May and therefore at risk of pressure sores. The OT did not assess her and order a mobile hoist until 27 June. This was fault.

Overall, the LGO stated that the Council neglected in its care of Mrs Y due to poor communication, delay in assessments and delay in care and support. This was fault.

Despite this, the LGO could not recommend a remedy for Mrs Y, as she had since passed away. Furthermore it could not say that the Council’s actions caused her death, as the Coroner’s Court was the appropriate place for that sort of finding.  It did however recommend that the Council pay Ms X £500 in recognition of the distress and uncertainty she suffered.

The LGO was satisfied that the Council had sufficiently recognised its faults, and the need for better communication with service users and family members. It had already started working on an action plan to address faults with delays and service provision, which the LGO asked for a copy of.

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

This Council initially failed to assess Mrs Y’s needs properly upon discharge from hospital.

There was no evidence that the Council involved the right professionals at the right time which would have included the input of an occupational therapist (OT).

Mrs Y’s family expressed concern that she had been discharged without equipment and identified soon after discharge that the care provider was failing to meet Mrs Y’s needs, which included leaving her sat in a chair. 

These concerns were not taken seriously by the council, in fact the LGSCO could find no evidence that the Council responded at all. The only explanation must have been shortage of staff: the report is redolent of NON-discharge of functions, not merely poor discharge of what was expected of any council.

In fulfilling its legal responsibilities, councils’ members have a duty under s.6(6) Local Authority Social Services Act 1970 to ensure that where they have appointed a Director of Social Services, the authority ‘shall secure the adequate provision of staff for assisting him in the exercise of his functions’.

This complaint highlights a shortfall in this area that resulted in significant risk to Mrs Y’s well-being.

This complaint covered a period in which Mrs Y had several falls resulting in hospital admission. Had the Council responded properly when concerns were first raised and reviewed her needs, it would have recognised that this lady was at risk of falls and provided a care plan that was sufficient to meet her needs and ensure her safety. Unfortunately, when the OT did get round to visiting in March 2019, Mrs Y had suffered another fall and was further admitted to hospital.

There were further delays in OT input following later hospital admissions and coupled with delays in input from community health services and social work involvement, the safeguarding meeting in October 2019 quite rightly found that neglect by the care agency was substantiated but exacerbated by the cumulative effect of poor joined up working.

Upon discharge in March 2019, Mrs Y received care from the same agency. Ms X complained again about the quality of care, but there is no evidence that direct payments were offered to enable Mrs Y to have a choice about who supported her. There was also no evidence that Ms X was ever given information about how to make a safeguarding referral. The Care Act 2014 (S.4(2)) outlines the responsibilities of councils to ensure that they establish an information service that must provide:

…information and advice on the following matters in particular—

  • the system provided for by this Part and how the system operates in the authority’s area,
  • the choice of types of care and support, and the choice of providers, available to those who are in the authority’s area,
  • how to access the care and support that is available,
  • how to access independent financial advice on matters relevant to the meeting of needs for care and support, and
  • how to raise concerns about the safety or well-being of an adult who has needs for care and support.

After further admissions and further complaints about the care agency, as Mrs Y had developed significant pressure sores, a multi-agency meeting resulted in a safeguarding referral being made in July 2019 which then took the Council four months to respond to! Ms X had already been raising concerns since February 2019 which in our view represents an unconscionable delay.

For a person experiencing that a council that will not listen to concerns raised there is a further option little known of, by those with a complaint, in our experience. Under the Local Government and Housing Act 1989, councils are required to appoint a ‘Monitoring Officer’. This person has the role of ensuring that councils carry out their functions lawfully, which includes a duty to report to Members if there is a contravention of any local government related statute or rule of law.  Contact with the Monitoring Officer to identify where a council is failing to meet legal obligations may be sufficient to draw prompt attention to issues such as a vulnerable person’s safety.

Mrs Y sadly passed away in October 2019, before the safeguarding meeting took place. The LGSCO considered that a personal remedy for the distress she experienced at the hands of the council would have been appropriate had she not passed away. We at CASCAIDr suspect that this would have been a significant financial remedy in lieu of the poor quality care and support provided to Mrs Y by this council.

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 the Royal Borough of Kensington and Chelsea’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/19-008-936

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Lincolnshire County Council, Lincolnshire Partnership NHS Foundation Trust and Lincolnshire East CCG found jointly at fault for failing to work together properly with regard to s117 aftercare

Decision date: 24/03/20

What happened

Support

Ms P complained that failings from Lincolnshire County Council (the Council), Lincolnshire Partnership NHS Foundation Trust (the Trust) and Lincolnshire East Clinical Commissioning Group (the CCG) resulted in her not receiving 30 hours of PA support between April 2017 and May 2018.

Ms P was entitled to s117 aftercare having been previously detained under section 3 of the Mental Health Act 1983. She received agency support up until March 2017, when it gave notice. She made a request to her social worker at the time to advertise for a PA but was told to go through an agency and that she needed ‘more specialist support.’ A psychologist working with Ms P told the social worker that their view was that Ms P did have the capacity to employ her own PA.

Ms P complained that she had made several more requests to advertise for her own PA due to bad experience with agencies but they were refused each time. The psychologist told Ms P that she did not know why requests were refused. Later in the report, the social worker had indicated the need for Ms P to have agency support to cover sickness and other absences.

The trust began looking for specialist agencies to support Ms P as a previous care agency had expressed concerns about her behaviour. It failed to make a decision about whether or not she could manage employing a PA.

The Trust was acting under delegated authority by way of agreement under s.75 NHS Act 2006 as often exists with integrated community mental health services. In carrying out its delegated functions, the Trust liaised with the CCG as Ms P’s care was to be funded jointly by health and social care. The decision taken was that notwithstanding the points made by the social worker about absence cover, an agency would ensure that support staff were supported and supervised.

An agency was found to be suitable for Ms P in June but she missed a meeting in July and then said she did not want to use it. Ms P had expressed her unhappiness at the trust sourcing a ‘specialist agency’ to provide her support.

In a meeting with ‘The Bureau’ – a company supporting people in the area to manage Direct Payments and employ PAs – in August, professionals agreed with Ms P that she could use an agency for 15 hours a week and employ a PA for another 15. However, 30 hours were advertised to local agencies

Ms P rejected all applications for the role as her PA in September, October and November. She said she was reluctant to consider interim support which was offered by way of social care assistant until the planned support had been sourced. Ms P did not want to build a relationship with a person who was not in a permanent role and had expressed this much earlier to the psychologist.

In December, Ms P accepted support from an agency and said she would no longer look for a PA. The report is unclear as to how this decision was taken, but outlines Ms P having rejected care agencies and a multitude of personal assistants. However, support had still not begun by February 2018 due to a string of meetings cancelled meetings by Ms P. The agency said it couldn’t proceed with the support.

In February 2018, Ms P made the decision that she wanted to receive 15 hours of support from a PA and 15 from a care agency but then cancelled several care agency appointments.

The Bureau advertised again in April 2018 for 30 hours of support. Ms P employed a PA from May. At this point, Ms P was still being permitted to decide that she wanted to recruit a PA again.

Assessments and information sharing

Ms P complained that social care assessments were carried out without her knowledge or proper involvement and were based on inaccurate, out of date information about her diagnosis. She said that her records from the Trust contained an assessment, which included a mental health diagnosis that she did not have, dated in February 2017. She said the social care assessment incorrectly said she had attacked others, took a knife to a social group for unknown reasons, and included that she had a mental health diagnosis she did not have. The Trust later apologised to her for misrepresenting her mental health diagnosis in documentation.

Ms P’s social worker emailed her psychologist in June to apologise for any upset caused to Ms P. She claimed that she had been told that assessment meetings caused Ms P unnecessary stress and that she had decided not to put her through this and to complete the assessment in order to organise funding.

Then, in August 2017 Ms P met with the social worker who said she would amend the assessment. However, she amended the ‘needs’ section when that had not been discussed at the meeting. The social worker said she did not know how it had happened and that she would correct it, but failed to do so.

Ms P met with her new social worker in January 2018 and complained that the assessment had still not been amended. The same happened again in June and then in July.

The Trust apologised to Ms P in a complaint response and acknowledged that it had shared irrelevant and inaccurate information with others. The new social worker sent out an amended support plan and risk assessment in August.

s117 meetings

Ms P complained that she was asked to attend ‘s117 meetings’ in September 2017 but that they were then carried out without her presence after she was told they had been cancelled.

The Trust claimed that Ms P’s psychologist had emailed on the day of the meeting to say that Ms P was unable to attend. The professionals went ahead and met anyway, but carried out the assessment of her needs at a later date.

Community Mental Health Team (CMHT)

Ms P complained that she did not receive adequate support for her needs from the CMHT. She said that she had not been accepted as she fell under the remit of the learning disability team, but that she was told otherwise by the learning disability team as she did not have a learning disability. The eating disorder service she was referred to told her to see an autism team. Ms P’s case was passed around divisions of the Trust many times, including at least two separate crisis teams.

Ms P missed her CMHT assessment in May 2017, although the report does not state why. It wrote to her in June to say if she had not made contact by the end of the month it would discharge her.

There was confusion around whether or not Ms P was on the Care Programme Approach (CPA). In September, the psychologist brought it to the attention of the CCG’s case manager who agreed Ms P should have a care co-ordinator allocated.

Ms P was assessed by the CMHT in late October. It spoke to her social worker in November and said it was unclear what role it could have in her support. It said Ms P’s needs were social care and that it had no record that she was entitled to s117 aftercare. Ms P’s fast-track access to the CMHT had expired and it no longer offered this long term. It said it would request further information from the psychologist to aid its decision but there was no evidence that it had done so. It told the psychologist that Ms P could access the crisis team. However, the crisis team had made it clear that it would not accept a referral for Ms P.

What was found

Support

The Ombudsman found that the Trust was entitled to decide that Ms P’s PA support should not be paid for through Direct Payments but that they had not made the decision in line with the guidance. It should have documented its decision and its rationale for its decision. There was no evidence that the Trust came to a decision until September, when the Bureau had advertised 30 hours of support. This clearly caused Ms P distress and uncertainty. The report does not indicate why Ms P was not offered the option of direct payments.

There was no evidence that the Trust stopped Ms P from hiring her own PA so the Trust was not found at fault for the lack of support between April and May 2017. Furthermore, support was available to Ms P from July through an agency but she chose not to accept it.

Assessment

The Trust should not have reviewed Ms P’s needs assessment without her knowledge or participation. It also failed to provide her with a copy of the assessment. This amounted to fault and would have caused Ms P an injustice in the form of distress. Had she been involved in the assessment, the incorrect diagnosis would not have been sent out to agencies, which was further fault. It took the Trust far too long (a year) to update the assessment.

s117 meetings

The CCG completed a health needs assessment for Ms P in 2014 and failed to do so again until 2019. This assessment was a mechanism for the CCG and social care to determine the split of funding for s.117 aftercare services. The LGSCO found this as fault as the delay would have caused Ms P frustration.

CMHT

s117 aftercare should be planned through the CPA framework and there was no good reason for this not to have happened.  Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT).

The Ombudsman was concerned with the number of times that Ms P attempted and failed to receive support from the various sections of the Trust and that she was denied so often because of inaccurate information on her records. The Trust was at fault for failing to ensure that its teams worked properly together in Ms P’s best interests. This was fault which led to more distress.

Remedies

Lincolnshire County Council, Lincolnshire Partnership NHS Foundation Trust & Lincolnshire East Clinical Commissioning Group will, within 1 month, jointly:

  • Write to Ms P to acknowledge and apologise for the injustices caused to her.
  • Pay Ms P £250 each in recognition of these

And within 2 months, senior officers from all three organisations will jointly investigate the faults in Ms P’s care and agree on how to prevent similar outcomes in the future.

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

This complaint centred around the Trust acting in its delegated capacity to manage the individual’s aftercare planning. This included the requirement to start aftercare planning as soon as possible after admission, in accordance with the Mental Capacity Act Code of Practice. Had that been done for Ms P, with a proper and accurate assessment of her needs the many months of attempted and failed recruitment of both personal assistants and care agencies could have been avoided.

A person entitled to s.117 aftercare services does not fall into the exempt categories within Schedule 1 Care and Support (Direct Payments) Regulations 2014 so it is unclear as to what the factors really were that led the Trust and CCG to believe that using an agency to support Ms P for 30 hours a week was the best route. Decisions were made without a proper assessment of her capacity to recruit or work with a PA. The Trust’s reasoning on direct payments when pushed was this: it was in her “best interests to have an agency involved to provide continuity in the event of staff sickness or unavailability…support workers should have access to support and supervision and this is more easily provided by an agency”.

It has to be said that Ms P was reluctant to engage with support and appointments. The LGSCO identified this when the investigator said:

“However, I must take into account that from June/July 2017 support was available to Ms P (through an agency) and she chose not to accept it. There is evidence of numerous attempts by the Trust to secure agency care throughout the period Ms P complains about. This did not go ahead for various reasons. Even once the Bureau advertised for a PA in September 2017, it took months to find an applicant Ms P was happy to employ. That was not within the Trust’s control. There is no way of knowing whether Ms P would have successfully recruited a PA had an advert been placed sooner.”

The report indicates that Ms P’s mother tried to cover the gap in care and support but found this difficult because of her own health. The LGSCO found evidence that the Trust had agreed to offer her a carers’ assessment but there was no evidence that it did.

Ms P complained that an assessment took place which did not involve her. Whilst involving the person sits under the Care Act 2014 for needs assessments, this is only cited as good practice in the Mental Health Act Code of Practice for s.117 assessments.

The information that was drawn into a needs assessment contained incorrect information. Records had identified that there was no evidence of Ms P behaving aggressively for over ten years, yet this risk was still stated in her assessment. Any prospective care provider would have been concerned at the risks involved with supporting someone with such paperwork. The Trust rightly apologised for these failings.

There was evidence of confused responses in relation to Ms P, with different departments finding it difficult to determine who was best placed to support Ms P. She was passed between the CMHT, Learning Disability services and the crisis team.  She also received support via the eating disorder service. There was additional confusion as to whether she was supported using the Care Programme Approach.

The Mental Health Act Code of Practice (chapter 34) sets out when the Care Programme Approach should be used:

  • 34.6  The CPA should be used in secondary and tertiary mental healthcare to assess, plan, review and coordinate the range of treatment, care and support needs of those people in contact with secondary mental health services who have complex needs. Active involvement of and engagement with the patient are at the heart of the CPA, which focuses on reducing distress and promoting social inclusion and recovery.

The Trust showed a poor understanding of its responsibilities towards Ms P. The Code also requires the Trust to maintain a record of all those entitled to s.117 aftercare, but in the latter part of the report, the CMHT confirmed that it did not have a record of her statutory entitlement despite having received a referral on that basis some three years earlier.

The CMHT also failed to recognise this status as it decided it could not work with her as she had ‘social care needs’. This meant that Ms P may not have received the support she should have done, based on the CMHT judgment that she had no ‘health’ needs, clearly oblivious of her s.117 entitlement.

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 Lincolnshire Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-012-682

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Overview of common LGSCO complaints areas

Transitions

Transition is about the transfer of a child from children’s services to adults’ social care services when or around the time they turn 18. The two types of service are governed by different statutes (laws) and even the health service treats children’s health and mental health services differently to the way in which adults’ continuing health care and adult psychiatric care is rationed.

The LGO has investigated many instances of delay and apparent lack of grasp on the part of transition social workers as to what they are supposed to be doing at this point, or the way in which adults’ services, in their own councils, actually work. 

Many of the reports in this section involve delay in transfer and remaining on children’s packages (ironically often more generously funded) for a very long time for no good reason, plain lack of transfer to other agencies’ adult services such as Adults’ NHS continuing health care and a tendency to fall back on parent carers for want of appropriate provision presenting itself, some of which issues, we think will be price related, as opposed to existence related.

Restitution (reimbursement) of what others have spent on the young person’s needs, or the value of work done other than informally, in default, can sometimes be reclaimed in these situations.   

In some cases, a move of the parent from one area to another, or the need for the child to be differently accommodated, to how they were when they were in foster care or a children’s specialist facility, leads to ordinary residence / responsible NHS  commissioner disputes as well – and these are complex because there are always at least two different statutes butting up against each other here – often more, when you factor in Acts governing education which can go on to 25, and health care provision. 

When transitioning between Children’s and Adults services, the Care Act 2014 places a duty on Local Authorities to conduct transition assessments for children, children’s carers and young carers where there is a likely need for care and support after the child in question turns 18, and a transition assessment would be of ‘significant benefit’.

There should be no gap in services – children’s services continue, in legal terms, unless or until adults’ services are ready to take over, in terms of a person’s legal rights. Para 16.68 of the Care and Support Guidance says, if adult care and support is not in place on a young person’s 18th birthday, and they have been receiving children’s services (and should be receiving adult services), a council must continue providing the existing services until the adult services are in place, so there is no gap in provision.

Supported Living

“Supported living” is not a service that is listed as something that a council can even try to provide: it can procure care and support and accommodation, but when engaged in stimulating the market for supported living, councils largely procure the care and support element, merely to go into the accommodation where the person is living, usually under a tenancy.

It is often commissioned on a different basis to home care, (by the week and a generalised set of outcomes, as opposed to by the minute or by the task) so as to ensure that the person has access to support, for a number of background hours, all the time, from at least one person (shared care). It is a legal mystery that has never been gone into, in any decided case, as to HOW a person is ever assessed as needing a fraction of a person’s support for certain hours of the day, given that there is no such thing as a fraction of a person, or a need that might not pop up at night, and a person cannot be made to share their personal budget without agreement (see s25). It’s an example of how a given market of providers and a given purchasing sector of commissioners manage to support each other to ignore the Care Act in the interests of making or saving money.

Councils are not obliged to FIND a person’s housing, as a social service, in the main, and in fact are prohibited when a local Housing Authority owes a duty, unless exceptionally the specialist nature of the housing and the fact that it is provided and not tenanted is regarded as the only way in which the person’s needs can or will be met. Since the vast majority of not merely destitute but eligible people’s needs for shelter as opposed to care could be met in a care home, as opposed to ordinary housing, and most other people’s needs for shelter can be met by their being supported to enter into a tenancy paid for by housing benefit, there are very few people owed a duty of formal provision of ordinary housing as part and parcel of social services. Therefore, going into a tenancy that the client has been signposted to, along with other people who are already living there, is ultimately a choice, and what is not ever made clear to the clients and the families hoping for a forever home for their loved ones, is the basis on which other rights (to a proper care package, for instance) will be compromised if one says yes.

The LGO does not venture into criticising the way in which the market works in this field but has begun to point out that people MAY WELL qualify for the provision of housing, and not be able properly to be persuaded into taking up tenancies with individual rental payment obligations – particularly in the field of s117 aftercare.

Furthermore, it is not possible for a council to make a person go into any tenancy without the person’s own agreement or the agreement of a lawfully authorised person (unless the council takes on deputyship and acts in ways that are genuinely thought (defensibly and procedurally correctly) to be in the best interests of the person).

The LGO tends to focus on delay in coming clean about the primacy of the Housing Act through which people can be expected to find housing, in the majority of cases, and on inadequate support having been assessed for, in the interim before housing is secured, or withIN supported living housing projects.

Transport

Transport may be required in order to make a care plan’s contents even feasibly accessible. On the other hand, broader transport functions can be owed to a person via education duties, district council powers, tourism functions, children’s services and adults’ prevention and reduction services.

Transport is often seen as a way in which relatives can or even should contribute, by doing the driving, themselves; often regardless of the principle that they have to be willing and not just able!

Finally, the charging regulations treats transport as a non-care service, and allow councils to charge full cost for them, if included in a person’s care plan or budget, and to do so even if that charge takes the person below their minimum income guarantee, thereby complicatedly incentivising a person to spend their own money (usually their mobility component, which would otherwise be invisible!). So it’s a fraught topic for service users, families, advocates and the LGO!

We can see a trend in these reports of Councils being reluctant to provide transport these days at all, unless it’s obviously an exceptional circumstance. It is easy to challenge a decision as a fetter of discretion or an error of law, or irrational, if it renders the care plan incapable of fulfilment. The law states that Local Authorities are required to make transport arrangements they consider “necessary”, rather than exceptional. 

The reports often consider the facilitation of the attendance of young adults at institutions where the local authority has secured the provision of education for the adult concerned. When a council finds it is ‘necessary’ to provide transport for the young adult, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).

If you have access to a Motability vehicle, there is no legal obligation for you to use it, or your family member to use it to convey you to services; but you can expect not to be able to claim DRE for other travel expenses, if that is your or your family’s decision, at least not unless you can show that your expenses exceed your mobility component and the Guidance supports this approach.

One’s keeping a vehicle for no obvious reason or purpose may be reported to the DWP on the basis of non-use, but we know of no examples of that actually happening, as yet.

SEN/EHCPS

Education, Health and Care Plans (EHCPs) are legal documents that describe a child or young person’s combined special educational, health and social care needs. These replace the old SEN statements. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs of a health and social care nature, so that that there is no cliff edge, as such, at the age of 18.

The Ombudsman can investigate a complaint that a council has failed to appropriately address a child’s (SEN). This includes delay in assessing a child and issuing an Education Health and Care Plan (EHCP) and failing to implement an EHCP or carry out an annual review.

The Ombudsman will not investigate a complaint when the issues it raises can be dealt with through an appeal to the First Tier Tribunal (Special Educational Needs and Disability) (SEND). From September 2014 the Special Educational Needs and Disability Regulations 2014 and the Special Educational Needs and Disability 0-25 Code of Practice 2014 came into force.  These introduced new rules for personal budgets, and a requirement for greater involvement of children and young people over the age of 16 in decision making about their provision. They also included the ‘Local Offer’ which requires councils to provide advice and information about the SEN provision in their area. The Ombudsman can look at complaints about all of these elements.

If a child has an EHCP, the council has to work with the school to ensure the child gets the provision set out the plan. The Ombudsman can look at the school’s role in delivering the provision and how the council ensured the school provided the support as set out in the EHCP. If you complain the council is failing to arrange and maintain the specified provision, the LGO can look at this, but can only make findings about the council, not the school.

If the Ombudsman finds fault in how the council has addressed a child’s special educational needs it will consider the effect on the parent and the child. It may suggest a remedy ranging from an apology through to a financial remedy to make up for what the child has missed out on. 

Safeguarding/Harm/DoLS

Councils’ safeguarding duties under the Care Act, apply to an adult who has needs for care and support (whether or not the local authority is meeting any of those needs); is experiencing, or at risk of, abuse or neglect; and as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

Safeguarding is a responsibility, without it being a duty to ensure that nobody is ever harmed by themselves or others; the essence of it is probing, gently, and in a person centred way, to see if all is well, as if one was doing an assessment of need, and sometimes even though one is not being permitted to intervene by the person who is vulnerable and of concern. So it is a function that runs parallel to assessment and care planning, and which sometimes has to be discharged separately.

A council in receipt of a safeguarding referral can’t just ignore it; and neither they come to conclusions without taking the views of the person affected, into account. Councils’ staff need to explain what they’re worried about, and to do that, someone has to go out and engage, to see if the statutory threshold for even initiating any formal enquiry is even arguably met.

There is no threshold of significant harm any longer: a s42 investigation can be a few minutes’ conversation or a full-blown and formal investigation. The only threshold is being a person with care and support needs which make the person unable to protect themselves and being thought to be someone who may be at risk of abuse or neglect – those words themselves, abuse and neglect, being important parameters for consideration. Not all harm signifies ‘neglect’, whereas a pattern of it may well do so; not all negligence is neglect either. And not all upset and aggravation between people connotes ‘abuse’.

Few LGO reports provide compensation for mental or physical HARM, whether or not related to safeguarding or other Care Act complaints – focusing instead on time and trouble, and on distress and inconvenience; however sometimes where the inadequate social work or commissioning has led to harm, the LGO considers it necessary to reflect that fact in an award. This generally happens when a person did not receive the services that were intended to provide for the meeting of need, or, if they received those services, then so badly or so late that obvious avoidable harm resulted.

A deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements” (P v Cheshire West and Chester Council and another and P and Q v Surrey County Council). Once there is, or is likely to be, a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005 or a community DoL order from the High Court, by consent or otherwise. There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.

The LGO has recently started awarding compensation for poor delivery of the DoLS safeguards, especially where the council has misread the ADASS prioritisation guidance.

Restitution

Financial redress is sometimes recommended by the LGO when a person has suffered harm – as compensation for maladministration, rather than damages – when the implementation of a decision about a care plan response has been bad or delayed.

Generally speaking, however, poor social work decision making prior to implementation does not sound in damages, for public policy reasons.

But just recently, a remedy which is well known in the context of CHC status (NHS repayment of self funders’ fees for periods of care when the CCG should have been paying) has emerged as a remedy within the Care Act context too. It’s called Restitution.

The concept of Restitution is based on unjust enrichment on the part of the council in not having had to spend the money that the law required it to allocate. (see CP v NE Lincs, 2019, Court of Appeal, on this site).

These cases generally involve people who have been left without care, or paying privately for care that they should have been receiving from the Council and yet haven’t been getting that, because of some indefensible bit of illegality regarding process or substantive thinking, by the council, over a long period of time – not mere late or non-delivery AFTER a plan has been signed off.

Where an incapacitated person incurs a liability to someone else, even if that person lacks capacity to have agreed to pay for the substitute service needed in the meantime, THAT debt has to be seen as the measure of the reimbursement.

It can also arise in cases where the Council was at fault for removing care, setting arbitrary limits to funding, and delays, amongst other things. 

Provider Fault

When a Council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. A Care Home can be well within its rights to terminate a contract, but only in a way consistent with the terms of that contract. All providers to publicly funded clientele in the social care world owe human rights, directly, to the customers, under the Care Act (as do providers to CCGs for continuing NHS health care, but not under the Care Act; simply through the NHS Act, as delegates of the NHS’s own provision functions).

If the person spends their own money, or has a council funded direct payment instead of a care package of services, the system is that they’re contracting privately with a provider, and are responsible for sorting out their own issues with less than expected standards of service. But in either case they can go to the Ombudsman about a complaint, if it is not properly dealt with to a person’s satisfaction.

Generally, if the care is council commissioned, the council is primarily liable for sorting out complaints of inadequacy, after one has raised them with the provider, informally; if the council doesn’t do a good job there, one can take it further to the Ombudsman later.

Reports make it clear that issues are not always just the fault of the provider. The LGO has found the Council at fault in cases concerning providers who provide inadequate care, where often the care does not match up with the care outlined in a person’s care plan but nobody spots that; or the plan doesn’t match the assessment in the first place; or where the care provider terminates a person’s contract without sufficient notice but the council does nothing about that; or where providers fail to provide an adequate response to concerns or complaints and the council does nothing about that either; or the provider fails to investigate safeguarding concerns sufficiently and the council does nothing about that, despite being responsible for a proper s42 enquiry; or they charge incorrectly, raising issues surrounding contracts between service users and providers, and who is whose customer, at the relevant point in time.

The LGO has been seen to refer care homes to the CQC, recommend compensation in cases that involve harm/potential harm, and often provides recommendations for Councils and providers to improve their practice.

Power of Attorney

When someone makes (grants) a power of attorney, they act with capacity to appoint someone else to act on their behalf within a particular scope of tasks and decision.  A power of attorney gives the attorney the legal authority to deal with third parties such as the local council, and share information related to tasks within the person’s grant of authority. Some types of power of attorney also give the attorney the legal power to make a decision on behalf of someone else such as where they should be taken to live or whether they should see a doctor or accept medication (health and welfare).

When someone has an attorney or deputy managing their finances, that person is the commissioner, the purchaser, the contractor for the care being delivered – unless the attorney has triggered the needy person’s rights under the Care Act to have their needs met, in which case the attorney or deputy is just paying the charges rendered by the council – and then the council is once again the commissioner.

A power of attorney about health and welfare can give someone authority to deal with and refuse consent to things like one’s day-to-day care, your healthcare treatment etc. But it is not a power to demand things that the individual themselves would not be able to enforce.

Once a person has lost their mental capacity, it’s no longer possible to grant a power of attorney; a deputy must be appointed by the Court of Protection.

In relation to both types of decision-making, it is possible to apply to the Court of Protection for a decision to be made on a particular matter, by the Court, or if there is a continuing need they can appoint a deputy instead. So for instance, a tenancy CAN be signed by the attorney for finance, but whether it should or not in light of the overall assets available to the person might be a matter that comes before a Court; the court can order that a document can be signed by an authorised named person, giving substitute consent for the person lacking in capacity. But a deputy is usually needed to continue to ensure that the other tenants’ obligations beyond rent payment, are abided by (for instance, repairing damaged fixtures).

Councils don’t take on powers of attorney for members of the public. They will take on the role of appointee, if they think it’s necessary and not inappropriate, and councils’ officers such as Heads of Service or Client Affairs can be appointed as a deputy (as we see in one of the reports). The LGO highlights that good administration and practice is expected, citing OPG guidance but does not give a view on obvious conflicts of interest arising over charges or failure to checklist for CHC.

Not at fault

Councils are normally found not to be at fault if the LGO finds that the Council demonstrated it considered all the information sufficiently, stuck to its own policies and procedures, and did so in line with what is generally believed to be the current state of the law regarding its statutory duty.

If a decision is so irrational as to have been able to have emerged ONLY through a flawed approach, then even if there is no fault in the process, the LGO will often find fault simply based on the absence of any coherent reasoning. Likewise if an outcome turns on a decision as to the meaning of a word in legislation that is clearly contrary to existing case law on that wording, the LGO will often find that it was not open to the council to reach that opposite conclusion.

The LGO has to decide that there is fault in the way the assessment was carried out, rather than the outcome of the assessment or care planning or review process. Sometimes the Council offers to carry out another assessment; if a Council shows willingness to consider the impact its decisions have had on family members and the affected person, the LGO may be satisfied with the Council’s approach in such cases. These cases highlight that the LGO does not often interfere with day to day decisions so long as the correct procedures are followed.

It should be quite easy to be found not at fault by just being reasonably well informed about the legal framework and following statutory guidance; but it is common that even that is beyond councils, these days.

Mental Health Act

Under the terms of the MHA, a patient who has a mental disorder that is putting themselves or others at a risk of harm, and refuses treatment, may be detained for treatment if certain conditions are met. The majority of our LGO reports refer to s117 aftercare under the MHA, which is a FREE service for those whose liberty has been removed from them under the Act, for aftercare, when they leave hospital. You are entitled to s117 aftercare if you were detained under certain sections of the MHA (reports here refer to s3 detentions in the main). Section 117 aftercare services continue until such time as the NHS body and social services authority both decide a person no longer requires the services by way of aftercare (we think that this means for the purpose set forth in the statute, the avoidance of compulsory re-admission to hospital) and (according to the MHA code of guidance but not to the courts, or the LGO and PHSO, who are more flexible) hold a discharge meeting to which the person and their carer/family member is invited.

A lack of a s117 assessment process at the point of discharge from hospital is always fault, if a person is entitled – the person needs to be assessed and it needs to be explained why they need nothing, if that is the professional view. Outpatient appointments with the CMHT ARE a form of s117 aftercare, and they should not be regarded as just to be stood in line for; there’s a separate duty to ensure provision.

The bulk of these reports refer to failings in regards to s117 funding for accommodation.

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 “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. 

Recent 2019/2020 reports say that 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.

Housing

Councils’ Housing Authorities must provide free advisory services, assess an applicant’s case and agree a personalised housing plan, make inquiries, take reasonable steps to prevent homelessness, provide interim accommodation and take reasonable steps to secure accommodation (under their prevention and relief duties) and then secure ongoing accommodation (under the main housing duty to people who are homeless). The Localism Act 2011 gave power to local authorities the power to end the main housing duty by arranging an offer of suitable accommodation in the private rented sector.

The Homelessness Code of Guidance for Local Authorities provides statutory guidance on how to interpret and apply the homelessness legislation and contains details of good practice that local authorities should adopt. It is not legally binding but local authorities are required to have regard to it. Failure to have regard to the current Code can be used as a basis for an LGO complaint or judicial review challenge.

Where a local authority is satisfied that an applicant is homeless and eligible, it must take reasonable steps to help the applicant secure that accommodation becomes available for at least six months.

After the relief duty has ended, a council must then secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need.

From the complaints reports we can see the LGO gives weight to the fact that, especially after discharge from hospital, careful consideration should be given to applicants with a mental illness or learning disability who may have a particular need to remain in a specific area, for example to maintain links with health service professionals and/or a reliance on existing informal support networks and community links.

Where a local authority feels that an applicant is refusing to co-operate and that the refusal is ‘deliberate and unreasonable’, it can follow a specific procedure for notifying the applicant. Councils can be seen wrongly to have cancelled interim housing, due to missed or cancelled appointments.

Reports highlight that Councils need to do more than verbally warn a person before ending their duty, they need to clearly tell someone in writing the consequence of not attending appointments.

Hospital discharge

Hospital discharge is now governed by legislation in the Care Act – Schedule 3 and a set of regulations called the Care and Support (Discharge of Hospital Patients) Regulations 2014.  Covid-19 led the government to issue two versions of a new approach to hospital discharge however, March and August 2020.

No NHS professional is in a position to determine whether it is safe for a person to go home unless they know all the circumstances – including a firm idea of the actual budget that the council’s panel or other decision maker has approved of spending, for meeting the assessed needs of the specific person, and what is there waiting for them at home or in the bank account that might affect the shortfall between informally provided care, and social services’ arrangements.

The vast majority of findings of fault in this regard arise from Councils failing to carry out assessments. This may be after a patient is discharged, or maybe before discharge, resulting in a prolonged stay in hospital. This area of maladministration shows how hopeless it is to expect two different organisations with different agendas to integrate or even work in partnership together.

Hospital registrars and clinicians often maintain that someone is not ‘safe’ to go home, but without any idea of what is or is not waiting for them at home, what the environment is like, in terms of risk, or the lowest practicable amount of care that would need to be made available if the council were to do a lawful, rational, transparent, professional assessment of what was needed. Instead, very often, council staff on the hospital discharge team will simply say “We only do three visits a day” or “You can only have £575 a week, because that’s the cost of residential care” regardless of the ability or willingness of a family network to reduce the cost differential if the relative were to be cared for at home, regardless of the Mental Capacity Act, the wishes and feelings of the person in question, and regardless of the duty to promote well-being, specifically including emotional and psychological wellbeing etc. The LGO will focus on those failings, and sometimes refer to them as breaches of the law, or otherwise as fault.

Eligibility findings

One is not eligible, ever, for a service, one is eligible for HELP, and the response to the eligible need is for the care planner to decide about, using their professional competence, and subject to judicial review challenges on the usual grounds.

Eligibility is determined under a set of regulations which provide for three hurdles: the derivation of the difficulties, the number and range of domains of inability to achieve, as defined, and the additional question of impact on wellbeing caused by the difficulties.

The duty to meet eligible needs flows from a finding of eligibility that is subject only to modification

  • if one is not ordinarily resident, in the area, (in which case it becomes a power)
  • one is capacitatedly declining a service, really only after a finalised care plan has been shared
  • or one is over the capital threshold, in need of a care home, not incapacitated, and not having anyone else willing to make the arrangements
  • having informal care ably and willingly available.

The LGO prefers to not to stray onto the sphere of the assessor’s expertise, and continues to consider whether the process in deciding eligibility was reasonable, rather than the findings themselves. Councils are not likely to be found at fault for failing to find people eligible, if the Council followed the proper process.

However, if assessments indicate no change in needs, but the Council removes aspects of support, the LGO is more likely to come to a conclusion that Council acted contrary to guidance on interpreting the eligibility criteria, or the law, and find fault. It is possible for reductions or suspensions of care to happen lawfully, but not easily – it all turns on the reasons. A change in the price for care, or a change in the means for delivering care, would be other reasons a plan could be cut.

On a revision that extends backwards to the point of reconsidering someone’s ability to achieve as defined, a new eligibility decision is required by s13.

The LGO tends to uphold councils’ findings that a person is ineligible in cases where a person has refused to co-operate, or otherwise been unwilling to satisfy a council asking reasonable questions or making reasonable points, in the assessment, about the person’s actual inability to achieve. The test is person-centred and subjectively LED, but the council is the decision maker from an objective assessment on the application of the unable to achieve test – subject always of course to addressing the material offered up by the person claiming to be unable, properly in public law terms.

Failings to assess, reassess, review

This section of complaints covers a wide range of issues.

Reports highlight that people with complex needs are often discharged from hospital without assessment by social services, and that this is rarely from choice.

There are major problems with transition – a transition assessment is required to be undertaken as part of one of the statutory reviews of the EHC plan (Department of Health Statutory Guidance 16.11), unless there’s a very good reason why not.

People’s and Carers’ assessments are a statutory duty under the Care Act – triggered only by the appearance of needs for something or other by way of response, that’s in the nature of looking after a person – doing something for someone that they cannot do themselves.

The LGO highlights that it is not only the law but good practice to involve the person and their family in the assessment process.  The LGO is more likely to find fault if the Council has not even attempted to involve or inform the person or has overlooked rights to be involved or consulted, in the Care Act or the Mental Capacity Act.

With regard to revisions to plans, and especially where support is being reduced or removed or suspended, the LGO considers whether the Council properly re-assessed a person, in terms of what the impact would be of a reduced or differently constituted package of inputs.

A person should be reassessed/reviewed every year (6 months if on direct payments, because the financial probity issue is greater, there). The LGO affords Councils some leeway, but generally states that over a year is an unreasonably long time between reviews, and may be considered as fault. The LGO considers the facts of the case and whether the delay in initial assessment or review was ‘reasonable and acceptable’ because the public law test is how long has it been in light of all relevant circumstances. Failure properly to assess a person does have an impact, in that people may be left with insufficient support, for an indefensible amount of time, and their informal carers unreasonably put upon.

Section 27 of the Care Act makes review, and revision, where it is considered necessary, a statutorily underpinned process, with definite steps and due process rights attached to it. It provides for review from time to time, or as per a schedule, or on the basis of any reasonable request by or on behalf of a service user. A change in circumstances is the trigger to an unscheduled review, and to a proportionate re-assessment if a review has revealed changes perceived to affect the plan. The law is that when a Council claims to have identified a change in someone’s needs, it should be able to articulate on the basis of identified material what it thinks the change is.

Assessments are not assessments for services, but in terms of deficits, they are a good point to be considering the actual amount of support needed, ie how many hours of support, where and for what type. The LGO will only find fault, however, if the Council actually fails to meet the person’s needs at the stage of finalising the budget/care plan.

Disability Related Expenditure

Disability related expenditure is relevant to charging assessments whereby one’s own money, spent privately on things or services that are incurred (on account of one’s disabling illness or condition), and which are ‘needed’, (not merely in the sense of being accepted as ‘eligible’ needs under the Care Act, but things or services which are objectively definitely ‘needed’, and not merely indulged in or just wanted) – is deducted from one’s income count-up, so operating to reduce the remaining net income and thus the maximum charge for care that the council can make.

DRE is only taken off one’s other assessed income if one is in receipt of disability related benefits in the first place, and they are being counted in by the council’s discretionary charging policy in the first place (most do do this now). Some councils have flat rates of DRE which they will allow to be claimed, regardless of proof; amounts over and above that need to be established by reference to average household expenditure for non disabled people, and/or receipts, invoices, payments out, etc.

The LGO reports highlight that the Council’s DRE policy and the Care and Support Statutory Guidance both state that each person should be financially assessed on theirindividual needs and circumstances, because of the general principle of affordability underpinning charging.

There is no exhaustive list of items a council should or should not include as DRE. Councils are found at fault if they fetter their discretion by refusing to consider higher amounts than average spend by non disabled people, for DRE, based on an individual’s needs.

The LGO has noted that councils must take notice of cultural issues such as specific hair care for different ethnicities.

Disabled Facilities Grants

The reports focus on delays in the main, by the Council in making improvements to someone’s home using DFGs. After the making of the application according to local process, the local authority should respond, in writing, within six months of the application date. The local authority is required to provide notice in writing, approving or refusing the grant application as soon as reasonably practicable, and not later than six months after the date of the application. If an application for a disabled facilities grant is refused, the applicant is entitled to a written explanation from the local authority of the reasons why their application has been rejected and may consider challenging the authority’s decision by 

  • use of the local authority’s formal complaints mechanism
  • contacting the local authority’s monitoring officer or the Local Government Ombudsman in order to make a complaint
  • bringing judicial review proceedings.

Disabled Facilities Grants are mandatory after the Housing Authority considers reasonableness, practicability, necessity and appropriateness – and these days, there are other options such as discretionary smaller DFG and loans etc under the Regulatory Reform Order to enable councils often to say that one of these DFGs is not necessary.

The DFG system is now part of the Better Care Fund; a pooled budget seeking to integrate health, social care and, through the DFG, housing services.

Disabled Facilities GRANTS are just that: grants to the person who has applied for one in order to pay a builder for work. There’s a maximum amount and a means test which takes into account more money than the social services charging assessment would do. The DFG means test is based upon a mix of income and savings so that an assessed contribution is based on a combination of the two. The means test looks at your income and savings together with that of your spouse or partner, if you have one. Other members of the household aren’t included. The first £6,000 of household savings are exempted from the means test. 

The Local Authority can place a local land charge on the property for grants between £5k and £15k although these are at the discretion of each local authority. This means that if you move within 10 years, you may need to repay some of the grant.

The money is either to be used to fund a contract for works, which anyone can make and break, and take the consequences of that breach; or they are used by Housing Improvement Agencies.

Applicants are entitled to use their own contractors to quote for the work. You have to get at least 2 quotes for the work and the Council will only pay for the work once they are satisfied it is completed to an adequate standard. When using your own contractor, you are responsible as an employer for ensuring that they have the correct insurances in place. You can also do the work yourself but are only eligible to claim for the cost of materials.

The LGO emphasises that Councils must be satisfied that whatever works carried out, were sufficient. Normally complaints are also teamed with insufficient records or communication.

Councils’ Complaint Procedure

We only have one stand-out report in this category so far, but that is mainly because the only reason a matter goes to the LGO is that a person is dissatisfied with a council’s internal handling OF the complaint in the first place – so very many LGO reports at least touch on how Councils respond to complaints – normally slowly, or they do not respond to all aspects of a complaint. Councils should respond to all complaints, ‘in a timely manner’, and at the very least acknowledge the receipt of a complaint and tell you they are dealing with/considering the issues you have raised. You can make a complaint about the care/services you personally receive or have been affected by, if it’s someone else’s assessment or care plan or service that has fallen below expectations, or you can make a complaint on behalf of someone if they are unable to (due to mental/physical incapacity) or have asked you to.

Carers

Carers struggling with worsening conditions in loved ones and finding their situation very challenging but wanting to continue caring as long as they possibly can, are a common feature of Adult Social Services culture. These LGO reports highlight the key principle that when a council becomes aware that someone is caring for another adult and may have needs for support, it is under a duty to assess their needs, and review them as per the Guidance, ie at the very least, on an annual basis. It must consider the outcomes the carer wants to achieve, and look some way into the future, and how their needs might change in future. It must assess the carer in a timely manner, and, if it decides the carer has support needs, it must set out how it will meet those needs.

There are no cases on how one should assess the sufficiency of a budget for support, given that any carer can just respond to an inadequate one by stopping the care.

The LGO reports also flag up the assumptions made about carers’ willingness or ability to step up and just meet whatever needs the budget can’t cover, and that is unlawful, in the light of the relevance of the carer’s own position to the service user’s needs, in the first place, and the case law on the subject, which emphasises an objective view of a person’s ability to struggle on, even if they appear not unwilling to keep on trying (Ali Raja v Redbridge 2020).

Care Leavers

The law and government guidance set out councils’ legal duties to provide ongoing support for children leaving care. Councils have a responsibility to plan continuing support for all care leavers. This duty continues until they reach age 21. If the Council is helping them with education and training, that specific duty continues until age 25 or to the end of the agreed training. The report we have under this section concerns whether or not PhD studies were to be included on a pathway plan. The LGO considered that the Council should have helped with preparations and assess whether it should provide support beyond the complainant’s masters’ degree, as part of the Leaving Care responsibility.

Advocacy

These reports generally focus on where the Council has failed to appoint a person an advocate, or when they have failed to sufficiently involve a person’s advocate in it process.

Advocacy is there to help people who will struggle with engaging with Care Act processes, to be heard. The Care Act says that it is a duty when triggered, regardless of available resources (Haringey 2015) and must be provided in certain situations – and then provides for exceptions (where one has someone willing to do it informally and the person with substantial difficulties consents to that happening); and exceptions to that exception (for instance where the informal supporter, whilst not being inappropriate or unwilling, is in material disagreement with the council on an issue to do with the person needing the support.)

The Council must arrange an independent advocate to facilitate the involvement of the person in their assessment, in the preparation of their care and support plan and in the revision of their care if that person will have substantial difficulty in being fully involved in these processes and if there is no other appropriate individual available to support the person.

The Advocacy No. 2 regulations and guidance set out the role of the advocate and this includes assisting a person to challenge a process or decision by the Council where they are unable to challenge it without assistance, by way of an advocate’s report.

Direct Payments

The most prevalent issues arising from the virtual right to have one’s budget turned into a cash payment (direct payment) involve; the adequacy of the rate, the setting of arbitrary limits, delaying/incorrectly backdating payments, or delaying the approval of DPs and decisions about having one’s close relative in the same household actually getting paid for the work.

In terms of assessing the appropriateness of a Direct Payment and setting one up in a given situation, there are no set guidelines for how long this should take. The LGO considers it reasonable to expect services to complete a non-urgent application in 12 weeks.

As long as there are sufficient records and evidence, the LGO will sometimes be willing to go through exact care costs and time scales, and work out exactly how much of your DPs should be backdated and paid to you if the Council failed to do the calculation correctly in the first place.

The LGO reports emphasise that a Council cannot withdraw your DPs without a revision process, because the law is that any change to a care plan can only be done after compliance with s27 of the Care Act.

Delay

These reports touch on many areas: delays in care assessments, financial assessment, reviews, replying to complaints, implementing care, backdating payments, carers assessments… the list goes on. There are some extreme cases where people have been left un-assessed or unprovided for, for years. Delay arises because in public law terms, even mandatory duties are not immediately obliged to be discharged: they must all be discharged within a reasonable time, unless there is some other mandatory requirement in regulations, directions, policy guidance or Codes. The LGO will consider how reasonable or unreasonable/ how much injustice was caused by the delay. It considers how the delay impacts the persons wellbeing and outcomes, and whether it could have caused a person harm or merely distress and aggravation.

Charging

This section encompasses all issues surrounding councils’ charging policies: financial assessments, how a person’s contribution costs are calculated, valuation of assets, incorrectly charging someone care costs for things that have to be free, such as reablement, incorrectly backdating net payments of DPs, etc.

The LGO is willing to find a Council at fault, when its own local charging policy lacks clarity. Generally, care charges should be clearly explained to the person and their family/representative. They should also be given notice of upcoming charges in a timely manner, ie not receive an invoice out of the blue.

The LGO reports emphasise that a local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis but may vary according to individual circumstances, and it’s something that very few authorities do: they uprate a person’s income figures, according to benefits, but don’t seek to be told what the person has had to spend that year to survive. Thus people often have their real situations overlooked, which although a council does not have to allow for anyone’s debts or choices as to how to spend their money, does flaw any claim to be exercising discretion based on the facts of the individuals’ case, and does make a mockery of ‘affordability’ being the supposed bottom line.

Care plans and cuts

One of the largest categories in our collection of reports: a popular problem in the category is when a Council reduces a person’s care package without review or a revision process, or reduces it without justification and against the weight of the evidence on impact. The LGO always states that this is fault on the part of the council. It results in unmet needs, which causes injustice to the person.

Before anything in your care plan is changed, you must have some form of proportionate reassessment even if it is done alongside the review that identifies that something HAS changed.

Again, the LGO will highlight that it is the process followed during/after the assessment which will lead to a finding that the Council is at fault, rather than the outcome, necessarily. Poor communication between Councils and families will often lead to confusion and delay, resulting in needs being unmet, insufficient support, or financial burdens. Issues also arise when the person is not sufficiently involved in the assessment process. The LGO will usually recommend a subsequent assessment take place to clear up any ambiguities or shortcomings. Clarity is key. The LGO follows the law in this regard: the CP v NE Lincs case in 2018 held that the care plan must be transparent and robust, stating a personal budget pursuant to s26 that is rationally justifiable, and that the plan must clearly identify those parts of the eligible needs which the council believes the family or informal network or the person themselves is willing to shoulder.

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Staffordshire County Council found at fault for decision to use its own policy to avoid carrying out requested DoL Safeguards assessments

Date of decision: 08/03/2019

What Happened

During the investigation of a complaint the LGSCO became aware that in May 2016 Staffordshire County Council made a decision not to assess DoLS requests it considered to be of ‘low’ or ‘medium’ priority and significantly delayed carrying out the remaining assessments it considered to be of ‘high priority’. The LGSCO made the decision to investigate the actions of the Council pursuant to s.26D Local Government Act 1974 on the basis that the actions of the Council would most likely affect those who were vulnerable, unaware of their rights in law and who may not have been able to complain.

The Council was in a similar position to many councils in 2016. It had increasing financial pressures and had a backlog of DoLS requests which had increased significantly following the Supreme Court decision in P v Cheshire West and Chester Council and P &Q v Surrey County Council [2014] UKSC 19.

Following the decision in Cheshire West, the Council claimed it had a fourteen-fold increase in DoLS requests. In May 2016 at an informal cabinet meeting, a decision was made not to carry out assessments for requests it considered to be of ‘low’ or ‘medium’ priority. The Council accepted that this did not comply with legislation or statutory guidance but stated that its decision was based on finite financial resources. The Council claimed that it only had enough capacity to deal with the numbers of requests prior to the Supreme Court decision.

The Association of Directors of Adult Social Services (ADASS) had produced a screening tool within its guidance for Local Authorities in relation to DoLS. This encouraged councils to prioritise requests with a ‘low’, ‘medium’ or ‘high’ ranking based on risk.

The Council determined that it needed to develop its own policy and in doing so developed criteria that were different to the ADASS tool. This ‘adapted’ version led to even fewer requests being viewed as ‘high’ priority. The Council stated that it needed to adapt the ADASS tool because it had identified that using the tool would lead to most of its requests being considered ‘high’ priority. It also stated that it:

“required a tool which would enable limited financial resources… to focus on those individuals in which the risks were perceived by a registered professional to be the greatest”.

The Council also adopted a system whereby it employed suitably qualified professionals to carry out ‘screening’ activity based on risk. It supported this system with ‘Prioritisation Moderation Sessions’ which aimed to promote consistency in decision-making. The introduction of this system saw a 50% quicker processing of requests received between January and March 2018 compared with the same period in 2017. This system evidenced that the Council had a quick response to incoming requests, but these responses were of course only based on the limited information provided by those referring.

What was found

Since July 2017, the Council was able to demonstrate that it had met the 21-day requirement for carrying out assessments for standard authorisation for those cases it had deemed ‘high’ priority. However, most of its requests were deemed ‘low’ or ‘medium’ priority so it did not assess them at all.

The Council took an average of 18 days to assess ‘high priority’ urgent requests. The LGSCO identified that most urgent requests received by the Council were not assessed at all as they were not deemed ‘high’ priority. 92% of the requests made to the Council were not assessed at all or assessed late.

The Council issued ‘not granted’ decisions within the expected timescale of 21 days. Its average for doing so was 17 days which was within expectations for standard authorisations but exceeded the 7-day expectation for ‘urgent’ applications.

At the end of June 2018, the Council had a backlog of 3,033 applications, the eldest of which dated 11th August 2014 – ie four years during which that person had been presumptively unlawfully deprived of their liberty and denied their legal rights.

Since its policy decision in May 2016, the Council had closed 1957 applications without assessment as individuals had died before it got round to assessing them. The Council claimed that its policy enabled it to focus its resource on those at most risk and that it was not designed to be exclusionary. The LGSCO saw the situation differently and viewed the policy as excluding a whole cohort of people by applying its priority criteria.

The Council had been trying to reduce its backlog in authorisation requests since 2017. Its backlog only concerned those it deemed ‘high’ priority so its 59% increase in assessments still didn’t reach those who had been deemed ‘low’ or medium’ priority.

To clear the total backlog of all requests and address those incoming, the Council claimed it would require £3.5m. It cited that members would not support this as it would only lead to compliance with legislation that was no longer fit for purpose. Furthermore, it would be unable to recruit and train the required number of Best Interest Assessors prior to the forthcoming but now somewhat delayed changes in legislation.

The Council informed the LGSCO that it was reviewing its policy but the LGSCO was rightly concerned that there may be people within its backlog that were unlawfully deprived of their liberty or for whom there were less restrictive options.  

The LGSCO investigated a sample of 57 cases received during one week in 2017. It found the following:

  • 16 cases were closed because individuals had moved or died;
  • 18 were in the unassessed backlog and deemed ‘low’ or ‘medium’ priority;
  • 21 requests were assessed and granted;
  • 2 requests were ‘not granted’ following assessment.

The two that were not granted were of concern. The timescale for issuing not granted decisions should be 7 days from receipt of an urgent request. One took 7 weeks and the other took 12 weeks. Whilst the LGSCO found that these individuals did not suffer significant detriment as they had both regained mental capacity by the time the assessments were carried out, they did of course experience delay at the hands of the Council.

The LGSCO was also concerned at how one person was being deprived of their liberty and whether that was having a detrimental impact on the person’s well-being. This was later dealt with by via the Court of Protection.

The Council was found at fault for failing to assess a majority of DoLS applications as despite its financial pressures, the Mental Capacity Act 2005 and the DoLS Code of Practice still applied.

The LGSCO found that this was potentially causing an injustice to approximately 3000 people who had no or delayed access to proper legal process in relation to a deprivation of their liberty.

The LGO noted that

44. Applying the process properly would not change the outcome for most of the people affected, other than confirming that it is in their best interests to be deprived of liberty. However, it is possible that some of the people stuck in the backlog for years should never have been deprived of their liberty.

Whilst the LGSCO found that the outcome for people may not have changed, it was concerned that people within the backlog may have been wrongly deprived of their liberty. At worst, this Council had someone waiting for four years.

The LGSCO recognised the financial context of Council resourcing but found that it was unacceptable for this Council to only resolve the applications it deemed ‘low’ or ‘medium’ priority by relying on relocation or deaths of vulnerable individuals.

Recommendations

The LGSCO made the following recommendations to the Council:

  • The Council should produce an action plan for how it would deal with all incoming DoLS requests and the backlog of unassessed DoLS requests.
  • The Council should produce the action plan within three months of the amendment to the Mental Capacity Act 2005 being finalised by Parliament.
  • The action plan should take into account any changes to the law and Government guidance.
  • The action plan should include a mechanism for addressing those cases where the request is eventually not approved, and an unlawful deprivation of liberty has had a potentially harmful impact on that person.
  • The Council should review the action plan should there be any further changes to the law or Government guidance.
  • The Council must consider the report and confirm within three months the action it has taken or proposed to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and provide evidence to the LGSCO.

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

This complaint clearly demonstrates that Councils are not above the law – but may make many consider whether without rights or remedies in such cases as these, they may as well be.

The Council was clearly under financial pressure, as all local authorities are. It attempted to address this without seeming to grasp that the legal rights of individuals it had a responsibility towards were involved – vulnerable individuals, who may not otherwise have been able to complain or been aware that their rights existed.

The Council developed its own policy but overlooked the problem that the ADASS tool is itself no answer to the legal rights of the service users. We have been successful in damages cases brought on behalf of clients where the ADASS tool has been put up as the excuse!

To be fair, ADASS’s introduction to the guidance cautions that the “use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”. The tool suggests criteria for prioritising requests into ‘higher’, ‘medium’ and ‘lower’ priorities. It does not suggest that councils should not carry out assessments for requests classed as medium or lower priority.

The LGO says this:

“We do not criticise the approach of prioritising applications as suggested by ADASS and endorsed by the Government.”

We can’t share that position. ADASS is a charity that gets funding from central government from time to time.  To our minds, ADASS is in no better position than anyone else to interpret what the sanction should be when the councils are not capable of affording to do the right thing. The fact that the tool does not say what to do when applications are not scored ‘high’ is nothing to the point: it is clearly a tool that recognises that prioritisation does not cure the legal problem, and by not saying so – in relation to the 7 days or 21 day periods, it is disingenuous and relies on people’s unawareness. The idea that this is all endorsed by government and that that signifies anything for anyone is a bit of a fudge too, here, we feel.

It is a human rights blot on the face of the sector, which nobody does anything about. We at CASCAIDr have an excuse: we don’t DO safeguarding work. Any of the barristers’ chambers who act on CoP matters could bring JR proceedings in the public interest, acting pro bono.  The Official Solicitor could act for any one of the people not put through the safeguards. It can’t be an accident that nobody takes that step.

As per 39 Essex St Chambers’ commentary from 2016 on the JM case in which Charles J. excoriated the government for not treating the matter as something to deal with.

The deadlock between the government and the executive is resulting in those lacking capacity not being moved out of inappropriate care settings because the Court has not authorised the next deprivation of liberty. All practicably workable solutions to meet the increased workload following Cheshire West are likely to involve more expenditure in a time of austerity. This is not something that the court can compel the Secretary of State to provide. As the backlog of cases continues to build, we are left wondering whether we have now reached a stalemate. There is, at the moment, no foreseeable way out of this predicament. However, the clear message to public authorities is to continue making applications where an individual is being deprived of their liberty in circumstances requiring authorisation from court.

Ultimately the law still exists and this Council needed to recognise that. This was reported by the Law Commission with regard to the way in which the LPS might be developed:

“A number of local authorities reported that, in the wake of Cheshire West, they do not have the resources to prioritise potential deprivations of liberty outside hospitals and care homes, and many such cases are being left unassessed and not being taken to court when they should be. This situation is not acceptable. Any “savings” currently being achieved are largely through non-compliance with the law, and in our view this does not provide a legitimate reason for maintaining the current position. It is vital that any new scheme must deliver practical and effective Article 5 rights.”

The law exists to protect the most vulnerable individuals and whilst it is undergoing some change, it was and is still current. It is on the basis of individual rights under the Mental Capacity Act 2005 as amended, and the DoLS Code of Practice, that Councils can be challenged. Councils must act lawfully when managing their resources.

Staffordshire noted that no one had complained about the policy, that its triage system ensured no harm to individuals was likely because it assessed those cases where there was a real possibility that a person may be deprived of their liberty inappropriately, and that in the unlikely event a person was deprived of their liberty inappropriately, they would have a court remedy and would probably be entitled to compensation. We think that the Council was also fortunate here as it could have been subject to a financial remedy had those individuals who had been unlawfully deprived of their liberty and suffered injustice as a result, wanted to complain.

This complaint demonstrates the breadth of investigation the LGSCO has to offer and its role in protecting legal rights for vulnerable individuals. It’s because of s26D of the Ombudsman’s own governing legislation that it could be explored:

(1) This section applies to a matter which has come to the attention of a Local Commissioner if—

(a) the matter came to his attention during the course of an investigation under this Part or Part 3A of this Act,

(b) (subject to subsection (3)) the matter came to his attention—

(i) before the person affected or his personal representatives had notice of the matter, or

(ii) in any other case, before the end of the permitted period, and

(c) it appears to the Local Commissioner that a member of the public has, or may have, suffered injustice in consequence of the matter.

The jurisdiction under s26D is to take on a case even where there is nobody to consent to a complaint being made on their behalf, if the LGO believes the person may have suffered injustice. The advice to staff is that they should also consider whether it is appropriate to raise safeguarding concerns with the appropriate body in these cases.

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

The full Local Government Ombudsman report into the actions of Staffordshire County Council can be accessed here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-004-809

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Suffolk County Council at fault for carrying out flawed assessments and care plans and preventing a chosen representative from providing support during reviews

Decision Date: 8th April 2019

What Happened

Mr and Mrs J were both deafblind with learning difficulties. They employed Mrs K as a personal assistant (PA) and communications guide. Mrs J also provided care for her husband.

Mrs J

Mrs J was assessed in June 2016 as being eligible for support from the Council. She was deemed not to have capacity to employ a PA herself, only to consent to direct payments (DPs). The Council gave her a personal budget of £94.20 a week (including employment support costs), paid as a direct payment to employ a PA for eight hours. There is no indication of who WAS the employer, in the report.

The PA was employed to help her do things such as access the community, attend medical appointments and maintain family relationships. The care plan did not address other outcomes raised in the assessment, such as needing help to prepare food, or keep a habitable home.

In May 2017 Mrs J’s needs were assessed as her husband’s carer.  The assessment recorded the risks to Mrs J’s mental health and safety when trying to meet her husband’s increasing needs, for example Mrs J could not maintain/family/other relationships as she could not leave Mr J for more than 24 hours.

The assessment concluded that Mrs J should receive a personal budget of £500 a year via DP for respite care.

Mr J

The Council also assessed Mr J in June 2016, and was found eligible for support. It was also concluded that Mr J did not have the capacity to employ a PA directly himself, but could consent to DPs.

The Council allocated him a personal budget of £117.03 a week, with £57.15 paid as a direct payment to employ a PA for four hours and £59.88 which the Council used to buy support from a care agency for four hours. The plan stated that he would receive unpaid support in the home from his wife ‘who has her own issues’.

Again, like Mrs J, Mr J’s plan did not outline how all of his needs could be met for example being appropriately clothed and keeping a habitable home.

Between 5 May and 20 June 2017 the Council reviewed Mr J’s care and support plan. Due to the “strained” relationship between Mr J and the care agency, the Council agreed to pay his entire personal budget as a direct payment. The report did not elaborate on the apparent difficulties Mr J was experiencing with the care agency. The Council also increased the weekly care hours from 8 to 10, to reflect the extra demands being placed on his wife due to his decreasing vision. Mr J’s personal budget increased to £126.44 a week.

Mr and Mrs J’s complaint

In September 2017 their PA, Mrs K, complained to the Council about an assumed new cut in Mr & Mrs J’s support hours. She said that Mrs J’s support hours had been nearly cut in half and Mr J’s were less than half.

She also said they did not understand how their personal budgets had been calculated.

In November, the Council replied. It said Mr & Mrs J’s personal budgets were enough to meet their needs. It stated that Mrs J had struggled to understand direct payments and had an advocate (Mrs K) with her when it tried to explain them to her. It also said that when an officer met with Mr J to discuss mobility, they had felt verbally and physically threatened.

The Council arranged a further meeting for January 2018 with Mr and Mrs J. It wrote a letter highlighting the outcome of that meeting to Mrs K, who had also been at the meeting. The Council agreed to review their needs, and appoint two assessors; one from the sensory team and one from the learning disabilities team. The Council said it had agreed to appoint advocates for Mr & Mrs J. It said it would jointly review Mr & Mrs J’s needs, with their advocates.  

Mrs J wrote to the Council the same day Mrs K received the letter stating that they were disappointed with the meeting. She said Mr J had not been able to follow what went on and that Mrs K had to explain much of what went on. She said officers had shouted at them and made them feel like children and that the Council had only apologised for the complaint taking so long. She said she wanted Mrs K at all their meetings and reviews.

In February 2018 the Council started reviewing Mr & Mrs J’s needs. They arranged for the meeting to take place at their GP, without Mrs K present. The Council were concerned that she was not properly representing their views (the LGO does not explain why it had this concern).

The Council arranged support for Mr & Mrs J for a review and proposed telling them Mrs K was not entitled to attend as support. It decided it would not go ahead with the review if they insisted Mrs K support them.

The Council accepted the Care Act 2014 allows for independent advocacy to be provided. It also accepts that Section 67(5) of the Care Act 2014 says the duty to arrange independent advocacy does not apply if it is satisfied there is a person:

“(a) who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and”

“(b) who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.”

The Council believed Mrs K fell within the definition in Section 67(5)(b) and so it had the right to exclude her from the February 2018 review meeting, and other meetings when it “does not consider it appropriate for [her] to be present, for example when discussing the care package”. Subsequently, she was not present for any later meetings.

It was unclear from the report exactly how the case was referred to the LGO.

What was found

First of all, the LGO highlighted that both Mr and Mrs J’s assessments and care plans in 2016 were flawed:

  • they did not mention Mr & Mrs J having learning difficulties and only took account of needs arising from being deafblind
  • the Council did not identify the need for Mr & Mrs J to have any support with the assessments (or the initial care and support plans)
  • their care and support plan did not include all of their needs identified by the assessment. This meant that it could not be clear that their personal budgets were enough to meet their needs

All of the above amounted to fault.

Secondly, the LGO stated that just because Mrs K was a paid carer, did not mean that the Council could exclude her, if Mr and Mrs J wanted her with them. The Statutory Guidance (paragraph 6.30) says: “in all cases, the authority must also involve any other person requested” in the assessment process. It also says “When revising the plan the local authority must involve the person, their carer and any other person the adult may want involved, and their advocate where the person qualifies for one” (paragraph 13.27)

Therefore, the Council was at fault for preventing Mr and Mrs J from having their chosen representative at the review meeting.

Next, the LGO stated that the Mental Capacity assessments did not meet the criteria of the Mental Capacity Act 2005; it did not properly evidence the reason for its answers, but made “general and sweeping statements about Mr & Mrs J’s abilities.” This was fault.

Lastly the LGO said that disputes should not be allowed to prevent completion of the planning process, as this could result in eligible care needs not being met.

The LGO recommended that the Council:

  • pay Mr and Mrs J £500 for the distress they were caused;
  • pay Mrs K £250 for the avoidable trouble she has been put to in pursuing the complaint
  • reassess Mr & Mrs J’s needs and updates their care and support plans
  • ensures Mr & Mrs J are supported by Mrs K, if that is what they want, through the assessment and planning process

Points for the public, service users, councils, first contact teams, advocates, social workers and family members

We are astonished at the contents of this report because it conveys that Suffolk has not absorbed the Care Act and it’s been the law for over 5 years, now. Here’s the translation from the polite language of the LGSCO’s investigator:

  • The council breached the Care Act in the following ways, acting unlawfully:
  • The council ignored s9(5) of the Care Act – the duty to involve anyone nominated for involvement
  • Failing to take account of all the needs, or apply all of the eligibility criteria
  • Ignoring the rules as to respite: respite is not a carer’s service, but a service for the person being cared for (here, Mr J)
  • Ignoring s25 of the Care Act regarding the contents of a lawful care plan
  • Lack of transparency in relation to the calculation of the budget contrary to the Guidance.
  • The contents of para 10.86 regarding disputes cannot be used as an excuse for failing to complete care planning or meeting eligible assessed needs.
  • The question of whether Mr & Mrs J would need help managing the direct payments should have been a separate question to the question of capacity to have a direct payment. They could have nominated someone to be the employer; there is no indication who WAS the employer of Mrs K.
  • The LGO report says this: given that they need help from a PA to manage paperwork, and there would be a conflict of interest in asking Mrs K to manage the direct payments used to pay her wages, it should have been clear that an independent agent was needed to help manage the direct payments for them (regardless of their capacity).
  • A moment’s thought will make it clear that if they had capacity to HAVE a direct payment, they had capacity to nominate an agent. There IS a conflict of interest in relation to a worker being the manager of the payment, but it is not IMPOSSIBLE: payroll could have been commissioned. The point was that a person who has capacity to understand the essence of a direct payment remains the employer, even if they have to have a lot of help to manage the obligations of an employer. If a person cannot grasp what it is to be an employer, or that they need help to manage, they cannot HAVE a direct payment to be an employer and would have an agency rate, or a commissioned package from an agency. This is not necessarily a difficult area of law once one understands and applies the difference between being a principal (an authorised person holding in their own name, for a person lacking in capacity) and being someone’s mere helper (a nominated manager).
  • In relation to involvement, and informal support role, we think that it must be that the council did NOT believe that Mrs K fell within the s67(5)(b) role, which is expressed in the negative, not the affirmative. The Independent Advocacy duty is suspended if there IS such a person – ie someone NOT employed to care. This lady WAS paid to care, so the council duty to supply an advocate WAS triggered, but that could not conceivably mean that she could be excluded from involvement, when the couple had specifically asked for her to be involved! If they thought she was inappropriate in some more telling way, that needed to be aired and addressed. Even then exclusion from involvement, is not an option open to the council. She could not be relied upon to be their informal supporter by the council, but she could be involved, and had to be, at the behest of the couple!

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

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

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/17-018-391

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Hertfordshire County Council found at fault for delegating responsibilities to Foundation Trust and ultimately for allowing it to fail to ensure sufficient assessment and discharge planning

Date of decision: 22/07/2019

What Happened

Ms G had been known to Mental Health services since 2007. She had a diagnosis of personality disorder and persecutory anxiety. She lived in a property owned by a Housing Trust for 10 years. During that period, she reported many issues with her heating and electrical supplies, and problems with her neighbours which had resulted in police involvement.

In November 2015 Ms G was detained under s.2 Mental Health Act 1983. She was reported to be paranoid towards her neighbours.

Whilst in hospital the landlord Housing Trust obtained an interim injunction that prevented Ms G from returning to the property, presumably on the grounds of the long-standing neighbour dispute related issues.

Hertfordshire County Council (the Council) had a partnership agreement with Hertfordshire Partnership Foundation Trust (the Trust) which acted as the formal delegate of some of the council’s responsibilities under the Care Act 2014.

Ms G’s complaint centred around her homelessness application and the length of time she was housed in unsuitable accommodation. Watford Borough Council (the Borough Council) were also subject to Ms G’s complaint as the responsible housing authority. It also appertained to a lack of care and support provided by the Council and the Trust since her discharge from hospital on 29th March 2016.

Discharge Planning

Following Ms G’s detention in November 2015, Trust records showed that regular reviews took place.

In January 2016 the landlord Housing Trust agreed to consider whether one of its supported living schemes would be suitable for Ms G. A discharge planning meeting at the end of January 2016 asserted that Ms G could ‘go back home until she is rehoused’. Ms G and her solicitor were present and stated that she could not return because of the issue with her neighbour and the interim injunction which prevented her from doing so. The care co-ordinator then referred Ms G to a different supported housing provider.

Ms G’s landlord informed the care co-ordinator that Ms G had rent arrears as her rent had not been paid whilst she had been in hospital for four months.

From February 2016, Ms G became a ‘delayed transfer of care’ as she no longer required an acute hospital bed. These are counted for NHS management purposes although there is no fines regime for those who are sectioned patients in psychiatric hospitals.  

Trust records showed that clinicians had continued to discuss the option of her returning home. Ms G indicated that she could not do so because of the problems with her neighbours and utilities. There were no supported housing vacancies with the Housing Trust or other providers and the care co-ordinator had also contacted the Continuing Care and Placement Service which was also unable to point to any accommodation. It gave advice and suggested options to consider based on knowledge of Ms G’s rent arrears.

In March 2016, the care co-ordinator contacted the Housing Trust which said it could not offer Ms G alternative accommodation and stated that it did not have any landlord-based duty to re-house her. The care co-ordinator recorded the need to contact another housing provider. The social worker also explored the option of a step-down bed, which was deemed unsuitable, and then contacted a housing association that had no supported housing vacancies.

The care co-ordinator then met with the Trust’s Housing and Accommodation Adviser. This was four months after Ms G had been admitted to hospital. The care co-ordinator then contacted the Borough Council with housing responsibilities for homeless people, which requested a full medical and risk assessment prior to placing Ms G in temporary accommodation.

From a ward round in March 2016, a doctor recorded ‘to contact social re accommodation. Discharge on 29th March’. This was a confirmed date for Ms G to leave the hospital but with no plan for where she would go and how she might be supported.

Ms G was discharged from hospital on 29th March 2016 and met her care co-ordinator at the housing office. The Borough Council refused to accept her homeless application on the basis that:

  • she was discharged from hospital without any paperwork;
  • the Housing Trust had confirmed there was an interim injunction in place and not a full injunction (so Ms G could return to the property) but the Housing Trust would apply for a full injunction if she did return; (so she was clearly threatened with homelessness in legal terms) and
  • the Borough Council had not received a risk assessment from the Trust to inform the homelessness application process.

That evening the Trust’s housing advisor informed the Borough Council that Ms G was homeless due to miscommunication on the part of the care co-ordinator and that she was vulnerable. The Borough Council provided temporary accommodation that night.

Ms G contacted the care co-ordinator to inform that this accommodation was unsuitable as it housed mainly single males and that she could not access the shower due to her physical difficulties. Ms G did not have any of her belongings from the hospital and asked for them to be collected.

The Borough Council

The Borough Council ultimately accepted that it had an interim duty to Ms G upon hospital discharge. It provided temporary accommodation and claimed that the Trust had not followed the discharge protocol / policy which required 5 days’ notice to find suitable accommodation.

Initially Ms G was placed in a hotel that was not in her preferred area. The Borough Council then offered her accommodation in a shared house with couples and singles. Ms G stated that she needed self-contained accommodation because of her mental health difficulties. The Borough Council had limited options available, and approached her previous landlord who would not accept Ms G.  It accommodated her in a hotel and in September 2016 accepted her application as eligible, unintentionally homeless and in priority need. The Borough Council then moved Ms G to temporary accommodation.

On leaving hospital the rent arrears had begun to accrue as Ms G could not claim housing benefit for two properties. Ms G had an ongoing rent liability towards both properties, which led to arrears in the region of £4000. The Borough Council did not recognise this problem yet relied on their nominations policy citing ‘former tenant arrears’ as a reason not to progress Ms G’s application for housing. The Borough Council had suspended her Part VI housing register application on the basis that she had accrued rent arrears and had not paid towards the debt or set up a repayment plan.

Ms G informed the care co-ordinator that she did not like having to pay rent towards two properties.  The Housing Trust officer informed Ms G that if she gave up her tenancy, she would be deemed intentionally homeless. It is unclear why the housing trust did not simply regard her as surrendering her tenancy by dint of having moved out, or terminate it for non-payment of rent and commence possession proceedings on that ground.

In May 2017, the Borough Council offered Ms G temporary accommodation which it deemed suitable. Ms G disagreed. She did not challenge this decision but did request a review of the decision to suspend her housing application a few months earlier.

In July 2017 Ms G was offered a privately rented one bedroomed flat. The Borough Council deemed this suitable on the basis that it met her size, location, welfare and affordability requirements. Whilst Ms G did not request a formal review of this decision, she made several complaints about the safety of the property, in particular the gas boiler.

The County Council

In June 2016, Ms G’s probation officer contacted the Council whilst she was living in temporary accommodation. The probation officer was concerned that she was vulnerable and that her presentation was deteriorating. The Council’s formal arrangements with the Trust required the Trust to carry out Care Act needs assessments on behalf of the Council. The Council referred Ms G to the Trust for assessment on the basis that this concern pertained mainly to her mental health issues. It did not determine that its safeguarding procedures ought to be applied at this time.

The Hertfordshire Partnership Foundation Trust

The Trust received the referral, but its records do not indicate what action was taken despite several care plans being on trust records. This is characterised as a decision not to assess, but may have just been an omission due to incompetence.

In September 2016, the care co-ordinator withdrew from supporting Ms G and she continued to see a clinical psychologist.

In January 2017, a probation officer expressed further concern to Ms G’s consultant psychiatrist about her deteriorating presentation following discharge earlier in March 2016. The probation officer requested information as to Ms G’s care plan.  

During a medication review with a consultant psychiatrist Ms G expressed anger and frustration at what she perceived to be a lack of support from the agencies involved within this complaint.

In July 2017, she had been offered another property and was due to move the next day. She requested assistance from the Foundation Trust to move her belongings. It explored charitable options but informed her it was unable to assist.

At the end of July 2017, records held by the Trust referred to a plan for Ms G to be referred to an occupational therapist, a medication review, floating support and a psychological assessment. Ms G stated that she did not know the outcome of those assessments and had not received floating support.

What was found

The Council and Trust’s discharge planning

The LGSCO found the Partnership Trust’s discharge planning to be poor. It had regular meetings with the Housing Trust, but the housing duty to Ms G was owed by the Borough Council. It was aware that Ms G could not return to her property but failed to include the relevant bodies in the planning process.

The Trust failed to provide the risk information as requested by the Borough Council, under a protocol that it must have itself agree. The Trust also failed to act in accordance with NICE Guidance N27 which requires a discharge summary to be made available to both the person and their GP within 24 hours. This led to the initial refusal of the homelessness application.

The lack of formal discharge plan meant that Ms G was more likely to suffer distress and frustration at a time when she was vulnerable.

Borough Council

The LGSCO found that the Borough Council was not (ultimately) at fault for the way it responded to Ms G’s housing application. It acted in line with housing legislation by placing her in accommodation despite the limited information provided by the Trust.

The Borough Council provided sufficient reasons to explain why the accommodation was suitable for Ms G. Once the Borough Council had accepted that it had a duty to house Ms G it offered her accommodation in line with legislation.

The Borough Council’s letter to Ms G did not consider that she could not reliably return to her property and the impact that paying for the accommodation with housing benefit would have on rent arrears with the first property.

The Borough Council investigated regular concerns raised by Ms G about the property she moved into. She had identified problems with heating electric and was concerned that the property was unsafe. The concerns were acted upon by the Borough Council’s Housing and Environmental Health services who were unable to substantiate the issues reported by Ms G.

An occupational therapist assessed the property allocated by the Borough Council as ‘suitable’ to meet her housing needs in March 2019. This led the Borough Council to accept that the property was unsuitable to meet Ms G’s needs. She is on a waiting list for an alternative home, which the LGSCO recommended is kept under review.

The County Council and Trust’s consideration of Ms G’s needs

The partnership arrangements between the Trust and the Council are considered jointly by the LGSCO as although responsibilities were delegated, the Council remained responsible for its functions and was therefore also at fault.

On receiving the referral from the probation officer, Ms G’s needs under the Care Act 2014 should have been assessed. The Trust held delegated responsibility to do so but had not properly assessed her let alone care planned for her.  The LGSCO found poor practice on the part of the Trust as it failed to include her in care planning meetings and to assess her health and social care needs. The failure to assess Ms G’s needs was likely to have caused her distress and frustration and had an adverse impact on her wellbeing (as well as being unlawful).

The Trust eventually assessed Ms G under the Care Act 2014 in July 2017. The LGSCO found the Trust to be at fault for not sharing the subsequent record of assessment with her. It’s the law under s9 that this is done.

Remedies

The LGSCO made several recommendations to be acted upon within four weeks of the decision:

  • the County Council apologises in writing to Ms G for the avoidable distress and frustration she experienced when it and the Trust decided not to formally assess whether she had needs eligible for social care and support.
  • It should also pay her £250 to acknowledge the adverse impact on her wellbeing;
  • the Trust apologises in writing to Ms G for the avoidable distress and frustration she experienced because of its poor hospital discharge planning. The Trust should also apologise for the distress Ms G experienced when it delayed assessing her needs and failed to share the outcome of assessments with her. It should also pay Ms G £500 to acknowledge the adverse impact on her wellbeing;
  • the Trust and the County Council provide Ms G with copies of assessments completed since her discharge from hospital which relate to her needs and eligibility for formal care and support;
  • if necessary, the County Council and the Trust complete an updated co-ordinated assessment of Ms G’s health and social care needs and ensure she is promptly provided with formal support if the assessment determines eligible needs.
  • the Council and the Trust review any existing joint working arrangements and ensure staff are reminded to complete formal assessments when presented with someone who has an appearance of need; and
  • the Trust remind its staff in hospital settings of the importance of notifying partner agencies of someone’s discharge when it is known a patient has a need for housing.
  • The Trust should also ensure that its staff complete formal discharge plans and ensure patients are discharged with all the documents they need to facilitate a good discharge and inform partner agencies.

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

This complaint is an example of the ways in which partnership working often fails people who are vulnerable, if there is insufficient attention paid to the nature and scope of the duties being delegated.

Firstly, there is an obligation to effect SAFE discharge, which involves ascertaining what a person is going to be discharged TO, and whether that situation triggers other agencies’ functions or even their duties. This discharge planning process failed to involve the responsible authority despite Ms G having a clearly obvious housing need. The NICE Guidance N27 states:

“From admission, or earlier if possible, the hospital‑ and community‑based multidisciplinary teams should work together to identify and address factors that could prevent a safe, timely transfer of care from hospital. For example:

  • homelessness
  • safeguarding issues
  • lack of a suitable placement in a care home
  • the need for assessments for eligibility for health and social care funding.”

Records were even made that demonstrated how clinicians were considering the option for her to return home despite this being prevented by the interim injunction. Had the relevant housing body, rather than her current landlord been involved, the information that needed to inform the Borough Council’s decision-making could have been available much sooner and led to a better plan to re-house Ms G somewhere suitable. That lack of networking indicates a serious lack of competence or awareness on the part of the acute hospital’s discharge planning staff.

Instead, this vulnerable lady left hospital without a discharge plan and arrived at the housing office where her application was unable to be considered due to a lack of information. The local protocol had been disregarded by the Trust despite the blatant significance of a lack of housing for the obligation to achieve safe discharge.

Being discharged without paperwork could not ever be an excuse for a Housing Authority to refuse an application under Part VII of the Housing Act. A risk assessment is not allowed to be a pre-condition to accepting an application!

We are surprised that the housing authority did not come in for more incidental criticism bearing in mind that that was the wholly inauspicious start, with the local protocol appearing to determine the fate of the woman, rather than the law!

The Borough Council was found to have done what it could to assist at the time – a bit later on, however. Ms G was unhappy with its offer, and eventually her complaint that successive settings were unsuitable (in the legal sense of the word) was taken seriously following an occupational therapy assessment.

Ms G’s probation officer reported concerns about the impact that living in a hotel had had on her wellbeing following discharge from hospital.

The Council is entitled to delegate its functions under the Partnership Regulations under the Health Act and under s. 79 Care Act 2014; however s.79(6) states:

Anything done or omitted to be done by or in relation to a person authorised under this section in, or in connection with, the exercise or purported exercise of the function to which the authorisation relates is to be treated for all purposes as done or omitted to be done by or in relation to the local authority.’

The Council remained responsible for the Trust’s failings to assess Ms G’s needs. The concerns raised by the probation officer were such as to alert any reasonably competent assessment service to an appearance of need that required an assessment of her care and support needs (as would the facts known at the point of hospital discharge circumstances, because SOME people’s needs for accommodation CAN BE social services’ need.).

The Council had referred for that specific purpose, relying on the arrangements between the two bodies. The probation officer expressed concern about her wellbeing in June 2016, yet it took until July 2017 for the Trust to assess Ms G’s needs – and even then it failed to provide her with a copy of the assessment. Ms G was also unaware of the outcome of subsequent occupational therapy and psychological assessments.

The learning here is that if agencies are going to work in partnership as they should then they must put in place proper and effective training arrangements that include the legal framework. This means Trusts and Councils knowing their responsibilities under the relevant legislation, and establishing mechanisms that ensure responsible bodies review what is actually happening where responsibilities are delegated.  

Ms G’s complaint highlights the impact that a lack of information-sharing and joint planning can have, particularly where someone is discharged from hospital with nowhere to go. Ms G was in hospital longer than needed; the agencies she relied on failed her and this unfortunately had an impact on her wellbeing at a time when these agencies should have recognised her vulnerability.

The fact that an updated assessment was flagged up as being a possible outcome after a proper set of remedies was organised – one which appeared to need to include her desire to move to more suitable housing, in the view of the LGO investigator, raises the prospect that the LGO was hinting that housing should be regarded as a possibly essential aspect of her care and support needs, unusually for housing, but consistently with developments in the law relating to s117 and specialist supported living.

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

The full Local Government Ombudsman report into the actions of Hertfordshire County Council can be accessed here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/17-013-954

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

Decision date: 06/01/20

What happened

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

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

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

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

What was found

Quality of care

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

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

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

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

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

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

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

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

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

Toiletries/Cosmetics

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

Complaints process

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

Ending the contract

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

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

Remedies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Decision date: 16/01/20

What happened

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

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

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

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

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

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

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

What was found

Records

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

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

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

The Council’s complaints process

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

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

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

Remedies

The Council has agreed to:

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

Within three months:

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

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

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

Persons who may make complaints

5(1) A complaint may be made by

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

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

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

(a) has died;

(b) is a child;

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

(i) physical incapacity; or

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

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

(4) This paragraph applies where

(a) a representative makes a complaint on behalf of

(i) a child; or

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

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

(5) Where paragraph (4) applies

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

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

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

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

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

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

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

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

Decision Date: 12th April 2018

What Happened

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

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

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

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

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

The Matrix Assessment Tool

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What was found

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

Funding limits

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

Transport

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

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

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

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

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

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

The Matrix Assessment Tool

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

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

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

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

The LGO recommended that the Council:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The full Local Government Ombudsman report of Wiltshire County Council’s actions can be found here by clicking on the PDF download at the right-hand side.

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

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