Archive for Local Government Ombudsmen’s Reports – Page 3

London Borough of Bromley at fault for setting an arbitrary limit on a personal budget and failing to show how assessed needs could be met within the final sum offered

Decision Date: 14th September 2020

What Happened

Ms X complained on behalf of her relative, Ms Y. 

Ms Y was a working age adult with long term health conditions.

Ms Y lived in her own house but received care at home (arranged by the Council). Ms X visited daily and helped to provide some care. 

Ms X had been given power of attorney over Ms Y’s welfare and finances as Ms Y had envisaged lacking capacity. 

In 2016 it was evident that Ms Y’s needs were increasing. After a hospital stay, Ms X, Ms Y and the Council all agreed that the only way to meet Ms Y’s needs would be in a care home. 

Whilst the Council tried to arranged appropriate residential care, Ms Y was discharged home with a home care package which cost £1061.76 per week.  

After receiving the homecare package for a time, Ms X and Ms Y changed their view about residential care. They thought that the home care package in place was the best way to meet Ms Y’s needs, and Ms Y now wanted to stay in her own home. 

The Council reviewed Ms Y’s needs (at an undisclosed date) which concluded that Ms Y’s needs required 24-hour care 7 days a week to ensure her safety and wellbeing (she had an unacceptably high risk level for falls). 

The Council acknowledged Ms X and Ms Y’s preference for home care and accepted it would be the least restrictive option (an aspect to which regard should be had in promoting wellbeing in s1 of the Care Act)

The Council set out the costs:

  • Residential care for a young person was £850 to £1600 per week
  • A local care home said it could provide care for £890 a week.
  • The cost of live-in care was said to be £864 a week, for those with low needs, £977 for those with medium needs, £1090 for those with high needs

In February 2017, the Council set Ms Y’s budget as £823 per week for home care, which would be made via direct payment to Ms X. It is not explained how that was calculated, in the report.

Ms Y’s care plan stated that its aim was to ‘provide support to remain at home’; however under each of the sections setting out her eligible needs it said, ‘this need will be met through 24-hour care in a residential care home’, which was not the case at all, given the discussions. It also set out ‘the need is met through a POC (package of care)’.

In May 2017 Ms X told the Council that Ms Y’s personal budget did not cover the cost of her care. 

The Council said that the budget could not be increased as it was ‘the maximum personal budget for 24-hour live-in care for someone under 65 years’, and suggested she contact a provider known to manage 24 hour care packages to sort something out within budget. 

During a review by the care manager in July 2017 Ms X again highlighted that the budget did not cover the cost of care, and that she felt the pressure to provide additional care for Ms Y. 

Ms X provided evidence from numerous care providers that actual costs were around £950 to £1300 a week to highlight that Ms Y’s budget did not meet her needs in terms of average rates in their locality. However, a review panel did not support this proposed increase in budget, stating that there was ‘not enough evidence of an increase of needs’. 

A year later in April 2018, a review highlighted that Ms Y’s friends and family were providing care to fill the gaps. Again the Council did not increase the personal budget. 

Another year later, in January 2019, another review was undertaken. Again, Ms X highlighted that the budget was not enough. Again, Ms X, Ms Y and the care home manager agreed that Ms Y should continue to receive care at home. 

Ms X ended up complaining to the Council:

  • Ms Y’s personal budget was not enough to meet her needs and she had been telling the Council this for two years. 
  • The direct payments funded two carers, one overnight seven days a week and one for five days a week – the personal budget did not cover the costs of weekend care and Ms Y had had no option but to fund this herself at a cost of £440 per month. 
  • The budget was also not sufficient to cover the cost of carers’ holiday pay, sick pay or required taxes.
  • She asked the Council to review and increase the budget so she could employ enough carers to meet Ms Y’s needs. 

The case was send to a funding panel, and the care manager provided a list of cost comparisons as at that point: 

  • Cost of an available local care home – £1050 per week;
  • Direct payments for daytime and a managed service for night-time care – £2078.93 per week;
  • Direct payments for 24-hour care – £2352 per week; (this would have covered at least two carers, probably 3 on shift, it is thought)
  • Cost of a fully managed service – gave a comparison figure of £1016.09 per week for a service user who had a significantly lower level of night-time need than Ms Y (so this was not an adequate comparator for the actual level of need)
  • It provided no comparison for the costs of care on a live-in care model, which it had agreed was the least restrictive option when it assessed Ms X’s needs in 2017, although it had not been what was wanted at that time.

The panel increased Ms Y’s personal budget to £1050 per week, the equivalent to the cost of residential care costs at this later point, even though there was no statement of intent to put her in a care home at that point.

The Council replied to Ms X’s complaint. Amongst other things, it highlighted that the April 2018 review concluded that Ms Y’s needs were actually being met by the DP and family members. 

Ms X remained unhappy and complained to the LGO. She said she was only providing support because the personal budget did not meet Ms Y’s needs. Ms Y had been paying £110 per week to fill the gaps of care, and Ms X had no choice but to provide extra care herself, because of the Council’s ongoing refusal to set a realistic budget. 

In response to LGO enquiries, the Council said that Ms Y received the ‘maximum’ personal budget, and that it was sufficient to meet her assessed needs. 

It said that the decision to pay for extra support was Ms X’s. 

It highlighted that Ms Y and Ms X had both originally agreed that a care home would be best for Ms Y, so if Ms X wanted to give up her caring role, the most economical way to meet Ms Y’s needs would be in a care home. 

The Council said it was able to cap DPs and that Ms Y’s direct payment had been capped at the level of residential care that could meet her needs.

What was found

Statutory guidance states that a personal budget must (rationally) cover the cost of meeting a person’s needs and should be (rationally) based on the cost of local quality provision. 

Councils can consider the cost of different care options when allocating personal budgets – see paragraph 10.27 of the Guidance. 

Case law going back to the 1990s also supports Councils being allowed to limit budgets based on meeting needs, not preferences, as long as the comparisons are all adequate responses to needs in terms of professional judgment in the first place.

However, Ms Y’s care and support plan failed to set out how her needs could be met through 24 hour OR even by live in care, within the budget allocated. This was fault. Ms Y’s personal budget was insufficient to pay for the care based on the costs provided in the care plan. Even if it was based on the lowest level of need, the budget would have been £40 short a week of the £1090 costing obtained a long time ago for live-in care. 

The Council told Ms X that the budget could not be increased, as it was the maximum budget allowed for a working age adult at home with 24-hour care. However, the Guidance is clear that Councils should not set arbitrary upper limits for personal budgets. This was fault. 

There was a lack of detail in the care and support plan setting out how Ms Y’s needs would be met by 24-hour live-in care based on the budget available. This was fault. This meant that it was unclear to the panel why the budget was not accepted to be actually  meeting Ms Y’s needs which then resulted in missed opportunities to review and alter Ms Y’s budget to meet her needs. 

When the Council did review Ms Y’s personal budget in 2019, it used the care home comparison rather than the live-in care costs to set the budget. This was fault. 

Ms X had been complaining about the insufficient budget since 2017 and the Council repeatedly said it would not increase it. 

As a result, Ms X had to provide care herself and Ms Y covered the gaps in costs. Ms X was also caused distress and time and trouble taking the complaint to the LGO. 

The LGO emphasised that personal budgets must reflect the cost of meeting a person’s needs, and that Councils cannot have arbitrary ceiling for personal budgets. Given that the woman was realistic about care home provision, the Council could have regarded that as not obviously Inappropriate as a response to eligible needs, and used care home pricing information when setting the personal budget, but only if it could show how the budget would meet the needs in the actual setting in which it was going to be deployed. It failed to do so, which was fault. 

The LGO concluded that between February 2017 and March 2019, the budget was not enough to meet Ms Y’s needs as assessed and set out in her care and support plan. Ms Y had been forced to use her own money to pay for additional care and support at weekends. The LGO calculated that Ms Y received around £40 a week less than she should have for 26 months (based on the cost of live-in care as a way that would have met her needs in a way that was similar to the service profile for which the money had actually been used).

The LGO recommended:

  • The Council pay Ms Y £4500 to make up the shortfall in funding, and to acknowledge the time and trouble she was put to. 
  • Apologise to Ms X and pay her £500 to acknowledge the strain she was put under
  • Review Ms Y’s care plan to clearly set out how her needs could be met within a budget. 

Points for the public, advocates, services users, lawyers, carers, managers and complaints staff (in CCGs as well as councils!)

This is a shocking case of legal illiteracy, in view of decided case law, on the part of Bromley’s senior management, it has to be said. 

The LGO said that the council had not addressed the proper calculation process for identifying a sufficient personal budget, because it hadn’t set out in the budget or plan, HOW the money was going to be able to meet the needs, and therefore it hadn’t got an evidence basis or rationally set about ensuring that the budget was sufficient to cover those real costs.

Instead, they’d consistently offered an alternative sum, based on what other methods could achieve, even though some of them were not accepted as even feasibly affordable by the council, and some were not accepted as adequate, or appropriate, by either side. 

The rate set eventually was a care home rate – the woman had made it clear that that was not her preference, but she was not implacably opposed to the idea, nor of the view that it would not ever be conceivably appropriately meet her needs. Very few people have needs that CANNOT be met in a care home, therapeutically appropriately; nor do many have needs that no care home will at least try to meet.  So that was not an irrelevant consideration.  However, it then went on to set the budget at that rate whilst saying it was the client’s choice not to spend it that way. In fact, it was the council’s choice not to walk away on the footing that the woman was refusing a lawful offer of care, and that is why the LGSCO is right to say it was still bound to meet needs in the real world, lawfully.

The LGSCO then hinted that if the council had paid £40 a week more, ie the rate it had established some years earlier as able to pay for live in care, it would have been good enough.

The woman had not had live in care, and by this time, may or may not have changed her mind but we can’t tell from the report. The point is that even if she had not, the budget awarded was short of even THAT rate, and that rate would not have been the same, so much later on as in 2017. So the rate being put forwards as ‘sufficient’ was not one that anyone could have got the necessary profile of care FOR, even with a live in model of care, rather than hours bought on shifts.

It was thus a fantasy rate – arbitrary, in terms of legal language – without any evidence basis as to it being conceivably enough.

We think that the LGO was right, on arbitrariness and sufficiency, but not fully right, in hinting that paying £40 more would have sufficed. The rate that was being used as a bench mark was from years previously. 

Secondly that rate was simply mentioned in the report without anyone bothering to explain that councils don’t actually BUY live-in care: they don’t employ individuals to live in people’s houses.

When they need more than about 11-13 hours of care needs to be met within a 24 hr period, they pay an agency or a direct employer’s rate for a rota of three carers being on shift – and one of those workers might be a ‘real’ live in carer, or one of the three might at any time be called a live in worker on the agency’s accounts, for saving money on the night time shift, because they will generally be sleeping and not awake. But they do not live there – they have homes of their own, elsewhere. So the cost to the local authority is not ever going to be the same as the cost to an individual of employing 2 live in carers, to cover a genuine need for access to help, 24 hours a day. An individual will have to find an employee, or two employees to rotate shifts and the accommodation overnight, and most introductions agencies who even help in that regard charge an ongoing weekly commission!

Lastly, we think that in actual fact, the real legal principle lurking under the layers of ambiguity here is this, which the LGSCO did not engage with: councils can only take the cheaper of two alternative adequate means of meeting a need for ‘capping’ or finalising their offer in another setting which the client is said to be ‘preferring’ or ‘choosing’, when the content of the notional ‘alternative’ package that’s been priced up as cheaper is one that is actually in the gift of the council – ie one that they can provide or contract for, without needing special favours from the person in question, such as 

  1. moving house to a different tenancy where the client has to pay rent but the care will be cheaper, 
  2. or letting a person in to live with them in their own personal private space, 
  3. or being a direct employer so as to avoid the corporate overhead and profit element in a fee to a company
  4. or accepting personal care from a spouse, even if the spouse is willing
  5. or accepting ‘shared’ care, by agreement, through a s25(11) Care Act agreement to do just that, thereby removing the risk from the council for failure to meet all the individuals’ needs, as individuals, with compliant s26 budgets which cover all of each of their separately assessed needs.

A person may not want to move house, in fact, and they can’t be made to – see the Perry Clarke case from 2015: they have Care Act rights already, without moving. 

They may have the room spare, but not want to have someone live with them, or baulk at the thought of having an actual employee, or be dead set on not turning their relationship into one where their spouse becomes their carer.  

And as to the last instance at e), a person with a learning disability in supported living may not have had the first clue that their budget has been reduced by dint of an assumed agreement to put up with shared care – as the price of getting OUT of an ATU or care home, usually, in to what is naively accepted by people’s relatives as a ‘Forever Home’ where all will be perfect, and who assume that THEY have power to agree, in a person’s best interests. 

But that is letting a council off of a statutory duty, which is only something that a welfare power of attorney holder or deputy can possibly have the authority to do. It is telling that there is no reference at all in s25(11) to how this sharing might even BE agreed, for people lacking in capacity to risk manage for themselves and absolve the authority of some form of responsibility in some sort of cause of action or regulatory forum or court or enquiry, should harm actually ensue from the sharing meaning that there’s not enough staff to go around in an emergency.

In fact, in most instances of supported living, the clients’ enhanced benefits will be taken, instead, by way of social care charges, and not even available to spend on activities that ARE a choice, instead of an imposition. And the care provider will have guaranteed the voids and HB deficits to the landlord, in return for nominations to the house, ensuring that the separation between tenure and care arrangements collapses, although CQC does nothing about that. Clients will be persuaded against direct payments, even though that possibility could in fact be delivered through Authorised Persons, who might also be regarded as having the power to ‘agree’ to share.

So much for personalisation, autonomy and control, in the face of commercial interests and austerity! 

Therefore, in all those cases we’ve identified, the adequate cost-effective ‘solution’ being priced up is not really ‘available’ to the council as part and parcel of its Care Act deployment and implementation powers, and hence not actually able to be compared or put on the table as if it was lawful. And all for good legal reasons, assault, human rights, and s25(11) of the Care Act – the options above cannot be regarded as solutions that meet needs, without a person’s consent. Which is why those options are not able to be cost-compared, as lawfully relevant considerations, unless the person DOES genuinely consent – and that means understanding that they don’t have to – they will still have legal rights to a properly identified care package or budget.

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

The full Local Government Ombudsman report of London Borough of Bromley’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-007-855

Sefton Council at fault for failing to engage an appropriately qualified deafblind assessor

Decision Date: 24Th September 2020

What happened

Ms C complained on behalf of her client, Ms B.

Ms B was deafblind within the meaning of the Assessment Regulations 2014.

Ms B had a care needs assessment in 2018. This assessment was completed by an assessor who was qualified to level 6 in deafblind assessments. The assessor said they had been advised not to specify hours of care deemed appropriate, as this gave rise to raised expectations, but she provided a guideline and the woman received a care plan that provided for 49 hours of support a week.

In 2019 Ms B was allocated a different social worker to complete a review (although the report calls it a reassessment. It’s not clear from the report whether that process was really just a review, (a look at how the care plan was working) or a reassessment because a review had considered that the care plan needed to change, in which case s27 requires a re-assessment of a proportionate nature.

This time around, the officer was qualified to level 3 in deafblind assessment.

Ms B complained to the Council that a higher qualified assessor was needed, but the Council disagreed.

On the 11th September 2019 a judge (in unrelated proceedings) ordered that any social care assessment for Ms B should be carried out by an assessor qualified to at least level 5.

The ‘re-assessment’ was paused, pending correspondence with the court, and finding a level 5 assessor.

In November 2019 a new social worker was allocated to Ms B who was not qualified to level 5 or above. The records stated that the need for a level 5 qualified assessor was being actioned, but noted: “There is no immediate requirement for an unscheduled reassessment as I’ve not been made aware that her Care Act needs have changed, but she is due a formal review. She does have health needs however, and we need to establish those in order to apply for health funding.”

Ms B received an email in January 2020 from the Council stating that health funding had been secured and asking whether Ms B required any further support from adult social care at this time. The Council did not receive a reply.

The Council said that having neither a reply from Ms B nor a referral for reassessment it could not arrange an unscheduled review, so the next reassessment would be the scheduled 2020 annual review.

The Council also said the court order did not specify that the Council had to complete a reassessment, only that any assessment should be completed by a level 5 qualified assessor.

What was found

The LGO stated that the Council was not at fault for using a level 3 qualified assessor to undertake the assessment it began, before the court order was made. The statutory guidance to the Care Act 2014 refers to assessors for the deafblind being qualified to level 3, or above where needs are complex, however the statutory guidance does not define complex needs. The LGO highlighted that this means that the statute allows for a level of professional judgement as to what qualifies as ‘complex’.

However the Council was still at fault, because the 2019 ‘re-assessment’ process was not ever completed. An appropriately qualified assessor had still not been allocated, therefore the whole Care Act process was incomplete, resulting in no updated care plan. This was fault.

The LGO recommended that the Council apologise, pay her £150 and begin the process of engaging a level 5 or above deafblind assessor in order to complete the reassessment.

Points for the public

To our minds, this is an unsatisfactory complaint report.

There are two legal questions here, not differentiated.

The first is whether the 2019 process was a review or a re-assessment after a review. In the latter case, it would have needed to be completed by a properly qualified assessor even if no change of the plan were to be required.  If it was just a review, then it was wrong of the investigator to call it a re-assessment; and the guidance appertains to assessments, and not to reviews, which can be done by a wider range of people, without specific training.

The second question was whether a re-assessment was actually needed (regardless of whether the beginning of the process had been a review or a re-assessment AFTER a review) in order to apply for health funding.

The investigator ought to have been clear about whether the social worker was relying on previously documented ‘health needs’ from 2018 for the CHC full funding (or part funding from the CCG) application (or checklist, if one was used), or whether there was an acknowledgement by the council by then, of a deterioration or intensifying of need which was thought to take meeting her needs over the limits of social care services into the concept of ‘primary health need’ or services that could not be said to be social care services. That thinking would have required a re-assessment.

We think it is typical of the Covid era that the Family Court thought it could tell a council what to do by way of decision-making about the level of training above the minimum for a particular person who is owed a duty by the council. It is in the council’s discretion, as long as level 3 staff are available – complexity could be indicated in any number of ways.

But regarding training and qualifications generally for the assessors of this client group, the definition of deafblind matters, for those who might come within it. It is the ONLY condition specifically referred to in the Assessment Regulations as compelling an assessor with specific qualifications related to that condition. It’s not the NHS definition on its site here, NHS stance on deafblindness but a regulations-based definition – see reg 6(3) below:

Assessment Regulations:

Requirement for specialist expertise – deafblind individuals

6.—(1) An assessment which relates to an individual who is deafblind must be carried out by a person who has specific training and expertise relating to individuals who are deafblind.

(2) A local authority must facilitate the carrying out of the assessment by providing any person carrying out such an assessment with any relevant information which it may have—

(a) about the individual whose needs are being assessed; and

(b) in the case of—

(i) a carer’s assessment, about the adult needing care;

(ii) a child’s carer’s assessment, about the child needing care;

(iii) a young carer’s assessment, about the adult needing care.

(3) In this regulation, an individual is “deafblind” if the individual has combined sight and hearing impairment which causes difficulties with communication, access to information and mobility.

Specific training is referred to in the Guidance as follows:

6.92….This specialist assessment must be carried out by an assessor or team that has training of at least QCF or OCN level 3, or above where the person has higher or more complex needs.

6.93 Training and expertise should in particular include; communication, one-to-one human contact, social interaction and emotional wellbeing, support with mobility, assistive technology and rehabilitation. The type and degree of specialism required should be judged on a case by case basis, according to the extent of the person’s condition and their communication needs. Local authorities should also recognise that deafblindness is a dual sensory condition which requires a knowledge and understanding of the 2 respective conditions in unison, which cannot be replicated by taking an individual approach to both senses.

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

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

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-017-266

Minimal fault findings for London Borough of Hackney in its response to safeguarding referrals, and a finding to develop its policy of communications management for complainants.

Decision date: 07/02/20

What happened

Ms C was an elderly woman who was provided care at home by an agency commissioned by the Council. Her daughter, Ms B, spoke to a nurse and raised concerns about the quality of care that the agency was providing. The nurse made a safeguarding referral to the Council, who agreed to provide Ms C with a different agency whilst the first one conducted an internal investigation. This resulted in the dismissal of staff members, improvements to service quality and the sending of an apology letter to Ms B, whereupon the Council closed the investigation.

Ms C was admitted to hospital (hospital 1) for a lengthy stay in mid 2017. The hospital made another safeguarding referral after observing Ms C displaying verbally abusive behaviour to her mother and to staff. The concerns were upheld.

Ms C was taken to a day appointment at a separate hospital (hospital 2) in September who made a further two safeguarding referrals regarding hospital 1. The referrers said that Ms B had found her mother unaccompanied at reception, wearing a hospital gown with no shoes or coat. She had bruising on her upper arms and had not received her morning dose of insulin.

The Council held a safeguarding meeting in January 2018 but had to cut it short due to Ms B’s behaviour (The report stated that Ms B was not allowing other people to speak and was not allowing the meeting to proceed in an orderly manner). Another safeguarding meeting was held shortly after in which Ms B told the Council that she felt hospital 1’s mistreatment was personal and as a result of the many concerns that she had raised with them. She had been banned from hospital 1 and so the Council considered exploring an alternative primary hospital for her.

Hospital 1 made a safeguarding referral (its second, but the fourth overall) due to Ms B’s continued abusive behaviour. 

The Adult Community Rehabilitation Team made a safeguarding referral in January 2018 regarding Ms B’s obstruction of health and care services being provided to Ms C.

The district nursing team made a safeguarding referral regarding Ms B in February. Ms C had suffered a burn which needed daily treatment. The district nursing team was concerned about the safety of the nurses attending the property while Ms B was present following an incident between Ms B and one of the nurses. The team asked Ms B not to be at the property when the nurses provided care but Ms B refused. This meant the nursing team was unable to provide care for several days.

Ms C sadly died in March 2018. The Council decided not to pursue its investigations into the remaining open safeguarding referrals against Ms B, for reasons not explained in the report. 

In a meeting between Ms B and the Council in April, she attributed her mother’s death to the Council’s improper response to the numerous safeguarding referrals. The Council explored each referral with her and directed her to the Ombudsman if she was unhappy with its actions. Another meeting was held in May which resulted in the Council agreeing to refer the case to the Safeguarding Adults Board (SAB). The SAB wrote to Ms B in July to say that it had unanimously agreed that the criteria for a review had not been met and that there was no evidence to suggest that Ms C’s death was due to abuse or neglect.

Ms B continued to raise complaints with the Council. The adult social care team restricted her contact with the Council to a single point: a senior manager that she could only email.

Between the 10th and 23rd of July Ms B made at least 60 calls to various departments of the Council and said that she would not stop calling until she was able to speak with someone. The Council wrote to her on the 25th of July to say that due to her aggressive behaviour and inability to stick to the communication plan it had given her, it was terminating all contact with her. Again it directed her to the Ombudsman.

Ms B visited the Council offices the next day and was allegedly abusive to staff before the police were called. The customer service team informed her that she would be banned from attending the Service Centre without a pre-booked appointment for 12 months. The Council’s legal team wrote to her in September to issue a warning letter that she was not to contact Council staff or the SAB in relation to this matter. It threatened legal action and an injunction if she failed to adhere to this but said if she had social care needs she could contact the Council where she was ordinarily resident. 

What was found

The Ombudsman found fault in London Borough of Hackney Council for a month’s delay in actioning the enquiry it started about hospital 1 following the two safeguarding referrals sent by hospital 2; the guidelines give 5 days.

The LGSCO found the council at fault for failing to be clear as to how it determined Ms B’s ordinary residence. She had indicated that she had care and support needs, therefore the council ought to have informed her as to how it reached this decision, which was fault. 

The Ombudsman found no fault in the Council’s restriction of communications with Ms B. A lot of her complaints were unclear, aggressive and were centred around previous complaints that had been upheld. Furthermore, the Council’s Adult Social Care Team followed proper procedure and offered her a route of communication that did not affect other service users. 

The Council was also at fault for failing to give end dates on all but one of the restrictions it imposed on Ms B.

Remedies

Within one month, the Council would:

  • Review the restrictions placed on Ms B’s contact with it;
  • Send a letter to Ms B to apologise for the injustice it caused her, to inform her of the outcome of the review and to explain how it considered the Care Act Guidance when making the decision to restrict her contact;
  • Ensure that any further restrictions have a timescale and a review date set and;
  • Review the decision as to ordinary residence and inform Ms B how it considered the care Act guidance regarding ordinary residence when making its decision.  

Points for the public, charging officers, financial affairs officers, service users, family members and advocates

This complaint involved seven safeguarding referrals, 3 of which pertained to the actions of the complainant and were not considered by the LGSCO. It highlights the way in which councils need to act promptly in response to safeguarding referrals – taking a month when the guidelines state 5 days is clearly going to be too long especially where a vulnerable person is at risk of harm. 

The complainant’s mother was the person at the heart of these referrals. The council was not found at fault for the actions it took in relation to the safeguarding referrals and it was identified that although Ms C passed away, the situation did not meet the criteria for a review by the Safeguarding Adults Board. 

The complainant disagreed with these actions and through her attempts to raise concerns the council found it necessary to restrict her contact with its officers. The council in this complaint did not have a policy that supported it sufficiently to manage the contact received by the complainant, which led to the LGSCO recommendation that it ensure that it gives a timescale for review of any future restrictions for complainants. 

The LGSCO provides support to councils in understanding the need for such policies and the link to this guidance can be found here:

https://www.lgo.org.uk/information-centre/reports/guidance-notes/guidance-on-managing-unreasonable-complainant-behaviour

The final issue with this complaint relates to ordinary residence. Ms B was told by the council to seek support from the local authority area in which she is resident. ‘Ordinary residence’ is not explicitly defined in the Care Act 2014, therefore the phrase should take its normal meaning. it is a relevant term when someone is living in one area and seeking the support of a local authority in another area, or when someone moves between areas and informs the decision as to whether a council has to meet eligible needs of a person. 

The Care and Support statutory guidance (paragraph 19.15) says this:

Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

Whilst the LGSCO report contains little information about the decision itself, the council still should have told Ms B the basis for its decision-making and made clear to her any right to challenge the decision. 

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 London Borough of Hackney Council can be found here:


https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/19-002-845

Hertfordshire County Council at fault for its policy which states it does not meet identified needs for support to maintain a habitable environment

Decision Date: 07/09/20

What Happened

Mrs X was a lady who lived in her own home with her husband. He was not able to provide any care for her. She had various medical conditions including chronic fatigue syndrome and was cared for in bed. Mrs X also had a psychological disorder that presented in physical symptoms suggesting physical illness or injury. 

In April 2015, the Council carried out an assessment of her needs. It found that she was unable to achieve all the outcomes identified within the Department of Health Care and Support statutory guidance. The council then provided her with a package of care which totalled £1077.12. This included two hours per day for assistance with toileting, personal care and making a lunch and drink and 10-hour night sits to enable Mr X to get a night’s sleep. The package also included an amount from the Independent Living Fund which was covered by the Council when that fund ended. This provided 45 hours for a carer to sleep over five nights per week and 40 hours per week to employ personal assistants. 

A review of Mrs X’s needs was undertaken in February 2018. It identified that the budget was meeting some of her needs but that the following were unmet:

  • Staying safe and being protected from abuse and neglect.
  • Achieving social and economic wellbeing.
  • Maintaining domestic, family and personal relationships.
  • Accessing suitable living accommodation.
  • Contributing to society.
  • Keeping up relationships and participating in the community.
  • Complex health needs.

A further review took place in September 2018, on the basis that the council viewed Mrs X’s care package as ‘disproportionate to need’. The council consulted with health professionals including Mrs X’s GP, a respiratory nurse and a diabetic specialist nurse. It also consulted with a care co-ordinator from the agency it commissioned to deliver some of her care. The council also sought information as to her mental health needs and the local Mental Health Service confirmed that she was not receiving services from it. 

The council referred to this review as a ‘care needs review/re-assessment’ on the basis of ‘a change in needs and circumstances.’

The council examined her existing care plan and identified in its re-assessment that her care needs could be rationalised and offered advice such as using a food processor to chop vegetables to free up carer time. It suggested that she managed a particular night time sweating need by the use of ice in flasks and ice packs. The respiratory nurse identified that Mrs x could administer her own oxygen supply, and it was on this basis that the council determined that Mrs X did not need night time care. 

This resulted in a reduction to her personal budget after the council completed a risk assessment pertaining to the potential impact of a reduction in budget. The council wrote to Mrs X and told her that her direct payment would be £222.80 per week from November. 

On 24th October 2018, the council visited Mrs X and observed a carer massaging her legs. Mrs X informed the council that she wanted to appeal the decision to cut her personal budget and the council responded to her comments as follows:

  • the NHS Wellbeing Service and Mental Health Team could provide support for stress. She could also consider using a telephone helpline for older people;
  • she should provide up-to-date medical evidence to support the need for carer intervention to prevent skin breakdown;
  • restocking ice and ice packs four times a day would address overheating which could also cause flare ups of urticarial vasculitis (skin lesions caused by inflamed blood vessels);
  • an agency could help with calls if she had difficulties recruiting personal assistants;
  • if she was having problems finding a holistic practitioner she could take this up with her GP;
  • the Respiratory Nurse had recommended an accessible form of oxygen for self-administration;
  • sudden rises in blood pressure were a health need, rather than a social care need which a carer could help with;
  • a medical report from 2008 did not confirm a current need for help managing continence;
  • proportionate” meant using other available resources (e.g. pendant alarm, the Wellbeing Service and the telephone helpline for older people) before providing formal care;
  • it would need evidence of the support carers could provide to address urticarial vasculitis;
  • it had not recommended blended food but using a food processor as less time consuming than grating vegetables by hand;
  • overnight needs could be met by; using a pendant alarm; self-administered oxygen; leaving ice in flasks overnight; a continence review and aids; a medical review to evidence overnight needs; occupational therapy assessment; and a referral to environmental controls;
  • it was offering a direct payment of £80 a week (equivalent to the cost of two days at a day centre) to address the need for social interaction;
  • it had allowed time to clean the areas used for her (i.e. kitchen and bathroom). The Council had not funded practical tasks for some time, so Mr & Mrs X had to fund this out of their joint income;
  • it could not increase her personal budget because of concerns that her carer would not continue to visit if her morning call was only 45 minutes;
  • the Council was not providing funding for carers to massage her, but she could use some the budget for social support to pay for a massage.

It is clear that council had certainly ‘examined’ its responsibilities to meet Mrs X’s care and support needs. It met with her GP to better understand which of her needs were as a cause of a medical need and which were social needs which in our view reflects an intention to pass funding responsibility to health services where possible. 

The council contacted Mrs X again in January 2019 and confirmed that it had not changed its position on her care plan. It recommended a key safe and pendant alarm for her and offered to refer her to an agency that could assist her with managing her direct payments. The council based its recommended care plan on four calls per day to meet her continence and personal care needs plus the equivalent of two days per week at a day centre to meet her social needs. 

Through its contact with medical professionals, the council established that there were several factors Mrs X had identified as affecting her care needs that it could not substantiate. This related to whether she had formal diagnoses of various health conditions, and whether professional recommendations to apply creams and ice to pressure areas had been made. There were a number of aspects of her needs that could not be met through input from a carer such as assistance with esophageal bleeds and spasms across the lower chest. 

The council upheld its decision to reduce her budget to £222.80 per week which was confirmed in a letter to Mrs X dated 6th February 2019. From 12th February 2019, Mrs X received a new package of care consisting of the following:

  • arranged a care agency to provide a 45-minute call each morning to help with: a full body wash, dry and cream; change the bed, if necessary; empty and clean the commode; leave ice and ice packs; leave breakfast;
  • provided £80 a week to meet social needs;
  • provided a direct payment of £142.80 a week to employ PAs for three thirty-minute calls a day to help with toileting, nutrition and personal care.

A further review of her care was undertaken in May 2019. The care agency requested an additional 15 minutes support as their support often overran. Carers had been distracted from their tasks as Mrs X had wanted to talk to them. The care agency also reported that Mrs X was losing calf muscle due to the reduced call times as carers had too little time to apply her cream. 

Mrs X confirmed that she had to talk with the carers as a result of spending so much time alone. The council did not increase the care package and confirmed in June 2019 that it was satisfied that the care package remained sufficient to meet her needs. 

Mrs X chose to use her savings to buy additional care but told the LGSCO that her savings are running out. 

What was found

The LGSCO identified that the council did not comply with the requirements of the care Act 2014 and the Care and Support (Eligibility Criteria) Regulations 2014 when carrying out Mrs X’s assessment in September 2018. It had identified a need for a reassessment because her needs had changed.What it did was carry out a review of her care plan which led to the subsequent changes. This was found as fault because it left doubt as to what her eligible needs were and ultimately doubt over what needs the council was responsible for meeting. 

The council was also found at fault for failing to produce a care and support plan which complied with the Care and Support Statutory Guidance.  The LGSCO also found the council at fault for failing to tell Mrs X the amount of her personal budget. 

The LGSCO importantly flagged a need that was not reflected in the assessment. It made the assumption that ‘it seems likely Mrs X has an eligible need for help maintaining a habitable home as she is cared for in bed and cannot therefore clean the rooms used by or for her, or wash her clothes’. It established that the practice of this council was not to meet such needs and to inform people that they must fund this themselves. It highlighted that the council cannot fulfil its duty to meet eligible needs by telling someone to meet their own needs and this was found to be fault. 

Although the LGSCO found several faults with the actions of the council, this did not mean that Mrs X’s previous, much higher budget should be reinstated. It identified that although the council had undertaken a flawed assessment, there was some evidenced  justification that a reduction in personal budget would be appropriate. The LGSCO did however find the uncertainty of the assessment, failure to meet the need for help with housework and time and trouble of pursuing the complaint to have caused injustice to Mrs X. 

Remedies

The LGSCO made the following recommendations:

Within four weeks the council would:

  • write to Mrs X apologising for the uncertainty caused by its flawed assessment and failure to fully meet her need for help maintaining a habitable home;
  • pay her £650 for the failure to fully meet her need for help maintaining a habitable home;
  • pay her £250 for the time and trouble it has put her to in pursuing her complaint;
  • at a date to be agreed with Mrs X, complete a Care Act compliant assessment of her needs, including a decision on her eligibility, and produces a care and support plan which complies with the requirements of the Care and Support Statutory Guidance;

Within eight weeks provide evidence that it has:

  • taken action to ensure all future assessments comply with the requirements of the Care Act;
  • taken action to ensure in future everyone with eligible care needs receives a care and support plan which complies with the requirements of the Care and Support Statutory Guidance;
  • taken action to ensure in future the Council fulfils its duty to meet the need for help maintaining a habitable home;
  • produced a plan for identifying anyone else with an existing eligible need for help maintaining a habitable home which is not being met and correcting this.

The council was also required to consider the LGSCO report at its full council, cabinet or other delegated committee of elected members and provide the LGSCO with evidence that it had done so pursuant to s.31(2) Local Government Act 1974. 

Points for the public, charging officers, financial affairs officers, service users, family members and advocates

At the crux of this complaint sits a council clearly not understanding its responsibilities under the Care Act 2014. There are three issues that arise:

  1. The council had assessed Mrs X’s needs and has an obligation to ensure that it is clear as to how it finds her eligible for social care to fund her care and support. The council undertook a ‘care needs review/re-assessment’ in september 2018, but this was in fact a review of her care plan. It considered how her needs were being met rather than what her needs were and embarked on a piece of work involving other professionals in what seemed to be an attempt to justify any continuation of spending on her care needs. 

An assessment is not for a specific service, it’s purpose is to determine the person’s needs. The Care Act 2014 states the following:

s.27(4)

Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan or a support plan, the authority must—

  1. to the extent it thinks appropriate, carry out a needs or carer’s assessment, carry out a financial assessment and make a determination under section 13(1), and
  2. revise the care and support plan or support plan accordingly.

If the council believed as it recorded in this instance that Mrs X had had a ‘change in circumstances’, then surely that would be her personal circumstances changing rather than that of the council! The council also cited that the provision of care at the time of review was ‘disproportionate to need’ so we suspect that the motivation to review her package of support less just over 6 months after a previous review had the motivation of reducing her budget. There is no harm in councils reducing budgets or changing the way in which they meet needs, however this must be legally compliant. This council’s focus on Mrs X’s ‘independence’ resonates with the case of Luke Davey (R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308) which confirmed that the duty of the council is not to achieve all the outcomes a person wishes to achieve, but to assess whether the provision of care and support would contribute to those outcomes. Mrs X had a different view to the council as to her needs, and whilst the council tried to find evidence for those needs amongst professionals, it failed to make clear through proper care and support planning and the provision of an eligibility decision which needs it was going to meet. The LGSCO quite rightly found this as fault. 

2. The second and most concerning aspect of this complaint is a finding of the LGSCO that the council had adopted a policy that it ‘did not meet’ the need for support to maintain a habitable environment. It is significant that this was missing from Mrs X’s assessment, as if the assessor had not even been aware that such needs exist and can be met by councils.  The Department of Health Statutory Guidance is clear at paragraph 6.10 that the assessment has to consider all the needs – i.e. the ‘total extent of the needs before the local authority makes its decision on eligibility.  This means the met and the unmet and includes medication and equipment if it solves the issue. Needs are considered in this way in case a person is meeting their needs, but whatever that source of support is then becomes unavailable to them, which could occur for example when a family member is no longer able to help with cleaning or shopping tasks.  

Mrs X’s need for assistance with maintaining a habitable home environment wasn’t considered a need. The council failed at this point. Whilst a council forms its own view about whether the needs are met sufficiently, the council cannot indicate that one type of need takes a higher precedent than others as they do not. The Care and Support statutory guidance outlines this early on and at paragraph 1.6 states: ‘There is no hierarchy, and all should be considered of equal importance when considering ‘wellbeing’ in the round’. So councils simply cannot make arbitrary decisions that they will not or do not provide a particular type or frequency of support as this cannot possibly be person-centred practice. 

3. The third aspect of this complaint that warrants attention is the responsibility of the council to be clear about its determination of eligibility. The Care Act 2014 states in s.13(2) ‘that having made a determination of eligibility the person must be given a written record of it’. This would have enabled clarity for both the council and Mrs X as to what needs the council intended to meet (or not). The LGSCO found this as fault. During review and the gathering of additional information, the council ascertained that Mrs X did not have the needs it first assessed her as having, and should have told her so. Instead she seemingly received no clear information on how her eligible needs had changed. The review undertaken should have triggered a re-assessment which would have resulted in another eligibility decision and in clarity much sooner. 

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

REPORT 19000200 Hertfordshire County Council (192KB)       

Royal Borough of Windsor and Maidenhead at fault for failing to properly consider the risks when separating a married couple of 59 years, failing to provide adequate care and failing to provide appropriate complaint responses

Decision Date: 25/08/2020

What Happened

Mr X complained on behalf of his late parents, Mr and Mrs Y. 

Mr and Mrs Y had been married for 59 years. In recent years their health had deteriorated, which led to Mrs Y receiving a care package from Bespoke, assessed by Optalis in January 2017 (from the report is seems as though this was Council commissioned, but did not explain any details, and specifically states they were assessed by Optails, rather than the Council).  

Mr Y was not assessed until August 2017, which identified that he provided some care for Mrs Y, and identified a need for ‘social inclusion’.

Mr X and his sister Ms Z, had previously provided some level of care, and continued to check in on them periodically. 

In January 2018 Mr and Mrs Y were both admitted to hospital. 

Mrs Y

Mrs Y was admitted into hospital with severe dehydration. Ms Z raised concerns with the Council about the level of care being provided by Bespoke. She said Mrs Y’s mood had deteriorated and she was refusing to drink. Ms Z did not believe care workers were prompting Mrs Y with fluids, did not stay the full time and may have fed her food which was too hot (she thought Mrs Y had a burn on her tongue).

The Council completed a safeguarding enquiry which concluded: 

  • calls were between 5 and 40 minutes. On one occasion Mr and Mrs Y missed out on a total of one and a half hours of care in one day, which the Council noted was significant
  • care logs did not record care workers prompting Mrs Y with fluids
  • care workers had not identified Mrs Y’s burnt tongue. 

As a result, Bespoke implemented a food and fluid chart to monitor intake, and agreed to complete full care time. The issue of the burnt tongue was not solved. 

The Council noted, presumably through the safeguarding enquiry assessments, that the current amount of 4 care calls a day, were not sufficient to provide care to Mrs Y, and that she needed 24 hour care. 

Mrs Y’s family highlighted to the Council that they were very interested in a live-in care worker, because a long-term care placement could have a huge negative impact on Mr and Mrs Y’s mental health, as they had been married so long. To this, the Council stated it may not be able to meet the cost of a live-in carer, and ‘discussed the possibility of combining Mr and Mrs Y’s budgets’ (the report did not go into specifics of what their budgets provided for). There were notes to show that there was a proposal to use a direct payment for both Mr and Mrs Y and fund a live-in care worker and that the family mentioned the possibility of topping up the Council funding if it was not enough.

On 12 March, a social worker emailed the operations manager giving an outline of Mr and Mrs Y’s case. She stated that “[Mrs Y] and her husband have been married for over 50 years and the importance of remaining together appears important to both [Mr and Mrs Y]. [Mrs Y] will noticeably react to her husband’s visits to her in hospital placing his face in both her hands. [Mr Y] has also noticeably declined since [Mrs Y] has not been at home, becoming withdrawn and less able to manage his personal care and nutritional needs”. 

The social worker said she had completed a care needs assessment, mental capacity assessment, and a best interests decision but said “these have not been recorded yet”. The LGO found no evidence that any of these were completed. 

The social worker said it was hoping to be able to arrange DPs for both Mr and Mrs Y, but that it would take a while to arrange, so in the meantime she asked the manager to agree to a nursing home placement for Mrs Y. 

The manager agreed, so Mrs Y was admitted to the care home. There was no evidence of a complete needs assessment. 

Late in the month, the social worker phoned Ms Z to advise that Mrs Y had settled into the care home and was eating and drinking well. They discussed a possible return home, but Ms Z was undecided, she could see that Mrs Y was benefitting from the care, but was unsure how Mr Y would cope. They agreed to wait until the family had discussed options to make a best interests decision about Mrs Y’s long term care. That same day, the Council recorded Mrs Y’s placement as permanent.

Mr Y

Three days after Mrs Y was admitted to hospital in January 2018, Mr Y was also taken to hospital, suffering from dehydration. 

When he was due to be discharged, Mr X complained to Optalis that home would not be a suitable place for Mr Y. It transpired through the LGO’s investigation that Mr Y was not assessed when discharged from hospital. 

Mr Y was discharged to his home with a care package from Bespoke, but later readmitted to hospital, and again discharged. 

In March, Mrs Y’s social worker requested a review of Mr Y’s care package, because she was aware that separating Mr and Mrs Y could have a detrimental impact on their mental and physical health. 

The review was conducted by a student social worker, who noted that there were no changes needed to his support plan, despite Ms Z highlighting that Mr Y was ‘very low’ and had not been eating or drinking since Mrs Y had been in hospital. 

In mid-March, Mrs Y moved into a care home while Mr Y remained at home. At the end of March, Mr Y was admitted to hospital with sepsis and acute kidney infection.

Mr Y was discharged home after around three weeks, following an Occupational Therapist (OT) assessment. The Council increased his package of care to four calls daily.

Mr Y was readmitted to hospital the following day. The ambulance service raised a safeguarding alert citing concerns of neglect and acts of omission. A care worker had visited and was not able to help Mr Y to mobilise as he was too weak and unstable and there were no mobility aids available. 

Mr X was unaware of this safeguarding concern, and the Council had no evidence he or the family were ever alerted. 

The social worker told Mr X that they would need to meet in the hospital and plan Mr Y’s discharge once all reports were completed and he was medically fit.

The hospital would not discharge Mr Y until an OT had visited his home to assess it and he had support in place. The OT discussed plans with the family and they said they would like Mr Y to be at home with Mrs Y because of his depression due to being away from her. They said Mr Y would end up back in hospital if discharged home without 24-hour care. The OT said she felt Mr Y’s needs could be met at home with care workers. She said she would order a hospital bed for him and do a home assessment.

Mr X wrote to the Council and said it had given no consideration to Mr and Mrs Y being married for nearly 60 years. Mr Y would spend his days sitting in the same chair all day except when care workers visited and helped him to the toilet. He asked when Mr Y would have support to visit Mrs Y.

The Council replied stating that it said it would not be appropriate for Mr Y to move into a care home, as was established through assessments. It said if the family could no longer support Mr Y there were “voluntary organisations that could help with shopping and he could pay privately for cleaning and ironing. Voluntary organisations could also provide a befriending service if Mr Y wanted company at home.”

On the 10th of May, Mr Y was discharged from hospital. The Council arranged for Carewatch to take over from Bespoke as it could not restart at the required time.

The next day, Mr X emailed the social worker to complain. He said that

  • He had visited Mr Y the night before and found him in urine-soaked clothes and pad from that morning. He had helped him to bed. 
  • A care worker from Carewatch had visited and left before Mr Y returned from hospital. 
  • Family provided him with an evening meal as he had none, and when a carer turned up at 8:20pm (40 minutes early), Mr Y had said it was too early to go to bed so was left fully clothed in his chair. 
  • The care worker stayed 10 minutes, not the required 30, and did not toilet Mr Y, left all the lights on and left Mr Y’s walking stick far from his chair. 
  • Mr Y tried to get this unaided as he had been sent home without a walking frame. 
  • Mr X said there were no food and fluid charts in place. 

The Council followed up with Carewatch about the failed visits and lack of food and fluid charts, and with the hospital to get the walking frame delivered. A social worker visited and noted Mr Y was happy to be at home. She explained to Mr Y what the care workers should do during each call and spoke to Carewatch to stress that Mr Y should be helped to bed on the last call. She asked Carewatch to arrange for the quality officer to visit Mr Y and this also took place the same day.

On 16 May, the Council completed a risk assessment for Mr Y to go and visit Mrs Y twice a week with a care worker. It agreed a total of three hours weekly for the two visits to Mrs Y

Sadly, towards the end of May, Mr Y collapsed and died in his home with a care worker present. 

The care worker called an ambulance, and called again a second time when he realised Mr Y was not breathing. When the crew arrived, they asked the care worker if he had performed CPR, but the care worker had not, as he had been told by Carewatch not to perform CPR at all. The ambulance service raised a safeguarding alert with the Council. This safeguarding investigation concluded that the allegation was not substantiated, and the LGO was satisfied that the enquiry was carried out properly. 

When the LGO enquired about the lack of Care Act assessments for Mr Y, the Council said that it had experienced high staff and management turnover. It acknowledged that it failed to assess the impact of separating Mr and Mrs Y. The Council said it had since implemented various quality measures and was working to achieve a consistent level of best practice.

What was found

Assessments

The Council took seven months, from January to August 2017, to assess Mr Y’s needs in his own right. This was too long. The Council was at fault. Mr Y’s needs were not adequately met for many months putting him at an avoidable, increased risk of harm.

The LGO found no adequate assessment which properly considered Mr Y’s needs in line with the Care Act after he was admitted to hospital in January 2018. This was fault. As a result, there was no consideration of the risk to Mr Y, despite numerous concerns raised by his family. 

There was no evidence that the Council gave due consideration either to a live-in care arrangement, or a placement with Mrs Y, despite having said it would. This meant the Council could not be clear about the support Mr Y needed or that it met his needs adequately. The LGO stated that this caused Mr Y significant and undue distress and risk of harm. It also caused him actual harm, as everyone involved accepted that this contributed to his worsening condition.

There was also no evidence of the decision for Mrs Y’s residential placement to become permanent. This was fault. This caused her to be at an increased, and undue, risk of harm. Mrs Y did not have capacity to decide about her own care so a best interests decision was needed for this (although the report does not mention a capacity assessment having taken place). There was no record of a best interest decision. This was also fault.

Finally, the LGO highlighted that Mr Y’s separation from Mrs Y due to her move to the care home and the expressed concerns about this, engaged article 8 of the Human Rights Act. Again, there was no evidence that the Council considered whether it was appropriate to limit this right in the circumstances, or any consideration of their human rights at all. Failure to regard its responsibilities was fault. This fault caused significant and undue stress, frustration and outrage to Mr X and Ms Z as they repeatedly raised their concerns, as well as Mr Y because he was unable to see his wife. 

Quality of care

The care provided before January 2018 was inadequate, as it resulted in the hospitalisation of both Mr and Mrs Y. The LGO stated that the failure to provide the care as planned put Mr and Mrs Y at an increased and undue risk of harm.

Mr Y was also left without the care he needed from Carewatch. This was also fault and caused Mr Y to be at an increased and undue risk of harm.

Complaint handling 

The Council was at fault for the way it communicated with Mr X about the arrangement with Optalis and Carewatch. They failed to fully involve him in the process and keep him actively informed. Failure to do so was fault and caused Mr X significant and undue time and trouble, stress and outrage.

Remedies

Unfortunately, Mrs Y had also passed away by the time this complaint was brought. 

The LGO recommended that the Council:

  • apologise to Mr X and Ms Z 
  • pay Mr X and Ms Z £750 each to recognise the distress it caused in failing to properly consider the risks of separating Mr and Mrs Y
  • pay Mr X a further £500 for the time and trouble and distress he was caused in bringing his complaint
  • review any cases where couples are separated by their care needs, to ensure the risks and human rights were fully considered for both parties. Also, that adequate contact is included on the care and support plans
  • review assessment practice across the Council to ensure it is consistent and Care Act compliant
  • ensure it has an effective mechanism for following up where complaints about poor practice have been received and to check that improvements are made and sustained
  • put in measures to ensure complaints about several agencies receive a coordinated response
  • review its commissioning practice when services are rated “Requires improvement” to ensure it considers any increased risk to people.

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

This complaint highlights the impact that councils can have through their failures to know their legal responsibilities and to act upon them.Mr and Mrs Y both had care needs, with Mrs Y’s needs identified and planned for initially with care at home. The quality of that care was clearly not good enough which led to safeguarding processes that also recognised the needs of Mr and Mrs Y. 

The couple had a series of hospital admissions, therefore the council knew that they had needs, yet took seven months to assess Mr Y in his own right. Here we have seen poor recording, but more importantly poor practice on the whole. This man was discharged from hospital without proper assessment of his needs and the risks of him returning home and upon readmission, the hospital helpfully refused to allow him to be discharged without an OT assessment and without an appropriate care package in place. 

Mrs Y on the other hand had hospital admissions, and was then admitted to a care home on a temporary basis. The council did engage with their family to seek a view about how they could both best be supported, however ignored the request for live-in care despite suggesting that their budgets could be combined to fund such care. The issue that many councils neglect to consider is that a person’s budget is not a couple’s budget – each person has their own budget identified through the assessment process. A person’s budget has to be sufficient to meet their outcomes, and had this council assessed Mr Y sooner, it may have been viable for their budgets to be used flexibly enough to provide them with live-in care and keep them together at home. 

The council failed in several ways including in recordings of the assessment and mental capacity assessment process. It had no records of actions claimed to be undertaken by a social worker. What it did have were the student social worker’s comments that there were no changes needed to Mr Y’s support plan despite it being evident that Mr Y had been feeling very low since he and his wife were separated by her health needs and that he had not been eating and drinking since her admission to hospital. We hope that the council will learn from this experience and ensure that both student and qualified social workers understand that such a change in presentation and activity for a person does amount to a need to revise a support plan. 

Councils are obliged to consider the person’s wishes and feelings as part of the assessment process. This situation also engaged Article 8 ECHR as the care arrangements for this couple created a separation that clearly had an impact for their right to a private family life. This couple had been married for 59 years and spent the end of their lives separated. They had been provided with two inadequate care agencies, despite the council being obliged to commission sufficient quality services for people to access care from under s.5 Care Act 2014. 

The decision-making in relation to Mrs Y’s care home placement highlights the impact that each individual decision along the way has had. The decisions pertaining to Mrs Y were as follows: 

  • that her needs were significant enough for her to require 24 hour care in a care home;
  • that the council would set up direct payments to enable Mr and Mrs Y to remain at home together with live-in care. 
  • that until these were set up it was in Mrs Y’s best interests to remain in the care home despite the separation from Mr Y and 
  • finally, that a best interests meeting was needed to determine where her needs would best be met in the long-term. 

So why, we ask, did the council record her placement as permanent on the same day it agreed a best-interests meeting was needed? It appears that this council had no real intention of enabling a person-centred approach for Mr and Mrs Y despite being very clear about the duration of their marriage and potential impact of separation.  

The involvement of the LGSCO in this complaint flags the danger of councils not being aware of or merely disregarding their legal responsibilities. Helpfully the LGSCO has suggested financial remedies, however, since Mr Y has passed away, there can be no remedy that will address the distress and anguish this couple will have experienced at the hands of the council. 

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

https://www.lgo.org.uk/information-centre/news/2020/sep/elderly-man-suffers-after-council-splits-him-from-his-wife

Warwickshire Council at fault regarding mental capacity assessments and failure to provide an advocate

Decision Date: 28/02/2020

What Happened

Ms X, an Independent Mental Health Advocate, complained on behalf of Mr B.

In March 2016 Mr B became an in-patient at a hospital for adults requiring mental health care; it was unclear from the report whether this was voluntary or not.

A mental capacity assessment in January 2017 concluded that Mr B lacked capacity to make decisions regarding his current or future needs.

In April, after his health had improved, Mr B moved to a care home for people with mental health conditions.

The LGO report did not go into any detail as to what his status under the MHA was, and did not mention how it was decided he would move to a care home, or whether his mental capacity assessment was reviewed.

The Council sent Mr B a financial assessment form, which he completed with ‘support during a meeting’ held in July.

In September the Council told Mr B he would have to pay £87.15 per week for his care, backdated to April.

Mr B refused to pay the charges. He said that he had not been told he would have to pay when he moved into the care home.

The Council said that it tried to arrange an advocate for Mr B, probably in connection with the care planning part of the process, but the advocacy service would not accept the referral.

The LGO report does not state when the Council tried to find an advocate, or the reasons the service declined the referral. It simply states ‘An Independent Mental Capacity Advocate (IMCA) must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff) whenever a local authority is proposing to arrange accommodation (or a change of accommodation) in a care home, and the person will stay in the care home for more than eight weeks. The IMCA represents and supports the person who lacks capacity and they will provide information to make sure the final decision is in the person’s best interests.’ Also, the report did not state whether the Council tried different advocacy services – generic ones as well as Care Act or IMCA advocacy services.

The Council took Mr B to the local citizens’ advice bureau in November, where an advisor told Mr B that he did have an obligation to pay the charges. Mr B still refused to pay the charges.

Since July 2017 (three months after moving into the care home), Mr B had repeatedly told the Council he was unhappy living there, and wanted support to move to different accommodation where he could live independently.

The Council said that it helped him make enquiries about suitable supported housing, by helping him attend the Council’s housing department. Again, the report did not specify when, nor whether it carried out any reviews during this period. It is not clear whether any social worker supported him to present as homeless, because he was unsuitably housed, as opposed to merely seeking to register.

In August 2018, the Council again made a referral for an advocate for Mr B to be present when discussing his options for accommodation.

The advocate, Ms X, complained to the Council:

  • the Council had failed to carry out capacity assessments in relation to Mr B’s understanding of the decision to move into the care home, and the financial implications of that decision.
  • the Council had not arranged for an advocate to support Mr B with the financial assessment, or his discharge from hospital.
  • she highlighted that Mr B said he had not agreed to the placement and did not understand that he might have to pay.

In September 2018, the Council undertook a capacity assessment to decide if Mr B had capacity to choose his housing options, live independently and manage his finances independently. Not until February 2019 was it concluded that he was deemed to lack capacity in all areas of the assessment. Again, from the report it is unclear why it took so long to make this conclusion.

The next month, a professionals’ meeting concluded that it would be in Mr B’s best interests to move.

The Council then began taking steps to find alternative accommodation.

Mr B agreed to accept an appointee to manage his benefits and support him with the payment of his bills.

The appointee (undisclosed), found that Mr B’s capital had increased above the threshold for benefits and recommended that he pay some of the outstanding care charges to reduce his capital below the benefits threshold.

The Council said it was then agreed in a multi professionals’ meeting that it was in Mr B’s best interests to pay £3500 of the outstanding charges, which was organised the next day.

Ms X said the decision to repay some of the outstanding charges was made before the best interests meeting, and Mr B did not have an advocate during that process.

She went on to make a safeguarding referral, concerned that Mr B was put under pressure to pay the money.

As a result of a safeguarding meeting, it was agreed to make an application to the Court of Protection for an appointed deputy to manage Mr B’s finances. The report did not state when this meeting took place.

After the £3500 that Mr B already paid, he still owed around £8500 in care contributions.

What was found

When Mr B was discharged from hospital, he was assessed to lack capacity to consent to his placement, and the decision to place him was made in his best interests. The LGSCO highlighted that the Council should have instructed an IMCA to represent and support Mr B. It did not do so, which was fault.

The Council then carried out a financial assessment without establishing whether Mr B had capacity to take part in that assessment. This was fault. The LGO stated that it seemed likely that Mr B would have had substantial difficulty engaging with the assessment process, so the Council should have arranged for an independent advocate to support and represent Mr B. It did not do so, which the LGSCO found as fault. We at CASCAIDr do not agree with the LGSCO on this point as the law does not require councils to provide advocates for the purposes of financial assessment.  

The report states that the statutory guidance requires that a capacity assessment should be carried out when a person’s capacity is in doubt

The LGO stated that the Council should have carried out a capacity assessment to determine if it thought that Mr B had capacity to manage his finances independently. It did not do so until September 2018. This was fault.

Mr B repeatedly said he was not happy living in the care home. Again, the Council should have carried out a capacity assessment to determine if Mr B had capacity to decide where to live. It did not do so until September 2018. This was fault.

The LGO stated it was not satisfied that the decision that Mr B should pay £3500 of the outstanding care charges was made properly. There were no records to show how the decision was made and what factors were taken into account, or that Mr B was provided with the support of an advocate during the decision process. This was fault.

Remedies

The LGO recommended that

  • the Council pay £1000 to Mr B in recognition for distress caused by the build-up of arrears
  • the Council will make a decision about where it would be in Mr B’s best interests to live.
  • The Council should support Mr B to move to alternative accommodation, if it is decided that it is in his best interests to move; and
  • The Council should provide training to social care staff on the Mental Capacity Act.  The training will cover when capacity should be considered, when capacity assessments should be carried out, when best interests decisions should be made and when it is necessary to arrange an advocate. Staff will also be reminded to properly record capacity and best interests decisions.

The LGO further stated: “I am not recommending that the Council write off the outstanding arrears, but I consider it should make a payment to Mr B as a remedy for the distress he suffered as a result of its failings.” It did not recommend a specific amount.

Points for the public, charging officers, financial affairs officers, service users, family members and advocates

There are three key points that arose from this complaint. Firstly, the council carried out a mental capacity assessment when Mr B was in hospital in January 2017. What it failed to do was to appoint an independent advocate to support Mr B. The Care Act 2014 (s.67(4)) sets out that a council must appoint an advocate in the context of care planning as it was with Mr B when the following is satisfied:

The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—

(a)        understanding relevant information;

(b)        retaining that information;

(c)        using or weighing that information as part of the process of being involved;

(d)        communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).

Mr B was moved to a care home for people with mental health problems 3 months after the mental capacity assessment failed to include an advocate. Whilst we do not have the detail of that move from the LGSCO report, we know that it was not until August 2018 that the council referred him for advocacy support and was taking active steps to seek alternative accommodation. This is not just fault, but a clear breach of the requirements of the Mental Capacity Act 2005. This legislation affirms in s.39(4) and (5) that when a council is making arrangements to provide a person who lacks capacity with accommodation such as Mr B’s placement in a care home, this is what it must do:

(4) Before making the arrangements, the local authority must instruct an independent mental capacity advocate to represent P unless they are satisfied that—

(a)          the accommodation is likely to be provided for a continuous period of less than 8 weeks, or

(b)          the arrangements need to be made as a matter of urgency.

(5)          If the local authority—

(a)          did not instruct an independent mental capacity advocate to represent P before making the arrangements because they were satisfied that subsection (4)(a) or (b) applied, but

(b)          subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements, they must instruct an independent mental capacity advocate to represent P.

The LGSCO report found fault with this council for failing to provide an advocate for the purposes of financial assessment. This is not what the law says. The Care Act 2014 says nothing about a requirement for a person to have an advocate for that purpose. What it does is outline circumstances in which an advocate may be required to be appointed in s.67.

The Department of Health Statutory Guidance sets out the following in relation to advocacy support:

8.18 At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the local authority must find out if the person has any of the following as the appropriate person will need to be involved:

  • enduring power of attorney (EPA)
  • lasting power of attorney (LPA) for property and affairs
  • lasting power of attorney (LPA) for health and welfare
  • property and affairs deputyship under the Court of Protection
  • any other person dealing with that person’s affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

8.19 People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be ‘forced’ to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead.

In Mr B’s situation, the LGO report identifies that he was ‘supported during a meeting’ to complete the financial assessment form and it is at this point that the council got it wrong. What LGO says about Guidance requiring a capacity assessment whenever capacity is in doubt is not true. The council should have assessed Mr B’s capacity because of the responsibility of the council to source an advocate if one is needed. When supporting Mr B to move to alternative accommodation, the council then carried out a mental capacity assessment and this took five months to conclude that he lacked capacity to make decisions about his finances. He should have received the support much sooner as we can see from the LGSCO report that he ‘agreed’ to an appointee acting on his behalf who then determined that paying a £3500 debt was in his best interests. It is unclear whether the council were acting as appointee for him, and if they were we would have been concerned at this being a clear conflict of interest. We do suspect that this was the case, given the appointee determining the need to repay a debt that Mr B incurred without having had the relevant support in relation to his finances.

The LGSCO was right to determine that the decision-making by the appointee was in doubt – the recording should have indicated how the decision was made. However, when someone has an appointee, they are ‘appointed’ by the person who would not then require an advocate as the person’s interests become the responsibility of the appointee.

In terms of the reimbursement of £3500 to Mr B, the LGSCO determined that once the Deputy was appointed, if it decided that the payment was wrong then Mr B would be reimbursed. Depending on how long that would take, Mr B would still be unable to use this money and it is our view that a reimbursement on the basis of goodwill could have addressed this for Mr B.

The complaint was raised by Mr B’s independent mental health advocate who clearly knew some law and did her job in raising this on Mr B’s behalf. The challenge to the council led to the LGSCO recommendation for training for social care staff. This training was required to focus on the basics including when a mental capacity assessment be considered, carried out and when an advocate should be appointed. It is disappointing that these matters are still an issue for councils despite the number of years the Mental Capacity Act 2005 has been in force. 

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 Warwickshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/18-017-301

Staffordshire County Council at fault for delay in reassessment and not meeting an assessed eligible need

Decision Date: 03/03/2020

What Happened 

Mrs X complained on behalf of her grandmother Mrs Y.

Mrs Y lived in sheltered housing. In March 2018 the carer she had been privately funding fell ill, so Mrs X contacted the Council for support. 

The Council arranged to assess Mrs Y on 27 April. Until then, Mrs X arranged for three calls a day from Care Agency A to meet her care needs.

The assessment identified Mrs Y as having eligible care needs and arranged for a carer to visit four times a day to help with maintaining a habitable home environment, amongst other things (maintaining personal hygiene, managing toilet needs, being appropriately clothed, managing and maintaining nutrition)

Mrs X expressed that they would like to continue using Care Agency A, and Mrs Y had already established a good relationship with its carers.

The assessor noted that Agency A charged more than the Council’s hourly rate of £16.10. She said the Council could broker an arrangement with another care agency (B), which Mrs X accepted. The assessor said: “cleaning will have to continue as a private arrangement”. She also told Mrs Y cleaning, shopping and laundry would have to be set up as a private arrangement if Mrs X could not continue to help.The LGO report did not go into detail as to why. 

Care Agency B met with Mrs Y on the 8th of May to draw up a support plan to put in place the next day. 

On the 9th of May Mrs X told the Council Mrs Y was not happy with agency B and wanted to have direct payments so she could make her own arrangements. She said agency B had spent too long with Mrs Y the day before, and the carer who visited was “useless and didn’t do anything for her”, and would not do any of her shopping and cleaning. 

The Council told her she would have to pay privately for shopping and cleaning (despite it being included in her care plan) and said she would need direct payments to use Agency A and pay the difference as it charged more. 

Mrs Y agreed to this and said Mrs X would sort this out for her. Both care and direct payments were arranged by the 14th of May. 

Mrs X called the Council on 25 July to ask for a reassessment as she thought Mrs Y needed residential care. She thought that Mrs Y needed more than four calls a day and noted neighbours were going in between Agency calls to empty the commode and providing extra support. 

She called again on the 30th July to say that Mrs Y’s neighbours had entered her flat intoxicated on numerous occasions. The Council said to advise Mrs Y to use her pendant alarm if people came into her flat again, whilst the landlord tried to sort out the problem. 

Mrs X called again a month later on the 30th August, as she had still not heard anything further about Mrs Y’s reassessment. She said that Mrs Y’s health was deteriorating, and the police were now involved with the neighbour situation. The Council said it would prioritise the request for a reassessment.

The Council visited Mrs Y on 4 September. It decided there was no need to complete a reassessment as “Mrs Y had no night-time needs” and therefore would not consider residential care.

Mrs X in the meantime was also visiting her father daily, as he had recently suffered a stroke.

On the 8th of September Mrs X called the Council again, highlighting Mrs Y’s struggles; she had been seen by her GP because she said she did not want to be alive anymore, and the evening care call was too late for Mrs Y. 

The Council agreed to visit Mrs Y the next day to do a “safe and well assessment”. It said she was probably “too full of capacity to settle into a respite unit very easily”. !

During that visit Agency A said Mrs Y had “become extremely anxious and was screaming that she wanted to die and did not want to be alone anymore”. Her neighbour said Mrs Y regularly fell in the night and he was visiting her at least 12 times a day, but would not be able to continue doing so, and Mrs X still thought Mrs Y would be safer in residential accommodation. 

At that point, on the 10th September, the Council identified the need to do a full reassessment, more than 8 weeks after the request from her daughter.

Mrs Y went into hospital on 14 September as she had pains in her stomach. She died in hospital on 3 October.

The Council accepted there was a 13 day delay in responding to the reassessment request. (Although actually completing the reassessment took much longer) 

The Council said it’s general policy did include meeting the need for help maintaining a habitable home and from the report offered no explanation as to why it refused support as part of Mrs Y’s package when it was identified as an eligible need. 

What was found

The Council failed to help Mrs Y maintain a habitable home, despite it being assessed as an eligible need. This was fault. The Council could not fulfil their duty to Mrs Y by telling her she needed to pay for the support herself. 

The LGO highlighted that the Care and Support Statutory Guidance clearly states “there is no hierarchy of needs”. So the need for help maintaining a habitable home was just as important as the need for help maintaining personal hygiene, or any of the other outcomes identified by the Care and Support Statutory Guidance.

The Council accepted there was a delay in responding to Mrs X’s request for a reassessment on 25 July. They did not visit until the 4th of September despite Mrs X making it clear the current care package was not meeting Mrs Y’s needs (the neighbours were providing support and the care calls were not enough). This delay was fault. 

The Council did not complete an assessment on the basis Mrs Y had no night-time needs and would not therefore be eligible for residential care. That was also fault which the LGO stated resulted in it failing to address the inadequacies of the current care package.

The LGO was of the view that the Council should have considered respite care for Mrs Y in September 2018. However it ruled this out on the basis she was “too full of capacity” to settle in respite care. The LGO stated that it seemed likely that if anyone had discussed the possibility with Mrs Y, she would have been happy to accept the offer. 

The LGO could not provide a remedy to Mrs Y, as she had passed away. However recommended the Council write to Mrs X apologising for its failings and pay her £300 for the distress it has caused and the time and trouble it has put her to in pursuing her complaint. Furthermore, within eight weeks takes action to ensure officers consider the use of respite care when appropriate and it fulfils its duty to meet the need for help maintaining a habitable home.

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

This complaint highlights the way in which councils demonstrate a poor understanding of their responsibilities under the Care Act 2014, which in turn leads to inadequate support, delays and ultimately a significant impact on the person’s well-being. 

Taking the issues in this case, we can identify several ways that Staffordshire County Council failed Mrs Y, the first of which relating to its assessment and care planning. The council had assessed Mrs Y as requiring assistance with shopping, cleaning and laundry. Despite these needs being clearly contained within the care plan, it then tried to suggest that these had to be funded privately. Why, we ask, since the council had assessed and found Mrs Y eligible did it not then accept its responsibility to meet those eligible outcomes?

Put simply, this council had decided to apply a blanket policy of not funding certain ‘types’ of care. This is an arbitrary and therefore unlawful restriction of what it will and will not fund. The Care Act 2014 states this in respect of eligibility:

s.13(3) Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

  1. consider what could be done to meet those needs that do,
  2. ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

      (c) establish whether the adult is ordinarily resident in the local authority’s area.

Considering what could be done, does not mean that the council can just say that a person has to meet their own needs for a particular type of care. The Department of Health Statutory Guidance states that there is no hierarchy of needs and that certain types of needs should not be categorised as more important than others, so the person’s needs have to be looked at in their entirety. The council in this complaint failed to do just that. 

The council was also found at fault not only for its delay in assessing Mrs Y’s needs, but also for the basis on which it refused to assess, when Mrs X had clearly alerted it to a change in circumstances for Mrs Y. Under s.9 Care Act 2014, the law is clear about when and on what basis a council should assess:

  1. Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
  1. whether the adult does have needs for care and support, and
  2. if the adult does, what those needs are.

The law goes on to state that:

 s.9(3) 

The duty to carry out a needs assessment applies regardless of the authority’s view of—

  1. the level of the adult’s needs for care and support, or
  2. the level of the adult’s financial resources.

To state that a council will not assess or re-assess the person’s needs because they ‘have no night-time needs’ that would warrant a residential care placement completely overlooks the fact that a council is not assessing for a specific service such as day care or a care home, it is responsible for assessing the what the person’s needs are per the s.9 duty! 

The council then attempted to evade its responsibilities even further by identifying Mrs Y as ‘too full of capacity for respite care’ – we are not sure that this council understood that respite care could have been offered to Mrs Y and that this use of care could have informed a reassessment of her needs and supported her safety. It sounds as though the council was making an assumption that Mrs Y would simply choose to vote with her feet and not go into a care home even on a short term basis. It never offered this option to her – and saved paying the cost of the placement which could have made a real difference to Mrs Y’s health and well-being. We at CASCAIDr suggest that had Mrs Y not passed away, a significant financial remedy to her would have been highly appropriate. 

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

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

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-011-306

Sheffield City Council at fault for wrongly charging top-up fees and having an arbitrary ceiling to personal budgets

Decision date: 26/3/2020

What Happened

Mr B complained on behalf of himself and his mother, Mrs C. 

Mr B lived about 100 miles from Mrs C. She lived alone with a support package in place. The report did not specify what support was provided. 

At a date not specified in the report, the care agency raised concerns about Mrs C’s safety with the Council (for reasons unknown), which resulted in her going to an emergency temporary placement in a care home. Mrs C paid the Council’s set respite rate for the temporary stay.

The Council completed an assessment which led to a decision that Mrs C needed 24 hour care and that it would be unsafe for her to return home.  It also assessed that Mrs C lacked capacity to decide where to live. 

During a best interest decision meeting Mr B stated several times that he did not want Mrs C to have to move from the care home she was in, because she had already been there for 10 months and was settled. All parties agreed Mrs C should remain at the placement which originally started as respite.

Mrs C became a permanent resident in September 2018, however the reasons why were unclear as the best interest decision was not made until March 2019. 

From the time Mrs C became a permanent resident, Mr B was charged a weekly third party top-up fee of £40 by the Council. 

Mr B questioned this but was told if he did not pay then Mrs C could not stay there. 

The LGO report stated that the care provider told Mr B the top-up was ‘law’ and the Council said there is no leeway.

The Council said the maximum weekly amount it would pay for a place in a residential care home was £481.The report did not state how much Mrs C’s placement cost, or if there was anyone else in the care home with care costing more than £481.

What was found?

The Council cannot have an arbitrary ceiling to personal budgets. It was fault to say the maximum it would pay for a care home was £481. This could be used as the indicative personal budget, but if somebody’s needs required a more expensive setting, then the Council must adjust the personal budget accordingly and not expect family to fund a shortfall by way of a top-up.

The best interest decision, agreed by all parties, was that Mrs C should remain at the current care home. Therefore, the Council should have increased her personal budget to meet that cost, rather than ask Mr B for a top up. This should apply for the whole of her permanent placement.

The LGO expressly highlighted how worrying it was to hear the care provider tell Mr B if he didn’t pay the top-up Mrs C would have to leave. The Council is liable for the full fees of the contract. If Mr B had stopped making the payments the Council would have had to pay the full amount, until it either recovered the fees from Mr B or made alternative arrangements to meet Mrs C’s needs. 

The LGO stated that Mr B should never have felt threatened to pay fees in such a way. If a top-up is appropriate the council must ensure the person is willing and able to meet the additional cost for the likely duration of the arrangement.

Remedies

The LGO recommended that the Council;

  1. Apologise to Mr B for wrongly asking him to pay a top-up for Mrs C’s care fees, when the Council agreed it was in her best interests for this care home to meet her needs.
  2. Pay Mr B £250 to acknowledge his distress, time and trouble.
  3. Refund Mr B the additional top-up payments he has paid to date.
  4. Pay the full cost of Mrs C’s care fees at the current placement, until such time as any best interest decision is made that it is in Mrs C’s best interest to move. As with any change in circumstance, the Council must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to Mrs C’s wellbeing.
  5. Remind relevant staff that they cannot have an arbitrary ceiling to personal budgets. The £481 is a guide as to what is available within the local market but cannot be the maximum the Council will pay if someone’s needs require a more expensive setting, or a setting within that budget is not available.

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

The LGSCO quite rightly identified that this council erred in its decision-making and allocation of Mrs C’s personal budget. The budget has to be sufficient and adequate to meet the person’s needs, so an arbitrary amount of £481 is not a figure that can be applied in all circumstances as a blanket decision. The Department of Health Statutory Guidance states this:

11.10 The personal budget must always be an amount sufficient to meet the person’s care and support needs, and must include the cost to the local authority of meeting the person’s needs which the local authority is under a duty to meet, or has exercised its power to do so. This overall cost must then be broken down into the amount the person must pay, following the financial assessment, and the remainder of the budget that the authority will pay.

Mr B felt compelled to pay a third-party top-up to enable Mrs C to remain in the home she had moved to temporarily. it appears that the comments from both the provider and the council were wrong. Of course the council would have ‘leeway’ and the law is clear. The guidance assists again for those wanting clarity on this issue:

11.14 Similarly, there will be cases where a person or a third party on their behalf is making an additional payment (or a ‘top-up’) in order to be able to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. In these cases, the additional payment does not form part of the personal budget, since the budget must reflect the costs to the local authority of meeting the needs. However, the local authority should consider how best to present this information to the individual, so that the total amount of charges paid is clear, and the link to the personal budget amount is understood.

Applying this to Mrs C’s situation, the facts of this complaint suggest that there was a funding shortfall which is a commonly experienced scenario in Adult Social care, especially where a council uses a ‘rates’ based approach to its funding decisions. Where someone moves into a residential placement whether by their own choice and then falls below the threshold for the council to fund their care or by the council ‘placing’ the person as happened with Mrs C, councils will often reach a crossroads where they are considering moving the person rather than paying an additional amount if a cheaper option had not been available. 

Where this arises, the council is obliged by the care Act 2014 to consider the person’s wishes and beliefs and take into account the impact on the person’s well-being. The option of a third-party top-up exists to facilitate a wider choice than the council will make when funding a care home placement, but for Mrs C, the council had assessed her as needing 24-hour care and deemed this particular home as the best way to meet those needs.  

She had been there on a temporary basis for ten months and then the council decided it would make a best-interest decision about its longevity. This decision took the council from September 2018 when it decided she should remain as a permanent resident until March 2019, yet the council started to charge the additional top-up from the date it made the placement permanent. This resonates with different departments within councils doing different things and information systems driving charging processes. The LGSCO finding that the council should not have asked Mr B to fund a shortfall from the point the best-interest decision was made was a right one and this we fear is happening in many councils where individuals are not aware of their rights and councils want to shirk their responsibilities. 

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

The full Local Government Ombudsman report of Sheffield City Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-009-239#point5

London Borough of Croydon not at fault for its decision to keep a couple in their current care home, as it followed the Code of Practice set out in the Mental Capacity Act 2015 properly.

Decision Date: 27/03/2020

What Happened

Mr X complained on behalf of his parents in law, Mr and Mrs Y. 

Mr and Mrs Y lived together at a care home (care home A), assuming from the report that it was council funded. 

In June 2019 Mr X expressed to the Council that he and his family wanted to move them to a different care home, as they were concerned about the care they were receiving. The report did not elaborate on the concerns or wider circumstances of the care. 

Mr X identified a suitable alternative placement. The Council initially agreed to the move, but stated it would need to contact Mr and Mrs Y for their opinion. 

Mr and Mrs Y were allocated a social worker to review the care at care home A. It is not known whether the social worker considered the need for Mr and Mrs Y to be supported at the review. This review highlighted that Mr Y said, “I don’t mind staying here I feel ok in myself”, and that he had no complaints. There was no concern about Mr Y’s capacity to make this decision.

The report stated that Mrs Y seemed to be confused about where she was, and that she appeared unwell. While the report does not states whether the planned review went ahead, it identifies that the social worker visited again with someone from the Council’s safeguarding team two weeks later, in mid-July, to complete a mental capacity assessment. 

This assessment concluded that Mrs Y did not have capacity to make a decision about where she lived. It stated that Mrs Y was “unable to make the specific decision because she appeared unable to recall what the options were and was unable to recall the conversation when asked”.

A Best Interest Meeting was held in August, but Mrs Y was too unwell to attend. Mr Y was there, along with two social workers, and Mr and Mrs X. The LGO stated that after examining the minutes of the meeting, he was satisfied that all parties were consulted and offered the chance to present their views. 

Mr Y read out a prepared statement outlining how he was unhappy with care home A, and that he did indeed want to move. 

When questioned further during the meeting, Mr Y said he could “not really say if he wanted to move to another care home because he needed to discuss this with his wife and agree together what they wanted to do”. This change of view appears to underpin the Council’s decision to carry out a best interest decision process for both parties, rather than solely for Mrs Y. 

The ‘Chair’ concluded that other family members should be consulted before a final decision was made. This included discussion with Mr and Mrs X. The council did explore their preferred home and alternative options but the issue here was about whether it would be in Mr and Mrs Y’s best interests to move at all. 

Copies of emails between family members and the Council highlighted Mr & Mrs X’s dissatisfaction with the way the Council was dealing with the request to move Mr & Mrs Y. 

The Council completed the actions agreed at the Best Interest Meeting, and it was determined that it was not in Mr & Mrs Y’s best interests to move.

What was found 

Overall, the LGO found no fault in the way the Council acted in deciding it was not in Mr and Mrs Y’s best interests to move care homes.

The Mental Capacity Act 2005 gives clear guidance of the process a Council should follow where a person’s capacity to make decisions is in doubt, and where there is a difference of opinion between family members and the Council.

When Mr X first contacted the Council to request a move, a social worker visited Mr and Mrs Y to ascertain their wishes, and confirm their capacity to make the decision. The Council acted correctly in doing so. 

It was initially determined that Mr Y had capacity to decide whether he wanted to move. However, when he was questioned about his opinion during the best interests meeting, he appeared confused and unsure, which cast doubt on his reasons for changing his opinion. The Council took account of this in its decision making which it was entitled to do so.

The LGO stated that there was no fault in the way the Council initially assessed Mrs Y’s capacity. 

Furthermore, there was no fault in the way the Council conducted the Best Interests Meeting. The LGO found that all parties were offered sufficient opportunity to present their views, and these views were appropriately considered.

There was no evidence of delay from the Council in completing the capacity assessment and best interest process. 

The LGO concluded that the Council adhered to the code of practice set out in the Mental Capacity Act 2005 correctly

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

The LGSCO found no fault with the way in which the Council carried out the assessment of capacity and subsequent decision-making in respect of Mr and Mrs Y. This has enabled clarity for  their family members who were unhappy with the decision by the Council but has enabled them to exhaust the routes of complaint in this regard. 

This reflects the importance for Councils to respond in line with law and guidance when faced with conflicting views of family members. Where there is conflict this does not negate the decision-maker’s responsibility, nor does it allow him to ignore views of concerned family members. The Mental Capacity Act 2005 (s.4(7)) requires the following:

He must take into account, if it is practicable and appropriate to consult them, the views of—

  1. anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
  2. anyone engaged in caring for the person or interested in his welfare,
  3. any donee of a lasting power of attorney granted by the person, and
  4. any deputy appointed for the person by the court,

as to what would be in the person’s best interests .

The Mental Capacity Act 2005 Code of Practice offers further guidance for decision-makers when faced with a situation of conflicting views. It states that  decision-makers must always ensure that the interests of those consulted do not overly influence the process of working out a person’s best interests (paragraph 5.67). The relatives of Mr and Mrs Y were concerned about the quality of care within the home and wanted Mr and Mrs Y to move. The council have correctly used the guidance to take into account these views in determining what really was in the best interests of this 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 Croydon Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-007-129

Leicestershire Council at fault for failing to arrange home care within a reasonable timescale, and failing to provide information about direct payments

Decision Date: 12/03/2020

What Happened

Mr C complained on behalf of his father, Mr B.

In January 2018 the Council organised reablement care for Mr B after was discharged from a short stay in hospital. It was unclear from the report as to whether his condition was well enough that he feasibly could have gone home.  

It transpired that the reablement team were unable to provide care immediately, so the Council organised for Mr B to go into residential care on the 20th, until he could start receiving care at home on the 23rd

Mr C agreed to pay a third-party top-up fee of £80 per week (from when the interim care started, whilst Mr B was in residential care), and Mr B would contribute £40 per week as a ‘flat-rate interim bed fee’ and the Council would pay the rest. 

Reablement is free, so judging from the report, Mr C agreed to contribute in order for his father to go to the care home they both preferred.

When Mr B’s home care was due to start, on the 23rd, his family thought that he was not ready to return home and arranged for him to stay at the care home for a few days longer (after the Council discussed this with the care home). 

After this arrangement was made, the Councils reablement team closed his case because ‘it did not know when he would be likely to access the proposed care”.

On 1 February the Council told the family that it would no longer contribute to Mr B’s care home costs, as he had chosen to stay there, rather than needing to stay there. Mr C agreed to pay for the care up to that point, but asked for a home care package to be put in place straight away. 

The next day the Council completed a full care and support assessment.

By 12th March the Council had been unable to find a home care provider, so Mr B remained in the care home. It told his son, Mr C, that if he could find someone to deliver the care, he could receive direct payments. (Mr C had been paying for the residential care until the Council could find a suitable home care package).

Mr C agreed to the direct payments, and care was arranged (it was unclear who organised this) for Mr B starting 26 March. Mr B contributed around £40 per week towards this care. 

In May the Council completed a financial assessment which concluded Mr B should contribute £179.09 per week from 23 January to 25 March (the period he was in residential care, but did not need to be. The reablement team closed their case when he went into residential care on the 23rd January). It sent Mr B an invoice for £1,609.08. 

The Council also sent Mr C an invoice for £754.29 – his £80 weekly top-up fee for the entire period when Mr B was in residential care. 

We assume that Mr C complained about both invoices, which led to the LGO investigation. 

What was found

The LGO stated that the Council was not at fault for Mr B remaining in residential care, as it was his family’s choice. Both Mr B’s daughter and Mr C felt it would be best for him to stay in the care home.  

However, after Mr B’s assessment on the 1st of February, his family asked the Council to arrange home care. The Council failed to arrange suitable home care, or alternative care, which was fault. Mr B was left paying a contribution towards a service which the LGO considered to be ‘completely disproportionate’. 

The Council also failed to advise the family of direct payments after its assessment in February. It did not provide specific information to Mr C until 12th March, over five weeks after its assessment. This was fault.  

The LGO highlighted that it seemed likely that if Mr C had known about the option of direct payments, care may have been arranged sooner, so the Council’s failure to tell him ‘significantly contributed to the overall delay’ in home care. 

As Mr B’s needs were being met in the care home, the only injustice the LGO considered was a financial one. In residential care he paid a contribution of almost £140 per week more than when he received care at home. Mr C also had to pay a third-party top-up fee, which he would not have needed to do if home care had been arranged sooner. 

Remedies

The LGO recommended that the Council pay Mr B £700 in recognition of sums paid towards residential care, which he did not need, when the Council failed to arrange home care for him.

It also recommended that the Council pay Mr C £400 in recognition of the extra third-party top-up fee he had been paying during Mr B’s unnecessary residential care. 

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

Initially, Mr B would have stayed in a residential care home for three days prior to his home care becoming available so that he could return home from hospital. He finally returned home 3 months later, after being informed only latterly about direct payments which enabled the care he required to be sourced. 

The Council’s reablement service was not able to respond to the demands placed on it so Mr B and his family accepted a temporary stay within a residential home to enable him to be discharged from hospital. Mr C personally paid a third-party top up towards this care and although reablement support is free, his contribution reflected the fact that he chose the home he stayed in. 

When his home care became available, his family did not think he was ready to return home so he remained in the residential home at their (and presumably his!) request. The Council was not found at fault in relation to its decision to no longer fund the placement, as this was Mr B’s choice to do so albeit with the support of his family who were concerned about him. The Council invoiced Mr B for the continuation of his contribution. 

The Council then assessed properly for the first time, it seems, and Mr C and his family requested at that point for Mr B to return home with home care support. The Council were unable to provide this and offered no alternatives, but the care planner’s agreement that this is what he needed was a clear indication that Mr B was no longer making a choice to remain in a residential care home. He remained for a further 6 weeks until the Council found home care for him. The Council were found at fault for Mr B having to remain in the home when he did not need to and for him having to have paid towards that stay. 

The Council can of course choose whether to charge a person where it is arranging to meet needs and in this case, the LGSCO required the Council to pay Mr B £700 towards the amounts paid that he didn’t need to, which was a choice that it should have had the sense not to make, given it is a breach of statutory duty to meet needs inappropriately. 

The Council eventually provided Mr B information about direct payments when it could not source home care. Had it done so sooner Mr B could have returned home sooner. The Care Act 2014 (s.4(2)(b)) requires councils to ‘provide information on the choice of types of care and support available and the choice of providers available in the person’s area’. It is clear that in this case, Mr B was unaware that care providers in his area did have availability and if those were not contracted to the council, then it ought to have offered a direct payment. 

There is no legal duty to tell anyone about direct payments, but after an assessment that ends up with an eligibility decision, there is a duty in s13 to consider what can be done about meeting need and find out whether the person wants the involvement of the council to move on to care planning. So it is good practice – especially when the council thinks it can manage the legal risk from failing to commission enough reablement or home care (or paying an inadequate price to attract more hours of supply?) by using what would sometimes, though not here, be an inappropriate setting to meet needs within. Telling people about direct payments means that in theory they can meet their own needs by buying from off framework providers, and by employing people directly. 

The recommendation to reimburse Mr B for his expense for his unnecessary extended residential stay when home care was unavailable flows from the law of restitution – it is an order to disgorge the saving made from acting in breach of duty (see CP v NE Lincs on this site)

The specifics of a reablement service are a power, not a duty, that is enforceable as such; a reablement service is a form of prevention and reduction, and does not have to be provided, in legal terms, but it must be free. 

When it is provided by way of deferring the need for a proper assessment, then clearly, it is being provided under s19 as a solution to an urgent need, and in that case, it is the sole justifiable way of exercising that power, so it does need to be commissioned as a spot contract, not just regarded as not available, and not just fallen back on , informally, when the nature of the setting would NOT meet someone’s needs appropriately. The duty to promote wellbeing includes the duty to promote people’s financial wellbeing, too!  

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 Leicestershire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-017-173