Decision date: 25/02/20
Ms C has impaired sight and was initially referred by her GP for a social care assessment in March 2018 due to Ms C feeling isolated and unsupported at home.
The Local Authority (LA) arranged an assessment with her before the end of the April. That turned out to be only a ‘screening’ assessment which identified that Ms C would ‘like’ her assessment to consider her need for support to access the community safely, community-based support that would promote her independent living skills and support her to develop friendships and a support network. Ms C identified that she wanted to continue to operate her business making hats and wigs from home but required some additional support to be able to do so. She also identified that she struggled with some aspects of cooking.
The main outcomes of the initial conversation for Ms C were that she would like a PA to assist her within the community, support with housework, support with shopping and cooking meals and support to enable her to manage her personal care independently.
The LA deemed that a referral to a specialist sight impairment team would be useful as a more thorough assessment was required.
Ms C waited from May until August for this assessment to take place. According to the records, the Sensory Loss Team manager asked for extra information and cancelled the referral on 15 May 2018. The social worker sent more information the following day. However, there was no evidence the SLT manager considered this, or that the social worker assured herself the SLT had now accepted the case. In fact it was not opened at SLT level. In August a new process identified the same outcomes as before but nobody DID anything about implementing the suggested routes for support.
The assessor did not provide Ms C with any update on progress or the outcome of the assessment process.
In November 2018, the LA carried out a further assessment of Ms C’s needs. This was not recorded, however, so the LGSCO was unable to ascertain if this was properly carried out. From this assessment there was no referral for mobility support or for reablement services which would have benefited Ms C. The assessor had also agreed to investigate voluntary community support that might meet Ms C’s outcomes. There is no evidence that this took place. They only ordered her a light for use at home.
The assessor ultimately concluded that Ms C’s outcomes could be met with 8 hours’ support per month. Ms C disagreed with this. There was no evidence as to how the 8 hours was regarded as appropriate by the worker or any evidence of discussion as to some of her needs perhaps not being eligible. Ms C was not provided with advice as to how else her needs might be supported, if they were not, nor what she could do to source help for herself.
Ms C initiated the complaints process in August 2019 but made it clear to the LA that she wanted the proposed support whilst her complaint was progressed.
Following a councillor’s enquiry, a further assessment of her needs took place by a Senior Practitioner and member of the Sensory Impairment Team. This assessment also concluded that her needs could be met with 8 hours’ support per month. In addition to this the assessor deemed that Ms C would benefit from mobility practice with a senior sensory worker and some reablement input. But again, nothing actually happened to take any of it forwards.
In October 2019, a mobility assessment took place. Ms C again highlighted the difficulties she had with accessing the community due to her impaired vision. This resulted in 3 sessions of mobility training. She has still not yet received reablement input regarding her use of the kitchen.
The LA comments on the case to the LGO were that urgent needs, where risk was identified if nothing were to be done, would be met whilst an assessment process continued. The LA confirmed that there was one sensory impairment worker and the wait time varied between 2 weeks and 4 months. On average, this wait would be 6-8 weeks. The LA acknowledged that a clear pathway for people with sensory loss or impairment was required and since November 2018 has restructured its teams to allow for quicker referrals.
What was found
Applying the statutory guidance that the LA should carry out an assessment over an ‘appropriate and reasonable timeframe’ (Department of Health, Care and Support Statutory Guidance 6.29), the LGSCO found the LA at fault.
The LGSCO also made reference to the ADASS position statement in relation to this area which highlights the importance of the local Adult UK Eye Health and Sight Loss Pathway. It identified that all those involved with vision rehabilitation should ensure that the assessment process is carried out promptly due to the potential impact for the person in need of support. The ADASS document says this:
“The RNIB recommends that assessments are carried out within 28 days, and that support begins within 12 weeks of a person’s initial contact with the local authority.”
The LGO investigator said this: “The Adult UK Eye Health and Sight Loss Pathway referred to above, says that:
‘A Specialist Visual Impairment assessment of social care need, should be followed by a Visual Impairment Rehabilitation Programme, followed by a Community Care Assessment.’ ”
The three months Ms C had to wait for a sensory assessment was determined to be an unacceptable delay and therefore the LA were found at fault.
The lack of evidence that the LA had explored community-based options that may support Ms C was found to indicate fault as well.
The LA failure to record the assessment that took place in November 2019 was also fault.
Ms C had experienced four assessments and a 20-month period until her mobility assessment and is yet to receive reablement support in respect of domestic and household tasks, cooking and personal care support.
The LGSCO found fault in the failure to communicate with Ms C about the delays in the assessment process, the outcomes of her assessments or share her subsequent assessment and support plan documents with her.
The LGSCO also found the council at fault for its lack of supervision and support systems in place which had allowed Ms C’s case to ‘drift’.
Ms C experienced significant injustice because of the LA’s failings. The delays in her receiving mobility and reablement support led to a delay in the development of her independence. The delays in receiving support to access the community prolonged the period of isolation she has experienced along with the risks presenting both within her home and when accessing the community.
The report also conveys the tone and approach of a ‘Three Conversations’ based model where Conversation One is what is the problem really about and what can be done about it by the service user; Conversation Two is about whether there is any immediate risk, and Conversation Three is about whether the council really has to spend any money at all.
That sort of approach being found to be ‘fault’ is a very important lesson for councils, it is suggested. Of course assessment and care planning can be conversation based, and use of that model need not be maladministrative OR unlawful; but it must deliver on all the obligations in the Care Act, and be located within the steps envisaged by the Act itself, which would rather tend to raise the question whether it saves any time at all, to our minds.
The LA was required to provide Ms C with an apology and compensation for fault:
- £500 for the distress she experienced.
- £2,000 for the unreasonable delay in providing Ms C with a care package, between March 2018 and August 2019
- £950 for the unreasonable delay in providing Ms C with mobility support and reablement support as already found to be needed.
- The council must deliver the reablement support already found to be needed.
- Review its decision only to allocate one hour a month for ensuring Ms C’s house is clean and free from trip/fall hazards, and subsequently explain to Ms C how it has calculated this.
- The LA’s agreement to review its decision in regard to the allocation of support hours for Ms C’s direct payment to access the community and the allocation of hours required for keeping her home clean and for her personal care, was also required.
The LA was also required to issue a reminder to its staff about the importance of sharing the outcome of assessments and to ensure that people receive a copy of their assessment and/or support plan promptly, as per sections 12 and 25 of the Care Act.
Additionally, the LGSCO required the LA to carry out a review of its pathway for sensory impairment within 8 weeks and to ensure that people received support services within 12 weeks of assessment.
The LA accepted the recommendations and has confirmed that it is reviewing and finalising its pathway for people with visual impairment and the process to allocate and monitor cases within the Sight Loss Team.
Points for the public, service users, family and peer supporters, advocates, and councils etc.
This case highlights the reality of lived experience of LA systems and processes. The delays that Ms C experienced will no doubt have impacted significantly on her wellbeing and outcomes.
In public law legal terms, the LGO effectively followed the legal principles that have been established over many years, in finding
- that the delay was unreasonable and indefensible;
- that the assessment and/or the care plan were irrational in the sense of not appearing to be based on any defensible reasons or evidence and thus merely arbitrary
- that the council was in breach of statutory duty in failing to provide that which had been regarded as an essential means to meet the needs (kitchen reablement and until lately, the mobility training)
- that the council had acted in error of law in suggesting or expecting the client to use her own benefits to pay for the meeting of eligible assessed needs
- that the council had acted in breach of some of the paperwork-based duties in the Care Act regarding copies of decisions and the plan.
The GP referral was clear; Ms C felt isolated and lacking support and it took 20 months and four assessments to provide her with only some of the support likely to be required, objectively, to meet her eligible assessed needs.
The specialist nature of Sight Loss Teams was recognised by the LA, albeit through learning from Ms C’s situation. The delays for her could easily have resulted in significant harm to her given the lack of support made available to her.
The LA needed to be clear in its communication and provide Ms C with a copy of its assessment and draft care plan. This would have enabled her to understand how it had arrived at its recommendation of 8 hours’ support. The practitioner could have explained this to her and listened to her concerns that this support would not meet all her outcomes – she could have asked for a senor manager’s review under para 10.86 of the Guidance, or made a referral to the Monitoring Officer for consideration of contravention of the Care Act.
An outcome of the assessment was for the LA to explore how voluntary community organisations could support Ms C’s outcomes. The LGSCO found no evidence that this had happened. These sources of support ought to have been considered and identified through the early prevention and reduction stages of asset-based assessment. Considering this support as an outcome of the concluded assessment highlights a trend towards an over-reliance by LA on ‘non-funded’ support, or ‘cost avoidance’ regardless of whether free sources of support are any more suitable or likely to work, than they were when first offered at the initial screening stage. This can and will lead to likely breach of statutory duty findings, when eligible deficits are not actually met under the Care Act 2014.
An apparent feature of this case was the lack of management oversight. Whilst the LA will be responsible for many referrals at once, this referral was not managed in an effective way – and it emerged from poorly managed ‘Transformation’, too! The delays between referrals to teams and the repeated assessments indicate that the LA was ‘starting again’ each time it carried out a new piece of work. This will no doubt have been a negative experience for Ms C. The system of case management clearly failed in this situation but highlights a strong message for operational teams in respect of the oversight needed, especially when working with people with visual impairments, and the right of a person (in common sense terms, and in a spirit of alternative dispute resolution) under para 10.86 of the Guidance, to a proper look by a senior officer (we call this a management review) to see why any steps taken to date have not resulted in an agreed care plan. That kind of review is a means of actually saving any council from ‘egg on face’ and should be embraced. We can only hope the consultant interim senior manager, likely being well-paid for Transforming the council’s system, was on performance related pay and has had to disgorge any fee already paid, to retain their reputation!
The LA was not found to be at fault for its decision not to provide support to Ms C whilst the assessment process was carried out. That was because the LGSCO understood that that position was predicated upon there not being evidence of imminent risk, pending finalisation of the assessment.
Given that an assessment can now take months, we always advise councils that there is really no justification in public law terms for spinning out an assessment over many stages, and no justification whatsoever for not backdating a budget to the point where a person would have been found eligible, after a timely and well managed assessment, had it not been for delays that were the council’s own fault.
The amount of compensation recommended may have been expressed as compensation for unreasonable delay but to our minds it bears a strong resemblance to what 8-10 hours a month of care would have cost the council. That is equivalent to a restitutionary remedy and fits with this approach on backdating to the point of a finding of eligibility, to our minds.
Restitution has emerged only recently as a remedy in adult social care and can only, in our view, flow from situations where a council has already decided that someone needed something, but not delivered it; or where no reasonable council could have failed to conclude that a given level and type of service was in fact needed but avoided that decision. In the former situation, the money not paid could be pursued in private law proceedings after a letter before action; in the latter, public law proceedings are required and the claim must be added in to the paperwork and any letter before action.
The council had suggested that Ms C’s benefits should be used for much of what she wanted, in terms of cleaning or accessing the community, for instance. The LGSCO firmly pointed out the error of its ways, there. If a need is being assessed, a person’s means, including their benefits, are irrelevant. They are not part of assets or strengths-based assessment! The council would not even know of them on a first assessment, as the charging process would not have started. So eligibility is to be decided regardless of benefits; when it comes to care planning, a person may CHOOSE to spend their money on wants, but they do not have to offer to do so, and cannot be told to do so regarding their eligible unmet NEEDS.
That is basic Care Act law, and it is great that the LGSCO said so.
However, a council can incentivise a person to spend their own money by use of the discretion in the charging regulations to charge full cost for non-care services, (examples being meals on wheels, shopping or transport services or recreational activities) even if it takes a person below the Minimum Income Guarantee. That means a person can be made effectively no better off for getting their services arranged through the council than if they were buying privately. Most councils do not do this the legal way, but just suggest spending a person’s own benefits during prevention, reduction and assessment, and must be challenged in so doing.
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The full Local Government Ombudsman report into the actions of the London Borough of Hammersmith and Fulham can be accessed here: