Decision date: 7th September 2021
What Happened
Mr B complained on behalf of himself and his adult daughter, Ms C.
Ms C lived at home with Mr B, who provided all her care and support.
Mr B
Mr B was referred for a carer’s assessment in July 2019.
An assessment contractor, acting for the Council, contacted Mr B to start the assessment. However, as Mr B was unaware the Council contracted out the service, and was expecting correspondence from the Council itself, he declined the assessment.
The assessment was eventually completed (date unknown) after Mr B escalated his complaints to the LGO.
Ms C
In August 2019 the Council undertook a needs assessment for Ms C.
Before the assessment was completed, the staff member carrying out the assessment went on long term sick leave.
Mr B initially wanted to wait for the staff member to return, but in December asked for another staff member to be assigned. The assessment was organised for January 2020.
The Council failed to get in contact with Mr B, so in March 2020 he chased them up.
The LGO report stated that at that point, the Council was “unable to meet with Ms C because of the Covid-19 pandemic restrictions, and Ms C was showing possible symptoms.”.
The assessment was eventually re-started in July 2020, and was completed in September.
The assessment noted that Ms C had the capacity to communicate and understand her care and support needs.
Ms C was found to have the following ELIGIBLE needs, thus triggering the duty to make a plan as to how these should be met:
- Needs support with preparing meals, and to learn skills to complete this independently.
- Needs support with cleaning and managing finances. Wants to learn skills to manage independently.
- Needs support to go out independently in the community. Only for the first few times and can then do independently.
- Needs support to access and engage in work.
- Needs support to explore social groups and activities.
Ms C had no personal budget, as the view was taken that her needs could be met by the Council referring her to free community groups. The Council would have provided Ms C with an indicative personal budget of £50 per week if it felt it needed to commission services to meet her needs, but the Council decided it could meet Ms C’s needs by referrals to community groups, which were a free service.
The Council referred Ms C to two organisations to meet her needs.
Two months after the Council made the referrals, it checked back in with Mr B to confirm whether the organisations had made any contact.
Mr B told the Council that he had frequently been in touch with them (the Council) to inform them that Ms C was extremely anxious about the community groups and would not engage with them. As a result, Mr B was still providing all the support, and he had requested help from the Council numerous times.
Mr B told the LGO that he had repeatedly asked the Council to provide more information as to the support the community groups could be expected to provide, so he could explain this to Ms C and set her at ease. Mr B however did not receive any information from the Council and was left to liaise with the community groups himself.
Mr B had also contacted Ms C’s social worker to request a meeting, so they could explain the support provided by the community groups, but they failed to get in contact with him.
After contacting Mr B, the Council offered to organise a telephone call with the community groups, Mr B and Ms C, however this was never organised. Council records stated the reason for this was that Mr B may “digress” from what it wanted to discuss.
The Council told the LGO that the reason Ms C was not receiving support, was because she was not engaging. It stated that Ms C did not need a formal care package, and that its only duty was to signpost her to the community groups which could provide support to meet her needs.
The Council said it continued to try and facilitate engagement by Ms C with the community groups; however, it had difficulties contacting her (although the LGO could find no evidence that the Council actually tried to contact her).
In the end the Council contacted Ms C’s college to discuss potential support options. A meeting was arranged for all parties, but neither Ms C nor Mr B were informed.
When Ms C found out about the arranged meeting at her college, she was extremely distressed. She did not want her college to know about her care support and wanted to keep it separate from her education.
Mr B told the LGO that he thought it was a breach of Ms C’s personal data for the Council to discuss her care plan with the college.
Mr B complained to the LGO that:
- The Council delayed completing a care needs assessment for Ms C.
- The Council failed to put in any support to meet Ms C’s care and support needs.
- There were errors in the assessment surrounding her capacity. The assessment stated that she had capacity to self-advocate, which was “at odds with a psychology report she has”. Mr B’s position is that Ms C was good at masking and will also say ‘the right things’ but it did not mean she could ‘achieve’ them.
- The Council contacted Ms C’s college without telling her, disclosed personal information without her consent and arranged a meeting at the college when Ms C wished to keep her education and care support separate.
- Mr B had essentially been meeting Ms C’s needs himself with no support or carer’s assessment.
- Ms C was missing out on support to help her live more independently and socialise with other people.
What was found
The LGO stated that the needs assessment was carried out correctly. The Council met with her and Mr B, and appropriately discussed the outcomes they wished to achieve.
Although there was a delay in when the assessment was completed (August 2019 to July 2020), this was due to factors outside the Council’s control. The LGO considered that if the Council had contacted Mr B promptly in January 2020, as planned, it may have completed Ms C’s assessment before COVID restrictions came into place; however it concluded that it was likely the required support still would have been delayed.
The LGO did not find fault with the Council’s decision regarding Ms C’s capacity. It stated that the Council acted in accordance with the Mental Capacity Act 2005 and the Care Act 2014; Ms C engaged in the assessment, and the Council captured her needs based on the outcomes she wished to achieve.
The LGO stated that the Council was at fault for its poor communication surrounding the community support groups. Ms C’s care and support plan did not explain how the organisations would meet her needs, nor did the Council make any clarification during its correspondence with Mr B. This was fault.
The LGO stated that the Council should have answered their questions and considered reviewing Ms C’s care plan to decide what the best method would be to meet her needs.
The LGO stated that the Council was not at fault for contacting her college to discuss her support.
The Council was entitled to contact third parties such as the college or a GP to get information regarding support planning. The LGO stated that the Council “might want to ensure it tells people it might contact other parties during the assessment and care planning process, and if it doesn’t already, it should gain consent to share information with other bodies involved in care, support, and education.”
The LGO suggested that Mr B could contact the Information Commissioners Office to establish whether the Council breached Ms C’s personal data.
The LGO stated that the Council were aware from Mr B’s communications that Ms C was not accessing the community services, therefore her needs were unmet.
It stated that the Council could have looked at an interim package, like providing direct payments.
The LGO stated that the Council should not try to “fit Ms C into one type of service”. As Ms C was not engaging, it should have reviewed the situation.
The LGO considered that the Council making referrals was not sufficient in demonstrating it had met its legal duty.
The LGO stated that the delay in completing an assessment for Mr B was fault, and that it would have been good practice to tell Mr B to expect contact from a third party.
The LGO recommended that the Council:
- Apologise to Mr B and Ms C for its poor communication, delay, and failure to meet their care and support needs.
- Pay Mr B £400 and Ms C £300.
- Do a review or reassessment of Ms C’s care and support needs.
- Remind relevant adult social care staff of the importance of clear communication and being open and transparent with customers.
- Remind relevant staff of the importance of having an oversight of work that is contracted out and chasing where necessary to ensure completion. The Council should ensure it has adequate systems in place to achieve this.
- If it doesn’t already, the Council should gain consent to contact relevant professionals/agencies to support the assessment and care planning process.
Points for the public, councils, advocates, carers and service users
One might be forgiven, on a quick reading of this report, that the arrival of Covid meant that the Care Act duties to meet need were suspended.
That is not the case; the Coronavirus Act suspended it but an edict was then given via government guidance to councils to treat the suspension as not to be taken advantage of unless or until it was absolutely unavoidable, via a process called ‘adopting the Easements’.
Cornwall council did not ‘adopt the Easements’, but nothing is said about that.
The duties therefore remained in place, and if this woman was found to be ELIGIBLE, it is not acceptable to make a referral to another organisation – even one that is willing and able to take that referral – and then not keep some oversight of the arrangement.
Signposting is not the same as meeting needs, although a successful signposting CAN meet needs without a council needing to spend money. It may, after all, be grant funding the organisation in question and thus subsidising its existence; or it may be that charges by that organisation would be less to members of the public than they would be through a formal adult social care financial assessment, against the cost to the council of making that arrangements.
In this case, the answer to that quandary raised by the report is that it makes clear that “All parties agreed to wait until it was safe to have a face-to-face assessment.”
However, that is not an end to the wrongdoing in this complaint. The Care Act makes it clear that regular reviews should be carried out and the Guidance recommends that after a plan has been signed off, there should be one as quickly as is reasonably practicable. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one. Local authorities should establish systems that allow the proportionate monitoring of both care and support plans and support plans to ensure that needs are continuing to be met.
The Guidance also says that “where the person asks for more local authority support (for example, because they lack the skills or confidence to engage with the provider market and do not have family or friends who are willing and/or able to support them with this), the authority should respond accordingly in the decision taken about how needs will be met.”
So refusal to engage should not, without more, even if capacitated, be seen as a decision to refuse services. It may be the person’s way of saying that what has been suggested is simply not suitable, and the council must address that stance.
The LGO said this:
The Council did offer to support Ms C to engage but took no other action to review what the barriers to her engaging are and whether the care and support plan remained the most appropriate way to meet needs given Ms C’s anxiety about engaging with the provider. I find it unfair of the Council to say the only reason Ms C’s needs are not met is because she is not engaging. The Councils’ records shows it knew in September 2019 that Ms C finds multiple calls and e-mails overwhelming, that she wouldn’t always respond, and that she needs to be able to digest and consider her response. Ms C’s ‘all about me’ booklet shows she prefers e-mail communication, yet she received calls and texts.
It is entirely possible that employing a personal assistant could meet the needs described at paragraph 12 and might only be needed for a short time to achieve those outcomes. Or it might be as simple as explaining what the groups can do and facilitating introductions.
The full Local Government Ombudsman report of Cornwall Council’s actions can be found here
https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-001-453