Hackney at fault for delays in identifying a person’s needs in relation to adaptations, and a further delay in producing a workable proposal to meet those needs

What Happened

Ms C has scoliosis in her spine and osteoarthritis in her hips and knees which affected her ability to reach into top and lower cupboards in the kitchen and made standing difficult.

An OT visited in September 2019 and carried out some sort of an assessment. The assessment stated:

  • Ms C self-referred
  • Ms C did not give verbal consent to liaise with other relevant individuals to obtain information.
  • The OT advised that lowering her kitchen cupboards would not be possible due to the position of electric sockets and switches just below the existing cupboards. Instead she proposed drop-down or pull-out storage shelves within the cupboards.
  • The OT also recommended a perching stool so Ms C could sit while preparing food. But Ms C rejected this as there was not space underneath the worktop for her legs.
  • Ms C terminated the assessment and supposedly asked the OT to leave as she did not feel the OT was being receptive to her needs.
  • The OT emailed Ms C the following day with the suggested proposals for the kitchen.
  • The OT had posted a blank attendance allowance form to Ms C to complete and send back to the DWP.
  • Ms C later informed the OT of her new diagnosis which was recorded as muscular degeneration and Chronic Kidney failure Stage 3.

Ms C was unhappy with this visit. She complained to the Council in September 2019 that:

  • The OT was late, and she originally tried to go into the wrong flat
  • The assessment was inaccurate.
    • she never asked the OT to leave
    • she had not self-referred, but was referred by her GP
    • she had macular degeneration, not muscular
  • the Council had referred her to other organisations without her consent
    • she had received a letter from a housing support group offering help with completing the attendance allowance form
    • she was offered a home visit by the DWP

With help from a representative, Ms C emailed the Council asking for another assessment in December, suggesting dates for January 2020. The Council did not respond to this email.

Another assessment took place in March 2020 with which Ms C was satisfied.

The Council responded to Ms C’s complaint in May 2020:

  • It apologised for the OT being late but noted that the OT had apologised the next day in an email.
  • It acknowledged that there were some factual errors in her assessment.
  • Although Ms C disputed the fact that she had ended the assessment, the Council said it could not amend an assessment once it had been completed.
  • It apologised for the errors but noted that a sufficient assessment had been completed in March 2020
  • It said it had referred Ms C to the housing support organisation because she had stated she was struggling financially and wanted support.
  • It said it had not referred Ms C to the DWP.

After the March 2020 OT assessment, kitchen adaptations under the minor works scheme (for work under £1500) were recommended. The OT sent the proposals to the Council’s contractor in early August 2020.

The report stated that Ms C had not seen a copy of the plans and was not aware of what was being proposed.

The kitchen company visited Ms C in September 2020 and drew up plans based on the OT’s suggestions and Ms C’s input.

In October, Mr D (Ms C’s neighbour who was an architect and had been helping with the plans) asked the kitchen company if the washing machine could be moved. The contractor replied stating that the work was more than requested by the OT, so would refer the matter back to them.

In November, the contractor stated that the plans would cost more than the minor works limit of £1500, so referred to the OT for a potential disabled facilities grant (DFG).

Mr D chased the OT and the Council on five occasions between December 2020 and February 2021 and did not receive a response. After the sixth attempt the OT asked Ms C for consent to communicate with Mr D, which she gave.

From this point on Mr D tried to help and communicate with the contractors to bring the cost down, as he could not understand how a minor adaptation project had evolved into a full kitchen refurbishment costing £4500.

The contractors stated that the significant changes to the plans were due to Ms C and Mr D’s amendments.

In March 2021 the Council communicated with the contractors stating that it had expected to get a quotation based on the original OT recommendations rather than a quotation for a full refurbishment. Ms C and the Council agreed to request a new quotation based on the original recommendations.

The contractor and the OT visited Ms C and Mr D on 10 May 2021 to agree a way forward.

In April 2021 Ms C requested a copy of her assessment from March 2020 but the Council could not provide one.

In October 2020 the Council had been the victim of a significant and widespread cyber-attack which affected many of its databases, therefore had been unable to send Ms C a copy of her assessment, nor provide the LGO with many records during its investigation.

Ms C remained unhappy and complained to the LGO.

What was found

The OT assessment

The Council agreed that there were faults in the original OT assessment. Ms C had not self-referred, and the nature of her condition was recorded incorrectly. However, the Council did not amend the errors or place a note on the file as it stated it was unable to do so once recorded on the system. The LGO stated that this was unsatisfactory, especially considering that an error relating to a health condition could have caused confusion as it remained on her record. This was fault. The LGO stated that simple errors should have been corrected as soon as Ms C highlighted them.

The LGO concluded that the September 2019 assessment was unfinished. The OT stated this was due to Ms C ending the visit, whilst Ms C stated that it was because the OT was very late. This issue should have been resolved when Ms C complained in September 2019 but was not remedied until the visit in March 2020. The LGO stated that the Council should have arranged a second visit within two months (by November 2019), yet the failure to do so caused a four-month delay in identifying the adaptations required.

The Council also should have at least responded to the emails Ms C sent requesting another assessment. Failure to do so was fault.

Referral to external organisations

The LGO stated that it could not reach a safe conclusion on whether the Council referred Ms C without her consent to the housing support agency because of the lack of records. It was at least able to conclude that it did not refer Ms C to the DWP, as the housing support group had done that (whether or not with consent).

Kitchen work

As well as the delay in assessing Ms C, the Council delayed in ensuring the adaptations were carried out.

The work was approved in May 2020, but it took three further months to refer the case to the contractors, when the LGO stated it should take one month, as it was a small kitchen with minor works needed.

The kitchen company stated the plans it drew up were different, on the request of Ms C and Mr D. The LGO stated that even if Mr D and Ms C had suggested additional work, the contractor should have ensured that the quotation provided was in line with the OT’s recommendations. It failed to do so, and the Council failed to notice or act on this omission between October 2020 and February 2021, despite being consistently contacted by Mr D. This was fault.

The LGO recommended that the Council:

  • finalise the plans and obtain an acceptable quotation for the kitchen adaptations; then within a further three months ensures the work is completed.
  • in consultation with Ms C, arranges a further OT assessment to ensure there a is a current and correct record of Ms C’s needs on file.
  • pays Ms C £750.
  • ensures OT staff are aware of the need to record accurate information as part of the assessment process and to share the assessment with the service-user to ensure any mistakes or misunderstandings can be corrected promptly.

Points to note for professionals, councils, people who use services and their carers, advocacy providers and members of the public

When OTs operate within councils, they may be wearing more than one hat. The report here does not mention the Care Act, nor the housing legislation under which DFGs are governed.

OTs may work to the Housing department, in relation to supporting DFG decisions that Housing authorities make under the applicable 1996 legislation – eg regarding the necessity for adaptations for meeting statutory criteria in that specific Act – or as here, regarding a discretionary Minor Works policy that the council was operating under to minimise the number of DFG applications.

Secondly, they may find themselves working to the social services department in relation to Care Act functions: for instance, in connection with s2 prevention and reduction through the allocation of the right kind of equipment for people’s difficulties; s9 assessment under the Care Act for a comprehensive view of the overall needs, s24-26 care planning – with regard to what would or would not meet needs adequately and safely; and with regard to s27 reviews, revisions and safeguarding where use or non-use of equipment is a relevant issue for perceived risks to the customer, care worker or informal carer.

The statutory functions under which they may be operating on any given day involve judgments about different concepts, and they may or may not have been trained in the distinctions between all of those. In some councils they are treated as if social workers or trusted assessors, and in others, they are confined to equipment related functions only. There are not enough of them, nationwide, and delays are well-known.

We don’t know about the culture operating for OT assessments for DFG and minor works functions, but when working under the Care Act we do know that it is common for a council to say that it cannot amend an assessment once it is in its system. We think that this is indicative of very poor legal literacy on the part of the system managers if we are talking about the Care Act, and the same could well be said for the Housing legislation.

For instance, a dispute as to facts is key to the processes that come afterwards, ie eligibility decision making and of course care planning – or even (for DFG purposes) grant approval purposes.

CASCAIDr frequently sees situations where the staff do not know how to have a difficult conversation about their perceptions, in respect of which they are the decision-makers subject only to judicial review grounds (such as irrationality, unfairness or error of law) as opposed to factual matters that are black and white and perfectly capable of resolution.

The Care Act assessment (if that was what this OT was ultimately doing) would have needed to be shared with the customer, because the sections on needs assessment – s9 and s12, say so. The whole purpose of the duty to involve, and the duty to provide a copy to the service user, is for ensuring accuracy and person-centredness – and this is stressed in the Guidance.

It is only right that a person and their representative (in this case a neighbour) should be involved in working with an OT to determine how adaptations could best be achieved to suit the person’s needs and enable their independence within their home – the council’s housing authority for that question is the decision-maker but its officers or those working on its behalf, still need to be person centred.

The interminable delay and to-ing and fro-ing are typical material for a complaint to the LGSCO, but a complaint is not a quick fix, if councils just shrug their shoulders when complained to, first time around.

Here, the individual and her neighbour had to make several requests to the Council chasing for updates and the completion of the work. This delay meant that during that period, the needs the Council had identified in the assessment were not being met through adaptations – the impact on the client would still have been ‘significant’. The Council’s social services department would have remained responsible for meeting assessed needs if the adaptations didn’t happen, yet because of the referral to Housing for a DFG, and the incompetence on all fronts, the customer was disadvantaged on the long drawn-out path to getting an outcome.

There was also an issue about information sharing, contrary to the client’s wishes, which the LGO could not easily resolve. Many councils spend inordinate amounts of time seeking consent or seeking it but not explaining the consequences of a refusal.

The statutory functions of adults’ social care and DFGs intersect, which means that consent does not have to be given. If it is not, when it is asked for out of a courtesy, the council needs to say whether it will share it in any event in order to ensure that the function is properly discharged, or alternatively that if the person wishes to block that, then the consequences are that the information will have to be sought twice, once for the DFG and once for the Care Act. Then at least the person can make an informed decision and get THAT recorded once and for all.

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 Hackney’s actions can be found herehttps://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-006-369

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