Decision date: 22nd October 2021
What Happened
Ms P complained on behalf of Miss X and Mr L, who were partners, as their legal representative.
Miss X suffered from ME (Chronic Fatigue Syndrome), and other health conditions, notably dietary intolerances which impacted her everyday nutritional needs.
A 2018 care plan identified that Miss X lived with her partner, Mr L, and he provided most support to her, such as preparing meals and helping her use the bathroom.
Mr L told the Council in September 2018 that he was struggling to provide support to Miss X. As a result, the Council increased Miss X’s care hours.
Miss X’s social worker (social worker A) raised the possibility of organising respite care, however this referral never came to fruition as the placement being considered could not accommodate Miss X’s dietary requirements.
In March 2019 Miss X alerted the Council again to the fact that Mr L was not coping well in his carer’s role. The Council undertook a reassessment the same month, which concluded that respite care was “clearly needed”.
At the beginning of April Mr L told the Council that he could no longer cope, and that he was leaving. The Council could not identify an agency to take over Miss X’s night-time care until two days later, although the report does not state what provisions were then put in place.
A few days after the night-time care was put in place, Miss X was hospitalised.
Miss X was discharged the next day.
In May, social worker B told Miss X to use her personal assistants (paid for via direct payments) to buy food, prepare and cook meals for her. In the meantime, they were looking into a community meals provider.
Also in early May, Miss X’s GP wrote to the Council stating that Miss X had very specific dietary needs. The letter stated that Miss X had run out of food, and carers were not present for long enough to prepare meals for her. Furthermore, she could not attend the placement identified by the Council as it could not provide appropriate meals. Finally, the letter emphasised that the Council had been sent “multiple dietician assessments…multiple times”.
A multidisciplinary meeting was held at the end of May, with Miss X, the Council and a dietician (amongst others) being present:
- Miss X told the Council that she was going without meals, as carers did not have time to prepare meals for her, despite working over their allocated hours.
- Miss X highlighted that her night-time needs were not being met.
- The Dietician said Miss X was on a waiting list for a specialist allergy dietician.
- The meeting agreed that a ‘proper’ assessment was needed of Miss X’s overnight needs, as Mr L no longer met them.
In June, Miss X’s advocate (Ms P) raised a safeguarding concern with the Council. Miss X had not been eating, and there was no food in her house. Ms P also highlighted that both Miss X’s family and GP had already raised similar concerns with no response.
Two days later, social worker B spoke with Miss X. Miss X told the social worker again that she could not eat certain foods because of her allergies. She specifically stated that foods from supermarkets’ ‘Free From’ range (a range of foods that do not contain certain ingredients or allergens) were not appropriate because they still contained things she could not eat.
Miss X also told the social worker that during the night she could often not reach the commode in time.
Ms P complained to the Council in mid-June, stating that the Council had:
- Not provided extra care hours since Mr L had left,
- Not addressed the fact that Miss X could not eat ‘Free From’ foods,
- Not addressed that Miss X was going without food.
- Ignored the fact that Ms P asked the Council to reassess Miss X’s care needs.
The day after the complaint was submitted, Miss X’s MP contacted the Council with the same concerns.
In July the Council spoke to Miss X’s GP. The GP stated that:
- The Council’s recent assessment failed to consider the support Mr L had been providing
- The Council had not made any allowances for food preparation
- Miss X could not eat ‘Free From’ foods
The Council told the GP that the Dietician stated that there was no reason Miss X could not eat ‘Free From’ foods.
Two weeks later, the GP wrote another letter to the Council. It stated that:
- Some of the Council’s assessments of Miss X were wrong.
- He had consulted with the Dietician who had reportedly said Miss X could eat ‘Free From’ foods, who said she had never recommended that any ‘Free From’ food was appropriate for Miss X.
- the Council’s conclusion regarding the ‘Free From’ food was different to the Dietician’s conclusion.
- The GP highlighted that a dietician is a medical professional in terms of dietary need.
- The current care hours did not allow any time for food preparation.
- The GP included a detailed list of what Miss X could and could not eat.
- The GP expressed concerns that Miss X’s identified needs were not being met.
- The GP provided a breakdown on how Miss X was using her care hours.
- The letter emphasised that the GP saw that Miss X was surviving on “very little food, was losing weight and he was starting to see signs of malnutrition”.
During this time, Miss X had made use of the district nurses’ Rapid Response team, who came to sit with her through the night.
The Council responded to Miss X’s complaint in August:
- It stated that her care plan met her needs.
- It stated that it “did not have the medical evidence needed to consider an increase in hours to manage her dietary needs”.
- Miss X had not yet been offered an appointment with the allergy specialist dietician. It said with a “robust diagnosis” it would be able to consider the impact of her dietary needs and ensure they are appropriately met.
- Previous letters from the GP identified that a “specialist allergy dietician (was) no more capable than any other dietician of recommending certain foods”
- A new social worker (social worker C) would reassess her.
- It did not consider Miss X as having night-time needs that would require a live in carer. The Rapid Response team had told the council that they were not needed after being called. Miss X needed support with bedtime and morning routines, which were already covered in her current care plan
In September, the dietitian wrote to the Council after reviewing Miss X’s recent food diaries:
- She alerted the Council that she was at a high risk of malnutrition due to the high restriction of food choices.
- Miss X’s food was so restricted because of the “significant lack of time carers had to shop, check food labels, and prepare food”.
- Miss X could not eat ‘Free From’ foods due to the extent of her allergies.
- Miss X would benefit from supplementary nutrition to offset nutritional deficits and stabilise Miss X’s nutritional status until the Council provides sufficient time for food preparation that would adequately meet her needs.
Miss X was admitted to hospital again in early October and discharged the next day. It was agreed that the Rapid Response team would support Miss X for two nights.
On the day of discharge, the GP communicated concerns to the Council about how Miss X’s toileting needs would be met. The 111 service also made a safeguarding referral to the Council over Miss X’s lack of care. Miss X also told the social worker that she could no longer support herself to the commode and did not have incontinence pads.
The next day it was agreed that an emergency assessment needed to be undertaken to identify Miss X’s night-time needs.
The day after, Miss X told the duty social worker that she needed support, as she was covered in urine and diarrhoea.
There was another internal Council discussion. The Council decided the circumstances did not warrant a safeguarding enquiry. It was noted that social worker C was doing a reassessment.
Notes stated that social worker C had offered Miss X incontinence pads, but the personal assistant stated that they were not effective.
Ms P ended up calling the duty social worker, as social worker C was not returning calls. Ms P stated that Miss X had had extreme incontinence for the previous three nights and had been left in the soiled bed overnight.
The duty social worker contacted Rapid Response who again stated they could not provide a night-sitting service unless there was a medical need and to avoid hospital admission.
Later that day, Miss X was hospitalised again. She was found wet from faeces and urine.
Social worker C was uncontactable from the day after Miss X was hospitalised, until a few weeks later in mid-November.
Miss X asked the Council for a new social worker, and a week later the Council stated that it was unable to do so, for reasons not explained in the report.
Miss X remained in hospital until late January 2020, and her complaints were escalated to the LGO.
Ms P complained that
- the Council failed to ensure Miss X’s eligible care needs were met at home. This included a lack of hours for the carers to provide Miss X with suitable food which resulted in her being hospitalised and her health worsening;
- there was a lack of support by the Council for Miss X’s partner, Mr L, and lack of appropriate care provision for Miss X, resulting in Mr L’s burn-out, which meant he left in April 2019;
- the Council failed to act on safeguarding referrals Ms P’s organisation and others made, on occasions leaving Miss X laying in her faeces;
- the Council failed to take account of relevant professional information about Miss X’s conditions when conducting assessments and reviews;
- the Council failed to provide night-time care;
- the Council failed to implement outcomes promised in its complaint response;
- the social worker failed to take Miss X’s and her advocate’s concerns seriously, and failed to liaise effectively through all of her hospital admissions and her change in circumstances; and,
- the Council failed to investigate Miss X’s complaint appropriately in line with the social care statutory complaint regulations.
What was found
Unmet care needs
The LGO stated that both the GP and Dietitian had repeatedly stated that Miss X could not eat ‘Free From’ foods, and that her needs assessment was wrong. They both also stated that the hours allocated were not sufficient in meeting her needs, and Miss X was becoming malnourished.
The LGO stated that the Council’s complaint response in August was “completely inappropriate”. The Council stated that it needed “robust evidence” in order to consider her dietary needs, and the LGO stated that it already had this. It stated that the Council “deliberately took the view that Miss X could eat ‘Free From’ foods, despite there being medical evidence proving the contrary. This was fault. The LGO stated that it ignored the professional advice and input from people with relevant expertise and does not know how it reached the conclusion Miss X could eat ‘Free From’ foods.
The LGO stated that the Council’s failure to reflect the medical input was not in line with the Care Act, and therefore fault.
The Council also failed to reassess Miss X to consider the information from the Dietitian and GP. This failure resulted in the Council failing to meet her needs. Furthermore, there was no evidence that social worker C even undertook a reassessment, merely that she began collecting information.
The LGO stated that the Council should have reassessed Miss X’s needs after April, when it received evidence that Miss X could not eat ‘Free From’ foods. The delay in reassessment was fault.
Mr L’s support
Ms P stated that the lack of support from the Council resulted in Mr L’s burnout, resulting in his departure.
The Council stated that it referred Mr L to the Gloucestershire Carers’ Hub in March 2018 and contracted them to carry out a carer’s assessment. The Council did not have any records of any assessments. The LGO stated that the Council’s lack of records was fault.
There was no evidence that a carer’s assessment was ever done, which also was fault.
The LGO stated that there were no details in Miss X’s plan to respond to a breakdown in the caring relationship, or support Mr L in his role. This was fault.
A social worker noted in March 2019 that there was a clear need for Mr L to have respite. The Council failed to act on this. The LGO highlighted how important the Care Act is in its supporting role for carers. If the Council had correctly assessed Mr L, he may have been able to continue his caring role for longer.
Furthermore, the lack of planning meant that the Council was at a loss when Mr L actually left.
The LGO particularly emphasised that “the failure to carry out a carer’s assessment, and the faults with Miss X’s care planning, mean the Council has not shown it had due regard for Article 8 of the Human Rights Act, with respect to ensuring that Miss X had the necessary support to enjoy her right to a private life. This is further fault.”
Safeguarding referrals
The LGO stated that although it was clear Miss X was not getting adequate nutrition, it was not in the way of an “active withholding by the Council”.
The LGO summarised that “the overall fault here is in the cause of the situations which led to the safeguarding referrals. The fault is the failure to appropriately and adequately assess and reassess Miss X’s care needs. The Council is entitled to screen safeguarding referrals and decide if they meet the threshold for a section 42 safeguarding enquiry. The Council acted in line with its policy when deciding if these referrals should proceed to safeguarding enquiries.”
The Council was however at fault for not reassessing Miss X’s needs after deciding not to proceed with the safeguarding enquiry.
Night-time care provision
The LGO stated that it was incorrect for the Council to conclude that Miss X had no night-time needs based on the Rapid Response’s feedback. They were only there for one night, three months before she was hospitalised.
The LGO stated that the Council was at fault. It should have reassessed her night-time needs, but it failed to do so.
Again the LGO highlighted that the Council failed to show due regard to its duties under Article 8 of the Human Rights Act, in terms of failing to assess Miss X’s night-time needs and the degrading consequences this had on her. This was fault.
Social Worker C’s communication
Social worker C was uncontactable for some time when Miss X was admitted to hospital in October. The lack of communication was fault. Miss X should have been allocated a different point of contact. The Council told the LGO that social worker C no longer works for the Council.
Recommendations
The LGO recommended that the Council:
- apologise to Miss X in writing for the injustice caused by the faults identified.
- make a payment to Miss X of £2,050 to reflect the injustice caused. This is made up as follows:
- £1,000 for failing to appropriately assess or meet Miss X’s needs causing her significant distress, inconvenience, and frustration. And for failing to consider relevant professional information causing Miss X avoidable, undue significant distress, inconvenience, and frustration. Taking into account the significance of the distress caused, Miss X’s vulnerability, the fact that she was at high risk of malnutrition and was showing signs of malnutrition, the length of time she went without a care and support plan that reflected her needs, and the amount of time and trouble she spent trying to get the Council to consider the medical information she already provided;
- £300 for failing to support Mr L as Miss X’s carer causing Miss X uncertainty, and unnecessary and avoidable distress;
- £300 for failing to reassess Miss X’s night-time needs causing her time and trouble;
- £250 also linked to the failure to reassess Miss X’s night-time needs, for the cost of having to replace her mattress;
- £100 for failing to take the necessary action identified in the complaint response which contributed to a level of distrust;
- £100 for the social worker’s failures to communicate appropriately causing Miss X unnecessary distress and time and trouble;
- apologise to Mr L in writing and make a payment to him of £300 to reflect the injustice caused by the faults (unnecessary and avoidable distress, and undue significant stress and frustration).
- remind staff of the likely requirement to reassess someone’s needs when their circumstances change or deteriorate, in line with the Care Act.
- remind staff that they must consider medical evidence/opinion in line with the Care Act.
- ensure it is able to access records of carers’ assessments carried out by contracted services (in this case, Gloucestershire Carers Hub).
- remind staff to use carers’ assessments in care and support plans in line with the Care Act, being particularly mindful of paragraph 6.65 of the guidance; and
- share this decision with relevant staff including management and discuss the findings at appropriate team meetings.
Points for the public, service users, carers, advocates, managers, legal staff etc
We find it hard to credit that Gloucestershire could get this so very wrong given that it was Gloucestershire whose approach to community care under the previous legislative framework led to the Courts’ laying down the principle that a duty is a duty, and that judicial review is available for decisions that fly in the face of the evidence.
The LGO raises human rights points, non-compliance with the Care Act, and abject failures regarding communication with other professionals.
In LEGAL terms, had this woman gone for legal advice, it might have been seen like this:
Failure to address the evidence of need adequately or at all in the assessment
Failing to take account of all relevant considerations when identifying needs as part of the assessment process
Failing to provide for a sufficient amount of TIME in the care plan for meeting needs identified as eligible which were clearly not being met – regarding management of nutrition
Failure to review and revise the care plan in light of obviously changed circumstances
Failure to supply the missing eligible assessed need that had been done by the carer when made aware of departure
Failure to pay any or any adequate regard to the client’s wellbeing
Failure to pay any or any adequate regard to her human rights
Fetter of discretion by reference to an unlawful policy (no night-sitting unless it’s to avoid hospitalisation!)
Taking an approach to safeguarding duties which no reasonable council could conceivably justify
Potential breach of article 3 (inhuman and degrading treatment) and article 8 – the courts being particularly unimpressed by people’s being left in their own bodily fluids AND without pads – and would respond similarly to malnutrition, we would predict.
It is not impossible, in this regard, that a claim would have led to an award of damages for breach of human rights, since the HARM would not have been actionable via the courts.
It’s a complaint that shows that people need to consider carefully – if they have the energy and capacity, which we appreciate was not the case here for this client – which route to use to achieve whatever is the most important thing for them at the time. A court will provide the means to get an injunction, but one should not have to go that far: the Monitoring Officer should have been used, if this woman had been properly advised, we would suggest. The breaches of the Care Act and public law principles were obviously ‘likely contraventions of enactment or rules of law’.
The full Local Government Ombudsman report of Gloucestershire County Council’s actions can be found here
I’m writing to ask if you can advise on social care issues in Scotland.
Thank you!