Decision Date: 15th February 2021
What Happened
Mr X complained on behalf of himself and his mother, Mrs Y, about his sister’s care, Miss Z.
Miss Z had severe autism and learning disabilities. Miss Z’s 2019 care plan review identified that she needed help with managing nutrition, maintaining personal hygiene, and maintaining a habitable home. She did not speak, used mainly body language and pointing to communicate, and struggled to communicate pain. The care plan set out 131 hours of 1:1 care per week, and 19 hours of 2:1 care for ‘sleep-ins’
Miss Z had been receiving her care package from care provider A. Mr X and Mrs Y requested to change to care provider B, for reasons undisclosed in the report. This change was agreed to by the Council and in September 2019, provider A agreed to provide care until 6th January 2020 when provider B would be ready. However, on the 19th November 2019 provider A gave notice to the Council, ending their contract on the 8th December 2019, which meant between 9th December 2019 and 5th January 2020, there would be no care package in place.
The Council contacted Miss Z’s family the next day (20th November) to discuss this with them. They suggested a residential placement, or limited support from both providers A and B, with the family making up the rest of the care. Miss Z’s family did not want her to go to a residential placement, as she had previously experienced abuse when living in a care home years ago.
Mrs Y complained to the Council on the 6th December about how the transfer of care had been managed, and that there were still no care provisions in place for the 9th December.
On the 9th December the Council contacted both care agencies to confirm which shifts they could both provide. Mr X and Mrs Y were copied in on the emails so they were aware of the gaps in care they would need to help provide. The same day, the manager from care provider B had a meeting with Mr X and Mrs Y. He suggested Miss Z stay at a respite care placement during the week, with support from a support worker she had an established relationship with. The family declined to take this offer up.
On the 12th December Mrs Y told the Council that she did not want the interim agency staff to provide care for Miss Z. Mrs Y had been present whilst they were providing support, and could see that Miss Z was extremely distressed with having new people care for her. Mrs Y said that the family would provide care when her trusted carers were not available.
Mrs Y confirmed this stance with the Council on the 16th December. She emphasised that Miss Z had been extremely distressed around new staff, and that as an emergency measure the family would provide her support. Mrs Y stated that she had been forced to do so by care provider A giving notice, and the Council knew that a safe transfer of care to provider B would not have been possible until January 2020, when provider B would have had the capacity for shadowing and other measures.
Mrs Y told the Council that she would be putting in a bill for the shifts her and the family had covered in place of the providers. The LGO report did not mention a reply from the Council.
Provider B took on the full care package on the 6th January 2020 as planned.
On 14 February 2020, Mr X sent the Council an invoice:
- £4,725 for a total of 315 hours of care provided at £15 an hour
- This included some periods where both Mr X and Mrs Y were caring for Miss Z together
The Council replied to Mr X in June 2020 stating that the family had been offered alternatives other than providing care themselves and that Miss Z, as stated in her care plan, did not require the level of 2:1 care Mr X and Mrs Y had provided. The Council offered to pay them £3,336,75 for 150 hours of day time support and 81 hours of sleep-ins, a total of 231 hours, including some periods of 2:1 support when Mr X or Mrs Y had provided care continuously for a whole day. This was based on agency staff hourly rates of £15.90 for day time care and £11.75 for sleep-in hours. The Council excluded 84 hours for other times when Mr X and Mrs Y were caring for Miss Z together.
Mr X disagreed with this amount, stating that the family should be paid the full invoice, so complained to the LGO.
What was found
The LGO first highlighted that it was the Council’s responsibility to ensure Miss Z’s needs were met during the period of 9th December to 6th January. The Council knew that the family did not want Miss Z to go to a residential placement and knew that provider B did not have capacity to take over care immediately. The LGO stated that there was no evidence that the Council gave any further considerations to the provision of care after it spoke with the family on 20th November.
The Council also knew of Miss Z’s needs as they were clearly set out in her care plan from January 2019. The LGO stated that the Council gave no thought to the impact that suddenly having multiple new carers could have on Miss Z. The Council also gave no consideration to the risk Miss Z was placed at by having new carers with insufficient time to get to know her, her routines and non-verbal communication. This was fault.
The LGO stated that the Council missed an opportunity during the notice period of 19th November to 8th December to introduce agency staff to Miss Z. This would have allowed them to shadow her current carers and develop a trusting and understanding relationship. In the absence of this, the LGO stated that there was no alternative to care being provided by her family.
The Council’s failure to plan for Miss Z’s interim care and transition between providers was fault, and had a significant impact on Mr X and Mrs Y.
The LGO stated although the Council had taken ‘positive steps’ to remedy the hours the family spent caring for Miss Z, but it was insufficient. The LGO listed these factors in assessing an appropriate financial payment:
- Mr X and Mrs Y had to make arrangements, at short notice, to spend significant amounts of time caring for Miss Z over a four week period, providing a total of 315 hours of care – over 78 hours a week.
- Mr X and Mrs Y were not professional carers, and were placed under avoidable stress by having to provide a specialist level of care
- Mrs Y was in her seventies and had health issues
- The mother and brother did not live with Miss Z and had to travel from their own homes to provide care, including nine sleep-ins.
- In view of the extent of Miss Z’s needs and physical care required and Mrs Y’s health, at times Mr X and Mrs Y supported each other with Miss Z’s care.
- The care plan provided for an enhanced sleeping rate due to broken nights. Mr X told the LGO that Mrs Y did not take painkillers for her medical conditions on sleep-ins to be alert in case Miss Z had a fit or woke during the night.
- Mr X and Mrs Y spent significant amounts of time discussing Miss Z’s care with the Council, A and B from 20 November to 20 December.
- Mrs Y in particular was caused considerable distress and worry about the uncertainty and Council’s lack of planning for Miss Z’s care.
The LGO recommended a further £500 to be paid to Mr X to reflect his time and trouble, and a further £650 to reflect Mrs Y’s time and trouble and distress.
Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public
The Council is responsible for meeting eligible needs of the person under the Care Act 2014. This is the bottom line and in this complaint. Cornwall Council failed to plan adequately which left two family members having to step in at the final hour to support their vulnerable relative.
The Council were fully aware of this young woman’s needs when she was changing from one care provider to another. A notice period was given, and had the Council acted immediately to facilitate a proper transitional period for support staff to get to know Miss Z, her family would not have been in the position they found themselves in.
The Council started planning on the basis of an assumption that moving to a residential setting would be a quick and easy solution for them in meeting Miss Z’s needs.
The LGO acknowledged the evidence about the impact of new carers for Miss Z, which is something the Council failed to appreciate.
The LGO can of course recommend a financial payment to be made to reflect the stress caused within the complaint scenario. Unsurprisingly, the amount here almost met the shortfall within the amount invoiced and the Council offer.
From CASCAIDr’s perspective, we think that the LGO could have gone significantly further and mentioned that the law has developed to the point where there is a recognised right to restitution for breach of the Care Act in relation to labour provided (outside of that which is provided as an informal carer, willingly and truly voluntarily) or money spent in lieu of what the council should have had to pay out. See CP v NE Lincs, Court of Appeal, 2019.
We do not understand why the LGO feels the need to dress up what would only be a recommendation that councils follow the law, (in relation to HOW a council should respond to strong complaints such as this, in the light of legal developments), as compensation for time, trouble and distress.
The full Local Government Ombudsman report of Cornwall Council’s actions can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/20-001-282