London Borough of Bexley delayed in both undertaking a Care Act assessment and a Carer’s Assessment for a son and mother

Decision Date:  25th September 2022 

What happened

Miss B, who had physical and mental health difficulties of her own, lived with her son, Mr C. Mr C wa a young adult with Autism and Asperger’s.

In June 2021, Miss B contacted the council, explaining her son’s diagnoses and that she might have to ask him to leave her home because she was struggling to cope with his abusive behaviour.

Miss B explained Mr C’s behaviour to the Preparing for Adult team, including that he had damaged property and been physically aggressive. She asked if there was someone who could help Mr C address his problems. The council suggested a referral to a mental health charity but Mr C refused to consent. Miss B said she would refer Mr C when he did consent; she advised the doctor of this and the Preparing for Adulthood team closed the case.

The doctor made a referral to the community adult learning disability team, who asked for clarification from the council that Mr C had a learning disability, and they said he did not.

Miss B believed her son did have learning/developmental disabilities. The team decided Mr C did not meet their criteria for admission to that team’s expertise.

In July 2021 Miss B contacted the council again asking for support. She said Mr C’s challenging behaviour was affecting her health. The council advised her to ring the emergency services if she felt unsafe.

Miss B contacted the council again (no date was given for this) and told them Mr C was smashing up her house and that she wanted him removed. The council told her to ring the police. The council updated the Preparing for Adulthood team who agreed to send Mr C a behaviour contract. The rules listed in the contract included:

  • No physical aggression towards your mother. This includes threats of violence.
  • Do no cause damage to any part of the building or your mother’s property.

The contract stated that a social worker would visit the first time he broke the rules, the second time Miss B would give him 28 days to leave the property and if they were broken a third time the police would be called to remove him from the property immediately. The letter also invited Mr C to contact the council if he wanted to discuss this and how it could support him to meet his goals.

In August 2021 Miss B contacted the council as Mr C refused to open the letter containing the contract. She asked the council to visit to see if they could find a solution that didn’t involve Mr C having to move out and confirmed once more this was causing a decline in her emotional and physical health.

The council arranged a home visit, but cancelled it due to no worker being available. Miss B was unwell and cancelled the next home visit and although the council said they left a voicemail, which Miss B said she did respond to, the council claimed she did not.

In January 2022 the council received a Merlin report from the police, detailing safeguarding following an incident where Miss B contacted the police as she believed Mr C was smashing the house up. This report detailed three other occasions the police had been called to the house in 2021.

The council offered to refer Miss B to a carers’ support group but she declined as she said she was not happy with social services.

In February 2022, the council received another Merlin report from the police where Mr C had smashed his bed. The police completed a DASH which said Miss B was frightened she would be hurt or she would hurt Mr C and the situation was getting worse.

In March 2022, a domestic abuse organisation told the council it considered Miss B a victim of domestic abuse, from Mr C. The council spoke to Miss B and agreed it needed to consider its actions with regard to this domestic abuse.

The Preparing for Adulthood team told Miss B that they were going to organise a meeting with the professionals involved with Mr C but Miss B said it would be best for Mr C to move out. The team said they would ask Mr C for his views and support him to move out but this meeting never happened.

The Preparing for Adulthood team carried out a Care Act assessment and found Mr C eligible as unable to achieve in the following domains:

  • Developing and maintaining family or other personal relationships.
  • Accessing and engaging in work, training, education or volunteering.

The council sent a copy of the Care Act assessment to Mr C who sent it back with more information and changes; the council sent a revised version which Mr C refused to sign as he said it was inaccurate.

Miss B had a carer’s assessment, and she said her caring role was causing her mental and physical health to decline. The council decided Miss B was eligible for support in managing her emotional well-being and that a mental health charity had offered her support sessions, that the Preparing for Adulthood team could give her some information on Mr C’s diagnosis and techniques for managing his behaviour and that she was entitled to respite and they could provide this through direct payments.

The council sent Miss B a draft copy of the carer’s assessment, but Miss B said both hers and Mr C’s assessments were inaccurate, that she did not agree with them and did not want the council’s support.

In February 2022 Miss B complained to the council.

She complained about the service she had received from Adult Social Care, including poor communication, its failure to recognise the impact her son’s behaviour was having and how they would only offer support if she contacted the police.

The council:

  • Said there had been a number of meetings that did not go ahead, that poor Wi-Fi disrupted phone calls and there was no evidence that the council acted in a way to make it difficult for Miss B to contact them. They did not uphold this part of her complaint.
  • Said sorry for the delay in undertaking Mr C’s Care Act assessment.
  • Said that if Mr C posed a risk to her there was little the council could do to change this and that she would need to get police intervention who would then work with relevant teams. It did not uphold this part of the complaint.

Although the council did not uphold all aspects of the complaint they agreed to take the following action:

  • It would link in with mental health services and update her on the best course of action going forward.
  • Where a person has a mixed presentation of need it would link with mental health services to establish who is the most appropriate person to undertake a Care Act assessment.
  • It would review its new protocol to see if it has improved service delivery for young people and their carers.

In response to the ombudsman’s scrutiny the council stated it made improvements by:

  • Training new staff before they go on a duty rota;
  • Recording duty contracts and advising management of any follow up needed;
  • Holding reflective practice sessions in which the Preparing for Adulthood team participate;
  • Presenting learning from past complaints to Heads of Service and Team Managers so improvements can be implemented.

What was found

Miss B approached the council in June 2021 but the assessments were not carried out until May 2022. The council significantly delayed in both undertaking a Care Act assessment for Mr C and a Carer’s Assessment for Miss B. 

This delay contributed to Miss C losing faith in the council and if the council had acted sooner it could have offered services sooner and prevented the situation worsening. The council’s delay in assessing both Mr B and Miss C was found as fault.

The report says this: As Mr C had eligible needs under the Care Act 2014 and Miss B was his carer, the Council had a duty to make safeguarding enquiries if it reasonably suspected there was abuse or neglect. In response to enquiries, the Council said, “[Miss B] did not meet the criteria for safeguarding because we established that she was not a vulnerable adult, and was not reliant on support to meet her needs, whether or not she had such services.”. The Council failed to recognise its duties to Miss B as a carer and this was fault.

When the ombudsman asked why the council did not start safeguarding inquiries it said         “We never had nor have any alerts raised in respect of safeguarding concerns about [Mr C] towards his mother, or anyone else, since he was known to us, which is from June 2021.”

The LGSCO said that this was untrue, as it was documented in Miss B’s reports, the police had raised concerns in its reports and the domestic abuse organisation contacted the council to say it considered Miss B to be a victim of domestic abuse.

The council said it based its decision not to consider Miss B at risk from her son for these reasons:

  • The Merlin Report did not state Miss B was at risk of harm from her son
  • Miss B was articulate and could verbalise her needs well
  • Miss B herself had advised them she did not feel at risk from her son as he never meant to put her at risk.
  • During home visits they didn’t see any evidence that Miss B was at risk or that Mr C was acting in a threatening way towards his mother.

The council’s decision making was found to be flawed. The facts it used to make its decision were not consistent and were at times contradictory. Miss B repeatedly told the council she was at risk, the police raised concerns around domestic abuse and the assessment of Mr C’s behaviour was based on one single visit. The council’s flawed decision making about whether to start safeguarding enquiries was fault and this fault created uncertainty around whether Miss B was put or left at greater risk of harm because of the council’s failure to consider properly whether to initiate safeguarding enquiries.

The Merlin report dated February 2022 documented that Miss B said that she was concerned Mr C would hurt her or she, hurt him. There was no evidence that the council considered the question of whether Mr C was at risk should be considered through a safeguarding enquiry. This was fault, too.

As a result of these faults the relationship between the council and Miss B had broken down. It has been recommended that new assessments were carried out for both Miss B and Mr C by officers who had never been involved before.

The council was required to:

  • Apologise to Miss B for the faults found.
  • Pay Miss B £750 for the distress and uncertainty about whether she was at a greater risk of harm and her time and trouble caused by the council’s faults.
  • Pay Mr C £200 for the uncertainty as to whether he was at greater risk of harm because of the council’s faults.
  • Arrange to reassess Mr C under the Care Act 2014.
  • Arrange to reassess Miss B’s needs as a carer.
  • These two pieces of work should be carried out by an officer with experience of working with people with autism and who has not previously been involved. Any services provided should be backdated to July 2021 or a financial remedy in lieu should be offered by the council.
  • Train all staff in the Preparing for Adulthood team on domestic abuse and safeguarding responsibilities to those with eligible needs under the Care Act and their carers.
  • Develop and disseminate a safeguarding procedure specifically for the Preparing for Adulthood team which includes making enquiries of other agencies and departments.

Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public 

Chapter 14 of the Care and Support Statutory guidance provides guidance on the safeguarding duties placed upon councils.

As the s42 safeguarding duty applies to an adult who has needs for care and support, a carer, with only support needs, raising concerns regarding a risk to themselves, may not be protected by this piece of legislation – however, the adult with needs for care and support who might push a carer over the top, most definitely would.

The reporter doesn’t seem to have spotted that nuance. We can grasp what Bexley was trying to say, about Miss B’s status not necessarily triggering safeguarding, even though the facts clearly did not support their thinking.  If the carer is a person without needs for care or support, or a person whose needs do not prevent them from protecting themselves, then safeguarding is not what they need. They need to understand that they need to terminate the licence of the person being accommodated and how to get them referred to Housing as homeless. They need services suited to a carer, including, sometimes, more services for the cared for person.

There is specific guidance on carers and safeguarding in paragraphs 14.45 to 14.50 of Chapter 14. It is effectively offering a work-around for the problem that one needs to be in need of care and support (albeit not necessarily ELIGIBLE need) to qualify for safeguarding, thus excluding carers, most probably unintentionally. It says that councils should use carers’ assessments to explore the risk to the carer, which may then alert councils to the need to change the cared for person’s own assessment or care plan.

14.46 Assessment of both the carer and the adult they care for must include consideration of the wellbeing of both people. Section 1 of the Care Act includes protection from abuse and neglect as part of the definition of wellbeing. As such, a needs or carer’s assessment is an important opportunity to explore the individuals’ circumstances and consider whether it would be possible to provide information, or support that prevents abuse or neglect from occurring, for example, by providing training to the carer about the condition that the adult they care for has or to support them to care more safely. Where that is necessary the local authority should make arrangements for providing it.

It is clear in the guidance that if a carer does speak up about concerns of abuse or neglect, whether intentional or unintentional – it is ESSENTIAL that they are listened to and where appropriate a safeguarding enquiry undertaken with other agencies involved. In this case the carer did speak up on numerous occasions and other agencies were involved, specifically a domestic abuse charity who wrote to the council with their concerns that the carer was experiencing domestic abuse from the person she cared for.

We feel the council’s choice to not acknowledge this at all in their decision-making process as to whether a safeguarding enquiry was triggered, indicates a form of negligence on its part, regarding the scope of their responsibilities. It may not be the kind that led in this situation to long lasting harm or the kind that sounds in damages but it is a breach of the duty essentially, to follow an analytical thought process properly and adequately, and compliantly with the Guidance, in and of itself.

With any close relationship between parent and adult offspring there is bound to be a complicated overlaying of normal family tensions with deeply felt notions of obligation, love, dependency and sometimes misplaced optimism. If a person’s actual eligibility for safeguarding is messed up, (whether based on ignorance or overlooking that a carer may be a person not just with a need for SUPPORT but needs of their own for CARE and SUPPORT whether or not they have services funded – remembering that under s42, they don’t have to be eligible to trigger safeguarding, as long as their needs are related to difficulties preventing the person at risk from protecting themselves) OR both persons’ needs are not properly identified through parallel assessment OR that assessment is delayed or done on a Care Act ‘LITE’ basis, then there is all the more reason that harm WILL be sustained by one or the other, and that it will be foreseeable.

And that’s exactly how legal principles are developed by judges – over time, with insight into a particularly bad case where harm has BEEN suffered, so that the benefit of hindsight inevitably affects their determination to move the law on, incrementally.

Other key considerations outlined in the guidance include involving carers in safeguarding enquiries relating to the adult they care for. In this case a joint assessment could have been appropriate because of the interdependency. The council definitely missed an opportunity here.

ADASS produced an addition in February 2022 to their original paper from 2011 on carers and safeguarding. If you want to read this you can do so here:

www.local.gov.uk/parliament/briefings-and-responses/carers-and-safeguarding-briefing-people-who-work-carers.

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 on the actions of London Borough of Bexley Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-017-771

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