Decision date: 09/10/2022
The ombudsman found the council was at fault for delays in reviewing and reassessing Mr X’s needs, for the failure to provide care and support as detailed in his care and support plan, for the delay in responding to Mr and Mrs L when they informed the council they could no longer provide round-the-clock care to meet Mr X’s needs and for failing to identify and provide appropriate alternative accommodation and care.
What happened –
Mr X had complex physical needs and learning disabilities. He had been living with his parents who were meeting his care needs as and when they arose.
Mr X had a Care Act assessment in 2017 which found that he had 24 hour care needs and as a result, that without the input of his parents providing care as and when needed, the council would need to provide this.
By February 2019 Mr and Mrs L told the council they could not carry on meeting Mr X’s care needs for the rest of the time, and wanted the council to find an appropriate supported living placement for him.
Mr L requested a review of Mr X’s care and support plan in February 2019, he then further informed the council in 2019 that one of the two day centres Mr X attended was not meeting his needs. At this point the council had not reviewed Mr X’s care plan since 2017. The council allocated Mr X a social worker in November 2019 but did not complete the review.
In January 2020 Mr and Mrs L’s needs as carers were assessed and again it was recorded that Mr and Mrs L were finding it difficult to care for Mr X as they were getting older; they wanted an appropriate supported living placement to be found for him. It was also recorded that Mr and Mrs L ‘were able’ to continue to meet Mr X’s needs in the short term, whilst a placement was found, if they had extra respite and PA hours at the weekend, but this was not put in place. Mr and Mrs L did not go so far as to say that they were not willing to continue to provide the care in the short term but this was contingent on the extra respite and PA hours and the complaint included the point that this wasn’t put in place.
There were discrepancies between what the council told the ombudsman and what Mr and Mrs L told the ombudsman in relation to what happened from January 2020; the council said Mr and Mrs L became very anxious about Covid and didn’t want Mr X to access day centres or have people coming to the home to support him. However, there was no evidence to support this and in fact Mr and Mrs L re-established Mr X’s Day Centre visits to ONE centre when lockdown had been lifted, in July 2020, for three days a week.
Mr L requested a fourth day at a day centre as per the existing care and support plan. On a number of occasions different professionals from the council questioned Mr L and asked him to provide evidence as to why Mr X needed a fourth day in the day centre. Mr L provided in writing an explanation that the fourth day at the day centre was always part of the care plan and had only stopped temporarily, and Mr L also told the council Mr X’s behaviour had changed and they could no longer manage to carry out the role of full time carers around the day centre attendance times, without support.
The council failed again to reassess Mr X’s needs at this point despite being told Mr X’s needs had changed.
The council started another assessment of Mrs L’s needs as a carer but didn’t complete it. As part of this process it was recorded Mrs L was at risk of carer burnout. Mr L was again asked on a number of occasions to provide evidence of why he wanted the fourth day per week at a day centre for Mr X. Each time Mr L had to provide the same information but ultimately the council rejected the request offering instead six hours per week PA support and respite care when required, but did not specify what this would be able to be arranged.
In April 2021 Mr L was admitted to hospital and Mrs L informed the council she could not care for Mr X alone. The council arranged an emergency 8-week placement in a residential placement. Whilst Mr X was staying at the residential placement Mrs L asked the social worker to find Mr X a placement so he would not need to return to the family home following the emergency placement. But following concerns regarding Mr X’s weight gain in the time he was at the emergency placement, Mr and Mrs L withdrew him from the placement in July 2021 and brought him home having discussed with the social worker that they could manage for a few weeks whilst the council sourced an appropriate care provider to support Mr X at home, until supported living was sourced.
The social worker reviewed Mr X’s care plan and recorded that Mr and Mrs L were ‘able’ to meet Mr X’s care needs whilst an appropriate supported living placement was found and said a fourth day centre day and support from a PA would be put in place but this still wasn’t actioned. Mr L arranged and funded a PA for Mr X from August 2021.
A new social worker was allocated to Mr X in August 2021 who was told that PA hours were being funded privately. In October 2021 the council finally provided the fourth day per week at a day centre for Mr X and PA support, and later on, the council refunded the amount Mr L had personally paid for the PA from August to October 2021.
The council claimed that Mr and Mrs L were blocking the social worker from speaking with Mr X about moving to supported living and therefore could not progress with identifying a suitable supported living placement. But the ombudsman found that the social worker had visited Mr X at the day centre and discussed with him a proposed move; it was also found that Mr and Mrs L had regular contact with the social worker regarding how they had been discussing the proposed move with Mr X at home.
Mr L’s health continued to deteriorate, and he informed the council a contingency plan needed to be in place for Mr X. By April 2022, Mr X was placed temporarily back at the inappropriate residential placement he had been previously removed from. This was done as an emergency response as Mr L had been admitted to hospital.
What was found –
The ombudsman struggled because the Council NEVER provided a copy of Mr X’s care plan despite it being the law that this must be supplied to the client (see s25(9)
The Ombudsman found the council to be at fault for not reviewing the plan within the 12 month statutorily underpinned Guidance period, nor reassessing formally when Mr L raised concerns with the council that the care and support plan was not meeting Mr X’s needs and his needs had changed.
The ombudsman attributed distress caused to Mr X to the emergency moves to the temporary residential placement in April 2021 and identified that this could have been prevented if a review or reassessment had been carried out in the necessary time frame. The second emergency placement was put in place after Mr L had complained to the Ombudsman.
The ombudsman found the council to be at fault for not providing a fourth day at a day centre for Mr X as the care and support plan (which had not been reviewed, let alone revised down) stipulated four days at a day centre to meet Mr X’s needs.
The ombudsman found the evidence lacking, to corroborate the council’s claim that Mr and Mrs L contributed to a delay in arranging a suitable placement for Mr X and found that although one of the reasons given by the council for the delay was the impact of Covid, Mr and Mrs L had requested a supported living placement for Mr X back in 2019 prior to Covid lockdowns – and yet their situation remained unchanged in April 2022. The ombudsman found this delay to be fault and to have ‘exacerbated the injustice identified’.
The ombudsman found that Mr and Mrs L had consistently said since 2019 that they could not continue to care for Mr X and requested a supported living setting and care for him. The council identified that with four days day centre care, respite when needed and PA support, Mr and Mrs L could continue to care for Mr X whilst an appropriate placement was found, which they had agreed they were willing to do; however this support to make this a sustainable short term option was not put in place and the council could not evidence even having contacted any potential supported living providers during the period covered by the ombudsman complaint – February 2019- March 2022. So Mr and Mrs L were forced to continue meeting Mr X’s needs without support. The ombudsman understandably found this to be at fault.
The ombudsman suggested a payment of £500 to be made to Mr X to recognise the distress caused by the identified faults, a ‘symbolic’ payment of £1500 each to Mr and Mrs L along with an apology to recognise the significant strain they had been placed under due to the identified faults; and for an appropriate setting to be found for Mr X within three months. The ombudsman also advised the council to remind staff of the need to review care and support plans at least every 12 months and to update their guidance regarding its Forum which was essentially a panel for ratifying care and support plans.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The Care Act doesn’t stipulate a time frame within which reviews of care and support plans should be carried out but the statutory guidance states “It is the expectation that authorities should conduct a review of the plan no later than every 12 months”; although the wording of this doesn’t create legal duties, the Care Act does state that local authorities ‘must’ act under the ‘general guidance’ of the Secretary of State, meaning local authorities cannot completely disregard the statutory guidance – this is important for councils to note as there are often backlogs of reviews of care and support plans. The law ever since the Rixon case has been that departure from the Guidance can only be for a very good reason and one that is articulated at the time.
Section 27 of the Care Act stipulates a duty for councils to carry out a review of a care and support plan if a person or a person acting on behalf of a person with care and support needs requests one – if the request is reasonable. It is a fundamental tenet of public law that a decision to the contrary – a no, you can’t have one – would have to be explained rationally, in and of itself. Covid pressure is not an excuse, absent Easements to hide behind.
This report highlights the importance for councils not only to consider objectively whether informal carers are ‘willing and able’ to meet the identified eligible needs of a person but the ‘sustainability’ of the arrangement in objective terms and whether the carer will be able to continue to meet the needs for the foreseeable future (logically, to our minds, until the next review is likely to be scheduled!).
That much has already been decided to be the law in the Redbridge v Ali Raja case, which involved public officers shutting their ears and eyes to the obvious – the mother was dedicated but incapable of meeting the need without risking irreparable harm to her own health. This is the sort of behaviour that staff fall into when the management pressure on them to deliver savings or not give people increases becomes too great and is not counterbalanced by proper legal framework training in our view.
People often think that a Carer’s Assessment is what allows them to stop – ie if they are found eligible for help. That is a sorely pervasive misunderstanding of the law. The LAW is that councils can only make use of informal care if it is willingly and ably provided, and they are not the judges of willingness – obviously that is a choice for each and every informal caring network to make. Councils are not entitled to decide that a person is ABLE to continue caring without fairly addressing the evidence as to the risks associated with so doing, but that isn’t a decision under a carer’s assessment, please note. That is a public law decision necessitated by the fact that a large part of any previously offered informal care that is NOT able to be seen rationally as ably as well as willingly provided most likely presents a gap in the arrangements for meeting need, for which the council is liable.
Increasing workload pressures may make it seem reasonable to de-prioritise cases where the person’s needs are being met by informal carers but this is not in line with the Act (the Act negates a duty to meet need in the case of care being provided by carers, but the Guidance makes it crystal clear that that care must be willing and able) nor with the Guidance or case law in terms of ignoring carers’ stances that they are not willing or able to continue to meet needs. Even if carers say nothing, a council must take an objective decision about a person’s ability to go on caring and ADDRESS the evidence put before them. A carer’s assessment is not the determinant of willingness to care and nor of ability to care: it is a determination of impact being sustained, and thus relevant TO the objective decision that is needed for the duty to the cared for person, regarding the carer’s ongoing ability to care. The carer him or herself is the decision maker about willingness. A willing carer must not be ALLOWED to go on shouldering the caring load once risk exceeds a tolerable threshold – and the threshold is one of objective rational evaluation, not just one based on the council sector’s desperate exploitation of people’s love and commitment to their relatives.
Emergency care – which by its very nature is not planned and person-centred – can itself be an indication that something has gone wrong with the Care Act process. Here, the ombudsman not surprisingly recognised that this led to injustice and avoidable distress.
The symbolic payment of £1500 each to the parents is a formula for avoiding calling the remedy by its proper legal name, which is restitution – when a person other than the council has provided money for or done the labour that was the council’s obligation to organise – themselves: they need to be reimbursed a reasonable amount for that time spent when the man was not getting what was in his care plan – that 4th day of respite, let alone the PA hours for 6 hours a week. Since they would have done it anyway rather than put their son through another avoidable spell in the unsuitable residential placement, any sooner than the advent of the intense second crisis, we suspect that the LGSCO has discounted the amount for that reason – and we have seen that done in other recent reports.
The absence of an actual care plan on Essex’s computer system may have been part of the issue too: an ombudsman cannot recommend restitution without clear evidence that the provision missing, actually made it into the care plan. But the LGO was able to find fault in any event and accepted that the 4th day had been put in the original care plan. See s25(9) for the legal obligation to provide at the very least the client with a copy of his or her plan:
(9) The local authority must give a copy of a care and support plan to—
- the adult for whom it has been prepared,
- any carer that the adult has, if the adult asks the authority to do so, and
- any other person to whom the adult asks the authority to give a copy.
And the guidance says this, no doubt to obscure the fact that nobody gets a copy of a care plan if the person lacks capacity to ask that someone else be given one, which is a serious omission from the Act. Welfare attorneys would normally be regarded by the ICO and ombudsman as entitled, but not always.
10.87 Upon completion of the plan, the local authority must give a copy of the final plan which should be in a format that is accessible to the person for whom the plan is intended, any other person they request to receive a copy, and their independent advocate if they have one and the person agrees. This should not restrict local authorities from making the draft plan available throughout the planning process; indeed in cases where a person is preparing the plan in conjunction with the local authority, the plan should be in their possession. Consideration should also be given to sharing key points of the final plan with other professionals and supporters, with the person’s consent (for example, as part of the person’s health record), or sharing the plan in the best interests of a person who lacks capacity to decide on this matter.
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The full Local Government Ombudsman report on the actions of Essex County Council can be found here: