London Borough of Hammersmith & Fulham at fault for failing to assess a person, failing to meet their needs, and failing properly to consider their comments

Decision Date: 05th May 2021

What Happened

Miss X complained on her own behalf. She lived at home with her two children.

Miss X told the LGO that she asked the Council to assess her and her children in December 2017, and again in January 2018. She had records to demonstrate this; the Council did not have a record, and nor did it respond.

In October 2018 the Council’s children’s services made a referral to adults’ services requesting an assessment of Miss X. Records provided by the Council showed that they attempted to contact Miss X about the assessment but she did not respond.

In May 2019 the children’s services made another referral to the adults’ services team for Miss X’s assessment.

The assessment eventually took place in August 2019. The assessment concluded that Miss X needed one hour of support a week to meet her needs. [It is not clear whether she had any needs related to the domain which refers to caring for a child.]

No care plan was produced. The Council told the LGO that this was because the assessment was incomplete but it is not clear why.

In November 2019 Miss X was assessed by an occupational therapist (OT) who noted that Miss X had trouble:

  • completing toilet transfers
  • transferring over the side of the bath
  • completing chair transfers
  • closing the door when using the toilet. 

The OT recommended some equipment to support Miss X which the Council subsequently ordered.

Miss X’s case was allocated to a new social worker in November 2019, who undertook a new care assessment. This assessment stated that Miss X did have eligible needs, but they were being met through support provided by children’s services [the nature of these services is not clear from the report]. The assessment also noted that Miss X would be supported with the OTs input.

When the Council sent Miss X a copy of the assessment, she sent back amendments as there were some inaccuracies, and it did not include any medication that she was taking.

The finalised care plan sent to Miss X in January 2020 set out:

  • Miss X received support from children’s services with laundry,
  • The Council would provide two hours of care per week to help with domestic tasks, to facilitate Miss X spending time with her children and maintaining a habitable home.

After receiving the final assessment, Miss X still had concerns that there were inaccuracies:

  • The medical summary was not full and accurate.
  • The OT assessment had not considered several difficulties she had. This included not being able to cook due to pain, not being able to reach items in the cupboards, and not being able to open the kitchen window. Miss X also highlighted her concerns that some items recommended by the OT were not suitable.
  • Children’s services had not provided her with the support it had promised, as stated in the assessment, so her needs were not being met.

In March 2020 the Council offered Miss X a home visit to update the assessment, which she declined.

Miss X told the LGO that she declined the offer, because she had already had numerous home visits and had become increasingly frustrated.

The Council did not follow up with Miss X until June 2020.

Miss X complained to the LGO about the delay in assessing her, the faults in her assessment and she also stated that the Council did not tell her about her advocacy options.

The Council told the LGO that Miss X did not in their view meet the conditions to make it necessary for an advocate to be arranged. There was no evidence that Miss X had significant difficulty in understanding, retaining and weighing up information, nor did she struggle to communicate her views clearly and effectively.

The Council accepted fault for the delay in completing her assessment, however, and acknowledged that it should have offered Miss X support between August 2019 and March 2020.

In recognition of its faults, the Council stated it would:

  • Pay Miss X £500
  • Remind officers to adhere to procedures on timescales for responding to referrals, completing assessments and care and support plans within a reasonable timeframe, including the agreement of the content of assessments.
  • Discuss with colleagues in other departments, including children services, on combined or integrated assessment and care planning to ensure the Council has a robust system in place when more than one service is assessing or meeting a person’s needs.

What was found

Delay in assessment

Despite the lack of Council records, the LGO found evidence that Miss X contacted the Council to ask for an assessment in December 2017. The Council did not assess her needs until August 2019. This delay was fault.

Care assessment

Firstly, the LGO pointed out that it was bad practice for the Council to have failed to share the outcome of the August 2019 assessment with Miss X. The Council should aim to involve people in their assessments.

When it did share a copy of the November 2019 assessment, it failed to provide evidence to the LGO that it acted or followed up on Miss X’s comments. This was fault.

Failure to meet eligible needs

Firstly, the January 2020 care plan stated that Miss X needed two hours of support a week for help with domestic tasks. The LGO could not determine from the evidence provided that the Council ever arranged this support.

Secondly, as the Council already accepted, it should have offered support between August 2019 and March 2020.

The LGO concluded that the Council was at fault for failing to meet Miss X’s eligible needs.

OT assessment

The LGO considered that the OT assessment was carried out properly; it was detailed and highlighted difficulties Miss X had in moving around her home. However, the Council should have responded to Miss X’s concerns. The LGO stated that it should have either explained why it had not considered the highlighted areas, explained why her comments did not affect the outcome of the assessment, or included her comments in the assessment. Failure to do so was fault.

Advocacy

The LGO stated that the Council was not at fault for not providing an advocate for Miss X. The Council’s view that Miss X did not meet the criteria was supported by all available evidence, and therefore in line with the law.

Overall, the LGO recommended that the Council:

  • Apologise to Miss X
  • Complete a new care assessment and OT assessment and ensure Miss X’s comments are properly considered
  • Pay Miss X £650 in recognition of the distress, inconvenience, frustration, and uncertainty caused by the faults identified.
  • Remind officers to adhere to procedures on timescales for responding to referrals, and to complete assessments and care and support plans within a reasonable timeframe.
  • Discuss with colleagues in other departments (including children services) on combined or integrated assessment and care planning to ensure the Council has a robust system in place when more than one service is assessing or meeting a person’s needs.

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

There are some frequently arising themes in this report, sadly.

Firstly, delay. We often see long delays in assessment, decision making, and care and support planning. This is a way of managing demand and, when unreasonable, is an illicit form of rationing, where the duty is not one to be read as allowing for that sort of technique in light of the individual’s presenting circumstances.

The Local Authority Social Services Act 1970 is still in force with regard to a duty to ensure that the Director has adequate staff for the discharge of their social services duties:

6(6) A local authority which have appointed, or concurred in the appointment of, a person under this section, shall secure the provision of adequate staff for assisting him in the exercise of his functions.

In this case, the Ombudsman was clear about fault because the assessment was not done and the needs were not met within any conceivable concept of a reasonable timeframe.
The abolition of the pre Care Act target in the older guidance of 28 days for an assessment makes it harder in some cases to show unreasonable delay (though not this one). However, the guidance says that: from first contact as much information as possible about the process should be given including the timescale. If people knew to ask for a timescale this would no doubt focus local authorities’ minds.

In the guidance for care and support planning it clearly says ‘the planning process should not unduly delay needs being met.’ What an excessive or unreasonable delay is will depend on the person and the impact (potential or actual) on them. It could be that only a few weeks is excessive (see Royal Borough of Kensington and Chelsea at fault due to poor communication, delay in assessments and delay in care and support. – CASCAIDr.) If people are concerned about delay, they should highlight the impact on their well-being. Councils at the very least do need to be clear about how they are managing the risk, while people wait for care and support planning to be completed.

Secondly, lack of coordination between services. In this case, children’s and adults’ services in the same Council did not know what each other was doing (or not doing). The division of social services into children’s and adults’ does not reflect how families actually work! There is provision for combined and joint assessment. Councils must ensure that staff, who are accountable to the same electorate, work together.

We do not disagree that the need under the criterion referring to an adult’s responsibilities for caring for any child CAN be regarded as met by Children’s Services. But we see councils simply saying that that is a decision for the Children’s team, whereas in fact the primary duty is an Adults’ Services one – so the Adults’ team will be liable for provision, in default.

Thirdly, involvement. The law says that the local authority makes the decisions on matters affecting people’s lives, such as eligibility or how to meet needs, and on what involvement must mean in the context. An indefensible approach to involvement could be challenge, in terms of inadequate process, using the law, or later on as having flawed the substantive conclusion on the exercise – the assessment or care plan or revision. People’s views, wishes, feelings and beliefs must be considered and should feature in the record. 

The guidance says this about Record keeping

6.98 Following their assessment, individuals must be given a record of their needs or carer’s assessment. A copy must also be shared with anybody else that the individual requests the local authority to share a copy with. Where an independent advocate, an Independent Mental Capacity Advocate or an Independent Mental Health Advocate is involved in supporting the individual, the local authority should keep the advocate informed so that they can support the person to understand the outcome of the assessment and its implications.

In terms of the decision on advocacy, the Haringey case judge took the view that no reasonable authority could have regarded the woman in that case as NOT qualifying for advocacy and because it was such a clear case, rejected the suggestion of counsel that it wouldn’t have made any difference! Here the fact that there was no evidence of cognitive processing difficulty was enough to persuade the LGO that the council was within its public law rights to decline to consider advocacy.

The Ombudsman surely gets tired of complaints featuring delay. The Care Act guidance says that ‘many disputes may be avoided by informing people of the timescales that are likely to be involved in different stages of the process. Keeping people informed how their case is progressing may help limit the number of disputes.’

So we would recommend that councils support the LGSCO, by taking heed and giving timescales.

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 Buckinghamshire County Council’s actions can be found here https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-006-683

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