Decision date: 5th May 2021
Mr X had a tenancy in a sheltered retirement accommodation complex and had been receiving Council funded support since 2016.
Mr X received 45-minute care calls during the weekdays to help with personal care and meal prepping. He paid privately for support with cleaning and shopping.
In March 2018 a needs assessment highlighted that Mr X now struggled with moving his right arm which stopped him being able to write. The assessment also noted that Mr X found using the telephone very stressful and often asked others to make calls and write letters on his behalf. It was also found that Mr X had been struggling with his personal care during the weekend, when he did not receive any care calls. There was, however, no mention in the assessment of whether he was coping in the evenings at that time.
At the end of March, Mr X asked the Council for weekend support and his social worker began enquiries.
Mr X’s health began to decline in April. At this time his social worker asked care providers if they had capacity to provide evening care, as well as weekend care calls.
At the end of April, the social worker found Mr X a potential support worker to help him to write letters.
Over the next few months until June 2018, the sheltered accommodation warden had contacted the Council on numerous occasions to notify them that Mr X’s behaviour was deteriorating and escalating. Mr X had become increasingly distressed over the lack of weekend support, which led to Mr X calling the warden for out of hours help for non-urgent issues. He would also call on neighbours and paramedics.
The Council assessed Mr X again in June 2018, and had noted that he:
- Did not use his phone;
- Could not write due to an injury to his right arm;
- Was increasingly calling on the warden, paramedics and neighbours at weekends;
- Had many possessions in his home, and items on the floor which created trip and slip hazards;
- Was at risk of:-
- self-neglect of himself and home environment;
- falls in his home due to his belongings;
- losing his tenancy if he continued to call on the out of hours service, neglecting his environment and continued behaviour towards other residents;
- not receiving future emergency visits if calls to the paramedics continued with no need for treatment.
- Again, the assessment did not consider if he needed evening care.
Following this, Mr X’s support was increased to seven mornings a week.
It was apparent from the LGSCO’s investigation, that the Council could not evidence that it ever shared the outcome of this assessment with Mr X.
Mr X had also asked the Council to consider the costs of his over-the-counter medication as disability related expenditure (DRE). Mr X’s doctor provided the Council with information on the medication, and had highlighted that Mr X had asked for this medication himself. He had been told that the treatment was not available on the NHS and that he would have to pay for the medication himself. The Council therefore declined to include the medication as DRE, as it considered Mr X had wanted the medication himself, and it was not medically required.
In November 2018, Mr X asked the Council for a copy of the letter from the doctor, which Mr X stated, the Council had refused to provide.
During the course of the investigation, the Council had produced evidence to the LGSCO showing that they had provided a copy of the letter, but not until March 2019.
Mr X remained unsatisfied and complained to the LGSCO, stating that the Council had:
- Refused a request for over-the-counter medication to be allowed as DRE;
- Refused to provide him with a copy of the letter his doctor had provided to the Council, which he said supported the DRE request;
- Not implemented evening support calls even though he was told by the social worker, it would be arranged; and
- Provided false and defamatory information in relation to information recorded by his allocated worker which had been shared with a care agency.
What was found
Phone calls and writing support
All of Mr X’s assessments had noted the difficulty he had using the phone and writing. However, the LGSCO found that no assessment had clearly set out issues in relation to how often, by whom and how Mr X was supposed to need or to have received support for these tasks. There was some evidence that his social worker had found support in April 2018, but there was no further mention of the support after that date.
The Council was at fault for the way it dealt with Mr X’s request for telephone and letter writing support, as it was unclear whether the Council had considered it to be an eligible need, which had arisen from his disability. Mr X’s social worker, having tried to source support, had suggested that the Council did consider it an eligible need, and if it was, the Council should have considered it more thoroughly in its assessments.
The LGSCO however stated that this fault did not cause Mr X any injustice, as there was no evidence that Mr X had not been able to source support, or that he’d had to pay for it (although he did ask if it could be deducted from the assessment of financial means, which suggests to us that he was thinking of paying for it or had paid for it.)
Mr X complained that he did not receive evening support even though he was told it would be arranged. The fact that his social worker asked care providers if they had capacity to provide evening care supported Mr X’s view that he was told he would receive evening care. The June 2018 assessment did not identify any need for evening support. The LGSCO stated that given Mr X’s social worker was looking for evening care for him just the month before, it would have been reasonable to expect the June assessment to set out why the Council did not think it necessary if that was their conclusion, then.
Therefore, the Council was at fault for the June 2018 assessment, as the LGSCO deemed it was not carried out properly. This had led to uncertainty, as it was unclear if Mr X needed evening support.
There was also no evidence that the Council shared the second assessment with Mr X before it was finalised.
The LGSCO stated that it was appropriate for the Council to ask Mr X for evidence from his doctor regarding the medication he took, and whether it was to treat an illness or help his disability. The letter did say that the medication was needed. The Council said it considered the letter showed the medication was self-prescribed by Mr X. But the LGSCO considered that the doctor’s letter highlighted that it was Mr X who considered the medication necessary, rather than needing it to help his disability.
The LGSCO decided that the Council had properly considered the evidence and made its decision in line with its policy and was therefore not at fault. However, the Council failed to provide Mr X with a copy of the letter until four months after Mr X asked for it. This was fault, which had caused Mr X frustration.
False and defamatory information
The Council shared information from the June 2018 assessment with the care provider. Mr X was unhappy about this.
The LGSCO stated that if it had shared its own assessment of him, with him, Mr X would have had an opportunity to comment on the assessment, and state what he was unhappy with, which may have affected what was shared with the care provider.
The LGSCO stated that whilst it could not say the information shared was false or defamatory, the Council should have shared the assessment with Mr X, and failure to do so was fault. This had caused Mr X distress.
The LGSCO recommended that the Council pay Mr X £300 in recognition of the uncertainty, frustration and distress caused.
Points to note for councils, professionals, people who user services and their carers, advocacy providers and members of the public
The issues in this complaint point to this council not fully understanding its responsibilities under the Care Act 2014.
Reading between the lines, we think that this is an example of running the Care Act backwards, leaving the eligibility decision to a point where an individual literally can’t cope any longer. We get that impression from the authority’s looking around to source services, but without having provided the paperwork that would trigger a duty. We think that that is a common occurrence these days and to do with the workforce crisis in adult social care.
There was a lack of clarity in relation to Mr X’s eligible needs, which is inexcusable under the Act. Reasons have to be given for a conclusion on eligibility, either way, under s13.
13(2) Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.
The regulations and paragraph 6.106 of the Care and Support statutory guidance set out a range of outcomes and degree of impact against which a person’s needs can be determined as eligible. The person will be eligible for the council to meet the needs if they arise from or are related to a mental or physical impairment or illness, and as a result the person is unable to achieve 2 or more outcomes, resulting in or likely to result in a significant impact on the person’s well-being.
Mr X had been known to the Council for some time. He had an existing care plan and that had been reviewed by the Council. We at CASCAIDr are unclear as to at what point Mr X’s needs had changed, and when the Council had knowledge of this. Further, if someone’s needs have changed, then the Council should have been reconsidering eligibility as part of a proportionate re-assessment under s27(4) Care Act (except that maybe councils don’t think that that’s necessary if they decide NOT to change a person’s care plan!). The duty to consider the newly asserted needs in the light of the framework for eligibility or following them through on care planning, seems to have been completely ignored.
The law and guidance also set out the importance of the individual being involved and participating as fully as possible. Paragraph 6.1 of the Guidance states, “…The process must be person-centred throughout, involving the person and supporting them to have choice and control.” Paragraph 6.5 continues, “the aim of the assessment is to identify what needs the person may have and what outcomes the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. The outcome of the assessment is to provide a full picture of the individual’s needs so that a local authority can provide an appropriate response at the right time to meet the level of the person’s needs.”
People have a right to know what their assessed needs are and why they may be eligible under the Care Act 2014. Here the Council failed to explain this to Mr X and failed to share the outcome of the June 2018 assessment with him.
The Council had failed to give Mr X an opportunity to consider the assessment and provide comment on it. Had they done so, this may have enabled the Council to then go on to develop a care plan with him that responded more effectively to those eligible needs.
However, the LGSCO should have gone further, as the law (s12(3)) sets out that following an assessment, individuals must be given a record of their needs assessment (and the Guidance underlines this at para 6.98). This has clearly not been the case here.
The final issue relates to DRE. If the letter from the GP said the medication was needed, and wasn’t available on the NHS, we are puzzled as to why the LGSCO regarded it as self-prescribed.
Under paragraph 38 of the Care Act Statutory guidance, there is a list of examples of DRE which should be accepted by the Council. It does not exclude prescription charges or items related to illness. The list is not intended to be exhaustive and any reasonable additional costs directly related to a person’s condition or disability should be included.
In considering DRE the Council would need to consider each item and set out why it was not being allowed. Here the Council was not found at fault for its decision to ignore the expenditure on medication costs – its reason being that they were not medically required. The LGSCO said that the Council had considered Mr X’s request in this regard and set out why it was not being allowed. We at CASCAIDr think that the LCSCO should have elicited a rationale from the council in light of what the GP had said. We can’t tell what the letter actually said: the investigator says in the report that it said the medication was needed but then says this: “I note the doctor’s letter did not state Mr X needed the medication to treat an illness or to help his disability. Instead, the letter highlighted it was Mr X who felt he needed the medication.”
The Council should have provided him with a copy of the GP letter on which it based its decision. This took the Council four months, which is inexplicable.
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 Wiltshire Council’s actions can be found here: https://www.LGSCO.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-018-748