Decision Date: 23 November 2022
Mrs C complained on behalf of herself and her brother-in-law, Mr X, in Autumn 2021, that the Council were responsible for delays in assessing Mr X’s needs and providing him with support and suitable accommodation. Mrs C also complained that a social worker had failed to provide agreed support, been untruthful and that both the social worker and council had repeatedly failed to respond to communications in a timely manner – and finally that the Council failed to complete a carer’s assessment for her and provide her family with sufficient support.
Mr X was shielded throughout his lifetime by his mother who passed away in 2020. Mr X was then supported by Mrs C who in August 2020 sought help with Mr X’s care and housing needs. Mr X had no formal assessment of his conditions, but Mrs C said he was unable to live independently or remain in his current accommodation which was to be sold as part of the administration of the estate and that she would meet some of his needs.
After a (presumably multi-disciplinary) triage process, the Council registered a housing application for Mr X and placed him on a waiting list for an assessment of his care needs. The Council advised Mrs C that Mr X was unlikely to be housed under their allocations policy and instead that she should find private/sheltered accommodation for Mr X or evict him (presumably from his deceased mother’s home prior to its sale) and help him apply under Housing Act homelessness provisions.
In October 2020, after several professional opinions had been sought by Mrs C, she requested that urgent housing support be provided but the Council’s housing team responded with a refusal, noting Mr X’s failure to meet the criteria. She also requested Mr X’s care needs assessment take place. The Council subsequently “started” the assessment and in February 2021 a completed care plan set out support needs in almost all areas, albeit no services in response*.
Support was then briefly provided to Mr X in his home (presumably still his deceased mother’s home) by a Shared Lives carer, who subsequently provided the Council with a further assessment of Mr X’s needs. This said that Mr X could live independently with minimal support and budgeting help.
Mrs C arranged for a learning disability specialist to assess Mr X who noted his lower than average IQ, that it was borderline whether he had a learning disability, and Mrs C suggested the Council should provide a Care Act advocate and progress Mr X’s housing application.
The social worker responded that Mr X’s vulnerability was due to his housing, that adaptations could meet his care needs, that his preferences ruled out shared living, and that his mental capacity ruled out a funded Care Act advocate and he was happy to rely on Mrs C for supporting his participation, but that she would write to Housing in support of Mr X’s application.
Mrs C then asked the Council to consider supported living, saying she could not continue to support Mr X. The most recently allocated social worker then left and no replacement social worker was allocated. Mrs C complained to the Council but paused the complaint when a new social worker was allocated, a small package of care was agreed and the ‘Best Practice’ panel agreed to consider supported accommodation. However, this request was subsequently declined with the recommendation that the Housing team should be approached regarding supported accommodation with ‘floating support’ (possibly another Shared Lives carer) through Adult Social Care.
Thereafter, a third reassessment of needs found Mr X needed more support which was set out in the care plan, before the social worker referred Mr X through the supported accommodation team. However, Mr X was found ineligible as the service was only for individuals who had engaged in substance abuse or who were past offenders. The social worker then identified so-called ‘placements’ for supported living. [Correctly stated, supported living infers a tenancy, not a placement, as such, because the council does not provide the accommodation under contract]. These were authorised for nomination but the referrals were not made for a further two months. Unhappy, Mrs C requested that her complaint be reopened.
The Council asked the social worker to contact her, subsequently providing information about supported living placements, one of which Mrs C and Mr X found to be suitable. However, the social worker said the care provider associated with the facility would only accept Mr X with a greater package of care than he had in place, which would be restrictive for him. Mrs C and Mr X then agreed to an alternative placement. The social worker and supported living provider set out a care package for Mr X, which was agreed by the Best Practice panel. Mr X moved into the supported living setting in January 2022. In March 2022 the Council took on Deputyship to manage Mr X’s finances.
What was found
Following Mrs C’s dissatisfaction with the council’s response to her Autumn 2021 complaint, the Council provided a further response apologising for the 14 month long wait for accommodation and agreeing to expedite outstanding actions. The Council also apologised for delays caused by the social worker – not lying as such, but failing to complete actions due to a heavy workload, for the delays in its accommodation liaison team and also for carers to start providing support. The council also acknowledged the lack of a carer’s assessment for Mrs C, due, it said, to the belief that Mr X would move sooner. [NB We think that Mrs C may have remained a carer in legal terms even when Mr X moved into supported living].
Dissatisfied, Mrs C asked for a reconsideration, received no reply and so referred the complaint to the LGSCO. The LGSCO noted the complaint was late but exercised discretion to investigate the matter as Mrs C had continued to raise concerns since 2020 and Mr X’s accommodation went unresolved until late 2021.
In response to the LGSCO, the Council said changes to social workers had exacerbated delays; failure to arrange management of Mr X’s finances was due to a social worker who had since undergone training, and agreed that a carer’s assessment should have been completed, earlier.
Regarding delays – The LGSCO found that the five months taken to complete Mr X’s needs assessment was much longer than the expected 4 weeks, which was fault; also, that some delays were caused by social worker failures and that there was a lack of understanding within the Council as to which department was responsible for ensuring accommodation was capable of meeting Mr X’s needs. Consequently the Housing, Sheltered Accommodation and Best Practice panel all declined to support Mr X before this was properly considered. Social worker errors were also identified as causing delays in arranging Mr X’s financial support which was further fault.
The LGSCO recognised some delays were beyond the control of the Council, including Covid-related difficulties, staff vacancies, social worker turnover, availability of suitable accommodation and the limited medical information about Mr X. However, the Council was at fault for the substantial delays, causing Mr X and Mrs C distress and uncertainty.
Regarding failure to provide care – The delay in completing an assessment of needs led to Mrs C supporting Mr X after she had informed the Council she wished to cease doing so. Also, that the Council’s conclusion of early 2021 – based on information from the Shared Lives carer – that Mr X needed only limited support, was difficult to regard as adequate, given that Mr X’s care plan stated he had eligible needs in all domains. As such the LGSCO was satisfied that more support should have been provided to meet Mr X’s identified needs but that any impact upon him had been limited by the support provided by Mrs C, which caused her distress.
In a finding that many will find helpful as a statement of legal principle the LGSCO said this: “As Mr X was still in his home and there was no solution to his housing situation at the time, he should have been provided with more care support to meet his identified needs.”
Regarding a carer’s assessment – Mrs C repeatedly told the Council she wanted to cease supporting Mr X and the Council had agreed it should have offered her a carer’s assessment but hadn’t done so due to an expectation Mr X would be housed more quickly. However, the LGSCO noted there had been 14 months in which a carer’s assessment could and should have been offered, the lack of which had caused Mrs C distress and feeling sidelined.
Social work communication and referrals – The Council agreed its social workers caused errors, delays and that their communication could have been better. The LGSCO pointed to a lack of evidence indicating a social worker had positively lied but found that their actions did cause delays; there were periods without responses or when the duty team could not provide answers to Mrs C. Therefore, the failure to ensure adequate staff coverage, to ensure calls were returned, or to keep proper records for the duty team were all fault. This fault caused Mrs C distress and uncertainty.
The LGSCO upheld the complaint and recommended that within one month, the Council should pay Mr X £300 in recognition of his distress and lack of support; also, that it should apologise in writing to Mrs C and pay her a total of £1,000 for her distress, uncertainty, the additional support she had had to provide and to recognise the time and trouble she spent pursuing the complaint. Within three months the Council should remind its social workers to respond to client communications in a reasonable timeframe, complete agreed actions, keep up-to-date records, complete carers’ and needs assessments without delays and put appropriate support in place to meet eligible needs without delay. The Council should also review how it supports clients with assessed, eligible needs and/or a need for supported housing to ensure staff understand processes and which services are responsible for meeting care and/or accommodation needs.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Assessment of needs – The duty to assess needs is triggered by the appearance of need to any local authority department. As such, it was appropriate that the identification of a housing need led to Mr X’s placement on an assessment of care needs waiting list. However, it is unclear why Mrs C’s prior request for help two months earlier, in August 2020, did not trigger the duty to assess, or why the LGSCO has elected not to mention this.
Waiting lists for Care Act assessments are not automatically unlawful, but they must be operated in a manner compatible with public law principles and not informed by considerations that are not legally relevant. Therefore, when in October 2020, with the support of several professional opinions, Mrs C made a second, more urgent request for the Council to assess Mr X’s needs, the Council would have been better off with a system for responding through robust waiting list management procedures to assure itself Mr X still had the correct level of priority, thereby leading to Mr X’s assessment being “started” soon afterwards. However, it is not clear why care planning was not completed until February 2021 (although this may have been Covid-related) or what the report means when it states the care plan “set out he had needs for support in almost all areas.” Care plans should outline how needs, identified across the ten assessment domains (presumably what the LGSCO meant by ‘areas’), will actually be met.
The report continues, “The support the Council put in place was for a shared lives carer to provide support to Mr X in his home for a short period” – This wording may suggest that this carer was placed with Mr X on the basis of there being an urgent need, leading the Council to provide the shared lives service without conducting an assessment or establishing eligibility first. In such circumstances, identified urgent care needs must be met immediately with a further, more detailed needs assessment and eligibility determination following afterwards.
The apparent interim solution, that a Shared Lives carer – who would not have been registered for the provision of personal care – went INTO Mr X’s deceased mother’s house to meet his needs there, is mind-boggling, to us, but perhaps he did not need care that amounted to registrable care and just needed prompting without supervision?
The report then states “the carer provided the Council with an assessment of Mr X’s needs”. which again suggests the carer was placed with Mr X specifically to form an opinion as to his longer term needs. There is nothing to stop such delegation of an assessment of needs function, so long as the local authority has assured itself that the person undertaking the process understands the purpose and aims of it, that it is carried out according to the Care Act 2014 duties and principles and that the information gathered is an accurate and complete reflection of the individual’s needs (ie is competent).
Advocacy – this report indicates the local authority refused Mr X a Care Act advocate under s67 of the Care Act 2014 on the grounds that he had capacity and existing representation via Mrs C. This is noteworthy given that the LGSCO has not explored this aspect of events, yet the entitlement to this type of advocacy does not turn on capacity, but on whether a person would have substantial difficulty in participating, and on whether they had an appropriate person supporting their involvement already, to whose help the person has actively consented.
Given it had already been asserted Mr X had either/both a learning disability or low IQ and Mrs C was seeking to withdraw from many aspects of her supportive role, it would seem that providing Mr X with such an advocate may well have been the better approach.
Staff availability – Under s6(6) of the Local Authority Social Services Act 1970 there is a provision requiring any council with a Director of Adult Services to secure adequate staffing for the discharge of the social services duties the Director is responsible for. That means that of all the departments that should not be allowed to grind to a halt, it is social services that must be kept going the longest – and as such, a lack of staff amid the disarray that is going on in this country right now, is not an excuse for the breach of the duties to assess, review, revise and deliver on eligible people’s care plans through unconscionable delay. However, no mention is made of this duty in this case by the LGSCO investigator.
Tenancy – Ultimately, Mr X became a supported living tenant requiring him to sign a tenancy agreement and to have the mental capacity to do so. However, given the early assertion made by the Council that Mr X needed help to manage his finances, and that it ultimately became his financial deputy, which would have turned on professional opinion that he lacked capacity in that general area, it is not clear how these two aspects of the history can comfortably co-exist in a lawful manner. The investigator has simply chosen to ignore this issue as far as we can see.
Restitution – Finally the LGSCO acknowledged the Council caused unacceptable delays in providing support – the costs for which they would otherwise have incurred. As such, an exploration of the extent to which the Council financially benefited from this delay or Mrs C and Mr X had to use their own resources, may have been warranted, but the LGSCO was probably reticent because of the difficulty of determining exactly what should have been provided for in terms of a budget – one that should have been in the care plan, but which was not, from what can be gleaned from the report. Only the Administrative Court can do that by making a finding of legal significance, whereas the LGSCO can only determine maladministration.
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The full Local Government Ombudsman report on the actions of Medway Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/22-002-267