Decision Date: 3 January 2023
What happened
Mrs X complained about Council failures to provide adequate support for her daughter, Miss Y, leaving her to meet her complex needs for over a year causing stress, frustration and impacting upon her physical and mental health. She also complained about a Safeguarding investigation carried out around Miss Y’s care.
Miss Y’s care provision – Miss Y was wheelchair bound, non-verbal, had complex needs and lacked the mental capacity to make decisions for herself. Her mother, Mrs X, was Miss Y’s Court appointed Health and Welfare deputy. From October 2020, Care Agency A provided home care to Miss Y. In April 2021, a new social worker (SW) was allocated. Mrs X advised this SW that changes in her own health needs meant she required further help with Miss Y.
In May 2021, Agency A withdrew. The SW identified that Agency B could meet Miss Y’s needs, including the 2:1 elements. Mrs X was interested in employing Personal Assistants (PAs) to overcome perceived difficulties with agencies. The SW agreed this was an option, but not to meet urgent needs.
In July 2021 the decision making panel approved Agency B’s care package but they were unable to start immediately and in September 2021 the SW triggered concerns that Mrs X was having to provide care alone. In response, the Council added further nine nights of respite to Miss Y’s entitlement. At the end of September Agency B began supporting Miss Y.
In November 2021, Mrs X raised concerns with Agency B about aspects of their service and in December 2021 made a safeguarding referral against Carer D, who was removed from Miss Y’s service. Once again, Mrs X was providing “a lot” of care for Miss Y, either alone or with one carer.
In January 2022 the SW suggested direct payments (DPs) and agreed with Mrs X that Agency B were not providing a satisfactory service. In February 2022, a needs review meeting identified Agency B were not providing some personal care elements of Miss Y’s package, the SW contacted further agencies to cover these elements and a care plan noted DPs could be used to “meet Miss Y’s needs – for services in the home and elsewhere”.
In April 2022, Mrs X advised the SW and Agency B she wished to step back from caring and requested a further carer but said if this were not possible, she wished to cancel all shifts, due to the inconsistency with shift attendance. In May 2022, the SW made a referral to a DP management organisation to set up DPs for Miss Y and then in June 2022, the SW made an unsuccessful search for providers to meet some of Miss Y’s unmet personal care needs.
Also in June 2022, Mrs X gave notice to Agency B then complained to the Council about: the Safeguarding investigation, which the Council did not uphold saying it had been conducted in line with the Care Act 2014; about delays to DPs, which the Council partially upheld saying DPs had now been agreed after previously considering a PA but favouring agency use; and about the lack of appropriate care for Miss Y, which the Council partially upheld by acknowledging “disruption” caused by the “difficulties” in sourcing suitable care.
In July 2022, Mrs X complained to the LGSCO, noting inaccuracies in the Council’s complaint response. She said that in July 2021 she had advised the SW of concerns around Agency B’s ability to provide staff but agreed to their use as the SW said the care could be provided immediately.
During the LGSCO investigations, the Council said it had offered Mrs X a carer’s assessment in December 2021 and twice more prior to July 2022 but that Mrs X had declined each time. In August 2022, a carer’s assessment was completed; then reviewed in October 2022.
The Council also stated that from May to September 2022 the delay to DPs was due to confusion about amounts being requested, but concluded this had been unnecessary as funding had already been available based on Miss Y’s assessed needs.
The Council further stated that despite the SW’s best efforts, no providers had been identified as available and that provider support had been absent since April 2022. The LGSCO also reviewed the relevant safeguarding policy and procedures as part of their investigations.
What was found
Miss Y’s care assessment and Mrs X’s carer’s assessment – In light of the SW’s efforts to find care amid sector-wide recruitment issues, the LGSCO found it was fault in the form of “service failure” that Miss Y had been provided with inconsistent and fragmented care since April 2021, a lack of 2:1 support since November 2021 and a lack of personal care since April 2022. However, the LGSCO also noted that although there had been a lack of “satisfactory care” for Miss Y’s needs by the Council, that she had suffered only limited injustice as Mrs X had met her care needs.
This however had caused Mrs X “significant injustice” impacting upon her health, wellbeing and placing her and Miss Y at risk of injury due to the physicality of the care required. The Council acknowledged this failure and that it had caused “carer strain”.
In April 2021 Mrs X asked for help with her own needs, but a carer’s assessment was not offered until December 2021 and additional respite provided, whilst commendable, was insufficient in light of the carer strain and extent/complexity of Miss Y’s needs. This was fault. The Council ought to have taken action to assess and properly consider Mrs X’s health and wellbeing sooner.
Further, the LGSCO considered the sum of £300 proposed by the Council to acknowledge Mrs X’s distress was not an appropriate remedy given the extent and duration of the impact upon Mrs X’s relationship with, and ability to care for Miss Y and the avoidable distress, inconvenience and frustration caused.
Direct Payments – Setting these up caused notable delays. Mrs X repeatedly asked the SW about DPs, including in July 2021 when the SW said an Agency would be preferable. Then, when delays followed, there was no further consideration of implementing DPs even when further problems were identified with Agency B.
The LGSCO also noted that in January 2022 Mrs X had formally requested DPs but at the time of investigation it appeared these had not officially been put in place. Also that the Council had previously acknowledged fault in the reason for delays, and that whilst it was not possible to know if DPs would have yielded support sooner, this fault had still caused uncertainty and frustration.
Safeguarding – The LGSCO was satisfied the Council followed “most” of its policy. There were three months between the SW stating that they would update the Agency and that they were going to close the enquiry, but there was no record of any actions in the interim. This is congruent with Mrs X’s assertion that she had not been updated by the SW and that the LGSCO had not seen the letter the Council said it would send her.
Also, there was no evidence of decision-making around the safeguarding investigation closure. That is, the Council should have been the main lead and made its own findings about Agency B’s investigation. However, there appeared to be no record as to how the Council was satisfied that Agency B’s enquiry had been effectively concluded, or that it had confirmed a DBS referral had been made. As such, policy had not been followed in the closure of the inquiry which was fault. However, the injustice to Miss Y or Mrs X was limited as the risk had been removed promptly.
The LGSCO recommended that to remedy the injustices found, within one month the Council should apologise to Mrs X for failing to find consistent and sufficient care for Miss Y over the course of 18 months and pay her £1,300 in recognition of the significant distress caused, her time and trouble spent complaining, plus her uncertainty and frustration. Also, that the Council should ensure Miss Y’s DPs were in place.
Further, that within three months the Council should remind staff to ensure consideration was given to carrying out carers’ assessments where there was an appearance of need and to ensure guidance and support was provided around DPs. Finally, that the Council should provide evidence to the LGSCO that it had complied with these measures.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
In its final analysis the LGSCO required the Council to apologise to Mrs X for the failure in being able to find consistent and sufficient care for Miss Y across 18 months. We think however, that even though the LGSCO found this caused “limited injustice” to Miss Y (as a result of Mrs X’s efforts), that it would nevertheless have been appropriate, respectful and supported positive working relationships going forwards had an apology also been offered to Miss Y.
Also, we would question if it is actually only a limited form of injustice to be placed, without a choice, into a position, where the meeting of one’s own needs, by a loved one, causes and is seen to cause significant negative impacts to their health and wellbeing and to place them at risk of harm and injury? That is, watching someone suffer as a result of helping you; because you are unable to help yourself?
We would also note that this report represents an opportunity to consider the confluence of several topical issues, namely market shaping, service failure, the power to meet urgent needs, the duty – or in this case, failure (for any reason) – to deliver the care provision defined in a care plan, and the right for familial carers to refuse to provide care. It is a report which reflects the state of social care and the impossibility of enforcement of people’s legal rights, despite a supposedly absolute duty that must not be downgraded into a discretion, it might be said.
Nevertheless, we would note the Council were found to be at fault as a result of ‘service failure’ (of a provider). This type of failure does not trigger a duty to immediately meet the resulting unmet needs, as opposed to ‘provider failure’ which does.
The Council could however, have exercised its power to meet Miss Y’s needs – possibly as urgent, had there been no other care available. Whereas instead, at a significant personal cost, Mrs X negated that possibility when she chose to fill the gap in Miss Y’s care herself. Whereas had she stated she was unwilling to do so, or set a date beyond which she would not provide for some or all of Miss Y’s care, the council would have immediately been required to meet Miss Y’s needs.
Many familial/informal carers do not know that they cannot be forced to provide care but that the care they do provide, (including when exhausted), is virtually always and lawfully interpreted by a local authority as willingly provided UNLESS and UNTIL a person says otherwise – and means it.
We think that failing to make a fuss about this sort of non-performance of duties de-motivates councils from making strong representations for better funding and risks contributing to the significant watering down of the still young Care Act 2014.
The full Local Government Ombudsman report on the actions of the City of York Council can be found here: 22 005 428 – Local Government and Social Care Ombudsman