Decision Date: 30th April 2021
What happened
Mr and Mrs C complained on behalf of their adult son, Mr D.
Mr D had a number of health issues including epilepsy; he lived with his parents, received support from paid carers and attended a day centre during the week. The Council and NHS shared funding for his support.
In 2017 Mr and Mrs C, both in their seventies, contacted the Council to start planning Mr D’s support provisions for when they passed away. They wanted to explore alternative accommodation options near Mr D’s brother.
In February 2018 the Council completed a needs assessment and support plan. However, the support plan did not say what the personal budget would be when Mr D moved away from the family home.
A social worker identified Care Home X as a possible setting for Mr D. After Mr and Mrs C visited they agreed it would be suitable for Mr D as it was close enough for his wider family to stay involved.
The notes from the social worker in November 2018 stated that the quote from Care Home X for provision was £2500 a week, which was ‘too high’. A week later, the home said it could meet Mr D’s needs, so the brokerage team sent Care Home X a care plan to prepare, in order to obtain a costing breakdown. After visiting the home in May 2019, the social worker stated that, after some negotiations, the home had agreed to a final cost of £2000 per week.
Throughout this time the social worker provided alternative suggested settings for Mr and Mrs C to consider.
In July 2019 the Council wrote to Mr and Mrs C, stating that it said it would not fund Care Home X as it was unsuitable for Mr D. It was a brain injury unit, and Mr D did not have a brain injury. The Council also told Mr and Mrs C that they needed to exhaust all local placement options before looking further afield. Mr D’s medical consultant advised the Council that although Mr D did not have a brain injury, such a facility would still be able to meet his needs.
In response to the LGSCO enquiries the Council further stated that the home was ‘unsuitable’ for Mr D because he ‘needed supported accommodation’ rather than residential care, which it considered as ‘institutional’. It said its focus was ‘promoting people’s independence and supporting people to live in the community wherever possible.’
The Council also stated in their response to the LGSCO, that Mr and Mrs C had refused to visit the alternative facilities it had offered. Mr C pointed out that he had visited nine of the schemes suggested by the Council, but considered most of them to be unsuitable for two main reasons:
- Steps – because Mr D was a wheelchair user outdoors and unable to walk indoors without support.
- Self-contained flats – because Mr D had never lived alone and would be unable to have the company and support to which he was accustomed.
The Council told the LGSCO that the providers were aware of Mr D’s limited mobility and would have factored it into his assessments. It also highlighted that most supported living accommodation had communal areas where Mr D could socialise and take part in activities.
What was found
The LGSCO found that although the Council carried out a thorough assessment in 2018, it failed to provide Mr D with an indicative budget of how much the Council considered it would cost to meet his needs. This was fault.
The LGSCO highlighted that although the NHS partly funded Mr D’s support, there was no evidence that its staff had been involved in the 2018 assessment regarding how his health needs should be met. The LGSCO stressed that this was particularly concerning as Mr D had daily seizures, sometimes lasting up to 30 minutes. Therefore the Council was at fault for failing to record a health perspective as part of Mr D’s assessment.
The LGSCO stated that the Council was very unclear as to the reasons why it rejected Care Home X as an option. After the Council sought advice from Mr D’s consultant, it still failed properly to consider how suitable, Care Home X would be for Mr D. Although it stated that Care Home X was a residential placement rather than supported living, the Council should have focused on whether the provision could meet his needs, rather than treat the type of provision as determinative. The Ombudsman considered, on balance, that the Council ultimately rejected Care Home X on the basis that it was too expensive, as notes from the social worker in November 2018 had indicated.
The LGSCO thought it was open to and appropriate for the Council to suggest alternative placements for Mr and Mrs C to visit, but could not agree that they were unco-operative, as the Council suggested. Evidence showed that Mr and Mrs C had visited and considered the alternative options and made relevant points about their suitability. It was in fact the Council who did not properly consider their rejection of same, and their reasons for doing so. For example, the Council failed to say whether it had ever assessed Mr D as being able to navigate stairs.
Although the Council did consider the location of placement options and attempted to find provisions within a close distance of relatives, it was unclear to the LGSCO as to why it set a location boundary at one point in the process. This was not in line with the Care Act.
The LGSCO did not comment on whether a place at Care Home X should have been offered as this was not for them to say, but for the Council’s professional judgement about how to meet needs in a cost-effective or Best Value way if indeed there was more than one alternative option. However, the LGSCO said that the Council was obliged either to accept that Care Home X was the only suitable option for Mr D or provide an alternative which met his needs, appropriately, that stance being defensibly justified through involvement of the relatives.
The LGSCO recommended that the Council:·
- apologise to Mr D and his family
- make a payment of £350 to Mr and Mrs C
- obtain medical information to ascertain Mr D’s medical needs and an occupational therapy report to find out what type of accommodation and/or support Mr D requires to meet his mobility needs;
- incorporate these views within the assessment and provide a revised care plan and personal budget;
- consider whether there are any other options available that meet Mr D’s needs and share these with the family;
- make a reasoned decision whether X is a suitable place for Mr D and, if it is not, provide reasons, and, if it is but there is an adequate alternative, set out why that decision has been made;
- remind staff about the importance of incorporating medical opinion within assessments, having a family approach to assessment and incorporating views into the support planning stage as well as assessment, and making transparent decisions whilst not making judgements based purely on cost.
Points to note for professionals, councils, people who use services and their carers, advocacy providers and members of the public
This report is a great example of a situation where the process is the problem. Ultimately, it is not for the Ombudsman to say how needs should be met, only that they must be met. The problem here is that the Council went about this in a resource-led way, thinking about what they could afford; rather than going from holistic assessment, to a practicable care plan and personal budget, to deciding on how to meet the eligible needs (readers might like to listen to our podcast – Using the Care Act backwards here).
As a result, the Council wasted a lot of time (their own and Mr and Mrs C’s), and ended up with an assessment that didn’t do the job, as it wasn’t joined up with the Health needs, and a care plan and budget that wasn’t realistic, and no clear reasoning about the merits of any available options for meeting needs.
Once those options are arrived at through a logical ordered Care Act compliant process, it comes down to the Council’s opinion on ‘best value’.
This is often a difficult message for individuals and families, who may have set their hearts on a particular option.
Choice of Accommodation rights exist in a limited form in any setting where the council is going to commission the accommodation element, but that excludes supported living from that concept, because a person signs their own tenancy in such a setting, and therefore doesn’t NEED choice rights. If Care Home X WAS the only suitable option, the gentleman didn’t need choice rights either; but if there were care homes near and far, there was no right on the part of the council to limit the choice to local homes. That is a popular myth with councils, even now, despite annex C to the Guidance making it clear that the right of choice of one’s care home setting can be exercised for a home anywhere in the country, as long as the other caveats are met.
Councils don’t always have to meet needs in the MANNER (ie the TYPE of care provision/facility) that someone or their family merely ‘wants’ if it’s not cost-effective. That’s why a person can be offered care in a care home and doesn’t get to demand care AT home, if they refuse that offer. A council must take wishes into account and have a basic duty under section 1 of the Care Act to promote wellbeing. An option having a detrimental impact on wellbeing therefore won’t be likely to do the job of meeting needs defensibly.
However, if an option meets needs but doesn’t maximise wellbeing, it may be ok, even if it is not what the person really wants. The important thing is that in exercising this function the local authority has regard to the Human Rights Act and to the criteria laid out in section 1(2) and 1(3) of the Care Act which includes the assumption that an individual is best placed to judge their own wellbeing and taking into account their own views, wishes, feelings and beliefs.
The comment on Care Home X being unsuitable because supported living is somehow automatically better than residential care for some people has a dogma-driven ‘blanket policy’ tone about it. It raises the suspicion of cost being at the root of the matter, as Councils do not have to fund what are known as ‘hotel costs’ within supported living settings (this forms part of the rent and is usually covered by a housing benefit contribution). Cost can be taken into account in relation to how and where to meet needs but cost-based policies applied without individual consideration are definitely not OK.
Although it pre-dates the Care Act, R on the application of Alloway v Bromley LBC (2008) is relevant here. The principle in play is that although a council has always been able to offer the cheaper of two adequate alternative means of meeting need, adequacy comes first and cost is not able to be the ONE and ONLY determinant – other relevant considerations cannot be excluded.
The full Local Government Ombudsman report of London Borough of Newham can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-001-102