Decision Date: 24 Nov 2021
What happened
Y moved into a Shared Lives placement in mid-January 2020 [Shared Lives schemes are where carers share their home and family life with an adult who needs care or support to help them live well]. Y’s social worker completed a review in mid-February 2020. A further review was completed in mid-April 2020, when Y’s case was being transferred to another department.
The April review noted that Y was feeling positive about their placement and felt at home. The carer felt Y had settled well although the effect of the COVID-19 pandemic was making things difficult in general. The Council contacted Y twice in early May, and then again in late May and on both occasions Y said they were settled in the placement.
In late May 2020, the Council was contacted by a manager within the Shared Lives services requesting a social worker for Y as their father, Mr X, had raised concerns about how Y was feeling about the placement. Y’s previous social worker had been reallocated to another department due to the COVID-19 pandemic, and the Council agreed to allocate a new one as soon as possible.
Mr X contacted the Council shortly after this and shared messages that Y had sent him. These included concerns that the Shared Lives carer was preventing them from leaving the house; accusing them of lying; shouting and talking rudely to them, and had misgendered them. Y had told Mr X they wanted to leave the placement. Mr X suggested that the Council had not spoken to Y about the placement, instead relying only on information from the carer.
The Council held a further review [the LGSCO does not detail exactly when this was] where Y said they had initially coped well with the lockdown but was struggling and wanted to see their family. The Council contacted Mr X, who expressed concern for Y’s emotional wellbeing. The Council advised it was taking the concerns about the placement seriously and would allocate a social worker to investigate them.
Y detailed in an email to the Council that they felt stressed and worried and that the carer blamed them for things they had not done and would “tell them off unfairly”, not appreciating the impact of their mental health conditions. Within this email Y said that they wanted to end the placement. Mr X requested that this email was not shared further than the manager he had sent it to, as Y was fearful of repercussions from the carer.
A social worker was allocated at the end of May 2020, and a review completed in early June. This was attended by Y, Mr X, and the carer. The review noted conflict between Y and the carer on personal hygiene issues and suggested an advocate for Y would be beneficial. The referral for an advocate was made the same day.
The social worker spoke to Y in late July, when Y again detailed concerns about the placement, including a recent confrontation with the carer’s partner. Concerned about the placement breaking down, the social worker followed up on the advocacy referral.
In mid-September 2020, the carer contacted the Council reporting an incident where Y had sworn at them and was saying they wanted to leave the placement. They also expressed concerns about Y’s hygiene. A social worker spoke to Y, who said the carer locked them in the house and half-shoved them when they tried to unlock the door.
In mid-October, the carer again contacted the council, this time with concerns that Y was lying about what they had eaten. The Council held a meeting with Y and Mr X on the same day. Y again said they wanted to leave the placement as soon as possible.
Mr X complained to the Council in late October 2020 saying:
- Due to the Council not allocating a social worker until June 2020, Y did not feel they had a voice in the placement, and felt bullied and wanted to leave the placement;
- The Council delayed in arranging an advocate; and
- The Council had failed to take action to end the placement.
In early November, the Council held another meeting with Y and Mr X. Y confirmed they wanted to leave the placement. The Council allocated yet another social worker to Y to facilitate a move of placement.
From 5 November 2020 to 2 December 2020, the Government implemented a new national lockdown to control the spread of COVID-19. A condition of this lockdown was that people were required to stay at home, but that one person could visit an outdoor public place with one person from another household.
Mr X contacted the carer to arrange to meet up with Y, stating that he had spoken to the Council who agreed to this, and to Y meeting their [Y’s] partner outside as well. Mr X suggested that Y could get a bus into the local town, or that he could give them a lift.
The carer was not comfortable with Mr X’s suggestions as members of her family were particularly vulnerable to COVID-19 and she did not feel it was safe. Records show that Y’s partner’s parents were not happy with the suggestions either, only being happy for Y and their partner to have contact whilst at college.
The Council advised both Mr X and the carer about current government COVID-19 guidance and despite mediation attempts, was unable to come to a satisfactory resolution before the end of the lockdown (the law said they could meet their partner, but the carer was unhappy with this due to concerns about the covid risk), after which Y was able to meet their partner.
In late-November 2020, Y’s carer gave notice to end the placement by the end of the year and Y moved to a new placement in mid-December 2020.
The Council responded to Mr X’s stage one complaint in mid-December 2020 saying:
- It accepted there had been a delay in ‘work with [Y] progressing’;
- The delay in arranging advocacy was out of its control; and
- It was sorry for the delay in arranging Y’s move and was arranging a new placement.
Mr X was unhappy and asked for a stage two response.
In early February 2021, the Council sent its stage two complaint response saying:
- It had not dealt with the concerns raised by Y in May 2020 as a safeguarding issue as they had been asked not to share the email detailing the concerns, instead they had instigated additional monitoring and support for the carer;
- It had spoken to Y about the incident in mid-September who said they were fine and wanted to move on from it; however, it apologised for not investigating further;
- It had not properly considered the incident where Y disclosed that the carer locked them in the house as a safeguarding issue and apologised to Y for the mistake.
The Council acknowledged that Y’s social worker had placed too much emphasis on arranging an advocate which delayed action in moving Y to a new placement.
What was found
The Council’s records acknowledged that the placement was not ideal for Y but felt it was a good environment, nonetheless. Both Y and the carer raised concerns about the placement starting in May 2020 until the end of the placement in December 2020. The LGSCO found that the Council took some action to address the concerns and maintain the placement including completing reviews, speaking to Y and the carer, and making a referral for advocacy.
Y’s reports of concerns and statements that they wanted to move began in late May 2020, however, the Council failed to act upon this as it was waiting for an advocate to be assigned to Y. Whilst an advocate may have helped communication, Y had been clear in their desire to move and the delay in securing an advocate should not have delayed the Council arranging an alternative placement. This was fault.
Y’s social worker made a referral for an independent advocate in early June 2020, the same day as Y agreed they would like one. There was a significant waiting list for an advocate and the Council was not at fault for this delay as it was beyond their control.
The LGSCO found that the Council’s February 2021 stage two complaint response stating that it did not deal with Y’s concerns as a safeguarding matter because Y did not want the email shared was flawed by fault. The Council has a duty to investigate [under Section 42 of the Care Act 2012] where it suspects an adult with care and support needs is at risk of abuse or neglect and cannot protect themselves. Y’s statement that they feared repercussions should have triggered consideration whether a safeguarding response was required.
Furthermore, the Council was at fault for not properly considering the incident in mid-September where Y disclosed that the carer had locked them in the house and ‘half-shoved’ them.
The LGSCO found that the opposing views of Mr X and the carer on whether Y should be allowed to meet with their partner during the November 2020 lockdown were dealt with appropriately by the Council. They had to balance the wishes and safety of Y with those of the carer and others in her household and made attempts to resolve the conflict. This was not fault.
The Council apologised to Y for failing to consider whether the incident in mid-September warranted a safeguarding response. However the LGSCO instructed them to also apologise for the uncertainty and distress caused to Y for failure to consider the May 2020 incident under safeguarding procedures within one month.
The LGSCO recommended that the Council pay Y £300 as a symbolic gesture in recognition of the injustice caused.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
There is no clarity in this report as to whether the placement was a Shared Lives Accommodation and Services Agreement or just a services agreement, with the accommodation being dealt with through a licence or tenancy. The question is centrally relevant to whether it is correct to characterise this arrangement as a placement. An arrangement concluded between a person and a landlord is not a placement, and one is free to leave when one wants; the council is not paying for the accommodation, as such. However, Shared Lives arrangements can BE for the accommodation and the care without that counting as a care home, or even as the provision of personal care, according to CQC, as long as the Scheme is registered.
There is no exploration of Y’s mental capacity or condition necessitating care and support other than references to mental health issues.
Notwithstanding the exceptional circumstances that the COVID-19 pandemic brought about, and the allowances that have to be made for any council over that first year regarding workforce allocation and complaints – there is no excuse for the Council’s failures to meet their duty regarding the safeguarding concerns that Y raised. The Council’s February 2021 complaint response said it did not deal with the issue was a safeguarding matter because Y had asked it not to share the email. The LGSCO said “I am not persuaded by this argument. The Council has a duty to investigate where it suspects an adult with care or support needs is at risk of neglect or abuse and cannot protect themselves.”
Y was an adult with needs for care and support, who stated that they were experiencing or at risk of experiencing physical and psychological abuse, and making it fairly clear that they felt unable to protect themselves from the abuse or risk of it. That is enough to trigger the safeguarding enquiries duty.
We think it’s odd that the LGSCO investigator has not explored the issue of independent advocacy further here. No fault was found in respect of the failure to arrange an advocate on the basis that although Y had said they would like one, the waiting list was so long the placement would have ended before one had been found. The report suggests that these were circumstances beyond the Council’s control.
However, if one qualifies for Care Act independent funded Advocacy, under s67 of the Act, one’s Council must refer one to an adequate advocacy service, and an appointed contracting advocate or advocacy organisation needs to be found, regardless of scarcity. That much was made obvious by the Haringey case in 2015 – R (on the application of SG) v Haringey LBC and Secretary of State [2015] EWHC 2579 (Admin) – which was the first case decided in the Administrative Court under the Care Act about the right to Care Act advocacy: it was made clear that its arrangement is a duty regardless of the budget or the demand/supply gap – the decision making would be invalidated by the absence of one. The investigator just said this: “The advocacy delay should not have prevented the Council moving Y to a new placement in the meantime.” But in fact the commissioning of adequate advocacy is the bigger fault.
What this investigation report doesn’t address is whether Y necessarily needed additional support because they would otherwise have had substantial difficulty understanding and participating fully in the process. The fact that the social worker considered an advocate would be beneficial and made the referral the same day would suggest one may well have been needed, but may have had more to do with perceived conflict between the father and Y.
We note from the LGSCO report that the Council apologised to Y for their failings and made assurances of retraining staff, but with 35 upheld complaints between April 2021 and March 2022, we question whether lessons are actually being learnt in this council.
The full Local Government Ombudsman report on the actions of Hampshire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/other/20-011-64