Decision Date: 28 March 2023
What happened
Mr G’s daughter was detained under the Mental Health Act 1983 (MHA) and discharged to her father’s home in July 2020. Leicester City Council (the Council) received a referral from the County Council via its web portal system in September 2020 requesting a carer’s assessment for Mr G.
Mr G was contacted by the Council’s Contact and Response Team who requested more information on Mr G’s daughter’s care and support needs and medical history. Following this, an officer from the Council visited Mr G and his daughter at home to discuss an enablement care package [we presume this was for Mr G’s daughter, rather than Mr G, for whom the referral had actually been made]. A referral was made by the attending officer to the Enablement Team and to the Council’s Mental Health Team.
In November 2020, the City Council discussed Mr G’s daughter’s entitlement to section 117 aftercare, and made enquiries about her hospital admission. The following month the City Council established that it was the County Council, and not them, that was responsible for Mr G’s daughter’s section 117 aftercare. [Section 117 aftercare is the responsibility of the local authority or NHS Trust where the person was ordinarily resident immediately prior to their section and detainment, despite where they are discharged to live].
The City Council handed the case over to the County Council with a summary of its actions and involvement with Mr G and his daughter from July to December 2020. [There is nothing in the LGSCO report to indicate that the City Council communicated with Mr G at this time to explain what it was doing and why.]
Mr G complained to the City Council in December 2020 and February 2021 due to a lack of initial response. He felt that the Council must have owed a duty of some sort to his daughter and himself, as a carer.
The City Council apologised for the delay in establishing the responsible body for Mr G’s daughter’s section 117 aftercare, but said that it had arranged some support for his daughter [presumably the enablement support package] which provided him with respite from his role as a carer.
Mr G complained to the Council again in November 2021. He stated that due to the Council’s involvement [or lack thereof], he had had to provide his daughter with ‘’round the clock support’’ which caused him physical and mental stress. The Council responded that its Integrated Crisis Response Service had offered support to his daughter, and reiterated that the County Council was responsible for the section 117 aftercare. It did not comment on Mr G’s comments about his own needs as a carer.
What was found
In response to the LGSCO, the City Council accepted that it took too long to determine that it was not the responsible authority for Mr G’s daughter’s section 117 aftercare. It had already apologised to Mr G for this delay and confirmed to the LGSCO that its records were up to date on who the responsible authority was in this case. The LGSCO did not feel that anything further would be gained from additional investigation into this part of Mr G’s complaint.
The LGSCO therefore concentrated on Mr G’s complaint about his needs as a carer, and who was responsible for meeting these.
The MHA is clear about who is the responsible authority when it comes to section 117 aftercare, this was the County Council. However, the MHA makes no reference to carers needs, only the needs of the person who has been discharged from hospital and requires support services in connection with their mental health illness for which they were sectioned.
Mr G’s needs as a carer should have been considered under section 10 of the Care Act 2014.
[Section 10 states that:
“Where it appears to a local authority that a carer may have needs for support (whether currently or in the future), the authority must assess—
- whether the carer does have needs for support (or is likely to do so in the future), and
- if the carer does, what those needs are (or are likely to be in the future).”]
Once satisfied on the basis of a carer’s assessment that the carer has needs for care and support, a council must determine eligibility for services under section 13(1), and once satisfied that a carer is eligible, section 20(1) states that a council must meet those needs if they meet certain criteria including being ordinarily resident. [Section 20(1)(a) states that:
“A local authority, having made a determination under section 13(1), must meet a carer’s needs for support which meet the eligibility criteria if—
- the adult needing care is ordinarily resident in the local authority’s area or is present in its area but of no settled residence.”]
Applying this test for ordinary residence under the Care Act, the LGSCO found that Mr G’s needs as a carer were the responsibility of the City Council. It found no evidence that the Council had either assessed Mr G’s needs as a carer, or worked alongside the County Council as an integrated approach to the family’s care needs. This was fault.
Acknowledging that the Council’s failure to accept responsibility for assessing Mr G’s needs as a carer caused him frustration and avoidable distress, the LGSCO recommended that the Council:
- apologise to Mr G for the frustration and avoidable distress he experienced;
- offer Mr G a carer’s assessment. If this was accepted, to start this within four weeks;
- pay Mr G a symbolic payment of £250;
- remind its staff of the importance of completing carer’s assessments when requested and remind its staff of the ordinary residency rules.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The Care Act 2014 gave carers parity in law with the people they care for, giving councils a duty to promote the wellbeing of carers and to prevent burnout and crisis. This was seen as revolutionary when it first came in, but it was soon found to have made little difference in practice.
Research completed pre-pandemic showed that in the first five years of the Act’s implementation, the volume of carers’ assessments completed across England decreased, contrary to expectation, identifying a predisposition from councils towards focus on services for the cared-for.
The initial referral in this case was for a carer’s assessment, yet this was seemingly completely ignored, with the first contact from the Council only looking at services for Mr G’s daughter. It can’t even be argued that the Council took a ‘whole family approach’ as there was no evidence at all that Mr G’s needs were considered. We consider it reproachful that the Council’s initial complaint response to Mr G was to say that by providing services to his daughter it gave him carer’s respite. We don’t know how they came to this conclusion when they hadn’t assessed him to understand what his needs were, and what support he needed?
Section 10(5) states that the carer’s assessment must consider the sustainability of the caring role, and what support the carer might need under sections 2 and 4 to maintain their role, if this is indeed their wish to do so. But, in order to meet the duties under section 2(2)(c): the importance of identifying carers in the authority’s area with needs for support which are not being met (by the authority or otherwise), requests for carer’s assessments must be responded to!
The Guidance on responsibility for carers says this: “In the case of the carer, the person for whom they care must be ordinarily resident in the authority’s area. This is because carers’ needs are met by local authorities where the adult with the needs for care and support lives, not the authority where the carer lives. Determining ordinary residence at this stage should not lead to a delay in meeting eligible needs – more guidance on ordinary residence can be found in chapter 19”.
So whilst the County Council was responsible for the person’s s117 needs, the City Council was responsible for providing services to the carer, because the daughter had gone to live with her father. That is because normally, the council that is saving the money from the carer’s input is the one where the person is ordinarily resident. But here, s117 status had gone with the daughter to her new home, without the law transferring the responsibility, so the County Council was the money but the City Council had to pay for care! Whilst ignorance of the functions one is governed by is never good, we do understand the City Council’s surprise at the application of the law to this situation.
The full Local Government Ombudsman report on the actions of Leicester City
Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-010-191