Portsmouth City Council at fault for failing to address potential wishes o needs for family involvement in processes 

Decision Date: 15th March 2023

What happened

Mrs X complained that the Council failed to deal with the needs assessments of her sister, Mrs Y, by denying Mrs X the support she needed to fully participate in them. 

Mrs Y cannot walk or write and has limited verbal communication as a result of a stroke. She moved into extra care housing in April 2021 after spending time in hospital and respite care. Her package of care comprised four calls a day, two floating daytime visits and one night-time visit to reposition her and provide continence care. She had a speech and language therapist (SLT). Mrs Y lived around 80 miles away from her sister, Mrs X. 

On 1 June, Mrs Y’s social worker and the SLT postponed their review of Mrs Y’s care needs and completion of a checklist for NHS Continuing Health Care (CHC) due to her discomfort. The Council arranged for her to receive a night-time care call with two care workers which, according to Mrs X, was done at the request of the care provider and without discussion with Mrs Y. 

In a phone call with Mrs X, the social worker was asked about progress with the CHC checklist and said they would follow up on this the following week. Mrs X said the social worker did not mention the plan to review Mrs Y’s needs. During a visit to Mrs Y on 11  June, neither the social worker nor Mrs X knew the other would be there. The social worker said she was there to update Mrs Y’s social care needs assessment and complete an NHS CHC checklist, but did neither, instead agreeing to have a meeting around Mrs X’s holiday dates. The social worker later postponed doing the checklist pending further information about Mrs Y’s swallowing difficulties. 

The checklist was completed on 23 July without Mrs X’s involvement, triggering the need for a full NHS assessment. The Council responded to Mrs X’s complaint about not representing Mrs Y during her full NHS assessment by accepting that it should have offered Mrs X the possibility of acting as a representative for her, as Mrs Y previously gave consent for this. 

On 28 July, Mrs X told the social worker that the checklist did not fully reflect her sister’s circumstances, referring to communication difficulties when distressed or in pain, and a bad reaction to a change in her epilepsy medication which resulted in a traumatic hospitalisation. The social worker said that the checklist was not intended to be a full assessment but to identify if someone needed a full assessment for NHS CHC.

On 6 August, the social worker told Mrs X that it was not possible for an SLT to be involved at every stage of the social care assessment for NHS CHC but she would send the SLT team an assessment to complete. On 13 September, the social worker decided not to visit Mrs Y given that Mrs X was visiting and she felt it would be too much for her to visit as well. Mrs X says the Council has not reviewed Mrs Y’s needs since 2021. 

What was found

The LGSCO found that the Council should have checked with Mrs Y if she wanted support with her assessments, care and support planning and reviews of her needs, and if so from whom. This would have been consistent with section 9(5) of the Care Act 2014, which obliges a council to involve any person an adult asks it to involve in the assessment. The opportunity for Mrs Y to have Mrs X involved as Mrs Y asked was taken away from her. Given that Mrs X had a power of attorney for Mrs Y’s finances and had her consent to speak up for her over the checklist screening process of NHS CHC, it should have been clear to the Council that she was likely to want her support with its assessments relating to NHS CHC. This lost opportunity left Mrs Y feeling disempowered and avoidably distressed. The LGSCO could not make a conclusion about whether Mrs Y’s needs would have been met in different ways had she received Mrs X’s support, but concluded that the Council’s apology was appropriate. 

The LGSCO found fault in light of evidence supporting the claim that the Council made arrangements with third parties (such as the care provider and SLT) before visiting Mrs Y but did not check with her before visiting, demonstrating the Council’s lack of a person-centred approach. 

The LGSCO found no fault in the Council’s explanation of its inability to involve the SLT in every stage of the social care assessment for NHS CHC. However, the Council was at fault for the lack of a person-centred approach when assessing Mrs Y’s needs and the failure to ensure she received support from her sister when she wanted it.

The LGSCO noted that the Council, under the Care and Support Statutory Guidance, had to review Mrs Y’s care and support plan without further delay if this was not done since 2021, and to ensure that Mrs Y has whatever support she wants with this review.  

The LGSCO found no fault in the Council making changes to Mrs Y’s care and support on 1 June at the request of the care provider but without discussing the change with Mrs Y. This was given that Mrs Y was unwell that day and the social worker had to curtail her visit. 

The LGSCO recommended that the Council does the following: 

  • Within four weeks, write to Mrs Y and Mrs X to apologise for the distress caused by the failure to address Mrs Y’s need for support with assessments, care and support planning and reviews 
  • Within six weeks, review Mrs Y’s needs and involve Mrs X if Mrs Y wishes 
  • Within eight weeks, take action to ensure that officers uphold their duty to ensure people’s choices for involvement of others with assessments, care and support planning and reviews of their needs are facilitated.

Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public

The report includes some useful information about the LGSCO’s investigative powers. It will not investigate a council when it has been acting on behalf of the NHS, instead referring any concerns to the Parliamentary and Health Service Ombudsman (PHSO). Given that the NHS is accountable for decisions on NHS Continuing Healthcare, a council’s actions as part of a multidisciplinary team that assessed the needs for NHS CHC will not be investigated by the LGSCO. According to the report, those decisions fall within the remit of the PHSO.

This makes sense because the delegation to the council of an NHS function does not absolve the NHS, but pre CHC decision-making process, ie checklisting, is not ONLY an NHS function, so we are not sure we think that this approach is apt in the circumstances of this matter – it’s also a direct duty on the part of a council under the Assessment Regulations (regulation 7).  

Section 9(5) of the Care Act is clear:

“(5) A local authority, in carrying out a needs assessment, must involve

(a) the adult,

(b) any carer that the adult has, and

(c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.”

Or to put it another way, it must take a person-centred approach. This includes checking with the person if they wanted support (the involvement of a family member) with their assessments, care and support planning, and reviews of their needs, and if so from whom. The report highlights the importance of every effort being taken to ensure that an individual can participate as fully as possible and receives whatever support they need. 

A council should take notice of any pre-existing powers of attorney for finances and capacitated consents for an individual to be the person’s voice for processes like NHS CHC checklists. Failing to do so deprives the individual of the opportunity to take part as fully as possible in assessments, care and support planning and reviews of their needs, and can leave them feeling disempowered by a council which is making decisions about them, rather than with them. An apology in such circumstances is appropriate according to the LGSCO, although this may be insufficient to remedy the avoidable distress caused. 

Another area where a council may fail to follow a person-centred approach is regarding arrangements with third parties. Where a council makes such arrangements, such as with a care provider of SLT, without checking with the person being cared for, the LGSCO is prepared to find fault. A council does not have to involve an SLT in every stage of an assessment, as long as it does the following: 

  • Provide guidance to the relevant care provider on communication with the person being cared for 
  • Checks with the care provider that someone would be available to assist with communication

Para 13.32 regarding timing of reviews says “It is the expectation that authorities should conduct a review of the plan no later than every 12 months.”

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report on the actions of Portsmouth City Council

can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-007-125

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