Decision Date: 24 May 23
What happened
Ms X complained on behalf of her mother, Mrs Y.
Ms X claimed that the Council failed to take account of relevant information when undertaking a Care Act assessment, and made assumptions based on Mrs Y’s race, arguing that this resulted in negative treatment.
Ms X further claimed that Mrs Y was not receiving sufficient support to meet her needs.
Ms Y had previously been found eligible across domains of maintaining nutrition, personal hygiene, being appropriately clothed and maintaining a habitable home. She had some informal support from family, and had a care plan which was to be reviewed in due course.
Also contained within the plan was a provision stating that Mrs Y would benefit from three hours of weekly community access which had previously been suspended due to COVID-19.
According to complaint correspondence, this plan also entitled Mrs Y to two 1.5 hour domestic support, personal care, and escort services per week.
Mrs Y asked the Council to review this care package, as her family were no longer able to provide support and her needs had increased, in 2022. She also requested increased community hours to allow for her to go out and receive personal care more regularly.
Although she sought a telephone assessment, citing her ongoing vulnerability to COVID, this was refused by the Council.
A social worker visited Mrs Y to reassess her in September 2022. It was found that she still required assistance in all of the original areas, and she confirmed that family support would be reduced.
The Council revised the care plan that same month. Despite Mrs Y’s request for more support and community hours, the plan ultimately withdrew her two weekly cleaning hours on the grounds that Mrs Y lived with family members. It further stated that these resident family members could assist with things such as putting shopping away and escorting her into the community.
A further revision to the plan dated 24 October 2022 saw no greater provision of support to Mrs Y, with her personal care hours and community access hours each remaining the same.
On 6 November, Mrs Y complained to the Council on the following grounds:
- It refused her request for a telephone assessment;
- Whilst she stated that her needs had increased and that her family support was being reduced, the Council disregarded this;
- She had been subjected to assumptions based on her race and disability discrimination;
- Her package of care had been reduced without notice;
- She had requested increased hours to assist with her aforementioned needs, but her existing hours were ultimately reduced.
Mrs Y further complained of the Council’s delay in responding.
The Council responded on 23 December, stating that:
- A home visit was seen as important as an in person assessment had not occurred since 2020, COVID restrictions were no longer in place and the social worker was not displaying any symptoms;
- The social worker had taken note of the fact that Mrs Y would be receiving less support;
- The social worker offered carer assessments for family members but these were refused. It was therefore considered reasonable that the resident family members were capable of maintaining the home and cleaning communal areas;
- Owing to carer records stating that time for Mrs Y’s community hours were spent preparing her to leave the house, it was determined that the hours should be maintained as they were, and that Mrs Y should ensure that she was ready to leave when the carers arrived;
- The social worker had denied making any racial or discriminatory comments;
- The failure of the social worker to send Mrs Y the amended plan was a genuine oversight for which the Council apologised;
- A new care assessment was offered for Mrs Y, as well as carer assessments for her family members;
Ms X and Mrs Y took their complaint to the LGSCO following this.
What was found
The LGSCO found no fault in the decision of the Council to refuse Mrs Y’s request for a telephone assessment, accepting that how assessments are performed is at the discretion of the Council.
Although the LGSCO could not find any record in the assessment or care plans to confirm that the Council was aware of reductions in family support, the Council stated that this had been recorded by the social worker and as such, the LGSCO accepted that the Council were aware of this and it should have been taken into account.
On this point, fault was found in the Council’s decision that Mrs Y’s family could offer her the same standard of care as they had been previously doing. The LGSCO found that the Council’s records did not indicate this, and also noted that they had received information to the contrary.
Further fault was found in the Council’s decision that Mrs Y was provided with sufficient community hours assuming that she was ready to leave her house when carers arrived. The LGSCO found that this failed to take into account that Mrs Y cannot complete any task herself, including dressing, which she must do before she can leave. The Council’s continued failure to consider the reduction in family support was also noted.
Documentation seen by the LGSCO suggested that Mrs Y’s community hours were decided by the Council based on a blanket policy of allowing 3 hours per week. The LGSCO found that, in doing this, the Council was fettering its discretion, and this was fault. However, the Council disputed the existence of such a policy, which the LGSCO accepted as meaning this was likely a one-off that did not therefore need to be addressed by any service improvement recommendations.
The Council’s decision to remove Mrs Y’s domestic hours on the grounds that other adults in the property could maintain the home was also found to be fault. The LGSCO once again followed the established law that the Council cannot assume that others will meet eligible needs.
It could not be verified whether the social worker made discriminatory comments in the presence of Ms X and other family members due to conflicting accounts. As such, the LGSCO could not find fault.
The Council’s failure to send Mrs Y an updated care plan was found to be fault, although it was noted that the Council recognised this as an oversight and had apologised.
The LGSCO concluded that the above faults led to Mrs Y receiving a shortfall in care and experiencing uncertainty as to whether she should have received greater levels of care. This was injustice, and it caused Mrs Y distress.
The Council accepted the LGSCO’s recommendations that it should:
- Provide Mrs Y with a written apology for their failure to follow the law when deciding on her care and support;
- Pay Mrs Y £750 for the distress and uncertainty caused;
- Reinstate the package of care which Mrs Y was receiving in July 2021 pending a reassessment in line with the Care Act 2014;
- Offer to reassess the care needed by Mrs Y again, whilst taking into account her wish for a telephone assessment, and ensuring that she is informed of the decision and reasoning behind said assessment;
- Provide guidance to staff working in Adult Social Care within three months to ensure their understanding of the Council’s duty to meet eligible care needs when there is not a carer willing and able to do so.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The law (s18(7) of the Care Act) is that councils don’t have to meet needs that are eligible if they have an evidence basis for believing that they will be met by informal arrangements (friends and relatives). That only makes any sense if one factors in that the person needs this care to be willingly and ably provided for the foreseeable future, at least until the next planned review, or else there will inevitably be a gap.
That means that during the conversation with the client and carer, the council needs to explore this issue, whether or not the carer wants a carer’s assessment. That is because the council is not and cannot be the decision-maker as to anyone’s willingness to continue.
The case law from 2022 onwards says that a care plan must record what has been offered by informal carers, so that they are not manoeuvred into a position of being obliged to step up when the budget is patently inadequate.
It is therefore important that such changes in circumstances are formally noted by councils when they occur to ensure that they are not overlooked when decisions are made regarding the provision of care.
Councils must carefully consider all the evidence that they are aware of when making needs assessments – it is the essence of applying public law principles that this is done.
Councils have a legal duty to ensure that people are receiving adequate levels of care – they must be prepared to increase their own provision when other sources of care, such as that provided by family members, are withdrawn or reduced.
As per section 149 of the Equality Act, public authorities must have due regard in the need to both eliminate discrimination, as well as the need to foster positive relations between those who have a protected characteristic and those who do not. Councils must therefore ensure that public sector employees and agents within their jurisdiction are aware that discrimination is unlawful and unacceptable, whilst ensuring that all relevant complaints on these issues are treated seriously.
The failure of the Council to provide Mrs Y with a copy of her amended care plan, regardless of whether it was a genuine mistake, was unlawful under section 25(9) of the Care Act 2014. This says that councils must give a copy of a care and support plan to (a)the adult for whom it has been prepared, and (b)any carer that the adult has, if the adult asks the authority to do so.
The issue of fettering discretion with a 3 hour policy was also raised by the LGSCO, although it was accepted that the Council had not actually been practising that way. Nonetheless, councils should keep in mind that to apply blanket policies without adequate consideration of individual cases and the possibility for exceptions can constitute fettering discretion, which is unlawful. Councils must consider the facts and merits of the individual case before them in all of their decisions to avoid this, even if they start out with what their target standard offer would be.
It was noted that, whilst Mrs Y apparently had a recording of what was said during the assessment, which would presumably contain any remarks made by the social worker, Ms X was unwilling to give a copy when asked by the LGSCO. This made it impossible to determine whether the social worker had made any discriminatory comments, and resulted in the issue not being resolved. It is therefore important for those using the LGSCO to seek remedy for injustice to grasp that they will need to co-operate with requests made for evidence, as if it is not provided then no corrective recommendations will be able to be issued, and the problem could reoccur.
The LGSCO’s failure to follow up the Council on the issue of the community hours blanket policy, electing not to question why the existence of such a policy was implied in official documentation, if it was not actually used, is disappointing. There must have been reasoning behind both the documentation’s existence and the decision only to provide Mrs Y with 3 community hours, and it would be useful to know conclusively if these were connected or merely coincidental. In any case, it should serve to remind councils of the importance of clear, accurate documentation, both so that procedures can be properly applied and to ensure that any flaws with these can be more easily identified and rectified.
The full Local Government Ombudsman report on the actions of London Borough of Tower Hamlets Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-013-602