Decision Date: 18 May 2023
What happened
Mr C complained that the cultural needs of his late father, Mr D, weren’t considered in his care plan for a residential placement funded by the Council.
Mr D was receiving NHS Continuing Healthcare (CHC) funding following a stroke. He was cared for at home with daily visits from nurses and support from Mr C and other family members.
In early 2018 Mr D was admitted to hospital with acute bronchitis. When he was medically fit for discharge the hospital held a meeting to decide what was in his best interests [the report does not detail whether a capacity assessment was completed prior to this]. The hospital’s records of this meeting say that Mr D said he wanted to move to a nursing home although Mr C disputed this.
A decision was made that it was in Mr D’s best interest to move to an ‘interim placement’ in a nursing home, funded by the CCG and still under the rubric of CHC status. He was discharged from hospital in April 2018.
The Nursing Home completed an internal assessment and care plan for Mr D soon after he moved there which noted, amongst other things:
- Its catering staff knew that Mr D preferred Jamaican food but that Mr D would often refuse meals, and preferred ‘finger foods’ and sandwiches to hot food;
- Mr D’s ‘first language’ was Jamaican. But he spoke and understood English well. [It was noted in Mr D’s assessment by the CCG that he had a ‘’strong Jamaican accent’’ which meant it could be ‘’particularly difficult for carers to understand [him]’’].
In August 2019 the CCG completed an assessment of Mr D’s care and nursing support [the first recorded assessment or review since his admission to the Nursing Home 16 months earlier]. In preparation for a review of eligibility, it asked the Council to complete an assessment of Mr D’s care needs in preparation for a review of his eligibility for CHC.
A Social Worker completed a Care Act assessment which noted:
- Mr D was cared for in bed and he required hoisting for transfers. It was documented that he found this distressing;
- Mr D could understand simple requests made of him, although it had been previously noted that since his stroke he had found communication difficult, and it was also noted that he had dementia which impacted on his ability to follow directions;
- Mr D required someone who could represent his views as he was unable to take an active role in the assessment process on his behalf but no detail as to who this should be was recorded. The Nursing Home’s senior carer was noted as representing his views; [there was no mention of whether Mr C was contacted, or any other family member, nor whether an advocate had been considered.]
- Mr D enjoyed eating sandwiches, cakes and biscuits. “[T]he staff also ensured that the care they provide is person centred by ensuring that he has a choice of English or Jamaican food available to him”;
The CCG also completed its assessment of Mr D. Mr C did not attend this meeting either, although he had been invited but the letter did not reach him.
The CCG’s DST review process determined that Mr D no longer had health needs that met the threshold for CHC funding.
In October 2019, the same month that the CHC funding ceased, a Social Worker from the Council informed Mr C of the CCG’s decision and informed him of his right to appeal. He felt that the Council should be appealing the decision on Mr D’s behalf.
The Council took over funding of Mr D’s placement at the Nursing Home and completed a care plan for Mr D. Mr C was not invited to be part of this. The care plan and associated documents drawn up at this time noted:
- Mr D’s fluency in English was good and he did not need an interpreter;
- Mr C was Mr D’s representative;
- Mr D could understand simple questions;
- Mr D had no spiritual or cultural needs.
The Council’s records showed that it informed Mr C of its charging policy for care in October 2019, at which point he advised that he was not completing any paperwork on his father’s behalf.
Mr D’s placement was reviewed in December 2019. A temporary placement was agreed to continue at the Nursing Home whilst the Council carried out a mental capacity assessment, and what it called a best interests decision about Mr D’s care.
In the early part of 2020, the Council continued to communicate with Mr C, despite him requesting that it appoint an advocate for his father [Mr C had his own health conditions which limited his ability to support his father]. Mr C advised the Council that due to the national lockdown, he was struggling to secure legal advice to support his application for legal authority to act on behalf of his father [we presume this to be an application to become Court Appointed Deputy].
In May 2020 Mr C emailed the Council advising that he was reluctant to enter into a financial agreement with the Council for his father’s care as the placement had been arranged by the NHS without the family’s agreement, and that he was still disputing the CHC funding decision.
The funding was still in dispute in July 2020 as Mr C was still challenging the CHC decision. The Social Worker suggested to the Council that a safeguarding concern should be raised on the basis that Mr C was refusing to complete a financial assessment form even though he asserted he had some form of authority for his father’s finances.
In August Mr C made representations to the Council that:
- the Nursing Home was not meeting Mr D’s cultural needs, including providing him with Jamaican style food;
- Mr D spoke a Jamaican dialect which meant that he struggled to communicate effectively in English; but despite this
- the NHS never should have moved him to that home, and therefore it should continue to pay his care fees and it would not be in Mr D’s best interests to move him from the Nursing Home, now.
The Council reviewed Mr D’s care plan at the home later that month which documented his first language as ‘other’ and that he had little fluency in English. It also noted that the Nursing Home’s manager should contact Mr C to discuss meeting Mr D’s cultural needs. The Social Worker made enquiries about whether Mr D’s cultural needs were being met and was informed by the Nursing Home that it had offered Mr D Jamaican food but that he did not eat it, and that it had suggested to the family that they could send in home cooked food for Mr D which they would provide to him.
The Nursing Home made a DoLS application to the Council in April 2019. The assessment for this was completed in October 2020 which noted that it was likely he lacked capacity to consent to the placement. [The report does not state whether the DoLS was authorised or not.]
Mr C complained to the Council in December 2020 that its recent assessments of his father had focused on the outstanding debt and charging, and not his care needs. The Council recognised this, despite having agreed to stop chasing the debt two months earlier whilst the dispute was ongoing, and agreed it would complete a new assessment for Mr D.
Sadly, Mr D died in January 2021. Mr C’s complaint was ‘put on hold’ and the Council provided its first response to Mr C in August 2021, after he chased a response in March. The Council acknowledged that if Mr C had been involved in Mr D’s assessments this may have encouraged him to take part in the process, that it should have instructed an advocate for Mr D, and that some of its support for Mr D had ‘fallen short’. The Council further acknowledged Mr C’s concerns that highlighted racism in its system and agreed to conduct an internal review.
Mr C requested an escalation of his complaint. The Council responded to this saying its Social Worker could have done more to understand Mr D’s cultural needs, and reiterated that it agreed it should have appointed an advocate for Mr D.
Mr C also complained to the care provider who said it could not locate any records of it having considered Mr D’s cultural needs, but that it had spoken with the family about Mr D’s diet.
Mr C remained unhappy with the responses and escalated his complaint to the Ombudsman.
What was found
The LGSCO found fault in the Council’s delay in seeking to involve Mr C in its assessment of Mr D, finding that whilst it was right to include the paid carers at the Nursing Home during its assessments and reviews, as an involved and interested family member, Mr C should have been approached from the start of the Council’s involvement with Mr D. The Ombudsman could not comment on whether this would have elicited different outcomes for Mr D, but the failure to do so caused uncertainty for Mr C about whether Mr D’s needs could be met in alternative ways. This was fault.
There had been multiple references in Mr D’s assessments and care plans that communicating with him could be difficult due to his accent and dialect and the LGSCO found fault in the Council’s omission to consider a need for an interpreter. [Jamaican English, Jamaican Patois, and Patwa are widely spoken in Jamaica, and whilst recognised to be a linguistic variant of English, can be difficult to understand, and for speakers of these languages, to understand others].
The LGSCO could not find evidence to come to any conclusions on Mr C’s complaint about culturally appropriate food being provided during Mr D’s time at the Nursing Home but upheld the complaint about a wider lack of cultural awareness. The Council produced a report following Mr C’s complaint and made several recommendations for better embedding of race awareness in its adult social care team.
In response to the Ombudsman’s enquiries, the Council advised that it:
- was taking forward learning from his complaint to ensure its workers fully understood the need to identify cultural needs and to respond appropriately;
- recognised Mr C was put to unnecessary time and trouble in having to make a complaint. It offered him £300 in recognition of this;
- accepted, after the outcome of its August 2020 mental capacity assessment, it should have written to Mr C inviting him to apply to become Mr D’s deputy. Instead its social worker raised the issue as a safeguarding matter, which was the wrong action.
The Council further advised that it was implementing the recommendations which came from its learning report following Mr C’s complaints as follows:
- “Staff across Adult Social Care to be encouraged to complete the available learning opportunities to raise their awareness as they support the diverse population.
- Adult Social Care managers to attend learning opportunities to build on staff management skills as they have culturally diverse staff that serve a diverse population.
- Review of the ASC Practice Hub to ensure the resource has policies and procedures that adequately support staff to serve the culturally diverse population.
- Adult Social Care to work with providers to deliver services that support diverse cultures.”
The LGSCO was unable to seek a remedy for Mr D, as he had died. It did, however, identify that the faults it identified likely led to avoidable distress for Mr C, as well as uncertainty about whether things might have been different for his father, but for the fault. It therefore recommended that the Council:
- apologise to Mr C for the faults identified, setting out the lessons the Council has learnt, and changes made to its service(s) as a result; and
- make a symbolic payment to Mr C of £500 in recognition of the distress the faults will have caused him (in addition to the £300 it had already offered him for time and trouble).
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
In failing to provide culturally competent care the Nursing Home was independently in breach of regulations 9, 10 and 11 of the The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. These require a provider to be alert and responsive to belief or conventions that might be determined by cultural heritage.
When a council commissions a provider to deliver services on its behalf, it remains responsible for the services and the actions of the organisation providing them, with a responsibility to oversee and support the quality, performance and compliance of service providers. It has a general duty in Section 1 of the Care Act 2014, to promote that individual’s well-being and the Council must discharge its duty set out in Section 6(6), when commissioning, to have regard to the need to improve the quality of the care and support for adults and support for carers in the authority’s area.
We would have liked to see the Ombudsman refer to the above legislation and guidance in its identification of fault, along with potential failings in meeting the Equality Act 2010 duties.
We note that the Council made some enquiries in relation to Mr C’s complaints about culturally appropriate care for Mr D, but seemingly failed to follow up on this or review whether any changes had been made. There also appears to be a complete lack of personalisation in the Council’s assessment and reviews of Mr D, either in its direct communication with him e.g., not instructing an interpreter or involving his son, or in properly applying the relevant legislation i.e., the Mental Capacity Act 2005, when making decisions about his care and support. Again, we’d have expected to see more made of this by the Ombudsman in its findings, as this appears to us to be a potentially dangerous return to paternalistic social care.
We find it incredible that a DoLS application took 1.5 years to bring to a conclusion, and that nobody did any MCA assessment about consent to the regime, or to the issue of disclosing assets for a financial assessment, before this point.
We also find it odd that the ambiguity about whether Mr C had any financial form of authority regarding his father’s finances was not resolved in the report. The council was financing his father throughout, so his placement was not in jeopardy; he was owed a duty regardless of whether the charges levied by the council were paid or not. It is quite clear in the Charging regulations that a person cannot be treated as not co-operating with a financial assessment if they lack capacity to understand what this means, and nor can a family member be made to be a deputy or take a power of attorney if it is already too late – so the ambiguity as to whether Mr C had some authority was important. In the situation where there is nobody authorised the council is ultimately responsible for taking deputyship if it does not care to wait until it can prove in a person’s estate as a creditor.
It is important to note that the Parliamentary and Health Service Ombudsman had made a decision on Mr C’s complaint about CHC funding, so the LGSCO did not touch on that issue or investigate any of the assessments or planning before August 2019, as these were not carried out by the Council, including the original placement of Mr D in the Nursing Home.
The law is that the NHS can withdraw from funding if the local authority is liable and that the council does not HAVE to make an inter-agency dispute of the eligibility question; the family is entitled to use the independent review panel route but in fact the charges that a council levies on a person who has not gone through a financial assessment despite being able to, are validly levied, in the meantime, if they have been lawfully assessed.
The full Local Government Ombudsman report on the actions of Essex County Council can be found here: 22 002 320 – Local Government and Social Care Ombudsman