Decision date: 14 April 2024
Summary: The LGSCO did not investigate this complaint concerning inadequate care assessments for four of Mrs B’s clients. The LGSCO considered Mrs B to be an unsuitable representative and the personal injustice claimed did not stem from the issues raised and was capable of being pursued through other channels.
Mrs B was employed by a Council commissioned care provider and complained that care assessments for four of the council’s clients were not carried out in compliance with the Care Act 2014 resulting in reductions to the number of eligible support hours and anxiety and stress for those concerned.
As a corollary, Mrs B claimed this had impacted financially on the care provider for whom she worked as it continued to provide original levels of support, presumably because they felt that they were under a duty of care. Therefore, Mrs B hoped for reviews for each of the affected clients and a reimbursement for the care provider.
The LGSCO noted Mrs B had not obtained consent to make this complaint on behalf of her clients and that as an employee of the care provider there was “a clear conflict of interest” but that “if Mrs B’s clients or their families wish to complain they may do so.”
Regarding Mrs B’s complaint of a personal injustice and the financial impact on the care provider, the LGSCO noted that “any injustice caused to Mrs B flows from the arrangement between the care provider and the Council or its agent.” Therefore, Mrs B was at liberty to complain to the Council’s commissioners and if the provider thought there had been a breach of contract, it could “reasonably pursue this in Court.”
Therefore, as Mrs B was not considered to be a suitable representative for the affected service users and because a remedy to her linked personal claim could be pursued via other channels, the LGSCO declined to investigate this complaint.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public:
The LGSCO has power to investigate complaints made on behalf of someone else if they have given their consent. Alternatively, where an individual lacks the mental capacity to give their consent, the LGSCO is able to consider whether the person making the complaint on their behalf is a “suitable representative”.
In this case the lack of consent from the four affected residents in combination with what the LGSCO interpreted as a conflict of interest on the part of the complainant, was regarded as sufficient to decide the issue was not appropriate for investigation.
The ombudsman’s guidance on jurisdiction says this:
“In some cases a person affected may have given us consent for the Representative to act, but other factors in the case may lead us to decide the representative is not acceptable. This may be due to doubts regarding a conflict of interest, the possibility of coercion, or the validity of the signatures. In this case we should close using our general discretion under Section 24A (6): ‘Other reason not to investigate’. We should issue a Decision Statement.”
It is not possible for us to know if and to what extent any conflict was actually in operation but clearly as an employee, or possibly as an owner of the care home holding a commissioning contract with Plymouth, there certainly was at least the appearance of a conflict. However, it is important to remember that any person is entitled to ask for a care plan review with a view to revision as a separate and distinct consideration from any contractual parameters or obligations.
The LGSCO also points the complainant in the direction of the court if it was felt there had been a breach of contract. But it is very unlikely that there was any arguable breach, as such, of the contract, here.
We think that this report illustrates a typical problem besetting providers, due to lack of awareness of the distinction between the public and private law frameworks in play here.
If providers are willing, (despite being obliged by law to do no more than is set out in the contract, which is in turn there in order to ensure that the needs in the council’s care plan and nothing more than that) to provide more care than is set out in the current Council care plan, then that is regarded as the provider’s choice.
The provider might choose to do that where a top up is available – although the amount of the top up would have to be included in the council’s contractual fee, as it happens, even for something agreed to be a ‘want’, because of the explicit rules that apply.
A provider might choose to do so because it is a charity and dedicated to making the lives of those it exists for, better than the Care Act requires the council to ensure via care plans. Or for fear of damaging its reputation, or a misguided view about a duty of care extending BEYOND a contract being still current, if it has given notice but the person has not been removed.
Or a provider might choose to act thus from a fear of competition, and being undercut by some less scrupulous provider.
That is, unfortunately, the premise on which public sector commissioning from the private sector is built, in England, however.
All those choices should be made on a proper understanding of the council’s duty to each and every person it has found eligible and presenting with unmet eligible need.
If providers understood that the duty is owed, regardless of whether or not any provider is daft enough to go as low as the council would like, then of course they would not enter into the race to the bottom.
If they have ethics and integrity and are acting as professionals, and they know how much it costs to meet a person’s needs, they must be prepared to have it out with commissioners and care planners and then make a decision based on negotiation from an informed position.
The client has the right to challenge the adequacy of the Council’s care plan, but not the provider’s care plan. The latter’s adequacy is a matter for the council commissioner and CQC.
The care plan from the council is challengeable via the complaint system or judicial review.
The provider has its own choices under the contract: termination of the whole contract or the contract for the individual. It is that simple.
But the provider would not be likely to be able to challenge the care plan revision in judicial review; the court would be likely to say that the provider had no standing, because the provider could simply terminate the contract.
The person affected needs capacity, or an advocate, to raise the issue before sign-off, or to complain afterwards, or a relative to be their litigation friend if proceedings are thought to be a better remedy, in which case the person needs to qualify on means for legal aid to make a serious challenge to the cut in the care plan, but the grounds are clear and not difficult to assert to the Monitoring Officer in charge of governance in every council.
The fee is the person’s budget; the budget IS the fee – and so if the budget is cut, and the contract is not terminated by the provider, that provider MUST be prepared to say what the WERE providing, which they are no longer willing to provide, and get that signed off, because the council (or the ICB) is the statutory care planner, and the body that is ultimately accountable for defending through competent professional articulation and addressing of the evidence, the sufficiency of the budget and the care plan in light of the assessed eligible unmet needs, in public law terms.
Simply carrying on the services means that the provider will ultimately be subsidising that person’s care plan with the ever increasing fees charged to new clients. This is wrong in principle, even if it’s the reason driving the setting of a current core fee for admission of new clients to the care home.
In this case, it is WHOLLY improbable that the contract allowed for any remedy for the provider, once the plan and the budget was cut, other than termination. So this supposed remedy was a weak justification for not investigating the issues.
Contractual matters ARE within jurisdiction, in principle. But the Local Government Act 1974 s24A provides a basis for how the LGSCO can use their discretion.
…S24(6): In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the provisions of this section and sections 26 to 26D, act in accordance with his own discretion.
In the case law under the Mental Capacity Act, the Courts have held that a provider is not prevented merely by dint of the profit being made from the transaction, from being a person (a legal person) interested in the welfare of the client, and thus entitled, if not otherwise inappropriate or impractical, to be involved in best interests consultation prior to decision-making.
It also says in the Review section of the statutory Guidance that people without capacity (we do not know whether these 4 clients lacked capacity to self-protect) should have a review process triggered by a duty being placed within the commissioner’s own contract. See paragraph 13.18 of the Guidance:
“It may be beneficial to put a ‘duty to request a review’ into commissioned services so that employees are required to inform the local authority if they think that there is a need for a review.”
It is true however that if Mrs B or the provider had tried to act as the litigation friend of the clients on an application for judicial review, she/it would have likely been prevented by the conflict in her/the provider’s own stance.
Notice was not given, despite the cut. Thus inconsistent positions that the needs could not be met for less, whilst they were in fact being met for the reduced fee, even if the provider was taking the hit, were being presented.
If you are affected by the issues in this report, please consider asking us a free One-off Question, at a level of principle, here.
The full Local Government Ombudsman report on the actions of Plymouth City Council can be found here: Plymouth City Council (23 018 952)