Decision Date: 05 Aug 2024
Summary
Manchester CC wrongly insisted on clinical proof of learning disability, causing significant delays in a vulnerable man’s assessment and proper care provision.
What happened
Mr C had been diagnosed with a medical disorder and associated learning difficulties and mental health issues as a child.
He had an Education Health and Care Plan (EHCP) and statement of Special Educational Needs (SEN) throughout childhood into adulthood when he turned 18 in 2017, and also received support from the Child and Adolescent Mental Health Service.
Following involvement from children’s services, he was placed to live with his grandparents acting as foster parents. He received some support for a year after turning 18 and was aged 24 in 2023.
In May 2021, Mr C’s grandfather, by now his only surviving grandparent, had passed away, and Mr C was now living alone.
In July, Mr C was referred to the Council by his NHS occupational therapist, who said Mr C’s support needs had changed because of his grandfather’s death.
Mr C’s aunts (one of whom, Mrs B, lodged the complaint that prompted the investigation) had been providing the support that his grandfather had previously provided, but could not do so indefinitely, and the agency support Mr C received was due to end soon.
The Council was informed that Mr C could not be supported by the Community Mental Health Team. The Council then asked Mr C himself whether he required support, but he [not surprisingly] told them he did not as he still received agency support.
In response, the Council advised Mr C to contact the Community Learning Disability Team if he needed help in the future.
Mr C’s support worker at the agency then contacted the Council: Mr C had told her that he had been confused by the call, was not sure who had made the call, or what it related to, and had just said he was fine. His support worker told the Council that Mr C had actually expressed a desire for a care and support assessment, but the Council informed her to call a different number to request one, as Mr C lived in a different part of the Borough.
In November 2022, the Council contacted Mr C to inform him his educational support from the agency would be ending, but that the decision to end his support could be challenged. No challenge was received, so the Council ended his EHCP.
In January 2023, Mr C became involved with the police, who requested the Council carry out a mental capacity assessment.
By 30 January 2023, Mr C’s situation had seemingly deteriorated, such that his aunt, Mrs B, rang the Council to flag up that he was at risk of self-neglect: he had a learning disability, a mental health diagnosis, alcohol misuse issues, and was living on his own and had been served notice and was now facing homelessness.
Mrs B told the Council that Mr C needed to be assessed urgently: he was unable to live on his own, had been drinking for days, was losing weight and had been self-harming.
The Council forwarded the referral to the Council’s Community Learning Disability Team (CLDT) and the Community Mental Health Team (CMHT).
Mrs B chased the Council on 6 February 2023, 15 and 17 February, only for the Council to respond by saying that there was no evidence on the Council’s system that Mr C had a learning disability so the Council could not help him.
The Council said Mr C was still waiting for allocation by the Community Mental Health Team (CMHT) who might be able to support him. Mrs B said that Mr C had been waiting for 3 weeks and nothing had happened.
On 20 February, Mrs B complained of the delay to the Council. On 14 March, the CLDT agreed to assess Mr C, and on 16 March the Council partially upheld Mrs B’s complaint, acknowledging the unnecessary delay, the ineffective checking of Mr B’s mental health, and poor communication by Council officers.
Mr C was assessed by a Council social worker in March 2023. The social worker concluded that Mr B did not meet the Council’s threshold for specialist learning difficulty support and that his primary needs related to his alcohol and mental health issues.
Mrs B disagreed with this assessment and complained to the Council, stating that Mr B had had an EHCP or equivalent since he was a youth, and various other agencies and authority figures, including the Department for Work and Pensions and his GP had accepted that Mr C had a learning disability and was unable to work or live independently without support.
She also complained that the Council had not ever undertaken a ‘carer-blind’ assessment of Mr C’s needs and had taken into consideration the care he received from family members; that the Council mental health team had refused to offer Mr C support as he did not meet their specific criteria, and that much of the original assessment of Mr C had replicated erroneous or irrelevant information from his 2015 EHCP, particularly with regard to carers’ views.
The Council agreed to reassess Mr C.
During this time, Mrs B contacted the EHCP team to request support.
They responded, noting that Mr B’s EHCP had ceased, but that they agreed to review his needs. This occurred in July 2023 and concluded that Mr C needed 1:1 provision, with particular support around independence, route planning and decision-making as well as support into work experience. It was proposed that a new agency give that support and reopen Mr C’s EHCP plan.
The Council’s CLDT team reassessed Mr C in July 2023. While much of the assessment content replicated what had previously been included, assessors noted the following:
- Contact was made with the EHCP team and they confirmed that Mr C’s EHCP ended in 2021. There was no mention of Mr C’s IQ within the assessment and no reference to a full-scale IQ assessment taking place.
- Mr C’s lack of motivation and lifestyle choices (staying up late some nights, sleeping patterns (where he would sleep during the day), accompanied by the consumption of alcohol) were contributing factors to him not carrying out activities frequently or to the necessary standard.
Following the assessment, in August the Council wrote to Mr C to inform him that he was still not eligible for CLDT services, but may be able to explore support from a Council social work neighbourhood team.
Mrs B immediately emailed the Council to complain that:
- The social worker had promised her, before he started the assessment, that he would discuss and agree the final assessment with her before sending it out. However, there had been no such discussion;
- The assessment was, in her view, still highly inaccurate, particularly around Mr C’s learning disability and the evidential basis for that disability;
- The assessment said Mr C did not have an EHCP, whereas his EHCP was now active again and she had told the social worker this during the assessment;
- The social worker appeared to suggest that Mr C’s failure to meet his own needs was a choice partly driven by his alcohol consumption, whereas Mrs B was strongly of the view that the underlying problem was Mr C’s learning disability.
The Council responded on 25 August, stating that the social worker had finalised his assessment without Mrs B’s input because of the lack of evidence of Mr B’s learning disability and a full-scale IQ assessment. In their response the Council noted that they had referred Mr B to the adult social care neighbourhood team, but this referral was automatically rejected.
In August the CLDT also contacted the EHCP team to ask if Mr C had a learning disability and if he had an active EHCP. The team responded by telling the CLDT that although Mr C did not have an active EHCP, agency staff were due to visit him and if he engaged with some form of education, his EHCP would be reopened.
The EHCP team also noted in their response that they had medical evidence that noted Mr C’s learning difficulty.
Mrs B was not satisfied by the Council’s response to her complaint and so escalated it, but its position remained unchanged: they said there was no evidence of Mr C’s IQ, and so no evidence of a learning disability. This was despite Mrs B in October contacting the EHCP team herself to prompt them to inform the CLDT that Mr C had an active EHCP plan, and to establish whether ‘MLD’ on his EHCP meant ‘mild learning difficulties’, as the CLDT contended, or ‘moderate learning difficulty.’
In December 2023, Mr C’s situation deteriorated again: he was identified as being at risk of self-harm and harm from others and was referred to the Council by the Police. After that referral, the Council agreed to assess him once again.
The social worker assessed Mr C in February 2024 and noted that Mr C required support in the following areas:
- Maintaining nutrition. Mr C required support to prepare meals, to encourage him to eat, to shop for food, to remove out-of-date food and to clean the kitchen.
- Personal hygiene. Mr C needed daily prompts to wash himself and to brush his teeth.
- Being appropriately clothed. Mr C needed support to ensure he was appropriately dressed. He needed support with laundry and buying clothes when needed.
- Maintaining a habitable environment. Mr C was ultimately agreed to need a cleaner.
- Developing relationships. Mr C needed support to access activities in the community to enable him to form friendships, though he currently attended the new agency under his EHCP three times a week.
- Accessing work and education. Support was provided by the new agency under his EHCP three times a week.
- Making use of the community. Mr C had difficulties travelling independently.
The social worker concluded:
- Mr C had complex needs as he had an underlying diagnosis with associated learning difficulties. He had mental health issues and self-harmed historically.
- Mr C had received ‘significant support’ from his aunts to meet his needs. However, this level of support was not sustainable and therefore not a long-term solution.
As a result of this assessment, the Council put in place a care plan for Mr C which included daily support in all the areas that Mrs B had identified in her first complaint. The plan almost exactly mirrored the support that Mrs B and her sister had been providing to Mr C.
What was found
The Investigator found several positives in the Council’s response. The early re-engagement of the EHCP team was praised, as was the fact that Mr C’s eviction was halted. However, the Investigator also drew attention to where the Council departed from the statutory guidance.
The Council had a duty proactively to ensure there was internal co-operation between the different local authority departments and a duty to coordinate the involvement of different external agencies.
Mr B had complex needs and had had dealings with various internal departments and external agencies, including the police, the Council’s housing department, children’s services, the EHCP team, CAMHS, CLDT and the adults’ social care team. Due to the lack of co-ordination within the Council, Mrs B spent months approaching different departments and agencies for support, but each one said they were not responsible for Mr C. In the Care Act assessment dated July 2023 the Council made a ‘strong recommendation’ for a multi-disciplinary team approach but this never materialised, and so this was fault.
More specifically, the Investigator identified the following co-ordination and communication failures:
- CLDT refused to assess Mr C between January and March 2023 because it could not find evidence of Mr C’s learning disability.
- CLDT refused to discuss the July 2023 assessment outcome with Mrs B as Mr C did not have a learning disability. It referred Mrs B to the adult social care team.
- The adult social care team refused to assess Mr C in July 2023 so Mrs B returned to the CLDT but CLDT said its position was unchanged.
- Poor communication between the EHCP team and CLDT about the transition and the underlying learning difficulty/disability of Mr C.
With regard to Mr C’s care assessments, the Investigator identified the following specific faults:
- The failure to prioritise Mr C’s assessment in early 2023, having received concerning reports from Mrs B, as well as referrals from the Occupational Therapist and staff from Mr C’s first care agency. Instead, his referral was closed because they understood that Mr C did not have a learning disability. This delay amounted to fault.
- The failure properly to consider the support provided to Mr C by his aunts. Mr C’s first two assessments acknowledged the considerable support provided by Mr C’s aunts, but still concluded that Mr C did not have any support needs.
- The July 2023 assessment also acknowledged the ‘possible inability to independently meet needs without the support currently in place by aunties,’ even though Mrs B had clearly and repeatedly informed them that she and her sister were no longer willing or able to provide that level of support. This was not considered in the assessment, which amounted to a finding of fault.
With regard to the Council’s approach to evidence of Mr C’s learning disability, the Investigator first noted that generally speaking, assessments should focus on care need, not diagnosis, and so it could be argued that it should not have mattered what diagnosis Mr C did or did not have. However, the Council made repeated reference to the lack of evidence of Mr C’s learning disability when declining to assess or support him. The Investigator identified three specific faults:
- The Council said there was no evidence that Mr C had ever been assessed by a psychologist, but had a childhood psychological assessment of Mr C from 2009 in their records which indicated he had an IQ of 62 in the lowest 1% of people. It should not have required a subject access request and a threat to appeal to the Information Commissioner’s Office by Mrs B to obtain it.
- There was a clear misapprehension, poor communication and lack of shared definitions between the EHCP and CLDT teams about what the abbreviation ‘MLD’ meant. It should not have been left to Mrs B to identify and then resolve this inconsistent approach.
- After the Council was provided with evidence of the psychologist’s assessment and Mr C’s IQ score, the Council then said it would not accept that Mr C had a learning disability unless a fresh psychologist assessment was carried out. However, the Council did not offer to fund this assessment nor did it provide Mr C with any assistance in obtaining this assessment. This again showed the lack of a co-ordinated approach by the Council.
As part of the Investigation, the Investigator also spoke to Mrs B about the appropriateness of the care package the Council eventually agreed to provide to Mr C after his February 2024 assessment. She said that while the daily support provided to Mr C had made a big difference, it was provided by the adult social care team, not the CLDT team, and so doubted whether it was properly tailored to his needs, as the adult social care team did not have access to agencies specialised in supporting people with a learning disability and mental health issues. She also raised concerns that the three days’ support provided via Mr C’s EHCP would end soon, and that the Council had not made arrangements to replace this support. As a result the Investigator recommended the Council reassess Mr C and hold a multidisciplinary meeting.
The Council agreed to address the injustices identified in the Investigation, promising to:
- Apologise to Mr C and Mrs B in writing for the various faults.
- Pay Mr C and Mrs B £500 each as a symbolic sum for the distress caused by the fault.
- Hold a multi-disciplinary meeting regarding Mr C. If it is the Council’s position that it needs a psychologist’s assessment of Mr C to support him better, then the Council should discuss at this meeting how the assessment will be obtained.
- Offer Mr C a re-assessment of his needs and revise his care plan accordingly.
- Remind all relevant officers of the importance to organise a smooth transition from support in the EHCP to adult social care support and the role of the Council in coordinating different departments and outside agencies.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
This investigation demonstrates the importance of effective collaboration, information-sharing and shared agreed terminology between different state agencies dealing with vulnerable people.
Significantly, many of the delays to Mr C’s assessment and proper care provision stemmed from the Council’s insistence that there was no evidence of Mr C’s learning disability.
This insistence was misplaced and went against the broad, needs-based approach to care support assessments required by case law and the statutory framework. The Guidance is clear that an assessment does not depend on a diagnosis of anything and that neither does eligibility.
Mrs B told the LGSCO that she had to become an expert in adult social care law, EHCPs and the roles of the different Council departments and agencies because she felt that nobody wanted to help Mr C.
Had she ever been moved to try to find a lawyer, this would have made a good judicial review case, for all the following wrongs, in terms of public law principles:
– Error of law with regard to the duty to assess
– Error of law with regard to the failure to ignore the human informal assistance the man had been getting from his aunts and then failure to ignore their unwillingness to continue
– Error of law with regard to failing to follow the guidance about internal department and inter-agency co-operation
– Unconscionable delay with regard to assessment and following through to care planning
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s [Manchester CC 23 011 109] report.
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