Decision Date: 13 October 2024
Summary
Ms X, on behalf of her mother Mrs Z, complained that the Council failed to meet Mrs Z’s care needs by not assessing night-time needs nor providing night-time care. The Council also gave conflicting information about additional direct payment hours, causing both Mrs Z and Ms X distress.
What happened
Mrs Z, who had significant health conditions, including a need for regular out-patient dialysis, and coping with restricted mobility and inflammatory bowel disease, was discharged from hospital in September 2022.
There was medical evidence which indicated Mrs Z could need up to 10 bowel movements per day. In hospital, the position was that Mrs Z was managing with incontinence pads [but in hospital she would have been able to summon help to transfer to a toilet or a commode].
A care package was arranged, providing four daily visits from carers to assist with her basic needs. However, the Council did not provide any night-time care, despite acknowledging that Mrs Z’s bowel movements were unpredictable and that she required two carers for safe transfers to a commode that she had in her bedroom.
The Council concluded that her night-time needs could be met appropriately using incontinence pads, based on motion-sensor monitoring, conducted after her discharge from hospital.
The November 2022 assessment detailed her use of the commode at night and noted the challenges posed by her condition. However, it failed to explain how Mrs Z could safely transfer to the commode or address the suitability of relying on incontinence pads, given her bowel disease.
Additionally, the Council’s motion-sensor data was not clearly analysed or used to justify its decision that night-time care was unnecessary.
In November 2022, the Council contradicted earlier statements by acknowledging some night-time care needs did exist. It said that Mrs Z was using incontinence pads in case of accidental incontinence and needed help to transfer to the commode. The social worker did not seek information from specialist inflammatory bowel disease nurses about four months after Mrs Z’s discharge from hospital.
It later asserted that it had approved five hours a week of additional direct payments for flexible care from January, without specifying whether it was for night-time support.
However, it looked to the ombudsman that that additional support was for shopping which no consideration had been given to, and THAT payment was delayed until January 2023 when direct payments began, whatever it was supposed to be for.
What was found
Birmingham City Council was found at fault for failing properly to assess Mrs Z’s night-time care needs and providing contradictory information about additional care hours about the purpose for which it had agreed to fund them. This caused distress to Mrs Z and uncertainty about her care needs, impacting on her and Ms X’s wellbeing.
To remedy this, the Council was advised to pay £150 to acknowledge the distress caused by the lack of five hours of flexible care (whatever the intended use) and an additional £250 to recognise the uncertainty caused regarding night-time care needs.
It was to conduct a new assessment of Mrs Z’s night-time care needs and provide clear reasons for its decision, whatever that might be.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Eventually, we are told, the Council increased the length of the calls for Mrs Z meaning she received a direct payment for 50.5 hours per week.
We calculate that that was nearly 20 hours more per week than the initial package, which was a double handling set of visits amounting to 2.25 hours, x 2 = 31.5 hours a week.
So that extra time would have equated to an extra 1 hr a day x 2 staff, even after allowing for the 5 hours of flexible care. We do not understand why the investigator doesn’t detail the purpose of that extra hour in the context of this report, we have to say.
In terms of the law, sections 9 and 10 of the Care Act 2014 mandate that councils conduct thorough needs assessments and carer assessments and public law says that all relevant considerations must be factored in. Not hiding from and not failing to address obvious points is part of that required approach. In this case, the Council’s failure to properly assess Mrs Z’s night-time needs breached this duty, particularly as her health conditions required specific consideration for safe toileting and transfers.
Councils must ensure clarity in allocating and implementing direct payments. The delay in providing five additional flexible hours reflects service failure to meet statutory obligations promptly.
The law permits the use of incontinence pads to meet toileting needs if it is reasonable and proportionate in the context of an individual’s needs and rights. That does not necessarily turn on whether or not one is incontinent. The key test is whether this approach aligns with the principles of human dignity, autonomy, and the individual’s rights under Article 8 of the European Convention on Human Rights (ECHR) (right to respect for private and family life).
In McDonald v The United Kingdom (2014), the European Court of Human Rights addressed whether it was lawful for a council to propose incontinence pads instead of night-time toileting care for a woman who was not incontinent but required assistance due to mobility issues. The court held that, while it might well engage her Article 8 rights, the interference was justified and proportionate in light of the local authority’s resource constraints.
It is important to distinguish that while McDonald focused on urine, this LGSCO report involves bowel movements, on the part of someone with capacity to know that they are needed, which might be perceived as far more significant for dignity and hygiene (and Lady Hale in the Supreme Court in McDonald, certainly thought that there should be a distinction and that the majority view on the part of the other 4 judges at Supreme Court level would entitle the local authority to withdraw help at night even if it were faeces). The Council’s reliance on the NHS’s provision of incontinence pads here raised questions in law and in the investigator’s mind about whether the individual’s dignity was had regard to, and whether alternative care arrangements (eg., night-time assistance) were actually considered.
Lady Hale said this, which is relevant for this Birmingham report, had it gone to Court, and which the investigator likely had in mind:
“As Lord Lloyd put it in Barry ‘in every case, simple or complex, the need of the individual will be assessed against the standards of civilised society as we know them in the United Kingdom’. In the United Kingdom we do not oblige people who can control their bodily functions to behave as if they cannot do so, unless they themselves find this more convenient. We are, I still believe, a civilised society.”
Lord Walker said this, in response:
“I totally disagree with, and I deplore, Lady Hale’s suggestion that the decision of the majority would logically entitle a local authority to withdraw help from a client so that she might be left lying in her faeces day and night, relieved only by periodic changes of absorbent pads or sheets.”
And Lord Brown said this:
“It seems to me, with great respect to Lady Hale’s acknowledged expertise in social care law, particularly surprising to find her saying (in para 77) that logically, on the majority’s view, the local authority could properly withdraw care “even though the client needed to defecate during the night and thus might be left lying in her faeces until the carers came in the morning” or, indeed, “withdraw this help during the day.” One might just as well say that logically, on Lady Hale’s approach, it would be irrational not to supply a night carer to take the client to the commode, irrespective of cost, if there is any likelihood of the client having to urinate even once during the night. The true position is that the decision is one for the local authority on the particular facts of the case and, on the particular (and undisputed) facts here, it is nothing short of remarkable to characterise the respondents’ decision as irrational.”
It is not lawful to adopt a blanket policy that mandates the use of pads for all individuals requiring night-time toileting support. This would breach public law principles operating throughout the Care Act 2014, which states that councils must carry out assessments that consider an individual’s specific needs and outcomes.
In R (on the application of VI) v. London Borough of Lewisham (2018) EWHC 1157 (Admin), the Court addressed whether a council’s failure to provide night-time care breached a disabled woman’s dignity and human rights. The court emphasized that local authorities must assess needs holistically and provide care that upholds human dignity, particularly in cases involving essential needs such as toileting and not just operate on a short-cut basis of having a policy that pads will do. The judgment stressed that resource constraints, while relevant, cannot justify decisions that fail to account for an individual’s fundamental rights or specific needs.
The principle from Lewisham (VI) reinforces that councils must adopt a person-centred approach that ensures dignity, and not simply rely on resource arguments or blanket policies when essential needs like toileting are at issue. Thus, while it can be lawful to meet toileting needs with pads, this is contingent on a thorough assessment demonstrating that the approach is a proportionate and dignified solution tailored to the person’s circumstances.
The Ombudsman found that the council failed to focus on the complainant’s specific needs and wishes in deciding how to meet her night-time toileting needs. A blanket approach ignores the nuanced requirements of individuals and risks being found unlawful for failing to fulfil the council’s duties. Both Lewisham (VI) and McDonald underscore the need for local authorities to balance resource considerations with the legal duty to preserve dignity and autonomy in care planning.
It is important to consider that if the individual explicitly chose to live at home, knowing that a proper decision regarding night-time care had been made and concluded that pads would be appropriate, that would also be a relevant consideration because autonomy is just as important as dignity. However, that sort of decision on the part of the individual must be accurately informed, meaning the individual fully understands the implications and potential limitations of the care package.
During the next assessment required by the Ombudsman to put the injustice right, here, the council would likely need to reassess her current needs and wishes, especially if her situation has changed or deteriorated. They would also need to determine whether the use of pads remains appropriate in light of a proper understanding of the law, or if alternative night-time arrangements (eg., carers or other interventions) are required to uphold her dignity and quality of life. Tellingly, but unsurprisingly, given public law principles, they will need to give a proper coherent articulated set of reasons at Panel level, if a panel of senior officers actually make the decision in the end.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Birmingham City Council (23 012 345) report
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