Decision Date: 10 October 2024
Summary
Following an assessment by the Council, Mrs Y was recommended a placement in a residential care home. Following a reassessment, the Council instead decided that she should move to an Extra Care Housing Facility. Mr X, her son, complained that the Council failed to take account of the views of the first set of professionals when allocating appropriate care for Mrs Y, leaving her without the care she needed.
What happened
In May 2023, the Council received a request for a care needs assessment for Mrs Y, which was completed in June. In the assessment, the assessor recommended 24-hour care support for Mrs Y within a care home setting.
The Council completed a further assessment in October of that year, in which it decided that Mrs Y should move to an Extra Care Housing Facility to enable support while still allowing her to live independently.
The following month, the Council contacted a provider to try and locate a suitable environment. Later in November, the provider replied that it felt Mrs Y’s needs would not be suitably able to be met in that setting. The provider outlined that it had previously assessed Mrs Y for a place in residential care [it is unclear whether this was independent of the Council’s own assessment or whether it had performed that assessment FOR the council] and felt Mrs Y was not suitable for living in extra care. The Council responded that Mrs Y did not meet the criteria for residential care, in its own opinion.
The provider queried why the Council was now considering Mrs Y for extra care service, following the previous determination that she needed a residential care placement. The Council replied to the provider that it had completed a reassessment of Mrs Y, and established that she did not have 24-hour care needs.
The provider sent a referral to another placement, but this second placement declined this referral.
Mrs Y was regarded as agreeing to move into an extra care facility following discussions in December 2023. [It is not clear from the report whether Mrs Y ultimately signed a tenancy or was placed in a bedded setting.] Her son, Mr X, contacted the Council to express his disapproval with this outcome.
Mr X contacted the Council in mid-January 2024 to outline his reasoning for his displeasure with the Council’s decision to force his mother into extra care. He explained that the Council’s original decision was residential care for Mrs Y, and that several extra care facilities had declined to take Mrs Y due to her apparent needs. He explained that staff at the facilities tried by the Council had told him that Mrs Y needed residential care rather than assisted living. The Council had simply reaffirmed that based on its assessment, Mrs Y did not meet the criteria for residential care.
In one instance in late January 2024, the Council contacted the arranged care provider for Mrs Y’s new extra care service, to request assistance with pads during the night. The provider expressed confusion as it had been told Mrs Y would not need care at night. The Council continued to say Mrs Y did not have nighttime needs although that sort of assistance was regarded by its own policy document as an indication of such needs.
In March 2024, the provider contacted the Council to express concern as it had been roughly four months since it had last assessed Mrs Y. The provider said it would need a re-assessment to continue with the care package. The Council responded to reaffirm its position that Mrs Y did not need residential care and that was what the provider should focus on, as there had not been any changes to Mrs Y’s position.
The provider replied the following month, saying there had been a marked deterioration in Mrs Y’s condition and stated that in its view, she needed residential care. The Council repeated its position and asked the provider to reconsider. The provider replied to the Council that it believed residential care was a more suitable response to the needs.
Mrs Y went into hospital in May 2024, and the Council completed a review of her care and support needs the following June. The Council’s conclusion was that Mrs Y should be discharged back to the extra care facility, and had no nighttime support needs. But 4 days later, a care plan was written for Mrs Y, detailing that Mrs Y instead needed a residential care placement. [There was no explanation for this change detailed within the LGSCO’s report.]
In response to the publication of the new care and support plan, the provider with which the Council had been communicating contacted the Council to state that it could not meet Mrs Y’s needs in its extra care setting. It was recorded in her care notes from July that extra care housing had been declined due to high needs, and that she needed a residential placement.
Following this decision, Mrs Y was placed into a residential care placement and a further re-assessment was completed, with inclusion of Mrs Y’s possible night time needs finally recorded by the Council.
What was found
The LGSCO noted contradictions within the Council’s decision-making, such as the instance where the Council told the provider that a re-assessment was unnecessary for Mrs Y, despite a marked deterioration in her wellbeing.
Another contradiction found from looking at Mrs Y’s re-assessments in June, which outlined conflicting opinions about what was required, within a few days of each other. Although it had noted that Mrs Y would be better placed in residential care, the Council continued to attempt to locate a facility for the provision of Extra Care. Again the provider refused to embark on this, as it explained it could not meet Mrs Y’s needs.
The provider contacted the Council several times to communicate that Mrs Y’s needs were greater than the planning process had prescribed. The Council was also aware that Mrs Y required assistance at night time in January, but refused to note that this meant she had night time needs.
The LGSCO found the Council’s decision-making to be flawed, as it contradicted its own assessments and disregarded professional advice. This caused distress and uncertainty for Mrs Y and Mr X about the appropriate level of care provided.
To remedy the fault, the LGSCO recommended that the Council should apologise to Mrs Y and Mr X for the faults noted, along with payments of sums of £350 to account for the distress caused to both parties. The LGSCO also recommended that the Council finalise the reassessment of Mrs Y in September 2024, and that the management should remind officers in writing to consider all information available to them when reaching a decision and maintain detailed decision-making notes.
Points to note for Councils, professionals, people using services and their carers, advocacy groups and members of the public
The Council would have been successfully judicially reviewed had the family gone to the Administrative Court, because failure to have regard to all relevant considerations, or failure to address the evidence by taking a bald and apparently blinkered or disengaged approach, against the weight of the evidence available to all to see, is the essence of public law wrongdoing.
The system recommended by government whereby the State plans the care and commissions it, but from private and voluntary sector providers who are also professionals, and also regulated, implicitly means that it is not always wise to treat what providers say about people’s needs as automatically the equivalent of the Council’s own care planning determination under the Care Act. But a good Council will have picked good commissioners who manage what is otherwise an obvious conflict of interest, and will have provided for trusted assessors, who can do most of the assessing and planning for them, despite being external to the Council and paid by the Council.
Then, the views of the provider’s professionals, which are obviously deserving of professional respect, because the provider owes a duty of care in negligence to anyone for whom it actually takes on the care responsibility, can be ratified by the Council, and stand as the Council’s own care plan, or review or reassessment.
But if a Council is going to disagree with a consistent approach taken by an onsite provider at Extra Care facilities, its own staff need to be able to justify that stance. If they cannot afford the time, to do so, or cannot find the words with which to mount a rebuttal, then anyone in charge of quality or complaints or governance at that Council needs to treat that as a red flag for legal risk.
We think that the LGSCO could therefore have been much more trenchant in its castigation of the Council for its approach here, which is in breach of the Care Act, and explained more to support everyone’s understanding as to what should be happening 10 years after the Care Act came into force…
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Buckinghamshire Council (24 000 842) report.
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