Decision Date: 8 November 2024
Summary
Miss P complained on behalf of her son, Mr R, that the Council took eight months to approve funding for a suitable supported living placement, delaying his hospital discharge and restricting his freedom. She said the Council prioritised cost over a person-centred approach, withdrew an agreed placement, and communicated poorly, causing distress. She sought acknowledgment of failings and service improvement.
What happened
Mr R, who has a range of mental ill-health and cognitive disorders, was living in supported accommodation that was deemed unsuitable by him, Miss P, his mother, and even the Council. Suggested options were regarded by his mother as unsuitable on account of location, size or having no overnight care (he was having waking night support in his current setting).
In early July 2023, following an incident, Mr R was admitted to a secure mental health unit under Section 2 of the Mental Health Act for assessment.
Shortly after his admission, the Council decided to begin a fresh search for new accommodation for Mr R upon his readiness to leave the hospital. The brokerage team initially closed his case, pending a new Care Act assessment, as the last one was 2 years old.
A week later, the brokerage team found some potential providers and by the end of July, the brokerage team had expanded its search beyond the local area at Miss P’s request. A re-assessment and revision of the care plan was started, which outlined his needs for support with domestic tasks, community access, personal care prompting, and task initiation. Night-time support was no longer included.
Later in July, social workers conducted a mental capacity assessment and made a best interest’s decision, which determined Mr R lacked capacity to understand the need to move and would benefit from living near Miss P’s home, with staff experienced in mental health and his other conditions. After his detention under the Mental Health Act lapsed, Mr R stayed informally at the secure unit while accommodation was sought.
In early August, Miss P visited a potential placement, but staff mentioned concerns about its size and the other residents and she ultimately rejected the placement. Throughout August, the Council explored other options, but Miss P and professionals at the hospital raised concerns, including the lack of night-time support at some facilities.
In mid-September, Miss P identified a potential placement she found suitable and notified the Council and NHS staff. While preparations for this placement proceeded, delays occurred due to initial communication challenges with the provider. By late October, the care provider indicated it could not accommodate Mr R until December.
In November, Mr R visited the premises, a self-contained flat. The Council requested a detailed cost breakdown from the provider, flagging up the urgency of the matter.
The Council’s brokerage team noted the proposed care provider was not on the Council’s approved provider list and that its costs were high.
The sender asked social care for a new referral so it could “go back out to providers to see if we can get some other interest”.
The preferred provider’s proposal included night-time support and psychological services, which the Council contested as beyond Mr R’s assessed needs and the scope of its funding responsibilities. The Council informed Miss P of these issues and began considering expanding the geographic search for alternative placements once again.
Miss P complained in mid-December, and the Council responded in January 2024, acknowledging the communication failures, including a mistaken presumption that a tenancy had been agreed upon. It reiterated that the care provider’s proposal included sleep in care at night and other services the Council could not fund, such as healthcare-related support and called it ‘over-provisioning’ the package.
A review of Mr R’s night-time needs based on hospital records found no evidence to support waking night-time care.
The Council proposed technological night support instead, but the particular provider rejected this and withdrew from consideration. Discussions resumed, however, and by mid-February, the Council and provider reached an agreement, with the hospital committing to ongoing involvement post-discharge which the Council said overcame the difficulty about health related services being commissioned.
Mr R moved into the new flat a month later. Subsequently, an NHS Continuing Healthcare assessment found that Mr R did not have a primary health need, rendering him ineligible for NHS Continuing Healthcare funding. The NHS Continuing Healthcare (CHC) assessment finding that Mr. R did not have a primary health need is significant as it directly affects funding eligibility. Since CHC covers care costs for individuals with primary health needs primarily due to health conditions, failing to qualify shifts the responsibility for care funding. Mr. R’s care would thus fall under social care, potentially funded by the local authority or privately, rather than the NHS.
What was found
Surrey County Council was found at fault for delays in reviewing and updating Mr R’s care and support plan, which did not fully comply with statutory guidance.
The investigator noted that waking support had been regarded as needed on his old care plan and would also have been available in the hospital. Given what a review is meant to consider (there should have been some rationale for Mr R not needing night-time support, as this was a definite change, with some exploration of the reasons for this. That omission was fault, although when prompted, it had gathered up a sufficient evidence basis and worked around the issue.
The perambulation on the part of the system, triggered by the concern about healthcare funding, increased the delay in identifying a suitable supported living placement for Mr R, causing him to remain in a secure hospital unit longer than necessary but was not fault, as far as the Ombudsman was concerned, because of the Care Act’s attempt to ensure that other agencies such as Health do discharge their duties first, ahead of social services ending up liable.
In the end, the Ombudsman did not agree that the Ccouncil’s only consideration was cost but seems to have assumed that the provider stuck to its pricing model given that an agreement was ultimately reached with some concession as to what was needed.
To remedy this injustice, the Council agreed to apologise to Miss P and Mr R for the identified faults.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This report illustrates the critical importance of adhering to statutory obligations under the Care Act. Delays in reviewing a Care Act care plan for over two years, particularly in light of Mr R’s significantly changed circumstances, leading to psychiatric hospital detention, represented a clear breach of Section 27 of the Act.
Additionally, care plans undergoing revision must be comprehensive, reflecting a detailed understanding of eligible needs (the difficulties).
This includes distinctions between social care needs, which councils are required to fund, and healthcare needs, which are the primary responsibility of the NHS, but always against the background of a duty to co-operate – which appears to have been secured, via the hospital’s ongoing involvement.
If this man had been sectioned under s3 of the Mental Health Act, he would have been entitled to free s117 aftercare, but this was not the position since his detention had only ever been for psychiatric assessment, and he stayed on as a voluntary patient.
The procedural missteps in Mr R’s case, including allowing a tenancy selection process to progress to the provision of a tenancy agreement, without confirming funding or suitability, highlight the need for councils to maintain rigorous oversight of their brokerage teams and internal processes.
The LGSCO’s approach in this case raises some wider questions. For example, the Ombudsman distinguished between social care and healthcare needs but did not fully explore whether some services, such as psychological support, could be deemed appropriate for the Council to fund as ancillary or incidental to the rest of the package, given the holistic definition of well-being – or brought within the auspices of counselling, which is mentioned specifically as within the scope of Care Act services, in s8. Since the investigator did not consider that, the report’s approach to the extra time wasted by seeking CHC status (unnecessarily in our view, given s8) was also affected by the investigator’s own knowledge base.
Furthermore, while the recommended apology and corrective measures were appropriate, they do not fully address the systemic issues that led to the faults, such as the lack of robust brokerage procedures or reliance on non-approved providers. A more proactive examination of these broader failings could help ensure councils adopt more effective practices to prevent similar issues in the future.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Surrey County Council (23 017 173) report.
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