Decision Date: 04 Dec 2024
Summary
The LGSCO found fault with West Sussex County Council’s assessment of Mrs Z’s needs, which was excessively delayed and failed to consider where she wanted to live, instead imposing its own decision upon her without regard to her wishes and feelings, regardless of the state of her capacity.
As such, the Council was at fault when it failed to explore the possibility of a home care package for Mrs Z when offered by a care provider.
The LGSCO explained that the faults of the Council caused injustice for both Mrs Z and Mr Y by creating considerable uncertainty as to whether Mrs Z could have potentially returned home, and, if so, how much less her care costs could have been.
What happened
Mrs Z lived at home and received a care package from a care provider, which the provider terminated after giving notice in July 2022. [The report does not explain the reason for this.]
Subsequently, the Council made numerous attempts to secure a care package for Mrs Z by contacting providers in the area between July and September 2022.
During this time, Mr Y told the Council that he was also contacting a care provider. That provider, despite telling Mr Y that it would be able to support Mrs Z from August 2022, ultimately declined to provide any care.
After this, the Council sourced a different care provider for Mrs Z; but it also declined to provide any care.
As such, a social worker visited Mr Y and Mrs Z to consider whether Mrs Z should receive respite care in a residential care home. While initially Mr Y refused this offer on the basis that Mrs Z wanted to remain at home, he later agreed after the Council remained unable to secure a care provider.
Mrs Z moved to the care home in August 2022 and was visited by a social worker. Mrs Z told the social worker that, although she was happy at the care home, she wanted to return home.
At this time, the social worker spoke to the care home manager, who said that Mrs Z appeared to have difficulties with her short-term memory, but that she would still be ‘able’ to receive care at home.
The Council continued to search for a care provider and sent further requests for a care home package while Mrs Z remained at the Home. One care provider told the Council that it might be able to provide a care package for Mrs Z but would want to complete its own assessment of her needs first. The LGSCO did not find any evidence that the Council explored this option further.
Subsequently, the Council considered that Mrs Z’s needs were increasing so decided to reassess her.
A case summary completed by Mrs Z’s social worker showed that Mrs Z was waiting for a GP to assess her memory deficit in order to confirm whether the GP could properly recommend returning home. The social worker attempted to contact Mr Y to discuss extra care housing but he did not respond. When the social worker attempted to assess Mrs Z on two occasions, she would not co-operate.
For reasons not provided in the report, the Council had to reallocate another social worker to Mrs Z so she was placed on the Council’s waiting list, which was prioritised according to risk and urgency because of the high demand for care assessments. As Mrs Z continued to remain in the safe environment of the care home, the Council considered her case as low priority.
Mrs Z’s care needs were eventually reassessed in May 2023. [There is no mention of the relevance of capacity at this point.] The care assessment said that Mrs Z was now receiving end-of-life care and that her physical wellbeing could be at risk if she returned home. As such, the Council decided that Mrs Z should permanently remain in the care home. The social worker attempted to contact Mr Y on multiple occasions to discuss his opinion of Mrs Z’s needs, but he did not respond.
In September 2023, Mr X made a complaint to the Council on behalf of Mr Y about various different issues, including the Council’s inability to secure a care provider who could provide a home care package for Mrs Z.
In response, the Council decided to undertake an urgent reassessment of Mrs Z’s needs to determine whether she could return home with a care package. The Council considered that Mrs Z required a mental capacity assessment to see if she had capacity to make decisions regarding her own care and finances.
Consequently, a social worker visited Mrs Z at the home in October 2023, but was unable to speak with her for reasons not explained in the report. The social worker revisited Mrs Z in November and concluded that she lacked capacity. Before this, the social worker had attempted to contact Mr Y so that he could be present for the assessment, but he did not respond; nor did he reply after the assessment, when the social worker decided that Mrs Z should remain at the care home because of her health.
Mrs Z died several weeks later, after which Mr X complained to the LGSCO that the Council’s failure to find a care provider had forced Mrs Z to live in a care home against her wishes.
Mr X explained that this distressed both Mrs Z and Mr Y, and also meant that Mrs Z had to pay more money, given the care home placement was more expensive than a care home package would have been.
What was found
The Council did not find fault with the Council’s early attempts to find a care provider for Mrs Z, as it had contacted numerous providers on multiple occasions – including the provider suggested by Mr Y.
The LGSCO also held that the Council had taken sufficient steps to contact Mr Y when assessing Mrs Z’s care needs, including its later reassessment.
However, the LGSCO found actual fault with the Council’s failure to explore the possibility of a care package when contacted by a care provider.
Further, the LGSCO held the Council at fault for its delayed assessment of Mrs Z’s care needs. After its failed attempt to reassess Mrs Z in October 2022, the Council waited a further 7 months before re-attempting the assessment – a delay it attributed to the high demand for assessments and its prioritisation process. The LGSCO explained that as the ‘excessive’ delay was caused by external factors it amounted to service failure and was therefore fault.
So too, the LGSCO found fault with the Council’s care assessment of Mrs Z’s needs in May 2023, as it failed to consider where Mrs Z herself wanted to live. Even though Mrs Z was receiving end of life care, her views still should have been considered, instead of which the Council imposed its decision upon her before formally finding her to lack capacity.
The LGSCO held that there had been significant injustice to Mrs Z and Mr Y as there was much uncertainty created by the Council’s faults – namely its failure to explore a care package offered by the provider, and its delayed reassessment of her needs. This means it remained unclear whether Mrs Z would have been able to return home, which may have reduced her care fees and accorded with her wishes.
The Council agreed to the following actions:
- Write an apology to Mr Y for the distress and uncertainty the Council caused by its delayed assessment of Mrs Z’s care needs, which prevented her from returning home;
- make a symbolic payment of £500 to Mr Y in recognition of the distress and uncertainty he has suffered;
- create an action plan to demonstrate how the Council is addressing the excessive delays regarding care needs assessments;
- remind staff that assessments should be person-centred and fully involve the person about whom decisions are being made.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We think that this woman probably already lacked capacity from the outset as the whole tenor of the report is that Mr Y did the agreeing for the move to respite care, in the first place. That is not something one does for a person who has capacity.
One should not ever be offered respite care simply because of commissioning failure, and we are puzzled as to why that is not stated clearly. It is an option of last resort, and only ever appropriate if the reason one cannot find the service is because of genuine scarcity, given the needs, not just because one cannot find a willing provider of homecare, which is an everyday service and not rare or exceptional.
The local authority has specific power under the Care Act to provide care of the terminally ill, in s19, it is worth noting. The fact that she might have preferred to have had care at home ought to have been conscientiously considered, regarding the exercise of that power – it would have been a relevant consideration. A local authority may meet an adult’s needs under subsection 3 (without the completion of a needs assessment, ie where urgent), where, for example, the adult is terminally ill.
The delay in the assessment process itself should not have been occurring because (as we point out, nearly every week) s6 of the Local Authority Social Services Act 1970 is still in force and can be used to insist that waiting lists beyond those which could be regarded as objectively reasonable) can be avoided by reliance on the duty of the council to furnish Adult Social Care departments with sufficient staff for the discharge of their functions.
It is noteworthy that the investigator asked the Council to explain what action it had taken to address the delays in carrying out care needs assessments and what the current average wait time was. Whilst the investigator emphasised that ‘We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred’ the absence of any response raised at least the possibility of the council being economical with the truth.
West Sussex did not provide this information and there is no further comment on that from the Ombudsman, who has its own set of powers to require councils to provide information.
The Council prioritised assessments, somehow, but this was not evidence to illustrate what it was doing to reduce workforce issues causing significant delay in carrying out care needs assessments. The investigator said the Council should provide an action plan or evidence to show how it is tackling the delays.
We know from experience that if a care provider insists on making an assessment first, before it will take on someone’s care, it is very often because it has come to distrust the local authority’s own assessment of the degree of difficulty presented for a care package, or because the council is applying banded rates ad saying that the person is a band below what the provider thinks is likely.
In this regard, the report is oddly inconsistent in its approach, to our eye. On the one hand, it does not consider whether the problem in finding a willing provider was actually all about MONEY, which is the obvious usual reason why a provider cannot be found. The lack of perceived ability to use reserves for the duty to meet the needs, via a higher rate, more hours or more skilled input is at the heart of what is going wrong with adult social care law. On the other hand, it says that the Council did not meet this woman’s individual need of being cared for in her own home. That is not, never has been, and nor ever will be what is meant by a ‘need’ under the Care Act, and it is shocking that the investigator was so loose with language.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s West Sussex County Council (23 020 341) report.
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