Decision Date: 22nd January 2025
Summary
Ms Y was cared for in a care home for almost two years while waiting for the Council to offer the necessary processes for assessing her needs. The Council failed in providing timely social care assessments and providing a care package at a reasonable time. It so happens that the conclusions would have facilitated Ms Y returning to her previous home, so there was injustice and disregard of human rights arising from the delay.
What happened
Following a hospital discharge in late 2021 Ms Y, who lives with dementia, was placed into a care home by the Council. The Council had assured Ms Y and her family that this arrangement would only be temporary. Her sisters were her health and welfare attorneys.
The purpose of this temporary stay was to allow discussions between the Council and the care provider involved in a Housing with Care (HWC) scheme, referred to as “Scheme A.” Ms Y held an assured tenancy at Scheme A, and the discussions centred on her returning there following her hospital discharge.
However, the care provider at Scheme A stated that they could not meet Ms Y’s needs, leading to her continued stay in the care home.
Throughout 2022, Ms Y’s family expressed concerns about her prolonged stay in the care home, noting that due to its distance from the rest of the family, it severely limited Ms Y’s ability to maintain contact with her partner and daughters. Additionally, her family also raised issues about ongoing charges for rent and service charges at Scheme A, despite Ms Y no longer residing there.
Care Act Assessments took place throughout 2022 and into 2023, acknowledging the merits of the complaints that Ms Y’s family had already raised with the Council.
Discussions between the Council and the care provider at the Housing with Care scheme continued and remained at an impasse over the provider’s position on its inability to provide care, even if she went into the extra care section of the facilities.
No Care Plan was completed until July 2023. It reiterated how the needs were being met at the care home.
In September 2023, Ms Y’s family moved her out of the care home without telling the Council or Scheme A. The outcome was that the Council funded one-week of one-to-one care as a trial. The care provider at Scheme A continued to refuse to provide care due to the high level of support Ms Y needed. The Care Provider regarded Ms Y’s placement as ‘let without care’ (meaning the landlord was providing the flat, but the Care Provider was not providing any care, for ethical reasons. Consequently, Ms Y continued to live in her home, under her tenancy, with her family arranging private care. She had two half hour care calls a day and went to day centres; with informal care from her partner and visits from her daughters. The family had taken out a loan to pay for this scare package.
In October the Council did another care plan but all this one did was set out the cost of the services in the care home.
Ms Y continued to remain at Scheme A and had undergone further Care Act Assessments as well as undergoing two stays at the hospital. The care package provider who had been commissioned by the family was taken on by the Council for Ms Y at Scheme A. She had debts owing to the Scheme which the Council offered to repay because it had not completed a social care assessment.
What was found
The Local Government and Social Care Ombudsman LGSCO upheld Ms X’s complaint; the Council was found at fault for a number of different injustices towards both Ms Y and her family members.
The report found the Council at fault for failing to operate withing the parameters of a short-term arrangement for Ms Y at the care home she was placed in following her discharge from hospital at the end of 2021. Ms Y spent nearly two years in the care home.
The Council were found at fault for delay regarding the completion of a social care assessment that began in March 2022 and was not finalised until July 2022, but without any care plan being finalised even then. Furthermore, the Council failed to create a care and support plan for Ms Y following the completion of the assessment and that took another whole year.
No best interests decisions were made after consultation with the attorneys by council officers, even though Ms Y was deemed to have lacked mental capacity around her care needs.
Upon leaving the care home and returning to her flat in October 2023, the Council’s own assessment of Ms Y stated that she could have her needs met through a HWC scheme. The onsite provider of this care, who was commissioned by the Council, refused to provide care.
A full 3 months after being admitted to the care home, a financial assessment of Ms Y was completed and this significant delay was also found to be a separate fault on the part of the Council.
The ombudsman found injustice caused by the Council’s omissions and actions on all but the last one of the points stated above. The faults induced avoidable distress and uncertainty which was experienced not just by Ms Y but by her family members and partner as well.
The delay in commissioning a care package for Ms Y also led to an avoidable financial loss; the care package had to be obtained privately.
Moreover, the faults also lead to avoidable restrictions on Ms Y’s ability to maintain contact with her partner and family members – the partner also lived at Scheme A. There was no record of any consideration of Ms Y’s Article 8 rights to respect for family and private life in any of the assessments.
However, no injustice was found in connection with the failure to provide a financial assessment in a timely manner. That was because in response to a complaint made by Ms X the Council reviewed all of Ms Y’s financial assessments, leaving Ms Y at no financial loss for the time she spent in the care home.
The report was satisfied that the Council provided sufficient remedial actions, issuing an apology to all involved as well as refunding the cost of the privately arranged care package; symbolic payments totalling £1500 were also made to those involved. The Council upheld the complaint and gave a refund of fees between 10 October 2023 and 17 March 2024 net of Ms Y’s weekly care contribution of £114 (and not including a two week period when Ms Y was in hospital). The Council made a payment of £2720 of fees in all. We think that over £6700 was paid back by virtue of cancelled care charges and debts to the Scheme, but it is not possible to be sure.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Section 9 Care Act 2014 details that where it appears to a local authority that a person may need care and support, an assessment on whether support is needed and if so the level of support necessary should be carried out by that local authority. Statutory guidance on the Care Act says that these assessments must be carried out “over an appropriate and reasonable timescale” (as per paragraph 6.24 of the statutory Guidance).
The Guidance makes clear that assessments should be enacted taking into account the urgency of one’s needs; local authorities are further advised that they should inform individuals of a rough timeframe across which the assessment will be conducted. Close updates regarding time are also expected to be provided to the individual during the assessment process (as per paragraph 6.24).
When a council is dealing with an individual who is properly deemed to lack the capacity to make decisions about their care, councils should conduct best interests decisions involving those who have been named by the individual, attorneys or carers. Section 4 of the Mental Capacity Act 2005 outlines the steps that should be taken when arriving at best interests decisions.
Under section 24 Care Act 2014, where a local authority is required to meet needs of an individual it must prepare a care plan for the individual as per section 24(1)(a). Statutory Guidance provides that this care plan should be constructed with the individual’s wishes in mind, where possible, the individual should be “actively involved” in the construction of their care plan (per paragraph 10.14 of statutory guidance).
The Ombudsman does not have the jurisdiction to rule on whether authorities are in breach of human rights issues. However, consideration should be given to how certain actions engage the need for the council to consider the Human Rights Act 1998 and here, the one in question was article 8. There was no evidence that regard had been paid to human rights.
Following the complaint, Norfolk County Council amended its approach to Housing with Care (HWC) and Housing with Extra Care (HWEC) schemes. The application process was amended to include that after an absence of 9 months or longer from a scheme, management will be informed and the case will be allocated for a review or reassessment. A letter will also be sent out explaining to the individual how after a 12 months’ absence housing benefits will stop.
The investigator states at the beginning of the report that her permanent tenure at the scheme meant her flat was available for her to occupy and the landlord and Care Provider could not have stopped Mr Y from returning. We do not know why the investigator did not explore why nobody told the attorneys that that was the legal position.
When the Care Provider (the onsite one, commissioned by the Council) refused to provide the care package, there was only one thing to do, and it is astonishing to us that the Council failed to do it. The Council has a duty to meet Ms Y’s eligible unmet care needs. It should therefore have commissioned care to meet those needs without delay. As the LGSCO emphasised the failure to do so was not in line with the duty to meet eligible needs in Section 18 of the Care Act 2014. The Council also failed to consider using the powers in Section 19 to meet urgent needs (when Ms Y was moved back to Scheme A.) She had an assured tenancy and the Council could have commissioned care at any time once it was satisfied her needs could be met by a package of home care.
All of that is all well and good but the Ombudsman’s investigator did not insist on a change to the commissioning approach regarding a Care Provider’s unwillingness to meet the need, and it is beyond our ken as to how the investigator concluded it was acceptable to leave that part of the issue unexplored.
The de-skilling of a person in a care home by virtue of the institutionalisation is not mentioned; and the fact that of course a person can be regarded as too needy for the fee agreed or for the scope of the home care contract between the extra care housing scheme care provider and the Council, was not mentioned either.
We think that this sad story arose from social worker fault, management fault or commissioners’ fault and it is a very poor reflection on the Council.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Norfolk County Council (23 019 107) report.
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