Decision : Upheld
Decision date : 19 Feb 2014
The Ombudsman's final decision:
Summary: The Council failed to comply with its statutory duty to agree an aftercare plan for P. It failed to consider all the available relevant information when it assessed P’s needs or to organise respite at home for P when he could not access respite elsewhere. As a result P and his mother Mrs A were left without all the support they needed. The Council has agreed to apologise to the family and make a payment which acknowledges the distress and upset caused to P and to Mrs A. The investigation is complete.
- Mrs A complains about the way the Council assessed her son P’s needs after the NHS decided it would no longer fully fund his care needs. She complains that the Council’s budget allocation was insufficient to enable her to purchase the care P required as the assessment did not take into account the evidence available that P needed the support of two carers. She also complains that P did not have any respite as he could not attend respite outside the home and an agreed plan for respite at home was never pursued. She says when she complained about the proposed reduction in the care package the Council told her it might have to start a safeguarding investigation.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If there has been fault, the Ombudsman considers whether it has caused an injustice and, if it has, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- I considered the Local Government Act 1974 and the relevant legislation detailed below. I considered the written information provided by the Council and by Mrs A’s advocate. Mrs A has had the opportunity to comment on my provisional view of the complaint.
What I found
- Section 117 of the Mental Health Act 1983 says that where a patient has been detained under section 3 of the Mental Health Act and leaves hospital, it is the duty of the health authority and the social services authority to provide aftercare services until such time as the authorities are satisfied that the person concerned is no longer in need of such services. The code of practice issued in 1993 to accompany the Act said that when a decision had been taken to discharge a person from hospital in these circumstances, a discharge meeting should be called and a care plan should be drawn up to organise the management of the patient’s continuing health and social care needs. The aim of section 117 aftercare is to prevent relapse which would necessitate a return to an acute hospital setting.
- The Care Programme Approach (CPA) is a way of planning and providing support to people with serious mental illness.
- Continuing Health Care (CHC) funding is NHS funding which pays for the whole of someone’s care package. The decision to award CHC funding is taken by the NHS after completion of a decision support toolkit (DST) to determine eligibility. There is a right of appeal against the decision not to award CHC funding, or to withdraw it.
- P suffers from autism, epilepsy and moderate learning disabilities. He lives at home with his mother. He was previously detained under section 3 of the Mental Health Act and discharged onto section 117 in 2006. Although multi-disciplinary meetings in 2006 and 2007 were convened to discuss his section 117 needs, no separate s117 aftercare plan was drawn up. Instead a CPA care plan was formulated.
- P’s needs and care were funded through the NHS CHC funding, which paid for 94 hours care a week (48 hours each provided by 2 carers at a time). In late 2012 the local health Trust decided that P was no longer eligible for CHC funding. Before the funding was withdrawn, the Council undertook an assessment of P’s needs.
- The Council says that P’s needs were reassessed in consultation with his mother Mrs A. It says that it requested evidence from Mrs A or the care agency about P’s needs but that Mrs A did not provide any evidence to support her view that P needed more care than the Council proposed or that he needed the support of two carers at a time. The assessment concluded that P required 50 hours a week support based on the following plan:
“1 hour call, 4 calls a day x 7 days per week with 1 carer. Morning calls: - To commence between 11.00 am -- 12.00 noon to assist (P) with washing/showering or bathing, dress, prepare breakfast, and prompt medication. 1 carer required to manage, when tasks are being carried out
Lunch calls: - 4 days requested - To commence at 1.00pm -- 2.00pm for a carer to heat up a meal or prepare a sandwich and encourage eating and drinking fluids. Carer to monitor and supervise (P) whilst he consumes his meal to minimise the risk of choking as he does not chew his food properly and is known to eat and drink quickly. 1 carer is required to complete this task.
Evening calls: - To commence from 7.00 - 8.00 pm for carer to prepare evening meal and provide fluids to maintain health and wellbeing. 1 carer is required to complete this task.
Night call: - For carer to provide a tuck-in call to commence from 9:00pm. This is for carer to assist (P) to have a shower, assist to undress into night clothes and then into bed. 1 carer is required to complete this task
Day Activities: Day activities to commence in the home with two carers to assist (P) access the community. Day activities to commence three days per week, (Wednesday, Thursday & Friday) commence 1pm -- 5pm (4 hours) to access the cinema, local park, local shops and for carers to play football with (P) in the back garden. Two carers are required to complete this task as (P) may displays signs of challenging behaviour when accessing the community. Risk management strategies will need to be employed by carers to manage (P) behaviour and ensure his safety and others.
Total cost for package agreed at the weekly amount of £761.84 per week”.
- In April 2013 P’s community nurse emailed the Council about the proposed care package. She said, “I feel it necessary to advice that the current care package….would not enable (P) the appropriate structure, routine and support to meet his personal, emotional, social, behavioural and mental health needs. By having a split package of hours across the day….would only trigger potential behavioural concerns and issues for (P) given the need to meet his needs related to his autism. This proposed change to the package would cause disruption for (P) and ultimately may place care providers in a situation that is unpredictable and heighten risk given the potential for an increase in difficult behaviours presented by (P).”
- The social worker met Mrs A at home at the end of April to discuss P’s care needs and also to complete a carer’s assessment for Mrs A. Mrs A complained about the proposed reduction in hours. She said she would do anything in her power to retain the care package P had received before, even to the extent of refusing carers access if the care package was broken up into time slots as suggested. The social worker’s notes record that the social worker said this might be a safeguarding concern as it could be viewed as an omission of care. Mrs A then agreed to use Direct Payments so that she could continue to use the care agency which had been providing P’s care. Mrs A continued to say that P could not be managed by 1 carer.
- CHC funding ceased on 1 July 2013. The social worker’s diary note for 23 July recorded a telephone call with Mrs A about the use of two carers at a time. The note reads, “(P) will not stay in same room as mother or get out of bed if carers are not about. This is due to incident some time ago where (P) attacked his mother. (The care agency) will not visit alone due to risk of aggressive outbursts so are sending two carers in. Hours of support are Monday 12pm – 10pm; Tuesday 5.30 – 9pm; Wednesday 5.30 – 9pm; Thursday, Friday, Sat (3hours each day); Sunday 4.5. (P) will not get up until carers arrive so he will stay in bed until 5.30 today. I informed (Mrs A) this was not how the package was envisaged. (Mrs A) said this was the only way she could manage with the funding agreed.”
- On 26 July Mrs A telephoned the social worker to say that the care package was not working, and that (P’s) seizures had increased. The social worker told her to seek medical advice from her GP or P’s consultant, or call 999.
- Mrs A’s advocate complained to the Council on her behalf about the reduction in P’s hours, which Mrs A said she was coerced into accepting but which did not provide the support P needed. The Council investigated the complaint and responded in August 2013. It did not uphold her complaints. It said the assessment had been undertaken during observational visits, that Mrs A had agreed the use of Direct Payments, and that the package was under continuous review to ensure it met P’s needs. It added, “The current package of care is being provided by two carers to meet (P’s) care needs and manage risks to his safety.”
- A routine multidisciplinary review of P’s care needs was held at the beginning of September. The meeting discussed the reduction in P’s hours. It was noted that a reduction in P’s hours not only put extra stress on Mrs A but might also trigger an increase in P’s anxiety and lead to more ‘difficult to manage’ behaviours and seizures. The community nurse who was present was recorded as saying “this information has been forwarded to past social worker when the initial assessment by local authority was commenced, joint visit and numerous conversations and emails were also provided to detail requirements needed with in a package to make it successful for (P). (The community nurse) highlighted that previous support has always been provided by care agency on a 2:1 staffing ratio given the complexity of needs presented, need to manage routine and boundaries, and to manage difficult situations and crisis behaviour management. This is supported by the care agency and they advised they would not work with (P) unless they had 2 carers to support given the potential risk to (P) and to the care team. This is evident in their risk assessments and care plans that have been forwarded to previous social worker. Therefore in practice the current care hour provision is halved given the need for 2 carers to provided support, as the local authority budget was for 1 staff support to be present”. The Council agreed to meet P and Mrs A to review the care package.
- Until January 2013, P had been receiving 60 nights respite care a year. This ceased when a decision was taken that other service-users were at risk when P was using the respite service and that he required a single-user respite facility. Mrs A reminded the meeting that P had not had any respite since January 2013 or day services since July 2012. The meeting discussed whether P could have respite at home which would enable Mrs A to have a break but maintain consistency of environment for P. The Council agreed to consider this.
- A further CPA/section117 meeting was called urgently for the beginning of October. The minutes of the previous CPA/s117 meeting held in August were sent out with the message, “Urgent mdt / 117 aftercare meeting arranged to include local authority representation (as not in attendance 16/8/2013) as review of cpa indicated current relapse is evident and there is a need for an urgent social care support review to be prioritised, to include options for respite care to be discussed, as (P’s) relapse noted in response to changes and inconsistencies in current support” written in red ink in capitals at the top.
- Mrs A complained to the Ombudsman about the way the Council had assessed the care which P needed.
- The Council told me that it was Mrs A’s decision to convert the provision of 1 carer at intervals through the day to 2 carers at each call. It says this is what led to the reduction in the hours of care available. The Council told me, “There is no evidence to support the need for both carers being present at every visit except for when carers are taking James out to social activities.”
- The Council also said there was no record of a conversation with a social worker about safeguarding investigation if Mrs A opposed cuts in P’s care.
- The Council subsequently explained that there was a difference between the assessment of P’s needs by the health Trust and by the social worker who assessed him. It said, “The decision to reduce the support was based on a professional social work judgement from observations and visits. 2 to 1 support has been factored into funding. The budget holder made the decision after considering the information provided in the assessment, which had been carried out by an experienced social worker and a senior practitioner.”
- In November the community nurse completed a further DST to see whether P was after all eligible for CHC funding. The outcome of the DST was that P is eligible for CHC funding which is now awaiting approval.
- The Council says that the health Trust is pursuing respite care again for P. It says there have not been any further proposals to arrange respite at home for him.
- The Council says that P’s overall care requirements are reviewed at the CPA meetings which social workers attend. The Council says it has asked that a plan which clearly shows P’s section 117 requirements for aftercare is drawn up at the next CPA meeting.
- There is a requirement for Councils and Health Trusts to complete jointly a section 117 aftercare plan. The plan should identify those services which someone needs to prevent a relapse in their condition and necessitate a return to an acute hospital setting. The Council cannot say it has complied with that requirement as there is no section 117 plan. It cannot provide evidence that it has met P’s needs under section 117 if those needs are not identified. That is fault on the part of the Council.
- There was ample evidence from other professionals available around the time of P’s assessment, and certainly before the budget was approved, that the proposed care package would not meet P’s needs. It was unfair of the Council to say that because Mrs A could not explain P’s needs for two carers, the social worker who carried out the assessment was unable to agree that, when P’s nurse had already made known her views about his needs. Within days of the care package beginning it was made clear that the care agency would not visit P alone because of the risk. It is not acceptable therefore for the Council to say that the reduction in the care hours available was the result of Mrs A’s decision to have two carers at every call. On the evidence available, it appears that the Council did not carry out a proper assessment of P’s needs taking into account all the information available to it. That is also fault on the part of the Council.
- In the light of the Council’s assessment that P did not need two carers in the home, it is difficult to understand how the Council could say in its response to Mrs A’s advocate that “The current package of care is being provided by two carers to meet (P’s) care needs and manage risks to his safety” as though this was a recommended part of the care package when it was clearly not.
- The Council was aware that P had not been able to access respite care since the start of 2013 but despite agreeing to pursue the option of respite care at home, it does not appear any further action was taken.
- The Council was mistaken when it said there was no record that a social worker had discussed safeguarding concerns with Mrs A when she opposed cuts to P’s care. The evidence is contained in the social worker’s diary records.
- The current position is that a decision is awaited about the funding of P’s care package. If the Trust decides not to fund P’s care through CHC funding, then Mrs A has a right of appeal (as indeed she has a right of appeal against the previous decision to withdraw funding). In the meantime, if that is the case, the Council should undertake a proper assessment of P’s needs taking into account all the available information and agree a package of care on that basis as soon as possible.
- The Council says it has already taken steps to identify P’s section 117 needs clearly. It should expedite that process.
- The Council should ensure that the provision of respite is progressed.
- The Council should apologise to Mrs A for the way in which it assessed P’s needs without taking into account all the available evidence and for the decision it took about funding on that basis. The Council should also apologise to Mrs A for the way it responded to her complaint. It has agreed to pay £500 each to Mrs A and to P to recognise the stress caused to Mrs A and the increased risk to P and effect on his daily living caused by the way in which it pursued its decision about his funding. It has also agreed to pay £250 to Mrs P to reflect her time and trouble in pursuing the complaint.
- The Council has agreed to the recommendations and therefore the investigation has been completed.
Investigator's decision on behalf of the Ombudsman