Leicester City Council (21 010 191)
Category : Adult care services > Assessment and care plan
Decision : Upheld
Decision date : 28 Mar 2023
The Ombudsman's final decision:
Summary: Mr G complained about the Council’s delay in telling a County Council it was responsible for his daughter’s aftercare needs. He also complained about a dispute between the two councils which meant his needs as a carer were not assessed. We found fault by the Council as it did not take responsibility for completing a carer’s assessment with Mr G. The Council has agreed to our recommendations and will apologise to Mr G, complete an assessment if necessary and remind its officers of good practice relating to requests for carer’s assessment.
The complaint
- The complainant, who I shall refer to as Mr G, complains Leicester City Council (the Council) wrongly assumed it was the responsible authority for his daughter’s aftercare provision when she was discharged from hospital in July 2020. He says the Council delayed by six months to realise its error before notifying the County Council which was responsible. He also complains a dispute between the Council and the County Council which led to a failure to assess his needs as his daughter’s carer.
- Mr G says the alleged faults caused him to experience increased carer’s strain and this impacted on him being able to work and socialise with family and friends.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
- We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered information provided by Mr G and the Council. I have also considered the law and guidance relevant to this complaint.
- All parties had an opportunity to respond to a draft of our decision.
What I found
Background
- Mr G’s adult daughter was released from hospital in July 2020 after being detained under the terms of the Mental Health Act 1983 (MHA). Mr G made a separate complaint about the hospital discharge process to the Ombudsmen.
- The Council said it received a request for a carer’s assessment via its web portal system in September 2020 from the County Council. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, a council must carry out a carer’s assessment.
- An officer from the Council’s Contact and Response Team contacted Mr G to follow up on the carer’s assessment. The Council said it needed more information about Mr G’s daughter’s care and support needs and medical history to come to a view.
- The Council’s officer visited Mr G and his daughter at home to discuss the prospect of engaging in enablement support and a potential care package (support with mealtimes). The officer made a referral to the Enablement Team following this visit. The Council also referred the case to its Mental Health Team as it considered this appropriate.
- The Council said it had meetings with Mr G, his daughter and her advocate in November where it discussed Mr G’s daughter’s potential entitlement to
section 117 aftercare. Section 117 imposes a duty on councils and the relevant NHS authority to provide or commission free aftercare services to patients who have been detained under certain sections of the MHA. - The Council learnt that Mr G’s daughter had been detained under the terms of the MHA, but it did not have a record of her hospital admission or hospital discharge. It said in December its Mental Health Team made enquiries of the County Council and established the County Council held responsibility for Mr G’s daughter’s section 117 aftercare provision.
- The Council said it handed the case to the County Council and provided it with a summary of its actions and involvement with Mr G and his daughter up until December 2020.
Mr G’s complaints to the Council
- Mr G initially complained to the Council in December and then followed up with a letter in February 2021 as he said the Council did not respond. Mr G’s complaint referred to what he felt was a breach of statutory duties by the Council and other authorities involved with his daughter. He also referred to section 117 responsibilities and his needs as a carer.
- The Council apologised for its delay in establishing the County Council was responsible for Mr G’s daughter’s section 117 aftercare needs. It said despite its delay it had arranged some support for Mr G’s daughter and this had provided him with carer respite.
- Mr G complained to the Council again in November 2021 about its involvement in his daughter’s care arrangements. He said the situation had caused him physical and mental stress because he had to provide his daughter with round the clock support.
- The Council responded to the complaint in the same month and explained about the way its Integrated Crisis Response Service worked as this team had been involved with Mr G’s daughter for a brief period. The Council confirmed the County Council was responsible for section 117 aftercare. It did not comment about what Mr G had said about his own needs as a carer.
Findings
- The Council accepts it took too long to determine it was not the responsible authority for Mr G’s daughter’s section 117 aftercare needs. The Council should have told the County Council sooner. It apologised to Mr G for this delay when responding to his complaint. In response to our enquiries it confirmed it has now updated its records to show who the responsible authority is in this case. Further investigation by the Ombudsmen on this part of the complaint is unlikely to achieve more.
- The other issues Mr G raised to the Council about section 117 also relate to other authorities who have responded separately to his complaints. The remaining issue to consider within this complaint is what Mr G says about his needs as a carer and which council is responsible.
- In response to our enquiries the Council said because the County Council has responsibility to meet Mr G’s daughter’s needs then the County Council should also be responsible for Mr G’s needs as a carer. The County Council told Mr G the Leicester City Council is responsible for meeting his needs as carer.
- There is no dispute about which council is responsible for section 117 aftercare provision. The County Council is responsible for Mr G’s daughter’s needs because it is likely she was ordinarily resident in its area immediately before she was detained. Therefore, any needs she has arising from her mental health for which she was detained should be met in line with section 117 of the MHA.
- What constitutes aftercare is not defined in the MHA. Section 117 aftercare is about providing services to the person who is the discharged patient in connection with their mental health illness for which they were detained. Mr G was not discharged from hospital himself or detained under the MHA therefore his needs should be considered in line with the Care Act 2014 (the Care Act).
- Section 10 of the Care Act summarises that where it appears to a council that a carer may have needs for support (whether currently or in the future), the council must undertake a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
- Section 13(1) of the Care Act summarises that where a council is satisfied on the basis of a carer’s assessment a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria.
- Section 20(1) of the Care Act summaries that after making a determination under section 13(1), a council must meet a carer’s needs for support which meet the eligibility criteria if (among other things) the adult needing care is ordinarily resident in the council’s area.
- Under the Care Act the test for ordinary residence, which determines which council would be responsible for meeting needs, applies differently in relation to adults with needs for care and support and carers. For carers, the responsible local authority will be the one where the adult for whom they care is ordinarily resident.
- Both Mr G and his daughter have been ordinarily resident in the Council’s area since her discharge from hospital. She has needs for care and support which should be met by the County Council because of the provisions set out in the MHA.
- On balance, any eligible needs Mr G has as a carer should be met by the Council in line with the Care Act rather than by the County Council’s responsibilities under the MHA.
- I have not seen evidence to show the Council assessed Mr G’s needs as a carer. I have not seen evidence to show the Council attempted to work jointly with the County Council who was responsible for assessing his daughter’s needs to ensure an integrated approach. This is fault.
- It is likely that the failure of the Council to accept it was responsible for assessing Mr G’s carer’s needs caused him frustration and avoidable distress. I cannot say, on balance, whether the Council would have provided Mr G with any services as we do not know whether he has eligible needs which should be met. This is because of the lack of assessment.
Agreed action
- Within one month of our final decision the Council will:
- write to Mr G and apologise to him for the frustration and avoidable distress he is likely to have experienced because of fault by the Council;
- contact Mr G to determine whether he would like it to assess his needs. If Mr G would like an assessment the Council should start this within four weeks or as agreed with Mr G if later;
- consider any remaining injustice which may have been caused to Mr G if it assesses he has eligible needs and remedy this as it considers appropriate; and
- pay Mr G a symbolic payment of £250 to acknowledge the injustice caused.
- Within two months of our final decision the Council will remind its officers dealing with adult social care cases of the importance of completing carer’s assessment when a request is made and when a person who is ordinarily resident in its area may have need for care and support. This should be considered even if another council is meeting the cared for person’s needs for reasons other than Care Act eligibility, for example, under the terms of
section 117 of the MHA. - The Council should provide us with evidence it has complied with the above actions.
Final decision
- I have found fault causing injustice and uphold Mr G’s complaint. The Council has agreed with our recommendations, and this provides a suitable remedy for the injustice caused. I have completed the investigation.
Investigator's decision on behalf of the Ombudsman