Guidance on remedies
Subject specific guidance - Adult Social Care
Note: the casework examples here are included as representative of our expected approach. Each may include elements drawn from several individual cases. We have deliberately not referred to specific symbolic or other financial payments as these depend on the circumstances of each case.
Assessment of need
Introduction
Care act assessments are crucial in determining what needs an individual and/or their carer has and whether the council has to provide services to meet those needs. Faults could affect whether someone gets a service they are entitled to or mean their needs are overlooked.
Failing to meet the needs of people leaving hospital after being detailed under the Mental Health Act 1983 could mean people not having their social care needs, or needs to prevent readmission, met after discharge.
Corrective action
- Carry out a fresh assessment of need, or review the previous assessment.
- This could be by an independent social worker where poor practice by the council has caused a breakdown of trust.
Quantifiable financial loss
- Without an assessment it is not usually possible to determine (even on balance of probabilities) what care someone should have received, but for fault.
- Therefore our usual approach will be to recommend prompt assessment (as above) and consider a symbolic payment (see below).
- In some circumstances, for example where an assessment was delayed but eventually carried out, it may be possible to remedy through loss of provision.
Symbolic payments
- For distress – for example where repeated requests for assessment not met.
- Outrage (to be used where there is little or no personal injustice (see general guidance above) or distress (to be used where there is significant personal injustice) caused by council’s failure to consider any impact on the person’s Human Rights.
Remedy examples
The council’s approach was not person centred or reflective of Mr Y’s strengths. It also took too long to assess his carer’s needs and did not develop a support plan for the carer as it should. This caused Mrs Z to miss out on work and had a negative impact on her health and wellbeing.
Remedies included:
- an apology, make payments for loss of service and symbolic payments for distress.
- ensure assessors and managers are properly trained and understand how people with autism can access trained assessors, and advocacy when needed.
Care and support plans and provision of care
Introduction
After an assessment of need and eligibility, if an individual is eligible to receive services from the council, it must provide that individual with a care and support plan to show how their needs will be met. Effective care planning is essential in ensuring that individuals have their needs met. It is also essential that care providers follow those plans. The Care and Support Statutory Guidance (October 2014) contains extensive guidance on care and support planning and what such plans should contain. Councils also have duties in partnership with the NHS to provide mental health aftercare - under section 117 of the 1983 Mental health Act.
Care providers
There are some overlaps with the other adult social care sections, particularly safeguarding. And there will be times when a complaint about a provider is registered against the council, because the council (rather than the service user) has commissioned the care.
Care providers have a duty to provide quality care in line with regulatory standards, and to provide clear information to those paying for care about the services they are buying, the charges that will be made, and how often charges will be reviewed.
Corrective action
- Review or amend care plans, to reflect the individual’s needs and explain in detail how those needs will be met.
- Put in place arrangements to provide care where it has broken down, as part of any review.
- Review of care provider’s understanding of how care plans should be implemented and reviewed.
- Reinstate council-provided services if withdrawn inappropriately.
Quantifiable financial loss
- Reimburse/waive care fees if the quality of care fell to an unacceptable standard or if part of a service was not provided as agreed - with a calculation of interest where appropriate. Depending on circumstances we may need to consider that some fees went towards residential care or other care that was satisfactorily received.
- There may also be injustice to those who have had to ‘step in’ to provide unpaid care and have lost earnings or used up holiday to do so.
Symbolic payments
- Distress caused by delay and the uncertainty caused by it meaning that complainant feels they lost out on more/appropriate care.
- Distress caused by a quality issue or one-off incident which was not sufficient to warrant reimbursement or waiver.
- Payments to family members/friends who provided care during any periods of
delay/insufficient care provision. This would be in very limited circumstances – for example outside of the existing unpaid care that carers give to their family and friends. - Outrage (to be used where there is little or no personal injustice (see general guidance above) or distress (to be used where there is significant personal injustice) caused by council’s failure to consider any impact on someone’s Human Rights.
Service improvement
- Remind officers about the importance of sharing and completing care and support planning documentation properly and in line with best practice as set out in statutory guidance.
- Remind officers of the need to reassess care plans when circumstances have changed.
- Consider whether any refresher training on the care and support planning process is needed for its officers.
- New procedures put in place to ensure care plan review requests are correctly monitored.
- Council to provide guidance to private care providers regarding how to respond to changing care needs, how to initiate reviews of care plans and all steps up to ending a care contract.
- Council to review monitoring arrangements regarding services commissioned by other providers on its behalf.
Contextual circumstances
Often relatives link an incident of failure in care to the subsequent death of, or other serious harm to, the service user. We cannot usually conclude that such a link exists. But we may consider the distress arising from uncertainty to be an injustice which can be acknowledged by a symbolic payment.
If there has been a breach of the fundamental standards of care that we think needs to be highlighted more widely, we will normally send a copy of our final decision to the regulatory body, the Care Quality Commission.
Remedy examples
We found the care provider failed to produce adequate care plans or offer care that met Mr Y’s needs. This caused him distress and uncertainty. It also failed to properly consider whether to contact Miss Y about Mr Y’s decision to refuse certain care.
- Apologise to Mr Y and Miss Y and pay symbolic financial remedy.
- remind all staff they must offer the care set out in the care plan, and record doing so.
We found the care provider was not at fault for care provided or decisions about not allowing her to return from hospital but it was at fault in the way it kept records of care and communicated with the family about the situation. It failed to keep food and fluid charts and failed to keep the family informed about important medical matters.
Remedies included:
- An apology to Mrs X and Mrs Y.
- ensure staff are made aware of importance of keeping accurate records including updated care plans.
- ensure care plans are updated and reflect changes detailed by reviews.
- ensure family and other representatives are kept updated.
Remedies included:
- apologise to Mr X and pay a symbolic remedy.
- review communication to ensure people are given clear offers and explanations for any refusal in writing.
- review the complaints procedure to ensure it gives full responses that explain reasons.
- review self-medication policy to ensure it reflects relevant national (NICE) guidelines.
We found care workers did not use equipment properly or in line with the care provider’s policy. They had not correctly managed the wound to prevent the possibility of future injury. The provider failed to inform Mrs X’s family what had happened.
Remedies included:
- apologise to the family and make a symbolic payment.
- remind staff to appropriately follow care procedures for managing wounds.
We found the care provider failed to recognise and respond to Mr Y’s worsening health. It made clinical errors. It also failed to share important information about Mr Y with the family or record staff actions in response to his withdrawal from public areas. There were gaps in care records with days left blank and incomplete information. Mr Y had died so we could not remedy injustice to him.
Remedies included:
- apologies to the family and symbolic payments for distress caused to them by the poor care.
- review its complaint policy to improve practice with situations of deteriorating patient health.
- improve record keeping, needs assessments and communication about people with whom they have concerns.
We found fault with the council. It failed to take action sooner to establish whether the care plan was properly meeting Mrs Y’s needs. As Mrs Y died, we could only consider the impact the fault had on her daughter.
Remedies included:
- apologise to Mrs X and offer her a symbolic payment to recognise the distress caused.
- remind staff of the importance of reviewing care plans in line with the Care Act 2014, particularly when someone’s needs are changing rapidly.
Charging
Introduction
Councils must assess how much someone should pay towards the cost of services. Individuals can be caused distress if not properly advised on the requirement to make a financial contribution towards care, or if decisions are poorly communicated.
Mistakes by councils during financial assessment can cause financial loss to individuals and, sometimes, their families.
Failing to meet duties for people leaving hospital after discharge under the Mental Health Act 1983 (MHA) can mean they are wrongly charged for aftercare services.
Corrective action
- Reassess financial contributions due, backdating the assessment where appropriate. This may mean seeking independent advice if the disputed issue is complex.
- Writing off outstanding charges where an invoice arises from fault.
- Place a hold on recovery of disputed sums to enable the dispute to be resolved.
Service improvements
- Staff training if identified systemic issue in understanding (e.g. MHA discharge).
- Improved guidance on giving clear information about the need to make a financial contribution towards care.
Remedy examples
We found the care provider gave no accurate idea about what fees to expect. It failed to send written information about fees, and significantly delayed sending a contract.
Remedies included:
- already offering to cancel significant amount of outstanding fees.
- remind staff to respond to correspondence promptly, especially when this relates to care fees and invoices.
Remedies included:
- immediately stop charging Ms M for her care and support and reimburse the money Ms M had paid towards her care.
- ensure staff are aware of the law and guidance which applies to people who are eligible for free care and support under the Mental Health Act.
Mental capacity
Introduction
Complaints can arise where it is not clear if an individual has capacity to make decisions about their care.
Councils must follow the law set out in the Mental Capacity Act 2005 (MCA) to decide if individuals can make choices about their care and may need to carry out an assessment of capacity if there is doubt. They should only intervene where individuals are assessed as lacking capacity and a decision needs to be made in their ‘best interests’.
Restrictions placed on people because they lack capacity may need to be considered against ‘Deprivation of Liberty’ (DoLS) safeguards. Failure to follow the law in this area may lead to people being wrongly denied choice about their care or denied basic freedoms. It can also lead to individuals who do not have capacity being left in potentially unsuitable or vulnerable situations, causing distress both to them and to their family members. Capacity is decision specific, can vary over time and an assessment may become outdated.
Corrective action
- Carry out a fresh assessment of capacity; this could include the involvement of an Independent Mental Capacity Advocate to help inform the council’s decision making.
- Consult the complainant’s family as part of a ‘best interest’ decision-making process (it may also be appropriate to consider whether some disputes about relatives’ best interests can be resolved through the Court of Protection (CoP)).
- Carry out a fresh assessment of need, once capacity is established.
- Take action to address potential deprivation of liberty through consideration of the ‘Deprivation of Liberty’ safeguards.
Quantifiable loss
- Possible legal fees where there is a causal link to the council’s actions.
Symbolic payments
- To reflect distress of the individual and family members, lost opportunity (unable to go to Court of Protection), frustration, a sense that best interests not met, or liberty deprived and/or whether theleast restrictive option was taken.
- Failure to apply a personal condition and/ir legal safeguards and the sense a complainant may have been deprived of liberty/impact on human rights.
Service improvement
- Training for council officers/care home workers on the MCA, completing/recording MCA decisions.
- Senior officer review of DoLS procedures.
- Develop Action Plan to address DoLS backlog and develop monitoring systems.
- Review and/or issue staff guidance.
Context – aggravating and mitigating factors
Others may also have been affected if a wrongly made decision meant they were not able to visit the complainant. There may also be injustice to those who have had to ‘step in’ temporarily and have lost earnings or used up holiday to do so.
Remedy examples
The council renewed Mr Y’s DoLS authorisation. The DoLS authorisation had conditions which said the care home must consider less restrictive ways of meeting Mr Y’s needs.
We found the council was at fault as it did not follow the correct DoLS process. It should have renewed Mr Y’s DoLS application before it was due to expire. However, we noted the view of the mental health professionals involved in Mr Y’s care was that Mr Y would likely have not been adversely affected by this.
We decided that despite it being unlikely Mr Y’s mental health had been affected, the council missed an opportunity to see if it could provide Mr Y with care in less restrictive ways. So, there was avoidable uncertainty for Ms X about whether changes to the care plan might have taken place sooner had the renewal authorisation been completed at the correct time.
Remedies included:
- Apologise to Mr Y's mother and pay her a symbolic sum to recognise the uncertainty and distress faults had on her.
- review its policy to prevent a recurrence of fault. This is to ensure DoLS are renewed without delay, ensure care plans are kept under review and make sure it promotes least restrictive options of care.
The council decided Mr X’s needs would be best met in a care home with 24-hour supervision. Mrs Y and Mr Z wanted their father to return to his own home. We found the council was at fault because it did not assess Mr X’s mental capacity to establish whether he could make decisions about his care.
Although we could not know what the outcome of the mental capacity assessment would have been but for the fault, the lack of formal assessment caused Mr X and his children distress. Since Mr X died, we could only recommend a remedy to his children.
Remedies included:
- apologise to Mrs Y and Mr Z and pay them a symbolic sum each in recognition of their avoidable distress caused by the flaws in assessing Mr X’s needs and mental capacity.
- review staff training in relation to the Mental Capacity Act to ensure its decisions properly consider the type of decision the person is being asked to make.
Personalisation and direct payments
Introduction
Personalisation is a social care approach to ensure that every person who receives support will have some choice and control over how their assessed eligible needs will be met.
Individuals can be disadvantaged if councils do not have proper systems in place to support personalisation. They can lose choice and control over how they want services to be delivered.
Direct payments can also cause confusion and misunderstanding about the council’s role if the process is not clearly explained. Direct payments place obligations on the individual which can be the cause of dispute if not properly understood.
Corrective action
- Reinstate council-provided services if withdrawn inappropriately.
- Reinstate direct payments if withdrawn inappropriately.
- Initiate direct payments if there has been a delay in arranging them.
- Provide clear information about the responsibilities of the complainant as an employer.
- Cancel arrears or offer a manageable payment plan by instalments where arrears have occurred.
Quantifiable financial loss
- Reimburse money used by the complainant, other persons affected or their family to pay for care services which should have been covered by direct payments.
Symbolic payments
- Although direct payments are a monetary benefit, they are allocated to fund specified care services. A recommendation for a payment to acknowledge the disruption, inconvenience and distress caused by not having the care services may be appropriate.
- There may also be injustice to those who have had to ‘step in’ temporarily to provide unpaid care.
Context – aggravating and mitigating factors
- Where the complainant or other persons affected has encountered difficulties managing their direct payments and the council failed to carry out reviews that would have identified this. Agree a manageable payment plan by instalments where arrears have occurred. This may affect whether we would expect the complainant or other persons affected to repay all of the overspend.
- A council may have offered to arrange a care package while a dispute about direct payments was being resolved. This may reduce the injustice to them and in turn the remedy.
Remedy examples
Remedies included:
- apologise for the distress the matter caused and make a symbolic payment to recognise this.
- agree to a reasonable payment plan with Ms P to repay the debt.
Adult safeguarding
Introduction
By law, councils must have procedures in place and co-operate with other agencies (such as the NHS and police) to investigate allegations of abuse against vulnerable adults. Local authority social services departments have the lead responsibility for safeguarding.
A failure to have robust procedures in place could result in action not being taken to safeguard a vulnerable adult and others who may also be affected. Poor communications can also cause unnecessary distress and uncertainty both for individuals alleging abuse and alleged perpetrators.
Corrective action
- Start or review a safeguarding enquiry where there has been procedural fault in the initial enquiry.
- Put statements on file where alleged perpetrators may not have had the opportunity to put their version of events to the council.
- Confirm the final outcome, where a flawed or delayed enquiry has led to loss of reputation affecting the complainant, and the new finding exonerates the complainant.
Quantifiable loss
Full or partial reimbursement of care home/domiciliary care fees when a safeguarding enquiry finds specific areas of poor care.
Symbolic payments
A payment could be made to acknowledge harm, risk of harm or uncertainty as a result of a safeguarding enquiry that was affected by fault or a failure to carry out a safeguarding enquiry.
Service improvement
Often a safeguarding enquiry has taken place due to an alleged failure in service provision. For example, when someone has received poor care in a residential setting. It may also bring in other subject areas such as mental capacity and care assessments. It is important to consider making a service improvement remedy to address the fault in service provision as well as any shortcomings in the safeguarding procedures.
Context – aggravating and mitigating factors
- The severity and duration of any abuse/harm suffered.
- Whether there were missed opportunities for preventing abuse sooner.
- If risk assessments have not been carried out or followed.
- The vulnerability of the person who was subject of the abuse.
- The severity of impact on an alleged perpetrator, for example loss of reputation, business, employment. There must be a direct link between the fault and this injustice.
Remedy examples
We found the council was at fault. Staff at the care home were not adequately trained in food and nutrition and continence care. On the balance of probabilities, it was likely to have caused significant and avoidable harm to Mrs Y. The council’s safeguarding investigation put actions in place for the care provider to make service improvements. There was however further fault as the council delayed starting its safeguarding investigation by several weeks after it became aware of the matter. The faults we identified caused Mrs Y and her family significant distress. As Mrs Y died, we could not provide a remedy for her.
Remedies included:
- apologise to Mr X and the family and reimburse them with a percentage of the care fees Mrs Y had paid.
- ensure the Care Provider made service improvements in line with its action plan.
- refer the case to the Safeguarding Board to ensure lessons are learned to prevent a recurrence of fault.
- apologise to Mr C and pay him a symbolic payment to recognise the distress and uncertainty it caused.
- share any lessons learned with its safeguarding team.