Case digest: Local Government Ombudsman cases

Complaint about home care services

North Tyneside Metropolitan Borough Council (03/C/04610) 2/11/2004

Mr Denning made a complaint on his own behalf and on behalf of his late uncle, Mr McCabe (their names have been changed to protect identity), that the Council failed to provide care services which Mr McCabe was assessed as needing on several occasions and that the Care Call service (alarm service) did not respond properly to calls on three separate days over a period of a month.

Mr McCabe was born in 1927 and lived in warden-assisted sheltered accommodation. In November 2000, Mr McCabe had major surgery for a carcinoma on the floor of his mouth. He had part of his mouth and neck removed, a peg feed inserted, and skin and bone grafts from his arm and stomach to his mouth.

He also required radiotherapy. Mr McCabe was deaf and the surgery meant that his speech was indistinct. He communicated mainly in writing.

Mr McCabe’s assessment said that he was mobile, could manage his personal care but was having difficulty with the peg feed and would require the district nurse’s support. He received home care services between one and a half and two hours a week for housework and laundry, and once a fortnight for shopping. From 28 May 2001, Mr McCabe began to receive two visits from home care per week, which ranged from one to two hours.

On 20 December 2001, the Council wrote to all its Home Care service users to say that it was experiencing considerable pressure on its resources. It said this was due to an increased demand for its services, financial constraints and difficulty recruiting staff. As the council needed to ensure a consistent service for those users with high-level needs, they decided to reduce the amount of resources available for domestic care and to increase its charges. The Council said that each service user would receive no more than one-and-a-half hours of domestic care a week. If the service was provided on a fortnightly basis, the client would receive no more than one-and-a-half hours of domestic care per fortnight.

As a result of these changes some clients received reduced services, but Mr McCabe did not. On 9 July 2002, the Council again wrote to its service users about the provision of domestic services. It said that from 22 July 2002, residents of sheltered housing would receive a maximum of one hour’s housework provision per week, or one-and-a-half hours if housework and laundry were required. Mr McCabe’s care services did not change.

On 13 September, the Council again wrote to its service users and said that due to the high level of demand it had to limit the amount of cover which was available if staff were ill or on leave. Personal care and shopping would be guaranteed but domestic services could not be guaranteed for the first two weeks of any absence. On a number of occasions Mr McCabe did not receive any home care services, and Mr Denning complained about this to the Council.

On 15 December 2001, Mr Denning discovered that his uncle had died and called the doctor for assistance. He then went to speak to the resident warden, who thought Mr Denning had contacted Care Call himself about the death and that there was nothing further she could do. The warden was unaware that whether or not the death was suspicious, if the death was sudden the police should have been called.

Mr Denning was left alone with his uncle’s body for four hours, constantly telephoning the doctor. When the doctor finally attended, he refused to sign a death certificate, as he was not Mr McCabe’s GP and left to inform the coroner. When this did not happen he called the police. It was not until over ten hours after his uncle’s death that the body was removed.

Finding:

· The investigation revealed that on a number of occasions in 2001 and 2002 there was a failure by the Council to provide home care services to Mr McCabe. The Ombudsman concluded that the failure at times to provide services would have caused difficulty for Mr McCabe. The injustice was compounded by a failure to deal properly with complaints about these matters. The Ombudsman recommended the Council to pay to the estate of Mr McCabe £100 for the failure to provide home care services on a number of occasions and a further £100 for its failure to deal properly with complaints about this;

· On three occasions Mr Denning complained that there was a delay in responding to his uncle’s alarm. The Ombudsman found that Mr Denning's evidence about events was not always reliable. He had from time to time exaggerated situations and had been personally offensive to staff. The Ombudsman found that the Care Call service had generally responded appropriately;

· Mr Denning had been caused an injustice by the Council’s failure to call the police when Mr Denning found his uncle dead on 15 December 2002, and the Ombudsman expressed great sympathy with Mr Denning who had had to remain alone with his uncle’s body for a prolonged period as a result. The Ombudsman recommended that the Council pay Mr Denning £200 for its failure to contact the police on 15 December 2002 when he found his uncle dead;

· The Ombudsman recommended that the Council confirm that it does not now and will not in the future reduce services it is providing to meet assessed need against established eligibility criteria because of a lack of resources. The Ombudsman’s report set out the legal background to this. A council is entitled to take resources into account when making strategic decisions about which groups of service users will be given priority for services. In the case of R v Gloucestershire County Council ex parte Barry [1997] AC584, the House of Lords decided that the correct interpretation of S.2(1) of the Chronically Sick and Disabled Persons Act 1970 allowed councils to have regard to their resources when deciding if it was necessary, in order to meet the needs of a person with disabilities, to make arrangements for the provision of welfare services. However, in more recent cases there has been a move away from that position. (R v Sefton MBC ex parte Help the Aged and others [1997] 4 AER 532; R V Birmingham CC ex parte Taj Mohammed [1998] 3 AER 788) R v Gloucestershire County Council ex parte Barry is limited to the facts of that case alone. It now appears that a council is not permitted to have regard to its resources in undertaking a statutory duty to meet an assessed need, as this would downgrade a duty to “a mere discretion” (R v East Sussex CC ex parte Tandy [1998] 2 AER 769);

· The Ombudsman recommended that the Council review the staffing levels of the mobile warden service to ensure that they are adequate.

Failure to put into place services because of resources

Bolton Metropolitan Borough Council (02/C/17068) 30/11/2004

Mrs Jefferson’s son Andrew Taylor, born in 1983 (not their real names for legal reasons), had epilepsy and Fragile X Syndrome and required ongoing support from the Council. Fragile X Syndrome is a genetic disorder and is the most common form of inherited learning disability. Approximately 15 per cent to 20 per cent of those with this syndrome exhibit autistic-type behaviours, with a dislike of eye contact, difficulty in relating to other people, anxiety in social situations and insistence on familiar routines. The Fragile X Society says (on its website) that a typical Fragile X boy is “inattentive, easily distracted, impulsive and over-active” and that “the most striking feature of Fragile X is the challenging behaviour that results from the affected person’s response to events that cause them to become anxious or frustrated”.

Mrs Jefferson complained to the Ombudsman that: (i) following a finding of the Mental Health Tribunal in February 2002 that her son (then aged 18) should be transferred out of the secure adult psychiatric ward to an appropriate placement as soon as possible, the Council failed for more than a year to provide a suitable placement; and (ii) the Council did not deal with her formal complaint made on 19 November 2002 in accordance with the time limits set out in the social services statutory complaints procedure. She claimed that the hospital had no facilities for patients with a learning disability, staff was not familiar with the needs of people with an autistic spectrum disorder, her son was constantly heavily sedated and his right to liberty under the Human Rights Act 1998 violated.

The investigation uncovered a catalogue of errors. The Council had failed to properly assess Mr Taylor’s needs in accordance with S.47 of the NHS and Community Care Act 1990, and it had failed to prepare him for return to the community from residential school. The Council had set up a special project to house Mr Taylor and three other young people, but had allowed insufficient lead time for its establishment so it was not ready when the school asked the Council to place Mr Taylor elsewhere. Within days of leaving school, Mr Taylor’s behaviour had deteriorated and he caused damage to the building’s central heating systems and electrical equipment, which had placed him and others at risk. The Police had been called on a number of occasions to assist staff in controlling him. Mr Taylor was sectioned under the Mental Health Act 1983. He remained in a locked adult psychiatric ward (which was totally unsuitable) for 18 months because the Council refused to fund a placement that would have met his needs in a home for Autistic individuals. Because it prioritised budgetary considerations over the legal requirement to meet Mr Taylor’s assessed needs, the Council wanted to place him in an establishment to which it knew his family were opposed, prolonging his detention in hospital.

In setting eligibility criteria for community care services, councils can take into account available resources. Following an assessment of an individual’s presenting needs the Council should decide whether the individual is eligible for help or not. Once an eligible need has been identified, councils must provide a service to meet that need and may not at that point take resources into account (R v Sefton Metropolitan Borough Council ex parte Help the Aged & Others). Councils may however, lawfully take into account available resources when deciding how to meet that assessed need (R v East Sussex County Council ex parte Tandy). Only when another manager became involved did the Council begin to work in partnership with Mr Taylor and his family, and the fact that Mr Taylor is now successfully placed in the community is due to her intervention and to the skill of the establishment to which he was then introduced.

The Council has acknowledged that it and other agencies made mistakes in dealing with Mr Taylor and it has assured the Ombudsman that it has made many changes in the way that services are now provided to people like Mr Taylor who have complex needs.

Finding:

The Ombudsman made a finding of maladministration causing injustice. The Council agreed to:

Pay Mrs Jefferson the sum of £10,000;
Pay Mrs Jefferson £20,000 to be administered by her for her son’s benefit;
Review its procedures for considering placements in the independent sector to ensure that a determination to keep costs to a minimum does not lead it to make unlawful decisions by failing to meet assessed need.

Case digest compiled by Caroline Bielanska TEP, solicitor, lecturer and independent consultant.