The Coronavirus Act 2020

Updated 4 April 2020

This briefing considers:

1. The main provisions of the Act – this section briefly describes these as they apply to social care in England and Wales;

2. Considers the key values and principles [and a short ‘rant] – values and principles that will guide the way that social services department’s must act in the coming months; and

3. Practical action where problems arise – ie the steps that elderly, ill and disabled people, and families may be able to take if their eligible care and support needs are not being met appropriately.

 

1. The main provisions of the Act ~ brief overview

The Coronavirus Act 2020 – received Royal Assent on the 25th March 2020 and the text of the Act can be downloaded by clicking here.

The Act is the most draconian legislation enacted since the Second World War and provides the Governments in the UK four nations with powers to suspend / dilute a whole raft of legislative duties – not least in relation to health, social care, social security and education.  It also provides power to suspend all relevant regulations (section 88).

This briefing is concerned with the legal position in England and Wales in relation to the social care and education provisions.  The Act can be accessed by clicking here and the Explanatory Notes to the Act will be published shortly.  At the time of preparing this briefing the notes to the Act were unavailable, and accordingly references are made to the Explanatory Notes to the Bill which can be accessed by clicking here.  It is a long Act with 347 pages including 29 Schedules.

 

Implementation / expiry dates

The Explanatory Notes to the Bill (at para 6) made clear that this is only one part of the legislative response to the threat posed by the virus and that:

These are extraordinary measures that do not apply in normal circumstances. For this reason, the legislation will be time-limited for two years and it is neither necessary nor appropriate for all of these measures come into force immediately.

 

The Act is scheduled to expire on the 24th March 2022 (ie two years from its commencement- section 89.  This can be extended of brought forward (section 90).  Every six months Parliament must agree to the extension of the temporary provisions of the Act and if this does not occur, these will come to an end at that point (section 98).

The key social care provisions (reducing the duties to provide social care under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014) have now been brought into effect.  In Wales this was triggered by the The Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020.

The Impact Assessment for the Coronavirus Bill produced by the Department of Health and Social Care explains (among other things) the English Government’s reasons (its ‘justification’) for the measures.  The document can be accessed by clicking here – and it explains the circumstances when the powers would be brought into effect.  Key extracts from this document are detailed below.  The Welsh Government has not provided a similar document although it has published a descriptive  Coronavirus: Bill Summary – which can be accessed by clicking here. The English Impact assessment states:

95. These changes to the Care Act 2014 would only be triggered if the spread of coronavirus was such that the Secretary of State considered LAs to be at imminent risk of failing to fulfil their duties under the Care Act 2014 and would be deactivated at the conclusion of the emergency period. Even during the operation of these changes, LAs would still be expected to continue meeting all of their duties under the Act if they are able to do so. …

96. However, during the peak, adult social care services will face surging demand and reduced capacity arising from higher rates of staff absence. This may make it impossible for LAs to continue to deliver at current service levels, or undertake the detailed assessments they would usually provide. ….

97. In such circumstances it is crucial that LAs should be able to prioritise care in order to protect life and reach rapid decisions over the provision of care without undertaking full Care Act compliant assessments.

98. These provisions, which would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak. Without these provisions, LAs would be constrained by existing assessments, which could result in them maintaining these at the expense of new, more urgent needs, or prevent them from allocating scarce support purely on the basis of severity of need. Such decisions could be inhibited by the fear of legal challenge under the Care Act

99. These provisions would also provide Secretary of State with a power to direct LAs to comply with Government guidance regarding the principles they should follow when prioritising care.

 

The key elements of the 2020 Act

What follows is a brief overview guide to the relevant provisions of the Act.  This briefing is more concerned about what practical action individuals can take where they consider that a local authority or NHS body is failing to provide the necessary support – considered further at part 3 below.

A number of experts have provided detailed commentaries on the Act – and for the wicked detail – see for example:

  1. Stephen Knafler / Landmark Chambers ~ to access the commentary click here.
  2. 11 Kings Bench Walk Chambers ~ to access the commentary click here.
  3. Belinda Schwehr of CASCAIDr ~ to access the commentary click here.
  4. Phillip Mitchell of BASW Cymru ~ to access the commentary click here.

 

Social Care

Section 75 and schedule 12 Part 1 of the Act enables the English and Welsh Governments to downgrade almost all adult social care duties (including charging and hospital discharge duties).  The Explanatory Notes to the Bill (at para 175) explain, the various duties to assess and meet eligible needs of adults and carers in the Care Act 2014 and adults, young people and carers in the Social Services and Well-being (Wales) Act 2014 (SSWWA) are downgraded to powers.

A duty to meet needs will only arise in England if a failure to provide care and / or support would be a ‘breach of an individual’s human rights’. In Wales a duty only arises where a failure to do so would mean that the individual may be experiencing or at risk of abuse or neglect.

 

As this provision has now been brought into effect in England and Wales – it will be difficult to legally challenge a local authority failure to provide appropriate care and support.  Difficult in Wales and very difficult in England. In both nations aggrieved individuals may well be advised to first approach the Secretary of State for Health and Social Care (England) and the Welsh Ministers (Wales) asking that they direct the offending local authority to act in a specific way – using their powers under Schedule 12 paras 18 and 35 respectively of the 2020 Act

 

England

The ‘breach of human rights’ limitation already applies to some people subject to immigration control and has been interpreted harshly by courts.[1]  In relation to English citizens, R (Bernard) v Enfield LBC[2] is one of the few significant social care case where a human rights violation was found.  This concerned a council’s failure to act to move a wheelchair-dependent claimant to suitable accommodation left her (among other things) unable to access the kitchen or bathroom and forced to defecate or urinate on the floor several times a day.

It will however be relevant in claims of this kind to remind local authorities of the judgment in Price v UK[3] where Judge Greve held that:

In a civilised country like the United Kingdom, society considers it not only appropriate but a basic humane concern to try to improve and compensate for the disabilities faced by a person in the applicant’s situation. In my opinion, these compensatory measures come to form part of the disabled person’s physical integrity.

 

Wales

Welsh authorities would appear to be under a greater duty to provide care and support – as the duty is triggered ‘where a failure to do so would mean that the individual may be experiencing or at risk of abuse or neglect’.  In consequence, the 2020 Act – in effect – makes the base-line duty to assess and provide support for all people in need who are deemed to be at risk of abuse or neglect – see Social Services and Well-being (Wales) Act 2014 section 32(1)(b).  The Act provides a wide definition of abuse and neglect at section 197 –  for discussion of safeguarding responsibilities in Wales click here for the relevant Rhydian Social Welfare Law in Wales pages.

Schedule 12 para 35 does, however, provide for the current Codes to be disapplied and for local authorities to comply with new guidance as directed by Welsh Ministers. As at 4th April 2020, however, no revised Codes have been issued by the Welsh Government.

 

Registering new social workers

Schedule 5 contains emergency (temporary) modifications of social work registers[4] in England and Wales to enable extra social workers to be employed – these are essentially people who the regulator considers to be fit, proper and suitably experienced person to be registered as a social worker with regard to the emergency – see Schedule 5 para 1(3) and para 2(2).

 

NHS Continuing Healthcare duties – England only

Section 14 of the Act, is explained by paras 172 – 173 of the Explanatory Notes: namely that (if this provision is brought into effect) it applies to ‘the procedure for discharge from an acute hospital setting for those with a social care need’ and that it allows NHS providers to delay undertaking the NHS Continuing Healthcare assessments – and that ‘pending that assessment, the patient will continue to receive NHS care’.

 

Education

Schedule 17 of the Act provides the Secretary of State / the Welsh Ministers with powers to issue directions suspending school provision and attendance duties and downgrades local authority education law duties (including those relating to the provision of Special Education Needs) to obligations ‘to use reasonable endeavours to discharge’ the duty.

 

Mental Health detention

If this provision is brought into effect, schedule 8 Part 2 of the Act provides that an application by an approved mental health professional under the Mental Health Act 1983 sections 2 or 3 need only be founded on the recommendation by a single registered medical practitioner.

It also provides for time limits to be extended: for doctors and nurses to detain patients already in hospital pending assessment to 120 and 12 hours respectively; for police to detain a person in a place of safety for 36 hours.

 

Government guidance

English Government guidance concerning coronavirus implications for residential care, supported living and home care support can be accessed by clicking here.  SCIE (the Social Care Institute for Excellence) has a general webpage with updated information concerning coronavirus related social care developments – accessible by clicking here.

 

2. Values and Principles

The Department of Health and Social Care has published important Framework Guidance for adult social care – although this must clearly also apply to disabled children’s services too.   The Guidance Responding to COVID-19: the ethical framework for adult social care (19 March 2020) can be accessed by clicking here.

The guidance makes the usual interdisciplinary noises ‘collaboration across disciplines and organisations’ and the need for person centred approaches ‘every decision will require consideration of individual wellbeing’ However it then does something unusual and very welcome it states:

Social workers, occupational therapists and nurses form the core professional group and have clear responsibilities and accountabilities to their own professional codes and guidelines.

 

If this heralds a fundamental ‘turn away’ from attacking the professions and true recognition that the target driven ‘command and control’ culture that has decimated social work (and many other professions) is no longer appropriate – then this is a major development – even if it is a temporary ‘conversion’.  There has been an accelerating emergency in social care for the last 25 years: decades of dysfunctional, ‘social care ignorant’ centralised power – intent on commodifying, privatising, cutting and dishing social work as a profession.  If, in this hour crisis, there is at last recognition that the administrativisation has failed – failed absolutely – then that is something we should all be thankful for. [Rant over!].

The corollary of this point is important – that in this emergency social care decisions should not only be compliant with the law, they should also go with the grain of professional codes and guidelines.  Where adverse social care decisions are challenged (by those in need as well as by social workers) – the reference points will be these twin principles (law and professional practice) rather than the primacy of arbitrary (and narrow) budgets, performance indicators and rigid internal rule books. 

Apart from the recognition of the importance of professional codes and practices, the COVID-19 ethical framework lists eight principles – one of which warrants especial mention (and is discussed further below).  

For each of the eight principles, the Framework provides a brief note explaining what important issues it covers.  In the list below, I have included a few extracts from these ‘notes’: notes that struck me as particularly relevant.

1. Respect

2. Reasonableness

  • ensuring that decisions are rational, fair, practical …. .
  • ensure the decision made is practical with a reasonable chance of working
  • consider alternative options and ways of thinking, being conscious of diverse views from cultures and communities

3. Minimising harm

4. Inclusiveness

  • involve people in aspects of planning that affect them, their care and treatment, and their communities
  • involve families and carers in aspects of planning that affect them and the individual who they care for

5. Accountability

  • adhering to official guidance, statutory duties, and professional regulations at the time
  • being transparent about how and which decisions need to be made and on what basis

6. Flexibility

7. Proportionality

8. Community

  • a commitment to get through the outbreak together by supporting one another and strengthening our communities to the best of our ability … .

 

Flexibility

All of the above values are important and referencing them should be helpful when challenging adverse social care decisions.  In relation to the cases I have been asked to consider – cases that have arisen since the emergency started – I have been struck by the importance of social services demonstrating flexibility.  The reason for suggesting the importance of this principle is discussed in the section that follows ‘Practical action where problems arise’.

This principle is defined as ‘being responsive, able, and willing to adapt when faced with changed or new circumstances’.  The Framework then states that in order to ‘ensure flexibility, those making decisions should be prepared to’:

  • respond and adapt to changes as and when they occur, for example in the event of new information arising or changed levels of demand
  • ensure that plans and policy have room for flexibility and innovation where necessary
  • provide people with as much opportunity as possible to challenge decisions that affect them in the time that is available
  • ensure that the health and care workforce is supported to work collaboratively across disciplines and organisations, as agile and resilient as possible
  • review organisational practices, standard approaches and contractual arrangements that may obstruct these ambitions

 

Wales

There is no corresponding COVID19- ethical framework for Wales. At a time when the professions that are key to social care provision are being asked to respond to an emergency of this magnitude, an unequivocal statement that mirrors the statement of the English guidance (extract below) is essential to provide confidence to people who receive social care in Wales and restore the value and recognition of the professions:

Social workers, occupational therapists and nurses form the core professional group and have clear responsibilities and accountabilities to their own professional codes and guidelines

 

3. Practical action where problems arise

Some lawyers may get highly energised about the possible suspension of the duties under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014.  In reality, however, these were suspended long ago – if indeed they ever came into force.  For most carers as well as elderly, ill and disabled people, the promises in these Acts were erased by the austerity pandemic.  The savage cuts to legal aid, to advice agencies and the ombudsmen have meant that the letter of the law has been meaningless for most people in need – with the possible exception of those who have a sister who is a barrister.

Most people in need have had to use other (non-legal) mechanisms to challenge adverse decisions concerning their care and support needs.   Challenges that often rely on the decency and courage of those working in social services departments to ‘do the right thing’. Very often this will involve challenging an arbitrary, stupid and self-defeating local policy: a policy developed by a senior technocrat who claimed to have the answers – but was in fact part of the problem.

This approach – ie relying on the decency and courage of those working in social services departments – will continue to be the way that most decisions are challenged.  In this (not so new) climate – we at least have the benefit of the Responding to COVID-19: the ethical framework for adult social care guidance and its emphasis on professional codes and professional judgment.

Here are two problems that we have encountered since the emergency – both difficult.  I include my initial thoughts on what can be done – but we would welcome additional suggestions as to how these (and other) problems can be addressed.

 

Problem 1 ~ withdrawing a ‘child’ from a placement due to COVID-19 fears

A family has made the decision to remove their son/daughter (including an adult son/daughter) from their residential school/supported living/registered care home because they fear that the service will not be able to keep them safe during the COVID-19 pandemic.  What are their rights to have some support in the family home to assist them?

Thoughts on this problem

Of course the rights are no different today (27 March 2020) as the powers in the 2020 Act have not been triggered by the Ministers in England or Wales: the same rights to support and the same rights of carers to be assessed and supported.   Councils will have to accept the change in circumstances and reassess.

In this situation, councils must be able to demonstrate that they are being ‘flexible’ – and it would be unreasonable for a council to stick to a rigid line of saying that the need can be met by providing the (previous) ‘residential’ service and that the family have effectively rejected this offer.  It would also be unreasonable for a council to state that it can’t provide support in their home. Obviously making alternative provision is going to be difficult – but legally – in cases like this there is no such word as ‘can’t’: for further analysis of this issue see click here.

On the face of it, it is not unreasonable for a family to act in this way – given the likelihood that the lock down will become more severe, and the possibility that many residential placements may close and care support workers / teachers may fall ill and the fact that the Care Quality Commission has now suspended all routine care home inspections.

Families must however appreciate that the courts and ombudsman will have some sympathy for councils as the try to cope with the challenges of the current emergency.[5]  This is a reality that families will need to bear in mind.

In ideal situations, families will be able to show that what they are asking for is reasonable and ideally be able to suggest some way that the support shortfall could be addressed – ie by pointing to potential substitute carers / support arrangements that could be put in place (including family members being paid using direct payments).

Just as families will have to show that they are being reasonable so too must councils demonstrate that they being flexible and abandoning their rigid ‘command and control’ rules.   Just as the new Act enables social services to register people as ‘social workers’ – who would not previously have been eligible to be registered – so too must local authorities be flexible over who is paid using a direct payment.  Councils have very considerable powers to allow family members (even those living in the same household) to be paid for their caring role via a direct payment.  At times such as this – they must demonstrate a flexibility when (if) a family suggest this as a way that a person’s care and support needs could be met.

 

Problem 2 ~ Direct payments

Disabled people / families who have been assessed as needing day care support are finding it increasingly difficult to secure this support via a direct payment due to an increasing and severe shortage of care agencies / care workers who have provided this support in the past.  Can the council then state that it will be stopping the direct payment and / or reclaim the amount that has not been used to this ‘supply side’ problem?

Thoughts on this problem

As general rule, councils can reclaim unused direct payments – but they must be able to demonstrate that they are acting reasonably and flexibly.  They must also be able to demonstrate that the care plan they developed has a ‘Plan B’ to ensure continuity of support if things change.[6]  If (as is often the case) there was no ‘contingency’ arrangements specified in the care plan, the disabled person / family could seek to offset some of the repayment claim by arguing that they have suffered because of the failure to provide; that they need to use the money flexibly (ie to purchase compensatory services –to allow them to recover from the failures); and a sum to compensate them for the stress, anxiety etc.

The law remains unaltered (for the present) so clearly the local authority will have to review the care needs with a view to identifying new ways by which the needs can be met (including paying family members if that is the only sensible option etc – see above).

Photograph of Rhyd~ddu by Maya James

 

[1] See for example, R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 and MSS v Belgium and Greece European Court of Human Rights Application no 30696/09, judgment of 21 January 2011.
[2] [2002] EWHC 2282 (Admin), (2002) 5 CCLR 577.
[3] (2002) 34 EHRR 1285 at 1296.
[4] The Social Workers Regulations 2018 the Regulation and Inspection of Social Care (Wales) Act 2016.
[5] The British courts do not have a checkered history when it comes to holding the Government to account in relation to the exercise of their powers under emergency legislation of this kind – see for example the discussion in The Coronavirus Bill and the Emergency Powers (Defence) Act 1939.
[6] See for example complaint no 15 019 443, against Kent CC, 20 October 2016.

The Coronavirus Bill: social care & SEN

The text of the Coronavirus Bill has been published.  It is the most draconian legislation enacted since the Second World War and suspends a whole raft of legislative duties – not least in relation to health, social care, social security and education.

The Bill can be accessed by clicking here and the Explanatory Notes to the Bill can be accessed by clicking here.

The following very brief note provides a snap shot overview of the Bill’s provisions in social care and education in England and Wales.  References to page numbers – are to pages of the Bill.  It is a long Bill with 322 pages including 27 Schedules.

 

Overview and duration

The Explanatory Notes (at para 6) make clear that this is only one part of the legislative response to the threat posed by the virus and that:

These are extraordinary measures that do not apply in normal circumstances. For this reason, the legislation will be time-limited for two years and it is neither necessary nor appropriate for all of these measures come into force immediately.

The two year period is specified in clause 75 of the Bill [page 45].

 

Social Care

Schedule 11 of the Bill [pages 111 – 122] effectively suspends / downgrades almost all adult social care duties (including charging duties).  As the Explanatory Notes (at para 175) explain, the various duties to assess and meet eligible needs of adults and carers in the Care Act 2014 and adults, young people and carers in the Social Services and Well-being (Wales) Act 2014 (SSWWA) are downgraded to powers.

A duty to meet needs will only arise in England if a failure to provide care and / or support would be a ‘breach of an individual’s human rights’.  In Wales a duty only arises where a failure to do so would mean that the individual may be experiencing or at risk of abuse or neglect.

A briefing note prepared by the barristers chambers at 11KBW expressing significant concern about the concerning the suspension of key social care provisions – can be accessed by clicking here.

 

NHS Continuing Healthcare duties – England only

Clause 13 of the Bill [page 7] is explained by paras 172 – 173 of the Explanatory Notes: namely that it applies to ‘the procedure for discharge from an acute hospital setting for those with a social care need’ and that it allows NHS providers to delay undertaking the NHS Continuing Healthcare assessments – and that ‘pending that assessment, the patient will continue to receive NHS care’.

 

Education

Schedule 16 of the Bill [page 158 – 181] provides the Secretary of State / the Welsh Ministers with powers to issue directions suspending school provision and attendance duties and downgrades local authority education law duties (including those relating to the provision of Special Education Needs) to obligations ‘to use reasonable endeavours to discharge’ the duty.

 

Mental Health detention

Schedule 7 Part 2 para 3 of the Bill [page 90] provides that an application by an approved mental health professional under the Mental Health Act 1983 sections 2 or 3 need only be founded on the recommendation by a single registered medical practitioner.

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Photograph of ‘Aberdesach’ by Richard Jones -@lluniaurich

Direct Payments and NHS Continuing Health Care

The Deputy Minister’s update statement on the Welsh Independent Living Grant[1] (WILG) is particularly welcome because it acknowledges the risk to the independence,choice and control of disabled people in Wales unless the Welsh Government enables people in receipt of either a Joint Package of care funded by the Local Authority and Local Health Board or NHS Continuing Health Care to receive a Direct Payment.

This risk to independence has been known to Welsh Government for some considerable time,[2] has been identified in a ‘direct payment note’ on Rhydian Social Welfare Law in Wales and highlighted as a risk in a paper on the Closure of the Welsh Living Grant that was offered as evidence to the Petitions Committee dealing with the Save WILG.

While it is heartening that the Deputy Minister ‘has instructed her officials to undertake a review of the Direct Payments and CHC interface’ one could argue that this is very late in the day. It would be hard to convince disabled people and their carers that setting up a system that enables them to have meaningful and personal control over key elements of their care package will compromise the principles of a public service NHS. The time is ripe to redress this lacuna which has this potential to derail Welsh Governement commitments and aspirations for disabled people in Wales.

Recipients of the WILG require immediately the confidence that they can continue to retain the right to have personal assistants of their choosing irrespective of whether the funding from the LHB is a proportion of the cost of the care and support package or whether it is a NHS CHC funding arrangement.

There are those people who are not previous recipients of the WILG but who are fearful that their future is in the hands of local government and local health board officers who erroneously believe that Direct Payments cannnot be facilitated.They require an unambiguous statement from Wesh Government that all Local Authorities in Wales and all Local Health Boards are required to facilitate a joint package of care through a Direct Payment as set out in Continuing NHS Healthcare: The National Framework for Implementation in Wales[3].

In the absence of legislative change Independent User Trusts(IUTs) should be offered to disabled people and facilitated by the Local Health Board, to enable a person who has become eligible for NHS CHC to consider this option and its suitability for his/ her circumstances.

While we await a successful conclusion of the review set up by the Minister, there needs to be measures in place to enable disabled people in Wales to achieve their personal outcomes and maintain their independence. Welsh Government commitments and aspirations to Social Model of Disability is currently being shown to be hollow when the level of physical impairment and health related needs determine whether a disabled person in Wales can have control of their care and support arrangements through a Direct Payment.

Local Authorities and Local Health Boards need practice directions from Government and training in this matter if we are to avoid further human rights infringements in Wales.

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[1] Julie Morgan AM, Deputy Minister for Health and Social Services Written Statement: Welsh Independent Living Grant (WILG) – Update on Independent Care Assessments (Welsh Government 13 February 2020)
[2] See for example letter Welsh Government Director of Social Services and Integration dated 10 February 2016.
[3] Welsh Government Continuing NHS Healthcare: The National Framework for Implementation in Wales (2014).

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Photograph of ‘Adar gwyllt Tryweryn’ by Richard Jones -@lluniaurich

‘Waiting for her to die’

Perceptions of a terminally ill woman who was denied an integrated assessment and services

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The Public Services Ombudsman for Wales (PSOW) has published a troubling report[1] concerning a systems failure by a Welsh Council.  The complainant (Mrs X) was discharged from hospital: she was terminally ill with a diagnosis of advanced heart failure.  She contacted her council by telephone and asked to be assessed for a package of social care support: for a few mornings a week including showering.  She was told that the Council did not provide this service and sent a list of private care providers.  She continued to say how unwell she felt and was advised to see her GP.  The referral was closed with no further action to be taken by the Council

With support she contacted a number of private providers but was unable to afford their services.  Two weeks later her advocate contacted the council and it recorded that she was terminally ill (end stage heart failure with 10% function of her heart) and needed 45 minutes of support with morning personal care tasks and food preparation.  She was referred to the council’s reablement unit for an assessment but this service had no spare capacity and so none was undertaken.  A month later the council offered to refer her to domiciliary care – but by this time her family were supporting her and she was very ill.

A formal complaint was made by the advocate, concerning the failure to assess, the failure to provide support, the failure give proper consideration to her personal circumstances, and in due course the council’s failure to handle the complaints process (from complaint to final report took six months).

All complaints were upheld. The ombudsman’s officer’s report notes that the complainant (para 64):

was left feeling that the Council was waiting for her to die so that it did not have to address her complaint. It is also perhaps the clearest indication that the Council did not take into account Mrs X’s personal circumstances, particularly her terminal diagnosis. 

 

The PSOW held that the complaint engaged Article 8 of the European Convention on Human Rights (para 59):

as the council’s failures were intrinsically linked to Mrs X being able to live her life, and continue to do so, as independently as possible and for as long as possible. Not dealing with Mrs X’s assessment with the urgency it required means that the Council, in my view, did not fully consider Mrs X’s dignity in this regard.

 

The PSOW recommended (among other things) that within 6 months (para 66):

the Council commissions training for the First Contact Team on how to ask probing questions during the “What Matters Conversation” designed to tease out crucial information including current diagnoses and prognoses. The training should also remind the First Contact Team that there are cases where a health need and a social care need interlink and that a person with a health need may still require social care assistance.

This report is particularly concerning as it highlights the serious failure of the statutory system of assessment and provision.  In this case the system’s initial response was to deny that support was available.  It then made a referral to a reablement unit that was not taking new work.  If this is the way the system responds to a woman with a terminal diagnosis, one has to ask – “how many other people has it failed?”

The Pembrokeshire PSOW report and the previous assessment and care planning reports that have been made available on the Rhydian: Social Welfare Law in Wales news page,[2] are a salutary reminder that the assessment and the management of care and support under the Social Services and Wellbeing (Wales) Act 2014 continues to fail, at least some people in need of care and support. For every person failed the impact is life changing.

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[1] A report by the Public Services Ombudsman for Wales concerning Pembrokeshire County Council Case:  201806802 8 November 2019.
[2] See Gwynedd County Council   (2016); Gwynedd County Council (2018); and Anglesey County Council (2019).

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Photograph of ‘Mynydd Grug’ (Heather Mountain) by Richard Jones -@lluniaurich

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Unpaid carers in Wales

Carers Wales has published its annual ‘Track the Act’ report (for the year to April 2019) based on a survey of 562 carers (from every part of Wales) plus Freedom Information Requests to each of Wales’ 22 local authorities.   Carers Wales is to be congratulated once more – for providing an independent analysis as to the state of social care in Wales.

The report notes that there are 370,000 carers in Wales who provide, unpaid, 96% of all care delivered – saving the Welsh economy £8.1 billion a year. The report adds:

It would be a false economy not to invest and plan services to meet carers needs and support them to look after their own health and well-being.

However throughout Wales (as in England) many carer support groups are having their funding cut or withdrawn completely. In the long term these cuts are going to be shown to be very expensive indeed – as more and more families are stretched to their limits and cease to be able to cope.

The voice of carers comes through the report – noting (for example) that ‘many carers have told us that things have in fact worsened over the last few years’ – and the report includes many telling quotes:

I phoned the local authority asking for help for my son and was told that there was no help for him and I have to seek out my own support.

My health and well-being has deteriorated and I worry about what I will do if I have to give up my part-time job.

Some key statistics

  • In the last year fewer carers reported getting information about the support that might be available to help them (45% compared to 53% in the previous year);
  • Of those carers’ who have had an assessment, over 50% were not asked about their work situation and only 40% had a discussion about emergency planning;
  • 85% of carers who responded said that they had not had an assessment in the last twelve months, with 70% saying they had not had an assessment since the Act’s implementation (in 2016). As Carers Wales notes ‘Given that 61% of carers who responded to the survey said they were caring for over 50 hours a week and 69% said they had been caring for over five years, we find this figure worrying.’

Some of the local authority data responses are a little troubling. Cardiff City (the largest local authority in Wales) with 35,005 carers appears to have provided support to just 3 carers whereas Merthyr, the smallest authority with 7,427 carers, appears to have supported 114.

Swansea appears to have provided support for 30,788 carers – which is not only more carers than there are in Swansea (and more than 10 times the number it assessed) it is also four times as many as the combined total for all other reporting councils (the total for these 18 councils amounted to 6,937).   Either we have misunderstood the data (Carers Wales advise us that these are the figures it was given by councils) or one has to question the official data, on which presumably the Welsh Government also places some reliance?

To access the full report click here.

Photograph of ‘Hydref cynnar Llanfaglan’ by Richard Jones -@lluniaurich

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New born babies in care proceeding in Wales

The Nuffield Family Justice Observatory (FJO) has published its report on new born babies and infants in the family justice system in Wales.

This report presents a picture of an increase in the number of new born babies who are subject of care proceedings and notes that the numbers doubled between 2015 and 2018.

The number of newborn babies subject to care proceedings in Wales (per 10,000 births) more than doubled between 2015 and 2018 from 39 newborns per 10,000 to 83 new borns per 10,000

Overall the position in England and Wales is of a high proportion of new born babies and infants in the Family Justice System. Further research will be undertaken by the Nuffield FJO to understand why there is increase in the number of infants coming before the Family Courts in England and Wales and why more infants in Wales are subject of a care order than in England.

An earlier study published by the FJO in October 2018, which focused on new born babies in care proceedings in England found evidence of differences in practice despite the fact that the two countries work to the Children Act 1989 in respect of the safeguarding of children and care proceedings.

To access the full report:
Mewn gofal o’u geni: babanod newydd-anedig a phlant bach mewn achosion gofal yng Nghymru – cliciwch yma.
Born into care: newborns and infants in care proceedings in Wales – click here.
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Photograph of ‘Benllech ar derfyn dydd’ by Richard Jones -@lluniaurich

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So what do you do?

You are a health / social care professional. You have read up on the lawfulness of funding panels – but you now find yourself required to attend a panel to agree funding on a large package for someone with a substantial need for care and support. The panel has some esoteric title – but it is really a ‘rationing’ panel. Cases are often delayed (often sent back for more information) and care packages generally reduced (never increased).

You have in the past raised issues about risk and questions about urgency however these have been stonewalled. This causes you significant personal and professional concern – not least the risk posed to the persons in need, who are being left in dangerous unmanaged circumstances. Not only are people who don’t have first hand knowledge of the individual’s circumstances questioning / disputing packages of care you consider necessary, but they are also questioning your assessment and leaving you holding the risk.

 

What should you do?

It’s a difficult situation. You are working within an organisation that does not appear to be acting in a reasonable or, indeed, in a lawful way. Clearly the people you are assessing (and for whom you are care planning) are able to complain – but you know full well all the reasons why they are unlikely to do this. You could point them in the direction of an advice agency – but that could put you in an invidious position and there is a considerable shortage of support of this kind.

What do you do if senior officers are actively challenging you – when all you are doing is trying to follow your judgment and the law? In the case of a complaint’s investigator who considered she was being bullied – she contacted the ombudsman – without success (see ‘Omg … will it never end’).

This website focuses on the rights of disabled people, carers and their families, but it is patently obvious that day in day out countless front line workers in many (but not all) local authorities and the NHS face these challenges. It would be good if someone was able to write a piece explaining what can be done. This is a subject that the School of Law at Leeds Univeristy (Cerebra LEaP project) hopes to research but pending this it would be valuable to have ideas about what can be done. It may have to be an ‘authors name withheld’ piece, for all the predictable reasons.

Suggestions – in confidence – would be welcome.

Photograph of ‘Llanfaglan’ by Richard Jones -@lluniaurich

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Direct Payments: ombudsman’s report and research findings

Coinciding with a major research report[1] concerning the direct payments system – the Public Services Ombudsman for Wales has issued a hard hitting report[2] illustrating the problems with such payments in Wales.

The Ombudsman’s report describes a council that managed to get just about everything wrong in the way it calculated the amount of a direct payment and then (when the failure was patent) failed to set about remedying its error.  The complaint spans a period of almost six years and even at the end of this the ombudsman concludes that:

the remedial action taken by the Council was piecemeal and it lacked customer focus. From the information I have seen, I am not satisfied that all the arrears have been paid. Furthermore, the Council has not acknowledged the full extent of the failings in this case or offered a proper apology to Mr A for the impact on him and his family.

The Council accepted that there was a significant need for the family to have short breaks care – but failed to commission the care – such that the family agreed to have a direct payment to enable it to employ carers for this purpose.  The Council then used a flawed process for calculating the amount of the direct payment and (when this error was obvious) failed to reimburse the family for the full financial shortfall; failed to comply with the relevant guidance issued by the Welsh Government; failed to properly investigate the complaint; and exacerbated the problem by creating substantial delay.  The full ombudsman’s report can be accessed by clicking here.

 

Many of the failings identified by the ombudsman are problems highlighted in a research report[3] published by the School of Law, Leeds University Cerebra Legal Entitlements and Problem-Solving (LEaP) Project.

The research report found that direct payment rates of pay for Personal Assistants (PAs) were very low, typically at minimum wage rates. It concluded that in many council areas there is a serious ‘market failure’ – such that authorities are arguably in breach of their statutory and public law obligations to families with disabled children.  Its key findings include:

  • that Direct Payment rates were too low to employ suitable PAs despite their local authority being willing to pay much higher rates for agency staff;
  • that the difficulty of finding suitable staff who were prepared to work for the rates imposed by local authorities was a major and reoccurring theme of the survey as was fear by respondents of losing the Direct Payments if they were not able to find such staff;
  • that there was a lack of knowledge by families as to how Direct Payments were calculated and what the actual rate was in individual cases ;
  • that strict rationing of resources is resulting in families experiencing stress, an acute lack of support and prolonged ‘battles’ to secure basic services that they are entitled to by law.

To access the full research report, click here.

Photograph of ‘Gwyr’ by Richard Jones -@lluniaurich
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[1] L Clements, S Woodin, S McCormack and D Tilley Direct Payments for Disabled Children and Young People, and their Families (Cerebra 2019).
[2] The investigation of a complaint against Conwy County Borough Council.   A report by the Public Services Ombudsman for Wales: Case No 201800208 dated 31 July 2019.
[3] L Clements, S Woodin, S McCormack and D Tilley Direct Payments for Disabled Children and Young People, and their Families (Cerebra 2019).

‘Omg … will it never end’

It is not every day that an ombudsman’s report refers to an investigator’s note saying the above.  Not every day that the ombudsman: asks a council to reflect on its obligations under the European Convention on Human Rights and the Equality Act 2010; refers to the number of inaccurate references a council has made to legislation; concludes that a council gave the impression that it was seeking to influence the outcome of an independent review of a complaint; refers to a council’s claim as being ‘disingenuous’.

For all our misgivings about the inadequate funding of the ombudsmen impairing their ability to hold councils’ to account[1] – the fact that reports of this nature emerge – revealing how some authorities operate in practice – is important.

Hopefully the local authority in question[2] will implement the ombudsman’s recommendations and take a long hard (and reforming look) at the organisational culture that allowed these deplorable events to occur.

In the next section we provide a résumé of the report and this is then followed by a reflective commentary by Paul Kelly – a highly experienced Independent Investigating Officer.

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The investigation concerned a complaint by a family (Mr & Mrs A and their 16 year old son X), for whom the ombudsman had already (a year earlier) upheld a complaint relating to a connected matter.  Problems persisted and a further complaint was made alleging (among other things): that the council had failed to assess X as a disabled child; had failed to assess Mrs A (as a parent carer); and had inappropriately influenced the role of the Independent Investigation Officer (IIO).

The complaint was made on 25 May 2017 and related to assessment failures that occurred in September 2016.  These dates are important, as the events in question post-date that coming into force of the Social Services and Well-being (Wales) Act 2014 (which occurred on the 6 April 2016).

The council had a policy, known as the ‘Derwen policy’, which stated – in effect – that children with ADHD, but who were not ‘disabled’ or did not have ‘significant developmental delay’ were ineligible for assessment / support as ‘disabled children’.  X had Autism and Pathological Demand Avoidance and although the Derwen policy did not specifically mention these conditions it is clear from the complaint, that the council also treated them in the same was as it treated ADHD.

The IIO investigated the complaints and in due course prepared a draft report which was overseen and approved by an Independent Person.  The draft report was shared with the council’s officers.  The officers were unhappy about the report – stating (among other things) that is was ‘very one sided’.  A meeting with the council was arranged and before this took place the investigator received a ‘flurry of documentation’ that she had not been shown during the investigation.  It was at this stage that the IP observed ‘Omg…will it never end’. The IIO was so troubled that she telephoned the Ombudsman’s Office for advice as to what to do at the meeting as (in her words) ‘it doesn’t seem right to me’.[3]

The IIO attended the meeting but had not anticipated being met by six senior council officers.  She felt ‘a bit overwhelmed’ and that she was being ‘bullied’. In this respect the ombudsman notes that there was an ‘imbalance in the number present at the meeting’ and that this was ‘sufficient to make her question, as she has, whether the independence of the process was being compromised’.   The council however stated that it was not seeking to influence the IIO into changing the report, ‘rather it wanted to make sure that “inaccuracies” were corrected’.  In this respect the ombudsman’s report concludes:

… the overall impression when viewed, objectively, is that the Council was unhappy with the findings. By acting as it did, it gives at least the impression that it was seeking to influence the outcome even though I have no hard evidence that this was its intention (bearing in mind it has denied such). However, that was how Mr & Mrs A saw it. Perception is often enough. On the evidence before me, bearing in mind the Council has not identified anything specific by way of ‘inaccuracies’, despite ample opportunity to do so, I find that it did act inappropriately.

 

The council refused to accept most of the recommendations in the final report (signed off by the IIO and the Independent Person) and in particular refused to undertake the recommended assessments of X and Mrs A.  In its opinion ‘X did not need care and support beyond that provided by his parents’ and that his needs did ‘not meet the criteria as a disabled child under the Equality Act 2000’.  Not only did the council get the year of the Act wrong – it also fundamentally misunderstood the law (not least – it seems – that the key Act was not the Children Act 1989 – as the material parts of this Act had been repealed by the Social Services and Well-being (Wales) Act 2014).  X had a Statement of SEN; the Council had accepted (in an earlier ombudsman complaint) that he required a specialist Autism assessment; and X was in receipt of the highest level of the disability related benefit (PIP).  The ombudsman also observed (as had the IIO) that X’s ‘child in need plan’ had not been reviewed for some time and so questioned how the council could confidently say he was ‘not disabled or had no unmet needs’.

This report is incredibly troubling on many levels – not least that a local authority had so clearly failed to understand its legal obligations.  What is (to an outside observer) of most concern, is the level and nature of challenge experienced by the IIO.  We are well aware of families being fearful of the consequences of complaining – fearful of retaliatory action by authorities[4] – but for a local authority to behave in the way described by the ombudsman towards independent investigators is shocking.  Complaints’ investigators are acting on behalf of Chief Executives / council members.  For a culture to develop where such an investigator considers that she is being bullied and for the ombudsman to agree that the impression given was of a council seeking to influence the outcome of an independent review – strikes at the very heart of the review process.  Ultimately senior legal officers and council members are responsible for the organisational culture of their authority – and these officers / members should take a long hard look at this report.

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We wanted to know if this sort of action by a local authority was unique – or whether complaints’ investigating officers encountered this on other occasions.  We therefore asked Paul Kelly – an expert Independent Investigating Officer of over 14 years to comment on whether, in his experience, overt pressure of this kind was sometimes placed on investigators – and for his general comments on the shortcomings of the social services complaints process as it currently operates.

General information about the social care complaints’ process in Wales is provided on the Rhydian pages – click here to access this note.

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Personal reflections of Paul Kelly – Experienced Independent Investigating Officer.

I was lucky: the first local authority to take me on as an independent investigator in 2004 was the best of the twenty or so I encountered (until finishing this role in 2018). After many years in the probation service, I knew about writing reports, but not much about the world of social care. That first authority gave me a good grounding, including encouragement to make strong statements in my Stage 2 reports. The complaints manager knew her job inside out and was confident in her level of independence from social care structures. There was joint training with the local government ombudsman and with social care managers.

Much turned on the qualities of that complaints manager and I relied on her for advice and guidance. Not only that, reports did not get past her unless the arguments and quality stacked up: she never sought to influence findings. As a matter of routine there was a meeting with the adjudicating officer (i.e. the senior manager responsible for the local authority’s response to the complaint) after reports were submitted. Some probing was to be expected. Overall, it was a good thing: it kept me on my mettle and I had a reasonable sense of what the local authority was going to do about my findings and recommendations.

Even within that system there were some awkward moments but nothing serious, except perhaps when the authority did not want to accept a report I had written in Easyread (or as close as I could get to it). My view was that the report needed to be accessible to the person with learning disabilities who had made the complaint: the authority’s view was that the report should have been conventional but with separate interpretation for the complainant. My mistake was not discussing that properly with the complaints manager beforehand.

What if there is no complaints manager or if there is somebody in the role without the strengths of the manager I have described above? In my experience, only a handful came anywhere near the standards set in that first local authority, which in any case began to dismantle as austerity-driven cuts began and the manager left.

I have illustrated the good, what about the bad? Have I ever experienced anything as bad as the case discussed above? Yes, up to a point but not very often. One local authority tried to put a stop to an investigation I was carrying out. Among various machinations, they consulted their legal department about grounds for removing me as independent investigator and attempted to include a senior manager in our interviews with service delivery staff. The independent person objected to that and together we produced our reports that, in the end, a disgruntled head of service had to accept and agree. The independent person was heavily involved and enormously helpful: I concentrated on the complaints while he watched over the process, reporting on the heavy-handed and inappropriate actions of the authority. I had been on the point of taking the matter to the chief executive (complaints arrangement are under that person’s responsibilities) but we got through without needing to do that.

Why could this have happened? The complaints manager had recently departed. She and her staff had previously encouraged investigators to be thorough and probe hard but fairly. They did not like to re-employ investigators who produced half-hearted or poorly argued work. They were actively pursuing early resolution work and had nurtured a group of high quality independent persons. The good work of previous complaints managers unraveled when a new hardline regime of disruptors took charge, so creating confusion, misunderstanding and not a little mayhem. The independent person and I were among the first to feel the chill. Did we get any further work from that authority? I think the answer to that question will be obvious.

I could describe two further examples of local authorities that behaved badly. Both involved directors bypassing adjudicating officers, getting too heavily involved but ultimately having to give ground. Both instances also included newly appointed complaints managers who were administrators rather than complaints professionals. The role of the complaints manager is crucial, without one – or without a good one – I think it is far more likely that things will go wrong. Complaint investigations are often serious and complex: local authorities need steady hands on the tiller.

Out of my more than 90 enquiries, three featured overt attempts at undue influence by local authorities. I checked with a colleague who has much more complaints experience than I: we agreed that in the main, local authorities respected the independence of investigators and did not seek to influence findings and recommendations.

Thee overt attempts were three too many. I am inclined to think that covert influencing is more prevalent. Well-run independently focused complaints sections provided me with plenty of work. Those repeat commissions dried up when regimes changed. Was that anything more than coincidence?

With experience of a very well-run complaints section, I was used to having all records readily available and staff interviews arranged for me. Legal advice was available and training provided. It was a shock to do work elsewhere where nothing very much was made available and investigators had to go hunting for records. Typically there was no training and no legal advice despite some tricky legal questions being involved in an investigation. Interviews with staff were variable: some were very cooperative and came fully prepared, others were unprepared and vague giving apparent compliance and little more. I made notes of all meetings and they went to interviewed staff in draft form, but all too often without reply. More than once key staff who had moved on to different authorities refused to be interviewed, even though they had been centrally involved with the matter complained about. And social care records? I am afraid, criticising them could be no more than shooting fish in a barrel.

I have worked on Stage 3 review panels: they are, in effect, an appeals process for complainants dissatisfied with Stage 2 outcomes. Poor quality independent investigator reports have been a recurring feature. Examples have included: local authorities’ versions being too readily accepted; descriptions of legal positions being wrong; key complaints information being omitted; absence of meaningful analysis; reports being padded out with unnecessary narrative (20,000 words on occasion) and the investigator and independent person declining to look at relevant supporting material offered by complainants.

Sad to say, I have witnessed poor practice by independent persons who did little more than be there and contribute virtually nothing. After a Stage 3 panel, an IP apologised to me, saying that she had been busy getting ready for a holiday and had not really checked the investigator’s report. After a lengthy interview with a couple (who were supporting complainants in a particularly difficult case) the IP sarcastically commented that had been two hours of life wasted. By way of contrast, unpaid volunteers in one local authority who had not worked in social care carried out some of the most truly outstanding independent person work.

Local authorities may have occasionally – but not routinely – sought to interfere overtly with findings and recommendations and perhaps more frequently, covertly show ‘controversial’ investigators the door but without telling them that was happening. More troubling was the amount of poor service received by people making complaints and authorities’ apparent willingness to accept, repeatedly, below par reporting and from the same investigators, possibly because their work tended to favour the authority.  An odd point of view held by some investigators was that of not challenging social workers’ as to the basis on which they had exercised professional discretion.

Of course, practical considerations come into play. One local authority told me they tended not to look for new investigators because it was quite difficult to get them on the books for payment. There was in the region a merry-go-round of the same people who would appear sometimes as investigators, sometimes as independent persons and sometimes as panel members. A Stage 2 investigator might find a buddy sitting on the Stage 3 panel with obvious dangers. I suspect (I have no proof) that over time a kind of group mentality developed that was not sufficiently child or client-centred. One possible indication of that was the absence of the children’s voice in reports where complaints had been made on their behalf by carers. Investigators may (or may not) have seen the children, but have not thought to include anything about their wishes and feelings in reports. On one occasion when acting as an IP, it was necessary to remind the experienced investigator to go back to the complainants, ask for permission to see the children, talk to them about their wishes and feelings and to include that in the Stage 2 report. I suspect, but have no evidence, that it would be even more likely for disabled children to be excluded.

People who complain tend to be relatively powerless: I am inclined to think that the system and standards of investigation and reporting would soon have to change if catering for middle-class complainants. Even though much of my complaints work was in urban mixed communities, I can only think of one complainant who was not white; all the complaints investigators and independent persons I encountered were white. I thought I detected dog-whistle racism in one case of an Eastern European complainant, but that person did not want the matter pursuing.

There is much more that could be written on the social care complaints system for children, including how its original intention of giving children a voice has been overtaken by adults. I have given a flavour of the way the system operates based on my observations – I have had no research evidence for reference and so have relied on what I have seen and what I think rather than what can be shown as generally the case. I think there are a number of serious flaws in an over-elaborate and under-regulated system that relies too much on process (i.e. going through the steps one by one) rather than outcomes (i.e. stopping to think how to resolve complaints quickly and well). An indication of process becoming tangled, is the length of time it can take to come to the end of the line. The initial Stage 2 deadline according to regulations is generally 25 working days, but in my experience – and in the case illustrated above – it can take years from the point a complaint is made to a final decision being reached. I have seen no complaints at Stage 2 dealt with within 25 working days. Something needs to be done.

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Photograph of ‘Tudraeth’ by Richard Jones -@lluniaurich
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[1] Coinciding with a significant increase in complaints due to the legal aid and cuts to local authority budgets.
[2] The investigation of a complaint against Gwynedd Council.   A report by the Public Services Ombudsman for Wales: Case No 201801474.
[3] A footnote in report then states “The Ombudsman has a written record of a telephone call received from the IIO wherein it was noted she was seeking legal advice. As that is not the Ombudsman’s function (and his investigation at that time related to different events), the IIO was told that the Ombudsman could not offer such advice. No detail was otherwise discussed.
[4] K Simons, I’m Not Complaining, but . . ., Joseph Rowntree Foundation, 1995 and see also House of Lords and House of Commons Joint Committee on Human Rights The Human Rights of Older People in Healthcare Volume I – Report and Formal Minutes Eighteenth Report of Session 2006-07 HL Paper 156-I (The Stationery Office 2007) para 235 which referred to the power imbalance that exists and the department of health’s acceptance that ‘fear of complaining was a problem’ of ‘people feeling able to complain without retribution’.

Arrangements to move a care home resident at short notice

An important ombudsman report has outlined key considerations to be taken when it becomes necessary to move a care home resident (in this case one with dementia).

The resident (aged 91) was funded by a local authority and her home had been chosen as it was near to her husband (aged 90) whose health made it inappropriate for him to travel long distances to visit her. Unbeknown to the husband the home had been in discussions with the Council for over two years about funding levels. In July 2017 it told him that his wife would need to move (as a registration change would prevent it from accommodating patients with EMI needs). What followed was a hasty search by the husband for a suitable care home for his wife – while the local authority acted with insufficient urgency. When the husband chose a care home above the local authority ‘going rate’ he was required to ‘top up the fees’ which the ombudsman thought to be inappropriate: that the ‘grounds on which the Council argued against the suitability of the [home chosen by the husband] (and the appropriacy of the alternatives) were purely financial and not based on any clear, up-to-date sense of precisely what [his wife’s] needs were’.

To access the full report, click here.

 

Photograph of ‘Maen y Gaseg’ by Richard Jones -@lluniaurich