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Duty of care

SophieD

Administrator
Staff member
Mar 21, 2018
3,487
0
London
Hi everyone,

'Duty of care' is a subject that appears quite often on Talking Point. Tina, one of our Knowledge Officers, offered to address some questions around this topic. I hope the below is helpful, and a huge thank you to Tina for offering her expertise to help Talking Point members.

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The idea that the local authority (LA) adult social services have a ‘duty of care’ is not incorrect. In fact both the NHS and local authority (LA) ‘owe a common law duty of care to the people within their care’ but it may help to update and fine tune our understanding a little.

The Care Act in England clearly states that the LA has a duty to assess if someone appears to have needs and a duty to meet those needs if they are ‘eligible’, as laid out in the Act. So once someone is identified as having eligible needs they are in the LA’s care and the LA has a duty of care. The rules are basically the same in England, Wales and Northern Ireland but they are linked to different laws for those regions.

The answer to the question ‘Does the LA have a duty of care?’ is yes they do for people in their care, but the detail around their duties is laid out in legislation, (mainly in the Care Act), so the detail depends upon what situation is being addressed and the person having been acknowledged as being in need of care and support.

The Care Act, regulations, and statutory guidance lay out what the LA has a duty to provide. Unfortunately in some places in the guidance it is rather vague e.g an assessment must be carried out in an ‘appropriate and reasonable timescale’ – as you can imagine that could be a moveable feast!

Our factsheet on Assessment for Care and Support in England has information about ‘eligibility criteria’ for a person with care needs as well as carers and explains how people are assessed as needing care and support.

The Care Act introduced national criteria for assessment so the rules for what constitutes an ‘eligible need’ are the same wherever you live now. However, once assessed, how a person’s needs are met will vary from one LA to another because different services are available in different places.

Some issues are best addressed via the complaints process if the LA has not acted appropriately. Every LA must make information about their complaints process available to the public and it is usually available on their website, though it is sometimes referred to as ‘concerns’ or ‘compliments’ so you may have to search for it.

It is always advisable to ask the LA for written confirmation of any information and decisions reached whether it’s about assessment of need, how needs will be met, or about the financial assessment. This is crucial if there is a need to complain about the service received because although the complaints process starts locally and you must complain formally first to the LA, if the complaint is not resolved you may be able to take the complaint to the Local Government and Social Care Ombudsman and this type of evidence is incredibly helpful.

With or without a dispute the Care Act very clearly lays out the LA’s duty to provide information and advice to people (whether they have eligible care needs or not) and to keep people fully informed. For example to keep people informed about how their needs are assessed, how they will be met, and how their financial assessment is done.
 

canary

Registered User
Feb 25, 2014
15,539
0
South coast
@SophieD

I read this post with despair.
It seems to me that the LA are putting increasing caveats on what they will do and the phraseology of the statements of care that you quoted are so woolly and have so many "get-out" clauses that it makes it easy to ignore real concerns. How often have we seen on here relatives who are unable to meet the needs of their PWD, only to be ignored by Social Services?

Its all only going to get much worse.
 

Dosey

Registered User
Nov 27, 2017
96
0
Don't know if Scotland is different. But I worked Social Work residential childcare and we had a duty of care to our clients. When I asked for an assessment for my husband and myself, I was appointed a mental health social worker. My husband was 61 and early onset Alzheimer's. She agreed they had a duty of care for both of us. I met her middle of January and my husband moved to residential care 2nd April. Didn't expect it to be so quick but she knew her job and was very good. I have dealt with social worker in my career for 23 years and met some awful ones
Rose
 

marionq

Registered User
Apr 24, 2013
6,396
0
Scotland
The differences in scale of population between England and Scotland are an issue I think @Dosey. The population in Scotland too is more homogeneous so we also dont have the range of problems which arise from larger numbers of different languages and cultures and related health issues. This is very noticeable when you look at staffing of care agencies and day centres. The same applies to NHS staff in clinics and hospitals. To a greater extent they can be covered by local employees in Scotland.

Even so we are struggling financially to cater for the growing number of elderly people who need care. I know that for both our sakes I should be looking at permanent care for my husband but putting more pressure on the system goes against my conscience. On an almost daily basis I have to address how long I can continue to look after his needs 24/7 now that he is 86 and I am 75. An added complication is the need to oversee his 83 year old sister who is profoundly deaf, unable to speak and with very poor communication. Social services take the view that she is managing with my help and others are not managing at all.

In the short term I don't see a solution. We as a nation are trying to be all things to all people and failing badly in quite a few areas.
 
Last edited:

BowBow

New member
Jan 13, 2021
3
0
We have had recent experience of asking for support from the LA during a crisis in our ability to care for my father at home. We all had COVID, including my father, none us were able or strong enough to look after him over the Christmas period. Despite a crisis (when one phone handler told me don't you realise there is a pandemic on... ha ha in retrospect) The local authority were able to provide emergency cover - this was remarkable given the circumstances. I was also supported in my distress and concern about who would look after my father by an overstretched, coordinating social worker who listened to my distress. I thank her, it was beyond the call of duty.

We have Power of Attorney for my father's finances but did not take our one for Health and Welfare. When we had to have emergency care from the only agency the LA could find available at Christmas (often they did not turn up at all and were risky and abusive in other ways) We had to make a complaint to the agency about two carers in particular to ensure my dad was looked after safely.) Luckily I had also emailed the LA to let them know of our concerns. In retaliation the care agency made a complaint about safeguarding in our house. This was, eventually, dismissed by the LA who know the whole picture, supported by our community nurse and increasingly desperate recorded phone calls to the LA support line from family about the situation at the time. The LA asked at one time if we had POA for Health and Welfare because it is within their power to remove my father from the family home if he was not safe. This was a terrible time for us.

As a family, when my parents had the capacity to make decisions, we took out Power of Attorney for their financial affairs so they would be looked after in their illness. My two siblings and I with my parents discussed what they wanted to happen to them. We all agreed this would be done. I know some families cannot reach agreement but by having a joint POA we felt assured that one way or another we could carry out their wishes. For practical reasons we can act jointly or severally. This works well for my father and us.

At the time we decided not to take out POA for Health and Welfare because a family member was always present if my father needed hospital care or difficult decisions needed to be made (we would discuss decisions togather as siblings even though we are all used to being "the boss" we were abe to put that aside).

Given the COVID restrictions when noone is able to accompany anyone to hospital or a medical appointment we wish we had taken out POA for Health and Welfare . My father, when he was well, expressed clear and repeated wishes to remain at home to die and we cannot honour that at present if he has to have hospital care. My father is not able to give permission for POA now as he lacks capacity, in his dementia, to make decisions. We are investigating Stewardship.

My father has recovered well from COVID and has a new lease of life
 

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