Summary: Mr A complained about the way a Council and two NHS Trusts arranged for his mother to move into a care home following a short admission in hospital. We have not found fault with the decision to offer a respite placement. Further, we have not found fault with the Council’s actions when the respite period came to an end. However, we have found fault that a care home, acting on behalf of the Council, destroyed records too early. This caused frustration and will leave uncertainty. The Council agreed to provide an apology and to take steps to help prevent recurrences.

The complaint

1. Mr A’s mother, Mrs X, went into a hospital emergency department in May 2022. Two days later she transferred to a residential care home for a period of respite. Staff from Torbay Council (the Council), Torbay and South Devon NHS Foundation Trust (Torbay Trust) and Devon Partnership NHS Trust (Devon Trust) took part in planning the transfer.
2. Mr A complains that Mrs X did not ask to go to the care home but professionals persuaded her to do so. Mr A also complains that he was not given a say in the decision.
3. In addition, Mr A complains that:

• Mrs X (or anyone representing her) did not sign a formal agreement or contract before she moved into the care home,
• No one wrote to Mrs X to formally advise her that, if she remained there after an initial period, she would be liable to pay charges,
• Mrs X and Mr A were later persuaded to sign an agreement on the care home’s terms, and
• Mrs X was forced to remain in the care home for longer than she wanted.

4. In terms of the impact, Mr A said:

• Signing an agreement in the care home caused Mrs X distress and anxiety,
• Mrs X lost an opportunity to decide not to stay in the care home,
• Mrs X received a bill for over £10,000 and this caused her further distress and anxiety.

5. Mr A also complains that, in its complaint response, Devon Trust falsely accused him of acting aggressively and of having threatened NHS staff.
6. In bringing the complaint to the Ombudsmen Mr A said he would like an independent and objective view on whether Mrs X should be held liable for the outstanding care home fees.

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The Ombudsmen’s role and powers

7. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
8. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
9. If there was no fault in how an organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
10. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
11. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

12. I have investigated Mr A’s complaints about the way Mrs X’s discharge from hospital were managed, and about whether she fairly consented to paying for her care.
13. I have not investigated Mr A’s complaint about Devon Trust having accused him of threatening staff. An investigation of this complaint would need to rely on: what is recorded in the contemporaneous notes; staff statements; and, Mr A’s recollections. It is unlikely we would be able to say that any given account is more reliable than another. As such, the Ombudsmen would have a good chance of making a clear, independent and evidence-based finding of fault about this issue.

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How I considered this complaint

14. I considered Mr A’s written complaint to the Ombudsmen and spoke to him on the phone. I wrote to the Council, Torbay Trust and Devon Trust to explain what I intended to investigate and to ask questions and for relevant evidence. I considered all the papers I received in response. I read relevant legislation and guidance.
15. I shared a confidential version of this draft decision with Mr A and the organisations and invited their comments on it. I considered all the comments I received in response.

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What I found

Mental Capacity

16. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. This is accompanied by the Mental Capacity Act Code of Practice which sets out steps organisations should take when considering whether someone lacks mental capacity.
17. Both the MCA and the Code of Practice start by presuming individuals have capacity unless there is proof to the contrary. The Code of Practice says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. It also says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.

Financial Assessments

18. Local authorities have a duty to arrange care and support for those with eligible needs. Section 14 of the Care Act 2014 gives local authorities discretion to choose whether or not to charge for services they arrange and provide.
19. Where a local authority decides to charge it must carry out a financial assessment to decide what a person can afford to pay towards their care. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014. Local authorities should also have regard to the Care and Support Statutory Guidance that accompanies the Care Act 2014.

Records management

20. In August 2021 the government published the Records Management Code of Practice for Health and Social Care 2021 (the Records Code). This set out that adult social care records should be retained for eight years before being reviewed with a view to destroying them.

What happened

21. Mrs X has life-long mental health conditions. In 2022 she lived at home with Mr A.
22. In late March 2022 the Council received a referral about Mrs X from her medical practice. The referral asked social care services to contact Mrs X to discuss options for a care home placement and associated costs.
23. In early May 2022 staff from the Council spoke to Mrs X and Mr A. They noted that Mrs X would welcome some low-level support to address her social isolation. The worker recommended a short assessment of Mrs X’s needs.
24. Two days later Mrs X went to a hospital emergency department and she returned two days later. Neither visit related to a physical health issue. Rather, they related to Mrs X’s mental health and her home circumstances. The hospital discharged Mrs X home on both occasions.
25. Mrs X returned to the emergency department for a third time two days later. Again, she went because of her mental health and her home circumstances. The hospital admitted Mrs X to a medical ward. Staff from Devon Trust’s Crisis Resolution and Home Treatment team came to see Mrs X. They also discussed the situation with an Approved Mental Health Practitioner (AMHP).
26. Professionals felt it would be helpful for Mrs X to have a period of respite care in a residential home and talked to her about this. They arranged for Mrs X to have a fully‑funded four-week placement in a care home. Mrs X transferred there two days after going to the emergency department.
27. At the start of June the Council allocated a social worker to Mrs X’s case. Several days later a mental health practitioner saw Mrs X and noted that she had found the respite stay helpful. They asked social care to consider extending Mrs X’s stay.
28. On 10 June Mrs X’s social worker visited Mrs X in the care home and spoke to her about her care. They also spoke to Mr A. Following these conversations the social worker arranged to extend Mrs X’s placement for another month, to early July.
29. At the end of July 2022 Mrs X underwent a financial assessment. Later, Mrs X received a bill for over £10,000 for the cost of her care in the care home from the time when the funded respite placement ended until she left the care home.
30. Mr A complained to Torbay Trust in September 2022. The complaints process continued until August 2023 and involved input from Torbay Trust, Devon Trust and the Council. In brief terms, the organisations did not identify any failings in their actions and said that Mrs X had made an informed, capacious decision to stay in the care home knowing that she would have to pay for it.

Analysis

31. The evidence available to me shows that professionals who saw Mrs X during her third visit to the emergency department had concerns about her home circumstances. They records show professionals considered Mrs X’s ability to understand her situation and the available options. They did not find reasons to doubt that she had the capacity to make her own choices about her care. It was appropriate to consider these issues and to prioritise Mrs X’s own involvement in decisions about her care. As there were no concerns about Mrs X’s capacity to make her own choices there was no reason for staff to seek the views of other family members, including Mr A.
32. The records state that staff spoke to Mrs X about going into a care home for a period of respite. They say that Mrs X said was willing to go into such a placement. It is also notable that, prior to these attendances at the emergency department, there had already been some mention of care placements. Later records report that Mrs X had found the respite placement to be beneficial. They do not contain any reference to Mrs X having entered the placement reluctantly or against her wishes.
33. Overall, based on the available evidence, I have not found fault in the initial suggestion of a respite placement. The proposal appears to have been based on professional concerns about Mrs X’s health and wellbeing at home. There is also evidence that Mrs X understood and agreed with the plans.
34. I have not seen anything to suggest that professionals saw this move as anything other than a temporary, respite placement. The initial placement was fully funded. Because of this, and the lack of plans for a transition to a longer-term placement, there was no pressing need to discuss potential costs when Mrs X first moved to the care home. If she had returned home when the respite period ended she would not have incurred any costs. And, as there would be no cost to Mrs X for this initial respite stay, there was no need to ask her to sign a contract.
35. When a mental health worker saw Mrs X in early June they recorded that Mrs X she said she had found the respite stay beneficial. When the social worker saw Mrs X several days later they recorded that Mrs X said she wanted to stay another month. In addition, the social worker recorded that Mrs X “was aware of the charging policy and that she would need a financial assessment for her stay to be extended”. The social worker also attempted to discuss Mrs X’s finances with her.
36. The records also show that the social worker spoke to Mr A on the same day. The social worker recorded that Mr A said he wanted Mrs X’s stay to be extended. The social worker also noted they discussed a financial assessment and, again, attempted to discuss Mrs X’s finances.
37. Because of this evidence I have not found that Mrs X’s stay in the care home was extended against her wishes, or without consulting her. There is evidence to show that both she and Mr A wanted the placement to continue. There is also evidence to suggest that the Council was open about the potential financial implications of this. As such, I have not found evidence that the Council misled Mrs X and Mr A into believing an ongoing stay in the care home would be free.
38. The Council’s decision to make Mrs X responsible for the full cost of her care was based on a financial assessment it completed. As set out in the Care Act 2014 and the Care and Support Statutory Guidelines, the Council was entitled to complete such an assessment and to charge Mrs X based on the results.
39. During my investigation the Council told me that the care home no longer has records for Mrs X for the period May to June, including a copy of an agreement Mrs X and Mr A signed. According to the Records Code (see paragraph 20) adult social care records should be kept for a minimum of eight years. Therefore, the early destruction of these records is fault. The care home was acting on behalf of the Council at this time and, as such, the Council is responsible for the fault.
40. As a result of this fault we do not have any records from the care home of any discussions it had with Mrs X and/or Mr A about signing a contract. I have seen evidence to show Mrs X wanted to stay in the care home after the initial respite period and was told of the financial implications of this. Therefore, on balance, the lack of evidence from the care home does not change the analysis that the Council fairly charged Mrs X the cost of her care from early June 2022.
41. Nevertheless, the destruction of the records meant the information available for this investigation was more limited than it should have been. This, in turn, is likely to be frustrating for Mrs X and Mr A and will leave some avoidable uncertainty. This is an injustice to them. I have made a recommendation to address this, below.

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Agreed actions

42. Within one month of the date of the final decision the Council should write to Mrs X and Mr A and acknowledge that the care home, acting on its behalf, destroyed Mrs X’s records inappropriately. The Council should also apologise for the frustration and uncertainty this caused.
43. Within one month of the date of the final decision the Council should consider the care home’s destruction of Mrs X’s records under its own data protection policies and associated legislation and guidance. It should follow any relevant processes for reporting any notifiable breaches, if applicable.
44. Within one month of the date of the final decision the Council should ask the care home to review its data handling policies to ensure they are: compliant with legislation; and, effectively implemented and understood by staff. The Council should set clear and achievable timescales for this work and ask for, and scrutinise, evidence of the completed work.

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Decision

45. I have found there was no fault in the decision to offer Mrs X a respite placement or in the way the organisations arranged it. Further, I have not found fault with the way the Council discussed extending the placement and the possible costs associated with this. However, I have found fault with the Council that a provider acting on its behalf destroyed Mrs X’s records too early. This caused avoidable frustration and uncertainty and we have made recommendations to address this injustice and to help avoid recurrences.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman