Liverpool City Council (17 013 828)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 09 May 2019

The Ombudsman's final decision:

Summary: The Ombudsmen consider the Aintree University Hospital NHS Foundation Trust did not tell the family Mr B fell on a high visibility ward in March 2016. Also, it did not fully consider Mr B’s views in a best interest decision despite his fluctuating capacity. Sefton Metropolitan Borough Council did not tell Mr B’s family he would be an ordinary resident of Liverpool if moved out of the region. Liverpool City Council’s lack of assessment of Mr B’s needs caused confusion and distress to Mr B’s family. We have made recommendations to address the family’s injustice.

The complaint

  1. Miss A complains about the way Aintree University Hospital NHS Foundation Trust (the Trust) discharged her late grandfather, Mr B, in April 2016. She is also unhappy about the way Sefton Metropolitan Borough Council (Sefton) and Liverpool County Council (Liverpool) arranged his care.
  2. Miss A says the Trust should have discharged Mr B home with a care package. The best interests decision to discharge Mr B to a care home was distressing for Mr B and the family. Miss A also says Mr B fell twice, unwitnessed, while he was on a high visibility bay.
  3. Miss A says the family were pressured to find a care home for Mr B to be discharged to, with no support from Sefton or Liverpool. Neither carried out an assessment of Mr B’s needs, or a financial assessment. Miss A says the family were passed between Sefton and Liverpool.
  4. Miss A says there was no care home suitable for Mr B’s needs in Sefton (where he lived). Therefore, Mr B moved a care home in Liverpool about 20 miles from his family. She says this should not have happened, and Sefton did not tell them responsibility switched to Liverpool.
  5. Miss A says events were distressing and confusing for Mr B and the family. She says the lack of assessment for Mr B’s needs led the family to pay £17,000 in care home fees unnecessarily.
  6. Miss A would like explanations for what happened when the Trust discharged Mr B, service improvements and if applicable, a financial remedy.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting for both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
  2. 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).
  3. 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.
  4. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
  5. 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)

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How I considered this complaint

  1. I have considered the complaint information Miss A provided to me. I asked Sefton, Liverpool and the Trust to comment on the complaint, and provide supporting documentation. I have taken the relevant law and guidance into account.
  2. I wrote to Miss A, Sefton, Liverpool and the Trust with a draft decision and considered their comments.

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What I found

  1. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
  2. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code 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.
  3. The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required.

Best Interests Decisions

  1. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.

Hospital Discharge

  1. Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 make provisions on the discharge of hospital patients with care and support needs.
  2. The NHS must issue a notice to the local authority where it considers an NHS hospital patient receiving acute care may need care and support as part of a transfer from an acute setting. On receiving an assessment notice, the local authority must assess the person’s care and support needs to determine whether it considers the patient has needs. The local authority must then decide whether any of these identified needs meet the eligibility criteria. If so, it should confirm how it proposes to meet any of those needs. The local authority must inform the NHS of the outcome of its assessment and decisions.

Charging for permanent residential care

  1. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
  2. The rules state that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

Ordinary residence

  1. There is no definition of “ordinary residence” in law, but the Department of Health has issued guidance in chapter 19 of “Care and Support Statutory Guidance (Department of Health, October 2014). Therefore, the term should be given its ordinary and natural meaning subject to any interpretation by the courts. 
  2. The courts have considered the meaning of “ordinary residence” and the leading case is that of Shah v London Borough of Barnet (1983). In this case, Lord Scarman said: “unless... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.”

Key facts

  1. On 10 March 2016, the Trust admitted Mr B after abnormal blood test results, a significant decline in his mental and physical health, and worsening dementia.
  2. On 17 March, the Trust completed a mental capacity assessment. It found Mr B had fluctuating capacity. Mr B said he wanted to return home, and the Trust agreed to complete another mental capacity assessment. On 21 March, the Trust completed a second mental capacity assessment which found he did not have capacity to decide where he should move on discharge.
  3. The Trust and a social worker from Sefton agreed a best interest meeting would be necessary to move Mr B to a care home. On 23 March 2016, the Trust said because all parties agreed it was in Mr B’s best interests to move to a care home, it would not hold a formal best interests meeting.
  4. On 5 April 2016, a social worker for Sefton assessed Mr B’s needs and found he had eligible needs for care and support. The social worker said Mr B’s risk of falls would mean he could not return home. Rather, he should move to an elderly mentally infirm (EMI) care home. However, as Mr B had finances over £23,250, he would self-fund the placement. The social worker provided the family with a list of EMI care homes in Sefton. Three days later, the family said it would move Mr B to a care home outside the Sefton region, in Liverpool.
  5. During his admission, Mr B fell on the ward three times (20 March, 5 April and 10 April 2016). Each time the Trust followed the head injury pathway and did not find a head injury. There were no witnesses to the falls.
  6. The Trust discharged Mr B on 28 April 2016. The social worker for Sefton told Miss A that Mr B would need the clinical commissioning group (CCG) to determine if he was eligible for continuing healthcare (CHC) funding.
  7. In September 2016 the CCG decided Mr B was not eligible for CHC funding. Before then, the CCG and Miss A chased Liverpool to allocate a social worker to Mr B. Miss A also said Mr B’s money was running low and wanted to move him home with a package of care.
  8. Between September and October 2016, Liverpool and Sefton disagreed over who was responsible for Mr B’s care. As the family wanted Mr B to return home, Sefton agreed to take responsibility and decided Mr B could return home with a package of care. However, Mr B’s condition worsened, and a hospital admitted him on 11 October. He died on 13 November.
  9. In response to Miss A’s complaint, in April 2017, Liverpool apologised for the confusion over who was responsible for Mr B after September 2016. Liverpool said it should have assessed Mr B’s needs and finances after the CCG’s decision. It agreed to work effectively with other local authorities to ensure a point of contact is established in future.
  10. In response to Miss A’s complaint, in May 2017, Sefton said its assessment of Mr B’s needs (in April 2016) was appropriate. The social worker provided the family with the correct advice, and referred the CHC assessment to the CCG. Also, Mr B was an ordinary resident of Liverpool while at the care home.
  11. Also in May 2017, the Trust responded to Miss A’s complaint. It apologised that Mr B fell unwitnessed on 5 and 14 April. It explained it followed the head injury pathway, but there was no evidence of a head injury and that Staffing levels were normal. The Trust created a robust action plan to prevent further falls. This included training to new staff and using more staff to check patients at high risk of falls.

Analysis

The falls on the high visibility bay

  1. The Trust accepted it was at fault for Mr B falling twice on 5 and 14 April 2016. However, the Trust’s records show Mr B also fell on the ward on 20 March. The Trust did not mention this in its investigation. Miss A told me the family were not aware Mr B fell on 20 March. This has caused the family additional distress. I am satisfied the robust action plan the Trust developed to avoid people falling on high visibility wards addresses faults the Trust identified in its own investigation. However, the Trust needs to do more to address the family’s additional injustice caused by the failure to properly inform them of all the falls Mr B had on the ward.

The best interest decision to discharge Mr B to a care home

  1. From the Trust’s and Sefton’s evidence, all parties agreed it was in Mr B’s best interests to move him to an EMI care home. However, I do not consider the Trust robustly documented its best interest decision or considered Mr B’s views.
  2. On 17 March 2016, the Trust noted “Explained may benefit from placement – he understood but stated wants to go home...”. Mr B said he did not want to move to a placement. However, the Trust said his capacity was fluctuating and would need a reassessment. Four days later, the Trust said Mr B lacked capacity, because he could not use or weigh information as part of the discharge decision.
  3. When making a best interest decision, the decision maker should consider the person’s past and present wishes and feelings. Despite Mr B’s fluctuating capacity at the time, he had said he wanted to move back home. The Trust did not consider this view in the decision-making process. The Code is not prescriptive about how best interest decisions should be documented. However, I consider the Trust should have done more to evidence its best interest decision. I consider this was fault. This was a significant decision for Mr B, and it should have been formally recorded, even if the Trust decided a meeting did not need to take place. Any record should have included who made the decision, as this is still unclear.
  4. I do not consider there was any injustice. Mr B would most likely have moved to an EMI care home. This is because, even if the Trust fully considered Mr B’s views, it’s decision would most likely have been the same. It would have been unsafe for Mr B to move back home with a package of care. Also, the family involved at that time agreed it was best for Mr B to move into a placement.
  5. The Council provided evidence it has learnt from its role in the best interest decision process. However, the Trust has not demonstrated similar fault will not happen again. Therefore, I have made recommendations to the Trust.

The lack of support to help find an EMI care home

  1. I consider Sefton was the responsible authority for providing support to Mr B while he was a patient at the Trust.
  2. The social worker for Sefton provided Mr B’s daughter with a list of EMI care homes in the region because Mr B’s needs could not be met at home. Mr B’s daughters told the social worker he had means to pay for his care at an EMI care home.
  3. As Mr B could pay for his care himself, the family was responsible for finding a suitable EMI care home for him. I do not consider the social worker’s action were fault when they accepted the explanations Mr B’s daughters had given about Mr B’s ability to pay for his own care.
  4. I do not consider Liverpool were responsible for helping the family find an EMI care home for Mr B as he was not resident in the Liverpool area at the time.

The lack of an assessment of Mr B’s needs or finances

  1. I have seen evidence the Sefton social worker completed a needs assessment on 5 April 2016. The social worker said Mr B would be a high risk of falls at home, and his daughters could not meet his needs.
  2. I do not consider Sefton’s decision to not carry out a financial assessment was fault. Mr B’s daughters had explained Mr B could afford to pay for his care at an EMI care home.
  3. However, when the family told the Sefton social worker Mr B would be moving to the care home, the social worker should have explained that Mr B would be considered an ordinary resident of Liverpool. This was fault. I will consider the injustice in paragraph 48.
  4. When the CCG decided Mr B was not eligible for CHC in September 2016, Liverpool should have completed an assessment of Mr B’s needs. Based on the result of the needs assessment, Liverpool would then decide if it needed to complete a financial assessment. I consider this was fault.
  5. Sefton and Liverpool’s fault led to confusion between them and to Miss A over who was responsible for Mr B’s care after September 2016. Liverpool has accepted the fault and apologised for the confusion and distress it caused the family. Liverpool also told me it attends forums and working groups with other local authorities, where any disagreements are discussed and progressed. This does not explain how ordinary residency disputes are resolved. I consider Liverpool and Sefton need to do more to address the injustice to the family.
  6. The disagreement between Liverpool and Sefton about which council was responsible for carrying out a new needs assessment meant Mr B lost the opportunity to have his care needs assessed when he was at the EMI care home between September and October 2016. At that time, Mr B’s family were asking for Mr B to return home with a care package.
  7. Liverpool has accepted Mr B had eligible needs in September 2016. As the family were also saying Mr B was running out of money to pay for his own care, Liverpool should have carried out a financial assessment. I have made recommendations below to remedy the injustice to the family.

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Recommendations

  1. I recommend within four weeks of the final decision:
    • The Trust apologise for the distress caused by not communicating Mr B’s fall on 20 March 2016; and
    • Sefton apologise for the distress and confusion caused by not explaining Mr B would be an ordinary resident of Liverpool.
  2. I recommend, within eight weeks of the final decision:
    • The Trust create an action to plan to show how it will record significant best interest decisions (such as discharging to a care home);
    • Sefton ensure staff are aware they should explain ordinary residency to service users if they move out of the region;
    • Sefton and Liverpool ensure it has appropriate mechanisms to resolve ordinary residence disputes quickly; and
    • Liverpool carry out a retrospective financial assessment of Mr B. If necessary, it should pay Miss A the difference (if any) between what Mr B paid after September 2016, and the amount Liverpool would have contributed to the cost of his care.
  3. The Trust, Sefton and Liverpool should confirm to the Ombudsmen when they have completed these recommendations.

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Final decision

  1. The Trust was at fault for not telling the family Mr B fell on the high visibility ward on 20 March. Also, the Trust did not fully consider Mr B’s views, or clearly document the reasons for its best interest decision to discharge Mr B to an EMI care home.
  2. Sefton appropriately assessed Mr B’s needs and said he would be a self‑funder at an EMI care home outside the area. However, it was at fault for not explaining Mr B would become an ordinary resident of Liverpool when he moved there.
  3. Liverpool was at fault for not assessing Mr B’s finances after the CCG said he was not eligible for CHC funding.

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Investigator's decision on behalf of the Ombudsman

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