Decision : Upheld
Decision date : 08 Jan 2019
The Ombudsman's final decision:
Summary: Mrs R says the Council was at fault for failures which left her liable for some of her mother, Mrs C’s, care home fees and for a failure to organise a care package to allow Mrs C to be cared for at home. She also says the Council lost some of Mrs C’s clothes and her dentures. The Council was at fault. It has already repaid Mrs R’s fee contributions. It has agreed to pay sums to Mrs C and Mrs R in recognition of the injustice caused.
- Mrs R, acting as her mother, Mrs C’s, representative, says the Council:
- Delayed in putting in place a care package agreed in July 2017 so that Mrs C could go home;
- Failed to set up NHS-funded nursing care for Mrs C;
- Failed to find an alternative care home when it was clear that Mrs C could not afford to pay for the one Mrs C first attended, which she told the Council she could not afford;
- Moved Mrs C to a second home in a different part of the city which Mrs R found it difficult to reach;
- Lost various personal items.
- Failed to ensure that Mrs C received physiotherapy; and
- Communicated poorly.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I spoke to Mrs R. I wrote an enquiry letter to the Council. I considered its response alongside the relevant law and guidance.
- I sent a copy of my draft decision to Mrs R and the Council and invited comments.
What I found
- Councils must provide care for adults in their areas who need it but may recover the costs if the person is deemed able to pay after a financial assessment.
- Councils must leave service users with enough money to live. Service users will require more money to live at home than to live in a care home.
Third party top up payments
- Each council must set a standard rate for residential care in its area and does not have to fund care beyond that rate. If a care receiver wishes to use a care home which charges more, a third party must pay a ‘top-up’ to make up the difference.
- The care receiver cannot fund the difference his/herself. This is because, if the care receiver spends his/her own money on more expensive care, the Council will not be able to recover a contribution towards the cost of care from him/her.
NHS-Funded Nursing Care
- Where an individual leaves hospital but still requires nursing care, the NHS will fund this care in the new environment, whether this is in a care home or at home.
- For this to happen, the individual should be assessed. This will be arranged by the local clinical commissioning group.
- The NHS currently pays £158.16 a week for funded nursing care.
Mental Capacity Act 2005
- The Mental Capacity Act 2005 sets out the legal framework for deciding whether an individual has the mental capacity to make decisions in their own interest and how to make decisions on the individual’s behalf where they lack capacity.
- A person should be considered to have capacity unless it has been shown, by way of a mental capacity test, that they do not. If they do not, public bodies such as local authorities which have a duty towards them must take a best interests decision at a Best Interests Meeting (BIM) as to what should happen to them.
Best Interests Meeting (‘BIM’)
- At a BIM, the local authority must consider the individual’s past and present wishes, the values the person had when they were able to make decisions and other factors the person would have considered, if they had capacity. The BIM must also consider objective factors such as risks to the person’s welfare.
- In this case, where Mrs C wanted to go home but lacked mental capacity, the Council had to consider whether she would be at risk of falling if she did so.
Independent Mental Capacity Advocates
- The Mental Capacity Act 2005 introduced the role of Independent Mental Capacity Advocate (‘IMCA’). Anyone who lacks mental capacity and who has no one to represent them is entitled to representation by an IMCA.
- Where someone has a close family member who can support them in making decisions, an IMCA is not usually provided. Once an IMCA has been appointed, they represent the person’s views at the BIM.
The Council’s framework for Home Support Providers
- The Council has a list of pre-approved care providers who have complied with the requirements of its Social Care and Health Quality Framework (Home Support and Supported Living).
- The Council does not employ care companies that have not done so. However, if a service user funds his or her care via ‘direct payments’, they can employ care companies that have not qualified if they choose.
- Service users can, if they choose, opt to manage their own care. If they do so, the Council will assess them and provide a personal care budget which they will pay to them via direct payments (‘DPs’). If they lack capacity, their families may also manage their care on their behalf. These payments are paid into a designated bank account, usually monthly, and the care receiver, or an ‘authorised person’ pays care providers from the account.
- Neither service users nor their family members are obliged to use DPs against their wishes. If they do not want to receive DPs, the Council must provide any care which is found to be necessary itself.
- DPs are only available for home-based adult social care. The Council pays residential care providers directly.
- The Council paid, at the relevant time, £496.58 per week for residential care.
- Mrs C owns her own home. It has been adapted for her use and she can access everything she needs on the ground floor.
- Mrs R has power of attorney for Mrs C’s financial affairs.
Discharge admission to Home A
- In April 2017, Mrs C went to hospital with a swollen knee. She had osteoarthritis in both knees, dementia, a heart murmur and other complaints.
- Mrs C was in hospital until 24 July 2017. Doctors said she needed surgery on both knees and physiotherapy before she could return home. She could not walk in the interim. She therefore needed to go into a care home pending surgery.
- The assessment record says Mrs C ‘expressed her wish to go back to her own home. Family don’t want as she is high risk of falls and had recurrent hospital admissions’. A BIM took place on 7 July 2017. Mrs R and relevant professionals attended. They decided a temporary nursing home placement was necessary.
- It was agreed Mrs C would enter a nursing home, Home A. The weekly fees were £819.95. The Council agreed to pay £498.18, it’s standard rate of which the Council assessed Mrs C as liable to pay approximately £100 a week.
- Mrs R signed an agreement on 19 July 2017 to pay a top up of £323.37 a week.
- The Council said it had applied for NHS-funded nursing care of £188.18 a week.
- Mrs C, the Council and Home A signed a contract for Mrs C’s care on 24 July 2017. Mrs C moved into the home that day.
- The Council accepts this was intended to be a short-term placement. However, Mrs C’s knee surgery was delayed and she stayed for longer than intended. The Council accepts it did not apply for NHS-funded nursing care.
Occupational therapist’s assessment
- In August 2017, an occupational therapist assessed Mrs C and her home. She recommended Mrs C should return home to await the knee surgery with a suitable care package. She said Mrs C would need:
- Two carers to help with functions set out in paragraph 27 above;
- Various minor amendments to the home;
- A tilting shower chair;
- A wheeled commode;
- Family assistance with shopping, laundry and cleaning.
- On 13 October 2017, A social worker, Officer O, chaired a BIM at Home A to consider whether Mrs C had mental capacity to decide where she should live. Officer O concluded, having interviewed her, that Mrs C did not have capacity. She arranged a more formal BIM to decide where she should live.
- The third BIM was held on 15 November 2017. There were three options; Care Home A, another care home or Mrs C’s own home. The chairperson, Mrs R, Mrs C, Officer O and members of the Home A staff were present.
- The meeting found that, although Mrs C had not yet had surgery, she should return home as soon as possible with a suitable care package. This was her preference and family could visit her more easily. Officer O agreed to ensure the required equipment was in place; and to review Mrs C’s care package.
- Officer O contacted her manager on 8 December 2017 to tell her that the care package was in place and would begin on 12 December. It was agreed that Mrs R would take Mrs C home that day.
- In early December 2017, the Council agreed that it would pay the top-up fees until Mrs C left Home A.
12 December 2017
- On 10 December 2017, there was a heavy snowfall in the Council’s area.
- On 11 December 2017, a social worker called Mrs R to confirm the arrangement for 12 December. Mrs R said she would not take Mrs C home because they both had doctors’ appointments and she was not prepared to push the wheelchair in the snow. She said her solicitor had told her not to get involved in care planning. She said Mrs C needed an IMCA to make her decisions.
- Mrs R complained about the top-up fees she had already paid and questioned the adequacy of the care package as there were no night time visits. She requested another BIM and said Mrs C would have to stay at Home A in the interim.
- In January 2018, Mrs R complained about Officer O. A different social worker, Officer P, was assigned to the case.
Complaint to Council
- In January 2018, Mrs R complained formally to the Council. She raised 11 points of complaint. Among them were the following (with Council responses):
- The Council put Mrs C in Home A without the family’s agreement. The records showed Mrs R wanted Mrs C to go to Home A.
- Officer O had not asked whether Mrs R could afford the top-up fees. The evidence showed that the top-up rules were fully explained to Mrs R.
- The placement at Home A was due to be for only two to three months but she had still not returned home. There had been some delay.
- Officer O constantly questioned the family’s decisions; The records showed that Officer O had acted properly.
- The Council had put Mrs C in Home A. While Mrs R had, in fact, chosen Home A, the Council had not followed its own commissioning process so it agreed to refund all Mrs R’s top-up fees.
BIM, 18 January 2018
- The same day, a further BIM took place at Home A. An IMCA, Mrs R, Officer P, a Council care manager who I have called Officer Q, and Home A staff attended.
- Mrs R said she had not been able to arrange night time care for Mrs C at home. She felt Officer O had not listened to her when arranging the move home.
- Officer P said that without such care, she would recommend that Mrs C, notwithstanding her wishes, should go to a new care home because she would be at risk of falling, and lying undiscovered between care visits, at home.
- Mrs R said she still wanted Mrs C to go home and believed Mrs C wanted that too. The IMCA said she thought the meeting needed evidence from Mrs C.
- It was agreed Mrs C had settled into Home A well but was not having physiotherapy. She was becoming institutionalised and was not walking.
- The meeting heard the Council had put out tenders for a 4am care visit in December 2017 but had received no bids. A social worker said Mrs C would need changing every two hours. Mrs R felt Mrs C would be all right on her own at night.
- Officer P said that Mrs R did not want to take up DPs. She said she had explained to her that, if she did so, she could source a care company that would visit at night. Mrs R had still not agreed to take DPs.
- Mrs R left the meeting for a personal appointment. The Council officers and the IMCA went to meet Mrs C and concluded she should not return home. Mrs C could not stay in Home A so a suitable alternative had to be found.
- The IMCA issued a report which agreed Mrs C should go to another home ‘unless the family can provide an appropriate rota along with a night call’.
- On 2 February 2018, Mrs R emailed the Council repeating that the family believed Mrs C should go home. She gave the number of a care agency that she said could provide night time care.
- The Council told Mrs R, in an email of 6 February, it could not directly employ the agency suggested because it had not qualified via the Council’s framework. She said Mrs R could employ the agency herself via DPs. On 8 February Mrs R replied that this ‘does not make sense’.
- On 9 February, Officer Q asked to speak to Mrs R to explain. Mrs C refused saying it would not help. She repeated that the family did not want Mrs C to move to another home. Officer Q again asked to speak to Mrs R but she refused again.
- Mrs R wrote to the Council with her comments on the IMCA’s report. She said the IMCA had only met her mother once and did not know her. She had been wrong in finding Mrs C did not have capacity and the family had not wanted her views on where Mrs C would live.
- She commented again on the issue of night time care visits; ‘These night calls that you have again put back in play and seem to be some sort of barrier for you to resolve we were told by [Officer O] if this is a matter of life and death, then [the Council] has to provide this. We do not see that, if mum is in bed asleep she would need to be woken in at night and an early morning call between 6-7 would suffice followed by the normal calls throughout the day and visits’.
- In February 2018, the Council learned Mrs C had never qualified for NHS-funded nursing care. This left an additional shortfall of £155.07 per week which Home A added to the top-up fee bill. It informed Mrs R that she now owed £8922.10. The manager at Home A said Mrs R ‘appears very stressed on this situation’.
Move to Home B
- Mrs C moved to Home B in mid-March 2018. This home was about five miles from Mrs R’s house. Mrs R found this upsetting because she does not drive and it took her a long time to get there and back by bus.
- Some of Mrs C’s clothes and her dentures were lost in the move. Mrs R complained.
BIM 1 May 2018
- A further BIM was held on 1 May 2018. An IMCA was meant to attend but did not do so. The meeting considered whether Mrs C could go home. Mrs C said she wanted to do so. Mrs R agreed.
- Officer Q said Mrs R could fund night care using DPs. Mrs R said she would not set up DPs until Mrs C had returned home. She also said Mrs C would not be at risk and could manage without a night visit.
- The meeting decided Mrs C should go home as soon as possible once the required care was in place.
Arrangements for return home
- On 30 May 2018, the Council sent out a referral for care for Mrs C. It stipulated five care visits a day, one during the night, with two carers.
- From November 2017 at the latest, Mrs R disputed the fees at Home A. She disputed the top-up payments and Mrs C’s contributions towards her care. In May 2018, she claimed that she had signed the top-up agreement under duress and had not known what she was signing.
- In May 2018, Home A threatened Mrs R with court action. The Council wrote to the relevant NHS trust and asked it to investigate. Investigations showed that no application had been made.
- In August 2018, the NHS trust agreed to fund further nursing care between 24 July 2017 and 21 February 2018.
Dispute about lost items
- Mrs R asked the Council to compensate Mrs C for clothing and her dentures which were lost during the move between Home A and Home B. She provided receipts for the clothing.
- The Council paid £340 for clothing in October 2018.
- Mrs C went home on 6 November 2018.
Was there fault causing injustice
- Mrs C entered Home A because all parties, including Mrs R, agreed she could not return home before knee surgery. Mrs R has since said she never wanted Mrs C to go to Home A but the evidence does not bear this out.
- At the BIM of 15 November 2017, all parties, including Mrs R, agreed Mrs C should go home as soon as possible. She did not do so for nearly a year. This was fault.
- In December 2018, Officer O ensured the required equipment and a suitable care package were in place for Mrs C to return home. Mrs R was meant to take her home but did not do so. This delayed the return and was not the Council’s fault.
- The Council held a further BIM on 18 January 2018. At the BIM, the IMCA requested by Mrs R and social workers decided Mrs C could not go home until night care was arranged.
- Mrs R did not want to fund the care via DPs and told the Council this repeatedly. While DPs would have speeded the process up, Mrs R was not obliged to use them and, when she refused to do so, this did not release the Council from its duty to provide the care that it had found necessary.
- The Council accepts that there was unacceptable delay from 1 May 2018 onwards. It says it had to put equipment including a hoist and a bed in place. However, these items had been identified as necessary by the OT in 2017 and so should have been there already.
- I find that, in fact the Council should have sourced suitable night-care for Mrs C as soon after the BIM of 18 January 2018 as possible. At this BIM, the Council found that it was in Mrs C’s best interests to go home provided that night-time care visits were available.
Debt to Home A
- I do not accept Mrs R’s claim that she signed the top-up agreement under duress. It is clear from the documents that she understood the agreement. However, I do accept that this was meant to be a short-term arrangement and Mrs R could not afford to pay in the longer term.
- It was not the Council’s fault that Mrs C did not have knee surgery in late 2017 and therefore stayed in Home A longer than expected. It agreed to take on the top up fees from early December 2017 and then agreed to repay her all top-up fees in January 2018. Therefore, Mrs C has suffered no financial loss as a result of this fault.
- However, the Council was at fault for a delay in paying Home A which then pursued Mrs R for the fees in mid-2018. I wrote to the home and asked it to suspend action pending my decision, which it did. But this would not have been necessary had the Council dealt with this quicker.
Funded nursing care
- The Council failed to apply for funded nursing care in August 2017, although it factored these payments into its calculations. This resulted in a contribution of £188 per week going unpaid. Home A, which had been told that funded nursing care would be paid, then billed Mrs R for the shortfall. This was fault.
- The Council finally made an application for this funding in spring 2018 and the NHS trust agreed to pay it in August 2018. Mrs R did not, therefore, suffer a financial loss as a result but she did suffer distress.
Mrs C’s move to another care home
- Mrs C should have gone home in January or February 2018. She should not, therefore, have gone to Care Home B. This home was five miles from Mrs R’s house. She does not drive. This caused her difficulty in getting there and back.
Loss of, and delay in replacing, personal items
- Mrs C moved from Home A to Home B in mid-March 2018. The Council repaid Mrs R for the loss of her clothes in October 2018: over six months later. This was fault but, as Mrs C had other clothes, did not cause her any great injustice. It did, however, cause Mrs R to spend time in chasing the Council for repayment.
- More importantly, the Council has yet to replace Mrs C’s dentures, more than seven months after they were lost. This is fault. Dentures are essential items. This lack must have caused some distress to Mrs C and inconvenience to Mrs R.
- It is not clear why Mrs R could not have physiotherapy at Home A. However, I cannot say that Mrs C would have had knee surgery had it been provided. I make no finding on this point.
- The Council dealt more than fairly with Mrs R’s complaints in January 2018 holding itself to be at fault when perhaps the evidence did not support that finding. It agreed to repay all her top-up payments at Home A which means she has suffered no financial loss.
- There were communication problems. I cannot say who is responsible for those problems. I make no finding on this point.
- The records show Mrs C is a stoical woman who adapted well to life in Home A and Home B and seems to have been happy there despite a wish to go home. The records show she was well looked-after and safe in both homes and seems to have enjoyed the company in the day rooms. She did not know with great certainty where she was. Therefore, I do not find that there was great injustice to her in being in either home.
- However, there was some injustice; she would have preferred to be near Mrs R. There was also injustice to her in not having her clothes and dentures.
- Mrs R also suffered injustice. She was put to time and trouble in trying to get Mrs C home. She was also caused distress by being pursued by Home A for fees.
- The Council has agreed to take all necessary steps immediately to get Mrs C’s dentures replaced.
- The Council has agreed, within four weeks of the date of my final decision, to:
- Apologise to Mrs C and Mrs R for the fault found;
- Pay Mrs C £350 in recognition of the fact that she did not return home as soon as she might have done and the fact that she was without her dentures for seven months.
- Pay Mrs C £250 in recognition of her time and trouble she was put to after 1 May 2018 by the Council’s failures to ensure that Mrs C went home.
- The Council has agreed to write to the Ombudsman within two months to explain what lessons it has learned from this case and tell us what it has done to prevent an occurrence.
- I have found the Council was at fault. It has agreed with my decision and to implement my recommendations. I have closed my investigation.
Investigator's decision on behalf of the Ombudsman