Summary: Mrs X complains the Council delayed in re-assessing her father’s care and support needs, and in deciding how those needs should be met. She also complains the Council has failed to correctly calculate the cost of meeting her father’s care needs and awarded direct payments which do not meet the full cost of his care. The delay in reassessing Mr Y’s care needs, and in arranging a package of care so that he could return home amounts to fault. As does the failure to calculate the cost of Mr Y’s care at home when determining the level of his direct payments. These faults have caused an injustice as Mr Y had to remain in hospital for longer than necessary and has had to pay the shortfall in the cost of his care.

The complaint

1. The complainant whom I shall refer to as Mrs X complains the Council delayed in re-assessing her father’s care and support needs, and in deciding how those needs should be met.
2. Mrs X also complains the Council has failed to correctly calculate the cost of meeting her father’s care needs and awarded direct payments which do not meet the full cost of his care.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• sent a statement setting out my draft decision to Mrs X and the Council and invited their comments. I have considered Mrs X and the Council’s responses.

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What I found

7. Once a council has decided on a person’s eligible needs, it can either provide or commission the services for the person, or if they prefer, the council can give them a cash payment (a direct payment) so they can organise their own care. 
8. Direct payments provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The council has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Best interest decisions

9. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. When a person’s capacity is in doubt, the council must assess their ability to make a decision. How it assesses capacity may vary depending on the complexity of the decision.
10. 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 in that person’s best interests.
11. The Mental Capacity Act 2005 provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. This includes considering the person’s past and present wishes and feelings. The decision maker must also consider if there is a less restrictive choice available that can achieve the same outcome.
12. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.

What happened here

13. Mrs X’s father, Mr Y has lived with Mrs X and her family since 2001. Mr Y has several medical conditions and receives direct payments to pay for his care and support. Mrs X manages the direct payments for Mr Y.
14. The Council reassessed Mr Y’s care needs in September 2017 and agreed a care package of four visits a day by two carers. Mrs X did not consider the time allowed was enough to meet Mr Y’s needs and asked for the assessment to be reviewed. Rather than have four calls each day, Mr X had been supported by a live-in carer. Mrs X used the direct payments towards the cost of the live-in carer.
15. In January 2018 Mrs X again asked for a review of Mr Y’s needs. Mr Y’s needs had increased, and the care package was not adequate to meet those needs. A social worker visited to assess Mr Y’s needs. The social worker then asked a senior manager to consider increasing Mr Y’s disability related expenses (DRE) from £17 to £315.12 per week to cover the shortfall in the cost of the live-in carer.
16. The manager confirmed DRE was not intended to meet a shortfall in the cost of a live-in carer. The manager asked for evidence of the nature and extent Mr Y’s needs. Mr Y’s care and support plan did not refer to support needs at night. The social worker agreed to review the support plan to reflect the night time needs.
17. The social worker and a senior officer reviewed Mr Y’s needs on 23 April 2018. This review confirmed Mr Y needed support that would be readily available to him throughout the day and night. Following this review the social worker sought advice on how to proceed. The social worker noted Mr Y had always maintained that he wanted to be supported to live at home and that his family would also like him to remain at home. The Council did not have a clear policy on 24-hour care at home so the question of how to meet Mr Y’s needs would be down to management discretion. The social worker confirmed the cost of supporting Mr Y at home exceeded the cost of supporting Mr X in a care home, and that the care home would meet Mr Y’s needs.
18. An occupational therapist (OT) also assessed Mr Y’s needs. The assessment notes the OT will liaise with the Council to ensure Mr Y’s care package specifies two people are needed for all transfers.
19. Before a decision was made on Mr Y’s care package, Mr Y was admitted to hospital. Mr Y was admitted on 12 May 2018 and was medically fit to be discharged a week or so later.
20. While in hospital, a social worker reviewed Mr Y’s needs and noted Mr Y

“requires 24 hour care throughout the day to maintain his personal hygiene, wash, change pads, dress, prepare serve and supervise meals and monitor his mobility to ensure his safety and wellbeing. He needs carers who will be readily available to support him during night times.”

21. Mrs X did not want Mr Y to return home under his existing care package. Mr Y was not eligible for Continuing Healthcare funding (CHC) and Mrs X told the Council she could not afford to continue topping up the cost of a live-in carer. Mrs X asked the Council to fund night time care.
22. At the end of May 2018 Mrs X complained to the Council about the delay in making a decision on meeting Mr Y’s care needs. Mr Y was still in hospital and Mrs X was concerned his health and well-being were deteriorating. The Council did not respond to Mrs X’s complaint at this stage.
23. In late June 2018 the Council asked Mrs X to consider moving Mr Y to a non-chargeable assessment bed. Mrs X refused as she felt moving Mr Y would unsettle him and cause further distress. Mrs X felt in was in Mr Y’s best interest to move home.
24. The Council requested a review of Mr Y’s CHC eligibility. This took place on 5 July 2018. The officers involved did not consider Mr Y’s needs could realistically be met at home. They recommended the Council and Clinical Commissioning Group (CCG) jointly fund a placement at a nursing home for 12 weeks, and then review the care package. To help Mr Y with this transition the Council and CCG would jointly fund one-to-one care for two weeks.
25. Officers met with Mrs X on 17 July 2018 to discuss Mr Y’s care. The records of his meeting note Mrs X did not consider a nursing home was an option as it would have a negative impact on Mr Y’s mental health. The family’s culture was to look after their elderly at home. Mrs X was concerned Mr Y’s current setting was similar to a nursing home and she felt Mr Y had deteriorated there as he was now bed bound and immobile.
26. Mrs X subsequently agreed to a placement at Care Home 1. Care Home 1 is a residential rather than nursing home. Mrs X’s husband runs Care Home 1 and confirmed they could meet Mr Y’s needs by making a few adjustments. Mr Y moved to Care Home 1 on 10 August 2018.
27. A social worker and a CHC assessor reviewed the placement on 24 August 2018. The assessment notes Mr Y was very unsettled and shouted most of the time during his first week at Care Home 1. He had settled down and the care home records showed that most periods of anxiety and shouting occurred during the day. This was managed by one-to-one support. Mr Y was more settled at night. He would often getup to use the urine bottle and would manage to settle back to bed.
28. Mrs X disputes the accuracy of the social worker’s notes. She states Mr Y continued to be unsettled during the night, and experience anxiety and panic attacks when the carer left the room.
29. The officers recommended one-to-one support during the day continue. But they agreed that night time one-to-one support was not proportionate to Mr Y’s needs and recommended this be stopped. The officers also recommended Mr Y move to a care setting where his nursing needs could be met.
30. Mrs X maintained Mr Y would not move to a nursing home or care facility. She asked the Council to provide a suitable care package so that Mr X could return home.
31. The Council’s records state Mr Y no longer met the CHC funding criteria, and this funding would end when the Council decided where Mr Y should reside. The CCG agreed to continue funding Mr Y’s care and one-to-one support at night on a ‘good will’ basis until the situation was resolved
32. On 17 September 2018 a social worker assessed Mr Y’s capacity to make a decision about where he should live and determined Mr Y did not have capacity. The Council then held a Best Interest meeting on 19 September 2018 to consider the options available. The three options discussed were:
• To stay at Care Home 1;
• To move to a nursing home; or
• To return home.
33. The minutes of this meeting show that when discussing the option of Mr Y returning home, an NHS representative advised it was clear Mr Y needed support 24 hours a day, and suggested this could be met in three ways:
• A live-in carer plus a non live-in carer for evening support;
• Two non live-in carers who do two shifts (or three carers for three shifts); or
• Two live-in carers on a rotational basis
34. Mr X confirmed the first option was working well at Care Home 1 and would continue to work well if Mr Y returned home. The outcome of this meeting was that it would be in Mr Y’s best interest, and the least restrictive option for Mr Y to return home.
35. The Council states it agreed with CCG, as a goodwill gesture, to continue funding the one-to-one night time support while plans were made for Mr Y to return home.
36. The Council produced a care and support plan and assessed Mr Y’s finances to determine the level of his contribution towards his care. The Council advised Mrs X that Mr Y would receive direct payments of £1175.63, and Mr Y’s contribution would be £175.86 each week. The Council subsequently recalculated and reduced Mr Y’s contribution.
37. Mr Y returned home on 10 November 2018. Mrs X used the direct payments to employ two carers. She advised the Council the direct payments did not cover the cost of this care and Mr Y was having to make up the difference. The day carer is employed via an agency, but the night carer is employed privately as they cannot afford the agency fees. Mrs X told the Council she was concerned about covering the night time care if the private carer was unable to attend.
38. The Council responded to Mrs X’s formal complaint in November 2018 and apologised for the delay in responding. The Council acknowledged there had been a delay in reviewing Mr Y’s care needs between January and April 2018 and apologised for this.
39. The Council also acknowledged there had been a delay in Mr Y being discharged from hospital. It suggested there were several reasons for this, but the main reason was the difference in opinion on how Mr Y’s needs could be best met. Health and social care specialists considered Mr Y’s needs could be best met in a nursing environment where support from more than two people would be readily available when needed. But Mr Y’s family wanted him to return home with 24- hour support. The Council asserted a factor in the delay was the time taken to find a placement that could meet Mr Y’s needs and be acceptable to the family.
40. In recognition of the delays and the time and trouble Mrs X had been put to, the Council offered Mrs X a goodwill gesture of £500.
41. The Council also confirmed it would ensure staff used the Mental Capacity Act and considered the least restrictive option for supporting people. It was also providing training for staff on assessment and care and support planning, which would include the need for timely decision making. And it would provide clarity regarding DRE assessments.
42. Mrs X is not satisfied by the Council’s response and has asked the Ombudsman to investigate. In response to my enquiries the Council states Mr Y requires 24-hour care which would include provision for sleep–in night cover rather than waking night cover. It considers Mr Y’s needs would be more appropriately met in a 24-hour residential care environment, but the family wishes to care for Mr Y at home.
43. The Council states that Mr Y moved to Care Home 1 at Mrs X’s request. The Council would have considered other homes that were better placed to meet Mr Y’s needs, but Mrs X was unwilling to consider them. The Council agreed to one-to-one support to facilitate the placement at Care Home 1. Officers subsequently determined at the review in August 2018 and the best interest meeting in September 2018 that one-to-one night time support was no longer necessary.
44. The Council states Mrs X agreed to accept a cost equivalent to the cost the Council was funding at Care Home 1 plus the one-to-one day time support. Mrs X said she would make up any shortfall necessary for one-to-one night time support if she deemed this necessary. The Council considers Mr X’s needs could be met by a sleep-in carer and does not require one-to-one waking night time support.
45. The Council states it will continue to review Mr Y’s needs and visited Mr Y in February 2019.
46. In response to the draft decision Mrs X disputes that she agreed to accept direct payments equivalent to the cost of Mr Y’s placement at Care home 1 plus the one-to-one day time support. She states she received details of the proposed payments with the care plan and queried how they had been calculated.
47. Mrs X is keen to ensure that any future direct payments reflect the actual cost of Mr Y’s care package. She states the privately employed night time carer is leaving, and she wants all future carers to be provided by an agency, so that there is continuity of care.
48. Mrs X has also queried whether Mr Y should have had to pay a contribution towards the cost of his care while at Care Home 1. Mrs X did not expect Mr Y to have to contribute as his care was jointly funded by the Council and the CCG.
49. The Council’s records show the social worker advised Mrs X that all services provided by the Council are chargeable regardless of whether the cost is shared with the CCG or not. Mr X was still expected to contribute towards the service that the Council was paying for.  The amount he had to contribute was dependent on the outcome of the financial assessment, not the cost of his care. 

Analysis

50. The Council accepts there was a delay in re-assessing Mr Y’s needs between January and April 2018. This delay amounts to fault.
51. It is concerning that the social worker considered the shortfall in Mr Y’s care costs could be met by significantly increasing his DRE. This suggests a lack of understanding of the purpose of a DRE assessment. I note the Council has identified this as a learning point.
52. The Council also accepts there was a delay in providing a suitable care package to allow Mr Y to be discharged from hospital. Mr X was medically fit to be discharged in May 2018 but remained in hospital until August 2018 and did not return home until November 2018.
53. It is clear there was a difference of opinion between Council and the family about how and where Mr Y’s needs could be best met. But it is also clear that Mr Y has consistently said that he wanted to live at home with his family. The Council’s records of the assessment in April 2018 note Mr Y had fluctuating capacity to make decisions but had always maintained he wanted to be supported to live at home. This is also recorded in the social worker’s records of the assessment of Mr Y’s eligibility for CHC in May 2018.
54. I would therefore have expected the Council to carry out a mental capacity assessment and hold a best interest meeting to resolve this issue in a timely manner. A delay of four months is not acceptable and amounts to fault.
55. These delays have caused Mr X an injustice. He had to remain in hospital for significantly longer than was necessary and this affected his well-being. Mr Y’s mobility deteriorated while in hospital and he became bed bound.
56. The Council made a best interest decision that Mr Y should return home with an appropriate package of care. The Council has assessed Mr Y as needing 24-hour support from carers who will be readily available to support him throughout the day and night. It has also assessed that two people are required to support Mr X with all transfers.
57. The Council does not have a policy on 24-hour care at home so decisions are made at management’s discretion. In April 2018 the social worker noted they had been advised to disregard cost setting guidance in this case and had contacted a few agencies to get quotes for 24 hours care. One agency quoted £1500 per week, another gave a range of £1000 to £1350, depending on the level of need. A third agency quoted for a sit in service based on two carers on 12 hour shifts. This was significantly more expensive. There is no indication of any additional cost for a second carer to assist with transfers.
58. The Council states it has calculated Mr Y’s direct payments on the basis of the cost of Mr Y’s care at Care Home 1 and one-to-one support during the day. This is not an appropriate way to calculate the cost of Mr Y’s care. There is no provision in the Council’s charging policies for awarding the equivalent of the cost of a residential placement rather than the actual cost of live-in carers.
59. The Council has not calculated the actual cost of providing Mr Y with an appropriate care package at home. Nor has it checked whether Mr Y’s needs can be met at home with the level of direct payments provided.
60. I recognise providing 24-hour care for Mr Y at home may not be best value of the Council but having made a best interest decision that Mr Y should be supported to live at home, I would expect the Council to ensure that this is properly funded. Failure to do so amounts to fault. This fault has also caused Mr Y an injustice as he has had to pay the shortfall in the cost of his care.
61. The faults identified have also caused Mrs X an injustice as she has experienced distress, anxiety and frustration, and been put to unnecessary time and trouble in trying to resolve the matter.

Agreed action

62. The Council has agreed to:
• apologise to Mr Y for the delays in assessing his needs and in arranging a package of care so that he could return home;
• pay Mr X £500 in recognition of the impact the delays in assessing his needs and in arranging a package of care so that he could return home have had on him;
• review how it has calculated Mr Y’s direct payments and ensure that these payments are sufficient to pay for the actual cost of meeting his assessed needs at home;
• if this review identifies that direct payments made since Mr Y returned home in November 2018 were insufficient to meet his needs, the Council should pay Mr Y the shortfall;
• apologise to Mrs X and pays her £250 in recognition of the distress, anxiety and frustration, and unnecessary time and trouble she has been put to as a result of the faults identified above.
63. The Council should carry out these recommendations within one month of the final decision.

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Final decision

64. The delay in reassessing Mr Y’s care needs, and in arranging a package of care so that he could return home amounts to fault. As does the failure to calculate the cost of Mr Y’s care at home when determining the level of his direct payments. These faults have caused an injustice.

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Investigator's decision on behalf of the Ombudsman