Decision : Upheld
Decision date : 18 Oct 2019
The Ombudsman's final decision:
Summary: Mr X complained about the length of time his father, Mr Y, spent in a care home because the Council delayed putting arrangements in place to allow his father to return home. The Council delayed assessing Mr Y’s ability to manage at home and delayed sourcing a care provider. It also delayed responding to Mr X’s complaint. This meant Mr Y was in a care home longer than he should have been. The Council has agreed to apologise to Mr Y, reduce the bill by £2800 and pay him £500 to acknowledge the distress caused to him by the prolonged stay. It has also agreed to pay Mr X £150 to acknowledge the time and trouble and distress this caused him.
- Mr X complained about the length of time his father, Mr Y, spent in a care home because the Council delayed putting arrangements in place to allow his father to return home. The delay caused his father anxiety and distress and has resulted in a large care bill.
The Ombudsman’s role and powers
- 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)
- 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 have considered the information provided by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries.
- I have considered the Care and Support Statutory Guidance.
- I gave Mr X and the Council the opportunity to comment on a draft of this decision.
What I found
- 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.
- People in a care home will contribute most of their income towards the cost of their care and support. However, the council must leave the person with a specified amount of their own income to spend on personal items (the personal expenses allowance). Intermediate care services are provided to people after they have left hospital, to assist a person to maintain or regain the ability to live independently. Councils must not charge for intermediate care which must be provided free of charge for up to six weeks
- A temporary resident is someone admitted to a care or nursing home where the agreed plan is for them to only stay for a limited period. This could be for respite care, or where there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay. The council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community (i.e. the non-residential rules for charging).
- The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
- because he or she makes an unwise decision;
- based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
- before all practicable steps to help the person to do so have been taken without success.
- Mr Y is an elderly man who was living independently in his own home. In November 2017 Mr Y was hospitalised with dehydration and malnutrition. He was self-neglecting. The District Council’s Environmental Health Department raised concerns about the state of his property and required works to be carried out to improve the condition of the property.
- In early January 2018 Mr Y was discharged from hospital into a care home as a temporary resident while his son carried out the works required to his property.
- In February 2018 Mr X contacted the Council. He had completed the work to Mr Y’s house. The Council’s notes record Mr Y was desperate to be discharged from the care home and wanted to return home with a care package. The Council contacted the care home who advised that they considered Mr Y had capacity to make his own decisions. He needed prompting to eat, wash and dress. The Council agreed to assess Mr Y’s care needs. In February 2018 the Council assessed Mr Y’s contribution to funding his temporary residential care stay.
- At the end of February 2018, the District Council was satisfied Mr Ys home was now habitable.
- A Council officer visited Mr Y at the care home in March 2018 to assess Mr Y’s needs. Mr X and his wife were also present. The officer noted Mr Y was able to mobilise independently with a frame and wished to return home. They noted he said he could manage independently however he was admitted to hospital due to self-neglect. They arranged to visit Mr Y’s property ‘to assess the environment and plan for safe discharge to his home’.
- At the end of March 2018, the Council officer visited Mr Y’s property with Mr X. Mr Y was not present. The officer noted the works were almost completed and the District Council now considered the property habitable. Mr X expressed concern at the staircase as it was steep and narrow.
- In May 2018 the Council officer made a referral to the District Council for a DFG for Mr Y for a stair lift and level access shower.
- In August 2018 Mr X submitted a complaint to the Council that Mr Y was very depressed and wanted to go home yet was still in the care home 7 months after he left hospital. A stairlift had not yet been fitted and the Council had charged Mr Y for the first six weeks stay in the care home when he was told this would be free.
- The Council officer visited Mr Y in the care home in early September 2018. Mr Y said he was looking forward to returning home. At the end of September 2018, the officer called the care home who said Mr Y was self-neglecting. He would not let staff support him and was stating he wanted to return home.
- At the end of September 2018 the officer carried out a home visit with Mr Y and their manager to establish Mr Y’s ongoing needs and to determine what support he needed so he could return home safely. They noted that throughout the visit Mr Y ‘mobilised around his home without difficulty. Within the home environment he was prompted to use his walking frame but primarily was not using any walking aid to assist’. They noted Mr Y’s staircase was very steep and Mr Y had agreed to a stair lift being installed. This was being processed by the District Council. However at the visit, Mr Y ‘mobilised up and down the stairs independently using the hand rails on both sides of the staircase for support’. They advised Mr Y to go up and downstairs at a slower pace and recommended Mr Y limit going up and downstairs unless necessary. They recommended a commode be provided for Mr Y to use at night, as Mr Y’s bathroom facilities were downstairs.
- They noted Mr Y’s ‘mental health and wellbeing have declined as a consequence of him not being in his own home’ and that Mr Y ‘clearly stated that he wanted to return to his own home’. They recommended he be supported to return home with a care package in place.
- In mid-October 2018 the officer made a referral for a care package for Mr Y of one hour in a morning and one hour in an evening to support Mr Y with his personal hygiene and to support him with meals, snacks and drinks.
- Mr X contacted the Council in mid-October to ask why it was taking so long to organise a care package for Mr Y.
- The Council responded to Mr X’s complaint from August 2018 in November 2018. It apologised and accepted it should not have charged Mr Y for his first six weeks in the care home. It said waiting for equipment had delayed Mr Y’s discharge home, as had finding a care provider.
- Mr Y’s case was reallocated to another officer, officer B, at the end of November 2018. Officer B visited Mr Y in early December 2018. They noted in their professional opinion Mr Y should return home and that Mr X was happy to continue supporting Mr Y at home.
- Mr X contacted the Council mid-December as the shower was not yet ready. The Council agreed Mr Y could stay in the care home. Around this time the Council’s notes record the difficulties it was having finding carers to meet the care package.
- The District Council confirmed it completed the works just before Christmas 2018. Mr X called the Council to advise Mr Y was going home.
- Just after Christmas, Mr X contacted the Council to report Mr Y was not coping. He was confused and unable to use the microwave. He was staying in bed and not taking his medication.
- Officer B visited Mr Y in late December 2018. They noted Mr X said Mr Y was not eating, washing or taking his medication. He refused to use the stairlift. They noted Mr Y was able to walk up the stairs without any difficulties. They noted Mr Y had capacity and did not want to go into a care home. He was willing to accept carers visiting.
- Mr Y’s care package started in early January 2019.
- Mr Y has yet to pay his residential care bill. He owes the Council £9,723.
- The Council, in its complaint response to Mr X, accepted it wrongly charged Mr Y for the first six weeks of his care home stay. It apologised and amended the bill. This was appropriate. After the first six weeks, the Council was entitled to charge Mr Y for his stay in residential care. Mr Y was expected to contribute his income minus any small amount for his personal allowance plus other expenses. The Council carried out a financial assessment and is not at fault in the way it calculated Mr Y’s contribution or for charging him, once it corrected its initial mistake.
- However, Mr Y was in the care home for far too long. The Council says the delay is due to the need for specialist equipment and the delay in sourcing care. I have not investigated the time taken to carry out the adaptations as these were carried out by the District Council and not Essex County Council and so are not part of this complaint.
- When the Council visited Mr Y in March 2018 it noted Mr Y could mobilise independently. The Council visited Mr Y’s property in late March 2018 but Mr Y was not present at the visit. It did not properly consider whether Mr Y’s care needs could be met by him returning home and managing to get around the house while waiting for the adaptations to be completed. This is fault. At the time Mr Y was keen to return home and had capacity to make that decision. It was not until September 2018 the Council assessed Mr Y’s ability to manage his stairs and found he could do so independently. It was satisfied Mr Y could manage safely at home while waiting for the works to be completed. It considered there were risks but found ways to mitigate against these through a care package and using a commode while waiting for the stairlift. The Council could have assessed Mr Y’s ability to manage the stairs sooner. The delay in doing so is fault.
- There is no evidence the Council started trying to source home care for Mr Y until mid-October 2018. It then took nearly three months to find a provider. The Council had difficulties due to the rural location of Mr Y’s property and the records show it tried extensively to meet the package of care, so the delay in itself is not fault. However, it should have tried to source a care package sooner. The delay in doing so is fault and meant Mr Y was in the care home longer than he should have been.
- I cannot know exactly how long Mr Y should have been in the care home. However, had the Council assessed Mr Y’s ability to manage at home in March 2018 and looked to source a care package at that time, it likely he could have been home by June 2018.
- Had Mr Y gone home in June 2018 he would still have been expected to contribute to the cost of his home care package (currently £112 a week).
- The delay in Mr Y’s return home caused him significant distress. Mr Y was refusing support from staff at the care home and repeatedly asserted that he wanted to go home. The Council acknowledged Mr Y’s mental health and well-being declined as a consequence of him not being at home.
- Mr X complained to the Council in August 2018. He did not receive a response until November 2018. The Council’s complaints policy says it will respond within 10 working days. If it cannot respond within 10 working days it will let you know and explain why. The Council’s delay is fault and caused Mr X frustration
- The Council has agreed, within one month of the final decision, to apologise to Mr Y and reduce the bill for his temporary residential stay by £2800 to remedy the avoidable costs caused by the Council’s delays which meant Mr Y was in a care home longer than necessary. It has also agreed to pay Mr Y £500 to acknowledge the significant distress caused by the delays. It is open to the Council to offset this against the amount owed.
- It has agreed to pay Mr X £150 to acknowledge the frustration and distress he was caused by the Council’s delay in responding to his complaint and in arranging care for Mr Y.
- I have completed my investigation. There was fault by the Council which caused injustice which it has agreed to remedy.
Investigator's decision on behalf of the Ombudsman