Decision : Upheld
Decision date : 21 Aug 2019
The Ombudsman's final decision:
Summary: Mr X complains the Council wrongly decided to send his mother home from a care home, causing her avoidable suffering. He also complains Council officers acted unprofessionally, causing him distress. The Ombudsman finds fault in the Council’s decision making process, causing Mr X distress and uncertainty. We recommend the Council makes a payment to remedy this. The Council has accepted its staff acted unprofessionally. The Ombudsman is satisfied with the Council’s actions to remedy this.
- Mr X complains the Council failed to assess his late mother’s care needs properly, leading to an incorrect decision to return her home from residential care. Mr X believes his mother suffered as a result, causing him and his sister Ms Z distress. Mr X also complains the Council acted unprofessionally in its dealings with him, causing distress.
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)
- We cannot question whether a council’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)
- We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision.
What I found
Care Act Statutory Guidance
- The Department of Health and Social Care publishes statutory guidance on the Care Act 2014, which I have referred to below.
- The purpose of a care assessment is to identify the person’s needs and how these impact on their wellbeing, and the outcomes the person wishes to achieve in their day-to-day life. The assessment will support the determination of whether needs are eligible for care and support from the local authority. An assessment must be person-centred, involving the individual and any other person they might want involved. An adult with care needs could for example ask for their GP or a district nurse to be contacted to provide information relevant to their needs.
- Staff involved must have the appropriate training and should have access to professional support from social workers, occupational therapists and others, to ensure complex needs are identified early and people are signposted appropriately.
- Local authorities should consider whether the person may have difficulty communicating and whether a specialist may be needed to support communication.
- Mr X’s late mother, Mrs Y, was hard of hearing with mobility issues and declining health. She received four care calls at home per day. She also had a pendant for emergency calls when she fell.
- Mr X says his sister, Ms Z, Mrs Y’s GP and him had all tried to persuade Mrs Y to go into residential care to no avail.
- Mrs Y went into hospital in May 2018.
- In June a social worker met with Mrs Y, her friend and Ms Z to discuss her discharge from hospital. The Council has provided a copy of the social worker’s review record. This shows the social worker heard from Mrs Y, a friend, Ms Z, Mrs Y’s GP and hospital staff. The social worker considered all the information available and concluded Mrs Y “would benefit from an interim placement to enable a routine around her care needs with the view to returning home. This would also encourage her mobility and independence when she eventually returns home.” A further review was due in 4 to 6 weeks.
- The social worker completed an information form for the care home. I note this says:
- Mrs Y “uses a hearing aid on her right ear. She is extremely hard of hearing. Please speak clearly and stay close to enable flow of communication. Also give clear explanation during care provision”.
- Mrs Y “is able to advocate for herself, however is supported by her children”.
“Mrs Y is able to communicate clearly, her understanding is due to not being able to hear clearly. She has hearing aids but they are not working very well. I tried to use a pocket talker but Mrs Y said this was not helping her to hear what was being said.”
- The review record shows the community support worker spoke with Mrs Y, Ms Z and other family members. The case notes show the support worker also spoke to care staff and considered their observations on the care provided to Mrs Y.
- In consideration of the information provided the support worker concluded:
“It would benefit Mrs Y to remain in a residential placement as if she returned home there would very likely be a significant impact on her well-being and there would probably be frequent re-admissions to hospital.”
- A further review was due in 4 to 6 weeks.
- The Council’s case notes for 2 August 2018 say:
“Sufficient evidence and reasoning to justify recommendations to continue with placement following the completion of a social care review. Mrs Y continues to require 24h hour support. Staff are required to offer support in a timely manner to reduce the risk of falls and further breakdown in both her health and emotional wellbeing. The impact of Mrs Y’s physical and emotional health on the overall support required is evident within the assessment and for Mrs Y’s welfare and safety, both physically and emotionally, remaining in a 24hr setting appears to be the best option at this point. Family are in agreement with this decision.”
- The case notes for 8 August show the Council’s forum questioned why Mrs Y’s needs could not be met at home. The notes say:
“Forum requested additional information regarding clarity on the reasons for Mrs Y not going home. The worker advised that this is because she will have night needs at home although there was no explanation why this cannot be met. There did not appear to be any evidence why Mrs X could not be supported in her own home. The worker’s assessment and view was acknowledged.”
“Since this was presented Mrs Y has significantly improved. Plan agreed with worker and team manager for Mrs Y to have a trial stay at home whilst retaining her temporary residential placement. If this is positive for Mrs Y she will be provided support at home. If this is not effective and does not meet Mrs Y’s outcomes or manage risks the worker will represent for a permanent residential placement.”
- There is no other record as to how the Council decided Mrs Y should return home. In response to enquiries the Council explains the support worker reviewed care home records and found Mrs Y’s mobility and independence had improved. Further that she concluded Mrs Y had no night time needs. On 17 August the support worker asked the Council to source a home care package for Mrs Y to return home.
- The case note of 21 August reports Mrs Y does not want to go home. But the support worker insists her needs can be met at home and so the Council would not fund her continued stay in the care home.
- The next record refers to Mrs Y’s discharge from the care home. This says:
- Mrs Y wants to remain in the care home but says she is not allowed to.
- Mrs Y “is hard of hearing so needs to be spoken to clearly and directly. She wears hearing aids but is not always able to hear, but can understand when questions are written down.”
- It identified a number of inadequacies in the way it managed Mrs Y’s care and support.
- It recognised communication with Mrs Y and her family was poor and more could have been done to take into account the psychological and emotional impact of the decisions taken.
- It apologised and confirmed it would make improvements and learn lessons.
- It accepts staff held an inappropriate discussion about Mr X and they were sorry. They would send him a personal apology.
- The Council would feed back [internally] for appropriate action to be taken regarding their conduct.
- It waived the final invoice in response to Mr X’s complaint about the delay in Mrs Y leaving the care home.
- The Council explains the support worker took the initial view that Mrs Y should remain in a residential placement. However, Mrs Y then started to improve and her needs reduced. The Council says the support worker gathered evidence from the care home and found Mrs Y was mobilising independently and did not require night time support. She therefore arranged for Mrs Y to return home.
- The Council says the support worker was aware of Mrs X’s hearing loss and identified strategies to ensure she could engage in conversations, including eye contact, seating positions and using pocket talker as an aid.
- The support worker did not record the reasons for the change in Mrs Y’s support or the views of others. The Council accepts this is fault. It now quality reviews her work to prevent recurrence. It has placed her on an action plan and under observation. It is also reviewing and updating its guidance on record keeping.
- It had accepted fault in relation to the actions of its staff but failed to complete the promised actions. It therefore offers Mr X £200 for the time and trouble in bringing his complaint.
- Staff failed to send Mr X apology letters due to human error. This has now been actioned.
- Mrs Y could communicate clearly when she spoke with her.
- On each occasion she met Mrs Y either staff or her daughter were present and they knew better how to interact with her.
- She spoke clearly, used open questions and ensured Mrs Y maintained eye contact.
- She tried a pocket talker but this did not help.
- Having reviewed the Council’s records I am satisfied Council officers took appropriate steps to communicate with Mrs Y and were aware of her wishes.
- It was not necessary for a social worker to review Mrs Y’s needs provided the support worker was suitably trained and took professional advice when necessary.
- The Council must provide care to meet a person’s assessed needs. If the Council decides a person’s needs can be met at home, it does not have to continue to support their stay in a residential placement.
- I cannot question whether the Council’s decision is right or wrong simply because Mr X disagrees with it. I must consider whether there was fault in the way the decision was reached.
- Having considered the documents provided I am satisfied the support worker considered relevant information in deciding Mrs Y should remain in the care home. The support worker recorded the reasons for her decision and the evidence considered in the review record. This evidences the Council followed a proper decision making process.
- On or about 17 August 2018 the social worker decided Mrs Y should return home. The support worker did not complete a further review or otherwise record the reasons for this decision. Nor did she detail the evidence relied on. There is also no evidence she had a further discussion with Mrs Y, her family or others before deciding Mrs Y should return home. There is a lack of evidence to show the Council followed a proper decision making process. This is fault.
- I note the Council has now explained the reasons for the support worker’s decision. However, I cannot say with certainty what the Council’s decision would have been, if it had followed a proper decision making process at the time. As there is a level of uncertainty, I cannot say Mrs Y returned home because of the Council’s fault. But I find the Council’s fault caused Mr X and his sister Ms Z distress and left them uncertain as to whether Mrs Y’s death and suffering could have been avoided. I therefore consider the Council should provide a remedy to Mr X and Ms Z for distress and uncertainty.
- The Council has outlined the actions taken to supervise the relevant support worker to prevent recurrence of this fault. I am satisfied with the actions taken.
- The Council accepts its staff held inappropriate conversations about Mr X and offered personal written apologies. However, it then did not provide these. This is fault. The Council has since provided these apologies. It has also offered Mr X a payment for the time and trouble in bringing his complaint to the Ombudsman. I am satisfied with this proposed action.
- It is not within my remit to say whether the Council should discipline its staff. The Council confirmed it would take appropriate action in response to the unprofessional conduct but did not agree to inform Mr X of the action taken. I do not consider it is obliged to do so.
- To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
- Pay Mr X £200 for distress and uncertainty;
- Pay Ms Z £200 for distress and uncertainty;
- Pay Mr X £200 for the time and trouble in bringing his complaint.
- I find the Council failed to follow a proper decision making process when deciding to return Mrs Y home and Council staff acted unprofessionally. The Council has accepted my recommendations to remedy the injustice caused and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman