Summary: The Council was at fault for not completing a timely review of the complainant’s care. It is not possible to conclude this made any significant difference to the care she received, or delayed her receipt of Continuing Healthcare; but it caused her son some distress, time and trouble, and the Council has agreed to offer a financial remedy for this.

The complaint

1. The complainant, to whom I will refer as Mr M, acts on behalf of his late mother, to whom I will refer as Mrs L.
2. Mr M complains the Council failed to respond promptly to his request for Mrs L’s care to be reviewed, and this meant she remained in an unsuitable care home for longer than was necessary. Mr M also complains the Council did not refer Mrs L for a Continuing Healthcare assessment as early as possible.

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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)

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How I considered this complaint

4. I reviewed the Council’s case notes, the record of an interview with two social workers involved in Mrs L’s case, and its correspondence with Mr M, including his complaint.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Mrs L suffered from dementia and several other conditions. She had been permanently resident in a care home (Care Home 1) since September 2015. In March 2016, the Council completed a review of her care. The review concluded she was settled and well-looked after in the home.
7. In April, Mrs L’s home was sold. At this point her care became fully self-funded. In September, Mrs L moved to a different care home (Care Home 2).
8. In February 2017, the Council visited Mrs L at the home to complete a Best Interests Assessment. The assessor noted Mrs L suffered badly with confusion brought on by her dementia, and had a limited understanding her living situation, but was settled and happy in the home. The assessor also spoke to Mr M, who said he had no complaints about Mrs L’s care.
9. On 7 February 2018, Mr M contacted the Council. He said he believed Mrs L might be eligible for Continuing Healthcare (CHC). The Council noted Mrs L’s care review was overdue, and said it could consider referring her for a CHC assessment once the review was complete. The Council also noted Mrs L’s care plan still showed her as resident at Care Home 1, which she had moved from in September 2016.
10. On 14 February, the Council allocated an officer to complete a Deprivation of Liberty Safeguards (DoLS) assessment of Mrs L.
11. On 22 June, a social worker, Ms F, emailed Mr M. She asked him to contact her to arrange a date for Mrs L’s review. After he responded, the review date was set for 2 July.
12. Ms F attended Care Home 2 on 2 July, where she met Mrs L and Mr M. A carer told Ms F that staff had been “struggling” to manage Mrs L’s needs several months previously, but she had improved after being placed on steroids.
13. Ms F discussed CHC with Mr M, and said she would use the outcome of the review to determine whether to make a referral for CHC. However, she noted her impression at the time was Mrs L would not qualify for CHC.
14. Ms F also spoke with the home’s manager, who said Mrs L’s GP could fast-track her for CHC-funded nursing placement if he considered she was nearing the end of her life. If not, Ms F recorded she could the complete the CHC referral checklist.
15. The GP visited Mrs L later the same day, and agreed to fast-track her for a nursing placement.
16. Mrs L’s CHC began on 4 July. On 6 July, she moved to a nursing home.
17. Mr M submitted a complaint to the Council on 6 August. He explained his belief Mrs L should have been eligible for CHC some time before she began receiving it, possibly up to a year. He questioned why the Council had not considered this previously, and complained about the delay in organising her review between February and July 2018. He also questioned whether there had been a mechanism for carers at Care Home 2 to raise concerns with the Council about Mrs L’s deteriorating health.
18. The Council responded on 7 November. It accepted it should have prioritised Mrs L’s review after Mr M’s contact in February, and upheld this element of the complaint.
19. The Council confirmed it had not considered whether Mrs L might be eligible for CHC before the review on 2 July. However, the Council noted Mr M had said, in February 2017 and February 2018, he was satisfied with the level of care Mrs L had been receiving.
20. The Council said there was no evidence the lack of a timely review meant Mrs L had been receiving inadequate care, and said staff at Care Home 2 would have notified the Council if they had any concerns about her care. The Council said Mrs L had been “well settled” until her move to nursing care.
21. Mrs L passed away at the nursing home on 16 November.
22. Mr M referred his complaint to the Ombudsman on 23 July 2019.

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Legislative background

Continuing healthcare

23. Councils which are social care authorities have a duty to co-operate with relevant partners, including the NHS, in meeting their responsibilities both generally and in specific cases. That may include seeking NHS involvement if they consider a person may be eligible for NHS continuing care. A family member or care provider may refer a person to the NHS for continuing care assessment if the council does not. It is the responsibility of the relevant NHS body, not the council, to assess the person’s needs and decide whether they are eligible for continuing care.

Care and support plan reviews

24. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met.

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Analysis

25. Mrs L’s care plan was reviewed in March 2016. This meant the next review should have taken place by March 2017 at the latest.
26. The Council’s case notes show an officer visited Mrs L at Care Home 2 in February 2017. This was part of a Best Interests Assessment. The officer concluded she was well-placed at that time, and noted Mr M also had no concerns about her care or her placement in Care Home 2.
27. When a person has lost capacity to safely make certain decisions (and this has been confirmed by an assessment), the law says those making decisions on their behalf must do so in their ‘best interests’. In this case, it appears the assessment was to determine whether Mrs L’s placement at Care Home 2 was in her best interests.
28. However, this assessment did not constitute a review of her care plan. This is demonstrated, not least, by the fact it took another year for the Council to realise the plan still showed Mrs L as resident at Care Home 1.
29. To make matters worse, even once the Council had acknowledged Mrs L’s review was overdue (when Mr M contacted it in February 2018), it still took another four to five months before the review was finally undertaken. This meant Mrs L had gone without a review for approximately 27 months. The Care Act says care plans should be reviewed at least once every 12 months, and so she had in fact missed not one, but two reviews in that time.
30. It is important for care plans to be reviewed regularly. A person’s care needs can change dramatically in a relatively short period of time, as their health improves or deteriorates, and care planning should remain dynamic to account for this. So the Council’s failure to review Mrs L’s care for such a long period is a clear and significant fault, which is compounded by the failure to act promptly even once it had acknowledged it was long overdue.
31. It is, however, more difficult to identify what injustice this may have caused Mrs L.
32. As I have said, although it did not constitute a review, it is clear there were no concerns at all about Mrs L’s care or her placement at Care Home 2 during the Best Interests assessment in February 2017. The assessor’s note of his visit is detailed and comprehensive, and also records Mr M was happy with his mother’s situation. So it can be reasonably inferred a review would not have led to any significant changes in her care plan at that time.
33. There were more concerns about Mrs L’s situation in early 2018. She had suffered a fall, and, during the July review, a carer said staff had been “struggling” to manage her – although it is not clear from the note what this actually meant in real terms. However, the carer also said a course of steroids had since led to an improvement.
34. As such, it is again difficult to conclude that a review in (for example) February 2018 would have led to any significant changes in Mrs L’s care plan. The evidence does not show her placement or care were generally inappropriate at that time.
35. I cannot overlook the flurry of work which suddenly took place after the review in July. Within four days of the review, Mrs L had been fast-tracked to full nursing care, moving to a new home, and with CHC funding. It appears unlikely this was coincidence, and so it must be asked if this could have happened sooner, had Mrs L been reviewed more promptly.
36. But this, unfortunately, can only be speculated about. It is equally possible the deterioration, which triggered her move to full nursing care, would have happened after a (timelier) review. So I cannot say Mrs L would have moved placement any sooner, even if the Council had met the target dates for her reviews.
37. Mr M’s complaint about the delay in receiving CHC is tied closely to this. The Council is not responsible for deciding whether a person is eligible for CHC; it can only refer a person to the NHS for consideration. So the Council would need to have received information suggesting Mrs L might qualify for CHC for this to happen.
38. The obvious opportunity for this was during her care reviews. Had these occurred on time, it is possible Mrs L may have been referred for CHC earlier than July 2018. But this does not mean the NHS would have decided she was eligible then. As I have said, the evidence suggests Mrs L was still reasonably settled in her placement, even as late as early 2018.
39. It is possible to make a retrospective application for CHC funding, even posthumously. If Mr M considers Mrs L should have been granted CHC sooner, it is open to him to ask the NHS to consider this. But I cannot find, on the evidence available, the Council’s fault led to a delay in CHC being granted.
40. I am, however, satisfied the Council’s failure to undertake more Mrs L’s reviews more promptly caused distress to Mr M, and some unnecessary time and trouble. In particular, he says he was told, on 7 February 2018, there would be approximately a six-week wait for Mrs L to have her review. But when this period came and went, he made several attempts to chase the Council up, mostly without response.
41. This is an injustice, and I consider the Council should offer Mr M a financial remedy to recognise this.
42. Separately, although the Council’s complaint response acknowledges its failure to complete Mrs L’s reviews on time, it does not indicate it has taken any steps to improve its service. I have asked the Council for more information about this.
43. The Council said its investigation had concluded the delays had arisen because of understaffing, and because of the way the relevant team had been structured. It had had no on-site management and no administrative support, and an inadequate work management system. The team had also been coping with an influx of work because of changes in the diagnostic procedures used by the NHS.
44. The Council says it has now recruited a manager, administrative support and two full-time review staff to the team. It has also reviewed and changed its work management system, which ensures there is no longer a waiting list and all referrals are allocated as they come in.
45. I am satisfied the Council has taken this matter seriously, and taken proactive steps to improve its timeliness. It is not possible to judge how effective these steps have been, but I cannot see what the Ombudsman could add at this time. I therefore make no recommendations for further service improvements.

Agreed action

46. Within one month of the date of my final decision, the Council has agreed to offer Mr M £300, to recognise his distress and time and trouble in trying to arrange Mrs L’s review.

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Final decision

47. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman