Summary: The Council acknowledges some fault in its communication with Mr X’s family and the record of Mr X’s capacity assessment. The Council will now offer a payment in acknowledgement of the distress caused to Mr X’s family.

The complaint

1. Mrs A (as I shall call the complainant) says the Council failed to consider her late father’s capacity properly, failed to explore all options for his discharge from hospital and did not properly communicate about the top-up payment required for his nursing care.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I considered all the information provided by Mrs A and by the Council. Both Mrs A and the Council had an opportunity to comment on earlier versions of this statement. I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.

7. The council must assess someone's ability to make a decision, when that person's capacity is in doubt.
8. The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
9. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top up fee is the difference between the personal budget and the cost of a home. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person's needs in a less expensive home within the personal budget, it can still arrange a place at the home if the person can find someone else (a 'third party') to pay the top up.
10. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care.
11. The Decision Support Tool (DST) – used in NHS continuing healthcare funding decisions – is a document which helps to record evidence of an individual's care needs to determine if they qualify for continuing healthcare funding.
12. The NHS is also responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).

What happened

13. Mr X was living at home independently with his wife when he suffered a stroke and was admitted to hospital in August 2017. He was left with right-side paralysis.
14. In October 2017 a social worker met Mrs X at the hospital to discuss discharge options for Mr X. The social worker’s case notes record Mr X’s condition: “As a result of this paralysis, he finds it difficult to feed himself, wash, dress,manage toileting and other daily tasks”. Mrs X said she wanted Mr X to improve before he came home. She said if he was discharged home in the current condition, she would be unable to look after him because of her own health concerns. “(Mrs X) said if her husband cannot improve then, he will have to go into a care home where he will receive the quality of care that he needs on a daily basis.” Mrs A denies Mrs X cited her own health problems as a reason not to have her husband home.
15. Mrs X asked the social worker to liaise with her daughter Mrs A about any discharge planning.
16. The social worker arranged an assessment (a DST meeting) for NHS funded health care. His notes of the meeting begin, “Before the DST meeting was held, SW completed a capacity assessment of discharge destination with (Mr X) and it indicates that (Mr X) had the capacity to choose his discharge destination of being discharge home but also expressed the fact he won’t mind going into a care home due to the stress of care by his wife. (Mr X) was able to express himself by using single words and pointing to pictures.”
17. Mrs A asked the social worker to let her know when the capacity assessment would take place as she wanted to attend. She says he agreed, but then refused to let her attend when she arrived. He told her she might “influence” her father’s decision.
18. Mrs A says the social worker lied about the capacity assessment. She says she kept asking for a copy but was sent a blank form.
19. The social worker recorded that all present at the meeting (including Mrs A) agreed with the way the DST was completed. He noted the plan was for Mr X to be discharged to a care home because Mrs X had said she would be unable to manage Mr X’s needs at home unless 24-hour care was provided. Mrs A says her father clearly indicated ‘no’ when shown a picture of a care home.
20. The social worker completed a needs assessment for Mr X on 9 November. The assessment concluded Mr X required a nursing care placement. The outcome of the DST meeting was that Mr X was assessed as eligible for Funded Nursing Care (FNC).
21. The Council’s brokerage team found several care homes both in the borough and in the neighbouring boroughs which would meet Mr X’s needs. The social worker gave details of the homes to Mrs A.
22. The social worker telephoned Mrs A on 14 November and explained that FNC had been awarded. Mrs A also asked whether it was possible to use her father’s personal budget towards 24-hour live-in care. The social worker noted he told her that if Mr X returned home, the family would not be able to directly access the FNC money, but they could access help from the District Nursing team.
23. The social worker also explained to Mrs A in an email on 17 November that the Council’s funding panel would first consider a placement at a particular local home (with which the Council held a block contract) where the fees were within the usual range the Council would pay.
24. Mrs A emailed the social worker and said her father’s needs would be better met in another home where the fees were higher, but she said they could not pay a top-up fee. She says the manager of their preferred home offered to discount the price but the brokerage team would not negotiate with the home. Mrs A says this was the only home Mrs X could easily visit and so met her father’s need for companionship.
25. The social worker telephoned Mrs A. His notes of the conversation record, ‘I reiterated with (Mrs A) that choosing (the other home) (charges £1450) because it is closer for the mother to access will not be the best choice of the panel because it is not cost effective and that the family is not willing to pay the 3rd party top-up’.
26. On 21 November the social worker met Mrs X at the hospital. She told him she was contesting the outcome of the DST assessment and considered Mr X should have full NHS funding. She said she could not manage his needs at home unless he had 24-hour care. She added that Mr X could not come home yet anyway as the house need adapting for him. Mrs A has shown me an email from the social worker agreeing that her viewpoint should have been “represented adequately” in the full Decision Support Tool.
27. On 27 November Mrs A’s husband spoke to the social worker. He said the family was willing to pay a top-up fee for Mr X to go into the more expensive care home as they felt it would provide a better standard of care. The social worker arranged for the care home to assess Mr X.
28. Mr X was discharged to the care home which his family chose.
29. On 1 December Mrs X met the social worker. She said Mr X was very unhappy in the care home and the family wanted him to leave. She said it would be possible for him to go and live with Mrs A. The social worker explained the maximum support Mr X would receive if he was discharged from the care home would be four care visits a day. He undertook to make the necessary arrangements. Mr X moved to his daughter’s home on 22 December.

The complaint

30. In January 2018 Mrs A complained to the Council. She said the family had been pressured into paying a top-up fee incorrectly when the home they chose was the only suitable home for her father. She said the social worker had failed to support the family through the DST process when they believed Mr X should be fully NHS-funded. She also said the social worker had delayed her father’s discharge to wait for a placement at a particular local home. The social worker had not followed up a request for an Occupational Therapist assessment to see if he could return home.

The first response

31. The service manager responded to the complaint in March 2018. She apologised that the social worker had not properly communicated the discharge process to Mr X’s family. She said he should also have given written information about the discharge planning process and the financial implications. She said the family had been given a choice of care homes and opted to pay the top-up fee for a more expensive placement. She said the proximity of care homes for visitors was a consideration but could not override the cost of the suitable placement.
32. The manager also said, in respect of the DST assessment, that the social worker’s role was to provide the social care information not to advocate for the views of one party. She acknowledged he had omitted Mr X’s visual and auditory impairments from his needs assessment. However, she noted he had carried out his capacity assessment of Mr X by enabling him to use pictures and single words to communicate his views, and had involved a Speech and Language Therapist in the assessment.
33. The manager noted there was a choice of care homes made available which would meet Mr X’s needs and would not require a top-up fee. She said the hospital could not wait for more homes to be offered as Mr X was ready to be discharged.
34. The manager said the Council had made improvements in the provision of information to relatives about the cost of care home placements. She said there was also now greater scrutiny of case work recordings to ensure inclusion of all relevant information.
35. Mr X sadly died in June 2018. In October 2018 the Council cancelled its invoices for Mr X’s care charges.

The second complaint

36. Mrs A complained again in April 2019. She said Mr X’s family had been discriminated against as they should have been involved in his capacity assessment. She said the hospital to which Mr X had initially been admitted after his stroke said he should have had palliative care and the social worker’s opinions had led to a downgrading of his needs in the DST assessment.
37. The same service manager responded. She said there was nothing in the notes to indicate that Mr X should have been considered for palliative care which in any event would have been a clinical decision, not a social care decision.
38. The manager said ‘with hindsight’ there was no reason why the social worker could not have included Mrs X and Mrs A in the meeting with Mr X and she apologized that he had not done so. She now said the social worker had not undertaken a formal capacity assessment as Mr X was presumed (according to the principles of the Mental Capacity Act) to have capacity to make his own decisions about his discharge destination. She said however that both Mrs X and Mrs A had been fully involved in the discharge discussions and arrangements so there was no evidence the social worker had intentionally discriminated against them or that the outcome had been different as a result.
39. Mrs A complained to us. As the Council had not yet completed its complaints process by reviewing the response, we asked it to do so before we investigated the complaint.

The Council’s final response

40. The head of social care wrote to Mrs A in September 2019. She noted the complaints were the family had not been supported in the DST meeting; they were misadvised throughout the process of choosing a care home; they were misinformed about whether a capacity assessment had been undertaken or not; they had not been given genuine choice about Mr X’s discharge. She noted Mrs A believed as a result Mr X had spent time in a care home against his and Mrs X’s wishes instead of being supported to return home. Mrs A also believed the completion of the DST had prevented his receiving fully funded NHS care.
41. The head of social care agreed the Council’s response to the issue of the mental capacity assessment was unsatisfactory. She said the service manager had initially said a capacity assessment was carried out, then said it had not been carried out as it was unnecessary. She said ‘it is apparent Mr X’s capacity was considered by the social worker and a speech and language therapist who met with him and interviewed him on 26 October 2017, using visual aids to support his communication and gain his views. Both staff members concluded he had capacity, however I am not satisfied that this assessment was carried out or completed to an acceptable standard’. The head of social care also said the assessment was not properly documented nor was consideration given to including the family in the assessment.
42. The head of social care said given the doubts which had been expressed about Mr X’s capacity, the information given by the social worker that he would be assessing Mr X’s capacity, and the lost opportunity to involve the family, it was possible the social worker had breached the Code of Practice.
43. In respect of the discharge to a care home, the head of social care indicated it was the general consensus Mr X needed nursing care. She said Mrs X had also said at the time of discharge the house needed adapting to suit Mr X’s needs and she could not manage without 24-hour care for him. She said the case recording showed the social worker had explained 4 care visits a day would be the maximum the Council would fund. The head of social care said although there was no upper financial limit placed on care at home, the Council had a duty to manage its resources effectively and would not usually fund care at home for which the cost would exceed that of a residential placement.
44. The head of social care said there had been adequate communication with the family about the care home choices available. She said the family had opted to pay the top-up fees at the chosen care home in the knowledge other homes were available without top-up fees.
45. The head of social care said there was no evidence the information given by the social worker to the multi-disciplinary team had influenced the outcome of the DST not to award NHS fully funded care. She said it was evident the Council had (following the decision Mr X was not eligible for CHC funding) gone on to meet his unmet social care needs as required by the Care Act.
46. The head of social care did not accept Mrs A’s assertions there had been breaches of Mr X’s Human Rights. She said there was no evidence the Council had acted dishonestly towards Mr X or his family. In terms of the hospital discharge, she said while it was right to say the Council and the hospital wanted to support a “timely” discharge as Mr X had been in hospital for some months, there was no evidence of either undue haste or delay in the way the arrangements for discharge were then made with his family.
47. Finally, the head of social care noted that Mrs A had asked for compensation. She said while she acknowledged there had been fault, she could not see it had any financial consequence for the family. Mrs A says the compensation she requested was for the injustice suffered by her father who was not protected by the social worker allocated to his care, and for the unnecessary payment to the care home which was the only home which met his needs.
48. Mrs A asked the Ombudsman to consider the complaint again.
49. The Council’s records show Mrs X was not able to have Mr X discharged home immediately from hospital. She said she needed more help than 4 care visits a day to look after him. She also said the house needed adapting to suit his needs.
50. The Council’s records also show there was at least one care home available in the borough which would not have required a top-up fee to be paid, although it was not close enough to Mrs X’s home to allow her to travel there easily.
51. In respect of the mental capacity assessment of Mr X, the Council acknowledges the service manager initially gave incorrect information about the mental capacity assessment being done. The Council also says that although the social worker no longer works for the Council, it will refer his conduct of the mental capacity assessment to Social Work England to consider whether there was a breach of the code of conduct.
52. The Council acknowledges the involvement of Mr X’s family in the mental capacity assessment would have been a reasonable adjustment to make but points out they were involved in all aspects of his discharge decisions as well as the DST meeting.

Analysis

53. The Council’s record indicates that all attendees at the DST meeting agreed the scoring, but Mrs A and Mrs X then said they were unhappy and decided to contest the outcome. That was their prerogative but in any event it is a NHS review system and not a matter for the Council.
54. There are two separate principal issues: the choice of care home, and the mental capacity assessment.
55. There is no evidence that the home which Mr X’s family chose for him was the only home available in the borough which would meet his needs, although it was their preferred home because it was close enough to enable Mrs X to travel there without difficulty. The Council was ready to arrange admission to a home with which it already held a block contract and which would not have required a top-up fee. The Council explained that while proximity was one aspect it did not override all other considerations in the offer of a home which would meet Mr X’s needs. On balance there is no evidence of fault there.
56. Mrs X expressed a wish for Mr X to return home. However, at the same time, she said the house first needed adapting, and she would be unable to cope with his needs without 24-hour care for him which was not a viable option. Against that background it was not fault for the Council to arrange for Mr X’s discharge to a care home. So I do not see the Council should compensate for the cost of the top-up fees.
57. But there were significant faults in the way the social worker acted in terms of assessing Mr X’s capacity to make his own discharge destination decision. Mrs A believes he did not carry out an assessment at all. It appears from the records that the social worker did assess Mr X’s capacity but failed completely to record his assessment.
58. Although efforts were made to enable Mr X’s participation in the assessment – use of pictures, the presence of the SALT therapist – it is accepted the presence of his family would have been helpful.
59. There were clearly many shortcomings in the way the social worker acted. The Council has now acknowledged the faults which occurred and taken appropriate action to refer the matter to the social worker’s professional body.
60. It is not possible to say now the outcome of Mr X’s capacity assessment would have been different. Capacity assessments are specific to the decision and time at which they were taken. However, the faults in undertaking the assessment have left the family with a considerable sense of distrust and concern about the lost opportunity for a different decision. The Council should acknowledge that and offer a payment in recognition of the distress caused.
61. The initial responses to Mrs A’s complaint were misleading about the mental capacity assessment. That was unhelpful and distressing for his family. The Council has apologized for that. I have not seen any evidence that significant injustice was caused by this for which a different remedy would be appropriate, however.

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Agreed action

62. Within one month of my final decision, the Council will offer a sum of £500 to Mrs X in recognition of the distress caused by the failings of the allocated social worker.

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Final decision

63. There was fault on the part of the Council which caused injustice to Mr X’s family.

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Investigator's decision on behalf of the Ombudsman