Decision : Upheld
Decision date : 03 Mar 2020
The Ombudsman's final decision:
Summary: Mrs X complains the Council failed to assess her grandmother’s needs properly and failed to identify the need for residential care before she went into hospital in September 2018. The Council delayed in reassessing the grandmother’s needs and failed to meet all her eligible care needs. It has agreed to apologise and pay financial redress for the distress and trouble it has caused Mrs X.
- The complainant, whom I shall refer to as Mrs X, complains the Council failed to assess her grandmother’s needs properly and failed to identify the need for residential care before she went into hospital on 14 September 2018.
What I have investigated
- I have investigated the Council’s action up to 14 September 2018, when Mrs X’s grandmother, Mrs Y, went into hospital.
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, sections 30(1B) and 34H(i), as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
How I considered this complaint
- I have:
- considered the complaint and the documents provided by Mrs X;
- discussed the complaint with Mrs X;
- considered the comments and documents the Council has provided in response to my enquiries; and
- shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.
What I found
- The Council uses the Midlands Partnership NHS Foundation Trust to fulfil some of its duties under the Care Act. I refer to the Council in this statement.
- Mrs X’s grandmother, Mrs Y, lived in sheltered housing. Mrs X contacted the Council in March 2018 for help in meeting her grandmother’s needs when a carer she had been paying privately fell ill. The Council allocated Mrs Y’s case to a Social Care Assessor on 29 March, who arranged to assess her on 27 April. In the meantime, Mrs X arranged for her grandmother to receive three calls a day (morning, lunch and tea-time) from Care Agency A to meet her care needs.
- The assessment on 27 April found Mrs Y had eligible care needs over:
- maintaining personal hygiene
- managing toilet needs
- being appropriately clothed
- managing and maintaining nutrition
- making use of the home safely
- maintaining a habitable home environment
- 45 minutes in the morning;
- 30 minutes at lunch time;
- 30 minutes at tea-time;
- 30 minutes in the evening.
- Mrs Y’s GP had prescribed antibiotics, in case she had a urinary tract infection;
- Mrs Y said she wanted to kill herself, although she did not think she really meant to do this;
- Mrs X was visiting her own father daily, as he had had a stroke.
The Council agreed to visit Mrs Y the next day to do a “safe and well assessment”. It noted she was probably “too full of capacity to settle into a respite unit very easily”.
- The Council visited Mrs Y again on 9 September. It noted she was anxious about her living conditions (i.e. people entering her flat and being alone). Mrs X said one of the residents was in court the next day and the Council was aware of the other resident causing problems. The Council noted Mrs Y had a key safe. Care Agency A said Mrs Y had “become extremely anxious and was screaming that she wanted to die and did not want to be alone anymore”. Her neighbour said Mrs Y regularly fell in the night and he was visiting her at least 12 times a day. The Council identified the need to reassess Mrs Y.
- On 10 September Mrs X told the Council Mrs Y would benefit from going into a care home as her home environment was very stressful. She said the care home had confirmed it would have a vacancy in a week’s time. In another call, she said she and the neighbour, who was being called out at night, could not continue to provide the support they were providing. She said the officer who had visited on 9 September had agreed Mrs Y needed to be in a care home (the officer does not recall saying this.). In another call, Mrs X told the Council Mrs Y’s blood tests had come back as normal, with one further result outstanding. She said she did not think sheltered accommodation would be appropriate for Mrs Y. The Council’s record says it placed Mrs Y on the list for reassessment.
- On 11 September Care Agency A asked the Council to fund two carers for Mrs Y’s visits. The Council said it needed to ask for an urgent Occupational Therapy assessment before it could agree to this. Mrs X told the Council a GP would be visiting Mrs Y on 14 September to do a memory test. She said the neighbour had been lifting Mrs Y on his own.
- On 12 September Mrs Y’s landlord told the Council it needed to reassess Mrs Y as she probably needed residential care. She said they had moved her medication away from her and the neighbour was visiting her about 12 times a day.
- Mrs Y went into hospital on 14 September as she had pains in her stomach. She died in hospital on 3 October.
- The Council accepts there was a 13 day delay in reassessing her grandmother after Mrs X requested this on 25 July. It puts this down to the workload within the team at the time. It asked the Team Leader to review the allocation of social workers to ensure timescales were achieved.
- The Council says it does not have a policy of not meeting the need for help maintaining a habitable home. Its Contributions Policy says:
- “3.15 Decisions regarding what social care funds: the What Staffordshire County Council Funds Policy applies both to the care costs that will be funded in calculating Personal Budgets and Direct Payments as well as the personal expenditure that the council will allow for when calculating disability related allowances for people. It concerns items such as exceptional privately-funded care costs or regular large sums for transport and travel over and above any state benefits or other allowances they already receive (such as Motability).”
- “3.16 In exercising its discretion for such costs, the council recognises that it may not place absolute limits on what it will consider as an eligible social care need, but at the same time it has a duty to manage public funds wisely. The What Staffordshire County Council Funds Policy aims to define what is a reasonable level of care to provide in the context of a client’s needs without the policy itself being unreasonable and too restrictive. Examples of the application in specific situations (private care costs, travel/transport, disability adaptations and equipment) are included in the policy.”
- “3.17 Where the Council decides to include such costs in a Personal Budget or Direct Payment, then these would not normally be considered for disability related allowances as well. All decisions will be subject to policy and the process and any appeal managed by the ASC Policy & Guidance Approval Board.”
- “5.5 The Council has a duty to assess a person’s social care needs and to use this assessment to decide what, if any, services it should provide – if the need for a service is identified as an eligible need, the Council must ensure it is provided. For example, if a person with disabilities has been assessed as needing to take part in social activities within the community, the Council must consider travel, i.e. how the person will get to the activity.”
- “5.6 This duty does not change because a person is receiving a specific benefit or allowance from other sources (e.g. in the above example, a mobility benefit, or a care component to meet housework costs), since the person may be using their benefit or allowance for another relevant cost (such as leasing a Motability vehicle). At the same time, the Council believes it is valid to take account of the fact that the person (or a member of their family on their behalf) has a Motability vehicle available when determining whether to provide travel.”
Is there evidence of fault by the Council which caused injustice?
- The Council’s assessment found Mrs Y had an eligible need for help maintaining a habitable home. But it failed to meet that need. That was fault by the Council. The Council has a duty to meet eligible needs and cannot fulfil that duty by telling someone to pay for support themselves. The Care and Support Statutory Guidance makes it clear “there is no hierarchy of needs” (paragraph 6.114). The need for help maintaining a habitable home is as important as the need for help maintaining personal hygiene, or any of the other outcomes identified by the Care and Support Statutory Guidance.
- The Council accepts there was a delay in responding to Mrs X’s request for a reassessment on 25 July. She had provided information which indicated the current care package was not meeting her grandmother's needs, as a neighbour was helping out between Care Agency A’s calls. But the Council did not visit until 4 September. That was fault by the Council. The Council did not complete an assessment on the basis Mrs Y had no night-time needs and would not therefore be eligible for residential care. That was also fault by the Council which resulted in it failing to address the inadequacies of the current care package.
- It is clear Mrs Y’s situation was reaching crisis point as:
- she was relying on a neighbour to meet her care needs outside Care Agency A’s visits;
- Care Agency A said Mrs Y’s care package was not meeting her needs;
- the circumstances at the sheltered housing were causing a lot of anxiety for Mrs Y;
- Mrs X was being stretched by her father’s illness and the need to look after other members of her family.
- When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions the Midlands Partnership NHS Foundation Trust as well as the Council, I have only made recommendations to the Council.
- I recommended the Council:
- within four weeks writes to Mrs X apologising for its failings and pays her £300 for the distress it has caused and the time and trouble it has put her to in pursuing her complaint;
- within eight weeks takes action (and provides evidence of this) to ensure:
- officers consider the use of respite care when appropriate;
- it fulfills its duty to meet the need for help maintaining a habitable home.
The Council has agreed to do this.
- I have completed my investigation as the Council has agreed to take the action I recommended.
- I have not investigated the Council’s actions after 14 September. These are being investigated as a separate complaint, along with Mrs X’s complaint about Walsall Healthcare NHS Trust, using our powers to carry out joint investigations with the Parliamentary and Health Service Ombudsman.
Investigator's decision on behalf of the Ombudsman