Decision : Upheld
Decision date : 10 Mar 2021
The Ombudsman's final decision:
Summary: Mr C complained about the way in which the Council arranged his mother’s placement, and how it carried out two safeguarding enquiries. He was also unhappy with aspects of the Council’s financial assessment and a delay in terminating his parent’s tenancy, which caused him distress. We found fault with the way the Council carried out the safeguarding enquiries and caused a delay in terminating the tenancy. The Council has agreed to apologise to Mr C and pay a financial remedy for the distress he experienced.
- The complainant, whom I shall call Mr C, complained on behalf of his parents, whom I shall call Mr and Mrs P. Mr C complained that:
- The Council failed to follow the correct procedure when it wanted to change his mother’s six weeks free temporary stay for rehabilitation purposes, into a permanent care home placement.
- The Council failed to explore the possibility, with his mother and her family, of moving her into sheltered accommodation.
- Due to fault by the Council, he was unable to terminate his parents’ tenancy in a timely manner.
- He is unhappy with the way in which the Council carried out a safeguarding enquiry into his mother’s care.
- The Council included an amount for Attendance Allowance (AA) in his father’s financial assessment, even though his father did not receive any AA at that time.
- When he discussed this with the Council’s finance department, it lied to him by saying: It told him it had called the Department for Work and Pensions (DWP) who said his father was still receiving AA. When he called the DWP, it told him it had no record of such a call from the Council and his father was not receiving AA anymore.
- He is unhappy with the way in which the Council carried out its safeguarding enquiry into the allegation of financial abuse.
- He is unhappy with the way in which the Council calculated his father’s contribution in early 2017, and the way it subsequently sent his mother incorrect (overinflated) invoices and the way it pursued her for payment of these.
What I have investigated
- I investigated the first seven complaint aspects mentioned above. Although those events happened more than twelve months ago, there were valid reasons why it took Mr C longer than twelve months to refer those issues to the Ombudsman. As such, I decided to use my discretion to investigate them.
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 investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.
What I found
Mrs P’s move into permanent care
- Mr C’s parents had lived together in rented accommodation. His mother was his father’s carer.
- Mr C says the Council failed to follow the correct procedure when it changed his mother’s six weeks free reablement stay in a care home, into a permanent care home placement. He says the Council failed to:
- Wait until the six weeks was completed, to give his mother the best possible chance of rehabilitation, before considering what to do next.
- The social worker failed to carry out, and record, an official review of his mother’s care, before she decided that his mother had to remain in the home permanently.
- Involve him and his sister in the decision-making process.
- Explore the possibility of moving his mother into sheltered accommodation.
- Sufficiently establish if his mother had capacity to decide where she wanted to live, at the time she had to make this decision. His mother was confused and disorientated shortly after her surgery.
- An email from Mr and Mrs P’s GP confirmed in January 2018 that they would now be safer in sheltered living accommodation, which they agreed to explore. Both had capacity.
- Mrs P went into hospital in early February 2018 for emergency surgery. Her husband went into hospital the following day.
- Mr P went into nursing home X mid-February 2018, for a period of rehabilitation. A record states that the hospital social worker had a long conversation with Mr P and his daughter. It says: “all the family are very clear that when long term decisions need to be made that Mr and Mrs P should be assessed together to ensure they are not separated”.
- Mr and Mrs P’s social worker called Mr C on 20 February 2018. Mr C said the hospital social worker told him his parents could possibly go to an Extra Care retirement apartment complex (this has more on-site support than sheltered accommodation). The social worker also met with Mr P, who was clear that he wanted to be with his wife once he will be discharged from nursing home X.
- On 4 March 2018, Mrs P went for inpatient rehabilitation to nursing home X. Mrs P told the social worker three days later that she was happy to be in the same nursing home as her husband. She said she did not know yet what would happen after their stay at the home, but they would want to remain together.
- Mrs P was able to communicate and was involved in her assessment. She was able to retain relevant information and agreed with her support plan.
- She was very clear that she wanted to be with her husband after her discharge from the nursing home. She agreed their situation had radically changed in the past few months, and she would now need 24-hour care support to meet her needs.
- Mrs P was often quite confused, and her cognition was variable.
- It was clear to all professionals that her wish was to be placed in the same home as her husband.
- Mrs P’s son and daughter were helping with any paperwork and were currently applying for joint Power of Attorney for property and finances.
- Both parents were staying in nursing home X during February and March 2018 on a short-term basis for rehabilitation (Mrs P arrived in March). This service was free of charge for up to six weeks.
- The Council carried out a care review in March 2018. At the time of the review, Mr and Mrs P were deemed to have capacity in relation to decisions around their care and accommodation. Mrs P still had capacity about care and accommodation at a best interest assessment in July 2018.
- Records show that Mr C was involved in the care review and he and his sister agreed Mr and Mrs P needed to stay permanently. Mr and Mrs P also agreed.
- An assessment from July 2018 states that Mr C said that: “Mr C considers his mother can make decisions about her care and consents to living long-term in the nursing home. He agrees with her placement in the home.”
- The social worker recalled she had a lot of contact with Mr C at the time around the arrangements and that it was very clear to all involved that the placement would change from rehabilitation to long-term residential care. There were also discussions at the care home around negotiating the cost of the room to enable them to remain living together at the care home.
- I did not find fault with regards to the process through which the Council decided that Mrs P needed 24-hour residential care and should stay with her husband:
- Free reablement care is provided for up to six weeks. There is no requirement in the Care Act (2014) and its Statutory Guidance that this must be provided for six weeks. The Council carried out a care review that concluded Mrs P would need permanent residential care and completing the six weeks would not have prevented that.
- The records also show the Council carried out, and recorded, an official care review of Mrs P’s care, before it decided that she would need permanent residential care.
- Although Mr C says otherwise, the records show the Council involved him during March 2018. The records also state that Mr C said on 21 March 2018 that he and his sister would be happy for them to remain at home X. Mr and Mrs P always expressed a wish to stay together, which was supported by Mr C and professionals involved.
- The records also show the Council considered the option of sheltered accommodation and explained, as part of the care review, why his parents would need to be in a care home instead. Mrs P’s health needs had significantly increased during this time, so sheltered accommodation was no longer suitable.
Mr C’s difficulty in terminating his parents’ tenancy
- Mr C said that, due to fault by the Council, he was unable to end his parents’ tenancy in a timely manner. He said:
- The Council failed to advise him, in a timely manner, what should be done to end his parents’ tenancy.
- There was an unreasonable delay in the Council’s Adult Social Care department providing the evidence the Housing Department needed to allow him to terminate the tenancy. He needed evidence that his parents were now permanent care home residents and had capacity to decide to end their tenancy.
- It was only following his consistent efforts, that the Council finally carried out a review of his mother’s care in August 2018. This was the evidence needed to end the tenancy.
- A housing officer contacted the Council’s Access Point on 4 May 2018 to ask if a social worker was dealing with Mr and Mrs P’s case. The officer said: “We need to end the tenancy. They hold a secure tenancy, and it can only be ended by Mr or Mrs P giving Notice. I need to establish if they have capacity. (…) Per son their move is permanent (and) he has already started to empty the property. Parents may need help to end their tenancy”.
- As such it was important to obtain evidence that: Mr and Mrs P’s placement at the home was permanent and that Mr and Mrs P had capacity to decide to end their tenancy:
- The Council contacted the nursing home, who expressed concerns about Mr and Mrs P’s capacity to decide to end the tenancy.
- Mr and Mrs P’s former social worker confirmed mid-May 2018 that the placement had been made permanent and the Community Team was supposed to carry out a six-weeks care review of the permanent placement.
- This meant that, for the sake of the tenancy issue, it now only had to be established if Mr and Mrs P had capacity to decide to end their tenancy. However, it took a further two months to establish they had capacity.
- Once the Council established this, Mr C was able to provide a signed Notice of Termination form to give four 4-week notice to end the secure tenancy as of mid-July 2018.
- Mr and Mrs P should have given notice on their tenancy, when the decision was made that they would be moving into long-term residential care and not returning home. The reviews completed with them in March 2018 do not indicate that they lacked mental capacity to end their tenancy agreement.
- However, it understands and appreciates that Mr and Mrs P were unwell at the time and may not have been able to understand the process of terminating their tenancy or manage to do this.
- As such, the Council should have provided clearer information and advice to make them, and their family, understand what steps they would need to take to end the tenancy. This, and the time to allocate a social worker after 10 May 2018, caused confusion and some delays in the termination of the tenancy.
- It will share this learning with its assessment staff and look at how it can improve the information the Council provides to people when they are moving into long-term care, to ensure they understand what they need to do in relation to their previous property/tenancy.
- The Council’s housing department continued to pay the housing benefit to Mr and Mrs P up until the tenancy ended, so there was no financial detriment to the couple.
- It also offered to take any additional costs into account, such standing charges for utilities, up until the end of the tenancy.
- The Council acknowledged it should have provided clearer information and advice to Mr and Mrs P (and Mr C), when they made their placement permanent, about what they should do to end their tenancy. This caused confusion and some delays in the termination of the tenancy. It agreed to review how it could improve this, to avoid a reoccurrence.
- It took an unreasonable amount of time (two months) to establish that Mr and Mrs P had capacity to end their tenancy. This was fault. Even though this did not result in a financial injustice, it did result in some distress to Mr C.
The Council’s safeguarding enquiry into his mother’s care.
- Mr C’s mother had a fall at night in the care home on 18 September 2018, which resulted in her having to stay in a hospital for a month. Mr C says his mother had told him that she liked all the staff at the care home but really disliked a particular night nurse. The nurse had bullied her when she had used her call bell to get help and had made her feel she was wasting the nurse’s time. Mr C told the Council that, on the night of the fall, the night nurse had told his mother to go to the toilet on her own, which he said resulted in her fall.
- Mr C said:
- The Council failed to carry out the enquiry within a reasonable timeframe (it took 14 months).
- His mother’s care plan and (risk) assessments said his mother should be supported when mobilising. However, the fall happened at night because the nurse failed to provide this support after his mother had used the toilet.
- The Council failed to investigate if the fall could have been prevented.
- The Council also failed to investigate the very serious allegation that the night nurse had been bullying his mother. He says his mother may have been manipulated in dropping this, because she did not want to cause any trouble or upset to anyone concerned.
- The fall resulted in his mother being nervous and anxious around toileting, which resulted in his mother being hospitalised with “bladder retention”, which has since resulted in irreversible kidney damage. She also had bruising to her head, shoulder, eye, and nose.
- Mrs P went into hospital. The hospital diagnosed Mrs P with urine retention, and she needed a catheter to drain 1 litre of urine. The retention resulted in a build-up of toxins in her body and acute kidney injury. Following this, concerns were identified about the way in which the nurse had monitored Mrs P following the fall. The Council decided to carry out a safeguarding enquiry into this and the nursing home suspended the nurse.
- Mr C raised a further concern that his mother told him she is afraid of the night nurse. His mother had told him in hospital that she liked all staff apart from the nurse. The nurse had been nasty and made her cry on at least one occasion. Mr C said his mother had told him that she had pressed the call bell and the nurse came in aggressively, threw back the bed sheets, shouted and made it clear she was being a nuisance for asking to go to the toilet. He says his mother has been too afraid since then to ask for support with toileting.
- The Registered Manager and a CQC representative spoke to Mrs P to try and understand her concerns about the night nurse. Mrs P said she had no concerns and denied all knowledge at this time of saying there were issues.
- The Lead Enquiry Officer visited Mrs P in December 2018. Mrs P said there was a female night nurse who was sometimes abrupt when she needed support to go to the toilet at night-time. Mrs P could not specify what the nurse would say or how often this happened, but said the nurse made her feel uncomfortable. Mrs P was unable to give any further information about the fall and did not want the matter to be pursued further.
- The Lead Enquiry Officer also spoke to the assistant manager of the home who said the home suspected she had fallen out of bed.
- A falls risk assessment from May 2018 said that Mrs P was at risk of falls and staff had to encourage her to use her call bell when she needed help, to reduce her risk of falls. They also had to encourage her to use her Zimmer frame.
- A bed rails assessment from August 2018 said Mrs P was not at risk of falling out of bed.
- The incident report completed by the night nurse said Mrs P was found next to her bed wrapped in a blanket.
- A statement from the nurse said: she had checked on Mrs P every 30 minutes, and sat outside her room after 4am, to make sure she would not get out of her bed without her Zimmer frame. When she returned after making a tea for ten minutes, she found Mrs P on the floor, wrapped up in a blanket.
- Mrs P’s daily care record said Mrs P “had a slip off the bed”.
- The Lead Enquiry Officer looked and established there had not been any previous concerns recorded about the nurse’s behaviour.
- The Lead Enquiry Officer spoke to Mrs P who was unable to recall any specific concerns about the nurse. She did not want this matter to be investigated further and was happy with the level of care she was receiving at the home.
- The care plans did not adequately reflect Mrs P’s care and support needs. They had no clear analysis of risks, needs and how such needs would be met.
- Acknowledged there was a delay in completing the enquiry. It said this was partly due to competing priorities in the workload of the social worker at the time. It added the enquiry took place at a time of significant staff shortages in the service due to sickness absence and vacant posts being recruited to. Since then, it has put measures in place to ensure staff are better supported to prioritise their workload to reduce delays in completing enquiries in the future.
- The nurse was suspended, pending an investigation. She received a written warning, her practice was monitored on her return, training needs were identified. Mr C should not have been given assurances that she would not return and/or that her mother would not have to see her again.
- It could not find any information to indicate the incident resulted in bladder retention, which resulted in irreversible kidney damage. Mrs P’s assessment and support plan before the incident noted she had chronic kidney disease.
- The Council took an unreasonable amount of time to complete its enquiry, which is fault. This resulted in some uncertainty and distress to Mr C.
- Mr C was unhappy about the way in which the Council investigated his concerns. He says the investigation failed to establish that the nurse had bullied his mother, and that the fall had been due to the nurse’s behaviour.
- The Council says the fall was unwitnessed and Mrs P was found next to her bed. Furthermore, Mrs P could not recall the details of the incident when the Lead Enquiry Officer asked her.
- The Council looked into Mr C’s allegations about the night nurse. However, it took two months before it spoke about the incident with Mrs P. At that time, she could not remember the details as to what had happened. Taking her memory problems into account, I would have expected this conversation to have happened very early on. This is fault. If the Council had spoken to Mrs P immediately, there would have been a chance she would have remembered more details about how the fall had happened, and if the nurse had been involved in this.
- Mrs P confirmed the night nurse’s behaviour towards her had been inappropriate at times when she would ask for support with toileting at night. She said this made her feel uncomfortable to ask for support. However, the Council failed to sufficiently reflect this finding in its safeguarding conclusion, which is fault. Mrs P told the Lead Enquiry Officer that she did not want the Council to look into it any further.
- As a result of the above, the Council has been unable to come to a view why or how the fall happened. The fall could have happened because Mrs P had a fall/slip out of bed, or because she fell while walking to or from the toilet without support because the nurse failed to help her, or Mrs P did not use the call bell.
- In terms of whether the fall could have been prevented, the Council failed to highlight that, despite Mrs P being at risk of leaving her bed at night and going to the toilet without her Zimmer frame, the care home had failed to put a sensor mat in place to alert staff when this happens. However, as it is unclear how the fall happened, it is not possible to come to a view if this would have prevented the fall.
- As part of its enquiry, the Council obtained information from the care home about its version of events that led up to the fall (see paragraph 35). However, these were not shared with Mr C, which is what I would have expected to happen as part of the enquiry or complaint response.
- The fall resulted in bruising to Mrs P’s body. However, it is not the role of the Ombudsman to come to a medical view as to what caused a particular medical condition (in this case ‘bladder retention’) and the subsequent one month stay at hospital.
Mr P’s Attendance Allowance
- Mr C said that:
- When the Council carried out his father’s financial assessment, it mistakenly believed his father was receiving more money a week than he was actually receiving. The reason for this was, because it wrongfully believed he was receiving Attendance Allowance (AA) in early 2018.
- When he discussed this with the Council’s finance department, it lied to him. It said it called the DWP to obtain this information. However, when he called the DWP they said: they had no record of such a call and his father was not receiving AA anymore.
- It was only when he fed back this information to the Council, that the Council adjusted the charge / invoice.
- It first assessed Mr P in 2017 when he went into a care home for a short-term stay. An assessor visited Mrs P in March 2017 to help her complete the financial assessment form. Mrs P told the assessor that her husband was receiving the High-Rate Attendance Allowance at £82.30 per week. A client will continue to receive this if they stay in a care home temporarily.
- Mr and Mrs P went into a care home permanently in April 2018. The Council wrote to Mr C on 4 April 2018 to ask him to complete the enclosed financial statement. It chased this twice in writing in May 2018. Mr C says he never received these and he called the office in July 2018 to ask them to send it to him. The Council wrote to Mr C again in July 2018 and sent the forms by email.
- As Mr C was not providing the information the Council needed, it accessed DWP data via an online system on 2 October 2018. It did not call the DWP.
- A person who receives Attendance Allowance, will continue to receive this for the first four weeks of any stay in a care home or hospital. The Council failed to consider that Mr P had been in hospital before he went into the care home. As such, Mr P’s Attendance Allowance had stopped earlier than it initially believed. Once the finance team was aware of this, it amended the charges accordingly.
- If Mr C had completed the financial statements, and had provided his father’s bank statements as requested, the Council would have been able to verify the amount of benefits and private pension he received much earlier, and would have been able to produce an accurate financial assessment.
- The Council has acknowledged that it made an error in relation to Mr P’s Attendance Allowance. However, it is also important to note that this could have been avoided if Mr C had provided the financial information the Council had asked for.
- I am unable to determine if the Council’s finance department told Mr C that it had ‘called’ the DWP, or that it had ‘contacted’ the DWP. The latter can be considered as true, because the Council did ‘contact’ the DWP by accessing its electronic system.
The Council’s safeguarding enquiry into financial abuse
- On 16 October 2018, the nursing home raised concerns about potential financial abuse by Mr C, based on information provided by Mr P. The Care Act requires that a council must make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by who.
- Mr C says he is unhappy with the way in which the Council carried out its safeguarding enquiry. He says that:
- The Council failed to carry out the enquiry within a reasonable timeframe. As a result, it had still not come to a view on allegation after 12 months, when his father passed away.
- A Council officer was in receipt of bank statements that proved he had not taken out any funds from his father’s account. However, she failed to pass these on to the Lead Enquiry Officer.
- It acknowledges there were delays in completing this safeguarding enquiry(s). The Social Worker said she found it difficult to complete the enquiry, because Mr C was not providing a copy of his father’s bank statements as part of the Council’s financial assessment.
- The Council confirmed to Mr C by email on 31 May 2019 that it passed on the financial information he sent on 19 May 2019 to the Lead Enquiry Officer. However, it also told him that it still needed: copies of statements for all the accounts held in your parents’ names, including the post office account and including monthly statements for the accounts from 1 April 2018.
- The Council failed to make any substantial progress with investigating the allegation. There was an unreasonable delay in completing this enquiry. This is fault.
- While I understand the Council had difficulty getting Mr C to provide all his father’s bank statements as part of the financial assessment, I would have expected the Council to have written directly to him early on to stress the importance of him providing the statements to enable the Council to come to a view on the allegation against him. However, it failed to do this, which was fault. I am unable to come to a view if this would have made a difference.
- Furthermore, as Mr C had become his father’s power of attorney in May 2018 to deal with his finances, the Council should have referred its concern about potential financial abuse to the Office of the Public Guardian (OPG) to investigate, rather than investigating it themselves. It failed to do this, which was fault.
- I recommended that, within four weeks of the date of my decision, the Council should:
- Apologise to Mr C for any faults identified above and the distress these have caused him. It should also pay him £500.
- Share the lessons learned with the safeguarding team, including the importance of completing safeguarding enquiries in a timely manner, and referring allegations of financial abuse to the Office of the Public Guardian if the allegation is against an Attorney.
- Provide evidence of any measures it has put in place following the review mentioned in paragraph 28.
- For reasons explained above, I found fault with the actions of the Council which resulted in an injustice to Mr C.
- I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case
Parts of the complaint that I did not investigate
- Mr C also complained to me about the way the Council calculated his father’s contribution in early 2017, and the way it subsequently sent his mother incorrect (overinflated) invoices and the way it pursued her for payment of these. However, I have not seen evidence that this concern has gone through, and completed, the Council’s complaint procedure.
Investigator's decision on behalf of the Ombudsman