Summary: The Council failed to consider Ms E’s cultural and religious needs when assessing her adult social care needs. The Council failed to give clear costs information about contribution to care charges. The Council failed to keep adequate records about decision making. The Care Provider acting on behalf of the Council failed to promptly tell Ms E’s family about a fall. The poor communication caused Ms E and her family upset and anxiety. Ms E’s social, cultural and religious needs may not have been met. To recognise this the Council will apologise and pay Ms E and her daughter £350 each, Ms E’s can be offset from her outstanding bill.

The complaint

1. The complainant, who I will call Ms D, says the Council assessed her mother, Ms E’s care needs at the end of 2017; it did not take into consideration her communication difficulties. The Council did not share a copy of the assessment. The assessment failed to properly consider cultural and religious needs. Ms E had a period of respite in a residential care home. The Council gave no clear information about finances and Ms D thought there would be nothing to pay as her mother did not own a property and her capital was under the threshold.
2. When it came to long term care planning, the Council did not assess Ms E’s capacity to decide where to live, and all options were not discussed. Ms E’s placement at the residential care home became permanent. The Council failed to provide adequate information regarding the costs of this and took over Ms E’s pension credit payments without telling the family. There was delay completing the financial assessment meaning Ms D then received a large, unexpected, bill of over £5000.
3. Ms E had a fall and was taken to hospital, she did not return to the care home. The care home did not tell Ms D about her mother’s fall until around eight hours later; this was distressing. The Care Provider amended its policy following Ms E’s fall, which Ms D says implies the policy in place at the time was not adequate.
4. The Council completed a capacity assessment to find out if Ms E could decide where to live after hospital. However, the capacity assessment was done after a multi-disciplinary assessment decided she needed care in a nursing home. The Council decided Ms E did not have capacity to make this decision; her daughter says the assessment was not properly completed as her mother would not understand the questions about care homes as has no real concept about what a care home is due to her culture. Ms D took her mother home to live with her as things were not moving forward. Ms E now lives in an extra care facility; Ms D feels it has been a two-year battle with the Council, and that the Council was not prepared to consider and discuss this option previously. There is a debt for the care home fees which keeps Ms D awake at night, and occasionally makes Ms E angry.

Back to top

The Ombudsman’s role and powers

5. 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)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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)
8. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

How I considered this complaint

11. I considered:
• Information provided by Ms D, including during a telephone conversation.
• Information provided by the Council in response to my enquiries.
• The Care Act 2014 and associated statutory guidance.
• The Mental Capacity Act 2005 and associated statutory guidance.
12. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

13. Ms E lived alone with carers visiting, after a few issues she moved in with her son. The family contacted the Council and said they could not continue to support Ms E.
14. The Council completed a care needs assessment. The Council was aware Ms E does not speak English. The Council did not arrange an interpreter for the assessment, but Ms D was present and often translates for her mother at appointments.
15. The Council did not ask about or document Ms E’s social, cultural or religious needs. Attending the mosque was later discussed, the Care Provider said Ms E would have to pay that as an extra. If attending the mosque was required to meet Ms E’s social, cultural or religious needs, then the Council should have included it in her personal budget.
16. The outcome of the assessment was that Ms E would have a three week stay at a care home called Chestnut View. There is no evidence the Council assessed Ms E’s capacity to decide about her temporary or permanent stay at Chestnut View or made a best interest decision on her behalf if she did not have capacity. The Council says it assumed she had capacity to make the decision.
17. Ms D says she did not receive a copy of the assessment; I have seen no evidence the Council sent it. The Council should have given Ms E, or a representative on her behalf, a copy of the assessment.
18. Ms D says the Council gave no clear information about costs for the respite stay; she thought there was nothing to pay. The Council did explain the charge for the respite stay, but accepts it was not clear Ms E would pay the charge. The Council has not charged from the start of Ms E’s stay at the care home; it has started its charges from when it can show it gave Ms D the ‘financial matters leaflet’ two months later.
19. The Care Act guidance says councils should make people aware of the availability of independent financial information and advice. The Council accepts the information it gave Ms D did not mention independent financial advice but does contain contacts such as Age UK where you can gain more information.
20. Following Ms E’s move to respite, there then should have been a case conference to discuss what would happen next. This would include all residential and care options, financial matters such as costs and when to end the existing tenancy, and communication and cultural issues could also have been discussed. Ms D says she knew there was a review, and she was invited to attend but could not make it. Ms D says she was not told the purpose of the review and that it was to decide where her mother would live.
21. Ms D says the family wanted Extra Care accommodation. The Council says this was considered and discussed with Ms D, but the Council did not feel it would meet Ms E’s needs. Particularly in respect of keeping her safe at night. There is no evidence to confirm this, and Ms D says no discussion took place. The Council has kept no records of how it made the decision a permanent placement at Chestnut View residential care home was the best way to meet Ms E’s needs.
22. There is no evidence to show the Council advised Ms D to end Ms E’s tenancy. The Council says Ms D knew on 11 April that her mother needed long term care. Ms D ended Ms E’s tenancy on 16 April, so did not delay.
23. Prior to Ms E’s respite stay the Council explained the charges for short term care. There is no evidence it explained the charges for long term care before it started. In March, after Ms E’s stay became permanent, the Council sent Ms D an e-mail saying long term funding had been agreed and asked that Ms D complete a financial assessment form. The Council sent a guidance booklet explaining charges for residential care. Ms D completed a form confirming her mother’s income and expenditure and signed to accept her mother must pay weekly charges based on income and capital.
24. In May the Council sent Ms D a letter explaining the charges for Ms E’s care, and that they started from January when Ms E went to Chestnut View. The letter contained an error as it charged the permanent rate from when Ms E first moved to Chestnut View, when the first three weeks should have been the respite rate. The Council later rectified this.
25. In June, Ms D got a bill for over £5000 for care costs since her mother moved into the care home, initially for respite and then permanently. Ms D was surprised and disappointed as did not realise her mother was responsible for care fees. Ms D said her mother could pay the amount going forward but could not pay the large bill.
26. The Council accepted it did not give clear costs information, so has waived the customer charge before March 2018, when it gave Ms D a guidance booklet and if she was unclear, she could have questioned it.
27. In August, the Department for Work and Pensions (DWP) suspended Ms E’s pension credit. Ms D cancelled the direct debit for Ms E’s care costs as there was insufficient funds to pay it. Ms D told the Council about the issues with Ms E’s income, and that she could not make payment. In October the Council was concerned at the mounting debt and at the cancelled direct debit, so it applied to the DWP for appointeeship to directly receive Ms E’s pension credit. It did not tell Ms D of this action. It says it does not tell family because it has usually exhausted all avenues to collect payment by that point. The Council says the appointeeship was never actioned and it never received any benefits from DWP. Ms D was shocked when she called the DWP to discuss her mother’s benefits and it told her it could not discuss anything with her as there was an appointee in place.
28. In October Ms E had a fall at Chestnut View care home, while she was alone in her room. Care staff found her on the floor; the staff checked her over and found no signs of injury and say she did not appear in pain. The Care Provider says Ms E gestured to staff to help her stand up, so they helped her to her chair. This appears to have been in line with the policy in place at the time. Later in the day Ms E was said to be walking around, eating and drinking, and appeared fine. The Care Provider did not notify Ms D of her mother’s fall. Around six to eight hours later Ms E said she was in pain. The Care Provider contacted Ms D to interpret for the clinician. The Care Provider called for an ambulance; Ms E was taken to hospital and found to have a fractured pelvis.
29. The Council was concerned about how and when the Care Provider told Ms D of her mother’s fall, and the barriers in communication with Ms E. The Council recommended the Care Provider update its falls policy with more robust actions for staff and for understanding barriers in communication; it says this was done. The Care Provider cannot provide a copy of the policy that was in place at the time of Ms E’s fall. It says it saved over the original copy, but now ensures to save as a new copy so the old version remains available. The Care Provider says the policy now includes a timescale of two hours for staff to contact next of kin, and that should be documented in the general notes. It also now includes that staff should monitor the person more frequently, especially if the person has poor communication and difficulty expressing pain after an incident. The team leader on duty should get medical advice if the person appears in pain or if their normal appearance changes.
30. The Care Provider said it could not meet Ms E’s care needs and she could not return to Chestnut View. Ms E was essentially homeless. The hospital’s view was that a nursing placement with an understanding of dementia would best meet Ms E’s needs. The hospital considered the issue of NHS Continuing Healthcare Funding (CHC). It held a multi-agency meeting which decided Ms E was not eligible for CHC, but it would provide funded nursing care if she moved to a nursing home. Ms D was concerned that residential or nursing care could not adequately meet Ms E’s needs because of the communication barrier, and that much of Ms E’s challenging behaviour was caused by not being able to understand and communicate with those trying to help her.
31. The Council completed a Mental Capacity Assessment to assess whether Ms E could decide where to live when she left hospital. Ms D and a translator were present at the assessment. The Council assessed Ms E could not make the decision about where to live. Ms D said she would like her mother to live in an Extra Care flat. The Council explained there needed to be an interim plan as Ms E was fit to leave hospital and a vacancy in an Extra Care scheme was unlikely to be available in time for hospital discharge. The Council applied for Extra Care housing.
32. The Council could not proceed to make a best interests decision about where Ms E should live because Ms D raised concerns about how the Council completed the Mental Capacity Assessment. Ms D felt the Council had not given Ms E sufficient information and should have explained in simple terms what a care home is, and that Ms E had been living in one. Ms D said in her mother’s culture a care home may not exist so she may not have understood what was meant by the term. Ms D asked for another Mental Capacity Assessment.
33. Several months went by and Ms E remained in hospital because of the dispute about the Mental Capacity Assessment. Ms D said Ms E could come to live with her, which the Council then assisted arranging. The Council did not provide a care package because Ms D said the family could meet Ms E’s care and support needs.
34. Ms E lived with Ms D until she moved to a warden-controlled property which Ms D had applied for. A warden-controlled property has less support available than an Extra Care property. Ms D never heard anything from the Council about the Extra Care property it had applied for.

Was there fault causing injustice?

Charges

35. The Council accepts it failed to give adequate costs information at the start. It has amended its charges to charge from 8 March 2018, which is when it gave a leaflet to Ms D explaining how charges are calculated for residential care. The Council then applied short term charges from 8 March to 9 May (four weeks after 11 April to allow for the four week notice period to end the tenancy). However, as there is no evidence the Council told Ms D to end the tenancy on 11 April I find it should not use this date to calculate charges. In any event, it is appropriate to allow some time for an individual to take the action. Ms D gave notice to end her mother’s tenancy on 16 April, it ended on 13 May 2018. The Council should apply these dates in this case.
36. I find the outstanding invoice is payable by Ms E. The Council provided an information leaflet about charges, and Ms D signed to accept Ms E was liable for charges based on her income. The Council has offered that Ms E can pay the outstanding amount in instalments, which is appropriate to recognise the large bill came as a shock to Ms D.
37. I find it likely that had the Council given clear information about charges from the start, the outcome would be the same. Ms E required care and support and would have had to pay towards it. Ms D says they could not make an informed decision regarding care and charges, but Ms E remained at the care home for seven months after the Council gave the financial information leaflet and four months after they received the bill for charges.
38. Ms D told the Council about problems making payment because of Ms E’s suspended pension credit. The Council should have told Ms D it was applying for appointeeship of benefits and the reasons for that action. It was a shock to Ms D when she found this out from the DWP.

Communication/care planning/capacity

39. The Council did not complete a culturally sensitive assessment of Ms E’s needs. The Council failed to give Ms E, or Ms D on her behalf, a copy of the assessment where they could have picked up that social, religious and cultural needs were missing from it. The care home provided food appropriate for Ms E’s diet, but as the only Muslim resident within the home she had little opportunity to be around people of the same religion or culture except when family visited. Ms E did not speak English so could not converse with anyone except when family visited or telephoned, or the care home director was present and spoke with her. The Care Provider suggested trips to the Mosque but that this would incur an extra charge. If this was needed to meet Ms E’s social and religious needs, then the Council should have included it in her care plan and personal budget. Ms E could not easily communicate with anyone in the care home and felt isolated, the Council should have covered this in her assessment and care plan.
40. The Council says it completed a capacity assessment and best interest decision regarding Ms E’s permanent stay at Chestnut View but did not keep records. This is fault and means there is no evidence to show how it concluded this care home was the best place to meet Ms E’s needs rather than Extra Care or any other provision. Ms D’s view is if they had direct payments they could have employed a carer who could converse with Ms E.
41. Although Ms D thinks a decision was made about hospital discharge before a capacity assessment, this was not the case. The hospital had completed an assessment for CHC funding, which did recommend a nursing placement, but no formal decision was taken about hospital discharge until after the Council completed the Mental Capacity Assessment.
42. Ms D raised concerns with the Council about how it carried out the Mental Capacity Assessment. Ms D says her mother could hold, retain and weigh information, the issue was the barrier in communication in that she would not understand what a care home was. I find no evidence to criticise the Council’s actions here, an interpreter was present as was Ms D. The Council explains that Ms E had been living in a care home, and made it clear she did not want to return to that type of environment. Although the Council feels satisfied Ms E was able to adequately respond to what she was asked, it accepts it can only be beneficial in future to discuss and establish cultural needs with family members before undertaking assessments. The Council said it would discuss this with relevant staff to ensure it was done in future.
43. Ms E stayed in hospital longer than necessary when she was medically fit for discharge. This was because the Council could not complete a best interest decision about where she should live because of a dispute over the Mental Capacity Assessment. Ms D attempted to take Ms E home as felt it was taking too long, but initially the hospital prevented her from doing so. The Council then agreed it was suitable to discharge Ms E to stay with family; this had not previously been suggested as an option. This was frustrating for Ms E and her family, but the delay was not because of fault in the Council’s process.

Fall

44. I do not know what the Care Provider’s policy was for notifying relatives of a fall, but I find in this case it should have told Ms D as soon as possible after the fall. Especially given the communication difficulties with Ms E. The Care Provider has amended its policy to include a timescale of two hours for staff to notify next of kin, so accepts the previous policy was not sufficient. Because of this it was distressing for Ms E to find out approximately ten hours after it happened that her mother had fallen.
45. It is likely had someone contacted Ms D within the two hours, and she spoke with her mother about the incident, Ms E’s injury would have been identified sooner. This caused Ms E and Ms D distress, pain and suffering.

Views

46. Throughout this case there was poor communication between the Council, Ms E and her family. The Council appears to have had a poor grasp on Ms E’s communication difficulties and cultural needs. The Council, and Care Provider, have also kept poor records so cannot clearly evidence the rationale for certain decisions or actions. The Council has accepted errors and taken steps to prevent future problems.
47. The Council offered to reduce the outstanding bill by £200 to acknowledge the impact on Ms D. However, a reduction in the bill is a remedy for Ms E not for Ms D.
48. I accept Ms D feels it has been a two-year battle to achieve Ms E living in appropriate accommodation. However, I find it is likely that had there been no fault in this case the outcome would be the same. The Council was contacted at a time of crisis where Mrs E was not safe at home and could not continue living with her son. Although the Council cannot show it considered Extra Care at the outset, it gives clearly considered reasons as to why it would not have considered it appropriate at the time. As happened at hospital discharge it is unlikely an Extra Care vacancy would have been available at the time the family contacted the Council, or when the placement was made permanent, and a care home placement may still have been required. Ms D disagrees with the Council’s views, but that is not evidence of fault.

Agreed action

49. 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 some actions of the care provider, I have made recommendations to the Council.
50. To acknowledge the impact on Ms E and Ms D from the identified failings the Council will:
1. Apply short term charges from 8 March 2018 to 13 May 2018 (the date the tenancy actually ended), rather than 9 May. Ms D did not delay ending the tenancy, and Ms E still had costs associated with the accommodation until 13 May.
2. Apologise for failing to consider Ms E’s cultural and religious needs at assessment, and that she may have had unmet needs in this area as a result. Apologise for poor communication and record keeping. Apologise for failing to promptly tell Ms D of her mother’s fall.
3. Deduct £350 from the outstanding bill to recognise the impact on Ms E of its failings and pay Ms D £350.
51. The Council should complete these actions within the next month and provide evidence to the Ombudsman of its compliance.

Back to top

Final decision

52. I have completed my investigation on the basis the actions the Council has already taken, and the agreed actions, are sufficient to acknowledge the impact on Ms D and Ms E and prevent future failings.

Back to top

Investigator's decision on behalf of the Ombudsman