Summary: The Council delayed carrying out an assessment of Mr B’s social care needs and then failed to stay in contact with Mr B after it decided he no longer needed residential care and he could return to his home with a package of care. The Council then failed to consider how his needs could continue to be met when the move did not go ahead. It also failed to respond to correspondence sent on behalf of Mr B which raised concerns about the process. Mr B has since passed away and so it is no longer possible to remedy his injustice. The Council has agreed to apologise and make a payment to Mr B’s brother and to take action to prevent similar failings in future.

The complaint

1. Mr C complains about the way the Council decided that the care and support needs of his late brother, Mr B, could be met at his home, and he therefore did not qualify for a Deferred Payment Agreement. Mr C also complains about delays by the Council and its failure to provide information and reply to his correspondence.
2. Mr C says that as a result of the Council’s failings, his brother felt he had to remain living in a nursing home. As the Council did not provide financial support, his brother used all his savings to pay the nursing home fees, after which Mr C funded his brother’s care. He says that both he and his brother were caused distress and were put to avoidable time and trouble.

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What I have investigated

3. The Council has commissioned Midlands Partnership NHS Foundation Trust (MPFT) to provide adult social care services integrated with NHS community-based health services in Staffordshire. 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. I have investigated Mr C’s complaints about the provision of social care services.
4. For the reasons explained in the last section of this statement, I have not investigated Mr C’s complaint about the Council not providing him with information he has requested.

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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. Where the impact of fault was on someone who has died, we will not seek a remedy in the same way as we might for someone who is still living. We will not recommend a payment because they cannot benefit from it, and we would not expect a payment to be made to their estate.
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
10. If we are satisfied with an organisation’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

11. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation and government guidance

12. The charging rules for residential care are set out in the ‘Care and Support (Charging and Assessment of Resources) Regulations 2014’, and the ‘Care and Support Statutory Guidance’. The Council must follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
13. The rules state that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
14. A deferred payment agreement (DPA) is an arrangement with the council that enables people to use the value of their homes to pay for their care costs. The deferred payment builds up as a debt which is cleared when the money tied up in their home is released.
15. To qualify for a DPA, the person must have needs which the local authority considers should be met through a care home placement and must have less than (or equal to) £23,250 in assets excluding the value of their main or only home.
16. The eligibility threshold for adults with care and support needs is set out in the Care and Support (Eligibility Criteria) Regulations 2014 and the ‘Care and Support Statutory Guidance’.
17. The Care and Support Statutory Guidance says:
• The purpose of an assessment is to identify the person’s needs and how these impact on their wellbeing, and the outcomes that the person wishes to achieve in their day-to-day life. The assessment will support the determination of whether needs are eligible for care and support from the local authority, and understanding how the provision of care and support may assist the adult in achieving their desired outcomes.
• The local authority must take all reasonable steps to reach agreement with the person for whom the plan is being prepared.
• The continuity of care chapter sets out the process local authorities must follow to ensure that the person’s care and support continues, without disruption, during and after the move.
• The aim of this process is to ensure that the person with care and support needs will be able to move with the confidence that arrangements to meet their needs will be in place on the day of the move.
• Throughout the process, the first authority must keep in contact with the second authority about progress being made towards arranging necessary care and support for the day of the move. The first authority must also keep the adult and the carer informed and involved of progress so that they have confidence in the process.

Background and summary of key events

18. Mr B lived in a nursing home from November 2017 until he passed away in June 2020, aged 87 years old. He moved into the nursing home when he was discharged from hospital after suffering a serious spinal injury. It was decided at the time that Mr B needed 24-hour nursing care.
19. Mr B owned a house and paid the nursing home fees out of his savings. In around October 2018, when his savings had almost depleted to £23,250, Mr B’s brother, Mr C, contacted the Council and asked to apply for a deferred payment agreement (DPA) so that Mr B could pay the fees out of the value of his home.
20. A financial assessment was carried out on 10 March 2019, and it was agreed that the Council would likely enter into a DPA with Mr B.
21. A social care needs assessment was then carried out on 26 March. During the assessment, Mr B expressed his desire to return home. The social worker’s view was that Mr B’s needs had reduced and he no longer required residential care. Mr C says that both he and Mr B voiced concerns about Mr B falling while alone at home, given his medical history of spinal injury. The records show that the social worker told Mr B that a home visit would need to be carried out to assess if it was safe for Mr B to return home, and that therapy input would be required to assess Mr B’s physical ability.
22. An Occupational Therapist (OT) carried out an assessment in Mr B’s home on 12 April. She decided that Mr B needed physiotherapy to practice some manoeuvres.
23. After some physiotherapy sessions, the team decided to discharge Mr B because he had achieved the goals set.
24. As Mr B’s house was in another local authority area, the social worker contacted the adult social care team for that area. She explained that Mr B was not eligible to stay in 24-hour care and would potentially benefit from enablement care of four calls per day for assessment on his return home. On 16 May, the social worker marked the case as closed because Mr B’s home local authority, Council X, was involved.
25. In early June, the social worker from Council X contacted Mr C to advise that it had received the Council’s recommendations and Mr B was on a waiting list to be assigned an OT who would contact him to arrange support.
26. Mr C emailed the Council and said that it was not clear exactly what package of care Mr B would receive from Council X, and he was concerned about whether Mr B would be safe and content after returning home. He asked the Council to send him a copy of the social care needs assessment along with the OT’s and physiotherapist’s reports. He received them around seven weeks later, on 28 July.
27. Mr C then wrote to the Council on 30 July, expressing his concern about delays and shortcomings in the needs assessment. In particular, he was concerned that no consideration had been given to Mr B’s damaged spine. He told the Council that he had engaged the services of a private consultant physiotherapist who reported that while it was physically feasible for Mr B to return home to live alone, he was in need of much further physiotherapy, and could suffer further injuries should he fall again. The Council did not respond to Mr C’s letter.
28. Mr C set about engaging a private consultant orthopaedic surgeon for advice but was advised to first obtain up-to-date MRI scans. Mr B visited his GP about having an MRI and was referred to an NHS orthopaedic physiotherapist.
29. After Mr B attended the appointment, the physiotherapist sent a report to Mr B’s GP. It states, “Mr [B] reports that he has been in a nursing home for two years and wants to go home. He reports that he wants an MRI scan of his spine to assess his safety to return home. They are questioning what will happen if he falls again. Mr [B] reports that he has no spinal pain.” It goes on to say, “Mr [B] and his brother are adamant that an MRI of the spine is required to assess Mr [B]'s safety to return home. I have explained that MRI of the spine is used to explain symptoms or assess for surgical need. I have explained that MRI of the spine will not predict the likelihood of a fall and will not predict the extent of injury. I have explained that the physiotherapist and/or occupational therapist who work in the community (CIS team) are best placed to assess his safety to return home based on his ability to mobilise, and ability to transfer independently in his home environment.”
30. MRI scans were carried out in October 2019. They showed significant degeneration of the cervical spine and a referral was made to an orthopaedic spinal specialist for an opinion on management.
31. Mr B attended an outpatients appointment on 11 March 2020 with a consultant orthopaedic surgeon. During the appointment, Mr C asked the Consultant for a view on whether Mr B should return home or remain in residential care, whether he should have a further assessment, and what equipment he should have to make a return home viable.
32. On 5 June, Mr C and Mr B received a copy of the consultant orthopaedic surgeon’s report. The report states, “We have thoroughly explained that we are not able to foresee the future in terms of any future falls. Obviously, at this age and with this state of mobility he is prone to falls. He can suffer a fall and a fracture at any part of his body including hips etc. Therefore, it is not possible for us provide them with an opinion as to whether he will deterioration [sic] from a future accident. Obviously, we believe that he needs reassessment from the social services and fall services. He may be safe to return to his home as this is his strong will with some adjustments and carers around him. We feel that perhaps a care home would be a more safe environment but he clearly denies this as he feels that being in his own house is more safe with the appropriate equipment and perhaps changes.”
33. Mr B passed away on 20 June 2020.
34. Mr C says that Mr B’s resources had dwindled to the extent that he took over responsibility for paying his care home fees from May 2020. Mr C says that by the time Mr B died, he had paid £3,800.
35. Mr C made a formal complaint to the Council which was investigated by an independent investigator in January and February 2021. The investigator upheld many of Mr C’s complaints, including that the Council had failed to send the social care needs assessment to Mr B to read and sign, which meant he was not afforded the opportunity to challenge its contents and ask for it to be changed. The other complaints the investigator upheld related to delays by the Council and its failure to respond to correspondence sent on Mr B’s behalf.
36. The investigator found no fault in the way the Council carried out the assessments, and he did not consider the Council was wrong to not provide any options other than returning home or staying in residential care.
37. The Council agreed to take the actions recommended by the investigator, which consisted of apologies for the failings identified, and reviews of its procedures to prevent similar failings in future.
38. Dissatisfied with the Council’s response, Mr C complained to the Ombudsman.

Analysis

39. Mr C is concerned that there was fault in the way the Council carried out the social care needs assessment and reached the decision that Mr B could return home. He queries whether there should have been a medical evaluation of Mr B’s spinal condition as part of the original assessment.
40. The Care and Support Statutory Guidance states that social care assessors should consider how to support a person to achieve their desired outcomes. The Council’s records show that Mr B wanted to return home. It was not wrong for the Council to consider whether he could be supported to do so.
41. The Council says that when Mr C brought up the risk of falls, the social worker checked the care records and found nothing to indicate Mr B had any falls while living at the nursing home. The social worker referred Mr B to an OT and physiotherapist to assess his home and his physical ability. They were both satisfied that it was safe for Mr B to return home with a package of care.
42. There is no requirement in the legislation or government guidance for assessors to seek any other medical opinion, but an adult with care needs can ask for their GP to be contacted to provide information relevant to their needs. Mr B and Mr C clearly raised concerns about whether Mr B would be safe to return home, but I have seen no evidence to show that they asked for a medical opinion to be sought, or said that the prospect of returning home was causing Mr B any significant anxiety before Mr B’s case was transferred to Council X. I have found no evidence of fault in the way the Council reached its decision that Mr B could return home with a package of care.
43. Government guidance says that councils must take all reasonable steps to reach agreement with the person for whom a support plan is being prepared. The Council accepts that it should have sent Mr B a copy of the social care needs assessment and support plan to read and sign. While Mr B did not receive a copy of the plan and therefore did not sign to show he agreed with its contents, there was no indication at that time that Mr B did not agree with the plan for him to return home with a package of care.
44. As explained in paragraph 15, once the Council decided that Mr B did not need residential care, he was not eligible for a DPA. The Council should have given Mr B written confirmation of this. However, I consider Mr B and Mr C were aware that Mr B did not qualify for a DPA.
45. Government guidance says that when a person with care and support needs moves to another local authority area, the first council must keep in contact with the second council about progress being made towards arranging necessary care and support for the day of the move. The first council must also keep the adult informed of progress so that they have confidence in the process. The Council did not do so; this was fault.
46. Where we find evidence of fault, we consider what would likely have happened if there had been no fault. If the Council had kept in contact with Mr B and Council X, as it should have done, the Council would have known that Mr B and Mr C had decided that Mr B should not move without first obtaining a medical opinion, and his case would have remained open.
47. I do not consider this would have affected the Council’s view that Mr B could return home with a package of care. However, as Mr B did not move, the Council should have considered how Mr B’s needs could continue to be met while he was living in its area. The Council should have given Mr B options other than paying the full cost to remain living in residential care, such as moving into sheltered accommodation. However, I consider it unlikely that Mr B and Mr C would have accepted any option which included Mr B not being supervised while walking. And so I consider it likely that Mr B and Mr C would have decided that Mr B should remain in the nursing home while they were seeking an expert medical opinion. I therefore do not consider the Council’s failings affected Mr B financially. However, the Council’s failings will have caused Mr B and Mr C significant distress.
48. The Council failed to respond to the letter Mr C sent in July 2019. It also failed to respond to letters which Mr B’s MP sent to the Council on his behalf in September 2019, November 2019, January 2020 and May 2020. These failings caused Mr B and Mr C significant worry and put them to avoidable time and trouble. The Council also missed several opportunities to try and resolve Mr B and Mr C’s concerns sooner.
49. The Council has apologised for the significant delays in this case, including taking 24 weeks to carry out the needs assessment following Mr C’s initial request for a DPA. There are no set timescales for carrying out assessments, but they should happen within a reasonable time. The Council’s delay here was fault and will have caused Mr B and Mr C significant worry.
50. If there had been no delay here, it is likely that Mr B and Mr C would have received the consultant’s medical opinion sooner. But even if they had been able to provide it to the Council a few months earlier, I do not consider the outcome would be any different. The Council would have needed to carry out another needs assessment because more than a year had passed since Mr B’s first assessment, and it would then have likely begun the process of Mr B returning home with a package of care. I do not consider it is likely that this would have been completed before Mr B passed away in June 2020.
51. It is no longer possible to remedy Mr B’s injustice. However, I consider the Council’s actions also caused injustice to Mr C, and it should remedy his injustice, and take action to improve its services.

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Agreed action

52. Within four weeks, the Council will apologise and make a payment of £500 to Mr C. This is a token payment in recognition of his distress and the time and trouble he has been put to as a result of the failings identified.
53. The Council wrote to Mr C following the independent investigation of his complaint. It said that it would be completing a series of quality audits to verify that all clients are correctly receiving a copy of their assessments. It also said that the Council had:
• Improved its processes and resource capacity to prevent significant delays in carrying out social care needs assessments.
• Put systems in place to ensure correspondence which is received by the team is recorded and acted upon in a timely manner.
54. Within eight weeks, the Council will also take the following actions:
• Provide evidence that it has taken the actions in paragraph 53 of this statement.
• Review its procedures and provide training to relevant staff to ensure there is continuity of care when a person with care and support needs is moving to another council area.

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Final decision

55. I have completed my investigation and uphold Mr C’s complaint. There was fault which caused injustice. The action the Council has agreed to take is sufficient to remedy Mr C’s injustice.

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Parts of the complaint that I did not investigate

56. I have not investigated Mr C’s complaint that the Council has refused to provide him with information he has asked for, such as the evidence the independent investigator relied on to reach his decisions. Mr C has complained to the Information Commissioner about this. This is the appropriate route for a complaint about data protection and we should not investigate a complaint about the same matter.

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Investigator's decision on behalf of the Ombudsman