Summary: Mrs D complained about how the Council assessed and provided care for her late mother Mrs M. We find the Council was not at fault. The residential care provider has been unable to provide the communication log for the period of Mrs M’s respite stay. That is fault but has not caused an injustice.

The complaint

1. Mrs X complained about how the Council assessed and provided care for her late mother Mrs M. She said the Council:
1. Failed to provide a suitable level of care whilst delivering reablement care.
2. Completed Mrs M’s care needs and mental capacity assessment when she was not present and did not include her views or consider evidence she had provided.
3. Did not tell her that Mrs M’s respite care would be chargeable.
4. Failed to correctly identify and arrange palliative care for Mrs M.
5. Failed to provide a suitable level of care whilst Mrs M was resident in Grays Fair Court care home for respite.
2. Mrs X does not want to pay her late mother’s respite fees for Home A. She wants the Council to apologise for the way it has treated her and her sister when they tried to get Mrs M the most appropriate care for her needs.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint or others. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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.
7. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
8. 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)
9. 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.

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How I considered this complaint

10. I read Mrs X’s complaint and the Council’s response.
11. I referred to the Care and Support Statutory Guidance 2014.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law and statutory guidance

Care planning and financial assessments

13. Councils must assess anybody in their area who appears in need of care services. Following an assessment the Council must decide which needs are eligible for their support. If the Council provides support it must produce a written Care Plan.
14. Following a needs assessment the Council must offer a financial assessment to decide who will pay for the eligible care needs. Where people have over the capital limit, councils can charge for care services.
15. In some circumstances the NHS is responsible for meeting the full cost of someone’s care; this is referred to as NHS Continuing Health Care (CHC). A multidisciplinary team will complete an assessment for CHC to assess whether the primary need for care is health based. Where a person is refused CHC, they may be eligible for Funded Nursing Contribution (FNC). That is also funded by the NHS.

Reablement care

16. Intermediate care and reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of intermediate care or reablement services.

The Mental Capacity Act 2005

17. Mental capacity refers to a person’s ability to make a decision. The Mental Capacity Act 2005 was designed to protect people who lack the ability to make decisions for themselves because of mental capacity difficulties. It has five statutory principles. These include:
• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
• Just because an individual makes what might seem an unwise decision, they should not be treated as lacking capacity to make that decision.
18. Where a person’s capacity is in doubt, councils are expected to carry out an assessment of their capacity. References to capacity are to a person’s capacity to make a particular decision at the particular time it needs to be made.
19. Providers must follow people’s consent wishes if they refuse nutrition, hydration and medication unless, they have been assessed as lacking capacity and a best interests decision has been made under the Mental Capacity Act.

Background

20. Mrs M was admitted to hospital in 2018. The hospital discharged her into the Council’s reablement unit (the Unit) in July 2018, to build her confidence and independence before returning home. Mrs M stayed at the Unit for four weeks.
21. A reablement practitioner reviewed Mrs M’s progress the week before her return home. They recorded Mrs M as needing minimal assistance with her personal care but requiring assistance with food, drink and medication. Mrs M was assessed as needing three visits a day by the Council’s reablement service, the Norfolk First Service (NFS)

Events 6 to 15 August 2018

22. Mrs M returned home on 6 August 2018. The care records show that shortly after returning Mrs M became reluctant to eat or engage in her personal care and she stopped taking her medication as prescribed. The care records show the reablement support workers (RSWs) prompted and encouraged Mrs M daily. During this period:
• A RSW contacted the doctor asking for a review of Mrs M’s medication on 7 August. That was followed up on the 8 and 9 August by the RSWs and Mrs M’s brother who was staying with her.
• The community nurse visited Mrs M on 7 August; they reminded Mrs M of the importance of taking all her medication.
• Mrs D visited her mother on 10 August. The case records show the RSW made Mrs D aware of Mrs M’s refusal to take her medication and that the doctor was visiting on 15 August.
• A RSW updated the Council’s electronic adult social care records about Mrs D’s reluctance to carry out any personal care on 11 August.
• A RSW updated the Council’s ASC electronic adult social care records on 13 August that Mrs M was eating very little and was unwell. Mrs M had told the RSW she did not want a doctor.
• NFS reviewed Mrs D’s progress on 13 August 2018. This indicated her motivation was low and Mrs M was refusing to get out of bed until she had seen the doctor. NFS discussed arranging a private care package for Mrs M as it identified ongoing support was needed.
• Mrs M’s doctor visited on 15 August. They decided to readmit Mrs M to hospital as she was dehydrated, malnourished, had low blood pressure and there were concerns with her memory.

The Council’s response to Mrs D’s complaint and enquiries

23. Mrs D complained NFS failed to give her mother the level of care it should have. She said it did not tell her that Mrs M had refused her medication or that her condition had deteriorated. She said the RSWs did not support her personal hygiene.
24. In response the Council said:
• The purpose of the NFS was to help people regain as much confidence and independence as possible.
• Mrs M had previously refused to allow social care staff to contact Mrs D, therefore it could not share information with her without Mrs M’s consent.
• NFS staff had alerted social care to the fact Mrs M needed greater care than NFS could provide.
25. In response to enquiries the Council said the RSWs recorded concerns about Mrs M but did not ask the social care team for specific input.

My findings

26. The purpose of reablement is to promote a person’s independence and confidence by encouraging them to take as much responsibility for their own care needs as possible. From the care records it was evident Mrs M struggled to engage with the reablement process once she returned home. As Mrs M had capacity to decide whether to eat, drink and take her medication, the RSWs took appropriate action prompting her with her medication and personal care and contacting her doctor about her medication. The district nurse visited and was aware that Mrs M was not taking her medication. The Council reviewed her progress on 13 August and identified ongoing support was needed. There is nothing further we would have expected the Council to do. The Council was not at fault.
27. The Council said it did not contact Mrs D about Mrs M because it did not have consent. However, Mrs D visited her mother on 10 August where the RSW told her about Mrs M’s refusal to take medication. I do not consider the Council not contacting Mrs D between 7-9 August as fault. Furthermore, Mrs M’s brother was staying with Mrs M when she first left the Unit and the Council’s RSWs spoke to him. The Council was not at fault.

Events 15 August – 27 September 2018

28. Mrs M was readmitted to hospital on 15 August 2018. As part of her discharge planning a Council Social Worker (Officer A) completed a mental capacity assessment to assess whether Mrs M had capacity to make a decision about her care needs. As part of that assessment Officer A:
• considered information received from ward staff;
• spoke to Mrs D over the telephone;
• considered an assessment completed by the Mental Health Occupational Therapist and subsequent referral for memory tests; and
• met with Mrs M.
29. The case records show Mrs M told Officer A that she had not been happy with the services of NFS. She was aware her care needs had changed and that she needed help getting out of bed, with personal care and meal preparation. She was aware of the risks of not having care in place when she was discharged from hospital.
30. Officer A assessed Mrs M as having capacity to decide on how her care needs should be met on discharge from hospital. Mrs M agreed to a short-term respite placement to consider long-term options.
31. Mrs D met with Officer A whilst Mrs M was still in hospital. She told her she disagreed with the mental capacity assessment. Officer A explained it was time and topic specific but agreed there had been a change in Mrs M’s behaviour. Officer A asked the Mental Health Occupational Therapist to visit Mrs M again. The Occupational Therapist told Officer A that Mrs M was not presenting with any new issues and confirmed the short-term placement in a residential care home would be suitable.

The Council’s response to Mrs D’s complaint and response to enquiries

32. Mrs D complained Officer A did not consider evidence she had left at the hospital demonstrating the deterioration in her mother’s handwriting and the increase in her levels of confusion. She said she asked Officer A not to complete the assessment without her present. Mrs D disagreed with the outcome of the assessment.
33. The Council said Officer A had access to Mrs M’s case records, considered the views of ward staff and family members and met with Mrs M. It said meeting Mrs M without family members present can assist social workers to build up a fuller picture of a person’s needs. It said it had not been provided the information Mrs D left with the ward staff.

My findings

34. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
35. The mental capacity assessment indicates Mrs M agreed to participate without Mrs D being present. Officer A considered all available information, including information provided by Mrs D in a telephone conversation. Officer A has provided evidence and reasoning for their decision-making about Mrs M’s capacity. The Council was not at fault.
36. Mrs D specifically complains Officer A did not consider evidence she left with ward staff. The Council states Officer A did not receive that evidence. We cannot find fault with the Council for failing to consider evidence it did not have. However, even if it did have the evidence Mrs D provided it is unlikely that would have altered the outcome of its capacity assessment, which specifically focused on Mrs M's capacity to decide her short-term care needs.

Events on 14 September

37. The case records show Officer A spoke to Mrs D by phone on 14 September about charges for Mrs D’s care. The records note Mrs D said she had lasting power of attorney but was unclear whether Mrs M was over the capital limit. Officer A also recorded speaking to Mrs M and leaving information about charging for care with her.
38. The Council invoiced for Mrs M’s care the following month. Mrs D contacted the Council and said it had failed to tell her they would be charged for the respite care. She said she thought respite care, like reablement, was free.

The Council’s response to Mrs D’s complaint

39. The Council did not uphold Mrs D’s complaint. It said Officer A had told her about the charges. It said the Council charged for respite and residential care.

My findings

40. Where there is a conflict of evidence we will make our finding based on the balance of probabilities. It is my view the Council did discuss respite charges with Mrs D. The case records set-out the information provided and the additional discussion about Mrs D having lasting power of attorney and whether Mrs M was over the capital limit. The Council was not at fault.

Events 15 September – 6 November 2018- the identification and arrangement palliative care for Mrs M

41. Mrs M moved into a short stay respite bed at Grays Fair Court at the end of September 2018. Mrs M was booked to stay there till the end of October.
42. The Council completed a reassessment of Mrs M’s needs on 16 October 2018. That identified she needed 24-hour support. The Council started to identify possible Elderly Mentally Infirm residential placement for Mrs M. It sent Mrs D an email on 18 October with a list of vacancies and the rates.
43. Mrs M’s condition deteriorated further and she was readmitted to hospital on 21 October and discharged the following day. The discharge letter said Mrs M’s worsening condition was a ‘terminal process’ that should be managed through palliative care. The hospital made a fast-track referral for Continuing Health Care for Mrs M. Mrs D contacted the Council and told it the consultant had said respite care was no longer suitable and Mrs M needed full- time nursing care. Mrs D contacted the Council further stating she wanted Mrs M moved from Gray Fairs Court as quickly as possible.
44. The Council spoke to the Community Matron about Mrs M’s care needs. They said Mrs M’s needs were being met in residential care and the only nursing support needed was for dressing her legs. They suggested a dual registration care home that had residential and nursing beds.
45. The Council shared that information with Mrs D. It explained Mrs M did not require specialist nursing input and that palliative care could be provided in residential and nursing homes.
46. The case records show the Council contacted several care homes to identify a suitable placement. A dual registered home, Home B agreed to assess Mrs M on 29 October with the view to move her into a residential bed the same day. On assessment, it said Mrs M needed nursing care and could not offer her a placement immediately.
47. The case records show the Council identified a nursing placement for Mrs M whilst following up the need for an NHS Further Nursing Care assessment. The Council arranged for Mrs M’s move to a nursing placement on 2 November. However, she was readmitted to hospital before that date and died on 6 November 2018.

My findings

48. Mrs D believes the Council acted inappropriately by trying to keep Mrs M in residential care when she should have been receiving palliative care in a nursing home.
49. The Council based its decision to move Mrs M into a residential placement on the reassessment of her needs, completed on 16 October and advice from the nursing team who said she only needed occasional nursing intervention. Based on that advice, the Council recommended Mrs D consider a dual registered home. As palliative care is provided in residential and nursing homes that decision did not affect Mrs M’s access to palliative care. The Council was not at fault.
50. Following Home B’s assessment of Mrs M, the Council took steps to identify a nursing placement and the funding for that placement. It acted without delay. The Council was not at fault.

Events 15 September – 6 November 2018 - level of care whilst Mrs M was resident in Grays Fair Court for respite.

51. Mrs D said when her mother was admitted to hospital in October, nursing staff identified she had a fungal infection indicating her skin had not been dried properly after bathing.
52. In addition, Mrs D stated when she visited her mother on 29 October 2019 staff members moved Mrs M incorrectly without the use of equipment and manhandled her when they got her dressed. Mrs D said that resulted in a skin tear to her arm. Mrs D said she asked for the manager to be called and said she asked the home to get the district nurse to dress the wound.

Mrs M’s care plan

53. The Council’s reassessment of Mrs M’s needs on 16 October said:
• she needed the assistance of two carers for all personal care tasks;
• she needed assistance from either one or two people when mobilising and use of a frame for safe transfers; and
• her skin integrity was at ‘very high risk’ because of reduced mobility, low body weight and incontinence. It noted pressure sores on her elbows that were healing.

Grays Fair Court significant events records

54. Grays Fair court was run by Age UK when Mrs M was a resident. Age UK has provided the ‘significant events’ daily records for from 27 September to 30 October which was the period of Mrs M’s respite. There are references in the care records to Mrs M’s skin leaking fluid which required the district nurse to dress. Those records show the home identified soreness on 7 October. The district nurse attended on 10 October and provided cream for the skin on 12 October. The district nurse also attended on 3, 24 and 29 October to change dressings.
55. The home’s records for 29 October described the care staff hoisting Mrs M that day as she could not weight bear. They state that Mrs D had asked for Mrs M to be left in bed for as long as possible to allow her to sleep. The records note that Mrs M’s arm was leaking fluid and the district nurse had visited and dressed it.

The Council’s and Age UK’s response to Mrs D’s complaint

56. Age UK referred to the significant events records about the skin soreness. It said it would have expected staff to record if skin healing was not evident and that would be recorded in staff handovers and in its communication book. It said the communication book for this period was missing. It said it had spoken to staff about Mrs M's personal care but none could recall the specific skin soreness.
57. Age UK said it spoke to the staff present on 29 October but they could not recall the incident as described. They said they would not lift or drag a person in their care. Staff said they would direct a person to the complaints process if they were unhappy with the care provided. Age UK said there was nothing in its records to say Mrs D spoke to the team leader about what happened or asked them to contact the district nurse.

My findings

58. Mrs M’s skin integrity was ‘high risk’; she had recently spent a period in hospital and her overall health and wellbeing had been gradually deteriorating. The care records indicate once the home identified the soreness, it alerted the district nurse who provided cream. Therefore, it took the correct remedial action. The home was not at fault.
59. Age UK has been unable to provide the communication book that outlines the information provided to staff members between shifts about residents changing care needs. The loss of the communication book is fault. However that did not cause Mrs D a significant injustice as it has provided the significant events records which provides details of the care and support Mrs M received.
60. The significant events records do not record Mrs D raising concerns about the moving and handling of Mrs M on 29 October. Although the records do show the district nurse attended to dress Mrs M’s arm there is nothing to indicate that was at the request of Mrs D.
61. 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. However, in this case, I can’t come to a view on what took place, therefore, I will not investigate this further.

Final decision

62. The Council was not at fault for the care and support it provided to Mrs M. Age UK has been unable to find its communication book which is fault, however that has not caused an injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman