Summary: Mrs X complained the Council failed to meet her late father’s social care needs. The Council was at fault as it failed to complete a holistic assessment of Mr Y’s needs. This leaves Mrs X with a sense of uncertainty and frustration over whether Mr Y may have been better supported before he died. The Council has agreed to apologise to Mrs X and to provide evidence it has revised its procedures. There was no fault by the Council in relation to the provision of equipment for Mr Y.

The complaint

1. Mrs X complained the Council failed to meet her late father, Mr Y’s social care needs. She says it failed to provide him with a wheelchair and other equipment and failed to support them with finding care services. As a result, he was not allowed to die in comfort and dignity which caused her and the family significant distress.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have considered the information Mrs X provided in writing and on the telephone.
5. I have considered the Council’s response to our enquiries and the relevant law and guidance.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. Those with over the upper capital limit of £23,250 are required to pay for their own care. A person with more in capital than the upper capital limit can ask the council to arrange care and support for them and the council must meet their eligible needs if requested. But the person will be required to pay for the full cost of their care. In such circumstances, the council can also apply an administrative fee to cover its costs.
9. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
10. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.

Continuing Healthcare funding

11. Continuing Healthcare Funding (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low.
12. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.
13. The DST makes a recommendation about whether a person is eligible for CHC. The relevant Clinical Commissioning Group will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.
14. The Department of Health and Social Care has published guidance on a ‘Fast Track Pathway Tool for NHS Continuing Healthcare’. This sets out that individuals with a rapidly deteriorating condition that may be entering a terminal phase may require ‘fast tracking’ for immediate provision of CHC. This aims to identify individuals who need to access CHC quickly, with minimum delay and with no requirement to complete the checklist and DST. The tool should be completed by an ‘appropriate clinician’.

What happened

15. Mr Y lived alone and had a terminal condition. In early June 2021 the Council received a referral from an Occupational Therapist (OT). The Council noted Mr Y “lives alone, he has support from his daughter who calls in every evening and makes his tea, she works full time so cannot help in the day. [Mr Y] cannot prepare himself any meals so throughout the day he is struggling. He can wash and dress himself at the moment but his condition is getting worse and he won’t be able to soon. The OT says [Mr Y] needs some support in the day time while he is alone”.
16. A social care assessor contacted Mr Y that day. They noted Mr Y had a terminal condition and was not receiving District Nurse or hospice support. They noted he was unsure of his prognosis and did not want to know. He said he felt he had improved slightly as he could mobilise now and had some OT equipment in place. He said family members lived close by and helped when they could. They noted Mr Y said he felt he was coping fairly well and received two calls per day from his family. They noted “he advised he is unsure he needs any additional care at this time”.
17. The assessment recorded Mr Y had savings over the upper threshold. The assessor explained there would be an upfront administrative fee and a weekly administration fee if the Council arranged a package of care. The assessor also explained they could provide information for Mr Y to privately purchase care. They noted ‘I have also discussed should [Mr Y’s] needs and health rapidly decline he would need to contact the GP and request a CHC fast track to be completed by DNs [District Nurses]’. They noted Mr Y requested signposting information be sent to his email so he could pass it on to the family who could support him privately. The assessor emailed some information to Mr Y the next day.
18. Two days later Mrs X says she called the Council and left a message asking it to call her as her father needed urgent care. She did not receive a reply. She says at this time the OT and GP requested a wheelchair and urine bottles to assist with Mr Y’s care. These were not provided so they had to buy their own. Mrs X says she called the private agencies on the Council’s list but they had no available capacity to support Mr Y.
19. Mrs X emailed the Council in mid June to raise her concerns. Following this she spoke with a Council officer who sent Mrs X a link to the Council’s complaints procedure.
20. Mr Y died in late June. In early July 2021 Mrs X asked for an update on her complaint. She said she had raised her initial concerns as a complaint. The officer referred her to the complaints department.
21. Mrs X emailed the complaints department. She said her father’s care fell far short of what was expected. She said her initial complaint was not responded to. She complained:
• the OT and GP had requested a wheelchair and urine bottles which the Council had not provided;
• the assessor had emailed Mr Y who was confused as he did not know why he was sent information. Mr Y could not remember the call with the assessor;
• Mr Y needed care and support which he would not have received if she had not been checking on him;
• the Council did not support her to arrange care services and all the private agencies listed had no capacity; and
• the Council did not offer support in setting up an urgent care button.
22. Mrs X said this left her as her father’s sole carer, managing his personal care.
23. The Council responded to Mrs X’s complaint in late July 2021. It apologised for the failure to acknowledge her original email detailing her concerns. It explained it had not received a referral of request for urine bottles or a wheelchair. It explained such equipment was not within its contract and was usually recommended and prescribed by specialists such as Physiotherapists or Occupational Therapists.
24. It said the assessor had no reason to question Mr Y’s capacity. However, had they spoken with Mrs X or the OT who referred Mr Y they would have had access to further information to inform the assessment process. It said the assessor should have spoken to the OT to clarify if all equipment was in place and to establish if the OT was exploring CHC. It set out the guidance on the fast track for NHS CHC and that the guidance states that fast track applications included the provision of equipment where necessary. It explained the Care Act did not set out the requirement for the Council to provide wheelchairs. It acknowledged her concerns about accessing providers and said it would refer these to its commissioners.
25. Mrs X remained unhappy and raised further concerns including that the officer had referred to ‘her mother’. The Council officer responded and sincerely apologised for their error in referring to ‘your mother’. They reiterated that the Council’s contract does not include the provision of wheelchairs. They added items such as wheelchairs and urine bottles were provided through primary health services. They added it was clear communication with Mrs X and the referrer was not made, and this would be addressed with the wider team. Mrs X remained unhappy and complained to us.
26. In response to my enquiries, the Council said it had received no information about Mr Y requiring an urgent care button. This was not raised in the initial assessment. However, it acknowledged if it had contacted the referrer or Mrs X it would have identified this need earlier and could have assisted Mrs X with sourcing this. The Council also said it had put a process in place to ensure it contacted referrers for more information and told them the outcome of needs assessments.

Findings

27. After it received a referral, the Council completed a preliminary assessment of Mr Y. At the time there was no evidence that Mr Y lacked capacity to participate in the assessment. However, there is no evidence the assessor asked Mr Y if he wanted any other person involved in the assessment and they did not contact the referrer for any further information regarding Mr Y’s situation and prognosis. This was fault. The Council acknowledged this in the complaint response to Mrs X and that if they had done so the Council would have had further information to complete a more holistic assessment of Mr Y’s needs.
28. The Council also acknowledged that if it had spoken to Mrs X or the referrer, it may have identified Mr Y’s need for an urgent care button at an earlier point and could have provided information to assist Mrs X in sourcing this. The Council said it made changes to its processes as a result of Mrs X’s complaint. I am satisfied the service improvements would prevent the fault occurring again and have therefore made a recommendation to request evidence the Council carried out the process changes.
29. For those with a rapidly deteriorating condition, the NHS fast track pathway exists to enable support to be provided quickly; funded by the NHS. Access to this is through an assessment by a GP or other health professional. However, the lack of a holistic assessment meant the assessor missed the opportunity to provide advice or guidance to Mrs X about how to access support through the fast track pathway.
30. I cannot now know exactly what would have happened had a more holistic assessment been completed and whether this would have affected what care and support Mr Y could access before he died. However, this leaves Mrs X with a sense of uncertainty and frustration.
31. Mrs X complained about the inability of the OT to get equipment including a wheelchair and urine bottles. These items are provided through health care services and through Clinical Commissioning Groups (responsible for the hospitals and health care services in their area) based on referrals from health care professionals such as OTs. The Council was responsible for considering Mr Y’s social care needs, not the provision of health care related items and so was not at fault.
32. In the complaint response the Council accepted it had delayed responding to Mrs X and had in error referred to ‘her mother’ (rather than her father) in one part of the response. This was fault. The Council has already apologised for this which was an appropriate remedy for the distress this caused.

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Agreed action

33. Within one month of my final decision the Council has agreed to apologise to Mrs X for the distress caused to her by its failure to complete a holistic assessment of Mr Y’s needs.
34. Within one month of my final decision the Council has agreed to provide evidence of the procedural changes it has made to improve contact with referrers and to ensure referrers are made aware of the outcome of an assessment.

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Final decision

35. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman