Summary: There was fault by two councils in the way they dealt with Mr Y’s care and support arrangements when he was released from prison. This caused avoidable distress. The councils will apologise, make a symbolic payment and review procedures.

The complaint

1. Ms X complained about Staffordshire County Council (Staffordshire) and Birmingham City Council (Birmingham.) She said both councils failed to support her late father Mr Y when he was released from prison.
2. Ms X said the councils’ failings caused Mr Y and his family avoidable distress. She said on the day Mr Y was released from prison, she had to sit in the car with Mr Y, who had autism and was seriously ill, not knowing where he was going to live or who was going to provide his care.

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The Ombudsman’s role and powers

3. 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)
4. Ms X’s complaints are late because they concern events in 2019, but I have investigated them because she has good reasons for not coming to us sooner. She has been complaining to several public bodies about Mr Y’s case and this took a while to conclude. Her father then became unwell and died in August 2021.
5. We investigate complaints about ‘maladministration’ and ‘service failure’ against councils and some other bodies. 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. 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

7. I considered Ms X’s complaint to us, both councils’ responses to the complaint and documents described in this statement. I discussed the complaint with Ms X and with a principal social worker from Staffordshire.
8. Ms X and both councils 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

Relevant law and guidance

9. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
10. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
11. Where a council decides a person has care and support needs which meet national eligibility criteria, it must give them a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. (Care Act 2014, sections 24 and 25)
12. A council has the power to meet a person’s care needs where they have not completed an assessment, if there is an urgent need, regardless of whether or not the person is ordinarily resident in the council’s area. (Care Act 2014, section 19(3))
13. Care and Support Statutory Guidance sets out requirement of councils in respect of prisoners. It says:
• Councils which have prisons or approved premises (approved premises include some probation hostels) in their areas assume responsibility for meeting the eligible needs of the people living in these sites. (Paragraph 17.12)
• The council should ensure all relevant partners are involved in care and support planning and take part in joint planning with health (Paragraph 17.31)
• Prisoners must have continuity of care when they are released and are moving back into the community (Paragraph 7.41)
• Where a prisoner is being released, their ordinary residence will generally be the authority they intend to live in on a permanent basis (Paragraph 17.42)
• The prison and both councils should work together to ensure the adult’s care is continued during the move. They must share relevant information including a copy of the care and support plan. (Paragraph 17.44)
14. Most care and support a council arranges is chargeable. A financial limit, known as the upper capital limit, or capital threshold is £23.250. This is the point at which a person is entitled to access local authority funding towards the cost of their care and support. (Care and Support Statutory Guidance, paragraph 8.12) Councils commonly refer to people who have capital above the capital threshold as self-funders.
15. Following social care and finance assessments, a council has the power to meet an adult’s needs for care and support if the person is ordinarily resident in another council’s area, the person has capital over the capital threshold (see paragraph 14) and asks the council to arrange care for them. (Care Act 2014, section 19(2))
16. A person above the capital threshold can ask their local authority to arrange their care and support for them. Where the person’s needs are to be met by care in a care home, the local authority may choose to meet those needs and arrange the care, but it is not required to do so. (Care and Support Statutory Guidance, paragraph 8.13)
17. Statutory Guidance explains a council should review a care and support plan at least every year, upon request or in response to a change in circumstances (Care and Support Statutory Guidance, Paragraph 13.32)

What happened

18. Mr Y was in his late eighties and was in prison in Stafford. He had autism and some serious health problems including cancer. A social worker from Staffordshire’s prison care team (Social Worker S) completed a social care assessment in May 201. The assessment form recorded the social worker’s view that Mr Y had mental capacity to take part in the assessment and to decide on and manage his social care needs. The outcome of the assessment was Mr Y was eligible for care and support and needed support to shower, twice a week. Otherwise, his needs were being met by a cell mate who was his buddy. Staffordshire arranged and funded support to shower.
19. An email from Ms X at the start of September said Mr Y had cancelled his support with showering.
20. Mr Y’s probation officer referred him to Birmingham’s prison social care team in September/October. Birmingham received copies of the assessment and care and support plan Social Worker S had completed.
21. The probation officer arranged for a placement for Mr Y at a probation hostel (approved premises) in Birmingham for his release in November. Birmingham’s prison social care team was made aware of this at the end of September.
22. The probation officer and Birmingham’s prison social care team spoke at the start of October confirming Mr Y’s release to the probation hostel in November. Birmingham said they would do a further social care assessment when he arrived at the probation hostel. Mr Y was noted to be eligible for care and support but was declining this in prison.
23. Social Worker S visited Mr Y in the middle of October. The prison had re-referred him to the social care team because of concerns about how he was managing personal care as he had been refusing care. Mr Y told the social worker he had ended the care and support because the variable timing of calls made him anxious.
24. Social Worker S and Ms X spoke a couple of days later. Ms X was concerned about a sudden decline in Mr Y’s health and his frailty.
25. Social Worker S and an occupational therapist (OT) visited Mr Y and the OT assessed his mobility. The social worker noted family members would not be allowed to visit Mr Y in the probation hostel and that the hostel would not agree to take him unless he accepted care.
26. The OT and Social Worker S visited the hostel and the OT said it was suitable for Mr Y’s mobility. The hostel offered Mr Y a placement for two months and said he had to accept all care on his care and support plan.
27. In the last week of October, Social Worker S and a social worker from Birmingham met the probation officer at the probation hostel to discuss how his placement would work. Mr Y had changed his mind and was willing to accept care.
28. Mr Y went into hospital in the last week of October with a chest infection. He was quite unwell and his health had declined suddenly. Both councils were informed.
29. An email from Social Worker S copied to a social worker in Birmingham said that once Mr Y was in the hostel, he was no longer Staffordshire’s responsibility. It went on to say that if Mr Y was still in hospital on his release date, the hostel would not keep his place open.
30. An email from the manager of the hostel suggested the hostel may not be suitable for Mr Y because of the decline in his health. The manager withdrew the offer of a placement in the last week of October. Social Worker S and a social worker from Birmingham’s prison team spoke and the latter explained Mr Y would not be dealt with by their team if he wasn’t living in a probation hostel and would be dealt with by one of the local social care teams if he was intending on living in Birmingham
31. On 3 November, Ms X emailed Social Worker S pointing out her father’s release from prison was on the 8th and asked what the arrangements were and if there had been progress in securing an emergency respite care placement. Mr Y remained in hospital.
32. On 4 November, Social Worker S noted Mr Y was being discharged from hospital the following day and the hospital stated his care could be managed by three calls a day. The social worker emailed Ms X to say an address needed to be confirmed before another council’s adult social care department would accept a referral to assess Mr Y for social care provision. The email went on to say Staffordshire had assessed Mr Y as a ‘self-funder’ and he could not do much until the hospital discharged Mr Y.
33. Mr Y was discharged from hospital and went back to prison on 5 November. Social Worker S noted Mr Y was weak and needed support to wash on the bed, his oxygen levels were low, he had a pressure sore and he had refused a care call that morning. The social worker considered Mr Y needed three care calls a day and he needed:
• Support to get to the toilet and to sit on toilet
• A wash on his bed as he was too frail to shower
• Support to dry and dress
• Support from nurses to check his pressure sore and dress it
• Help with breakfast.
34. An internal email from Social Worker S on 5 November said Mr Y needed a nursing home placement due to the decline in his health. The records indicate his family’s preference was for Mr Y to be in a care home close to them in Birmingham so they could visit him regularly.
35. On 6 November, there were many emails exchanged between professionals working with Mr Y about his impending release. I have summarised them below:
• The head of the prison’s healthcare team said she had done an urgent referral to Birmingham’s homeless department and also to its adult social care department for an emergency respite bed in a nursing home
• The probation service emailed Birmingham’s adult social care team, giving the background to the case and asking for assistance with a care package for Mr Y
• Internal emails between Staffordshire and prison staff, copied to Birmingham social care team said they had spoken to a social worker from Birmingham about Mr Y’s deteriorating health and suggested he should be the responsibility of the NHS, he was not suitable for mainstream housing and needed a placement.
• A probation officer suggested both councils needed to meet to discuss the case.
36. On 7 November, Staffordshire’s practice supervisor and other managers directed social care staff to identify a nursing home for Mr Y’s release the next day. Social Worker S noted the brokerage team had provided a list of homes and prison social worker colleagues had divided the list between them and began phoning nursing homes. The records suggest most nursing homes refused to consider Mr Y. In the end, Care Home A offered Mr Y a place on the afternoon of 8 November. The records indicate the social worker spoke to Ms X who agreed to the placement and said she would take Mr Y there. Mr Y went to Care Home A after he was released from prison.
37. An email from the head of the prison’s healthcare team said Mr Y’s family had been made aware that they would need to pay for a nursing home placement and that they agreed to pay.
38. On 11 November, the Social Worker S called Birmingham’s social care access team and said Mr Y had moved to a nursing home in Birmingham. The note of the call suggested Birmingham was not going to take any action until Mr Y contacted them himself. Social Worker S emailed Ms X to say she could contact Birmingham and enclosed a copy of Mr Y’s latest social care assessment and care and support plan.
39. On 13 November, Social Worker S spoke to Birmingham and said Mr Y was a self-funder and his funds would fall below the threshold in January 2020.
40. The case records indicate there was no action taken by Birmingham until the start of January 2020, when Social Worker S emailed Birmingham and asked for Mr Y’s case to be allocated. He attached a copy of Mr Y’s social care assessment and care and support plan. Social Worker S spoke to Care Home A who told him it was aware Mr Y’s funds would run out at the end of January.
41. There was a meeting at Care Home A in December to decide if Mr Y was eligible for NHS funding towards his care. Birmingham did not attend. The outcome was Mr Y was not eligible for full NHS funding, but he was eligible for a nursing care payment from the NHS.
42. Ms X emailed Birmingham’s adult social care team in January saying the family had paid £44,000 for the placement due to a lack of assistance from either authority and Mr Y would run out of money at the end of January. She asked for urgent assistance.
43. A social worker from Birmingham’s social care team (Social Worker B) was allocated Mr Y’s case on 10 January.
44. There was a meeting at Care Home A between Social Worker B and Ms X. The notes said Care Home A decided that ‘due to his health at that time and previous convictions it made the decision for Mr Y to receive one to one care’. His daughters did not feel he needed this. The home manager agreed to ‘hold discussions about one to one care being stopped.’ Social Worker B advised Mr Y was Birmingham’s responsibility and he may have to move to a different nursing home due to costs.
45. Ms X emailed Social Worker B and other professionals after the meeting saying she did not understand why Mr Y continued to be charged for one-to-one care, he did not need this and the family were distressed having to sort everything out.
46. Ms X emailed Social Worker B again saying Care Home A refused to stop the one-to-one supervision based on the probation service saying Mr Y was ‘medium risk’ Ms X asked the social worker to intervene. The social worker spoke to Care Home A’s manager who confirmed one to one care would remain in place due to risk factors assessed by the probation service.
47. Birmingham’s brokerage team searched for nursing home placements and identified several with vacancies. Social Worker B passed these on to Ms X so the family could consider them. The case records indicate some of the homes would not accept Mr Y. The brokerage team continued to search for vacancies into March 2020 and at the end of March, a suitable placement was identified which the family liked. Mr Y went into hospital as he was unwell and the new home had confirmed COVID-19 cases so there was a slight delay in Mr Y moving.
48. Ms X emailed Social Worker B in the middle of April saying she had sent off financial assessment forms in January but heard nothing back from the finance team. She said Care Home A were saying there was a 28-day notice period, but Mr Y had no money to pay for it. She said she was at her wits end.
49. Mr Y moved to the second nursing home at the end of April 2020. The records indicate Birmingham commissioned and funded the placement.
50. Birmingham’s records indicate the financial assessment was not completed until June 2020.
51. A transfer summary on Birmingham’s case records indicates Mr Y’s finances dropped to the capital threshold on 28 January 2020 and Birmingham retrospectively approved funding for his care on that date, Social Worker B had reviewed the placement with Mr Y’s family and it was meeting his needs.
52. In December 2020, Ms X emailed Social Worker B saying she had a large bill from Care Home A. She said Mr Y had made two payments for his care of £7600 and £8100 before his savings dropped to the threshold. The social worker replied saying the commissioning team would look into it.
53. Social Worker B emailed Ms X saying Birmingham had agreed to backdate funding at a cost of £595 a week from 22 December 2019. The social worker spoke to Care Home A’s manager who agreed to accept Birmingham’s offer of backdated funding. The social worker said Birmingham would not pay for one to one care.
54. Birmingham’s case records indicate that at the end of December 2020, it agreed to back pay funding to Care Home A for standard nursing care, not including one to one care for the period 23 December 2019 to 23 April 2020. An earlier internal email indicated Care Home A had previously said it would not accept the Council’s funding unless it paid £1600 a week.
55. At the end of January 2021, Care Home A emailed Social Worker B saying Mr Y had an outstanding debt of £80,000 for one-to-one care that was ‘put in place due to his circumstances’ and asking who would pay. There was no response.
56. Ms X told me the debt was still not paid as Mr Y’s estate did not have the money to pay it.

The councils’ responses to the complaint.

57. Ms X used both councils’ complaints procedure. I have summarised the responses from each council below:
58. Staffordshire said:
• It had no responsibility to source a care home as Mr Y was a self-funder.
• Staffordshire were best placed to speak to potential care homes and share information as it had completed social care assessments
• As Birmingham was Mr Y’s preferred release area, it was the prison team’s responsibility to refer him to Birmingham’s adult social care team and this happened in September
• Its policy says councils are responsible for ensuring continuity of care for offenders with a care package moving into their area from prison. Staffordshire was responsible for sharing assessments and care plans with the council the prisoner is moving to
• A change in need should result in a re-assessment to identify appropriate care
• There should have been a multi-agency meeting to consider options when the hostel was withdrawn. The hostel was withdrawn within 8 days of his release so this left little time to make other arrangements
• Mr Y was discharged from hospital without Staffordshire being notified. Information from the hospital indicated he was unlikely to be discharged before his prison release date
• It partially upheld the complaint as actions were taken to assess and identify eligible needs and reviewed following changes to Mr Y’s health. Communication was poor and the family did not receive sufficient advice and guidance about next steps.
• Care Home A said they would accept Mr Y as an emergency but as it had no time to assess him, they would put in one-to-one care initially and review this in two weeks. Staffordshire did not assess Mr Y as needing one to one support.
• As Mr Y was self-funding, Care Home A was given family members’ contact details. Staffordshire did not contract with the nursing home
• It would develop guidance and information for prisoners and their families regarding self-funding care.
• It would remind staff of the process of referring to relevant councils where prisoners may require care on return to their area of ordinary residence including sending copies of assessments and care and support plans.
• A multi-agency learning event would take place
• It would develop a protocol between agencies to consider how to support prisoners on release and their families with securing accommodation and care
• An advocate was not needed as Mr Y had capacity to make decisions regarding his care and had family support. The social worker should have reviewed this issue when Mr Y’s health declined.
59. Staffordshire’s principal social worker told me officers considered using powers under Section 19(2) of the Care Act 2014 (see paragraphs 14 and 15) to arrange Mr Y’s care and support, but having identified Care Home A had a vacancy, it was considered the family were able to make the placement arrangements and sign the contract. The principal social worker also told me that if there had not been supportive family, the Council would likely have used its power to arrange Mr Y’s care and it had done so in other self-funding cases where there was no family involvement.
60. Birmingham said:
• It should have considered temporary respite care in order to avoid the dreadful circumstances Mr Y and his family experienced on release
• Although Mr Y was a self-funder, both councils should have helped identify a suitable respite care home
• If a council officer had attended the continuing healthcare meeting in December 2019, they may have been able to question the £15,000 monthly charge
• Birmingham’s communication with partners left a lot to be desired.
61. Ms X told us she received a call from the nursing home to say they would need to do a 3-day assessment and this would cost £7000. The second week cost £8000. This was while they were waiting for Birmingham to allocate a social worker and that after two weeks in the nursing home, Mr Y’s savings dropped to £23,250.

Findings

62. It was unfortunate that the probation hostel placement fell through a few days before Mr Y’s release, but this was outside both councils’ control. My findings relate to the actions taken by both councils in response to Mr Y’s release plans falling through at the last minute. I have taken into account the time pressures involved, however Care and Support Statutory Guidance still expects prisoners with care and support needs to have a smooth transition back into the community.

Staffordshire:

63. There was no fault in Staffordshire choosing not to use its powers to contract with Care Home A. I am satisfied officers considered this power. I find it was acceptable for Staffordshire to decide Mr Y’s family would make the necessary contractual arrangements with the care provider which social workers had identified.
64. However, I do consider Staffordshire should have arranged an urgent meeting with Birmingham and other relevant partners (like the probation service) when the probation hostel withdrew the offer at the end of October. The failure to do so was fault because it was not in line with Care and Support Statutory Guidance which says there should be involvement and joint planning with all agencies. (Paragraphs 17.41 and 17.44.)
65. Otherwise, I find no fault by Staffordshire in that it carried out a fresh social care assessment when Mr Y returned from hospital and prepared a care and support plan to support Mr Y in anticipation of his release. It referred Mr Y to Birmingham about six weeks before his expected release. This was in line with Care and Support Statutory Guidance Paragraph 17.42. It worked with Birmingham by arranging a visit to the probation hostel to ensure Mr Y’s needs could be met there and the environment was suitable for his disabilities. This is in line with the joint working principles in Care and Support Statutory Guidance as I have summarised in paragraph 13.

Birmingham

66. Birmingham has already accepted fault in the way it worked with Mr Y and his family. Its complaint response said it accepted it should have considered funding respite care. This would have been an exercise of its powers in Section 19(2) and/or (3) of the Care Act 2014. My view is the failure to consider exercising these powers was fault.
67. Birmingham also recognised the delay in allocating a social worker to the case. This was fault as it meant there was a failure to review Mr Y’s placement in December 2019 at the point his savings fell to the capital threshold. Birmingham accepted this was also a missed opportunity for officers to question the rationale behind the extortionate monthly charge applied by Care Home A and the one-to- one supervision arrangements that may not have been needed. I cannot say whether this would have led to Care Home A accepting a reduced charge, but had a review of Mr Y’s care and support taken place sooner, then an alternative nursing home at a far lower cost could have been identified sooner than was the case meaning Mr Y would not have accrued such a large debt.

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Agreed action

68. Staffordshire has already taken some action to improve its service as a response to Ms X’s complaint including changes to staff guidance. This is a partial remedy.
69. Both councils will, within one month of my final decision:
• Apologise to Ms X for the faults I have identified and the avoidable distress
• Make her a payment of £250 (each council) to recognise that distress.
70. Within two months, both councils will review their procedures for dealing with prisoners who have care and support needs to ensure:
• social workers and their managers consider the powers to fund residential/nursing placements where a prisoner’s intended location is unclear and may be outside the area
• multi agency meetings take place urgently where there is a change in intended placement on release.

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Final decision

71. There was fault by two councils in the way they dealt with Mr Y’s care and support arrangements when he was released from prison. This caused avoidable distress. The councils will apologise, make a symbolic payment and review procedures
72. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman