Summary: Ms X complained the Council failed to properly assess her father, Mr Z’s, care needs. She also complained the Council did not provide sufficient care in line with Mr Z’s wishes and the Equality Act since January 2023. Ms X complained the Council was dishonest about its assessment of Mr Z’s needs and failed to communicate with her properly about the decisions made about her father’s care. There was some fault in how the Council initially assessed Mr Z’s needs which caused Ms X frustration and uncertainty. The Council will apologise to Ms X and pay her a symbolic amount of £300 to recognise the injustice caused to her.

The complaint

1. Ms X complained on behalf of her father Mr Z that the Council failed to properly assess, Mr Z’s care needs. She also complained the Council did not provide sufficient care in line with Mr Z’s wishes and the Equality Act since January 2023. Ms X complained the Council had been dishonest about its assessment of Mr Z’s needs and had failed to communicate with her properly about the decisions made about her father’s care. Ms X said this caused her father distress and put him at risk of harm, and caused her distress and frustration as she had to unwillingly meet her father’s needs herself. Ms X wanted the Council to provide 24-hour care at home for Mr Z.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I read the documents Ms X provided and discussed the complaint with her on the telephone.
6. I considered the documents the Council provided in response to my enquiries.
7. Ms 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

Relevant legislation and guidance

Assessment

8. 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.
9. A person will have eligible needs if they meet all of the following:
• they have care and support needs as a result of a physical or a mental condition;
• because of those needs, they cannot achieve two or more of the outcomes specified; and
• as a result, there is a significant impact on their wellbeing.

The outcomes include people’s day-to-day outcomes such as dressing, eating and drinking and maintaining personal relationships,

10. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer) for people with eligible needs. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person..

Reviews

12. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Mental Capacity Act

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps councils should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

The Equality Act 2010

14. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
15. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Act. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
16. The ‘protected characteristics’ referred to in the Act are:
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

What happened

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. Mr Z is an elderly gentleman who lives alone. He has physical health problems and needs care and support with activities of daily living. Mr Z’s daughter Ms X supports Mr Z and is his next of kin and advocate. Mr Z has lived in the UK for a long time, but English is not his first language.
19. Mr Z was receiving care and support from the Council in 2022. At that time he was receiving 24-hour care at home from a Council commissioned care provider to meet his eligible needs. The Council records show this was a temporary measure following the hospitalisation and subsequent death of Mr Z’s wife who he had previously lived with. The Council had arranged to review Mr Z’s needs and care package in January 2023.
20. Mr Z was admitted to hospital at the beginning of January 2023 before the review was done. Ms X contacted the Council after a few days and asked if Mr Z could be discharged. She raised concerns about the quality of care Mr Z was receiving from the care providers currently in place.
21. The Council decided it need to hold a safeguarding meeting about those concerns before Mr Z could be safely discharged.
22. At the end of January the Council decided Mr Z needed 24-hour care and four calls a day with two care workers to meet his needs, or a placement in a care home. Ms X told the Council that the care provider would no longer provide Mr Z’s care package and a new provider was needed.
23. The Council considered Mr Z’s package of care and decided that it would offer four care calls a day or an interim placement in a care home.
24. The Council wrote to Ms X in February and told her Mr Z had been assessed as needing 24-hour care. It said it needed to agree a suitable care and support plan for Mr Z’s needs with Ms X. The Council said it was concerned about Mr Z returning home with a single care worker as Ms X had raised concerns about the care he was receiving. It set out other matters it had considered and said there were three options available:
• Mr Z’s family members provided some supervision of Mr Z and the Council would provide four care calls a day;
• Family members/Mr Z paid for care between calls privately; or
• Mr Z moved to a care home.
25. The Council also suggested Mr Z could move to a temporary care home where it could assess his needs and alternative ways of Mr Z returning to his own home.
26. Ms X responded and said Mr Z did not wish to go into a care home and it was against his culture and religion to do so. She said the Council had not considered other options for meeting Mr Z’s needs such as a live in carer, or providing a larger property so she could live with Mr Z. Ms X said the Council should send Mr Z home with temporary 24-hour care while the dispute was resolved.
27. The Council decided it needed to assess Mr Z’s mental capacity to see if he was able to make decisions about his care. Mr Z became unwell again in February 2023 and so the social worker was unable to complete a mental capacity assessment until he recovered.
28. The Council attended a multidisciplinary meeting (MDT) held by the hospital in February 2023. The record of the meeting shows that the health professionals involved in Mr Z’s care said his health had improved and he was stable. It recommended he needed four double staffed care calls a day. The physiotherapy team said Mr Z did not require 24-hour care.
29. The social worker carried out a mental capacity assessment and needs reassessment with Mr Z. It showed Mr Z had capacity to make decisions about his care, and that he wanted to return home. The needs reassessment recorded:
• Mr Z needed support in all areas of his life including feeding himself.
• Mr Z was at risk of falls and social isolation.
• Mr Z had a pendant alarm but chose not to use it
• The Council had provided equipment to support Mr Z such as a hospital bed and walking frame.
• Mr Z wanted to return home but did not want to be alone.
• Mr Z was visited twice a day by district nurses for an ongoing health condition.
• Ms X had declined Mr Z’s discharge from hospital as she felt Mr Z could not be left alone due to his health needs.
• Ms X was worried that Mr Z was at risk of falls, choking and becoming unwell from his underlying health conditions if he did not have 24-hour care.
• Mr Z needed the support of two care workers to move around his property.
• The professionals involved with Mr Z’s care all agreed Mr Z required four care calls a day.
• Ms X and Mr Z did not agree with that decision.
30. The Council produced a care and support plan based on its needs reassessment, which said Mr Z needed four care calls a day with two care workers. The care workers would visit for a total of 4.75 hours per day. With an additional two hours a week for shopping and cleaning. The care workers would support Mr Z to wash, dry and dress, to eat and drink and to take his medicines. It also stated the social worker would explore day centre and befriending services for Mr Z.
31. Ms X complained to the Council in March 2023. She complained the Council:
• Reduced Mr Z’s care package from 24 hours a day to two hours a day which did not meet his needs.
• Failed to support Mr Z’s discharge from hospital which put him at risk of harm.
• Had not provided written eligibility decisions, personal budget and care and support plans for Mr Z to Ms X as his next of kin and advocate.
32. A new care provider was identified in March but in the meantime Mr Z had become unwell again. At the beginning of April Mr Z’s health had improved and he was discharged from hospital to his home with a care package in line with his care and support plan.
33. Ms X continued to raise her concerns about Mr Z not being safe at home without 24-hour care. The social worker arranged to complete a joint assessment of Mr Z at home with the Occupational Therapist (OT) at the beginning of May. Mr Z was admitted to hospital before the assessment could be completed.
34. The hospital’s consultant geriatrician wrote to the Council in May. They said they felt Mr Z’s care needs could be met in his own home with an intermittent care package or alternatively in a care home. They said they did not deem 24-hour care to be necessary. They recommended Mr Z returned home with his previous care package of four calls per day.
35. At the beginning of June the Council told Ms X it was still considering her complaint due to complexities of the matters raised.
36. The Council completed another capacity assessment for Mr Z at the beginning of June, which showed he had capacity to make decisions about his care. Mr Z wanted to return home. The hospital sent a discharge summary to the Council which said Mr Z’s was ready for discharge soon after being admitted in May, but was obstructed by Ms X’s disagreement about his care package and refusal to allow discharge.
37. Mr Z was discharged from hospital in June and was readmitted four days later.
38. The Council responded to Ms X’s complaint at the end of June. It said it had previously assessed that Mr Z needed 24-hour care at home. It said a new assessment based on information provided from multidisciplinary assessments in February 2023 found Mr Z did not require 24-hour care to meet his needs. When Mr Z was discharged it would complete a further review of his care to ensure it was meeting his needs. The delay in the assessment was caused by the dispute about the level of care Mr Z needed. It said it did uphold Ms X’s complaint that she had not received the support plan following the February assessment as the assessments and care plan had been completed.
39. The hospital held a discharge MDT at the end of June. The Council’s record showed that Mr Z had recovered and was able to move around the ward with the assistance of a staff member.
40. The OT report said that Mr Z could move around and did not need to be nursed in bed. He needed extra time to support his eating and drinking and was at risk of falls. It queried if Mr Z may be able to access a day centre during the day, or if waking night care may be appropriate.
41. The hospital sent Mr Z’s discharge passport to the Council, in preparation for him leaving hospital. It said Mr Z could be left alone at night and between carer visits. It said he could eat independently and could move around with supervision. It said there was no evidence Mr Z needed 24-hour care and could be discharged with four care calls a day
42. Ms X responded to the Council’s complaint response in July. She said the medical professionals had failed to properly identify Mr Z’s needs and had changed its assessments of the care Mr Z needed to fit the Council’s decision not to provide 24-hour care. Ms X said she had not received any documents in relation to Mr Z’s needs or care since 2018.
43. At the beginning of July the social worker completed a reassessment of Mr Z’s needs. It confirmed that four calls a day remained appropriate to meet his needs. The hospital told the Council Mr Z was ready for discharge. The social worker told Ms X, who continued to disagree with the sufficiency of the care plan. Ms X asked for Mr Z to receive care from care workers who spoke his first language.
44. Mr Z was discharged from hospital at the beginning of July with a care package in place. The Council took steps to identify care workers that could provide care in Mr Z’s first language.
45. Mr Z was admitted to hospital again at the end July. The hospital provided the Council a copy of Mr Z’s discharge passport at the beginning of August. It set out Mr Z’s needs as being the same as his discharge in July. There were no changes to his needs.
46. On the same day the Council issued its response to Ms X’s further complaint. It said it upheld its previous decision. It said it had allocated a new social worker who would complete a reassessment of Mr Z’s needs once he was discharged from hospital. It said Mr Z had already had three assessments by three different social workers and the package of care had been agreed by the health professionals involved in Mr Z’s care. It directed Ms X to complain to us if she remained dissatisfied.
47. Ms X brought her complaint to us.
48. In response to my enquiries the Council said it had no record it had shared copies of Mr Z’s care assessment and care plans with Ms X.

My findings

Needs assessments and care and support plan

49. We are not an appeal body. We consider if there was fault in the way a council made its decision. If there was no fault in how it made its decision, we cannot question the outcome.
50. At the beginning of 2023 the Council told Ms X it intended to reduce the temporary 24-hour care Mr Z had been receiving to four care calls a day, or a care home placement. At that time the Council had not re-assessed Mr Z’s needs to decide what care was necessary and he was still assessed as having eligible needs for 24-hour support. Changing Mr Z’s care and support plan without a proper re-assessment was fault and not in line with the legislation. It caused Ms X uncertainty about whether the Council had properly assessed and planned for Mr Z’s care and support needs. However, it did not cause Mr Z an injustice because during that time Mr Z remained in hospital and received care and support.
51. When the Council reassessed Mr Z’s needs in February and July 2023 it considered the information provided by the health professionals involved in Mr Z’s care. It considered Ms X’s concerns about Mr Z’s health and needs and it considered Mr Z’s wishes about how his care was provided. The Council kept Mr Z’s needs under review whenever he went into hospital. There was no fault in how the Council completed the reassessments of Mr Z’s needs, and therefore I cannot question the outcomes.

Equality Act 2010

52. Ms X complained the Council did not act in line with Equality Act when it suggested Mr Z should go into a care home, as it was not in line with his culture and religion. The Council offered Mr Z an assessment place in a care home so it could continue to assess his needs. When Mr Z declined this placement it continued to assess his care needs at home. This was not always possible due to Mr Z’s admittances to hospital. There was no fault in the Council offering Mr Z this option.

Complaint handling

53. Ms X raised a complaint in February 2023. The Council did not respond until June when it told Ms X its response was delayed due to the complexities of the complaint matter. Although there was no fault in the Council taking time to consider the complaint, it should have told Ms X much sooner that it needed more time to consider the matter. The delay in communication was fault and caused Ms X frustration.
54. Ms X complained the Council had not provided her with copies of Mr Z’s care assessments and plans. The Council’s complaint response referred to the assessments being completed but did not state whether they had been provided to Ms X. The failure to properly identify and respond to Ms X’s complaint on that point was fault and caused Ms X frustration.
55. The Council stated it had no evidence it provided the care assessments and care plans to Ms X. Ms X is Mr Z’s next of kin and his advocate and should have been provided with copies of these documents. The failure to do so caused Ms X frustration. However, the records show that Ms X was invited to the MDT meetings and the Council kept her updated about her father’s care and support.

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Agreed action

56. Within one month of this decision the Council will:
• Write to Ms X and apologise for the frustration and uncertainty caused to her by the Council’s fault and pay her a symbolic amount of £300 to recognise the same; and
• Provide Ms X copies of Mr Z’s care assessments and care plans.
57. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
58. The Council will provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman