Summary: Mr X complained about how the Council arranged care for his late mother Mrs Y and how it dealt with him as her main carer and Lasting Power of Attorney (LPA). There was no fault in the way the Council assessed Mrs Y’s needs, in the advice given to Mr X or in the way it discussed finances with Mrs Y. The Council was at fault for failing to involve Mr X when Mrs Y was initially discharged home and there was a delay in the Council commissioned care home starting Mrs Y’s exercises. This caused Mr X distress and uncertainty. The Council has agreed to apologise, remind officers of the need to involve carers in needs assessments and to ensure the care home properly considers Council support plans in its assessment of resident’s needs.

The complaint

1. Mr X complained about how the Council arranged care for his late mother Mrs Y and how it dealt with him as her main carer and Lasting Power of Attorney (LPA). In particular, he complained the Council:
1. Discharged Mrs Y home from a rehabilitation care home in late September 2022 without discussing the discharge with him or inviting him to the discharge meeting and before she was ready. As a result, Mr X says Mrs Y had a further fall and hospital admission.
2. Tried to discharge Mrs Y home from an intermediate care bed in a care home in early January 2023 without addressing Mr X’s concerns. Instead of addressing his concerns, Mr X says the Council said he was not acting in his mother’s best interest and threatened to challenge his status as LPA. This caused Mr X distress and frustration.
3. Failed to ensure the Council commissioned care home, Care Home B, was advised of, and carried out, the exercises Mrs Y needed to undertake and removed these from her care plan. This increased Mrs Y’s risk of a blood clot and resulted in a hospital admission.
4. Incorrectly told Mrs Y her house would need to be sold to pay for her care if she wished to remain at the care home. Mr X says this was factually incorrect and caused Mrs Y distress and upset. The Council then failed to properly investigate his complaint about this.

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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. 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

4. I have considered the information provided by Mr X and have discussed the complaint with him. I have considered the Council’s response to my enquiries and the relevant law and guidance.
5. Mr X and the Council had the opportunity to comment on the draft decision. I considered any comments I received before I made a final decision.

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What I found

The relevant law and guidance

Mental capacity

6. 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 a person 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.
7. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
8. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

Intermediate Care and Reablement

10. Intermediate care and reablement support services are for people usually 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.
11. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Charging for permanent residential care

12. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
13. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
14. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital but will still have to contribute most of their income to the care costs.
15. The guidance states that the approach to charging for care and support should be clear, transparent and person-focused, reflecting the variety of care and the variety of options available to meet their needs. Sufficient information and advice should be available to ensure the person or their representative are able to understand any contributions they are asked to make.

Continuing health care (CHC)

16. NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need.’ Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

What happened

17. The following is not a full account of everything that happened in this period, nor does it refer to all the records I have considered. It is a summary only of the key events and facts.

Discharge home

18. Mrs Y lived at home with her son Mr X who has LPA for Mrs Y’s health, welfare and finances.
19. Mrs Y had a fall and was admitted to hospital. In late September 2022 she was discharged to Care Home A for intermediate care to support her rehabilitation. In October 2022 a social worker visited Mrs Y at the care home and carried out a care needs assessment. At that time the home noted that Mrs Y did not need a mental capacity assessment. They noted Mrs Y’s goal was to remain at home living with Mr X and that she had around 10 falls over the past year. They noted that during her admission Mrs Y had done well and was back to moving around independently. They noted an occupational therapist visited Mrs Y and carried out an assessment in her home environment and said Mrs Y would benefit from support. Following the assessment the social worker recommended Mrs Y receive care at home with a visit each day to assist with washing and dressing. The needs assessment noted Mr X would support with eating and drinking and household tasks.
20. The social worker spoke to Mr X and told him Mrs Y could go home two days later and the care package would start the following morning. The social worker explained they would review the care within four weeks. Mrs Y was discharged home. She later cancelled the care package.
21. In late October 2022 Mrs Y had a further fall at home and was admitted to hospital.

Discharge to intermediate care and long term care needs

22. In late October 2022, a GP led multi-disciplinary team recommended Mrs Y could receive appropriate rehabilitation at home and decided against an intermediate care bed (a temporary stay in a care home or community hospital to help her rehabilitate).
23. The Council allocated Mrs Y’s case to a social worker who called Mr X. The case notes record Mr X had concerns about Mrs Y needing to get in and out of bed and considered she needed further rehabilitation support. Mr X says ward staff told him Mrs Y was not ready for discharge.
24. In mid-November, the hospital moved Mrs Y to a rehabilitation bed but she was moved back to a hospital ward two days later.
25. Mr X complained to the Council. He said the social worker telephoned and advised him that Mrs Y was ready for discharge home with carers. Mr X said he explained Mrs Y was unable to weight bear and the hospital advised him it was waiting for an intermediate care bed. If she had been discharged home this would have failed and could have had serious consequences.
26. The Council confirmed Mrs Y was referred for intermediate care by hospital therapists but said this referral was declined by a multi disciplinary team. It advised Mrs Y was declared medically fit for discharge by the hospital, not the social worker, and the hospital moved Mrs Y to a rehabilitation bed from which she was then readmitted to a hospital ward. The Council said it had no concerns about the social worker’s performance but the Council would arrange for another social worker to support Mrs Y. It understood that Mrs Y was currently not medically fit for discharge and said discussions would take place with the Council once she was medically fit to leave hospital.
27. In late November an officer updated Mr X that Mrs Y had now been accepted for an intermediate care bed. Mrs Y moved to an intermediate care bed in a nursing home.
28. In late December 2022 the social worker assessed Mrs Y did not have the mental capacity to make a decision about her long term care needs as she was unable to retain and weigh up information to make an informed decision.
29. In January 2023 the social worker met with Mr X and two intermediate care therapists to discuss Mrs Y’s long term care needs. The therapist advised Mrs Y needed the support of two staff members for moving and transferring and was at high risk of falls. The social worker advised Mrs Y would receive four care calls a day with two staff members at each visit and that the care would be chargeable. At the time Mrs Y was assessed to pay a contribution towards her care package. The notes record Mr X said she would not want to pay and would cancel the care. The social worker explained if Mrs Y remained at the nursing home the bed could become chargeable. The social worker advised that as Mrs Y did not have capacity to make a decision it would be for him as her LPA to do so. Mr X said he would also cancel the care. The meeting therefore did not reach an outcome.
30. Mr X contacted the Council with his concerns. In the response the Council confirmed it was in Mrs Y's best interests to have a certain level of care. If Mr X decided differently then this would not be in her best interests and the Council would need to seek further advice.
31. The therapist and social worker visited Mrs Y in early February 2023. They explained Mrs Y would need support at home. The explained various scenarios and that Mrs Y would need to pay towards the cost of her care but would be financially assessed so not placed in financial difficulty. Mrs Y reported she would like to speak with her son.
32. The social worker met with Mr X and Mrs Y, an Occupational Therapist, intermediate care therapists, Matron and a Council manager to discuss discharge planning. The notes record Mrs Y wanted to go home as long as it was safe and she wanted to be able to use the upstairs bathroom. The meeting agreed Mrs Y would receive two further weeks of therapy to try and improve her mobility then a second meeting would be arranged.
33. The social worker carried out a mental capacity assessment in Mid March 2023. This concluded that Mrs Y did not have the capacity to decide where she should live. She could not retain the information she was told or weigh up the information to make a decision. The social worker arranged a best interests’ meeting to discuss the options of Mrs Y going home with a care package or into a care home. Following this, Mr X wanted to consult with other family members.
34. In early April a nursing assessment was completed which determined Mrs Y did not have nursing needs and her care needs could be met in a residential care home. The Council arranged a further best interests’ meeting where all parties agreed Mrs Y should be discharged to 24 hour residential care.
35. The Council assessed Mrs Y’s needs in April 2023. The assessment noted Mrs Y still needed assistance of two staff members. The support plan included that carers should support Mrs Y with exercises and included a chair based exercise programme. It concluded she needed a short term stay in a residential care home with a view to a long term placement. The Council sent the support plan to Care Home B to consider whether it could meet Mrs Y’s needs.

Exercises and Care Home B stay

36. Mrs Y moved into Care Home B in early May 2023. The care home says it received no documentation requiring her to do exercises and this was not referred to in the pre-admission assessment from the nursing home. The care home’s notes show Mrs Y was settled. She was moved using a stand aid and had a good appetite.
37. Six days later Mrs Y was admitted to hospital having complained of chest pain.
38. Later that month the social worker advised Mr X that Mrs Y was now medically fit for discharge. The discharge letter stated ‘bed based exercises to be completed’. It also stated ‘discharged with exercises which need to be completed with support’. Mr X asked whether exercises were included in Mrs Y’s care plan and the social worker confirmed the hospital sent a copy of the exercise plan directly to care home B. The social worker explained the exercises were not included word for word in the care plan as they were a standalone document from the hospital. Mr X queried whether, as the exercises were to be completed daily, the therapy team should have some involvement. The social worker advised they had spoken with a therapist who advised there was no specific recommendation on how often the exercises should be completed. The therapist said the exercises helped stimulate blood flow but that did not prevent blood clots. The therapist confirmed Mrs Y did not meet the criteria for further therapy.
39. Mr X contacted the Consultant who wrote to the care home two weeks later and confirmed the aim of the exercises was to prevent deep vein thrombosis and the exercises should be performed daily.
40. Care home B’s records show it received a copy of the exercise plan for Mrs Y on Mrs Y’s admission to the care home in early June. It included the exercises in Mrs Y’s care plan. It noted Mrs Y could be reluctant and would refuse. However, Mrs Y was transferred via a stand aid which involved some movement and exercise. Care home B’s records noted a conversation with Mr X in June when it discussed that some of the exercises may be too difficult for Mrs Y. Notes from July and August record that Mrs Y did try to do the exercises but was sometimes in too much pain to do all of them.
41. In June 2023 the Council arranged a mental capacity assessment and best interests’ meeting to determine whether to make Mrs Y’s stay at care home B permanent. This concluded Mrs Y’s stay should become permanent.
42. Mrs Y was admitted to hospital in September 2023, following which she was discharged to a nursing home placement where she died in October 2023.

Financial assessment

43. In March 2023 the social worker held a best interests’ meeting with Mr X and Mrs Y, two therapists and a staff member from the nursing home to discuss Mrs Y’s discharge from intermediate care. The meeting noted Mr X asked about costs. The social worker explained it would be a short term placement which would be reviewed. The social worker explained they would find out from the finance team roughly what her contribution would be whilst in short term care.
44. Following this the social worker noted a telephone call with Mr X in which they explained Mrs Y ‘would require a financial assessment for a long term placement and her savings, income and house for example would be taken into consideration’.
45. The social worker visited Mrs Y in June 2023 to complete a mental capacity assessment as part of a best interests meeting regarding making her stay at the care home permanent. Mr X says the social worker told Mrs Y that she would need to sell her house to pay for the care fees and Mrs Y was very upset by this. In its complaint response to Mr X the Council said the social worker told Mrs Y a financial assessment would be required to determine what contribution she may be required to make towards her care and that her property would be taken into consideration as part of the assessment. It said the other people present said Mrs Y showed no signs of visible distress.

Findings

Discharge home

46. The records show the social worker spoke with Mrs Y about her discharge home and was satisfied at the time that Mrs Y understood and agreed to go home. The social worker carried out a needs assessment and produced a support plan considering the environmental and home visit assessments completed by the Occupational Therapist and identified Mrs Y was ready to go home and would benefit from a package of care. The Council properly assessed Mrs Y’s care needs and recommended a package of care.
47. However, the social worker failed to involve Mr X in the care needs assessment, and I have seen no evidence it offered him a carer’s assessment. Given Mr X provided a significant amount of support to Mrs Y the Council should have consulted him and ensured he was able and willing to continue to support Mrs Y. The records show the social worker advised Mr X of Mrs Y’s discharge date and I have seen no evidence he raised concerns at the time about the assessment or care package or that he was unwilling to support Mrs Y. But the Council’s failure to involve him is likely to have caused him some frustration.
48. Mrs Y later fell and was readmitted to hospital but I cannot link this to the Council’s actions. The Council assessed Mrs Y’s care needs and put a package of care in place. There is no evidence Mr X sought more support at that time and Mrs Y chose to cancel the care package.

Discharge to intermediate care and long term care needs

49. The initial decision to discharge Mrs Y home after her fall in October 2022 was a hospital led decision. The social worker’s actions were based on what they understood to be the position at that time. Mr X had concerns about whether Mrs Y was ready to come home and raised these with the Council. The hospital, not the Council, then arranged a rehabilitation bed for Mrs Y from which she was readmitted to a hospital ward shortly afterwards.
50. In any case, Mrs Y was not discharged home but was accepted for an intermediate bed in a nursing home where she stayed until May 2023. Between December 2022 and April 2023 the Council assessed Mrs Y’s capacity and sought to establish the appropriate setting to meet her long term care needs. Given Mrs Y’s desire to go home it was not fault for the Council to fully explore the option of going home with an appropriate care package despite Mr X’s concerns.
51. In its correspondence with Mr X, the Council explained that it had to act in Mrs Y’s best interests. It explained the Council’s position and the action it could take if Mr X did not agree with this. This was not fault. Although Mr X felt aggrieved by this, the Council appropriately kept Mr X informed.

Exercises at care home B

52. The Council assessed Mrs Y’s care needs before she was discharged to care home B. The support plan included details of exercises Mrs Y should carry out to improve blood flow and help prevent blood clots. Care home B says it received no information about the exercises in the pre-admission assessment from the nursing home where she was receiving intermediate care. However, the evidence shows the Council sent the support plan to care home B in April 2023 so it should have been aware of this, and of the importance of the exercises. The home’s failure to encourage Mrs Y to promptly carry out the exercises required by the support plan was fault.
53. Mrs Y was readmitted to hospital six days after moving into care home B. Mr X says this was due to a blood clot due to the lack of exercises. I could not conclude, even on the balance of probability, that the failure to carry out the exercises led to the hospital admission. Mrs Y was only in the care home six days before she was readmitted to hospital and the records show Mrs Y used a stand aid to move which would assist with her circulation. However, the failure to carry out these exercises caused Mr X distress and a sense of uncertainty over whether the re-admission to hospital could have been avoided.
54. When Mrs Y was discharged back to care home B the social worker revised her support plan. The revised plan did not include the details of the specific exercises the hospital recommended that Mrs Y complete. This is because the original exercises were recommended by staff in the intermediate care nursing home. The Council was not at fault. The hospital recommended a set of exercises which it sent directly to care home B to follow when Mrs Y was discharged back there in early June. The records show Care Home B received these exercises and incorporated them into Mrs Y’s care plan at the time she was discharged back to it. The records noted that Mrs Y’s ability to complete them was discussed with Mr X at the time.
55. The records show staff attempted to do the exercises with Mrs Y and sometimes were more successful than at others. In addition, staff continued to use the stand aid to assist Mrs Y with moving.
56. Mr X considered the exercises should be completed on a daily basis. The discharge letter did not state how often the exercises should be completed. The social worker therefore spoke with an Occupational Therapist at the hospital and noted they were not required on a daily basis. Mr X then contacted the consultant who confirmed they should be carried out daily. The advice the social worker was given was different to that provided by the consultant, but this was not fault by the Council. The Council appropriately sought to clarify the frequency of the exercises when Mr X queried this.

Financial assessment

57. The records show the social worker told Mrs Y that her capital may be taken into account in any financial assessment including her house. I acknowledge this may have upset Mrs Y but it is not fault. Councils are entitled to charge for the care and support they provide. It was important for the social worker to have ensured Mrs Y understood the financial consequences of the care and support she was receiving. At that stage the social worker would not have known exactly what assets Mrs Y had or how they would be considered in a financial assessment. However, it was not fault for the social worker to have raised this as in most cases a person’s home is include as a capital asset in the financial assessment.
58. Mr X was unhappy that the Council, in responding to his complaint, did not speak to him or Mrs Y and accepted the views of other professionals that Mrs Y did not show signs of distress. I could not now establish whether or not Mrs Y was distressed by the conversation. Even if that was the case, I could not say it was as a result of fault by the Council.

Injustice

59. Mrs Y has since died so any injustice caused to her cannot be remedied. However, the Council’s failure to involve Mr X in Mrs Y’s needs assessment when she was first discharged home and care home B’s delay in carrying out Mrs Y’s exercises caused Mr X uncertainty and distress.

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Agreed action

60. Within one month of the final decision on this complaint the Council has agreed to:
1. apologise to Mr X to acknowledge the frustration and uncertainty caused by the delay in the Council commissioned care home, care home B, carrying out exercises with Mrs Y and for its failure to involve him in Mrs Y’s needs assessment. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. remind relevant staff to ensure that where carers are providing a significant amount of care, they should be involved in the needs assessment process and offered a carers assessment.
3. take action to ensure care home B reviews it practice to ensure it has properly considered an individual’s needs as set out in any support plan provided by the Council, as part of the admission and assessment process.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman