Summary: There is some evidence the Council failed properly to consider Mrs X’s needs before she was discharged from hospital and did not give sufficient weight to the concerns expressed by her family. As a result the family made private arrangements for Mrs X to stay in a care home where she was later assessed as needing nursing care from the date of her admission. The Council has agreed to reconsider the date from which the financial assessment was calculated and offer a consolatory sum to Ms Y and Ms Z.

The complaint

1. Ms Y and Ms Z (the complainants) complain the Council gave them incorrect information about available options for Mrs X on her discharge from hospital. They say the delay by the Council in explaining the financial options to them lost for them the opportunity to make different decisions about the sale of Mrs X’s property.

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The Ombudsman’s role and powers

2. 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

3. I considered the information provided by the complainants and by the Council. I spoke to Ms Y. All parties had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

4. 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.
5. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
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 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
8. 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.
9. 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.
10. 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 only 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. The local authority must disregard property value in the financial assessment for the first 12 weeks of a permanent care home placement. If the property is sold in the 12-week period, the disregard ceases to apply from the date of sale and the proceeds are counted as capital.
11. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

What happened

12. Mrs X, who is 91, lived at home on her own with a package of care arranged by the Council. Mrs X had assets above the upper threshold and paid the full cost of her care.
13. Mrs X has dementia and her daughters have joint power of attorney but the Council says there was no formal diagnosis of dementia at the time of her hospital admission, and she was able to make decisions about her own care. Ms Y and Ms X point out that Mrs X had already been referred by her GP to the memory clinic but was in hospital at the time of the appointment in September 2023. Initially Mrs X’s care package consisted of 3 visits a week to assist with showering, but from September 2023 this increased to twice daily visits. On 19 September Mrs X had an unwitnessed fall at home and was admitted to hospital.
14. A functional assessment was completed on the hospital ward which assessed that Mrs X required the close supervision of two people to guide her to stand and needed to use a rollator frame to walk. The assessment also recommended the assistance of two people to get into and out of bed and the need for a sara-stedy (a transfer aid for people who are able to stand under guidance of one person but not able to walk). As a result of the assessment, the ward occupational therapist sent a referral for a temporary respite placement under Pathway 3. He provided the description of Mrs X as ‘severely frail’. Pathway 3 discharges are defined in the Hospital discharge and community support guidance as “discharges to a new residential or nursing home setting, for people who are considered likely to need long-term residential or nursing home care. Should be used only in exceptional circumstances.” The therapist noted in the referral request “MDT agreed with patient and NOK request for a temporary placement. (pathway 3) – BBR (bed- based rehabilitation) not an option in Sutton”.
15. The case records show that the social worker queried the referral and asked for sight of Mrs X’s nursing needs and a mental capacity assessment. The notes show the Occupational Therapist then explained to Ms Y that the social care recommendation was for Mrs X to return home with a package of care. He replied to the social care team that Mrs X “was unable to communicate with me about this, so I spoke with her daughter in her best interest”. The Council says it does not know why he could not communicate with Mrs X. Ms Y told him Mrs X was not coping at home and would not tolerate waiting in bed for 12 hours for carers to arrive. She wanted to know if the social worker had assessed Mrs X personally to assess her cognitive state; she also wanted a meeting to discuss the possible pathway 3.
16. On 2 October an Assessment Officer visited Mrs X together with 2 ward therapists. She reported back to the team leader: “(Mrs X) when I enquired where she would like to be discharged to stated " I have my own home, I want to go where everyone else wants to go when they are in hospital, Home, I am no exception”. No concerns regarding capacity to make this decision.”
17. Later that day the team leader telephoned Ms Y and explained that Mrs X had capacity to make this decision and said she wanted to come home. She noted on the file that Mrs X had been medically fit for discharge since 22 September and the social care team view was that she could be discharged home with the additional equipment needed and an increase in care calls. She stated she had explained to Ms Y that if Mrs X decided to go into a care home instead that was her choice but it would be funded privately. She added, “ At this stage the ICB and SS have assessed (Mrs X) as not needing 24 hour care”.
18. Mrs X’s family arranged for her to go into a care home for a month’s respite care from 4 October. At the end of October Mrs X decided to stay in the care home.
19. Ms Y and Ms Z say they told the Council in October that Mrs X’s finances had fallen below the upper threshold but say it was not until they complained in November that the Council began the financial assessment process which was then not completed until February 2024. They say if they had been told in October about the property disregard or the possibility of a deferred payment arrangement they might not have proceeded to sell Mrs X’s home when they did.
20. In December Mrs X was assessed for NHS Continuing healthcare (CHC) funding. She had a diagnosis of dementia. She was not found to be eligible for CHC funding but was assessed as being eligible for FNC which was backdated to the date of her admission to the care home.

The complaint

21. The Council formally responded to the complaint in February. The Head of Service apologised that the formal response was overdue. She said the initial referral for Pathway 3 had been based on incorrect information (that there was no bed-based rehabilitation facility available). She said the ward was asked for additional information to support its request. She said after the Assessment Officer visited and spoke to Mrs X, there was a “genuine view” that she could be discharged safely home with increase support and additional equipment.
22. The Head of Service noted that the later assessment by the social worker when Mrs X was resident in the care home was that she had a clear need for 24 hour care in a nursing home.
23. The Head of Service concluded that although the Council had a duty to recognise Mrs X’s views, when asked, that she wanted to return home and therefore provide the opportunity for the least restrictive option, she recognised that the hospital ward could be a false environment and “this was not necessarily a true picture of the needs and risks when alone”. She partly upheld the complaint.
24. Ms Y and Ms Z met the Head of Service in March to discuss the complaint investigation. The Head of Service wrote to Ms Y again in April. She confirmed the 12-week property disregard but said this was the total of the ‘assisted funding eligibility’, even though Mrs X’s assets had fallen below the threshold in October, as it was not the Council’s decision that Mrs X should enter the care home at that time. She added, “This means for the 12 week disregard the council will contribute £920.29 per week for the 12 weeks. Charging for care contributions still apply for the 12 weeks”.
25. Ms Y and Ms Z complained to the Ombudsman. They said they were told that there was no rehabilitation facility available at the time of discharge but then discovered this was incorrect. They said the delay in receiving a response from the Council after they complained in October might have made the difference between Mrs X being able to return home from care or selling the house, as they did.
26. The Council says that although it considered it was safe for Mrs X to be discharged home with additional equipment and care visits, her family arranged for a temporary respite care home placement instead, with Mrs X’s agreement. It says “The family collectively made the decisions they felt were right at the time to arrange the privately funded nursing home placement which was initially for 4 weeks…. There was a view that needs could be met at home with increased care and home-based rehab that was not shared by the family”.
27. The Council did not carry out an assessment of Mrs X’s needs on 2 October when the Assessment Officer visited. The Council says “There was no formal interim assessment completed as there was no final outcome/ decision made with ASC before the privately arranged discharge on the 03/10/2023”. It says there was no immediate evidence that Mrs X required a nursing home on discharge. Ms Y and Ms Z say this comment does not properly illustrate the time pressure they were under: the team leader told Ms Y that the hospital needed the bed and they had to make a decision immediately.
28. The Council says it was not correct for the ward therapist to say there was no bed-based provision in the borough (to which Mrs X could have been discharged on pathway 2). It says, “In this case after a further therapy review, the ward therapists did subsequently recommend supporting a return home with increased homecare, specific equipment for transfers and with the home-based therapy team involved for rehabilitation at home”.

Analysis

29. There are some contradictions in the Council’s records which remain unexplained. The ward therapist says he was “unable to communicate” with Mrs X so discussed the matter with Ms Y in Mrs X’s best interest: but the Assessment Officer said she had “no concerns” about Mrs X’s capacity. There are no other contemporaneous notes of the Assessment Officer’s visit to Mrs X. Although the law is clear that decisions about capacity are time-specific, the Head of Service acknowledged that Mrs X’s presentation in the safety of a hospital ward was not necessarily representative of the true picture of her needs and risks when alone at home. That is particularly apposite in the context of the known concerns that Mrs X would not tolerate staying in bed for up to 12 hours waiting for carers but needed the “assistance of two people to get into and out of bed”.
30. I remain concerned at the possibility that the Council had reached a firm view that Mrs X could go home and was unwilling to deviate from that view despite the referral for bed-based rehabilitation and a description from the ward therapist that Mrs X could be categorised as “severely frail”. That her FNC was backdated to the date of her admission to the care home appears to me to be sufficient evidence that the Council did not consider fully her needs.
31. Mrs X was a self-funder at the time of her discharge from hospital, but the evidence suggests her eligibility for assistance started much sooner than the Council decided. The Council rejected a call for assistance (in terms of the property disregard) to be backdated on the grounds that it had not been its decision that she should go to a care home; but that decision appears to me to have been based on less than adequate consideration of her needs.
32. Ms Y and Ms Z also complain about the delay by the Council in answering their financial queries which they say potentially caused additional financial loss in terms of the other options available to them for Mrs X’s house (which they sold to pay her care fees). I can understand their frustration with the delay, but it was not the responsibility of the Council to give financial advice to ensure they made the best financial decision.

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Agreed action

33. Within one month of my final decision the Council will apologise to Ms Y and Ms Z for the distress and uncertainty caused to them by the way Mrs X’s discharge from hospital was managed;
34. Within one month of my final decision the Council will reconsider its decision not to backdate the financial assessment to the date in October 2023 when Mrs X was discharged from the hospital;
35. Within one month of my final decision the Council will offer £100 to Ms Y and Ms Z in recognition of the distress and uncertainty its lack of full consideration of Mrs X’s needs caused.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed this investigation on the basis there was fault in the way the Council made its decision which caused injustice to Mrs X and her family: that injustice will be remedied by completion of the recommendations at paragraphs 33-35 above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman