Summary: Mr W complained the Council failed to properly assess his mother-in law, Mrs X’s, care needs before her discharge from hospital and failed to provide suitable financial advice regarding Mrs X’s residential care charges. The Council is not at fault. The Council’s care and support plan reflected Mrs X’s assessed needs. The Council did not arrange Mrs X’s residential care and was under no duty to provide financial advice.

The complaint

1. Mr W complained the Council failed to properly assess his mother-in law, Mrs X’s, care needs before her discharge from hospital in October 2023. He says this resulted in the Council issuing an inadequate care and support plan and Mrs X receiving insufficient care before being readmitted to hospital. He also complained the Council failed to provide suitable financial advice before Mrs X’s move to a private care home in December 2023. He wants the Council to apologise and carry out a proper financial assessment of Mrs X.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 discussed the complaint with Mr W and considered the information he provided. I have also considered information provided by the Council.
5. Mr W and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The law

Care assessments and support plans

6. 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.
7. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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.

Charging for permanent residential care

8. 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. The Council must disregard the value of a person’s main or only home for 12 weeks from the day a person first becomes a permanent care home resident.

Ordinary residence

9. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning.
10. The courts have said this means where someone normally lives “as part of the regular order of [their] life, for the time being, whether of short or long duration” [Shah v London Borough of Barnet (1983)]. Where doubts arise about a person’s ordinary residence, it is usually possible for councils to decide that the person has been in one place long enough, or has firm enough intention towards that place, to have acquired an ordinary residence there. Sections 18 and 20 of the Care Act 2014 says a council must meet the eligible needs of people if they are present in its area but are of no settled residence. In this regard, people who have no settled residence, but are physically present in the council’s area, should be treated in the same way as those who are ordinarily resident.

What happened

11. Mrs X was admitted to hospital in August 2023 after hitting her head and breaking her ankle. At the end of September, the hospital began planning for Mrs X’s discharge from hospital. It assessed Mrs X’s immediate care needs to allow her to return home with a short-term care package.
12. The hospital’s assessment said Mrs X would not be able to weight bear until at least the 11 October. It said Mrs X would need care visits four times a day to support her transferring in and out of bed, using a commode, personal hygiene, and meal preparation. The Council approved the short-term support plan until 11 October when it would review Mrs X’s needs and begin a reablement process if she could weight bear, to help her regain her independence. The records show Mrs X’s daughter, Ms Y, was present when it agreed Mrs X’s care package.
13. Mrs X was discharged home on 2 October 2023.The Council arranged for an external care agency to deliver her care package. On 3 October the Council spoke to both the care agency and Ms Y who both said Mrs X had settled in well at home. The carers’ daily visit notes show they carried out Mrs X’s care in line with the support plan.
14. On 5 October Mrs X’s carers told the Council they were struggling to transfer Mrs X in and out of bed. The Council spoke to the care agency who reported that, despite the difficulties with transfers, Mrs X was well supported in bed with no blisters and sores. The agency agreed to try alternative equipment for the transfers before deciding on next steps. The carers’ daily visit notes show they were still able to carry out the other aspects of Mrs X’s care and support plan.
15. At the same time Ms Y also asked for bed rails as Mrs X kept trying to get out of bed through the night. The Council decided it needed to assess Mrs X further before agreeing bed rails. It believed Mrs X’s attempts to get out of bed could be linked to underlying health issues.
16. A GP and Occupational Therapist visited Mrs X on 9 October. The records of the visit show they believed Mrs X’s health had worsened. They decided carers should not transfer Mrs X from her bed. They advised the carers to continue to support Mrs X in bed until they could decide on the best approach. The carer’s daily visit notes continued to show they could still deliver Mrs X’s care in line with the support plan.
17. Mrs X was readmitted to hospital on 11 October 2023. During November Mrs X remained in hospital. Mrs X’s family discussed potential discharge choices with the hospital and Council. A social worker from the Council visited Mrs X in hospital on 27 November. The records of the visit show Ms Y said she had arranged a placement for Mrs X at residential care home near to her to help Mrs X’s reablement before returning home. Mrs X was discharged to the care home, which is in another council’s area, on 1 December.
18. On 20 December 2023 Ms Y contacted the Council to ask about a 12-week property disregard for Mrs X’s care charges. The Council told Ms Y the disregard only applied to long-term care arranged by the Council. Ms Y said Mrs X would now be staying in the care home long-term. The Council said as the home was in a different council area, Mrs X was now ordinarily resident in that area. It said Ms Y would have to contact the council where the home was located for an assessment.
19. Mr W complained to the Council, on the family’s behalf, on 27 December 2023. He said Mrs X could not use the toilet under her October support plan and had developed a Urinary Tract Infection. He asked the Council to send him a copy of Mrs X’s care needs assessment.
20. The Council sent Mr W a copy of Mrs X’s support plan. It responded at stage one of its complaint process. It said Ms Y had been present during discharge discussions and Mrs X’s support plan reflected her needs. Mr W escalated the complaint to stage two. He said the Council had still not sent him a copy of the care needs assessment and had failed to address his complaint about the 12-week property disregard.
21. In its stage two response, the Council accepted it had not written up an assessment of Mrs X in October. It said it would record the assessment and send the family a copy. It said Mr W had not previously complained about the property disregard but explained it would not apply to Mrs X as her family had made a private care arrangement. Mr W complained to the Ombudsman.
22. In response to the Ombudsman’s enquiries the Council sent its retrospective care needs assessment for Mrs X. The assessment confirmed the hospital’s discharge assessment that Mrs X needed four care visits a day until able to weight bear and start a reablement programme. It said Mrs X would use continence pads overnight to support her needs between care visits.

My findings

23. Following Mrs X’s discharge from hospital in October 2023, the Council had a duty to provide a care and support plan to ensure it met Mrs X’s assessed care needs. The hospital assessed Mrs X’s needs and decided she needed four care visits a day. The Council based its care and support plan on the hospital assessment and discussed the plan with Mrs X and Ms Y before putting it in place. Mr W says Ms Y’s presence at discussions did not mean she agreed with the support plan; however the notes of the meeting do not show any disagreement.
24. The Council accepts it did not record its own care assessment before Mrs X’s discharge from hospital. However, given the hospital had carried out its own assessment, and the care was short-term with a view to the Council reassessing her needs once she could weight bear, I consider the Council was entitled to base its care and support plan on the hospital assessment. The Council is not at fault.
25. Mr W says the care and support plan failed to meet Mrs X’s care needs and she received inadequate care once she returned home. The Council based the plan on the hospital’s assessment which identified Mrs X’s care needs and the Council’s support plan reflects how it would meet these. This included Mrs X using continence pads between care visits. While Mr W disagrees, there is no evidence of fault in how the Council decided on Mrs X’s care and support plan. The Ombudsman cannot question a decision taken without fault. The care agency’s care records show it could meet Mrs X’s needs with the plan in place. There is no evidence the worsening in Mrs X’s health and return to hospital was as a direct result of the support plan or Mrs X’s care. The Council is not at fault.
26. Following Mrs X’s second discharge from hospital, Mr W says the Council failed to provide suitable financial advice about the 12-week property disregard. The records show Mrs X’s family arranged a short-term care home placement in another council’s area in December 2023. A property disregard would only apply to a Council arranged permanent care home placement. The Council played no role in the placement. Once Mrs X’s family decided to make the placement a permanent one, she no longer lived in the Council’s area. The duty to assess Mrs X’s finances and decide on any property disregard became the responsibility of the council where Mrs X lived. The Council is not at fault.

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Final decision

27. I have completed my investigation and found the Council not at fault.

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Investigator's decision on behalf of the Ombudsman