Summary: Mr X complained Care Plus Group Ltd, acting on behalf of the Council, unsafely discharged his late father Mr Y from residential respite care to his home without proper assessments and care planning. There was fault in the assessment and care planning process, which caused distress to Mr Y and Mr X. The Council agreed to apologise and pay a financial remedy to Mr X. It will also work with Care Plus Group Ltd to produce an action plan of changes to policies, processes, and staff training, to address the faults identified.

The complaint

1. Mr X complains Care Plus Group Ltd, acting on behalf of the Council, unsafely discharged his late father Mr Y from residential respite care to his home in November 2021, without proper assessments and care planning. Mr X also says the response to his complaint about this was confusing and failed to properly accept fault.
2. Because of this Mr X says:
• his father fell several times shortly after the discharge and had to go to hospital. He did not have dignity in the final weeks of his life because proper care and support was not in place; and
• he had to take time off work to help support his father and experienced distress about his father’s treatment. The unsatisfactory complaint response added to his distress.
3. Mr X wants the Council to apologise, recognise its failings, and provide a financial remedy for the distress caused.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by their personal representative (if they have one), or someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. 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

10. I considered evidence provided by Mr X and the Council, and relevant law, policy and guidance.
11. Mr X, the Council, the ICB, and Care Plus Group Ltd, had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

Assessment of needs and care planning

12. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
13. Where councils have determined that a person has any eligible needs, they must meet those needs.
14. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. 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.

Carer’s assessments

15. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
16. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Intermediate Care and Reablement

17. 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. The National Audit of Intermediate Care lists four types of intermediate care:
• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.

The Council’s delegation of functions to the NHS

18. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils.  Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.  
19. The Council has a Section 75 agreement with an NHS Integrated Care Board (ICB) to deliver social care services on its behalf. The ICB commissions Care Plus Group Ltd (CPG) to provide emergency and out of hours duty services, and shorter-term social care assessments. As described at paragraph 6, we can investigate the actions of the ICB, or CPG staff, when carrying out functions of the Council.
20. Where a complaint is about more than one responsible body, each organisation must co-operate when handling the complaint. They must decide who will lead the process, share relevant information and give the complainant a coordinated response. (Reg 9, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
21. The Section 75 agreement says:
• the ICB is responsible for responding to complaints about adult social care services on behalf of the Council, and responding to Ombudsman enquiries about these complaints; and
• any complaints relating wholly to Council functions or Council aligned services will be dealt with under the Council’s complaints procedure.

What happened

22. In late 2021, Mr X’s father, Mr Y, was living at home with Mr X, and had a fall resulting in a hospital stay. He was discharged from hospital to a short-term residential placement in a care home, for assessment of his longer-term needs.
23. In mid-November 2021, after ten days in the care home, CPG completed an assessment of Mr Y's needs. It decided Mr Y should return home to live with Mr X, with support from its Intermediate Care at Home (ICAH) service. ICAH would provide four daytime care calls a day to support Mr Y to regain his independence. Two days later Mr Y left the care home and returned home.
24. The same evening Mr Y returned home, he fell, and Mr X raised concerns with CPG that its decision to send Mr Y home was wrong. Mr X said CPG had not properly assessed Mr Y’s needs, he was not fit to be at home, and should return to the care home. Mr X said he worked full time and could not be Mr Y’s carer. Over the next four days, CPG carried out various care visits and assessments for Mr Y. Mr X continued to raise concerns Mr Y should not be at home.
25. After four days at home, a care worker found Mr Y on the floor with hip pain. He was admitted to hospital and kept in overnight but returned home the following day. Mr X continued to express concerns Mr Y was not safe at home. The following day, CPG rang an ambulance again because Mr Y was unwell and short of breath. Following assessment by the ambulance service and community nurses, CPG decided Mr Y should return to the care home that evening. This was intended as a short-term placement while his longer-term needs were assessed.
26. After five nights in the care home, Mr Y was admitted to hospital again and sadly died two days later.
27. Mr X complained about the decision to send Mr Y home from the care home, which he said was unsafe. CPG responded three months later, and part upheld the complaint, accepting the initial assessment had not captured all Mr Y’s needs and it had not kept enough records. Mr X escalated his complaint, and CPG issued its final response a month later. In its final response, CPG changed its position and said it would not uphold any part of the complaint because it had followed the proper process in its assessment of Mr Y.

My findings

Care needs assessment and decision to send Mr Y home

28. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with the decision made.
29. Mr X said CPG did not visit Mr Y’s home or assess him in the home environment before deciding he could return there. He says Mr Y returned home without necessary adaptations in place and this resulted in multiple falls. In responding to Mr X’s complaint at Stage 1, CPG said it did not need to visit the property to complete its assessment. It said it spoke to Mr X over the phone instead and planned to do a full occupational therapy assessment once Mr Y had returned home. Mr X had provided a description of the layout and explained there was already a stairlift and walking frames on both floors to aid mobility. However, CPG accepted it had not captured all Mr Y’s needs because it did not assess his ability to use the toilet without adaptations, his need for walking aids, or whether the stairlift was suitable. However, it then changed its position in its final complaint response and did not accept any fault with the assessment process.
30. I found fault in this part of the assessment and care planning process. CPG noted in its assessment and care plan Mr Y was at high risk of falls, and his ability to manage stairs was unknown. CPG found out from Mr X there was a stairlift, shower chair, and downstairs toilet, but did not assess Mr Y’s ability to use these. On the first care call after Mr Y returned home, care workers noted they found him on the floor, he struggled to stand from the sofa, and the stair lift did not cover the whole staircase. At the second care call the following morning, care workers found Mr Y had fallen twice during the night and been incontinent because he could not get up out of bed on his own. It was also noted he could not use the stairlift without assistance and could not stand up from the toilet without assistance from two people. Although an occupational therapist visited to assess Mr Y the same day and fitted various adaptations to support him, it is clear the home environment was not suitable for him when he returned home. CPG initially accepted its records show it did not properly consider all the relevant factors regarding Mr Y’s mobility and whether his needs could be met at home. I agree with this original position, and this was fault.
31. Mr X said CPG did not involve him or Mr Y in its decision making and they could not voice their concerns. I did not find fault with this aspect of the assessment. CPG spoke to Mr Y who had capacity to make decisions for himself and expressed his wish to go home. It also spoke to Mr X and although he expressed concerns Mr Y would struggle while he was at work, he did agree to Mr Y returning home with four care calls a day. There is no criticism implied of Mr X for agreeing to this based on the information presented to him. Mr X is not a social care professional, and it was the Council’s responsibility, not Mr X’s, to properly establish Mr Y’s needs and what arrangements should be made to meet them. Once Mr Y returned home, he quickly experienced a fall, and I understand this was very distressing for Mr X. Mr X then immediately raised concerns that it was not safe for his father to be at home.
32. Mr X said CPG did not make arrangements so care staff could access the home and deliver care while he was at work. In responding to Mr X’s complaint at Stage 1, CPG said during the assessment Mr X had agreed to fit a key safe himself because this is not a service CPG provides. However, in its final complaint response it then said Mr X had told CPG he did not think a key safe was necessary as he could let care staff into the property. It said once Mr Y returned home and it was found a key safe was needed, it arranged for a temporary key safe to be fitted the next day.
33. I found no record CPG discussed access to the property with Mr X during the assessment. There was no evidence Mr X said he could let staff into the property, or that he would fit a key safe himself. Mr X contacted CPG the same evening his father returned home, and records show he immediately raised that access to the property had not been discussed with him. On the balance of the evidence available, I find this was not discussed with Mr X before Mr Y returned home. CPG was at fault in not adequately planning for this, and in the contradictory information it provided about this when responding to the complaint.
34. Mr X said CPG decided Mr Y needed a telecare alarm system so he could raise the alarm if he fell, but then did not ensure this was in place. During the assessment and care planning, Mr X told CPG there was no existing alarm system in the home and this would be of benefit. CPG agreed to explore this and made a referral the same day. The day before Mr Y returned home, Mr X told CPG he was going away for the weekend, but Mr Y had a mobile phone he could use to call for help if needed. CPG continued to chase the referral for the alarm system and said it would fit a temporary one in the meantime. This had not yet been put in place when Mr Y returned to the care home. In responding to Mr X’s complaint, CPG said it decided the alarm system was not an urgent need because Mr Y had a mobile phone he could use. However, CPG did not properly record its decision making about this. It is not clear from the assessment or care plan whether an alarm system is something CPG decided needed to be in place for Mr Y to return home. This failure to properly consider and document its decision making was fault.

Mr X’s role in meeting Mr Y’s care needs

35. In its assessment of Mr Y’s needs, CPG documented that he lived with Mr X, who would be providing “informal support”. I asked the Council what this meant, and to what extent Mr Y’s care plan was reliant on Mr X meeting some of his father’s care needs. The Council said, “throughout the assessment process both [Mr Y] and [Mr X] advised that [Mr X] would continue to provide informal support to [Mr Y] upon his discharge from [the care home]; this was documented as assisting with laundry, ordering prescriptions, and supporting with domestic tasks”.
36. From the records it appears CPG decided this “informal support” by Mr X would meet some of Mr Y’s eligible needs. However, it is not clear which needs it was proposing to meet via the care package, and which needs it considered would be met by Mr X. The Council now says the support from Mr X was with domestic tasks. However, records show the Intermediate Care at Home (ICAH) service initially responded to the referral raising concerns about whether the service would meet Mr Y’s needs. It said in the care home he had been observed “crawling on the floor” due to foot pain. At the time, social workers told ICAH this had always been observed in the evening when Mr X would be able to support Mr Y anyway. This suggests CPG considered Mr X’s caring role to be more significant than only providing domestic tasks like laundry.
37. Either way, if CPG considered Mr X was meeting any of Mr Y’s needs it should have properly considered and recorded whether Mr X was able and willing to provide this support. It appears CPG decided Mr X was at least meeting the need of “maintaining a habitable home environment”, through support with domestic tasks. There is no evidence Mr X agreed to meet any of Mr Y’s eligible needs. In fact, once Mr Y returned home, records show Mr X felt he had to stress to CPG that he was not his father’s carer and should not be considered as such.
38. CPG’s records of the assessment and care plan are not clear enough about what support it expected Mr X would provide, which needs this support would meet, or whether Mr X was able and willing to provide the support. This was fault.

Complaint response

39. As I have already explained, CPG initially upheld parts of Mr X’s complaint, but later changed its position and said it would not uphold any part of the complaint. I consider this contradictory response to the complaint was fault.
40. Councils should have suitable contracting and commissioning arrangements in place to ensure care providers respond appropriately to complaints about commissioned services and placements. This should include clear arrangements about complaint handling responsibility. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 require the final response to be signed by the “responsible person”, and to confirm the Council is satisfied with any actions or proposed actions arising from the complaint. This means the Council should authorise the care provider to act as a “responsible person” on its behalf and confirm it is satisfied with any actions or proposed actions before a formal response is sent. This requires the Council to have effective oversight and scrutiny of complaints being handled on its behalf.
41. As described at paragraph 21, the Section 75 agreement between the Council and the ICB says the ICB is responsible for responding to complaints about adult social care services on behalf of the Council, that is, the ICB is considered the “responsible person”. It appears the ICB (the responsible person) commissioned CPG to respond to Mr X’s complaint, but had no oversight of CPG’s final response.
42. The Section 75 agreement also says any complaints relating wholly to Council functions should be dealt with under the Council’s complaints procedure. CPG’s Stage 1 investigation report said, “the terms of reference for this investigation are in accordance with North East Lincolnshire Care Plus Group’s Complaints Policy [emphasis added]”. Therefore, CPG responded to the complaint under its own complaints procedure, not the Council’s, which was fault. It is important the section 75 agreement properly reflects the process that is being followed.

Injustice caused

43. I consider the Council’s failure to properly assess Mr Y’s needs before his return home caused distress to both Mr Y, and Mr X, who lived with him. Where someone has passed away, we cannot put things right in the same way as we would where the person affected is still alive. We do not recommend payments for distress, harm, or risk, to someone’s estate when they have passed away. We may recommend distress payments to others affected, such as family members. The Council should remedy the injustice caused to Mr X.
44. I do not consider use of the wrong complaints procedure caused an injustice in this case. Mr X received a comprehensive complaint response via a two-stage procedure, which is analogous to the Council’s complaints procedure. However, the confusing and contradictory response to the complaint worsened his distress at the events that had unfolded before his father’s death. The Council should remedy the injustice caused.

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Action

45. When a council commissions or arranges for another organisation to provide services, we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here although we have found some fault with the actions of CPG, we make the following recommendations to the Council.
46. Within one month of our final decision the Council will:
1. apologise to Mr X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology; and
2. pay Mr X £400 to recognise the distress caused.
47. Within three months of our final decision the Council will work with the ICB and CPG to produce a dated action plan of any changes it will make to relevant policies, processes, and staff training, to address the faults identified with care assessment and planning, and complaint handling.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice. The Council agreed to my recommendations for actions it should take to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman