Summary: Mrs X complained about the Council’s role in supporting her late mother Mrs Y to move from a care home to live with her in another council’s area. The Council was at fault for poor communication and delay. The Council has agreed to apologise and make a payment to Mrs X to acknowledge the frustration and distress she was caused and pay some of the care fees for the extra weeks Mrs Y remained in the care home due to the Council’s delays and poor communication.

The complaint

1. Mrs X complained the Council told her that her late mother Mrs Y could not leave the care home she was living in after she went there for a short respite stay. It then delayed completing a needs assessment and care plan which it told Mrs X were required and meant Mrs Y spent longer in the care home than necessary. Mrs X says this caused her and Mrs Y distress and incurred unnecessary care home charges.

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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. 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.
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 considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. I gave Mrs X and the Council an opportunity to comment on a draft of this. decision. I considered the comments I received before making a final decision.

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What I found

Continuing healthcare funding

7. Continuing healthcare funding (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. Fast track CHC is an assessment of eligibility for funding when someone’s health is deteriorating rapidly. A person may receive fast-tracked CHC is they have a rapidly deteriorating condition that may be terminal.
8. Guidance (National Framework for NHS continuing healthcare and NHS-funded nursing care) says if the NHS is commissioning, funding or providing any part of the care, a case review should be undertaken no later than three months after the initial eligibility decision, in order to reassess care needs and eligibility for NHS continuing healthcare, and to ensure that those needs are being met. Reviews should then take place annually, as a minimum. This should be done in consultation with the person being reviewed and any other relevant people who know the person who are present at the review. However, the focus of the review should not just be on whether the individual remains eligible for NHS continuing healthcare but on whether needs are being met and whether the package of care remains appropriate.
9. 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. This is over and above the cost of the residential care provided within the care home.

Needs assessment and care plan

10. 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.
11. 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.
12. 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. 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.

Paying for care

13. When a council arranges a care home placement it must follow the charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 to decide how much a person must pay towards their care costs. Those who have over the upper capital limit of £23,250 must pay the full cost of their residential care. If care is not arranged by the council and is paid for direct by the resident the resident is known as a self-funder.

The human rights act

14. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
15. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

16. Mrs Y was unwell and in hospital. She wanted to go home and in late August 2023 was discharged home under a CHC fast track end of life care package. Mrs X lived in council 2’s area but moved in with Mrs Y to care for her. Mrs X says Mrs Y was discharged from hospital with a pressure sore. Mrs X says during her time at home Mrs Y’s health improved and she started to eat and drink more.
17. In September 2023 Mrs Y’s electrics blew during the night. Mrs Y used an airflow mattress which deflated as a result. The NHS arranged an emergency respite care home placement. Mrs X says the electrics were fixed within a week. She says she asked the care home about Mrs Y returning home. She says it suggested she stay a little longer whilst CHC funding was in place.
18. In late November the NHS arranged a multi-disciplinary team meeting to review Mrs Y’s placement at the care home and funding. A Council social worker attended. The NHS later decided Mrs Y was no longer eligible for NHS CHC fast track funding but was eligible for funded nursing care (a payment towards the nursing aspects of her care at the care home). The fast track funding ended in late November 2023.
19. Around this date, the Council social worker completed a needs assessment which recommended 24 hour support with funded nursing care. This noted Mrs Y was focused on going home for Christmas, to live with Mrs X in council 2’s area. It noted ‘further assessments would be needed by therapy teams to assess mobility and means of transfer/suitable aids. [Mrs X] said she had all the equipment her mum needs at home. It appeared [Mrs X ] assumed the hospital bed/mattress that [Mrs Y] had at the care home, could be taken to wherever [Mrs Y] moved to. It was explained this was not the case and new equipment would be arranged and assessed for suitability for the home’.
20. The assessment noted Mrs X said the package of care Mrs Y had at home previously was not satisfactory and so she did most of the care. It noted Mrs Y wished to be home for Christmas but ‘myself and nurse assessor mentioned that realistically things are not always possible and risk has to be assessed with suitable care to manage this, hence therapy team will be requested and this will be starting point. [Mrs X] said again “So I can’t just take my mum home”’.
21. The assessment noted the social worker would support Mrs X to find an agency in the Council’s area if the decision was made for Mrs Y to go to her home. If she moved out of area they would contact council 2 for them to advise. The social worker noted they advised Mrs X that once the date was confirmed for the end of fast track funding she would become a self funder until she moved, ‘however a suitable means of care and support must be in place and an assessment by an OT/physiotherapist to have been completed’. The social worker noted that paying for care information was given and Mrs Y would be a self funder due to her savings.
22. After the multi-disciplinary team meeting, the social worker noted the CHC nurse would make referrals for therapy team input regarding transfers and mobility. The social worker noted they spoke with Mrs X on the telephone to discuss the outcome of the meeting and that she would now need to self fund her care. They said they had called Mrs X to move forward with Mrs Y’s wishes for her care and it was unlikely this would arranged before Christmas. They recognised Mrs X wanted Mrs Y to move to live with her in council 2’s area. They noted that Mrs X was not happy that Mrs Y would have to stay in the care home and pay for her care or about the length of time it would take to find suitable support and assessments by the appropriate teams in council 2’s area.
23. The social worker referred Mrs Y to council 2 in late November. The social worker attached their assessment of Mrs Y’s needs.
24. In early December Mrs X complained to the Council. She copied in the NHS and council 2. She complained that since the MDT meeting in late November she had been unable to make any further progress on her request for mum to live with her or return home. She complained the decision that Mrs Y should remain in 24 hour nursing care following the meeting was against hers and mum’s wishes. Mrs Y wanted to move in with Mrs X who worked from home and had extended family who could also support her. Mrs X understood the Council would not allow Mrs Y home without a care package but she had not been able to source one to start before Christmas. Mrs X said she understood Mrs Y would not be allowed home until her house and equipment were approved by council 2 which was unlikely to be until after Christmas. Mrs X said she was happy to purchase a hospital bed and to make arrangements for help required in relation to her care needs. Mrs X said they wanted Mrs Y home for Christmas. She said if the family were struggling to support Mrs Y they would employ carers.
25. The social worker emailed Mrs X and said they had passed the complaint to their manager. They said they had referred Mrs Y to council 2. They said they had made suggestions for Mrs Y’s future care based on the MDT and information from the care. The social worker advised Mrs X to register Mrs Y with the GP so that district nurses and the OT/physiotherapist could assess her.
26. Council 2 spoke to the social worker. The social worker advised that if Mrs Y was to return home she would need four care calls a day. They said Mrs Y would be self funding. Council 2 said it would speak with Mrs X about what referrals were required. The social worker noted Mrs Y was ‘safe at [the care home], all her care needs are being met, she has capacity to state her wishes and has said she wants to be in [council 2’s area] and says she wants to be out of the care home for Christmas, however she is not protesting by any means, accepting of care and generally settled’. The social worker emailed Mrs X and confirmed they had closed the case. They said it was for council 2 to follow up the assessment and make the necessary referrals and risk assessments for Mrs Y to be supported at home.
27. In early December 2023 a nurse reviewed Mrs Y due to low mood and an unresponsive episode. In the notes they recorded Mrs Y likes her room but just wants to go and live with her daughter. ‘Awaiting further plan for move and to ensure care package is arranged.’ In mid December 2023 a nurse carried out an assessment of Mrs Y’s bed sore. They discharged Mrs Y as they were satisfied the wound was healing. They noted ‘the patient and daughter want [Mrs Y] to move back home – at present time this is taking a long time to arrange due to obstacles and delay – nursing team are assisting’.
28. In mid January 2024 Mrs X spoke to the Council. It noted Mrs X was unhappy. She wanted Mrs Y home and nothing else. She did not want to pay for care costs as she did not agree with mum remaining at the care home and said she was prevented from removing Mrs Y by the Council. She said she could manage Mrs Y’s care and support. She said council 2 said Mrs Y fell under this council and it was responsible for arranging her care and support.
29. The following day the team manager called Mrs X and said they would respond to the complaint. They said council 2 had all the necessary information to source a care package. They told Mrs X there was no legal framework to prevent Mrs Y leaving the care home but they recommended if Mrs Y were to leave it would be planned with appropriate support. They agreed a social worker (social worker B) would visit Mrs Y to get her views.
30. Social worker B visited Mrs Y at the care home. They also spoke to the care home which said Mrs Y had improved considerably since being in the care home and was more settled in the night. The care home felt Mrs Y was able to decide where she should live and understood her support needs and had no concerns about Mrs X caring for Mrs Y. Social worker 2 completed a mental capacity assessment. They noted they did not believe Mrs Y had any issues with making her own decision to move to live with Mrs X in council 2’s area. The care home also confirmed it had no concerns with Mrs Y moving and agreed to provide Mrs X with a copy of Mrs Y’s dressing regime for her bed sore.
31. Social worker B spoke to Mrs X and explained they agreed Mrs Y was able to make the decision to move to live with her and discussed the logistics of this. They noted they did not understand why Mrs X was having to wait for a response from council 2 regarding acceptance and funding as Mrs Y was a self-funder. They said Mrs Y would require a private ambulance to take her home. They discussed Mrs X would need to find a care agency and discuss with them Mrs Y’s needs. They agreed Mrs X could move Mrs Y’s profiling bed from her home to Mrs X’s home. Social worker B spoke to council 2 who explained once in council 2’s area and registered with a GP, the District Nurses would start visiting and would decide if other referrals were necessary.
32. In late January 2024 a physiotherapist reviewed Mrs Y. They noted ‘holistic assessment completed – declined input’. They advised carers to continue to support as required and advised ‘liaise with the family and social services to facilitate a safe transfer to daughter’s house as per [Mrs Y’s ] request’.
33. In early February Mrs X contacted social worker B as she was very upset there may be further delay. She said she had spoken to council 2 who said it had allocated a social worker but it would be some time before they could look at the situation. Social worker B spoke to council 2 and explained Mrs Y was a self funder and choosing to move council area. Council 2 agreed to close the case and said once Mrs Y had moved Mrs X could make a referral for a needs assessment if required.
34. In early February 2024, Mrs Y moved in with Mrs X.
35. The Council responded to Mrs X’s complaint in mid February 2024. It said there was no legal framework for Mrs Y to remain at the care home and she had capacity to make decisions about her care. It said the confusion was because of the MDT meeting recommendation that Mrs Y required nursing care and was awarded funded nursing care. It said as Mrs Y was a self funder she could have arranged the move at any time if that is what she wished. It said it recognised it could have supported her to move things on a little. It said it had to liaise with health and social services in council 2. It acknowledged it could have supported her to take Mrs Y home earlier and apologised for the distress and inconvenience caused.
36. Mrs X remained unhappy. She said she was told she could not make arrangements for Mrs Y’s care and either the Council or council 2 had to put arrangements in place. She said she was not permitted to take Mrs Y home until early February.
37. The Council responded in early March 2024. It said its record show the MDT meeting of October 2024 discussed Mrs Y would require appropriate equipment and a further therapy assessment before she could leave the care home to support her safe discharge. It apologised if there was a misunderstanding or any suggestion she was not allowed to take Mrs Y home. It said the recommendations were made in good faith to ensure a safe discharge.

Findings

38. The Council did not arrange Mrs Y’s placement in the care home. This was arranged and funded by the NHS. Mrs Y went there for emergency respite and after that emergency passed, both Mrs X and Mrs Y wanted Mrs Y to move to live in Mrs X’s home to be near the extended family.
39. The social worker competed a needs assessment which recommended 24 hour nursing care. The assessment stated ‘a suitable means of care and support must be in place and an assessment by an OT/physiotherapist to have been completed before Mrs Y could go home’. Mrs X understood the assessment to mean Mrs Y was not allowed home before these actions took place. There was no legal basis to prevent Mrs Y returning home. The Council failed to clearly explain that Mrs X could take Mrs Y home if this is what she wanted and what she needed to do to enable that to happen. The Council failed to give due regard to Mrs Y’s right to a private and family life under the Human Rights Act. This was fault.
40. There is no evidence of any discussion with Mrs Y at this point to discuss what she wanted. Mrs X believed that, with the support of other family members, she could meet Mrs Y’s needs. There was no clear advice given to Mrs X about the action she needed to take to get Mrs Y home. This was fault.
41. The Council told Mrs X it considered Mrs Y needed four visits a day by two carers. The records suggest it required Mrs X to set this up, with council 2. The Council repeatedly suggested it would be for council 2 to assess Mrs Y but the Council had already carried out an assessment so a further one was not needed. Mrs X said several times that she could meet Mrs Y’s needs with family support. She understood and agreed to commission support if family could not manage. The Council did not produce a support plan. This may have not been required as it was not commissioning a service for Mrs Y, but it failed to continue to support Mrs Y in planning for her to go home. As Mrs Y was a self funder, neither this Council or council 2 would be required to commission a service unless Mrs X or Mrs Y requested it and there is no evidence they did. The failure to properly discuss and consider Mrs X and Mrs Y’s views was fault.
42. In the needs assessment the social worker recorded it appeared Mrs X wanted to move Mrs Y’s bed from the care home to Mrs X’s home and was not allowed to. This was wrong. Mrs X says she wanted to take the bed and airflow mattress from Mrs Y’s home to her home in council 2’s area. It was not until mid-January that social worker B told Mrs X the bed could be moved.
43. In its complaint response the Council accepted it could have supported Mrs X to take Mrs Y home earlier and apologised for the distress and inconvenience caused. In response to Mrs X’s complaint the Council allocated social worker 2 to carry out a mental capacity assessment, to liaise with council 2 and to support Mrs Y to move in with Mrs X. This was appropriate.
44. The records show Mrs Y was settled in the care home and there were no issues around the care she received. She did not object to the care however she did not want to be in the care home and Mrs X and Mrs Y wanted Mrs Y home for Christmas. Even on the balance of probabilities I cannot say this would have happened if not for the fault. Mrs Y needed a significant level of support, and the records show Mrs Y’s condition improved at the care home. The Council needed to be satisfied Mrs Y’s needs would be met at Mrs X’s home, that this was what Mrs Y wanted and that she was capable of making that decision. However, on balance, I consider Mrs Y would have been home by early January. Because of the delays Mrs Y incurred more care fees than she should have. Mrs X was also caused significant distress and frustration.

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Agreed Action

45. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X and pays her £500 to acknowledge the distress and frustration she was caused by the Council’s 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 the apology.
2. pay Mrs Y’s care home fees to the care home for the period from 1st January 2024 to when Mrs Y went home.
46. Within two months of the final decision, the Council has agreed to share the decision with relevant ASC staff at team meetings and discuss the learning from the case regarding the support provided to care home residents who are able to make their own decisions and want to go home.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I have completed my investigation. I find 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