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London Borough of Lewisham (18 004 565)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 26 Mar 2019

The Ombudsman's final decision:

Summary: Mr F’s children complained about the way the Council decided that he would have to pay a contribution towards his care package. The Ombudsman found fault with the way in which the Council communicated with the family and recorded decisions. The Council has agreed to provide an apology for the distress it has caused and share the lessons learned with its adult social care staff.

The complaint

  1. The complaint to the Ombudsman was made on behalf of the (late) Mr F. The complaint was made by Mr F’s children, whom I shall call Ms X, Ms Y and Ms Z. Mr F’s children complain the Council failed to carry out a comprehensive and appropriate needs assessment before her father was discharged in August 2015.
  2. Ms X also complains the Council failed to explain to her father, and his family, that there would be a financial assessment to determine what contribution he would have to pay towards the cost of the care package.
  3. As a result, they say their father was forced to accept and pay for a care support package that he did not want or need, in order to be allowed to go home from hospital.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). I used my discretion to investigate the events that happened in 2015, because the family received a letter in 2017 from the Council’s debt collection team to say Mr F owed £6,038.97 in unpaid care fees. The family believed the matter had been closed in early 2016.
  3. If we are satisfied with a council’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

  1. I considered the information I received from Ms X and the Council, and the records I obtained from the hospital where Mr F stayed, before he returned home. I also carried out a telephone interview with a staff member who was involved at the time. I shared a copy of my draft decision statement with the family and the Council and considered any comments I received, before I made my final decision.

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What I found

  1. The Government’s “Care and Support Statutory Guidance” says that:
    • Information and advice is fundamental to enabling people, carers and families to take control of, and make well-informed choices about, their care and support and how they fund it.
    • All reasonable efforts should be taken to ensure that information and advice provided meets the individual’s requirements, is comprehensive and is given at an early stage. This should include: information about how the care and support process works, eligibility for different types of support, and financial information. Financial information is fundamental to enabling people to make well-informed choices about how they pay for their care and how best to meet their needs, immediately or in the future. A council needs to provide information to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances.
  2. The Government’s “Care and Support Statutory Guidance” also says that:
    • The needs assessment and eligibility process must be person-centred. The aim of the assessment is to identify what needs the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. The assessment must also consider if any other support might be available in the community to meet the person’s needs, such as support from family members.
    • An assessment must be person-centred, involving the individual and any carer that the adult has. The assessor needs to take a holistic view of the person’s needs in the context of their wider support network.
    • Following their assessment, individuals must be given a record of their needs assessment.
    • Once the assessment has determined that the person has eligible needs which the Council will meet, it must then carry out a financial assessment to determine how much the person can contribute towards the cost of their care.
  3. Where an individual provides or intends to provide care for another adult and it appears that the carer may have any level of needs for support, a council must carry out a carer’s assessment.
  4. Intermediate care’ services (such as reablement / enablement) are provided to people, after they have left hospital or when they are at risk of being sent to hospital. Intermediate care, which is free of charge, is a programme of care provided for a limited period to assist a person to maintain or regain the ability to live (more) independently.

What happened?

  1. There appears to be a lack of clarity, at least within the records, as to where Mr F’s children where living at the time. Several documents from the Council and the hospital state that, while both of Mr F’s daughters provide care during the day, he only lived together with his wife and son. However, Ms X told me (and some documents mention that) she and her sister also lived at the property. All three siblings were in their 60s. Ms X explained that she and her siblings would provide a significant amount of support to both parents throughout the day, meeting all of their needs. As such, they had developed a system to ensure there was always the support available that their parents needed.
  2. Mr F went into hospital in May 2015. He was discharged one week later with a free reablement care support package of three visits a day, to try and increase his independence. This included support with personal care, which was working well according to his family.
  3. Mr F went into hospital again at the end of June 2015. While in hospital, Mr F was receiving daily rehabilitation support from OTs and Physiotherapists to improve his mobility. Hospital records show he was often reluctant to engage / mobilise.
  4. A hospital record from July 2015 states that Mr F’s daughters reported they were living at their parents’ home. The record concludes: ‘very good family support available. He and wife are never left alone’.
  5. The hospital felt in July 2015 that Mr F would be suitable for a period of free reablement support after his discharge from hospital, because he had ongoing rehabilitation goals to improve his mobility and independence. However, the Council’s Enablement Team said on 22 July that it would not accept him, because he had not sufficiently engaged when he had received reablement support before. I obtained this information from the hospital’s records, because the Council was unable to provide me with a record that showed why this decision was made. I have seen no evidence within the Council’s records that it explained this to Mr F’s family. The family confirmed to me that the Council did not tell them.
  6. As Mr F would not receive reablement support, the Council needed to carry out a needs assessment with Mr F to determine what long-term support he would need after going home. Mr F’s hospital OT said Mr F would need support with transfers and mobilising from one carer. The OT recommended a care package consisting of two to three visits per day from one carer.
  7. The social worker organised a visit to Mr F in hospital; Ms X’s brother and sister were also invited and present. The social worker told me she explained at the start that the needs assessment took place because enablement had been turned down. She also said she explained the assessment was to determine Mr F’s long-term support needs and there would be a financial assessment to determine his contribution. However, I have not seen evidence of this within the records provided by the Council.
  8. Ms X told me her brother and sister say the social worker did not explain this during or before the visit. She said the social worker talked with her father about other things and did not establish what support he wanted and/or needed. Ms X says the social worker did also not explain there would be a financial assessment. The only reference to finances that I have found in the needs assessment form is: Mr F and his wife manage their own financial affairs and are very private in this area. Family (…) are unaware of their parents’ financial situation.
  9. The social worker acknowledged that:
    • It would have been good to have clearly recorded what she discussed and explained about reablement and the financial assessment.
    • She failed to provide a copy of the needs assessment to the family.
    • She should have offered to carry out a carer’s assessment to each of the children.
  10. Mr F’s condition, and his ability to mobilise, subsequently deteriorated because of a hospital acquired infection. As a result, by 3 August 2015 he had to receive support and supervision with transfers, mobilising and personal hygiene by two carers at the same time (double-handed care support). He was receiving daily rehabilitation support on the ward to try and reduce this to one carer.
  11. The hospital contacted the Enablement Team on 7 August 2015 to ask for reablement support for Mr F, with the aim to reduce any care package from two to one carer. However, the Enablement Team said Mr F did not meet its criteria, because he needed support from two carers. The Enablement Assessment Form I received from the Council with regards to this decision did not record why the team had turned down the request. In addition, I have again not seen recorded evidence when the Council explained this decision to Mr F’s family. The hospital OT also spoke to Mr F’s son to explain the need for double-handed care.
  12. Mr F’s needs assessment states:
    • He lives with his son and wife. His two daughters visit daily and provide support. The social worker told me that Mr F’s children reported this to her at the visit. Ms X told me this was not true, as all three children lived at Mr F’s home.
    • I would like support in the morning, midday and evening to support me to get myself out of bed showered and dressed, to transfer and mobilise to eat my evening meal and to get undressed and ready for bed at night. Ms X told me these were the words of the social worker, not her father.
    • Ms X’s sister said her father could do a lot himself. However, he would need a lot of prompting and encouragement with his personal care. This would take up at least one hour in the morning.
    • Mr F is supported by his son and two daughters on a daily basis; they also care for their mother. They support him with meal preparation, laundry, housework and shopping. There is always family around, but limited in the morning because both daughters need to provide full support to their mother. However, Ms X told me that the family would have been able to continue to successfully provide all the support both parents needed.
    • Support from family:
        1. Personal care: no support in the morning; during the day; evening. Ms X told me the family has always helped with personal care.
        2. Medication: no support in the morning; during the day; evening. Ms X told me this was wrong, because there would be no reason why the family would not be able and willing to support their father with his medication.
        3. Presence / supervision: no support in the morning; during the day. Ms X told me that this did also not make any sense, as they would always ensure at least one of the children would be at home.
    • Mr F needs assistance of two with transfers on and off commode or to and from the toilet.
  13. The social worker told me that Mr F’s children were unable to do the heavy physical aspects (lifting, transferring, preventing a fall) of Mr F’s care package. Both daughters were busy in the morning with their mother’s care. In addition, the family said the son had a back problem that affected what support he could provide.
  14. Ms X told me the social worker told the family that her father could only go home if the family accepted the proposed support package. However, the Council says it never imposed the care package. It says the family was unable to provide the double up care support needed and did not decline the package put forward. I have been unable to establish this, one way or the other, based on the available records.
  15. The Council sent a letter to Mr F on 7 August 2015. However, Ms X told me the family did not receive this. In the letter, the Council explained they would have to complete a financial assessment to determine if Mr F would have to contribute towards the cost of his care package.
  16. On 12 August 2015, the Council carried out a capacity assessment of Mr F. It concluded that Mr F lacked capacity to make decisions about his support arrangements at home. This means the Council should have organised a best interest meeting, chaired by the Council, to discuss Mr F’s future care. However, instead there was a Multi Disciplinary discharge meeting chaired by the hospital, to which the family was invited. The social worker did not record the family’s view or what else was said and discussed. As such, I again had to rely on the records I received about the meeting from the hospital.
  17. Ms X says the Council never told her about the capacity assessment. She told me the family explained at the meeting how they would be able to provide her father’s support, without the need of a care package. However, the Council says the family explained at the meeting how difficult it was to care for both parents. Ms X denies this.
  18. The record of the meeting states that the hospital OT explained that Mr F would not be currently safe to use the stairs, even with support. However, the family felt Mr F would be able to manage stairs with support from his family.
  19. The Council arranged a care support package of three double-handed visits per day. The records state the Council would review this after six weeks. Mr F went home on 14 August 2015.
  20. The Council called the family on 3 September 2015, to arrange a date for the financial assessment. Ms X was surprised about this and told the officer her father was receiving free reablement support. The officer sent Ms X a copy of the letter dated 7 August and said she would look into this. Mr F’s previous social worker told the officer that she had told the family that the support would be a long-term package, rather than reablement support.
  21. An OT visited Mr F at home on 4 September 2015 to review his support. The OT recorded that Mr C was happy with his carers. The OT subsequently informed the Council that Mr F had improved enough to reduce his support to one carer three times a day. The Council reduced the package the following day.
  22. The officer contacted Ms X on 11 September. Ms X continued to say the family was never told the support would be chargeable. As such, the officer contacted the social worker again on 14 September, with a request to look into this and get back to Ms X.
  23. The Council received a letter from Mr F’s GP on 15 September, in which the GP made an urgent request for Occupational Therapy. The GP said the family was providing a lot of support, but were struggling to assist Mr F with some aspects of his care. The children were having difficulty with providing his care while in bed and cleaning him in the shower. This was because their physical limitations; inability to pick him up properly. The GP asked for a bed and bathing assessment.
  24. Ms X wrote a letter to the Council on 1 October 2015. In the letter, she raised several concerns with regards to Mr F’s discharge and care package. She explained that there was no need for a care package and asked for somebody to visit her father and his family to discuss this. Ms X’s mother passed away at the end of October 2015.
  25. The Council’s record states that Mr F’s previous social worker called Ms X on 8 December 2015. She said a financial assessment had to take place, and that she had explained to her sister on several occasions why her father did not meet the criteria for enablement support. Ms X did not agree with this. The social worker did not talk about Ms X’s request to stop the care package. Ms X told me the social worker did not contact her after the letter the family sent in October 2015.
  26. A record from the Council dated 10 December 2015 states Mr F needed a review as soon as possible. Ms X and her family were not happy with the way in which the Council had been dealing with the case, and the family made a complaint on 15 January 2016. Within her letter, she told the Council to immediately stop the care package; which the Council did on 18 January.
  27. The Council organised a meeting with the family to discuss their complaint. However, the complaints team had to cancel the meeting by email. The email said the complaints manager would be happy to rearrange the meeting on his return. In response, Ms X said that: “We look forward to hearing from the complaints manager on his return to work”. Ms X also asked the Council not to send any further payment demands to the family for the time being. The Council halted the payment demands, but the team failed to inform the complaints manager on his return that Ms X was expecting him to contact her.
  28. Ms X says they did not hear from the Council anymore with regards to her complaint and her father’s outstanding care contributions. The family therefore believed the Council had realised they had been at fault and closed the case. However, the Council says it resumed sending payment requests from June 2016 onwards.
  29. Mr F passed away in March 2017. The family received a letter in May 2017 that said Mr F still owed the Council £6,039. The Council said that: “Based on the presenting needs, and the factors around Mr F’s hospital admission, the professional view of the multi-disciplinary team was that Mr F would be at risk of self-neglect if not supported by a package of care at home”. In addition, as it was unable to complete a financial assessment with the family, the Council (as per procedure) had to bill Mr F as a full cost client

Assessment

  1. There was fault in the way the Council communicated with the family and explained things.
  2. The Council’s records are unclear about what information and explanations it provided to the family, and when they provided this. I have found no evidence in the records of the Council telling Mr F’s family that it had decided in July 2015, and again later in August 2015, that the Enablement Team would not accept Mr C as a client. There is also no evidence in the records that it explained why it made these decisions. This is fault.
  3. I have also found a lack of evidence in the records what the Council explained to the family, and when, about the need to carry out a financial assessment. This is fault.
  4. After the Council carried out the needs assessment, it failed to provide a copy of the assessment to the family. This would have enabled the family to provide comments on it, to ensure it was accurate and comprehensive in the family’s view. The family has told me there were several key errors in the form, including about Mr F’s home situation, where his children lived, and the support his family would be willing and able to provide going forward. This is fault.
  5. The social worker also failed to offer a carer assessment to each of Mr F’s children. This is fault. This was also a missed opportunity to further discuss and record the support each of the family members could provide.
  6. Even though the Council was aware as early as 22 July 2015 that Mr F would need a financial assessment to determine what his contribution would be, the Council had not yet started the process as of 14 August 2015 when Mr F left hospital. While I understand that Mr F’s children did not have access to their parent’s financial information, the Council could have contacted his wife.
  7. The Council sent a letter to Mr F’s home address on 7 August that said there would a financial assessment to assess his contribution. However, Ms X says the family did not receive this.
  8. The Council failed to organise a best interest meeting, after a mental capacity assessment concluded that Mr F did not have capacity to make decisions about his care arrangements. This should have been a meeting chaired by the Council, who in this case would have been (what is known in the Mental Capacity Act – Code of Practice as) ‘the decision-maker’. Instead, there was a discharge meeting chaired by the hospital.
  9. It is clear from the records I have seen that the professionals involved in Mr F’s care (the Council, hospital staff, Mr F’s GP), felt that it would be in his best interest to have a care package at home on discharge, to provide support at home with the more physical aspects of his care. On that basis, I have concluded that, on the balance of probabilities: if the Council had organised a best interest meeting, which it should have done, the Council would have decided that Mr F would need a support package in place on discharge of (initially) two carers.
  10. At the important discharge meeting, the Council failed to ensure it kept records of the views expressed by the family and the discussions that arose. As such, it is not possible to conclude what was discussed and whether the family objected to the care package at the meeting.
  11. There was fault in the way in which the Council responded to Ms X’s letter of 1 October 2015. In the letter, Ms X expressed the family did no longer want or need the support from one carer. The Council subsequently failed to carry out an urgent review, and it took until 18 January 2016 before it stopped the package. This is fault.
  12. The complaints team did not contact Ms X as promised, following the return of the complaints manager.

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Agreed action

  1. I recommended that, within six weeks of my decision, the Council should:
    • Provide an apology to Ms X and her siblings about the faults identified above and the distress these have caused them.
    • Remind its staff involved in needs assessments, of the importance to:
        1. Update a client whenever an important decision has been made, to explain to them why the decision was made, and to clearly record this.
        2. Share a copy of the needs assessment as soon as possible.
        3. Offer a carer assessment
        4. And the other faults and lessons learned identified above.
    • Taking the faults and sequence of events into account, the Council should waive any care fees after 1 October 2015.
    • The Council should also offer to carry out a retrospective financial assessment to calculate how much Mr F’s contribution should have been, between 14 August and 1 October 2015.
  2. The Council has told me it has accepted my recommendations.

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Final decision

  1. For reasons explained above, I decided to uphold the complaint. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman

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