Reading Borough Council (18 006 053)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 01 Feb 2019

The Ombudsman's final decision:

Summary: Mr C complained about the way in which the Council responded to a request by his (late) mother for financial assistance (a twelve weeks property disregard) with regards to her care home placement. The Ombudsman found fault with the way in which the Council responded to this request. The Council has agreed to apologise, provide a financial remedy and share the lessons learned with relevant staff members.

The complaint

  1. The complainant, whom I shall call Mr C, complained to us on behalf of his (late) mother in law, whom I shall call Ms M. Mr C complained there was an unreasonable delay by the Council in progressing Ms M’s request for financial assistance, because the Council focussed on the Ordinary Residence dispute, and failed to progress the request in parallel.
  2. In addition, Mr C complained:
    • There was an unreasonable delay by the Council, following Ms M’s needs assessment, in deciding how her needs should be met.
    • The Council failed to keep him informed of any progress. The uncertainty they experienced as a result was very frustrating and distressing.
    • The Council failed to properly explain how and why it came to its view that Ms M’s needs could have been met in Extra Care Accommodation. Mr C also disagrees with the decision itself.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  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 Mr C and the Council. I also carried out an interview with a manager of the Council. I shared a copy of my draft decision statement with both parties and considered any comments I received before I made my final decision.

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What I found

  1. The Care Act Guidance states that:
    • A council has to meet the needs of adults who are ‘ordinarily resident’ in their area. Therefore, determining where a person’s Ordinary Residence is, is crucial in deciding which council needs to meet that person’s care and support.
    • If two councils are unable to resolve a dispute about where a person’s ordinary residence is, the “lead authority” (in this case Reading Council) must apply for a determination to the Secretary of State or appointed person.
    • The “lead authority” must also “keep the person, or their carer if appropriate, fully informed of dispute in question and of progress regarding any resolution”.
  2. When a council agrees to meet a person’s needs through residential care, the council must disregard the value of the person’s property from the financial assessment for the first 12 weeks. This gives the person time to sell their house before they have to pay the full cost of the care home fees. In most cases, this disregard results in the person having to pay a reduced weekly care home fee during this twelve weeks period.

What happened?

  1. Ms M was in her 90s and lived in Bristol where she owned a property. She became unable to look after herself following a fall in March 2017. Her daughter moved her to a care home in Reading on 25 May 2017, so she could live close to her. The care home said she moved in for respite care, which became permanent on 8 June 2017.
  2. Ms M had savings of around £16,000. The weekly fee of the care home was around £825 a week. Ms M therefore put her house for sale to pay for her care home fees. However, she was worried her savings could run out before she could sell the house. Mr C contacted the Council on 27 June 2017 to ask it to carry out a needs assessment and apply a twelve weeks property disregard.
  3. The Council allocated a social worker who carried out Ms M’s needs assessment on 14 July 2017. The needs assessment shows that:
    • Ms M had capacity to make and communicate decisions about her care.
    • Mr C reported that Ms M could get in and out of her bed, but with difficulty/pain in her back.
    • Whilst not having had any pressure sores before, Mr C said Ms M could be at risk of pressure sores because she found it difficult to change sleeping positions. Ms M was not bedbound and was independently mobile with a walking aid.
    • Ms M needed support of one staff to get washed and dressed.
    • Before going into the care home, she struggled buttering bread and filling / lifting the kettle. She struggled to prepare meals independently, but had a good appetite and was independent with eating and drinking.
  4. Following Ms M’s needs assessment, her case went to the Council’s Panel (the Eligibility, Risk and Review Group ERRG) on 9 August 2017. The Council told me the social worker made a request to the ERRG for a 12 weeks property disregard. The ERRG turned down the request, as it concluded that Ms M’s ordinary residence was in Bristol. It therefore told Mr C to contact Bristol Council to ask for assistance.
  5. However, Bristol Council told Mr C and the Council on 10 August that, in its view, Ms M’s ordinary residence was now in Reading. Both Councils subsequently continued to dispute Ms M’s ordinary residence.
  6. In the interim, the family sold Ms M’s property in October 2017. Ms M passed away in December 2017. However, the dispute as to which Council was responsible for assisting with Ms M’s funding during the first twelve weeks, remained unresolved.
  7. The Council has told me that it accepts that it failed to keep Mr C updated during this time, about any progress in resolving this dispute. It also accepts that, under the circumstances at the time, it should have referred the dispute to the Secretary of State (see paragraph 7).
  8. The Council told Mr C on 15 December 2017 that: while responsibility continued to be disputed, the Council would take responsibility and continue with the process until a resolution would be found. As such, the Council would submit the request for a twelve weeks property disregard to Pre-Panel for consideration. However, the Council failed to progress this in a timely manner.
  9. The case eventually went to pre-panel on 12 February 2018 where two ASC managers decided that Ms M’s did not need residential care, because her needs could have been met within Extra Care Accommodation. This type of housing schemes usually includes self-contained adapted flats or bungalows located together, with on-site 24-hour care and support staff providing personal care and domestic services. The scheme will also include some communal spaces and facilities.
  10. The Council told Mr C on 5 March 2018 that: as Ms M did not require residential care, it meant she was not eligible for a twelve weeks property disregard. Mr C subsequently questioned why the Council had not mentioned this when Ms M’s case had first been considered by the ERRG in August 2017.
  11. The Council told me it apologised to Mr C during this call, that its focus had only been on Ms M’s Ordinary Residence rather than also on her eligible needs and options to meet them. This was fault. The Council acknowledged the ERRG should also have discussed Ms M’s needs assessment in August 2017, to provide her and her family with advice how/where her needs could best be met. The Council told me it is sorry for the delays it caused by not dealing with the case in an appropriate and efficient manner, and recognises that the uncertainty and delays would have cause Ms M and her family distress.
  12. Mr C made a complaint to the Council on 22 March 2018. Despite being promised a response within ten days, and chasing the Council, it took until 21 May 2018 before he received the response to his complaint. The letter apologised to Mr C for the delay in responding to him and upheld his complaint.
  13. Mr C told me that Ms M needed residential care, rather than extra care accommodation. However, Mr C could not tell me which of Ms M’s needs he believed would not be met within an extra care scheme. Mr C also told me that if the Council had told them in August that Ms M’s needs could be met in extra care accommodation, the family would not have moved his mother out of the care home.
  14. The Council told Mr C that its investigation into his complaint had identified a number of areas that were not dealt with effectively. It apologised for this and agreed to pay £6,011,60 to Mr and Mrs C in respect of the 12-week property disregard.
  15. The Council also arranged training for staff on managing Ordinary residence situations, and the importance of keeping service users and families informed of progress.

Assessment

  1. The Council has acknowledged that the ERRG should have considered in August 2017 how Ms M’s needs could best be met. Instead, it only focussed on Ms M’s Ordinary Residence. This was fault. The Council told me it has already brought this to the attention of the ERRG as a learning point. If the fault had not occurred, Ms M and Mr C would have known in August 2017, rather than February 2018, that the Council would not recommend residential care, and the implications of this.
  2. The Council has acknowledged that it did not keep Mr C sufficiently up to date about any developments with regards to the Ordinary Residence dispute. The Council failed to refer the dispute to the Secretary of State and there was a further delay between December 2017 and February 2018 in bringing the case to pre- panel.
  3. Furthermore, I did not see evidence the Council explained to Mr C why it concluded that Ms M’s needs could be met in the community (extra care accommodation) rather than in a residential care home. This was important to enable Mr C to understand why it arrived at this view. This should have included an explanation what extra care accommodation is (offers) and how this would have met the needs identified in the needs assessment.
  4. However, while Mr C disagrees with the outcome of the assessment, I see no fault in the way the Council carried out the assessment, and so I cannot criticise it (see paragraph 4 above).

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Agreed action

  1. I recommended the Council should, within four weeks of my decision:
    • Apologise for the faults identified above and the distress these have caused him and his family.
    • Remind its staff within adult social care of the importance to provide a sufficiently detailed explanation why it has made a decision, particularly when it is not the outcome the client hoped for.
  2. The Council has told me it has accepted my recommendations.
  3. I would usually have recommended a financial remedy for the distress caused to Mr C. However, the financial remedy the Council has already offered to Mr C is sufficient to cover any injustice caused to Ms M, Mr C and his family.

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Final decision

  1. For reasons explained above, I have upheld Mr C’s 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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