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Surrey County Council (18 019 116)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 24 Mar 2020

The Ombudsman's final decision:

Summary: Ms Y complains the Council was at fault in its handling of her father’s care needs. We have found some evidence of fault by the Council. The Council has agreed to reconsider if Home CL met her father’s assessed needs and take the appropriate action if it decides it did not.

The complaint

  1. Ms Y, who complains on behalf of her father Mr X, says the Council is at fault in its handling of his care needs. In particular she says the Council:
  • provided him with an unsuitable respite care placement;
  • retrospectively charged him for respite care that it told him would be free until the Discharge to Assess process had been completed;
  • gave him a personal budget which was not enough to buy suitable care for his needs without a top-up; and
  • failed to help him in arranging a suitable chair for his use.

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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. As part of my investigation I discussed the complaint with Ms Y and considered information she provided including a telephone call made by Mr X while he was resident at Home CL. I made enquiries of the Council and considered its response and Ms Y’s comments on its replies.

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What I found

Background

Discharge to Assess (DtA)

  1. This is a process whereby people who are fit to leave hospital but still need care services, receive short term support to return to their homes or other appropriate setting. An assessment of their care and support needs can then be undertaken and decisions made about longer-term care.
  2. A council should not charge for intermediate care (the type of care provided while the assessment is undertaken) for up to six weeks.

Personal Budget

  1. Everyone must receive a personal budget as part of the care and support plan if a council is meeting their needs. The budget should be provided in a timely manner and be proportionate to the needs that are to be met. This process should be transparent, consistent and equitable.

Third party top-up payments

  1. If a person chooses to go to a care home which costs more than their personal budget then a third party may need to pay a top-up to meet any shortfall.

The Care and Support Statutory Guidance, Chapter 8 and Annex A

  1. This explains the person’s wishes and preferences about the care home they go to must be taken into account when a decision about accommodation is made. However the guidance says residents’ wishes do not have to be satisfied if:
  • the preferred accommodation appears to the council to meet the person’s assessed needs;
  • Is available; and
  • does not cost the council more than it would normally pay for similar accommodation meeting and catering the person’s assessed needs.
  1. A council cannot reject a care home on costs grounds without offering a suitable and affordable alternative.

Key events

  1. Mr X is in his late sixties and has Kennedy’s Disease which causes a gradual weakening of the muscles, particularly those in the legs and arms. The disease does not affect Mr X’s cognitive ability. He lived at home with his wife, who was his main carer.
  2. Following several falls at home Mr X went to hospital in June 2018.
  3. On 8 August an Occupational Therapist (OT) visited Mr X in hospital to carry out an initial assessment. She suggested Mr X might be able to return home if he lived downstairs with some adaptations to the home and with help from care workers. They agreed an OT would do a home visit to see if this was feasible, as Mr X and his family had concerns about him returning home. Mrs X said she no longer felt able to care for him and that she had looked at a local care home, Home G, which she felt would be suitable. The Council told Mr X and his family it would not contribute more than £525 per week towards his care.
  4. The Council’s August assessment of Mr X says Mr X can sit down / stand up from a height of 26.5" but needs to sit at a height of 24” so his feet can touch the ground and he can push himself back into the chair. It says:
    • “Once standing [Mr X] can mobilise using a wheeled walker with supervision of one. All furniture in the home has been heightened to the maximum height possible. If he was to return home he would require to purchase a new chair that can be adjusted in height safely.”
  5. On 31 August the Council spoke with Mr X’s son. It said it would not fund a placement at Home G but should assess Mr X’s care and support needs under the DtA process. Notes of the call show they discussed various outcomes following the assessment, including:
    • Mr X living independently (if the family home was sold and separate accommodation for him and his wife purchased);
    • a supported living placement; or
    • a care home, funded by third-party top-ups if necessary.
  6. Ms Y says that this and other conversations where the Council suggested the family home be sold to pay for Mr X’s care were distressing for the family, especially Mrs X.
  7. Following several meetings Mr X and his family agreed he would go to a local care home for further assessment under the DtA process. The Council told Mr X this would take six weeks and he would not need to pay for his care during this time.
  8. The Council considered placing Mr X in care homes 30 miles away. His family said they were too far away for Mrs X (who does not drive) and other family members to visit.
  9. Another closer home was also rejected as being unsuitable for his needs. This was because it was a dementia home which was not suitable for Mr X’s psychological state as residents calling out caused him distress. It also had too few carers to help him with transfers, the proposed room was too small and did not have a toilet suitable for Mr X.
  10. Mr X moved to Home J, also a dementia home, on 10 September for the DtA process to begin. Mr X and his family had visited the home before he moved in and had some reservations but accepted the placement. The placement cost £750 a week.
  11. However, when Mr X arrived at Home J equipment he needed was not available. The Council accepts the move from hospital was disorganised and has apologised.
  12. An OT visited Mr X on 12 September. She identified the need for: a hospital bed with extension; two bed levers; a slide sheet; and a mobile shower commode. The equipment was due for delivery on 14 September. Mr X declined an alternating air mattress. Mr X’s son said he would bring a transfer board for his father to use.
  13. A Physiotherapist visited Mr X on 14 September, before delivery of the equipment. Mr X practiced standing, walking with a walker and transferring to a wheelchair. He could get back onto the bed using the transfer board with some help. The Physiotherapist advised Mr X to sit out for 1-2 hours and to do exercises to strengthen his abdomen and spine.
  14. The Physiotherapist returned on 18 September, but Mr X had family and other visitors with him. Home J told the Physiotherapist Mr X had not sat out in his wheelchair, as encouraged, and was not compliant with exercises or using the equipment which had been delivered.
  15. When the Physiotherapist returned on 19 September, he reviewed the use of the transfer board to move from the shower chair back onto the bed. Mr X said he had sat out for three hours the day before. He could stand using a walker, walked 15 metres around the room and then transferred into the shower chair. He transferred back onto the bed with help from someone placing the transfer board. Mr X’s family asked for an assessment of car transfers. But when the Physiotherapist offered to do this five days’ later Mr X said he was already doing car transfers.
  16. Ms Y says Mr X and his family raised concerns about the suitability of Home J while he was living there. These included:
  • it was a dementia home and not equipped to deal with his physical needs. As a result, he was staying in bed most of the day, including mealtimes. This had caused pressure sores, problems with personal care and a lack of exercise;
  • no interaction with other residents who were older and suffering dementia;
  • several falls when Mr X tried to mobilise; and
  • problems with maintenance leaving Mr X with no hot water or heating.

These issues caused Mr X to become withdrawn and depressed. The decline in Mr X’s mood caused distress to Mrs X (doctor had prescribed anti-depressants) and his family. Ms Y says the Council accepted the home was unsuitable however the case notes are silent on this.

  1. On 5 October Mr X told the Council there was nowhere for him to sit at Home J. The Council noted he sat on the bed or the wheelchair. Mrs X told the Council she had bought a special chair but her husband would need help from the OT to use it properly.
  2. On 9 October Mr X told the Council the chair was not very comfortable but seemed to “work at the moment”. He asked if the Council could provide a height adjustable wheelchair. It said it could ask his GOP to refer him to the wheelchair service.
  3. A Council OT visited Mr X twice. On 15 October the OT decided Mr X could not go home as the property could not easily be adapted to meet his needs.
  4. On 15 October Mr X’s Social Worker told him the DtA ended on 22 October and she understood her would then be charged for respite.
  5. The Council began to look for care home placements. Mr X and his family had told the Council of their continued preference for Home G which was close to Mrs X and would allow her to visit regularly.
  6. A case note dated 12 October shows the Council did not have any solutions for Mr X’s long-term care and so it would probably have to extend his stay at Home J. A further note on the 15 October shows the Council told Mr X it was still looking at solutions and had yet to complete its assessment.
  7. On 18 October the Council completed its assessment of Mr X’s needs and found he needed:
  • support with preparing food and drink;
  • an environment where he could eat with others;
  • help from two people for transfers;
  • support with personal care including showering, dressing and toileting;
  • help maintaining a clean and tidy living environment;
  • regular contact within his family; and
  • support to manage his anxiety.
  1. The assessment says:
    • “[Mr X’s] transfer technique includes launching himself from an increased height (nearly an average standing position of 26'') onto his wheeled walker. He is not able to sit safely at this height as he is unable to reposition his bottom (shuffle back) once seated. The safe height to sit is about 24". This presents with all sorts of issues as [Mr X] is not able to stand up from a standard height wheelchair, toilet or chair and would benefit from height adjustable seating to increase his independence and reduce the need for support during the transfers. Currently [Mr X] requires support of 2 people to transfer from heights less than 26'', or relies on his youngest son David to lift him from the chair/wheelchair.”
  2. A case note of the same date says the Council told Ms Y her father would have to start paying for his care at Home J from 22 October. Ms Y says this is not correct.
  3. Mr X and his family challenged the budget the Council said it would pay for his care. Case notes show that on 4 October the Council said it would not pay more than £750 per week for his care. The notes show this increased to £800 per week on 23 October.
  4. The Council looked for a suitable care home placement for Mr X. The case notes show it had identified the following care homes:
  • Home M - a non-dementia home but with no long-term residents. Notes show the manager of the care home did not think it was suitable for Mr X as having younger residents had not worked before. The cost was £1055 per week.
  • Home GL - provided care for people with learning disabilities and mental health problems. Such an environment would have been inappropriate for Mr X. The cost was £1200 per week.
  • Home C - had an elderly clientele. Notes show the manager thought the home would not meet Mr X’s social, emotional and mental needs. The cost was £850 per week.
  • Home Cl - a nursing care home with younger residents and close to Mrs X. The cost was £1158 per week
  • Home G - a care home providing nursing and dementia care. But it only had a vacancy on the dementia ward, although space in a non-dementia ward may have become available soon. The cost was £1200 per week.
  • Two other homes costing £1200-1400 per week.
  1. Mr X visited Home CL with his family in November. Following the visit Mr X raised some concerns including:
  • the proposed room was too small and did not have space for his bed (the manager of the home confirmed the room would be big enough for Mr X’s equipment)
  • A resident had called out for a large part of the visit
  • A chair in the room was not suitable as Mr X would need hoisting off it.

The home had lowered its weekly fee to £1000. As the Council considered the home met Mr X’s assessed needs, it set the budget for his care at £1000 per week.

  1. Mr X was left with a choice of Home CL within the Council’s budget and Home G which would need a £200 per week top-up to cover the shortfall.
  2. On 8 November Ms Y told the Council the chair Mrs X bought for her husband was not suitable as he could only sit in it for a couple of minutes at a time.
  3. Case notes show Mr X and his family decided he should move to Home CL until a suitable room became available at Home G, for which they would pay a top-up. Home CL waived its usual notice period to one week so Mr X could take a place at Home G once it became available.
  4. Mr X moved to Home CL on 30 November.
  5. Following his move to Home CL Mr X received a bill for his care at Home J from 22 October to 30 November. Mr X and his family disputed the bill as they considered the DtA process had not ended until Mr X moved to Home CL and so care until this point should be free. The Council disagreed and has not altered its view. It also said it had provided one week’s free respite care from 15 October to 22 October.
  6. Case notes provided by the Council do not show Mr X or his family raised any concerns about care at Home CL.
  7. On 15 December Ms Y recorded a telephone call between her and Mr X which shows Mr X’s distress at a resident calling out, which I understand was a frequent event.
  8. Mr X moved into Home G on 28 December once a room became available. The Council is paying £1000 a week towards his care and his family are paying a top up of £200 a week.
  9. Ms Y and Mr X sent a complaint to the Council in January 2019 about its handling of Mr X’s case. They complained that:
  • the placement at Home J was unsuitable for Mr X;
  • Mrs X had been upset by suggestions that she sell the family home to buy alternative accommodation for Mr X;
  • The Council should not charge Mr X for staying at Home J after the six-week assessment period had ended as it had not completed the assessment or proposed a solution; and
  • the Council had proposed no suitable home within its budget of £1000, so it should fund the full cost of Mr X’s care at Home G.
  1. The complaint included a breakdown of how Home G met Mr X’s needs better than Home CL. While it accepted Home CL meet Mr X’s basic physical needs, it had failed to meet the other needs set out in his assessment including:
  • the location made it difficult for Mrs X to visit regularly and the environment was not conducive to visits from his grandchildren;
  • the other residents could not socialise with her father due to their physical and mental disabilities;
  • residents often called out which caused Mr X distress;
  • Mr X was not properly helped with his toileting needs resulting in damp underwear and unclean urine bottles being used;
  • Mr X had to use a board to transfer after showering which made him anxious;
  • there was an incident where Mr X was not fully dressed by lunchtime;
  • Mr X had experienced falls;
  • Mr X’s room had no air conditioning and a lack of ventilation;
  • the food was cold and not nutritious enough;
  • the home smelt of urine; and
  • Mr X was not supported to attend medical appointments or leave the home and was reliant on his family helping him.

For these reasons Mr X was depressed at Home CL and showed little interest in doing things he enjoyed. Since moving to Home G, he had made friends, resumed activities he enjoyed, took part in and organised social events, had enough help with toileting and personal needs and enjoys regular visits from all his family.

  1. The Council did not uphold the complaint. It said it was correct to charge Mr X for his stay at Home J from 22 October onwards and that Home CL met his assessed needs.
  2. In February Ms Y asked Mr X’s social worker about arranging a suitable chair for him at Home G but received no response. The Council advised her in early March it would not fund the cost of a chair as it was the care home’s responsibility to provide it.
  3. Ms Y contacted a charity and liaised with them and the Council’s OT department to fund a suitable chair which he received on 5 August.

Analysis

The Council provided Mr X with an unsuitable respite placement

  1. The case notes show that when Mr X moved into Home J it did not have all the equipment he needed. Therefore, I agree the home was unsuitable for his needs until it was provided. This happened within four days.
  2. Ms Y has provided details of the ways Home J did not meet her father’s needs and says Council officers accepted this in telephone calls. These concerns are not reflected in the case notes provided by the Council, including notes of the telephone calls referred to by Ms Y. There is no record of Mr X asking to move to alternative respite accommodation or of concerns being raised formally at the time.

The Council retrospectively charged Mr X for his placement at Home J for the period 22 October to 30 November

  1. The Council cannot charge for the first six weeks of a placement arranged under the DtA process. Mr X’s placement at Home J began on 10 September. The free period would therefore have ended on 22 October. The Council did not charge Mr X for this period, so I do not find fault up to this point.
  2. The Council says the assessment period ended on 15 October and it did not charge for an extra week. I disagree as the six-week period ended on 22 October.
  3. According to the case notes, the Council told Ms Y it would charge Mr X for respite from 22 October, but she disputes this. The Council told Mr X the same thing on 15 October. The Council was entitled to charge Mr X from 22 October.
  4. The Council says it finished the assessment on 15 October. I do not agree. Firstly, the assessment was not signed off until 18 October and the Council sent it to Mr X the next day. Secondly Mr X had not been provided with a copy of the OT assessment - although I recognise case notes say he had been told of the outcome on the phone. Nevertheless, the substantive assessment and conclusions were known to Mr X and his family by 22 October.
  5. Mr X and his family say the assessment process should only be considered completed once a long-term solution had been found for his care. I do not agree. The assessment process is to determine what a person’s care needs are. The care and support planning process determines how needs should be met. In this case the assessment process had concluded that returning home was not feasible for Mr X.

The Council provided Mr X with a personal budget that was insufficient to purchase care to meet his needs without a top-up being paid

  1. It is contended the Council set Mr X’s personal budget arbitrarily and without reference to the fee charged by suitable care homes in the local area. Case notes do suggest that prior to the completion of Mr X’s care assessment the Council was not minded to provide more than £750 for his care. This was increased to £800 following completion of his assessment, but it is unclear how the Council arrived at these figures. The care notes do not identify any care homes suitable for Mr X and within this budget. I therefore agree the initial budget appears to have been set arbitrarily by the Council.
  2. However, case notes show the Council’s search for a suitable care home for Mr X was not restricted by the initial budget. Homes charging fees from £850 to £1400 per week were considered. So, while it would appear the Council’s initial budgets were set arbitrarily, there is no evidence this delayed or prevented the Council looking for a suitable care home for Mr X.
  3. The case notes show the Council suggested several care homes and listened to Mr X’s and his family’s objections. This resulted in all but one of the homes suggested by the Council being discounted.
  4. Ms Y and Mr X say the Council did not offer any suitable care homes within the agreed £1000 per week budget because it says Home CL did not meet his needs. The Council disagreed and completed a support plan setting out how Home CL would meet his needs. Mr X accepted a move to the home, just while he waited for a place at Home G.
  5. Mr X had several issues while he was resident at home CL and says the Council should now fund the full cost of his placement at Home G. There is a recording of a telephone call from Mr X while he was resident at Home CL. This clearly shows he was distressed by another resident calling out and suggests this often happened. I consider this supports the argument that Home CL may not have met his emotional and psychological needs. Therefore, I doubt Home CL would have been a suitable long-term placement for Mr X.
  6. I accept there were no requests for a review while Mr X was staying at Home CL and the decision to move to Home G had already been made. However, this does not alter the fact the Council’s contention it had offered a suitable placement within Mr X’s budget was not correct. The Council would have had to consider increasing the budget if no other suitable care home could be found within the £1000 budget it had set. So, if Home CL was unsuitable on any of the grounds put forward by them, Mr X’s family had been paying top-up fees when they might not have had to do so.

The Council failed to assist Mr X find a suitable chair

  1. The Council did not provide Mr X with a specialist chair as he had not been assessed as needing one at Home J. Mr X could get into and out of bed with minimal help, mobilise around his room and sit out in his wheelchair for 1 to 2 hours, then rest in bed. If Mr X did not do this it was not down to fault by the Council.
  2. In February 2019 Ms Y sought help from the Council to get a suitable chair. The Council advised her this was the responsibility of the care home. But it helped by providing funding from an alternative source.

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Agreed action

  1. The Council has agreed to review its claim that Home CL met Mr X’s needs. It should ask Ms Y and Mr X to provide details of the incidents Mr X experienced while staying at Home CL and any evidence they have which demonstrates their concerns especially in regard to it meeting Mr X’s mental, psychological and social needs. The Council should set out the reasons for its findings clearly in respect of each of Mr X’s assessed needs. If the Council concludes Home CL would not have met Mr X’s needs, it will fund Mr X’s current placement without top-up fees and reimburse the money spent on them since 28 December 2018.

Final Decision

  1. I have completed the investigation of this complaint, as the Council has agreed to take action to remedy any injustice it has caused.

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Investigator's decision on behalf of the Ombudsman

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