East Sussex County Council (19 000 641)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 05 Nov 2019

The Ombudsman's final decision:

Summary: Mrs C complains on behalf of her parents, Mr and Mrs B. The Ombudsman finds fault with the way the Council responded to a safeguarding concern reported by Mrs C. The delay in its response placed Mr and Mrs B at risk of abuse. The Council was also at fault in the way it communicated with Mrs B and Mrs C about the Client Contribution when Mr and Mrs B temporarily moved into a care home. This caused them unnecessary distress and uncertainty. The Council has agreed actions to remedy the injustice.

The complaint

  1. Mrs C complains on behalf of her parents, Mr and Mrs B. In 2018 Mr and Mrs B temporarily moved into a care home due to a safeguarding concern. Mrs C complains that:
    • The Council did not make the cost of the client contribution clear to Mrs B. She says Mrs B was in a very vulnerable state at the time of the decision and she was not familiar with the care system. Therefore, she did not understand the financial implications of what she agreed to.
    • The Council took too long to complete the work at Mr and Mrs B’s property, which was needed so they could return home safely. As a result, they incurred more cost because they remained in the care home for a longer period.
    • Mrs B agreed to the work at her property, which the Council recommended. But she changed her mind and the work was completed anyway at a cost to Mr and Mrs B.
    • Some of the work was not completed to a satisfactory standard.
    • Mrs C’s brother, Mr D, did not receive an appropriate level of support for his mental health needs and this put Mr and Mrs B at greater risk.
    • The financial assessment did not correctly take into account Mr and Mrs B’s savings and the need for funeral costs.

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What I have investigated

  1. I have investigated the complaint as detailed above. But I have not investigated Mrs C’s complaint about Mr D’s support. This is because Mr D is an adult and can make a complaint in his own right.

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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. 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)
  3. 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)

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How I considered this complaint

  1. During my investigation I:
    • considered the complaint and information proved by Mrs C;
    • made enquiries with the Council and considered the information it provided; and
    • reviewed relevant Legislation, Policy and Guidance.
  2. Mrs C and the Council had opportunity to comment on the draft decision.

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Guidance and legislation

The Care Act

  1. A local authority can choose whether or not to charge a person where it is arranging to meet needs. In the case of a short-term resident in a care home, the local authority has discretion to assess and charge as if the person were having needs met other than by the provision of accommodation in a care home.
  2. Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition.
  3. Local authorities are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people.
  4. Consideration of needs should include the extent to which the needs or a person’s other circumstances may mean that they are at risk of abuse or neglect.
  5. Where an individual has been assessed as lacking capacity to make a particular decision, then the local authority must commence care planning in the person’s best interests. Any restriction must be in the person’s best interests and necessary to prevent harm to the person, and a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.
  6. The safeguarding duties apply to an adult who:
    • has needs for care and support (whether or not the local authority is meeting any of those needs);
    • is experiencing, or at risk of, abuse or neglect; and
    • as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
  7. A local authority must make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by who.
  8. The cross-government definition of domestic violence and abuse is:

‘Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality’.

The abuse can encompass, but is not limited to:

    • psychological
    • sexual
    • financial
    • emotional
  1. If the adult has the capacity to make decisions in this area of their life and declines assistance, this can limit the intervention that organisations can make. The focus should therefore be, on harm reduction. It should not however limit the action that may be required to protect others who are at risk of harm. The potential for ‘undue influence’ will need to be considered if relevant. If the adult is thought to be refusing intervention on the grounds of duress, then action must be taken.

East Sussex County Council (ESCC) policy and procedures

Charging for care and support

  1. The following areas will be considered on an individual basis throughout all stages of the financial assessment:
    • The assessment must meet the requirement of the Mental Capacity Act 2005.
    • Where mental capacity and communication needs are assessed before the financial assessment, third parties such as representatives and interpreters will be involved during the financial assessment, as necessary.
    • If the person lacks capacity, ESCC will find out if the client has an attorney or deputy under any of the following, as the appropriate person will need to be involved.
  2. ESCC will complete a financial assessment to calculate the amount a person will be required to contribute towards their care. The contribution is dependent on their annual personal budget / care package and the outcome of the financial assessment.
  3. Where a person is residing in a care home temporarily and is part of a couple – whether married or unmarried – ESCC may take the financial needs of the partner left at home into account and certain housing costs may be considered in the assessment.

Safeguarding adults’ procedures

  1. When the local authority receives a safeguarding concern it will initially check if any action is required to address immediate risks, for example by contacting emergency services if there is an imminent serious or life threatening risk to the adult or others.
  2. If the information received gives the local authority reasonable cause to suspect that these three key tests are met (see paragraph 13), then the duty to enquire is triggered.
  3. If the information received is not sufficient to enable the local authority to make a reasonable judgement as to whether the duty is triggered, then it may seek further information until there is sufficient information to make a decision.
  4. Once the duty to enquire is triggered any following actions undertaken are taken under Section 42 of the Care Act 2014. An enquiry must take into account the adult’s views as to what actions, if any, they wish to happen as part of the enquiry.
  5. Where there is risk of abuse or neglect, prompt action must be taken to ensure an effective response to the concern. The principle of ‘no delay’ emphasises that enquiries must be conducted in a timely way, and one which is proportionate to the presenting level of risk.

Ombudsman report

  1. In 2015 the Ombudsman issued a Focus Report ‘Counting the cost of care: the council’s role in informing public choices about care homes’. In this report we advised councils:
    • Information should be given in writing at the earliest opportunity so people can make informed decisions.
    • Sometimes people have to rely on information provided by the council over the telephone or in meetings; but people cannot be expected to remember everything they are told at what is often a very stressful time.

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What I found

What happened

  1. This is a chronology of key events from the period of time I investigated. It does not contain details of everything I reviewed.
  2. Mr and Mrs B were living at home with their adult son, Mr D. Mr D is an alcoholic and has a diagnosis of schizophrenia. He had always lived with his parents and depended on them for both financial and emotional support. Mr B has Dementia and required full time care from his wife. Mrs B had serious health issues.
  3. In January 2018 Mrs C contacted the Council with concerns about her parents because of Mr D and the risk he posed to them when he had been drinking. The Council agreed to carry out a visit and assessment.
  4. In February 2018 Mr D was arrested at the home address. Mrs B contacted the Council because she was concerned about him returning home and requested support to get Mr D rehoused. She was advised to contact the housing team.
  5. The Council completed an updated carers assessment for Mrs B in respect of Mr B and Mr D. However, Mrs B declined any support and the assessment did not find any change from the previous assessment in 2017.
  6. Around this time there were concerns raised by other professionals including; the GP, Mental Health Service and EDS (Emergency Duty Service), who were also concerned about the risk posed to Mr and Mrs B by Mr D. Mrs B left the house on two occasions and stayed with Mrs C because she was scared of Mr D.
  7. In March 2018 Mrs C contacted the Council again, frustrated that she had not received an update and she did not feel like there was anything being done to protect her parents. Following this conversation a Section 42 safeguarding referral was made to the local Neighbourhood Support Team.
  8. Police were called to the house again in late March and Mr D was arrested for being abusive to Mr and Mrs B, whilst under the influence of alcohol. The Section 42 planning meeting was held the same day and the safeguarding enquiry was closed with a review meeting scheduled for two months. The case was referred to MARAC (Multi Agency Risk Assessment Conference).
  9. The case was discussed at MARAC in April 2018 and the Council were given an action to conduct a professionals meeting to manage the risks. A safety plan was produced and sent to the Police and Mrs C. Mrs C declined to attend the review meeting because Mr D would be present.
  10. A further incident occurred in late April when the Council reported to the Police that Mr and Mrs B had left when Mr D was intoxicated because they were too scared to stay in the house.
  11. In May 2018 the Council completed a core assessment for Mr B and Mr D and a carers assessment for Mrs B. The assessments of Mrs B and Mr D took place at the house on the same day. Mrs B declined any support for her care needs. On the same evening Mr D was arrested at the house again, this time for a Breach of the Peace.
  12. Mrs B contacted the Police in early June 2018 because Mr D was intoxicated and was being aggressive, she was frightened and thought he might harm her. The Police arrested Mr D.
  13. There is a gap in case recording for over a month between July and August 2018. A call from the Family Support Worker raising the same safeguarding concerns the Council were already aware of triggered a visit to the address. Mrs B did not allow the Officer to enter the house. The case notes record she said it would be better for her to meet away from the house where she could talk more easily.
  14. At the beginning of September 2018 there was a further professional review meeting. The meeting recommended the case remain open as safeguarding. Mr D was still living at the property.
  15. In mid-September Mrs C contacted the Council again to report further concerns for her parents safety because of Mr D’s drinking and declining mental health. The Council contacted Mrs B and case recording indicates the Officer felt that Mrs B was exhausted and reaching crisis point. The Officer suggested Mrs B could change the locks and request Mr D leaves the house. This is the first record of a conversation about temporary respite care in a care home. The case note says:

“it may be funding could be provided for Mr B but she (Mrs B) may have to fund her own placement, she advised this would be okay. I advised, because she had no care needs, it may be that the cost could be negotiated”.

  1. The case notes show the Council were strongly advocating to Mrs B that she needed to go into temporary respite in a care home and this was in their (Mr and Mrs B’s) best interests. There is a record that they discussed a couple of suitable care homes and agreed to support Mrs B to visit the preferred option. This visit took place within a couple of days. Case recording on the day of the visit says:

“a financial charge was mentioned and Mrs B was aware of this. We could not give her exact figures at this time, however, she is happy to pay a charge”.

  1. The following day Mrs B asked to go to the care home because she was too scared to stay in the house with Mr D. Mr B refused to go with her. Two days later the Council attended the house and found Mr B and Mr D drinking alcohol. They were concerned for Mr B’s safety and persuaded him to leave with them. They took him to the care home, where Mrs B had remained. The emergency residential respite service was arranged and agreed for four weeks and was due to finish at the end of October. The Council’s intention was that Mr D would leave the property and safety measures would be put in place at the house for Mr and Mrs B to return home.
  2. A week later Mrs B was admitted to hospital. The Officer visited her and recorded:

“Mrs B mentioned she was worried about the cost of contribution and told me that they had under the savings threshold. I advised Mrs B I would ensure that a referral is made to FABS (financial assessment)”.

The referral was made later that day.

  1. Nine days after Mr B went into the care home a Mental Capacity Act assessment was completed by a Senior Practitioner. The assessment found Mr B lacked capacity and the admission into the care home for respite was in his best interests, given the risks presented to Mr B. The assessment also says:

“there was an incident when Mr D and Mr B were drinking together and Mr B broke his arm when Mr D pushed him”.

  1. A note in the records refers to a conversation with the care home and says:

“they (care home) confirmed Mr and Mrs B were funded for a four-week period of respite”.

  1. There is a case recording later in October 2018 when Mr D moved out of the property and Mrs B agreed to have the locks changed. The record on this date also says:

“We spoke about the fees for the stay at the care home and advised her again of the minimum (£132 approx.) charge per week. Finance to complete their assessment to establish actual charge for both Mr and Mrs B”.

And:

“Mrs C asked what the CC (client contribution) was, advised £138 approx., she advised that her parents were told respite would be fully funded for four weeks”

  1. The Best Interests meeting for Mr B was held at the end of October 2018. Mrs B, Mrs C and Mr D were present. The Council recommended the locks were changed and a fence panel fitted to prevent access to the back of the property. It said Mr B could return home with Mrs B once all the agreed safety measures were put in place.
  2. The financial assessment was delayed because Mrs C rearranged the appointed. This caused a two-week delay.
  3. It took two weeks from the Best Interests meeting for the Council to co-ordinate the work required at the house so it was safe for Mr and Mrs B to return home. The delay was due to finding a suitable contractor to fit the fence panel. The Council arranged this at the request of the family. Mrs C contacted the Council the day the fence panel was installed to express concern about the cost.
  4. The financial assessment outcome letter was sent to Mr and Mrs B in November 2018. Mrs B contacted the Council to say that if she had been properly informed of the Client Contribution (CC) she would not have agreed to go into the care home.
  5. There was an outcome meeting held in January 2019 and the safeguarding enquiries were closed.
  6. Mrs B sadly passed away in hospital at the end of March 2019. Mr B returned to the care home, where he remains.

The Council’s response

  1. In response to my enquiries the Council says:
    • Mrs C contacted the Council in March 2018 with concerns about her brother, Mr D, being physically and verbally aggressive towards her parents. As a result safeguarding enquiries under section 42 of the care Act 2014 were instigated, which ended in January 2019.
    • It acknowledges Mrs B was facing a challenging situation, which was compounded her own health issues. Due to this the Council was careful to ensure that Mrs B understood she would have to pay a client contribution towards her care costs.
    • It ensured a final assessment referral was completed as soon as possible to provide Mrs B with answers to her queries as soon as possible.
    • Mr and Mrs B’s assessed contributions were based on income only. The capital for both of them was under £14 250 and was, therefore, disregarded from the financial assessment. The bills they received should have been covered from income only and have no impact on their savings.
    • A Mental Capacity Assessment for Mr B was completed in September 2018 in relation to respite care. He was assessed as not having capacity and a best interests decision was made. This was updated in October 2018 to assess capacity for permanent care arrangements and a best interests meeting was held at the end of October 2018.
    • Mrs B asked the Council to wait until the Best Interests meeting at the end of October before she made a decision about the changing the locks. It was agreed at this meeting the locks would be changed and the fence made secure. The Council made concerted efforts to ensure the fence panels were erected as swiftly as possible.
    • The Council worked in partnership with Mrs B, who was acting as Mr B’s representative, to achieve the outcomes and safety measures they wanted at a pace they felt comfortable with. Mr and Mrs B’s safety was assured by the measures taken.
    • At the end of November 2018 Mrs C made the Council aware she was dissatisfied with the way the fence had been installed at Mr and Mrs B’s property. She contacted the Council again in February 2019 because no action had been taken. The Council contacted the service that installed the fence and staff attended and secured the fence in March 2019.
    • The Council apologised for the delay in contacting the service and agreed to make arrangements to pay the £100 outstanding invoice.

My finding’s

Client Contribution (CC)

  1. Mrs C says the Council told Mrs B the cost of the temporary stay in the care home would be funded. She says her mother was not told there would be a CC or how much this would be. The Council says Mrs B was fully aware she would have to pay a CC and she had agreed to this.
  2. I can see there were several occasions when the CC was discussed with Mrs B and the records indicate she agreed to this. However, I can see no evidence that any of these discussions were followed up or confirmed in writing. Mr and Mrs B went into the care home at the end of September and beginning of October 2018. The first written communication I can see in relation to the CC was the financial assessment outcome letter in mid-November 2018.
  3. The care home placement was arranged very quickly in a crisis situation; however the Council should have ensured Mrs B understood the financial implications. There is evidence Officers were concerned about Mrs B’s ability to understand and remember all the information she was being given, due to the difficult circumstances:

‘it’s my opinion she (Mrs B) is becoming a little overwhelmed with all the ASC (Adult Social care) input, advice and information sharing and not entirely sure she is taking all the information on board’.

  1. I find fault with the way the Council informed Mrs B of the CC for their care. It should have provided written confirmation and information, in addition to the conversations it had with Mrs B. This would have provided a clear record and could have avoided the subsequent confusion about what Mrs B had been told. I do not consider that Mr or Mrs B suffered a financial loss as a result of this fault. The Council had to take action to ensure the safety of Mr and Mrs B, whilst also meeting their care needs. Most of the CC was incurred by Mr B and his care needs were best met by providing temporary respite in the care home. Therefore, whether the Council had been able to give Mrs B a figure for the CC or not, it is likely Mr B would have still ended up in the care home. However, Mrs B did experience uncertainty about the CC over several weeks and this caused her distress, which was avoidable.
  2. I do not find fault with the way the Council carried out Mr and Mrs B financial assessments. There was a delay, but this was partly due to Mrs C and Mrs B rearranging the appointment. The documentation provided by the Council demonstrates they did properly consider Mr and Mrs B’s capital in the assessment.

Safeguarding

  1. In its response to my enquiries the Council says Mrs C made contact in March 2018 with concerns about her parents because of her brother, Mr D. It says that as a result it instigated safeguarding enquiries under section 42 of the Care Act 2014.
  2. In fact, Mrs C contacted the Council in January 2018 about her concerns for her parents because of Mr D. The records show Mrs C contacted the Council on several occasions in January and February with increasing concerns about the safety of her parents. She told an Officer that her mother was unlikely to ‘open up’ in the assessment if it took place with Mr D in the house. During this time Mr D was arrested at the house and concerns were also reported by the GP and Police.
  3. It was over two months until the Council instigated the section 42 safeguarding enquires and convened a multi-agency meeting. This is fault. The Care Act 2014 is clear when councils have a duty to undertake a safeguarding enquiry and in this case the Council failed to do so when Mrs C first reported her concerns. The delay in initiating the enquiry and taking safeguarding action meant that Mr and Mrs B remained in a situation where they were both at risk of abuse. This is injustice. The records indicate there were incidents during this period where Mrs B left the property through fear of Mr D. I can also see that Mrs C suffered frustration and distress from what she perceived as a lack of action from the Council in response to her concerns.
  4. In February 2018 Mrs B contacted the Council for help when Mr D was in custody. This was an opportunity for the Council to intervene and take action to safeguard Mrs B whilst Mr D away from the address. It did not take any action to support Mrs B and directed Mrs B to another department. This was a missed opportunity and meant that Mr D returned to the house when he was released from custody. This is fault and meant that Mr D returned to the house and Mr and Mrs B continued to be exposed to further risk of abuse.
  5. I was concerned by some of the Councils actions during the safeguarding enquiry and feel they demonstrate a lack of understanding of inter-familial domestic abuse. The Council did not give proper consideration to the effect that Mr D’s presence gave to Mrs B’s ability to freely discuss her situation.
  6. On balance I think if the Council had acted more swiftly in response to Mrs C’s concerns it would have moved Mr and Mrs B out of the house and addressed the safeguarding concerns to enable them to return home earlier. Mrs C suffered an extended period of distress when she felt the Council was not taking action to safeguard her parents. This is injustice.

Other matters

  1. Mrs C says Mrs B reluctantly agreed to the proposed safety measures and then changed her mind, but the work had already been carried out and she was charged for this. Mrs B agreed to the safety measures in the Best Interests meeting. Mrs B asked the Council to arrange for or the work to be carried out and she was aware she would have to pay the cost. There was a delay installing the fence and it required further work to ensure it was properly secure. I do not consider either of these to be due to fault by the Council. In response to my enquiries the Council has apologised to Mrs C for a delay in responding to her concerns about the fence. It has offered to pay the £100 invoice for this work in recognition of this.

Agreed action

  1. Within four weeks of my final decision the Council will:
    • Pay the outstanding invoice for the fence.
    • Apologise to Mrs C for the distress it caused by the delay in response to her concerns and pay her £250 in recognition of this.
  2. Within twelve weeks of my decision the Council will:
    • Review safeguarding adult procedures and consider if there is sufficient guidance for staff on Domestic Abuse.
    • Take action, by training or other means, to improve Adult Social Care staff’s knowledge and awareness of inter-familial domestic abuse.
    • Share the learning from this case with relevant Officers and demonstrate what it has done to improve its practice in this area.
    • Review procedures to ensure it provides written details of what charges are likely to be made for care home placements.

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Final decision

  1. I find fault with the way the Council responded to a safeguarding concern Mrs C reported. I also find fault with the way the Council communicated with the family about Client Contributions. This caused Mrs B and Mrs C distress and uncertainty and placed Mr and Mrs B at risk of abuse. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman

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