Summary: The Ombudsman found fault by the Council with regards to how it explained the charging process for respite care to the family of a woman with mental health problems. However, The Ombudsman is satisfied this did not result in a significant injustice to the woman or her family.

The complaint

1. The complainant, who I will call Mr X, is complaining about the care provided to his mother, Mrs Y, by Durham County Council (the Council).
2. Mr X complains that the Council failed to properly discuss care options and charging implications with the family before placing Mrs Y in respite care. Mr X says the Council did not give the family the opportunity to explore alternatives to residential care and did not explain what assessments would be needed to determine Mrs Y’s long-term care needs. Mr X says there was no clear process in place and that the situation was exacerbated as the Council delayed in allocating a social worker to the case.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. In making this final decision, I considered information provided by Mr X and discussed the complaint with him. I also considered comments and documentation from the Council.
6. In addition, I invited comments from Mr X and the Council on my draft decision. The Council accepted my draft findings. I received no response from Mr X.

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What I found

Relevant legislation and guidance

Care Act 2014

7. The Care Act 2014 (the Act) is the legislation that sets out local authorities’ powers and duties in respect of adult social care services. The Department of Health and Social Care also produces statutory supplemental guidance for local authorities on how to discharge these duties. This is called the Care and support statutory guidance (the statutory guidance).
8. Section 14 of the Act gives a local authority the power, with certain exceptions, to charge for care and support it arranges to meet an adult’s needs.
9. Section 17 of the Act explains that, where a local authority decides to charge for care and support, it must assess the adult’s financial resources to calculate the amount (if any) the adult would be likely to be able to contribute towards the cost of the care and support.
10. In carrying out a financial assessment, the local authority must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Charging Regulations). The Charging Regulations set out how local authorities should treat an adult’s income and capital for the purposes of calculating care contributions.

Key facts

11. Mrs Y has a diagnosis of dementia, for which she takes medication. At the time of the events Mr X is complaining about, Mrs Y was living at home with her husband, Mr Y, who acted as her main carer. Mrs Y also received support from her daughter, Ms B. Mr Y and Ms B supported Mrs Y to take her medication.
12. Mrs Y was also under the care of the Mental Health Services for Older People (MHSOP) team from the local Mental Health Trust. This included regular visits from a Community Psychiatric Nurse (CPN).
13. On 11 January 2019, the CPN made a referral for Mrs Y to the Council for an assessment of her social care needs.
14. On 7 February, the CPN visited Mrs Y again. She later told the Council Mrs Y’s behaviour was becoming more challenging and that Mr Y was struggling to cope.
15. The following day a social worker and the CPN carried out a joint visit. They spoke to Mr and Mrs Y and Ms B and discussed the possibility of a respite placement.
16. Mrs Y subsequently moved to a temporary respite placement at a care home on 11 February.
17. On 7 March, a social worker reviewed Mrs Y’s social care needs. Mr X and other members of the family were also present. The social worker said Mrs Y may need 24-hour residential care. However, the family was keen for an Occupational Therapist (OT) to first review Mr and Mrs Y’s property.
18. The OT review took place on 30 April. The review found Mrs Y would be unable to return home safely as Mr Y’s own frailty meant he would be unable to provide the support Mrs Y needed. The family agreed Mrs Y’s care needs could best be met in residential care.
19. The Council completed a financial assessment on 10 May with input from Mr X.

Analysis

Respite care

20. Mr X complained that Council officers failed to discuss alternative care options with the family. He said the Council did not make clear what further assessments would need to be undertaken to determine Mrs Y’s long-term care needs.
21. The Council acknowledged there was no evidence in the records to show other care options were discussed. However, it said the notes showed Mrs Y was unwilling to have strangers in her home.
22. The case records show a Council officer spoke to Ms B by telephone on 10 January 2019. The officer noted Ms B felt Mrs Y’s behaviour was becoming challenging and that she seemed increasingly confused. Ms B told the officer that Mrs Y had also been hiding her medication. The officer recorded that “[Mrs Y] is a[n] ex nurse and is very challenging. She won’t allow professionals near her and can be verbally aggressive with strangers.” Ms B also told the officer that Mrs Y’s GP had mentioned the possibility of Mrs Y entering a respite placement, but that Mrs Y had been unwilling to do so.
23. On 7 February, an officer in the duty team spoke to Mrs Y’s CPN. The CPN explained that she had visited Mrs Y that day and had concerns about Mr Y’s ability to care for her. The officer recorded that “[the CPN] feels there are high concerns and respite care will be required.” The officer queried whether Mrs Y’s deteriorating mental health would warrant admission to a mental health inpatient unit for further assessment. The CPN agreed to discuss this with Mrs Y’s consultant in the MHSOP.
24. The CPN contacted the duty team later that day to advise that Mrs Y’s consultant did not feel she required hospital admission. As a result, a joint visit was arranged for the following day.
25. On 8 February, a social worker from the duty team visited Mr and Mrs Y at their home. Along with Mrs Y’s CPN. Ms B was also present. The social worker spoke to Ms B and noted “[Ms B] advises that her mother has always been wary of strangers and will not allow people she does not know into her home, this was evident as [Mrs Y] was not very happy that I was there and she did not know me.” The social worker noted “discussed respite placement to allow for [further] assessment.” Ms B explained that she would need to discuss this with Mr Y over the weekend as he was initially reluctant to proceed with a respite placement.
26. The social worker also completed a capacity assessment for Mrs Y during this visit. She concluded Mrs Y did not have capacity to make decisions regarding her accommodation or care and support needs.
27. On 11 February, another duty officer spoke to Ms B. She noted that “[i]t was agreed that [Mrs Y] would be going to [the care home] for [respite]. Daughter will transport”. Ms B took Mrs Y to the care home later that day.
28. I share the Council’s view that the case records contain no specific note of discussions with Mrs Y’s family about possible care options. Nevertheless, in my view, the evidence in the records show the professionals involved in Mrs Y’s care did consider other options.
29. The professionals involved in Mrs Y’s care felt the situation at that time was unsustainable. This was primarily due to Mrs Y’s deteriorating mental health and the fact that both Ms B and Mr Y appeared to be struggling to cope with the increased demand this placed on them. All professionals involved appear to have agreed that Mrs Y was at risk.
30. One possibility was for domiciliary carers to support Mrs Y at home pending further assessment of her long-term care needs. However, both Ms B and the professionals involved in Mrs Y’s care felt she would be unwilling to have carers in her home. As a result, the Council discounted this as a care option for Mrs Y.
31. The Council also explored admission to a mental health unit as a possibility. However, local mental health services concluded Mrs Y did not meet the criteria for admission.
32. This left a period of respite care as the most suitable support option. The case records make clear that Ms B was keen to discuss this with Mr Y and the family before agreeing to a placement. Nevertheless, Ms B ultimately agreed to the placement and transported Mrs Y there on 11 February.
33. This allowed care home staff and Council officers to monitor Mrs Y’s mental and physical health in a safe place.
34. Taking everything into account, I am satisfied Council officers considered various care options for Mrs Y before deciding upon respite care as the most suitable option. I found no evidence to suggest Ms B or other members of the family objected to the proposed placement or suggested alternative options. I found no fault by the Council in this matter.

Charges

35. Mr X complained that Council officers failed to make clear that Mrs Y’s respite care would incur a charge.
36. The Council said an officer spoke to Ms B on 11 February and made her aware of its charging policy. The Council said its finance team had also written to Mr and Mrs Y’s daughter on 19 February explaining it would need to undertake a financial assessment to calculate Mrs Y’s contribution to her care costs and enclosing a charging factsheet. The Council said a social worker discussed the issue of charging with the family again during the review on 7 March. The Council said it would not ordinarily compile a written agreement when agreeing a respite placement.
37. The Care Act gives local authorities the power to charge for care and support services it provides to meet an adult’s eligible needs. This includes residential respite care. If a local authority chooses to charge an adult, it must complete a financial assessment in accordance with the Charging Regulations.
38. The Charging Regulations set an upper capital limit of £23,250. If a financial assessment finds an adult with eligible care and support needs has capital or assets over this limit, that person is considered a self-funder. This means the adult is required to pay the full cost of his or her care and support.
39. The Council’s financial assessment for Mrs Y found she had capital above the upper capital limit and was therefore considered a self-funder. On this basis, I am satisfied the Council’s decision to charge Mrs Y for her care and support was made in accordance with the Care Act and Charging Regulations. I find no fault by the Council on this point.
40. The first reference I identified to charging in the case records was when a social worker spoke to Ms B on 11 February, the day Mrs Y moved into the care home. In her note of the conversation, the social worker noted “daughter aware of charging”.
41. This appears to show that Council officers did discuss charging with Ms B prior to Mrs Y moving to the care home. However, in his representations to the Ombudsman, Mr X says Ms B has no recollection of this discussion.
42. This means we are presented with two different accounts of what was discussed. In the absence of any independent corroborating evidence to support either account, I am unable to establish exactly what information the social worker shared with Ms B.
43. In any case, there is evidence to show Ms B remained confused about whether the placement would be chargeable. This is reflected in the notes of the conversation on 19 February between Ms B and an officer from the finance team. The finance officer contacted Ms B to arrange a financial assessment. She noted “advised of requirement for [financial assessment] appointment. [Ms B] thought the respite care was free. Confirmed this is not the case and it is means tested.”
44. On the same day, the Council’s finance team wrote to Ms B to explain the financial assessment process and enclosed a copy of its ‘Charging for residential and nursing care’ factsheet. This factsheet explains the financial assessment process.
45. This shows Council officers had, by 19 February, made clear to the family the placement would be chargeable. This was further confirmed at the care review meeting on 7 March.
46. In my view, the Council could have done more to prevent the confusion around care charges in this case. In particular, the social worker should have explained the charging process during the visit on 8 February when the she first discussed the possibility of a respite placement. This also represented an opportunity to provide the family with written information (including relevant factsheets) about care charges and the financial assessment process. I found no evidence that she did so. This was fault.
47. Nevertheless, I am not persuaded this significantly affected the outcome of Mrs Y’s care.
48. The evidence I have seen suggests both Ms B and Mr Y were struggling to cope with Mrs Y’s challenging behaviour and that she could not be safely cared for at home. This was subsequently confirmed by the OT assessment in April 2019.
49. In addition, the records show the professionals involved in Mrs Y’s care considered other support options (such as a package of home care or admission to a mental health unit) but concluded these would not be suitable for her.
50. In the circumstances, I consider a respite placement to have been the only suitable support option open to Mrs Y and her family. This makes it likely, on balance of probabilities, that Mrs Y’s family would have agreed to the placement even if they had understood from the outset that it would be chargeable.

Social worker allocation

51. Mr X complained that the Council delayed in allocating Mrs Y a social worker.
52. The Council said it had allocated the case to a social worker on 11 January, but that the allocated officer was subsequently unavailable to work. The Council said the duty team handled Mrs Y’s case until it was reallocated on 25 February.
53. The evidence shows there was a delay of around six weeks before the case was reallocated. However, Mrs Y’s case was handled by the Council’s duty team during this period.
54. As I have explained above, I do find fault with the actions of one social worker within the duty team in respect of the visit of 8 February.
55. I also acknowledge that Mr X and his family would have preferred to discuss Mrs Y’s case with one allocated social worker, rather than several members of the duty team.
56. However, I found no evidence in the case records of any other significant omissions or delays in the handling of the case by the duty officers. In my view, the evidence shows Mrs Y was not disadvantaged by the delay in reallocating her case. I found no fault by the Council in this matter.

Case records

57. In his correspondence with the Ombudsmen, Mr X complained that the social workers involved in Mrs Y’s case destroyed their handwritten notes as soon as they had entered these onto the Council’s electronic case system. Mr X also complained that the records contained inaccuracies.
58. At the time of the events Mr X is complaining about, social workers in England were regulated by the Health and Care Professions Council (the HCPC). The HCPC published ten standards setting out key expectations for social workers in terms of professional conduct and performance. Standard 10 (‘Keep records of your work’) states that social workers must keep full, clear and accurate records and that these must be completed promptly.
59. The case records maintained by the officers involved in Mrs Y’s care appear to have been made contemporaneously and entered onto the Council’s electronic system promptly. There was no requirement for the officers to retain copies of their handwritten notes. Rather, the Council’s electronic system represents a full case record.
60. In my view, the electronic case notes provide a clear record of officers’ actions in respect of Mrs Y’s case. I found no fault by the Council in this regard, albeit I accept the family’s recollections of what was discussed did not always match what was recorded by the officers involved.
61. In his complaint, Mr X also highlighted a number of factual inaccuracies in the case records. Mr X pointed out that officers twice (once in the case notes and once in an undated care plan) referred to Mrs Y by another name. He said this suggested some entries in the records had been cut and pasted from the records of other service users. In addition, he said the names of other family members and Mrs Y’s consultant were spelled incorrectly.
62. I reviewed the case records and identified several of the errors Mr X referred to in his complaint. The HCPC standards emphasise the importance of maintaining accurate records. There is evidence to support Mr X’s complaint that officers failed to keep accurate records in this case. This was fault.
63. However, these errors were, in my view, relatively minor in nature. I am satisfied the case records show Council officers carried out a clear and thorough consideration of Mrs Y’s ongoing care needs in accordance with the requirements of the Care Act.
64. For this reason, I do not consider the inaccuracies in the records caused Mrs Y a significant injustice.

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Final decision

65. I found fault by the Council with regards to the information it provided to Mr X and his family about the care charging process and the accuracy of its records.
66. However, I am satisfied the fault I identified did not result in a significant injustice for Mrs Y and her family.
67. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman