The Ombudsman's final decision:
Summary: The Council was at fault for delaying in carrying out an assessment of Mrs Y and for the care she received at the care home. This resulted in it taking longer to establish Mrs Y’s care needs and uncertainty for her family concerning the level of care she received. The Council has agreed to remedy the injustice caused.
- Mrs X complains about the following on behalf of her deceased mother in law, Mrs Y:
- The Council delayed in carrying out a social care assessment for Mrs Y.
- The level of care Mrs Y received when she moved into a care home from hospital.
- The Council was inconsistent with its invoicing and did not properly inform the family about the care home charges.
- The family were not kept updated following the closure of the care home due to a flu outbreak.
- The Council has accused her of being vexatious.
The Ombudsman’s role and powers
- 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)
- We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
- 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)
How I considered this complaint
- As part of this investigation I considered the complaint made by Mrs Y’s family and the responses from the Council. I discussed the complaint over the telephone with Mrs X. I made enquiries to the Council and considered the information I received in response. I sent a draft of this decision to Mrs X and the Council and considered comments received in response.
What I found
Law and guidance
- The Mental Capacity Act 2005 is the legal framework for acting and making decisions for people who lack the mental capacity to do so themselves. The Act and the Code of Practice 2007 describe the steps a person should take when dealing with someone who may lack capacity. They describe when a person’s capacity to make a decision should be assessed, how to do this, and how to make a decision on behalf of somebody who is unable to make a decision themselves.
- A council must assess someone’s ability to make a decision, when a person’s capacity is in doubt. The action needed to assess capacity may vary depending on the complexity of the decision.
- A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.
- The Care Act 2014 requires councils to provide or arrange to provide services, facilities or resources which help prevent, reduce or delay the need for support for adults and/or their carers. (Care Act 2014, section 2)
- A council must carry out an assessment for any adult with an appearance of need for care and support (an assessment of need). The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, sections 9 and 10)
- An assessment of need should be carried out over an appropriate and reasonable timescale considering the urgency of needs. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
- Councils are entitled to charge people towards the cost of a care home placement. A council completes a financial assessment applying charging rules in regulations and guidance to determine how much a person has to pay towards the costs of their residential care. People who have over £23,250 of capital are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees. (The Care and Support (Charging and Assessment of Resources) Regulations 2014; Care and Support Statutory Guidance 2014 (CSSG))
- In November 2019 Mrs Y suffered a fall and was admitted to hospital with a suspected head injury. She suffered with dementia.
- The hospital social worker carried out an assessment of Mrs Y and the outcome was to move Mrs Y into a flexi-bed at a care home so the Council could assess her needs. The social worker told Mrs Y’s family the flexi-bed would be free of charge for four weeks. When the hospital social worker met with Mrs Y’s family she asked for information about Mrs Y’s finances so the Council could work out whether Mrs Y had to pay any contribution towards her care. Mrs Y’s family did not wish to discuss financial information at this time and said they wanted to focus on Mrs Y’s care needs.
- On 21 November 2019 Mrs Y moved into a care home which cared for residents suffering from dementia. The hospital social worker carried out a best interests assessment of Mrs Y as she lacked capacity to consent to an assessment bed. The best interests assessment concluded Mrs Y should go into a flexi-bed at the care home so the Council could assess her care needs going forward.
- In early December 2019 the Council allocated Mrs Y a social worker to carry out the assessment of her social care needs. The care home produced a flexi-bed assessment shortly after recommending Mrs Y needs to have residential care.
- On 16 December 2019 the social worker met with Mrs Y’s family at the care home to start the social care assessment. The social worker intended to carry out a full mental capacity assessment of Mrs Y on 17 December 2019 but decided to postpone this as Mrs Y was suffering from a urinary infection. The notes from this meeting show the social worker told the family the service would become chargeable and the Council would need to complete a financial assessment to work out what Mrs Y’s contribution should be, otherwise she would have to pay the full cost.
- On 30 December 2019 the finance team at the Council spoke to Mrs Y’s son over the telephone. The notes from the call show the Council told Mrs Y’s son that Mrs Y’s stay in the care home would become chargeable as the four week period was ending. The notes also show the Council told Mrs Y’s son the nightly rate for the care home.
- Between the 3 and 17 January 2020 the care home closed due to an outbreak of flu. The social worker spoke with Mrs Y’s family on 16 January 2020 to say he could not complete her social care assessment while the care home was closed.
- After the care home re-opened on 18 January 2020 the social worker completed a mental capacity assessment on 22 January 2020 and decided Mrs Y lacked capacity to make decisions about her care. The social worker told the family this decision and said the likely outcome of the care assessment would be permanent residential care for Mrs Y.
- Mrs Y’s social worker suffered an accident at the end of January 2020 and was unable to attend work. The Council allocated Mrs Y another social worker on 18 February 2020.
- On 26 February 2020 the Council’s social worker visited Mrs Y and the family at the care home to complete the social care assessment. The family told the social worker they were moving Mrs Y to another care home as a self-funder. The social worker confirmed she would send the completed assessment to the new care home.
- On 2 March 2020 Mrs Y moved to another care home as a private funder. The Council completed Mrs Y’s social care assessment and sent this to the new care home on 25 March 2020.
Mrs X’s complaint
- On 24 February 2020 Mrs Y’s family raised a complaint to the Council about the care Mrs Y was receiving at the care home. They said:
- The Council has delayed in assessing Mrs Y.
- The care Mrs Y has received after Christmas has been poor. She has been left in urine and faeces.
- There are men on a different wing who were roaming around the care home and using aggressive language.
- Mrs Y’s glasses have gone missing.
- Care home staff sometimes observed Mrs Y urinating in her bin.
- The resident the family raised concerns about had a good relationship with Mrs Y.
- The Council disputed a member of the care home staff had been locked in a room following feedback from a manager at the care home.
- The family reported their concerns to staff at the care home when they visited. This included another resident urinating in Mrs Y’s bin.
- On one occasion the family observed staff clean urine off the floor of Mrs Y’s room using a face cloth and using no disinfectant.
- Mrs Y’s glasses and some clothes went missing during her stay at the care home.
- The family wanted the Council to address their concerns as an official complaint.
- The level of charges for Mrs Y’s time at the care home.
- The lack of information the family received about charges.
- The number of social workers Mrs Y had.
- The family were not updated when the care home re-opened after the flu outbreak.
- The Council sent an invoice to Mrs Y instead of her son’s who have power of attorney.
- There was a partial delay in completing Mrs Y’s social care assessment due to her suffering a urine infection and a flu outbreak at the care home. This was beyond the Council’s control.
- Mrs Y would often decline assistance from care home staff and it would take time for her to accept help. Sometimes Mrs Y would try to complete tasks unsuccessfully. The Council apologised for a staff member not cleaning urine off the floor of Mrs Y’s room properly.
- Care home staff are trained to deal with adverse behaviours from residents.
- Mrs Y’s family must have known the visiting ban on the care home was lifted after as they visited Mrs Y the next day.
- The care home said its records show Mrs Y’s glasses were never sent to it from the hospital.
- It upholds the complaint about another resident locking a member of care home staff in a room and concedes this happened.
- Apologised for addressing the letter/invoice to Mrs Y and not her sons.
- It gave the family information about charging.
- It has agreed to waive care home charges for the time of the flu outbreak (15 days £1,119.45). The Council did not agree to remove cost of Mrs Y’s glasses and for delays in carrying out a social care assessment. The Council confirmed the outstanding amount due was £2,131.53.
- It could not carry out the social care assessment sooner due to circumstances outside of its control.
- The family knew when the care home re-opened as they visited Mrs Y.
- The hospital did not send an inventory to the care home with Mrs Y’s personal items. The care home booking from did not show Mrs Y had glasses with her when she moved in.
- It apologised for sending an incorrect invoice but could not write the charges off.
Complaint a.) The Council delayed in carrying out a Social Care assessment for Mrs Y
- The Council was at fault for delaying in carrying out Mrs Y’s social care assessment. Mrs Y moved into the care home on 21 November 2019 but the social care assessment was not completed until 25 March 2020.
- The Council’s position is that events outside of its control caused the delays such as Mrs Y having a urinary infection and the care home closing for 15 days in January 2020 because of a flu outbreak. While I recognise these events did contribute to the delay, I am satisfied there was further delays once the care home re-opened on 18 January 2020. The case notes show the social worker had nearly completed the assessment before the care home closed on 3 January 2020 and needed to complete a metal capacity assessment. At this time the care home had already provided the Council with its flexi-bed assessment recommending residential care.
- When the care home re-opened the social worker carried out a mental capacity assessment on 23 January 2020. I recognise the social worker then suffered an accident and could not attend work, but it took nearly three weeks for the Council to allocate Mrs Y to a different social worker. Once the Council allocated Mrs Y a different social worker it took until 25 March 2020 to send out the social care assessment.
- Had the Council not delayed in carrying out the social care assessment, Mrs Y’s family would have been able to know what her social care needs were and how best they could be met sooner. It was clear Mrs Y’s family were not happy with the care at the care home and eventually took the decision to move her out. Had they had an social care assessment at an earlier date Mrs Y’s family may have decided to move her out of the care home sooner.
Complaint b.) The level of care Mrs Y received at the care home
- Mrs X complains after Christmas 2019 Mrs Y did not receive adequate care. She raised issues about the cleanliness and hygiene at the care home, the condition of Mrs Y’s room, behaviour from other residents and missing items belonging to Mrs Y including her glasses.
- In relation to Mrs Y’s missing glasses the Council’s position is the care home did not receive these from the hospital. The Council says it did not receive an inventory from the hospital and they are not contained in Mrs Y’s booking form when she arrived at the care home. I have checked the case records and cannot find any reference to Mrs Y wearing glasses. Mrs X has produced a photograph taken at the care home which partially shows a case for glasses, however I cannot say whether these are Mrs Y’s or not. Without further evidence suggesting Mrs Y had glasses at the care home and these were lost by care home staff, I cannot find the Council at fault.
- In relation to the cleanliness of the care home and hygiene issues Mrs X has sent us the following photographs. I have checked Mrs Y’s care notes for the days the photographs correspond to and note the following:
- 4 December 2019 – Photograph showing Mrs Y did not eat her food. The care notes do not make any reference to food or fluid intake for this day and just say she slept well during the night.
- 11 February 2020 – Photograph showing the commode is full. Mrs Y’s family said they reported this to a healthcare assistant. There is no record of this on Mrs Y’s care notes. The notes say she was in bed till 12pm and the commode was cleaned out the following day.
- 17 February 2020 – Photograph showing faeces in Mrs Y’s bin. The family said it was not cleaned for two days and they reported it to healthcare worker. Mrs Y’s care notes say the family visited Mrs Y but no mention of these concerns.
- 27 February 2020 – Photograph showing soiled continence pads left on the unit top. There is no mention of this in Mrs Y’s care notes, only of her family’s visit.
- 2 March 2020 – Photograph shows urine on the floor of Mrs Y’s room. There is no record of this in the care notes.
Complaint C.) The Council was inconsistent with its invoicing and did not properly inform the family about the care home charges
- The Council’s case records show Mrs Y’s family were informed about charging information in November 2019 when they initially met with a social worker at the hospital. The records show the social worker told the family the first four weeks at the care home were free after which Mrs Y would have to pay a means tested contribution depending on the outcome of a financial assessment. At this meeting Mrs Y’s family said they did not wish to disclose financial information at this time.
- When Mrs Y’s family met with her social worker on 12 December 2019 the records show he told the family if financial details are not disclosed the full cost of care would apply. Following this Ms Y’s son had a conversation with the finance team on 30 December 2019 who told him Mrs Y’s care is chargeable and gave the nightly rates. I am satisfied Mrs Y’s family were informed about the charging process.
- I accept the Council did send out the incorrect invoice for Mrs Y’s care charges after it responded to the complaint in May 2020. The Council has recognised this and since sent out an amended invoice which is correct. The invoice shows the first four weeks of care were free, and that the Council deducted 15 nights of care for the time the care home closed due to a flu outbreak. I therefore do not consider the Council at fault.
Complaint d.) The family were not kept updated following the closure of the care home due to a flu outbreak
- The Council has not been able to provide evidence that it or the care home kept Mrs Y’s family updated about the re-opening of the care home after it closed due to a flu outbreak. This is fault.
- Although I have found the Council at fault here I do not think this fault caused Mrs Y or her family any significant injustice. The records show Mrs Y’s family visited her on the day the care home re-opened so I do not consider they missed out on visiting time with Mrs Y due to the Council’s fault as they knew the care home had re-opened.
Complaint e.) The Council has accused Mrs X of being vexatious
- At the end of June 2020 the Council warned Mrs X it may class her as vexatious given the amount of contact it had received from her. The Council sent Mrs X its final complaint response on 12 June 2020. This told Mrs X she should approach the Ombudsman if she wanted to take the complaint further.
- Mrs X contacted the Council a further four times over the next two weeks each time the Council responded to reiterate its position and advise her she needed to contact the Ombudsman to take things further. I do not consider the Council at fault for warning Mrs X it could consider her as vexatious. This is in line with the Council’s policy one dealing with abusive, persistent or vexatious complainants.
- Within one month of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
- Apologise to Mrs X for the faults identified.
- Pay Mrs X £500 to recognise the distress and uncertainty caused relating to the concerns about the level of care Mrs Y received. In coming to this figure I have considered the severity of the uncertainty caused and the number of concerns the family had.
- Pay Mrs X £300 to recognise the distress caused for the delay in completing Mrs Y’s social care assessment.
- Ensure the care home takes steps to improve its record keeping, particularly ensuring it adequately records food and fluid intake and any concerns raised by family members.
- I have completed my investigation and found the Council at fault for delaying in assessing Mrs Y and for the level of care she received at the care home. The Council has agreed to the above actions to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman