The Ombudsman's final decision:
Summary: There is evidence to show Mr and Mrs X agreed to Mr X’s discharge to a care home while Mrs X had surgery, and that the Council gave them proper information about the financial implications.
- Mrs X (as I shall call the complainant) complains the Council failed to tell her and her husband there would be a charge for his residential care when he was discharged from hospital in March 2020.
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. 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
- I considered the information provided by Mrs X and by the Council. Mrs X spoke to me. Both Mrs X and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
What I found
Relevant law and guidance
- A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay.
- Intermediate care and reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of intermediate care or reablement services. They may make a charge where services are provided beyond the first six weeks, but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
- The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
- A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
- because he or she makes an unwise decision;
- based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
- before all practicable steps to help the person to do so have been taken without success.
- Mr X was admitted to hospital after a fall at home. He was initially assessed for reablement care on 20 February and the Council agrees he was told the six-week reablement care would be free of charge. However, at reassessment on 24 February by the Community Reablement team the assessing officer recorded that Mr X’s needs had changed, “as a result of (Mr X’s) physical deterioration, his poor cognition, his understanding of his physical condition, and the impact on these factors on his ability to mobilise safely.” The officer said she explained to Mr and Mrs X that he would not be able to receive reablement care and she referred him to the hospital social work team.
- A hospital social worker visited Mr X on 28 February after he was deemed medically fit for discharge. Her notes record that he “seemed capacious” but nursing staff said he became confused in the early evenings. She referred him to the memory service. She gave him the charging policy and assessment information. She also arranged to meet Mrs X who was due to have elective surgery the following week. There were concerns Mr X would be unsafe at home alone while Mrs X was in hospital for surgery.
- The social worker met Mr and Mrs X on 2 March. She recorded, “(Mrs X) said she was told Community Rehabilitation would offer a bed - then told they wouldn't as her husband has a 'new baseline'. She said she explained the charging policy and asked Mrs X to sign the ‘agreement to pay’ form but Mrs X declined until she knew what the contribution would be and said she would speak to the financial assessment team. She said she was very disappointed by the decision not to accept Mr X for reablement care.
- The Council’s brokerage team found a residential care home which would accept Mr X for a short-term placement. The officer emailed the social worker to say she intended to ask the social worker on duty to agree the placement with Mrs X “to avoid (Mr X) being discharged without (Mrs X) being aware”.
- The social worker met Mrs X on 6 March and explained that a placement had been found for Mr X. Mrs X was recorded as saying she didn’t want Mr X in hospital for any longer than necessary and so agreed the placement.
- The social worker then met Mr X, in the company of his friend who was able to explain the placement to him “as he needs time to process”. Mr X agreed the placement while his wife was having surgery. He was discharged to the home on 7 March.
- A financial assessment officer telephoned Mrs X on 9 March to discuss the assessment. Mrs X told the officer she thought Mr X would get free reablement care.
- On 13 March Mrs X telephoned the social worker and said she had expected to meet her about Mr X’s placement. The social worker recorded, “I pointed out I had visited and we had a long conversation…she then apologised as unable to recall”. Mrs X said the financial assessment team had arranged to visit her the following week.
- On 16 March the financial assessment officer visited Mrs X. Mrs X said she had been told by the social worker that Mr X would receive six weeks’ free care. She agreed to complete the financial statement for assessment but said she would pursue her concern that she had previously been told the care would be free of charge.
- The financial assessment officer wrote to Mr X on 17 March explaining the contribution he had been assessed to pay towards the cost of his placement.
- In April Mrs X made a complaint to the Council. She complained the Council had failed to inform them of the charges for the placement; that the social worker had told Mr X in front of three witnesses that his care would be free of charge; that she had not agreed to his discharge to the placement; and that the Council had failed to inform them verbally or in writing that the placement would be chargeable. She asked the Council to investigate and uphold her complaint in full.
- The Council investigated her complaint and responded in May. The manager who responded explained how Mr X’s situation had changed so he could no longer be considered eligible for reablement care. He said there was evidence on the assessment and the case recording that the social worker had explained to both Mr and Mrs X the care would be chargeable. There was no evidence on the record that the second social worker had said the care would be free, and she had confirmed verbally that she had not done so, nor had she met Mr X in the presence of three witnesses, as Mrs X said.
- The manager said the records showed the social worker had obtained the agreement of both Mr and Mrs X, separately, to Mr X’s placement. He noted the social worker had ensured Mrs X’s agreement so Mr X would not be discharged without her knowledge. He confirmed both social workers were satisfied Mr X had capacity to agree to the placement. He noted the evidence that both Mr and Mrs x were informed there would be charges. He concluded, ‘Whilst I do recognise there was a clear change in the discharge pathway identified for (Mr X), this change and the reasons for this were explained to you at the time.’
- Mrs X requested a review of the decision not to uphold her complaint. She said the funded six weeks’ reablement care was the basis of what the Council had agreed and it was unreasonable for it now to try to explain different pathways.
- The Council reviewed its earlier response. An Assistant Director replied to Mrs X in June. He said the records showed the decision to alter Mr X’s pathway (because his condition had changed was made on 24 February and explained to Mr and Mrs X then. He said there was evidence that information about the charging policy and financial assessment had been given to both Mr and Mrs X in writing and verbally by the social worker. He said the record that Mrs X had expressed concern about the contribution before his discharge supported the view that she was aware there would be a charge for the placement. He apologized for an error in the invoices issued which had now been corrected. He confirmed the complaints were not upheld.
- Mrs X complained to the Ombudsman. She said the social workers never told her there would be a charge for Mr X’s care. She said someone from the hospital told her he should have six weeks’ free care after discharge.
- The Council has provided evidence of the social work case recording which documents the conversation both social workers had with Mr and Mrs X about charges for Mr X’s placement. It has also provided copies of the written information it supplied to Mr and Mrs X about charges, and confirmed Mr X was able to make his own decision to agree to the placement while Mrs X was having surgery.
- Mrs X says if Mr X was well enough to agree to care, in her view he was well enough for reablement services.
- There is no evidence Mr and Mrs X were told, after the assessment on 24 February at which the change in Mr X’s condition was noted, that the care would be free of charge.
- There is ample evidence to show the charges were explained to Mr and Mrs X, and that Mr and Mrs X both agreed to the placement.
- There is no evidence of fault on the part of the Council.
Investigator's decision on behalf of the Ombudsman