Summary: The Council is not at fault for charging for care after a period of free rehabilitation ended. The Council is at fault for failing to intervene when Mr D’s condition worsened and to properly record care he was provided. Mr D has the uncertainty of not knowing whether, if the Council had acted earlier he would not have reached crisis point. The Council has agreed to remind staff about proper recording, the obligations owed to self-funders, and make a payment to Mr D and Mr C to reflect the uncertainty and anxiety caused.

The complaint

1. The complainant who I refer to as Mr C, complains about services provided to his father, who I call Mr D.
2. Mr C complains the Council inappropriately charged for home support services against instructions and without proper consultation. Mr C also complains the services provided on behalf of the Council were substandard and caused a deterioration in his father’s health.
3. Mr C says that had he not stepped in his father would have died. He does not consider it appropriate to pay the outstanding arrears for care which he says was inadequate and not requested.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. 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

8. I spoke with Mr C about his complaint and read information he provided. I asked questions and for information from the Council. I considered the Council’s response. This included:-
• case records;
• care records;
• complaint correspondence;
• safeguarding paperwork;
• Community Reablement and Outreach leaflet;
• The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental care standards as a benchmark when considering whether there has been service failure/fault.
9. I have applied the relevant legislation and government guidance which I have detailed below.
10. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

11. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs.
12. A council must make necessary safeguarding enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
13. 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.
14. The Act says 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.
15. The Care and Support Statutory guidance, CSSG says at paragraph 8.56,
16. “People with eligible needs and financial assets above the upper capital limit may ask the local authority to meet their needs. This could be for a variety of reasons such as the person finding the system too difficult to navigate, or wishing to take advantage of the local authority’s knowledge of the local market of care and support services. Where the person asks the local authority to meet their eligible needs, and it is anticipated that their needs will be met by a care home placement, then the local authority may choose to meet their needs, but is not required to do so. In other cases, where the needs are to be met by care and support of some other type, the local authority must meet those eligible needs.
17. 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)
18. The Council has a Community Reablement and Outreach team which provides reablement services. This says,
19. “Sometimes an individual may require support for a longer period than Reablement can provide. During a care review, if it appears you may require longer term support, a conversation will be held with you and any person you wish to be present, to discuss moving forward and referring on for long term support. It is at that point that any ongoing support by the service becomes chargeable.
20. You will be contacted by the financial assessment and charging team to arrange a visit to review your finances and determine what, if any, contribution you will be required to make for your care.
21. A Social Worker will also visit you to complete a Your Needs Assessment. The Reablement service will however continue to support you until such time an external provider is found to take over so you will never be left without support.”
22. “Finance….These are to make you aware that although the initial part of support (up to six consecutive weeks) is free of charge, if you have a long-term need identified you will be assessed and charged, whether the six-week period is completed or not”.
23. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. I have used the following standards in this statement:-
24. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
25. Regulation 17 says care providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”

What happened

26. Mr D was living in his own home. He was the main carer for his wife, Mrs D, who has dementia. Mrs D received support from a home care agency, Z.
27. Mr D went into hospital. Z could not provide support to Mr D when he was ready to leave hospital due to a shortage of care staff.
28. The hospital assessed Mr D as having short term reablement goals and as a result discharged Mr D with a package of care from its “Community Reablement and Outreach” team. This is a “reablement” service which is non-chargeable and can be provided for 42 consecutive days where there are reablement needs.
29. Mr D went home on 26 July 2019. The Council completed a financial assessment over the phone. During the conversation, the officer told Mr D if he continued with services after the rehabilitation ended he would have to pay the full cost of the care. The officer records that Mr D confirmed he understood the Council would charge, “but did not confirm if he wanted the council to continue to be involved – to be confirmed by the social worker at the time”.
30. On 30 July Mr C asked the Council to complete a care assessment for Mr and Mrs D as he did not feel they were coping. Council staff engaged with Mr C but did not complete an assessment.
31. Over the next few weeks the care records show staff attended Mr D and offered support with personal care, cleaning, and the preparation of meals. The care records show that Mr D was an independent person and often refused help when offered. They also evidence staff members referring matters to the doctor and district nurses when they were concerns about Mr D’s welfare.
32. During the same period, the records show Mr D’s health was deteriorating. Sores on his legs and stomach had worsened as had his ability to walk. He had several falls which care staff documented.
33. The rehabilitation team leader, X was in contact with Mr C. On 22 August following a review, X contacted Mr C to say Mr D now had long term care needs and the Council would charge for services. This was later confirmed in writing.
34. The record says Mr C understood this. X also contacted Z to find out whether it was now able to provide support. Mr C does not have the same recollection of the conversation. He says X told Mr C she would get back to him about Z but never did.
35. X was concerned about whether Mr D had capacity to make decisions about his care. She rearranged a visit to a later date so that she could visit with a mental capacity assessor. On 27 August Mr C discussed short term care with X. He acknowledged receipt of a care directory which included information about care homes and a checklist, but felt his father would struggle to read the leaflet. Mr C was concerned about his father’s welfare and felt Mr D would now accept residential care. X records that she told Mr C her support would be limited because Mr D was a self-funder. She could not help him source a care home and he would have to independently negotiate the price.
36. By 1 September Mr C was pursuing two care homes as Mr D’s health had deteriorated. He had several falls and was finding it difficult to walk. On 2 September care staff called a doctor. There is no record of care staff offering or providing Mr D support with his personal care from 31 August to 4 September.
37. On 4 September the support worker recorded that Mr D was unwell, Mr D did not however want to call 111 or any other person and declined personal care. The support worker raised further concerns the next day with her team leader that Mr D needed two people over an hour to support him that morning as “he would not stand up for them”. The care record says, “strip wash on bed. Cream on stomach sores…..bed stripped & remade with clean bedding”. The visit ended at 11.25am with care staff leaving sandwiches.
38. The district nurse visited the same day at 2.50pm. She later made a safeguarding referral about Mr D’s poor condition. This included:-
• Mr D was slumped on his bed and unable to move;
• a bad odour in Mr D’s room from the state of the bedroom;
• flies buzzing around;
• Mr D reported he had not washed or bathed for four days;
• weeping from within his skin folds;
• soiled underwear stuck to his skin;
• that both Mr and Mrs D were hungry.
39. The district nurse contacted the duty social work team. The records show the intervention of a social worker expedited Mr D’s admission into a care home by securing an appropriate mattress and advising on contractual matters. Mr D moved into the care home on the same day.
40. On 9 September Mr C queried an invoice for unpaid care fees. He said he thought services would be free until Z was able to provide care. X referred him to a review/conversation she had with him on 22 August telling him that services would be chargeable. She explained that a “forward plan” for ongoing services would have been the responsibility of a social worker. However as arrangements were already in progress to move Mr D into residential care she did not consider it appropriate as the Council would have charged Mr D £500 for the service.
41. The Council treated the district nurse’s concerns as a safeguarding alert. It closed the investigation without any further enquiries as Mr D had entered a residential care home and was now safe.
42. Mr C raised his concerns about the charges again in October 2019. There was an initial response from the Council in 2019 and then no further correspondence until May 2020. The Council apologised for the delay. From this date there was communication between both parties. Mr C contesting and at times asking for clarification of the charges. The Council offered Mr C the opportunity to pursue the formal complaints procedure several times. When Mr C completed the complaints procedure he received a response to his complaint within a month.
43. Mr C says Mr D should not have to pay for care he did not agree to and was woefully inadequate.
44. In response to a draft of this decision Mr C says the Council was aware that he wanted Z to provide support to Mr D once the free reablement care had ended. Mr C says the Council did not advise him about how to cancel the service and that Z would not complete an assessment of Mr C until the Council said it was no longer involved. Mr C says that there was and is no mechanism for a person to change from the chargeable reablement service to a private provider.

Is there fault causing injustice?

Charges

45. I find no fault in the Council charging Mr D for services after the free reablement service had ended. There is clear recording the Council told both Mr C and Mr D that it would charge for services effective from 22 August. This is when the Council assessed Mr D as having long term care needs and not entitled to reablement services which can be provided for up to six weeks. The Council confirmed the charge in writing so there is no doubt that Mr D and Mr C knew there was a charge.
46. Mr C says there is no way of cancelling the reablement service but there is no record that he raised his concerns with X or any other Council officer at the time. At no point did he seek to cancel the service. It is also unusual for an agency to say it will not assess a person until the care from another provider has ended. It is unclear why Z felt this was necessary and why Mr C did not specifically raise this with the Council at the time.

Quality of care

47. Mr C says the care provided by the care agency was inadequate. On the whole records show that carers visited daily, completed tasks, and reported any concerns to their supervisors or where necessary district nursing staff. The records also evidence Mr D declining support with personal care on several occasions. As Mr D had capacity carers had a duty to listen and respect his wishes even if they were considered unwise. This is in line with the Mental Capacity Act outlined above.
48. However there are gaps in the recording, and at times there is no record of care staff asking Mr D if he wanted support with his personal care. There is no record between 1 September to 4 September of Mr D having, or being asked about a wash. The failure to properly record is fault and not in line with regulation 17.
49. I am unable to say now whether Mr D would have accepted support with personal care on these days, or whether carers offered the support but failed to record their actions. These failures have however created uncertainty about whether Mr D had or would have accepted personal care on those dates. Mr D did however receive a wash before the district nurse visited on 5 September. It is likely given the accounts of the district nurse and care staff at the time that washing Mr D was difficult because of his immobility.
50. There were clearly changes in Mr D’s needs during the last few days he was at home. The Council however failed to reassess Mr D’s needs to identify if additional support was required. The failure to risk assess/review and provide safe care and treatment is fault, and not in line with regulation 12.
51. Clearly by the time Mr D went into a residential care home the situation had reached crisis point with care staff being unable to properly provide personal care. I do not know now whether Mr D’s condition would have deteriorated to the extent it did if the Council had offered additional support in the last couple of weeks he was at home. There was however a missed opportunity for Mr D to receive additional support in his home or in a residential care home at an earlier time. Both Mr D and Mr C have the uncertainty created by these failures.

Provision of advice and information

52. The Care Act 2014 sets out a duty for councils to provide information and advice to self-funders. It also owes the same duty to assess those who appear to be in need regardless of financial resources. In this complaint Mr C asked for help several times, initially for an assessment and then when Mr D needed residential care. An officer at the time provided an information leaflet about choosing a care home.
53. However Mr D was a person in need. During the last week of living in his own home care staff, district nurses, Mr D and Mr C were concerned about a deterioration in Mr D’s condition. The Council however only took an active role once the district nurse raised concerns with the social work team. Once the social work team became involved Mr D moved into residential care within a day. I consider the Council should have acted sooner in supporting Mr C with securing residential care, the failure to do so left Mr D at risk.
54. The Council says X completed a review of Mr D’s needs. There is evidence X contacted Mr C with information about charging and Mr D’s needs on 22 August but there was no discussion about long term needs as described in the reablement brochure detailed above. This was fault. There is however no dispute that at this point Mr D had long term needs so it is unlikely there would have been a different outcome to the review.
55. X says she did not make a referral for care planning in this case as it would incur a £500 charge. The failure to provide this information was a missed opportunity to clarify matters and to look at residential care at a much earlier point.
56. It is difficult to say now what would have happened but for the faults identified. Mr C and Mr D however have the uncertainty that Mr D may have obtained appropriate support earlier.

Complaint handling

57. There was a substantive delay in the Council responding to one of Mr C’s letters, for which it apologised. Overall the Council responded to Mr C’s correspondence and when Mr C made a formal complaint provided a substantive response within a month. I consider the Council’s apology for where it fell short is appropriate to remedy any injustice caused by the Council’s failures in this element of the complaint.

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Agreed action

58. I consider there was fault in the Council’s actions which caused Mr C and Mr D injustice. The Council has agreed to take the following actions to remedy the injustice caused:-
1. apologise to Mr D and Mr C for the uncertainty caused by the failures I have identified in this statement;
2. make a payment of £250 to Mr C for the failure to provide support and information, and the uncertainty caused by the Council’s failures;
3. make a payment of £450 to Mr D for the failure of the Council to provide information and advice and the uncertainty caused by the Council’s failures which potentially resulted in him staying at home and his condition deteriorating for longer than necessary. Any arrears owed from unpaid charges should be deducted from this amount;
4. remind staff about the importance of completing and recording reviews which include relevant family members;
5. remind staff about the need to reassess or update risk assessments where there is a change in need;
6. remind care staff about the need to record actions completed and offers of care if refused;
7. remind staff and if appropriate provide training about the powers and duties owed to self-funders.
59. The Council should complete (a) – (c) within one month of the final decision and (d) – (g) within three months of the final decision.

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Final decision

60. I have found fault causing injustice. I consider the agreed actions above are appropriate to remedy the complaint. I have now completed my investigation and closed the complaint.
61. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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Investigator's decision on behalf of the Ombudsman