Summary: Mr Y complains about the standard of care his mother received from domiciliary care providers commissioned by the Council. He also complains the Council did not apply the full 12-week property disregard when assessing his mother’s finances. The Ombudsman finds fault in the Council applying a 6-week property disregard and in the standard of care from the providers.

The complaint

1. The complainant, who I refer to as Mr Y, complains on behalf of his mother, Mrs C. He complains about the standard of care Mrs C received from two domiciliary care agencies, both of which the Council commissioned. He also complains when his mother moved into a care home, the Council did not provide proper advice about the financial implications. He says the Council then reduced the time she was eligible for a property disregard from 12 weeks to 6 weeks.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. I considered the information Mr Y provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr Y and the Council for their comments before making a final decision.

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What I found

Law and Guidance

6. The Care Act 2014 says that where it appears an adult may have needs for care and support, councils must assess:
• a) whether the adult does have needs for care and support, and
• b) if the adult does, what those needs are
7. Councils must keep care and support plans under review generally and on a reasonable request by or on behalf of the adult. Where a council is satisfied that circumstances have changed in a way that affects a care and support plan, the council must, to the extent it thinks appropriate, carry out a needs assessment and revise the care and support plan accordingly.
8. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The Council can take a person’s capital and savings into account subject to certain conditions.
9. Regulations state councils must disregard the value of someone’s home where the adult is a temporary resident, if the person intends to return home. Where the person is a permanent resident, councils must disregard the value of their home for a period of 12 weeks, beginning on the day on which the adult first moves into the accommodation as a permanent resident.

Background

10. In late 2019 Mrs C was admitted to hospital following a fall. Before this she was self-funding, privately arranged care at home. On discharge a hospital occupational therapist (“OT”) assessed Mrs C, and found she needed four visits a day from carers for support. Mrs C’s savings had dropped below the capital threshold so Mr Y contacted the Council for support.
11. The Council arranged a domiciliary care package. It conducted a needs assessment, which found Mrs C needed support with most daily living tasks, such as mobility, personal care, toileting, nutrition and medication. It put in place a care plan for four visits by carers each day to support with these needs. The care plan said Mrs C sometimes needed one carer to help her transfer and other times needs two carers.
12. Initially the Council agreed to direct payments for eight weeks with Mrs C paying a top up to the care provider. However, Mr Y was concerned about Mrs C’s level of savings and ability to pay the top up. The Council agreed to commission a care provider directly from December 2019.
13. The first council arranged care provider (“Provider A”) visited Mrs C until late February 2020. In mid-February 2019, Mrs C had a fall, which Mr Y says was due to unsafe use of a commode. Mr Y has provided a document entitled ‘incident report’, which he drafted. It says carers put Mrs C on the commode at around midday. It says the falls alarm was activated at around 13:15. It does not appear carers were present at the time of the fall as it was Mrs C’s other son who responded to the alarm and found Mrs C. Paramedics attended but did not take Mrs C to hospital. Two days later a doctor visited and found significant bruising to Mrs C’s back. The incident report also notes that a final care plan was not complete after seven weeks of service provision, but documentation was consistent with needing two female carers to assist when moving.
14. I asked the Council for copies of all clinical records and incident reports from the care providers.
15. The Council then arranged for the second care provider (“Provider B”), who visited Mrs C from late February to mid-March 2020. Provider B completed a care plan, which said Mrs C needed help from two carers to use her commode.
16. Mr Y raised concerns about timings of visits. He said carers were arriving later and later. Provider B said this was due to a local event that was taking place and road works, which meant traffic in the area was grinding to a halt. It said it spoke to the family about this and tried to improve the service.
17. Mr Y also raised concerns about one incident in March 2020, with the Care Quality Commission (“CQC”). Mr Y said that while family were present a carer moved Mrs C upstairs to use the bathroom without support of another carer. He said this was unsafe and caused Mrs C to become exhausted.
18. The CQC contacted Provider B, who said the carer moved Mrs C rather than use the downstairs commode, to protect her dignity while family were around. The CQC said that safety took priority, and the carer could have asked the family to leave the room. It asked what action Provider B would take with the carer for unsafe practices. Provider B accepted the CQC’s comments and suspended the carer pending further training on moving and handling.
19. In March 2020, Mr Y was concerned Mrs C’s health was deteriorating and about the standard of care at home. He was also concerned about the risk of coronavirus from visiting carers and whether family could visit Mrs C during lockdown. He believed Mrs C needed 24-hour care in a residential setting and was concerned care homes may close to new applicants because of the pandemic.
20. Mr Y contacted the Council, and a social worker visited the family in early March 2020 to explain the options. Mr Y sent an email to the social worker following the meeting. He said Mrs C had chosen to take a place at a care home, which he understood would be self-arranged and self-funded, the costs being paid from the sale of her home. He understood initially she was entitled to a 12-week property disregard and the Council would contribute to the cost of care during this time. He asked the Council to confirm the 12-week disregard urgently as the care home could only hold the place open for a few days.
21. The social worker responded that a 12 week disregard only applied where the Council had assessed the person as needing 24 hour residential care. He advised the care home in question was not on the Council’s framework that accepts Council agreed rates so if Mrs C went down this route she would likely need to pay a top up. He said a top up was entered into at the discretion of the Council and he would need to agree this with his manager. He said the disregard would not apply if Mrs C entered into a private arrangement with the care home.
22. Later that week Mr Y emailed the social worker to say Mrs C had now moved into the care home. He explained why the family had made this choice and said it was background to his consideration of the Council’s advice on funding. Mr Y said he did not have any further questions at that time. The case notes also include a telephone call from Mr Y. It says the family decided to move Mrs C to the care home on a private basis, initially for four weeks, and wished to end the domiciliary care.
23. The social worker acknowledged the email and said he had closed Mrs C’s case. He wrote to Mrs C to say the same.
24. In late April 2020, the Council received contact from the care home to say it had not received payment for Mrs C. It said Mr Y told the care home the family were arranging a 12-week property disregard. The Council explained it had closed the case due to the family entering a private arrangement. The care home then contacted Mr Y, who in turn contacted the Council directly and asked it to reinstate the 12-week disregard.
25. The Council conducted a care assessment and found Mrs C was eligible for 24-hour residential care. It sent an email to Mr Y, in which it agreed Mrs C’s permanent placement started in late April 2020 and would send a contract to the care home backdated to that date. It said Mrs C would receive a 12-week property disregard from late April to late July 2020.
26. However, when the Council completed its financial assessment, it treated the start of Mrs C’s permanent placement as mid-March, when she first entered the care home. It said the first six weeks of Mrs C’s stay were a private arrangement and therefore it would only apply the disregard to the six weeks after the date on which Mr Y asked for an assessment, at the end of April 2020.
27. Mr Y complained to the Council. He said the advice the Council had given him was not clear and he did not know the disregard would be reduced if he did not immediately request an assessment. Mr Y says he was under the impression the Council would at some point arrange an assessment.
28. The Council upheld Mr Y’s complaint that in July 2020 it had given unclear information about when a disregard would run from. However, it said in March 2020 the social worker was clear that a disregard would not apply if Mrs C entered a private arrangement with the care home. It therefore did not uphold this part of the complaint and still applied a 6-week, rather than 12-week, disregard.

Findings

29. I have investigated two matters:
• The standard of care from domiciliary care providers
• How the Council applied the property disregard

Standard of Care

30. It is a concern Provider A has not responded to the request for information. Care providers have a responsibility to engage with investigations and provide any records requested. In this case, the Provider A is acting on behalf of the Council and therefore the Council is ultimately responsible for the care. That includes keeping clear and accurate records of the care provided. Therefore, the fact the Council cannot provide the care records requested is, in of itself, fault in terms of poor record keeping.
31. I have reviewed the Council’s care plan dated November 2019. Overall, it clearly sets out Mrs C’s eligible needs and details of how carers meet those needs. However, it is not completely clear on how many carers need to assist with transfers. It says sometimes one is needed and sometimes two are needed but does not expand on why Mrs C’s need varies or in what situations one or two carer are needed. It does not say whether those carers should be female.
32. Mr Y says the Council did not share a copy of its care plan with Mrs C’s family. He says if it did, he would have told the Council she always needed two carers to assist. The Council has not provided any evidence it did share the care plan with family, and I therefore find fault in it not doing so.
33. Mr Y’s incident report says it was generally agreed two female carers were needed. Without the care records I cannot establish whether a clear care plan was in place from Provider A setting out how many carers should transfer Mrs C or whether they should be female. I can only therefore take Mr Y’s word as evidence Provider A did not complete a clear care plan. This is fault.
34. Without the records it is also impossible to properly investigate whether this, or any other fault in the care, contributed to Mrs C’s fall. However, it appears the fall may have happened at a time when carers were not present, and Mrs C tried to self-mobilise. I cannot therefore, on balance, make a finding on this.
35. Provider A shortly afterwards cancelled its contract, which was the right thing to do if it could not consistently provide appropriate carers to meet Mrs C’s needs.
36. Provider B’s care plan was clear that Mrs C needed two carers to assist with transfers and using the commode. However, there was an incident in which one carer transferred Mrs C upstairs to use the toilet alone. This was fault as it went against the care plan. I understand Provider B says this was to protect Mrs C’s dignity when family were around. However, the carer could have asked the family to leave while she used the commode, and this did not justify transferring Mrs C unsafely. I can see Provider B acknowledged this following contact from the CQC and took action with the carer involved.
37. The fault in poor record keeping and the lack of evidence of a clear care plan by Provider A, causes an injustice to Mrs C. It means there is uncertainty about whether carers were safely transferring Mrs C in line with an approved care plan or protecting her dignity by having female care staff when using the commode. The incident in which a carer moved Mrs C alone also caused distress to Mrs C as she became exhausted.
38. I recommend the Council pay Mrs C £200 to acknowledge the distress caused.
39. It is clear from the care records and Provider B’s response there were times carers did not arrive at the agreed times. This means Mrs C did not receive the service she should have done, and this is fault. However, Provider B did keep in contact with the family about problems carers were having with traffic and I cannot see evidence that this contributed to any specific incidents of poor care that impacted Mrs C’s health.

Property Disregard

40. I find fault in the Council applying a 6-week property disregard.
41. I acknowledge the Council provided clear information about charging options. It was correct to say that it needed to conduct a needs assessment, and find Mrs C required residential care, if it was to be involved in funding this. It appears Mr Y did not fully appreciate what this meant in relation to the 12-week disregard. However, the social worker explicitly said if it was a private arrangement the disregard would not apply. The email Mr C sent to the Council notifying it of the move to a care home comes across as only informative and does not ask the Council to complete a needs assessment.
42. Even so, the Council was already providing a domiciliary care package. It therefore had an existing responsibility to Mrs C in providing care and support. The Care Act 2014 sets a low bar for when an assessment should take place. It must only appear to the Council that the person may need care and support. In March 2020, the Council knew Mrs C’s needs had changed and her family believed she needed round the clock care in a care home. It therefore needed to attempt to arrange a new assessment of Mrs C’s needs irrespective of any explicit request from Mr Y. The Council gave advice but did not make any efforts to arrange a new assessment as it should have done.
43. Mr Y did not at any point refuse an assessment. It was clear the family were in a rush to agree a care home placement because of the possible impact of the pandemic, because the care home could not keep a place openly indefinitely and due to the family’s concerns about the standard of care Mrs C was receiving at home. The Council indicated it might be a month before an assessment was completed and the family did not wish to wait this long before getting her into a care home. There is no evidence the Council considered whether Mrs C’s condition, alongside the impact of lockdown on care homes, meant it needed to conduct an urgent assessment. I can understand why, in the circumstances, Mr Y did not want to wait and went ahead with arranging a care home directly.
44. Just because Mr Y directly arranged the placement, does not mean Mrs C had no possible recourse to public funds. The Council can still decide to conduct a needs assessment and fund a placement in such circumstances, which the Council did three months later. The family needed to be aware of the risks involved if the Council did not agree Mrs C needed residential care or did not agree to a top up. However, the Council found she did need residential care and accepted funding responsibility for the home she was already in. There is no suggestion her needs were different by this point and, based on her condition and significant package of care in March 2020, on balance, it is very likely the Council would have made the same decision if it had done an earlier assessment. If it had done, it would have backdated any funding, and therefore the disregard, to the date she entered the Home.
45. If the Council’s needs assessment found Mrs C was eligible for residential care, but her needs were already being met in the new home and she had decided to fund the home privately, then at that point the Council could have closed its case without applying a property disregard. However, that would not have been the case. It is clear from Mr Y’s emails that he wanted help with funding for Mrs C, while arranging any sale of the house. I understand he talked about the possibility of a deferred payment arrangement with the care home but at no point did he say he had taken this up. He also made reference to a private arrangement, but in the context that Mrs C would be self-funding once her house was sold. It would have been clear following a new assessment that Mr Y wished to access Council funding.
46. As already outlined, I accept Mr Y did not fully appreciate the advice given and did not immediately request a needs assessment. However, his rush to arrange a placement was understandable, and given the Council was aware Mrs C’s needs had changed, it should have arranged to complete a new assessment anyway. If it had done so, it almost certainly would not have treated the first six weeks as self-funded and would have applied the full 12-week disregard.
47. I therefore recommend the Council revise its financial assessment and apply the 12-week property disregard from the date Mrs C moved into the Home, in March 2020.

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Agreed action

48. The Council has agreed to, within a month of this decision:
• Apologise to Mrs C for applying a 6-week rather than 12-week property disregard and for the standard of care received
• Pay Mrs C £200 to recognise the distress caused
• Revise Mrs C’s financial assessment so the Council does not treat Mrs C as self-funding for the six weeks from 17 March 2020, and apply the full 12-week property disregard starting from the date Mrs C entered the care home

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Final decision

49. The Council is at fault in applying a 6-week property disregard and in the standard of care from its providers.

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Investigator's decision on behalf of the Ombudsman