Summary: Mr X complained the Council placed his mother in a nursing home without giving her, or her family, opportunity to object. Mr X complained the Council is now asking for payment of care home fees for this placement. Mr X also complained the Council sent his mother for rehabilitation and respite care when it knew she would not be able to walk or live independently again. We found fault with the Council delaying in referring Mr X’s mother to a physiotherapist. We do not consider this fault caused a significant personal injustice to either Mr X or his mother.

The complaint

1. Mr X complained the Council placed his mother in a nursing home in July 2022 following discharge from hospital after a fall. Mr X says the Council did not give either his mother or her family opportunity to review or object to this setting. Mr X says his mother was not happy in this nursing home but the Council did not give her another choice because she did not have the financial means to pay for an alternative.
2. Mr X complained the Council sent his mother for rehabilitation and respite care when the Council knew that his mother would not be able to walk or live independently again.
3. Mr X complained the Council is now asking for care home fees for his mother’s time in the nursing home.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with an organisation’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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What I have and have not investigated

7. I have not investigated the concerns Mr X raised about his mother’s care during her time in the care home. The reason I did not investigate this is because the Council agreed to complete a safeguarding investigation into these issues. Should Mr X be dissatisfied with the Council’s safeguarding investigation he can bring this complaint to the attention of the Ombudsman under a separate complaint.

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How I considered this complaint

8. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant law and guidance

10. Where a council assesses a person’s needs and agrees to provide care, it should set a personal budget in a care and support plan. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
11. Councils can charge people towards the cost of a care home placement. They complete a financial assessment, applying charging rules in regulations and guidance to determine how much a person pays. People who have over £23,250 (including property) pay the full cost. However, once their capital has reduced to under £23,250, they 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))
12. A financial assessment should be completed as soon as reasonably practicable. The Ombudsman would expect a financial assessment to normally be done within four weeks of a care assessment. A care assessment and financial assessment are part of one process.

Mental Capacity Act 2005

13. The Mental Capacity Act 2005 sets out five principles:
• A person must be assumed to have capacity unless it is established that they lacks capacity.
• A person is not to be treated as unable to decide unless all practicable steps to help them to do so have been taken without success.
• A person is not to be treated as unable to decide merely because they make an unwise decision.
• A decision made on behalf of a person who lacks capacity must be made in their best interests.
• Before deciding, the decision maker must have regard to the option least restrictive of the person’s rights and freedom of action.

What happened

14. On 23 March 2022, Mr X’s mother went into hospital following a fall. The hospital moved Mr X’s mother to a specialist ward on 3 June 2022 for physiotherapy rehabilitation with the view to discharge from the hospital.
15. A council social worker met with Mr X’s mother on 9 June 2022. The social worker noted they felt Mr X’s mother had capacity during this conversation. Mr X’s mother told the social worker she was struggling with walking but had not been working with the therapists. The social worker advised Mr X’s mother to work with the therapists to improve her mobility. Mr X’s mother told the social worker she wanted to move to an Extra Care unit on discharge. The social worker said she would explore the feasibility of this option but it was likely she would need to go into a care home in the interim. Mr X’s mother agreed to this and agreed for the social worker to speak to Mr X. The social worker discussed the option of an Extra Care unit with Mr X who expressed concerns about his mother mobility and lack of engagement with therapists.
16. By 14 June 2022, Mr X’s mother had not been engaging with therapists over her mobility. Mr X’s mother said she wished to be discharged to her home.
17. On 17 June 2022, Mr X said his mother had capacity and if she wanted to go home this would be her choice. On Occupational Therapist confirmed Mr X’s mother home was suitable. The social worker spoke with Mr X’s mother about her night-time care needs. The social worker said she may need to go to a care home on a temporary basis to assess her needs. Mr X’s mother agreed to this and again asked about the prospect of moving to an Extra Care unit.
18. The social worker sought funding approval for Mr X’s mother temporary nursing placement. The social worker said Mr X’s mother could not be discharged to her own home or an Extra Care unit because of her night-time care needs and mobility issues. The social worker said an interim placement at a nursing home with input from a community physiotherapist would hopefully improve Mr X’s mothers’ condition to enable discharge to her preferred setting.
19. The Council approached several care homes before approving a placement at a nursing home on 24 June 2022. The social worker spoke to Mr X’s mother about this placement and she confirmed she understood the purpose of the placement. The social worker also spoke to Mr X about the placement. Mr X expressed dissatisfaction with the progress of his mother’s physiotherapy but did not express concern about the care home placement.
20. Mr X’s mother’s Occupational Therapist signed off on the move to the temporary care home so Mr X’s mother could receive further physiotherapy.
21. On 28 June 2022, the social told Mr X’s mother she could be discharged the nursing home on a temporary basis. Mr X’s mother said she was happy to go. The social worker told Mr X and his mother the Council would need to complete a financial assessment to decide the cost she would need to pay towards the nursing home. Mr X’s mother moved to the nursing home on this date.
22. On 11 July 2022, Mr X’s mother’s new social worker met with her to complete a care assessment in the nursing home. The social worker noted that Mr X’s mother needed to complete physiotherapy work to improve her mobility and completed the referral forms the following day. The social worker did not process these forms.
23. The Council attempted to contact Mr X’s mother on 13 July 2022 to discuss her financial assessment and left a voicemail message advising it had arranged an appointment for 26 July 2022 to complete this. Mr X contacted the Council on 18 July 2022 in response to this voicemail message. Mr X said his mother would not be home for the appointment as she was still in the nursing home. Mr X said he wanted to wait until his mother returned home to complete the financial assessment.
24. The Council told Mr X the care home cost would be £840 per week. Mr X queried this with the Council who advised this was the full cost subject to a financial assessment.
25. The Council sent the referral form to the physiotherapist on 28 July 2022.
26. On 3 August 2022, the physiotherapist assessed Mr X’s mother and determined it was unlikely she would be able to reach her “baseline mobility” again. The physiotherapist drew up a plan with carers to improve Mr X’s mother’s mobility without intensive physiotherapy. Mr X’s mother also told the physiotherapist on this date she felt happy and safe at the nursing home. The Council extended funding for Mr X’s mother’s stay at the nursing home for four weeks from 12 August 2022 to allow for time for improvement to her mobility.
27. Mr X’s mother passed away on 18 August 2022.
28. On 26 September 2022, the Council sent Mr X a copy of the financial assessment for his mother time at the nursing home. This financial assessment said it had assessed his mother’s cost at £135.12 per week and asked him to provide information if he disagreed with this assessment.
29. Mr X entered into discussions with the Council about the financial assessment in October 2022 and provided information. Following review of the information, the Council maintained the cost of £135.12 per week. The Council issued a bill totalling £1,003.75 for the full care costs on 20 October 2022. Mr X raised a complaint with the Council.
30. The Council issued its first complaint response on 8 November 2022. The Council said:
• The plan was for Mr X’s mother to return home following an interim stay in a nursing home where she would receive physiotherapy to improve her mobility.
• The Council said Mr X’s mother chose to go to the nursing home.
• It approached various nursing homes but only this particular nursing home offered a place.
• It initially agreed the placement for four weeks but extended this to allow for physiotherapy.
• Mr X’s mother told the physiotherapist she was happy at the nursing home.
• It told Mr X mother’s it would need to complete a financial assessment and told Mr X this but Mr X wanted to wait until his mother returned home before completing it.
• It had now completed a financial assessment which resulted in the bill of £1,003.75 for the care charges.
31. Mr X sought escalation of his complaint on 25 November 2022.
32. The Council provided its second complaint response on 31 January 2023. The Council said:
• It apologised for the delayed response to Mr X’s complaint.
• There is always a wait for physiotherapy support and nursing home support remains chargeable during this time.
• Its records stated Mr X’s mother was happy to go to the nursing home and confirmed she was happy there.
• It had considered the further expenses Mr X had presented for consideration of the financial assessment but it does not allow expenses for these costs.

Analysis

Discharge to the nursing home

33. When a person, who the Council has determined may need extra support, is being discharged from hospital, the Council should present options to them about their future care and support needs.
34. A council social worker met with Mr X’s mother on repeat occasions to discuss her care and options. Mr X’s mother repeatedly outlined her wish to be discharged to an Extra Care unit. The Council’s social worker explored this option and explained to Mr X’s mother this would not be possible unless her mobility increased.
35. The Council’s social worker discussed the option of entering a care home on a temporary basis to improve Mr X’s mother’s mobility and assessing her night-time care needs. Mr X’s mother consented to the move to a care or nursing home on four separate occasions, with the final consent specifically being to the nursing home she was discharged to.
36. Since Mr X’s mother agreed to move to the nursing home, I cannot find fault with the Council for facilitating this move. The Council’s rationale behind the move, to help assess and improve Mr X’s mother’s care needs, is suitable and the matter of professional opinion. I would not find fault with the Council’s thinking behind this move.
37. Mr X’s mother was deemed to have capacity by the Council social worker. Mr X also advised that he considered his mother had capacity to make her own decisions. Since Mr X’s mother had capacity, it is not relevant whether the Council sought Mr X’s approval for this move. Despite this, the Council’s social worker sought input from Mr X about his mother’s move. There is no evidence Mr X objected to the move to the nursing home.
38. The physiotherapists notes also detail that Mr X’s mother confirmed she was happy at the nursing home two weeks before she passed away. There is no evidence Mr X’s mother expressed a dissatisfaction with moving to, or staying at, the nursing home. I cannot find fault with the Council’s decision to discharge Mr X’s mother to the nursing home on a temporary basis.

Continuation of rehabilitation

39. Mr X has complained the Council continued with rehabilitation and respite care despite it knowing his mother would not be able to walk or live independently again.
40. Part of the reason to discharge Mr X’s mother to the nursing home on a temporary basis was so she could receive input from a physiotherapist to improve her mobility.
41. Mr X’s mother had expressed a wish to either live in her own home or, ideally, move to an Extra Care unit. Neither of these options were viable unless Mr X’s mother could improve her mobility. Mr X’s mother was at first resistant to input from therapists but later acknowledged she needed to cooperate with the therapists to improve her mobility. The pursuance of rehabilitation by the Council was to try to enable Mr X’s mother to meet her overall desired outcome of living in her own home or in an Extra Care unit. I do not find fault with the Council pursuing the care pathway that sought to reach Mr X’s mother’s desired outcome.
42. Following discharge to the nursing home, on 28 June 2022, the Council took until 11 July 2022 to meet with and assess Mr X’s mother. This is an acceptable timescale for this initial assessment. However, the Council failed to refer Mr X’s mother to physiotherapy until 28 July 2022. This delay of slightly over two weeks was fault.
43. Following referral, the physiotherapist met with Mr X’s mother and started to produce a plan to help improve Mr X’s mother’s mobility. This plan was to run for four weeks from 12 August 2022 and the Council extended the funding for her stay until the end of this period. Mr X’s mother passed away a week later.
44. While the Council was at fault for delaying in making the referral to the physiotherapist, this delay has not resulted in an extended stay at the nursing home. This is because the Council’s delay of two and a half weeks is less than the three weeks Mr X’s mother had leftover in her planned time at the nursing home when she passed away. Had the Council not delayed, Mr X’s mother would still have been living in the care home when she passed away.

Care Home fee charging

45. When a person receives care in a care home, arranged by a council, they will often incur fees for their stay at the care home.
46. Before Mr X’s mother moved into the nursing home, the Council told both Mr X and his mother than it would need to complete a financial assessment to decide the cost of this care. Therefore, both Mr X and his mother were aware that her stay in the care home would incur a cost.
47. The Ombudsman normally expects a council to complete a financial assessment within four weeks of a care assessment to decide the cost. The Council completed the care assessment for Mr X’s mother’s placement at the nursing home on 24 June 2022. As such, we would expect to see the Council completing the financial assessment by 22 July 2022.
48. The Council contacted Mr X’s mother with the view to completing the financial assessment on 13 July 2022. This was within the four-week timeframe. Mr X responded to the Council’s voicemail message and said he did not wish to complete the financial assessment at this time. This was a choice available to Mr X and his mother; the Council complied with this choice. I do not find fault with the Council adhering to Mr X’s wishes.
49. The Council told Mr X about the full cost of the care at £840 per week so he would know about the maximum charge. This is suitable action from the Council to ensure Mr X and his mother would be prepared for the potential full cost.
50. Since Mr X’s mother passed away before returning home, the Council could not complete the financial assessment on Mr X’s mother’s return home. The Council waited slightly over a month from Mr X’s mother’s passing before telling Mr X about it completing the financial assessment and the resultant cost of care. The Council exercised discretion to not present these charges immediately on Mr X’s mother passing away. This is not something I would find the Council at fault for.
51. The Council assessed the further information Mr X provided and reached the same conclusion that Mr X’s mother owed £135.12 per week out of the total £840 per week cost. The Council has completed a correct financial assessment and I do not find fault with this.
52. Mr X’s mother spent nearly two months in a care home. Mr X and his mother both knew the time spent in this care home would come at a cost. The Council has completed a suitable financial assessment, at a suitable time given Mr X’s wishes, and presented a bill detailing the assessed cost. The Council has acted in line with the guidance and legislation in billing for Mr X’s mother’s stay in the care home and I do not find fault.

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Final decision

53. I have completed my investigation as the fault by the Council did not cause a significant personal injustice to Mr X or his mother.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman