Summary: There was no fault in the way the Council decided not to involve Mr D in care planning for his mother, nor was there fault in the way the Council decided the care plan. There was some fault in its record keeping regarding NHS continuing health care funding but this did not cause an injustice.

The complaint

1. Mr D complains about the Council’s failure to communicate with him about his mother, Ms E’s care plan, her finances and he says the Council failed to address concerns he raised about another family member.

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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 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)
3. 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

4. Mr D has also made a complaint against the Council about the disposal of Ms E’s belongings which were in a Council property. He says Ms E’s niece was involved in the disposal of Ms E’s belongings and the Council should not have allowed this as he had raised concerns about the niece.
5. I have not investigated this complaint as it relates to housing matters which are investigated by the Housing Ombudsman.

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How I considered this complaint

6. I have spoken to Mr D. I have considered the evidence that he and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Care Act 2014

7. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.
8. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
9. Councils must carry out a financial assessment if they decide to charge for the care and support.
10. If a person needs residential care, the Council will assess their capital and income. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care.
11. Local authorities cannot arrange services that are the responsibility of the NHS, for example, care provided by registered nurses and services that the NHS has to provide because the individual is eligible for NHS Continuing Healthcare.

Safeguarding

12. Section 42 of the Care Act 2014 says if a local has reasonable cause to suspect that an adult in its area:
• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
13. Then the local authority should start a safeguarding enquiry

Quality of Care

14. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
15. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards. This says that:
• The care and treatment must be provided in a safe way for service users. (regulation 12).
• The Home must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17)

Mental capacity Act

16. 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 describe the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.
17. The Act says a person must be presumed to have capacity unless it is established that they do not.
18. A key principle of the Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
19. The Code of Practice sets out how to make a best interest decision and what to consider. The decision maker should (this is not the full list – only the list that is relevant to the complaint):
• Do whatever is possible to permit and encourage the person who lacks capacity to take part or improve their ability to take part in the decision.
• Identify the things the person would take into account if they were making the decision.
• Try to find out the views of the person who lacks capacity. This should include the person’s past and present wishes and feeling – these may have been expressed verbally, in writing or through behaviour or habits.
20. The Code of Practice says the decision maker should consult other people, for example close relatives, to see if they have any information about the person’s wishes and feelings, beliefs and values ‘if it is practical and appropriate to do so.’
21. The Code also says: ‘When consulting, remember that the person who lacks capacity… still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone.’

Continuing healthcare

22. The Department of Health and Social Care’s National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (July 2022 (Revised)) is the key guidance about Continuing Healthcare. It states that where an individual is eligible for Continuing Healthcare funding the Integrated Care Board (ICB) is responsible for care planning, commissioning services and case management.
23. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’.
24. A person’s local Integrated Care Board (ICB) is responsible for assessing their eligibility for CHC and providing the funding.
25. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment.
26. A nurse will usually co-ordinate a full multidisciplinary assessment and complete a Decision Support Tool (DST) form. The DST is a record of the relevant evidence and decision-making for the assessment.
27. The NHS Framework says the checklist should be completed when there may be a need for NHS CHC, but there will be many situations when it is not necessary to complete a checklist. For example, where it is clear to practitioners working in the health and care systems that there is no need for NHS CHC at this point in time. Where appropriate/relevant this decision and its reasons should be recorded. If there is doubt between practitioners, a checklist should be undertaken.

What happened

28. Ms E was an older woman who lived at home. Ms E was estranged from Mr D. Ms E had a stroke in January 2023 and was admitted to hospital. The stroke resulted in aphasia, which is a condition which affects a person’s ability to communicate.
29. The social worker spoke to Mr D twice in February 2023. Mr D said the hospital had contacted him after Ms E’s stroke. The social worker explained that Ms E would move to a care home and this would be free of charge for up to four weeks, while further assessments were carried out. She said any long-term care after the assessment would become chargeable.
30. Mr D said he had not seen Ms E in 30 years as Ms E did not want to be in contact with him. Mr D said he did not know how much money Ms E had. The social worker told Mr D not to worry about finances at this time as the allocated social worker would be able to discuss this further once Ms E was in the temporary assessment bed.
31. Ms E moved to the care home in February 2023.
32. The social worker spoke to Mr D on 13 March 2023 and explained that the Council would carry out a mental capacity assessment (MCA) of Ms E.
33. The social worker asked a speech and language therapist to assist her in the MCA because of Ms E’s aphasia. The speech and language therapist assessed Ms E and said Ms E was unable to verbally communicate but had some ability to communicate using pictures, gestures, for example nodding and shaking her head and simple words, such as yes and no. However, Ms E’s communication may be inconsistent.
34. In April 2023 the social worker assessed Ms E’s mental capacity to decide where she wanted to live and concluded Ms E lacked the capacity to make that decision. Throughout the assessment Ms E made it clear that she did not want Mr D to be contacted or to be part of the process.
35. The social worker carried out an assessment of Ms E’s needs under the Care Act in April 2023. She concluded that Ms E’s needs could only be met in a care home.
36. The Council appointed an independent mental capacity advocate to represent and support Ms E. Later on in the process Ms E was also supported by a Care Act advocate.
37. Mr D rang the Council on 16 May 2023. He said the care home had told him that the social worker had been trying to contact him. The social worker was not in the office but the duty social worker said she would ask the social worker to ring Mr D.
38. The social worker spoke to Mr D on 19 May 2023. The social worker said she had been trying to contact Mr D. Mr D was upset as he said Ms E’s niece had contacted him and told him that she had spoken to the social worker. Mr D could not understand why the social worker had spoken to the niece about Ms E, but not to him.
39. The social worker said she had been trying to speak to Mr D so that she could explain what had been happening with the assessment process. The social worker said she had conversations with Ms E as part of the assessment process and Ms E had made it clear to the social worker that she did not want the Council to contact Mr D or share any information with him.
40. Mr D questioned how Ms E could tell the social worker this as Ms E was unable to speak. The social worker explained that Ms E was able to communicate some words verbally and through body language and by using pictures.
41. Mr D said the niece had obtained money from Ms E and he was concerned about her intentions. The social worker advised Mr D that he should make a safeguarding referral regarding the niece if he had concerns about her or he could contact the police. The social worker explained to Mr D how to make a safeguarding referral.
42. Mr D said the care home had been asking him for money for Ms E’s haircuts and feet treatment which he had provided. He wanted this to stop and asked to be taken off the next of kin list. The social worker said she would ensure this happened.
43. A best interest decision was made that Ms E should remain in a care home long term.
44. Ms E had a fall in July 2023 and was taken to hospital but returned to the Home a few weeks later.
45. A further mental capacity assessment (MCA) in July 2023 decided that Ms E lacked the mental capacity to manage her finances. The Council applied for appointeeship for Ms E’s benefits to the Department of Work and Pension. The Council applied for deputyship for Ms E’s property and financial affairs to the Court of Protection in October 2023 and informed Mr D of the application.
46. Ms E died on 8 December 2023 before the application to the Court of Protection was heard.
47. Mr D became the executor or Ms E’s estate. As Ms E had more than £23,250 in capital, the Council assessed her as a self-funder. The Council sent the invoice for the accrued care charges to Mr D as Ms E’s estate owed the charges to the Council.

Mr D’s complaint – April 2024

48. Mr D complained to the Council and said:
• The Council failed to involve him in the decision-making regarding Ms E’s move to the care home or to inform him that Ms E would have to self-fund her care home fees. He did not find out that she would have to pay the fees until he received an invoice in January 2024.
• He asked the Council several times whether he should apply for Continuing Health Care funding, but was told there was no need.
• Ms E had a fall in July 2023 at the Home which resulted in injuries. He questioned the Home’s actions in relation to the falls.
• He had warned the Council about his concerns about the niece but the Council had not taken any action.

Analysis

Involvement in the decision making

49. Ms E had aphasia which meant she had great difficulty in communicating. However the Council still had a duty, under the Mental Capacity Act, to ‘do whatever is possible to permit and encourage the person who lacks capacity to take part or improve their ability to take part in the decision’.
50. I note good practice as the Council involved a speech and language therapist who assessed Ms E’s ability to communicate and gave professional advice on the best way to communicate with Ms E. The social worker followed this advice and used verbal communication, gestures and signs to communicate with Ms E.
51. The Council did not carry out a separate MCA regarding Ms E’s ability to decide whether she wanted Mr D involved in the decision making so presumably it was the Council’s position that Ms E had the capacity to make that decision.
52. I note that in all the assessments that I have read that Ms E quite strongly indicated, by words and gestures, that she did not want Mr D to be involved in the decision making and that she did not want the Council to share any information with him. Therefore, I find no fault in the way the Council decided this.
53. I have also considered whether there was any fault in the way the Council made best interest decisions about Ms E’s care.
54. The social worker carried out an assessment of Ms E’s needs under the Care Act and considered the relevant outcomes. The social worker involved Ms E as much as possible in the assessment and the decision making by following the advice of the speech and language therapist. Ms E agreed with the plan to move to a care home. Ms E had an independent mental capacity advocate to represent and support her. The social worker explained why residential care was the only option to meet Ms E’s needs.
55. Therefore, overall, I find no fault in the way the Council decided that Ms E should move to a care home permanently.
56. Mr D also complained that the Council did not inform him of the charges until he received the invoice after Ms E’s death. I find no fault in that respect. The Council could not say what the charges were until it had access to Ms E’s financial information and carried out a financial assessment. And in any event, it had no duty to inform Mr D as he was not expected to pay Ms E’s care fees. Ms E (or later her estate) had to pay the fees.
57. I also note the Council issued an application to the Court of Protection to be appointed as deputy for Ms E’s financial affairs and informed Mr D of this application, but Ms E died before the application could be heard.

Continuing Healthcare

58. I have explained to Mr D that it was not possible for him to make an application for CHC. Only a health or social care professional can start the two-stage assessment process for NHS funding (see paragraphs 22 to 27).
59. I asked the Council why it did not complete a CHC checklist for Ms E. The Council said Ms E did not meet the criteria and would not have progressed to a DST. It was therefore the Council’s professional decision not to complete a CHC checklist.
60. I could not find any reference to CHC in the records until February 2024 when CHC funding was discussed with Mr D. I think there was some fault in that respect as the Council should have properly responded to Mr D’s request for a CHC checklist and either explained its decision not to carry out a CHC checklist on the record or carried out the checklist.
61. However, I cannot say the fault caused any injustice. The Council is clear that, even if the social worker had carried out a checklist, it would have been negative so the outcome would have been the same.

Ms E’s fall

62. I find no fault in the Home’s actions relating to Ms E’s fall.
63. The Home assessed Ms E when she moved in and carried out a mobility assessment and a falls risk assessment. The assessments were reviewed every month.
64. Ms E had an unwitnessed fall on 19 July 2023.
65. The Home called an ambulance and Ms E was diagnosed with a fractured hip. The Home completed an incident report and an investigation report into the incident. The Home also made the necessary referrals to the CQC and the Council to inform them of the incident. After the incident, the Home reviewed the mobility and falls risk assessments and amended the care plans accordingly.

Ms E’s niece

66. Mr D raised concerns about Ms E’s niece and alleged she had received money from Ms E in the past. He was advised to take the matter to the police or to make a safeguarding referral but did not do so.
67. The Council did not carry out a formal enquiry, but I note that the Council took measures such as applying to become appointee for Ms E’s benefits and deputy for her finances to ensure that any risk of financial abuse was addressed. There is no indication, as far as I am aware, that any money was taken from Ms E’s accounts after she had her stroke. In any event, it is my understanding that Mr D’s main concern regarding the niece related to her involvement of the clearing of Ms E’s property and this is outside of the remit of this investigation.

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Decision

68. There was no fault in the way the Council made decisions about the care plan for Ms E or its decision not to involve Mr D in the care planning. There was some fault in its record keeping regarding the CHC checklist but this did not cause an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman