Summary: Mrs X complains the care home where the Council had placed her brother, Mr Y, failed to take him back when he was ready to leave hospital at the end of March 2020, resulting in him spending too long in hospital, catching COVID-19, and spending time in another care home before moving to alternative permanent accommodation. The council and the care home should not have allowed Mr Y to become the victim of a dispute between them over the cost of meeting his needs, which prevented him from leaving hospital when he was ready to do so. That was an injustice which requires a remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains Parkside Lodge, the care home where the Council had placed her brother, failed to take him back when he was ready to leave hospital at the end of March 2020, resulting in him spending too long in hospital, catching COVID-19, and spending time in another care home before moving to alternative permanent accommodation. She says this caused unnecessary distress to both her and her brother.

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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, sections 30(1B) and 34H(i), as amended)
4. 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)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether councils and care providers followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
6. The Human Rights Act 1998 brought the rights in the European Convention on Human Rights into UK law. Public bodies, including councils, must act in a way to respect and protect human rights.
7. Councils must give due regard to human rights when making their decisions. We could consider a failure to do this was fault. Councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal. Only the courts can decide whether an individual’s human rights have been legally breached by a council.
8. Article 8 of the Human Rights Act says everyone has a right to respect for the private and family life, home and correspondence. This right is qualified. This means a council can interfere with it in the interests of public safety, protection of public order, health, morals and protection of rights and freedoms of others.

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How I considered this complaint

9. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

10. Mrs X’s brother, Mr Y, has mental health conditions, Parkinson’s disease and severe arthritis. He has problems with mobility. He went to live at Parkside Lodge in the 1980s.
11. The Council updated Mr Y’s care and support plan on 6 January 2020. It increased his personal budget by £7,369.35 to £59,835.36 a year up to March 2020. The care and support plan refers to an increase in 1:1 support from 2 to 3.5 hours a day. The care and support plan says:
• moving to other accommodation would be extremely unsettling and could cause huge detriment to Mr Y’s mental health;
• assistive technology (such as bed and chair sensors) was in place to reduce the need for constant supervision;
• he now needed 2:1 support with personal care and appointments/outings “of which he has many”;
• he now needed support propelling his wheelchair and with all transfers; and
• his continence needs had increased, so toilet breaks had been built into his daily routine to reduce the need for transfers.
12. Parkside Lodge was unhappy with the amount of 1:1 support in Mr Y’s personal budget and asked the Council to review this.
13. The Council asked an Occupational Therapist to advise Parkside Lodge on a fluctuating care plan for Mr Y’s morning routine. The Occupational Therapist’s 15 January letter to Parkside Lodge says:
• she had observed two transfers out of bed; on one Mr Y had been very mobile but on the other he had difficulty following instructions and supporting his body movements;
• staff needed to give Mr Y the opportunity to follow requests and only use a hoist when he could not complete a safe transfer;
• staff needed to watch out for specific signs indicating the need to use the hoist;
• two people needed to support Mr Y with all transfers;
• to continue with stand transfers from the shower chair to the toilet and into/out of the recliner chair, and request a further assessment if Mr Y needed a hoist for such transfers; and
• a glide sheet had been provided to help position Mr Y in bed in the evenings.
14. The Council held a meeting at Parkside Lodge on 22 January to review Mr Y’s needs. It completed the review on 11 February. The review notes Parkside Lodge’s views:
• Mr Y needed supervising when eating because of the risk of sucking food into his airways and eating quickly;
• he received 2:1 support in the mornings which could take 40 to 60 minutes;
• his evening routine took from 30 to 60 minutes;
• he was using a wheelchair when mobilising inside and outside;
• he was easily tired and had time in his schedule for naps; and
• the Occupational Therapist had provided advice on supporting Mr Y to stand and introduced the use of a hoist when he could not stand.
15. The review says:
• Mr Y enjoyed trips out but, due to advancing health problems, liked to engage in more relaxing activities, such as watching TV;
• he needed support from two people with medical appointments, which could include Mrs X and staff from Parkside Lodge, but his GP was now doing home visits; and
• his indicative personal budget was £60,204.82 a year.
16. The Council updated Mr Y’s care and support plan. This confirmed his final personal budget was £60,204.82, and noted this was much less than a supported living placement which would cost around £146,146. It says Mr Y needed:
• two staff to support his morning routine, which could take up to 2 hours with a hoist needed on a bad day;
• increasing supervision in the home to ensure he was not trying to get up without support;
• two staff to help with frequent health appointments; and
• 3.5 additional hours a day, which were already in place, to support him with increasing mobility needs and health complexities (which the Council would review every three months).
17. At a meeting on 26 February Parkside Lodge asked Mrs X to make additional payments because it believed the Council was not funding Mr Y’s care properly. Mrs X reported this to the Council.
18. Mr Y went into hospital on 17 March with pneumonia.
19. On 25 March the Council told Parkside Lodge it would continue to pay the existing funding for three months. It said if it did not want to accept this it could serve notice. It said when Mr Y was ready for discharge it would discuss any increase in his needs with the hospital, as it would not be able to visit because of COVID-19.
20. On 26 March Potensial Limited, which runs Parkside Lodge, told the Council it would not accept Mr Y back until it had assessed him. It said it had visited him in the hospital and had serious concerns about his changing needs. It said it would assess him on 31 March but, as it stood, would not accept him back as it would be an unsafe discharge. The Council asked what needs had changed as it said this was not reflected in what the hospital said about him. Potensial Ltd said mobility and feeding.
21. On 27 March, when Mr Y was ready to go home, the Council exchanged several e-mails with Potensial Limited. It also completed a review of Mr Y’s needs.

E-mails

22. The Council said an Occupational Therapist would assess Mr Y’s mobility. It said there had been no change to his feeding so the existing Speech and Language Therapist’s guidance remained appropriate. Potensial Limited said it could not meet Mr Y’s mobility needs with just three additional hours a day. It said Mr Y could not hold a spoon when it visited him. The Council said Potensial Limited could serve notice but Mr Y still needed to return home.
23. The Council asked for a breakdown and explanation of all support delivered task by task over a day. It said it would consider the sufficiency of the funding over the next few weeks. It said it may be able to provide a reablement worker to assess the time taken to complete tasks, unless COVID-19 prevented this. Potensial Limited said it had provided a breakdown by task at the meeting on 22 January, but the Council turned down its request for more support hours. It told the Council it was serving notice, ending on 23 April, and would still need to assess Mr Y before he could return. The Council said it had rejected the request (in January) for an extra 6.5 hours a day as there was no evidence to justify it. It therefore needed a further breakdown by task if it was to agree more hours.
24. The Council said everyone at the hospital agreed the current package of care was enough to meet Mr Y’s needs. It said it would raise a safeguarding concern as there was no need to delay Mr Y’s discharge from hospital. Potensial Limited said it had justified 6.5 hours and anything below that would be unsafe. It said it needed to do its own assessment.

The review

25. The review says:
• Mr Y (whose views could not be obtained for the review) had always said he wanted to continue living at Parkside Lodge, where staff respected his daily routines as much as possible;
• Mrs X wanted him to return to Parkside Lodge, as staff were aware of his routines and idiosyncrasies;
• Potensial Limited, felt Mr Y’s needs had changed significantly (around mobility and feeding) so needed more hours to care for him safely;
• Parkside Lodge would assess Mr Y at the hospital on 31 March;
• Mr Y had been reluctant to eat in hospital but could feed himself when motivated to do so; and
• although Mr Y had not stood on his feet in hospital, the fluctuating care plan (see paragraph 9 above) still reflected his current mobility needs.
26. The review identified these actions for the Council:
• discuss the possibility of extra funding for Mr Y’s placement with management; and
• look for alternative placements if extra funding could not be justified.
27. The Council noted Mr Y was on a respiratory ward and needed to be off the ward as soon as possible to reduce the risk of catching an infection.
28. Potensial Limited wrote to Mr Y on 27 March giving him 28 days’ notice. It referred to the meeting held on 22 January and said it had explained that he needed specialist care provision because of the change in his health needs. It said it had followed all the recommendations by making adaptations to the environment at Parkside Lodge. It said it had told Mrs X about the need for more specialist service provision on 26 February and she had asked for more information to help her make a decision, which it provided on 27 February. It would do everything it could to support Mr Y during the notice period. However, it needed to assess him before he could return to Park Lodge and would do this on 31 March. It also needed to be satisfied there was a clear plan in place for meeting his needs while another placement was found for him.
29. On 31 March the hospital noted Parkside Lodge would not accept Mr Y back without first assessing him. But the hospital was on lockdown so Parkside Lodge could not visit him. The hospital spoke to Parkside Lodge about Mr Y’s care needs but it said Potensial Limited’s Area Manager would need to make the decision. The Area Manager told the hospital Parkside Lodge did not have the resources to meet Mr Y’s needs and so it had served notice. The hospital identified the need for an emergency placement for Mr Y to ensure a timely and safe discharge within the context of COVID-19. Parkside Lodge said it would not accept Mr Y back and would turn the ambulance away if the hospital tried to return him.
30. The Council’s case notes say that on 1 April it decided not to fund extra hours at Parkside Lodge. There is nothing to explain what consideration was given to the risks to Mr Y when making that decision.
31. On 2 April the Council identified a supported living placement for Mr Y to move to.
32. On 7 April Mr Y’s belongings were moved from Parkside Lodge to the supported living placement.
33. On 8 April Mrs X told the Council the patient in the bed next to Mr Y had been exposed to COVID-19. The supported living placement said it was not prepared to take Mr Y until 16 April.
34. On 9 April the hospital proposed discharging Mr Y to an interim placement. The Council noted this would likely cause him distress.
35. On 10 April Mr Y tested positive for COVID-19 and was moved to another ward at the hospital.
36. On 22 April the hospital told the Council Mr Y was ready for discharge and it wanted him to leave on 23 April. The supported living placement said it could take him from 24 April, provided he had a negative COVID-19 test result.
37. On 26 April Mr Y moved to an interim placement, as he had not had a COVID-19 test, due to a lack of testing.
38. Mr Y tested negative for COVID-19 on 8 May.
39. On 14 May Potensial Limited apologised to the Council for the problems with Mr Y’s placement at Parkside Lodge.
40. On 18 May Mr Y told Mrs X he was sad and repeated “Parkside Lodge”.
41. Mr Y moved to the supported living placement on 27 May.
42. Potensial Limited responded to a complaint made by Mrs X in June. It accepted there had been breakdowns in communication. It said it had put plans in place to improve communications. It said it understood there had been a meeting to discuss Mr Y’s discharge from hospital but it had not been invited so had not been able to ask for additional support. However, it accepted serving notice while Mr Y was in hospital was insensitive and it should have delayed that for a later date. It told Mrs X it would share the learning from her complaint across the management team. It apologised for the distress and frustration she and Mr Y had encountered. It offered support with Mr Y’s transition to supported living, but noted Mrs X had already turned the offer down. Mrs X did not take up the offer because of concerns the presence of staff from Parkside Lodge would confuse her brother and make him think he would be returning there.
43. The Council says Mr Y has settled in the supported living accommodation and his mobility has improved.

Is there evidence of fault by the Council which caused injustice?

44. With reference to paragraph 4 above, the Council is accountable for any faults by Parkside Lodge and Potensial Limited.
45. At the heart of this complaint is a dispute between the Council and Parkside Lodge about the cost of meeting Mr Y’s needs. This dispute had been going on for several months. Mr Y became the victim of that dispute, which should not have happened. Potensial Limited accepts it should not have given notice while Mr Y was in hospital. This caused avoidable distress to Mr Y which is an injustice. There is no evidence to suggest Parkside Lodge had not been meeting Mr Y’s needs before he went into hospital, or that his needs had increased while he was there. But Potensial Limited refused to let him return during the notice period. Mrs X should not have been asked to pay more money for her brother’s care. Any requests for additional funding need to be addressed to the Council. These are faults for which the Council is accountable.
46. I also find fault with the Council for failing to consider the risks to Mr Y when deciding not to fund extra support for him at Parkside Lodge during the notice period. It is clear from the evidence that any change in Mr Y’s care arrangements would cause him distress, as it did, because continuity and routine are very important to him. As reflected in the Council’s records, the delay put him at increased risk of catching COVID-19, which also happened.
47. The Council was also at fault for failing to consider whether Mr Y’s rights under Article 8 of the Human Rights Act 1988 were engaged (see paragraphs 6-8 above). This reflects the fact that Parkside Lodge had been his home for over 30 years.
48. Mr Y should have been able to return to Parkside Lodge on 27 March. This would have enabled a smooth transition to the supported living placement and avoided the need for him to spend so long in three different care settings. It would have avoided considerable distress to Mr Y and a lot of time and trouble for Mrs X.

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Agreed action

49. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I have found fault with the actions of Potensial Limited as well as the Council, I have just made recommendations to the Council.
50. I recommended the Council:
• within four weeks pays Mr Y £500 to recompense him for the avoidable distress caused to him;
• within four weeks writes to Mrs X apologising for the time and trouble she has been put to in pursuing the matter on behalf of her brother and pays her £200;
• within eight weeks identifies the lessons to be learned from this complaint and the action to be taken to address them; and
• within 12 weeks provides evidence the actions have been taken.

The Council has agreed to do this.

51. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I will send it a copy of my final decision statement.

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Final decision

52. I have completed my investigation, as the Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman