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London Borough of Merton (20 004 448)

Category : Adult care services > COVID-19

Decision : Upheld

Decision date : 29 Jun 2021

The Ombudsman's final decision:

Summary: Ms X complains the Council failed to assess her father’s (Mr Y’s) needs properly, failed to identify an indicative personal budget or agree a final budget. The Council failed to meet Mr Y’s needs after his capital fell below £23,250 and failed to assess the risk to him from moving to another care home. This left him paying for his own care when the Council should have been helping to fund it. It should refund Mr Y, apologise to his daughter and pay her financial recompense.

The complaint

  1. The complainant, whom I shall refer to as Ms X, complains the Council failed to assess her father’s needs properly, failed to identify an indicative personal budget or agree a final budget. She says this resulted in her father paying the full cost of his care for too long and then having to move in with her.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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 the Council and Care Provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Ms X;
    • discussed the complaint with Ms X;
    • considered the comments and documents the Council has provided in response to my enquiries; and
    • shared a draft of this statement with Ms 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

  1. Ms X’s father, Mr Y, sold his home in 2017 and moved to the London Borough of Merton to be closer to his daughter. He went to live in Care Home A which he paid for himself (£1,400 a week in 2017). Care Home A is registered with the Care Quality Commission as a nursing home, but Mr Y stayed in a residential unit. The Council warned Ms X about the sustainability of the placement, given that the fees were higher than it would expect to pay for a care home. She told the Council they were looking into buying an annuity which they hoped would cover the fees in the long-term.
  2. Ms X has power of attorney for her father’s finances and to make decisions about his health and welfare.
  3. Ms X contacted the Council in January 2020 when Mr Y’s capital had fallen to £47,800. Anyone with less than £23,250 is eligible for council funding. The Council told Ms X it could take three months or more to assess Mr Y. Ms X told the Council her father had been in the forces and would be able to get some help with his fees from a charity.
  4. The Council sent Ms X a financial assessment form on 28 January.
  5. On 6 March the Council assigned a Social Worker to assess Mr Y’s needs.
  6. The Council received the completed financial assessment form from Ms X on 9 March. It arranged for her to visit on 13 March with the documents needed to complete a financial assessment.
  7. On 24 March the Social Worker contacted Ms X to arrange a time to assess Mr Y over the telephone. The COVID-19 lockdown meant they could not do this in person. Ms X said the cost of her father’s placement would go up to £1,636.11 a week in April. She said her father had dementia and used a wheelchair. The Council told Ms X there would have to be a third-party top-up if Mr Y was to stay at Care Home A, to make up the difference between the rate it would cost the Council to place him in a care home and Care Home A’s fee. Ms X said a charity may be able to make up the difference.
  8. On 26 March the Council tried to arrange a time with Care Home A to assess Mr Y over the telephone, but it was too busy and said to call back. The Council e‑mailed Care Home A and asked it to provide copies of Mr Y’s records for an assessment. The Council arranged to speak to Ms X about her father’s assessment at 11.00 on 31 March.
  9. On 30 March the Council told Ms X it expected her father’s capital to fall below £23,250 around the middle of May. It asked her to provide up-to-date financial statements when that happened. The Council e-mailed Care Home A again asking for copies of Mr Y’s records.
  10. The Council was three hours late contacting Ms X on 31 March. She offered to send it her father’s life story for his assessment and said she could fill in any gaps later.
  11. On 20 April Ms X told the Council she was negotiating with Care Home A over her father’s fees.
  12. On 28 April Care Home A asked the Council about progress with Ms X’s funding application for her father.
  13. The Council’s assessment of Mr Y’s needs is dated 29 April, but it appears to have completed it at a later date as it added more information after 29 April. The assessment identified eligible care needs with:
    • personal hygiene;
    • toileting;
    • being appropriately clothed;
    • managing and maintaining nutrition;
    • making use of the home safely;
    • maintaining a habitable home environment;
    • making use of necessary facilities or services in the local community; and
    • accessing and engaging in work, training, education or volunteering.
  14. On 30 April Care Home A told the Council it would accept £1,500 a week for Mr Y’s placement. It said he had been “on end-of-life” twice, so it would be very unsettling for him to move. The Council told Care Home A £1,500 was too much and it would only pay the “going rate”. It asked if the NHS was paying for Mr Y’s nursing care. It said it would need a new care plan confirming Mr Y had received end-of-life care twice and the reasons for this.
  15. On 15 May Care Home A asked the Council about progress in agreeing funding. It referred to a telephone call which is not mentioned in the Council’s records. The Council told Care Home A it was still assessing Mr Y.
  16. On 18 May Ms X sent the Council statements which showed her father had £24,901 left in capital.
  17. The Council called Care Home A on 19 May to assess Mr Y, but no one was available. On 20 May the Council got most of the information it needed for Mr Y’s assessment, apart from an Occupational Therapist report on moving and handling. Ms X told the Council her father had a fall resulting in a cut to his face which needed stiches.
  18. On 1 June the Council sent Ms X forms relating to an NHS Continuing Healthcare checklist. She provided her comments the same day. She told the Council her father’s next invoice needed paying on 4 June. The Council told her not to worry about the fees.
  19. On 10 June the Council told Ms X it had completed Mr Y’s assessment, was “waiting for care and support plan” and its Outcomes Forum would consider her father’s package of care next week.
  20. The Council’s care and support plan for Mr Y says it was completed on 11 June, but it included information added after that date. It said:
    • “although we have no control over this, my recommendation would be to ask [Care Home A] to keep [Mr Y] at the Council’s rate for him to remain at [Care Home A] due to the impact on his health and well-being if he was to move to another home”;
    • the Council had asked Care Home A to provide evidence “as will not be paying for one-to-one”;
    • the NHS decided he was not eligible for Funded Nursing Care on 17 June;
    • on 19 June it told Ms X it may have to move Mr Y to another care home if it could find one which could meet his needs at a lower rate.
  21. On 12 June the Council asked the NHS about the next steps for Mr Y’s Continuing Healthcare assessment. It included an e-mail from Care Home A saying he needed one-to-one care due to his high falls risk and impulsive behaviour. The NHS asked the Council for more information about Mr Y.
  22. On 15 June Care Home A provided the Council with more information about Mr Y’s needs. It said he:
    • was on a fortified diet, having recently lost weight, but could eat and drink independently;
    • could not walk so used a wheelchair. His dementia meant he would forget he could not walk. He had sensor mats on either side of his bed. He had fallen four times in April. The Falls Clinic had recommended one-to-one support;
    • often refused assistance with personal care (for example by waving his arms and shouting), but it did not have behavioural charts in place;
    • had not been referred to the Mental Health Team, although the Falls Clinic had said he would benefit from a referral; and
    • was compliant with his medication.
  23. The Council sent the NHS an updated checklist for Continuing Healthcare. On 17 June the NHS said it needed more evidence as it did not agree with all the Council’s scores. Nevertheless, it said the checklist triggered the need for a full assessment, but it was not doing face-to-face assessments because of COVID‑19. However, it said the Council could fund one-to-one support under Government guidance until a face-to-face meeting took place.
  24. On 19 June the Government updated its guidance on Admission and care of residents in a care home during COVID-19. This said:
    • “To minimise the risk to residents in care homes during periods of sustained community transmission, all residents being discharged from hospital or interim care facilities to the care home, and new residents admitted from the community, should be isolated for 14 days within their own room. This should be the case unless they have already undergone isolation for a 14-day period in another setting, and even then, the care home may wish to isolate new residents for a further 14 days.”
  25. On 23 June the Council’s Outcomes Forum decided it would meet Mr Y’s needs at a care home which accepted its “rates”. The brief record of the decision says the NHS Continuing Healthcare checklist had been done and “assessed to meet nursing needs”, although no formal decision had been made.
  26. On 25 June the NHS told the Council it could not complete an assessment for NHS Continuing Healthcare (because of COVID-19) but Care Home A should move Mr Y to the nursing unit and the NHS would pay for Funded Nursing Care “without prejudice”. Mr Y’s Social Worker identified three nursing homes which could have met his needs, subject to a decision on his eligibility for NHS Funded Nursing Care.
  27. On 26 June the Council told Ms X it would continue funding Mr Y’s care but in another care home. It said it needed Care Home A to provide evidence of Mr Y’s need for one-to-one care before it could finalise anything. It told Ms X there were some nice care homes which could provide the same care for Mr Y. It said it would speak to her about this next week.
  28. On 29 June Ms X told the Council she was disappointed about the outcome. She said she was concerned about the impact on her father from moving, which would add to his confusion and could increase the risk of catching COVID-19. She said she did not understand how moving Mr Y could be in his best interests. She said they had asked the RAF Benevolent Fund for financial support and asked the Council how much they would need to top-up to meet Care Home A’s fees.
  29. The Council identified three care homes for which it agreed fees on a case-by-case basis:
    • Care Home B which had both residential and nursing vacancies;
    • Care Home C which had nursing vacancies but no residential or dementia vacancies; and
    • Care Home D which had both residential and nursing vacancies.
  30. On 1 July the Council identified these homes with vacancies:
    • Care Home B – residential £815 a week, nursing £1,100;
    • Care Home D – residential £730, nursing £941;
    • Care Home E – residential £690.10, nursing £865.62; and
    • Care Home F – nursing £785.44.
  31. On 8 July Mr Y’s Social Worker told Ms X she would discuss her father’s case with her manager. The Social Worker sent Ms X a copy of her father’s assessment but not the care and support plan.
  32. On 15 July the Council told Ms X to look at Care Home B and Care Home D. After contacting the care homes, Ms X told the Council she could not visit them because of COVID-19 and was not happy about moving her father on the basis of a virtual tour. She said Care Home D would cost £1,270 a week and had some negative reviews about the lack of one-to-one care, slow responses to alarms and high staff turnover, all of which would impact negatively on her father. She said Care Home B would cost £1,300 a week and also had a negative review which raised issues about the management of medication. She also raised concerns about Mr Y having to be isolated in his room for “48 hours” (in fact 14 days) after any move. She said this, along with moving him somewhere new with staff he did not know, would be traumatic for him.
  33. On 20 July the Council asked Ms X if she was rejecting Care Homes B and C. Ms X responded by saying a move would not be in her father’s best interests.
  34. On 21 July the Council Outcomes Forum decided it would consider a placement of Ms X’s choosing at a rate comparable to its own. This was because Mr Y’s needs could be met by a home at its “rate”.
  35. On 21 July Ms X told the Council her father’s fees for June and July were outstanding. She asked if she should pay them, noting this would take his capital down to £12,000. The next day Ms X told the Council she would pay the outstanding fees by the end of the day. However, it appears she did not do this until September (see paragraph 46 below).
  36. On 22 July the Council noted the NHS had agreed to pay Funded Nursing Care. It appears this related to its earlier decision to pay funded nursing care “without prejudice” (see paragraph 29 above).
  37. On 29 July the Council discussed Mrs Y’s need for one-to-one care with Care Home A. It said:
    • it relied on the sensor mat when he was in bed;
    • he could be left for up to an hour when occupied (for example when watching TV) but sometimes he needed more frequent support;
    • it had not moved Mr Y to the nursing unit; and
    • Mr Y needed two people to help when mobilising and with personal care.
  38. The Council sent Ms X a copy of her father’s care and support plan and told her:
    • its Outcomes Forum had not agreed to fund Mr Y’s placement at Care Home A, as it felt his needs could be met at another (more affordable) care home;
    • Ms X had declined Care Home B and Care Home D because she could not look round them due to COVID-19, negative reviews and the need for Mr Y to quarantine for 14 days;
    • the fees the care homes had quoted to Ms X were for a self-funder and the Council had arranged considerably lower fees;
    • most care homes would attract some adverse comment;
    • Care Quality Commission reports were often out-of-date as it did not inspect homes annually;
    • Care Home G had a vacancy and it wanted to invite it to assess Mr Y’s needs by telephone; and
    • in line with Government Guidance, Mr Y would have to quarantine for two weeks if he moved to Care Home G.

Although the Council did not tell Ms X, the cost of a nursing placement at Care Home G was £1,100 a week (£916.08 plus £183.92 in NHS Funded Nursing Care).

  1. On 31 July Ms Y sent the Council a long list of comments on the care and support plan. She asked why it had never discussed top-up fees with her. In a separate e‑mail she questioned the assessment of her father’s needs.
  2. On 3 August Ms X told the Council she had provided evidence of her father’s remaining capital on 15 May and received a provisional assessment of her father’s contribution towards the cost of his care. She said he needed a personal budget before his contribution could be finalised.
  3. Following an e-mail on 6 August, the Council told Mr Y’s Advocate his indicative personal budget was £670 a week (for dementia residential care). It said his provisional financial contribution was £286.88 for the first four weeks (of a Council funded placement) and £183.92 after that. It said the rate it expected to pay for dementia nursing care was £853.92 (including £183.92 in NHS Funded Nursing Care). It said the NHS had indicated it would probably award Mr Y Funded Nursing Care but could not pay this for a residential bed. It said it could not give final figures until a fee had been agreed, including any top-up.
  4. On 11 August the NHS asked the Council to provide an updated Continuing Healthcare checklist, along with up-to-date supporting documents.
  5. On 3 September Ms X told the Council she was going to pay her father’s debt (£24,005.06) to Care Home A, which would reduce his capital to £400.
  6. On 10 September the Council e-mailed Ms X setting out what third party top-up was likely to be required if Mr Y remained at Care Home A. This was based on a weekly fee of £1,600. It said it would require a top-up of £643.11 for the first four weeks and £746.08 after that. It noted the fee was likely to be higher as Mr Y was currently in residential care and the estimates were based on him being in nursing care.
  7. The Council replied to complaints from the Advocate on 11 September. It said:
    • it completed Mr Y’s assessment on 11 June, having had problems getting the information it needed from Care Home A;
    • it apologised for any confusion over Mr Y’s financial assessment and confirmed what his contributions would be;
    • it started work on a care and support plan on 11 June and sent the completed document to Ms X on 29 July;
    • it apologised for confused messages about the assessment of Mr Y’s needs, his care and support plan and the NHS Continuing Healthcare Assessment;
    • as Ms X would not consider a placement in an alternative care home it could not confirm Mr Y’s personal budget but had now based this on what it would usually expect to pay (£670 a week);
    • confirmed the likely costs of a top-up if Mr Y remained in Care Home A;
    • the current placement was not meeting Mr Y’s needs as he needed a nursing placement;
    • a move to a nursing bed would meet both Mr Y’s health needs and his financial needs;
    • there was no dispute that Mr Y lacked the mental capacity to make a decision about where his care needs should be met; and
    • Mr Y’s family had not accepted its proposals for meeting his needs.
  8. Mr Y went into hospital following a series of seizures and was discharged on 14 September.
  9. On 21 September the Council sent the NHS an updated checklist for Continuing Healthcare, noting it was still waiting for Care Home A to provide information it had requested. It asked Ms X what top-up she could make if her father remained at Care Home A. Ms X said she wanted to wait for the outcome of the NHS Continuing Healthcare checklist (anyone who qualifies for full NHS Continuing Healthcare does not have to pay for their care).
  10. On 30 September, the Council told Ms X the average cost of a nursing bed at Care Home A was £1,832 a week. This meant a top-up of £875.12 would be needed for the first four weeks and £978.08 afterwards.
  11. The NHS Continuing Healthcare Decision Support Tool is dated 13 October. It says Mr Y did not qualify for full Continuing Healthcare but did qualify for Funded Nursing Care. The Council signed the document on 9 November.
  12. The Council spoke to Ms X on 5 November. It said the NHS should confirm its decision on Continuing Healthcare on 9 November. Ms X said they were looking into moving her father back into the community with a package of care. The Council said Care Home B and Care Home E had nursing vacancies but Ms X declined.
  13. On 11 November the Council told Ms X it would no longer be responsible for Mr Y after he went to live with her, as she lives in another Borough. It gave her advice on contacting other bodies over the arrangements.
  14. The Council says:
    • “The view that was taken by managers and the Outcomes Forum was that there was no evidence to suggest that [Mr Y] would not settle at a new care home establishment”.
    • “The social worker in her assessment identified a possible risk to his mental health, of moving to another home. Managers of the Outcomes Forum through many collective years of professional experience with situations such as this and appreciating independent guidance such as that of the Alzheimer’s Society, were assured that if [Mr Y] had a planned and well supported transition, allowing for a period of settling in, research shows there are low risks to the person resulting in appreciable harm or suffering. In addition, by following this ethos, the Forum was assured, that as the Alzheimer’s Society states, staff with ‘new faces’ who may be strangers soon become friends. Moreover, [Mr Y] was subsequently moved by his daughter, with advice from the social worker.”

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

  1. The Council did not have a duty to meet Mr Y’s needs until his capital fell below £23,250. It appears that happened towards the end of May. It is not clear when the Council completed Mr Y’s assessment. After the telephone call with Care Home A on 20 May it was waiting for an Occupational Therapy assessment. There is nothing in its records to say when this arrived. On 10 June it told Ms X it had completed the assessment. Whatever the precise date, the Council had a duty to meet Mr Y’s needs after his capital fell below £23,250. But it did not do so. That was fault by the Council. There was no basis to move Mr Y during the first lockdown, when his needs could be met where he was.
  2. On 23 June the Council’s Outcomes Forum decided Mr Y’s needs could be met in a cheaper care home. But at that point there was no alternative but to meet his needs in Care Home A. The NHS could not complete a Continuing Healthcare Assessment. However, it told the Council it would pay Funded Nursing Care on an interim basis if Mr Y moved to a nursing unit in Care Home A. But the Council failed to pursue this, which would have postponed any need to consider moving Mr Y until a decision could be made on his eligibility for NHS Continuing Healthcare. That was fault.
  3. The Council offered Ms X alternative placements for her father on 15 July. After she raised objections, its Outcomes Forum again decided Mr Y’s needs could be met in a cheaper care home. There is no evidence the Council assessed the risks to Mr Y from moving. The Council has retrospectively referred to some generic information on moving people with Alzheimer’s. But that is not evidence of a person-centred risk assessment, which is what the Council should have done. This fault means the Council has failed to evidence the availability of an alternative placement to meet Mr Y’s needs.
  4. Under the Care and Support Statutory Guidance:
    • “An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process.”

But the Council did not share an indicative personal budget with Ms X and only set this out in an e-mail to the Advocate on 6 August. That was fault by the Council.

  1. Under the Care Act 2014 councils have a duty to provide information and advice. This is so people can make informed decisions about care. But the Council:
    • drew up a care and support plan in June but did not send it to Ms X until 29 July;
    • did not engage with Ms X’s request for information about top-ups until 10 September.

That was also fault by the Council.

  1. The Council’s faults caused injustice to Mr Y because he had to pay the full cost of his care when the Council should have been contributing towards it. The Council needs to remedy this by refunding Mr Y (less his assessed contribution) from the date his capital fell below £23,250 until he went to live with his daughter. The Council also needs to apologise to Ms X and pay her £400 for the distress it has caused and the time and trouble she has been put to in pursuing the complaint.

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Agreed action

  1. I recommended the Council:
    • within fours weeks:
      1. refunds Mr Y for the cost of his care (less his assessed contribution but including 2.58% interest) from the date his capital fell below £23,250 until he went to live with his daughter;
      2. pays Ms X £400 for the distress it caused and the time and trouble it put her to in pursuing the complaint;
    • within eight weeks identifies the action it needs to take to make sure it:
      1. does a person-centred risk assessment before deciding someone’s needs can be met at another care home;
      2. provides people with indicative personal budgets;
      3. responds to requests for information about third-party top-ups for care home fees;
      4. does not delay in sending people a care and support plan.

The Council has agreed to do this.

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Final decision

  1. I have completed my investigation as the Council has agreed to take the action I recommended to remedy the injustice caused by its faults.

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Investigator's decision on behalf of the Ombudsman

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