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 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.
The Ombudsman’s role and powers
- 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)
- 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)
- 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”.
How I considered this complaint
- 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.
What I found
- 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.
- Ms X has power of attorney for her father’s finances and to make decisions about his health and welfare.
- 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.
- The Council sent Ms X a financial assessment form on 28 January.
- On 6 March the Council assigned a Social Worker to assess Mr Y’s needs.
- 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.
- 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.
- 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.
- 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.
- 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.
- On 20 April Ms X told the Council she was negotiating with Care Home A over her father’s fees.
- On 28 April Care Home A asked the Council about progress with Ms X’s funding application for her father.
- 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;
- 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.
- “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.
- 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.
- “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.”
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- On 11 August the NHS asked the Council to provide an updated Continuing Healthcare checklist, along with up-to-date supporting documents.
- 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.
- 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.
- 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.
- “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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- I recommended the Council:
- within fours weeks:
- 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;
- pays Ms X £400 for the distress it caused and the time and trouble it put her to in pursuing the complaint;
- does a person-centred risk assessment before deciding someone’s needs can be met at another care home;
- provides people with indicative personal budgets;
- responds to requests for information about third-party top-ups for care home fees;
- does not delay in sending people a care and support plan.
The Council has agreed to do this.
- I have completed my investigation as the Council has agreed to take the action I recommended to remedy the injustice caused by its faults.
Investigator's decision on behalf of the Ombudsman