Norfolk County Council (18 000 389)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 18 Dec 2018

The Ombudsman's final decision:

Summary: There is no evidence of fault by Norfolk County Council in its handling of, and decisions related to, Mr Y’s move into a residential care home following admission to hospital in late 2017. Its handling of her complaint was poor however and the Council will take action to recognise the injustice this cause Ms X and ensure that its handling of future complaints is sufficiently thorough and timely.

The complaint

  1. The complainant, whom I shall refer to as Ms X, complains about the Council’s handling of matters related to residential care provision for her father, Mr Y, in late 2017 and early 2018. Specifically she says the Council:
  1. failed to properly explain the reasons her father needed to move into residential care following a third hospital admission in late 2017 given he had been allowed to return home following two previous hospital admissions;
  2. wrongly states that Ms X agreed to her father moving into residential care;
  3. social workers told her they would consult with medical staff about Mr Y’s discharge from hospital and call her back on the same day but discharged him to a care home in Q area and told her about this after he had already been moved;
  4. moved him into a care home in Q area even though she had repeatedly asked for a placement in Norwich stating there were no care home places available in Norwich and then wrongly said the reason for her request was related to her own convenience;
  5. failed to tell her why it discharged Mr Y to this particular care home; and
  6. provided inadequate responses to her complaints to the Council about this.

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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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I discussed the complaint with Ms X and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
  2. I gave the Council and Ms X the opportunity to comment on my draft decision and took account of their responses before reaching a final decision on the complaint.

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What I found

  1. 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) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
  2. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
  3. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
  • Does the person have a general understanding of what decision they need to make and why they need to make it?
  • Does the person have a general understanding of the likely effects of making, or not making, this decision?
  • Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
  • Can the person communicate their decision?

 

  1. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
  2. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
  3. Continuing Health Care (CHC) provision is made following assessment where on discharge from hospital, a practitioner decides that a patient needs ongoing healthcare rather than, for example, residential care.
  4. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
  5. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
  6. The council has to arrange to accommodate the person in a care home of his or her choice provided:
    • The accommodation is suitable for the person’s assessed needs;
    • To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
    • The accommodation is available; and
    • The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.
  7. Councils must disregard the property from the financial assessment for the first twelve weeks of an individual becoming a resident of a care home.
  8. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 state that the body to whom a complaint about adult social care provision is made must investigate the complaint in a manner appropriate to resolve it speedily and efficiently and keep the complainant informed as to progress. The Regulations go on to say that where a response is not provided with six months from the date the complaint was received the Council must write to the complainant explaining why this is and send the response as soon as possible after this.

What happened

  1. Mr Y was admitted to hospital in early November 2017. His condition at the time of his admission is described in the medical records as “…Very confused at ward level. Wandering + hallucinating. Unsafe for discharge”. The hospital ward staff made a referral to the hospital social work team very soon after he was admitted.
  2. At the time he was admitted to hospital Mr Y was 92 years old, diagnosed with dementia and living at home alone. Ms X was noted to provide regular support and, additionally, Mr Y was receiving daily care at home to assist him with meals and to meet his identified care needs. The hospital’s notes say that Mr Y’s carer had reported that Mr Y’s dementia had got worse over recent months.
  3. One of the Council’s social workers completed a mental capacity assessment around two weeks after Mr Y was admitted to hospital. This assessment considered whether Mr Y had capacity to make a decision on whether it was safe for him to return to his own home. The assessment notes that Mr Y repeatedly stated that he wanted to return to his own home where his wife and daughter lived and would be able to look after him. The assessor notes that Mr Y’s wife had died some years previously and his daughters did not live at his home and had not done so for many years.
  4. The Council says that a social worker met Ms X on 20 November to discuss Mr Y’s condition. The social worker’s notes of this discussion state “Officer Z reports: Met with Ms X (daughter) and explained the concerns raised by MDT (medical discharge team) in relation to the patient’s return home. She has grasped the implications this may entail in relation to risks. She does not hold lasting power of attorney which meant had she had further reservations regarding the patients discharge, a Best Interest (formal) meeting would need to be convened. However she has stated a best interest formal meeting was not necessary as she has seen the merits of the patients admission to a residential placement. Accordingly, I will generate a CHC referral as a change of accommodation is now being pursued”. Ms x does not agree that she “saw the merits” of her father moving into residential care but agrees she did decline to attend the best interests meeting as she believed a decision had already been made.
  5. A CHC assessment was completed in early December. It noted that Mr Y lived alone and that Ms X said she had noticed a deterioration in Mr Y’s memory over the last couple of months and this meant he was no longer able to manage basic tasks. It notes Mr Y had not been eating properly, was forgetting to take medication and had left the gas hob on, on two occasions. The assessor noted that he had met Ms Y and she considered Mr Y could return home. However, the assessor also notes that “…therapists and clinicians…are all agreed that he requires some sort of placement in order for him to meet positive wellbeing outcomes. Mr Y’s confusion and dementia underlies their consensus about his discharge destination. I too agree with their conclusion as I do not believe he would be unable to cope at home, even with a package of care in situ”. The assessment concluded that Mr X did not have medical needs that required CHC provision and recommended that his needs could be met in residential care.
  6. The social worker completed an assessment on 6 December. Again this noted that Ms X wanted Mr Y to return home but that people looking after Mr Y did not consider he would be able to manage this. The social worker added that he also considered Mr Y would be unable to cope at home even with a package of domiciliary care. The social worker considered Mr Y was at high risk of falling at home, that he would be exposed to unnecessary risk at home and may be unable to get help if he needed it were he to return home given his cognitive abilities in relation to dementia. The multi-disciplinary team notes in December (signed by the social worker and a nurse) states that the CHC assessment had concluded the Mr Y did not meet the criteria for CHC and his care needs could be met by social care provision. The notes go on to say that Ms X “…indicated that she understood the outcome but did not wish to support the social worker with discharge planning to a residential setting”.
  7. The social worker began to seek a residential placement for Mr Y in the area Ms X said she preferred in early December. The initial referral noted that Mr Y did not have capital over the capital threshold. This means the Council was seemingly aware from the outset that Mr Y would not be able to fund his own residential care placement. The Council says that there were no vacancies in homes which accepted the Council’s payment rate in Ms X’s preferred area. The Council’s records show that the social worker contacted 35 residential care homes seeking a place for Mr Y. The search included a number of care homes near Ms X’s preferred area. The social worker did manage to find a place in a home that accepted the Council’s rate but this was not in Ms X’s preferred area.
  8. The Council says that of those homes it approached initially, a number required additional payment (above the rate paid by the Council) or involved sharing a room or did not yet have a room but were identified as possibly having one shortly. The Council says other homes that said they had a vacancy were further away than those pursued.
  9. The care home that was initially identified as having a place was not in or near Ms X’s preferred area but was suitable to meet Mr Y’s care needs and had a space available. That care home did not respond to the social worker’s attempts to make contact however and so an alternative place in the home that Mr Y was in fact discharged to was approached.
  10. The Council says the social worker told Ms X that a home had been identified outside her preferred area and says that Ms X was not happy with the distance that would be involved in visiting him. The Council says that the hospital was ready to discharge Mr Y however and so he needed to move out. It says the move to the identified home with vacancies was never intended to be permanent and says the arrangement would be reviewed in four weeks at which point placement in a home in Ms X’s preferred area could be looked at again.
  11. Mr Y left the hospital and moved into the identified care home in mid-December. The correspondence between the Council and Ms X related to her complaint indicate that Mr Y died around late December 2017/January 2018.
  12. The Council has provided a copy of a financial assessment completed in April 2017. The form records that the assessment remained applicable in November 2017. The assessment includes information about Mr Y’s income (benefits and pensions), savings and expenditure. This assessment was originally completed in relation to domiciliary care provision but was later applied to residential charging. The social work notes concluded that Mr Y was assessed as not being required to contribute to the costs of residential care. The financial assessment does not take into account the value of any property that Mr X owned but the value of any property is disregarded for the first 12 weeks of any residential provision.

Ms X’s complaint to the Council

  1. Ms X complained to the Council in late December 2017. She complained about a number of matters that included the Council’s decision that her father should be placed in residential care as she did not agree with this and also she said the Council had failed to identify a place in a residential care home in her preferred area and also that the care home he was in was of a poor standard. She complained also that her father had been told her father had moved into the care home after the move had taken place.
  2. The Council provided an initial response in around a month but when Ms X followed this up as she was dissatisfied with the response she received it then took the Council around two months to provide a substantive response after she had chased it up.
  3. In its response to my draft decision on the complaint the Council stated it complies with the statutory social care complaints regulations in terms of the timescales for its response and points out the Regulations state that a response is expected to be provided within six months.

Was the Council at fault and did this cause injustice?

  1. There is no evidence that leads me to conclude that the Council failed to properly explain to Ms X the reasons her father needed to move into residential care in late 2017 even though he had been allowed to return home following two previous hospital admissions. The notes of various assessments and discussions demonstrate that numerous professionals including the social worker and medical professionals providing care to Mr Y considered his level of confusion, propensity for falling and lack of understanding and insight into his own circumstances meant he would be unable to manage at home even if he was receiving domiciliary care and visits from Ms X. The evidence shows that the social worker did discuss this with Ms X on at least one occasion. She is noted to have disagreed and to have stated she would not become involved in making arrangements for any move into residential care.
  2. I have seen no evidence to suggest that the Council’s records state that Ms X agreed to her father moving into residential care. The notes are clear in stating she did not agree though they do also at points state that she accepted the reasons staff put forward that he would be unsafe returning to live in his own home.
  3. I have not seen evidence to confirm that social workers told Ms X they would consult with medical staff about Mr Y’s discharge from hospital and call her back on the same day but then discharged him to a care home in Q area and told her about this after he had already been moved. Given this there are no grounds for me to reach a decision on whether there was fault. However, I accept that Mr Y was ready for discharge from hospital and that the options around where to discharge him to (in terms of availability of suitable places in care homes that accepted the Council’s usual rate) had been fully considered.
  4. I accept that the Council moved Mr Y into a care home in Q area even though she had repeatedly asked for a placement in her preferred area because it said there were no care home places available in her preferred area. I accept that the Council approached a large number of care homes and that it does not appear there was a suitable vacancy in a home in her preferred area. I do not consider I have seen evidence that officers said the reason for her request was related to her own convenience though it is noted that she told the social worker that Mr Y would be more easily visited by family members if he was to move into a care home in her preferred area.
  5. Ms X says the Council failed to tell her why it discharged Mr Y to this particular care home. I acknowledge that the Council’s records indicate that thirteen of the the 35 care homes the social worker approached said they had a vacancy. Of these it looks as though around 9 accepted Council rates. Ms X complains that the Council provided inadequate responses to her complaints to the Council about this. I accept that it failed to provide information on how it chose the particular home in its responses to Ms X. However, in its comments to me, the Council says that some were further away that the two it approached and that others involved sharing a room or required a payment top up above the Council’s usual rate. I can see therefore that it had reason to approach the homes that it did and so took a place for Mr Y at the nearest suitable home with a place at the time. I am not persuaded that officers explained this to Ms X as fully as they could at the time but I note that the officer who provide the response to Ms X’s further complaint acknowledged this and apologised that this was not made clear and also that the Council was unable to find a home nearer. I consider this apology was sufficient to recognise this.
  6. I consider the first response to Ms X’s complaint was fairly prompt but was very brief and not sufficiently detailed to address all the aspects of her complaint. The response to her further complaint was too slow – the Council’s procedure does not detail how quickly it will respond but I consider it could reasonably have been provided more quickly. The further response was somewhat more thorough but again I do not consider it addressed the matters Ms X raised in sufficient detail. I consider the poor responses amount to fault and Ms X was caused injustice as she had to bring her complaint to this office in order to obtain a full response to her complaint.

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Agreed action

  1. The Council apologised for the time it took to respond to the second complaint in its letter of response and this is sufficient to recognise this. The Council will also pay Ms X £100 to recognise the avoidable time and trouble she was caused as a result of its poor handling of her complaint.
  2. The Council will update the information it provides on its website with regard to timescales for responding to complaints and this will reflect the information provided in the Regulations. The Council accepts the handling of the complaint was poor. It confirms that staff in the complaints team have previously received a range of training in handling complaints and will ensure staff continue to receive suitable training, ensuring handling of future complaints is sufficiently thorough and timely.
  3. The Council will confirm it has completed the agreed action in the next two months.

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Final decision

  1. There is no evidence of fault by the Council in its handling and decisions related to Mr Y’s move into a residential care home following admission to hospital in late 2017 but its handling of her complaint was poor. The Council will take action to recognise this and to ensure that its handling of future complaints is sufficiently thorough and timely.

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Investigator's decision on behalf of the Ombudsman

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