London Borough of Enfield (18 007 704)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 20 Jun 2019

The Ombudsman's final decision:

Summary: Mr X complained on behalf of his father, Mr A. Mr X complained the Council failed to tell him about Mr A’s discharge from hospital to a care home. Mr X also complained the Council failed to consult with him over the choice of the care home and its fees. The Council was at fault. It failed to inform Mr X about Mr A’s discharge and failed to adequately consult with him about the choice of care home or explain the cost implications. The Council had already apologised for its poor communication and had waived Mr A’s first week’s care home fees of £750. The Council agreed to pay Mr X £100 to recognise the distress and uncertainty caused by its faults around Mr A’s hospital discharge.

The complaint

  1. Mr X complains on behalf of his father Mr A, who has dementia. Mr X complains the Council discharged Mr A from hospital to a care home without Mr X’s knowledge or consent. Mr X said the Council’s actions caused both he and Mr A confusion and distress. Mr X said he should not have to pay the initial care home fees because of the Council’s fault. He said the Council has failed to adequately respond to his complaint about the matter.

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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 spoke to Mr X about his complaint.
  2. I considered the Council’s response to my enquiries.
  3. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

Mental Capacity Act 2005

  1. The Mental Capacity Act 2005 sets out five principles:
    • A person must be assumed to have capacity unless it is established that they lack capacity.
    • A person is not to be treated as unable to decide unless all practicable steps to help them to do so have been taken without success.
    • A person is not to be treated as unable to decide merely because they make an unwise decision.
    • Before deciding, the decision maker must have regard to the option least restrictive of the person’s rights and freedom of action.
  2. When a decision is made on behalf of a person who lacks the ability to make it themselves, it must always be made in the person's best interests. This ensures that:
    • their rights are respected, and
    • the decision is the best one for them.

Adult care brokerage service

  1. The Council’s brokerage service finds information about care service providers who can meet a person’s needs and choices. The brokerage service gives information about care providers, cost of services and whether it can meet a person’s specific needs and preferences. If the service finds a care provider which meets the needs of a person, it can arrange for that person to start living there.

What happened

  1. Mr A has dementia. Mr X along with his brother has Power of Attorney (POA) over Mr A’s health and welfare. In August 2017 Mr A was admitted to hospital following a fall at home. Mr A had fractured his neck.
  2. Mr A remained in hospital throughout August. Mr X and the wider family decided they could not manage Mr A’s care at home any longer. Following an assessment, the social worker decided Mr A lacked capacity to make his own decisions about his care. Mr A’s social worker said he was unable to safely care for himself at home and it was in his best interest to move into a care home. The social worker recommended Mr A should move into a care home following discharge from hospital, subject to a further review of his mental capacity and best interests.
  3. The social worker discussed their recommendations with Mr X who agreed. The social worker sent their assessment to the Council’s adult care brokerage service to find Mr A a suitable home.
  4. On 6 September 2017, the social worker met with Mr X and told him the brokerage service had found Mr A two possible care homes which had vacancies. They told him the manager of the homes would look to assess Mr A as soon as possible. Mr X told the social worker he wanted to discuss Mr A’s financial assessment with his brother before they signed any agreement.
  5. On 7 September 2017, the records showed hospital staff called Mr X and informed him they were in the process of discharging Mr A to a care home. Mr X said the hospital staff were vague about the details but said they would call the family back later but that did not happen. The hospital discharged Mr A to the care home that evening. Neither the hospital or anybody from the Council contacted Mr X to inform him of Mr A’s discharge.
  6. The following day Mr X asked the social worker why he was not informed about the discharge. He asked who had decided the care home would meet Mr A’s needs and why the Council did not involve him or his brother in the decision about which care home Mr A should go to. Mr X said Mr A arrived at the care home wearing just his hospital gown and was disorientated and distressed.
  7. The Council apologised to Mr X and said there appeared to have been some miscommunication in relation to Mr A’s discharge to the care home. It said someone should have contacted Mr X when the care home had assessed Mr A and had agreed to offer him the placement. The social worker said they would review Mr A’s needs again within 6 weeks. They asked Mr X to raise any concerns about the care home or its suitability with the social worker who would then be able to carry out an earlier review.
  8. The social worker reviewed Mr A on 23 November 2017 and said the care home was meeting his needs and keeping him safe. They recommended Mr A should stay at the care home. The review records showed Mr X was happy with the care provided to Mr A by the care home. The social worker informed Mr X of the care home fees and carried out a financial assessment which showed Mr A would need to pay for his own care.
  9. Mr X complained to the Council. He complained the Council discharged Mr A from hospital to the care home without consulting him or the wider family. He said Mr A arrived at the care home without clothes and Mr X did not know his whereabouts for nearly 24 hours. Mr X also disputed responsibility for the care home fees between 7 September 2017 when he arrived at the care home and 23 November 2017. Mr X said the Council did not consult with him about the care home or the fees prior to 23 November, and therefore said neither he, or Mr A were liable to pay for that period.
  10. The Council responded to Mr X and apologised that it did not inform him or other family members about Mr A’s discharge to the care home. The Council said it was unsure why neither the brokerage team or the social worker informed Mr X, but accepted someone should have done. The Council said it was an oversight likely caused by a process change. The Council said it would put plans in place to make it clear who was responsible for communicating with families in similar circumstances in future.
  11. Mr X was unhappy with the Council’s response. He said the Council had not addressed his concerns about Mr A’s discharge and had not addressed his dispute around the care fees.
  12. The Council wrote to Mr X and apologised again about Mr A’s discharge. The Council agreed it should not have happened and it was an unacceptable error. It said Mr X was aware of the decision to discharge Mr A from hospital to a care home pending a further review about his long-term care. The Council said Mr X was aware of the financial implications of Mr A moving to a care home. The Council however agreed to waive the first week’s charges due to its errors and poor service around Mr A’s discharge.
  13. Mr X remained unhappy and complained to the Ombudsman.

My findings

  1. Mr X and his brother had POA over Mr A’s health and welfare. Therefore, the Council should have communicated with them when the hospital discharged Mr A. It did not, and that was fault. It meant Mr X was unaware of Mr A’s discharge. It also meant Mr X was unable to ensure Mr A had enough clothing and personal belongings on arrival at the care home. The fault caused Mr A distress and uncertainty. It also caused Mr X upset, frustration and uncertainty.
  2. Although Mr X had discussed Mr A’s discharge to a care home with the Council, there was no formal agreement in place about which care home it would be. The Council should have fully consulted with and sought Mr X’s agreement about the choice of Mr A’s care home. It should also have made Mr X aware of the cost implications of the care home. It did not, and that was fault and left Mr X frustrated and uncertain about the cost and choice of care home.
  3. The Council said its brokerage team should have communicated directly with Mr X about Mr A’s discharge and choice of care home following a process change in August 2017. The Council accepted it was at fault and had already apologised to Mr X for the communication oversight. The Council had already updated its internal guidance and reminded the brokerage team of its communication responsibilities.
  4. Mr X disputed that he should pay Mr A’s care home fees between September and November 2017 prior to Mr A’s first review. As above, the Council was at fault for not discussing the care home and the fees with Mr X. However, the records show Mr X was aware Mr A would be charged for his residential care. The records showed Mr A’s review took place on 23 November which Mr X and the wider family agreed to as a convenient date. The records show the Council made it clear to Mr X he was entitled to ask for an earlier review if necessary. There was no delay by the Council in reviewing Mr A’s care.
  5. Following the review Mr A stayed at the care home on a permanent basis. The review records showed Mr X was happy with the care provided to Mr A at the care home and raised no concerns prior to the first review. The Council was at fault for not discussing the care home fees with Mr X, however the records show there was no ongoing injustice to Mr A after he arrived at the care home because he was well cared for. Therefore, I find no fault in the Council’s decision not to waive the full six weeks care home fees.
  6. The Council waived the first week’s care home fees of £750 in recognition of the distress and uncertainty caused to Mr A by its poor communication around discharge. However, I consider that remedied the injustice to Mr A, not Mr X. It failed to discuss the choice of care home and the fees with Mr X and left Mr X uncertain of Mr A’s whereabouts. I recommended a further remedy for the injustice caused to Mr X by the Council’s fault around Mr A’s discharge.

Agreed action

  1. The Council agreed within one month of the decision to:
    • pay Mr X £100 in recognition of the distress and uncertainty caused by its poor communication around Mr A’s discharge from hospital to the care home.

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Final decision

  1. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman

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