Summary: The Council offered an appropriate placement for Mr X where his needs could be assessed for his long-term care. Ms K and Ms H chose instead to move him to a care home out of area before the Council could assess him or contract for his care at a suitable home.

The complaint

1. Ms K and Ms H (as I shall call the complainants) complain that the Council has refused to pay the fees for their elderly father’s care when they moved him from hospital to an out of area placement, before he was assessed as eligible for NHS funding.

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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. 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

3. I considered all the written information provided by the Council and the complainants. Both the complainants and the Council had the opportunity to comment on this draft statement and I took their comments into account before I reached a final decision.

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What I found

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”.
5. The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
6. If a person chooses to be placed in a setting that is outside the local authority’s area, the local authority must still arrange for their preferred care. In doing so, the local authority should have regard to the cost of care in that area when setting a person’s personal budget.
7. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top up fee is the difference between the personal budget and the cost of a home.
8. In exercising a choice, a local authority must ensure that the accommodation is suitable to meet a person’s assessed needs and identified outcomes established as part of the care and support planning process.
9. 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.
10. The NHS can provide continuing healthcare (CHC funding) at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based.

What happened

11. Mr X, who has dementia, lived alone with a package of care arranged by the Council. His daughters Ms H and Ms K (who have power of attorney for Mr X) lived some way away but visited regularly. They were becoming increasingly concerned as Mr X had begun to wander at night. In December 2016 they wrote to the Council, after Mr X’s social worker had suggested additional care hours and a hot meal delivery, to ask for a residential placement. They said extra hours would not address the problem of isolation and potential wandering at night. They said he refused to let the carers carry out many tasks and most days he forgot to wash or shave. They wanted help before Mr X had an accident.
12. In January Mr X was admitted to hospital after being found wandering outside. On discharge a new social worker visited and Ms H says agreed that residential care was a possibility and suggested two weeks’ respite care locally. Ms H and Ms K say they became increasingly concerned after a night alarm which had been installed at their father’s house showed how frequently he was trying to leave the house. The social worker suggested contacting Mr X’s GP for medication to keep him calm at night.
13. On 13 February 2018, before a care home local to Ms H and Ms K could be found, Mr X was admitted to hospital again, having been found wandering outside.
14. The Council’s records show Ms H and Ms K contacted the Council’s social work department and asked again if her father could go into short stay care in a care home (care home 1) nearer to their homes. They did not want Mr X to remain in hospital any longer than necessary. The social worker told them short stay care could be arranged locally but no long-term out of area placements could be organised until Mr X had been properly assessed for future care. Ms H and Ms K declined the offer of local short stay care. The social worker advised they could arrange privately for short stay care near their home if they wished.
15. Ms H arranged for the manager of care home 1 to assess Mr X. The Council’s records show the duty social worker told Ms H the Council had not yet been able to get clear information about the room rate which Mr X would need as his needs assessment was not complete. She again offered short stay care while social workers completed Mr X’s assessment.
16. On 20 February the manager from care home 1 assessed Mr X and emailed the Council’s social worker to explain the room rates. She said Ms H and Ms K told her they were “willing to pay for a few weeks’ respite initially”. She said she had concerns that if Mr X’s night-time anxiety did not settle he may have to be moved to a more specialist unit.
17. The Council’s records show the social worker contacted the other council to ask for details of the rate it would normally pay, as well as a list of homes which accepted the council’s rate, and that she sought advice from the Council’s legal department about the responsibility for funding the out of area placement. The legal officer explained that the Council had a duty to ensure Mr X’s right to family life under Article 8 of the European Convention on Human Rights.
18. Ms H and Ms K remained concerned that the longer their father was in hospital, the more he deteriorated. They wanted to move him as soon as possible. Ward staff had concerns about Mr X’s level of cognitive impairment, although he was deemed to be medically fit for discharge.
19. On 22 February Ms H and Ms K met with social workers to discuss discharge arrangements. They wanted to move Mr X to care home1 that day. The social worker told them the Council had not had a reply from the other council about the room rates, they were still waiting for legal advice on the Council’s duty to pay and had concerns about the effect of possibly moving Mr X at short notice more than once. They offered respite again in the Council’s area which Ms H and Ms K refused. Ms and Ms K asked if the Council would pay its respite rates in the other council area and offered to top up the rate.
20. The Council’s records show attempts were made to contact the other council, the manager at care home 1 and to seek information from the contracts team about a placement elsewhere. The Council’s contracts team explained any rate would have to be agreed by the funding panel but could be expedited. The case recording notes that after calling 20 different care homes in the other council area, the social worker found one home which would accept £600 as a weekly rate, and informed Ms H and Ms K about it, after obtaining legal advice that if it was in Mr X’s best interests to move there, the Council should fund that rate.
21. Ms H and Ms K chose care home 1 (a more expensive home) instead of the offered home and asked if the Council would pay £600 as agreed for the first home, and said they would top up the amount. They moved Mr X to care home 1.
22. After further discussions with officers at the other council and care home 1 about the different rates required, the social worker contacted Ms H and Ms K to say the Council would pay £750 a week if they would agree to £50 top-up rate. The alternatives were to find a home at a cheaper rate, or the Council would find a care home in its area which did not need a top-up fee. She reminded them they had been advised not to move Mr X until all the assessments and arrangements had been properly made but they had chosen to place him independently in a home of their choice for two weeks, so the Council would only fund his care from when the contract was in place or 9 March.
23. Ms H and Ms K agreed to pay a top-up fee of £50 a week but expressed their unhappiness that the Council would not fund Mr X’s care from the date of discharge from hospital in Doncaster.
24. On 5 March Mr X was taken to hospital from care home 1 after his condition deteriorated. Correspondence continued between officers of the two councils and the social worker confirmed that the Council would pay the ‘host authority’ rate. However, Mr X was assessed for eligibility for CHC funding while he was in hospital and discharged on 6 April to a care home, where his placement was fully funded by the NHS.

The complaint

25. Ms H and Ms K submitted the invoice for care home 1 fees from 23 February to 23 March to the Council. The Council responded that Mr X’s Direct Payments for home care had ceased on 13 February and Ms H and Ms K were responsible for his care after that until the NHS started to fund his care. Ms K replied that Mr X had been “inappropriately held” in hospital because the Council could not organise a care home for him and they had therefore moved him into respite care “with a view that this necessary care costing would be paid from his DMBC care allowance”.
26. In July Ms H and Ms K complained to the Council that they had moved their father into care home 1 before contracts could be signed because of the deterioration in his condition. They said they had provided the social workers with details of an appropriate home (care home 1) with evidence it was the lowest cost home in the area. They said they were never told Mr X had a right to be near his family, or told the rate which the Council would pay.
27. The Council responded to the complaint formally on 2 August. The team leader explained the case recording showed that social workers had told Ms H and Ms K several times that the Council could not fund Mr X’s care in care home 1 without a contract in place. She said despite being offered alternative appropriate care locally which would enable assessments to be completed and contracts to be arranged, they had decided as their father’s attorneys to move him privately to the other council’s area while assessments and contracts were sorted out. She did not uphold their complaint as she said it was clear they informed the Council they would pay privately for respite care.
28. The team leader upheld the complaint that the Council had not explained to them the rate it would pay. She said the files showed discussions about the varying rates charged by the other council, and there was agreement in principle the Council would pay the necessary rate, but that information had not been passed on to Ms H and Ms K.
29. The team leader did not uphold the complaint of a lack of support for the family, although she acknowledged that was subjective. She said the records showed daily contact while social workers were trying to arrange a suitable way forward for Mr X.
30. The team leader upheld their complaint that they were told they would have to pay a top up. She said the Council’s senior management had been requested to pay the care home rates as there were no suitable homes which would contract for care at the host authority rates, but this had not been communicated to the family.
31. The team leader upheld a complaint that the Council had not explained which council would be responsible for their father if CHC funding ceased. She explained that under Ordinary Residence regulations, if CHC funding ceased then Mr X’s social care needs would be the responsibility of Doncaster Council again.
32. In a later letter, the team leader partially upheld the complaint that the Council’s legal department had not responded directly to the family’s concerns. She said the legal department had as their usual practice given their advice to the social work team, but she acknowledged it would have been good practice for the Council to explain this to Ms H and Ms K.
33. Ms H and Ms K responded. They said there was a misunderstanding and they had moved their father in the full belief that the Council would backdate funding for his care. They also said the assessment unit was inappropriate for their father.
34. The team leader wrote again, with an apology for the complaints which had been upheld. She reiterated the view that a suitable alternative had been available for Mr X locally.
35. Ms H and Ms K complained to the Ombudsman. They said they had been given insufficient advice and guidance by the Council and had suffered financially by taking the initiative to move their father for his wellbeing.
36. The Council says it did not dispute the long-term plan to move Mr X to be nearer his family. It says however that “further assessment in an assessment unit was considered due to the deterioration in (Mr X’s) behaviours whilst he was in hospital, this was to see if these behaviours settled in a more homely environment as it was the first time (Mr X) has exhibited these behaviours. This would then allow for the Care Act assessment to be conducted in a more appropriate environment as conducting Care Act Assessments in a hospital environment is not deemed good practice.” It goes on to say that similar assessment units were also looked at by staff in the other council when Mr X was admitted to hospital there.
37. The Council also says that information was given verbally and by email to Ms H and Ms K about the process for an out of borough placement and the rates which would be paid. It says however that as a result of the complaint, an information factsheet is under preparation which explains to families the process and funding information for out of borough placements.

Analysis

38. The Council offered a suitable local placement for Mr X so that his long-term needs could be properly assessed in a more appropriate environment than an acute hospital ward. That was refused, but it was not fault on the part of the Council to offer it. The Council did not dispute that Mr X should be placed near his family.
39. It was not fault for the Council to expect that it should be able to assess Mr X’s needs and arrange a suitable contract in the knowledge of the other council’s rates before he was moved. Records show that ward staff were concerned about Mr X’s cognitive impairment and the deterioration in his behaviour. Records also show that it took some time before the social worker could obtain a response from the other council (and from care home 1) about the rates it funded for the sort of care Mr X needed. There is no evidence that Mr X was inappropriately kept in hospital by the Council longer than he should have been, and ample evidence that Council officers made considerable efforts to obtain the information they needed to ensure an appropriate placement for Mr X near his family.
40. There was conflicting information given about the need for a top-up payment. Although the Council agreed it would fund the same rate as the host authority, this was not properly communicated to Ms H and Ms K and that added to the confusion about the different rates requested by care homes in the other council area. The Council has acknowledged and apologised for that.
41. The records are clear in several instances that Ms H and Ms K said they would fund the care in care home 1 privately in order to move their father closer to their homes as soon as possible, and that social workers confirmed to them that the Council would only fund his care from when a contract was in place or 9 March (two weeks after he was moved from the hospital).
42. By 9 March however, Mr X was in hospital in the other council area and subsequently his care was funded by the NHS. There was nothing unclear about the funding arrangement for the two weeks following Mr X’s move to the other area. There is no evidence that Ms H and Ms K were led to believe the Council would backdate the funding for Mr X’s care once a contract was in place.

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Final decision

43. No injustice was caused by fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman