Royal Borough of Kingston upon Thames (19 007 822)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 18 Dec 2019

The Ombudsman's final decision:

Summary: Mr D complains about the way the Council assessed and met his mother’s care and support needs. There was no fault in the way the Council decided Mrs J did not require residential care but there was delay and confusion over the funding arrangements. The Council has agreed to apologise to Mr D.

The complaint

  1. Mr D complains on behalf of his mother, Mrs J, that the Council:
      1. wrongly decided she did not require residential care when she was discharged from hospital in September 2017
      2. failed to meet her care and support needs from September 2017 to January 2018
      3. delayed assessing her care and support needs and deciding how her needs should be met
      4. failed to involve the family or consider their wishes in its decision that Mrs J did not require residential care in December 2017
      5. deliberately informed the family of this decision at a time that caused maximum upset and distress
      6. provided poor quality homecare with no mental or physical stimulation, and took insufficient action when carers accessed Mrs J's broadband
      7. wrongly charged Mrs J for the full cost of her care whilst being assessed at home
      8. failed to answer his questions in response to his complaint
      9. refused to escalate his complaint to stage 2 of its procedure
  2. Mr D says Mrs J’s care needs were not met, causing significant distress to her and the family.

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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. We cannot question whether a council's decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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 D about his complaint and considered the information he sent, the Council's response to my enquiries and:
    • The Care Act 2014 (“the Act”)
    • The Care and Support Statutory Guidance (“the Guidance”)
    • The Mental Capacity Act 2005 Code of Practice (“the Code”)
  2. I gave Mr D and the Council an opportunity to comment on my draft decision.

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What I found

Assessments of care and support needs

  1. The Act requires councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. Councils must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Where councils have determined that a person has needs which are eligible for support, they must meet those needs.
  2. The Act gives local authorities a legal responsibility to provide a care and support plan which sets out what the person’s needs are and how these will be met.

Charging for social care services

  1. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
  2. The Guidance states that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their care. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution.
  3. Councils must assess a person's finances to decide what contribution he or she should make. The Guidance says where a person has joint beneficial ownership of capital, the total value should be divided equally between the joint owners and the person should be treated as owning an equal share.

Mental Capacity

  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 Code 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.

Best interest decision making

  1. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of, a person who lacks capacity must be in that person's best interests.
  2. Under the Act, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The Act provides a checklist of steps that decision makers must follow to determine what is in a person's best interests. This includes consulting close relatives and any attorney appointed under an Enduring Power of Attorney made by the person. For decisions about where the person should live and where there is no-one to consult, an Independent Mental Capacity Advocate (IMCA) must be consulted.
  3. The decision makers must also consider if there is a choice which is less restrictive of the person's rights and freedom of action.
  4. If there is a conflict about what is in a person's best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person's best interests.

Council complaints procedures

  1. Complaints about Adult Social Care are investigated under the Local Authority Social Services and National Health Services complaint (England) Regulations 2009. These say a single stage procedure should be enough. The Council’s complaint response should say:
    • how it has considered the complaint; and
    • what conclusions it has reached about the complaint, including any matters which may need remedial action; and
    • whether the responsible body is satisfied it has taken or will take necessary action; and
    • details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.
  2. The Council has a two-stage procedure for adult social care complaints. At Stage 1 it will write to complainants to say whether the complaint has been upheld and the reasons for the decision. It will also explain the complainant’s right to a review at Stage 2.
  3. Complainants can seek a Stage 2 review if the complaint has not been resolved at Stage 1. A manager will consider the complaint to clarify what was investigated at Stage 1 and ensure the scope of the complaint was clear. The Council’s policy says if the Council decides its response will stay the same after a Stage 2 review it will confirm a final decision was made at Stage 1 and refer the complaint to the Ombudsman.

What happened

  1. Mr D's mother, Mrs J, has dementia and other health problems. She had been found not to have the potential for rehabilitation in 2016. Mrs J lived with her husband. Mr D and his brother have Enduring Power of Attorney for her property and finances.
  2. In August 2017, Mrs J was admitted to hospital. Whilst there she was assessed as being at high risk of falls and as not having the capacity to make decisions about her care or where she should live.
  3. There was meeting to decide what was in Mrs J’s best interests on 8 September 2017. The occupational therapist (OT) recommended Mrs J be discharged home with a 24-hour, seven day a week care package. The district nurse and doctor also thought Mrs J did not need to be in a care home and Mr J had expressed the view he wanted his wife to come home.
  4. Mr D felt his mother would not be safe at home due to the risk of falling on the stairs and that she would not be able to have dignified personal care. He also said that Mr J did not understand her dementia and could be verbally abusive to Mrs J. Mr D said the family wished for Mrs J to go into residential care.
  5. At the meeting it was agreed Mrs J should be discharged home to maximise her independence and as this was the least restrictive option. The plan was for this to be for a ten-day assessment period, until 22 September 2017. Mr D says the Council said it would fund the assessment period, though this is not clear in the case records.
  6. Mrs J was discharged from hospital on 12 September 2017. The home care agency’s care plan says the carers would support Mrs J with personal care and meal preparation. The carers were asked to monitor Mrs J to avoid the risk of falls.

Care and support assessment

  1. The social worker visited the following week to start to assess Mrs J’s care and support needs. She spoke to Mr D’s brother who said the family was concerned Mrs J would get up in the night and fall down the stairs as she could not weigh up the risks. Mrs J said she did not want to live downstairs, she wished to sleep in her own bedroom, and she did not use the commode.
  2. The social worker noted that the homecare agency said Mrs J was mostly sleeping at night. It was unclear if she was at risk on the stairs as she had never had a fall and was managing them prior to her hospital admission. The social worker agreed to extend the 24-hour care for a few days to enable the bed to be moved downstairs and a homecare provider to be sourced. There was a discussion about finances, it was thought Mrs J would be a self-funder.
  3. The social worker visited again on 22 September 2017. She spoke to Mr D who strongly disagreed with the plan for Mrs J to stay at home. The social worker said Mrs J had not been assessed as needing residential care as she did not have any night-time needs and did not wander. Mrs J had also said she did not want to be in a care home. The social worker advised Mr D he did not have power of attorney over Mrs J’s health and welfare needs. Due to the dispute about what was in Mrs J’s best interests, a referral was made for an IMCA. The Council agreed to extend the 24-hour care for a further two weeks (to 11 October 2017) to obtain more detailed information from the homecare agency.
  4. The homecarers told the Council that Mrs J got up most nights to use the toilet and the “highest risk at night if [Mrs J] was to be alone is her falling down the stairs, since there is no stair gate … If the risk of the stairs can be managed and a commode put in her room, then night care might not be required.”
  5. The social worker sought Mr J’s views. He said Mrs J would want to be at home, was managing the stairs and had not been getting up at night recently. However, he said downstairs living would not work and the family would not be able to cope long term.
  6. The social worker completed the care and support needs assessment. The assessment found Mrs J needed four home care calls per day and did not have any night-time care needs.

Charging for Mrs J’s care

  1. The Council assessed Mrs J’s finances. There is evidence an officer advised Mr D that the Council would be applying the non-residential care charging policy to Mrs J. It wrote to Mr D on 12 October 2017 with the outcome of its financial assessment. This found Mrs J would be a self-funder as her savings were above the threshold.
  2. The Council also said there had been a deprivation of assets. The Ombudsman is considering a separate complaint about this.

Best interest decision October 2017

  1. There was a further best interest meeting on 17 October 2017. The notes of the meeting say the Council and the IMCA considered it was in Mrs J’s best interest to have a care package at home as Mrs J had not been assessed as needing 24-hour care or residential care and this was the least restrictive option. However, there had been no risk assessment of using the stairs and a physiotherapy assessment was needed.
  2. Mr D said the family had agreed it was in Mrs J’s best interest that she be placed in a care home. The family did not consider Mrs J’s needs could be met at home and that her safety and wellbeing would be at risk.
  3. The Council told Mr D he could not place Mrs J in a care home as he did not have power of attorney for her health and welfare. As Mrs J did not have capacity, if the family moved Mrs J into residential care privately, this would be considered to be against her will. An application would need to be made for deprivation of liberty, which the Council would need to approve. As the Council had not assessed Mrs J as requiring residential care, it would not be able to approve the deprivation of liberty application.
  4. Mr D said he had been told the meeting would be to discuss the funding of residential care and was frustrated that it appeared to be about agreeing with the Council’s decision Mrs J should stay at home. The Council said a dispute about what was in Mrs J’s best interest could be taken to the Court of Protection, but it agreed to extend 24-hour care until the physiotherapy assessment had been done.

November 2017 to January 2018

  1. The physiotherapist assessed Mrs J and found she could manage the stairs and was safe on them. On 23 October 2017 the Council asked for an OT assessment of the kitchen. This was completed on 1 November and found Mrs J was unable to use the cooker or kettle.
  2. I have seen no evidence of any further action until 28 November 2017, when it was agreed the Council should write to Mr D with the outcome of the care and support assessment, the decision that Mrs J did not require residential care, and that the 24-hour care would end. The social worker asked for an update from the homecare agency, which replied on 13 December 2017 there had been no change in Mrs J’s needs. The Council emailed Mr D on 22 December 2017 with its decision it would end the 24-hour care on 31 December 2017.
  3. Mr D appealed and the Council extended the 24-hour care whilst it considered the matter.

Re-assessment of Mrs J’s care and support needs

  1. A different social worker visited Mrs J on 9 January 2018. She decided it was not possible to properly assess Mrs J’s needs whilst at home.
  2. Mrs J went into a care home for an assessment period on 24 January 2018. Initially the Council said it would fund a two-week assessment period, after which Mrs J would be liable for charges. The assessment was then extended for a further two weeks. The assessment found Mrs J required permanent residential care on 21 February 2018.

Misuse of Mr and Mrs J’s broadband

  1. In January 2018, Mr D realised over 50Gb of Mr and Mrs J’s broadband had been used in November and December 2017, against an allowance of 15Gb. He said this was misuse by the homecare staff. The Council held a safeguarding planning meeting on 22 January 2018. The homecare agency agreed to refund the cost of the broadband and to remind staff not to use clients’ internet. The Police were not asked to take any action.

Mr D’s complaint

  1. Mr D made a formal complaint about Council officers’ actions on 19 December 2018. The Council responded on 1 February 2019. It accepted the homecare agency had not provided a service of the required standard, but it did not uphold Mr D’s other complaints.
  2. Mr D remained dissatisfied and disputed the Council’s account. He asked for his complaint to be escalated to the next stage. The Council refused. It said its Stage 2 response would be the same as Stage 1.
  3. Mr D complained to the Ombudsman in June 2019. He says he was forced to complain because the Council had refused to answer his questions and he had been required to make Freedom of Information and Subject Access requests.

My findings

a) Wrongly decided she did not require residential care when she was discharged from hospital in September 2017

  1. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the Council's role. The Ombudsman's role is to consider if the Council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. I have therefore considered the best interest decisions and the assessment of Mrs J's needs and whether they were carried out in line with the Guidance and Code.
  2. The first best interest decision meeting in September 2017 included representatives of Mrs J’s family, including Mr D who had power of attorney, and staff involved in her care. The relevant circumstances were considered. This is in line with the Code and I have seen no evidence of fault in the way the decision was taken to discharge Mrs J home with a care package.
  3. I realise Mr D disagreed with that decision, but I cannot criticise a council decision taken without fault. It was reasonable for the Council to wish to assess Mrs J’s needs in her home environment, as this was the least restrictive option. Whilst Mr D was concerned about Mrs J’s safety, the Council mitigated this risk by having carers present 24-hours a day.
  4. The social worker’s care and support assessment carried out in September and October 2017 is detailed and sets out what Mrs J's needs are. The social worker sought Mr J’s and the family views and took into account relevant factors in line with the requirements of the Act. The assessment concluded that Mrs J did not require residential care. However, at that point there had been no physiotherapy or OT assessments.
  5. The October 2017 best interest decision meeting involved Mr D, other family members and staff involved in Mrs J’s care. An IMCA was also involved. The meeting considered the various views and relevant circumstances. This is in line with the Code and I have seen no evidence of fault in the way the best interest decision was taken to carry out further assessments whilst Mrs J remained at home. These assessments needed to be done before a final decision could be made.
  6. Once the OT and physiotherapy assessments had been done, the Council decided Mrs J did not require residential care. Mr D does not agree with this conclusion. However, there is no evidence of fault in the way the three assessments were carried out. I therefore cannot criticise the decision.

b) Failed to meet her care and support needs from September 2017 to January 2018

  1. Mr D considered Mrs J’s needs would best be met in a residential care home. However, this was not the outcome of the assessments. The Council is only required to meet the needs it had assessed Mrs J has having. It did more than this, as it continued to provide 24-hour care after its assessment had found Mrs J needed four calls per day. Mrs J was supported at home with meals and personal care. She was assessed by the physiotherapist as being safe on the stairs, and had carers present to reduce the risk of falls. I have seen no evidence Mrs J’s needs were not met.

c) Delayed assessing her care and support needs and deciding how her needs should be met

  1. The Council initially planned to assess Mrs J in two weeks. It took four weeks to complete the care and support needs assessment, and a further two weeks for the physiotherapy and OT assessments. It is not clear to me why the referrals to OT and physiotherapy were not made when Mrs J was discharged from hospital. I therefore find there was delay completing the assessment, which is fault.
  2. In addition, I have seen no evidence of action being taken from early to late November 2018. It then took a further three weeks for the Council to issue its decision to Mr D. I can see that the Council sought an update from the homecare agency, but I find there was avoidable delay by the Council from early November to 22 December 2017.
  3. I have considered how this delay affected Mrs J. I realise Mr D considers she should have been in a care home during this period, but I have found Mrs J’s needs were being met and risks to her safety were being mitigated. I therefore find that the delay did not cause any injustice to Mrs J.

d) Failed to involve the family or consider their wishes in its decision that Mrs J did not require residential care in December 2017

  1. I understand Mr D disagreed with the Council’s view, but it is not fault for there to be a disagreement about what is in someone’s best interest. The Code requires best interest decision makers to consult with close family and those with power of attorney. The Council did this in both decision meetings, so I do not find the Council failed to involve the family.

e) Deliberately informed the family of this decision at a time that caused maximum upset and distress

  1. The Council emailed Mr D its decision Mrs J did not require residential care on 22 December 2017. It said it would withdraw 24-hour care on 31 December 2017 and replace it with four calls a day.
  2. Mr D says this email was deliberately timed to cause upset and that the Christmas holiday period meant it was difficult for the family to source alternative care to be in place from 1 January 2018.
  3. Whilst I appreciate Mr D’s concern, and I have found delay which means I can see no good reason why the email could not have been sent sooner, I have seen no evidence in the case records that the timing of the email was deliberate malice by the Council.

f) Provided poor quality homecare with no mental or physical stimulation, and took insufficient action when carers accessed Mrs J's broadband

  1. Mr D says the homecare staff only “sat and watched” Mrs J. The care plan asks them to provide support with meals, medication and personal care, and to “monitor” Mrs J to reduce risks to her safety. It does not require them to provide activities or stimulation. There is therefore no fault.
  2. When Mr D reported the misuse of Mrs J’s broadband, the Council held a safeguarding planning meeting in line with the Guidance. The agency agreed to refund the cost and the meeting decided to not raise the issue with the Police. Councils have no role in disciplining staff of third-party organisations, and I find the Council took the necessary action in response to the issue.

g) Wrongly charged Mrs J for the full cost of her care whilst being assessed at home

  1. Mr D says the Council asked Mrs J to pay the full cost of the homecare she had received from September 2017 to December 2017, despite it having previously advised this assessment period would be funded by the Council. I find the evidence is unclear.
  2. Councils may provide six weeks rehabilitation, which they must not charge for. However, rehabilitation was not suitable for Mrs J. She would therefore have been subject to the Council’s non-residential care charging policy and there is evidence an officer advised Mr D of this in early October 2017.
  3. However, the case records also say the social worker sought approval for funding an assessment period, which was then extended.
  4. The Guidance says councils should ensure there is sufficient information and advice available to ensure the person or their representative is able to understand any financial contributions they are asked to make. As there was confusion about who was responsible for funding the 24-hour homecare, I find there was fault by the Council in not making the funding arrangements clear to the family. The Council later agreed to pay for the homecare, which means the injustice caused to Mr D was distress and frustration.

h) Failed to answer his questions in response to his complaint

  1. The Council’s complaint response sets out how it had considered the complaint; what conclusions it had reached; what action would be taken; and the next stage in the complaints process. This is in line with the statutory guidance. The response describes what has happened and addresses Mr D’s questions about:
    • inviting his representations
    • his mother’s care prior to August 2017
    • the involvement of the chief executive in the case
    • the release of Mrs J’s case records
    • the referral to the OPG
    • the decision on deprivation of assets
    • how the case was handled
  2. Mr D was dissatisfied with the response and says it was inaccurate, but there is no evidence the Council did not respond to his questions.

i) Refused to escalate Mr D’s complaint to stage 2 of its procedure

  1. The Council refused to consider Mr D’s complaint at Stage 2 of its procedure. This is in line with its complaints policy, which allows the Council to make this decision if it feels a Stage 2 response would be the same as the Stage 1. I therefore do not find fault.

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Agreed action

  1. Within a month of my final decision, the Council has agreed to apologise to Mr D for the distress caused by the delay in issuing its decision about the provision of Mrs J’s care and the confusion over the funding arrangements.

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Final decision

  1. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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