Summary: Mr X and Mrs S complained their mother, Mrs M’s, Care Home failed to provide her with adequate care. They also complain about the actions of the Council in finding her a new care home and how it carried out her Continuing Health Care (CHC) checklist assessments. The Council was at fault when it failed to invite a family member to two of Mrs M’s CHC checklist assessments. However, this did not cause Mrs M an injustice. The Council has agreed to remind staff of the importance of considering whether to invite family members to CHC checklist assessments. There was no fault in the care provided by the Care Home to Mrs M or the actions of the Council in finding Mrs M a new care home.

The complaint

1. Mr X and Mrs S complain the Care Home:
• failed to provide their mother, Mrs M, with appropriate care from January 2020;
• allowed a junior member of staff to provide information to a new care home the family found which resulted in the placement falling through;
• provided conflicting information about how Mrs M broke her wrist;
2. Mr X and Mrs S complain the Council:
• failed to properly carry out Mrs M's Continuing Health Care (CHC) Checklist at the beginning of 2020; namely, it failed to include the views of her Care Home, the family and the person who assessed Mrs M as requiring Elderly Mentally Infirm (EMI) care, and did not invite a representative of the family to be present when completing the checklist;
• failed to inform the relevant Clinical Commissioning Group (CCG) that Mrs M was in a challenging behaviour placement and then incorrectly coded her which resulted in her not being reassessed for CHC did not support the family when the Care Home gave notice both in February and July 2020;
• has acted with a lack of empathy, care and professionalism; and
• failed to ensure sufficient EMI placements in the area, forcing the family to accept a placement in a challenging behaviour unit at three times the weekly cost.
3. Mr X and Mrs S says they were told by the Council that any future CHC awarded to Mrs M would not be backdated but were later told that this was incorrect.
4. Mr X and Mrs S say that as a result, Mrs M’s health has deteriorated. They say the family has also been caused unnecessary and avoidable distress. Mr X and Mrs S say the cost of Mrs M’s placement should be the same as an EMI placement because she fits the criteria for this type of placement as well as qualifying for CHC.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
6. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained, or it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
7. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
8. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS unless we are carrying out a joint investigation. This investigation is against the Council alone. (Local Government Act 1974, sections 25 and 34A, as amended)
9. 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)
10. 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 followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

11. I made enquiries of the Council and Care Home and considered the information it provided. This included the Court of Protection order, complaints correspondence and Mrs M’s social care and care home daily records.
12. I considered the Care Act 2014, the Care and Support Statutory Guidance 2014 and the National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care 2012 (Updated 2018).
13. I wrote to Mr X and Mrs S and the Council with my draft decision and considered their comments before I make my final decision.

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What I found

The law and statutory guidance

Continuing Health Care Checklists

14. CHC Checklists can be completed by health professionals or social workers. The person having the Checklist should be given reasonable notice a Checklist will be completed and should be given the opportunity to be present, together with any representative they may have.
15. The Checklist considers a number of ‘domains’ and the assessor records whether the person’s needs in each one are high (a score of A), moderate (a score of B) or low/no need (a score of C).
16. A full assessment is triggered if a person scores 2 or more As, 5 or more Bs, 1 A and 4 Bs or 1 A in one of the priority domains (for example behaviour, breathing or altered states of consciousness).
17. The full assessment is usually carried out by two health professionals or one health professional and a person who is responsible for assessing the person’s care and support needs.
18. Any decision about CHC funding is made by the local NHS Clinical Commissioning group (CCG) If the CCG decides a person qualifies for CHC funding, this should be backdated to the 29th day after a positive Checklist referral was received by the CCG.
19. The Coronavirus Act 2020 introduced emergency and temporary changes to CHC. During the COVID-19 pandemic, CHC checklists were stopped to enable staff to be released to help with other areas in the NHS. Any checklists carried out later would not be backdated.
20. The Ombudsman does not have the jurisdiction to consider the actions of the NHS. These matters are considered by the Parliamentary and Health Service Ombudsman.

Mental capacity

21. Where it is found that a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests.

What happened

22. Mr X’s mother, Mrs M, moved to a Care Home in September 2018. Mrs M required a Deprivation of Liberty Safeguards (DoLS) to be in place. However, because she objected to being placed at the Care Home, her advocate lodged a challenge to the DoLS application with the Court of Protection.
23. The Court of Protection determined Mrs M lacked capacity and that it was in her best interests to remain at the Care Home as a ‘detained resident’.
24. In December 2019, the NHS Rapid Assessment, Interface and Discharge (RAID) Team assessed Mrs M to determine if the Care Home was able to meet her needs. Mrs M’s daughter, Mrs D, was present. The RAID assessment concluded Mrs M’s current placement, which provided Elderly Mental Dementia (EMD) support, was appropriate and was meeting her needs.
25. The RAID Team carried out a second assessment in January 2020 because staff at the Care Home and family members had become concerned about a change in Mrs M’s behaviour. Mrs S also stated that the judge involved in the Court of Protection case requested the assessment. The assessment noted her level of unprovoked aggression had risen significantly and staff were concerned about Mrs M’s welfare as well as the safety of other residents. The assessment recommended Mrs M needed a nursing placement with specialist dementia care.
26. In February 2020, due to her deteriorating behaviour, the Care Home said it would have to give the family notice for Mrs M to leave.
27. The case notes record the social worker emailed Mrs S on 17 February to inform her she wanted Mrs M to have a CHC checklist completed. The social worker explained the reasons for this and how the assessment would be carried out. She asked for approval from Mrs S, as Mrs M’s next of kin.
28. The social worker carried out a CHC Checklist which she submitted to the relevant NHS CHC Team for consideration. The CHC Team decided Mrs M was not eligible for a full CHC assessment.
29. At the same time, the social worker began to look for a new placement for Mrs M. The daily case records indicate she made regular and comprehensive searches, and spoke regularly to Mrs S.
30. In February 2020, Mrs S informed the social worker that the family’s preferred option was Care Home B. The social worker contacted Care Home B who stated there were no vacancies. The social worker made further enquiries and identified another care home with vacancies. Mrs S considered that Care Home to be unsuitable. The social worker also asked for updates from Care Home B in February and March. In March, Care Home B said a vacancy might be coming up shortly. The social worker continued to look for other placements. When she could find no vacancies in the preferred areas, she suggested to the family, they widen the search area.
31. Care Home B assessed Mrs M for an EMI placement in May. It advised she would be better placed in its challenging behaviour unit. The social worker confirmed the cost of this would be £1,000 for the first 4 weeks and then this would be reviewed and would be between £800 - £1,500 a week.
32. The social worker, who had continued looking for placements, informed the family there was a vacancy at another care home in an EMI unit at £1,200 a week. The family declined this as unsuitable.
33. The social worker spoke to Mrs S about the offer from Care Home B and the costs in June. During the call, the case notes record Mrs S said she had spoken to other professionals who said Mrs M would be eligible for CHC funding. The social worker informed her no assessments were being completed because of COVID-19. Mrs M asked if any later award of CHC would be backdated. The social worker said she would check. The social worker checked with the CHC team later that day and the notes record she was told any future CHC award would not be backdated.
34. The social worker called Mrs S again on 19 June to ask if the family had made a decision about the challenging behaviour unit. The notes record Mrs S said they would not pay the full fees, but only the EMI rate which was around half the rate at £516 a week. This is because Mrs S believed Mrs M could be cared for in an EMI placement. She asked for a contact number to call the NHS CHC Team. The social worker provided this.
35. On 23 June, the social worker asked the CHC Team if it would accept a CHC checklist. The notes record the CHC Team said it could not accept one.
36. On the same day, the social worker emailed Mrs S and said she had requested an assessment of Mrs M from its specialist mental health team for older people (HITTS) because the EMI care homes she had contacted and sent Mrs M’s assessment to, had all refused her.
37. The HITTS assessment recommended a challenging behaviour unit for Mrs M.
38. The social worker contacted Mrs S and said Care Home B still had a vacancy. Mrs S said her brother, Mr X, had found an EMI placement close to where he lived. The social worker said Mrs M would not be able to take the placement up because she needed a challenging behaviour unit, and an EMI placement would not meet her needs. Mrs S complained she had not been invited to the specialist assessment. The social worker agreed to send the assessment to the EMI placement.
39. The social worker subsequently contacted the HITTS Team to ask why the family had not been invited to the assessment. She was told by the team the assessment had been carried out urgently because the Care Home could not manage Mrs M’s behaviour. The team said the recommendations were clear and detailed and they would not recommend an EMI placement. The team provided names of challenging behaviour placements.
40. On 6 July, the social worker updated Mrs M’s advocate about the family being in disagreement with the recommendation for a challenging behaviour unit. The advocate read the HITTS report and stated he had no issues with it as Mrs M’s advocate. The advocate voiced concerns that Mrs M’s current care home was struggling to meet her needs and recommended the social worker contact the legal department to determine what steps could be taken to make a best interest decision.
41. On 7 July, the Care Home gave Mrs M notice to leave.
42. On 9 July, the social worker spoke to the manager of the EMI placement Mr X had found. The manager said they would be unable to meet Mrs M’s needs but they had another Home which had vacancies on its challenging behaviour unit. The family stated they were happy with the placement and in August 2020, Mrs M moved there.
43. During the above events, in June, the family complained to the Council about the issues in paragraph 1 of this decision statement. The Council stated:
• the social worker submitted the CHC checklist to the CHC Team and was informed Mrs M did not meet the criteria for CHC. She was calculated as having 8 Cs and 3 Bs;
• the rates for EMI and challenging behaviour placements were higher due to the levels of support required. It attached the charging policy;
• Mrs M had been reassessed by the NHS and determined to need a challenging behaviour unit.
44. In September 2020, the social worker carried out a review of Mrs M’s care and support needs. This was done via a skype call with the deputy manager of the challenging behaviour unit. The social worker recorded Mrs M was at a challenging behaviour unit and completed another CHC checklist at the same time. The social worker scored Mrs M as follows:
• A = 0
• B = 4
• C = 7
45. Although Mrs M did not meet the threshold for a referral to the CHC Team, the social worker stated she sent it anyway because in her professional opinion Mrs M was borderline for a referral. The CHC Team determined Mrs M did not meet the criteria for an assessment.
46. Mr X remained unhappy and complained to the Ombudsman.
47. A further CHC checklist in April 2021 went through for a full assessment. This recorded Mrs S was present. The CHC Team decided Mrs M did not qualify for CHC funding but did qualify for FNC funding.

The care at the Care Home

48. As part of my investigation, I reviewed Mrs M’s care notes, her support plans, incident charts and the Care Home’s response to my enquiries. The care notes demonstrate the Care Home provided Mrs M with appropriate care, despite her challenging behaviour. The Home formally noted episodes of aggressive behaviour and hourly observation charts recorded Mrs M’s location in the Home. In its response to the Ombudsman, the Care Home stated both they and Mrs M had to manage her stay at the Care Home for longer than it should have been. It said “[We] struggled at the best of times to care for [Mrs M]. Her needs and dependency levels were much higher than our EMD residents so during this challenging 6 month period we did purely the best we could. Staff worked extra hours… to try to provide one-to-one care… as this seemed to comfort her and slightly distract her from her destructive, disruptive and aggressive behaviours… they went above and beyond to dedicate extra time and attention”.
49. In relation to Mr X and Mrs S’s complaint that a junior member of staff provided incorrect information to a new care home the family found, which resulted in the placement falling through, the Care Home stated “When two members of staff visited… to carry out an assessment… with one of our senior members of staff, it is our duty to be open and honest so when asked general questions about her daily routine, needs and behaviours we responded as honestly as we could. The two members of staff… requested to see [Mrs M’s] daily notes as well as seeing [Mrs M] herself, coming to their own conclusions and withdrawing an offer of placement”.
50. The daily records noted that in June 2020, Mrs M complained of pain in her left arm. Staff noticed this was swollen and called an ambulance. Mrs M would not initially go with the paramedics which delayed her having an x-ray to make a formal diagnosis of the situation. Later efforts to get her hospital were successful, where her arm was examined and a diagnosis made.

My findings

We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.

Mrs M’s new placement

51. The case notes demonstrate the social worker actively tried to find Mrs M a new placement. However, the initial vacancies the social worker did identify were turned down by the family who later expressed reluctance to accept the recommendation Mrs M required a challenging behaviour placement and the associated fees. The family was entitled to refuse or question these placements and the fee structure, but the Council is not responsible for the additional time this inevitably took.
52. When the family would not accept Mrs M required a challenging behaviour placement, the social worker requested a specialist mental health assessment. This recommended Mrs M required a challenging behaviour placement to meet her needs. The social worker contacted Mrs M’s advocate for his opinion when the matter remained at stalemate. He supported the findings of the specialist assessment. The Council’s actions were appropriate, timely and robust. There social worker’s actions were professional and there is no evidence she acted without empathy, care or professionalism. Any decisions were taken in accordance with the procedures we expect, were based on professional opinions and were not influenced by the actions of individual care home staff. There was no fault in the Council’s actions.
53. Mr X is unhappy because he says there are insufficient EMI placements in the area. Mrs M did not require an EMI placement; she required a challenging unit placement. Therefore, this was not of relevance because this did not inform the Council’s actions or decisions. I will not investigate this further.

CHC checklists and assessment

54. Mr X complains the family and other bodies were not invited to the first CHC checklist carried out by the social worker in February 2020. Family members also did not attend the CHC checklist assessment in September 2020.
55. It would have been good practice for the Council to ask a representative if they wished to attend, particularly as Mrs M lacked capacity. Its failure to do so is fault.
56. I have considered the process the Council followed when it completed the September 2020 checklist assessment. It is unlikely Mrs M experienced an injustice from the fault I have identified. This is for the following reasons:
• the CHC checklist was completed by a relevant qualified social worker after reviewing Mrs M’s care needs with the deputy manager of her placement who was best placed to understand and communicate Mrs M’s current care and support needs. The outcomes recorded by the social worker are in line with Mrs M’s care plan and daily records. The social worker used their professional judgement to pass the checklist to the CHC Team even though it did not reach the threshold for a referral. The CHC Team decided Mrs M did not meet the criteria for a full review; and
• the social worker carried out another CHC checklist in April 2021, this time with a family member present. The CHC Team again decided Mrs M did not meet the threshold for CHC and awarded her FNC. Therefore, it is improbable that the outcome of the February or September 2020 checklists would have been different even if the family were present.
57. Mr X and Mrs S are unhappy Mrs M was not assessed for CHC following the social worker’s CHC checklist in February 2020. They are also unhappy the NHS is not backdating CHC awards. The NHS is responsible for carrying out CHC assessments after receipt of a CHC checklist. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS.
58. Mr X and Mrs S believe they were misadvised by the Council because they were told checklists should have continued to be submitted to the CHC Team during the period where assessments had ceased. This is so the information could be used at a later date.
59. The social worker was entitled to rely on the information the CHC Team provided her when she phoned it in June 2020. And in any case, that advice was in line with the emergency legislation. Subsequently, the social worker did submit a CHC checklist in September 2020 and this did not trigger an assessment. The April 2021 checklist, which did go through to assessment determined Mrs M did not qualify for CHC. There was no fault in the Council’s actions.
60. Mr X and Mrs S complained the Council failed to inform the NHS CHC Team that Mrs M had moved to a challenging behaviour unit. The CHC checklist from September records she was in a challenging behaviour unit so the Team was aware of the move. There was no fault in the Council’s actions.

Care whilst at the Care Home

61. The Care Home kept detailed records, observations sheets and recorded episodes of challenging behaviour. Although the records indicate it struggled to manage Mrs M’s behaviour, it carried out Mrs M’s care appropriately. There was no fault.
62. Mrs M damaged her arm which required a visit to the hospital. Staff and paramedics were initially unable to get her to go, but later attempts were successful. This delayed a formal diagnosis of Mrs M’s arm. However, this was not the result of any fault on the part of the Care Home or Council.
63. When staff from a proposed new care home visited, the Care Home had a duty to provide accurate information about Mrs M’s behaviour and care needs. Staff who were caring for her on a daily basis were well placed to provide this. The new care home considered all the information available, including its own assessment of Mrs M and concluded it could not meet her needs. There was no fault.

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Agreed action

64. Within three months of the date of the final decision the Council has agreed to make relevant staff aware of the need to invite family representatives to CHC checklist assessments where appropriate.

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Final decision

65. I have completed my investigation. There was fault in the Council’s actions when it failed to invite a family member to two CHC checklist assessments. However, this did not cause Mrs M an injustice.

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Investigator's decision on behalf of the Ombudsman