Summary: Mr C complains about the care the Council and its provider gave to his late father, particularly around a lack of consideration of his cultural needs. Mr C says this highlighted a lack of race awareness within the Council and the Nursing Home. The Ombudsman upholds most of the complaint and has made recommendations, to which the Council agrees.

The complaint

1. The complainant (whom I shall refer to as Mr C). complains about his father’s (Mr D’s) stay in Longmead Court Nursing Home (which I shall refer to as the Nursing Home). He complains about the care assessment, planning and provision of the Council and care provider:
• the Council should have carried out a care assessment when it took over responsibility for Mr D’s care. Mr C’s view is, if it had done so, it would have decided that, with him in a caring role, Mr D could have returned home, as the family wished;
• the Council should have either involved an advocate or the family in assessments;
• they did not consider or meet Mr D’s cultural needs.
• they left Mr D to live a life of complete isolation – he only left his room three or four times during his stay;
• staff could not adequately communicate with Mr D. He spoke a rural Jamaican patois that was not easily understandable.
2. Mr C also complains about the Council’s actions and that it:
• carried out best interests and deprivation of liberty assessments without involving him;
• was only interested in funding – its social worker kept asking when they would sell Mr D’s home.
3. Mr C says the issues show the racism within the Council’s system. He says he wants the Council to admit its failure and its social workers’ lack of training about race awareness.

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What I have and have not investigated

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mr C has his own health needs, that cause him problems with communication. Because of this and the effects of the pandemic’s lockdowns, I am using our discretion to investigate events from September 2019, which is more than 12 months before Mr C’s complaint to the Ombudsman.
6. Mr C remains concerned about the role of the NHS in placing Mr D in a nursing home. We have no jurisdiction about provision met by the NHS. And the Parliamentary and Health Service Ombudsman has made a decision on Mr C’s complaint about that issue. So I have not investigated any of the assessments or planning before August 2019, as these were not carried out by the Council. This includes the placement of Mr D in the Nursing Home.

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The Ombudsman’s role and powers

7. 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)
8. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

9. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
10. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
11. If we are satisfied with an organisation’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)
12. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

13. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr C;
• made enquiries of the Council and the care provider and considered their responses;
• considered the Parliamentary and Health Service Ombudsman decision about the actions of the NHS’s Clinical Commissioning Group (CCG);
• spoken to Mr C;
• sent my draft decision to Mr C, the Council and the care provider and considered their comments.

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What I found

Legal and administrative background

COVID-19

14. 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 and care provider followed the relevant legislation, guidance and our published Principles of Good Administrative Practice during COVID-19.

Care Plan

15. The Care Act 2014 reformed the assessment and planning process of adult social care. It is supported by the Care and Support Statutory Guidance (which I shall refer to as the Guidance). This says an ‘assessment’ must always be appropriate and proportionate. It may come in different formats and can be carried out in various ways.
16. The Care Act gives councils a legal responsibility to provide a care and support plan for someone they assess to have eligible needs. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. 
17. The Guidance says:
• care and support planning must be person-centered: a person’s needs are specific to them;
• where someone lacks the mental capacity to make their own decisions, the council must involve any person who appears to the authority to be interested in the welfare of the person. It should also involve anybody who can contribute useful information; and
• this should be done as early as possible in the assessment process.

Charging for social care services: the power to charge

18. The Care Act provides the legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
19. The Council’s charging policy says it:
• charges for providing adult social care;
• chases non-payment of care charges.

NHS Continuing Healthcare (CHC) assessments

20. NHS CHC is a package of continuing care arranged and funded solely by the NHS, if it assesses that an individual has a ‘primary health need’.
21. As complaints about CHC assessments are against the NHS, they are dealt with by the Parliamentary and Health Service Ombudsman.

Mental Capacity Act

22. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The Act (and the Code of Practice 2007) 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.
23. 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.

Deprivation of Liberty Safeguards (DoLS)

24. The Deprivation of Liberty Safeguards protect people who lack mental capacity and are in hospitals, care and nursing homes, from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
25. It is the responsibility of the care home or hospital to apply for authorisation. On application, the supervisory body (a council) must carry out an assessment within 21 days.

What happened

Background

26. After a stroke, Mr D had been receiving CHC funded nursing care, provided by the NHS’s Clinical Commissioning Group (CCG). At first Mr D was cared for at home, with daily visits from nurses and help from Mr C and other family members. Mr C is Mr D’s son. He has his own health conditions that sometimes placed limits on his ability to support Mr D.
27. The CCG’s assessments noted that Mr D had found communication difficult since his stroke. And he had a “strong Jamaican accent” which meant “it [could] be particularly difficult for carers to understand [him]”. The last CCG review of Mr D’s home care needs was in the spring of 2017.
28. In early 2018 Mr D had to go to hospital with acute bronchitis. After a few weeks he was ready for discharge. The hospital held a meeting to decide what was in Mr D’s best interests. Its record of that meeting noted Mr D advised he wanted to move to a nursing home (Mr C disputes this). The hospital decided it was in his best interests to move to an ‘interim placement’ in a nursing home, with a review of the placement after six weeks.
29. In April 2018, Mr D moved to the Nursing Home. This was funded by the CCG as CHC. As part of its investigation, the Parliamentary and Health Service Ombudsman found the CCG did not carry out an assessment of Mr D’s care needs after he moved to the Nursing Home.
30. In response to my draft decision, the Nursing Home has sent me a copy of its own assessment and plan it completed after Mr D moved there. Of relevance to this complaint, these note:
• Its catering staff knew that Mr D preferred Jamaican food. But Mr D would often refuse his meals, and preferred ‘finger foods’ and sandwiches to hot food;
• Mr D’s ‘first language’ was Jamaican. But he spoke and understood English well.

The care provision

31. In August 2019 the CCG decided to carry out an assessment of Mr D’s care and nursing support. It contacted the Council and asked it to carry out an assessment of Mr D’s care needs, so it could understand these, as part of its assessment of his health care needs.
32. The Council’s social worker carried out an assessment. The records of that assessment note the following issues that are particularly relevant to Mr C’s complaint to the Ombudsman:
• carers cared for Mr D in his own bed, due to his disabilities. To move him, carers needed to use a hoist. But Mr D became distressed when they tried to do this;
• carers needed to speak slowly to Mr D, because of his dementia. But he could understand simple requests;
• Mr D could not take part in the assessment process. The Nursing Home’s senior carer represented his views;
• Mr D enjoyed eating sandwiches, cakes and biscuits. “[T]he staff also ensured that the care they provide is person centred by ensuring that he has a choice of English or Jamaican food available to him”;
• on the form there is a question about whether Mr D had someone who acted on his behalf. The box is ticked. But a box for the identity of that person is blank;
• the section for recording whether Mr D needed continuous supervision and control was not fully completed.
33. The CCG carried out its assessment. Mr C did not attend – it later transpired the CCG’s letter did not reach him. The CCG’s decision was Mr D did not have health needs that qualified for CHC funded care.
34. In October the Council’s social worker telephoned Mr C. She advised him of the NHS decision and his rights to appeal. The case notes record Mr C was angry and believed the Council should be appealing the decision on Mr D’s behalf. The social worker recorded that she explained to Mr C he could complain about the Council’s actions. Mr C has a different memory of this conversation.
35. The CHC funding ended in October 2019. After this, for the first time, the Council assumed a role in providing part of Mr D’s care. It completed a new support plan and associated documents around then. Mr C was not involved in drawing up the support plan. The documents note:

• that Mr D’s fluency in English was good and he did not need an interpreter;
• Mr C was Mr D’s representative;
• Mr D could understand simple questions;
• that Mr D had no spiritual or cultural needs.

36. The Council has records of trying to arrange with Mr C to carry out mental capacity assessments. In October it advised Mr C of its charging policy for the care it provided. After this, Mr C advised the social worker he wanted nothing to do with her and he was not completing any paperwork.
37. In December 2019 the social worker carried out a light-touch review of Mr D’s care plan. She sought legal advice, because of Mr C’s refusal to engage with assessing Mr D’s finances. She also sought a temporary (continuing) placement for Mr D at the Nursing Home, to allow the Council to carry out a mental capacity assessment and make best interests decisions about Mr D’s care.
38. In January 2020 Mr C asked the Council to appoint an advocate to act for Mr D.
39. During the first part of 2020, the Council continued to communicate with Mr C. This included requesting he complete a financial assessment for Mr D’s care provision. It also contacted the Office of the Public Guardian, who advised it Mr C did not hold a lasting or enduring power of attorney for Mr D. Mr C disputes this.
40. With the onset of the COVID-19 pandemic, Mr C advised the Council the lockdown meant he was having problem getting legal advice and making any applications.
41. In May Mr C emailed the Council to advise the NHS had arranged the Nursing Home placement without the family’s agreement. So he was reluctant to enter into a financial agreement with the Council, while he remained in dispute with the CCG about its funding. An internal Council email:
• suggested its Adult Social Care team needed to separate Mr D’s care and support needs from the issue with the finances;
• that the Council might need to consider what was in Mr D’s best interests.
42. By July, financing Mr D’s stay was unresolved. Mr C advised the social worker he did not want to start paying anything until he found out the outcome of legal action he was taking about the NHS’s decision. Mr C also disputed that he did not hold a power of attorney for Mr D. The social worker noted she had been reluctant to refer the matter to the Council’s safeguarding team, due Mr C’s underlying health conditions and that he was shielding during the pandemic. But she noted the Council needed to review that decision, as the case was not moving forward.
43. In August Mr C noted:
• his view was the Nursing Home was not meeting Mr D’s cultural needs. This included not providing him with Jamaican style food;
• Mr D spoke a Jamaican dialect which meant he would not be able to effectively communicate in standard English;
• despite this, he did not think, by then, it would be in Mr D’s best interests to move him. But the NHS should never have moved him to the Nursing Home. So it should continue to pay his care fees.
44. An August Council review of Mr D’s care and support plan noted his first language as ‘other’. And that his fluency in English was ‘a little’. It noted an action was to contact the Nursing Home’s manager and the family to discuss meeting Mr D’s cultural needs. Mr C says the Council did not contact the family.
45. The Council’s social worker contacted the Nursing Home about Mr D’s cultural needs. The Nursing Home’s response:

• advised it had offered Mr D Jamaican food, but he did not eat it;
• suggested Mr D’s family could bulk cook and send it to the home for it to give to Mr D;
• advised that no mention had been made about Mr D’s cultural needs during the time the NHS was funding his care.

The DoLS request and mental capacity assessment

46. In April 2019 the Nursing Home made a DoLS application to the Council.
47. The Council has not sent me any record of its further action about this until June 2020 when its DoLS triage team contacted the Nursing Home’s manager. It noted its assessment was on hold, as the Nursing Home was not allowing visits, due to the COVID-19 risks.
48. In August the Council carried out a mental capacity assessment. It noted:
• Mr D lacked the capacity to make his own decisions;
• Mr D’s family believed they were acting in his best interests, but the fees for his placement had not been paid for around a year;
• it might be in Mr D’s best interests to either refer the case to safeguarding, or for the Council to apply for deputyship.
49. In October 2020 the DoLS team carried out its assessment. The assessor noted Mr D had engaged well during the assessment. But his concentration span and retention were poor and he was disorientated about time, place and person. He did not object to the Nursing Home stay. But, more likely than not, he lacked the capacity to consent to his stay.

Mr D passes away and Mr C’s complaint

50. In October 2020, the Council’s finance team agreed to stop chasing a response to the outstanding debt on Mr D’s account, due to Mr C’s dispute with the Council.
51. Mr C began to formally complain to the Council about issues around Mr D’s stay in December 2020. The Council responded promptly and recognised his feeling that its recent assessments had focused on charging and not what Mr D’s needs were. So it agreed to revisit the assessment.
52. Mr D passed away in January 2021. Understandably, Mr C’s complaint was on hold after this. Mr C responded to the Council’s December 2020 contact in March 2021. Mr C and the Council were in correspondence about the complaint. The Council provided its first complaint response in August. This:
• acknowledged that if Mr C had been involved in its first assessment he might have helped Mr D to take part more in the assessment process;
• noted its social worker tried to engage Mr C with her review that took place in December 2019. But Mr C had said in November he did not want to work with the social worker. It accepted the social worker should have investigated this further with Mr C. So this was a missed opportunity to consider reallocating the case;
• accepted it should have earlier instructed an advocate (before Mr C asked for one in January 2020);
• apologised that some of its support for Mr D had fallen short;

• acknowledged Mr C’s concerns the faults highlighted racism in its system. And that it needed to seek to learn from the experience. Anti-racist practice was paramount to how its Adult Social Care team worked. So, it would conduct an internal review to aid its learning.

53. Mr C asked to escalate the complaint. The Council considered this at the second stage of its process and advised it accepted:
• its social worker could have done more to better understand Mr D’s cultural needs;
• it could have appointed an advocate which may have better informed its assessment.
54. Mr C also complained to the care provider. Its response noted it:
• had not been able to locate any record of it having considered Mr D’s cultural needs;
• did have a conversation with the family about Mr D’s diet.
55. Mr C complained to the Ombudsman. In response to my enquiries, the Council advised it:
• was taking forward learning from his complaint as part of its continuing training to ensure its workers fully understood the need to identify cultural needs and to respond appropriately (see below);
• recognised Mr C was put to unnecessary time and trouble in having to make a complaint. It offered him £250 in recognition of this;
• accepted, after the outcome of its August 2020 mental capacity assessment, it should have written to Mr C inviting him to apply to become Mr D’s deputy. Instead its social worker raised the issue as a safeguarding matter, which was the wrong action. It had raised the matter with the officer and more widely.
56. I also asked the Council to get the care provider to respond. It said:
• Mr D was living with advanced dementia and a spinal cord injury. So he received all his care in bed. Mr D became anxious when carers transferred him (using a hoist) and he hit out;
• it often asked Mr D if he would like to go outside, but he often shook his head. Its staff continued to ask him.
• Mr D could communicate in English, but sometimes found it difficult to find the correct word.
57. The Council also sent me a copy of the learning review it carried out in response to Mr D’s stage one complaint (see paragraph 55). Its record says the relevant manager had fed back the complaint and learning with their team and acknowledged staff needed support and training.
58. The review made some recommendations:
• “Staff across Adult Social Care to be encouraged to complete the available learning opportunities to raise their awareness as they support the diverse population.
• Adult Social Care managers to attend learning opportunities to build on staff management skills as they have culturally diverse staff that serve diverse population.
• Review of the ASC Practice Hub to ensure the resource has policies and procedures that adequately support staff to serve the culturally diverse population.
• Adult Social Care to work with providers to deliver services that support diverse cultures.”

Responses to my draft decision

59. Mr C provided a detailed response to my draft decision. He questioned many aspects of the care arranged and provided by the NHS, Council and Nursing Home. He also:
• disputed the Nursing Home’s claim it had offered Mr D Jamaican food;
• reaffirmed that Mr D could be difficult to understand if the listener was not used to his Jamaican accent;
• said Mr D did not have a formal diagnosis of dementia.
60. The Council advised the actions outlined in paragraph 58 were part of an ongoing, large-scale piece of work by its Adult Social Care Service. It had started a series of engagement exercises on a range of diversity issues.
61. The Nursing Home sent records, some of which I have incorporated into this statement.

Was there fault by the Council?

The care assessment and a consideration of Mr D’s cultural needs

62. Mr C’s view is that, if he had been involved in the earlier assessments, the Council could have considered other options for Mr D’s care (his belief is Mr D might have moved home, with support). I cannot make a finding on whether that was a possibility. But I find fault in the Council’s delay in seeking to involve Mr C in its assessment. It was correct to involve carers at the Nursing Home in the assessment. But it should have also sought to involve Mr C, as a family member interested in Mr D’s welfare. It did later try to do this. But I would have expected to see a record of trying to do this right at the start of its process. Instead the section on the form where Mr C’s details should have been noted was blank.
63. The Council should have been seeking to provide Mr D with person-centred care. That should have included exploring with Mr D and his family whether he had any cultural needs. Its assessment record has simply ticked a box that Mr D had no cultural or spiritual needs. I find this was an inadequate consideration of this issue. And, on the balance of probabilities, if it had fully involved Mr C in the assessment and planning process, he would have raised his concerns earlier than he did. I find fault.

Mr D’s need for an interpreter

64. There is a conflict in evidence between Mr C’s description of Mr D’s need for an interpreter and what the records say about this. But I note the Parliamentary and Health Service Ombudsman found, that when the CCG was responsible for Mr D’s care, that communicating with Mr D could be a problem, due to his accent/dialect. So, on the balance of probabilities, I find fault that Council officers did not earlier explore this with Mr C.

Lack of cultural awareness

65. Mr C says the Nursing Home was ill equipped to provide care that was appropriate to Mrs D’s cultural needs, particularly his dietary preferences.
66. The records show there was a dialogue with the Nursing Home and the family to in relation to Mr D’s dietary preferences. Mr C strongly disputes how much the Nursing Home addressed this issue. I do not have the evidence to resolve this conflicting evidence. I do not consider that further investigation would resolve these conflicting accounts of what took place.
67. But in relation to the wider complaint about a lack of cultural awareness, the Council has produced its own report following Mr C’s complaint. That led to several recommendations for better embedding race awareness in the Council’s adult social care team. So I uphold Mr C’s complaint the issues he has raised highlights issues in respect to Council officers’ race awareness.

Mr D’s time in his room

68. The Council and care provider have recorded that they needed to provide Mr D’s care in his bed. And that he became distressed when carers tried to move him. Mr C says this Mr D became withdrawn due to his isolation, dating from the time he first moved to the Nursing Home. This Ombudsman cannot consider this earlier period. And, on the balance of probabilities, I cannot say that Mr D’s limited time outside his room, for the time when the Council was funding his care, was not in his best interests.
69. But if the Council and care provider had considered more fully, with Mr C, Mr D’s cultural and language needs, this might have resulted in different outcomes for Mr D. It might have led to a consideration of other ways to combat the isolation Mr D was likely experiencing. For example, the support plan might have asked the Nursing Home to have dedicated more time for staff to spend with Mr D in his room; this could have involved activities like conversation, reminiscence work, reading and so on. To not have considered this was fault.

The funding

70. I do not agree with Mr C that the Council and its social worker were only interested in funding. It was an important concern in their communications with him. That was appropriate: the Council has a policy of charging for residential care. This was an issue that needed resolving. It is hard to see how it would have been in Mr D’s best interests not to have done so.
71. But I do note the Council itself advised the team to separate out the issue of care provision and funding. On the balance of probabilities, it was fault for it to not have done this earlier.

Deprivation of Liberty

72. I find fault with the delay in:
• the care provider making a referral to the Council’s DoLS team;
• the Council carrying out its assessment; and
• not involving Mr C in this assessment.

Did the fault cause an injustice?

73. When someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. This is because the person who received the poor care cannot benefit from such a remedy. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, we may recommend a symbolic payment to them as a remedy for their own distress.
74. The faults I have identified will likely have led Mr C to some avoidable distress, including stress and frustration. They will have also likely caused him some avoidable uncertainty about whether things might have been different, but for the fault.

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Agreed action

75. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So I have made recommendations to the Council.
76. Within one month of my final decision, the Council has agreed to:
• write to Mr C providing an apology for the faults I have identified in this statement. This letter should also set out the lessons the Council has learnt from, and what it has changed as a result;
• make a symbolic payment to Mr C of £500 in recognition of the distress the faults will have caused him;
• this is in addition to the £250 the Council has offered which it says is for time and trouble.
77. After three months of my final decision, the Council has agreed to my recommendation that it will provide us with a report on its progress in carrying out the steps its own report identified as recommendations.

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Final decision

78. I uphold the complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman