Summary: Mr G’s daughter, Mrs T, complains the Council told Mr G that it would extend a six week care home placement for a further three weeks and that it would not charge him for this. She also complains about poor care at the home. There were failings in the care provided to Mr G by the care home. The Council has agreed our recommended remedy.

The complaint

1. Mrs T complains the Council failed to inform Mr G about care charges for a care home her father lived in. She says it advised him there would be no charge as it was an extension of an intermediate care placement. As a result, she says Mr G stayed in the home for longer than was necessary. The family also considered the home, Cherry Leas Care Home, Clacton, provided poor care.
2. The family complained G’s health deteriorated because the home:
• Did not record an unwitnessed fall
• Did not record Mr G had any showers
• Was in a poor state of repair and was a health and safety risk
• Kept Mr G in his room while he ate meals and did not consider his risk of choking.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. 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). 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).
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. I have considered the information provided by the complainant. I have made enquiries of the Council and considered the comments and documents it provided. Mrs T and the organisation had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance

Intermediate Care and Reablement

7. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. Intermediate or reablement care is often a short-term placement in a care home.
8. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Mental Capacity Act

9. 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 Act (and the Code of Practice 2007) 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.

Mental capacity assessment

10. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
11. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

Financial limit – charging for residential care

12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

What happened

13. Mr G was discharged from hospital to a temporary placement in a residential care home in January 2023. He had previously lived at home with his wife Mrs G. Mr G is living with Parkinson’s disease.
14. The Council arranged the residential care placement and started carrying out an assessment of Mr G’s care needs in January.
15. In early February the Council says that its social worker discussed the Council’s financial charging policy with Mrs G. As Mr G owned property his capital was above the maximum threshold. This meant that he would be liable to pay for the full care home charges.
16. A week later the social worker sent Mrs G an email regarding the discussion about charging. She attached the Council’s charging policy for adult social care. She referred to the financial assessment process and provided a link to the Council’s care contribution calculator.
17. Mrs T says the information the Council provided at this point did not relate to the extension of the placement that occurred later. She also said that the family made it clear to the Council that after the six-week assessment period, Mr G would be able to financially support his ongoing care for a period of time.
18. The Council had not completed its care assessment five weeks after Mr G moved into the care home.
19. On 22 February Mrs T says that during a meeting with Mr and Mrs G, the social worker advised that she would extend the placement by three weeks in order to complete the assessment. Mrs G said Mr G asked how much the care home cost, and the social worker told him that he would not be paying for his care.
20. Mrs G explained that the family wanted Mr G to move to another care home because they were dissatisfied with the care provided and Mr G’s health had deteriorated. However, the social worker said that Mr G would remain at the current home because that is where he said he wanted to stay. Mrs G explained Mr G would be able to self-fund when the Council’s placement ended. But that would be at a different care home due to the family’s concerns.
21. Mrs G says that she felt she had no option but to accept the Council’s decision to extend the placement at the care home while it completed its assessment.
22. The social worker noted its discussion with Mr and Mrs G on 22 February regarding the extension of the placement. It said that Mr G:
• Understood he had above the threshold in savings at present and would be paying the full cost of his care.
• Agreed to a further temporary extension of his placement to allow time to complete the safeguarding enquiry. Following this process, he could make a private arrangement directly with the home.
23. The Council noted its plan to: “continue with ongoing safeguarding work. finish assessment and escalate for extension of placement. Review and case closure for [Mr G] to make private arrangement with care home long term if this is still his decision.”
24. Mrs G emailed the social worker on 27 February 2023. She requested the social worker completed a placement request form so that Mr G could move and continue his respite at a new care home the family had identified. She said the current care home placement would not improve his health and abilities. While Mrs G noted that Mr G told the social worker he wanted to remain where he was, he was now aware he would not improve and wanted to move to a different home. In her view it was not in Mr G’s best interests to remain due to his deterioration.
25. The Council did not reply to Mrs G’s email requesting a move.
26. The Council completed its care assessment shortly after Mrs G’s email. It noted it had shared a copy of the assessment with Mr G. However, Mrs G says that the family were not aware of the completion of the assessment, and the Council has not sent them a copy.
27. On 6 March the Council noted a telephone call between Mrs G and the social worker about Mrs G stating Mr G wished to move. The Council said that while Mrs G had lasting power of attorney (LPA), this power could only be exercised when an adult loses the capacity to make the decision for themselves. At that point in time, the Council considered Mr G was able to make the decision himself.
28. After the three- week extension period had ended in mid- March, the family told the Council they had moved Mr G to a new residential care home.
29. Mr G’s social worker advised the family that the Council would need to carry out a financial assessment to assess Mr G’s contribution for the three -week period. Mrs T says this is the first the family knew about charges for the period as the Council had not mentioned anything about charges.
30. On 29 March 2023 the Council sent Mr G an invoice for £1930 for the three-week period.
31. Mrs T complained to the Council in May 2023. She said the Council had refused to allow Mr G to move and led Mrs G to believe that he must remain in the home She said the Council claimed Mr G wanted to stay in the home. In Mrs T’s view the Council failed to assess Mr G’s mental capacity and dismissed the family’s wishes. She said the social worker did not tell them that the extended period would be chargeable. Mrs T said that if the Council had made it clear Mr G would not be funded by the Council, he would have moved to the alternative placement at the end of the six week period and would have been looked after properly.
32. The Council replied that its social worker had discussed whether Mr G wanted to move with him. The Council had determined that Mr G wanted to remain in the care home and that he had capacity to make the decision. The Council noted Mrs G had LPA but the legislation was clear that this power could only be exercised when the adult loses capacity. At this point in time the Council said it was clear Mr G could make the decision himself.
33. The Council said that
• the social worker noted she had explained the financial charging policy to Mrs G and later sent information to her by email about its policy.
• The social worker had noted that on 22 February she discussed with Mr G that his savings were over the financial threshold and that he would have to pay the full cost of his care.
• Mr G had agreed to the extension of the placement and made it clear he did not want to consider moving.

Safeguarding investigation

34. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
35. In late January 2023, a member of Mr G’s family raised a safeguarding concern about poor care and standards at the home. The issues raised were, amongst other things, that:
• Mr G had a fall when alone in the bathroom and injured his leg. Staff were unaware of this, and did not record it when family advised the home.
• The care home had no records that Mr G had any showers.
• The care home kept Mr G alone in his room and he ate meals without supervision despite being at risk of choking.
• The care home did not keep proper records of care and medical requirements.
• The care home would not let family members see his care plan and care notes.
• The care home was in a poor state of repair and breached Health and Safety regulations.
36. The Council progressed the concern to a safeguarding enquiry. The Council discussed the issues with Mr G and he agreed that it should continue its enquiry. The Council also discussed the concerns raised with Mrs G.
37. The Council completed its enquiry after Mr G had moved to another home. The outcome of the enquiry was that it was partially substantiated. The report stated that the care home had learnt lessons and would take action to remove or reduce risks. The care home said
• Regarding the unwitnessed fall – it had updated its training regarding expectations of staff to record incidents.
• Regarding refusal of showers – it had updated its training to staff about recording of care intervention even if this was declined by residents.
• Regarding the family’s concerns regarding choking risk to Mr G if he ate alone – it would be more proactive in asking for consent to involve family members in care planning stages to ensure it was reflective of their views and their understanding.
• It would request professional health assessment in timely manner if there were any concerns or queries including choking risks.
• It would continue to address environmental issues such as disrepair in the home.
38. The Council advised Mr G of the outcome and closed its enquiry.

Analysis - Failure to inform about the charge

39. There is insufficient evidence that the Council stated there would be no charge for the three week extension period. The Council did not state this in writing. While I note Mrs G says the social worker told Mr G would not have to pay for his care, I do not have a recording of this meeting. The social worker’s note of the meeting refers to Mr G understanding he would pay the full cost of care. The two recollections of what was said do not agree. Therefore, I do not see there is fault here.
40. Mrs G agrees that she received information about the financial assessment process and the Council’s charging policy. The family also stated that it knew Mr G’s capital was over the maximum threshold and therefore Mr G and the family knew he would be liable to pay the full charge.
41. While Councils can extend periods of reablement or intermediate care beyond six weeks, they should advise the service user about this. The Council appears to have confirmed that it was extending the period to complete its assessment. The Council completed the care assessment shortly after the six- week period ended. It says it advised Mr G regarding this by sharing its assessment with him. There was no fault here given that the Council confirmed its assessment and Mr G had stated he wanted to stay at the care home.
42. The social worker confirmed shortly after Mr G moved out that it was charging for the period and it sent an invoice on 29 March. There was no unacceptable delay here.
43. I note Mrs T questions the Council’s assessment of Mr G’s mental capacity to make a decision. The Mental Capacity Act 2005 sets out the principles that “A person must be assumed to have capacity unless it is established that he lacks capacity.”
44. I have considered how the Council made its decision about Mr G’s mental capacity. The Council carried out several interviews with Mr G. Some were with family members present and others were with Mr G alone. The Council concluded that he had capacity. I do not see that there is evidence of fault here.

Analysis - safeguarding investigation

45. I have considered the Council’s safeguarding enquiry. It upheld some of the concerns that were raised.
46. The Council considered the care home failed to properly record the reported unwitnessed fall.
47. The Council found there was poor record keeping. Staff did not record when Mr G refused showers.
48. The Council considered the home failed to engage and communicate with the family. The Council said the care home could have addressed the concerns regarding choking risks if it had engaged with the family earlier. It would then have been able to involve speech and language therapists. But it did not refer Mr G to professionals and he moved before it considered this.
49. Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 emphasizes person-centred care. Providers should ensure that care and treatment are appropriate, meeting the individual’s needs, and reflecting their preferences. Mr G had capacity to decide whether or not to accept care, and so could refuse showers. However, the care home’s failure record when Mr G refused showers did not follow regulation 17 of the regulations regarding record keeping. The poor records led to uncertainty for the family.
50. The Council found that there was some disrepair and poor condition of some furniture. These issues were satisfactorily addressed by the care home.
51. I consider that the failings identified in the safeguarding report caused distress and anxiety to Mr G and his family. I have recommended a remedy.

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Agreed action

52. Within one month of my decision the Council has agreed to:
• Apologise to Mr and Mrs G for the failings in the care Mr G received at the care home identified in the safeguarding investigation. This apology should be in line with our Guidance on Remedies.
• Pay Mr G £250 to reflect the failings in Mr G’s care.
53. The Council should provide us with evidence it has complied with the actions in paragraph 52.

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Final decision

54. There was fault by the Council because Mr G received poor care in the care home placement it arranged. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman