• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: The complaint is about care arrangements for Mr and Mrs B when Mrs B went home from hospital after a fall. There was no fault in the Council’s discharge planning which was in line with the Care Act 2014 and Mental Capacity Act 2005. And, there is no evidence Mrs B’s care arrangements caused Mr B’s health to decline or led to his admission into care. So we do not uphold this complaint.

The complaint

1. Mr A complains for his father Mr B that the discharge planning arrangements for his stepmother (Mr B’s wife, Mrs B) were inadequate and this caused Mr B’s health to deteriorate and led to Mr B’s admission to a care home.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I considered:
   • The complaint to the Ombudsman
   • The Council’s response to the complaint
   • Documents about Mr and Mrs B described later in this statement
   • Comments from Mr A on a draft of this statement.

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What I found

Relevant law and guidance

5. A council must carry out an assessment for any adult with an appearance of need for care and support. (Care Act 2014, section 9)
6. If a council decides a person needs support, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether they meet any eligibility criteria and sets out how the council is going to meet them. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
7. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. (Care and Support Statutory Guidance, Paragraph 13.32)
8. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision. The five key principles in the Act are:
   • every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
   • a person must be given all practicable help before anyone treats them as not being able to make their own decisions.
   • just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
   • anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
   • anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
9. An assessment of capacity should set out what decision needs to be made and evidence the assessor’s view. A person is unable to make a decision if they cannot:
   • 1. understand information about the decision to be made (the Mental Capacity Act calls this ‘relevant information’);
     2. retain that information in their mind;
     3. use or weigh that information as part of the decision-making process; or
     4. communicate their decision (by talking, using sign language or any other means).
10. 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. The term ‘best interests’ is not defined, however the Mental Capacity Act sets out a checklist of things to consider:
    • the person's past and present wishes and feelings (and any relevant written statement made by him when he had capacity);
    • the beliefs and values that would be likely to influence his decision if he had capacity; and
    • the other factors that he would be likely to consider if he were able to do so.
11. The Human Rights Act 1998 brought the European Convention on Human Rights (ECHR) into UK law. Section 6 says it is unlawful for a public authority, including a council, to act in a way which is incompatible with a convention right.
12. Article 8 of the ECHR says everyone has the right to respect for private and family life, home and correspondence. This right is qualified and can be interfered with, for example, in order to protect the rights of others or in the wider public interest. It recognises that resources are not finite. It is not the Ombudsman’s role to decide whether a council breached the Human Rights Act, this is for the courts. But we can decide whether a body addressed a person’s human rights in their treatment of them.

What happened

13. Focus Community Interest Company (Focus CIC) provides social care services to adults in North East Lincolnshire on behalf of the Council.
14. Mr B had dementia and lived with his second wife Mrs B in a house which she owned. Mr and Mrs B were both eligible for social care funding and had separate care plans with their care being delivered by agencies commissioned by Focus CIC. As they each had savings above £23,500, they had to pay for the full cost of their care. Focus CIC arranged care on their behalf. Both families were involved with Mr and Mrs B’s care.
15. Mrs B had a poor memory. The care and support plan of September 2017 set out Mrs B’s care needs. It said:
    • Mrs B had visits from carers in the morning and afternoon to check she had taken her medication, to make her a hot drink and to help with tidying.
    • The agreed personal budget (the cost of her care) was £44 a week to provide three and a half hours of care
    • Mrs B could manage her personal care with support from Mr B. They had a walk-in shower with grab rails
    • Family had powers of attorney for finances (this means Mrs B’s family had power to manage her money for her)
16. Mr B’s care and support plan of September 2017 said he needed help with showering twice a week and twice daily visits from carers to remind him to take medication. The agreed personal budget was to cover the cost of four hours a week of care. The Council reviewed Mr B’s care in January 2018 and decreased it because Mr B did not want help with bathing/showering. Mr A commented on a draft of this statement that Mrs B objected to all carers going into the home and saw it as interference, in particular with carers administering medication and with meals on wheels. Mr A told us Mr B had issues around showering, but he was open to having care in other areas.
17. Mr A contacted the Council in August 2018 to ask for a review of Mr B’s care as he was not able to do his own personal care and had lost weight. The care and support plan of August 2018 set out Mr B’s care and support needs and the services the Council arranged to meet those needs:
    • Meal preparation in the evening
    • Support to bathe/full body wash on Tuesday
    • Administer medication
    • 15-minute morning call, 30-minute tea time call (45 minutes on a Tuesday to assist with personal care.)
18. In August 2018, a social worker assessed Mr B’s mental capacity to make decisions about his care calls, particularly his past decision to refuse help with personal care. The outcome was he lacked mental capacity as he could not retain information required to make the decision. His children had powers of attorney for health and welfare. The social worker sought their views and those of Mrs B. All agreed it was in Mr B’s best interests to have support with personal care at home and there was to be a slight increase to the care package to include support with personal care in the hope that he might accept this. Mr B was saying he was willing to try help with personal care.
19. Mrs B went into hospital in the middle of September 2018 having broken her hip and arm.
20. At the end of September, the social worker reviewed Mr B’s care and support plan to see how his care package was working. Mrs B had gone into hospital. The evening support was not going well because Mr B would not often eat the food offered. He had also refused personal care and so his family asked for the help with personal care to be cancelled. There were concerns about the skin on his sacrum, which the district nurse was monitoring and treating. His wife’s ability to support Mr B with food was also variable. He was neglecting personal hygiene and his friends had commented on this. He had a morning call to remind him to take medication and a 30-minute call in the evening for medication and meal preparation.
21. The hospital social work team carried out a further social care assessment for Mrs B and prepared a care and support plan for her on 10 October. This said:
    • She was 85, lived in her own property with her husband who had his own care needs
    • She went into hospital after a fall causing a broken hip and upper arm
    • She was offered a temporary residential placement but said she wanted to go home. She had been assessed as having mental capacity to decide on her discharge despite some initial concerns about confusion
    • Family were worried about time in between care calls as Mr B was not in a position to help her and Mrs B was likely to ask for help
    • She needed a hoist for transfers. There were some concerns about her reluctance to use the hoist or to sit in a chair, this had been discussed with her and she was aware that carers would be calling at set times and she would need to stay in the chair until they returned to move her back into bed.
    • Carers would provide her with all meals and hot drinks
    • Carers would provide all personal care; she needed two carers and a hoist for transfers.
    • She was aware she would have access to the commode at care calls and not in between calls
    • The personal budget was for 14 hours a week of care, two workers, four calls a day.
    • The plan would be reviewed after the next fracture clinic appointment in four weeks.
22. Mrs B went home from hospital on 11 October with the care package described in the last paragraph. Mr A told us he and other members of his family raised many concerns with hospital staff about Mrs B being discharged home as they felt four calls a day was inadequate and that Mrs B would ‘run Mr B ragged’ and he would not cope with her. Mr A also told us that once home, Mrs B asked Mr B to help her mobilise on many occasions.
23. Mr A told us on 11 October, a family member phoned the hospital to say Mr B had been phoning many times saying he could not get the bed side down and Mrs B needed the toilet.
24. On 13 October, the care agency phoned the social worker to say a carer observed Mr B trying to help Mrs B get out of bed, at her request. Neither remembered they had been told this was unsafe. The agency put in place an extra call check and left a note for Mr B saying he should wait till the carers came to move Mrs B.
25. On 15 October, Mr A called Focus CIC saying:
    • He was concerned Mr B was putting himself at risk by trying to move Mrs B after the carers had gone.
    • Mr B was said to be asking neighbours to help Mrs B and to be sleeping on a sofa to be close to Mrs B at night (her bed was in the living room).
    • Mrs B should be in a care home and he thought she lacked mental capacity to make decisions about her care
26. The social worker carried out a review of Mrs B’s care and support plan the same day. The family were concerned about Mrs B’s memory and felt she may lack capacity to make decisions about her care. She had been asking her husband, who had dementia, to help her move. This placed both at risk of injury. The social worker carried out an assessment of Mrs B’s mental capacity to make decisions about her future care. The social worker noted Mrs B could not remember she had fractured her hip and arm and should therefore only use the hoist for transfers despite the social worker saying this a few minutes ago. She did not have dementia, but had some memory loss. The outcome of the mental capacity assessment was Mrs B lacked capacity because she could not retain relevant information necessary to make the decision. There needed to be a decision about care taken in her best interests and the family had organised additional home care privately to supplement the care already funded by the Council.
27. Mr A and the social worker spoke a few days later and he said he was going to take Mr B to his house and look after him. The social worker reminded Mr A he needed to take into account what Mr B wanted to happen and that Mr B had said he wanted to stay at home with Mrs B. Mr A took Mr B to his home on 17 October for several nights. Mr A said in an email that Mr B was thriving and had eaten and slept well. Mr A told me that the reason he took Mr B to his house was because his father could not cope with the situation and was stressed and putting himself in danger and sleeping on a sofa in the living room to be near Mrs B, instead of in his bed with a pressure mattress. Mr A told me his father went willingly.
28. Mrs B’s private and council-arranged agency home care continued (The council-arranged care was supporting Mrs B with transfers using the hoist and other essential care tasks). Mrs B’s family had arranged private round the clock home care (one carer, who did not do transfers) to supplement the council care. There was a gap of around an hour where the private carer was on a break and agency carers were not present either. This period was the source of concern and dispute among the two families.
29. Relations between Mr B and Mrs B’s children were not amicable. Mrs B’s daughter emailed Mr A to suggest Mr B could go home as additional care was in place for Mrs B. One of the other children suggested Mr B should remain with Mr A because Mr B could not stop helping Mrs B. The two families had different views and perceptions about their parents’ care needs and about who was posing the risk.
30. Mr A returned Mr B to live with Mrs B after several days. There continued to be disagreements about care arrangements by their respective families. The social worker instructed the council-arranged agency to stay the full time of Mrs B’s lunch call and to ensure Mrs B used the commode. She noted this would minimise the risk of Mr B moving Mrs B after the agency carers left (as she would have used the commode.)
31. On 12 November, the social worker emailed both families. She said there had been no reported incidents of Mr B attempting to move Mrs B for the past 10 days. Commenting on a draft of this statement, Mr A told me the private 24-hour care company recorded several entries where Mrs B was calling Mr B for help. The social worker said, that as both Mr and Mrs B had been assessed as lacking mental capacity to decide about unsupervised care, the families needed to work together to reach a solution, to put their own feelings and personal grievances aside and act in the parents’ best interests. The social worker suggested Mr and Mrs B could each have an additional 30 minutes care and this would cover the gap in care when Mrs B’s live-in carer took her break.
32. Mr B’s family agreed to the additional 30 minutes. Mrs B’s family did not. Focus CIC organised an extra 30 minutes care for Mr B.
33. In November 2018, a social worker carried out a further assessment of Mrs B’s mental capacity around a decision that she did not live with Mr B temporarily (the proposal was for Mr B to stay with Mr A temporarily). She lacked capacity to decide about whether to ask her husband to leave the home temporarily.
34. The social worker also carried out an assessment of Mr B’s capacity to make decisions about receiving home care. The outcome was Mr B lacked capacity to decide about paying for home care for the period when Mrs B’s carer was on a break. He was willing to pay for this though. The social worker spoke to Mr A and said the family needed to make a best interests decision about care for Mr B. The social worker noted that other family members had different ideas about whose responsibility it was to organise and fund further care and Mr B’s family did did not feel the risk was great enough for Mr B. The social worker said the issues needed to be resolved by discussion and agreement and best interests decisions and if not, then there would have to be an application to court.
35. A care and support plan dated 20 November 2018 for Mr B said:
    • Mrs B had been asking Mr B for help with transfers. Neither could remember that Mrs B required carers and a hoist to do this safely as she could not stand. They were both at risk of injury
    • Mrs B had live-in care apart from two 30 minute periods
    • Neither family could agree on who would pay for cover for the 30 minute periods
    • The care plan for Mr B would be arranged so the lunch call for him would be next to Mrs B’s call and during the live-in carer’s break. The calls would be morning, lunch (one hour) and evening for medication and food preparation
    • Mrs B’s live in carer minimised the risk of Mr B trying to help her to stand.
36. It is not clear whether further changes to Mr B’s care and support took place. The records suggest Mr A made changes directly with the care agency without reference to Focus CIC so the plan on the computer system did not match up with what was being delivered. The social worker noted the agreed lunch time call needed to be one hour (the system had it as 15 minutes and Mr A thought it was 30 minutes – but it needed to be one hour)
37. Mr B’s health declined and Mr A raised concerns about his father’s breathing and a possible chest infection and felt he may need residential care. Mr A told the social worker he was looking into a care home placement for his father. The social worker offered to set up a best interests meeting with both families.
38. Mr B went into hospital at the end of November with acute constipation and dehydration. Mr A told us his father collapsed due to exhaustion and had an infection. His family then decided Mr B was to go into permanent residential care. The social worker had previously explained that because Mr B had savings about the financial threshold, the powers of attorney (including Mr A) would need to arrange a care home placement. The records indicate Mr B’s family arranged a placement for him.
39. By the end of November 2018, Mrs B’s mobility had improved as her fractures were healing and she no longer required as much care as she had been getting. She could stand and walk without assistance and did not need a hoist.
40. The social worker spoke to Mr A to update him. He agreed Mrs B had improved and Mr B no longer required the call to cover the live-in carer’s break. Mr A said his family were willing to split the cost of a permanent live-in carer to look after both parents. However, Mrs B’s family had decided she was independent enough not to need live-in care.
41. A care and support plan of December 2018 noted Mrs B lacked mental capacity to make decisions about her care and the social worker had completed the plan with Mrs B’s family. The plan noted:
    • Her fractures had healed and she was transferring independently
    • Mrs B’s family made a best interest decision for her to live at home with a care package and informal support from the family
    • Her husband had moved into residential care following an admission into hospital
    • She was to have three calls a day (from one carer).
42. Mr A complained to Focus CIC, raising the same issues as in his complaint to us. It did not uphold his complaints.

Was there fault?

43. The Council and Focus CIC, acting on its behalf, were not required legally to remove all the risks posed by Mr and Mrs B living together and both having memory problems/dementia. I am satisfied Focus CIC responded appropriately and in line with the law as events unfolded. My reasons are in the following paragraphs.
44. Focus CIC was required to act in line with the Care Act and Mental Capacity Act, (see paragraphs five to ten). Focus CIC had to:
    • Assess Mr and Mrs B’s social care needs individually to decide whether they had eligible unmet care needs and put in place a care and support plan to meet those needs
    • Assess their mental capacity to make decisions about care and support arrangements, if capacity was in doubt
    • Review care and support plans in response to a change in circumstances.
45. In relation to Mrs B, there was no fault because Focus CIC:
    • Assessed Mrs B’s needs before discharge from hospital and put in place a care and support plan to meet her needs. I note Focus CIC offered residential care which would have met all her needs and decreased any risks posed by unsafe moving and handling by Mr B. Mrs B declined residential care and no-one could force her to accept a care home placement because at the time she had mental capacity. So Focus CIC offered home care calls to support Mrs B to go home in line with her wishes
    • Assessed Mrs B’s mental capacity when Mr B’s family members raised concerns about the decision she had capacity. The view about her capacity changed once she was discharged from hospital
    • Liaised with Mrs B’s family, who had powers of attorney and had the role of making decisions on her behalf (including decisions about additional non-council funded care), in her best interests.
46. In relation to Mr B there was also no fault because Focus CIC:
    • Reviewed his care and support plan, making changes as required to meet his needs. Mr B was reluctant to accept care and the records suggest he refused help with personal hygiene and eating, although care to support those needs had been arranged
    • Carried out assessments of Mr B’s mental capacity to make specific decisions about care and support as issues arose with the care arrangements for both him and Mrs B
    • Liaised with his family to try and seek agreement about what care was in his best interests.
47. There was no fault by Focus CIC, which acted on behalf of the Council. I note Mr B had a progressive condition which is likely to have been following a natural decline irrespective of any fault or otherwise in the couple’s care arrangements. The records evidence Mr B was refusing personal care and that the different arrangements on offer for support with eating that were trialled were all unsuccessful. The family thus decided he required care in a residential environment. I note this was a very difficult decision for them as it would be for any loving family.
48. I also consider Focus CIC, acting for the Council, had due regard to Mr and Mrs B’s right to family life. The care and support plans aimed to minimise risks posed by their dementia/memory loss by putting in place tailored care to meet their needs. The social worker took into account their expressed wishes to remain together. While I accept Mr B’s family felt the risk was unacceptable, I do not consider there was any fault in the approach taken to care planning which was to try to minimise risk as opposed to eliminate it.

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Final decision

49. The complaint is about care arrangements for Mr and Mrs B when Mrs B went home from hospital after a fall. There was no fault in discharge planning which was in line with the Care Act and Mental Capacity Act. And, there is no evidence Mrs B’s care arrangements caused Mr B’s health to decline or led to his admission into care. So I do not uphold this complaint.
50. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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