Summary: Mrs Y and Ms Z complained about funding for their mother, Mrs X’s, residential care and the response to an injury to Mrs X’s hand. We have upheld the complaints against the Council and recommended remedies. We have not upheld the complaint against the NHS Clinical Commissioning Group. The Council accepts our recommendations. We have therefore completed our investigation.

The complaint

1. The complainants, whom I shall call Ms Z and Mrs Y, complained about funding for their mother, Mrs X’s, residential care and about the response to an injury to Mrs X’s hand. Specifically, they complained that:
• COVID-19 funding for Mrs X’s residential care was stopped when they refused to return her to a care home after finding out in Accident & Emergency that the care home had failed to notice and act on a hand fracture; and
• they have had inadequate information about what happened to Mrs X’s hand in the care home and about a later safeguarding enquiry.
2. Gloucestershire County Council (the Council) and Gloucestershire Clinical Commissioning Group (the CCG) were jointly responsible for the COVID-19 funding for Mrs X’s residential care at Buckland Care’s Brunswick Nursing Home (the Home). The Council was responsible for Mrs X’s care there.
3. The complainants said Mrs X suffered a financial injustice and they were distressed by not knowing what happened to her at the Home. The complainants wanted Mrs X’s residential care fees to be paid for a full six weeks.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation acts to stop the same mistakes happening again.
8. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
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. The Council remains responsible for those services and for the actions of the organisation providing them. (Local Government Act 1974, section 25(7), 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 organisations followed the relevant legislation, guidance and the Local government and Social Care Ombudsman (LGSCO’s) published “Good Administrative Practice during the response to COVID-19”.
11. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
12. 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

13. I have considered:
• information Ms Z and Mrs Y have provided in writing and by telephone;
• written information provided by the Council and CCG; and
• relevant law and guidance.
14. Ms Z, Mrs Y, the CCG and the Council have 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

Background summary

15. Mrs X is in her 90s and has dementia. Until 2020, she lived in an assisted living apartment and received three to four visits a day from care workers. In 2020, her dementia worsened and her care needs increased. She needed hospital treatment following a fall. At this point, medical and social care staff and Mrs X’s family agreed she needed to go into residential care to stay safe.
16. Mrs X was discharged from hospital to the Home in September 2020. Because of COVID-19, normal visiting arrangements did not apply, but relatives could visit residents in the garden. Mrs Y visited Mrs X in the Home’s garden a few days after she moved there.
17. Mrs Y told us:
• she noticed that Mrs X’s hand was very swollen and asked the Home’s manager what had happened, but the manager had no explanation for the swelling;
• Mrs X told her a care worker had caused the swelling by pulling her out of bed; and
• she was concerned that it seemed her mother’s hand had been swollen for a few days, but nobody had noticed.
18. Mrs Y took Mrs X to an accident and emergency department (A&E) where doctors discovered Mrs X’s hand was fractured. Mrs Y says a doctor told her he would flag the matter up as a safeguarding issue and that Mrs X was very distressed at the prospect of returning to the Home. Ms Z and Mrs Y also did not want their mother to return to the Home because of what had happened. A&E discharged Mrs X on the same day and she stayed with Mrs Y until the family could find another care home for her.
19. On 30 September 2020, the Council told Mrs Y that Mrs X was no longer eligible for COVID-19 care funding, because Mrs X’s family had taken control of her care and were sourcing a long term care home for her as a self funder.
20. On 1 October 2020, Mrs Y told the Council she could not cope with Mrs X’s care because:
• she could not get her out of bed in the morning;
• Mrs X was wet in the morning and needed the toilet, but the wet bed made it difficult to get her up;
• she nearly dropped Mrs X the day before;
• Mrs X fell the day before; and
• Mrs Y could not set up a care package as the agency workers were not available when she needed them.
21. The Council did not offer Mrs Y a carer’s assessment. The Council’s records for
    1 October 2020 say:
• it offered Mrs Y temporary support with caring for Mrs X in the home during the day; and
• Mrs Y declined this.
22. Mrs Y disagrees with the Council’s records and says it did not offer her support when she needed it.
23. On 1 October 2020, Ms Z contacted the Council to complain. Her complaint also said Mrs Y was finding it impossible to cope and Mrs X had already had a fall while at Mrs Y’s house. Ms Z and Mrs Y found another residential care home for Mrs X. She moved there on 2 October 2020.
24. The Council’s complaint response of 15 October 2020 said:
• COVID-19 funding was only for supporting hospital discharge;
• if a person was discharged from hospital on COVID-19 funding and the initial placement ended or changed for whatever reason, the funding also ended;
• Ms Z and Mrs Y removed Mrs X from the first care home and her admission to the second care home was not to support discharge from hospital. This meant Mrs X was not eligible for COVID-19 funding in the second care home; and
• it accepted it had not explained this to Ms Z and Mrs Y from the outset, apologised for this, and acted to prevent this happening again.
25. The Council told them Mrs X could not receive COVID-19 funding for the new care home because they had taken her out of the previous care home. Ms Z and Mrs Y considered this to be unfair as they had good reason not to return Mrs X to the Home because of the safeguarding concern. Mrs X is paying the full fees in her new care home as she has savings over the threshold where the Council would contribute to care costs.
26. The Council has told us it:
• has not assessed Mrs X’s social care needs; and
• did not give Mrs X or her daughters information about residential care funding around the time of Mrs X’s move to the Home.
27. Ms Z and Mrs Y told us the Council gave them incorrect information about what had happened to Mrs X’s hand when replying to their complaint.

Decision to stop residential care funding

COVID-19 funding

28. In response to the COVID-19 pandemic in early 2020, the Government issued new guidance on hospital discharge to the NHS and councils, called “Hospital Discharge Service: Policy and Operating Model”. The Government updated the guidance in August 2020. This was the guidance that applied to funding for Mrs X’s social care following her discharge from hospital in September 2020.
29. The guidance includes the following key points that applied to Mrs X’s situation:
• the Government provided funding via the NHS, to help cover the cost of certain social care services for up to six weeks following discharge from hospital;
• this “discharge to assess” (DTA) model required hospitals to discharge patients as soon as they no longer needed to be in hospital, even if they were not yet ready to return home;
• the extra funding, which I shall call COVID-19 funding going forward, was for services aimed at post-discharge recovery while councils and CCGs assessed the person’s long term needs;
• the DTA model has four “pathways”, 0-3. Mrs X was discharged under Pathway 2, which was for people who needed rehabilitation or short term care in a 24-hour bed-based setting;
• all people (or their representatives if they lack capacity) must have full information about what is happening including how their needs will be assessed and whether any charges will apply to their care and support;
• for people discharged on pathways 1-3, services providing care extra to that in place pre-admission will be at no cost to the individual for up to six weeks;
• organisations had to continue meeting their duties under the Mental Capacity Act 2005;
• on rare occasions that a CCG or council did not complete a person’s assessment within six weeks, the organisations should continue paying for their care until the relevant assessments are complete; and
• councils were responsible for reviewing care provision and changing it if appropriate, in line with good practice and legal responsibilities.
30. Alongside the guidance, the Government published information leaflets, including one for people being discharged to residential care from hospital. This says people may be moved more than once to find the best place for their ongoing care.

Charging for residential care under the Care Act 2014

31. The “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014” set out the charging rules for residential care. The rules state that people who have over the upper capital limit (currently £23,250) are expected to pay for the full cost of their residential care home fees.
32. Section 4 of the Care Act 2014 says that councils must provide information and advice about adult social care and support for carers. This includes information about finances. The information must be clear in terms of being understood and able to be acted upon by the person receiving it.

Councils’ duties under the Care Act 2014

33. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
34. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.

Councils’ duties under the Mental Capacity Act 2005

35. 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 themselves.
36. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
37. 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. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.
38. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The legislation sets out the procedure to follow to get authorisation to deprive an individual of their liberty.

My analysis

39. Under the COVID-19 funding arrangements in place at the time:
• the NHS COVID-19 funding for social care to enable quick discharge from hospitals in Mrs X’s area was provided via the CCG; and
• the Council was responsible for commissioning Mrs X’s residential care after she left hospital, until her care needs were assessed. At that point, Mrs X would have had to pay for any residential care because she had enough capital to be a ‘self-funder’.
40. I have found no fault in the actions of the CCG, whose role was limited to making funding available for placements commissioned by the Council.
41. Just before Mrs X left hospital, the Council assessed her as not having capacity to make decisions about her care or where to live, and unlikely to regain capacity. There was nobody else with legal powers of attorney to make decisions on her behalf. The Home’s admission assessments say that a DoLS authorisation would be needed. The Home’s safeguarding referral of 28 September 2020 says that Mrs X does not have capacity to consent to the referral.
42. Therefore, it is more likely than not that Mrs X lacked capacity to make decisions about her care and residence in late September and early October 2020. Ms Z and Mrs Y did not have legal authority to act on her behalf in matters of welfare and finance.
43. Mrs X clearly needed to attend A&E on 28 September, given she had a fracture. She was discharged that evening and other than returning to the Home, her only alternative was to stay with Mrs Y. It is understandable that Mrs Y and Ms Z would not want their mother to return to the Home while there was an unresolved safeguarding concern about staff not noticing the fracture. Mrs X lacked the capacity to make decisions about her care and where she should live. Mrs Y had no legal authority to remove Mrs X from the Home, and the Council had not made a ‘best interest’ decision about where Mrs X should go at this point. Therefore, the Council remained responsible for ensuring Mrs X had a suitable residential placement to stay in, until her care needs were assessed in line with the Care Act 2014 and COVID-19 guidance.
44. On 29 September:
• Ms Z told the Council that Mrs Y was unlikely to cope with looking after Mrs X because Mrs Y was unwell;
• a care agency contacted by Mrs Y told the Council Mrs X had no walking aids, commode or sliding sheets at Mrs Y’s house;
• the Council confirmed Mrs X would need an assessment before it could issue the equipment; and
• Mrs Y told the Council that she would be returning to work the following week, reducing her ability to care for Mrs X.
45. In response to our enquiries, the Council told us that Mrs X had “high needs especially during the night which could only be met within a 24 hour setting”. Despite this view, the information in the Home’s assessments, and the concerns Mrs Y voiced, the Council’s records say it offered Mrs X a daytime care package without making a formal best interests decision. The Council also failed to offer Mrs Y a carer’s assessment even though she was caring for her mother and voicing concerns that she was not coping.
46. The Council was at fault because it:
• failed to give Mrs X or her daughters adequate information about residential care costs and funding at the time of Mrs X’s discharge from hospital to the Home;
• did not make a best interest decision or take urgent steps to ensure Mrs X had a suitable residential placement as soon as it found out what had happened;
• decided to stop COVID-19 funding for residential care before it had assessed Mrs X’s long-term care needs. This was despite Mrs X lacking capacity to decide on her care and residence and Mrs Y not having legal authority to decide on her behalf;
• failed to assess Mrs X’s care needs as required by section 9 of the Care Act 2014; and
• failed to offer Mrs Y a carer’s assessment as required by section 10 of the Care Act 2014.
47. We cannot say that Mrs X would have had six weeks of residential care without charge, had the Council acted without fault. COVID-19 funding was available for up to six weeks and stopped when the Council had assessed a person’s long term care needs. It is possible that, had the Council acted without fault, it would have assessed Mrs X’s care needs before the six week limit, and she would then have been responsible for paying for her full residential fees.
48. However, there was a missed opportunity to assess Mrs X’s care needs within the six week window and therefore Mrs X does not know whether she could have paid less for her care. There was also a missed opportunity for Mrs Y and Ms Z to have adequate information about social care charging at the time of Mrs X’s discharge from hospital, leading to avoidable frustration when Mrs X’s placement at the Home broke down. I have recommended symbolic financial remedies for the resulting injustice to Mrs X and her daughters.
49. Mrs X was also without the 24 hour residential care she needed for four days. While I have no doubt Mrs Y did her best to care for her mother, Mrs X needed much more intensive support that Mrs Y could not provide, including:
• help from two carers for transfers, continence care, washing and dressing;
• nightly turning and hourly checks at night to prevent breakdown of her skin; and
• bed rails and cot side bumpers at night.
50. The Council’s fault in failing to consider Mrs X’s best interests when it found out she was at Mrs Y’s home meant Mrs X suffered the indignity and discomfort of lacking the residential care she needed. Mrs Y also suffered the stress and inconvenience of trying to provide care in those four days. I have recommended symbolic financial remedies for both Mrs X and Mrs Y to recognise this.

Information about what happened to Mrs X’s hand in the Home and about a later safeguarding enquiry

51. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
52. Regulation 20 (duty of candour) requires care homes to follow a specific procedure when they discover a “notifiable safety incident”, such as the injury suffered by Mrs X. The care home must:
• tell the person affected that a notifiable safety incident has happened. If the person cannot make decisions about their care, the home must tell a person acting on their behalf;
• apologise;
• provide a true account of what happened, explaining whatever the home knows at that time;
• explain what further enquiries or investigations the home believes are suitable;
• follow up by providing this information and apology in writing, and providing an update on any enquiries; and
• keep a secure record of all meetings and communications with the person.
53. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean they cannot protect themself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (Care Act 2014, section 42)
54. The Council’s safeguarding adults procedure says that it should:
• assess for any immediate risks within 48 hours of receiving a concern;
• contact the person affected;
• decide whether the concern meets the criteria for a statutory safeguarding enquiry;
• if it decides not to start a safeguarding enquiry, consider what other action, advice or information is needed. This could include referrals for care and support or carers’ assessments, and written information about making a complaint; and
• the Council should tell the person or agency who raised the concern of its decision wherever appropriate and safe to do so.

My analysis

55. Mrs X’s injury was a ‘notifiable safety incident’ under Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 because it
• was unintended or unexpected;
• happened while Mrs X was in the Home’s care; and
• appears to have resulted in, or required treatment to prevent, changes to the structure of Mrs X’s body or prolonged pain.
56. This meant the duty of candour arose. However, I have seen no evidence the Home followed the steps summarised in paragraph 51 above. This was fault, leading to a distressing uncertainty for Mrs Y and Ms Z about what happened to their mother.
57. On 29 September 2020, the Home made a safeguarding referral to the Council about Mrs X’s fracture. It included the following information.

…one member of staff noted that one of our other residents was seen to be helping her out of the chair in the lounge by pulling her hands. This was seen on CCTV at 16:21 and again at 18:51. Further investigation is being carried out.

58. The Council’s records indicate that Mrs Y believed a safeguarding enquiry was in progress when she spoke with a social worker on 29 September 2020.
59. On 12 October 2020, the Council decided the referral did not meet the criteria for further enquiry under section 42 of the Care Act 2014, because:
• the “evidence suggests [Mrs X has] not experienced abuse or neglect”;
• the “injury may have been caused by another resident pulling [Mrs X’s] hand in an attempt to get her out of the chair”; and
• Mrs X was “no longer at risk as she is residing with her daughter”.
60. On 20 October 2020, the CQC contacted the Council with details of a safeguarding concern Mrs Y had raised. The referral informed the Council that Mrs Y had told the CQC she had not had any feedback about what had happened to Mrs X from the Home or the Council. The Council told the CQC of the decision it had made on 12 October. It did not provide any feedback to Mrs Y.
61. As Mrs X was no longer in the Home and therefore no longer at risk of abuse or neglect there, the Council was entitled to decide that the Home’s and Mrs Y’s referrals did not meet the criteria for a safeguarding enquiry under section 42 of the Care Act 2014.
62. However, the Council did not follow its procedure which said it should inform Mrs Y of its decision and consider what other action, advice or information was needed. This was fault, which led to avoidable uncertainty for Ms Z and Mrs Y.
63. I have recommended remedies for Mrs Y and Ms Z to reflect their avoidable uncertainty.

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Agreed actions

64. Within four weeks of our final decision, the Council will:
• apologise to Mrs Y and Ms Z for the problems identified in this investigation, and their impact on Mrs X, Mrs Y and Ms Z;
• pay Mrs X a symbolic sum of £850. This comprises £500 for the uncertainty about whether she could have paid less for her care and £350 in recognition of the indignity and discomfort of lacking the residential care she needed while she stayed with Mrs Y;
• offer to pay Mrs Y a symbolic sum of £450. This comprises £100 for the frustration and distress from not having adequate information about social care charging; £250 in recognition of the stress and inconvenience of trying to care for Mrs X; and £100 for the avoidable uncertainty arising from faults in communication about the duty of candour and safeguarding; and
• offer to pay Ms Z a symbolic sum of £200. This comprises £100 for the frustration and distress resulting from not having adequate information about social care charging and £100 for the avoidable uncertainty arising from faults in communication about the duty of candour and safeguarding.
65. Within four weeks of our final decision, the Council will remind the relevant staff of the importance of following its safeguarding adults policy when communicating decisions to people who have reported safeguarding concerns.

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Final decision

66. I have upheld the complaints against the Council. I have found no fault in the actions of the CCG. The Council has accepted my recommendations. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman