The Ombudsman's final decision:
Summary: Somerset County Council (the Council) should have completed a formal needs assessment of Ms B. There is no injustice as she would have most likely moved to a residential home regardless. I do not consider a nurse at Somerset Partnership NHS Foundation Trust (the Trust) was at fault for comments made to Mr A during a difficult conversation. However, she inaccurately noted he was threatening to staff, which caused him distress. Also, I consider a social worker wrongly told the nurse the Council could remove Mr A’s power of attorney for welfare. This caused Mr A distress, as he held power of attorney for Ms B’s finances.
- Mr A complains on behalf of his late sister, Ms B, about the actions of both Somerset County Council (the Council) and Somerset Partnership NHS Foundation Trust (the Trust).
- Mr A complains the Council moved Ms B to a premium room with nursing care at a residential home without a care plan or consulting with him (as lasting power of attorney for her finances). Also, it did not consider the property disregard, or provide information about deferred payment arrangements.
- As a result, he says:
- He suffered time and trouble and distress trying to organise a suitable placement
- He is facing legal action from the residential home over unpaid fees
- Ms B suffered distress and anxiety about her ability to pay for the residential care
- Accused him of being obstructive
- Inaccurately said he was threatening to staff
- Told Ms B about his issues with staff and that the Council would remove him as her lasting power of attorney.
The Ombudsmen’s role and powers
- 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).
- 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 takes action to stop the same mistakes happening again.
- 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.
- The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant responsible body has to make. Therefore, my investigation has focused on the way that the body made its decision.
- 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)
How I considered this complaint
- I have considered the complaint information Mr A provided to me. I have asked the Council and the Trust to comment on the complaint and provide supporting documentation. I have taken the relevant law and guidance into account before coming to a view.
- I have written to Mr A, the Council and the Trust with my draft decision and considered their comments.
What I found
- 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 assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
- The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
Charging for permanent residential care
- The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
- The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
- The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
Top up payment
- The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
- If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top up fee is the difference between the personal budget and the cost of a home.
- However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
- The person can find someone else (a ‘third party’) to pay the top up.
- The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee himself
- In such circumstances, the council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
- The Nursing and Midwifery Council (GMC) produced The Code in 2015, which states staff must “complete records accurately and without falsification, taking immediate and appropriate action if you become aware that someone has not kept to these requirements”.
- The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 set out how complaints should be handled. Specifically, they say the responsible body should investigate the complaint speedily, efficiently and keep the complainant reasonably informed as to how their complaint is progressing.
- Ms B had severe physical disabilities.
- In September 2016, a hospital (not subject to this investigation) admitted Ms B with leg pain and reduced mobility. On 13 and 14 October, a social worker met Ms B. The social worker noted that Ms B may have savings over the threshold but could not be sure about this. He said if Ms B’s savings were over the threshold, then she would most likely not meet the criteria for local authority funded residential or nursing care.
- On 17 October that hospital transferred her to the Trust for further assessment and rehabilitation. A day later, the social worker said there was no further action needed from the Council’s adult social care service.
- On 28 October 2016, the Trust asked a social worker to assess Ms B. That assessment found Ms B had mental capacity and could be supported at home with a care package. However, Ms B preferred to move into a care home, and said she had enough money to do this.
- On 17 November 2016, the social worker met Ms B. He noted that Ms B said she had savings over the capital threshold. He gave Ms B a copy of care alternatives to find a suitable care home. Four days later, Mr A applied to be lasting power of attorney for Ms B’s finances.
- On 24 November 2016, the social worker said no further action was needed with Ms B’s case.
- On 6 December 2016, the Trust said Ms B was fit for discharge.
- On 14 December 2016, the social worker provided advice to Mr A about possible care homes in the local area.
- On 23 December 2016, Mr A told the nurse he was looking to move his sister to a residential home in Bristol, but she was unaware of this and did not want her to know. Mr A was also looking for care homes in Taunton. A week later, he told the nurse he needed a care plan to help with the move.
- Mr A found out a nurse had told Ms B of Mr A’s plans. On 4 January 2017, he told the nurse he felt they had been obstructive when he was trying to move his sister to Bristol. The nurse said she had to tell Ms B about his plan, as it was in her best interests to know. Ms B did not want to move to Bristol, and Mr A knew this. Mr B said he had “had enough and giving up now”. He said he knew his sister did not want to go to Bristol but everywhere in Taunton was full. The nurse noted Mr A started shouting down the phone and said he was “walking away from this”.
- The next day, Mr A spoke with the nurse and Ms B. He recorded their conversation. He said he was no longer involved in the discharge planning. The nurse said Trust staff will look at care homes, as Ms B was fit to leave. She added that Mr B was being obstructive. The nurse spoke to a social worker, who agreed to help with the move into a care home. Ms B later visited a care home with Trust staff, and agreed to move into a premium room with nursing care.
- On 10 January 2017, the nurse asked for social services to help sort Ms B’s finances before she moved to a care home. Later that day the social worker told the nurse that if Ms B had capacity to pay for the care for herself, then that was fine. The nurse also noted that “[Ms B] had requested the room with ‘lighter furniture, the better room’. Informed [care home] of this. [Ms B] has all price list and is aware this is a premium room.” The nurse arranged for Ms B to be discharged the next day.
- On 11 January 2017, the Trust discharged Ms B to the care home.
- On 27 January 2017, Mr A asked the Council to complete a financial assessment.
- On 8 February 2017, Mr A chased a financial assessment. He said his sister was accruing debt, and he was in the process of selling her bungalow. He wanted to arrange a deferred payments scheme until the house was sold. The social worker said Ms B would need to complete a needs assessment first.
- A financial assessment and benefits officer (the officer) spoke to Mr A on 24 February 2017. Mr B said the social worker did not assess his sister while at the Trust. The officer noted that Ms B has well below £23,250 in savings, and solely owns a property. Ms B should have been referred to the panel for a 12‑week disregard. The officer also noted there was an assessment still outstanding from 14 November 2016.
- The officer completed the financial assessment with Mr A on 17 March. She said:
- Ms B should pay £115.70 per week for the 12-week property disregard period, but she needed a social worker to approve this.
- A social worker did not assess Ms B’s needs or provide a care plan while she was a patient at the Trust, so Mr A did not know if his sister had residential or nursing care needs.
- Ms B was paying £1,264 per week, when she only had £5,000 in capital and could not afford to pay the top-up.
- Mr A had not paid any fees yet, and was considering Ms B’s assets.
- There was no evidence that Ms B needed nursing care
- She recommended the Council paid the residential rate for the 12-week disregard and deferred payment agreement
- She could not recommend Ms B would have been supported in a discharge home or to extra care housing because to her mental health, low‑mood and anxiety.
- Mr A would challenge the recommendation as he felt Ms B did not have the choice to move to the care home. He would like the Council to fund the full costs of the placement at the care home.
- In response to Mr A’s complaint, in March 2017, the Trust said:
- On 5 January, a nurse told Mr A she was pregnant and did not need to deal with the added stress from their conversation
- It does not carry out financial assessments
- Nurses arranged the nursing care home for Ms B, and ensured contracts and funding was in place before she was discharged
- It did not update Mr A when it discharged Ms B
- In November 2016, the social worker’s assessment found that Ms B wanted to move into a care home, had savings over the upper limit and had capacity to make that decision
- The Council accepted that Ms B could financially move into a care home as a self-funder
- It apologised it did not recognise Mr A was lasting power of attorney for Ms B’s finances
- The social worker felt the ‘Understanding You’ document was suitable to give to a care home, rather than develop a care plan
- It should have arranged a financial assessment, and agreed to remind staff of the importance of clarifying people’s financial situation.
- The social worker’s needs assessment in October 2016 showed Ms B had some personal care needs, but she wanted to move to a care home.
- The social worker and Mr A discussed care home choices on 14 December and 29 December 2016. On 4 January 2017 Mr A told the Trust he would not help with his sister’s discharge.
- It worked closely with the Trust to obey Ms B’s wishes
- Mr A could not make decisions about Ms B’s accommodation or welfare
- Ms B liked the care home after visiting it. However, it was the only place she visited.
- It should have done more to assess the financial implication to both Mr A and Ms B
- It agreed to provide financial and health information to families in future and more support to clients about residential care. It also agreed to refer to the Finance Team before deciding people are self-funders, and ask them to sign a form to confirm this.
- There was no evidence that staff amended of falsified records
- It agreed that a nurse said Mr A was obstructive on 5 January and apologised if this caused distress.
- It could learn lessons about communicating more effectively with the Council
- Ms B did not want the Trust to tell Mr A about the discharge, so it respected her confidentiality.
The lack of a needs assessment and care plan in October/November 2016
- I have not seen evidence the social worker completed a formal needs assessment in October or November 2016. Instead, the social worker decided that as Ms B told him she had savings over the upper limit, she would be a self‑funder. I consider this was fault.
- The retrospective needs assessment completed in April 2017 showed that Ms B did not have any nursing needs. I cannot say what the result of the needs assessment would have been had it been completed earlier, as this would have been a matter of professional judgement. However, I do not consider there was any injustice to Ms B. Ms B was insistent she did not want to return home with a package of care. She would most likely have moved into a residential home regardless of the outcome of a needs assessment.
- The Council has carried out improvements to make sure staff understand people’s financial situation better. However, I do not consider it was fault the Council did not carry out a financial assessment in October or November 2016. Ms B had capacity to make decisions, so there was no reason to not believe Ms B had finances over the upper limit.
The actions of the nurse
- I can understand both parties had become frustrated by the lack of progress at finding a residential home. This came to a head during the telephone and face to face conversations on 5 January.
- Mr A is unhappy the nurse accused him of being obstructive. I have listened to Mr A’s recording of the conversation, and I accept the nurse called Mr A obstructive. The nurse was trying to find solutions to safely discharge Ms B, and Mr A became frustrated and refused to engage. I can understand in that moment why the nurse said Mr A was obstructive, but Mr A had been genuinely trying to find residential homes for his sister to move to.
- Mr A said the nurse has inaccurately noted that he was threatening to staff. The nurse did not specifically say this to Mr A during their conversation, but she noted it afterwards. It was clearly a difficult conversation on 5 January. However, I do not consider Mr A was threatening to staff, and it was fault for the nurse to record this. This was not in line with the relevant NMC guidelines. This was a serious allegation and I have not seen any evidence to substantiate it. I appreciate this would have been distressing for Mr A to read. The Trust should remedy this for Mr A.
- Mr A is unhappy the nurse told Ms B about his issues with staff, and that the Council could remove Mr A as her lasting power of attorney for welfare.
- Ms B was present during the conversation on 5 January where Mr A communicated his dissatisfaction with staff. I have not seen any evidence Trust staff mentioned this before this time. Even if there was, I do not consider communicating Mr A’s issues with staff to Ms B would be fault.
- On 5 January, the Trust noted the social worker left a message with Mr A and said: “He has also explained that as lasting power of attorney he remains responsible for [Ms B’s] welfare, and that if no longer acting in [Ms B’s] best interests, social services may contact the office of the public guardian to review the power of attorney.” The nurse later relayed this information to Ms B, who felt overwhelmed her brother was not going to help her. The nurse said Ms B could decide what to do with the power of attorney with help from the Council.
- The social worker wrongly said Mr A had lasting power of attorney for Ms B’s welfare. Mr A only had power of attorney for finances (although it should be noted that Ms A retained the capacity to manage her financial affairs). Therefore, the Council could take any decision about Ms B’s best interests without Mr A’s approval. Nonetheless, I consider the Council’s actions were fault. I can appreciate how this would have been distressing for Mr A and Ms B to hear. The Council should remedy this for Mr A.
- Mr A said the Council’s complaint responses were evasive, and it delayed providing responses.
- I do not consider the Council’s complaint handling was fault. I do not agree its responses were evasive. Rather the Council robustly considered his complaint, noted areas it could improve and detailed what it was going to do to stop those happening again. Also, I do not think the Council unnecessarily delayed providing responses to Mr A’s correspondence. It provided its Stage 1 response within six weeks and its Stage 2 response three weeks after.
- Mr A said the Trust’s complaint responses contain lies and inaccuracies.
- I agree the Trust’s first response contained inaccuracies. This included that an advocate went with his sister to the nursing home to view it, and that Mr A was provided with a copy of Ms B’s ‘Understand you’ document by the social worker.
- When Mr A contested the inaccuracies, the Trust confirmed it was a health care assistant from the Trust, not an advocate. Also, it apologised if Mr A did not receive the ‘Understanding you’ document from the social worker, but was under the impression he had. The Trust apologised for any misunderstanding. Therefore, I do not consider the Trust’s complaint handling was fault.
- Within four weeks, the Council should apologise for the distress caused to Mr A when it mistakenly told the nurse it could remove Mr A’s power of attorney for welfare.
- Within four weeks, the Trust should apologise for the distress caused to Mr A for recording he was threatening to staff. Also, it should add an addendum to their records to reflect that Mr A was not threatening to staff.
- The Council and the Trust should confirm to the Ombudsmen when it has completed this recommendation.
- I consider there was fault in the Council’s lack of formal needs assessment in October/November 2016. However, there was no injustice to Ms B as she always wanted to move into a residential home. I do not consider the lack of a financial assessment was fault.
- I can understand how stressful the conversation on 5 January was, and do not consider the nurse was at fault for comments she made to Mr A. However, she inaccurately recorded he was threatening to staff, which caused him distress. Also, the social worker wrongly told the nurse it could remove Mr A’s power of attorney, as he may not be acting in his sister’s best interest. This was wrong, and the Council should remedy the distress caused to Mr A.
- I do not consider there was fault in the way the Trust and Council handled Mr A’s complaints.
Investigator's decision on behalf of the Ombudsman