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Pennine Acute Hospitals NHS Trust (19 010 763a)

Category : Health > Hospital acute services

Decision : Not upheld

Decision date : 02 Oct 2020

The Ombudsman's final decision:

Summary: Ms D complained about information she received about her mother’s discharge from hospital to residential care and associated charges. The Ombudsmen have upheld Ms D’s complaints about Manchester City Council. We have not upheld her complaints about Pennine Acute Hospitals NHS Trust and Manchester University NHS Foundation Trust. The Council has accepted our recommendations, so we have completed our investigation.

The complaint

  1. A woman I shall call Ms D complains about the actions of Manchester City Council (the Council), Pennine Acute Hospitals NHS Trust (PAT) and Manchester University NHS Foundation Trust (MFT). Ms D complains about her mother Mrs M’s discharge from hospital into residential care and associated charges. Specifically, she complains that:
    • Mrs M’s discharge from PAT’s North Manchester General Hospital to a care home was flawed because the family did not get enough accurate information to enable them to make an informed decision about Mrs M’s discharge destination;
    • the Council did not carry out an assessment of Mrs M’s social care needs until February 2019; and
    • the Council required Mrs M’s family to sign a top-up mandate or face having Mrs M moved out of the care home immediately, without assessing her needs or whether she would be harmed by such a move.
  2. Ms D says that, had the family received all the correct information they needed at the outset, they may have been able to choose a care home that met Mrs M’s needs without incurring top-up fees. She says the family cannot afford the top-ups and is facing the prospect of Mrs M moving elsewhere even though she is settled at her current care home.
  3. Ms D would like Mrs M to remain at her current care home without the need for the family to pay top-ups.
  4. Ms D also complains that Mrs M’s discharge from hospital was premature and that there was an attempt to discharge Mrs M to a different, unsuitable care home.

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What I have investigated

  1. I have investigated Ms D’s complaint as set out in paragraphs 1-3 above. I have explained at the end of this statement why I have not investigated the complaint in paragraph 4.

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The Ombudsmen’s role and powers

  1. 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)
  2. 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)
  3. 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).
  4. 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.
  5. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:
  • it is unlikely they would find fault, or
  • the fault has not caused injustice to the person who complained.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

  1. 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)

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How I considered this complaint

  1. I have considered information Ms D provided in writing and by telephone. I have also considered written information provided by the Council, PAT and MFT. This includes copies of:
    • hospital and social care records;
    • assessments; and
    • correspondence between Ms D and the Council.
  2. I have also considered relevant law and guidance.
  3. Ms D, PAT, MFT and the Council have had an opportunity to comment on a draft version of this decision. I amended this in light of their comments and further evidence provided by MFT. Ms D, PAT, MFT and the Council then had an opportunity to comment on a further draft decision. I have considered their comments before making a final decision.

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What I found

Organisational responsibilities

  1. PAT was responsible for Mrs M’s care at North Manchester General Hospital.
  2. The Council is responsible for: assessing Mrs M’s social care and support needs; meeting eligible care and support needs; assessing whether Mrs M should contribute to her social care; and explaining to Mrs M’s family the financial implications of different types of care provision. The social workers involved with Mrs M all acted for the Council.
  3. PAT and the Council were jointly responsible for the decision to discharge Mrs M from hospital to the Home. PAT was also responsible for funding the first two weeks of Mrs M’s placement at the Home through Health Recovery Funding. This is extra funding the Government allocates to the NHS to support winter planning including patient flow through hospitals.
  4. MFT and the Council are jointly responsible for the local area’s ‘discharge to assess pathway’. This enables people who no longer need to be in hospital but need further assessments to be discharged, usually to a care home. The Council commissions the discharge to assess (DTA) residential care. However, while a person is on the DTA pathway, their residential care is funded by the NHS through MFT.
  5. NHS Continuing Healthcare (CHC) funding is ongoing care, arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for and providing the funding. Ms D is not complaining about Mrs M’s local CCG or its decision that Mrs M was not eligible for CHC funding.

Background summary

  1. Mrs M has Alzheimer’s disease and lacks capacity to decide where she lives. Until November 2018, she lived in her own home with regular help from her children. She was admitted to hospital with bone fractures and bleeds on her brain after a fall on 25 November 2018. She stayed there until 7 December 2018, when she was discharged to a residential care home (the Home).
  2. Ms D says that:
    • she believed her mother was going into residential care for respite and assessment, rather than to live there permanently;
    • the Council’s social worker told her that Mrs M would qualify for NHS CHC funding;
    • she did not get accurate and complete information about residential care funding;
    • the Council delayed assessing Mrs M’s social care and support needs until February 2019;
    • by the time the Council had assessed Mrs M’s needs, she had settled into the Home and moving her elsewhere would have harmed her; and
    • the Council pressured her into signing an agreement to pay some of Mrs M’s weekly care fees by stating Mrs M would have to move elsewhere if this did not happen.

A – Information given to Ms D before discharge to care home

What should happen

  1. Section 4 of the Care Act 2014 says the Council must have a service for providing people in its area with information and advice about adult care services. It says the information and advice provided must be accessible and:
    • include how the adult social care system works in its area;
    • explain the choice of types of care and support, and of providers, in the area;
    • explain how to access independent financial advice on adult social care matters;
    • enough for people to identify how their finances could be affected by social care; and
    • enough for people to make plans for meeting care needs.
  2. The Government has issued ‘Care and support statutory guidance’ (CSSG) on using the Care Act 2014. CSSG says that councils should:
    • ensure information supplied is clear. This means it is understood and able to be acted upon by the people receiving it;
    • take all reasonable efforts to provide comprehensive information and advice at an early stage; and
    • signpost people to independent financial information and advice. This may be particularly relevant when people are entering a legal agreement such as committing to a top-up.
  3. CSSG also says councils must provide information
    • “to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances”;
    • that includes “the charging framework for care and support, how contributions are calculated…top-ups…and how care and support choices may affect costs”;
    • to support people to make informed, affordable and sustainable financial decisions about care.

What happened

  1. Ms D says the following happened:
    • a hospital social worker approached her on 30 November 2018, saying that Mrs M had been assessed and would be discharged to a residential care home for respite care;
    • the social worker told her that Mrs M’s care would be funded by the NHS as respite care for two weeks and that she would receive CHC funding later. The social worker did not explain what this meant;
    • on the day of Mrs M’s discharge from hospital, the social worker told Ms D that she would have to pay third party top-up fees;
    • this did not concern Ms D at the time because she fully expected Mrs M to return to her own home after a respite stay in the Home;
    • the Council did not assess Mrs M’s social care needs until February 2019. By then, Mrs M’s health had declined so much that she could no longer return to live in her own home;
    • a few days later a CHC assessment determined Mrs M was no longer eligible for CHC funding;
    • as a result, Mrs M’s family has been left in a situation where they either have to pay top-up fees they cannot afford, or risk Mrs M having to move out of a care home where she is settled.
  2. In its response to Ms D’s initial complaint, the Council said that:
    • a hospital social worker assessed Mrs M for a DTA bed on 30 November 2018 and family were present;
    • the social worker explained the discharge plan to family members including that Mrs M would be discharged to a health funded residential bed for two weeks;
    • the social worker told the family that while at the care home, a community social worker would assess Mrs M; and
    • the social worker did not say that Mrs M would be eligible for CHC, but that she would need further assessment.
  3. In response to our enquiries, the Council told us that, while the NHS should have funded Mrs M’s care for two weeks after discharge from hospital, the hospital social worker did not complete the correct documents, so the Council actually funded Mrs M’s care from 7 December 2018. The hospital social worker was an agency worker. Although the hospital social worker had supervision, the Council did not identify the error at the time.
  4. However, MFT has told us that managers discussed Mrs M’s discharge and decided she did not meet the criteria for DTA and that the Home was not part of the local DTA provision. MFT has also provided a copy of a contract which shows that the Council’s hospital social worker requested that PAT funds Mrs M’s care at the Home for two weeks and that PAT then commissioned this. Based on the information provided by MFT I have found that:
    • MFT had no involvement with Mrs M’s discharge to the Home and was not at fault;
    • PAT acted in accordance with its Health Recovery funding stream and was not at fault in dealing with Mrs M’s discharge from hospital; and
    • the Council’s did not have an accurate record of how Mrs M’s initial stay at the Home was funded. This was fault which has caused confusion and led to avoidable time and trouble for Ms D in pursuing her complaint.
  5. The Council also told us the following about what happened before Mrs M’s discharge from hospital.
    • The hospital social worker outlined the discharge process and associated funding to Mrs M’s family during an assessment of 30 November 2019.
    • There is no record of a discussion about CHC, but social workers would usually mention CHC during discussions about hospital discharge.
    • The family was aware before discharge that they would need to pay a top-up fee for the Home.
    • The Council offered Mrs M a place in a different care home (Home Y) but the family refused this.
  6. The hospital social worker’s notes in Mrs M’s medical records:
    • say the social worker discussed Mrs M’s advancing dementia and risk of falls with Ms D and they agreed it would be appropriate for Mrs M to be discharged into residential care;
    • do not record whether the hospital social worker discussed how long Mrs M may need to stay in residential care or funding with Ms D; and
    • state the family rejected two care homes (Home X and Home Y) before choosing the Home. Neither the hospital notes nor the Council’s records say why the family rejected these care homes.
  7. Ms D has explained to us the family’s reasons for rejecting these two care homes. I have summarised them below.
    • Home Y was in a perfect location. However, the only room on offer had an uneven floor with a metal grate, similar to a fire escape, in the corner. Ms D and her brother considered this to be a risk to Mrs M as she was unsteady on her feet. At the time, Mrs M also had double vision and could only use one arm because of recent face and arm fractures.
    • Home X was difficult for the family to visit. The family’s research also showed that Home X catered for residents with a wide range of needs including substance misuse issues and had recently been in special measures because of numerous failings.
  8. Care Quality Commission (CQC) reports confirm Home X had been in special measures in 2017 due to breaches of regulations in many areas of its work. By 2018 CQC considered that overall, it still required improvement, but it was no longer in special measures. CQC records also confirm Home X worked with various people including different age groups and those with substance misuse issues.
  9. Mrs M’s family had legitimate concerns about the suitability of Homes X and Y for Mrs M. At the time they expressed these concerns, the Council should have considered the concerns and addressed them by either:
    • explaining why, despite the family’s concerns, Homes X and Y could meet Mrs M’s needs and the consequences of choosing a more expensive care home; or
    • accepting they had valid reasons for rejecting Homes X and Y and finding an alternative that would not need a third party top-up.
  10. There is no evidence the Council did this. This was fault.
  11. The Council has not provided a copy of the assessment dated 30 November 2018. The hospital social worker’s record for 30 November 2018 says she had a discussion with family members who said they would like Mrs M to be discharged to the Home. There is no record of the hospital social worker outlining the discharge process and associated funding to Mrs M’s family at the time. This was a fault in the Council’s record keeping.
  12. The Council has provided a copy of an assessment dated 5 December 2018. This has not been signed by Ms D or her brother, who both hold power of attorney for Mrs M. There is no evidence the Council shared the assessment with them. Failing to share this assessment with Ms D and her brother was fault.
  13. The assessment dated 5 December 2018 says, in summary, that:
    • it would not be safe for Mrs M to be discharged to her own home from hospital; and
    • Mrs M should be discharged to a DTA placement for an assessment to determine how to meet her future care needs.
  14. The Council’s records show the hospital social worker spoke with the Home and Ms D in the afternoon of 7 December 2018, before Mrs M was discharged on the same day. The social worker found out at this point that the Home would charge £60 more per week than the Council’s usual rate. The social worker then telephoned Ms D and told her that:
    • the family would need to pay a £60 a week top-up after the NHS funding stopped;
    • if family members were not prepared to do this, “an alternative placement will need to be identified”; and
    • Ms D told the social worker that she will “cross this bridge at the time”.
  15. I consider that the Council acted with fault because, before Mrs M moved to the Home, it did not give Ms D written information:
    • about how the adult social care system works;
    • how and where to get independent financial advice;
    • that was clear, comprehensive and accurate enough for her to understand how her finances could be affected by her choices for Mrs M’s care.
  16. While the Council did tell Ms D the Home of her choice would incur a top-up fee in the future, this was on the afternoon of the day Mrs M was due to leave hospital.
  17. There is no record that the Council explained to Ms D the full financial implications of choosing the Home before Mrs M moved there, including that when the assessment was complete:
    • Mrs M may need to remain in residential care indefinitely;
    • if she needs to stay after the NHS funding expires but does not qualify for CHC, Mrs M’s care will be the responsibility of the Council;
    • how much the Council will pay towards the cost of Mrs M’s care will depend on her personal budget and an assessment of Mrs M’s finances;
    • Mrs M’s personal budget was unlikely to meet the full cost of the Home;
    • Mrs M may therefore need to move to more affordable accommodation, but only if this was available, suitable for her needs and the move would not harm her. Alternatively, Mrs M’s family could choose for her to stay at the Home and pay a third party top-up;
    • however, if no alternative suitable accommodation was available and/or a move would risk harm to Mrs M, then she could remain at the Home without incurring a third party top-up.
  18. This was information the Council could and should have provided before the day of Mrs M’s discharge from hospital, and failing to do so was fault.
  19. Medical records provided by PAT indicate that it contributed appropriately and without fault to Mrs M’s discharge planning.
  20. The Council continued to give Ms D and the Ombudsmen the wrong information about funding for Mrs M’s residential care until part way through our investigation. This was fault.
  21. I have explained my views on Ms D’s injustice in the summary (section D) below. This is because I consider the injustice to Ms D stems from the combined impact of all the faults we have identified in relation to her complaint.
  22. The Council explained it provided the wrong information because of a transfer to a new electronic records system and because a staff member used the wrong terminology. The Council says it:
    • is working with its electronic records provider to find a solution and ensuring staff know where to look for all relevant records; and
    • will review its training, induction and supervision for agency workers and its quality assurance panel to prevent similar problems from recurring.
  23. The Ombudsmen are pleased the Council has already started improving the way it works with agency staff and its electronic records. I have made further recommendations for the Council to remedy the injustice to Ms D and for the Council to make service improvements to prevent similar problems affecting others. The Council has accepted my recommendations.

B – Social care needs assessment

  1. Section 9 of the Care Act 2014 requires councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and, where appropriate, their carer or any other person they might want to be involved.
  2. An assessment should be carried out over an appropriate and reasonable timescale, considering the urgency of needs and any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.
  3. Ms D says that:
    • the Council did not assess Mrs M’s social care and support needs until February 2019; and
    • by this time, Mrs M was settled in the Home and moving her would have been detrimental to her wellbeing.
  4. According to the Council’s response to our enquiries and its records:
    • a Council community social worker should have assessed Mrs M’s social care needs and completed a financial assessment within two weeks of her moving into the Home (by 21 December 2018);
    • the Home contacted the Council on 17 December 2018 to seek an urgent review, as her family were aware of the weekly top-up fee and would prefer an alternative placement;
    • a community social worker was in contact with Ms D about Mrs M’s assessment on 15 and 17 January 2019;
    • the community social worker assessed Mrs M’s needs on 31 January 2019; and
    • because of this assessment, the Council decided that Mrs M met the criteria for a permanent residential placement due to a worsening in her mental health and ability to manage her daily living.
  5. The Council completed its assessment of Mrs M’s care and support needs on 31 January 2019, rather than in February 2019. However, this was still about six weeks after it said it was going to complete the assessment. There is no record of the Council starting work on the assessment until mid-January. The Council’s delay in starting and completing the assessment is significant enough to be fault. As a result, neither the Council nor Ms D had a clear picture of Mrs M’s care and support needs until about eight weeks after Mrs M’s move to the Home. Ms D also lost out on the opportunity to have information necessary for an informed decision about Mrs M’s care and the impact on her finances, before Mrs M became settled in the Home.
  6. The Council has accepted it delayed Mrs M’s care needs assessment and offered to waive third party top-up fees from 4 January to 28 March 2019. I do not consider it remedies the full extent of Ms D’s financial injustice. I have therefore made additional recommendations for service improvements and a remedy for
    Ms D. The Council has accepted my recommendations. The agreed actions are set out at the end of this decision statement.

C – Third party top-ups

What should happen

  1. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. Everyone whose needs are met by a council must receive a personal budget as part of the care and support plan.
  2. The personal budget is the cost to the Council of meeting the person’s needs which the council chooses or has to meet. Councils should share an indicative personal budget at the start of care and support planning and confirm the final amount at the end of the process. 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. Councils must ensure people are clear how their budget was calculated.
  3. 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 care home.
  4. The Council can also arrange a place at a care home that costs more than the personal budget if:
    • a person chooses to go into the more expensive home;
    • the Council can show that it can meet the person’s needs in a less expensive home within the personal budget; and
    • someone else (a ‘third party’) is willing to pay the top-up for the likely duration of the person’s stay at the home.
  5. Councils should ensure the people involved understand the full implications of this choice, remembering that this is often at a point of crisis. This should include that the person may be moved elsewhere should the third party stop paying the top-up. Before entering a top-up agreement, councils must provide the person paying the top-up with enough information and advice to ensure they understand the terms and conditions, including information about the availability of independent financial advice.
  6. A person may already be in residential care without a top-up when their situation changes so the cost of the placement is more than their personal budget. In these circumstances, councils cannot ask someone to pay a top-up unless an assessment of needs shows the resident can be moved and an available affordable placement has been offered.
  7. Annex A of CSSG sets out the information councils must include on a third party top-up agreement as a minimum:
    • the extra amount to be paid;
    • the amount specified for the accommodation in the person’s personal budget;
    • the frequency of the payments;
    • to whom the payments are to be paid;
    • provisions for reviewing the agreement;
    • a statement on the consequences of stopping payments;
    • a statement on the effect of any increases in charges that a provider may make; and
    • a statement on the effect of any changes in the financial circumstances of the person paying the top-up.
  8. In Mrs M’s case, it was not appropriate for the Council to set a personal budget when she was discharged from hospital. This is because Mrs M was discharged to an NHS-funded bed and her social care needs had not yet been assessed. But the Council should have given Mrs M’s family timely, accurate and comprehensive financial information, including an indicative personal budget and the availability of independent financial advice, at the time of her discharge from hospital. This was so Mrs M’s family could understand the full implications of any choices they made.

What happened

  1. The Council knew that Mrs M was ready for discharge and that Mrs M’s family had a preference for the Home by 30 November 2018. However, it did not share an indicative personal budget with Ms D until 7 December 2018, the day Mrs M was due to leave hospital. This delay was unjustified and fault.
  2. As detailed in section A above, the Council did not explain to Ms D the full financial implications of choosing the Home or signpost her to independent financial advice before Mrs M moved there.
  3. The Council’s records say the Home telephoned the Council on 17 December 2018 to remind it that it had not assessed Mrs M’s needs. The Home told the Council that the family was aware of the top-up fee and would prefer an alternative placement. This indicates Mrs M’s family would have agreed to Mrs M moving elsewhere at this early stage of her stay at the Home.
  4. As detailed in section A above, the Council delayed assessing Mrs M’s social care needs. This meant the Council and Mrs M’s family did not have a clear idea of her long-term social care needs until nearly two months after she moved to the Home.
  5. Having completed the assessment on 31 January 2019, the Council did not produce a corresponding care and support plan and associated personal budget, or share these with Ms D. This was contrary to the Care Act 2014 and CSSG, and fault. As a result, at the time Ms D still had no clear and accessible information about the cost of Mrs M’s care and support, or the financial implications of any choices she made.
  6. By 31 January 2019, Ms D considered that Mrs M had become so settled at the Home that moving her would harm her. Ms D emailed the Council on 31 January 2019 to say that, if Mrs M needs to live in residential care, she would prefer her to stay in the Home where she was settled. She said she wanted to apply for CHC funding as the hospital social worker had told her that Mrs M would be eligible for this. There is no evidence the Council assessed the risk of moving Mrs M or found suitable alternative care homes within Mrs M’s personal budget when Ms D sent this email. The community social worker replied stating that CHC funding was subject to assessment and the family need to decide whether they would pay for a top-up fee if the CHC application was unsuccessful.
  7. The social worker completed a CHC checklist. This indicated Mrs M was not eligible for CHC. Ms D disagreed with the CHC eligibility decision and said she wanted to appeal it. The Council emailed Ms D on 5 March 2019 with a list of alternative care homes which would not incur a top-up fee. There is no record of the Council assessing the risk to Mrs M’s welfare of moving her elsewhere, or whether the suggested care homes were suitable for and available to Mrs M. The Council also told Ms D that if she did not sign a top-up agreement within seven days, the Council could not agree to paying any fees for Mrs M’s care at the Home and it would look at moving Mrs M elsewhere. However, a Council Deprivation of Liberty Safeguards (DoLS) assessment form also dated 5 March 2019 says that there “are currently no practically available alternative placements”. The Council acted with fault in giving Ms D conflicting and inaccurate information and failing to assess the risk to Mrs M of moving elsewhere.
  8. On 18 March 2019, Ms D emailed the Council again to confirm she did not want Mrs M to move elsewhere as she was settled at the Home. The same day, the community social worker emailed Ms D to advise her that she had asked two care homes which did not charge top-up fees to assess whether they could meet Mrs M’s needs. There is no record of how the care homes responded.
  9. On 20 March 2019, the community social worker made an application to the Council’s funding panel. This stated Mrs M’s family were disagreeing with third party top-ups and wanted the Council to fully fund Mrs M’s placement at the Home.
  10. On 28 March 2019, the panel approved a permanent residential placement for Mrs M at a “customer specific rate” of £566.58, the full weekly fee for the Home. The Council’s record says “Continued support to be offered around identification of a care home at standard rate”. This is evidence that at this point, the Council had accepted it would pay for Mrs M’s full fees at the Home until a suitable alternative was found.
  11. On 4 April 2019, the Council emailed the Home to ask it to waive Mrs M’s third party top-up fees. The Council also asked the Home whether it discusses third party top-ups with families or asks them to sign third party top-up contracts before admission. The Council has not provided a record of the Home’s response. This indicates that, in early April 2019 the Council still had no clear approach to Mrs M’s care funding or a clear understanding of what information Ms D had received about this.
  12. The Council has a standard leaflet titled “A guide for paying for residential care including third party top-ups”. This includes information about personal budgets and third party top-ups and two standard agreement templates, the “Third Party Agreement” the “Third Party Top-Up Sustainability Agreement”. The Council says it gave Ms D these documents and she returned the signed agreements. However, it has no evidence of when or how it gave the documents to Ms D. It also only has a signed copy of the sustainability agreement, dated 10 May 2019.
  13. The Council’s standard information leaflet about third party top-ups and its standard agreement templates do not include all the information required by Annex A of CSSG. It does not state the frequency of the payments or a statement on the effect of any changes in the financial circumstances of the person paying the top-up. It also does not make it clear that people can remain in residential care that is more expensive than their personal budget, if other suitable accommodation is not available and/or if an assessment concludes moving them would be detrimental to their welfare. This is fault.
  14. Ms D had told us she did not receive this leaflet. She says the only information she received about funding is an email the Council has not shared with us. This is dated 8 April 2019 and includes some links and telephone numbers for local and national advice centres as well as a sustainability agreement. One of the links is incorrect and does not work.
  15. I consider it more likely than not that the Council did not give Ms D the full set of information it had about third party top-ups at the time it asked her to sign the sustainability agreement. This was fault. I also consider it more likely than not that Ms D has only signed the sustainability agreement, not the associated third party agreement. Therefore, the Council is acting with fault in asking her to pay third party top-ups when she has not signed the correct agreement.
  16. There is no evidence the Council gave Ms D any information which clearly explained that Mrs M could have remained in the Home without top-ups, if there was no other suitable accommodation and/or if an assessment concluded she was at risk of harm from a move. Even in its response to Ms D’s initial Stage 1 complaint, the Council said that, “if eligible for local authority funding, adult social care only pay the local agreed contractual rate for the care home, the top-up fees are an element of funding solely decided and charged by the individual care homes”. This was fault.
  17. As a result of the faults, Ms D was being asked to pay top-ups without having the clear information she needed to make an informed choice about them and without the correct signed agreement. The Council has agreed to provide a remedy for Ms D and implement service improvements. These are set out at the end of this decision statement.

D – Summary of fault and injustice

  1. PAT and MFT have not acted with fault in relation to this complaint.
  2. The Council acted with fault in the following:
    • failing to consider and address Mrs M’s family’s concerns about Homes X and Y;
    • failing to keep a record of an assessment and discussion with Mrs M’s family of 30 November 2018;
    • failing to provide copies of an assessment of 5 December 2018 to Ms D and her brother;
    • failing to make an accurate record of which funding stream was used to pay for Mrs M’s first two weeks at the Home and not providing this information to Mrs M’s family;
    • failing to give Ms D clear information about how the adult social care system works or signpost her to independent financial advice;
    • while the Council did tell Ms D the Home of her choice would incur a top-up fee in the future, this was on the afternoon of the day Mrs M was due to leave hospital. The Council did not give Ms D information in good time before Mrs M was discharged from hospital;
    • the information the Council gave Ms D before Mrs M was discharged from hospital was not written, clear, comprehensive or accurate enough for her to understand how her finances could be affected by her choices for Mrs M’s care;
    • after Mrs M moved to the Home, the Council delayed its assessment of her care and support needs by about six weeks;
    • after Mrs M moved to the Home, the Council continued to give Ms D conflicting, inaccurate and incomplete information about third party top-ups;
    • following the social care and support needs assessment of 31 January 2019, the Council did not produce a corresponding care and support plan and associated personal budget, or share these with Ms D;
    • after Ms D emailed the Council on 31 January 2019 to say she felt Mrs M was too settled to move, the Council did not assess the risk of moving Mrs M to another care home or find a suitable less expensive alternative, yet kept telling Ms D that Mrs M would need to move if her family did not pay top-ups;
    • the Council’s standard leaflet titled “A guide for paying for residential care including third party top-ups” and associated third party and sustainability agreements do not provide all the information required under Annex 1 of the CSSG;
    • the Council did not give Ms D its standard top-ups leaflet before asking her to sign a sustainability agreement;
    • the Council is asking Ms D to pay third party top-ups despite not having a signed third party top-up agreement (which is a separate document from the sustainability agreement); and
    • the Council continued to give Ms D wrong information about third party top-ups when responding to her complaint.
  3. I consider that Ms D has sustained the following injustice as a result of these faults:
    • she did not have all the necessary information to make a properly informed decision about her mother’s care and its effect on her finances before choosing the Home for Mrs M;
    • the delay in assessing Mrs M’s care and support needs, lack of a corresponding care and support plan, and continued incorrect and incomplete information meant Ms D continued to lose out on the opportunity to make an informed decision while Mrs M became settled in the Home;
    • she has been asked to pay third party top-up fees despite not having enough clear information to agree to them and not signing an agreement to pay them; and
    • the Council’s repeated statements that Mrs M may have to move from the Home despite being settled there, which were not supported by a risk assessment or details of available suitable alternatives, caused avoidable distress to Ms D.
  4. The Council has confirmed that Ms D has not paid any top-up fees to date.

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Agreed actions

  1. Within one month of the date of our decision, the Council will:
    • ensure Mrs M’s assessment, review and care plan documents (as specified under sections 9, 24, 25, 26 and 27 of the Care Act 2014) are up to date and share them with her representatives;
    • write to Ms D and apologise for the impact of the faults identified in this decision; and
    • pay Ms D £250 in recognition of her avoidable time, trouble and distress.
  2. The Council will not ask Mrs M’s family to pay third party top-up charges, until an assessment confirms that she would not be harmed by moving and there is a suitable alternative with an available place. From then on, should Mrs M’s family be willing and able to pay a third party top-up in the future so Mrs M can stay at the Home, the Council should ensure that they have all the information they need to make an informed decision and they sign the appropriate documents.
  3. Within three months of the date of this decision, the Council will:
    • provide evidence to the Ombudsmen of: the solution to its electronic records; how it has ensured staff know where to look for all relevant records; the review of its training, induction and supervision for agency workers and its quality assurance panel;
    • ensure relevant staff are aware of the different funding streams that can be used to help discharge patients from hospital, and the need to record these accurately on social care files;
    • review its processes for providing information to citizens about adult social care, including financial information and information about top-ups, to check whether the processes comply with the Care Act 2014 and associated guidance. Where it identifies problems, the Council will produce an action plan to rectify them and inform relevant staff;
    • review the standard information it gives to the public about adult social care, including financial information and information about top-ups, to check whether the content complies with the Care Act 2014 and associated guidance. Where it identifies problems, the Council will amend the content and inform relevant staff and other stakeholders about the changes;
    • ensure relevant staff are aware that residents do not have to move to a cheaper care home in the absence of a third party top-up, if an assessment concludes this would harm them or there is no available suitable alternative; and
    • provide evidence to the Ombudsmen that it has completed these recommendations.

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Final decision

  1. Ms D complains about information she received about her mother’s discharge from hospital to residential care and associated charges. We have upheld Ms D’s complaints about the Council. We have not upheld her complaints about PAT and MFT. The Council accepts my recommendations, so I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Ms D’s complaints that Mrs M’s discharge from hospital was premature and that there was an attempt to discharge Mrs M to a different, unsuitable care home. This is because these matters did not cause Mrs M a significant injustice. There is no indication that Mrs M was harmed as a result of leaving hospital when she did and the discharge to the other care home did not happen.

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Investigator's decision on behalf of the Ombudsman

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