Summary: The Ombudsmen found fault with a Council and a CCG in delaying care and funding assessments. This did not cause an injustice to the individual receiving care. There was an injustice to the carer with delays in being able to access respite support but they do not wish to receive an apology from the Council. The Ombudsmen did not find fault with the care provided by the organisations or with decisions to use safeguarding procedures to consider concerns about an individual’s safety. The Ombudsmen found no fault by an NHS Trust about its role in providing care equipment.

The complaint

1. Mr Y complains about the Council, the Trust and the CCG’s involvement his mother, Mrs X’s care. In summary:
2. In relation to the Council:
• Lack of support to Mr Y’s daughter, Miss K as Mrs X’s carer and to the family.
• Delays in social care assessment and support planning and provision for Mrs X.
• Poor care for Mrs X from Council-commissioned care agencies.
• Care agencies making what Miss K and Mr Y consider to be false allegations regarding injuries to Mrs X, and providing incorrect documentation.
• Poor care from a Council-commissioned day care centre (Springwood) and a residential placement (Woodhill Grange).
• The suspension of Mrs X’s personal assistant, Ms J, without adequate explanation or adequate replacement care.
• Safeguarding investigations that were flawed as Mrs X was interviewed when she did not have capacity. Mr Y says Council officers inappropriately questioned Miss K.
• Failure to properly investigate concerns raised by the family.
• Delay in putting in place direct payments for Ms J.
3. In relation to the CCG:
• Delays in assessing Mrs X for health funding.
• Poor care provision, where this provision was funded by the CCG.
4. In relation to the Trust:
• District nurses withholding necessary equipment such as a shower chair, tubular bandages from Mrs X and not providing sufficient incontinence products,
• District nurses making safeguarding allegations regarding Miss K, which Miss K considers were unfounded and a result of her previous complaints about district nurses.

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The Ombudsmen’s role and powers

5. 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)
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 takes action to stop the same mistakes happening again.
8. 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

9. I have considered a complaint form that Mr Y completed. I have made enquiries of all the organisations and considered the responses with supporting documentation.

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What I found

10. Mrs X is in her 80s and suffers from Alzheimer’s and vascular dementia. She is at high risk of falls because of her poor mobility.
11. A Council officer visited Mrs X in November 2016 to assess her social care needs.
12. On 21 February 2017, a CCG officer completed an assessment which concluded Mrs X was eligible for support to be funded jointly by the CCG and Council. The resulting support plan was agreed on 12 April 2017.
13. On 9 May 2017, two Council officers visited Mrs X to investigate the cause of bruising on her arm.
14. On 13 June 2017, Mrs X began attending a day centre, Home A.
15. Mrs X was admitted to hospital from Home B on 16 June 2017. There were safeguarding concerns about Mrs X’s carers and Home B. Therefore, the Council requested Mrs X remain in hospital for her own safety.

Law and guidance

Health support

16. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare (CHC). It states that where an individual is eligible for Continuing Healthcare funding the CCG is responsible for care planning, commissioning services and case management.

Assessment

17. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the Checklist is set low.
18. If the completed Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.
19. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care, which is set at a weekly rate. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.

Appeals

20. If, after a full multidisciplinary assessment and DST, a person disagrees with the CCG’s decision that they are not eligible for CHC or nursing care, they can ask the CCG to review its decision. If they disagree with the outcome of the review, they can appeal to an Independent Review Panel (IRP) organised by NHS England. The third stage is to refer the case to the Parliamentary and Health Service Ombudsman for independent investigation.

Social care support

21. Sections 9 and 10 of the Care Act 2014 require 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.
22. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of 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. Councils should not delay in agreeing funding once an assessment is complete.

Direct payments

23. Direct payments give service users choice and control over their care and support. They are cash payments given to service users or their representative by councils so they can buy community care services. The payments must be enough to enable the service user to buy services to meet their eligible needs, and must be spent on services that meet eligible needs.

Safeguarding

24. Section 42 of the Care Act 2014 says that 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 he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

Mental Capacity Act

25. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
26. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
27. The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required.

Analysis

The Council - support for Mrs X, her carers, the family and delays

28. The Council’s records show the family requested a review of Mrs X’s care package at the end of October 2016. They explained Mrs X’s needs had changed, in particular, her health had deteriorated, and she required extra support which the family was providing. At the time, Mrs X was receiving:
• seven morning calls of 45 minutes and seven evening calls of 30 minutes for support with personal hygiene, preparing meals and some cleaning;
• one 12-hour sit on a Saturday while Miss K took a break from her caring role.
29. The Council carried out a review of Mrs X’s needs in November 2016. I have not seen a copy of the assessment. However, I understand the Council officer discussed the support Ms J provided and agreed the Council would fund a direct payment for Ms J to support Mrs X as part of her care plan.
30. The Council completed a review for Mrs X on 2 February 2017. The Council’s records show the care plan to be put in place included:
• a 12-hour sitting service on Saturdays;
• 16 hours per week by way of direct payment for Ms J to give Miss K a break from her carer role;
• the two calls a day totalling eight hours and 45 minutes per week would remain in place;
• three nights’ contingency support should Miss K need a further break from her caring role.
31. There is fault in the Council’s delay in completing a detailed assessment for Mrs X. However, based on the support plans, the only changes in terms of care provision between November 2016 and May 2017 appear to be the addition of direct payments for support from Ms J and the three nights’ respite support. I do not consider the delay in putting direct payments in place has caused an injustice to Mrs X or Ms J, for reasons discussed below. However, Miss K did not have access to the three nights’ respite for the period. Miss K has suffered an injustice in terms of the inability to access this support.

The Council - quality of care

32. Mr Y did not raise specific concerns about the care given to Mrs X by carers in her home. He did however raise concerns about the way some Council officers treated and spoke to Miss K. The records show Miss K and Mr Y disputed various allegations that were made, including those considered through safeguarding procedures. It is clear the relationship between Mrs X’s family and carers/Council officers became strained and broke down to the extent some carers no longer felt able to safely provide care to Mrs X.
33. It is evident there are clear differences of opinion between Mrs X’s family and the Council (including the care agencies) about what was said and how actions were taken. Without independent evidence it is difficult to corroborate either view. However, I cannot criticise the Council for staff reporting concerns they had about an individual’s safety or it acting on these, as set out in the Care Act. The carers clearly documented the reasons for their concerns and I have seen nothing to suggest these were not genuine. I find no fault with the Council about staff reporting safeguarding concerns.
34. Mrs X attended Springwood for day care two days a week from mid-May 2017. She stayed overnight on 13 June due to a dispute over a planned respite placement. Springwood had already assessed Mrs X from her day care attendances and were aware of her mobility restrictions. The records show Mrs X could mobilise for short distances using a frame. Miss K had also asked Springwood to ensure Mrs X moved around to prevent her mobility becoming worse.
35. On the evening of 13 June Mrs X had a fall. Springwood recorded that this was shortly after she had been taken to the room she would be staying in overnight. The records show Mrs X was left in the room while a staff member showed out a friend of Mrs X’s that had been visiting. When they returned Mrs X was ‘sat on the floor’. The records show Mrs X said she thought she was leaving too and it seems she tried to mobilise on her own and fell to the floor. Springwood recorded the incident and called an Emergency Care Practitioner to review Mrs X. She had two small skin tears and some bruising on her arm.
36. Mrs X was not assessed as needing one to one care. This was also an emergency admission for overnight care, without an opportunity for Springwood to put a detailed care plan in place for residential care. I cannot therefore say the fall and injury to Mrs X was because of fault by Springwood. It arranged for a medical review straight away and I note the rest of the night went without incident.
37. Mrs X transferred to Woodhill Grange on 14 June. She had a further fall on 16 June and needed to go to hospital for treatment.
38. Unfortunately the Council has been unable to provide the care records from Mrs X’s stay at Woodhill Grange. The management at Woodhill Grange has informed the Ombudsmen this is due to problems with the record management company it used at the time of the complaint. It is taking action to address this with the company, but it cannot give a definite time frame for resolving the issues. Without the records it is not possible to say whether Woodhill Grange completed adequate fall assessments or whether its care planning was appropriate. However, there is reference to what was in the records within safeguarding documents, although this is limited.
39. The safeguarding records indicate staff found Mrs X in the doorway to the lounge with a cut to her leg. Mrs X was known to be at high risk of falls. With the documentation and information available, I cannot say exactly what happened leading up to Mrs X’s fall.
40. Although the Ombudsmen could pursue Woodhill Grange and/or its records management company to provide the records, this is likely to be protracted and I do not consider it would be proportionate in this case. While the records may show whether Woodhill Grange completed adequate falls risk assessments, it is unlikely to show whether Mrs X’s fall would have been prevented. The injustice is also relatively minor.
41. Fortunately for Mrs X, her injuries were relatively minor and any concerns about care at the home were mitigated when Mrs X did not return to Woodhill Grange following her hospital admission. For these reasons it would not be proportionate to pursue this part of the complaint further and I have decided to discontinue my investigation of this issue.

Suspending Ms J and replacement care

42. The Council wrote to Miss K on 12 June 2016. It advised it was suspending direct payments for Ms J. The reasons the Council gave were:

‘…This is because there is reason to believe that the personal assistant, [Ms J], is not providing care in a manner that Sheffield City Council considers is meeting [Mrs X’s] needs, this may be placing her at very significant risk…’

43. The letter went on to explain the Council would continue to provide the care already in place, but with three days per week at a day centre, presumably to replace the 16 hours per week Ms J previously provided.
44. Finally, the Council explained that it had held a safeguarding meeting about concerns the district nursing service raised. Specifically, the concerns related to unexplained bruising and skin tears and failing to follow medical advice about using thickeners in Mrs X’s food and feeding her a soft diet. The Council also explained there were other concerns about Ms J and Miss K smoking cannabis and behaving inappropriately.
45. Based on the evidence I have seen, I consider the Council explained the reasons for suspending the direct payments. I also consider it put in place appropriate support, that is, three days per week at a day centre in place of Ms J’s 16 hours support, in the interim.

Safeguarding and questioning of Mrs X

46. On 8 May 2017, the Council received a safeguarding referral. The form recorded concerns about bruising on Mrs X and possible financial abuse. The Council concluded it should carry out a welfare check for Mrs X.
47. On 9 May 2017, a Council officer visited. Mrs X explained the bruising was a result of her banging into things and denied Miss K or Ms J had caused the injuries. The Council decided to offer respite and to interview Miss K and Ms J.
48. Mr Y did not consider Mrs X had capacity to speak to the Council about any of the safeguarding concerns and said they ‘tried to put words into her mouth’. The MCA, presumes an individual has capacity unless there is proof to the contrary. The records show the Council officer considered Mrs X’s capacity and noted her answers indicated she understood what was being discussed. The records do not provide a verbatim account of the discussion, but the Council officer noted Mrs X’s responses were generally positive about her care package and complimentary about Miss K in particular. I do not consider this indicates the Council officer was trying to lead Mrs X with what she said at the visit.
49. An independent advocate visited Mrs X on 6 June 2017 to discuss the concerns raised through safeguarding procedure. The advocate recorded Mrs X was chatty and had no concerns about her safety. Mrs X told the advocate she liked living with Miss K and ‘spoke very affectionately about her’. The advocate considered Mrs X understood the concerns and closed the referral to the advocacy service.
50. On 13 June 2017 the Council spoke to Mrs X about the decision to place her in emergency respite care. It completed a formal capacity assessment about this specific decision. The record shows the Council asked appropriate questions to determine that Mrs X could retain information long enough to understand what was happening in line with the MCA Code.
51. Based on the evidence I have seen, I have not found fault by the Council regarding its discussions with Mrs X. These were in line with the MCA and do not mean the safeguarding investigations were flawed as alleged.

The Council’s complaint investigation

52. Mr Y’s wife, Mrs Y complained to the Council on 28 February 2017. The Council replied on 11 April 2017. It apologised for the delay in putting the direct payment in place after the November 2016 visit. The Council also apologised for the frustration resulting from the delays in putting support in place. It invited Mrs Y to complain to the Ombudsman if she remained dissatisfied.
53. Sadly, Mrs Y died on 5 May 2017. Mr Y wrote to the Council in her place on 12 May 2017. Mr Y expressed the view that ‘…absolutely nothing ha[d] been done to help [his] family…’ since they made the original complaint.
54. Mr Y explained he was dissatisfied about the Council’s visit on 9 May 2017 to investigate Mrs X’s bruises. Mr Y believed it was inappropriate to question Mrs X alone and he felt Miss K was being implicated for Mrs X’s injuries. The Council replied the same day advising it would complete its safeguarding investigation before addressing Mr Y’s complaint. It explained Mr Y could complain at the end of the safeguarding process if he remained unhappy.
55. Mr Y complained to the Ombudsman. We referred the matter to the Council for response. It wrote to Mr Y on 27 July 2017. It explained it had received approximately 15 complaints from him between March and July 2017. Therefore, it explained, its response had been delayed as it considered the additional issues Mr Y raised in each complaint.
56. The Council confirmed it would not address the concerns about the safeguarding issues until the investigation was complete. However, it did address several concerns. In summary:
• It had changed the arrangements for the safeguarding meeting so Miss K could provide comments by conference call or in writing. The Council had done this as it felt Miss K was verbally aggressive towards Council officers. The Council said it wrote to Miss K on 24 May 2017 and explained the reasons during a telephone call on 1 June 2017.
• The Council apologised for the delay in backdating the direct payment.
• Miss K had asked for additional support for Mrs X to accommodate Ms Y’s funeral. The Council explained it had offered emergency respite or four hours’ care of the existing package to be delivered on the day of the funeral. However, Miss K had refused emergency respite. She also scheduled the four hours’ care for the morning of the funeral and paid privately for further care in the afternoon. The Council explained it considered the offer of emergency respite was appropriate.
• Mr Y had raised concerns about the way a Council-commissioned care agency recorded its time. However, the Council explained the agency’s records showed carers had in fact spent extra time with Mrs X.
• At Mr Y’s request, the Council agreed to allocate a new manager and social worker for Mrs X.
• Finally, Mr Y complained about the Council’s decision to move Mrs X from one respite placement to another. The Council explained that Miss K had contacted the Council explaining she was unable to care for Mrs X on her return home from her day placement. The Council had only been able to locate one placement that could meet Mrs X’s needs overnight. Council officers visited Mrs X and concluded she had capacity to decide whether she wanted to go to the placement. On this basis the Council had moved Mrs X from the day placement to the emergency respite placement that could meet her needs overnight.
57. The Council explained Mr Y could approach the Ombudsman if he remained dissatisfied.
58. Mr Y wrote to the Council on 13 and 14 June 2017 about falls Mrs X had in her day placement and requesting this be considered as a safeguarding concern. Mr Y wrote further on 21 June 2017 to explain Mrs X had also fallen in Woodhill Grange. This was included in the safeguarding investigation the Council was already considering. The records show the outcome from this investigation was shared with Mrs X’s family.
59. The evidence I have seen shows the Council responded to concerns Mr Y and Miss K raised throughout the period complained about. This was through complaint responses and safeguarding investigations. Where the Council did not intend to respond to certain issues through the complaints process, for example, concerns that were to be dealt with under safeguarding procedures, this was explained to the family. I have therefore not found fault by the Council in this regard.

The Council - direct payments

60. The Council wrote to Mrs Y on 11 April 2017. It set out Mrs X’s care plan and apologised for the delay in putting direct payments in place for Ms J. The Council explained the support plan was:
• a payroll support service (to administer the direct payments);
• additional night sits while Miss K was unable to provide support;
• backdated direct payments to 8 November 2016 for Ms J;
• three nights of contingency respite support.
61. The Council paid the backdated direct payment of £8428.34 on 24 May 2017. It explained that it needed to await the CCG’s assessment for Mrs X, which took place in February 2017. This was a reasonable approach as the care package was jointly funded by the Council and CCG. However, the CCG made its funding decision in February and the direct payments were not arranged until May. This is fault on the part of the Council.
62. However, I do not consider the delay has caused an un-remedied injustice to either Mrs X or Ms J. I understand Mrs X paid Ms J throughout the period. Therefore, Mrs X received care and Ms received payment. The Council has now reimbursed Mrs X for the amount it would have paid Mrs X had it arranged the payments sooner. Further, the Council has apologised for the delay. It has acknowledged the frustration this has caused the family. I consider this an appropriate remedy for the time and trouble spent resolving the matter.

The CCG – delays and poor care

63. On 21 October 2016, the Council referred the matter to the CCG to complete a Checklist, given the family’s concerns about Mrs X’s health needs. District nurses completed a Checklist on 8 November 2016 but did not obtain the correct consent until 19 December 2016. By this time Mrs X was receiving intermediate services. Therefore, the CCG decided she was not eligible for a full DST.
64. On 4 January 2017, the family requested the CGG complete a CHC Checklist. The CCG and Council completed a DST for Mrs X on 24 January 2017. This was within the timeframe in the National Framework. The DST concluded that Mrs X had some health needs and her care package should therefore be jointly funded by the Council and CCG. The CCG also completed a form on the same day indicating it would fund seven and a half hours of care per week of care for Ms J to support Mrs X. However, the Council officer and nurse completing the assessment disagreed on Mrs X’s scoring for the DST. Therefore, the CCG requested further information and sent the proposal to its Quality Assurance Committee for review on 21 February 2017, at which point it agreed funding.
65. The CCG accepts the delay between 24 January and 21 February 2017 is fault. Even though it required further information, it explains that there was a delay in considering the information. While the CCG originally backdated the payments to 22 February 2017, it acknowledges this should have been backdated to 2 February 2017 to recognise the delay. The CCG has now agreed to backdate the payment to 2 February 2017. I consider this remedies any injustice the delay caused.
66. As the CCG only funded part of the direct payment for Ms J, it was not responsible for the remaining care provided by the agencies involved. This care was provided by the Council. I understand the family were happy with the care Ms J provided. Therefore, there does not appear to be a complaint about CCG-funded care.

The Trust – District nurses

67. The records show the district nurses ordered a shower chair from the British Red Cross following a visit on 27 February 2017. A shower chair was delivered the following week, but this was found to be unsuitable. The records show Ms J spoke to the district nurses about this and a replacement was arranged the same day. The records show there was subsequently further problems with replacement shower chairs. In May 2017 Miss K reported the chair Mrs X was currently using was a bit low for Mrs X. The records show the Trust visited the British Red Cross to see if there was a chair that met Mrs X’s needs, based on Miss K’s feedback. The Trust identified an appropriate chair and ordered this in May 2017.
68. There was a small delay in Mrs X getting a shower chair that she found suitable. However, the records show the Trust acted in a timely way to order the chair and the replacements when Ms J and/or Miss K told it about the issues. Moreover, I have not seen evidence that the district nurses in particular delayed making the equipment requests. I have not found fault in this regard.
69. It does not appear Mr Y or Miss K have made a complaint to the Trust about district nurses withholding bandages and incontinence pads from Mrs X. The records show discussions between Ms J and the district nurses about tubular bandages on 27 February and 6 March 2017. The records show the district nurse confirmed tubular bandages were not clinically necessary. They advised tights or stockings could be used to cover the bandages the district nurses had applied if they wished to protect or improve the appearance. The records do not indicate further discussions about these bandages for the period complained about.
70. The records show the Trust gave Mrs X continence pads in May 2015 and arranged for a continence assessment to be completed. There is little else in the records relating to the supply of incontinence pads until April 2017. Ms J and the district nurse discussed this and it is noted the social worker would contact the continence service. I have seen no evidence of district nurses withholding incontinence pads or that Mrs X’s family/carers were asking for this. When Ms J raised a concern, the district nurse appropriately referred this to the relevant service. As I have seen no evidence of the district nurses withholding equipment, I have found no fault by the Trust.
71. With regards to district nurses making safeguarding allegations, all health professionals have a duty to refer any concerns they may have about the safety of an individual. This was in line with the Care Act and was therefore not fault.

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Agreed actions

72. Normally the Ombudsmen would recommend the Council should apologise to Miss K for the inconvenience and distress caused by delays in completing a detailed assessment and her being unable to access respite support sooner. However, Mr Y and Miss K say they consider an apology would be an insult. I have therefore not recommended this action on this occasion.

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Final decision

73. I found fault with delays in completing a detailed assessment for Mrs X. This did not cause an injustice for Mrs X, but it did delay Miss K from being able to access three nights’ additional respite support. This was subsequently addressed.
74. I did not find fault by the Council in relation to the care provides to Mrs X at her home or at the day centre.
75. I did not find fault by the Council about the suspension of Mrs X’s PA and the replacement care it put in place.
76. I did not find it was fault by the Council to speak with Mrs X about safeguarding concerns or that this meant the safeguarding process was flawed.
77. There was no fault by the Council in investigating and responding to concerns Mrs X’s family raised about her care.
78. There was fault by the Council with delays in arranging direct payments. However, the Council has already acknowledged this and remedied the injustice.
79. There was fault by the CCG with delays in assessing Mrs X for CHC funding. The CCG has already acknowledged this and remedied the injustice.
80. I found no fault by the Trust in relation to it withholding equipment for Mrs X or with making safeguarding referrals when its staff had concerns about Mrs X’s safety.
81. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman