Lewisham Clinical Commissioning Group (17 009 673a)

Category : Health > Other

Decision : Not upheld

Decision date : 19 Jun 2019

The Ombudsman's final decision:

Summary: A man complained that a council and clinical commissioning group took too long to assess his father’s home for adaptations and did not consider his religious need to access a shower. The Ombudsmen find fault with communication about the assessments, which caused some frustration. The Ombudsmen find that the council was at fault for not considering religious needs but this did not cause injustice. The Council will apologise for the impact of the lack of updates about the assessments.

The complaint

  1. Mr P complained on behalf of his father Mr D about the London Borough of Lewisham (the Council) and Lewisham Clinical Commissioning Group (the CCG). He said:
      1. the Council delayed assessing Mr D’s home for potential adaptations during 2017 and 2018 while Mr D was in a rehabilitation placement at a care home (the Placement) following knee surgery;
      2. the Council and CCG failed to work together effectively to ensure that Mr D’s needs and possible adaptations at his property were promptly assessed, including consideration of his religious needs for washing facilities;
      3. Mr D was wrongly accused of failing to agree to reasonable options for discharge from the Placement;
      4. the CCG took Mr D to court over these matters, causing them both considerable distress;
      5. Mr D was ill-treated by staff at the Placement and was moved to a more isolated room. Mr P said the change of room was a ‘punishment’ which made Mr D feel stigmatised and caused him embarrassment.

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What I have investigated

  1. I have investigated parts a and b of the complaint. At the end of this statement I have explained why I have not investigated parts c – e.

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The Ombudsmen’s role and powers

  1. 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.
  2. 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).
  3. 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, section 26A(2)) (Local Government Act 1974, section 26A(1)).
  4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, section 26(6)(c), as amended, Schedule 5/5A, paragraph 1/3, as amended, and Health Service Commissioners Act 1993, section 4(1b)).
  5. 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.
  6. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7)).
  7. 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, or
  • the injustice is not significant enough to justify their involvement, or
  • it is unlikely they could add to any previous investigation by the bodies, or
  • they cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a review or appeal.

(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 considered information provided by the parties to the complaint, including information from Mr D and Mr P, and information and records provided by the Council and CCG. I took account of relevant policy, law and guidance.
  2. I shared a draft of this decision with the parties to the complaint and invited their comments.

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What I found

Legal and administrative context

Disabled facilities grants (DFGs) and adaptations

  1. Disabled Facilities Grants are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations. Before approving a grant, a council must be satisfied the work is necessary, suitable, reasonable and practicable.
  2. Requests for major or complex adaptations usually need assessment by an occupational therapist or occupational therapy assistant, who must involve the disabled person in their assessment.
  3. A council should give the applicant a decision on a grant application as soon as reasonably practicable. This must be within six months of the grant application. If a council refuses a grant it must explain why. Once the work is complete, the council must pay the grant in full before 12 months from the date of the grant application.
  4. The document “Delivering Housing Adaptations for Disabled People: A Detailed Guide to Related Legislation, Guidance and Good Practice”, Home Adaptations Consortium (2013) provides relevant non-statutory guidance. I refer to this as the Guidance. It says providers “need to ensure that their policies and practices do not introduce new inequalities, for example, by providing…standard solutions that are not culturally acceptable”. People should receive regular and unprompted updates on progress.

What happened

  1. Mr D is an elderly man with mobility difficulties. Before these events, he lived in a microenvironment in a living room on the ground floor of his house. The house had a downstairs toilet, with bathing and showering facilities upstairs. Mr D had carers to help him wash.
  2. In July 2017, Mr D moved to the Placement for a rehabilitation period following knee surgery. This was intended to be for a maximum of six weeks. On 21 July, an occupational therapist (OT) visited Mr D’s home and recorded that he had all the equipment he needed to go home safely. The records say the professionals planned that Mr D would go home on 3 August. He refused to go, and said he was not happy with the care plan and wanted more visits from carers.
  3. The Council reviewed Mr D’s social care assessment on 4 August. Mr D’s mobility was reduced following his surgery. He could manage at home with three visits from carers a day. However, Mr D said his house was no longer suitable for him because he could not access the first floor to bathe. He wanted the downstairs toilet adapting to a shower room, or to move to sheltered accommodation if this was not possible. Mr D continued to refuse to leave the Placement.
  4. On 15 August, the Council’s staff met with Mr D and said an OT would assess whether he should have a downstairs walk in shower. The Council said the waiting list for this was 4 – 6 weeks, then he would need a DFG application. The whole process could take 18 months. The records say Mr D was disappointed by this, but agreed to go home on 17 August with care to help him manage until he found out the outcome of the OT assessment.
  5. The Council emailed Mr P after the meeting to update him. Mr P said Mr D did not want to go home without a downstairs shower. He would not consider leaving the Placement without an OT assessment. If told the work would be done, he would go home and wait up to 18 months for the work to take place. If his property could not be adapted, he wanted to be considered for extra care housing.
  6. On 16 August, the Council emailed Mr P to say Mr D would have an OT assessment on 22 August at his home. After this, the Council would try to decide by 25 August whether he would be eligible for a DFG. The Council cancelled Mr D’s discharge from the Placement for the following day, and said it would contact Mr P again after the OT assessment.
  7. On 18 August, the Council told Mr P that Mr D could not go back to the Placement after the OT assessment, because of the demand for placements there. It said Mr D had recovered very well from his knee operation, and could safely use a walking frame at home. It said not having access to a shower should not prevent him going home, and that he had care to help him with washing and dressing before his surgery, which worked well.
  8. On 21 August, Mr P emailed the Council to say Mr D was upset that the Council was going back on the arrangement it made on 16 August. He said Mr D now refused to go to his home for the OT assessment on 22 August and said the OT could do it without him there. He said the Council had failed to account for Mr D’s religious need to have a daily shower, even though Mr D had consistently said this was one of his main outcomes. He said Mr D did not want to go home without the opportunity for a proper wash to meet his religious needs.
  9. The Council replied that Mr D had signed an agreement to leave the Placement after his rehabilitation, and that it was not acceptable for him to stay there and prevent others from using the service. It said Mr D needed to be present for the OT assessment so that measurements could be taken, and if he failed to take part it would delay the DFG application.
  10. An OT visited the property on 22 August but could not do the assessment because Mr D was not there. They looked at the house, and suggested a stair lift if possible, so Mr D could access the bathroom. Mr P told the Council Mr D would not meet the OT at his house because he thought this was a ploy to abandon him there.
  11. On 15 September, the CCG wrote to Mr P, referring to a meeting the previous day between Mr D, the Council, an OT and a physiotherapist. It said Mr D would discuss his options with Mr P, and would contact the Council within a few days about this so they could plan his discharge. They assured Mr D that if he met an OT at home he could go back to the Placement while they agreed a date for his discharge.
  12. The Council recorded on 27 September that Mr D agreed to meet an OT at home for an assessment. This happened on 4 October. Mr D said he could wash his top half, but needed help with his bottom half and back. The OT said there was no reason why Mr D could not go home with the help of carers to wash him. Mr D said he wanted to return home with adaptations so he could shower, and would only consider moving elsewhere if he could not have the adaptations.
  13. Mr D said he had not used the stairs since he fell coming down them because he was dizzy. The OT said they would need to liaise with his GP, because he may not be able to have a stairlift if he got dizzy. The OT noted that they needed to get medical information from his GP.
  14. On 16 October, the Council decided Mr D would benefit from adaptations through a DFG so he could access the bathroom with a stair lift, and to create a level access shower in the bathroom. The OT wrote to the GP for medical information on 17 October.
  15. Mr P complained to the CCG on 20 December. He said Mr D’d had no update following the OT assessment. He would not move from the Placement unless his religious and cultural needs for a wash were met. He was not willing to be washed by the basin for 18 months waiting for a stairlift.
  16. Also on 20 December, the OT called Mr P’s GP practice to pursue the information they had requested, but could not get through.
  17. The CCG wrote to Mr D on 21 December. It said the OT assessment would be finalised once the GP supplied information. It understood from the Council that it considered a micro-environment appropriate for Mr D, with help from a carer to wash. Mr D could go home while the OT assessment was finalised. While this was not ideal for him, it was not an unusual situation for people waiting for adaptations. It said Mr D had agreed to go home on 22 December and asked him to confirm the time he would leave.
  18. On 22 December, the OT spoke with the GP practice, which said it had not received their request for information. The OT sent the request again.
  19. On 15 January, Mr P complained to the Council. He said he felt the Council and CCG were focussing on getting Mr D out of the Placement rather than on meeting his needs. Mr D felt if he went home it might take him years to get a shower. He said the Council agreed that Mr D could stay at the Placement until the OT assessment and DFG application were completed. But at a meeting with Mr D in December staff told him he had a week to move out. Mr D had no indication the DFG application was underway. Mr P felt the Council had given no regard to Mr D’s religious needs. He felt the Council was delaying the OT report so it could slow down the DFG application.
  20. On 29 January, when the Council had still not received a response from the GP practice, it decided to proceed with the adaptations process based on further information from a physiotherapist at the Placement. It emailed Mr D’s landlord to ask for consent for the adaptations.
  21. On 9 February the CCG responded to Mr P’s complaint. It apologised for a long delay in the outcome of the OT assessment and said it would liaise with the Council about this with consent from Mr D. It noted that it had sent Mr P consent forms but not received them back. It said at the meeting in December Mr D agreed to go home, and a needs assessment by the Council confirmed that he could go home with a care package while he waited for the outcome of the OT assessment.
  22. On 12 February, Mr D’s landlord emailed the Council to say the adaptations could be done through a DFG. The Council sent consent paperwork to Mr D, and completed the DFG means test on 12 March. Work proceeded over the following months, following which Mr D returned home.

Findings

Complaint that the Council delayed assessing Mr D’s home for potential adaptations during 2017 and 2018

  1. The earliest record I have seen where Mr D told the Council he did not want to go home without adaptations was 4 August 2017, and the Council arranged an OT assessment for 22 August, which was reasonably prompt. This assessment did not go ahead because Mr D did not go home for the assessment. That was his choice, but it prevented the OT completing the assessment sooner.
  2. The records indicate that on 27 September Mr D agreed to meet with an OT at his home for the assessment. The assessment took place on 4 October, which again was reasonably prompt.
  3. There was some delay with progressing matters from October to January, when the Council did not receive the information it requested from Mr D’s GP practice. The Council should have pursued this sooner than it did, but it still did not receive it after it pursued it. Given the delays outside the Council’s control, I do not find fault with the Council for the time the assessments took.
  4. I consider that the Council should have kept Mr D updated with progress on the assessment, and the reason for the delay. Not doing so was fault, and appears to have caused some frustration.

Complaint that the Council and CCG failed to work together effectively to assess Mr D’s needs, including consideration of his religious need for washing facilities

  1. It was the role of the Council to assess the relevant needs here. There is evidence that the Council assessed Mr D’s needs and considered that it could meet them through the provision of carers to help him wash and dress, at least until alternative arrangements were in place. It is not uncommon for people who need help with washing to receive this through a strip wash or bed bath.
  2. In response to my enquiries, the Council told me it was not aware before my investigation that Mr D considered that his religious and cultural needs were not met at his property before the adaptations were completed. It provided documents and extracts from assessments and referrals, noting that Mr D had not raised any concerns about the impact of his home environment on his religious or cultural needs.
  3. I have not seen any evidence that Mr D told the Council that he felt his religion required that he have access to a shower, and that the provision of carers to help him wash did not suffice. However, I have seen evidence that Mr P told the Council this by email from August 2017 onwards. This was after the social care assessment took place.
  4. I consider that once Mr P raised concern that Mr D felt that help with washing by carers did not meet his religious needs, the Council should have documented a consideration of this. Not doing so was fault.
  5. I have not identified an injustice from this. There is no way of knowing what the outcome of the Council’s consideration would have been. It is not for the Ombudsmen to consider the nature of religious requirements or determine whether or how someone’s needs should be met. The records show that Mr D declined to consider moving elsewhere unless he was told he could not have the adaptations, and the adaptations process takes time. Mr D was not without washing facilities during the period under consideration.

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Agreed action

  1. Within one month of this decision the Council will write to Mr D to apologise for not keeping him informed about its progress and the frustration from this. It will explain how it will ensure it will keep people updated in future.

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Decision

  1. I find that the Council was at fault for not keeping Mr D updated about progress with the assessments, which caused some frustration. The Council was at fault for not considering Mr D’s reported view that his religious needs were not met by carers washing him, but this did not cause injustice. The CCG was not at fault.

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Parts of the complaint that I did not investigate

  1. I did not investigate the complaint that the CCG took Mr D to court over these matters. The court action the CCG took was to remove Mr D from the Placement. The Ombudsmen cannot investigate matters considered by a court.
  2. I did not investigate the complaint that Mr D was wrongly accused of failing to agree to reasonable options for discharge from the Placement, because this relates to the legal proceedings taken by the CCG, which we cannot consider.
  3. I did not investigate the complaint about the way in which staff at the Placement treated Mr D because there is insufficient likelihood that we would find evidence of fault.

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Investigator's decision on behalf of the Ombudsman

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