The Ombudsman's final decision
Summary: Mrs X complains the Council failed to advise her about a care home for her friend, Mr Y, which she says was unsuitable. At present, we consider the Council has remedied the faults identified.
The complaint
The complainant, whom I shall refer to as Mrs X, complains on behalf of the late Mr Y, for whom she held power of attorney, about the suitability of a care home. She says it was not a suitable placement for Mr Y given his health conditions and that residents were not adequately supervised.
Mrs X says the Council failed to provide adequate guidance on finding a suitable care home. She says that the Council should not expect her to make payments for the care home from his estate.
What I have investigated We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
Mrs X’s complaint is late, as she complained to the Ombudsman in October 2021 about matters that she became aware of in January 2020. However, we considered there were good reasons to investigate because there were delays during the Covid 19 pandemic and delays by the Council in responding.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended).
Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, we may recommend a symbolic payment to them as a remedy for their own distress.
How I considered this complaint
I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
What I found
Legislation and guidance Charging for permanent residential care The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
What happened Mrs X, together with his granddaughter, held power of attorney for her friend Mr Y, in relation to finances and health and social care matters. He had been diagnosed with vascular dementia, and was receiving domiciliary care at home. Mrs X says that in late 2019 Mr Y’s condition worsened, and she and the family looked for a residential care home for him.
Mrs X says she had no experience of residential care homes. Mr Y’s GP suggested a care home which the family then considered. However, she says that the Council ‘s social worker did not help regarding finding potential care homes. When she asked Mr Y’ social worker about recommending a care home the social worker said she could not give her any advice.
Mrs X said the family had little choice given the situation was urgent. They chose a potential care home and the manager visited and assessed Mr Y. It said it could meet his needs.
The Council’s notes of the social worker’s conversations with the family show the family identified the potential care home and the Council sent a copy of its care assessment to the home for its information.
As Mr Y’s family had stated that his capital was over the upper capital limit, (see paragraph 11) the Council considered that Mr Y was funding his own care. Therefore, the Council was not involved in arranging or commissioning the care placement.
Mr X moved into the home at the end of November 2019.
The Council’s notes show that shortly after Mr Y moved in, his granddaughter stated his capital had fallen below the upper limit, but the family would continue to pay privately. They intended to sell his former home, so it appeared Mr Y would be self funding.
Seven weeks after Mr Y moved in, the care home contacted Hus representatives giving him 3 weeks notice because it said it could not meet his needs. It said that he was not settling and was up most nights walking around the home and was disrupting other residents due to his behaviour.
Mr Y’s representatives contacted his social worker and she said she would contact other care homes to check availability. The family found an alternative care home which Mr Y moved into. He settled in the second home. However, he sadly passed away in 2020.
Mrs X complained to the Council in 2020 that it did not support her in finding a care home or regarding funding arrangements. She said the Council should have known the home was not suitable as its Deprivation of Liberty Safeguarding Authorisation (DoLS) showed he required a greater level of care. She said the first care home was not suitable because it did not provide the correct level of care for Mr Y, on view of his dementia, putting him at risk.
There were not enough staff on duty and Mr Y had nearly managed to leave the home unaccompanied.
The floor levels were uneven which could have led to falls.
The Council responded to Mrs X’s complaint. It said that the care home had visited Mr Y and assessed him before putting him on a waiting list for admission. The home had discussed his needs with Mr Y’s granddaughter and his carer. No issues were raised regarding behaviour or that Mr Y may be challenging. On the information that was available the care home felt it could meet his needs. The Council did not agree that its social worker recommend the home. She had stated she could not recommend a home. Mrs X had also stated in her complaint that the social worker said she could not recommend a home, and Mrs Y had also stated the GP suggested the home.
The Council also stated Mr Y soon became unsettled after moving in. His GP prescribed medication to help him sleep and the home tried to help him settle but he remained challenging. The home made the difficult decision to give him notice. It gave 28 days notice despite the contract stating 7 days. With regard to the DoLS authorisation, the Council said the assessor noted it may not be possible to maintain the placement at the first care home, due to Mr Y’s may not be able to be maintained due to the risks to Mr Y and others, but she recommended referral to a community psychiatric nurse (CPN). Unfortunately, the home gave notice before the CPN could be arranged. The Council did not consider the home acted inappropriately. The Council apologised that Mrs X’s experience with the home was not positive. However, it considered either all the necessary information was not given before admission, or a change in Mr Y’s environment or decline in his dementia meant his needs changed and the home could not support the level of care he needed.
Mrs X remained dissatisfied and questioned some of the Council’s responses.
The Council sent Mrs X its final response in April 2021. It noted Mrs X wanted more support in finding a care home. It explained that its social workers were not expected to recommend a care home. This would be the individual and their representative’s choice. But it said the Council could advise which care homes were in the area, and direct families to the Care Quality Commission’s (CQC) inspection reports and ratings. The Council said the social worker noted she shared information about homes in the area. However, there was no record of any other advice. The Council apologised that Mrs X felt its social worker did not share sufficient information with her. It said it would ask social work managers to review the amount of information workers shared.
The Council responded regarding Mrs X’s complaint the care home was not suitable because he needed a nursing home. It explained the home was registered as a nursing and residential care home. The Council had assessed Mr Y needed a residential care home. The Council said the care home manager had a responsibility according to its CQC registration and The Care Home Regulations to be confident they could meet the needs of a prospective resident. The care home should consider the care assessment and consult with the family and the individual. The Council said the home manager had requested Mr Y’s care assessment from the Council and had met with his granddaughter. Therefore, based on the information provided, the care home manager believed the home could meet his needs.
The Council said the care home was also responsible for taking action if it felt it could not meet an individual’s needs. The Council noted the care home had tried to help him settle into the home’s routines and had contacted Mr Y’s GP to review his health. The GP advised his dementia had advanced and there were no other health concerns. The care home was required to take action if it did not believe it could safely meet Mr Y’s needs. While the Council accepted that the situation was stressful for Mr Y and his representatives, it did not consider the care home was wrong to accept Mr Y as a resident.
The Council also responded regarding funding arrangements. It noted apart form an initial discussion that Mr Y’s granddaughter arranged the placement as a private arrangement without engaging with the adult social care service. The Council said that before moving to the second home, Mrs X discussed a deferred payment agreement. This is a funding arrangement or a long-term loan from the local authority which is used to pay for care home fees if you own your home. It noted Mrs X said the social worker gave the impression this was causing her more paperwork. The Council apologised for this and said it would ask the social worker’s manager to discuss this with her, as well as discussing with the team about the information shared and how it was communicated.
The Council addressed Mrs Y’s complaint about night-time staffing levels at the home. It said that the CQC had inspected the home in late 2020 and gave it a “good” rating. The Council also said that its Commissioning Team carried out regular contract monitoring visits to care homes. In addition to this, its Quality Improvement Team worked with care homes to improve quality. The Council did not have concerns regarding the first care home. However, the Council noted Mrs X’s concerns and said it had arranged a contract monitoring visit in the next few weeks. It would consider staff rotas and observe staff interactions with residents.
In ist response to our enquiries the Council provided a copy of the report by the Commissioning Team when it visited the care home. This did not identify concerns regarding staffing levels or uneven flooring.
Analysis Based on the information I have seen, there appears to have been some confusion on both sides about the involvement of the Council and its responsibilities. At the start Mr Y was stated to be self funding, so to a large extent it was for his representatives to consider and choose a home. There was some involvement by the Council because it gave details of available homes and it sent its care assessment to the care home when requested. I have not seen evidence the Council recommended the first home and it appears Mr Y’s representatives made the decision about the home.
However, the Council accepts that it could have provided more support and could have communicated better. I consider this was fault. However, I am satisfied the remedies the Council proposed were appropriate and proportionate.
Mrs X suggests that the care home was never suitable for Mr Y, but I consider on the basis of the information the home had, it was not at fault in agreeing to offer a place. It appears that after admission it became clearer that Mr Y’s needs were more significant or that his condition had advanced. It is also possible he was unable to settle in his new environment. While I cannot conclude the reasons, I do not see there is fault by the Council or the home.
Mrs X complained that the home was unsuitable because there were insufficient staff at night. The Council addressed this issue in its final response and carried out a monitoring visit. This did not find there were concerns regarding the level of staffing. I have not found fault by the Council here.
Mrs X complained about uneven floors which could lead to falls. She considered this was a risk to Mr Y and therefore the home was unsuitable. The Council has referred to the CQC visit and its own monitoring visit. These did not identify that there were uneven floors which might be a hazard. I have not found evidence of fault here.
Draft decision Subject to further comments by Mrs X and the Council, I intend to complete my investigation and close the complaint.
Investigator's decision on behalf of the Ombudsman