Summary: The Council has provided evidence that the delay in finding a suitable alternative placement for Mrs X after there was a serious safeguarding concern and the care provider said it could not meet her needs was not entirely in its control. It will however offer Mr X and Mrs X’s daughter a sum in acknowledgment of the distress they witnessed as a result of poor care. The Council could have then arranged a suitable placement for Mrs X within her personal budget but Mr X was unwilling to choose another home.

The complaint

1. Mr X (as I shall call him) complains the Council left his late wife in an unsuitable placement even though the care provider said it could not meet her needs, and a safeguarding alert was raised.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

5. I considered all the information provided by the Council and by Mr X. I spoke to Mr X. Both Mr X and the Council had the opportunity to comment on an earlier version of this statement and I considered their comments before I reach a final decision.

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What I found

Relevant law and guidance

Safeguarding

6. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Mental Capacity and Best Interests Decisions

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
8. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

Charging, choice of accommodation and top-up fees

9. 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.
10. 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
11. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
12. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

13. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
14. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if the person can find someone else (a ‘third party’) to pay the top-up.

Fundamental standards of care

15. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
16. Regulation 9 says “The care and treatment of service users must—

(a) be appropriate,

(b) meet their needs, and

(c) reflect their preferences”.

17. Regulation 14 says the nutritional and hydration needs of service users must be met.

Continuing Healthcare

18. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.

What happened

19. Mrs X was a woman in her 50s diagnosed with a rare form of dementia. Mr X cared for her at home with the support of a care package arranged by the Council. She was also under the care of a specialist dementia nurse.
20. In July 2022 Mr X’s brother died. The Council arranged a two-week respite placement for Mrs X at St Paul’s care home. Mr X emailed the social worker on 10 July and said Mrs X had deteriorated somewhat before she was admitted. He asked if they could review the situation with the care home after the two weeks respite to consider what her long-term needs might be.
21. On 21 July Mrs X’s specialist nurse emailed the social worker. She was concerned about the placement at St Paul’s and said it was not suitable for someone with Mrs X’s form of dementia.
22. The social worker arranged a meeting (attended by Mr X, the specialist nurse and Mrs X’s daughter, Ms A) on 5 August to discuss Mrs X’s future options. Everyone agreed St Paul’s was not a suitable placement but recognised it had been an emergency placement for respite and as such had met Mrs X‘s needs. It was agreed that Mrs X should return home on an interim basis. as soon as the care package could be restarted, while other options for her future were explored.
23. An Occupational Therapist assessed Mrs X on 15 August. She noted, “(Mrs X)'s long-term needs are quite significant, and it would be difficult to meet these needs effectively in a home environment. (Mrs X’s) wandering is a concern and how this would be managed in between care calls/day care centre and overnight?”
24. Mr X contacted the social worker with concerns about Mrs X; he said she was ‘slumped over’ and refusing to drink. The social worker contacted the care provider who said the GP could see her next day. The social worker asked them to call paramedics urgently.
25. Mrs X was admitted to hospital on 16 August with a suspected stroke but in fact was severely dehydrated. The Council opened a safeguarding enquiry. Mr X and Ms A both asked for Mrs X to move to a care home close to her own home where Mr X could visit on a daily basis. The social worker asked the dementia specialist nurse whether it would meet Mrs X’s needs. She also explained to Mr X and Ms A there would have to be a best interest meeting to decide Mrs X’s future placement.
26. The social worker visited Mrs X at St Paul’s. She emailed the manager on 1 September and said she had reviewed Mrs X’s fluid levels and noted that in the period up to 16 August (the hospital admission) Mrs X’s fluid intake had been significantly below Government guidelines of 1200ml. She reminded the manager of regulation 14 (that nutrition and hydration needs must be met).
27. The social worker also liaised with the relevant CQC inspector because of the safeguarding alert. She told the CQC inspector that a carer had recorded that Mrs X had drunk 190ml of liquid during her visit when the care had not observed this. She said she had concerns about the validity of the fluid charts.
28. The social worker contacted Mr X and Ms A and the specialist nurse on 16 September. She said although Mrs X’s fluid intake had increased, the care home manager had said they were having to provide 1-1 support to ensure Mrs X drank adequate amounts of fluid, and to manage her fluctuating moods. The social worker said she had made a referral for a CHC assessment to see if Mrs X required nursing care instead. She added, “Unfortunately this means that the best interests meeting will need to be postponed until the CHC assessment has been completed, and a decision has been reached in relation to whether (Mrs X) requires a nursing home to meet her needs. I am unable to make this decision, this rests with the CHC nurse assessors.”
29. Mrs X fell during a seizure over the weekend of 19-20 September and paramedics attended the call. On 21 September the social worker contacted the care home. She said the paramedics had raised concerns that staff at the care home were unable to support Mrs X properly. They had said staff had a general lack of knowledge about Mrs X’s diagnosis and needs. During the same phone call the care home staff told the social worker they were having difficulty administering Mrs X’s medication. She said they were giving the medicine with food. The social worker explained they should not do so without a best interests decision in place and should contact the GP as soon as possible.
30. Ms A emailed the social worker on 28 September to say when she had visited Mrs X she had noticed considerable bruising to her shoulder. She had taken her to hospital for an x-ray where a fracture was diagnosed. Ms A pointed out that the care home’s reports that Mrs X was being ‘aggressive’ during personal care were unsurprising if staff were trying to handle her when her collarbone was broken.
31. On 30 September the social worker took calls from both Mr X and from the care home manager. She noted Mr X “advised that (Mrs X) has had another fall, and that they are currently waiting for an ambulance. (Mr X) advised that staff were in tears, and stating they are unable to meet (Mrs X’s) needs.” The care home manager said “things were becoming too much” and they were unable to keep Mrs X at St Paul’s. She said she felt her service was under attack and the CQC had been there for days. The social worker advised the care home to ask the hospital to admit Mrs X if the care home could not meet her needs.
32. The care home manager was replaced by the care provider.
33. In the event Mrs X was not taken to hospital. The social worker sourced a number of nursing homes in the area for Mr X to consider but said if Mrs X moved, it would not be in her best interests to move again. The specialist dementia nurse suggested a home she thought could best meet Mrs X’s needs, but it was closed due to a Covid 19 outbreak at the time. When Mr X was able to visit it, on 15 October, he said he was “more than disappointed”. He said the room he was shown had “an overpowering smell of damp and decay.” The social worker said they needed to move Mrs X soon as she could not stay at St Paul’s.
34. The Council says, in response to my draft decision, that “the social worker considered that Mrs X required a nursing home placement and accordingly the social worker applied to Gloucestershire NHS Gloucestershire Integrated Care Board (ICB) for funded nursing care on 16th September.” The Council did not receive a reply until 10 October and says it could not commission a nursing home placement until this funding was agreed.
35. The Council goes on to say that “On 11th October 2022, the day after funding was agreed, Mrs X contracted Covid-19 and was therefore unable to move to another home. Mrs X’s needs changed considerably after contracting Covid-19. She was no longer mobile. Her needs were reviewed by the social worker on 1st November when Mrs X had recovered from Covid to a degree where her ongoing care and support needs could be identified. The delay to a move during this period was due Mrs X having Covid and the change in her care needs.”
36. The Council says that once Mrs X had recovered from Covid her needs were such that it would have been able to approach again nursing homes in the area which it had considered before but which were previously unsuitable because of Mrs X’s needs at the time. Those nursing homes would have been able to be commissioned without a top-up fee. However, it says Mr X would not consider any home other than the one close to his home and asked the Council to arrange the move there. The Council says one of the other homes (available within Mrs X’s personal budget) was only 6 miles from Mr X’s home and as he has his own transport, he would have been able to visit frequently.
37. In November the social worker wrote to Mr X, Mrs A and the specialist nurse. She said Mr X’s preferred home, close to where he lived, had agreed to reassess Mrs X. It charged more than the Council would fund but she noted that “There is a top up of fees required for this home, which (Mr X) has agreed to pay out of his own pocket.” Mrs X moved to the home on 23 November.
38. Mr X says he had not realised he would not be able to use Mrs X’s own savings to pay for her care. The social worker wrote to him with details of the relevant guidance. She said it would be possible to have a cheaper room at the preferred care home which would require a £500 ‘top-up’ fee rather than the £900 ‘top-up’ for the room Mr X had chosen. She also said she could source a dementia nursing home within the county which would not be as close, but which could meet Mrs X’s needs at the Council’s usual rate. Mr X said he wanted to be able to visit Mrs X every day while she still recognised him.
39. Mrs X moved to the new care home at the end of November.
40. In December the social worker closed the safeguarding enquiry into St Paul’s care home as Mrs X was no longer resident. In her closing summary she wrote, “with hindsight I think we should have moved (Mrs X) at any cost the day after we found her severely dehydrated, whether that be a care home in the Cheltenham/Gloucester area or not”. She noted that the CQC had continued to work with St Pauls on improvements.

The complaint

41. Mr X complained to the Council in December about the standard of care and treatment in St Paul’s, and the top-up required for Mrs X to move to the second care home. A social care manager responded in January 2023.
42. The manager said when Mr X had first identified the second care home it had not been able to meet Mrs X’s needs. She said after the safeguarding incident when Mrs X was admitted to hospital with dehydration, there had been increased monitoring of the home and closer work with the CQC, as well as a replacement manager in post. She said a suitable alternative to the second care home was available at a local authority rate but as it was clear Mr X preferred the chosen home, the Council had arranged a placement there once it had explained the ‘top-up’ fee to him. She said Mr X had chosen the more expensive of two rooms available for Mrs X.
43. Sadly, Mrs X died in April 2023.
44. In May the Council sent an invoice to Mr X for £4800. He contacted the Council. He said he understood that the Council was funding the placement at £850 a week and he was paying the top-up fee. The officer he spoke to recorded, “I explained that he had been paying the top-up, and that the invoice was for (Mrs X)'s contribution towards the service. (Mr X) again said he had never been told this.” Her note continued,” Upon looking at records the FAB for respite and residential services was requested on 04/11/23 and not completed until 13/04/23- (Mrs X) passed away the following day. This is why the invoice has been sent now.”
45. The Council continued to have discussions with the local NHS Trust about the award of Continuing Healthcare funding for Mrs X’s time in the second care home.
46. In June 2023 Mr X complained to the Ombudsman. He complained that the Council had left Mrs X in an unsuitable placement where her needs could not be met. He said given Mrs X’s condition and the care she needed, she should have been moved to any home which could meet her needs regardless of the cost until a suitable alternative was found. He said the only alternative he had been offered by the Council at its own rate was unsuitable because of the damp.
47. The Council says the placement at St Paul’s “continued because the home was continuing to work with Adult Care and CQC, and actions were taken to reduce the risks. At this point in time, (Mrs X) was living at St Pauls, and in line with hospital discharge pathways, (she) was discharged back to her current place of residence.”
48. The Council says no safeguarding investigation was undertaken in connection with the fracture to Mrs X’s collarbone. It says, “The circumstances in which the fracture was discovered was following an unwitnessed fall / seizure on 17th September, the care home took appropriate action and (Mrs X) was admitted to hospital. Following assessment, she was discharged within 24 hours. One week later, following a visit from her daughter, the daughter had concerns around bruising to the shoulder area, the daughter took her mum to hospital where they found the fracture. It should be noted that in the intervening time, the care home reported no instances of discomfort or changes in (Mrs X’s) presentation.” In fact the care home notes for this period show Mrs X had been ‘quite aggressive” when staff were trying to dress her.
49. In response to my earlier draft decision, the Council says that “During this period St Pauls worked with the council and CQC to make improvements, the manager was replaced, there were improvements in fluid monitoring and recording, and staff were provided with more supervision and training. Monitoring of Mrs X increased and extra staff were allocated in the afternoons specifically to monitor and support Mrs X.”
50. The Council also explains that it had written to Mr X about assessed contributions for both respite care and non-residential care in 2020 and 2021 and he was therefore aware there would be a contribution to be made as well as the top-up fee.

Analysis

51. The Council’s commissioned care home, St Pauls, failed to meet Mrs X’s needs to the extent she was admitted to hospital with severe dehydration as a result. That caused her injustice and was a potential breach of the regulations.
52. There is some evidence in the Council records that the Council considered it should have arranged to move Mrs X from St Pauls after that incident “at any cost”. The unsuitability of the placement caused Mrs X some injustice. However, there is evidence the delay was not wholly the fault of the Council – it had to await confirmation of Funded Nursing Care from the ICB, it could not move Mrs X while she had Covid, and her needs had changed once she had recovered. In addition, there were improvements made during that time to the monitoring of fluid intake and to the general support given to Mrs X.
53. The move to the chosen care home met Mrs X’s needs but there is evidence to suggest her needs could equally have been met in another home which was within her personal budget. For that reason, I do not see that payment of the top-up fee should now be waived.
54. It was not fault on the part of the Council to charge the assessed contribution for Mrs X’s care, although the timing of the invoice, shortly after her death, was insensitive.

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Agreed action

55. The injustice to Mrs X of the failure to meet her hydration needs cannot now be remedied. However, significant distress was also suffered by Mr X and Ms A who witnessed Mrs X’s suffering. Within one month of my final decision the Council will offer each of them £1000 in recognition of the distress caused.
56. Within one month of my final decision the Council will take steps to review the way in which placements are arranged for service users like Mrs X whose conditions fall outside the normal parameters.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed this investigation. I find there was fault on the part of the Council and its commissioned care provider: the completion of the actions in paragraphs 55 and 56 will remedy the injustice arising from those faults.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman