Summary: Mr C complained the Council took an unreasonable amount of time to try and come to a decision whether it would be in his mother’s best interests to move back to her own home, rather than stay in her nursing home permanently. We have upheld Mr C’s complaint. As a result, the Council has agreed to provide an apology to Mr C and pay him a financial remedy for the distress he experienced. It will also share the lessons learned with its staff.

The complaint

1. The complainant, whom I shall call Mr C, complained on behalf of his (late) mother, whom I shall call Mrs M. Mr C said he is unhappy about the unreasonable time it took the Council to decide if it would be in his mother’s best interests to move back to her own home, rather than to stay in her nursing home permanently.
2. He said he is also unhappy about the way in which the Council assessed the contribution his mother would have to pay towards her temporary care home fees. The financial assessment first mistakenly said it was for permanent care. The Council then changed his mother’s contributions several times, resulting in a repayment and the Council taking £4,777 from his mother’s bank account on the day the family registered her death, without an explanation or breakdown.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with a council’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)
5. We cannot question whether a council’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)

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How I considered this complaint

6. I considered the information I received from Mr C and the Council. I also interviewed a council officer about the second aspect of the complaint above. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Background legislation and guidance

7. The Care and Support Statutory Guidance says in paragraph:
• 11.7: “Everyone whose needs are met by the council, whether those needs are eligible, or if the council has chosen to meet other needs, must receive a personal budget as part of the care and support plan, or support plan. The personal budget is an important tool that gives the person clear information regarding the money that has been allocated to meet the needs identified in the assessment and recorded in the plan. An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the personal budget will be used is set out in the care and support plan, or support plan. At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option”.
• 11.3: “The personal budget is the mechanism that, in conjunction with the care and support plan, or support plan, enables the person, and their advocate if they have one, to exercise greater choice and take control over how their care and support needs are met. It means: knowing, before care and support planning begins, an estimate of how much money will be available to meet a person’s assessed needs and, with the final personal budget, having clear information about the total amount of the budget, including proportion the local authority will pay, and what amount (if any) the person will pay [and] … having greater choice and control over the way the personal budget is used to purchase care and support, and from whom”.
• 11.5 “The process of allocating the personal budget should be completed in a timely manner, proportionate to the needs to be met”. 

What happened

8. Mrs M was in hospital following a stroke. The family was aware the hospital was planning to discharge Mrs M into a nursing home to decide what care and support she would need. The family also understood that Mrs M may have to go into a nursing home permanently. Mrs M did not have capacity to decide where she wanted to live.
9. Mrs M’s first needs assessment at the end of April 2018 said that Mrs M’s family wanted to consider the option of a live-in carer to support her in her own home, with a direct payment from the Council towards the cost of this support. As such, the Council asked the hospital Occupational Therapist (OT) and Physiotherapist to arrange a home visit to identify what equipment Mrs M would need to enable her to live at home. The Council also asked the family to ask for an assessment from the potential live-in care agency, so the agency could identify if they would be able to meet her care and support needs.
10. The Decision Support Tool assessment completed in May 2018 concluded that Mrs M was not eligible for continuing healthcare funding, and that her needs could be met in a nursing care home setting.
11. A Discharge Planning Meeting in June 2018 was attended by the Council and Mrs M’s family. The record states that:
• The Physiotherapist explained that Mrs M needed two carers to transfer her with a hoist. Staff reposition her every two hours throughout the day and night. She needed two carers to reposition her with a slide sheet and to change her continence pads. She would therefore need two live in carers. According to the Physiotherapist, Mrs M’s chances of improving further were very slim.
• Mrs M’s family said they would like the Council to explore the possibility of caring for Mrs M in her own home through a direct payment and a live/in carer. The family believed her chances to recover would be better in her own home environment. The family said they believed this is what Mrs M would want.
• The family said they contacted a live-in care provider who said that some transfers could be managed by only one carer with a hoist.
• The family was aware that Mrs M’s personal budget may not be enough to cover the full cost of her care at home, which meant the family would have to pay for the difference (a ‘top up’).
• The other option would be for Mrs M to be discharged to a nursing home with 24-hour support and registered nurses on site.
• The OT would arrange a home visit to explore the possibility of facilitating a discharge for Mrs M to her own home.
12. The Council carried out a needs-assessment, which determined that Mrs M’s needs should be met in a nursing home. This meant, her personal budget would be £27,522 if she would remain in the nursing home, which would have been enough to meet her needs in the nursing home.
13. Even though Mr C regularly asked the Council what his mother’s personal budget would be if she would receive care at home, it took until May 2019 before the Council said it was £27,522. The Council has since acknowledged that this figure was incorrect. It has told me that it first needed to calculate the total cost of Mrs M's care package in the community, before it could provide a personal budget.
14. The Hospital OT assessed Mrs M’s home in June 2018 and identified it was not wheelchair accessible. Furthermore, Mrs M would not be able to access her bathroom, bedroom and toilet. As such, Mrs M would have to use pads and would not be able to leave her house anymore if she would return. Mr C says the hospital OT did not share the outcome / report of this assessment.
15. A Mental Capacity Act assessment concluded that Mrs M did not have capacity to decide where she wanted to live. As such, the Council immediately requested an Independent Mental Capacity Advocate (IMCA) at the end of June 2018 to support Mrs M and said it would organise a best interest decision meeting to decide where Mrs M should live. In the meantime, Mrs M was discharged into a nursing home at the end of June 2018.
16. At the time, in addition to the need for two carers throughout the day and night, Mrs M also needed a specially trained worker to administer subcutaneous fluids during the night (to ensure she received enough fluids).
17. The Council organised the best interest meeting for the end of October 2018. However, it had to postpone this by one month, due to the availability of family members and other participants. The record of the meeting states that:
• Mrs M’s family wanted her to return home and said it believed this is what Mrs M would have wanted and would be best for her.
• The OT raised concerns around moving and handling and recommended that Mrs M needed two carers for all transfers and repositioning as she had limited ability to participate in repositioning.
• It was agreed the OT should complete an assessment of Mrs M, together with the homecare provider identified by Mr C, to establish if it would be possible and safe for only one carer to support Mrs M with repositioning and transfers.
• Mrs M was no longer having subcutaneous fluids at night. Her GP said these had not been needed for some time, but the family had insisted to continue this.
• Once the agreed actions had been completed, the Council would arrange another best interest meeting as soon as possible to decide if it would be in Mrs M’s best interests to return home.
18. Mr C’s care provider did not join the OT’s manual handling assessment in December 2018. However, the OT concluded that Mrs M could be supported by one experienced or trained carer, because she was able to follow simple instructions and assist during the assessment. Mr C says the Council did not share the outcome / report of this assessment.
19. The advocate appointed to support Mrs M, reported in December 2018 that:
• Mrs M did not attempt to interact with other residents. However, the home manager felt Mrs M was getting a lot of social stimulation at the home as she could people watch and there were activities going on.
• The manager of the home felt Mrs M had reached her optimum health following her stroke, as she had not improved further.
• Mrs M’s level of supervision within the home was in her best interests to ensure her safety and well-being.
• Mrs M never indicated what her wishes were regarding where she would live permanently. However, the advocate was concerned about the time it was taking to make a best interest decision.
20. Once it was established in December 2018 that Mrs M’s care could be delivered by one carer only, the prospect of Mrs M going home became more financially possible. However, the OT’s line manager said more would need to be done before a best interest decision could be made, including:
• “Carry out an up to date needs assessment to work out the level of support and hours Mrs M would need, and the amount this would cost. This would then result in a personal budget”.
• “Discuss the case at the Risk Enablement Meeting (REM) to look at risks and how these would be managed”.
21. The REM meeting in January 2019 identified the following risks in relation to homecare: lone working of the live-in carer, working hours due to Mrs M’s significant 24-hour care and support needs; medication; skin integrity; manual handling; swallowing; the impact of a move away from the home where she is settled; and the risk of having to move again back to the care home. As such, the following information would need to be collected before a best interest meeting could be organised:
• An indication how long it would be to provide the recommended equipment and adaptations. This would have to be assessed by a Health and Social Care (HAS) OT.
• An understanding from a medical perspective about any likely deterioration in Mrs M’s condition, which could result in needing a second carer soon. The social worker only requested this from the GP in April 2019.
• Information from the care home about Mrs M’s needs over a 24-hour period, what her day looked like, how much time carers were spending at each intervention, what was happening in between, and how long she was safe to be left alone.
22. One week later, the social worker’s line manager added the following to the list:
• To ask the OT if Mrs M would still be able to assist with transfers when she was tired or unwell, or if she would need a second carer then.
• Establish how a registered nurse would be able to continue to provide oversight of Mrs M’s care once she has moved out of the nursing home.
23. Since then:
• The social worker asked the nursing home in February 2019 to keep a 24-hours observations chart. The social worker checked the information the home had collected in early-March and early April. However, it took until early May 2019 before the information provided was sufficiently detailed.
• A further needs assessment was completed early-April 2019, which found Mrs M’s needs had not changed since April 2018.
• The Council told Mr C on 20 May 2019 that his mother’s personal budget would be £27,522. This amount would be available to her if she would move back home. Mr C told the Council in June 2019 that the average cost of his mother’s homecare would be £40,000 per year. As the family was not able to pay the difference, this made it clear that returning home was no longer an option. As mentioned before, the Council has since confirmed that this figure was not correct.
24. Mr C said the Council failed to explain to him how it had arrived at the amount for his mother’s personal budget.
25. The Council says that from the outset, Mrs M was assessed as having complex physical and/or mental health needs that had a critical impact on her ability to live her life and she needed support over a 24-hour period. Where a person is assessed as having complex health and social care needs over a 24-hour period, the Council would usually say those needs are best met within a care home for several reasons. The reasons for this include: the level of risk to both the person and care worker and oversight needed to ensure their safety and wellbeing.
26. When it became clear in early June 2019 that Mrs M’s condition was further deteriorating and she was reaching her end of life, Mr C contacted his GP to arrange his mother’s move back to her home, where she passed away a day later.

Analysis

27. Based on Mrs M’s needs assessment in April 2018, the Council concluded that her needs should be met in a nursing home. This meant her personal budget would be 27,522 if she was to remain in the nursing home.
28. The Council says it needed to calculate the hours of homecare support Mrs M needed to determine her personal budget. Mr C has told me that it was always his understanding, based on the information he received from the Council, that the Council would only pay for a maximum of four visits per day and would not pay for overnight care. However, the Council has told me that it does not have a rule that says it will not/never pay for overnight care. Nevertheless, it means the Council failed to explain to Mr C, in a way that he could understand, how it would calculate the personal budget in this specific case. This is fault.
29. There were significant delays in determining if it would be in Mrs M’s best interest to move back into her own home, in calculating how much this would cost, and in providing a personal budget (amount) that the Council would be willing to allocate for that.
30. There were several avoidable delays throughout this case:
• The Council explained that once a person has reached their rehabilitation potential, a HAS OT will assess the need for specialist equipment and adaptations. The Physiotherapist said in June 2018 that Mrs M’s chances of improving were very slim. This meant her case should have been transferred from the community OT to a HAS OT much sooner. Furthermore, the home manager confirmed in December 2018 that Mrs M was not improving and the need for a HAS OT was mentioned again in January 2019. However, it took until April 2019 before one became involved. This is fault.
• Despite taking into account what needed to be done to organise the first best interest meeting, I found there was still an unreasonable delay in organising this, which took four months.
• The REM meeting decided in January 2019 that:
1. It would be important to get a medical perspective about any likely deterioration in Mrs M’s condition. The Council only asked the GP for this in April 2019. This is fault.
2. The Council should get information from the care home about Mrs M’s needs over a 24-hour period. However, it took until May 2019 before it obtained this information in sufficient detail. This is fault.
31. Furthermore, when the Council finally told Mr C what his mother’s personal budget was, it failed to explain to him how it had arrived at this amount. It has also since acknowledged it had calculated the amount incorrectly. This was both fault.
32. Overall, there was a lack of clarity internally, and towards the complainant, as to how the personal budget would be set.
33. Mr C has told me that, if the above delays had been avoided, he would have been able to appeal the £27,000 personal budget allocated.

Financial assessment

34. The Council has acknowledged it made several mistakes with regards to calculating Mrs M’s contribution. It told me:
• The first assessment in June 2018 failed to include Mrs M’s Pension Credit. The Council included this in July 2018, which changed her contribution.
• The original referral that the finance team received stated incorrectly that Mrs M’s placement was permanent. As such, the financial assessor did not consider if Mrs M still had to pay any ongoing costs in relation to her property. The Council eventually included these costs in September 2019, which changed her contribution.
• The financial assessment failed to include a disregard of savings credits. The Council included these in April 2020.
35. The Council eventually arrived in April 2020 at a contribution that was correct and it subsequently backdated everything to the June 2018 when Mrs M’s stay at the home started. The Council calculated that Mrs M’s outstanding care home fees were £4,777, which were subsequently taken out of her bank account.

Analysis

36. The Council has acknowledged that it made several mistakes in calculating Mrs M’s contribution and that it should have first informed Mr C how it calculated the outstanding balance, before it was taken out of the account.

Agreed action

37. I recommended that, within four weeks of my decision, the Council should:
• Apologise to Mr C for the faults identified above and pay him an amount of £400.
• Share the lessons learned with the Council’s adult social care and finance teams, including that the Council does not have a rule that says it will never cover the cost of overnight care.
38. The Council has told me it has accepted my recommendations.

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Final decision

39. For reasons explained above, I upheld Mr C’s complaint.
40. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman