• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to promptly arrange a residential placement and related matters. We have found fault with some of the Council’s actions, primarily around poor communication with Mr X’s family. To remedy the distress and frustration caused by this fault, the Council has agreed to apologise, make payments to Mr X and his daughter and take action to improve its service.

The complaint

1. Mr X complains about the Council failure to arrange suitable residential accommodation and related matters. In particular, he complains the Council:
   • 1. failed to involve his family when carrying out an assessment for Continuing Health Care funding;
     2. failed to involve his family when carrying out a care needs assessment;
     3. divulged sensitive information to his care agency. This led to a chaotic transfer to a new agency;
     4. failed to contact his preferred care home when requested;
     5. failed to promptly reassign his case to a new social worker;
     6. failed to properly support a move into extra-care housing in another council area; and
     7. failed to respond to several complaints made on his behalf.
2. This has caused significant distress and inconvenience to Mr X and his family.
3. Mr X is represented by his daughter, Ms S in making this complaint. Ms S holds Lasting Power of Attorney for Mr X.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

6. 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)

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How I considered this complaint

7. I discussed the complaint with Ms S and considered the written information she provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint.
8. Ms S and the Council had the opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law

Care and support needs

9. The Care Act 2014 gives councils a legal duty to provide a care and support plan when a person has two or more eligible needs.
10. A council carries out a care needs assessment to decide whether an individual has care needs that it must meet. It then completes a care and support plan which sets out how it will meet those needs.

Review of Care and Support Plans

11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review.
12. The Statutory Guidance says the review process must involve the person needing care and also the carer where feasible.
13. In all cases, the method of review should, wherever reasonably possible, be agreed with the person and must involve the adult to whom the plan relates, any carer the adult has and any person the adult asks the authority to involve. The local authority should take all appropriate measures to ensure their involvement. 

National Health Service (NHS) Continuing Healthcare

14. NHS Continuing Healthcare (CHC) is a package of care arranged and funded solely by the NHS for a person aged 18 or over who is found to have a primary health need. (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
15. CHC is free. But, to receive this, a person must first be assessed by a Clinical Commissioning Group (CCG) as having a primary health need and eligible for CHC.
16. A council must refer a person, who it appears may be eligible for CHC, to the relevant CCG. The decision about eligibility for CHC is made by the CCG. But a council may complete a CHC checklist to indicate whether a person meets the threshold for a full assessment of eligibility.

Extra-care housing

17. Extra-care housing is purpose-built housing with care primarily aimed at older people to promote independent living. The occupiers live in self-contained properties and have access to care and support 24 hours a day either on site or on call.

What happened

18. The following is a summary of the key events relevant to this complaint. It is not intended to provide a detailed account of everything that happened.
19. Mr X has several age-related health conditions, including dementia. Until May 2023 he lived in sheltered housing with a package of care funded by a direct payment. Mr X employed a personal assistant (the PA). In late 2022, Mr X’s family raised safeguarding concerns about the PA. She was dismissed and the Council commissioned a care agency to provide Mr X’s support plan. The safeguarding enquiry established Mr X lacked capacity to make certain decisions.

The move to residential care

20. In October 2022, the Council carried out a care needs assessment. This recommended Mr X should move to residential care, in part to avoid the potential for further financial abuse by the PA. Ms S made enquiries of residential homes nearer to Mr X’s other family members. She found these were either too expensive or had no vacancies.
21. Instead, Mr X’s family wanted Mr X to move to another council area into an extra-care facility. After some discussion, the Council agreed to assist and contacted two other councils to explore extra care options in their areas.
22. Both councils explained Mr X was not eligible for an extra-care placement because he was not a local resident. These decisions have been the subject of separate complaints and are outside the scope of this investigation.
23. Further assessments were carried out in January and March 2023. Ms S says she was denied the opportunity to be involved with the last assessment despite making it clear she wanted to be.
24. Ms S made further enquiries of several residential care homes. She says she asked the Council to assist with a move to Home S in December 2022 when it had places available. The cost of a room at Home S was more than the Council’s standard rate for residential care.
25. In March 2022, following an enquiry by the Council, Home S said it was unable to take Mr X because it was full.
26. The Council then agreed to support an extra-care placement its area. A place was identified. Mr X was unable to move in straight away because some specialist equipment was needed.
27. In May 2023, Mr X was admitted to hospital due to a fall. The hospital advised the Council he should not return home but should be discharged to a care home for his own safety. He moved to Home T in late May 2023.

CHC funding

28. Ms S asked the Council to support an application for CHC funding following the October 2022 assessment. A checklist was completed by the social worker. However, the form was incomplete and the Council was asked to provide more information.
29. As this was not done within three months from the original request, the CCG said the form needed to be resubmitted.
30. The CCG decided in April 2023 that Mr X was only eligible for funded nursing care, not CHC.

The care agency

31. Following the dismissal of the PA, the Council arranged for a care agency (the Agency) to provide care for Mr X at home.
32. In March 2022, Ms S was concerned that carers were arriving late, or not at all, and that the care was inadequate in some areas. She emailed the Council about this. The Council contacted the Agency and attached a copy of Ms S’s email for information. In response, the Agency cancelled Mr X’s contract with immediate effect. Ms S says this prompted an avoidable, chaotic transfer to another agency.

The complaint

33. From December 2022, Ms S made several complaints about how the Council managed Mr X’s move to residential care. I have summarised the complaints I have investigating at paragraph 1.

The Council’s complaint response

34. In the response to Ms S’s complaints, the Council made the following points.

• It was not responsible for the decisions of other councils to refuse Mr X’s request for extra-care in their areas. Nor was the Council obliged to challenge these decisions on behalf of Mr X.
• In any event, care needs assessments had not recommended extra-care as a long-term option.
• The Council did not consider Mr X was eligible for CHC funding but had made the referral only in response to Ms S’s request.

35. In response to the Ombudsman’s enquiries, the Council has:

• accepted the case records are unclear as to whether the Council agreed to pursue both residential and extra care at the same time. It has acknowledged some time may not have been lost from December 2022, had the Council’s position had been clearer as to the best way of meeting Mr X’s assessed needs;
• said it was not asked to source a bed at Home S, until March 2023, not December 2022 as claimed by Ms S; and
• accepted it did not tell Ms S a new social worker would not be allocated straight away.

36. The Council has also accepted it did not log and respond to some of Ms S’s complaint when it should have done.

Analysis

37. I will consider Mr X’s separate areas of complaint below.

Failure to involve Mr X’s family when carrying out an assessment for CHC funding

38. The records show Ms S participated in the completion of the CHC checklist in October 2022. Although this recommended a full assessment, this did not necessarily mean Mr X was eligible for CHC funding.
39. A problem arose because the form originally submitted to the CHC was incomplete. By the time the Council went to provide this information, three months had passed and a new CHC checklist had to be submitted. There is no evidence Ms S was told about this. Nor was she made aware that the care needs assessment carried out in March 2023 now stated, “the responses given within this assessment indicate that a referral for full assessment for CHC funding is NOT necessary”. This was a change to what had been stated on the previous two assessments.
40. Despite the Council’s records being disappointingly unclear about what process was followed after it was told a new checklist was required, it is probable a request for additional health funding was only made after Mr X’s admission to hospital.
41. This issue of affordability was clearly an important and understandable consideration for Mr X's family. Based on the original checklist, Ms S was under the impression there was a strong possibility her father’s care would be free. The reality was that this was highly unlikely given Mr X’s health and independence at that time.
42. The Council should have been more transparent about this and told Ms S the CHC recommendation had changed in March 2023. This was fault.
43. Although I do not believe the decision by the CHC would have been any different had the forms been submitted properly in November 2022, I am satisfied Ms S suffered an injustice in the form of distress and frustration that requires a remedy.

Failure to involve Mr X’s family when carrying out an assessment in March 2023

44. The Council informed Ms S it needed to carry out another assessment in March 2023 because a move to extra care within the borough was now being considered. Ms S asked to be involved in the assessment as she had done previously. The assessment went ahead without her knowing about it.
45. The case records show Ms S was asked for her availability by Mr X’s social worker (Officer J). After missing a call from Officer J, Ms S emailed her manager asking for Officer J to call her. There is no record of this happening. Instead, Officer J went to visit Mr X together with a member of staff from Mr X’s sheltered housing.
46. The issue here is that Ms S made it clear she wanted to participate in the assessment. The Care Act guidance is clear that assessments/reviews should involve family wherever possible.
47. It is also significant that Mr X had been assessed as lacking capacity and as Ms S was her father’s Lasting Power of Attorney, she should, at the very least, have been told the date of the assessment. There is no evidence in the case records that the Council tried to contact Ms S or her sister about this. I consider this to be fault. Although I do not believe the outcome of the assessment would have been different had Ms S attended, I am satisfied she suffered distress and frustration that requires a remedy.

Sharing of sensitive information to Mr X’s care agency

48. In response to Ms S’s complaint, the Council has accepted it was not ideal to have copied Ms S’s email to the Agency. I agree, a more diplomatic approach would have been preferable.
49. However, I do not consider this to be sufficiently serious to make a formal finding of fault. Ms S had raised a number of concerns, and these had to be addressed one way or another. On balance, I believe the outcome would have been the same had Ms S’s concerns been relayed more sensitively. The Agency’s response strongly suggested it felt the relationship between Mr X’s family and themselves had already broken down as a result of the issues Ms S had raised with the Council, regardless of how this was communicated.

Failure to contact Mr X’s preferred care home

50. Ms S says her sister asked the Council’s brokerage team to contact Home S in December 2022. In contrast, the Council says Ms S first asked the Council to make enquiries of Home S on 3 March 2023.
51. As I have not been provided with any records from the brokerage team, based on what Ms S has said about Home S confirming it had places available, on balance, I have based my decision on this request having been made.
52. This delay in contacting the preferred care home is fault.
53. However, the injustice arising from this fault is limited. Just because the home had a room available in January 2023, did not necessarily mean Mr X would have been accepted, especially as it ultimately said it would not accommodate him. There was also the issue of the fees charged by Home S being potentially prohibitive.
54. Taken as a whole, it is too speculative to say Mr X missed out on a place at Home S because of the delay by the Council. For this reason, my remedy is restricted to the distress and frustration to Mr X and Ms S caused by the uncertainly about where he would be moving to.

Failure to promptly allocate a new social worker

55. Councils are not obliged to change personnel upon request. In making this type of decision, councils have to take into consideration many factors including workload capacity and the needs of the service user.
56. In response to my enquiries, the Council has accepted Ms S asked the Council to allocate a new social worker in April/May 2023.
57. The Council has also explained its rationale for postponing the transfer to another social worker until Mr X’s next review was completed by Officer J. This was a management decision, based on the individual needs of the service user. I do not criticise the Council for this approach.
58. The fault here is therefore limited to its failure to notify Ms S of this decision. I accept this has caused some distress to Ms S because she felt her request had been ignored. This injustice requires a remedy (below).

Failure to properly support a move into extra-care housing in another council area

59. Despite the Council’s October 2022 assessment recommending that Mr X would be best placed in residential care, his family’s preference was an extra-care setting in another area. I do not agree with Ms S’s assertion (and main focus of this part of her complaint) that it was the Council’s responsibility to advocate for her father in negotiations with other councils, presumably to achieve a different outcome.
60. The case records show the Council made reasonably prompt referrals to two other local authorities about this. The law states where a person is seeking to move into another authority’s area and will need a home care package (as would be the case with a move into extra-care), is it the responsibility of the original authority to put the new authority on notice in advance of the move. This is what happened here and so there was no fault up to this point.
61. However, it is clear from the case records that there was ongoing confusion and uncertainty about different care options, as well funding and responsibility issues between several parties. While I accept the Council’s actions were driven by its well-intended desire to accommodate the family’s wishes, the case was allowed to drift for far too long without any realistic options being put forward. This was fault.
62. To the Council’s credit, this delay has been acknowledged in its response to my enquiries (paragraph 35 above). While I welcome this, it is clear Mr X and Ms S suffered an injustice because no credible residential care options were put forward when it became clear Mr X was not eligible for extra-care in another area. My assessment is there had at least two months of avoidable distress uncertainty as to where Mr X would move to. This uncertainty is injustice that requires a remedy.

Failure to respond to several complaints made by Ms S

63. In response to my enquiries, the Council has accepted it failed to log and respond to several complaints made by Ms S. This is fault. I am satisfied that the Council’s poor complaint handling has added to Ms S’s frustration. This injustice requires a remedy.

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Agreed action

64. The Council has agreed to take the following action within four weeks from the date of my final decision.
    • 1. Apologise in writing to Mr X and Ms S for the faults I have identified in this decision statement.
      2. Pay Mr X £300 as a symbolic payment to acknowledge his distress caused by the faults I have identified.
      3. Pay Ms S £300 as a symbolic payment to acknowledge her distress caused by the faults I have identified.
      4. Pay Ms S £100 as a symbolic payment to acknowledge her distress, time and trouble caused by the fault in the Council’s complaint handling.
      5. Reflect on the issues raised in this decision statement and identify any additional areas of service improvement, particularly around communication when several care options are being considered. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I have found the Council to be at fault and the Council has agreed to action my recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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