Summary: We found fault by a Council and ICB as they failed to provide Mrs R with care and support to meet her assessed needs. The Council and ICB will apologise to Mrs R’s son, Mr P, and pay him a financial remedy in recognition of the distress this caused him. We found no fault by the Trust with regards to the care provided to Mrs R by the District Nursing service.

The complaint

1. The complainant, who I will call Mr P, is complaining about the care and support provided to his mother, Mrs R, by Sefton Metropolitan Borough Council (the Council), Mersey Care NHS Foundation Trust (the Trust) and NHS Cheshire and Merseyside Integrated Care Board (the ICB).
2. Mr P complains that the Council, Trust and ICB failed to put appropriate support in place to meet Mrs R’s needs, despite his repeated prompting. He says this did not change even when Mrs R became eligible for Fast Track Continuing Healthcare (CHC) funding. Mr P says Mrs R remained without care until her death.
3. Mr P says this caused him severe anxiety and depression. He would like to receive a financial remedy in recognition of the ordeal he and Mrs R endured due to the failure of the Council, Trust and ICB to put appropriate care in place.

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The Ombudsmen’s role and powers

4. 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).
5. 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.
6. 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

7. In making my final decision, I considered information provided by Mr P and discussed the complaint with him. I also considered relevant information and documentation provided by the Council, Trust and ICB. This included copies of the care records. Furthermore, I considered relevant law and guidance. I invited comments from all parties on my draft decision statement and considered the responses I received.

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What I found

Relevant legislation and guidance

Care Act 2014

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. The assessment must consider the adult’s needs and how they impact on their wellbeing, as well as the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
9. If a council identifies that a person has eligible care needs, it has a legal duty to provide or arrange care and support to meet these needs, subject to certain conditions.
10. The council has a responsibility to provide a care and support plan. The care and support plan should record what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Continuing Healthcare funding

11. Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’.
12. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (the National Framework) is the key guidance around CHC. It states that where an individual is eligible for CHC funding, the relevant ICB is responsible for care planning, commissioning services and case management. In Mrs R’s case, this was NHS Cheshire and Merseyside Integrated Care Board.
13. The National Framework makes provision for a Fast Track Pathway. This is a process for individuals with a rapidly deteriorating condition who may be approaching the end of their life. It is intended to identify individuals who need access to CHC quickly and prevents the need for a full assessment process.

What happened

14. Mrs R had a diagnosis of dementia. This led her to become confused at times and meant her capacity fluctuated. She also had Chronic Obstructive Pulmonary Disease (COPD – the name for a group of lung diseases causing breathing problems). In 2021, Mrs R was living at home with Mr P.
15. In early October 2021, Mr P contacted the Council to request as assessment for Mrs R. He reported that Mrs R’s mobility had deteriorated and that she was struggling to climb the stairs.
16. On 19 October, a Council officer visited Mr P and Mrs R at home. She noted that Mrs R had only very limited mobility and had been confined to her bed for the past four weeks as she was unable to negotiate the stairs.
17. An Occupational Therapist (OT) from the Council visited Mrs R at home on 1 November. The OT assessed Mrs R as having some potential for rehabilitation. She ordered a commode and hospital bed with additional equipment to help Mrs R transfer. The OT also recommended the installation of a lift to allow Mrs R to access the ground floor of the property.
18. A social worker visited Mrs R on 5 November to complete a Care Act assessment. She concluded Mrs R had eligible needs in several of the care domains set out in the Care Act 2014. These included managing and maintaining nutrition, managing personal hygiene and managing toilet needs. The social worker recommended a care package of two care visits per day in the morning and evening to support Mrs R with her personal care.
19. The social worker made a referral for Mrs R to the Council’s commissioning team on 9 November.
20. On 11 November, a Computed Tomography (CT) scan revealed Mrs R had cancer.
21. By 16 November, the commissioning team had still been unable to identify a care provider that could provide Mrs R’s care package. As a result, a social worker asked Mrs R’s GP to refer her to the Trust’s Integrated Community and Reablement Assessment Service (ICRAS) to see whether it could support her as an interim measure.
22. The following day, the ICRAS confirmed it had no capacity to support Mrs R at that time. A Council social worker made further referrals to the ICRAS on 18 and 24 November. However, the ICRAS still did not have capacity to provide support.
23. The Council’s commissioning team continued to send out referrals to contracted care providers twice daily, without success. In the meantime, Mrs R was receiving weekly visits from the Trust’s District Nursing service to provide wound care for a pressure ulcer on her heel and repeat vitamin injections.
24. An OT assessed Mrs R again on 25 November. The OT concluded that Mrs R now required two carers to support her to transfer and mobilise safely. The social worker subsequently increased Mrs R’s care package to three daily care visits from two carers.
25. On 2 December, the social worker completed a CHC checklist. This found Mrs R may be eligible for CHC funding. A District Nurse completed a Fast Track application on 4 December.
26. In the meantime, the Council arranged a for a gantry hoist to be delivered and installed at Mrs R’s home to assist her with transferring from her bed.
27. Mrs R’s eligibility for Fast Track CHC funding was confirmed on 6 December as she was considered to be nearing the end of her life. At this point, responsibility for meeting her care needs passed to the ICB.
28. On 7 December, a care provider expressed interest in providing the care package. However, on 9 December, the care provider confirmed it would be unable to do so after all.
29. Another care provider agreed to take on the care package on 16 December, with care visits due to start the following day.
30. However, Mrs R died on 16 December.
31. Mr P subsequently complaint to the Council and ICB. Both organisations acknowledged they had failed to provide a care package to meet Mrs R’s assessed needs. The Council also offered to make a small payment to a charity of Mr P’s choice. However, Mr P decided to approach the Ombudsmen.

My view

32. The Care Act completed by the Council on 5 November noted that Mr P was Mrs R’s main carer and supported her with most activities of daily living. This included meal preparation, cleaning and medication administration. The assessment noted that Mr P “wants to preserve [Mrs R’s] dignity and feels that formal support is required in the mornings and at bed time to help her get washed, dressed, use the commode if require[d] and change incontinence pads.”
33. The assessing social worker concluded that Mrs R did have eligible needs under the Care Act 2014. From this point, the Council had a statutory duty to meet these needs.
34. The case records show that, between 9 November and 6 December, the Council’s commissioning team sent referrals out to contracted care providers twice daily without success. In addition, the Council attempted to arrange interim support through the ICRAS. This was also unsuccessful as that service did not have capacity to support Mrs R.
35. The evidence I have seen suggests the Council made every effort to identify a care provider that could support Mrs R. However, its efforts to do so were hampered by the ongoing COVID-19 pandemic and a wider shortage of carers nationally. Nevertheless, the Council failed to provide Mrs R with the care and support to which she was entitled. This was fault by the Council.
36. When Mrs R’s eligibility for Fast Track CHC funding was confirmed on 6 December, responsibility for providing her care passed to the ICB. The ICB initially referred the care package to providers in Mrs R’s local area. However, when this was unsuccessful, the ICB’s procurement team made the care package available to care providers in a wider radius. The ICB eventually (on 16 December) identified a care provider that was willing to provide Mrs R’s care package. However, Mrs R died before the care could commence.
37. As with the Council, the evidence suggests the ICB made appropriate efforts to source a care provider for Mrs R. Again though, the ICB ultimately failed to provide the care Mrs R needed. This was fault by the ICB.
38. This meant Mrs R went without care and support to meet her assessed needs from 5 November to her death on 16 December. This was extremely distressing for Mr P, who had no alternative but to provide the required care at what was already a very difficult time. This included personal care, which compromised Mrs R’s dignity. This situation was compounded as Mrs R neared the end of her life and her care needs increased. This is because Mrs R required the assistance of two people to transfer safely. This placed Mr P at risk of harm as he was required to provide care unassisted.
39. Mrs R did receive weekly visits from the Trust’s District Nursing service during this period. This was primarily to provide care for the pressure ulcer wound on Mrs R’s heel and ensure she received regular vitamin B12 injections.
40. The clinical records show Mr P contacted the District Nursing service several times for assistance when Mrs R was in pain. The evidence I have seen suggests the District Nurses were responsive to Mrs R’s needs and provided prompt assistance where required. I found no fault by the Trust with regards to the care provided to Mrs R by this service.

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Agreed actions

41. Within one month of my final decision statement:

• the Council will write to Mr P to apologise for its failure to provide Mrs R with care to meet her assessed needs between 5 November and 6 December 2021. The Council will also pay Mr P £800 in recognition of the distress this caused him; and
• the ICB will write to Mr P to apologise for its failure to provide Mrs R with care to meet her assessed needs between 6 and 16 December 2021. The ICB will also pay Mr P £200 in recognition of the distress this caused him

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Final decision

42. I found fault by the Council and ICB with regards to their failure to provide Mrs R with appropriate care to meet her needs.
43. I found no fault by the Trust with regards to the care provided by the District Nurses.
44. I am satisfied the actions the Council and ICB have agreed to undertake represent a reasonable and proportionate remedy for the injustice arising to Mr P from this fault.
45. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman