Decision Date: 16th August 2019
Mr N complained on behalf of his uncle, Mr X.
Mr X was in his 90s and until the beginning of 2018 lived alone without a care package. He had a fall in January 2018 and then another three days later, which resulted in him being admitted to hospital.
An email to the Council from the ambulance service stated “patient was on the floor for 10 hours when he last fell and when this happened the house nearly burnt down… patient isn’t safe to be at home”.
On 6 February, a Council social worker carried out an assessment of Mr X in hospital.
Although Mr X had previously declined care packages, the social worker had concerns over his living conditions. She emailed the housing association the same day about the state of Mr X’s home; issues included problems with damp, no central heating, a requirement for new locks and re-fixing of the carpets.
On the 7th February the social worker visited Mr X in hospital again. The staff nurse for the ward stated she considered Mr X had showed signs of confusion overnight but had capacity to make the decision to decline support for personal care at home.
The social worker phoned the hospital on 8 and 9 February for updates. The notes showed that Mr N was not happy to let Mr X go home without a package of care and would not hand over the keys to Mr X’s home.
Notes from the 13 February showed that the social worker spoke with Mr X’s discharge liaison officer and his occupational therapist, who were both of the opinion that Mr X did not have reablement potential. They stated that his needs would only increase due to a long history of self-neglect. Therefore the social worker stated that she did not consider Mr X suitable for reablement, as there were long term issues that needed to be addressed.
The morning Mr X was due to be discharged, (14 February), the social worker carried out an assessment. It was recorded that Mr X “was alert and did have capacity and said he was willing to have some care to support him but only one call each morning and one shopping call per week … nephew was not present … I explained there is a contribution towards care and he will be assessed, [Mr X] said this was ok and he has… savings”.
Mr N telephoned the hospital as he was unhappy with the amount of care visits Mr X would receive as a result of the assessment. The social worker told Mr N that because Mr X was deemed to have capacity, the Council could not insist on additional care. She did however state that she would reassess Mr X and make sure all parties could be involved once he was home. Mr N collected Mr X that afternoon.
Shortly after arriving home, Mr X had another fall and was readmitted to hospital. Mr N told the social worker Mr X could not cope at home. The social worker’s notes showed “I asked [Mr X] would he consider a short stay… to enable [me] to get a clear view of his needs and what level of support he may require at home… [Mr X] said ‘yes’ and said he would like to return home after this. I explained that there is a cost, but the finance team would let [Mr X] know what his contribution would be. [Mr X] said he understood.”
Mr X went to a residential home on 15 February for a short stay. Towards the end of February, the social worker began to make plans for his return home. The case notes stated that he would need four visits a day for support with meals, medication, cleaning and keeping safe.
The social worker spoke to the occupational therapist (OT) who had carried out a home visit. The OT said some work needed to be carried out and some equipment installed before it would be safe for him to return. Therefore the social worker said Mr X needed a further two-week short stay whilst the work was carried out.
Between 1 and 12 March, an officer from the Council’s Benefits and Assessment Office tried to contact Mr N about Mr X’s financial assessment. On 12 March, Mr N left the social worker a message which said he refused the financial assessment for Mr X because the care he received when he left hospital, and was continuing to receive, was classed as intermediate care and so should be free.
The social worker explained that reablement or intermediate care was not appropriate for Mr X when he was discharged from hospital but they could consider this at a later date when he returned home from the residential home. Mr N disagreed and said that under government guidance Mr X had received intermediate care. The social worker asked Mr N to arrange a needs assessment for Mr X whilst the matter was resolved.
Mr X was re-assessed for care needs on 20 March. Mr N and his cousin were present. All, including Mr X, agreed it was not safe for him to return home and he would remain as a permanent resident at the residential home.
On 28 March 2018, Mr X sold his car for £2,925. This money was paid into his current account.
Mr N was unhappy with the Council’s actions and made a complaint on 2 April 2018.
The Council carried out Mr X’s financial assessment on 4 April. Mr N said he told the assessor that Mr X sold his car in March.
The assessment found
- capital (savings) of £19,073. This included the sum of £2,925 Mr X received for his car;
- weekly income comprising of an annuity of £12.17 and pension of £148.74.
The Council charged Mr X £139.47 a week for his care.
On 26 July, the Council sent Mr N an invoice for Mr X’s contribution to his costs backdated to 15 February. Mr N contacted the Council and said he should not have to pay this because he was disputing whether some of the care costs for that period should have been cancelled because the service should have been free.
The Council responded to Mr N’s complaint on 3rd August. It said it was clear from the events which took place that the care Mr X received when he was discharged from hospital was not intermediate care. Mr N said he did not receive this response.
The Council sent numerous reminders to Mr N about the overdue payment, which Mr N refused to pay until his complaint had been resolved. The Council ended up hand delivering a copy of its complaint response (dated 3rd August) on 27 September. As Mr N had received a complaint response, the Council also wished to arrange a new financial assessment.
Mr N remained unhappy and complained again on 5 November.
The Council responded on 13 November. It said Mr X had capacity at the time to make decisions about his care and the social worker advised him he would have to make a financial contribution. The Council did not uphold Mr N’s complaints and referred Mr N to the Ombudsman.
Mr N complained again on 28 January 2019. He said the Council had wrongly calculated Mr X’s financial contributions and requested a new assessment. He provided the Council with no details of why he thought the contributions were incorrect. The Council responded on 7 February and said the calculations were correct. It referred him again to the Ombudsman. It carried out a further financial assessment in June 2019 and these calculations were in line with the assessments it carried out in 2018.
Mr N remained unhappy and complained to the Ombudsman. At the time of the complaint none of the care home invoices had been paid since Mr X’s care began on 15 February 2019. Mr X owed in excess £10,000.
What was found
First six weeks of care
The Ombudsman found that there was no fault in the way the social worker made the decision that Mr X was not eligible for reablement or intermediate care for the period 15 February to 29 March 2018.
The case notes showed the social worker considered whether Mr X met the criteria to receive reablement or intermediate care. They assessed him and considered his recent history and the fact his care needs were likely to increase. The social worker also consulted with staff at the hospital who had been involved with Mr X’s case. They decided he was not eligible at that time for reablement or intermediate care under the criteria.
The LGO found the Council was at fault for basing Mr X’s capital on incorrect figures. The Council based their assessment on Mr X having capital of £19,073 from 15 February. However, Mr X did not have this figure in his account until after 28th of March, after his car was sold. For the period of 15 February to 28 March, Mr X paid around £120 in total in tariff income. If the Council had not taken the sale of the car into account, he would have paid around £48.
However, despite this fault, the LGO considered that Mr X did not experience an injustice because he had failed to pay any of his care costs since he first moved into residential care anyway. The Council has started action to recover the amount Mr X owes towards his care fees.
The LGO recommended that the Council reassess Mr X’s finances to determine his contribution to care costs for the period starting 15 February 2018.
The case notes showed that the social worker considered Mr X’s mental capacity each time a decision was required over his care. They determined he had capacity and this view was supported by the ward staff who provided his care. It was clear the social worker, hospital staff and Mr N wanted Mr X to have more care; however, he consistently refused this.
Because he had capacity, the Council acted in line with legislation and was not at fault for allowing him to make this decision, however unwise they and others thought it to be.
Mr N complained he was not present at the assessments when Mr X was in hospital. Mr N did not have power of attorney at that time and Mr X was deemed to have capacity. The Council was entitled to go ahead with the assessment without Mr N, and Mr N was included in later care and financial assessments. There was no fault in the Council’s actions.
Points for the council and the public, and service user’s relatives
This complaint shows how important motivation and potential for improvement is when a council or an NHS officer is considering whether to allocate re-ablement or intermediate care to a client or patient. Without some evidence that one is likely to be able to generate a saving for the commissioner, in a short time, there is little justification for allocating a service that is itself specialist in nature, and FREE, in the first place. Members of the public and their relatives need to understand that cost benefit analysis is a legitimate consideration informing decision making about scarce public resources, going on behind the exploration of the personal interests of the patient, client or relatives.
It also shines a light on how careful councils have to be in detailing the offer of care that it’s prepared to make, abiding by the legal framework, and in recording the person’s reaction to the offer of care.
If the council doesn’t make the details clear, it will find that it is not able to regard the person as lacking in capacity should it become necessary to take an interventionist step and keep someone in a care home for safety. Clarity about the consequences of refusal of a service is essential, otherwise the person is being denied the chance to assert their capacity in a sensible way.
If the council assumes that the person is capacitated to refuse services, say in a care home, just because they are really desperate or entrenched about staying home, despite clearly unmanageable risks even if an adequate care package were to be put in place, and just because the person can say ‘No, I’m not going’ then the council risks being found to have acted unprofessionally, at the very least. It’s what professional antennae are for: objective judgments about the nature of the apparent decision being communicated.
If the council assumes that the person is refusing home care because they don’t wish to pay the charges, the person may still be entitled to the care. Saying no to paying is not a discharge of the duty to meet the person’s eligible assessed needs. The council can sue the person, and if they are capacitated, at the time, that will not be difficult.
But if the person is capacitously refusing SERVICES, then however unwise, and whatever the concern about risk, the council cannot impose them.
In this case, it seems as if the elderly gentleman was refusing services and could distinguish between the short stay residential offer and services in his own home, which he did not want too much of. That may have been because of the charge, but one cannot tell.
If a person is perseverative, or delusional about the existence of somewhere they can live, or about the state of their home, because they cannot absorb relevant information or cannot believe it or remember it, and cannot compute what is offered, in terms of weighing up the pros and cons of refusing one setting for care, but accepting risk in another, then no reasonable council could find the person to HAVE capacity to be refusing care. Failing to provide it in that sort of a situation could amount to the sort of failure that would make a coroner find fault in the council’s system.
The nephew in this case could have benefitted from some better information about the legal framework, it is suggested. It is true that reablement and intermediate care are free but not all care received upon discharge from a hospital counts as either of these, unless a professional has agreed that that is the case. Relatives do not have rights to be ‘there’ just because they have rights to be involved. They don’t have rights to be told about a capacitated person’s private situation, unless they are a carer (under s9 of the Act) – Mr N probably counted as a carer, but may not have asserted involvement rights in the correct wording.
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The full Local Government Ombudsman report of North Yorkshire County Council’sactions can be found here