Decision date: 12/09/19
Mr N was an elderly man suffering from severe physical and mental health conditions. In September 2016, he moved to Bury to stay with his daughter, Ms N, after his wife requested he leave their marital home as she was no longer able to cope with his needs.
Ms N contacted the Council the day after her father came to stay and asked it to find sheltered accommodation for him. Then, two weeks later, she got in touch again to report an emergency situation. She said that her father could no longer stay with her and now needed more than sheltered accommodation as his condition had deteriorated.
The Council told Ms N that there were no emergency beds available at the time and that Mr N would need to be assessed by a GP in case there were health issues that were eliciting his sudden decline. The GP confirmed that there was nothing out of the ordinary with Mr N or his condition but recommended that the family go to A&E if they were still concerned, which they did.
Mr N was then held overnight at Pennine Acute Hospitals NHS Trust. He was assigned an officer from the ‘Navigator’ service at the hospital which deals with people who are deemed fit for discharge but who may struggle with returning home. The Navigator decided Mr N should be discharged to a residential Dementia respite placement and requested information from the Council regarding suitable homes. The Council subsequently provided the Navigator with two options, where care home A was considerably cheaper than care home B.
In a phone call between the Navigator and Ms N, it was decided that Mr N would go to Care Home B on 28 September. Mrs N took Mr N to the care home herself but upon arrival it was made evident that he was not expected. However, the home assessed him there and then and decided he could stay.
The Council needed to undertake a financial assessment for Mr N to decide how his stay at the care home would be funded. Ms N had several conversations with various social workers about her father’s options, including:
- Whether Mr N’s savings would be paying for the placement;
- Whether the Council would make a contribution;
- Whether Ms N would need to pay a top-up fee.
Ms N received monthly invoices for the entire cost of her father’s placement from October onwards, as well as account statements from the Council for the cost of the placement. She contacted the Council to express some concerns that the Council had given her false information and had handled the situation poorly.
Mr N’s needs were assessed by his social worker and it was decided he would be safe living in the community if he had support. Ms N disagreed and felt that her father needed 24 hour care and so the Council said it would arrange a Best Interests Meeting to resolve the situation. Mr N remained in the care home and when his needs were assessed again in November he was found to be in a much worse condition. A GP diagnosed him with Dementia in December.
The Best Interests Meeting took place in February 2017 but by that time, Ms N was Mr N’s sole power of attorney over welfare and finance. She felt that it was in his best interests to remain in the care home, which he did until May 2017 when he was taken to hospital. Mr N sadly died in early June 2017.
Ms N complained to the Council in March 2017 but did not get a reply until July. She was not appeased by the Council’s response and wrote a second complaint in October, which was not addressed until February 2018. Ms N complained for a third time in May 2018 and the Council replied in June to say that it had nothing more to add.
What was found
The Ombudsman found no fault in the Council’s actions preceding Ms N’s request for emergency support for her father in September 2016. The Council then adhered to the Statutory Guidance with regard to keeping in contact with various health organisations and professionals in search of an emergency short term placement for Mr N.
There was also no fault found in the actions of the GP Practice in refusing to visit Mr N to assess him. It advised that he should be seen at a local out of hours service as he was thought to be outside the catchment area. The Practice had already closed by the time it was made aware that Mr N was in the Bury radius and the Ombudsman felt it gave reasonable advice considering the situation.
The Ombudsman saw no evidence to support fault in the way that the Navigator assessed Mr N as needing to go to the Dementia respite placement. Mr N lacked capacity to make decisions and so the Navigator appropriately discussed plans with Mr N’s step-daughter and with Ms N who had joint and several lasting Power of Attorney in relation to health and welfare matters and finances.
However, there was no evidence that the Navigator had presented either Ms N or Mr N’s step daughter with both of the care home options provided by the Council’s Rapid Response team. The records suggest that there was no mention whatsoever of top-up fees and that it was only the second, more expensive care home option that they were made aware of. Neither the Council nor the Trust have been able to explain this fault. As the first option was advertised as nearly £200 cheaper than the second, and taking into account Ms N’s general concerns about affordability of care, the Ombudsman declared this fault as having caused injustice to Ms N.
The Navigator also failed to confirm Mr N’s placement at Care Home B. This was fault and again amounted to injustice as it caused both Mr and Ms N distress and confusion.
Records show that the Council gave Ms N confusing and potentially misleading information when Mr N was at Care Home B. Information given to her by the social worker suggested that the Council might contribute to the fees. The Council told the Ombudsmen that it had had recent information available that implied Mr N would be self funding. However, it failed to undertake a financial assessment until 3 months after his placement began. Ms N was also charged by both the care home and the Council which caused distress and confusion.
The Council claimed that there was no information available to suggest that Ms N had not actively chosen the placement at Care Home B. If she had, the Council would have been perfectly within its rights to ask for a top-up fee. But it was the fault by the Navigator in not discussing both care home placements that led to the situation where Ms N only thought there was one option, at Care Home B. She did not exercise any active choice in where her father would be placed. The social worker may not have been aware that Ms N had not actively chosen that placement. However, the fault by the Navigator created this situation, it was not of Ms N’s making. This, like most of the injustices caused, stemmed from the omissions of the Navigator.
The Council admitted that it made no written agreements with Ms N about the charging for Mr N’s placement. This was fault that caused Ms N injustice as she was not able to fully understand the financial implications and could not make properly informed decisions as a consequence.
There was also no record of the amount of payable top-up fees. The Council should have made sure to record any agreements about the costs of the placement.
When the Council finally completed the financial assessment in March 2017, it began contributing to the cost of Mr N’s care and backdated the contributions to January 1st. It paid £292.53 per week after assessing Mr N’s contribution as £152.95, meaning that the care home was underpaid £349.52 every week.
It would seem that this shortfall of nearly £350 a week was missed or disregarded by the Council. The financial assessment undertaken in March recorded the cost of the care home as £445.48 per week, when in reality it was £795.
When Mr N’s capital fell below the threshold for self-funding, the Council became responsible for a number of aspects of his care. One of these was a duty to ensure at least one accommodation option that was within his budget and that did not need top-ups. There is no evidence the Council considered offering a cheaper placement after January 1st. An additional payment (top-up fee) must always be optional and never as a result of commissioning failures leading to a lack of choice.
The Ombudsman found the Council at fault for failing to offer Mr N either an increased personal budget or a suitable, cheaper alternative care home. It also failed to reach an agreement about the costs of care with Ms N, leaving her to deal with the care home’s fee chasing. These actions caused Ms N avoidable stress which amounted to an injustice.
The fault was attributed to both the Council and the Trust as neither could provide a definitive account of which organisation was responsible for the Navigator service.
Within two months the Council and Trust would arrange to reimburse Ms N / Mr N’s estate for the monies that would not have been paid if Mr N’s care home placement had been arranged without the faults identified.
The Council should review this case and calculate the amount due to Ms N / Mr N’s estate as a reimbursement.
The Council should also determine whether any care fees outstanding, either to Care Home B or to the Council, should now be written off.
As outlined above, this recommendation aimed to put Ms N / Mr N’s estate back in the position it would have been in if there had not been fault.
The Council and Trust should split this payment equally (50:50).
Points for the public, services users, families, attorneys, councils, charging officers and care homes
This case illustrates what can go wrong for families when they’re trying to do the right thing between different generations and are far apart. The complaint is basically about choice and top-ups not having been administered properly, and this case will therefore add to the long list of toxic top-up poor practice identified by the LGO.
It also illustrates what can go wrong when a Hospital Trust perhaps serving different council areas employs its own care brokers or navigators to work on hospital discharge. The person NEEDS to know social care law, if exercising functions that are equivalent to Care Act functions and where the council is accepting that that person has a role to play. Here the navigator clearly knew not the first thing about top-ups, and the Trust and the Council could not explain how that had come about.
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The full Local Government Ombudsman report on the actions of Bury Metropolitan Borough Council can be found here: