Lancashire County Council at fault for failing to ensure the right provision was in place at a care home, resulting in an unwanted move

Date Decided: 12th February 2020

What Happened

Mrs A complained on behalf of her mother, Mrs X.

Mrs X was living in a care home fully funded by the NHS after a fall in 2017. In June 2018 the Council took over the funding of her care when the CCG took the view that she no longer qualified. The report does not mention what the state of the evidence of needs was or whether it was updated to justify that decision.

Mrs X had ‘considerable mobility needs’, requiring two carers for all transfers and repositioning. She was at high risk of falling and it was stated in the June 2018 handover that she ‘needed a recliner chair’.

Mrs A contacted the home (the report did not specify when), concerned that Mrs X was slipping down in her chair in the lounge. The home manager said it had provided a “tilt-in-space” (recliner) chair for Mrs X in January 2018, and had requested a referral to the NHS Occupational Therapist (OT) for an assessment.

A further referral was made in June 2018 both to NHS and Social Care OTs to ensure the right assessment for Mrs X, after the prior referral via a GP was ‘not completed properly’. Between June 2018 and January 2019 Mrs X was on the waiting list for a specialist assessment.

The care provider passed on the information to the OT that “(Mrs X) is struggling to maintain her position in the current riser recliner and needs review for postural alignment in seating.”

A ‘chair’ assessment was eventually completed on 28 February 2019.

The OT recommended Mrs X would benefit from a tilt-in-space armchair but stated that her seating needs ‘were not bespoke’. There is no explanation as to what had happened to the previously provided chair.

In March the Council contacted a private company to arrange possible purchase of a chair.

In April, Mrs A was told by the care home that the chair would cost around £2,000 so the care home management team were being consulted. There is no hint of any explanation in the report as to why – if the council was seeking to commission a chair – Mrs A was also seeking a decision from the Care Home.

In May, the care home served notice to the council for Mrs X’s placement, stating it could no longer meet her needs due to the equipment needed. She said the private seating company had brought a chair which suited Mrs X but “the care provider would not accept and pay for it.”

Mrs A complained to the home stating that if they had accepted the purchase of the chair, Mrs X would not have to move. Mrs A said she explained to the care home manager the chair would be provided by the Council but said the home manager told her Mrs X would “never have the chair in this care home”. No explanation of whether the manager agreed that this had been said, was given however, or why.

The care home stated that the chair was ‘required for comfort’, therefore could not approve the purchase based on need.

The Council then agreed to purchase the chair for Mrs X as a clinically identified need.

The care home went on to tell Mrs A that they could still not meet Mrs A’s needs as they had problems bathing her, and CQC regulations would not allow the care provider to bed-bath Mrs X. Mrs A said she had never been told about this before and no risk assessment had described it as a problem.

The Council stated that the care home gave sufficient notice, and in the end, Mrs X moved to another care home.

Mrs X’s social worker thought that the home served notice because of the perception that the family was ‘overly demanding’, in addition to Mrs X being described as ‘non compliant with care’. Mrs A also highlighted that the home had never asked the Council to fund the chair, but had simply given notice.

The OT was asked to comment and said this:

“The criteria for provision of specialist seating and equipment in care homes has, in the past been quite subjective, therefore, we are currently reviewing the criteria as per the Royal College of Occupational Therapists “Care Homes and Equipment Guiding principles for assessment and provision” and this will be added to our [practice guidance]on the intranet, once finalised”.

What was found

The LGO highlighted that there was some ambiguity over the need for a specialist chair. The assessment stated the need was not ‘bespoke’, but the Council ended up funding the chair as a need anyway.

The care provider said it gave notice because it could not meet Mrs X’s needs, but even when the chair was funded, it refused to continue providing care. The LGO stated that it ‘would have been helpful if the Council had taken the lead on the provision of the chair from the start and not left Mrs A to communicate with the care home’.

Despite the notice period being met (in the Council’s view, on its own contract), the LGO stated that it was fault on the part of the Council’s commissioned care provider to put Mrs X, a vulnerable elderly person, in a position where she had to move homes.

The LGO recommended that the Council pay Mrs X £500 in recognition of the distress caused by an unnecessary move, and review the way it liaises with families and care providers about the recommended provision of specialist equipment.

Points for the Public, Care homes, commissioners, family members, assessors, advocates

This is a frustrating report from the LGO because it doesn’t address the elephant in the room: who is responsible for the provision of equipment? Is it part of the concept of meeting needs, and therefore the council’s responsibility? Or is it part and parcel of being a decent care provider that that private or voluntary sector business funds the equipment out of its margins? Or is the health service’s responsibility for a person because the equipment need is related to the person’s ill-health? Regardless of the status of the person entitled or not to continuing NHS health care…?

CQC Regulation 15 addresses premises and equipment in terms of cleanliness and maintenance but not who pays for what, although the National Framework implies otherwise

Likewise regulation 19 which addresses fees does not specify equipment

Where individuals in receipt of local authority commissioned care or NHS Continuing Healthcare require equipment to meet their care needs, there are several routes by which this may be provided:

a) If the individual is, or will be, supported in a care home setting, the care home itself may need to provide certain equipment in order to meet regulatory standards or as part of its contract with the commissioner, if a given position on equipment has been agreed. Further details of the regulatory standards can be found on the Care Quality Commission’s website but they don’t specify who is to buy what.

b) Individuals who are eligible for local authority care in a care home and NHS Continuing Healthcare should have the same access to standard joint equipment services as other people – the equipment is provided potentially, to council clients, under the Care Act, and not as part and parcel of the duty to meet the needs for care together with accommodation and the same must be true for NHS CHC patients, we think. Therefore, when planning, commissioning and funding joint equipment services CCGs should ensure that the needs of current and future recipients of NHS Continuing Healthcare are taken into account.

If one asks whether self-funding people in care homes should be able to access equipment services, we think that the answer is no, because councils are not allowed to meet the needs or fund the needs of those over the capital threshold.

c) Some individuals in receipt of council care in a care home or under a NHS Continuing Healthcare contract will require bespoke equipment (or other non-bespoke equipment that is simply not available through routes (a) and (b) above) to meet specific assessed needs.

The more specialist the equipment the more probable it is that CCGs should make appropriate arrangements to assess and meet these and any subsequent equipment needs that might arise, including responsibility for any essential servicing and repair that might be required for particular items of equipment – because of responsibility for health needs that are beyond the scope of what can be expected as part of a package of social care.

CCGs should ensure that there is clarity about which of the above arrangements is applicable in each individual situation, including responsibility for any essential servicing and repair that might be required for particular items of equipment CCGs are reminded of their ability to utilise Personal Health Budgets as a means of meeting equipment needs (including servicing and repair).

The fact that there is no really clear answer to this issue, which must be a commonplace issue, is one reason people think that social care should be integrated with the health service because there would then be no turf wars about this sort of expenditure. We think that that is naïve, though, because instead of that there would just be arguments about whether it was a need or a want.

Reading between the lines it seems to us that there was some clash of positions going on between the family and the care home manager here, who reportedly ‘left’ soon after Mrs X was moved. But the fact of the matter is that on a care home contract between the council and a care home, most contracts permit the home to terminate on notice, on the grounds that it is no longer able to meet the person’s needs. And if there is a dispute about equipment between the commissioners and the sort of paralysis in joint working that one hears about all the time, it is not surprising that a care home would simply stand on its rights.

In so doing, it must however remember that publicly funded clients in care homes are owed human rights by the provider directly. That translates not into a right never to be asked to leave, but a right to expect disputes to be grappled with conscientiously in light of the obligation to pay respect to the person’s attachment to their home, and their private and family life. It doesn’t seem to us that anyone reminded the home of that in this scenario, and that was the fault of the commissioner, ultimately, who ought to know that that fact can be brought to bear upon any provider thinking of giving notice.

We don’t know why the LGO’s investigator doesn’t mention that feature of the case.

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The full Local Government Ombudsman report of Lancashire County Council’s actions can be found here