Decision Date: 3rd January 2023
Mr C complained on behalf of his late mother, Ms M. He said that after a hospital discharge the Council had failed to complete a needs assessment prior to the Clinical Commissioning Group (CCG) making an eligibility determination about NHS continuing healthcare (CHC); failed appropriately to involve Ms M and her sons in decisions; failed to support her move to another nursing home; and failed to produce an assessment document of a satisfactory quality.
In November 2020, Ms M went into hospital after taking an overdose. The family mental health team advised she go into a care home, which the Council immediately informed the family about.
In early December, Ms M – who it was determined had capacity regarding decisions about her discharge destination – told a social worker (SW) she wanted to go home. The SW agreed this could happen with a care package from the Community Mental Health Team (CMHT). However, when Ms M’s Mental Health Team (MHT) conducted a review, it found she needed 24-hour care to manage her physical and mental health risks which it was not prepared to provide at home. The MHT reported that Ms M subsequently agreed to go into a care home after discussing the situation with her.
The SW then spoke to Ms M and records stated Ms M agreed to go into a care home for a further review. The SW contacted the family the same day and explained that, having initially wished to return home, Ms M had been convinced it would be better to go to a care home. The SW also asked Mr C if the family had a preferred care home, which the Council later stated was a common question to ask families as well as the client in mind.
A Mental Health Complex case meeting followed on 10 December and concluded Ms M’s needs should be met in a 24-hour general nursing home placement. The SW advised the family the same day that it would fall to the NHS to discharge Ms M into a home, where her needs would be assessed over a period of up to six weeks. The SW also confirmed an assessment to determine eligibility for CHC would take place and that a decision about this would be made at an MDT meeting. Mr C said (but records did not show this for sure) the SW stated a social care assessment would be completed before the MDT meeting.
In mid-December 2020, Mr C stated his discomfort in making decisions for his mother, given her capacity to do so for herself. He also requested an advocate’s presence when Ms M was making decisions to ensure she was fully apprised of her options, mentally able to make decisions, not pressured and able to make an informed decision. Records stated Mr C agreed to Ms M’s discharge for assessment into a care home but that Ms M’s preferred care home had no vacancies.
[The report does not state WHEN Ms M was actually discharged but it was clear that the NHS made the decision, not the local authority.]
Thereafter, a new SW was appointed to conduct an assessment of needs. The Council said the SW immediately engaged in a very detailed discussion with Mr C, the records of which indicated the SW confirmed the purpose of her contact with Mr C related to the assessment of Ms M’s needs; that she would read the 24 page document he had provided; and that Mr C said he wanted advocacy involvement and would like the SW to arrange this. The SW informed Mr C the previous assessment had found Ms M had capacity to make decisions.
During the assessment, the SW discussed the care home’s views of Ms M’s needs, spoke to the MHT members involved in Ms M’s care and contacted an advocacy group. The advocacy group subsequently closed the case in early January, saying they would call Mr C to ask what support he needed. [Further information in relation to the advocacy group was not detailed in the report and therefore it is not known why the Advocacy group was allowed simply to close the case and what if any, contact they had with Mr C.]
The care home told the SW Ms M’s placement was not appropriate. The SW tried to talk to Ms M as part of the assessment but records show Ms M did not know who the SW was, why she was phoning her, did not say where she would like to go or respond to other questions from the SW. Around the same time, Mr C emailed the CCG and SW expressing a wish for both he and his brother to attend the assessments as they had Ms M’s “best interests at heart”.
On 22 January, the MDT meeting took place, for considering CHC status with full attendance from interested parties.
Mr C complained that a comprehensive Care Act needs assessment had not been conducted prior to the CCG’s determination of CHC eligibility at this meeting. Mr C believed this had contributed to the CGG’s finding Ms M ineligible for CHC (a decision that was subsequently overturned).
The Council said it was normal practice for SWs to gather information before an MDT meeting to enable discussions about the health and care domains with nurse assessors and families as well as from other professionals and the family. They also said that although the needs assessment had not been completed by the time of the meeting, the SW had obtained information about Ms M from the care home who had the latest information. The Council said there was at least a draft assessment for the 22 January MDT and the MDT exercise had lasted for hours. The SW had discussions around the domains within the DST and as such the SW was engaged in the process, had a good understanding of the CHC process and participated in proceedings; and was clearly looking at whether care needs were equal to or greater than what the Care Act says can be provided through social services. Finally, the SW had completed a FACE Screening Tool – classed as a statutory social care assessment [but by whom, the report does not say!] which was accepted by the CCG’s Commissioning Support Unit as sufficient to pass audit for CHC National Framework Purposes; the council said that the outcome would have remained the same even if the work had been completed on an overview assessment document.
The Council said with the exception of the hospital discharge process, they had made sufficient attempts to involve the family. The Council also said that both SWs had difficulty with helping Ms C to engage in the assessment process and that she wanted workers to liaise with her sons. Ms M had also repeatedly told the SWs she did not want to engage in discussions around care and support and asked for her sons to be consulted around decisions in this area.
Finding a care home
Mr C also complained that the Council failed to provide the support needed to move his mother to another nursing home. Mr C informed the SW on 25 January 2021 that his mother was not happy at the home and wanted to move. The SW informed him the MDT meeting concluded his mother did not have nursing needs and therefore she could be cared for in a residential home. The SW also told Mr C that, since his mother had family to assist her in finding a home, the Council was not required to do so. The Council’s care navigation team said they would send out a list of homes to the family for them to contact in relation to any vacancies and whether they could meet Ms M’s needs. The SW also stated that if Mr C felt that he could not support his mother in choosing a home, the council could do this.
The family found it difficult to move forward however, as the SW had still not completed Ms M’s needs assessment and the family were therefore unable to answer initial questions the care homes had about Ms M’s needs. The care homes required a completed needs assessment to enable them to make an initial assessment as to whether the home would be suitable for Ms M, including vital information about her health conditions. Despite the SW confirming that the Council would send a list of care homes, the Council did not do so.
On 27 January 2021, Mr C informed the SW that the family were unable to choose and apply to a home on their mother’s behalf at that particular time but would give as much assistance as possible. The next day, the SW told Mr C she would have a Zoom meeting with his mother the following day and then finalise the assessment, which would then conclude her involvement. The SW did not ask Mr C to be present for this meeting, despite the likelihood that Ms M would find it difficult to participate. Mr C asked the SW to seek permission from his mother to share a copy of her needs assessment with him, however this was not done by the SW. Ms M did not engage in discussions during the Zoom meeting and asked the SW to liaise directly with her sons. The social worker’s case was closed on 1 February 2021 and the same day it was decided that Ms M required a nursing care home rather than a residential care placement [although the report doesn’t say who decided this]. The Council’s care navigation team then failed to send out a list of nursing homes to the family. Mr C asked for a new care needs assessment on 3 February 2021 and a new SW was allocated to Ms M who carried out a new assessment (FACE assessment).
Mr C complained about the quality of the FACE assessment which he received on 11 February 2021, which he said was wrong and hindered the family’s attempts to find another care home.
What was found
The complaint about the assessment process
The CHC National Framework
The LGSCO stated that, under the CHC National Framework, the Council was required to, as far as was reasonably practicable, provide advice and assistance, which the Council did. The LGSCO found the Council therefore met the requirements under the National Framework and it was actually the NHS/CCG who were responsible for ensuring compliance with the decision-making process and that they had all the required information to make a decision.
The LGSCO had noted from the records that Ms M and her sons had wanted someone to be present with her for support when discussing her needs and making decisions. This was specifically mentioned by the family on 4 January 2021. The records also showed the difficulties the SW faced in involving Ms M in her assessment when she had no support. The LGSCO found that although the Council had attempted to involve an advocacy agency, they should have done more to ensure Ms M received all possible support to enable her to be supported during the assessment and decision making process; to be involved and express her views, which the Council had failed to do. which was a legal obligation on their part
The LGSCO reported that Mr C had sufficient opportunities to express his view with regard to his mother’s current needs. The LGSCO noted that Mr C felt it was for the professionals involved in his mother’s care to assess her needs and find a suitable care home for her, with Mr C supporting this process as much as he could.
Finding a care home
The LGSCO found that whilst the Council completed a needs assessment for Ms M within the six weeks that was applicable [which timing we find impossible to follow as there is no date of discharge given or date of final completion of the assessment!] they failed to share the assessment immediately with the family. This was fault. The Council were also at fault for not sharing a list of care homes for the family to contact, which they promised they would do. These faults had made it distressing and frustrating for the family, because they found it more difficult to find a care home for Ms M. The Council also failed to take over the process of finding a care home for Ms M, despite being told by Mr C on 27 January 2021 that the family were unable to choose a care home and wanted the Council to do this.
Quality of the Assessment report
Having reviewed the FACE assessment, the LGSCO found a number of other issues with it, as well as those that Mr C complained about; these were:-
- It failed to specify if Ms M had mental capacity;
- It failed to mention mental health professionals who were involved with Ms M in the section “Professional Involvements”;
- It stated Ms M was able to communicate over the phone as part of the assessment, despite the records having stated she was hardly able to engage;
- The SW had not obtained Ms M’s views on what changes would most improve her wellbeing, what she wanted to achieve in terms of relationships and what activities were important; and
- It did not list the family’s views, only that they were aware.
The LGSCO stated the needs assessment highlighted the importance of Ms M’s family being involved in meetings as it had stated “Ms M can struggle to communicate she is hard of hearing has bad eyesight and struggles to converse or make decisions, is quite reliant of her sons to communicate for her as she can get very overwhelmed”.
The LGSCO was not able to explain why the SW had used a FACE assessment form rather than the ‘normal care act needs assessment form’, which would have included more information and details for example in relation to the eligibility criteria. The LGSCO, whilst determining that there were a range of shortcomings in respect of the assessment, concluded that there was not enough evidence to conclude that these had an impact on finding a care home for Ms M, at that particular time.
The LGSCO recommended that the Council should:-
- apologise to Mr C and his brother for the faults identified above and for the distress these caused them and pay each of them £200; and
- share the lessons learned with its adult social care workers and assessors.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Advocacy and capacity issues
Councils have a duty to involve people in decisions made about them and their care and support. No matter how complex a person’s needs, they are required to help people express their wishes and feelings, support them in weighing up their options, and assist them in making their own decisions. In exercising this duty they must consider, for each person, whether they are likely to have substantial difficulty in engaging with the care and support process. The Care Act defines four areas of engagement with Care Act processes where people may experience substantial difficulty:
- understanding relevant information
- retaining information
- using or weighing information
- communicating views, wishes and feelings.
Councils must consider whether there is an appropriate individual who can facilitate a person’s involvement in the assessment, planning or other listed process in s67 of the Care Act. The role of an ‘appropriate person’ under the Care Act is potentially fuller and more demanding than that of an individual with whom it is ‘appropriate to consult’ under the Mental Capacity Act (MCA). Under the Care Act the appropriate person’s role is to facilitate the person’s involvement, and that will mean knowing something about their rights to care and support services, not just expressing what they think the person would make of the proposed intervention.
An Independent Advocate (IA) is one who works independently of the Council, appointed under the Care Act. Under the Act, the Council has a duty to arrange for an IA if there is no other appropriate person to support and represent the service user (with that vulnerable person’s consent if he or she has capacity), and the Council feels that the service user or carer would experience substantial difficulty being fully involved in the process, without support.
In this case, the Council appears to have relied on the fact that Ms M had stated she wanted her sons to be consulted with regards to decisions relating to care and support and therefore they were of the view Mr C was an ‘appropriate person’ to support and represent Ms M. However, Mr C made it clear that he did not feel comfortable making decisions on behalf of his mother, when his mother had capacity to make these decisions herself. Mr C himself had requested an advocate to be present when his mother was required to make decisions. The Council stated “it has been evident throughout the process that both social workers had difficulty with helping Ms M to engage in the assessment process and she always maintained that she wanted workers to liaise with both of you [her sons]”. Records also confirmed the difficulties the SWs had involving Ms M in assessments without support.
It is clear that the Council should have discharged its duty to arrange an IA as there was no ‘appropriate person’ to support and represent Ms M for the purposes of this assessment. In legal terms this makes any social care process or decision-making unlawful in light of the Haringey case from 2015.
Ms M may well have had capacity, for making a decision about her hospital discharge destination – but that does not mean that she had it some weeks later with respect to her involvement in the Care Act assessment or the CHC Decision Support Tool processes.
The report does not detail why the Advocacy group closed the case and what details or involvement the SW had with them. However, merely speaking to an advocacy group did not discharge the council’s duties under the Care Act. Whilst the LGSCO did state in the report the council “should have done more to ensure Ms M was sufficiently supported in the assessment and decision process and was given all possible support to be involved and express her views” this does not appear to have led to the finding of fault which caused an injustice, whereas it would have been more significant in terms of legal rights.
Assessment process and finding a care home
It was quite clear that the assessment process was haphazard, with the back and forth in relation to whether Ms M required a nursing home or a residential care home. Even after the SW used her draft assessment at the MDT meeting and it was confirmed that Ms M required a residential placement, this position changed a few days later where it was determined Ms M actually did require a nursing home, whatever the assessment had said.
The SW also failed to seek permission to share a copy of Ms M’s needs assessment with Mr C, despite leaving the family to look for a care home themselves without having the relevant information. It is NOT the law that families are supposed to look for care homes: the job of determining suitability lies with the council, based on professional judgment and the fact that a home is registered and functioning does not mean it is suitable for meeting the individual’s needs. A list of commissioned homes is not sufficient for this part of care planning: choice goes wider than homes doing business with the council.
The fact that the decision about Ms M’s CHC status was ultimately overturned does rather point to there having been less than full exploration of the quantity and quality threshold for primary health need at the MDT. In addition, we do not understand the reference to the ‘screening’ tool or what that would have been doing as the social worker’s preparation for an assessment that had been due for weeks – and one that could have let the council off the hook for funding the care….
In relation to the use of the FACE screening tool, it is to be noted that Lancs is using the Three Conversations Model for assessment – which leads us to wonder whether the screening tool was Conversation 1. Although the LGSCO felt unable to make a determination as to whether these issues delayed the process of finding a home for Ms M, the fact that a further new assessment was requested and carried out would seem to us, logically, to have caused at least some delay. At the time that the family were attempting to find a home, on instructions or an invitation which was economical with the truth as to the commissioning duty, they were unable to do so, which was directly linked to the type of assessment which had been carried out, the inadequacy of the content and the availability of this actual document.
The applicable discharge regime underlying this situation
At the time of Ms M’s hospital discharge the first period of automatic NHS funding for whatever any hospital patient needed after discharge had ended. This link indicates what followed:
- For people discharged from 1 September, the government has provided £588 million in this financial year to supplement existing CCG and council spend on post-discharge support to cover the cost of this care for up to six weeks. This funding covers only care that is additional to any provided before hospital admission for all people regardless of their means to fund care because it precedes the assessment for long-term care.
[We interpret this as the government’s experiment to make Discharge to Assess process – whether it is called interim, intermediate or stepdown or reablement care – an integrated exercise – without specifying who exactly is responsible under which bits of legislation for the initiative required for implement assessments for longer term needs. If it’s jointly held money it may not feel as if it matters, but of course in this case it explains why there was no Care Act assessment in time for the CHC MDT, which there would have had to have been (based on mere appearance of need) if this woman was not actually checklisted as per the National Framework, before leaving hospital. Given she had mental health problems, we think it unlikely that that happened, hence we see the problem as being an arguable breach of the duty to assess or to assess properly, under the Care Act within a reasonable time.]
- Should these post 1 September assessments for long-term needs not be completed within six weeks, ongoing care will need to be funded from existing local budgets according to local agreement. The default position is:
- The CCG funds where the CHC or NHS-funded nursing care assessment is delayed until this is completed
- The council funds where an individual is not eligible for NHS CHC until the Care Act assessment is completed. Normal charging practices apply, such as for the care of those assessed as being able to fund their own care.
- The guidance expects CCG and councils to work together to develop a robust, fair and transparent approach to undertaking all assessments that have been deferred since 19 March, and to ensure all assessments restarted from 1 September  are undertaken in good time.
If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.The full Local Government Ombudsman report on the actions of Lancashire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-016-416.