Decision Date: 13 February 2023
What happened
Mr C complained on behalf of his late mother, Mrs D. He said that the Council moved Mrs D into a care home without his knowledge [this was her second move as explained further down] and without considering the most cost-effective options, NHS Continuing Healthcare, or her best interests. He further contended that his mother’s estate should not be liable for the outstanding care home fees as she was not in a care home of her choice.
Mrs D was living independently in her own home prior to a hospital admission in May 2020, after which she was discharged to care home X under the Discharge to Assess framework. This was paid for by COVID-19 funds [a designated pot of money to be utilised for new packages of care (up to six weeks for persons with new or additional care needs) and payment for designated care settings that commence up to 31 March 2021 C1123-covid-19-hospital-discharge-and-support-care-funding-2021.pdf (england.nhs.uk)].
Mrs D lived with dementia and exhibited some behaviours that challenged care home X and it advised it could no longer care for her. Mrs D’s son, Mr C, advised the Council that Mrs D had previously stayed at care home Z and that it would be preferable for her to move there as her ex long-term partner lived there. The Council considered this as an option but there was an outbreak of COVID-19 at the home and it was not taking new residents and Mrs D needed to move urgently.
The Council identified that care home Y had a vacancy and was able to meet Mrs D’s needs. The Council’s notes state that they made a telephone call to Mr C to advise him of this move and he advised that he was in hospital and unable to offer Mrs D any support at the time. Mr C said he was not part of the decision-making process. Mrs D moved to care home Y and COVID-19 funding continued.
In June 2020, Mr C raised concerns that Mrs D was having frequent falls at care home Y and the Council opened a safeguarding referral.
In July 2020, the Council completed an assessment with Mrs D with a view to where her care needs should be met, including Mr C’s preferred option of her returning home with a package of care. A Deprivation of Liberty Safeguard (DoLS) assessment was completed which determined that it was in Mrs D’s best interests to remain in care home Y. Mr C was consulted at the time and agreed with the decision and also agreed to be Mrs D’s Relevant Person’s Representative (RPR).
The DoLS was reviewed in October 2020, at which time the Best Interest Assessor (BIA) felt that Mrs D would benefit from a paid RPR as she was saying she wanted to go home, and the BIA felt that someone with specialist knowledge of the relevant legislation, giving them the ability to respond and challenge, would be best placed to represent Mrs D’s wishes rather than her son. The Council’s records at this time show that Mr C was informed and agreed to this course of action.
In January 2021, Mr C complained to the Council that he had not been able to see Mrs D since June 2020 [care home Y was following national guidance regarding safe visitation in care homes during the COVID-19 pandemic] and wanted Mrs D moved to care home Z, which was allowing family visits [presumably under the guidance which was published in November 2020], and was £500 a month less expensive.
[The LGSCO report doesn’t state explicitly when Mrs D’s placement went from COVID-19 funding to means tested local authority funding, but we presume this happened when the placement was made permanent in July 2020].
Mr C also felt that care home Y was not providing Mrs D with the one-to-one care she needed. The Council agreed to review Mrs D’s needs and placement.
In mid-February 2021, Mr C advised the Council that care home Z had a vacancy and that he remained unsatisfied with the care being provided at care home Y. The Council completed a best interests assessment three days later.
Mr C was present at this meeting but left early. The Council’s notes of the meeting state that this was because he had a ‘’lack of appreciation that the pandemic was mostly contributing to the dissatisfaction of the care and support provided to his mother’’. [There is nothing in the report as to the position taken by the person’s RPR at this point.]
The Council reached a decision that it was in Mrs D’s best interests to remain at care home Y. It detailed the reasons for this as being:
- Mrs D’s dementia was at an advanced stage and it was worried about the impact on her health and wellbeing of a move; and
- Care home Y had recently had a change of Registered Manager and Mr C’s concerns had mostly been related to the previous manager.
The DoLS was reviewed in May 2021. Mr C was consulted and expressed dissatisfaction at the care provided at care home Y but agreed that it was in Mrs D’s best interests to remain living there. At this time the Council reinstated Mr C as Mrs D’s RPR, feeling that he could represent Mrs D’s views properly.
In January 2022, Mrs D was assessed under the Continuing Healthcare framework and found eligible for fully funded nursing care.
Mrs D passed away with over £41,000 of care home fees outstanding. Mr C said that the value of her home should have been disregarded as his daughter was living there and further argued that had the Council moved Mrs D to care home Z, she would have saved £500 a month in fees and received better care. Mr C requested that the Council take this into account and adjust the balance accordingly [this was approximately £8,500 over the course of her placement].
What was found
The LGSCO found that the Council were not at fault for moving Mrs D to care home Y. At the time, care home Z was unable to accept new admissions and her placement at care home X was unsustainable.
The LGSCO did however find fault with the approach to the best interests decision made in February 2021 which stated it was in Mrs D’s best interests to remain at care home Y.
The LGSCO found no evidence that the assessor considered Mrs D’s past feelings and wishes, or any other factors that may have influenced a decision on whether it would be better for her to move. Mrs D’s ex-partner lived at care home Z and at a time when care home visiting was [legitimately] restricted, it may have been beneficial to her to have the company of a familiar person in the absence of being able to see her son, but there was no analysis of this. Instead, the assessor based their decision solely on Mrs D’s diagnosis of advanced dementia. This was fault.
There was no evidence to suggest that Mrs D was eligible for NHS Continuing Healthcare prior to it being awarded in January 2022 when care home Y requested a fast track assessment and therefore the LGSCO found no fault in this but has advised Mr C that he could make a retrospective application if he felt Mrs D would have been eligible earlier than this.
Finally, the LGSCO found no fault in the Council not applying a property disregard to Mrs D’s property during the financial assessment.
Ultimately the LGSCO found the Council not at fault for Mrs D’s initial move to a care home but found them at fault for failing properly to consider whether it was in her best interests to remain at the care home. This caused Mrs D and Mr C injustice. As Mrs D has now passed away the LGSCO was unable to remedy her personal injustice but agreed the following actions. The Council will:
- apologise to Mr C and pay him £300 in recognition of the time, trouble and uncertainty the Council’s failures have caused him;
- remind staff, and provide training where necessary, about completing best interest decisions, especially where there are conflicting opinions of relevant parties.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
We understand the son’s frustrations at not being able to visit his mother but consider that his frustration may have been more at the impacts of the COVID-19 pandemic rather than directly at the Council. That being said, we absolutely agree with the LGSCO that the Council failed to consider factors that may have influenced Mrs D’s choice of care home had she been able to make the decision herself, including living in the same environment as her ex-partner, especially when considering the additional isolation the pandemic brought.
The Mental Capacity Act s4(1) states clearly that one cannot base a best interest decision solely on diagnosis ‘’In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—
(a) the person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.’’
S4(2) goes on to say ‘’The person making the determination must consider all the relevant circumstances’’. We cannot say that this was the incorrect decision for Mrs D, but not to consider anything above and beyond the diagnosis is a flagrant abuse of both public law and MCA aspects of the law.
We are seeing time and time again councils failing to follow these principles and the long-standing legislation.
The LGSCO didn’t dive deeply into the property disregard and therefore we don’t know the intricate details of Mrs D’s granddaughter’s situation, but it is important to note that under the Care and Support (Charging and Assessment of Resources) Regulations 2014 Schedule 2 s4(5), the value of the property will only be disregarded if it is occupied by the person’s:
- spouse, partner, former partner, or civil partner (except when they are estranged)
- estranged or divorced partner where they are a lone parent
- relative who is:
- aged 60 or over
- a child under 18 years old
- ‘incapacitated’ by nature of disability.
and this also requires the individual to have been occupying the property before the person entered the care home.
The full Local Government Ombudsman report on the actions of Nottinghamshire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/22-003-087