Date of decision: 28 November 2024
Summary
A complaint was made that Lambeth Council failed properly to assess an older woman’s care needs before her hospital discharge date, and did not provide adequate financial advice about residential care charges.
The Ombudsman found the Council’s actions were lawful and appropriate, with no fault identified in the assessment, care planning, or information provided.
What happened
In August 2023, Mrs X was admitted to hospital after a fall.
At the end of September, discharge planning began. The hospital assessed Mrs X as needing four daily care visits at home, because she would not be able to bear her own weight until 11 October at the earliest, with a plan for short-term support and future reablement.
The Council approved this plan and involved Mrs X’s daughter in discussions.
Mrs X was discharged home on 2 October 2023, with care delivered by an external agency, arranged by the Council.
On 5 October, difficulties in transferring Mrs X were reported, but alternative equipment was trialled and care continued.
Following a GP’s and an occupational therapist’s visit on 9 October, and concerns about Mrs X’s tendency to try to get out of bed at night, Mrs X’s health was believed to have deteriorated, and she was readmitted to hospital on 11 October.
The records of the discharge visit from the social worker in November suggested that Ms Y had said she had arranged a placement for Mrs X at a residential care home near to her, to help Mrs X’s reablement before returning home.
In November, her family arranged a private care home placement in another council’s area for her discharge on 1 December.
On 20 December, the family queried why she was not being offered a 12-week property disregard with respect to care charges, given that Mrs X was going to be staying at that home, long term, local to Mrs Y, but the Council explained this only applied to Council-arranged placements, and that she had been made ordinarily resident in the new council area.
The family later complained about the lack of a written up copy of the assessment and financial advice. The Council provided a retrospective assessment and explained its position.
What was found
The Ombudsman found the Council had a duty to provide a care and support plan after Mrs X’s discharge and lawfully based this plan on the hospital’s assessment, which was appropriate for her short-term needs as they were seen at the time. The Council involved the family in discussions and there was no evidence of disagreement at the time. Although the Council did not write up its own assessment before discharge, it was entitled to rely on the hospital’s assessment for the initial period.
There was no evidence that Mrs X’s care plan was inadequate or that her readmission to hospital was due to any failing in the support that had been consistently provided, despite the difficulties in delivery as she had deteriorated.
Regarding financial advice, the Council had no duty to provide information about the 12-week property disregard, because it did not arrange Mrs X’s permanent care home placement; this responsibility lay with the council in the area where Mrs X became ordinarily resident.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We find this report worryingly unaware of the legal framework, even assuming that Mrs X was not without mental capacity and could thus be taken to merely have been helped to move HERSELF, rather than been moved by a relative – and rather than being moved with legal authority.
Under the Care Act 2014, councils must assess any adult who appears to need care and support, regardless of finances or perceived eligibility. Assessments must consider the individual’s needs, impact on wellbeing and desired outcomes, involving the person and their chosen representatives. Councils have a statutory duty to provide a care and support plan reflecting assessed needs and must involve carers in this process. When arranging permanent residential care, councils must follow regulations for financial assessments, including disregarding the value of a person’s main home for 12 weeks—but this only applies when the council arranges the placement. That is not the end of the matter, however.
If a family arranges a private placement and the person moves to a new area, without the involvement and facilitation by the old council, then ordinary residence and responsibility for assessment and charging can transfer to the new council. But it is also possible for a council to put on the care plan (not the assessment please note) that the only way the person’s needs can be met is if they live in specified accommodation, (a care home being one such type that meets this definition) and then the ordinary rules as to Choice of Accommodation are triggered. This means that whether the person needs to move elsewhere or simply chooses to move elsewhere, then their old council remains responsible for their care placement. OF COURSE if a family makes the decision with the person and gets on with it, this can be very good news for the old council, but that is why there is a general duty to provide advice and information about care funding and charging, so that families only support their loved ones to make INFORMED decisions.
The report’s investigator seems to be unaware of the Greenwich v Bexley Council litigation, where the duty to make the placement had already arisen given that elderly client’s mental incapacity, regardless of the extent of her assets. In that case, the fact that Greenwich had done absolutely the right thing and spoken to the family about deferred payments if they chose to have the placement made by the Council, as well as the disregard, meant that the family’s decision nevertheless to place her on a private footing in another council’s area, legitimately let Greenwich off of a retrospective imposition of continuing ordinary residence.
Councils are not under a general duty to provide financial advice for privately arranged placements, but they are expected to signpost people to sources of independent advice if they think that someone might want to take that route.
This case highlights the importance of clear communication and proper involvement of families and certainty that they’ve been told some facts, for getting care planning right. It also underlines that councils must ensure care plans are based on current assessments, whoever is doing them, in an integrated system, and that statutory duties only apply within the context of council-arranged services. In this scenario we think that the Ombudsman was effectively finding that the Council ratified and adopted the Hospital’s assessment of need, but that still means that they should have written it up before moving to formalise it in a care plan which was never really adequate.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Lambeth (24 003 739) report.
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