Date of decision: 15 May 2025
Summary
A daughter complained about the Council delaying her late mother’s move from a respite care home when she had been on Fast Track CHC to live with her in another council’s area. Poor communication about what it would be prudent to organise and advance, left the mother stuck in the home longer than necessary, causing distress to both, and extra self-funded care home fees, because CHC status I ceased.
What happened
In late August 2023, Mrs Y, an elderly woman, was discharged from hospital under NHS CHC fast track end-of-life care, to her own home. Her daughter Mrs X moved in temporarily to care for her. Despite Mrs Y having a pressure sore, Mrs X noted her mother’s health improved as she ate and drank more.
In September 2023, Mrs Y’s home electrics failed overnight, deflating her airflow mattress, so the NHS arranged emergency respite at a care home; Mrs X said the electrics were fixed within a week and she asked about her mother returning home, but the care home suggested staying longer while CHC funding continued.
In late November 2023, the NHS held a multi-disciplinary team (MDT) meeting attended by a Nottinghamshire County Council social worker to review Mrs Y’s care home placement and funding; the NHS ended Fast Frack CHC eligibility but awarded NHS-funded nursing care (FNC), with funding being timed to cease in late November.
The Council’s social worker completed a needs assessment recommending 24-hour support with FNC, noting Mrs Y wanted to go home for Christmas to live with Mrs X in Council 2’s area, but felt that further therapy assessments for mobility, transfers and aids were needed. It recorded that Mrs X assumed the care home’s hospital bed/mattress could move with Mrs Y, but was told new equipment would need to be arranged. The social worker’s notes stated “a suitable means of care and support must be in place and an assessment by an OT/physiotherapist to have been completed” before Mrs Y could feasibly move.
When Mrs X asked “So I can’t just take my mum home?”, the social worker explained risk had to be assessed, with suitable care to manage it.
The social worker advised Mrs X that Mrs Y would become a self-funder once fast track CHC funding ended, due to her savings, if she was not going home immediately and “Paying for care” information was provided.
The social worker referred Mrs Y to Council 2 in late November, attaching the needs assessment as required by the continuity provisions in the Care Act.
The social worker noted Mrs X was unhappy that Mrs Y would have to stay in the care home and pay, and about the length of time it would take to arrange suitable support and assessments in Council 2’s area.
In early December 2023, Mrs X complained to the Council (copying in NHS and Council 2) that she had been unable to make progress on Mrs Y living with her or returning home. She complained the decision for 24-hour nursing care was against her and Mrs Y’s wishes.
Mrs X worked from home and had extended family who could support Mrs Y. Mrs X said she understood the Council would not ‘allow’ Mrs Y to go home without a care package, but she had been unable to source one before Christmas. She offered to purchase a hospital bed, arrange help, or employ carers if the family ultimately struggled. Mrs X said she understood Mrs Y would not be allowed home until her house and equipment were approved by Council 2 which was unlikely to be until after Christmas.
The social worker passed the complaint to their manager and told Mrs X they had referred Mrs Y to Council 2 and closed the case for Council 2 to follow up. The social worker’s notes recorded Mrs Y was “safe at [the care home], all her care needs are being met, she has capacity to state her wishes and has said she wants to be in [Council 2’s area]… however, she is not protesting by any means, is accepting of care and is generally settled.” [and was self-funding].
In early December 2023, a nurse reviewed Mrs Y’s low mood/unresponsive episode, noting she liked her room but wanted to live with her daughter, and was awaiting a move plan/care package. Mid-December, a nurse assessed her healing bed sore, noting delays due to ‘obstacles.’
In mid-January 2024, Mrs X contacted the Council, unhappy, refusing fees as the Council had prevented removal, and claiming she could manage the needs.
Council 2 now said the First Council was responsible [no doubt because of the government guidance on the Implications of ordinary residence when CHC ends, but that is only for specified accommodation, not ordinary people’s own homes].
The following day, the team manager called Mrs X and said Council 2 had all necessary information to source a care package. The manager told Mrs X there was no legal framework to prevent Mrs Y leaving the care home, but recommended if Mrs Y were to leave it should be planned with appropriate support. The Council allocated social worker B to visit Mrs Y to get her views.
Social worker B visited Mrs Y and completed a mental capacity assessment, finding she was able to make the decision to move to live with Mrs X. The care home confirmed it had no concerns about Mrs X caring for Mrs Y. Social worker B clarified Mrs Y could move her bed from her own home, and that as a self-funder she did not ‘need’ Council 2 to arrange care.
In late January 2024, a physiotherapist reviewed Mrs Y and did what she could to facilitate “a safe transfer to daughter’s house as per [Mrs Y’s] request.”
In early February 2024, after further delay with Council 2, Mrs Y moved in with Mrs X.
In mid-February 2024, the Council responded to Mrs X’s complaint, accepting there was no legal framework for Mrs Y to remain in the care home and she had always had capacity to make decisions.
It said as Mrs X was going to be a self-funder she could have arranged the move at any time, acknowledged it could have supported her to take Mrs Y home earlier, and apologised for the distress and inconvenience.
Mrs X remained unhappy, saying she had been told she could not make arrangements and was not permitted to take Mrs Y home until early February.
In early March 2024, the Council responded again, referring to the November 2023 MDT meeting, and apologised if there was a misunderstanding or an impression she was not ‘allowed’ to take Mrs Y home.
What was found
The Ombudsman found the Council was at fault for failing clearly to explain there was no legal bar to Mrs Y leaving the care home. Mrs Y was going to be a self-funder with the mental capacity to make her own decisions about where to live.
The Council failed to give due regard to Mrs Y’s right to a private and family life under the Human Rights Act 1998. There was no evidence of any discussion with Mrs Y at this point about what she wanted, and no clear advice was given to Mrs X about the action she needed to take to get Mrs Y home. This was recognised as fault by the Council.
The Council repeatedly suggested it would be for Council 2 to assess Mrs Y, but the Council had already conducted an assessment so a further one was not needed.
Mrs X said several times she could meet Mrs Y’s needs with family support and would commission additional support if the family could not manage.
The outgoing Council did not produce a care and support plan. While this may not have been required as the Council was not going to be commissioning a service for Mrs Y, it failed to continue to support Mrs Y in planning for her to go home. As Mrs Y was above threshold, neither this Council nor Council 2 would be required to commission a service unless Mrs Y requested it, and there was no evidence that that was the plan. The failure to properly discuss and consider Mrs X and Mrs Y’s views amounted to fault by the Council.
Additionally, the needs assessment was wrongly recorded as it appeared Mrs X wanted to move Mrs Y’s bed from the care home, when in fact Mrs X wanted to take the bed from Mrs Y’s own home to Mrs X’s home in Council 2’s area. It was not until mid-January that social worker B correctly advised Mrs X that the bed could be moved.
The records showed Mrs Y was settled in the care home and there were no issues with the care she received. She did not object to the care; however, she did not want to be in the care home, and both Mrs X and Mrs Y wanted Mrs Y home for Christmas. The Ombudsman found that, even on the balance of probabilities, this would not have happened even without the fault by the Council. However, on balance, the Ombudsman considered that Mrs Y would have been home by early January 2024. The delays caused Mrs Y to incur more care fees than she should have, and caused Mrs X significant distress and frustration.
The Ombudsman ordered the Council to apologize to Mrs X, pay her £500 to acknowledge distress and frustration, and pay Mrs Y’s care home fees from 1 January 2024 until she moved to her daughter’s home in early February to remedy the fault.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s analysis overlooks key public law principles requiring councils to produce a care and support plan after any needs assessment, if someone known to the council In terms of a care package is moving of their own volition, so that that assessment and Care plan can be used by the destination council.
This plan must specify needs to be met and how, and even if a person is going to be self-funding they have a right to the expertise that should be reflected in the plan.
A person who qualifies for FNC does not necessarily need to be in a nursing home if their friends or relatives are willing to support them. In addition, a council can be required to provide home care even to a person who is above threshold (see section 18(3)). But because of the daughter’s faith in the family’s ability to cope and equipment already in her, or her mother’s home, it was not envisaged that Council 2 would even be asked to let Mrs Y into its commissioned arrangements with providers. Some unwarranted assumptions were made by the Council’s staff.
The Council’s needs assessment set out prerequisites for discharge based on risk assessment, but failed to produce a care plan or give proper weight to Mrs Y’s mental capacity and her expressed wish to live with her daughter. This approach prioritised institutional risk management over Mrs Y’s wellbeing and right to family life, contrary to the person-centered principles of the Care Act and smacks of robotic processing, without any apparent awareness of how easy it was for the above misunderstanding to arise.
The Council agreed to share the decision with relevant ASC staff at team meetings and discuss the learning from the case regarding the support provided to care home residents who are able to make their own decisions and want to go home.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Nottinghamshire County Council (24 010 840) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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