Council had no regard for man’s human rights in leaving him in care home for five months, report finds

A council had ‘no regard’ for a man’s human rights when it left him in a care home he couldn’t afford and away from his family for five months, the Local Government and Social Care Ombudsman has found.

Nottinghamshire council’s delay in assessing Mr D’s care needs or his capacity to make decisions about his care and living arrangements meant he accrued £15,000 of debt in care home fees.

As a result, the care provider pursued Mr D’s wife, Mrs D, for over a year until she was eventually threatened with bailiff action. This was distressing for Mrs D, who was suffering a carer crisis at the time because she had become unable to care for Mr D while also looking after their terminally ill son.

Nottinghamshire said it “wholeheartedly accepted” all of the ombudsman’s recommendations had apologised to the family for its failings.

Left in care home for five months

In April 2019, Mr D, who has dementia, was placed in a care home by his wife as she struggled to care for both Mr D and her son, who had been diagnosed with terminal cancer.

Mrs D initially told the council in February 2019 that she was struggling and the council funded a one-week stay for Mr D in a care home to give her respite. The council said it would fund a two-week stay in April but anything after that would be funded privately by the family.

When the two-week respite ended, Mrs D felt she still couldn’t cope with Mr D at home so he stayed on.

The council’s view throughout was that Mr D was entitled to return to his home, that he didn’t need residential care and that his needs could be met with additional care calls at home to take some pressure off Mrs D.

However, the council didn’t complete an assessment that would have established Mr D’s care and support needs and ascertained whether these could be met in the community without Mrs D’s support, until September 2019. It also similarly delayed any assessment of his capacity to make a decision regarding his care and support and consent to remain in the care home and incur the fees.

When it completed the assessments that September, it decided his care needs could be met in the community with a package of support, and that he did not have the capacity to decide where to live or make decisions about his finances.

The council agreed short-term funding to pay for the care home from the date of its assessment until Mr D moved to a unit for further assessment in October. However, this left Mr D with £15,000 debt from his stay in the care home, which the family could not repay.

Failure to consider Article 8 rights

Because of the council’s delay, Mr D remained away from his home without the council “establishing and recording a good reason”, the ombudsman found. Mr D had a right under Article 8 of the European Convention on Human Rights to respect for his private and family life and home.

The ombudsman found the council was at fault for failing to consider Mr D’s Article 8 rights and whether it was necessary and proportionate for him to be away from his home.

Mr D lacked mental capacity to make decisions about his care and finances and the council’s delay meant a large bill for residential care accrued. Nottinghamshire’s own records state Mr D remained in 24-hour care without giving consent and was not liable for the bill, which the ombudsman said was a fault.

“The onus was on the council to decide in his best interests in accordance with the Mental Capacity Act 2005, it delayed doing that and this was fault,” the ombudsman said.

Given that in September 2019, the council assessed Mr D and agreed to fund the fees until he moved, the ombudsman concluded that, had it completed the required assessments promptly, it would have agreed responsibility for the funding, Mr D would have moved from the care home sooner and he would not have incurred the outstanding fees.

It also failed to assess Mrs D’s needs as a carer despite her being in crisis.

“Mrs D had told the council she could not cope with Mr D at home, the council should not expect family members to act as carers unless they are willing and able to do so,” the watchdog said.

Recommendations

The council has agreed to apologise to Mr D for its failings and has told the care provider it will take over responsibility for the outstanding care fees and that it should stop pursuing Mrs D.

The council has also agreed to:

• Pay Mrs D £500 to acknowledge the distress caused by the pursuance of the care fees for over a year, and the distress caused by not having a clear plan for Mr D’s care and support from April to October 2019 at a time of carer crisis.
• Pay £250 to Ms B, Mr and Mrs D’s daughter, who brought the complaint, to acknowledge her time and trouble pursuing the complaint and supporting her parents at a time there was no clear plan for Mr D’s care and support.
• Review the reasons for the delays in this case and implement any identified improvements to service.
• Give relevant staff training on applying the Human Rights Act 1998 to adult social care cases so that staff are aware when the articles of the act might be engaged, and what is required of them to ensure individuals’ rights are not ‘unlawfully interfered’ with.
• Document any consideration it has to the Human Rights Act 1998 in individual cases.

Nottinghamshire revises MCA practice

Melanie Brooks, corporate director for adult social care and health at Nottinghamshire, said: “We are committed to improve and have already started acting on the recommendations, we have been working directly with the team to ensure they are working within the Mental Capacity Act (MCA) to promote well-being.

“MCA documentation has been revised and briefings given to staff with a new provider coming in to give ongoing training across the service,” Brooks said.

She said the council had also developed an action plan to ensure that all the recommendations in the report are met.