The Ombudsman's final decision
Summary: Mr X complains about the Council’s actions concerning his parents’ care and support needs, about the quality of care provided, and about how the Council administered the costs of care. We have discontinued our investigation into how the Council managed the charges for care. This is because the charges for care have not yet been settled and a financial assessment is ongoing. We will not investigate the other parts of Mr X’s complaint, as they concern matters that happened more than 12 months ago.
The complaint
Mr X complains about the Council’s actions relating to his parents’ care and support needs. Mr X says: the Council mishandled the charges for his parents’ care, providing inaccurate information about the overall cost and liability to pay. Mr X says the Council also took more than two years to confirm the overall cost of care.
the care provided to his parents in a Council-owned care home has been of poor quality and the Council did not act on Mr X’s concerns about this. Mr X says the quality of care was a factor in his father’s passing and his mother’s worsening ill health.
the Council sought to undermine Mr X in his position as Lasting Power of Attorney (LPA) for his late father, by calling into question Mr X’s own capacity to perform in this role.
the Council has refused to allow his mother to leave the care home to return abroad, despite initially agreeing to this in principle.
the Council’s motivation has not been his parents’ best interests, but its intent to seize their assets.
What I have investigated I have investigated that part of Mr X’s complaint about the Council mishandling the charges for his parents’ care and providing inaccurate information about the overall cost and liability to pay. The final section of the statement contains my reasons for not investigating the rest of the complaint.
The Ombudsman’s role and powers
We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by Mr X and discussed the complaint with him.
I considered information provided by the Council.
Mr X and the Council had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.
Relevant legislation, guidance and policies Deprivation of Liberty Safeguards (DoLS) The Deprivation of Liberty Safeguards (DoLS) are the result of an amendment to the Mental Capacity Act 2005 which came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
Court of Protection The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way.
Court-appointed Deputies The Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.
Charging for permanent residential care The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
Background
The Council received a safeguarding concern about Mr X’s parents, Mr and Mrs Y, in late 2017. In early 2018, Mr and Mrs Y moved into a care home. Mr X has told me their stay in the care home was intended to be short term and they were due to return home abroad. However, due to their deteriorating health, both Mr and Mrs Y did not return home and remained in the care home.
Charges for care Mr and Mrs Y’s move into residential care Mr X complained about how the Council managed the care charges for Mr and Mrs Y. Mr X says the Council did not notify him about the costs for more than two years, despite him seeking clarity on several occasions. He also says the Council has tried to charge more than it should and has provided conflicting information about liability.
At the time Mr and Mrs Y moved into a residential care setting, Mr X had LPA for Mr Y’s finances. Mr X did not have LPA for Mrs Y’s finances, but was her DWP Appointee. This meant he could manage matters relating to Mrs Y’s benefit payments and entitlements.
When Mr and Mrs Y moved into residential care in early 2018, the Council asked Mr X to complete a financial assessment on their behalf. I have seen copies of the financial assessment forms completed by Mr X on behalf of both Mr and Mrs Y.
Mr X did not provide any financial information for either of his parents at the time. Section G of the assessment form deals with non-disclosure of financial information. It says an individual not wishing to disclose financial information should sign the accompanying declaration. The declaration states “I do not wish to provide information about my financial situation and agree to pay the full cost of the service or personal budget.” Mr X has signed the declaration on both forms.
The assessment form outlines what will happen next. It says once the Council has received the completed form, it will aim to assess the personal contributions within 28 days. It will then send a letter detailing: the cost of the placement; the amount of the weekly contribution; how the contribution, if any, has been calculated; whether payments should be made to the Council or Care Home; benefit advice based on the individual’s circumstances; and whether a legal charge has been placed on a property owned by the individual.
Mr Y passed away in late 2018. Mr X told me he never received the above information and intermittently sought information about the cost of his parents’ care over the course of the next two years. He says he was given conflicting information about who to contact and what the financial arrangements were. Mr X says it was suggested to him the Council was meeting the costs.
Council’s request for payment In late December 2020, Officer A wrote to Mr X on behalf of the Council. Officer A said he had received an instruction from the Council’s social services that Mr and Mrs Y had been placed into residential care in March 2018, and this was a Council-funded chargeable service from April 2018. Officer A apologised for the time taken to contact Mr X about this matter. He said he needed to complete financial assessments to establish the correct contribution due towards the care provided and requested relevant financial information.
Officer A referred to the financial assessment forms completed by Mr X in 2018. Because Mr X had opted not to disclose any financial information, the full cost of care was currently payable. Officer A provided a breakdown of the weekly charges incurred by both Mr and Mrs Y. Cumulatively, the cost of care at that time was almost £150,000.
Mr X complained to the Council about this. The Council responded in January 2021.
Current situation and analysis Mr X referred his complaint to the Ombudsman in December 2021. As far as I understand, the situation set out above did not substantively change in the 11 months between the Council’s complaint response and Mr X’s approach to the Ombudsman. During 2022, while this complaint was being considered by the Ombudsman, Mr X applied for and obtained deputyship for Mrs Y. This means he now has authority to manage her financial affairs.
The property in which Mr X currently lives, and where he previously resided with Mr and Mrs Y, has now been disregarded by the Council for the purposes of any financial assessment. This was not the case at the time Mr X made his complaint to the Council and was a key factor in Mr X’s complaint.
Recent correspondence from the Council to Mr X shows Mrs Y’s care costs increased further. The Council said because Mr X had not provided any financial information for assessment, it had decided Mrs Y was liable for the full cost of her care and it would invoice for this. The total costs at the time of writing are significant. The Council said it would still be prepared to assess any relevant financial information that might change Mrs Y’s liability. Mr X told me he has since provided information the Council has asked for and this is being assessed.
The cost of care could change significantly, depending on the outcome of a newly completed financial assessment. Because of this, the extent of any injustice caused by the time taken in issuing a bill is difficult to assess. It is my judgement the Ombudsman cannot reach a decision on fault, and the extent of any resultant injustice, until Mr X is satisfied he has no other information to provide to the Council for assessment and the Council makes a final decision about the costs of care.
I have therefore discontinued my investigation on the basis that further investigation will not achieve a worthwhile outcome, until the financial assessment process is complete.
Parts of the complaint that I did not investigate Quality of care & Council’s conduct Aspects of Mr X’s complaint concern matters that occurred more than 12 months ago. These aspects are: allegations the Council was motivated to place his parents, Mr and Mrs Y, in a care home in order to seize their financial assets; allegations the Council sought to undermine Mr X in his capacity as Mr Y’s LPA by suggesting he was incapable of performing this role; and allegations of poor-quality care, contributing to Mr Y’s passing and to Mrs Y’s declining health.
As outlined in paragraph 4, the Ombudsman cannot consider a complaint about something that happened more than 12 months ago, unless there are good reasons to do so. A good reason would be something that prevented someone from making a complaint at the time.
I discussed the complaint with Mr X, who said he had concerns about the Council’s motivations and the quality of care. Mr X says he did not formally complain at the time because he understood the appointed Independent Mental Capacity Advocates (IMCAs) were responsible for such matters, although he did raise concerns with the Council. Mr X also says he believed the Council would not have listened to his complaints and would have favoured the care home in any investigation it carried out. He also says the Council was a complicit party in the events in question.
While I understand Mr X had reservations about the merits of making a formal complaint, I have not identified any reason he could not have done so when he first had concerns. Had the Council then refused to investigate, or provided an unsatisfactory response, Mr X could have referred his complaint to the Ombudsman. On this basis, and in line with the legislation outlined in paragraph 4, I will not investigate these matters now.
DoLS Mr X has confirmed he is challenging the Council’s assessment of Mrs Y’s best interests via the Court of Protection. As outlined in paragraph 11, the Ombudsman cannot make a determination on these matters, as the Court of Protection is best placed to consider disputes about best interests. I cannot therefore consider this aspect of Mr X’s complaint.
Final decision
I have discontinued my investigation, on the basis the overall costs for Mr and Mrs Y’s care have not yet been settled. Other parts of Mr X’s complaint are for occurred more than 12 months ago, and I have not disapplied the 12-month time limit in this case.
Investigator's decision on behalf of the Ombudsman