The Ombudsman's final decision
Summary: Mrs X complains about the charges for her son’s care after he left a care home to live with his family because of COVID-19. Although the Council agreed to waive 50% of the charge, Mrs X says this left her son without enough money to contribute towards the family’s increased household costs. The Council failed to review Mr Y’s needs or consider ending his placement when he went to stay with his family. This prevented him from accessing all his money and caused avoidable distress to his family. The Council needs to apologise, waive all Mr Y’s charges since 1 June 2020 and pay financial redress to his family.
The complaint
The complainant, whom I shall refer to as Mrs X, complains about the charges for her son’s care after he left a care home to live with his family because of COVID‑19.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended) This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “ Good Administrative Practice during the response to COVID-19 ”.
We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
Legal and administrative background Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Government’s Care and Support Statutory Guidance says councils should review plans when there has been a change in a persons’ needs or circumstances.
The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
A key principle of the Mental Capacity Act 2005 is that any act done for or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
The Council’s August 2020 Debt write-off and waiver of fees for care services, policy and procedure says: “In exceptional circumstances practitioners may consider waiving a charge for a residential or non-residential service where it would be in a service user’s best interests. ‘Exceptional circumstances’ would include where incurring the full assessed contribution would have a detrimental impact on the individual. Whilst each case will be considered on its merits, the contribution may be waived or reduced where it can be shown that paying the full assessed contribution would cause:” “severe financial hardship”; “the individual’s health or wellbeing to be placed at serious risk”; “the care plan would not be followed, or would become significantly more restrictive”; “The Council may make policy decisions to waive charges for care in order to support other policy aims, such as safe discharge from hospital and in response to public emergencies. These policies should be referenced on individual records.”
How I considered this complaint
I have: considered the complaint and the documents provided by Mrs X; discussed the complaint with Mrs X; considered the comments and documents the Council has provided in response to my enquiries; considered the Ombudsman’s guidance on remedies; and invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.
What I found
What happened Mrs X’s son, Mr Y, is an autistic adult who has a learning disability. He has sensory needs arising from being autistic; they include spending a long-time bathing. In March 2020 he was living in a care home, arranged and funded by the Council to meet his eligible care needs. However, the plan was for him to move into his own flat, where he would receive support from the same care provider running the care home. He had to contribute all his income towards the cost of the care home, apart from his personal expenses allowance of £24.90 a week.
Mrs Y says the care provider called to ask if they could look after Mr Y, as it did not have enough staff to meet his needs because of COVID-19. Mr Y went to stay with his grandparents on 13 March. Mrs X says this was because: he was living in an area with high rates of COVID-19; he was at high risk from COVID-19 because he has asthma; he found it difficult dealing with care workers wearing masks; the care home closed to visitors, so his family could not visit him; and it would cause distress to Mr Y if the care home used agency staff (as an autistic adult, continuity is important for him).
The Council was neither involved in nor initially aware of the decision for Mr Y to move in with his grandparents. Mrs X says she assumed the care provider would tell the Council. She says she did not expect her son to return to the care home but to move from his grandparents’ home to the new placement being arranged by the care provider.
Mrs X contacted the Council in May, as she was surprised it had not contacted her to check how they were getting on. According to its records, by 26 May the Council knew Mr Y was staying with his grandparents. It asked the care home about a possible reduction in the charge for his placement. The care home said to speak to the finance director.
Mrs X asked the care provider if it could provide some money to cover the additional costs arising from Mr Y living with his grandparents. She says it initially offered £40 but agreed to pay up to £90 a week. In effect, it refunded the cost of weekly food shopping and occasionally replacement clothing.
In July Mrs X asked the Council to waive the charge for Mr Y’s care. In August it agreed to waive 50% of the charge since 23 March.
In September the care provider told the Council it had given the flat Mr Y was due to move into to another person due to an emergency. It said the person was likely to remain there, so Mr Y would not be able to move in. The Council spoke to Mr Y’s family about the news. They were disappointed. It said the care provider was not giving Mr Y notice to leave the care home, so he could return. But his family mentioned problems with the care home and said they only wanted to collect some more of his belongings. The Council said it would urgently review Mr Y’s needs to make sure he received the right support. It assigned an assessor to work with the family.
On 1 October Mr Y’s family told the Council the care provider had agreed Mr Y could move into one of its new properties. They said Mr Y would be the only resident for six months, after which other people would move in. The Council suggested a move to an independent tenancy, so his accommodation was not tied to the provider of his care. However, his family were keen for Mr Y to stay with his existing care provider. They said the care provider would arrange a meeting so they could all discuss the proposed move. Mrs X questioned the charges for Mr Y’s care, as she was not satisfied with the offer to waive 50% of the charges.
The care provider told the Council it had been providing some support to Mr Y while he was living with his grandparents. Mrs Y says this amounted to no more than three or four visits.
On 5 November Mrs X told the Council Mr Y would remain with his grandparents during the next four-week lockdown. She said this would ensure family could still see him. She also said the care home would provide someone to work with him Monday to Friday, who would not work with anyone else to reduce the risk of transmitting COVID-19. She says this never came to anything because the provider did not have enough staff. Mrs X confirmed the care home was sending £95 a week to cover the cost of food and activities, but said this did not cover the increase in household bills.
On 13 November the Council reviewed Mr Y’s needs with the care home and his family. According to its records: the care home agreed to produce a new support plan for Mr Y; the care home would discuss with Mrs X the support it could provide for Mr Y while he was with his grandparents; and the Council would update Mr Y’s Care Act assessment.
On 26 November, the care provider told the Council a place would be available for Mr Y in a new property from February 2021.
On 2 December the Council considered a funding application for a placement in a new care home run by the care provider. This says Mr Y would remain with his family until he moved to the new placement, which was expected to be in February 2021. According to the Council’s records, Mr Y’s anxiety levels had increased during the pandemic, resulting in the need for more reassurance and increased sensory needs. His grandparents’ water bill had increased from £9 to £70 a month and they had a £300 deficit in their fuel charges. Mrs X says this was because Mr Y did not have enough money to contribute towards increased household bills.
In December the Council reviewed its decision but did not change its offer to waive 50% of Mr Y’s charges, as it had not been involved in the best interests decision for Mr Y to move in with his mother.
In January 2021 the Council ended Mrs Y’s placement at the care home. Mrs X says this was after another officer was assigned to Mr Y’s case. She says the officer said the only way they would be able to use all Mr Y’s income to pay for the cost of him living with his grandparents was if the placement ended and he no longer had to pay his assessed charge. The ending of the placement also enabled a claim for carers allowance from the Department of Work and Pensions.
Mrs Y complained to the Council in April about the failure to waive all her son’s charge. She said the Council should have renegotiated her son’s charge while he could not live in the care home.
When the Council replied in June it confirmed its offer to waive 50% of the charge. It said this was already outside the terms of its charging policy and reflected a balanced response to the circumstances in which it had commissioned Mr Y’s care. It said the offer would enable him to contribute towards increased bills while staying with relatives. It said the care provider had refused to re‑negotiate Mr Y’s charges. It noted Mrs X had chosen the same care provider to arrange her son’s future care.
Is there evidence of fault by the Council which caused injustice?
When Mr Y left the care home in March 2020, the care provider should have told the Council. The failure to do so was fault, for which the Council is accountable. When notified that Mr Y was no longer living in the care home, the Council should have reviewed his needs, to make sure they could be met at his grandparents’ home. It should also have considered whether to continue funding his placement at the care home. It seems likely that if the Council had done this it would have ended the placement much sooner than it did (i.e. by the end of May 2020). This is because: there is no evidence to suggest Mr Y’s needs were not being met at his grandparents’ home; it appears the care home did not have the staff in place to meet Mr Y’s needs; and the placement was never intended to be long-term and plans were in place for him to move to another placement.
Despite reviewing Mr Y’s needs in November, it was not until January 2021 that the Council pointed out Mr Y would have access to all his money if the placement was ended.
When responding to Mrs X’s second request to waive all Mr Y’s charge in December, the Council said it would not do so because it had not been involved in the best interest decision to remove him from the care home. It is unclear what relevance this had within the context of its policy on waivers. If the Council did not think it was in Mr Y’s best interests to live with his grandparents, it should have held a best interests meeting to consider the matter. As it did not do so, I can only assume the Council was satisfied with the arrangement. The Council failed to explain how it had considered the issues set out in its policy. Its offer to waive 50% therefore appears arbitrary. These are further faults by the Council.
The Council’s faults have caused injustice to: Mr Y by preventing him from using all his money while at his grandparent’s home; his grandparents due to the distress caused by increased bills they could not afford to pay; and Mrs X due to the distress she has been caused and the time and trouble she has been put to in pursing the complaint.
Agreed action
When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the actions of the care provider and the Council, I have only made recommendations to the Council.
I recommended the Council within four weeks: writes to Mrs X apologising for the failings I have identified; waives all Mr Y’s charges since 1 June 2020; pays his grandparents £400 for the distress they have been caused; and pays Mrs X £300 for the distress she has been caused and the time and trouble she has been put to in pursuing the complaint.
The Council has agreed to do this.
Final decision
I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.
Investigator's decision on behalf of the Ombudsman