The Ombudsman's final decision
Summary: The complaint is about the way the Council’s adult social care and finance teams dealt with Mr Y’s case when he moved into a care home after being in hospital. Provisionally, the Council acted without fault and in line with the Mental Capacity Act, charging rules, guidance and our Principles of Good Administrative Practice when dealing with Mr Y’s case. So we do not uphold the complaint.
The complaint
Ms X complained in her own right and for her parents about: A failure to carry out adequate Mental Capacity assessments and Best Interests decisions including considering Mrs Y’s needs and a failure to consider Mr Y’s fluctuating capacity; Poor communication and lack of updates to family; A failure to provide family with information about charges; A failure to offer a face-to-face financial assessment; A failure to acknowledge financial information she provided many times and to properly assess Mr Y’s finances; and A failure to address the complaints fully.
Ms X said this caused avoidable confusion and distress.
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. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I considered the complaint to us, the Council’s response to the complaint and documents described in this statement. I discussed the complaint with Ms X.
Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Relevant law and guidance The LGSCO’s Principles of Good Administrative Practice set out an expectation that councils are ‘service-user focused’. This means we expect them to ensure people can access services easily and deal with people helpfully and promptly.
The Mental Capacity Act 2005 and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice paragraph 4.34) A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable: To understand and retain relevant information or Weight that information as part of the decision-making process or Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act, section 3) A council must provide local people with information and advice about care and support for adults and support for carers. (Care Act 2014, section 4) Most adult social care is chargeable. Councils carry out a financial assessment to determine how much the person should pay. For residential care, people pay most of their income. People who have savings over £23 250 pay the full cost of their care.
Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should normally follow. It says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging. I have summarised relevant paragraphs of CCSG below: Councils must be transparent, so people know what they will be charged. There should be enough information available so they can understand any charge. (Paragraphs 8.2 and 8.3) Councils should provide or signpost to advice and information when people come into contact with them. They should provide information to help people understand what they may have to pay, including an explanation of the charging framework. (Paragraph 3.43) The financial limit, called the upper capital limit sets out what point a person can access local authority funding for care. The upper limit is £23,250. If a person has savings (capital) over the upper capital limit, a council may charge them the full cost of their care. When their capital falls below the upper limit, they are entitled to seek means-tested support from the authority. This means the council will do a financial assessment of the person’s assets and will charge based on these rules. (Paragraphs 8.11 and 12) What happened
Background
Ms X and Mrs Y are Mr Y’s attorneys giving them legal power to manage his finances and property on his behalf. Mr Y has dementia and before the incidents leading to this complaint, he lived at home with his wife Mrs Y. Mr Y had a bleed on the brain in April 2023 and went into hospital.
May and June A social worker carried out a social care assessment. Mr Y was eligible for social care and the Council placed him short-term in a care home in June as he was recovering from the brain injury and needed support with most activities of daily living.
July The social worker liaised with Mrs Y’s representative who gave background information. Mrs Y said she could not cope with Mr Y at home and wanted him to move to a different care home to be closer to her. The social worker also spoke to staff at the care home who reported Mr Y’s abilities had improved since he arrived there and he was more independent.
The social worker spoke to Mrs Y’s representative and explained there was no guarantee the Council would agree to fund residential care and she needed to complete social care and mental capacity assessments. The social worker went on to explain the Council may instead decide to fund home care or assistive technology. The representative said she thought Mrs Y had assumed Mr Y would remain in residential care.
The finance team sent Ms X a letter with a financial form to complete with details of Mr Y’s income and capital. The letter asked her to return the form within 10 days or Mr Y would need to pay the full cost of his care. It said care charges would be back dated to the date the service started. The letter gave a link to the Council’s website which had information about charges and a tool to calculate an estimated charge.
The social worker visited Mr Y at the care home in July and completed a mental capacity assessment (MCA). The outcome was he had capacity to make decisions about his care. He could understand all the questions asked, retain and weigh up information. Mr Y said he wanted to go home to be with his wife. The social worker updated Mrs Y’s representative and explained the Council would look to fund home care or reablement. The social worker went on to say care would be chargeable and could be reduced if not needed. The social worker also spoke to Ms X who said she was concerned about Mr Y falling and Mrs Y not being able to cope with him at home. The social worker gave information about the policy on residential care, mental capacity, Mr Y’s wish to return home, his improvements since leaving hospital and that his needs could be met at home. The social worker noted she had provided financial assessment information. Ms X said she was not happy about Mr Y coming home.
The social worker visited Mrs Y at home. The social worker emailed some financial information and costing to Ms X. The social worker noted Mrs Y’s views and concerns about Mr Y returning home. She noted Mrs Y’s own health problems. The social worker said Mr Y wanted to come home and he had capacity to make this decision and the Council could offer daily home care to support Mr Y with personal care, meals, toileting, medication. Mrs Y said she would be concerned about leaving Mr Y alone if she needed to go for an appointment and the social worker said they would arrange for someone to sit with Mr Y. The social worker recorded Mrs Y kept declining everything offered and wanted a care home for Mr Y.
The social worker emailed Ms X after her visit and summarised what had been said. She confirmed Mr Y would be able to stay at the short-term care home for the time being.
The social worker emailed the care home about some feedback Mrs Y had given about Mr Y’s care in the care home. The care home’s view was Mr Y was mostly independent, but he needed some supervision with personal care and dressing.
August The finance team wrote to Ms X to say she had not returned the finance form and so Mr Y would be charged the full cost of his care. It explained if Mr Y had savings over £23 250, he would have to pay the full cost anyway and signposted Ms X to information about charging rules on the website.
An email from Ms X to the finance team indicates she completed the paperwork for a financial assessment as far as she could. She said her father’s papers were in a mess.
September and October The social worker visited Mr Y at the care home and completed an MCA around finances. Ms X was also present. The outcome was he lacked capacity to make financial decisions around his care. At a separate meeting at the care home, also with Ms X; the social worker assessed Mr Y’s capacity around decisions to do with his care. The outcome was he did not have capacity.
Ms X complained to the Council. She said she had been having difficulties getting all the information together for the finance team and had spoken to an officer in the finance team about this and they needed more time. She said she had filled in the forms as best she could.
The Council said in its response to Ms X’s complaint that: It emailed her financial information at the end of May 2023; Mr Y was discharged to short-term residential care in June; Mr Y said he wanted to return home in July, but Mrs Y and Ms X did not agree; The social worker spoke to her in July about her concerns regarding Mr Y going home. The social worker then emailed her with costing information; The social worker visited Mrs Y at the end of July and said that Mr Y was not eligible for a residential placement; and Ms X had two discussions with the finance team about collating the documents needed for the financial assessment form.
The Council completed a financial assessment in the middle of October and decided Mr Y would be a full-cost payer as he had savings over £23,250. It issued the first invoice for Mr Y’s care. This had the full charge from the day he went into the care home. The bill was over £10,000.
The social worker completed a document called a Best Interest Assessment’ in October 2023. She consulted with Mr and Mrs Y. Mrs Y said she would not be able to continue caring for Mr Y if he came home and would leave the relationship. The assessment set out the two options (care in a care home or a care package at home) and analysed the benefits and risks of each). The outcome was that it was in Mr Y’s best interests to receive care and support in a 24-hour care setting.
December 2023 to January/February 2024 Unhappy with the outcome of her complaint to the Council, Ms X complained to us.
Since then, Ms X has been in contact with officers in the finance and complaints team team by email. I have summarised Ms X’s queries and actions taken by officers: Officers made a referral to the Council’s money support service for advice for Mrs Y around managing income and household bills.
The finance team also asked some questions around an investment bond and annuity that Mr Y has. Ms X said she didn’t recall ever receiving any request for more information from the finance team.
Ms X said providing the supporting documents was a minefield and she had problems talking to staff on the phone for data protection reasons. And Mrs Y’s own disability meant she could not deal with things easily.
The finance team confirmed the debt would not be pursued while there was a complaint with the LGSCO.
Ms X said her father’s assets would be below the threshold now. The finance team were asked to do a re-assessment.
Findings
A failure to carry out adequate Mental Capacity Assessments and Best Interests decisions including considering Mrs Y’s needs and a failure to consider Mr Y’s fluctuating capacity I do not uphold this complaint because the social worker completed three assessments of capacity: two for care and one for finances. Those assessments were in line with the principles in the MCA described in paragraphs seven and eight. The first assessment concluded Mr X had capacity regarding care decisions; the second one concluded he did not. There clearly was recognition of Mr X’s fluctuating capacity because the two assessments had different conclusions. Mrs Y’s needs and views are recorded clearly. There is no fault. There is also no fault in the best interest decision as the document weighs up the pros and cons of the available care options and concludes it was in Mr Y’s best interest to stay in a care setting. This is in line with the family’s preference.
Poor communication and lack of updates to family The records indicate liaison by phone, email and in person visits to Mrs Y and Ms X. There was also liaison with Mrs Y’s advocate. This is in line with our expected standards of communication summarised in paragraph six (‘service user focus) and there is no fault. I appreciate Ms X and Mrs Y’s concerns about Mr Y returning home, but at the time those concerns were raised, Mr X was assessed as having mental capacity to decide on his care. Therefore, the Council had no power to prevent him from coming home. As a capacitated adult, he could make that decision, even against his wife and daughter’s wishes.
A failure to provide family with information about charges The records indicate the finance team sent out information about charges and signposted the family to information on the Council’s website including a calculator where Ms X could have got an idea of the charge at the time she was filling in the financial form. I appreciate Ms X was in a difficult position and I agree that charging is complicated. But the Council is not responsible for making the charging rules and I am satisfied it gave appropriate information in line with Section 4 of the Care Act 2014 and in line with paragraphs 8.2, 8.3 and 3.43 of Care and Support Statutory Guidance. The Council took about six weeks to complete the financial assessment once it received the completed paperwork. While this is longer than is ideal, it is not fault and has not caused injustice. I have taken into account that information available to Ms X was that Mr Y would need to pay the full charge anyway and so they knew what his charge would be (the full cost).
A failure to offer a face-to-face financial assessment There is no requirement to offer a face-to-face financial assessment. I note Mr Y’s finances were not in good order and Mrs Y’s disabilities, however Ms X is one of Mr Y’s financial attorneys and she has no need for an in-person visit. There is no fault.
A failure to acknowledge financial information she provided many times and to properly assess Mr Y’s finances There is no evidence Ms X provided financial information many times.
Family often do not realise that assets over £23 250 mean a person is not entitled to any funding for residential care arranged by a council. However, I am satisfied the information on the website was available for Ms X that would have told her this had she accessed it. The financial assessment was completed in line with charging rules and there is no fault.
A failure to address the complaints fully.
I do not uphold this complaint. The Council’s complaint response addressed the issues raised in a proportionate way.
Final decision
The complaint is about the way the Council’s adult social care and finance teams dealt with Mr Y’s case when he moved into a care home after being in hospital. The Council acted without fault and in line with the Mental Capacity Act, charging rules, guidance and our Principles of Good Administrative Practice when dealing with Mr Y’s case. So I do not uphold the complaint.
I completed the investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman