Summary: Mr X complains the Council failed to carry out a financial assessment prior to his mother entering respite care. As a result Mrs Y has wrongly paid the full cost of her care. The Council’s failure to record any discussion with Mrs Y about the cost of funding her respite care, or to carry out a financial assessment when it arranged Mrs Y’s respite care amounts to fault. There was also fault in the way the Council assessed Mrs Y’s care needs when she returned home. These faults have caused Mrs Y an injustice in having to fund the full cost of her care.

The complaint

1. The complainant, whom I shall refer to as Mr X complains the Council failed to carry out a financial assessment prior to his mother entering respite care. As a result Mrs Y has wrongly paid the full cost of her care.

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The Ombudsman’s role and powers

2. 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)
3. 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, section 30(1B) and 34H(i), as amended)
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• sent a statement setting out my draft decision to Mr X and the Council and invited their comments. I have considered Mr X and the Council’s comments.

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What I found

6. Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In both cases, a local authority has the discretion to choose whether or not to charge.
7. The Care Act 2014 and the associated Care and Support Statutory Guidance set out the rules the Council must follow when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
8. The law states that people who have over the upper capital limit (currently £23,250) are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.

Mental capacity

9. 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.
10. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
11. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time. How the council assesses capacity may vary depending on the complexity of the decision.

What happened here

12. On 6 August 2018 a social worker (Officer 1) visited Mrs Y to assess her care needs following a recent fall. A district nurse and community psychiatric nurse also attended the assessment. Mrs Y lives in her own home and told the social worker that she did not want support from carers. Officer 1’s notes state Mrs Y wanted to arrange a short period of respite with Mr X’s support.
13. There is no record of any discussion regarding the funding of this respite. Nor are there any references to Mrs Y’s mental capacity. The Council states Mrs Y refused to provide Officer 1 with information about her finances and said she had enough funds to pay for services herself.
14. Mr X approached Care Home 1, and a manager visited Mrs Y on 8 August 2018 to assess whether the home could meet her needs. The manager then contacted the Council as she was concerned Mrs Y had serious memory issues and could be easily manipulated. The manager was not willing to take payment for private care while Mrs Y could not demonstrate clear thinking.
15. The Council’s records also show Mr X contacted the Council with concerns about Mrs Y’s welfare. Mr X asked the Council to arrange a placement in a residential respite home.
16. Officer 1 visited Mrs Y with the district nurse on 9 August 2018. Officer 1 was unable to carry out a mental capacity assessment as Mrs Y had an infection and was taking anti-biotics. The notes state Mrs Y agreed to a one week stay in respite.
17. The Council contacted several homes. Another social worker, Officer 2 arranged a placement at Care Home 2. The notes state Mrs Y would be self-funding the placement at a rate of approximately £125 per night. Officer 2 advised Care home 2 that the length of the placement was unknown. The notes also state:

“Spoke to [Mr X] who has agreed to take her- all details given”

18. Mr X states that when the Council informed him of the placement it told him about the daily rate, but there was a lack of clarity about how this would be funded. He states that when they arrived at Care Home 2, the manager asked who would be paying, Mrs Y or the Council.
19. Officer 1 visited Mrs Y at Care on Home 2 on 17 August 2018. The Council notes state Mrs Y expressed a wish to return home, and that Mr X convinced her to stay for another week. During this visit Officer 1 carried out a mental capacity assessment. Officer 1 determined Mrs Y lacked capacity and was not able to make an informed decision about returning home.
20. On 23 August 2018 Officer 2 advised Mr X of the funding options for respite care and the funding threshold levels.
21. Officer 1 carried out another mental capacity assessment on 24 August 2018. This again determined Mrs Y lacked capacity and was not able to make an informed decision about returning home. Officer 1 decided it would be in Mrs Y’s best interests to extend the short stay respite.
22. Following this meeting Mr X told Officer 1 that he would like Mrs Y to return home with a suitable care package. On 28 August Mr X told the Council he wanted Mrs X to leave Care Home 2 on 30 August 2018. She would then stay with a friend and return home on 2 September 2018. Mr X advised the Council he was researching local care providers and anticipated being able to make the necessary arrangements himself. Mr X contacted the Council again on 2 September 2018 as he had found that Mrs Y had just over £5,000 in savings and would need a financial assessment as this was significantly less than the threshold.
23. Mr X arranged for Mrs Y to receive three hours support each day when she returned home. Officer 1 assessed Mrs Y’s care needs on 5 September 2018 and determined Mrs Y would benefit from having carers in the morning to help her with personal care and preparing breakfast. The Council considered Mrs Y was eligible to 30 minutes of care each morning. Officer 1 also carried out a mental capacity assessment and determined Mrs Y had capacity to make an informed decision about her finances and managing direct payments.
24. Mr X contacted the Council on 10 September 2018 to ask for an update regarding Mrs Y’s assessments. He was not aware that care assessments had already been carried out and disagreed with the proposed level of support. Mr X also complained that Mrs Y had had to pay the full cost of her care and asked the Council to refund this. The Council confirmed it would carry out a financial assessment and then review the level of Mrs Y’s contribution.
25. Based on the financial information Mr X provided the Council calculated Mrs Y’s maximum contribution would be £90.34 per week.
26. Mr X made a formal complaint that the Council had not carried out a financial assessment before Mrs Y went into respite care. Mrs Y saving were significantly below the threshold for Council funding and she should not have been required to fund her own care. Mr X also raised concerns about the care assessment and questioned why he was not involved in it. He also questioned how the Council had assessed that one 30 minute visit each day was sufficient, when on 23 August 2018 the Council has assessed that Mrs Y should remain in respite care. Mr X asked for another care assessment which he could be involved in.
27. The Council responded in late October 2018 and set out a chronology of events since August 2018. It advised Mr X that its case notes of the assessment on 6 August 2018 documented that Mrs Y did not agree to a financial assessment and wanted to arrange a short residential stay privately. The Council also referred to an email to Mr X from Officer 2 on 30 August 2018 which noted Mrs Y had said she had over £23,250 in savings.
28. The Council considered it was correct to respect Mrs Y’s wishes to refuse a financial assessment and that it was reasonable to believe she had over the threshold of savings. The Council also noted that a mental capacity assessment on 10 September 2018 determined Mrs Y had capacity to manage her finances.
29. Mr X did not consider the Council had adequately addressed his concerns and asked for the matter to be considered further. Mr X discussed his concerns with the Council, and the Council offered to pay Mrs Y £1570. That is the cost of Mrs Y’s stay at Care Home 2, at the Council’s rate of £614.44 per week (87.92 per day), less her contribution of £90.34 per week. The Council also offered to pay £500 towards Mrs Y’s home care charges.
30. Mr X does not consider this offer to be adequate. Mrs Y paid a private rate of £150 per day to Care home 2 so the total cost of her care there was £2,850. She also paid £782.50 for private home care. Mr X asserts that had the Council carried out a financial assessment at the outset Mrs Y would not have incurred these charges. Mr X questions what information the Council gave Mrs Y about the cost of her care and the financial assessment. He also questions whether Mrs Y had capacity to make a decision about her finances on 6 August 2018.
31. In response to my enquiries the Council acknowledges it records of the visit and the assessment on 6 August 2018 are brief. It states that during its complaint investigation a team manager discussed the assessment with Officer 1 in detail. The Council states Mrs Y refused to provide Officer 1 with information surrounding her finances during her assessment and stated she had enough funds to pay for services herself.
32. In relation to Mr X’s concerns about Mrs Y’s capacity, the Council states it will complete a mental capacity assessment if they feel a person’s mental capacity may be impaired. At this assessment however Officer 1 felt that Mrs Y was able to make her wants known and a mental capacity assessment would not have been appropriate. The Council also notes that a District Nurse and a Community Psychiatrist Nurse attended the assessment and did not raised any concerns about Mrs Y’s mental capacity.
33. The Council acknowledges the short time frame between Officer 1’s assessment on 6 August 2018 and Care Home 1’s concerns about Mrs Y’s capacity on 8 August 2018. It states mental capacity assessments are time and decision specific. It suggests Mrs Y’s diagnosis of dementia, coupled with possible added confusion due to her untreated infection may have had an adverse effect on her capacity during the assessment on 8 August 2018. The Council does not consider this negates the fact that during her assessment on 6 August 2018 Officer 1 had no concerns about Mrs Y’s mental capacity.
34. In making its offer to resolve Mr Y’s complaint, the Council mistakenly deducted two weeks contribution, rather than the 20 days Mrs X would have paid. Had this been correctly calculated, the Council would have offered to pay Mrs Y £1487.38. The Council will however honour its offer to pay £1577.12.
35. The Council considers its offer of £2077.72 is reasonable given the Council was acting upon Mrs Y’s instructions, and it was felt there were no concerns with her mental capacity at the time these were discussed.

Analysis

36. There is no record of any discussion with Mrs Y about the cost of funding her respite care. Contrary to the comments in the Council’s response to Mr X’s complaint, its case notes do not document that Mrs Y did not agree to a financial assessment. The notes do record that Mrs Y wanted to arrange her own respite, but state Mrs Y did not want the Council to arrange respite due to concerns about privacy and overcrowding. There is no indication of the cost of respite, or whether Mrs Y understood she would be responsible for, or could afford it.
37. The Council’s failure to clearly document any discussion with Mrs Y regarding the cost of respite and how this should be funded amounts to fault. The Council is unable to show that Mrs Y was aware she would be responsible for the full cost of her care, or how much this would be.
38. Mr X has raised concerns over Mrs Y’s capacity to make decisions at the assessment on 6 August 2018. There is no record of any consideration of Mrs Y’s capacity to make decisions about her care or its funding at this assessment. This is not necessarily fault as the Council must presume Mrs Y has capacity unless it is established she does not. I also note that a district nurse and community psychiatric nurse attended the assessment. There is no reference to either of them being concerned about Mrs Y’s capacity.
39. Mental capacity assessments are specific to the decision to be made at a particular time. And it is clear from the documentation provided that Mrs Y’s capacity to make decisions fluctuated over the following weeks. It would not be possible to retrospectively determine whether Mrs Y had capacity at the assessment.
40. The Council states it did not commission Mrs Y’s placement at Care Home 2. It states it regularly assists self-funding residents to identify care homes with available placements, but it does not commission the placements. In this instance I consider the Council did in effect commission Mrs Y’s placement at Care Home 2. At Mr X’s request, the Council identified a suitable care home, and arranged Mrs Y’s respite placement. In arranging this placement, the Council agreed a private rate of around £125 per day rather than its own rate of £87.92 per day. As the Council arranged this placement, I would have expected it to agree its own rate and consider the failure to do so to be fault. The lack of clarity regarding the funding of this placement and who was responsible for the cost. This also amounts to fault.
41. I consider there was also fault in the way the Council assessed Mrs Y’s need for support at home following the respite care. The assessment document is very brief and includes little information about Mrs Y’s needs. The support plan states Mrs Y needed minimal support to maintain her physical and mental health and emotional wellbeing. It does not suggest she needs support with personal care but agrees 30 minutes care each morning to assist Mrs Y with her personal care and preparing breakfast.
42. This assessment of minimal support needs is also at odds with the Council’s earlier assessments that Mrs Y’s acute short-term memory meant she was unable to meet her care needs. The capacity assessments completed while Mrs Y was at Care Home 2 referred to Mrs Y having a high level of care needs. The notes of the best interest decision also refer to Mrs Y being at risk of self-neglect, high risk of falls and at risk of being under or over medicated. There is no reference to any of these concerns in this assessment.
43. I also note the Council did not address Mr X’s concerns or provide any explanation or further information about its assessment of Mrs Y’s needs in its response to his complaint.
44. The absence of a clear record of how the Council assessed Mrs Y’s care needs and how it determined these could be met by a single visit each day amounts to fault.
45. Having identified fault, I must consider whether this has caused Mrs Y an injustice.
46. Mrs Y’s contribution for the 19 days she spent at Care Home 2 would be £245.29. She has paid £2850 for this stay, that is £2604.71 more than she would have paid if the Council had assessed her finances at the outset. It is unclear why Mrs Y was charged £150 rather than the £125 per day the Council agreed for her stay at Care Home 2.
47. The Council has offered to reimburse Mrs Y’s respite fees at its own rate, less her contribution. Its offer of £1577.72 means Mrs Y will still have paid £1026.99 more than she would have if the Council had assessed her finances at the outset. I do not consider the Council’s offer is adequate and would expect the Council to reimburse Mrs Y the amount she has paid for her respite care less her contribution.
48. Mrs Y has also paid £782.50 in home care fees. Mrs Y had this service for two weeks so would have paid a maximum contribution of £180.68. The Council’s offer to pay £500 towards this care means Mrs Y will still have paid £101.82 than she would have if the Council had assessed her finances at the outset. I do not consider the Council’s offer is adequate and would expect the Council to reimburse Mrs Y the amount she has paid for her home care less her contribution.
49. The Council has also put Mr X to unnecessary time and trouble in in trying to resolve this matter

Agreed action

50. The Council has agreed to:
• apologise to Mrs Y for the failings identified above;
• pay Mrs Y the cost of her respite care and home care, less her contribution. I calculate the sum to be paid to Mrs Y to be £3,206.53.
• pay Mr X £100 in respect of the unnecessary time and trouble he has been put to in trying to resolve this matter; and
• remind staff / provide training on the need to properly document assessments and care and support planning.
51. The Council should carry out these recommendations within one month of the final decision.

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Final decision

52. The Council’s failure to record any discussion with Mrs Y about the cost of funding her respite care, or to carry out a financial assessment when it arranged Mrs Y’s respite care amounts to fault. There was also fault in the way the Council assessed Mrs Y's care needs when she returned home. These faults have caused Mrs Y an injustice in having to fund the full cost of her care.

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Investigator's decision on behalf of the Ombudsman