Decision : Upheld
Decision date : 03 Feb 2020
The Ombudsman's final decision:
Summary: Mr X complains about the Council’s decision to charge his son for care provision. The Council had previously waived his son’s contributions. Mr X says the Council did not complete a mental capacity assessment for his son. He also complains about how the Council completed the financial assessment. The Ombudsman finds some fault with the Council’s actions. However, we do not find fault with the Council’s decision to charge Mr X’s son for his care provision or with the way it completed the financial assessment. We have recommended the Council apologise to Mr X.
- Mr X complains about the Council’s decision to charge his son for care provision. The Council had previously waived his son’s contributions in 2008, 2010, and 2016. Mr X says his son has no capacity to manage his finances and the Council did not consult other professionals who had worked with his son for several years when it made its decision. Mr X also complains about how the Council completed the financial assessment.
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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I spoke with Mr X and considered the information he provided.
- I made enquiries with the Council and considered the information it provided.
- I sent a draft decision to Mr X and the Council and considered their comments.
What I found
The Care Act 2014
- Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
Care and support statutory guidance
- Councils 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 all cases, a local authority has the discretion to choose whether or not to charge under section 14 of the Care Act 2014 following a person’s needs assessment. Where it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance. (Paragraph 8.4)
- Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required. (Paragraph 8.9)
- Annex C of the statutory guidance covers the treatment of income when conducting a financial assessment. It notes that councils may take most of the benefits people received into account. However, there are some that must be disregarded, including the mobility component of Disability Living Allowance.
Mental Capacity Act 2005
- The Act states a person lacks capacity if they cannot make a specific decision, at a specific time, because of an impairment of, or disturbance, in the functioning of mind or brain.
- There are five key principles of the Mental Capacity Act. These are:
- Principle 1: Every adult has the right to make their own decisions. They must be assumed to have capacity unless it is established they lack capacity.
- Principle 2: People must be supported as much as possible to make their own decisions before anyone concludes that they cannot do so. This means every effort should be made to encourage and support the person to make the decision for themselves. If a lack of capacity is established, it is still important the person is involved as far as possible in making decisions.
- Principle 3: People have the right to make what others might regard as unwise or eccentric decisions. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. People cannot be treated as lacking capacity for that reason.
- Principle 4: Anything done for or on behalf of a person who lacks mental capacity must be done in their best interest.
- Principle 5: Anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms.
- Mr X’s son, Mr A, has a brain injury which impacts on his cognitive functioning and mobility. Mr A also a genetic condition. Mr A’s mother, Mrs X, has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of Mr A’s benefits payments.
- In 2008, the Council decided to waive Mr A’s assessed contributions for his care and support. The records showed the Council had considered the fact Mr A lacked insight into his care needs and had a history of cancelling support. The Council noted Mr A felt he did not need the support and said he would not pay for the support. The Council said this mean Mr X losing his care package, which would in turn lead to a worsening of his well-being and put him at risk. This would then lead to an increase in his needs at a later date.
- The Council reviewed its decision in 2010. The Council decided to continue to waive Mr A’s assessed contributions. The Council noted Mr A had refused to pay towards the cost of care but that the care package is required. The Council noted if the care package was cancelled, it would lead to a worsening in Mr A’s well-being, make him more vulnerable, and increase his needs at a later date.
- In 2016, the Council completed a reassessment of Mr A’s care and support needs. The Council did not review its decision regarding Mr A’s assessed contributions but continued to waive Mr A’s charges.
- The Council did not complete another review of Mr A’s care and support needs until March 2019. The Council has accepted this was fault as it should have completed a review at least every 12 months.
- During the March 2019 assessment, the social worker considered why the Council had previously waivered the charges. The social worker highlighted there was no reason to suspect Mr A lacked insight into his care needs. The social worker also noted Mr A could explain he could not manage without support and said he would be willing to contribute to his care if he needed to.
- The social worker referred Mr A for a financial assessment. The Council completed the financial assessment in June 2019. The records showed the Council took account of all relevant information for the financial assessment. The Council assessed Mr A’s contribution to be just over £73 a week.
- Mr X said Mr A should not have to pay for his care and support because he does not have the mental capacity to manage his finances. Mr X also said the Council had waived the charges because it said Mr A had no concept of his needs and might refuse support and to pay for support. He said this puts Mr X at risk. Mr X said the Council has not explained what had changed. The Council did not complete a mental capacity assessment for Mr A.
- In response to my enquiries, the Council explained it believed it should have completed a mental capacity assessment for Mr A in relation to his capacity to understand financial matters. The Council has arranged to complete this assessment.
- The guidance is clear that councils can charge for care and support. However, councils always have discretion to choose whether to charge.
- In this case, it is clear the Council used its discretion in 2008 and 2010 to waive Mr A’s contribution. The Council was entitled to do this. The Council was due to review its decision in 2012 but it did not do so. The evidence shows the Council did not reconsider its decision until March 2019, when it reassessed Mr A’s care and support needs.
- The Council has accepted it should have reviewed its decision in 2012. However, this did not cause any injustice to Mr A because he continued to benefit from not having to pay towards his care and support.
- The Council also accepted it was at fault for not completing a review of Mr A’s care and support needs every 12 months. However, this fault did not cause Mr A any injustice. This is because he, or Mr X, had not raised any concerns about the care and support Mr A received. This means it was likely, on balance, that Mr A was satisfied the care and support he received was meeting his needs.
- In 2019, the Council decided to charge Mr A for his care and support. This was because the social worker was of the view Mr A had insight into his care and support needs and was willing to contribute towards his care and support if needed.
- Mr X disagrees with the Council’s assessment. Mr X believes Mr A’s circumstances have not changed and that he still lacks insight into his care needs. Mr X also says Mr A has no capacity to manage his finances. Therefore, Mr X feels the Council should continue to waive Mr A’s charges.
- The Council did not complete a mental capacity assessment for Mr A regarding whether he has capacity to manage his finances. The Council has now accepted it should have done so. This is fault.
- The fault has not caused any significant injustice to Mr A as the outcome of the assessment may not have any bearing on the Council’s decision to charge him for his care and support. This is because the guidance states that where a person lacks capacity, the Council may still assess them as being able to contribute towards the cost of their care.
- Therefore, even if the Council assesses Mr A to lack capacity regarding financial matters, this does not mean he is exempt from his care charges. It remains that the Council has discretion to decide whether to charge a person for their care and support. If Mr A is assessed to have no capacity, the Council should work with someone who has the legal authority to make financial decisions on his behalf.
- However, I find the fault identified above caused Mr X an injustice. The Council’s failure to complete a mental capacity assessment caused Mr X distress. Further, because of the fault, Mr X had to take time and trouble to make a complaint to get the Council to complete a mental capacity assessment.
- Mr X said the Council did not complete the financial assessment properly. However, the evidence suggests the Council has completed the financial assessment in line with legislation and guidance. Therefore, there is no evidence of fault in how the Council completed the financial assessment.
- To remedy the injustice caused by the fault identified, the Council has agreed to complete the following.
- Apologise to Mr X for the distress and time and trouble caused by its failure to complete a mental capacity assessment for Mr A.
- The Council should complete the above remedy within four weeks of the final decision.
- I find fault with the Council for failing to complete a mental capacity assessment for Mr A. This fault caused Mr X an injustice. I also find fault with the Council for not reviewing Mr A’s care and support needs every 12 months. However, this fault did not cause any injustice. I do not find fault with the Council’s decision to charge Mr A and with the way it completed the financial assessment.
Investigator's decision on behalf of the Ombudsman