Decision : Upheld
Decision date : 18 Nov 2020
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s delay issuing a DoLS authorisation for his father and about issues relating to financial assessment. There was no fault in the way the Council handled issues about financial assessment. But the Council was at fault for a significant delay in making a standard DoLS authorisation for Mr X’s father. Mr X’s father was not caused significant injustice by this. The Council is also at fault for failing to process DoLS applications for other people and there is potential injustice to them. The Ombudsman recommends the Council takes action to address the wider problem.
- Mr X complained on behalf of his father, Mr Y, that the Council:
- failed to provide a DoLS authorisation for the first 11 months Mr Y was in a care home;
- failed to inform the family of the financial implications of his father's placement in a care home; and
- delayed carrying out a financial assessment.
- lost the opportunity to be cared for at home or in a different care home; and
- his father was charged the full cost of his care even though this meant, if he paid the invoices, his resources would reduce to below the financial threshold.
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 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) I exercised discretion to investigate from March 2018 to make sense of later events. The period under investigation ends in October 2019 when Mr X made his complaints to the Ombudsman and to the Council.
- 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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
How I considered this complaint
- I have considered information from:
- Mr X’s complaint and from telephone conversations with him;
- the Council’s response to my enquiries; and
- the relevant law etc as set out below.
Mental capacity and best interests
- Under the Mental Capacity Act 2005 a person must be presumed to have capacity to make a decision unless it is established he or she lacks capacity. When a person’s capacity is in doubt, if a decision is needed, the Council must assess their ability to make that particular decision. After that assessment, if the person lacks capacity, the decision must be made in their best interests.
The Deprivation of Liberty Safeguards (DoLS)
- The Deprivation of Liberty Safeguards (DoLS) provide legal protection for people 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. The Mental Capacity Act 2005 sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation.
- The DoLS Code of Practice 2008 is statutory guidance on how DoLS should be applied in practice.
- The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
- There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the local authority.
- On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
- Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation or while awaiting a response to a standard authorisation request. In exceptional circumstances, a supervisory body can extend an urgent authorisation to a maximum of 14 days.
The Council’s procedure for triaging DoLS applications
- The Council has an operating procedure for triaging DoLS applications dated August 2020. There is no earlier formalised procedure. However, the Council says the current operating procedure formalises a robust process it has operated for many years for accepting, screening and triaging new DoLS applications. It says it was following that process in 2018 and 2019.
- The current operating procedure sets out how the Council will prioritise DoLS applications into different categories. It sets out the Council’s priorities for categorising an application as high and says the Council will go on to assess applications categorised as high. It says other applications will be categorised as medium or low in accordance with guidelines set out by the Association of Directors of Adult Social Services (ADASS). Medium and low applications will be recorded on the Council’s waiting list of cases to assess. Cases on the waiting list are to be reviewed twice a year to check if there are any changes of circumstances. On receipt of information received at review, if the Council considers it should categorise an application as high it will allocate the application immediately to a Best Interest Assessor for assessment.
Paying for residential care
- The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”.
- When the Council arranges a care home placement, it has to follow the regulations to decide how much a person has to pay towards the costs of their residential care. This is done by carrying out a financial assessment of the person’s means. People who have over the upper capital limit (£23,250) are expected to pay the full cost of their residential care home fees.
- Where a council has been unable to carry out a financial assessment because the person refuses the assessment or refuses to co-operate with the assessment, the council will consider the financial assessment as complete and the council satisfied the person’s financial resources exceed the upper capital limit.
NHS continuing healthcare
- NHS continuing healthcare (CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness. The NHS can provide continuing healthcare at home or in a care/nursing home. Someone receiving continuing healthcare does not contribute to their care costs.
What I found
Events in 2018
- In early 2018 Mr X’s father, Mr Y, was in hospital with a number of health problems. He also had dementia.
- In March 2018 the hospital considered Mr Y was medically fit for discharge. A best interest meeting was held in March 2018 to explore whether Mr Y could be discharged home or discharged to a care home for further assessment. Views were sought from Mr Y, his family, and social care and medical professionals. The best interest decision was to discharge Mr Y to a care home. The recorded decision said this was the least restrictive option available and a proportionate and necessary response to minimise and manage the identified risks. The National Health Service (NHS) would fund the placement until further assessment and review allowed decisions to be made about Mr Y’s care in the longer term.
- Mr Y moved to a care home (the Care Home) in late March 2018. The Care Home immediately made a seven day urgent DoLS authorisation and applied to the Council for a standard authorisation when the seven days ran out.
- The Council had a backlog of DoLS applications and says it used a triage process to prioritise applications. The Council has not provided any triage record for the application for Mr Y. Its records show a Council officer told Mr X in 2019 that the Council originally categorised the application as medium priority. The Council has not provided any evidence it reviewed the application before January 2019.
- On 1 May 2018 Mr Y was assessed to decide if he was eligible for NHS CHC funding. The assessment concluded he was not eligible. The NHS agreed to pay for Mr Y’s placement at the Care Home for a further five days then Mr Y would be responsible for paying the charges. The Council’s record says its social worker explained to Mr X the Council would send out finance forms. She said these would need to be completed or the Council would charge for the placement at full cost.
- The Council recorded it sent the financial assessment forms to Mr X on
3 May 2018. Mr X says he did not receive them. The Council recorded it tried to call Mr X in May but got no answer. It also recorded it sent another set of financial assessment forms to Mr Y’s wife, Mrs Y, on 15 May.
- On 30 May 2018 the Council wrote to Mr Y, care of his wife, Mrs Y. The letter said as she had chosen not to complete a financial assessment Mr Y had to pay the full cost of his care from 7 May 2018. The Council’s records say it also included a leaflet about paying for residential care
- In early July 2018 the Council made a further best interest decision about Mr Y’s placement at the Care Home. A social worker visited Mr Y and discussed his needs with Mr X and Care Home staff. She also took account of previous assessments. She concluded the Care Home was meeting his needs and it would not be safe for Mr Y to return home. The record of the decision says the social worker briefly discussed that the family was self funding the placement.
- In October 2018 the Council recorded Mr Y’s placement at the Care Home as permanent.
Events in 2019
- In January 2019 Mr X told the Council he did not think it was in Mr Y’s best interests to stay at the Care Home. Mr X asked if Mr Y could return home. The Council allocated an officer to complete a DoLS assessment.
- In February 2019 the Council issued a standard DoLS authorisation for Mr Y at the Care Home, to be reviewed in June 2019. The Council accepted Mr Y’s care and treatment there amounted to continuous supervision and control and the requirement for him to live in a locked environment for his safety. It concluded there was no other least restrictive option available and the current restrictions were appropriate, justified and addressed the risk of harm Mr Y would otherwise be exposed to. The Council said if, after further assessment, a return home was feasible, a best interest meeting would be needed.
- In March 2019 a Council social worker agreed with Mr X to assess further whether Mr Y could return home. That would include an occupational therapy assessment and an assessment of his home. The social worker did not consider a change of care home was appropriate while considering if Mr Y could return to his own home.
- A Council occupational therapist carried out an occupational therapy assessment at the end of March 2018.
- In early April 2019 another assessment for eligibility for CHC funding was carried out. Again, the decision was Mr Y was not eligible. The Council’s records show a social worker discussed finances with Mr X at the same time. She said financial forms would need to be completed to see if Mr Y’s capital had reduced to below the threshold as Mr X said. The Council’s records show it had sent a finance pack to Mr X on 20 March 2019.
- The Council carried out a home assessment in mid-April 2019.
- In May 2019 the Council noted no finance forms had been received so Mr Y continued to be recorded as assessed to pay at full cost.
- In June 2019 the Council reviewed the DOLS authorisation. The Council issued another standard authorisation for another four months while Mr Y’s possible return home was still being considered and a further best interests meeting was held.
- Later in June 2019 Mrs Y wrote to the Council to say she would not pay the care charges because she disagreed with the decision Mr Y was not eligible for CHC funding. In July 2019 Mrs Y and Mr X wrote to the Council to say they would not pay the care home fees. They referred to the CHC funding decision and possible legal proceedings relating to it. The Council responded to say the care home charges should be settled. It said if a retrospective decision was made to grant CHC funding the Council would make the appropriate refund to Mr Y.
- Due to long term sickness in the team, Mr Y’s case was allocated to a new social worker at the beginning of September 2019. The new social worker carried out a full assessment of Mr Y’s needs. She also arranged a best interest meeting to further consider Mr Y’s needs and the best environment in which to meet them.
- A best interest meeting was held at the end of September 2019. It went ahead although Mr X and Mrs Y notified the Council they could not attend on the morning of the meeting. Views were put to the meeting by staff at the Care Home, the OT, the social worker and Mr Y’s Independent Mental Capacity Advocate. The social worker emailed those views to Mr X the next day. On 3 October 2019 the Council recorded the best interest decision as for Mr Y to stay in 24 hour nursing care at the Care Home. Four days later Mr X told the Council he would not contest Mr Y’s placement.
- On 11 October 2019 the Council issued a further standard DOLS authorisation for Mr Y at the Care Home, for review in 2020.
The Council’s offer to review the financial assessments
- In its response to my enquiries the Council said it is willing to review the historic financial assessments if the family submits completed financial forms and relevant supporting documents.
- The Council is at fault for having no formal procedure for triaging DoLS authorisations until August 2020.
- At the end of March 2018 the Care Home applied for a standard DoLS authorisation on time. The Council was at fault for not carrying out a DoLS assessment before the seven days urgent authorisation expired.
- The Council has provided no evidence it reviewed Mr Y’s DoLS application until January 2019 when Mr X said he wanted Mr Y to return home. The failure to review the application over nine months is fault.
- Once the Council assessed the DoLS application in February 2019 there was no fault. The Council assessed the application properly and issued a standard authorisation. It then continued to review the situation and issue new authorisations at the correct times.
- It took almost 11 months for the Council to process the Care Home’s DoLS application for Mr Y. To take that long was fault but the fault did not cause Mr Y injustice. During the period of delay Mr Y was cared for in an appropriate environment and several best interest decisions confirmed it was in his best interests to stay at the Care Home, despite no DoLS authorisation being in place. I do not consider the fault caused Mr Y to lose the opportunity to be cared for at home or in a different care home.
- When, in early 2019, Mr X specifically asked the Council about a change of care home or a return home, the Council assessed those options. There was some delay in that assessment between the end of April and early September 2019. However, given the decision in early October 2019 that Mr Y should stay in
24 hour nursing care and the Care Home was appropriate, I do not consider Mr Y lost the opportunity of living elsewhere.
Providing information about the financial implications of Mr Y’s placement
- The Council’s records show it gave Mr X written information about residential care costs and discussed the issue with him in person several times. There was no fault by the Council.
Delayed financial assessment.
- The Council did not delay carrying out financial assessments. It carried out financial assessments in May 2018 and May 2019. The outcomes of both were to charge Mr Y at full cost. This was because the family did not provide the financial information for any other decision to be made. There was no fault by the Council.
- The Council says it will review the assessments if the family submits completed financial forms and relevant supporting documents. That is an appropriate response and it is open to Mr X to take this forward if he wishes.
Other people who may be affected
- We are aware of the national context where DoLS applications to councils across England increased hugely in 2014/15 and many councils have significant backlogs in dealing with them. We issued a public interest report about this issue in March 2019, complaint reference 18004809.
- As it seemed that the DoLS application for Mr Y may have been delayed significantly, I considered this might be a wider issue and that the Council’s handling of DoLS applications may have caused injustice to other members of the public. I used our powers under Section 26D of the Local Government Act 1974 to look wider than just Mr X’s complaint.
- The Council responded to my wider enquiries and said:
- its current operating procedure for triaging DoLS applications, dated
August 2020, formalises the process it followed earlier;
- it has received 1,132 DoLS applications which it has categorised as low and medium priority and are still waiting to be assessed;
- the earliest application the Council received, categorised as medium or low priority and is still waiting to be assessed was received in April 2014;
- for every medium or low priority application awaiting assessment the Council contacts the managing authority every 6 months, requesting an update on the individual’s circumstances. Based on this information, the Council decides whether to re-categorise the person as high priority. Once an application has high priority the Council allocates it immediately for assessment.
- The Mental Capacity (Amendment) Act 2019 provides for the repeal of the DoLS and their replacement with a new system called the Liberty Protection Safeguards (LPS). The Act will not be implemented fully until 2022. Meanwhile, the current DoLS are the main legal protection available to vulnerable people deprived of their liberty in care home settings.
- Having such a backlog of DoLS applications awaiting assessment means the Council is at fault. For each case in the backlog, the Council is failing to comply with the Mental Capacity Act 2005 and DoLS Code of Practice. Without an authorisation in place, the people that are the subject of these applications are being unlawfully deprived of their liberty.
- Applying the process properly may not have changed the outcome for many of the people affected, other than confirming that it is in their best interests to be deprived of liberty. However, it is possible some of the people stuck in the backlog should never have been deprived of their liberty or there may have been less restrictive options available to meet their needs.
- The Council has agreed that within three months of this decision it will take the following action to remedy the injustice to those who may be affected, and to prevent similar problems from recurring. It will:
- produce an action plan for how it will deal with incoming DoLS applications and the backlog of unassessed applications;
- ensure the action plan takes into account the changes in law and government guidance resulting from the Mental Capacity (Amendment) Act 2019;
- include in the action plan a mechanism for addressing cases where a request is eventually not approved and unlawful deprivation of liberty had a potentially harmful impact on that person.
- I have now completed my investigation.
- There was no fault by the Council in the way it carried out financial assessments for Mr Y. There was fault in the way the Council handled the DoLS application for Mr Y but it did not cause injustice to Mr Y. There is also fault by the Council because, in general, it is failing to process DoLS applications as it should. The Council’s agreed action will address the potential injustice caused to other members of the public.
Investigator's decision on behalf of the Ombudsman