Summary: The Council wrongly applied a property disregard to a temporary residential care stay. It also failed to act promptly to concerns about Mrs Y’s mental health and wrongly advised a care home to apply for an order depriving her of her liberty. The Council failed to deal with a complaint from Mrs Y’s son properly.

The complaint

1. Mr X complains the Council refused his later mother, Mrs Y, a 12-week disregard on her property when she became a permanent resident in a care home. It said the disregard had been used during a previous temporary respite stay in residential care.
2. Mr X also complains Mrs Y was sent home from a temporary respite stay without discussion with family members.
3. Mr X is dissatisfied with the way the Council has dealt with his complaints about the above.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)

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How I considered this complaint

7. I have:

• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mr X and the Council an opportunity to comment on a draft of this document.

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What I found

Relevant legislation

8. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made for a person who lacks capacity must be in that person’s best interests.
9. Section 4 of the Act provides a checklist of steps that decision makers must follow to decide what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same result.
10. Deprivation of Liberty Safeguard (DOLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. DOLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to gain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
11. The charging rules for residential care are set out in regulations and statutory guidance. When the Council arranges a care home placement, it has to follow these rules when it carries out a financial assessment to decide how much a person has to pay towards the costs of their residential care. [Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”]
12. The regulations say people who have capital over the upper limit are expected to pay the full cost of their residential care home fees. However, once their capital has reduced below the upper capital limit, they only have to pay an assessed contribution towards their fees.
13. In a financial assessment a council must disregard the value of a person’s main or only home for 12-weeks when they enter a care home as a permanent resident.
14. Following the application of a 12-week disregard, councils can offer a deferred payment agreement. Such an arrangement enables people to use the value of their homes to help pay care home costs. If the person is eligible, the council will help to pay their care home bills and the person does not repay the council until he or she chooses to sell their home or until after their death. Councils may charge interest on the amount owed to them and there may be a fee for setting this arrangement up to cover the costs the council incurs. A deferred payment agreement means that people should not be forced to sell their home in their lifetime to pay care home bills.

What happened

Discharge from hospital

15. Mrs Y was diagnosed with dementia in August 2018. She had mental health issues and at times indicated she wanted to end her life. In December 2018 she was involved in an accident and fractured her hip and was admitted to hospital. Prior to this she lived at home independently.
16. Mrs Y was declared medically fit for discharge in January 2019. The records show a hospital social worker (social worker 1) contacted Mr X on 23 January 2019 to arrange to meet him and Mrs Y on the ward.
17. On 26 February 2019, the social worker visited Mrs Y on the ward. The notes show Mrs Y wanted to return home, but she was concerned about how she would manage. The records show she had been on a home-visit and some minor adaptations had been recommended, which Mrs Y was not happy with. The social worker recorded Mrs Y had insight into her care needs and had capacity to make decisions in relation to discharge planning She needed minimal assistance with washing and dressing and was independent using the toilet. She could mobilise independently using a zimmer frame. She did sometimes refuse to take her medication. Mrs Y said she did not want ‘busy bodies’ in her home, after some discussion she agreed to accept a morning visit from carers and support to prepare breakfast. She was clear, she did not want more help.
18. The social worker told Mrs Y a meeting was arranged later that day to discuss her discharge and the support she needed, and that her son would be present. Mrs Y said she wanted to attend the meeting.
19. Mrs Y attended the meeting, along with Mr X, the social worker, and health professionals. After discussion, Mrs Y agreed to accept three home care visits a day, along with telecare, door sensors and heat and falls detectors. Mr X held power of attorney and managed Mrs Y’s finances on her behalf, he said he was happy to continue doing so. A review of the care was planned one week after discharge.
20. The social worker completed Mrs Y’s needs assessment on 4 March 2019. Discharge was planned for 13 March 2019. On 12 March 2019, the hospital contacted the social worker to say Mrs Y’s needs had changed, her mobility had deteriorated, and she was no longer managing her continence. The social worker visited Mrs Y the same day. Mrs Y said she did not feel safe to return home in her current state, though she did wish to return home eventually. She said she was considering a temporary residential care placement. The social worker explained she would need to reassess Mrs Y’s needs “and seek authorisation for this. I also advised that as she owns her own flat this would need to be a request made under a 12 week property disregard”. The social worker advised Mrs Y to hold off making a decision until the reassessment was completed. The records show the social worker telephoned Mr X and left a message updating him of the situation.
21. A review of Mrs Y’s mental health was completed by an NHS mental health nurse. The nurse expressed concerns about Mrs Y’s mental wellbeing, and if she returned home she may again express a wish to end her life which would lead to readmission to hospital. The nurse advised the ward a mental health assessment was needed. I have seen no evidence such an assessment was completed.
22. Mrs Y was discharged home on 18 March 2019, with a home care package. The records do not show how and when this decision was made. The social worker recorded that “... a 2 week review has been set [Mrs Y] has identified longer term care needs, hence why review set with ongoing team”.
23. The social worker telephoned Mr X on 20 March 2019 to inform him of Mrs Y’s discharge, and that she would be making a “FAB referral to assess client contribution…”. and said a review was planned with the community team on 27 June 2019.
24. The social worker telephoned Mrs Y. Mrs Y said she was very lonely and “felt she could commit suicide”. The social worker said a GP would be visiting within the next few days and a review of her care needs would be held the following week.
25. The following day, Mrs Y’s niece contacted the ward to say the carers had not been to visit Mrs Y and that she was concerned about Mrs Y’s mental health. The social worker contacted the care agency who said Mrs Y would not provide the staff with the key safe number or provide contact details of family. The social worker telephoned Mrs Y’s niece and said she “could not override” Mrs Y’s consent and that she would contact Mr X. She told Mrs Y’s niece she was “planning to attend a joint review with the community team in 2 weeks once settled in the spirit of supporting a good handover between hospital and community teams”. Mrs Y’s niece said she would try to attend the review.
26. Mrs Y’s niece contacted the social worker on 25 March 2020 to say Mrs Y had returned to hospital on 24th of March 2019 for a mental health assessment.
27. The social worker visited Mrs Y on the ward on 1 April 2019. A temporary residential placement was discussed. Mrs Y expressed concern about the cost, the social worker discussed “the 12 week property disregard”. Mrs Y agreed to a temporary placement but said she did wish to return home at some point. She told the social worker she had had a disagreement with Mr X and no longer had his support. She also said she did not know her financial situation.
28. The social worker spoke to Mr X the following day to update him. She also said Mrs Y wanted to know her financial position. Mr X said Mrs Y never asked so he never told her. He said Mrs Y had savings well below the capital threshold.
29. Mrs Y was discharged from hospital to a residential care home on 16 April 2019 for a six-week temporary stay to allow her time to decide if she wanted to be in residential care permanently. A team manager recorded, “If she then decides that the move should permanent she can then look to applying for a property disregard”. Mr X says he was not told about the length of stay or if Mrs Y would have to contribute towards her care. He believed the care would be free for six weeks.
30. The social worker contacted the Council on 24 April 2019 to ask that the allocated community social worker (social worker 2) contact her to arrange a joint review.  
31. Mr X received an invoice for Mrs Y’s contribution towards her temporary stay on 7 May 2019, he contacted the Council’s financial assessment team and social 2 worker saying social worker 1 had told him the stay would be free of charge. The officer from the Council’s financial assessment team advised Mr Y to contact social worker 1 directly. Mr X telephoned social worker 1. The records of that conversation show the social worker explained that Mrs Y’s placement was temporary and chargeable, saying only discharges under ’winter pressure’ were not chargeable. She referred to a previous record entry where she recorded this had been explained to Mr X.
32. Social worker 1 arranged a review on 15 May 2019, Mrs Y, Mr X, and the care home manager were present along with social worker 2. Mrs Y said she was unhappy at the care home and wanted to return home. She said she wanted to kill herself. The care home manager said Mrs Y appeared settled and interacted with other residents. Mr X said this was Mrs Y’s personality, that historically she never appeared happy and had always returned home from holidays early because she was unhappy. Mrs Y complained she was without personal belongings because Mr X’s brother had not delivered them as agreed. After discussion Mrs Y agreed to remain at the care home. The social worker said she would discuss the situation with her supervisor, and that she would “review [Mrs Y] again in 3 – 4 weeks”.
33. The social worker applied for a further 6 weeks temporary funding on 28 May 2019 to allow Mrs Y extra time to decide about returning home. The Council’s records show an entry on 30 May 2019 by a senior officer, it says “QAM outcome, 12 week property disregard approved. The customer has been in placement for 6 weeks already, therefore property disregards will be for will be for a further 6 weeks only”.
34. On 4 June 2019, social worker 2 recorded she had assessed Mrs Y and that she was strongly expressing a wish to return home, saying she had been taken to the care home on false pretences. The social worker planned to visit Mrs Y again on 19 June 2019 to complete a Mental Capacity Assessment. A ‘Relationship Coordinator’ from the Council telephoned Mr X on 5 June 2019 to update him and invite him to the meeting on 19 June 2019. Mr X said it was unlikely he would be able to attend but he was happy for the meeting to proceed without him. He asked that the deferred payment information be sent to him by email.
35. On 7 June 2019, Social worker 2 contacted the care home to advise it should apply for a Deprivation of Liberty Order (DOLS). The social worker contacted the care home again on 7 June 2019 to ask if the head of care “would speak to customer and ask her if she consents a referral for an Advocate to support her with decisions of where should would like to live”. The social worker reiterated her request the care home apply for a DOLS. The carer said it “did not usually apply for DOLS for customers with mental capacity, if a customer was to say that she wants to leave, they would not stop her, but would make sure she gets home safely”. Mrs Y refused an advocate and repeated her request to return home, which she wrote down on a piece of paper and left on her bedside cabinet.
36. Mr X received an invoice for Mrs Y’s contribution towards her temporary residential care placement on 19 June 2019. The contribution was calculated to be £152.22 per week.
37. Social Worker 2 met with Mrs Y, and family again on 20 June 2019 to discuss the option of Mrs Y returning home with a domiciliary care package. Mrs Y refused domiciliary care, saying she did not want carers going into her home. The social worker believed Mrs Y was unable to weigh-up the risks of returning home without a package of care. The social worker said she would make a referral for an Independent Mental Capacity Advocate (IMCA) “for support in making a decision”.
38. The social worker contacted the care home again on 28 June 2019 to enquire about Mrs Y’s wellbeing. The care home reported no change, that Mrs Y was still requesting to go home. The social worker said she was working on putting a domiciliary care package together.
39. The Council approved a personal budget for domiciliary care the following day and following a meeting between council officers on 9 July 2019 a decision was taken to return Mrs Y to her own home on 10 July 2019.
40. The records show a council officer tried to telephone Mr X on 9 July 2019 to inform him, but the number was unobtainable, so the officer sent Mr X an email.
41. Mr X says he only discovered Mrs Y was returning home when the domiciliary care company contacted him to confirm arrangements for Mrs Y. Mr X then contacted the Council. Mr X said he would be unable to transport Mrs Y from the care home back to her home, but he was able to visit Mrs Y’s home to ensure she had food.
42. Mrs Y returned home on 10 July 2019, after twelve weeks in the care home.
43. The following day the domiciliary care company contacted the Council to say Mrs Y was asking to return to the care home, saying she was lonely. Officers decided to monitor the situation over the weekend.
44. On 12 July 2019, Mrs Y’s niece contacted the Council’s emergency duty team to report that Mrs Y was “talking about killing herself and is confused as to why she has come home”. An officer from the team advised Mrs Y’s niece to contact the NHS 11 service and/or Mrs Y’s GP to rule out any possible infection.
45. The next recorded entry by the Council was 15 July 2019. It is not clear what action, if any, the Council took between the 12 & 15 July 2019. On 15 July 2019, social worker 2 contacted the domiciliary care agency to enquire how Mrs Y was settling in at home. Carers reported Mrs Y appeared to be settled, apart from mentioning she may have made a mistake leaving the care home and that she was refusing to take her medication. The social worker said there would be “a quick review to check if a POC [package of care] is working or not”.
46. Mr X contacted the Council on 18 July 2019 to express his concern about Mrs Y’s wellbeing, and to say she was constantly asking to return to the care home. The council officer contacted the care home and arranged for Mrs Y to return the following day. The officer then informed Mr X.
47. Mrs Y remained at the care home until she sadly passed away in January 2020.
48. There are no records to show what information the Council gave to Mrs Y or Mr X about the funding arrangements for a permanent placement. The records only refer to the 12-week property disregard and a reference to an email sent to Mr X on 18 July 2019 “deferred payment emailed to [Mr X]”.
49. On 23 July 2019, social worker 2 contacted Mr X. Mr X said Mrs Y had no available funds to pay for her permanent placement until her home was sold. Mr X asked the Council for funding and to apply a 12-week property disregard. The social worker said Mrs Y had used her 12-week property disregard during her previous 12-week temporary stay. Mr X said he had been advised by a charity that health funded the first six weeks of any residential stay followed by six weeks of council funding, and that a property disregard cannot be applied during a temporary stay. Mr X says a social worker told him he should take out a loan to pay the care fees until Mrs Y’s property was sold. The social worker recorded “[Mr X] is adamant he does not want deferred loan”.
50. Mr X did not receive an invoice for Mrs Y’s care until the end of October, by this point a debt of £19,726.45 had accrued. Fortunately this coincided with the sale of Mrs Y’s property.

Mr X’s complaints and the Council’s response

51. Mr X submitted a complaint to the Council on 23 July 2019. He heard nothing, so he sent a further email on 6 August 2019 chasing a response. The Council accepts Mr X did not receive an acknowledgement his complaint had been received. The Council sent Mr X an email on 7 August 2019 saying it was dealing with his complaint.
52. Mr X heard nothing more, so he emailed the Council again on 30 October 2019. The Council responded by email the following day apologising for the lack of contact and said the matter was being investigated urgently.
53. Mr X received a response on 4 November 2019. The letter was dated 6 September 2019. The author of the letter explained Mrs Y’s 12-week temporary stay in residential care had been part funded by the hospital and the Council. That the stay was chargeable and that the 12-week property disregard had been applied during the stay, and that “The decision made by Head of Service and recorded at the time was that [Mrs Y] would now have had the full 12 weeks property disregard”. The complaint was not upheld.
54. Mr X was dissatisfied with the response. He believed the Council had wrongly interpreted the rules on a property disregard. He was also unhappy that the author misspelt Mrs Y’s name.

Analysis

55. There are several issues that need consideration. The matter of charging for Mrs Y’s temporary stay in residential care, if and how, this was communicated to Mrs Y and Mr X. The issue of Mrs Y returning home, and the interpretation of the 12-week disregard, and finally how the Council dealt with Mr X’s complaint.
56. The discharge from hospital to temporary residential care was arranged by a hospital social worker (social worker 1). It is clear from the records Mrs Y was unsure whether to go home or into a temporary residential placement. Mrs Y had a history of threatening self-harm and was assessed by mental health nurse prior to discharge from hospital. The nurse expressed concern about Mrs Y’s mental health and recommended a mental health assessment be completed. I have seen no evidence this was done.
57. All professionals involved with Mrs Y concluded she had capacity to make decisions about her future care, and where she should live. However, given Mrs Y’s history of threatening self-harm I would have expected social worker 1 to follow up the request for a mental health assessment prior to Mrs Y’s discharge.
58. I also note social worker 1 told Mr X the 12-week property disregard would be applied to Mrs Y’s temporary residential care. This was incorrect information. I shall explain this in more detail in due course.
59. The records show social worker 1 told Mr X on 20 March 2019 she would be making a referral to the financial assessment and benefit’s team to assess Mrs Y’s contribution towards her care. Although the level of contribution could not be known at this point, it is clear Mr X was aware the stay may be chargeable. Mr X believed the NHS funded six weeks free care after a hospital discharge. Such arrangements do exist, but it is a specific care pathway which is subject to assessment and not an automatic entitlement. Decisions about entitlement are made by the NHS. Mrs Y was not on such a care pathway. I have seen no evidence Mr X was told Mrs Y’s care would be free. I do not uphold this aspect of the complaint.
60. Mrs Y decided to go home and left hospital on 18 March 2019. Two days later she told social worker 2 she was lonely and wanted to end her life. This should have triggered an urgent referral to the mental health team, at the very least Mrs Y’s GP should have been contacted immediately. Mr X and Mrs Y’s niece contacted the social worker to express concern about Mrs Y, saying carers had been unable to enter Mrs Y’s home because she refused to give them the key safe number. The social worker responded by saying a GP would be visiting within a few days and that, she could not override Mrs Y’s wishes, but she would hold a review a week later. This was wholly inadequate. I note Mrs Y was readmitted to hospital after seven days for a mental health assessment. It was good luck, rather than good management that no harm came to Mrs Y.
61. During her hospital stay Mrs Y decided to accept the offer of a temporary residential care placement. Mr X says he was not told the length of the stay or the cost. The records show a conversation between the social worker and Mr X took place, where Mr X said Mrs Y had savings below the capital threshold, however there are no records which show the financial implications were explained.
62. In May 2019, social worker 1 began the handover to social worker 2. By this time Mrs Y was asking to leave the care home and return home, even leaving a note on her bedside cabinet. Social worker 2 asked the care home to obtain a DOLS. Deprivation of liberty means taking someone's freedom away. A person’s liberty can only be taken away under the Mental Capacity Act if: they are 16 years old or over, and they lack capacity to agree to the restrictions. A lack of mental capacity must be established before a decision can be made on a person’s behalf.
63. The Mental Capacity Act Code of Practice has clear steps to follow if somebody’s mental capacity is in doubt. This includes carrying out a mental capacity assessment which focuses on the decision-making process itself. When someone’s liberty is at stake, it is imperative that these assessments are carried out, that they follow the Code of Practice guidelines, and the reasoning is evidenced. Assessments must be related to specific decisions, and not simply related to someone’s general ill health or disability
64. The care home quite rightly refused to apply for a DOLS, saying Mrs Y had capacity to make decisions about her care and where she should live. It is of great concern that the social worker appeared to have little knowledge of the principles of the Mental Capacity Act which sets out:

• a presumption of capacity: every adult has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise in respect of each specific decision
• individuals must be supported whenever possible to make their own decisions: a person must be given all practicable help before anyone treats them as not being able to make their own decisions
• unwise decisions: just because an individual makes an unwise decision, they should not be treated as lacking capacity to make that decision
• best interests: an act done, or decision made under the Act for or on behalf of a person who lacks capacity must be done in that person’s best interests
• less restrictive option: the person acting on behalf of a person who lacks capacity should consider all possible options that are less restrictive of that person’s basic rights and freedoms.

65. If there was concern for Mrs Y’s mental health, then a referral for a mental health assessment should have been made.
66. Between the 4 June 2019 and 10 July 2019, Mrs Y was unlawfully deprived of her liberty. This is fault. As Mrs Y is deceased, any injustice caused to her cannot now be remedied.
67. Mr X says he was not informed Mrs Y was leaving the care home to return home until 10 July 2019. The records show a social worker sent him an email on 9 July 2019 after an unsuccessful attempt to contact him by telephone. This was short notice, but the decision was only made that day. I cannot find fault with the Council here.
68. The day after Mrs Y returned home carers contacted the Council to say she was talking about killing herself. Mrs Y’s niece and Mr X contacted the Council on separate occasions to express concern. Immediate action should have been taken. This did not happen, instead the council officer advised Mrs Y’s niece to call the NHS 111 service. No action was taken for three days, when the social worker contacted the care agency to check on Mrs Y’s wellbeing. This was poor practice and again, it was good luck rather than good management that no harm came to Mrs Y.
69. Following Mrs Y’s return to the care home on a permanent basis, Mr X was told the 12-week property disregard could be applied because it had been applied to Mrs Y’s previous 12-week temporary stay. The purpose of the property disregard is to allow a care home resident enough time to make the necessary arrangements with regards to their property, and to ensure they can pay the care home fees once they become responsible for paying the full amount.
70. The Care Act says that the value of any property a resident owns should be disregarded for 12 weeks from the date the stay has become permanent. It is not applicable to temporary stays. This means the 12-week property disregard should have started from 19 July 2019. It is of concern that officers within the Council appeared not to understand this, and that this may have affected other citizens.
71. Although there have been faults with regards to the financial information provided to Mrs Y and Mr X I cannot see any financial hardship was caused at the time because Mr X did not receive an invoice for Mrs Y’s care until the end of October 2019 which coincided with the sale of Mrs Y’s property. However, there is injustice which requires a remedy. Mrs Y was denied funding for 12-weeks care, consequently there is a quantifiable loss to her estate.
72. Mr X says the Council advised him to take a loan to pay Mrs Y’s care fees. The loan Mr X refers to appears to be the Council’s offer of deferred payment arrangement. Such arrangements are routinely offered to people who are selling their home after the 12-week property disregard has been applied. In this case, the offer was premature.

The Council’s response to Mr X’s complaints

73. The Council’s response to Mr X’s formal complaint was poor. Mr X submitted his complaint in July 2019 and did not receive a response until November 2019. The delay caused injustice, Mr X was put to unnecessary time and trouble chasing the Council numerous times for a response.
74. When Mr X received a response, the author of the letter, a manager, concurred with the wrong advice previously given by a social worker, that the property disregard had been applied during Mrs Y’s temporary stay in residential care. It is concerning that a senior officer lacked understanding of the Care Act. The author also mis-spelt Mrs Y’s surname throughout and showed a general lack of care and attention to detail. This understandably compounded Mr X’s frustration.

Agreed action

75. To remedy the injustice caused the Council will within four weeks

• apologise for the faults identified above
• carry out a retrospective financial assessment, taking account of the 12-week disregard, and reimburse Mrs Y’s estate with overpaid care fees
• pay Mr X to £250 to recognise the avoidable time and trouble he was caused in having to chase up the Council’s response to his complaint and to recognise its failure to deal with it properly

76. Within three months

• carry out a review to assess if staff carrying out care assessments have relevant knowledge of the Mental Capacity Act
• carry out a review to assess if staff carrying out care assessments and reviews have the relevant knowledge to correctly advise citizens about charging for residential care, specifically, the legislation relating to property disregards

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Final decision

77. The Council failed to act promptly to concerns about Mrs Y’s mental health and wrongly advised a care home to apply for an order depriving her of her liberty.
78. The Council wrongly applied a property disregard to Mrs Y’s temporary residential care stay. It then failed to deal with Mr X’s complaint about this properly.
79. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman