Summary: The Council was not at fault for the information it gave
Mrs B about potential social care charges before she moved into a care home. It was also not at fault for discussing these charges with Mrs B without her daughter present, as she had capacity to make decisions about her own care. The Council was, however, at fault for a delay in completing Mrs B’s financial assessment. It has already apologised, so no further action is needed.

The complaint

1. The complaint, whom I refer to as Mrs C, complains on behalf of her mother, whom I refer to as Mrs B.
2. Mrs B moved into a care home in April 2019. Mrs C complains that the Council did not tell Mrs B about potential care costs before she moved into the home.
3. Mrs C says Mrs B is unable to understand matters such as social care charging, and had asked that Mrs C be present during conversations with the Council. Despite this, Mrs C says, the Council met Mrs B alone in hospital in April 2019.
4. Mrs C says the Council took too long to do a financial assessment, which meant it was almost three months before Mrs B found out she would have to contribute towards her care. Because of this, her backdated invoice was over £600.
5. Mrs C says this caused Mrs B, and herself, distress. She wants the Council to cancel what Mrs B owes for the period of care prior to the financial assessment.

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The Ombudsman’s role and powers

6. 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 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 considered information from Mrs C and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened?

8. The Mental Capacity Act 2005 set out five statutory principles. One is that a person must be assumed to have capacity unless it is established that they lack it.
9. Section 14 of the Care Act 2014 gives councils the power to charge people when it arranges their care and support (unless it is required to provide this for free).
10. Regulation 9 of the Care and Support (Charging and Assessment of Resources) Regulations 2014 says that, when a council has decided to charge someone for their care and support, it must carry out a financial assessment.

What happened?

11. In early April 2019 Mrs B – who had, until that point, lived alone in a rented property – was admitted to hospital.
12. The Council visited Mrs B in hospital. She said she wanted to return home with support from the Council. However, Mrs C, who was also present, disagreed and said only residential care would be suitable.
13. The Council noted in its records that Mrs B had capacity to make her own decisions about her care, and therefore it would restart home care for her.
14. Three days later the Council visited Mrs B in hospital again. Mrs C was not present. Mrs B told the Council that she had changed her mind, and now did not, in fact, believe she could manage at home.
15. The Council completed a needs assessment and care plan for Mrs B the next day.
16. The assessment document says the Council had no doubts about Mrs B’s mental capacity, and “The needs she has are due to her physical impairment and do not impact on her ability to understand the assessment and care planning process”.
17. The care plan says Mrs B’s needs will be met in residential care. Under the subheading, “What information and advice has been given?”, the Council wrote:

Information provided about cost and charging. [Mrs B] says she has less than threshold savings and no property of her own. Person and family informed about the financial assessment and contribution to her care.

18. Shortly after this, the Council agreed funding for a care home. Mrs B moved into it on 15 April.
19. On 15 May the Council sent financial assessment forms to Mrs C (on behalf of Mrs B). The cover letter said:

You will be required to make a contribution towards the cost of your placement, the amount being determined by a financial assessment which will be carried out in accordance with the Care Act 2014.

20. It appears that Mrs C received this letter, because she returned the forms shortly afterwards.
21. The Council completed a financial assessment on 1 July. It backdated Mrs B’s assessed contribution - £210.15 per week – to April.
22. Mrs C complained to the Council, and, although it did not agree that it had failed to notify Mrs B of potential charges, it did accept that it took too long to conduct her financial assessment. It apologised for this delay.

My findings

23. Although Mrs C had asked to be present during the Council’s meetings with
    Mrs B, and although she did not believe Mrs B to be capable of holding discussions about her care charges, the Mental Capacity Act says people must be assumed to have capacity unless it is established they lack it. If a council has doubts about someone’s capacity to make decisions about their care, it should conduct a capacity assessment.
24. The Council did not have such doubts about Mrs B in early April 2019, and it recorded this in her needs assessment. Because of this, I see no reason that it should have decided she lacked capacity, or that it was at fault for discussing her care with her directly, without Mrs C present.
25. Although the Council’s records are not conclusive about exactly when it first discussed care charges with Mrs B or Mrs C, they suggest that this had happened – to some degree – before the completion of Mrs B’s needs assessment. The Council recorded in the assessment document that Mrs B’s capital was below the lower threshold and that she did not own her own property. This suggests that some conversation about finances, at least, had taken place. And the Council said its conversation included details of potential charges.
26. The Council then wrote to Mrs C a month later – six weeks before the financial assessment – and said Mrs B would have to contribute towards her care costs.
27. This means the Council told Mrs C about potential charges well before the financial assessment. It is also my view that, on balance, the evidence suggests the Council discussed this with Mrs B before she moved into the care home.
28. Because of this, the Council was not at fault for the information it shared about care charges prior to completing its financial assessment.
29. There are no set timescales for a Council to complete financial assessments, although they should clearly be completed without delay. It took the Council 11 weeks to complete the financial assessment after Mrs B moved into the care home.
30. This was a delay, which was fault by the Council. However, it had taken steps to tell her about potential charges, it was entitled to charge her, and she needed the residential care. Because of this, the delay did not cause her a financial injustice.
31. The Council has acknowledged the delay, and has apologised. This is a satisfactory outcome, so I do not consider further action necessary.

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Final decision

32. The Council was not at fault for the information it gave Mrs B about potential social care charges before she moved into a care home. It was also not at fault for discussing these charges with Mrs B without Mrs C present, as she had capacity to make decisions about her own care. The Council was, however, at fault for a delay in completing Mrs B’s financial assessment. It has already apologised, so no further action is needed.

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Investigator's decision on behalf of the Ombudsman