Summary: Mrs X complains that the Council did not properly assess the late Mrs Y’s needs or her mental capacity and did not ensure her needs were met. She also says it did not explain the funding for Mrs Y’s short term care home placement so she believed it would be funded by the NHS. Mrs X says Mrs Y had no money to contribute so the family is left to pay the outstanding charges. We found no fault in the Council’s actions.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains on behalf of her late mother-in-law, Mrs Y. She complains that the Council:
• failed to properly assess Mrs Y’s needs following her discharge in August 2018 and did not robustly consider her capacity to make decisions about her care and ability to live independently.
• failed, between August 2018 and August 2019, to provide Mrs Y with the basic support (such as nutritional and personal care) detailed in her care plan.
• failed to discuss charging with her, leaving her with the understanding that Mrs Y’s short-term care home placement would be funded by the NHS.
2. Mrs X says the Council and care agency’s failure to provide Mrs Y with proper care and support caused her significant distress and caused her to suffer a nervous breakdown. Mrs X says the family has also been left with outstanding care charges despite making clear to the Council that Mrs Y had no money to contribute to her care home charges.
3. Mrs X would like the Council to ensure other families do not have the same experience. She would also like the Council to waive the outstanding care fees as she does not believe Mrs Y should have had to pay the care home fees.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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)
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). We are satisfied Mrs X is a suitable person to complain on Mrs Y’s behalf.

7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

9. I considered information from the Complainant and from the Council.
10. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Mental capacity

11. The Mental Capacity Act 2005 (the Act) is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. A person must be presumed to have capacity to decide unless it is established that he or she lacks capacity. They must not be treated as unable to decide unless all practicable steps have been taken to help them do so. The Act says a person cannot decide for themselves if they cannot do one or more of the following (with support if needed):
• Understand information about the decision.
• Retain that information long enough to decide.
• Weigh up the information to make the decision.
• Communicate their decision.

Assessment, eligibility, and support planning

12. The Care Act 2014 (the Act) sets out local authorities’ duties around adult social care. The Care and Support Statutory Guidance sets out how the Act should be applied. The guidance says, “supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Act”.
13. Sections 9 and 10 of the Care Act 2014 (the Act) require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
14. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
15. Where local authorities have determined that a person has any eligible needs, they must meet these needs.

What happened

16. Mrs Y had various health conditions including type 1 diabetes which affected her sight. She lived alone and family nearby, including her son, Mr X, Mrs X, and Mrs X’s parents, Mr and Mrs Z, supported her with cleaning, shopping, and managing and attending her appointments.
17. At the end of July 2018, Mrs Y was admitted to hospital because Mr X had found her on the floor and unresponsive due to not eating and drinking adequately. The Council assessed Mrs Y early in August when she was ready to be discharged. It noted her eyesight was deteriorating rapidly and she had lost confidence to prepare food and drink. Mrs Y said she could complete her personal care independently and could get out and about using a wheeled walking frame. She said her family supported her with shopping and she could order online. Mrs Y’s main concerns were preparing food and drinks. She agreed to a short-term rehabilitation package of care with one care worker visiting three times a day to help with food and drink preparation. The assessment noted Mrs Y discussed her finances and understood there may be a charge. The Council arranged for Angel Solutions Community Care (the Care Provider) to deliver Mrs Y’s care package.
18. Mrs X had a breakdown as she could no longer cope with working full time and supporting Mrs Y. At the end of August, the Council reviewed Mrs Y’s care package because Mr and Mrs X felt she needed more support. On this occasion, Council records show Mrs X and Mrs Z were present. The social worker had no concerns about Mrs Y’s mental capacity and noted that Mrs Y could understand and engage in the review. Mrs Y said she could manage her personal care and was happy with the support she had, which she wanted to stay the same. The care workers agreed to clean the cat litter as Mrs Y could not do this. The social worker noted that she gave a financial assessment form to Mrs X and explained that all care hours provided were chargeable. The outcome of the assessment was no change to Mrs Y’s care package which, the social worker noted, was meeting her needs and “promoting her wellbeing”. The Council assessed Mrs Y as not able to afford a contribution towards her care at home.
19. In September, Mrs Y agreed to have a cleaner once a week to help with keeping her home clean. Soon after this, she signed powers of attorney in favour of Mr and Mrs X. This meant they were now authorised to make decisions for Mrs Y about her finances, property, health and welfare if she could not do so herself. This meant, at the time she signed the powers, she had the mental capacity to decide about this.
20. Mrs X telephoned the Council in October, saying the care workers didn’t do much. The social worker telephoned Mrs Y who told her she was happy with the care workers and did not want to complain. Mrs X says she felt she could not keep complaining to the Council.
21. By March 2019, Mrs Y seemed to be much worse. Mrs X says she was not receiving her medication at the right times and was managing to get chocolate somehow.
22. Mr X gave up his job and became self employed so he could be at home more to help with the demands of supporting Mrs Y. Mrs X says she was regularly in touch with the Care Provider and had meetings with the supervisor. The Care Provider completed a review of Mrs Y’s needs and said it would pass Mrs X’s concerns on to the Council.
23. In June, the Care Provider sent an email to Mrs X and the Council advising that Mrs Y needed an assessment. It said she was at risk of self-neglect, falls, sight deteriorating and early signs of a brain disorder. Mrs X thanked the Care Provider for taking their concerns seriously and said it was the first to agree with their concerns about Mrs Y. Mrs Y’s GP advised Mrs X that she suspected Mrs Y had dementia and referred Mrs Y for tests.
24. On 9 July 2019, Mrs Y’s GP asked the Council to complete an urgent review of her care. The social worker contacted Mrs X who said Mrs Y had declined significantly over the two weeks at the end of June and beginning of July. She also had concerns about the care agency. Three days later, the social worker visited Mrs Y with Mrs X and Mrs Z present. They expressed concerns about Mrs Y’s memory and ability to look after herself. They said care workers did not always come at regular times although this was important for Mrs Y’s medical condition. They also said care workers did not stay for the whole time allocated. The social worker found the records did not support Mrs X’s concerns, so she asked the Care Provider to look into the problems. The Care Provider says the care workers did not miss any calls and supported Mrs Y with medication, ensuring she took it correctly. It also says Mrs Y would not accept help with her personal care.
25. In the information Mrs X provided for my investigation, she said Mrs Y would throw food away without eating and would get deliveries of large quantities of chocolate which she would eat.
26. In early August 2019, the Council visited Mrs Y at home and notes that Mrs X was there, also care workers. Mrs Y would not accept the support offered by the care workers and told them to leave. Mrs X said she was struggling to support Mrs Y as she had had a breakdown. The Care Provider told the Council it thought Mrs Y needed 24 hour care. The Council decided Mrs Y’s package of care was not meeting her needs and she would need a new assessment because her condition had deteriorated. It involved an intensive support team who the family told of their concerns about the Care Provider. The Care Provider said there had been two late calls, had spoken to the family and the care worker concerned was no longer attending Mrs Y.
27. At the end of August 2019, Mrs Y was admitted to hospital again due to a general decline and reduced eating and drinking. The social worker visited the first day and discussed the situation with Mrs Y’s family; they said they could not cope with the level of support she needed. Mrs X reported that Mrs Y had been refusing support from the care workers and had been verbally, and physically, aggressive towards Mrs X. Mrs X said Mrs Y was no longer safe in her home although she wanted to return home. Mrs X says the social worker told her Mrs Y had capacity to decide about her care and she would assess her the following day.
28. The next day, the social worker completed the assessment and noted that Mrs Y’s mental capacity was in doubt and she needed a capacity assessment. She found Mrs Y did not have the mental capacity to decide where she should go on discharge from hospital. The social worker spoke to the Care Provider who confirmed that Mrs Y had become more challenging to support. The social worker noted that Mrs Y had presented as “relaxed, calm and fully compliant” with no evidence of the level of need reported by family and others. The social worker recommended a four-week care home placement on discharge from hospital so Mrs Y could be fully assessed to see whether she could return home with support. Mrs Y, Mr X, and Mrs X all agreed to this. The social worker noted “social care charges were discussed and the requirement for financial forms to be completed advised”. Mrs X says neither she, nor Mr X were present for the assessment as they were not told when it would be.
29. Mrs X says the social worker asked to see Mr X the next day, but she only gave him a pack containing the financial assessment form; she did not discuss finances. She said the form was the same as the one she had completed the previous year. Mr and Mrs X were unhappy about this because Mr X took an unpaid day off work and the social worker only spoke to them for five minutes in the corridor. Mrs X says she told the social worker that Mrs X had no money but this made no difference.
30. On 29 August, the Council agreed the four week placement from early September. The Council asked the care home to apply for a Deprivation of Liberty Safeguards authorisation as it could become permanent.
31. Mrs X called the telephone number in the financial pack to ask how she should complete the financial assessment form. The Council told her to complete it as if Mrs Y was still at home but to note she was currently in respite care. Mrs X returned the financial assessment form to the Council in mid September. It assessed Mrs Y as being able to pay a contribution to the care home fees. However, Mrs X had not completed all the sections of the financial assessment form, including “Home expenses – Residential care only”. This section asks for information to enable the Council to allow for costs relating to Mrs Y’s home while she was in the care home.
32. Sadly, around eight weeks after she moved into the care home, Mrs Y died while the Council was in the process of making the placement permanent. After Mrs Y died, Mrs X received invoices, for Mrs Y’s contribution to her care costs, from the Council. She asked it to end the contract as soon as possible to ensure Mrs Y did not incur unnecessary charges.
33. In early November 2019, Mrs X went to the Council offices because she was concerned about the invoices it had sent. Towards the end of November, she complained about the “terrible” support and care the Council had provided to Mrs Y.
34. In January 2020, Mrs X wrote to the Council. She said she had made it clear during the telephone call on 29 August that the Council would have to fund any care home placement as Mrs Y had no money available. She asked why Mrs Y did not have to pay when she had home care but now she had to pay for residential care. The Council responded to Mrs Y and asked her to complete the rest of the financial assessment so it could recalculate Mrs Y’s contribution. It explained that when Mrs Y was at home, she had expenses related to living at home but in residential care she did not have the same expenses. It said Mrs Y received a pension which it had used to calculate her contribution.
35. I asked the Council to send me all the Care Provider’s records for Mrs Y from August 2018 to October 2019. There were some flaws for example, in January 2019, there were 11 days which only had one or two entries, not three, but no records explaining this. Some entries gave no detail of the support provided although most mention prompting or administering medication and chatting with Mrs Y. On several occasions, the notes say Mrs Y had already had food before the care worker arrived. They also mention on occasions, that Mrs Y said she would wait for her injection before eating or the nurse had given her food. On these occasions there is no comment about evidence that Mrs Y had actually eaten, or any follow up with the nurses. On at least seven occasions in November 2018, there is no mention of food in the visit notes. However, for the most part, the notes record what food and drink care workers gave Mrs Y. They also contain comments about tidying the kitchen and cleaning the cat litter. The visit times recorded on the notes were also reasonably consistent.

Was there fault which caused injustice?

36. It is not my role to decide whether Mrs Y had the mental capacity to decide about her care; this is for the Council to consider. However, I can decide whether the Council considered it properly. It is evident from the records that the social worker found no cause for concern about Mrs Y’s mental capacity in August 2018. It was, therefore, right for the social worker to assume Mrs Y had the capacity to make decisions about her care. I found no fault in this, or in the assessment of her needs at this time, which focussed on Mrs Y and her needs. It was not until June 2019 that it had reason to doubt Mrs Y’s mental capacity. Mr and Mrs X were aware at this point that Mrs Y may have capacity at times because she signed powers of attorney in their favour.
37. In October 2018, when the family raised concerns about the Care Provider, Mrs Y was happy with the service and did not wish to complain. Given the Council had no concerns about her mental capacity, it was right to act on Mrs Y’s wishes and was not at fault here. Following this, I saw no evidence of contact with the Council by Mrs Y, or her family, until July 2019. However, whether Mrs Y wanted to complain or not, the Council had commissioned a service to meet her needs and it was responsible for ensuring that it did. It did not need Mrs Y’s consent to do this.
38. When the GP asked for an urgent review of Mrs Y’s care, the Council took appropriate action. It spoke to Mrs X and involved a specialist team to consider whether the sudden decline might be due to an infection or other condition. It completed a mental capacity assessment, as it now had reason to doubt Mrs Y’s mental capacity. Once there is reason to question a person’s mental capacity, such as a diagnosis of dementia, it must be assessed at each decision. Mental capacity should not be assumed to have been lost totally at any point. The Council also assessed Mrs Y’s needs, and arranged a placement, with which all agreed. I found no fault here.
39. In respect of the charges, I am satisfied, on the balance of probability, the Council provided enough information to Mrs Y, Mrs X and Mr X. The Council had given Mrs X information the previous year and she had completed the same financial assessment form. She accepts the Council gave her the information and that she completed the form. She also contacted the Council to ask about completing the form. I saw nothing to persuade me that the Council gave Mrs X any reason to believe the NHS would pay for the care home. In Mrs Y’s response to my draft decision, she mentions that health professionals told her Mrs Y would be funded by the NHS. The Council does not make decisions about NHS funding and cannot be held responsible for comments made by NHS staff.
40. Mrs Y received a pension and once she moved into the care home, her living costs reduced, such as utilities and food. This meant most of her income was available to pay a contribution. Mrs X signed the form; it was not the Council’s responsibility to check it was correct although it could have alerted her to the absence of important information. Anyway, the Council later recalculated the assessment to include the information Mrs X provided about the remaining costs for her home.
41. There are discrepancies between the Council’s and Mrs X’s accounts of events. I do not doubt Mrs X found the experience stressful and distressing but I cannot say this was because of the Council. I found the Care Provider’s records were not good, but this was not sufficient to support Mrs X’s position that the Care Provider had not provided adequate support to Mrs Y. At this point, on the balance of probabilities, I find no fault in the Council’s actions.

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Final decision

42. I have completed my investigation and do not uphold Mrs X’s complaints that the Council:
• failed, between August 2018 and August 2019, to provide Mrs Y with the basic support (such as nutritional and personal care) detailed in her care plan.
• failed to properly assess Mrs Y’s needs following her discharge in August 2018 and did not robustly consider her capacity to make decisions about her care and ability to live independently.
• failed to discuss charging with her, leaving her with the understanding that Mrs Y’s short-term care home placement would be funded by the NHS.

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Investigator's decision on behalf of the Ombudsman