Summary: Mr X complained the Council wrongly placed him for a short stay in a care home in August 2018, and wrongly invoiced him for the associated care costs. The Council was not at fault for placing him in a care home or charging him for it. However, it has no record that it gave him costs advice in August 2018, for which it should apologise.

The complaint

1. Mr X complained, through his representative, that the Council wrongly placed him for a short stay in a residential home in August 2018 after deciding he did not have capacity to make his own decision about his care and accommodation. He says he did not agree to go into a care home and the Council should have arranged for him to return home with a care package. He said he only needed a carer to visit once each day. He said when assessing his mental capacity, the Council confused illiteracy for capacity.
2. As a result, he has been charged £6,588.35 for his three month stay in a care home and has incurred fees of £3,600 with legal representatives.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered:
• the information provided by Mr X’s representatives and the Council; and
• relevant law and guidance, as set out below.
6. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Needs assessment

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult who appears to need care and support. They must assess regardless of the person’s finances and whether or not the council thinks they have eligible needs. The council should involve the individual and where suitable their carer or any other person they want involved.
8. Where the council identifies the person has eligible needs it must meet those needs. It can do this by arranging for care and support to be provided by a third party.

Charging for social care

9. Councils can make charges for the care and support services they provide or arrange. (Care Act 2014, section 14)
10. Councils must assess the person’s finances to decide what contribution they should make. Where the person has capital of more than the upper capital limit (23,250) they will need to pay the full cost of their care until such time as their savings fall below that limit.
11. Statutory guidance says councils must not charge for certain types of support, which must be arranged free of charge. This includes intermediate care and reablement services, which must be provided free of charge for up to six weeks. (Care and Support Statutory Guidance, at para 8.14)
12. Intermediate care includes services provided to people for a limited period after they have left hospital to assist them to maintain or regain independence and return to their home. (Care and Support Statutory Guidance, at para 2.14)
13. Reablement services are designed to support a person to regain or relearn some capabilities where they have been lost due to illness or disease, for example, to enable a person to mobilise safety after an operation or independent living skills for people who have developed visual impairment. (Care and Support Statutory Guidance, at para 2.14)

Mental capacity

14. A person is presumed to have the mental capacity to make a decision unless it is established that they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on their age, appearance, assumptions about their condition, or any aspect of their behaviour; or
• before all practical steps to help the person to do so have been taken without success.
15. The Council must assess someone’s ability to make a specific decision when their capacity is in doubt. When doing so, it must consider whether the person:
• has a general understanding of what decision they need to make and why they need to make it;
• has a general understanding of the likely effects of making, or not making, the decision;
• is able to understand, retain, use, and weigh up information relevant to the decision; and
• can communicate their decision.
16. The Mental Capacity Act 2005 says that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in the person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

Deprivation of Liberty Safeguards (DoLS)

17. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for those who do not have the mental capacity to consent to their care and treatment and live in a care home, hospital or supported living accommodation. This is to protect them from being deprived of their liberty unless it is in their best interests and there is no less restrictive option. The hospital or care provider will make an application to the council, which must carry out an assessment, before deciding whether to authorise the deprivation of liberty.

What happened

18. Mr X lived in warden assisted accommodation before being admitted to hospital after a fall in August 2018. Records show that whilst he was in hospital Mr X was confused and had periods of delirium. Medical staff considered he may have dementia but did not make a formal diagnosis at that point. Mr X also had a problem with his feet that required treatment and affected his mobility.
19. The Council carried out a needs assessment in early August 2018, which said he needed a short term stay in a care home to minimise the risk of falls and allow an opportunity for his confusion to subside. At that point, the Council decided Mr X had mental capacity to make the decision for himself, although the assessment stated his confusion was fluctuating. The record stated that although he wanted to be in his own home, Mr X understood the reasons for the short term placement, which would help him to return home. The warden for the assisted accommodation said Mr X had no cognitive issues prior to the hospital admission. The Council said it discussed the costs of care at that point with Mr X and his friend, Mr Y, who was supporting him. I have seen no written record to confirm this.
20. At the end of August, the Council carried out a mental capacity assessment (MCA) which concluded he did not have capacity to make a decision about his care and accommodation. This was because he lacked insight into his own safety, did not understand the implications of his own decisions and was not able to remember information long enough to make an informed decision. Mr Y was involved in the MCA and in the discussions that led to a “best interests” decision that Mr X needed a short stay in a care home. The record showed the Council considered whether Mr X could return home with a care package but concluded he would not be safe between calls and would be at high risk of falls. The record stated Mr Y agreed this was “the safest option” at the time, to give Mr X “the opportunity to recover from this confusion/delirium”.
21. In its replies to my enquiries the Council explained Mr X did not meet the criteria for intermediate care because longer term planning was needed due to his fluctuating confusion and he was not simply requiring assistance to regain his mobility.
22. In September 2018, the care home obtained DoLS authorisation for Mr X’s stay. The record stated Mr X did not have capacity to make decisions about his care and accommodation based on his inability to weigh the information given to him due to poor memory, confusion and impaired cognitive function. Mr X stated he did not need support for tasks, such as personal care, which the care home reported he did need help with. Although Mr X said he did not need to be in a care home, the record stated he was not able to weigh the pros and cons of this.
23. Also in September 2018 the Council considered whether Mr X had capacity to engage in a financial assessment. At that point Mr Y said he did not wish to be involved with the financial assessment and there was no-one with legal authority to manage Mr X’s finances. It was established that Mr X had capital well above the upper capital limit, which meant he would have to pay his care fees in full. Therefore, a full financial assessment was not needed.
24. In October 2018, the Council carried out an updated needs assessment. The record stated Mr X had shown some improvement since late August but “remains somewhat forgetful and appears to struggle to analyse information”. The Council decided Mr X had regained mental capacity to make his own decision about his care and accommodation. Mr X said he wanted to return home but agreed to remain in the care home until a care package was arranged. This was expected to take about a week. Mr X was not able to return home immediately as the care home reported some further delirium. He returned home in early November. Around this time, Mr X decided to grant an LPA to Mr Y so Mr Y could deal with his finances.
25. Mr X said the Council did not send bills for the costs until March 2019. The Council had provided copies of bills sent in November and December 2018 and January 2019, and reminders sent in January and February 2019.

My findings

26. The hospital said Mr X was medically fit for discharge in early August 2018. The Council assessed his social care needs. It said Mr X would benefit from a short stay in a care home due to periods of confusion whilst he was in hospital and a high risk of falls due to the problem with his feet. At the time, Mr X was receiving one-to-one care in hospital. The assessment stated Mr X understood why a care home stay was needed.
27. The law says a person is assumed to have capacity to make their own decisions unless it is established that they do not have capacity. By late August 2018, the Council decided Mr X did not have capacity to make decisions about his care and accommodation. The Council carried out the MCA across three visits over two weeks. It comprised discussions with Mr X and involved his close friend, Mr Y. The record showed the officer carrying out the assessment considered the questions set out at paragraph 14 above. This included considering whether Mr X could communicate his decision. There is no indication this was affected by whether Mr X was illiterate since there was no reading or writing involved. There is no evidence of fault in the way the officer carried out the MCA.
28. After establishing Mr X did not have capacity, the Council made a “best interests” decision. It considered whether Mr X could return home with a care package but decided he would be at risk between calls. Therefore, it decided a short stay in a care home was in his best interests. Mr Y agreed with the decision, which he said would give Mr X time to recover from the confusion he experienced in hospital. There is no evidence of fault in the way the Council made the “best interests” decision.
29. In October 2018, the Council carried out a further assessment. It decided Mr X had capacity to make his own decisions, although he was still showing signs of confusion at times. Mental capacity can fluctuate. The fact that Mr X was accepted to have capacity in October does not, on its own, mean the assessment in late August was flawed. At this point Mr X said he wanted to return home and arrangements were made for him to do so with an appropriate care package. The Council was not at fault.

Costs of care

30. The Council said it discussed the costs of care with Mr X and Mr Y in early August 2018 but has provided no record to confirm this. I would expect it to record its discussion, including whether it provided any information in writing about the likely costs, such as a general information leaflet or a letter stating the costs for the particular care home. The failure to demonstrate it provided this information was fault. This fault led to uncertainty about the costs involved.
31. Council records show Mr Y queried how the care costs would be paid in late August but it is unclear what advice was given. The support plan dated late August 2018, which stated the cost of care was £567 per week, was sent to Mr X in early September. Mr X and Mr Y, who was supporting him, were therefore aware of the costs of the care by this point.
32. The Council established in September 2018 that Mr X had savings above the upper capital limit and would therefore need to pay the cost of his care in full. On this basis it did not need to carry out a full financial assessment. There was no undue delay in establishing that Mr X needed to pay the full costs of his care.
33. At the time, there was no-one with legal authority to manage Mr X’s finances so it was appropriate for the Council to pay for the care and later reclaim this from Mr X. The Council arranged for a further MCA to be carried out in October 2018, which determined Mr X had regained capacity, following which he was able to appoint Mr Y to deal with his finances.
34. Councils should provide some care and support free of charge, including the first six weeks’ of intermediate care. This is usually for situations where a person is recovering from hospital treatment and regaining mobility or independence. In this case, it was not clear whether Mr X would be able to return home due to his fluctuating confusion. Therefore, the Council decided he did not quality for an intermediate care bed. It arranged a short stay in a care home to allow for further assessments of his needs. It was not at fault.

Mr X’s legal fees

35. Mr X says he incurred £3,600 in legal fees disputing the invoices for his care costs. I am not recommending the Council reimburses these since it was entitled to charge him for the costs of his care and Mr X did not need to instruct a solicitor to assist him to complain to the Council or to us.

Agreed action

36. The Council will, within one month of the date of the final decision, apologise to Mr X for the uncertainty caused by its failure to demonstrate the information it provided about the likely costs of care in August 2018.
37. The Council will, within three months of the date of the final decision, remind relevant staff of the importance of ensuring they give clients information about the likely costs of care at an early stage and keep a record of the information given.

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Final decision

38. I have completed my investigation. I found fault leading to personal injustice. I recommended action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman