Decision : Upheld
Decision date : 15 Mar 2021
The Ombudsman's final decision:
Summary: We upheld some of Mr X’s complaints about a council’s involvement with his mother Mrs Y when she went into a care home. There was a failure to signpost Mrs Y to independent financial advice and a failure to carry out a social care assessment. And the Council’s complaint response contained unhelpful, irrelevant detail. The Council will apologise for the avoidable distress to Mr X.
- Mr X complained for his mother Mrs Y about Northumberland County Council (the Council). He said it:
- did not complete an assessment of Mrs Y’s mental capacity to make a decision about going into a care home, which was not in line with its responsibilities under the Mental Capacity Act
- did not tell Mrs Y a cheaper room may have been available
- did not give her full, transparent information about the different fees for different room types so she was not properly informed when making the decision
- tarnished his character and motives by using information selectively in its complaint response and failed to address the substantive issues
- Failed to challenge the care provider’s lack of openness about fees.
The Ombudsman’s role and powers
- 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)
- Although this complaint is about events that took place in 2016, I have investigated it because I do not consider it to be a late complaint. Mr X only became aware of the alleged fault by the Council in 2020 when Mrs Y’s savings fell to the threshold where she qualified for council funding for her care home fees. So when he complained to us, he knew about the alleged fault for less than a year.
- 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)
- 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)
How I considered this complaint
- I considered Mr X’s complaint, the Council’s response and case records described later in this statement. I discussed the complaint with Mr X.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- A council must carry out an assessment for any adult with an appearance of need for care and support. (Care Act 2014, section 9)
- Statutory guidance says councils must undertake an assessment for any adult who appears to need care and support regardless of whether or not the council thinks they have eligible needs or of their financial situation. (Care and Support Statutory Guidance, paragraph 6.13)
- The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
- A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
- because he or she makes an unwise decision;
- based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
- before all practicable steps to help the person to do so have been taken without success.
- The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
- The law says a council must establish and maintain a service for providing people in its area with information and advice about care and support, including about:
- The type of care and support available
- How to access independent financial advice about care and support matters. (Care Act 2014, section 4)
- Mrs Y has mental health problems and dementia. She moved into a care home in 2016 as an emergency.
- The Council provided me with its contact records during July 2016 when Mrs Y went into residential care. Mrs Y phoned the social care team in the middle of July to say she was struggling to cope with her personal care and had no relatives or friends in the area. The Council arranged respite care in a care home after Mrs Y attended hospital. She asked to go back to her flat after a couple of nights in the care home and the records indicate she rang a taxi to take her home. Mrs Y rang the social care team soon after returning home to say she had changed her mind again and wanted to go back into respite care. She was noted to be agitated. A worker spoke to Mr X who was aware of the situation. Mrs Y called emergency services later and went to hospital that night. She said she felt suicidal. The records indicate an NHS psychiatric liaison worker spoke to Mrs Y and she agreed to go into respite care which the Council’s emergency duty team facilitated by contacting a second care home with a vacancy. The second care home assessed Mr Y and agreed to take her over the weekend.
- Mrs Y’s case was allocated to a social worker who visited Mrs Y after the weekend. The social worker also spoke to Mr X. Mr X indicated matters were difficult and at the time suggested he did not want to be too involved due to their relationship. Mr X told us that he did not say he wanted no further involvement with his mother and he felt the Council unfairly used this comment in later complaint correspondence to denigrate him.
- The social worker noted during her visit to Mrs Y that she had settled well in the care home and said she wanted to stay there as she felt safe. Mrs Y was going to think about the options, which included her returning to her flat with extra support.
- The social worker visited Mrs Y the following week. They had a long discussion about the pros and cons of staying in the care home or returning to her flat. Mrs X was said to be aware she would need to pay the full cost of her care.
- Mrs X moved into the care home permanently and the social worker closed the case. There is no record of the social worker having spoken to anyone at the care home about funding the placement or having referred or signposted Mrs Y to any available independent financial advice.
- Mr X complained to the Council in 2020. The Council’s complaint response quoted a frank phone discussion Mr X had with the social worker in July 2016.
- The Council did not uphold the complaint, saying:
- Mrs Y weighed up the pros and cons of staying in the care home or returning to her previous place and so Mrs Y’s mental capacity was considered and there was no reason to doubt her capacity. So there was no requirement for a formal capacity assessment.
- Care home providers were private businesses. It was not the Council’s role to get involved with charging outside its own placements and contract negotiations.
- Mrs Y had previously been offered social care assessments and had refused one shortly before the events of this complaint.
- It was sorry Mr X was caused distress by the complaint response and it did not intend this. It quoted the conversation in full for transparency and context, because the events happened quite a long time ago and because it was unable to agree what he wanted as an outcome to the complaint.
Was there fault?
Complaint a: The Council did not complete an assessment of Mrs Y’s mental capacity to make a decision about going into a care home, which was not in line with its responsibilities under the Mental Capacity Act
- I do not uphold this complaint. The records indicate no reason to question Mrs Y’s mental capacity. The legal position is a person’s mental capacity is assumed unless there is reason to question it. Having a diagnosis of a particular condition, including dementia and/or a mental illness, is not a basis to question a person’s capacity unless other relevant issues are noted. The Council’s record of the discussion indicates the social worker explored the decision with Mrs Y in some detail and nothing in the records called her capacity into question.
- Although there was no fault in not completing a mental capacity assessment, I note the Council did not carry out a social care needs assessment of Mrs Y during its involvement in July 2016. This was not in line with section 9 of the Care Act or statutory guidance set out in paragraph 10. That guidance makes it clear that a council must assess needs regardless of a person’s finances. The failure to carry out a needs assessment for Mrs Y was fault. While Mrs Y had previously refused a needs assessment, she should still have been offered one again. Even if the Council had offered an assessment and Mrs Y had agreed, it did not mean the Council was required to fund Mrs Y’s placement because her assets were more than the threshold for funding.
Complaint b: The Council did not tell Mrs Y she was in a double room and that a cheaper room may have been available
- As Mrs Y was a self-funder who had mental capacity around decision-making in this area, the Council was not required to get involved in the process of contracting, negotiating or considering costs for Mrs Y’s care. The Council did not commission the placement and so was not required to enter into negotiations about price or availability of potentially cheaper rooms. It is common practice for care providers to have different rates for private paying individuals and councils. Councils are often contracting at a reduced rate compared with private individuals because they are commissioning multiple beds. This is market forces and not fault.
Complaint c: The Council did not give Mrs Y full, transparent information about the different fees for different room types so she was not properly informed when making the decision
- Care providers are required to give full and transparent information about fees they charge. This complaint needs to be directed to the care provider and not the Council.
- However, the law does require a council to maintain an information and advice service including telling people where they can get independent financial advice about care and support. We would expect the Council to provide a leaflet or signpost a self-funder to independent financial advice and there is no record of any signposting Mrs Y to independent financial advice in this case, which was fault.
Complaint d: The Council tarnished Mr X’s character and motives by using information selectively in its complaint response and failed to address the substantive issues
- I uphold the first part of this complaint. There was nothing to be added to the Council’s complaint response by setting out the full detail of a call between a social worker and Mr X and I can see why Mr X feels judged. It caused him avoidable distress and was not relevant to the issues complained of. I note the Council’s reason for giving full details of a phone call between Mr X and an officer. I do not share the Council’s view that transparency or an inability to deliver Mr X’s desired outcome required it to give a word for word account.
- However, I am satisfied the Council’s complaint response addressed one of the key issues – Mrs Y’s mental capacity. I have explained above that there were additional faults in the lack of signposting to independent financial advice and lack of a needs assessment.
Complaint e: The Council failed to challenge the care provider’s lack of openness about fees.
- The Council had no involvement in fees and I do not find it to be at fault. There are regulations a care provider has to follow in terms of giving information about fees and rates, but this is not a council’s responsibility when it is not commissioning the care. I do not uphold this complaint.
Did the fault cause injustice?
- I do not conclude on a balance of probability that if Mrs Y had been signposted to appropriate independent advice that the outcome would have been any different. Nor is it possible for me to conclude on a balance of probability that a needs assessment would have made any difference to the outcome for Mrs Y. It appears she had made a decision that she wished to stay in the care home. It is too speculative to conclude what Mrs Y’s response would have been had she been signposted to financial advice.
- The Council’s complaint response caused Mr X avoidable distress.
- The Council needs to apologise within one month of my final decision for the avoidable distress caused by its complaint response.
- I upheld some of Mr X’s complaints about a council’s involvement with his mother Mrs Y when she went into a care home. There was a failure to signpost Mrs Y to independent financial advice and a failure to carry out a social care assessment. And the Council’s complaint response contained unhelpful detail that was not relevant to the matters complained about. The Council needs to apologise for the avoidable distress to Mr X.
- I have completed the investigation.
Investigator's decision on behalf of the Ombudsman