Summary: Mr Z has made a complaint on behalf of his mother who is in residential care (Mrs X). Mr Z says the Council failed to explore all of Mrs X’s eligible care options following a stay in hospital. He says Mrs X then made a decision to self-fund her care in a residential care home on the basis of misinformation and procedural failings by the Council. We identified the Council failed to discuss all the care options with Mrs X. However, the Council quickly remedied the failing and we do not consider that Mrs X has suffered an injustice by reason of the fault. We did not identify any other failings by the Council.

The complaint

1. The complainant, who I refer to as Mr Z, is making a complaint on behalf of his mother, who I refer to as Mrs X. Mrs X has care needs and Mr Z says the Council conducted a flawed care assessment process without involving him or Mrs X’s wider family. Specifically, Mr Z alleges the following:
1. The Council failed to adhere to Mrs X’s request that she required the support of her family to make important decisions regarding her care and living arrangements.
2. The Council omitted key care options from the care assessment which meant Mrs X was unable to make a well-informed decision at the earliest opportunity.
3. The Council had unfair expectations that Mrs X, who was frail and in poor health, would choose to leave her care home after the additional care options had been explained retrospectively.
2. Mr Z says that because of the failings during the first assessment, Mrs X made a decision to remain in a care home which the Council is declining to fund. Further, he says Mrs X would have preferred care in assisted living had this option been discussed by the Council with family present. He says that because it was not, Mrs X felt it necessary to sell her home to fund the cost of living in a care home.
3. As a desired outcome, Mr Z wants the Council to accept the failings during the first assessment and how this resulted in Mrs X feeling only a care home could meet her future needs. In addition, he wants the Council to provide financial support for Mrs X to remain in residential care given she only chose this on the basis of misinformation. Mr Z also wants the Council to pay compensation to acknowledge the distress and uncertainty the family have suffered.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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 have reviewed Mr Z’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. I invited both Mr Z and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

Care and support plan

6. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.

The Care Act 2014

7. In circumstances where an adult may have needs for care and support, s9 of the Care Act 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.
8. Where a person is assessed as having eligible needs and that person has capital above the upper financial limit, local authorities do not have a statutory duty to meet the individual’s needs. The legal framework for charging is set out in s14 and s17 of the Care Act 2014. Any local authority must assess a person’s financial resources to decide whether they should pay for their own care needs, or establish the level of contribution they need to make.

Extra-care housing

9. Assisted living (also known as extra-care housing) offers more support than sheltered housing but still allows a person with care needs to live independently.
10. You live in a self-contained flat, with your own front door, but staff are usually available up to 24 hours per day to provide personal care and support services. These are tailored to you and can include help with washing, dressing, going to the toilet and taking medication. Domestic help, such as shopping and laundry, and meals may also be provided.

Chronology of events

11. In early 2021, Mrs X was admitted to hospital due to poor health.
12. In February 2021, Mrs X was discharged to a care home for a short term period of free care following an NHS care assessment. The evidence shows Mrs X was happy with the care provided and that she wished to remain in the care home.
13. In late February 2021, the Council completed a Care Act assessment of Mrs X’s needs. It concluded that her care could be met at home with home care support three times a day, as well as equipment to assist her daily living needs.
14. The Council offered Mrs X the support for her to return home, though explained she declined this. It said Mrs X expressed that she wished to stay in the care home and that she had full legal capacity to make this decision independently.
15. The Council say it was later agreed that Mrs X would need to fund the full cost of her stay at the care home when the free period of NHS reablement care expired. This is because the care assessment had not identified residence in a care home as an eligible need (see paragraph seven). Mrs X later placed her home on the market for sale to fund her stay in residential care.
16. Sometime later, Mr Z raised concerns that some of the information in the care assessment was incorrect. He was also dissatisfied that he was not asked to attend the care assessment. The Council acknowledged these concerns.
17. In mid-March 2021, the Council arranged a further assessment following a number of requests by Mr Z. The assessment was updated with the additional information provided. However, it did not alter the Council’s decision that Mrs X’s care needs could be met at home with appropriate support.
18. Importantly, during the reassessment the Council also said it discussed the available option of extra-care housing. Mrs X was eligible for this care option though was unaware of it due to it being omitted from the first assessment.
19. Following the further assessment, the Council apologised it had not discussed the option of extra-care housing with Mrs X. It therefore extended NHS funding for the care placement up to the date of the reassessment. Further, it provided financial support to Mrs X from 12 March to 9 April 2021 by requiring her to only pay for her assessed charge, instead of the full cost of the care home. The Council also allocated an Officer to support Mrs X into extra-care housing or back home.
20. The Council later sent Mrs X further information relating to extra-care housing. It also made clear that Mrs X would need to self-fund her care if she decided to remain in the care home after 9 April 2021.
21. A week later, the Council sent Mrs X a leaflet with information about extra-care housing and confirmed the dates by which a decision would need to be made by.
22. In late March 2021, Mr Z made a complaint to the Council. He said the initial procedural failings from the first assessment meant that Mrs X had anxieties about leaving her came home. Further, he said the failings had prejudiced the process and that the Council should now fund Mrs X’s needs in her care home.
23. In late April 2021, the Council issued its final response to Mr Z on the subject of his complaint. The Council apologised again for not providing the full information to Mrs X at the time of the first assessment, but said it had rectified this fault.

My assessment

Support with decision-making

24. The position of Mr Z is the Council failed to involve Mrs X’s family in making important decisions regarding her care and living arrangements. In response, the Council says Mrs X has full legal capacity to make decisions about the care she wants. Further, it says Mrs X’s family were involved in her discharge process from hospital and her daughter was included in the initial care assessment process.
25. Importantly, every adult has the right to make his or her own decisions and there is no evidence to suggest Mrs X is incapable of making well-informed decisions. In law, local authorities must operate under the presumption of capacity, as defined by s1(2) of the Mental Capacity Act 2005. This means that it cannot be assumed that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
26. In addition, I have reviewed the Council’s detailed case notes in relation to its assessment of Mrs X’s care needs. In my view, these demonstrate Mrs X was happy with the care being provided by the care home and that she had spoken to her family and expressed her wishes to remain at the home on a long-term and private basis. Moreover, the case notes show Mrs X’s daughter was contacted on the date of the initial assessment for her thoughts and views. On the narrow point of Mrs X not being supported to make a decision relating to her care, I have not identified any fault by the Council. Mrs X has full legal capacity to make her own choices and her family were consulted during the assessments by the Council.

The care assessment process

27. In summary, the Council agreed to conduct a further care assessment of Mrs X’s needs due to concerns raised by her family that some information in the initial assessment was incorrect. Further, there was dissatisfaction that Mrs X’s family were not invited to attend Mrs X’s first care assessment. I have already commented on the latter issue (above) and so do not propose to address this.
28. During the reassessment process, it was identified that Mrs X was not offered the option of extra-care housing which she would have been eligible for with the assistance of Council funding. It is the position of Mr Z that this important omission by the Council meant Mrs X was not provided with the necessary information to support a well-informed decision. Further, he says that had this option been explained, Mrs X would have opted for it as her primary concerns were returning to her own home which might prejudice her health.
29. Firstly, the Council acknowledge this was a procedural failing and ultimately that Mrs X was not provided with all the options of available care. On that basis, I do find the Council was at faut. However, the Ombudsman is only required to accept and remedy complaints where fault has caused an injustice, meaning serious loss, harm or distress to the complainant. I address the issue of injustice below.

Injustice to the complainant

30. In my view, when the Council identified fault during the care assessment process, it immediately took actions to remedy any injustice to Mrs X. Firstly, it gave Mrs X an overview of extra-care housing and identified she was entitled for this care as an eligible need. Second, the Council extended NHS funding for the care home placement up to the date of the reassessment. Further, it provided a month of financial support to Mrs X so that she did not need to pay the full cost of the care home after the period of free NHS care ended. The Council also allocated an Officer to support Mrs X into extra-care housing or back home. Following these actions, Mrs X opted to remain in the care home on a private basis.
31. I recognise that Mr Z says the Council has unfair expectations that Mrs X, who is frail and in poor health, would choose to leave her care home after the additional care option had been explained retrospectively. As said, Mrs X has full capacity and her health has no bearing on her ability to make carefully considered decisions. The Council has fully explained to Mrs X that remaining in a care home is not an eligible need and it has no duty to fund the care. The evidence demonstrates Mrs X’s consistent wish since leaving hospital is to remain in a care home on a private basis. There is no evidence to suggest Mrs X would have opted for extra-care housing had this been explored in the first care assessment.
32. I consider the Council has put Mrs X back into the position she would have been in had the fault not occurred. Mrs X did not suffer loss, harm or distress as a result of the Council’s flawed process which it quickly remedied. I do not therefore consider that Mrs X has suffered an injustice and so I have not investigated this part of the complaint further.

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Final decision

33. The Council was at fault for not exploring all eligible care options with Mrs X in the first care assessment. However, the Council quickly remedied the fault and there is no evidence to suggest Mrs X has suffered an injustice by reason of the identified fault. I also did not identify fault by the Council in the way Mrs X was supported in making important decisions relating to care needs and living arrangements.

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Investigator's decision on behalf of the Ombudsman