• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed actions
• Final decision

The Ombudsman's final decision:

Summary: Mr X complained on behalf of Mrs Y that the Council failed to pay for her residential care during renovation work on her home. He said this has caused him a financial impact and Mrs Y would have been at risk if she had stayed at home. He would like the Council to pay for the residential care placement. We found some fault in the way the Council dealt with this and the Council has agreed to apologise for this.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained on behalf of his mother, Mrs Y that the Council:
   • Failed to commission a placement during renovation work on her home to meet her care needs.
   • Wrongly denied knowledge or involvement in arrangements for her respite care between June and December 2019 and refused to fund the placement.
2. Mr X placed Mrs Y in a care home without support from the Council as he could not wait any longer and Mrs Y would be at risk when he started the works. Mr X paid for the placement from his own resources so says he is now out of pocket and wants the Council to now provide the funding for this. He says the work has allowed Mrs Y to return to live at home which is what she wanted and in her best interests.

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The Ombudsman’s role and powers

3. 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)
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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended).

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How I considered this complaint

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

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What I found

Background

Mental capacity

8. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established 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; 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.
9. 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.
10. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Lasting Power of Attorney

11. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person to choose one or more persons to make decisions for them, when they become unable to do so themselves. The attorney is the person chosen to make a decision on the person’s behalf. Any decision has to be in the person’s best interests.
12. There are two types of LPA.
    • Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
    • Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live. A health and welfare LPA can only be used when a person is unable to make their own decisions.

What happened

13. Mrs Y lived alone in her own home. The Council provided her with support from a personal assistant through a direct payment of £63 a week. This was confirmed by a review in April 2019. Mrs Y also received support from her son, Mr X. Mrs Y had granted Mr X both health and welfare, and property and finance LPAs.
14. In mid May 2019, the Council telephoned Mr X about evidence needed for Mrs Y’s direct payment expenditure which it had not received. During this conversation, Mr X advised the Council he was concerned that Mrs Y was awake at night and sleepy during the day. He said he wanted her to be placed in a residential care home. The Social Worker noted they suggested he speak to Mrs Y’s GP and reconsider. The Social Worker noted they informed Mr X that their view was Mrs Y could continue living in her own home with a care package to meet her needs. They noted Mr X did not agree with this. They also advised Mr X that the Council policy must be followed to place someone in a residential care setting. Mr X says the Social Worker gave him the details of three possible care homes in the area at which the Council funded placements during a phone call. The Social Worker agreed to discuss a potential placement with their manager. Mr X did not believe any of the three care homes were suitable for Mrs Y.
15. On 5 June, the Social Worker asked Mr X what care home he wanted Mrs Y to stay in so they could find out the cost. Two weeks later, Mr X advised the Social Worker of the home details. The same day, the Council contacted the care home and was advised the fees were between £1410 and £1700 per week depending on needs and a preassessment. A week later, without further reference to the Council, Mr X moved Mrs Y to the home. Mr X says he was not told the Council would not fund such a placement and believed the Social Worker had asked about the home so they could arrange the placement.
16. After two days, the care home sought an urgent DoLS authorisation as it said Mrs Y was mainly independent and had been packing her bags and asking to go home. The Council’s records show that Mr X said he wanted Mrs Y placed there long term and the Council to fund this at £1600 per week. Mr X says he did not expect the Council to fully fund the placement. The care home advised the Council that it did not accept people who were not privately funded anyway.
17. The Council assessed Mrs Y’s needs again and determined they could be met at home with a package of care. It also assessed Mrs Y as having capacity to decide about her care and she chose to return home with an increased package of care. This was to support her with medication, shopping, maintaining and managing nutrition and maintaining a habitable home environment, also accessing the community. Mr X expressed concerns about the Council’s view that Mrs Y could manage at home with a package of care. He said neighbours reported hearing her wandering around and banging doors during the night. The Council advised him to speak to Mrs Y’s GP as it could be a result of her medication. He said Mrs Y also smoked cigarettes and was at risk of starting a fire when she dozed during the day. Mr X said he had agreed with Mrs Y that she would have only three cigarettes a day, but she leaves the house and asks strangers for cigarettes. The Council remained of the view that Mrs Y’s needs could be met with a package of care at home. Mrs Y has been successfully living at home with a package of home care since December 2019.

Was there fault which caused injustice?

18. The Council accepts that it did not deal with this situation well. It should have acted promptly to assess Mrs Y’s needs once Mr X highlighted concerns that, in his view, meant she needed residential care. This was fault and missed an opportunity to ensure it supported Mrs Y in an appropriate way and to be clear with Mr X about this. However, the Council did not at any point, agree Mrs Y needed residential care or to fund Mrs Y in residential care, either for a temporary stay or permanently. It did not even have a conversation with Mr X about the home he had identified, and the social worker had clearly expressed concerns about his plan. There was no reason for Mr X to expect it would fund residential care.
19. Additionally, there was no evidence that Mr X gave the Council a clear indication that he would move Mrs Y by a specific date or that she would be at risk if he did not. Mr X was not clear about the work he proposed to complete on Mrs Y’s property and the benefit, or risk, that this would present to her. It was also not clear why Mr X was insistent Mrs Y remain in residential care when he had said the work would help her return to live at home safely.

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Agreed actions

20. To remedy the injustice identified above, I recommended the Council:
    • Apologise to Mr X for the opportunity it missed to assess Mrs Y and clarify its position.
    • Ensure it funded Mrs Y for the period in which she was in the care home, at the rate she previously received for her care at home.
21. The Council has confirmed it has already paid funds to Mrs Y for the period during which she was in the care home, at the rate it had been paying for her home care.
22. It should apologise within one month of my final decision and send a copy of the letter to me.

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Final decision

23. I have completed my investigation and found the Council was at fault which caused injustice.

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Investigator's decision on behalf of the Ombudsman

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