Summary: The Council told Mr X his mother would be liable to pay the cost of her care. There is therefore no reason to waive the fees before November 2021 as Mr X suggests. There were some occasions when Mrs X’s care package was not completely fulfilled because of carer shortages but there is no evidence this caused material injustice to Mrs X.

The complaint

1. Mr X (as I shall call him) complains the Council failed to tell him or Mrs X that she would be liable for the cost of her care. He also complains the Council did not communicate properly with Mrs X, failed to undertake appropriate assessments and provided inaccurate care plans.

Back to top

The Ombudsman’s role and powers

2. 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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’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)
4. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

Back to top

How I considered this complaint

5. I considered the information provided by Mr X and by the Council, including the capacity assessments, the case recording, and the email exchanges between Mr X and the Council. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Section 26A or 34C, Local Government Act 1974)

Back to top

What I found

Relevant law and guidance

7. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person 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.
9. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer).
10. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
11. 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.
12. 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.

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.

13. 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.
14. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
15. 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.

An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

16. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person.

What happened

17. Mrs X is a very elderly lady living at home alone. She has diabetes and cognitive impairment.
18. In March 2021 Mrs X was admitted to hospital after calling paramedics. Prior to her admission she had paid privately for 3 hours care every morning at her home. On discharge from hospital the Council arranged for reablement assessment care to be provided free of charge at bedtime for up to 6 weeks: Mrs X was advised if this become a permanent service it would be chargeable. A teatime call was also added after a couple of days to ensure Mrs X had her main meal and insulin appropriately.
19. The Council’s records show Mrs X was disorientated by the arrival of different carers. It arranged for the private agency to pick up the extra calls which would be funded as reablement by the Council.
20. Mr X contacted his mother’s social worker. He expressed concern about his mother’s level of need, her confusion and her vulnerability especially as she had started to wander in the evenings and was going to neighbours’ houses. He said she needed an urgent mental capacity assessment. He was unsure about her level of finances and said in the past he had initiated an EPA but this had not been registered. He said she had had finances well over the threshold amount at which she would fund her own care but had lost or forgotten her passwords so was unable to access some bank accounts. He was also concerned that an unknown lady had befriended his mother and he felt she was vulnerable to financial abuse.
21. The social worker visited Mrs X. Mrs X agreed to have waking nighttime care for some nights to allay her fears of being alone and prevent her wandering. Mrs X’s neighbours had also begun to telephone the Council with fears for Mrs X’s safety/ The social worker noted the waking nighttime care would allow time to arrange mental capacity assessments to see whether Mrs X could manage her own finances and make decisions about her future care. Mrs X was insistent she did not need more support and would not consider residential care.
22. The Council’s records for 21 April note, ‘MCA completed about her care and support needs; she has had a disagreement with the carers. Evening block care finishes tonight 6-9pm. (Social worker) considered a live-in care however the current care package works well; the only issue is the evening block. (Social worker) to speak to her son and the care agency and make a best interest decision. MCA to be completed in regard to finance as there are concerns about (‘…’)' who has befriended (Mrs X). Son was managing (Mrs X’s) finances however has stepped back as there is no LPA. He will need to make an application to Court of Protection’.
23. The Council’s records show the social worker put in additional care between 6pm and 9pm in the evenings when Mrs X was most likely to wander from her home. She looked into potential digital solutions – for example an automated voice recording reminding Mrs X not to leave her home – but felt this might make Mrs X more anxious.
24. In May Mr X contacted the social worker again. He said Mrs X’s needs had increased and he believed she now needed 24-hour care at home. The social worker replied. She said the present package of care was ‘9am-12noon privately organised AM. 4.30pm tea.7pm-6am waking night.’ She said as the morning care was arranged and funded privately perhaps that could be arranged earlier to coincide with the District Nurses visits. She added, ‘I reassure you a review of (Mrs X’s) care needs will take place and your views taken into considerations regarding 24/7 care. As (Mrs X) is usually self-funding, the MCA regarding finances will determine If (Mrs X) can manage the finances and payments for her care. ACS will not fund care long term if a person has finances over the threshold of £23,000.’
25. The mental capacity assessment on 7 May concluded Mrs X lacked capacity to manage her own finances. The social worker noted that Mrs X’s family would apply for deputyship to manage her finances and that the agency would now invoice Mrs X for all calls, not just the morning calls.
26. At a best interest meeting on 11 May Mr X agreed to apply for deputyship to manage his mother’s finances. The notes record ‘ACS would support in the duration between (Mr X) applying for deputyship…. Until the POA is set up SCC will incur a debt for (Mrs X) and her son will make the application to COP.’ On 13 May Mr X emailed the social worker: ‘In future it is likely mum will be charged for all care and support due to level of savings. This will accrue a debt to SCC until such time as financial management of mum’s affairs can be put in place and the debt can be paid’. He suggested the Council funded all the care until that time.
27. Mr X reported another increase in his mother’s needs. He said she was wandering, calling an ambulance and very distressed whether carers were there or not. The Council’s notes show there were discussions between Mr X and the social worker about the possibility of a live-in carer or a respite placement.
28. The Council’s notes show the social worker continued to pursue the question of managing Mrs X’s finances after Mr X indicated he had previously signed an EPA: ‘ACS is in contact with (Mrs X')s solicitor to ascertain whether (Son) has Enduring Power of Attorney. Although he believes he has, this has not been registered with the OPG. If solicitors agree this can be registered with the OPG, (Mr X) will take over finances. If not, ACS will apply for deputyship for the short term, whilst (Mr X) applies for long-term appointees. (He) is aware of this information. (He) is also aware that in the meantime, whilst waiting for enduring power or attorney confirmation or deputyship - he may need to support his mother with finances to purchase shopping items’.
29. In late June 2021 the care agency notified the social worker it was unable to provide cover that night because of staff shortages. The records show the social worker telephoned all other agencies in the area but was unable to find one with capacity. She telephoned Mr X to ask if he could assist but he replied that it was the Council’s problem and the social worker had to resolve it. The notes show the social worker found an emergency respite bed for the night but Mrs X refused to leave her home. The social worker arranged for the police to carry out a welfare check.
30. The following week Mrs X fell at home before the carer arrived and was admitted to hospital. The social worker liaised with the hospital social worker and suggested a mental capacity assessment to determine if Mrs X could make her own decisions about her future care: the social worker suggested discharge to residential care rather than home. The hospital social worker said based on her presentation Mrs X had capacity to make her own decisions and was ‘strongly’ of the view she wanted to return home.
31. The agency providing Mrs X’s care continued to report staff shortages and in July the social worker arranged for another agency to provide waking night care from that time onwards.
32. Mr X continued to express concerns both about Mrs X’s care (he said he thought a more formal review needed to take place) and about the delay in organizing the management of her finances. The Council’s records show the social worker emailed the solicitors again to ask about the registration of Mr X’s EPA. She reminded Mr X that the new package of care with a different agency had only recently been put in place and time was needed to assess whether it was suitable for Mrs X.
33. In September Mr X telephoned the Council’s finance department to complain that they had sent an invoice to Mrs X for her care. He said she was now worried that she owed the Council a large debt for her care. Mr X said they were told the services would be funded and they were never told they would be billed for Mrs X’s care. The social worker was contacted by the finance team. She emailed Mr X and explained that during their conversations by email in May 2021 it had been discussed that a debt would accrue until such time as he was able to access Mrs X’s finances using the EPA. She reminded him he had said once the EPA was resolved he would pay the account.
34. Mr X continued to complain about the finances, the care and his view that the Council was not listening to Mrs X’s own views. He said he had been requesting a review for some time. The team manager emailed him. She said the social worker had visited Mrs X ten times that year and each visit had been an opportunity to review how Mrs X was managing. She added, ‘As a full cost payer for her care, and as you clearly express dissatisfaction with the local authority you could choose to commission a service privately for (Mrs X), this would eliminate the local authority and you could liaise directly with the agency as I believe you have done in the past’.
35. In November 2021 the Council’s records note, ‘OPG search confirms that nobody has registered Lasting Power of Attorney, Enduring Power of Attorney or is acting under a Deputy Court Order for (Mrs X)’.
36. In November a newly allocated social worker met Mr X at his mother’s house. Mr X said the Council was supposed to be helping him register an LPA for his mother but had done nothing. Mr X told the social worker he had nothing to do with his mother’s finances but he kept an eye on her accounts. The social worker suggested that the Council should therefore apply for deputyship so someone was assisting with managing the finances but Mr X was recorded as saying he would contest that. The social worker later emailed Mr X to confirm the previous social worker had notified the solicitor that Mrs X lacked capacity. He reminded Mr X he could contact the solicitor and ask about registering the EPA.
37. Mr X and the social worker met again at Mrs X’s house later in November. Mr X was recorded as becoming ‘agitated’ when the social worker explained Mrs X would have to pay for the care she had received since the end of the reablement service. Mr X said no-one had told them they would have to pay therefore it was the Council who should pay for the care. The social worker noted Mr X ‘went on to explain to his mother that social services will send you the care plan and you will have a look at it and then you will decide whether you can pay. I intervened and told (Mr X) that the information he is providing to his mother is not what I have said.’
38. Mr X complained to the Council about the way in which it sought to charge his mother for her care despite no agreement.

The debt and the complaint

39. In March 2022 a finance officer rang Mr X. He explained the debt for Mrs X’s care now stood at £70,923.15. Mr X was recorded as being adamant he would not pay for any care prior to November 2021 as the Council had not informed of charges prior to that date. The finance officer said Mr X had not paid the charges from November 2021 onwards.
40. Mr X told the finance officer he would like to complete a financial assessment first even though Mrs X was a full cost payer, so he could establish when the likely date for her to fall below the threshold would be. The finance officer agreed to send out the relevant form but said in any event the Council would expect payments for the period from November 2021 onwards until the dispute was resolved.
41. In May Mr X agreed to pay the charges at full cost from December 2021 onwards.
42. Mr X complained to the Ombudsman. He said the Council had not followed the requirements of the Care Act in relation to the mental capacity assessments, had not provided costings about the care it had put in place or provided a copy of Mrs X’s care and support plan. He said the Council had repeatedly sent Mrs X invoices for her care although he believed it had said it was funding the care. He said the Council had communicated with Mrs X in ways she was unable to retain.
43. The Council says Mrs X has been considered as a full cost payer since 2018, due to being advised by her son Mr X that she had over £100,000 in savings.
44. The Council says “When care was set up, (Mrs X) had capacity regarding her finances and has had informal support from her son to manage her financial situation. In addition, there was no record of any POA or LPA on the system at that time and no request for invoices to be sent to any other person. However, it is understood that (Mr X) supported his mother for many years to manage and monitor her bank accounts however more recently, this has not been possible as (Mrs X) has been unable to remember security information meaning neither herself or (Mr X) can access the bank accounts and funds available’.
45. In response to my draft decision Mr X says he cannot see any point in commenting on the Council’s biased version of events.

Analysis

46. The Council made appropriate arrangements to undertake assessments of Mrs X’s capacity in respect of specific matters. I have examined the assessments which were undertaken and have not seen any evidence of fault in the way the Council considered Mrs X’s capacity, applied the principles of the Mental Capacity Act or acted in her best interests subsequently.
47. The Council very clearly told Mr X in May 2021 that if Mrs X had assets over £23,000 it would not fund her care and Mr X’s return email confirmed he knew a debt would accrue. Mr X says this is ‘fabrication’ but I have seen no evidence of fault in the Council charging Mrs X for her care or telling her and Mr X it would do so.
48. There were some occasions when the agencies could not cover all the care hours and the Council made considerable efforts to arrange other cover, including offering Mrs X a respite bed which she chose not to accept. The Council explained to Mr X that he could choose to arrange private care again for Mrs X if he was dissatisfied as he had previously done.
49. It took some time to resolve the question of who should manage Mrs X’s affairs. The Council gave the solicitor the relevant details about Mrs X’s lack of capacity to manage her own finances. It was not fault on the Council’s part which led to the delay. The Council offered to apply for deputyship and appointeeship itself to ensure proper management of her finances, but Mr X refused that option from the start.
50. I have considered the care and support plans provided by the Council, but I do not see in what way they are deemed to be inaccurate by Mr X. The Council has responded to Mrs X’s changing needs.
51. I have considered the way the Council communicated with Mrs X but cannot see any evidence of fault. Mr X complained to the Council about its practice of sending her invoices which he said caused her distress.. Her social worker explained to Mrs X that she was entitled to see her care plan and agreed to send it to her. The Council also involved Mr X appropriately in discussions about Mrs X’s care.

Back to top

Final decision

52. I have completed this investigation on the basis there is no evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman