Summary: Ms X complained the Council moved her to a care home without her knowledge. She complained the Council did not give her information about finances and refused to provide her with an advocate when she requested one. Ms X also complained the Council disposed of her personal belongings and has not investigated her complaint. Ms X says this has affected her mental health. The Council was not at fault.

The complaint

1. Ms X complained the Council moved her to a care home without her knowledge. She complained the Council did not give her information about finances and refused to provide her with an advocate when she requested one. Ms X also complained the Council disposed of her personal belongings and has not investigated her complaint. Ms X says this has affected her mental health.

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The Ombudsman’s role and powers

2. 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)
3. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. I have exercised discretion to consider events in this case dating back to January 2020. Ms X engaged with an advocate in September 2022 to support her to make a complaint to the Council. Ms X was not in a position to pursue this complaint until she engaged with her advocate.

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How I considered this complaint

6. I read Ms X’s complaint and spoke to her about it on the phone.
7. I considered information provided by Ms X and the Council.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

9. 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.
10. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
11. The Care Act 2014 gives Councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
12. 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 should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
13. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a Council to decide whether to charge a person when it is arranging to meet their care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and Councils should have regard to the Care and Support Statutory Guidance.
14. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
15. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
16. A Council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a Council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.
17. 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.
18. 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.

19. 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.
20. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

21. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
22. 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.
23. A key principle of the Mental Capacity Act 2005 is 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
24. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

25. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
26. The Council assessed Ms X did not have capacity to manage her finances in 2019. The Council was granted deputyship of her finances by the Court of Protection.
27. Ms X’s social worker visited her home in December 2019. Ms X had some medical concerns but refused treatment but did agree to go into respite care. The social worker confirmed she had capacity to refuse medical treatment and make the decision about her rented accommodation. The following day support workers found Ms X at home on her floor. She was admitted to hospital.
28. Ms X developed pneumonia four days after her admission to hospital. The Council ended her care package and confirmed it would complete a new assessment when she was ready for discharge.
29. A social worker met Ms X in January 2020. She said she did not like her home and wanted to go into sheltered accommodation. The social worker spoke to a nurse who had been involved in Ms X’s care who agreed a respite placement was appropriate for her. Ms X had potentially had a stroke and her mobility had been significantly affected. She used a wheelchair to get around.
30. The hospital discharged Ms X in January 2020 and she moved to a care home. The Council completed a review of Ms X’s care plan and confirmed she was at the care home as a temporary resident. The care plan stated Miss X had been assessed as not having capacity to make decisions about her finances due to previous financial exploitation and ongoing risk. The plan also stated Miss X did not have capacity to manage her care needs when she was under the influence of alcohol.
31. Ms X spoke to the social worker in February 2020 and repeated she did not want to return to her home.
32. The social worker spoke to Ms X in April 2020. The social worker explained Ms X would need to pay for her care and she would not receive some of her benefits due to being in hospital and residential care for more than 28 days. Ms X repeated her desire to end her tenancy on different occasions throughout April.
33. The Council completed a financial assessment at the end of April 2020. This confirmed Ms X would contribute to her care. Ms X spoke to the social worker to say she was not happy with the level of contribution but reiterated that she did not want to go back to her home.
34. The Council allocated a new social worker in May 2020. Ms X communicated with her social worker in June 2020. She confirmed she had told the Council to end her tenancy.
35. The social worker spoke to Ms X at the start of August 2020. The social worker asked Ms X if she still wanted to end her tenancy and have her belongings put in storage. Ms X listed the items she wanted from her property and said the Council could dispose of the remaining items and furniture. The Council transferred her placement at the care home from temporary to permanent. The Council then collected the requested items from the property and took these to Ms X in the care home. The social worker noted Ms X had capacity to make decisions about her tenancy and about the items remaining. Ms X signed a document to confirm she wanted to end her tenancy and dispose of all remaining household items.
36. Ms X raised concerns to her social worker in September 2020 about some documents referring to her divorce not having been given to her. The Council workers who emptied the property found a bag of paperwork but said there were no documents about a divorce, only old benefit award letters and magazines. The benefit letters were shredded as they were no longer valid since Ms X had moved to residential care.
37. The Council continued to complete regular reviews of Ms X’s care plan and confirmed she had capacity to make decisions about her accommodation. She decided to remain in the care home and needed 24 hours per day support.
38. The care home gave 28 days-notice on the placement in July 2021 due to Ms X’s behaviour. She moved to a temporary placement at a new care home in October 2021. The Council updated her support plan.
39. In January 2022 Ms X stated she wanted to live more independently. The Council said it would look at supported accommodation if she wanted. Ms X considered her options but in April 2022 decided she wanted to remain in a care home.
40. The Council met with Ms X, her friend and the care home management in June. Ms X spoke about wanting to live in the community. The Council and the care home manager offered support for her to apply for properties. Ms X mentioned her items being put in a skip and being tricked about going into care.
41. Ms X contacted an advocate in September 2022. The advocate complained to the Council on Ms X’s behalf. The complaint included Ms X moving into residential care, the information about costs she received when she moved, not receiving documents from her home and the Council refusing to provide her with an advocate.
42. The Council responded to the complaint at the start of October. It stated it would not investigate Ms X’s complaint due to the amount of time since the events. It confirmed no concerns had been noted when Ms X moved into care and Ms X did not request an advocate.
43. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to apologise and make sure others receive an advocate if needed.
44. In response to my enquiries the Council stated it has not seen any evidence in the records Ms X was or had indicated she was confused or in shock when she moved into the care home and at no point requested an advocate. It confirmed Ms X signed the documents to terminate the lease on the property and authorise the Council to dispose of her belongings.

My findings

45. Ms X and the Council have differing views on the items left in her house and information provided when she moved. Our investigations are evidence based and we are unable to accept one person’s word against another. If there is a conflict of evidence, we make findings based on the balance of probabilities as detailed at paragraph five.
46. The Council has provided case notes as evidence of events in this case. The case notes detail multiple occasions when Ms X told the Council to end her tenancy and remove all remaining items in the property after it delivered the items she requested. The Council also provided signed documents to evidence Ms X agreed to end the tenancy and the Council would dispose of any remaining items. The Council also appropriately checked and decided Ms X had capacity to make decisions about her accommodation.
47. The case notes detailed events around Ms X moving into the care home. There is no reference to Ms X being confused and it recorded she said she wanted to move to the care home. The evidence confirmed the Council provided Ms X with the information about paying for care and she was unhappy about this but still wanted to be in a care home. There is no evidence Ms X requested an advocate. On the balance of probabilities, based on the evidence I have seen, I do not find fault in the Council’s actions.

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Final decision

48. I have completed my investigation. I have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman