Summary: Mrs X complained about the Council’s handling of her father, Mr Y’s, care. Mrs X said the communication from the Council has been poor, there have been lots of errors and the Council did not explain the funding of Mr Y’s care. Mrs X said this has impacted her and Mr Y’s health and impacted his finances. There was fault in the way the Council did not provide timely information about financial assessments to Mrs X, did not complete financial assessments within the specified timeframes and communication with Mrs X was poor. Mrs X was distressed and frustrated by the Council’s actions. Mr Y’s support plan was not reviewed in an appropriate time. The Council should apologise, make a financial payment and remind staff of the need to clearly explain financial assessments to appropriate people.

The complaint

1. Mrs X complained about the Council’s handling of her father, Mr Y’s, care. Mrs X said the communication from the Council has been poor, there have been lots of errors and the Council did not explain the funding of Mr Y’s care. Mrs X said this has impacted her and Mr Y’s health and impacted his finances.

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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’. 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)
3. 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

4. I read Mrs X’s complaint and spoke to her about it on the phone.
5. I considered information provided by Mrs X and the Council.
6. Mrs 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

7. 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.
8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. 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.
9. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:

• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.

10. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
11. 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, or a carer’s 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.
12. 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.
13. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
14. 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.
15. 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.
16. 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.
17. 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.

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

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Mr Y has a diagnosis of Alzheimer’s disease. Mrs X has lasting power of attorney for Mr Y’s finances and his health and welfare. Mr Y fell at his home, resulting in a head injury, and he was admitted to hospital in December 2022.
21. The Council completed an assessment of Mr Y’s needs in January 2023. The assessment advised Mr Y would require a recuperation bed at a care home. The assessment stated Mr Y would require recuperation time and this would give Mr Y time to engage in physiotherapy to help increase his mobility. The assessment noted the Council left a leaflet about financial information with Mr Y on the table next to his hospital bed.
22. The Council noted Mr Y’s health declined in January 2023. The Council told Mrs X at the end of January 2023 Mr Y was not well enough to be moved to a recuperation bed.
23. The Council referred Mr Y for a nursing bed in a care home in February 2023. Mr Y moved to the care home in the middle of February 2023. The Council noted he moved to a recuperation bed. The Council allocated the case to a social worker four days later and noted a review was due at the start of March 2023. The Council funded the placement for six weeks and it recorded Mr Y would be charged from the start of April 2023.
24. The Council met with Mr Y and Mrs X at the end of March 2023 to complete a review of Mr Y’s care. Mrs X said Mr Y was only practicing mobility when the private physiotherapist worked with him. The Council explained Mr Y would be charged for the recuperation bed from the start of April 2023. Mrs X stated she was not aware about a financial assessment. Mr Y wanted to return home. The Council raised concerns about his capacity to make the decision. The Council detailed Mr Y would move to a residential bed at a new care home as he did not need the nursing bed. The Council provided Mrs X with details of the financial assessment after the meeting.
25. Mrs X complained to the Council at the end of March 2023. She complained the Council did not contact her for the four weeks since Mr Y moved. Mrs X added he had not had any therapy, she had not had information about finances and the communication from the Council was poor.
26. The Council completed a mental capacity assessment at the start of April 2023. The assessment confirmed Mr Y did not have capacity to make decisions about where he lived and what support he needed. The best interest decision detailed Mr Y would move to a residential care home.
27. Mrs X provided the Council with Mr Y’s financial details in April 2023.
28. The Council responded to Mrs X’s complaint at the end of April 2023. The response stated the Council assessment was not accurate as Mr Y could not have physiotherapy if he was in a recuperation bed. It confirmed the recuperation bed was for people who could not engage with therapy. The Council apologised for not sending financial assessment information quickly and not contacting Mrs X for four weeks following Mr Y moving to the care home.
29. Mrs X asked the Council escalate her complaint in May 2023. She asked why the Council placed Mr Y in a recuperation bed if it meant he would not receive therapy.
30. The Council responded at the end of May 2023. The response advised it should have given more information about the difference between the recuperation bed and rehabilitation bed. The Council advised Mrs X it decided Mr Y would to move to a recuperation bed because he needed a higher level of care. It also stated he became more reluctant to engage with therapy. The Council stated it would not comment on any therapy as it was for the health service to decide what therapy people needed.
31. Mr Y moved to a residential home at the start of June 2023. The Council completed different financial assessments. The Council wrote to Mrs X three times from June 2023 to August 2023 detailing Mr Y’s financial contributions during his time in the care home. All letters stated different amounts he would need to pay. The Council sent Mrs X an invoice in July 2023 for Mr Y’s time in the care home.
32. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to make a financial payment and review its process.
33. In response to my enquiries the Council stated it left the information about financial assessment with Mr Y. It also stated it could not comment on any therapy as it was the responsibility of the health service.

My findings

34. All matters about therapies or the care from a hospital is for the health service to consider. This investigation related to the actions of the Council. Mrs X said the lack of therapy contributed to Mr Y’s health declining. I have considered the care homes case notes which detail the care was in line with his care plan. On the evidence available, we cannot establish a causal link between the actions of the Council and the deterioration of Mr Y’s health. I do not find fault in the actions of the Council.
35. The Council has accepted the information in Mr Y’s assessment was not accurate. While the information is not accurate and does reference physiotherapy, the assessment does not say Mr Y will have physiotherapy. It is for the health service to decide any therapy an individual receives. However, the Council did provide Mrs X with inaccurate information. This is fault and this frustrated Mrs X.
36. The Council detailed it should have completed a review within two weeks. The Council did not contact Mrs x for four weeks when Mr Y moved from the hospital. This is fault. It frustrated Mrs X and Mr Y’s care plan may not have been up to date with his needs.
37. Communication from the Council has been difficult throughout the case. The Council did not detail the differences between recuperation beds and rehabilitation beds. It then used the terms recuperation bed, referred for a nursing bed, but noted Mr Y moved to a recuperation bed. This confused Mrs X, and she was not fully aware of Mr Y’s care. This is fault and frustrated Mrs X.

Financial assessment

38. The Council said it provided Mr Y with information about the financial assessment. The Council said it left this on his hospital bed table. Mr Y has Alzheimer’s disease. Mr Y was not able to understand the information and did not make decisions about his finances. Hospital staff could have cleared away the information without his knowledge. Mrs X has lasting power of attorney for Mr Y. The Council should have given the information to Mrs X. The Council did not tell Mrs X about a financial assessment until roughly one week before Mr Y became responsible for funding his placement. This is fault and frustrated Mrs X.
39. The Council’s policy stated it would complete a financial assessment within ten days of receiving the information. The Council did not complete the first financial assessment until June 2023, two months after Mrs X submitted Mr Y’s financial information. Mrs X said she could not make an informed choice about the placement as she did not know how much she had to pay. The delay in completing the assessment does not mean Mr Y should not contribute to his care. Mr Y received a service, and his representatives knew he would need to pay towards his care. The fault identified in this investigation is the Council delayed completing the financial assessment and this delayed the Council informing Mrs X what the contributions would be.
40. The Council should have completed the financial assessment within the ten days specified in its policy. This is fault and Mrs X was distressed when she received an invoice for Mr Y’s care without fully understanding the financial implications of his placement.

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Agreed action

41. To remedy the outstanding injustice caused to Mrs X and Mr Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for delaying giving the financial assessment information and the poor communication in this case. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Apologise to Mr Y for not reviewing his care plan in a timely manner.
• Pay Mrs X £250 as an acknowledgement of the distress and frustration she experienced due to the fault I have identified.
• Remind relevant staff of the need to clearly explain financial assessments to appropriate people.
• Remind relevant staff of the need to complete timely care and support reviews.
42. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

43. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Mr Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman