Summary: The Council assessed Mrs Y’s social care needs in line with Sections 9 and 18 of the Care Act 2014. It also assessed her mental capacity to make decisions about her care and living arrangements in line with Section 3 of the Mental Capacity Act 2005. The records indicate Mrs X and Mrs Y’s views and opinions were taken into account. As the Council acted in line with the law, there is no fault in the decision not to fund residential care.

The complaint

1. Mrs X complained for her mother Mrs Y that the Council decided not to fund Mrs Y’s care in a care home and decided instead to fund extra care sheltered housing. She said this caused her avoidable distress.

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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. 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)

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How I considered this complaint

3. I considered the complaint to us, the Council’s response to the complaint and documents described later in this statement. I discussed the complaint with Mrs X.
4. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What should have happened

5. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
6. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
7. The Care Act explains the different ways a council can meet eligible needs by giving examples of services that may be provided:
• Accommodation in a care home or other premises
• Care and support at home
• Counselling and social work
• Information advice and advocacy

(Care Act 2014, section 8)

8. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice Paragraph 4.34)
9. When dealing with adults who lack capacity to make decisions about their care, councils should consult and take into account the views of: people the person has named to consult; carers.
10. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable to:
• Understand and retain relevant information or
• Weigh that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act, section 3)

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What I found

What happened

11. Mrs Y is in her eighties and has dementia. She was living with Mrs X until 2022. Mrs Y went into a care home, initially for respite care, but then for long term in around September because her cognitive abilities were declining and relationships with the family were strained. The Council did not arrange or fund the placement, Mrs Y paid for her care privately until her savings fell to £23,250 which is the financial threshold for council funding for residential care.
12. The Council carried out a social care assessment in April 2023. The outcome was Mrs Y was eligible for care and support but she did not require residential care and her needs could be met in extra care sheltered housing (this is usually a small block of flats which has care staff supporting tenants with an agreed care and support package of visits to their flat). The assessor included information from the care home about Mrs Y’s observed care needs. I have summarised the Council’s assessment of her eligible needs below:
• Support to maintain relationships two or three times a week
• Always needs support to maintain and clean the home
• Cannot manage her finances or paperwork independently
• Needs someone to chop for food and essentials and to prepare meals and, snacks and drinks.
• Eats and drinks independently
• Sometimes needs support with personal appearance; prompts with washing
• No mobility needs
• Needs someone to administer medication
• Mild memory problems, needs support to make longer term plans
• Stays safe if someone is available in the day and needs help once a night.

Mrs X told me her view is Mrs Y needs more support than the Council’s assessment says.

13. An assessor carried out an assessment of Mrs Y’s capacity to make decisions about her care and living arrangements. The assessment took place at the care home with Mrs X present and over two days. The assessor asked Mrs Y a series of questions and recorded her answers. She asked the same questions after 10 minutes and noted Mrs Y was a little confused about the purpose of the visit, however when the assessor explained again why she was there, Mrs Y understood
14. The assessor concluded Mrs Y could understand information relevant to the decision and could retain it long enough to make a decision. The assessor also concluded Mrs Y could use and weigh the information while making the decision, citing examples Mrs Y had given during the visit like “My daughter always goes out with me, I wouldn’t go out on my own, I would not take a chance as I might forget” and “I would like to live with my daughter but this can’t happen as they work all day and I will be on my own” and “I would like to stay in the care home as I have made friends”
15. Mrs Y told the assessor:
• Before she moved into the care home she had help with Mrs X with cooking
• She washed and dressed herself
• She could feed herself but could not cook in the care home because this was done for her
• When offered a bath, staff turned on the shower and checked she did not slip
• She tapped her bank card to pay for things when out with her daughter.
• If she needed help when living in a flat, she would call out, would call 999 if she had her phone if she could not get hold of her daughter.
16. Mrs X complained about the Council’s decision not to continue to fund the care home. She said Mrs Y would not be able to function in extra care sheltered housing because her dementia had progressed. Mrs X said Mrs Y had no recall of the meeting with a social worker to assess her mental capacity and Mrs Y did not want to move. Mrs X included a letter from the care home which said Mrs Y was at risk of isolation if she moved to extra care sheltered housing and she had lost the skills of cooking, laundry and household tasks and needed encouragement and assistance with personal care.
17. The Council’s response said it had assessed Mrs Y’s needs in April and she was eligible for care, but her needs could be met in a community setting. The response acknowledged concerns raised by the care home and by Mrs X about isolation and said extra care housing could support people with complex needs as an alternative to residential care. The response gave an example of one extra care housing which had 24-hour care and communal lounges for residents to have meals together. It said the Council would fund the care home on a short stay basis and Mrs Y was on the waiting list for an extra care flat.
18. The Council told us it would continue to fund Mrs Y’s placement at an agreed rate and it will likely need to review her care needs when a vacancy arises to ensure it is still appropriate.

Findings

19. There is no fault in the assessment of Mrs Y’s mental capacity. I am satisfied this was in line with the principles of the Mental Capacity Act 2005 and that the assessor tested Mrs Y’s ability to understand, retain and weigh relevant information and evidenced the reasoning for concluding she had capacity. Just because Mrs Y has short term memory loss it does not follow that she lacks mental capacity. My view is there is no evidence of fault.
20. The Council has acted in line with the Care Act 2014 by assessing Mrs Y’s needs. The outcome is she is eligible for care and support. However, this does not mean the Council has to fund residential care. A council must meet a person’s eligible care needs, but it does not have to fund residential care if it considers a different setting will meet also meet needs.
21. Mrs Y and her family want her to stay in the care home. Their views are reflected throughout the social care assessment as is Mrs Y’s preference in the mental capacity assessment. This does not mean the Council has to fund the family’s preferred placement. The complaint response addresses their concerns about extra care sheltered housing.
22. The Council has confirmed it will review Mrs Y once a vacancy in extra care sheltered housing comes up. This is what we would expect given the most recent assessment is April and Mrs Y’s cognitive abilities may have declined since then.

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Final decision

23. The Council assessed Mrs Y’s social care needs in line with Sections 9 and 18 of the Care Act 2014. It also assessed her mental capacity to make decisions about her care and living arrangements in line with Section 3 of the Mental Capacity Act 2005. The records indicate Mrs X and Mrs Y’s were taken into account. As the Council acted in line with the law, there is no fault in the decision not to fund residential care.
24. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman