Summary: There was fault in the Council’s communication and record keeping. The Council also did not always follow its complaint process and there was a small delay in the financial assessment.

The complaint

1. Mr B lacked the mental capacity to make the complaint. He has died after the complaint was made. Mr B’s wife, Mrs B and his daughter, Mrs C, represented him. Mrs B complained about the Council’s communication and support to find a different care home for Mr B, its failure to follow its own complaint process and a delay in its financial assessment. She also said the Council carried out a flawed mental capacity assessment of Mr B.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (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)

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What I have and have not investigated

4. Mrs B has also complained about Mr B’s discharge from hospital. I have not investigated this complaint as it involved NHS agencies and is being investigated by the Joint Working Team.
5. Mrs B has complained about the outcome of the Council’s financial assessment and its decision that a deprivation of assets took place. I have not investigated that complaint as the Ombudsman has already made a final decision in the matter.

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How I considered this complaint

6. I have spoken to Mrs C. I have considered the information sent by her and the Council, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Care Act 2014

7. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.
8. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.
9. Councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.
10. If a person needs residential care, the Council will assess their capital and income. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care.
11. When it has been decided that a person’s needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget and it should ensure that there is more than one of those options.
12. However, a person can choose a more expensive care home if a third party or in certain circumstances the resident is willing and able to pay the additional cost. This is known as the top-up fee.

Mental Capacity 2005

13. The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
14. The Act says a person must be presumed to have capacity unless it is established that they do not.
15. 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.
16. 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?

17. Any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker should also 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.

Complaints regulations

18. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 sets out the process local councils and health care services must follow when responding to certain complaints. The regulations apply to complaints about a council’s social services’ functions.
19. The regulations say councils should acknowledge a complaint within 3 working days and respond within 6 months.
20. The Council’s own complaints procedures say the Council will decide the timescale for a complaint response internally. It also says that when, the Complaints team refers a complaint to the investigating manager, it may suggest that the Service makes a telephone call to the complainant as part of the investigation.

What happened

21. Mr B was an adult man who had needs for care and support. Mrs B called the Council on 5 January 2024 and said:
• Mr B had been temporarily placed at care home 1 by his family following a hospital discharge.
• Mrs B thought Mr B would self-fund his care but, following a consultation with her financial adviser, she had now been informed that Mr B may be eligible for funding from the Council.
• Mr B was unhappy and unsettled at care home 1 and she wanted him to move to care home 2 as soon as possible.
22. The care coordinator explained that the Council would have to assess Mr B’s needs and decide where his needs were best met. She said the Council would take a best value approach so it was unlikely that care home 2 would be considered as its weekly fee was £1,500.
23. The care coordinator visited Mr B on 11 January 2024 to assess his needs. Mrs B was present during the visit and the social worker explained to her that, if the family chose care home 2, they would need to pay a top-up fee as Mr B’s personal budget was £865. She gave Mrs B the leaflet on top-up fees and explained the Council would carry out a financial assessment.
24. The care coordinator carried out a mental capacity assessment (MCA) of Mr B on 17 January 2024 and concluded that Mr B had the capacity to decide where he wanted to live. Mr B said he wanted to go home, but he agreed to stay in a care home, if his family visited every day.
25. The care coordinator discussed Mr B’s care needs with Mrs B. Mrs B said she had a ‘very heavy heart’ about Mr B staying in the care home but said he was very demanding when he was at home. Mr B’s care package (before the hospital admission) was privately funded and consisted of a care worker attending three times a week to support with personal care. The care coordinator said this care package could be increased.
26. The Council’s finance officer contacted Mrs B on 17 January 2024 to explain the financial assessment process to her. Mrs B said she wanted a visit by the officer and the visit was agreed for 31 January 2024.
27. The Council held a multi-disciplinary meeting about Mr B on the same day and decided that Mr B’s needs could be met at home and it would find a reablement package for him. The care coordinator rang Mrs B to inform her of the Council’s decision. Mrs B said she agreed that Mr B could remain in care home 1 until the reablement package was organised.
28. The care coordinator and her manager then had a further meeting regarding Mr B and it was decided to carry out a further MCA of Mr B.
29. The care coordinator and a social worker carried out the further MCA on 22 January 2024. The MCA considered the questions as set out in paragraph 15 above. The assessment noted that Mr B could not retain the relevant information for the decision and could not use and weigh the relevant information. The inability to make the decision was caused by the dementia. The outcome of the MCA was that Mr B lacked the mental capacity to decide where he wanted to live.
30. The social worker made a referral to the Deprivation of Liberty Safeguarding (DoLS) team for its input. The DoLS officer noted that Mrs B was wavering about Mr B returning home with a care package and this could potentially work. Mrs B’s daughter, Mrs C, wanted Mr B to remain in residential care.
31. The Council agreed interim funding for Mr B on 7 February 2024 at £865 per week which was the cost of care home 1.
32. A referral was made to the Brokerage team to search for an alternative placement for Mr B. The Council also sent Mr B’s anonymised care plan to care home 3 for their consideration as the family had said they wanted Mr B to move there. (Note: care home 3 only accepts Council funded residents).
33. The finance officer started the financial assessment and noticed that Mr and Mrs B had taken out a bond of over £100,000 in 2022. She contacted Mrs B to obtain more information about this bond on 7 February 2024. The finance officer emailed Mrs B on 9 and 21 February asking for more documents and details relating to the bond and the way the bond was financed.
34. The Brokerage search was paused on 19 February to wait for the outcome of the financial assessment.
35. On 27 February 2024 Mrs C sent an email to the finance officer attaching the information that the Council had asked for regarding the bond. Mrs C asked the officer when the financial assessment would be completed.
36. The officer responded on 28 February and said she had been unable to complete the assessment until she had received all the information, which Mrs C emailed to her yesterday. The officer said she was putting together a financial deprivation questionnaire and would pass on this information to another officer who would make the decision. Unfortunately, she was not able to provide the date when the decision would be made.
37. The care coordinator emailed Mrs C on 11 March and said the finance officer had asked for the financial assessment decision to be brought forward and a decision to be made as soon as possible, hopefully that week.
38. The Council wrote to Mrs B on 13 March 2024 to inform her that it had completed the financial assessment and it had decided that the bond was a deprivation of assets and therefore Mr B was a self-funder. The care coordinator asked the Brokerage team to resume the search for a placement for Mr B (Note: This was presumably on a self-funded basis).
39. Mrs C emailed the care coordinator on 14 March and said the family wanted Mr B to have one move to care home 3 and she wanted to know whether that could be achieved. Mrs C said Mr B would be eligible for Council funding in four months’ time when his capital would be below the threshold and the family wanted to avoid two moves.
40. Mrs C spoke to the care coordinator on 20 March and said that Mr B’s contract with care home 1 would end at the end of March and the family wanted him to move to another care home, ideally, care home 3. The care coordinator said she could not guarantee care home 3, but would check whether they would accept self-funders, to avoid multiple moves.
41. The care coordinator emailed Mrs C on 22 March and said she had told the Brokerage team that the contract with care home 1 was ending at the end of March so the family needed a result as soon as possible. She said she was not in the office the next week so the results of the search would go to a manager who would update Mrs C.
42. The Brokerage team contacted 30 care homes in its search for a care home and a care home was found on 25 March. Care home 3 did not have any vacancies.
43. Mrs B called the Council on 30 March 2024 as there had been no update. Mrs B said the family had been told they could move Mr B to a different care home and he was due to move on Monday 1 April. But the family were then told on 28 March that the social worker had not signed off the necessary paperwork for the move to go ahead yet. The first of April was a Monday bank holiday so the documents would be delayed until 2 April.
44. Mr B moved to care home 2 on 2 April 2024.

Mrs B’s complaint – April 2024

45. Mrs B complained to the Council on 11 April 2024. I have summarised the complaints that I am investigating. Mrs B said:
• There was a delay in the financial assessment as the assessment was completed on 31 January and the outcome was not provided until 13 March. The finance officer told the family on 28 February that she could not say when the decision on the assessment would be taken which was unacceptable.
• The Council informed Mrs B by letter of the outcome of the financial assessment but informed the care home by telephone which meant the care home found out before Mrs B.
• The Council failed to follow its own online procedures. The Council’s online website says that an appeal could be made if a final decision on the financial assessment had been made. The website said a person should speak to the finance officer to go over the decision and amend anything that was factually incorrect. The family informed the Council on 13 March that there were factual inaccuracies but Mrs B was advised to appeal on 20 March.
• The first mental capacity assessment of Mr B dated 17 January 2024 was not carried out by a qualified social worker and was incorrect which meant that a second assessment had to be carried out. This caused a great deal of distress to Mr B.
• The Council failed to provide the appropriate support for Mr B’s move from care home 1 in March 2024 and there was an unnecessary delay in the move. The Council’s communication during the move was poor and the Council never explained the process to her.

Further developments

46. The Council acknowledged Mrs B’s complaint on the same day and said it would respond to the complaint within the relevant timescales.
47. On 17 April Mrs B sent an email to the Council and asked whether her complaint was dealt with under the statutory adults social care complaints procedure and when the response would be sent. She said she would be happy to have a discussion about the complaint.
48. The Council responded on 30 April and said its response time target was 20 working days so a response would be sent by 10 May. On 10 May the Council told Mrs B there would be a delay in the response and the response would be sent by 24 May.

The Council’s response – May 2024

49. The Council sent its responses to the complaint on 21 and 22 May. The Council’s finance department merged Mrs B’s appeal of the outcome of the financial assessment and her complaint about the finance department’s actions into one response from the finance department. The Council provided a separate complaint response to the complaints about the adult social care team and this response was provided by the adult social care department.
50. The Council said:
• In terms of the financial assessment, it partly upheld the complaint as it accepted there had been a delay in confirming the outcome of the assessment which was due to resource issues within the team. The delay was also partly caused by the fact that the Council had to obtain additional information regarding the assets held in the bond and this made the assessment more complex.
• The Council apologised for the fact that the care home was informed of the outcome of the financial assessment before Mrs B was. It said it had previously emailed Mrs C, but was not sure whether it could email the decision to her as it had not received a copy of the Lasting Power of Attorney (which named Mrs C as an attorney) so it decided to send the letter to Mrs B by post.
• The route for addressing a complaint about the deprivation of assets was an appeal.
• The process of carrying out an MCA may involve more than one meeting to ensure that the correct decision was made, particularly in cases such as this one where a complex decision was needed which could result in the deprivation of liberty.
51. In response to the complaint about the move, the Council said:
• The Council had agreed to support a move ‘by engaging our brokerage service to identify a placement that would be able to meet his needs.’
• The Council had identified a care home on 28 March and the care home was contacted to assess Mr B but did not receive a response until 2 April.
• Mrs B contacted the Council’s out of hours service on 30 March but the service did not realise that Mr B would be self-funding so it was ‘unable to give the necessary information.’
• A duty worker picked up the request on 2 April and it was clarified that Mr B was a self-funder and there was no reason to delay the move so the move took place.
• The Council apologised for the confusion around the move but said there was no need for their involvement in the move. Mr B was a self-funder so he could move at any time without the Council’s involvement or approval.
• The placement identified by Brokerage was not care home 3.
52. The Council partially upheld Mrs B’s complaint in terms of the communication. It said that, as a result of the complaint, the Council had:
• Reminded staff to explain the social care process to clients and direct them to online information.
• Remind staff of the importance of clear communication.
• Remind staff to ensure there are clear case notes to support the Out of Hours team.

Mrs B’s stage 2 complaint – May 2024

53. Mrs B challenged some of the Council’s responses and said:
• The Council had not addressed her complaint that its own online procedures said that factual inaccuracies in the financial assessment should be dealt with by a conversation with the finance officer.
• The Council merged her appeal about the financial assessment with her complaint about the finance department even though the complaint and appeal were two separate processes.
• The Council had previously communicated with her by telephone and email address so it could have emailed her the outcome of the financial assessment or called her so she did not accept the explanation given by the Council in its complaint response. Also, the Council had already received Mr B’s LPA so it should have known that it could share information with Mrs C.
• Mrs B was told by care home 1 on 28 March that the social worker had told care home 1 that Mr B could not move out of the care home as his paper-work had not been signed off and there was nobody at the Council who could sign off the paperwork. Mrs B then called the Council’s out of hours team as she was aware of the upcoming Easter bank holiday (Friday 29 March to Monday 1 April).
• She thanked the Council for confirming that care home 3 was not identified by Brokerage as an available care home but questioned why she was not informed of this at the time as this would have made a big difference.

Council’s stage 2 response – July 2024

54. The Council sent an email to Mrs B on 3 June to say that it would respond by 28 June. It then sent an email on 2 July to say that the response would be sent by 12 July
55. The Council responded on 10 July 2024 and said:
• It accepted that it held a copy of the LPA for Mr B but the document was saved with other documents and was not clearly identified as an LPA. The Council agreed it could have shared information with Mrs C and upheld the complaint. The Council apologised and said this was followed up as a learning point with the finance team.
• There were conflicting processes as different service providers were involved but the Council admitted it had missed an opportunity to simplify the complaint process and consolidate the response.
• The Council acknowledged that the delays and poor communication caused Mr and Mrs B distress and it offered £200 each as a remedy.

Analysis

Mental capacity assessment

56. It is not for the Ombudsman to carry out an MCA. I can only consider whether care there is any fault in the way the assessment was carried out. I would do so by checking that the assessor had properly applied the Mental Capacity Act and the Code of Practice in the assessment and had shown clearly how they made a decision about capacity.
57. The Council has not been able to send me the first MCA that was carried out so I cannot say whether there was fault in the way it was carried out. However, the Council should have kept a copy of this document and its failure to do so was fault.
58. I find no fault in the way the second MCA was carried out. The assessor ensured that Mr B was supported to make the decision for himself, they properly applied the test as set out in the Code of Practice. They consulted with the relevant people such as Mrs B and clearly explained the reasons for the decision that Mr B lacked the mental capacity to decide where he should live.

Financial assessment

59. The Council has partially upheld the complaint about a delay in the financial assessment as it said there was a resource issue within the team which meant that the finance officer could not say, on 28 February 2024 when the financial assessment would be completed. However, I also accept the Council’s argument that a financial assessment such as this one which would have required further information about the bond and the funding of the bond. The assessment was more complex because it needed a deprivation of assets assessment as well as a financial assessment. This would always take longer to complete so overall I do not find that there was a significant delay.
60. In terms of injustice, I accept that the response on 28 February 2024 would have caused some additional stress to Mrs B but I notice that the Council prioritised Mr B’s assessment and completed the assessment on 13 March.
61. I also uphold the complaint that the communication of the outcome of the assessment was poor. The Council could have emailed the outcome to Mrs B or Mrs C so that they were informed of the outcome on the same day as the care home was.

Assistance with the move

62. There was poor and confusing communication between the Council and the family about the move and this was fault.
63. It may be that the confusion arose by the fact that the Council initially worked on the assumption that Mr B was eligible for Council funding but it then transpired on 13 March 2024 that Mr B was a self-funder. The Council’s duties and powers are very different depending on the person’s funding status.
64. Councils do not have a legal duty to assist self-funders in finding a care home, but sometimes they can agree to do so. In this case, the family had asked the Council to assist in the search of care home and the Council had agreed to do so.
65. The family wanted the Council’s assistance mainly because they wanted to avoid two further moves for Mr B. They did not want to move Mr B a third time, once his funding had run out. The family wanted Mr B to move to care home 3, but knew that care home 3 only accepted Council funded placements so they hoped that the Council could persuade care home 3 to make an exception for Mr B.
66. The Council said it would check whether care home 3 would accept private funders for a few months, but it is not clear whether it did so. However, this then became a moot issue as care home 3 did not have any vacancies at the end of March, when Mr B was ready to move.
67. The care coordinator had said the family would be updated with the outcome of its search for a care home, as soon as the search was completed. The search was completed on 25 March, but nobody contacted the family and this was fault. If the Council had contacted the family at this stage and explained that care home 3 was not available and also explained that the family did not need the Council’s approval Mr B for a move, it may have made the move less stressful.
68. Unfortunately, as nobody had contacted the family and as the care home had told the family (wrongly) that they needed the Council’s approval for the move, this then led to the problem. The family contacted the Council at the end of March because the contract was ending in a few days and the family wanted to avoid entering another two weeks contract.
69. The Council’s out of hours team then gave incorrect information to the family, partly because it was still working on the basis that Mr B’s placement was Council funded so it gave advice on that basis.
70. So, I accept that this poor communication would have added to the confusion and the stress the family experienced at the end of March. However, I notice the injustice was short-lived as the Council resolved the issue on 2 April and Mr B moved later that day.

Complaints process

71. I uphold the complaint in terms of the poor communication in the complaints process. The Council did not have a duty to speak to Mrs B, when she first made the complaint, although this may have been helpful, but it should have provided her with the timescale for a response. There was a slight delay in the complaint responses but I note the Council informed Mrs B of the new timescales.
72. Mrs B wanted to correct inaccuracies in the financial assessment and appeal the decision about the deprivation of assets. She also wanted to be sure that the financial assessment was the final decision as she knew she could not appeal the assessment unless it was the final assessment. So, strictly speaking, Mrs B should have been offered a telephone conversation with the finance officer to address the inaccuracies and the finance officer could then have sent her the final corrected version of the assessment to Mrs B so that she could appeal.
73. Instead, the finance team told Mrs B to go straight to an appeal. I accept that this was not exactly the correct process and this may have led to further frustration by Mrs B but ultimately the injustice was limited. In the end Mrs B would always have had to appeal the decision as her main issue was the finding of the deprivation of assets. The Council addressed both the factual inaccuracies and the deprivation of assets in its response.
74. In terms of the complaints process, Mrs B started an appeal of the financial assessment and made a separate complaint about the actions of the finance department and the actions of the adult social care department. She expected the appeal and the complaints to be kept separate. Instead, the Council combined her appeal and the complaint about the finance department into one response and then responded to the complaint about the adult social care department separately. I presume the Council took this decision because it had to obtain responses from two different departments so it was easier to manage the process that way.
75. However, I agree that the Council did not follow its own process and I accept that this would have made matters confusing for Mrs B.

Injustice and remedy

76. I have considered the remedy that would be appropriate. The fault I have found mainly relates to poor record keeping regarding the MCA, poor communication, a failure to follow the complaints process properly and a small delay in the financial assessment. The aim of the Ombudsman’s remedy is to put the complainant into the position they would have been if the fault had not happened. In cases such as this one, where that is not possible, where there is no financial injustice and the main injustice is distress, we can also sometimes offer a small financial remedy as a symbolic payment.
77. I note that the Council has already agreed to pay Mr and Mrs B £200 each as a remedy and I agree that this remedy is in line with what the Ombudsman would have recommended so I do not recommend any additional financial remedy.
78. I also note that the Council has already implemented service improvements regarding communication and record keeping as a result of Mrs B’s complaint which should address the fault that I have found. I therefore do not make any further recommendations in that respect.

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Action

79. The Council has already agreed to pay Mr and Mrs B £200 each and this is an appropriate financial remedy.
80. In addition, the Council has agreed to apologise to Mr and Mrs B in writing and acknowledge the fault that has been identified, within one month of the final decision.

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Final decision

81. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman