Summary: Ms D complained the Council ignored her requests to discuss her mother’s (Ms M’s) return home after being told she needed to be in a care home. This caused Ms D and her mother emotional distress and potential financial distress for Ms M. The Council is at fault for poor communication and failing to proactively manage Ms M’s assessment. This has caused Ms M and Ms D distress. I have recommended a package of remedies.

The complaint

1. Ms D complained the Council said her mother (Ms M) was told she needed 24-hour care in a care home after leaving hospital. Ms D tried to contact the social care team to discuss her mother’s return home, but these were ignored. Ms D said she finally received a call from the social worker who agreed she could go home.
2. Ms D said this has affected her mother’s mental health and emotional wellbeing. She has also received a bill for her care which is a potential financial injustice. It has also caused Ms D distress and time and trouble dealing with the matter. She would like the Council to apologise, waive some of the fees and provide a service that is fit for purpose in the future.

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The Ombudsman’s role and powers

3. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. 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

7. I considered evidence provided by Ms D and the Council as well as relevant law, policy and guidance.
8. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Care Plan

9. 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.
10. Local authorities do not have a statutory duty to meet a person’s needs where they are assessed as having eligible needs to be met by care in a care home, and have capital above the upper financial limit.
11. The Care and Support Statutory Guidance says that an assessment should be carried out over an appropriate and reasonable timescale, taking into account the urgency of needs and considering any fluctuation in them. We expect councils should complete assessments in a timescale that is proportionate to the complexity of the issues, and normally within 4-6 weeks. Councils should tell the individual how long their assessment will take and keep them informed about this throughout the process.

Charging for temporary residential care

12. 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.
13. 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.

Mental Capacity Act

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.

Mental capacity assessment

15. 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.

16. 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.
17. 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?

18. 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.
19. 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.

Best interest decision making

20. 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.

What happened

21. I have summarised below the key events; this is not intended to be a detailed account.
22. Ms M received a formal diagnosis of Alzheimer's Dementia in early 2021.
23. In January 2023, Ms M was in hospital. The hospital confirmed she was medically fit for discharge in the middle of January.
24. Social Worker H visited Ms M in hospital and completed a Mental Capacity Assessment (MCA). Social Worker H considered Ms M did not have capacity to decide where she lived. Ms M did not have anyone with power of attorney to decide on her behalf. Social Worker H therefore made a Best Interests Decision (BID) after consulting with staff on the hospital ward, the hospital Occupational Therapist (OT) and Ms D. Social Worker H’s BID was for Ms M to move to a 24-hour care home temporarily while the Council did further assessments and made a long-term plan.
25. Ms D said she recalls a brief conversation with Social Worker H about Ms M’s money and whether she would self-fund her stay in the care home.
26. The hospital discharged Ms M to the care home in late January.
27. At the end of January, Ms D telephoned the Council and asked for Ms M’s social worker details. The Council advised Ms M was settled in the care home. The Council was to transfer her case to the locality team for further assessment. Ms D said the Council gave her a number to call which she did on several occasions. She said she asked for a return call but did not get a response.
28. The Council sent a discharge letter to Ms M in late January to her home address. The letter enclosed a copy of the assessment and a charging information leaflet. The Council did not send a copy of the letter to Ms D but understood she collected Ms M’s post on her behalf so assumed she had notice of it. Ms D told me the first she received a copy of this letter was in response to her complaint.
29. In late February, the care home contacted the Council and asked for the details of Ms M’s social worker. The care home staff explained Ms M’s son, Mr S, who lived in Germany, had telephoned and asked for this. The Duty Social Worker contacted Ms D to discuss as they did not have Mr S’s details on file. Ms M explained her mother was not happy in the care home and wanted to come home. Ms D said her brother was coming to visit Ms M and would take her back to Germany with him. The Duty Social Worker said the locality team needed to assign a social worker to Ms M’s case to review her care needs and prepare a long-term plan. The Council said this was the first notice it had that Ms M was not happy in the care home.
30. Three days later, Ms D contacted the Duty Social Worker and repeated that her mother wanted to leave the care home and her brother would like to take her back to Germany. The Duty Social Worker said a Social Worker needed to be allocated to Ms M and they would need to make a BID for her as there are concerns about Ms M’s capacity.
31. The same day, the locality team allocated Social Worker L to Ms M.
32. The following day, Social Worker L contacted the care home on the phone to discuss Ms M and asked for an update on her needs. The care home staff said Ms M sleeps, walks, eats and drinks well. She dresses herself and can take herself to the toilet. Staff said Ms M sometimes has difficulty finding words.
33. Social Worker L spoke to Ms D about her mother. She said Ms M was frustrated in the care home, does not want to be there and wants to come home.
34. Social Worker L telephoned Ms M to discuss her case. Ms M said she wanted to go home and that it has “been really hard staying in an old people’s home.” Social Worker L recorded that Ms M had no difficulty finding words during their conversation and considered she had capacity to make her own decision about where she wanted to live.
35. Social Worker L telephoned Ms D and said Ms M was keen to come home. They said the staff at the care home said she was unhappy and were told she would only be there a couple of weeks. Social Worker L agreed Ms M could go home.
36. Two days later, Ms M returned home.
37. The following day, Social Worker L telephoned Ms D to discuss how Ms M had been since returning home. Ms D said Ms M was independent in the home.
38. At the beginning of March, Social Worker L visited Ms M at home and did a wellbeing check. The records show Ms M was managing well.
39. In the middle of June, the Council wrote to Ms M with the result of the financial assessment. The letter enclosed a copy of the financial assessment form and a charging fact sheet. The financial assessment form was signed by the assessing officer but not by Ms M or her representative.
40. In early July, the Council sent a copy of the invoice to Ms M for the care home charges. This was just under £3,000.
41. Ms D complained to the Council, she said she thought the Council had no legal right to keep Ms M in the care home. The Council responded in November 2023. It did not uphold Ms D’s complaint. It said because Ms M did not have capacity, Social Worker H had to make a BID which was for her to move to a temporary 24-hour care after being discharge from hospital. It said Ms D did not contact the Council for over four weeks. It was only when Mr S contacted the Council, it knew Ms M was not happy. As soon as it received this information, it reassessed Ms M and facilitated her return home within four days. The complaint response contained a copy of the discharge letter.
42. Ms D complained to the Ombudsman in October 2024. She said her mother was discharged from hospital and placed in a care home. Ms D said she tried to contact the social work team to say Ms M was not happy but nobody returned her calls; it was only when her brother called from Germany the social work team called back. She said she received mixed messages from the social work team, one social worker said her mother could not be moved from the care home until she had another MCA while another said she could go home.

Analysis

The Mental Capacity Assessment and the Best Interests Decision

43. As there were concerns about Ms M’s capacity, Social Worker H completed an MCA and decided she did not have capacity to decide where she wanted to live when she left hospital. As Ms M did not have a power of attorney to decide on her mother’s behalf, the Council made a BID for her. Social Worker H spoke to Ms M directly, discussed Ms M with her daughter, the ward staff and Occupational Therapist as part of their decision-making. Social Worker H consulted with all relevant parties before deciding what was in Ms M's best interests. The Council is not at fault.
44. Social Worker L decided Ms M had capacity to decide her residency at the end of February. They did this after a telephone call with Ms M, the care home staff and Ms D. While the social worker can make a presumption of capacity, I would expect them to at least meet with Ms M before making this decision. This is especially so as Ms M has a diagnosis of Alzheimer’s and it was only a month earlier when Social Worker H decided Ms M did not have capacity to make a similar decision. Residency and the care required to support someone with potential care needs is an important and complex decision where we would expect a more formal assessment of capacity. The records show the Duty Social Worker advised Ms D the allocated social worker would need to make a BID because there were concerns about Ms M’s capacity. The care home staff also notes Ms M had difficulty finding words. I would therefore expect Social Worker L to have spent more time with Ms M and visited her in person, before deciding she had capacity to decide her residency. The approach taken by Social Worker L is different to that taken by Social Worker H and suggested by the Duty Social Worker which has caused confusion for Ms M, Ms D and the family.

The Assessment

45. We expect the Council to complete an assessment within four to six weeks. When Ms M was discharged from hospital, the plan was for her to live in the care home while the Council completed an assessment. The care home said it understood this was for a few weeks. Ms M was in the care home for around a month before the social worker considered her case and Ms M returned home. This is within the timeframe we would expect. The Council is not at fault.
46. We expect the Council to keep the individual and their family informed about the assessment and how long it will take. The Council moved Ms M into the care home with the intention of completing an assessment to consider her long-term care. The Council did not allocate a social worker from the locality team until it received the phone call from Mr S about four weeks later. There is no evidence the Council assigned a social worker, or conducted any welfare checks on Ms M after she moved into the care home, neither is there any record that it started an assessment. There is no evidence the Council kept the family informed of the assessment. The Council’s actions were reactive and not proactive. This is fault.
47. Once the Council received the call from Mr S in Germany, it allocated a social worker within three days, completed an assessment and returned Ms M home within six days. This was a very quick turnaround. The Council is not at fault.

The financial assessment

48. Although Ms D recalls a brief conversation with Social Worker H about her mother’s money, there are no records to evidence the Council discussed the care home fees for Ms M’s care with Ms M, Ms D or other family member or representative before the BID was made for her. Neither did Ms M or Ms D or other representative sign the financial assessment and agree to pay the charges. The only correspondence was a charging leaflet which the Council sent to Ms M at her home address after she had moved into the care home. There is no evidence Ms D opened this post or gave it to Ms M to open. Ms D told me she only received a copy of this letter as an appendix to her complaint, several months after Ms M had returned home. The Council should have discussed the financial implications of the care with Ms M’s family and provided the family with information in writing. The Councils failure to do so is fault.
49. Ms D said she expected Ms M would have to pay towards her care so this limits the financial injustice. However, the Council did not provide any detail or costs.

Summary of fault causing injustice

50. The Council are at fault for poor communication, failing to give details about the financial assessment, failing to keep the family updated and failing to be proactive during Ms M’s stay in the care home while she was waiting to be assessed. I would also expect Social Worker L to have visited Ms M before presuming she had capacity to decide where she wanted to live. This has caused Ms M, Ms D distress as the Council gave mixed messages and they did not understand why the Social Workers made the different decisions.

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Action

51. Within four weeks of the final decision, the Council agreed to:
• Apologise to Ms M and Ms D and pay them both £300 for the distress caused by poor communication, failing to be proactive in the assessment and giving mixed messages about how decisions were made about Ms M’s capacity.
• Offer a payment plan for repayment of the care home fees, should the Council decide to require payment.
• Remind staff about the importance of communication with the individual receiving support and their family and keeping them updated throughout the assessment.
• Remind staff about the importance of providing a timely explanation of the financial assessment and the potential charges. Any verbal explanation should be followed in writing.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman