Summary: Mrs Y complained the Council wrongly assessed Mr X’s care needs and did not pay for his care. She says this caused her unnecessary distress and financial strain. We find the Council at fault which caused Mrs Y limited injustice. We find the action taken by the Council has remedied the injustice caused.

The complaint

1. Mrs Y complains the Council:

1. Wrongly assessed Mr X’s care needs;
2. Wrongly decided not to pay for Mr X’s one-to-one care; and
3. Communicated with her poorly.

2. Mrs Y says this caused avoidable and unnecessary distress to her and financial strain.

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The Ombudsman’s role and powers

3. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

8. Mrs Y complains about matters which started in October 2023. She complained to the Ombudsman in February 2025. As I have said above, we cannot investigate late complaints unless there is good reason to do so. In this case, I consider exercising my discretion to investigate for a further four months is proportionate to the investigation. Therefore, I have considered matters from October 2023.

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How I considered this complaint

9. I considered evidence provided by Mrs Y and the Council as well as relevant law, policy and guidance.
10. Mrs Y and the Council had an opportunity to comment on a draft of this decision. I considered all comments before making a final decision.

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What I found

What should have happened

Care needs (part a of the complaint)

11. 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.
12. 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.
13. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
14. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
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. Under Principle 5 of the Act, the decision-maker must consider if there is a less restrictive choice available that can achieve the same outcome.

Charging (part b of the complaint)

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. The Care Act 2014 (section 14 and 17) provides a legal framework for charging 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.
19. 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.
20. 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.
21. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.

Communication (part c of the complaint)

22. Our published guidance ‘Principles of Good Administrative Practice’ says organisations should inform people who use services what they can expect and what the organisation expects of them. It says organisations should be open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete.

What happened

23. Prior to October 2023, Mr X was medically ready to be discharged from hospital. The hospital staff assessed him as a high risk of falls and provided him with one-to-one support. The Council’s social worker arranged for Mr X to be discharged to Mrs Y’s chosen care home with one-to-one support.
24. Mrs Y held Property and Finance Lasting Power of Attorney for Mr X.
25. In early October, the social worker wrote to the Care Provider and confirmed Mr X required one-to-one support 24 hours per day. Mr X moved into the care home. The social worker wrote to the Care Provider confirming the Council was funding Mr X’s fees.
26. In November, the Council contacted Mrs Y and told her Mr X had been assessed and the Deprivation of Liberty Safeguards (DoLS) for him was now in place. It would expire in October 2024. The DoLS assessment completed by a doctor stated Mr X required constant one-to-one care.
27. In early December, the Council wrote to Mrs Y and told her the outcome of Mr X’s financial assessment. It explained from the end of December 2023, Mr X was liable to fund his own care. It gave her information about the process to take out a loan to cover his care costs. Mrs Y says she did not receive the letter.
28. In late December, the Council wrote to the care home and told them it had completed a financial assessment and decided Mr X was now a self-funder. It terminated its contract with the care home.
29. In mid-February, Mrs Y complained to the social worker she had received an invoice for Mr X’s one-to-one care fees. The social worker told Mrs Y the finance team had sent her a letter in December 2023 explaining the outcome of the financial assessment meant the Council had decided Mr X was now a self-funder and so now liable to pay for his care costs. As Mrs Y held LPA for Mr X, it was her responsibility to arrange for Mr X’s fees to be paid from his funds.
30. In July, the Care Provider told Mrs Y it was ending Mr X’s placement due to the outstanding one-to-one care fees.
31. In August, Mrs Y made a formal complaint to the Council. She said its refusal to pay costs meant the Care Provider was threatening to evict Mr X because of non-payment of one-to-one care fees.
32. The Council received a safeguarding referral about Mr X. It contacted Mrs Y and offered to review Mr X’s care plan. Mrs Y declined this offer. It offered her support to pursue NHS CHC funding support. Mrs Y also declined this offer.
33. In September 2024, the Council responded to Mrs Y’s complaint. It accepted that upon Mr X’s discharge from hospital, the social worker had not followed proper procedures to sign off the one-to-one care and had not considered whether Mr X would be eligible for NHS CHC support. It apologised for its communication. It told Mrs Y it had addressed this with the social worker and introduced new training for staff to improve communication with people and families about financial matters.

Analysis

Care needs (part a of the complaint)

34. The Council accepts it should have reviewed Mr X’s care plan within two weeks of him moving into the care home. It said this review would have considered if Mr X could have been safeguarded using less restrictive measures. I consider that, on the balance of probabilities, if the Council had completed this review within its given timeframe, it is unlikely it would have ended the one-to-one care. This is because the need for one-to-one care for Mr X was established by the doctor who assessed him for his DoLS assessment in this same time frame.
35. In any case, Mrs Y had multiple opportunities to dispute Mr X’s one-to-one care and she did not do so. She visited the care home on a regular basis throughout Mr X’s residency and did not raise concerns about the level of support Mr X was receiving. She also declined the Council’s offer to review the care plan. On balance, I consider Mrs Y was satisfied the support Mr X received met his needs.

Charging (part b of the complaint)

36. The Council initially funded Mr X’s one-to-one care support in October 2023. However, the social worker did not follow the correct process. The Council says social workers should seek sign off from senior management detailing the length of time the Council will pay for the one-to-one support. It says it normally applies for NHS CHC funding in cases with one-to-one care fees and it reviews its decision to fund of one-to-one fees within two weeks. It said in this case, the social worker did not follow this process. It said it made the decision to fund Mr X’s one-to-one care fees for a period of twelve weeks instead of two weeks because of this fault. This benefitted Mr X financially.
37. The Council accepts it should have considered whether Mr X’s one-to-one care fees could have been funded through an NHS CHC funding referral. However, when it eventually offered Mrs Y assistance to apply for NHS CHC funding, Mrs Y declined its offer. For this reason, I consider any injustice caused by not considering NHS CHC funding earlier to be limited.
38. The Council’s financial assessment decided Mr X had over the upper capital limit and so it decided he must pay the full cost of his residential care home fees. This included the additional one-to-one care fees. I am satisfied the Council considered all relevant information in its assessment. For this reason, I find no fault with the Council’s decision making and I cannot question the outcome.

Communication (part c of the complaint)

39. Mrs Y says she did not receive the financial assessment outcome letter sent by the Council which informed her that Mr X was liable for his care fees from the end of December 2023. I consider, on balance, it is likely the Council did send Mrs Y the outcome letter. In any case, Mrs Y became aware of the change within a month when the Care Provider sent her the first invoices. For this reason, I consider any injustice to be limited.
40. The Council accepts its communication with Mrs Y was not clear enough. It accepts it would have been good practice for the social worker to contact Mrs Y with the outcome of the financial assessment. It apologised to Mrs Y and addressed this with the relevant officer. It is also training staff to improve communication with people and families about financial matters.
41. Mrs Y complains the Council did not tell her the social worker had not followed the correct process at the time. I consider the Council’s communication could have been better; however, I consider any injustice caused to Mrs Y is limited. This is because she was provided with the information about Mr X being liable for care fees by the Council’s finance department and separately by the Care Provider. The Council also decided to pay for Mr X’s one-to-one care for longer than it would have done normally because of the social worker’s error. I consider the action the Council has taken with the officer, the training it has implemented, the additional time it paid for Mr X’s fees and the apology remedy the injustice caused to Mrs Y.

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Decision

42. I find fault causing injustice. I find the Council’s actions have remedied the injustice caused to Mrs Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman