Summary: Mrs X complained about the Council’s handling of her care and support package. We found avoidable delay by the Council which caused Mrs X avoidable frustration. To put matters right, the Council agreed to apologise to Mrs X and partially waive her care costs.

The complaint

1. Mr Z, for Mrs X, complained about the Council’s actions in assessing and setting up a care and support package for Mrs X because it:

• failed to send its standard letter about care and support services and their cost before assessing Mrs X;
• wrongly found Mrs X had capacity to make decisions about her care and support needs; and
• failed to secure Mrs X’s written agreement to the care and support package.

2. Mr Z said Mrs X found carers coming into her home that she did not know to be traumatic and distressing and she begged her family to stop the visits. The Council’s refusal to deal directly with Mrs X’s family meant the distress continued for longer than necessary. Mr Z wanted the Council to cancel or at least significantly reduce the fees it had invoiced for a care and support package Mrs X had not agreed to and did not want.

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The Ombudsman’s role and powers

3. 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)
4. 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 has not given their consent, we may investigate a complaint from a person we decide is a suitable representative. Here, we decided Mr Z was a suitable representative for Mrs X. (Local Government Act 1974, sections 26A and 34C, as amended)
5. 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.
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 Mr Z and the Council. I also considered relevant law, policy and guidance. This included the Mental Capacity Act 2005 (‘the 2005 Act’) and the Care Act 2014 (‘the 2014 Act’). Mr Z 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

Adult social care

8. The law sets out arrangements for the discharge of hospital patients with care and support needs. The National Health Service (NHS) should try to give councils as much notice as possible of a patient’s impending discharge as they have a duty to carry out a needs assessment.
9. On receiving an assessment notice from the NHS, councils must assess the person’s care and support needs to determine whether they consider the patient has needs. Councils must then decide whether any identified needs meet the eligibility criteria. If so, they should confirm how they propose to meet any of those needs.
10. 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. They are also provided without charge for up to six weeks.
11. Under the 2014 Act, councils will carry out an assessment for any adult with an appearance of need for care and support regardless of their finances. The assessment must involve the individual and where suitable their carer or any other person they might want involved. And, where there are eligible needs, councils then prepare a care and support plan. Councils can charge for non-residential care following a person’s needs assessment. And where they do so, they must carry out a financial assessment to decide what a person can afford to pay.
12. Section 27 of the 2014 Act says councils should keep care and support plans under review and must do so if an adult or a person acting on the adult’s behalf reasonably asks for one. Reviews should be proportionate to needs and carried out as quickly as is reasonably practicable.

Mental capacity

13. The 2005 Act is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The 2005 Act (and its linked 2007 Code of Practice) 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.
14. 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.

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. 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?

16. 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.

Summary of what happened relevant to the complaint

17. The NHS referred Mrs X to the Council for assessment to prepare for her discharge from hospital. The Council’s notes showed it received information about the reasons for Mrs X’s admission to hospital. The referral papers raised no concerns about Mrs X’s capacity but said she lived with hearing loss. A Council officer visited Mrs X in hospital and received her consent to discuss her care and support needs with Mr and Mrs Z. The Council’s notes showed its officer recognised Mrs X was ‘very hard of hearing’ and ‘had to speak very clearly to her’. The Council’s notes and written assessment showed its officer communicated with both Mrs X and Mrs Z about Mrs X’s care and support needs once she left hospital.
18. The Council’s written assessment found that Mrs X would need three home visits a day to support her needs. And, after noting Mrs X’s initial reluctance, the assessment said Mrs X and Mrs Z agreed to three daily visits. The Council’s notes also said its officer discussed care costs with Mrs X and Mrs Z. The Council said it told them initially care was free but it would review Mrs X’s needs within four weeks of her leaving hospital and costs might then become payable.
19. The Council’s notes also showed that after the assessment but while Mrs X remained in hospital, a standard form discharge letter (‘the Letter’) was sent to Mrs X’s home address. The Letter set out the arrangements for Mrs X’s care and support, the need for a further assessment, and care costs. The Letter said if Mrs X had more than £23,250 in savings and assets, she would have to pay the full cost of her care and support. (Mr Z said he had long dealt with Mrs X’s paperwork and Mrs X left post near the door for him to collect and action. Mr Z said he never saw the Letter on visiting Mrs X’s home.)
20. Mrs X left hospital and care and support visits started. Within a few days, the body providing care contacted the Council concerned about Mrs X taking her nighttime medication. The carers considered Mrs X might need a fourth, night, visit. In response, the Council contacted Mr Z to arrange a home visit to assess Mrs X’s needs. (The Council said it considered this the quickest way to act given Mrs X was hard of hearing and had consented to information sharing with Mr and Mrs Z.) Mr Z agreed the visit and said he would let Mrs X know, although neither he nor Mrs Z could be present on the Council’s suggested date.
21. A Council officer visited Mrs X at home and assessed Mrs X’s needs (‘the Visit’). The resulting written assessment included that Mrs X was ‘hard of hearing’ and had taken ‘some time to be able to hear’ the Council’s officer. The written assessment noted that Mrs X said she had ‘mild difficulties’ with memory or finding her way around and could ‘mostly’ plan and make decisions independently.
22. The Council’s notes of the Visit said its officer discussed the need for a night visit with Mrs X and she agreed the extra support. The officer’s notes also referred to Mrs X as being ‘slightly agitated’ and expressing concerns about the carers coming and going. The notes said the Council’s officer explained why carers could not remain with Mrs X all day but visited regularly and that Mrs X ‘showed some insight into the level of support’ she received. Both the Council’s notes and the written assessment said Mrs X agreed to the added, nighttime, visit.
23. After the Visit, the Council soon spoke to Mrs Z, who it noted agreed to the added nighttime visit. The Council’s notes of the call also said its officer explained there would now be a financial assessment to decide what contribution Mrs X should make towards her care costs. The Council’s notes included Mr and Mrs Z’s home address and that its officer agreed to send them information about funding. (The Council said it then sent Mr and Mrs Z a copy of the Letter. The copy had handwritten comments to show what had happened since Mrs X left hospital and the stage now reached.)
24. In preparing a Care and Support Plan (‘the Plan’) for Mrs X after the home assessment, the Council’s notes showed that Mr and Mrs Z supported Mrs X with her paperwork, including about financial matters. And they would support Mrs X with the financial assessment now needed for her care package. The notes said the ‘actions’ then taken included sending a letter (‘the Closure Letter’), with a copy of the Plan, to Mrs X’s home address. (The Council could not find a copy of the Closure Letter on Mrs X’s case file.) Mrs X’s case then passed to the Council’s Neighbourhood Support Team (‘NST’), which would be responsible for reviewing the Plan.
25. About a week after preparing the Plan and two weeks after sending Mr and Mrs Z a copy of the Letter, Mrs Z telephoned the Council leaving a message (‘the Message’). The Council’s notes of the Message showed Mrs Z wanted to discuss reducing Mrs X’s care visits. Mrs Z had also said they had not yet received any financial information. The Message was passed to the officer that made the Visit.
26. About eight weeks after Mrs Z had left the Message, the Council wrote to Mrs X and sent her a financial assessment form (‘the Costs Letter’). The Council asked Mrs X to complete and return the form within two weeks. (Mr Z said the Costs Letter was ‘put out of the way of all other letters’ and so he did not see it for about four weeks.)
27. Meanwhile, not receiving a response to the Costs Letter, the Council wrote again to Mrs X. It said, without Mrs X’s financial information, it had now assessed her as self-funding. This meant she needed to pay the full cost of her care from the date the hospital discharge funding ended. The Council said it would now invoice Mrs X for her care costs but, if she returned the financial assessment form, it would review its costs decision.
28. The next day, having noticed Mrs Z’s Message from eight weeks earlier, an officer from the Council’s NST twice tried, unsuccessful, to speak to Mrs Z. Mrs Z then returned the calls and left a message saying she did not know why the Council was calling. About a week later, the Council spoke to Mrs Z (‘the Call’). The Council’s note of the Call said Mrs Z would visit Mrs X to look for the financial information the Council had sent and then deal with it. And, while concerned and ‘unclear on [Mrs X’s] capacity’, the family considered the care visits could be reduced. The Council’s notes ended with its agreement to review Mrs X’s needs, which would include consideration of her capacity.
29. Meanwhile, the Council had prepared an invoice for seven weeks’ of care and sent it to Mrs X’s home address.
30. A few days after the Call, Mrs Z again telephoned the Council. The Council noted that Mrs Z considered it had badly managed Mrs X’s case. And the family wanted the care visits stopped given their concerns about paying for carers they did not like. A few days later, Mrs Z telephoned the Council again. Its note of the call reported Mrs X as unhappy with her care package, for which she had now received a large bill. The Council’s note referred to Mrs Z making three calls without a response and that Mrs Z now had been given an email contact address. The Council returned the call the same day and left a message.
31. Mr and Mrs Z also emailed the Council that same day (‘the Email’) repeating their concerns about management of Mrs X’s case and unreturned telephone calls. The Email said Mrs X had now received a bill for something ‘never agreed or partly wanted’ and the care visits should stop. The Email also said Mrs X had put the financial assessment in a drawer and so they had not responded within the Council’s deadline.
32. The Council telephoned Mr and Mrs Z and quickly arranged a further home visit to assess Mrs X. The visit took place, with Mrs Z attending, three days after the Council received the Email. The Council’s written assessment said Mrs X’s ‘[hearing] impairment caused mild restrictions’ and she could ‘communicate clearly without support’ and did not need support to make decisions. The assessment also said Mrs X felt angry that no one listened to her as she wanted carers in her home to stop but Mrs Z said they must come. Mrs Z said she tried to cancel the carers although concerned about Mrs X taking her medication. The assessment found Mrs X had ‘fully recovered’ and wanted her future independence.
33. The following day, the Council cancelled Mrs X’s care package.
34. About two months after receiving the Email and treating it as a complaint, the Council responded to Mr and Mrs Z, apologising for its delay. The Council said it had discussed charging for care with Mrs X and Mrs Z before Mrs X left hospital. It referred to the Letter, which it had later copied to Mr and Mrs Z, and the Cost Letter, saying they included information and website links about paying for care. Without her completed financial assessment form, it had assessed Mrs X as a self-funder. But it would review this decision once it received Mrs X’s completed form. The Council said it had placed a temporary hold on the three invoices it had now issued for Mrs X’s care costs to give her a further opportunity to provide financial information. The Council referred Mr and Mrs Z to the Ombudsman if dissatisfied with its response.
35. Mr and Mrs Z continued to write to the Council for a further five months. In summary, Mr and Mrs Z continued to dispute the Council told them or Mrs X about care costs. And, if made aware, said they would have attended the Visit as Mrs X did not have capacity to make decisions about care costs as they dealt with her financial affairs. Mr and Mrs Z also said the Council could not prove Mrs X had agreed the care package. The Council, in summary, repeated it was satisfied Mrs X had capacity to make decisions and it had sought her consent before sharing information with Mr and Mrs Z. The Council repeated it had provided, both verbally and in writing, information about paying for care. The Council continued to invite a completed financial assessment form and to signpost Mr and Mrs Z to the Ombudsman.

A summary of what the Council told us

36. The Council said it had followed the principles of the 2005 Act and had had no reason to doubt Mrs X’s capacity. Its officers found Mrs X was hard of hearing but able to communicate her wishes about her care and support. There was no diagnosis of, and it had no information to suggest Mrs X had, an impairment of the brain or mind that might impact her decision making. It telephoned Mr and Mrs Z about the Visit and so gave them an opportunity to attend. And, if asked, it would have changed the visit date so they could attend. Mr and Mrs Z had not raised ‘capacity’ as an issue until the Call. Its officers had been able to communicate with Mrs X. They found she had an insight into the care provided for her and the ability to agree a change to her care package during the Visit. None of its officers, including Mrs X’s experienced social worker, had considered a mental capacity assessment necessary. They all found Mrs X able to make decisions about her care and support, including cancelling her care package.
37. The Council said on referral to its Financial Assessment and Benefit Team (FABA), it triaged cases before appointing a case officer. Following service improvements, it was now taking a maximum of three working days to appoint a case officer. However, it had been taking eight to ten weeks to do this. And, in Mrs X’s case, there were nearly ten weeks between the referral and appointment of a case officer. It had then, unsuccessfully, tried to contact Mrs X by telephone before sending the Costs Letter. However, it did not consider any delay in sending the Costs Letter affected Mrs X’s case as it had never received her completed financial assessment form.
38. Overall, the Council considered it had correctly followed procedures with two exceptions. First, it had not properly transferred Mrs X’s case to the NST and or placed a copy of the Closure Letter on Mrs X’s case file. However, its case notes showed Mrs X and Mr and Mrs Z had engaged with the assessments and raised no concerns about the care and support in the Plan. Second, it had unreasonably delayed responding to the Message for nearly two months. The Council offered its sincere apologies and said it would waive Mrs X’s care costs during the time it delayed acting on the Message.

Consideration

Failure to send the standard letter about care costs before the Visit

39. Mr Z said the Council did not send the Letter until after the Visit. The evidence showed the Letter, which included care cost information, was sent to Mrs X’s home around her discharge from hospital. The Letter set out Mrs X’s correct address, including the post code. So, there was no clear reason for any non-delivery to Mrs X’s home. However, I also had no reason to doubt that Mr Z did not see the Letter. Indeed, Mr Z told us he did not see the later Costs Letter for several weeks as it was not put with other post on the table by Mrs X’s door.
40. The Letter also followed the Council speaking with Mrs X and Mrs Z about care arrangements and their funding once Mrs X left hospital. I recognised Mrs Z did not recall the Council mentioning costs during their conversations. I also recognised that many people first meet council adult social care procedures when a loved one is in hospital. That will likely already be a stressful and challenging time without needing to receive and understand new information. However, on balance, I found the evidence showed the Council had raised the issue of care costs both in discussions and in writing and sending the Letter to Mrs X’s home. I found no fault here.
41. I also found the letter sent to Mr and Mrs Z soon after the Visit, was essentially a copy of the Letter. The copy did not include Mrs X’s address and bore a different date, being the date it was sent to Mr and Mrs X. The handwritten comments on the copy letter showed what had taken place since Mrs X left hospital and the stage now reached with her care and its cost.

Mrs X’s capacity to make decisions about her care and support needs

42. The law needed the Council to presume Mrs X had capacity to make decisions unless a lack of capacity was established. The evidence did not show the NHS had found Mrs X lacked capacity during her hospital stay. And Mrs X had no diagnosis suggesting her decision making might be impaired. The Council officers that dealt with Mrs X’s care and support needs all noted she was hard of hearing and this was relevant to how they communicated with her. The Council’s case notes were consistent in its officers finding Mrs X had insight into the care she was receiving and could express her wishes about that care. I found no fault in the Council’s approach or how it reached its decision not to carry out a mental capacity assessment.
43. In reaching my view, I took into account there was no evidence to suggest Mr and Mrs Z raised concerns about Mrs X’s capacity with the Council before the Call. The Call took place over three months after the NHS referred Mrs X to the Council’s hospital discharge team. And, while Mr Z said did not know care costs would arise at the Visit, he had not objected to it taking place in his and Mrs Z’s absence. I did not find that Mrs X’s wish for Mr Z to handle her paperwork, including about financial matters, showed she lacked capacity to make decisions set out in such paperwork.

Failure to secure written agreement to the care and support package

44. The Council recognised it had no copy of the Closure Letter, which it should have sent to Mrs X with the Plan. Overall, the Council’s case notes did not show it had taken the ‘actions’ they described and so sent Mrs X the Closure Letter and the Plan. And, there was no evidence Mrs X signed Plan. I therefore found fault here.
45. However, when the Council had prepared the Plan, the evidence showed Mrs X and Mr and Mrs Z had agreed to care visits taking place four times daily. The evidence also showed Mrs X had received the care and support set out in the Plan. And the evidence showed Mrs X and her family had not raised concerns about the quality of that care until the Email. Without a completed financial assessment form, the Council was entitled to assess Mrs X as a self-funder and invoice her for full care costs once the hospital discharge funding ended.
46. However, if the Council had made a timely response to the Message, it would likely have carried out the further review about eight weeks sooner than it did. Regaining independence after leaving hospital may take time. I could not know now whether Mrs X’s care package would have been cancelled if the Council’s assessment had taken place about eight weeks sooner than it did. And the Message noted that Mrs Z was then asking about reduced carer visits. However, the evidence showed Mrs X valued her independence. So, on balance, any avoidable carer visits during those eight weeks would likely have been frustrating for Mrs X. I therefore found the Council fault I identified caused injustice. I recognised it might be of little or no comfort to Mrs X and Mr and Mrs Z, however, I thanked the Council for now offering to put this right. And, the Council’s proposal to waive a significant part of Mrs X’s care costs reflected the outcome sought by Mr Z in bringing this complaint.

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Action

47. I found fault causing injustice. Having carefully considered the relevant available evidence and our guidance on remedies, I found the Council’s proposal to put matters right proportionate, reasonable and appropriate. The Council agreed my recommendation to (within 30 working days of this statement):

• waive 55 days of Mrs X’s care costs and
• send Mrs X a written apology,

in recognition of the avoidable frustration caused by its avoidable delay in reviewing her care package.

48. The Council learned from what happened here. However, to ensure it acted, the Council also agreed my recommendation to (within three months of this statement):

• review its procedures for transferring cases between its hospital discharge and neighbourhood support teams to ensure officers issue and complete all necessary paperwork and tell service users about the transfer.
• write to relevant staff to remind them of the importance of timely responses to telephone messages, particularly when transferring cases between teams.

49. The Council should consider what our guidance on remedies says about making effective apologies before sending the apology set out at paragraph 47.
50. The Council also agreed to provide us with evidence it had complied with the actions set out at paragraphs 47 and 48.

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Decision

51. I found fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman