Summary: There was no fault by the Council in placing the late Mr X in a care home and charging him for it. He had mental capacity to decide on his care and living arrangements. He was not deprived of his liberty and the Council offered assistance with a funding application for a grant for repairs to the home. There was a failure to give Mr X information about the charging framework for social care and support, this was fault, but it did not cause significant injustice because a family member was told basic information about financial assessments.

The complaint

1. Mrs X complained the Council failed to assess her late husband Mr X, safeguard him or provide care after concerns raised by another agency. She said Mr X was deprived of his liberty, they were separated and left in appalling living conditions.
2. She said the Council’s actions exacerbated Mr X’s health condition causing avoidable distress.

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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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and s34H(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X 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

Relevant law and guidance

7. Mental capacity is the ability to make decisions. An assessment of a person’s mental capacity is required where there is a reasonable belief the person lacks capacity to make the specific decision (Mental Capacity Act 2005, Code of Practice, paragraph 4.34)
8. A council must carry out a social care assessment for an adult who appears to need care and support (Care Act 2014, section 9(1))
9. Where an adult with mental capacity refuses a social care assessment, a council does not have to carry one out. (Care Act 2014, section 11)
10. Most social care and support is chargeable, subject to a financial assessment of the person’s income and capital. A council may carry out a light-touch financial assessment to determine care costs, where a person has significant financial resources or refuses to co-operate with a financial assessment. If the person refuses to provide information, a council may then charge them the full cost of their care. (Care and Support Statutory Guidance, paragraphs 8.22 and 8.23)
11. Intermediate care is free of charge for up to 6 weeks. This includes Discharge to Assess (D2A) care which is arranged to free up acute hospital beds. Councils may pre-purchase a number of beds in a particular care home under the D2A process. These beds are often called ‘block beds.’
12. Councils may charge for home care (after a period of reablement care). They must be transparent so people know what they will be charged. There should be enough information available so they can understand any charge. (Care and Support Statutory Guidance, paragraphs 8.2 and 8.3)
13. Councils must make enquiries and decide whether to take action where they have reasonable cause to suspect an adult with care and support needs may be at risk of abuse or neglect and is unable to protect themselves. Actions a council takes under section 42 are often called ‘safeguarding enquiries’ (Care Act 2014, section 42)

What happened

14. Mr X was in hospital because of a decline in his health. In January 2024, a social worker had several discussions with Mr X about what he wanted to happen when he was well enough to leave hospital. They spoke about reports from the ambulance service of poor conditions in Mr X’s home including clutter and disrepair. Mr X said items belonged to other family members and that he did not want the matter dealt with under safeguarding procedures. The social worker noted their view Mr X had mental capacity to decline a safeguarding enquiry.
15. The social worker and Mr X also spoke about discharge plans for when he was better. Mr X agreed he could not return home due to the home environment. The social worker noted their view that Mr X had mental capacity to decide on his care and living arrangements.
16. The case notes indicate multiple attempts at liaison by phone with Mrs X and other family members. The social worker also told another family member the Council could not help with repairs to the home. However, another social worker offered to help Mrs X apply for a home improvement grant. Mrs X declined this offer saying the matter was with her lawyer.
17. The Council sought a short-term bed in a care home under the D2A process. Mrs X was not happy with the placement the Council had identified. The records indicate the brokerage team looked for an alternative care home, but there was no availability. Mr X was discharged to Care Home A at the end of March.
18. In April, a social worker visited Mr X at Care Home A intending to complete a social care assessment. Mr X refused to co-operate after speaking to Mrs X.
19. Records of liaison with another family member indicate they were made aware that the Council had decided to extend the placement for 12 weeks and it would be subject to a charge.
20. Also in April, the Council sent another family member a financial assessment form. The case notes indicate the Council had basic details of Mr X’s income on its records already.
21. A case transfer summary at the end of April said the D2A period ended on 22 April and the Council’s risk panel agreed to extend the placement for 12 weeks while the issue of Mr X’s home environment was resolved. The next action was to complete a light-touch financial assessment and a full social care assessment.
22. The Council has not provided me with evidence of any information or advice provided to Mr X about the charging process once the D2A period ended. However, there was an email exchange between the social worker and a family member saying the placement was now chargeable and subject to a financial assessment after the four-week D2A period ended.
23. In May, the Council wrote to Mrs X saying it had not received a completed financial assessment form and enclosed a further form asking her to complete and return it within 14 days. Otherwise, it would charge Mr X the full cost of his care from 23 April.
24. In May and June, the social worker made various attempts to liaise with Mrs X and other family members about involving them in a visit to Mr X to carry out a social care assessment. The records indicate family members were unwell and on occasions did not respond promptly to the social worker’s contacts.
25. At the end of June, the social worker visited Mr X. He said he did not want a social care assessment without family being present. The social worker spoke to another family member after the visit and told them the 12-week council-funded period was ending.
26. In August, the Council wrote to Mr X saying the D2A period ended after four weeks and he needed to pay the full cost after 23 April. The letter went on to say the Council would be moving him from a block bed to an ordinary bed and this would cost more. Mrs X called the social worker in response and asked them not to move Mr X. She was advised to complain.
27. In September, the Council wrote to Mr X saying it had decided to give him an additional two weeks of care at no cost due to incorrect information about the D2A period. The letter went on to say he was liable to pay £1100 a week from 8 May to 6 August and £1400 from 7 August.
28. Mr X died in October.
29. Mrs X complained to the Council about the matters she has raised with the LGSCO. It did not uphold her complaint, so she complained to us.

Findings

Failed to assess Mr X

30. The Council tried to assess Mr X’s social care needs and finances on a number of occasions, as I have set out in the previous section. The case records indicate he refused to co-operate with a social care assessment. He was entitled to do so as an adult with mental capacity to make this decision. The Council acted in line with section 11 of the Care Act 2014 by not completing a social care assessment and so there is no fault.
31. The Council also tried to assess Mr X financially by liaising with family about the charge. However, there is no evidence the Council sent Mr X information about the charging policy or discussed charging with him at the time it placed Mr X in the D2A bed or as the four-week free period ended and the placement was extended by 12 weeks. Mr X was assumed to have mental capacity about decisions relating to his care and finances and the failure to make him aware of the charging framework at a timely point was not transparent or in line with paragraphs 8.2 and 3 of Care and Support Statutory Guidance and was fault. However, there is no significant injustice because his family was made aware that the D2A free-of-charge bed was only for the first four weeks and that Mr X would need to pay a charge after that. It is reasonable to assume family members discussed this with Mr X. The records also show financial assessment forms were sent out and not returned. So the Council satisfied itself Mr X was able to pay the full cost of his care by a light-touch financial assessment and charged him accordingly. This was in line with paragraphs 8.22 and 8.23 of Care and Support Statutory Guidance and there is no fault.

Failure to safeguard

32. The social worker discussed the safeguarding alert with Mr X and he said he did not want the matter pursued. He was entitled to make that decision and there is no fault.

Deprivation of liberty and separation

33. The records indicate Mr X had mental capacity to decide on his care and living arrangements and he consented to the placement. There was therefore no deprivation of his liberty. It was not fault by the Council that Mr X was separated from his family.

Left in appalling living conditions.

34. The records show officers offered to assist Mrs X with completing an application for funding for a home improvement grant and she declined. There is no fault by the Council.

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Decision

35. I find fault but this did not cause injustice.

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Investigator's decision on behalf of the Ombudsman