The Ombudsman's final decision:
Summary: The Council failed to arrange an advocate when Mr B was discharged from hospital to a care home, when it was considered that Mr B did not have capacity to decide where to live himself. The Council also failed to arrange an advocate when it carried out social care needs and financial assessments. Then, when Mr B refused to contribute to the cost of his care and said he did not want to live in the care home, the Council failed to decide if he had capacity to manage his own finances or decide where to live. The Council has agreed to take action to prevent similar failings in future, to make a payment to Mr B and to support him to move to alternative accommodation, if that is in his best interests.
- Ms X is an Independent Mental Health Advocate and is complaining on behalf of Mr B. She complains that Mr B was placed in a care home without his agreement, without the support of an advocate and without understanding that he would have to pay towards the cost of his care.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- considered the complaint and the documents provided by Ms X;
- discussed the issues with Ms X;
- made enquiries of the Council and considered the comments and documents the Council has provided; and
- given the Council and Ms X the opportunity to comment on my draft decision.
What I found
Mental Capacity Act 2005 and the Code of Practice
- A person’s capacity (or lack of capacity) refers speciﬁcally to their capacity to make a particular decision at the time it needs to be made.
- A capacity assessment should be carried out when a person’s capacity is in doubt.
- Any decision made on behalf of a person who lacks capacity must be made in the person’s best interests. Working out a person’s best interests is only relevant when that person has been assessed as lacking, or is reasonably believed to lack, capacity to make the decision in question.
- Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision.
- An Independent Mental Capacity Advocate (IMCA) must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff) whenever a local authority is proposing to arrange accommodation (or a change of accommodation) in a care home, and the person will stay in the care home for more than eight weeks.
- The IMCA represents and supports the person who lacks capacity and they will provide information to make sure the ﬁnal decision is in the person’s best interests.
Care Act 2014 and the Care and Support Statutory Guidance
- At the time of an assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment.
- Local authorities must form a judgement about whether a person has substantial difficulty in engaging with local authority care and support processes. If it is thought that they do, and that there is no appropriate individual to support and represent them for the purpose of facilitating their involvement, then the local authority must arrange for an independent advocate to support and represent the person.
- Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.
- Between March 2016 and April 2017, Mr B was an inpatient at a hospital for adults requiring mental health care.
- In January 2017 a capacity assessment was carried out which concluded that Mr B was unable to make a decision with regard to his current or future needs.
- The records show that by March, Mr B’s presentation had dramatically improved and supported housing was sought for him.
- The following month Mr B moved to a care home for people with mental health conditions.
- The Council sent Mr B a financial assessment form which he completed with support during a meeting held in July. The Council then assessed Mr B’s ability to contribute to the cost of his care. It wrote to him in September explaining that he would have to pay £87.15 per week, backdated to April.
- Mr B refused to pay the charges. He said that he had not been told he would have to pay when he moved into the care home.
- The Council says that it tried to arrange an advocate for Mr B but the advocacy service would not accept the referral. The Council then arranged to take Mr B to the local citizens advice bureau. An advisor told Mr B in November that the charges were correct and he did need to pay them. Mr B continued to refuse to pay the charges.
- Since July 2017, Mr B has consistently reported being unhappy living at the care home and has asked for support to move to alternative accommodation, where he can live independently. The Council has had several discussions with Mr B about where he would like to live. It has supported him to attend the Council’s housing department and has made enquiries about suitable supported housing.
- In August 2018, the Council made a referral for an advocate for Mr B. The advocate, Ms X, then made a complaint to the Council on Mr B’s behalf. She complained that the Council had failed to carry out capacity assessments in relation to his understanding of the decision to move into the care home, and the financial implications of that decision. Ms X also complained that the Council had not arranged for an advocate to support Mr B with the financial assessment, or his discharge from hospital. She said that Mr B had told her that he had not agreed to the placement and he did not understand that he might have to pay.
- In September 2018, the Council commenced a capacity assessment to decide if Mr B had capacity to choose his housing options, live independently and manage his finances independently. In February 2019, he was deemed to lack capacity in all areas of the assessment.
- The following month, a professionals meeting considered whether it would be in Mr B’s best interests to move. It recorded that he would not be worse off by moving and could be happier if he moved. The Council has taken some steps to find alternative accommodation for Mr B.
- Mr B agreed to accept an appointee to manage his benefits and support him with the payment of his bills. The appointee identified that Mr B’s capital had increased above the threshold for benefits (£16,000). She recommended that he pay some of the outstanding care charges to reduce his capital below the benefits threshold. The Council says that it was then agreed in a multi professionals meeting that it was in Mr B’s best interests to pay £3500 of the outstanding care charges. It supported Mr B to make the payment the next day.
- Ms X says the best interest decision was made before the meeting and Mr B did not have the support of an advocate during the process. Ms X made a safeguarding referral because she was concerned that Mr B had been put under undue pressure to pay the money. At a subsequent safeguarding meeting, it was agreed to make an application to the Court of Protection for an appointed deputy to manage Mr B’s finances.
- Taking into account the £3500 that Mr B has paid, he currently owes around £8500 in care contributions.
- A discharge summary sent to Mr B’s GP when he was discharged from hospital shows that it was considered that he did not have capacity to consent to the placement at the care home and the decision was made in his best interests. The Council should have instructed an IMCA to represent and support Mr B, and to make sure the decision was in his best interests. It did not do so; this was fault.
- Two days earlier, the Council carried out a social care needs assessment. The Council failed to establish whether Mr B had capacity to take part in the assessment. This was fault. It seems likely that Mr B would have had substantial difficulty engaging with the process, and so the Council should have arranged for an independent advocate to support and represent Mr B with the social care needs assessment, and subsequent financial assessment. It did not do so; this was fault.
- Mr B has consistently refused to pay the care charges since he was told about them in September 2017. The Council’s records show that in January 2018 it was thought that Mr B had capacity to manage his finances. But it had not carried out an assessment to reach that view. The statutory guidance says that a capacity assessment should be carried out when a person’s capacity is in doubt. I consider the Council should have carried out a capacity assessment to determine if Mr B had capacity to manage his finances independently. It did not do so until September 2018; this was fault.
- Mr B repeatedly said that he was not happy living in the care home. I consider the Council should have carried out a capacity assessment to determine if Mr B had capacity to decide where to live. It did not do so until September 2018; this was fault.
- I am not satisfied that the decision that Mr B should pay £3500 of the outstanding care charges was made properly. There are no records to show how the decision was made and what factors were taken into account, or that Mr B was provided with the support of an advocate during the decision process. This was fault.
- In order to establish how a person has been affected by a council’s failings, we consider what would likely have happened, on the balance of probabilities, if there had been no fault.
- If there had been no fault, Mr B would have been provided with an advocate to support him with the social care needs assessment and financial assessment and he would have been provided with an IMCA to ensure the decision to move to the care home was in his best interests. The records suggest that Mr B was happy to move to the care home at the time. I consider it likely that, if there had been no fault, it would have been decided that it was in Mr B’s best interests to move to the care home.
- It seems likely that Mr B did not have capacity to manage his finances independently when he was placed in the care home. If there had been no fault, the Council would have sought an appointee to manage Mr B’s benefits on his behalf. If this had happened, Mr B would still have had to contribute to the cost of his care, but he would not have suffered over two years of worry about the escalating arrears. I am not recommending that the Council write off the outstanding arrears, but I consider it should make a payment to Mr B as a remedy for the distress he suffered as a result of its failings.
- The Council’s failure to properly record how it was decided that Mr B should pay £3500 of the outstanding charges has left it open to suggestions that the process was improper and not made in his best interests. However, I do not consider it has caused Mr B any significant injustice because the Council has agreed to refund the £3500 if the Financial Deputy, once appointed, decides it should not have been paid.
- When Mr B told the Council that he was not happy living in the care home and wanted to live independently, it should have carried out an assessment of his capacity to make that decision. Its delay in doing so has led to Mr B living in accommodation where he has not been happy for over two years. I consider the Council should make a payment to Mr B as a remedy for the distress he suffered as a result of its failings here. It should also expedite the action it is taking to find somewhere else for Mr B to live.
- Within four weeks, the Council will make a payment of £1000 to Mr B as a remedy for the distress caused by its failings in this case.
- Within eight weeks, the Council will make a decision about where it would be in Mr B’s best interests to live. The decision should be made in accordance with the law and statutory guidance; his views must be taken into account and he must be supported by an advocate.
- Within twelve weeks, the Council will:
- Support Mr B to move to alternative accommodation, if it is decided that it is in his best interests to move; and
- Provide training to social care staff on the Mental Capacity Act. The training will cover when capacity should be considered, when capacity assessments should be carried out, when best interests decisions should be made and when it is necessary to arrange an advocate. Staff will also be reminded to properly record capacity and best interests decisions.
- I have completed my investigation and uphold the complaint. There was fault by the Council which caused injustice to Mr B. The action the Council will take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman