Summary: Mr and Mrs X complained the Council delayed assessing Mr X’s mother’s (Mrs Y’s) care needs and mismanaged her finances when it was her deputy. The Council was at fault when it did not order equipment in March 2018. This did not cause a significant injustice. There was no fault in its response to Mr and Mrs X’s request for a care needs assessment or in its management of Mrs Y’s finances. I cannot come to findings on solicitors’ fees as these were linked to court proceedings.

The complaint

1. Mr and Mrs X complained the Council ignored their requests to reassess Mr X’s mother’s (Mrs Y’s) care needs.
2. Mr and Mrs X also complained about how the Council managed Mrs Y’s finances when it was her deputy, before she passed away. They complained it:
• paid for a bed Mrs Y did not receive;
• paid for home insurance, which Mrs Y already had; and
• sent them an invoice after Mrs Y’s death, which had already been paid.
3. Mr and Mrs X also complained Mrs Y’s care provider failed to attend a care call in November 2017 and failed to respond when Mrs X contacted it.
4. Mr and Mrs X say the Council has not investigated their complaints or responded properly. They say these issues have caused added distress at a time of bereavement, and Mrs Y’s health suffered because of the Council’s actions.

Back to top

What I have investigated

5. I have investigated the complaints in paragraphs 1, 2 and 4. I have limited my investigation into paragraph 2 for reasons which I have explained in “The Ombudsman’s role and powers” and “Analysis”.
6. I have not investigated the complaint in paragraph 3. I have explained this in “The Ombudsman’s role and powers” and “Parts of the complaint that I did not investigate”.

Back to top

The Ombudsman’s role and powers

7. 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)
8. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
9. 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)
10. The Council says Mr and Mrs X did not complain to it about the Care Provider in 2017 or early 2018. They say they did. In any event, I have not exercised discretion to investigate this part of their complaint as there is no good reason for them not to have complained to the Ombudsman earlier.
11. We may decide not to start or continue with an investigation if there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6), as amended)
12. Mr and Mrs X raise concerns about the Council passing their contact details to Mrs Y’s solicitors. This is an issue they should raise with the Information Commissioners Office as the organisation best placed to consider complaints about information rights.
13. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
14. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
15. Solicitors’ fees which the Council accrued on Mrs Y’s behalf were related to court proceedings. I cannot come to findings on any of those fees, including fees accrued before court proceedings began, as they are not separable to the court proceedings. It is reasonable to expect Mr and Mrs X to seek legal advice to consider making a claim via the courts.
16. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
17. 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)

Back to top

How I considered this complaint

18. I considered the information Mr and Mrs X provided;
19. I made enquiries of the Council and considered the comments and documents it provided;
20. I looked at the relevant law and guidance, including the Care Act 2014 and the Care and Support Statutory guidance;
21. I considered the Ombudsman's guidance on remedies; and
22. I wrote to Mr and Mrs X and the Council with my draft decision and considered their comments before issuing a final decision.
23. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

What I found

Relevant law, guidance and Council policy

Assessments of people who require care

24. Care needs assessments should be carried out over an ‘appropriate and reasonable’ timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils have the power to meet urgent needs where they have not yet completed an assessment. (Care and Support Statutory Guidance 2018, sections 6.26 and 6.29)

Court-appointed deputies

25. When a person lacks the mental capacity to manage their finances the courts can appoint a deputy. Sometimes councils will be appointed deputy. The deputy must make decisions when the person cannot do so, in their best interests. The deputy must keep records and will be supervised by the Office of the Public Guardian (OPG). The deputy is responsible for things like paying the person’s bills, managing their income and outgoings and making decisions about purchases.

Debts when a person dies

26. When a person dies, any debts they have must be repaid from their estate before any other claims on the estate can be met. Executors must pay funeral and other expenses, and then the person’s debts. Creditors can sue the estate for the payment of outstanding debts.

What happened

27. Mrs Y was Mr X’s mother. Mr X and his wife, Mrs X, provided day-to-day support and Mr X was deputy for Mrs Y’s finances until February 2018, when the Court of Protection displaced him at the request of the Office of the Public Guardian. In March 2018, the court appointed the Council as Mrs Y’s financial deputy.
28. Mrs Y received a package of care at home. In March 2018 the Council’s occupational therapist (OT) found carers had not been using equipment the Council had provided to help Mrs Y with transferring from sitting to standing. They recorded this was because her bed and chair needed to be raised, although Mr and Mrs X dispute this and say the carers had not been trained to use the equipment. The OT recorded they would order raisers. There is no evidence the Council ordered these at that time.
29. In April, the Council asked Mr X to forward any financial documents it may need as Mrs Y’s deputy. Mr X told the Council financial information would “not be forthcoming” and did not send the information the Council needed. Mr and Mrs X say the Council did not make clear what it required.
30. In April the care provider asked for an urgent OT review. The OT visited that day. They found Mrs Y needed a hoist for carers to transfer her. The OT recorded they would order a mobile hoist and slings, and raisers for the bed and recliner chair.
31. Mr and Mrs X say the OT decided Mrs Y should be bedbound until the appropriate equipment was in place. The Council says its OT did not say this.
32. The hoist was delivered at the beginning of May. However, the raisers were not, which meant carers could not use the hoist. The OT considered bringing bed raisers from the Council’s stock, but they observed carers supporting Mrs Y to transfer using a walking frame instead. Installing raisers would mean this was no longer an option and Mrs Y could only transfer using the hoist. It was agreed carers would continue to help Mrs Y transfer in this way.
33. Mrs X called the Council four days later asking for a review of Mrs Y’s care package, with a view to moving into a care home they had found. She also asked for a deferred payment agreement. The telephone record does not suggest Mrs X said she felt an assessment was urgent, although she says she made this clear and the Council should have known this was urgent as Mrs Y had been admitted to hospital for falls regularly. The Council explained the case would be allocated. The Care Provider told the Council the next day it was concerned as Mrs Y regularly did not want to get out of bed. They asked whether she could have a different type of bed which would allow her to sit up in bed when she did not want to move to her chair. The Council ordered one that day.
34. Mr and Mrs X became concerned Mrs Y was losing weight and was dehydrated. They say this was due to her being in bed and unable to eat the meals that were delivered. Mr and Mrs X chased the Council over the next few days, then decided it was in Mrs Y’s best interests to move to the care home as they believed the Council was ignoring their requests and delaying assessing Mrs Y. Mrs Y moved into the care home. Case records show Mr X also told the Council that part of the reason they had placed Mrs Y in the care home was that he was due to have a major operation. Mr and Mrs X dispute this, and say while they mentioned this, it was not the reason they believed Mrs Y should move into a care home.
35. Mrs X told the Council Mrs Y had moved, and the Council asked Mr and Mrs X whether they intended to return Mrs Y home. It did not cancel the bed order as it had not decided she should stay permanently. The bed was delivered the following day, but carers found the key to Mrs Y’s house had been removed from the key safe. Mr and Mrs X say this was for security as Mrs Y was not at home.
36. The Council assessed Mrs Y at the end of that week. It recorded Mrs Y met the criteria for a residential placement and that it would be in her best interests to stay at the care home with 24-hour support.
37. In June Mrs X asked the Council about the advice of the OT. She believed an NHS member of staff had asked the Council to investigate the OT’s actions. The Council told Mrs X it had not received such a request. It advised it was not unusual for OTs to advise carers not to transfer a person if the equipment was unsafe. It said the OT would not have advised Mrs Y should be permanently bedbound.
38. Mrs Y was refunded £607.90 in June 2018 for the bed. Due to the failed delivery attempt, the company did not refund the installation fee. It also did not refund the cost of a slide sheet which had been delivered separately by Royal Mail.
39. In July, Mr and Mrs X say ready meals were delivered to Mrs Y’s home. Mrs X called the Council to let it know these should have been cancelled. The Council has provided me with evidence from the supplier that its final delivery was made at the beginning of May, and no further orders were made or delivered after Mrs Y moved into the care home.
40. The Council began legal action against Mrs Y’s grandson, Mr Z, as it found he was staying in Mrs Y’s property without it having authorised this. Mr and Mrs X say the Council knew he was staying there and that it knew this was so he could look after the property in Mrs Y’s absence. The Court of Protection made decisions about the action the Council should take, and gave the Council authority to sell the property if this became necessary.
41. In September 2018, Mrs X asked why the Council had taken out home insurance for Mrs Y. It said Mr and Mrs X had not provided the necessary financial information when it took over Mrs Y’s finances so it had not known there was already a policy. Mrs X then sent the Council evidence of the existing policy. Mr and Mrs X say they told the Council by phone in May or June that the house was insured already, although there is no evidence of this in the Council’s records.
42. Mrs Y passed away in December 2018. The family, as the executors of the estate, became responsible for any debts lawfully owed by Mrs Y. In January 2019, they received an invoice from the solicitors that the Council instructed on Mrs Y’s behalf. They also received invoices from the Council showing outstanding fees for Mrs Y’s care, and costs of it administering the deferred payment agreement and deputyship. Mr and Mrs X accessed Mrs Y’s bank statements.
43. Mr and Mrs X believed one of the invoices repeated a charge that had already been paid. There were also two invoices for the same period. One invoice did not give detailed information about what the charges were for. They asked the Council for more information. They also asked the Council about its findings relating to the OT’s advice. The Council gave them the details of its complaints process for them to raise a formal complaint about this as it had not carried out an investigation in the way they expected. The Council explained the complaint investigation may take longer than usual. It said it would keep them updated.
44. Mr and Mrs X told the Council and the solicitors they were not happy about the solicitors’ bill and that they would not pay as the action was unwarranted. They say the Council has not explained the need to involve solicitors on Mrs Y’s behalf.
45. The Council told Mr and Mrs X it would respond to their complaint by the end of January. It said it would tell them if there was any delay. Mr X told the Council he would offset the balance due with an amount to account for his time and trouble.
46. Mr and Mrs X continued sending additional complaints about the invoices and payments. The Council wrote to Mr X to apologise as its complaint response would be delayed, to address the additional issues Mr and Mrs X had raised. Mr and Mrs X accepted this meant the complaint response would take longer.
47. The Council sent its complaint response at the beginning of February, and apologised again for the delay. It said there was nothing in the records suggesting the OT decided Mrs Y should be bedbound. The Council explained the family were required to settle all Mrs Y’s lawful debts, regardless of whether they agreed with them. The Council attached a breakdown of charges and payments. This showed the balance outstanding was £3,231.88. The Council explained the invoices Mr and Mrs X were disputing and provided a breakdown of how the figures had been reached. It explained all payments and invoices they queried.
48. Mr X raised concern the Council had not contacted the hospital, the care provider, the GP surgery or the Social Care department as part of its complaint investigation. He also said the Council did not get the family’s consent to order Mrs Y a bed, and said the family had looked after the bills at Mrs Y’s home.
49. The Council replied at the beginning of March. It explained it had no duty to seek Mr and Mrs X’s consent to order Mrs Y a bed as it had deputyship for her finances. It explained the assessment had found after the move it was in Mrs Y’s best interests to stay at the care home. There were no indications in the carers’ records they were having difficulties, and the Council’s OT had worked with carers and observed transfers. The family decided to move Mrs Y before any further reviews.
50. Mr X was still unhappy with the Council’s response. Mr X says the Council had been advised Mrs Y couldn’t have solid foods once she was bedbound, and so she should not have continued to pay for ready meals. I have seen no evidence of a decision to this effect made by a relevant health professional. I have seen evidence some of the ready meals delivered to Mrs Y were soft or pureed.

Analysis

Occupational therapy and care assessment

51. The Council has acknowledged there was some confusion about raisers being ordered. There is no evidence it ordered raisers in March 2018 despite this being assessed as a need by the OT. This is fault. The care provider then raised concerns one month later. This fault did not cause Mrs Y a significant injustice as carers were managing her transfers for most of that period. The OT visited promptly in April 2018 when carers raised concerns. In any event, had there been an injustice to Mrs Y, there would be no suitable remedy we could suggest as she is now deceased.
52. I have been provided with conflicting explanations of what advice the OT gave in April 2018. On the balance of probabilities, the OT advised carers should not risk their own, or Mrs Y’s, safety temporarily until the correct equipment was in place. It is not unusual that this would be recommended as a short-term measure, and that decision was not fault. In any event, this decision was only in effect for one week. Mr and Mrs X dispute this however the substantive evidence I have seen does not suggest Mrs Y should have been bedbound for longer. I am satisfied the OT did not advise this as a permanent, or even long-term, solution. The hoist was delivered promptly, one week after this decision.
53. The raisers had not arrived. The OT recorded they could bring raisers from the Council’s stock. However, they observed carers safely transferring Mrs Y without the hoist or raisers. They were entitled to decide not to install the equipment at that time. The carers then raised concerns as Mrs Y did not want to get out of bed. That was not fault by the Council, and it responded promptly by ordering a bed that would have allowed Mrs Y to transfer using a hoist or without.
54. Mr and Mrs X then asked the Council to assess Mrs Y’s needs, and told it they had found a care home. Two days later they told the Council their request was urgent. Mr and Mrs X say the Council ignored their requests. The evidence does not support this. The family moved Mrs Y before the worker could assess Mrs Y.
55. There is no timescale in the law and guidance for councils to assess care needs. The Council was taking steps to enable Mrs Y to stay at home. Aside from the raisers, which I have covered above, there was no significant delay in equipment being provided. There is no substantive evidence the Council could not have met Mrs Y’s needs in her own home. Mr and Mrs X disagree with the Council’s judgement of how urgently it needed to assess Mrs Y. This is not, in itself, an indication of fault. Mr and Mrs X felt they needed to move Mrs Y urgently, as she was falling regularly. They say the frequency of falls should have alerted the Council to the fact an assessment was urgently needed. I cannot say how quickly the Council would have assessed Mrs Y, had the family not moved her.
56. Once Mrs Y had moved, the Council assessed her promptly and decided it was in her best interests to stay. That does not mean it would have moved her in any event, as circumstances changed when she moved.

Mrs Y’s finances

57. The Council did not need the family’s consent to order a bed for Mrs Y. It was for the Council to make this decision. The bed arrived, but the key was not in the safe so it could not be delivered. It was not fault that the Council did not cancel that order, as no decision had been made that Mrs Y should move permanently to a care home. The Council arranged a refund to Mrs Y, which was adjusted to account for costs of the failed delivery. I have seen no evidence the Council made Mr and Mrs X aware of the delivery arrangements, for them to ensure the key was in the safe when the delivery was due. Mr and Mrs X say they removed the key from the safe to protect the property while Mrs Y was not there. However, the Council is not at fault for the missed delivery, as it was Mrs Y’s deputy and it had no reason to believe the key would not be in the key safe.
58. Mr and Mrs X told the Council meals were delivered to Mrs Y’s home in July, after she had moved to the care home. The Council has provided evidence the last delivery from the company providing these meals was at the beginning of May 2018, and the account was closed in June. I cannot say why meals were delivered in July and by whom, but the Council is not at fault.
59. It was for the Council, not the family, to pay the bills for the property using Mrs Y’s money. There is no fault in its decision to arrange home insurance. Mr and Mrs X refused to provide information to the Council, however they say the Council did not make clear what information it required. Based on the communications I have seen, I am not convinced they would have provided the necessary information had the Council been clearer as Mr X told the Council information would not be forthcoming. I understand Mr and Mrs X say they told the Council earlier that home insurance was already in place. I have not seen substantive evidence of this.
60. The Ombudsman cannot interfere in decisions made by the court. It is not for me to come to findings about solicitors’ fees the Council accrued on Mrs Y’s behalf, as these are to do with the Council’s decisions to take court action, and also resulted in part from court proceedings. Mr and Mrs X do not believe they should pay solicitors’ fees. It is open to Mr and Mrs X to seek legal advice and begin proceedings relating to solicitors’ fees if they believe these have been wrongly accrued.
61. I have analysed the invoices, Mrs Y’s bank statements and the breakdowns and explanations the Council provided to Mr and Mrs X. The Council did not charge twice for the same thing. The invoice that concerned them was for a different period of care than the payment that had already been taken from Mrs Y’s bank account. Invoices covering the same period were for different things and are all properly owed. The Council provided satisfactory explanations to Mr and Mrs X.
62. As the executors of the estate, Mr and Mrs X are responsible for paying Mrs Y's lawful debts, regardless of whether they agree with them. The fact that they disagree with the Council’s decisions does not mean the Council is at fault. The Council is entitled to take any recovery action it feels necessary for the outstanding lawful debts which are rightly owed. Mr and Mrs X say they understand outstanding lawful bills need to be paid for from the estate, but they have not received the clarity they wanted to explain all charges.

Complaint-handling

63. An NHS worker gave Mr and Mrs X the impression an investigation would be carried out into the Council OT’s advice. There is no evidence the Council was made aware of that discussion. It could have asked Mr and Mrs X if they wished to make a formal complaint when they contacted it in June 2018. However, I fall short of finding the Council at fault as it sought clarification from the OT department. Mr and Mrs X did not say they were not satisfied until January 2019.
64. The Council kept in touch with Mr and Mrs X to advise them of delays. Their complaint was complex and multi-faceted, and Mr and Mrs X added to it several times. The Council was required to carry out a proportionate investigation and studied various documents including carers’ records. The Council was not at fault for the time its response took. In any event, the delay was not significant.

Back to top

Final decision

65. I have found fault but this did not cause a significant injustice. I ihave completed my investigation.

Back to top

Parts of the complaint that I did not investigate

66. I have not investigated Mr and Mrs X’s complaint about events in November 2017 (paragraph 3). Mr and Mrs X say they raised this complaint with the Council several times, and it said it would investigate and respond to them. They say it then did not contact them, despite them chasing it up multiple times by telephone. I have considered this, and the Council’s assertion they did not raise that complaint with it. In any event, even if Mr and Mrs X did complain to the Council, they could have brought that complaint to the Ombudsman sooner when they received no response. There is not a good reason for them to have brought this complaint late and so I have not exercised my discretion to investigate it.

Back to top

Investigator's decision on behalf of the Ombudsman