The Ombudsman's final decision:
Summary: Mr N complained on behalf of his uncle, Mr X, that the Council provided Mr X with intermediate care and then wrongly charged him both for this and for later care. He also complained the Council failed to include him in assessments about Mr X’s care. There was fault in the way the Council carried out Mr X’s financial assessment. However, this did not cause him an injustice. The Council should reassess Mr X’s financial contribution for the period he was in a residential short stay.
- Mr N complained on behalf of his uncle, Mr X, that the Council:
- wrongly charged Mr X for a period of intermediate care, when he was discharged from hospital;
- failed to involve him in discussions about Mr X’s care;
- wrongly assessed the contribution Mr X must make 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)
- 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)
- 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
- I spoke to Mr X and considered the information he provided. This included copies of the complaints correspondence with the Council and the NHS and Mr N’s views on the Council’s actions.
- I made enquiries of the Council and considered its response. This included Mr X’s financial and social care assessments, his support plan and correspondence with the NHS.
- I considered the following guidance and legislation:
- Care Act 2014;
- Care and Support Statutory Guidance 2014 (updated 2017); and
- Care and Support (Charging and Assessment of Resources) Regulations 2014.
What I found
Charging for care
- The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
- Where adults receive care and support from local authorities, they normally do so under the provisions of the Care Act 2014 and may have to pay for them, depending on financial eligibility criteria.
- Where a council has decided to charge it must carry out a financial assessment of what the person can afford to pay. (Care and Support Statutory Guidance, section 8.16)
- In assessing what a person can afford to contribute a local authority must apply the upper and lower capital limits. The upper capital limit is set at £23,250 and the lower capital limit at £14,250.
- A person with assets above the upper capital limit will be deemed to be able to afford the full cost of their care. Those with capital between the lower and upper capital limit will be deemed as able to make a contribution, known as ‘tariff income’, from their capital. Any capital below the lower capital limit should be disregarded.
- The tariff income is charged at £1 per week for every £250 in capital between the two amounts of £14,250 and £23,250. This is called ‘tariff income’. For example, if a person has £4,000 above the lower capital limit, they are charged a tariff income of £16 per week.
Charging for care in residential care
- Section 8.2 of the Care and Support Statutory Guidance 2014 states “The overarching principle is that people should only be required to pay what they can afford”.
- The Guidance also states “Where a person is a short-term… resident there is a degree of discretion or modified charging rules to take account of this. A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks, for example where a person is placed in a care home to provide respite care. Where a person is a short-term resident a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home”.
- This means the Council can charge the person in the same way it would charge someone who was receiving care in their own home.
- People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home.
Intermediate and reablement care
- Where councils provide intermediate care and reablement support to those who need it, they must provide it free of charge for the first six weeks. (Care and Support Statutory Guidance, sections 2.60, 2.61)
- Intermediate care and reablement are defined in law as facilities or resources provided to an adult by a council under the Care Act 2014 which:
- “consist of a programme of services, facilities or resources;
- are for a specified period of time (“the specified period”); and
- have as their purpose the provision of assistance to an adult to enable the adult to maintain or regain the ability needed to live independently in their own home”. (Care and Support (Preventing Needs for Care and Support) Regulations 2014, section 2)
- The Mental Capacity Act 2005 is underpinned by five key principles:
- Presumption of capacity (every adult must be presumed to have capacity);
- Individuals supported to make their own decisions (people must be given all practicable help to make their own decisions);
- Unwise decisions (people have the right to make their own decisions);
- Best interests (anything done for or on behalf of a person who lacks mental capacity must be done in their best interests); and
- Least restrictive option (someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action).
- Mr X is in his 90s and until the beginning of 2018 lived alone without a care package in a housing association property.
- Mr X had a fall on 27 January 2018. He then had a second one on 30 January 2018 and was admitted to hospital. An email to the Council from the ambulance service stated “patient was on the floor for 10 hours when he last fell and when this happened the house nearly burnt down… patient isn’t safe to be at home”.
- Case records for Mr X stated a member of the Council’s adult social care team contacted the hospital on 5 February. Mr X was being seen by an Occupational Therapist (OT) and a physiotherapist on his ward. The notes said Mr X “has previously refused care package”.
- On 6 February, a Council social worker carried out an assessment of Mr X in hospital. This recorded Mr X thought he was managing at home with his personal needs and was happy “living the way he did”. The notes record the social worker told Mr X she had concerns about his home based on the observations of the ambulance crew which might need further investigation before his discharge from hospital. The notes stated Mr X “has declined any support… regarding personal care but he feels like he would like some support from Home from Hospital with a shopping call for 6 weeks upon discharge”.
- The social worker emailed the housing association the same day about the state of Mr X’s home and the issues raised by the ambulance service. The issues included problems with damp, no central heating, a requirement for new locks and re-fixing of the carpets.
- She also contacted Mr N, with Mr X’s consent, for his views on Mr X’s abilities to manage once he was discharged from hospital. The case notes record Mr N “had very limited information to give”.
- The notes for 7 February recorded the social worker visited Mr X at hospital. The staff nurse for the ward stated she considered Mr X had showed signs of confusion overnight but had capacity to make the decision to decline support for personal care at home.
- The social worker phoned the hospital on 8 and 9 February for an update. The notes for 9 February record Mr N would not let Mr X go home without a package of care and would not hand over the keys to Mr X’s home.
- The social worker phoned Mr N on 9 February. The notes record she told him Mr X had capacity to make decisions and he recognised the consequences of them.
- The social worker spoke Mr X again on 13 February. The notes record Mr X “appeared confused the more we spoke… I discussed care support at home and he asked pertinent questions about how much it would cost and how often they would come… I spoke with [the discharge liaison officer] and [the OT] who informed me [Mr X] does not have reablement potential. His needs will only increase due to a long history of self-neglect. I also noted he was discharged home on 30/1/18 and he fell almost straight away and was brought back to hospital… I do not consider that [Mr X] is suitable for reablement as there are long term issues to address and his needs are increasing. I asked him about a short stay but he appeared confused”.
- Mr X was due to be discharged on 14 February. Therefore, also on 13 February, his case was assigned to a new social worker. They telephoned Mr N and left a message for him saying they would assess Mr X in the morning before discharge.
- On the morning of 14 February, the social worker assessed Mr X. The case notes record Mr X “was alert and did have capacity and said he was willing to have some care to support him but he only wanted one call on a morning and one shopping call a week… nephew was not present”.
- The social worker visited Mr X again that afternoon. The case notes record “concerns over self-neglect, [Mr X] is alert today and not as confused…explained there is a contribution towards care and he will be assessed, [Mr X] said this was ok and he has… savings”.
- Mr N telephoned the hospital and said he was unhappy Mr X had been assessed. He said Mr X was not coping and needed more care visits. The case notes record the social worker told him that because Mr X had capacity the Council could not insist he had additional care. The notes recorded Mr N said he could not understand that because when he was present, Mr X said he would accept more care. The notes record that the social worker said she would reassess Mr X and make sure all parties could be involved once he was home. Mr N said he would collect Mr X from hospital that afternoon.
- Mr X had a fall the same day, shortly after arriving home. He was readmitted to hospital later that night. The following day Mr N told the social worker Mr X could not cope at home. Mr X was examined and found to have no injuries. The social worker’s notes record “I asked [Mr X] would he consider a short stay… to enable [me] to get a clear view of his needs and what level of support he may require at home… [Mr X] said ‘yes’ and said he would like to return home after this. I explained that there is a cost, but the finance team would let [Mr X] know what his contribution would be. [Mr X] said he understood.”
- Mr X went to a residential home on 15 February for a short stay. Towards the end of February, the social worker began to make plans for his return home. The case notes record he would need four visits a day for support with meals, medication, cleaning and keeping safe.
- The social worker spoke to the OT who had carried out a home visit to Mr X’s home. The OT said some work needed to be carried out and some equipment installed before it would be safe for him to return. The case notes record the social worker considered Mr X needed a further two-week short stay whilst the work was carried out. The social worker also recorded Mr N and his brother wanted Mr X to go into a residential home as they thought he could not cope at home.
- The residential home Mr X was in could not accommodate him for a further two weeks. Therefore, Mr X transferred to a second residential home on 1 March.
- Between 1 and 12 March, an officer from the Council’s Benefits and Assessment Office tried to contact Mr N about Mr X’s financial assessment. On 12 March, Mr N left the social worker a message which said he refused the assessment for Mr X because the care he received when he left hospital, and was continuing to receive, was classed as intermediate care and so was free.
- The case notes record the social worker spoke to Mr N on 12 March. She explained reablement or intermediate care was not appropriate for Mr X when he was discharged from hospital but they could consider this at a later date when he returned home from the residential home. Mr N disagreed and said that under government guidance Mr X had received intermediate care. The social worker asked Mr N to arrange a financial assessment for Mr X whilst the matter was resolved.
- The social worker assessed Mr X on 20 March. Mr N and his cousin were present. All, including Mr X, agreed it was not safe for him to return home and he would remain as a permanent resident at the residential home.
- On 28 March 2018, Mr X sold his car for £2,925. This money was paid into his current account.
- Mr N was unhappy with the Council’s actions and made a complaint on 2 April 2018. On 15 May, the Council responded and said its enquiries were taking longer than expected. It said it would provide a response by 31 May.
- The Council carried out Mr X’s financial assessment on 4 April. Mr N was present when it took place. Mr N says he told the assessor that Mr X sold his car on 28 March 2018.
- On 23 April, the Council wrote to Mr N after the completion of Mr X’s financial assessment. This showed Mr X had:
- capital (savings) of £19,073. This included the sum of £2,925 Mr X received for his car on 28 March;
- weekly income comprising of an annuity of £12.17 and pension of £148.74. The Council also included £20 a week as an income tariff on the capital Mr X had which was over the lower threshold of £14,250.
Period of care 15 February to 20 March 2018
- The case notes showed the social worker considered whether Mr X met the criteria to receive reablement or intermediate care. They assessed him and considered his recent history and the fact his care needs were likely to increase. The social worker also consulted with staff at the hospital who had been involved with Mr X’s case. They decided he was not eligible at that time for reablement or intermediate care under the criteria. The case notes record the social worker told Mr N that Mr X may be eligible at a later date if he returned home.
- We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused. There was no fault in the way the social worker made the decision that Mr X was not eligible for reablement or intermediate care for the period 15 February to 29 March 2018. Therefore, I will not criticise that decision.
Financial contributions to Mr X’s care 15 February to 20 March 2018
- The Council carried out Mr X’s first financial assessment on 4 April 2018.
- The assessor based this assessment on Mr X having capital of £19,073 from 15 February. But this was the figure Mr X had in his account on 28 March. As a result, the figure included £2,925 for the sale of Mr X’s car which took place on 28 March as well as an additional £888 in pension income he had received since 15 February. The Council therefore based Mr X’s capital on incorrect figures and this is fault.
- For the period of 15 February to 28 March, Mr X paid around £120 in total in income tariff. If the Council had not taken the sale of the car into account, he would have paid around £48. There would also have been an additional small saving in relation to Mr X’s pension income. However, Mr X has not experienced an injustice because he had failed to pay any of his care costs since he first moved into residential care.
- The Council has started action to recover the amount Mr X owes towards his care fees. This is a decision the Council is entitled to make and it has no duty to delay doing so. There is no fault in the Council’s actions.
Mental capacity and presence of Mr N at Mr X’s care and support assessments
- The Mental Capacity Act 2005 states people must be presumed to have capacity and that if they have capacity they must be supported to make their own decisions, however unwise they might be.
- The case notes show the social worker considered Mr X’s mental capacity each time a decision was required over his care. They determined he had capacity and this view was supported by the ward staff who were providing his care. It was clear the social worker, hospital staff and Mr N wanted Mr X to have more care; however, he consistently refused this. Because he had capacity, the Council acted in line with legislation and was not at fault for allowing him to make this decision, however unwise they and others thought it to be.
- Mr N complained he was not present at the assessments when Mr X was in hospital. Mr N did not have power of attorney at that time and Mr X was deemed to have capacity. Notwithstanding this, the social worker did try to contact him to attend the assessment on 14 February, prior to his discharge. The Council was entitled to go ahead with the assessment without Mr N. And Mr N was included in later care and financial assessments. There was no fault in the Council’s actions.
- Within three months of the date of the final decision, the Council has agreed to reassess Mr X’s finances to determine his contribution to care costs for the period starting 15 February 2018.
- There was fault in the Council’s actions but this did not cause Mr X an injustice. The Council has agreed to my recommendation. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman