Summary: Mr X complained on behalf of his father, Mr Y, who is deceased. Mr X complained about an invoice for care fees when Mr Y lived in a care home for a period of assessment between January and March 2018. Mr X said the Council left Mr Y in an unsuitable room and told him it would not charge for care while it assessed Mr Y’s needs and mental capacity. The Council was not at fault. There was no evidence to show Mr X was told the care home place was free, and no evidence which showed Mr Y’s room was unsuitable. However, the Council was at fault for failing to communicate the result of Mr Y’s financial assessment and also failing to give clear information about the charges to Mr X. The Council agreed to reduce the outstanding invoice by £200 to acknowledge the uncertainty that caused Mr X.

The complaint

1. Mr X complains on behalf of his father Mr Y who is now deceased. Mr X complains about the Council’s actions when Mr Y moved from hospital to a care home between January 2018 and March 2018. Mr X complains that:
• The Council told him it would not charge Mr Y care fees for the period he was under assessment for his needs and mental capacity. Mr X disputes he should need to pay fees of £1500 for the period.
• The Council delayed carrying out the assessments on Mr Y.
• The care home left Mr Y in an unsuitable room without bathroom facilities throughout his stay at the care home.
• The Council moved Mr Y to another care home in March 2018 and placed him on a dementia ward without a diagnosis.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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(a), as amended)

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How I considered this complaint

5. I spoke to Mr X about his complaint.
6. I considered the Council’s response to my enquiry letter.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
9. Following the assessment, the council must provide a care and support plan which sets out what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person. The council must give a copy of the support plan to the adult for whom it has been prepared or any other person whom the adult asks the council to give a copy to.

Financial assessment

10. Following a needs assessment the council must offer a financial assessment to decide who will pay for the eligible care needs. Councils can charge for care services. The council should provide clear information about charges and how it assesses them at the time it finds out care needs. If a person refuses a financial assessment, they must self-fund their care.
11. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.
12. The Care Act says once the council has carried out a financial assessment it must provide a written record of the assessment to the adult to whom it relates to. It should explain how the assessment has been carried out, what the charge will be and how often it will be made.

Mental Capacity Act

13. If the council feels a vulnerable adult may not be able to decide about their care, it should carry out a Mental Capacity Assessment. This will assess the adult’s capacity to make a particular decision at the particular time it needs to be made.
14. Where an adult lacks capacity, the law says any decision or action taken on their behalf must be in their best interests.
15. The Mental Capacity Act 2005 sets out five principles:
• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to decide unless all practicable steps to help them to do so have been taken without success.
• A person is not to be treated as unable to decide merely because they make an unwise decision.
• A decision made on behalf of a person who lacks capacity must be made in their best interests.
• Before deciding, the decision maker must have regard to the option least restrictive of the person’s rights and freedom of action.
16. The Act also says the test of someone’s capacity to decide is on the balance of probabilities and is decision and time specific. When someone is making a decision on an incapacitated person’s behalf, and in their best interests, they must take into account the person’s wishes, feelings, beliefs and values and those of family and friends.
17. The test of capacity involves assessing a person to see whether they can:
• Understand the relevant information including the likely consequences of making, or not making the decision.
• Retain the information.
• Use or weigh the information as part of the decision-making process.
• Communicate their decision.

Deprivation of Liberty Safeguards (DoLS)

18. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.
19. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure for getting authorisation to deprive an individual of their liberty.
20. Without authorisation, deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. The ‘managing authority’ of the care must request authorisation from the ‘supervisory body’ (the Council). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
21. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.

What happened

22. In January 2018, Mr Y lived at home with his wife. Mr Y’s wife died and he was admitted to hospital the same day with a chest infection. While in hospital, the Council’s social care coordinator spoke to Mr X, who had power of attorney over Mr Y about the possible options for discharge. Following an assessment by a social worker, the hospital’s mental health team had concerns about Mr Y’s mental capacity. Mr X said he did not think it safe for Mr Y to return home, even with a package of care.
23. Following the assessment, the social worker suggested that Mr Y could move into a care home on a short-term basis. It said it would allow Mr Y to undergo a period of assessments for the level of care he needed and further assess his mental capacity. The social worker and Mr X both agreed that Mr Y did not have the capacity to retain the information about the care home placement. The social worker told Mr Y it was a decision made in his best interests. Mr Y agreed. The records show the social worker discussed the cost implications with Mr X who agreed to a financial assessment. Mr Y moved into the care home towards the end of January 2019.
24. The records show the Council visited Mr Y at the start of February 2019 to assess his needs. Mr X was not present. The social worker recorded Mr Y had very limited insight into his care needs or understanding of what care he needed. The social worker decided to revisit Mr Y to carry out the mental capacity assessment.
25. The social worker met with Mr X. They said Mr Y had asked to go home and no longer wanted to live in a care home. The social worker said Mr Y was less confused and his mental capacity had improved. The social worker decided the option of Mr Y living at home with a package of care should be considered as the least restrictive option. The social worker and an occupational therapist visited Mr Y’s home to see what they could do to support Mr Y. The records show the social worker discussed with Mr X the financial implications of both cost of care at home and staying in a care home. Mr X stressed to the social worker than Mr Y had already been in the care home for five weeks and asked for a swift conclusion as to which direction they were going with Mr Y’s care. The social worker explained to Mr X that because Mr Y’’s presentation in terms of mental capacity had changed and he was asking to go home, they must consider that option.
26. Over the next couple of weeks, Mr Y’s behaviour at the care home started to change. The care home staff became concerned about his behaviour and the manager said they had doubts about their ability to meet Mr Y’s needs. The care home completed a risk assessment to manage Mr Y’s behaviour. The social worker recorded Mr Y’s capacity was variable and changed from day to day. The social worker said she wanted to try Mr Y in his home environment to see how he coped with that least restrictive option. As Mr Y did not have any formal mental capacity diagnosis, the social worker referred him to a Community Psychiatric Nurse (CPN).
27. In mid-March 2018 the care home submitted a DoLS application to the Council with regard to Mr Y. A few days after this, a serious safeguarding incident occurred involving Mr Y and another resident. The care home manager decided they could not longer manage Mr Y’s needs and risks or keep the other residents safe while he resided there. The manager told the Council it should find a different care home for Mr Y as a matter of urgency and they were not prepared to wait for the Council to carry out any further assessments.
28. The Council decided to carry out an urgent search to identify another care home that could meet Mr Y’s needs. The records show the social worker spoke to Mr X about the safeguarding concerns and that he was happy for Mr Y to move to another placement. The social worker carried out a mental capacity assessment on Mr Y and assessed that he lacked the capacity into his care and support needs.
29. The social worker informed Mr X they had found another care home for Mr Y. The new care home was a home for the Elderly Mentally Infirm (EMI). The records show Mr X agreed that the EMI care home could manage Mr Y’s needs and risks. Mr Y moved into the new care home at the end of March 2018.
30. Mr Y lived at the EMI care home until he died in June 2018.
31. The Council wrote to Mr X and included an invoice for the care home fees Mr Y accrued at the care home between January and March 2018. Following receipt of that invoice Mr X complained to the Council. Mr X said he was told the period Mr Y lived at the care home was not chargeable as he was there for assessment only. Mr X also complained about the room Mr Y stayed in at the care home. He said it was not suitable and did not have en-suite facilities.
32. The Council wrote back to Mr X. It said Mr Y went to live at the care home after he was discharged from hospital on a short-term placement for a period of assessment at Council rates. The Council said it had carried out a financial assessment on Mr Y which Mr X signed and agreed to in January 2018. The Council said Mr Y’s calculated contribution started when he moved into the care home in January 2018. The Council said it carried out continuous assessments of Mr Y during his time at the care home which ended in a move to an EMI care home. The Council said it considered Mr Y’s ability to mobilise at the care room and therefore had no concerns that the room did not have en-suite facilities.
33. Mr X wrote back to the Council. He said he was told on several occasions that there would be no cost while Mr Y was undergoing assessment. Mr X said the assessments of Mr Y were never completed and the Council never informed him of any conclusions. Mr X said he still did not know the outcome of any of his assessments. Mr X said his main reason for challenging the invoice was that his father was not given suitable accommodation. Mr X said he was told Mr Y could move rooms after the outcome of his assessments, however the assessments never came to any conclusion before he moved to the EMI care home. Mr X said he did not accept he should pay the full cost of the invoice for the inadequate assessment room the care home provided.
34. The Council’s final response to Mr X said it was satisfied the financial implications were made clear to Mr X. It said it deemed Mr Y’s accommodation at the care home suitable for the period he was there. The Council said Mr X needed to pay the full cost of the invoice.
35. Mr X remained unhappy and complained to the Ombudsman. He said Mr Y was left in an unsuitable room at the care and therefore should not have to pay the full cost of the invoice. He said the Council delayed assessing Mr Y at the care home and then moved him to an EMI care home without a diagnosis.

My findings

The care fees between January and March 2018

36. Mr X said the Council told him it would not charge Mr Y for the time he was under assessment at the care home. Mr X was acting on behalf of Mr Y in his best interests due to the doubts about his mental capacity. The records show financial implications were discussed with Mr X and that Mr Y would need to contribute to the fees. The records show Mr X agreed to and signed a financial assessment which the Council completed in January 2018. I cannot see any evidence which supports Mr X’s assertion he was told care was free, and I cannot know what may have been said during conversations. Mr Y went to the care home on a short-term placement, but there is no evidence to suggest that period was free. Mr Y received care, therefore there must be a charge for that care. I am satisfied the Council followed the correct procedures in completing the financial assessment and made Mr X aware of the financial implications of Mr Y going into a care home.
37. However, the Council has been unable to provide me with evidence that it communicated the outcome of the financial assessment with Mr X until mid-March 2018. That was two months after it had completed the financial assessment. I have also seen no evidence that it provided either Mr X or Mr Y with any clear information about the care home charges. These were faults and caused Mr X uncertainty and meant he did not have the opportunity to make an informed choice about the care home for Mr Y.

Mr Y was left in an unsuitable room at the care home

38. Mr X said Mr Y’s room was unsuitable and inadequate because it had no bathing facilities. I have seen no evidence that Mr X raised any complaints on behalf of Mr Y about the suitability of his room. The care home had no concerns about Mr Y’s mobility and decided the room met his needs. Mr Y’s care plan showed although he had a history of falls, he was able to mobilise. There is nothing in the records to show Mr Y complained or raised issues about the room. Mr Y stayed at the care home for nine weeks and I would have expected Mr X to raise a complaint or concern during that time if he felt the room was unsuitable. There is no evidence that a lack of en-suite facility caused Mr Y an injustice in the nine weeks he lived at the care home. The Council was not at fault.

The Council delayed carrying out assessments on Mr Y at the care home

39. The records show the Council carried out needs assessment and produced care and support plans in line with the Care Act for Mr Y. Mr X said the Council delayed carrying out a mental capacity assessment. From the records I have seen the Council regularly assessed Mr Y on an ongoing basis during his stay at the care home. However, Mr Y’s presentation fluctuated which caused the Council to consider the least restrictive option of Mr Y moving back home. The Council assessed Mr Y as lacking capacity just before he moved to the EMI care home. The records show there were no avoidable delays, and the Council acted swiftly when it became know the care home could no longer meet Mr Y’s needs. There was no fault or avoidable delays in how the Council assessed Mr Y’s mental capacity in the circumstances.
40. However, there is no evidence the Council appropriately communicated the outcome of the assessments to Mr X. As Mr X had power of attorney over Mr Y the Council should have provided him with access to Mr Y’s needs assessments, care and support plans and the mental capacity assessment. It did not and that was fault. It caused Mr X uncertainty and frustration. The Council accepted it had no record of sending the assessments to Mr X and has already apologised and provided him with copies. That is an appropriate remedy.

Mr Y was sent to an EMI care home without there being a diagnosis

41. Due to a safeguarding incident at the care home, the manager decided they could no longer meet Mr Y’s needs. The social worker assessed Mr Y as lacking capacity for his care and support needs prior to leaving the care home. The records show Mr X agreed the EMI care home could meet Mr Ys needs and manage his risks. There is no evidence moving to the EMI care home caused Mr Y any injustice. The Council was not at fault.

Agreed action

42. The Council agreed within one month of the final decision to:
• reduce Mr X’s invoice for Mr Y’s care fees by £200 to remedy the uncertainty caused by its failure to properly communicate the outcome of the financial assessment in January 2018.

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Final decision

43. I have completed my investigation. I found some fault which caused Mr X injustice. The Council agreed to my recommendation to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman