Summary: Mrs B complains the Council charged for her father’s care when it should have been free. Mrs B says the Council did not tell her father’s family about the charges and met with him without any family present. The Ombudsman finds fault in how the Council carried out an initial assessment of needs, communicated with the family and considered the father’s mental capacity.

The complaint

1. The complainant, who I refer to as Mrs B, complains on behalf of her late father, Mr C and his wife Mrs C. Mrs B complains the Council charged for care when he left hospital. Mrs B says hospital staff told her the first six weeks were free and no one from the Council explained otherwise. She says a council officer met with her father, who had suffered from a stroke, without any family present. Mrs B also complains about the quality of the care Mr C received.

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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 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(i), as amended)

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How I considered this complaint

5. I considered the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments. Following a review, I sent a further draft decision to both parties.

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What I found

Legislation and Guidance

6. Under the Care Act 2014 (“the Act”), where it appears to a local authority that an adult may have needs for care and support, the authority must assess:
• whether the adult does have needs for care and support, and
• if the adult does, what those needs are.
7. The local authority, in carrying out a needs assessment, must involve:
• the adult,
• any carer the adult has, and
• any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.
8. Assessments must be person centred and clearly record the person and/or their carer’s views.
9. Regulations set out that a person is eligible for care and support if their needs arise from a physical or mental impairment or illness and as a result, they cannot achieve two or more of the following outcomes:
• managing and maintaining nutrition;
• maintaining personal hygiene;
• managing toilet needs;
• being appropriately clothed;
• being able to make use of the adult’s home safely;
• maintaining a habitable home environment;
• developing and maintaining family or other personal relationships;
• accessing and engaging in work, training, education or volunteering;
• making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
• carrying out any caring responsibilities the adult has for a child.
10. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care
11. Regulations provide that a local authority must not make a charge for intermediate care and reablement support services for the first six weeks.
12. Intermediate care and reablement means care provided to an adult by a local authority which:
• consists of a programme of services, facilities or resources;
• is for a specified period of time; and
• has as its 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.
13. The Mental Capacity Act (“MCA”) 2005, provides that a person lacks capacity in relation to a matter if at the material time he is unable to decide for himself. A person is unable to make a decision if they cannot:
• Understand information about the decision;
• Retain that information in their mind;
• Use or weigh that information as part of the decision-making process; or
• Communicate their decision
14. The Mental Capacity Act Code of Practice (“the Code”) says it is important to carry out an assessment if someone’s capacity is in doubt.

Background

15. Mr C was admitted to hospital in mid-2018 following a stroke. He spent several weeks in hospital. Mrs B says the stroke caused significant brain damage. He could not walk well, feed himself or communicate properly. Mrs B and her family were concerned about Mr C’s ability to understand and agree to things. She asked hospital staff to ensure family members were present whenever they made decisions about his care.
16. Mrs B says doctors explained to her that Mr C could return home but would need carers. They said a physiotherapist and speech and language therapist would visit Mr C at home. The hospital arranged this all. Mrs B says staff told her the first six weeks of care was ‘reablement’ and would be free.
17. Hospital staff referred Mr C for a care assessment. An assessor from a care provider, which operates on behalf of the Council, visited Mr C to complete an initial assessment. None of Mr C’s family were aware of the assessment or present when it took place.
18. The assessor completed an assessment form. On one page of the form it has a statement, which appears to be something the assessor will read out. It says, ‘All care put into place is on a temporary 6 week basis’. It also says, ‘Please be advised this is a means tested service and once you have returned home you will be subject to a financial assessment and may be required to pay partial or the full cost of your care.’
19. The assessor has filled in several parts of the form about Mr C’s needs. Under ‘Communication’ she has written ‘Able to communicate’. The assessor has also noted at two points that Mr C has capacity. Mr C’s referral form, completed by the hospital, also notes that Mr C has capacity.
20. There is another section on the assessment form, titled ‘Contacting the Next of Kin’. The box below has standard text, which says, ‘Explain the service to them, is there adequate food levels, can they go shopping, what tasks do they want to provide, are they able to be at home when the service user is discharged to welcome them home and allow access?’ The assessor has left this section blank.
21. Mr C has signed the assessment form. Mrs B says his signature is unrecognisable. The assessor has also signed the form as witness.
22. Mr C’s care started when he returned home, the day after the assessment. Two carers visited him four times a day for 30 minutes at a time, to help with personal care and moving.
23. The Council allocated a social worker to complete a full needs assessment. This assessment took place around a week after Mr C returned home. Mrs C was present at the assessment. Mrs C says the social worker did not tell her at any point during the assessment that the Council would charge for the first six weeks of care.
24. The social worker completed a number of forms for the assessment, including a record of the conversation, an action plan and an initial care plan. There is nothing in the record of conversation that suggests the social worker discussed charging for the care. However, it says in the care plan that she discussed finances with Mrs C and explained all care is chargeable and subject to a financial assessment.
25. The care plan says Mr C can communicate. He can answer yes or no answers. In the record of conversation, it says he has poor speech and could not offer his views but did say no when she asked if he liked having the carers.
26. The Council started a financial assessment but closed this as it said from the information provided by the family it was clear Mr C was over the capital limit and therefore self-funding.
27. The care continued for the agreed period of six weeks. At the end of this period the family decided not to continue with the care and instead make their own arrangements. Mr C regrettably passed away some weeks later.
28. Mrs B says the Council send Mrs C an invoice of around £200, which she paid as she did not realise what it was for. The Council then sent another invoice for the rest of Mr C’s care over the six weeks, amounting to £2,000.
29. Mrs B contacted the Council to say she had been told the first six weeks were not chargeable. She said receiving the invoices had caused distress to Mrs C, particular as they were addressed to her husband as ‘deceased’. She asked the Council not to address the invoices in this way in future, but it did so again.
30. The Council maintains the care was chargeable.
31. Mrs B also complains about the quality of care. This is mainly around the timings, as she says carers did not often turn up until 10:00 to get Mr C out of bed. The Council says it did not receive any complaints about this at the time.

Findings

32. I have separated my findings into the following issues:
• Nature of the care package
• The initial assessment
• Mental capacity
• Communication of the charges
• Quality of the care

Nature of the care package

33. The first issue is whether the six weeks of care Mr C received was chargeable. If the care he received was intermediate care or reablement then normally the first six weeks is not chargeable. It seems hospital staff told Mrs B it was reablement and not chargeable. I cannot look at any confusion that may have been caused by hospital staff, only the actions of the Council.
34. The Council says the hospital did not make a referral for intermediate care or reablement. It says, if the hospital had done so, it would have made a referral to a reablement provider and not to its social care team.
35. The Council says Mr C’s discharge was supported with a home care package, as he would require ongoing care, not a short-term service.
36. I do not find fault in the Council charging for the care. I understand the care provided to Mr C has some characteristics of a reablement package. It was for a period of six weeks following a discharge. However, intermediate care and reablement are specifically a short-term package to help the person recover and begin to live more independently.
37. In this case, the package was for six weeks, only because at that point it would be reviewed. The care package involved support for personal care. Mr C, as is often the case following a stroke, had ongoing personal care needs that would stretch beyond the end of the six weeks.
38. Based on the information provided, it is my view the care Mr C received was not intermediate care or reablement and therefore was chargeable.

The initial assessment

39. The Council’s care provider completed the initial assessment. As the body in jurisdiction, the Council is responsible for any actions of providers it commissions. It is my view the Council is at fault for the way this initial assessment took place.
40. There is very little information recorded in the assessment form. There is no evidence in the form that the Council assessed Mr C against the specified outcomes set out at Paragraph 8 of this statement. It needed to do so in line with the Regulations. There are significant gaps in the form, where several information boxes are not filled in. The additional information section is not written in a coherent way that anyone looking at the form could understand.
41. There is nothing on the form that shows the Council obtained Mr C’s views about the assessment or his care needs. As outlined at Paragraph 7, the law says a needs assessment must involve any carer the adult has and anyone the adult asks to be involved. The Council did not involve Mr C’s family and did not obtain their views about the assessment. I can find evidence, therefore, that the Council completed a person-centred assessment that took account of Mr C’s views and the views of his family.
42. There is nothing in the form that shows Mr C agreed to the assessment. Also, the assessor has signed as the witness to her own work, which is clearly poor practice.
43. In all, there is no evidence the Council based its care plan on a proper assessment of Mr C’s needs. This is fault. I understand this was only an initial assessment, which was shortly followed by a full assessment. However, it was still a needs assessment that led to the issue of a chargeable package of care and should have been completed in line with the Regulations and Guidance.

Mental capacity

44. One of the key parts of Mrs B’s complaint is that Mr C did not have capacity to consent to a chargeable package of care.
45. On the initial assessment form the assessor has recorded that Mr C has capacity. I can see that two hospital forms also note that Mr C has capacity.
46. However, the question of whether a person has capacity is specific to the decision in question. Mr C may have had capacity to consent to personal care, for example, but this is a different question to whether he has capacity to understand, retain and weigh up information about a new package of care and how it will be financed. It does not seem the Council has properly considered whether Mr C had capacity to consent to this chargeable package of care.
47. The Council’s assessments of Mr C going forward, seem to show that Mr C did have clear problems in communicating his views following his stroke. One assessment says Mr C can communicate with yes and no answers. It says his wife can anticipate his needs. Another says Mr C has poor speech and was unable to offer his views. Later occupational therapist assessments find Mr C had dysphasia and impaired cognition due to his strokes.
48. This all suggests that, while Mr C may have had capacity to consent to simpler decisions, it is less likely he could have positively contributed to an assessment of his needs without support, or properly understood and provided consent on financial matters. Mr C certainly did not tell his family that he had agreed to a chargeable package of care. The lack of evidence that Mr C contributed in any way to the initial assessment also supports concerns around whether he had capacity.
49. It is not for me to say whether Mr C had capacity in terms of financial matters. However, the evidence does raise concerns, and on balance, I find it is fault that the Council did not complete a proper mental capacity assessment.
50. I cannot say for certain what the outcome of that assessment would have been. It could have led to decisions being made under a best interest framework. Even if it found Mr C had capacity, it would have needed to involve Mr C’s family who would then have known what was happening.

Communication of the charges

51. Regardless of the mental capacity question, the Council had a duty to involve Mr C’s family in the assessment. Mrs C was Mr C’s wife and main carer. His other family members also had a role in caring for him. The hospital may not have told the assessor they had asked to be involved in decisions. However, there is no evidence the assessor made any attempts to involve them in the assessment or establish if he had any other carers.
52. The section of the form regarding contacting the next of kin has been left blank and the assessor has signed as witness when the format of the form suggests someone else should be witness.
53. There is no evidence in the initial assessment document the assessor properly explained the charges to Mr C. It does not seem he signed any formal contract, other than the needs assessment document and again there is little evidence Mr C properly understood or contributed to this. The Council did not provide any information about costs to Mr C’s family until long after the event.
54. I note the social worker has made a clear record in the care plan that she discussed finances with Mrs C a week later and told her the care was chargeable. Mrs C says this did not happen but, as it was clearly recorded at the time, I can only find the social worker did explain this. However, I also accept Mrs C may not have realised from this conversation that the initial six weeks would be included in any charge. The social worker may not have explicitly said so as she would not have known the hospital had told the family that care was free.
55. Much of the confusion may have been caused by the hospital. However, given that the Council did not properly explain the nature of the care package or the charges at the initial assessment, it is understandable why Mr C’s family feel the charges were sprung on to them further down the line.
56. With the above in mind, I find fault in the way the Council communicated the charges for care to Mr C and his family.

Quality of Care

57. I do not find fault in relation to the quality of care. This is because there is not enough evidence of significant fault.
58. The care plan does not outline specific times the carers must arrive to help Mr C out of bed. It may have been ideal for this to happen earlier. However, if the family had concerns about this, they would need to have raised it with the Council at the time, in order to resolve the problem. There is not enough evidence they did raise this at the time.
59. Even if there was fault, it is unlikely I could find this caused a significant enough injustice to recommend a remedy.

Consideration of Remedy

60. I have found fault in four areas:
• The Council did not conduct a proper assessment of Mr C’s needs during the initial assessment
• The Council did not conduct a formal mental capacity assessment in relation to Mr C’s ability to understand financial decisions and consent to a chargeable package of care
• The Council did not involve Mr C’s family in his initial assessment
• The Council did not properly communicate the charges to Mr C and/or his family
61. I have considered whether the above fault led to a quantifiable financial loss to the family. On balance, I consider that it did.
62. Mrs B says they would not have agreed to a chargeable care package. I also note the family decided not to continue with the care package after the six weeks, because they understood it would then become chargeable and instead wished to provide the care themselves. Based on the evidence available, I accept it is likely the family would not have agreed to the package of care, had they known it was chargeable. It is most likely the family would instead have cared for Mr C themselves, from the beginning.
63. If it were not for the fault, the family would have been involved in any decisions about Mr C’s care. The fault meant information about the chargeable service was not relayed to the family. It denied the family a chance to make an informed choice about whether they would agree to any Council commissioned package of care.
64. Even if Mr C was assessed as having capacity, it is unlikely he would have insisted on having the Council commissioned care package. He did not insist on this when the family decided to care for him themselves after the six weeks. It seems clear the family made this decision, and Mr C’s ability to pro-actively make such decisions was limited.
65. On balance, it is my view that, but for the fault, neither Mr C or his family would have agreed to a chargeable package of care. I therefore recommend the Council refund any care fees the family have paid and/or write off any outstanding care fees.
66. I also recommend the Council provide advice to the hospital that not everyone is entitled to six weeks free enablement care following discharge and this is only something the Council can decide after an assessment of needs.
67. I recommended the Council provide guidance or training to its care provider that carried out the assessment in the hospital. However, it no longer uses this provider, so I have removed this recommendation.
68. The Council does not agree with the findings of fault in respect of the initial assessment and mental capacity assessment. It considers the initial assessment was proportionate to enable a timely discharge, prior to a full home-based assessment. It considers there is no evidence Mr B’s capacity around charging and his care and support needs was in doubt. However, it has agreed to recommendations set out at Paragraph 69.

Agreed action

69. The Council has agreed to, within a month of this decision:
• Apologise to Mrs B for not involving the family in the assessment.
• Refund any care fees the family has paid and/or write off any outstanding care fees to be paid.
• Provide evidence it has given advice to the hospital that not everyone is entitled to six weeks free enablement care following discharge and this is only something the Council can decide after an assessment of needs.

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Final decision

70. I have found the Council at fault in the way it carried out an initial assessment of Mr C’s needs, communicated with his family and considered his mental capacity.

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Investigator's decision on behalf of the Ombudsman