Summary: Mr Z and Mrs Y complain about the way the Council dealt with assessment and charging for their late father’s residential care. We have upheld parts of the complaint. The Council accepts our recommendations for service improvements and a symbolic payment to the complainants. We have therefore completed our investigation.

The complaint

1. The complainants, whom I shall call Mr Z and Mrs Y, complain about the way the Council dealt with assessment and charging for their late father, Mr X’s, residential care. They complain the Council:
• delayed assessing and identifying Mr X’s care needs from the point he was admitted to hospital in July 2017;
• incorrectly required Mr X to live in a residential care home against his will;
• made a flawed application for extra care accommodation;
• charged incorrect residential care fees and refused to cancel certain invoices; and
• delayed dealing with their complaints and provided incomplete responses.
2. They say that as a result:
• Mr X was deprived of his liberty for about six months without the safeguards being in place to check this was appropriate and the least restrictive option for him;
• the last 18 months of Mr X’s life were traumatic for him and his family because he was in constant distress and felt he was a prisoner;
• Mr X/his estate lost out financially because he had to contribute to care home fees as well as paying for costs associated with his tenancy; and
• Mr Z and Mrs Y have been put to avoidable time, trouble and distress in trying to resolve the disputes around their father’s accommodation and finances.
3. Their desired outcomes are:
• apologies and answers to their outstanding questions;
• a financial remedy including the cancellation of outstanding invoices and a payment to reflect their time, trouble and distress; and
• service improvements to prevent similar problems affecting others.
4. Mr Z and Mrs Y also complained the Council’s recording of some information was incorrect. I will explain at the end of this statement why I have not investigated this part of the complaint.

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What I have investigated

5. I have investigated the complaint as set out in points 1-3 above.

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The Ombudsman’s role and powers

6. 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. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, sections 24A(6), 26(1) and 26A(1), as amended)

7. 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)
8. 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.
9. 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)
10. 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)
11. Mr Z and Mrs Y’s were aware of everything they complain about, other than the Council’s complaint handling, for more than 12 months before complaining to the Ombudsman. They have provided good reasons for not complaining to us sooner, so I have decided to investigate their late complaints.
12. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
13. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

14. I have considered information Mr Z, Mrs Y and the Council have provided in writing and by telephone. I have also considered relevant law and Government guidance.
15. The Council, the care provider, Mrs Y and Mr Z have had an opportunity to consider and comment on a draft version of this decision. I have considered their comments on the draft before reaching a final decision.

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What I found

Background summary

16. In 2017, Mr X was living in rented sheltered accommodation. Sheltered accommodation is housing with support. It allows people to live independently with a little extra support, including staff who are on call to provide emergency help, communal areas and social activities.
17. Mrs Y and Mr Z say that:
• by July 2017, Mr X was becoming forgetful. Following a fall, he was admitted to hospital near his home on 1 August 2017;
• while Mr X was in hospital, the Council told them he had to go into a care home for a six-week assessment of his care needs;
• on 10 August 2017, Mr X was discharged to Leatherland Lodge (the Home), a care home run by Runwood Homes Limited. This was near the area where
  Mrs Y and Mr Z live so they could be involved;
• the Council took between August 2017 and March 2018 (about 30 weeks) to assess Mr X’s care needs. During this time, he was a temporary resident at the care home and could not give up his sheltered accommodation tenancy. This meant he incurred extra costs;
• Mr X did not want to live in the care home, but the Council insisted he stayed there despite not having a Deprivation of Liberty Safeguards (DoLS) authorisation in place; and
• Mr X went into hospital in February 2019 and died there soon afterwards, without returning to the care home.

A – Delay in assessing and identifying Mr X’s care needs; requiring Mr X to live in residential care against his will

What should happen

18. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for an adult with an appearance of need for care and support. The Council must carry out an assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell the person when their assessment will happen and keep them informed throughout the assessment.
19. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. Everyone whose needs the Council meets must receive a personal budget as part of their care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
20. The Mental Capacity Act 2005 (MCA) is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The MCA and the Code of Practice 2007 describe the steps a person should take when dealing with someone who may lack the capacity to make decisions for themselves. A person must be presumed to have capacity to make a decision, even an unwise one, unless it is established they lack capacity. However, when their capacity is in doubt, the Council must assess their capacity to make a decision. More complex decisions are likely to need more formal assessments. If there is a conflict about whether a person lacks capacity to make a decision, and all efforts to resolve this have failed, the court of protection might need to decide whether the person has capacity to make the decision.
21. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards 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. 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 to follow to get authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. The Government issued a DoLS Code of Practice in 2008 as statutory guidance on how DoLS should be applied in practice.
22. The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
23. Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme in the MCA 2005.
24. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
25. 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 there is an urgent authorisation, before the urgent authorisation expires.

What happened in July 2017, before Mr X went into hospital

26. In July 2017, the Police referred Mr X to the Council’s adult care services after finding him in a confused state and taking him home. The Council assessed
    Mr X’s needs by speaking with Mr X and Mrs Y and taking account of information provided by the Police. Having done so, the Council decided not to take further action.
27. There was no fault in the way the Council assessed Mr X in July 2017. This is because the Council:
• took account of information provided by Mr X, his daughter - Ms D- and the Police; and
• reached a reasoned conclusion that Mr X could make his own decisions and did not want its help at the time.

What happened in August 2017, while Mr X was in hospital

28. The Council’s records show that while Mr X was in hospital in early August 2017:
• all three of Mr X’s children wanted him to return to his own home with support from carers. They considered he was too active to live in a care home and would be unhappy there;
• a dementia nurse suspected Mr X had underlying dementia but this would need further investigation for a formal diagnosis; and
• a social worker told Mr Z and Mrs Y that Mr X could not be discharged to his own home “due to risks around his and others’ safety”. Health and social care workers agreed on this.
29. The Council assessed Mr X’s social care needs and completed a care plan while Mr X was in hospital in August 2017. The Council considered Mr X needed 24-hour supervision to be safe. It made a plan for him to be discharged to a care home where he would stay until 21 September 2017. This was for “assessment to determine what support he will need in the future including seeing if he can return home”. The documents the Council has shown us do not include a personal budget. I have seen no evidence the Council shared these documents with Mr X, Mrs Y or Mr Z. The lack of personal budget and the failure to share these documents with Mr X, Mrs Y and Mr Z were faults. As a result, Mr X and his children did not receive all the information they needed to make informed decisions about his care.
30. The Council did not assess Mr X’s mental capacity to decide where he wanted to live and what care and support he wanted before he moved from the hospital to the Home. This was despite considering Mr X was so confused and had so little insight that he was not safe without 24-hour supervision, and that decisions needed to be made for him in his best interests. This was fault.
31. We cannot now know what the outcome of a mental capacity assessment would have been. However, whether or not Mr X had capacity, the lack of a formal assessment and decision caused him and his children an injustice. I say this for the following reasons.
• Had Mr X lacked capacity, the Council should have ensured there was a DoLS authorisation in place for his stay at the Home, which he was not free to leave without supervision. It is a significant injustice for a person who lacks capacity to decide where to live, to be deprived of the important legal safeguards of the DoLS process. The safeguards are there to ensure that a placement is in a person’s best interest and there are no less restrictive options available.
• If Mr X did have capacity at the time, then he should not have been placed in residential care against his will. The DoLS code of practice says it is unlawful to deprive an individual of liberty without authorisation.
32. Mr Z and Mrs Y’s injustice is avoidable distress resulting from:
• the decision to place their father in residential care without first assessing his mental capacity to make the specific decision and without having the reassurance that the proper legal safeguards were in place to ensure this really was in his best interest and the least restrictive option for him; and
• witnessing Mr X’s distress about this.

What happened August 2017 – April 2018, after Mr X left hospital

33. Mr X moved to the Home on 10 August 2017. On that day, the Home considered Mr X had capacity to make his own decisions at that time. However:
• the exit from the Home was locked and Mr X was not allowed to leave the Home without supervision; and
• the mental capacity assessment completed by the Home was flawed. It did not specify which decision(s) the assessment related to or say how the assessor assessed Mr X’s capacity. Some sections of the assessment form also indicate Mr X lacked capacity, so it is unclear how the Home concluded that he had capacity to make his own decisions.
34. As explained above, the Council failed to assess whether Mr X had the capacity to make a complex decision such as where to live. The available evidence indicates that Mr X had the capacity to make simpler day-to-day choices such as selecting food.
35. If Mr X did have capacity to decide about going out at the time, he should not have been prevented from doing so unsupervised. If the Home had concerns about Mr X’s capacity to go out on his own, it should have formally assessed his capacity relating to that decision and requested a DoLS authorisation if the assessment showed Mr X lacked capacity. Failure to do so was contrary to the MCA and the following Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: 9 (person-centred care) and 11 (need for consent); and therefore fault.
36. Social care records show the Council was aware from 1 September 2017 that
    Mr X did not wish to stay at the care home but was not free to leave. At this point the Council should have:
• assessed Mr X’s capacity to decide on his accommodation and properly recorded that assessment;
• if it considered that the arrangements were in Mr X’s best interests and the least restrictive option, recorded that decision formally;
• considered whether the arrangements at the Home amounted to a deprivation of liberty; and
• if so, ensured there was a valid DoLS authorisation in place or, if Mrs Y and
  Mr Z disagreed, made an application to the court of protection to resolve the situation.
37. The Council did not do this at the time. This was fault.
38. Mr X’s initial stay at the Home was planned until 21 September 2017. His daughter, Ms D, agreed he could live with her after 21 September 2017 and until the outcome of the housing application was known. Mr X therefore moved in with Ms D on 21 September 2017. There is no evidence the Council reviewed Mr X’s care and support plan or reassessed his needs before 21 September 2017 to take into account his move to Ms D’s. There is also no record of the Council offering Ms D a carer’s assessment. The move from residential care to a relative’s home was a significant change in Mr X’s circumstances. It was fault not to review Mr X’s care and support needs or offer Ms D a carer’s assessment before the move.
39. The arrangement with Ms D broke down after a few days because family members were unable to manage Mr X’s challenging behaviour. Mr X returned to the Home and stayed there, initially as a temporary and later a permanent resident.
40. In total, the Council says it has carried out the following while Mr X was at the Home between September 2017 and April 2018:
• two assessments of Mr X’s care needs;
• eight care plans; and
• five care plan reviews.
41. I have read the records of these assessments, care plans and reviews. They are person-centred in that they take into account Mr X’s views where he could express them, as well as the views of his family and professionals involved in his care. However, I have seen no evidence the Council shared any assessment, care plan or review documents with Mr X or his children until February 2018. Mr Z and Mrs Y say they did not receive any such documents until March 2018. For the period I am investigating, the Council only shared two out of a possible 20 assessment, care plan or review documents with Mr Z and Mrs Y. None of the documents the Council has told us were care plans included Mr X’s personal budget. This was contrary to the Care Act and associated guidance, and therefore fault.
42. Mr X was very keen on living independently and two of his children wanted him to live independently. An Independent Mental Capacity Advocate (IMCA) appointed to Mr X in November 2017 also considered that, depending on the outcome of an Occupational Therapy (OT) assessment and the availability of other suitable accommodation, staying in the Home may not be in Mr X’s best interests. The other professionals involved in Mr X’s care and Ms D considered he would not be safe unless he stayed in residential care. The Council’s records indicate that, because of the differing views, before deciding what Mr X’s long-term care needs were the Council:
• initially (September 2017) waited for the outcome of a housing application
  Mr X’s family were going to help Mr X make; and
• later (October-December 2017) waited for the outcome of an extra care housing application the Council made on Mr X’s behalf. This application was unsuccessful.
43. It is clear the Council wanted to find a solution which was safe for Mr X as well as being acceptable to Mr X and his family, and that this took time. However, there is no evidence the Council assessed Mr X’s mental capacity to decide where to live or considered whether Mr X was being deprived of his liberty at the Home until 6 November 2017. This was more than two months after he first moved there. Despite a recommendation for an OT assessment in November 2017, the Council did not organise one until March 2018. These delays amount to fault because they were avoidable and significant.
44. The Council received the Home’s request for a DoLS authorisation on 7 November 2017. It should have completed the necessary DoLS assessments and issued a decision within three weeks, but it did not do so until 8 March 2018. This was a delay of about 14 weeks. The delay was contrary to the DoLS code of practice and therefore fault.
45. As a result of the Council’s and Home’s delays in considering mental capacity and DoLS, Mr X and his family continued to miss out on receiving information they were entitled to. Mr X also continued to lose out on the important protections he was entitled to under the MCA and the DoLS process. As a result of the Council’s delay in organising an OT assessment, the Council and Mr X’s family did not have a definitive professional view about the risks to Mr X when going out on his own, or when making hot drinks and food. I consider that the Council’s delays in assessing Mr X’s mental capacity and in organising an OT assessment are the main reasons for the delay in a decision on Mr X’s long-term care needs and where he should live. Had the Council properly considered mental capacity, DoLS and hazards to Mr X when he moved into the Home or soon after, it is more likely than not that:
• it would have concluded earlier than 6 November 2017 that Mr X did not have the capacity to decide on where he should live or what care and support he should have;
• it would have concluded earlier that a DoLS authorisation was necessary for
  Mr X to be lawfully deprived of his liberty at the Home;
• it would have had a clear assessment of the risks should Mr X try certain activities earlier than March 2018;
• it would have concluded earlier that remaining at the Home was in Mr X’s best interest; and
• any disagreements with Mr X, Mr Z and Mrs Y about Mr X’s long-term residence and care could have been resolved locally or referred to the Court of Protection earlier.
46. The Council has agreed to remedy Mr Z and Mrs Y’s injustice and implement service improvements to the problems identified in Section A of this decision statement affecting others. The agreed actions are set out at the end of this statement.
47. By 8 March 2018, the Council had carried out the appropriate DoLS assessment, OT assessment, and reviewed Mr X’s care and support needs. There was no fault in the way the Council carried these out. The Council, Ms D and the professionals involved in Mr X’s care considered it was in Mr X’s best interest to remain at the Home. However, the Council could not authorise the deprivation of liberty because Mr Z and Mrs Y, who held power of attorney for Mr X’s health and welfare, disagreed. The Council therefore issued a notice refusing a DoLS authorisation.
48. At this point, the Council needed to resolve the disagreement with Mrs Y and Mr Z urgently, or escalate the matter to the Court of Protection. The Council organised a best interest meeting on 14 March 2018. Mr Z and Mrs Y attended the meeting and stopped opposing the deprivation of liberty on 19 March 2018. The Council granted a DoLS authorisation on 29 March 2018. In April, Mr Z and Mrs Y met the Home’s manager and the Council completed another review of Mr X’s care plan after this meeting. The Council then made Mr X’s place at the Home permanent from 1 May 2018.
49. The Council acted promptly and in accordance with relevant law and guidance between 8 March and 1 May 2018.

B – Application for extra care accommodation

50. Extra care housing offers more support than sheltered housing but still allows people to live independently. The support is usually tailored to the person and can involve domestic help and personal care. Where councils provide this type of housing, it is usually only available following a care needs assessment.
51. Mr Z and Mrs Y considered that Mr X was overly restricted in the residential care home and wanted him to move to extra care housing near where they lived. This was run by a different council (Council B). Mr Z and Mrs Y asked the Council to apply for a place for Mr X in Council B’s extra care housing. The Council made this application in December 2017. Mr and Mrs Z consider the application was flawed because it did not do enough to support Mr X’s move to extra care housing. I have found no fault in the application the Council submitted to Council B. This is because the application:
• answers the questions on the application form in detail, in a way that reflects recent assessments;
• sets out Mr X’s views as understood by the social worker and his IMCA; and
• gives the views of Mr X’s family and professionals working with him.
52. A housing officer from Council B presented the application to a panel in January 2018. Council B’s panel rejected the application. There was no fault by Essex County Council as it was not involved in the presentation or the panel.

C – Residential care fees and invoices

What should happen

53. Section 4 of the Care Act 2014 says the Council must have a service for providing people in its area with information and advice about adult care services. It says the information and advice provided must be accessible. The information must also be:
• enough for people to identify how their finances could be affected by social care; and
• enough for people to make plans for meeting care needs.
54. The Government has issued ‘Care and support statutory guidance’ (CSSG) on using the Care Act 2014. CSSG says that councils should:
• ensure information supplied is clear. This means it is understood and able to be acted upon by the people receiving it;
• take all reasonable efforts to provide comprehensive information and advice at an early stage; and
• signpost people to independent financial information and advice.
55. CSSG also says councils must provide information
• “to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances”;
• that includes “the charging framework for care and support, how contributions are calculated…top-ups…and how care and support choices may affect costs”;
• to support people to make informed, affordable and sustainable financial decisions about care.
56. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014” (the 2014 Regulations), and CSSG. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
57. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. The Council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
58. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. When the Council arranges a temporary care home placement, it has to follow the rules in the 2014 Regulations and CSSG when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay. The Council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community (using the non-residential rules for charging).
59. A “short-term resident” is a person who gets accommodation in a care home under the Care Act 2014 for a period not exceeding 8 weeks. The 2014 Regulations permit the Council to financially assess and charge a short-term resident as if they were receiving care in the community.

What happened

60. Mr Z and Mrs Y say that:
• they were advised that their father could not surrender his tenancy until he became a permanent resident in a care home, and that doing so sooner would mean he would be considered ‘intentionally homeless’;
• they had no formal power to handle Mr X’s finances on his behalf until January 2018; and
• Mr X’s bank account was telephone based and they needed witnessed original documents before they could access it.
61. There is no evidence the Council gave Mr X, Mrs Y or Mr Z clear information about how the adult social care system and charging for it works, or signposted them to independent financial advice. This was fault. As a result, Mr X and his children did not get all the information they needed to make informed decisions about his care.
62. There is also no evidence the Council either involved Mr X in its initial assessment of his finances in August 2017, or assessed his mental capacity to participate in this. The Council carried out that assessment by telephone with
    Mrs Y without involvement from Mr X, despite Mrs Y not having formal authority to act on Mr X’s behalf at that time. This was fault. Mrs Y did not have full access to Mr X’s financial information at the time. While I have no doubt Mrs Y provided information in good faith and to the best of her knowledge, that information was limited at the time. As a result, the financial assessment did not take into account all the expenses Mr X was still incurring in his flat. This in turn increased the amount he was expected to contribute to his residential care.
63. As set out in section A above, I also consider that the Council acted with fault around considering Mr X’s mental capacity to decide where to live, DoLS and organising an OT assessment, leading to a delay in determining Mr X’s long term care needs and where he should live.
64. However, this does not mean that Mr X should not have contributed anything for the care he received at the Home during the period of delay. Mr X still received a room at the Home, housekeeping services, all his food and drink, activities, and support from carers. I also consider that, if the Council had acted without fault, it is likely that Mr X would have remained at the Home receiving similar facilities and care, but his place there would have been permanent earlier.
65. The information I have seen indicates that Mr X’s weekly contributions for the Home as a permanent resident would have been about £84 a week more than the weekly amount he actually paid as a temporary resident. So, Mr X did not lose out financially due to a delay in becoming a permanent resident.
66. Therefore, there are no grounds for the Ombudsman to recommend that the Council cancels the charge for Mr X’s care contributions between 20 October 2017 and 30 April 2018.
67. I have also asked the Council to re-assess Mr X’s care contributions taking into account the following:
• that the Council can charge temporary residents either under the rules for temporary residential charging or under the non-residential rules for charging;
• that Mr X could have been considered a short-term resident for his initial six week stay at the Home; and
• a list Mrs Y and Mr Z have provided showing the additional expenses Mr X had while maintaining his old tenancy before his place at the Home became permanent.
68. The Council has now done this. It has:
• made the first six weeks exempt from charges; and
• included Mr X’s extra expenses in its calculations for the period 22 September 2017 to the end of June 2018, when Mr X’s tenancy ended.
69. This has reduced Mr X’s care bill by about £1,800.
70. I consider that the Council has now taken the appropriate action to rectify Mr X's care charges. I have found no grounds for the Council to issue any refunds or cancel the amended care bill. The Council has agreed to take steps to prevent similar problems affecting others. The details are at the end of this statement.

D – Delay in dealing with complaints and incomplete responses

71. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 [Complaints Regulations] say that
• the Council must acknowledge an adult social care complaint within three working days after the day it receives it;
• offer to discuss with the complainant and then confirm the period within which it will investigate and respond to the complaint;
• investigate the complaint appropriately to resolve it quickly and efficiently; and
• send the complainant a written response which includes details of how the complainant can complain to the Ombudsman.
72. The law does not specify a timescale within which the Council must issue a response. We would expect the Council to do so without avoidable delay and within the time set by any local policy.
73. On 15 January 2018, Mr Z and Mrs Y emailed a local councillor asking for help in resolving issues around Mr X’s care. They said they were having disagreements with social workers and asked the councillor to ensure the social worker appealed the decision to refuse the extra care application. They also wanted the councillor to ensure the social worker found suitable alternatives to residential care. The councillor acknowledged their email the same day and said he would need to get a report into the background of Mr X’s case before responding fully. On 25 January 2018, the councillor wrote to them to say it would be more appropriate to consider the matters they raise through the statutory complaints procedure and a manager will respond to them by 12 February 2018.
74. A social care services team manager replied to Mr Z and Mrs Y’s concerns on
    6 April 2018. The manager advised them to contact the complaints team if they did not feel that this letter addressed all their concerns. I consider the Council took too long to send Mr Z and Mrs Y the written response, which it said would be provided nearly two months earlier. The Council also said it would deal with the complaint under the statutory complaints procedure without consulting with Mr Z and Mrs Y about this. However, it did not follow that procedure because it did not include the Ombudsman’s details in the written response. However, this did not cause Mr Z and Mrs Y a significant injustice because:
• they did not want to make a formal complaint at that time; and
• between January and March, the Council took steps to resolve the dispute about Mr X’s care, which was Mr Z and Mrs Y’s main concern.
75. Mr Z and Mrs Y complained formally to the Council on 21 September 2018. In summary, their complaint was about:
• delay in care needs assessment and planning with financial consequences for Mr X;
• unlawfully keeping Mr X in residential care against his will; and
• flawed communication.
76. The Council replied on 11 October 2018. The Council responded to Mr Z and
    Mrs Y’s points and explained why it considered £7,882.51 was the correct figure for the outstanding care contributions. The letter told Mr Z and Mrs Y they could complain to the Ombudsman if they remained dissatisfied. There was no fault in the time the Council took to reply. The Council confirmed it had already issued an apology for the delay in resolving the DoLS authorisation. It also confirmed it was happy to consider Mr Z and Mrs Y’s disagreements with the financial assessment further but that this should not stop them paying his weekly contribution or beginning to repay his debt.
77. However, the Council’s response did not address the problems we have identified with Mr X’s assessments, or resolve the disagreement about care fees contribution.
78. Between October 2018 and August 2019, Mr Z and Mrs Y continued to correspond with the Council disputing their father’s care fees. The Council responded to them, maintaining that it considered it had assessed Mr X’s contributions correctly. It referred them to the Ombudsman again in November 2018 as well as February and June 2019.
79. The complainants have been challenging Mr X’s care charges since September 2018 and it has taken over two years and involvement from the Ombudsman to resolve this. I consider there were two main reasons for this:
• during its complaint investigation, the Council did not consider whether the first few weeks of Mr X’s residential care should be free or ask the complainants for any new information that might change the financial assessments;
• Mr Z and Mrs Y continued to dispute the fees with the Council even though the Council had referred them to the Ombudsman in late 2018.
80. The complainants experienced significant frustration and time and trouble while complaining to the Council, but that this was the result of both their actions and the Council’s. Therefore, I do not consider it is appropriate to recommend that the Council pays a financial remedy for the complainants time, trouble and frustration.
81. The Council has agreed to apologise for the faults I have identified and to make service improvements to prevent similar problems happening to others. I consider this a fair remedy for this part of the complaint.

Agreed action

82. To remedy the injustice Mr Z and Mrs Y experienced as a result of the faults we have identified above, the Council will within a month of our final decision:
• write to them acknowledging the faults and apologising for the impact on them;
• pay them a symbolic sum of £150 each in recognition of their avoidable distress caused by the flaws in assessing Mr X’s needs and mental capacity, and dealing with DoLS.
83. Many of the faults I have identified happened a long time ago, in 2017-2018. Since then, the Council has changed how its adult social care service deals with hospital discharges. The law around DoLS is also changing, although the current arrangements are likely to remain in place until 2022. So, the Council may already have taken steps which will stop similar problems recurring. To help ensure this is the case, the Council has agreed to review some of its current services and rectify any problems it finds. Within three months of our final decision, the Council will review:
• its processes for providing information to citizens about adult social care, including financial information, to check whether the processes comply with the Care Act 2014 and associated guidance;
• the standard information it gives to the public about adult social care, including financial information, to check whether the content complies with the Care Act 2014 and associated guidance;
• current care plan forms and how it shares these, to ensure the content of the forms and the way they are shared complies with the Care Act 2014 and associated guidance;
• whether relevant staff have enough training in the MCA, DoLS and the statutory adult social care complaints procedure; and
• whether its current financial assessment and charging policy and procedure comply with relevant Regulations and CSSG, including any guidance on discretion.
84. Where the reviews identify problems, the Council will within four months of our final decision produce an action plan to rectify them by 30 June 2021 and inform relevant staff and other stakeholders about any changes.
85. The Council will send the Ombudsman evidence of the reviews, any action plans, and that the actions from those plans have been completed.

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Final decision

86. Mr Z and Mrs Y complain about the way the Council dealt with assessing and charging for their late father’s residential care. We uphold parts of the complaint. The Council has accepted our recommendations, so we have completed our investigation.

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Parts of the complaint that I did not investigate

87. Mr Z and Mrs Y also complained that the Council’s recording of some information was incorrect. I did not investigate this part of the complaint. This is because, by the time Mr and Mrs Z complaint to the Ombudsman, the Council had already agreed to add to its files their comments setting out disagreements with records. An investigation by the Ombudsman would not achieve more for the complainants.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman