Summary: Mr B complained that the Council allowed his father to make his own decision about his living and care arrangements despite the fact he was suffering from dementia. He says it failed to provide adequate information about the cost of the care package and failed to consult him. It also delayed in providing information. We found the Council was at fault in that it failed to provide an estimate of costs at the outset and delayed in issuing invoices causing uncertainty. In recognition of this the Council has agreed to apologise and make a payment to Mr B.

The complaint

1. Mr B complains that the Council:
• allowed his father, Mr C, to make his own decision about his living and care arrangements despite the fact he was suffering from dementia;
• failed to give Mr C adequate information about the cost implications of remaining at home with 24/7 care. He says the costs were excessive and Mr C could not afford to maintain them;
• failed to consult him despite the fact he was managing his father’s finances;
• delayed in issuing invoices in respect of Mr C’s domiciliary care; and
• delayed in notifying him of Mr C’s contribution towards the costs of his residential placement which began in March 2020.
2. Mr B says the Council’s failings have caused distress and financial loss.

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The Ombudsman’s role and powers

3. 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)
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 have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Mental Capacity Act

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act and the Code of Practice 2007 describe the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this and how to make a decision on behalf of somebody who cannot do so themselves.

Mental capacity assessment

8. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
9. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
10. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
11. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
12. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the court of protection might need to decide if a person has capacity to make the decision.

Best interest decision making

13. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
14. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
15. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.

The costs of care and support

16. 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.
17. The Government has issued ‘Care and support statutory guidance’ (‘the Guidance’) on using the Care Act 2014. The Guidance says 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.
18. The guidance 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.

Key facts

19. Mr C, who is elderly, was diagnosed with dementia and Parkinson’s disease in 2018. He was living with his son, Mr B, who was his main carer.
20. In February 2019 Mr C was admitted to hospital following a fall. A safeguarding alert was raised about Mr B’s ability to care for his father. Mr B was currently in hospital himself because of a relapse in his mental illness. He said he was finding it difficult to meet his father’s care needs because of his own physical and mental health conditions. He accepted he needed the support of a carer and it was agreed that, when Mr C was discharged from hospital, he would have a live-in carer.
21. After Mr B returned home he contacted an agency to provide care for Mr C. On 8 March 2019 Mr B spoke to Mr C’s social worker saying he believed Mr C should be discharged home with a care package because it was too early for him to go into a care home. He said he was thinking of engaging an overnight carer and asked whether it would be cheaper for Mr C to remain at home with a care package or move to a care home. The social worker advised him to obtain a quotation from the agency.
22. On 13 March 2019 the social worker completed an assessment. Mr C and Mr B disclosed that Mr C had savings over the threshold of £23,250 to privately fund his night and daytime package of care and Mr B agreed to engage a live-in carer for Mr C seven days a week.
23. In late April 2019 Mr B was admitted to hospital. A multi-disciplinary meeting was held on 30 May 2019 and professionals agreed a second carer would join the current live-in a carer when Mr B was released from hospital. It was also agreed that a social worker would visit to ascertain Mr C’s wishes and feelings about his current care and support plan and discuss with him a possible placement in residential care.
24. A social worker, Officer X, visited to complete an assessment in June 2019. Both Mr B and Mr C were present. She completed a report which noted that Mr C had a privately funded care package consisting of 24/7 live-in care and that he had mental capacity and was able to engage fully in conversation during the visit. Mr C wanted to remain living in his home for as long as possible. He did not want to move to a care home and was happy with the live-in carers. Officer X noted Mr C had insight into his situation and was able to make decisions around his care, accommodation and support needs. The report concluded that Mr C needed paid care and support and a respite placement to meet his needs and provide a break for Mr B.
25. Mr B was admitted to hospital again in early July 2019. On 15 July 2019 Officer X visited Mr C at home to discuss the fact that his care provider had given notice to quit by 19 July 2019. She also discussed respite with him and he agreed to trial this once Mr B returned home.
26. Officer X sourced an alternative care provider to provide 24/7 live-in care which started on 19 July 2019.
27. In July 2019 there was a further multi-disciplinary team meeting. There were concerns that Mr B was struggling to cope with Mr C’s care because of his own ill-health. Officer X advised that Mr B was managing Mr C’s finances and was concerned about the cost of 24/7 live-in care and that Mr C’s savings would soon run out. It was agreed Officer X would meet with Mr C and Mr B to discuss finances.
28. Officer X and her manager visited Mr C and Mr B at home. They agreed to refer Mr C to a financial adviser at Age UK. Officer X sent an email to the financial adviser confirming that, although Mr C had been diagnosed with early onset dementia, he had mental capacity at that time.
29. In September 2019 weekend daytime care was removed at Mr B’s request and it was agreed he would care for his father during this time. Mr C therefore had a live-in carer 24 hours Monday to Friday and waking nights on Saturday and Sunday with Mr B providing care during the day. The Council sent Mr C a financial assessment form to complete.
30. On 15 October 2019 a financial assessment officer wrote to Mr C about the completed financial assessment form. The officer confirmed Mr C had agreed to pay the full cost of his care. The letter explained he did not need to make a payment until he received an invoice.
31. In mid November 2019 Saturday and Sunday daytime care calls were reinstated.
32. Mr B obtained power of attorney in respect of his father’s finances.
33. In December 2019 a multi-disciplinary team meeting was held. The notes of the meeting state that Mr C wished to remain at home with his son so it was important for the 24-hour care to continue. It was agreed social services would check whether there were any issues with finances so care could remain in place for the foreseeable future.
34. On 4 January 2020 Mr B sent an email to Officer X saying the care costs were extortionate and the family considered Mr C should move to a care home. He said finances were stretched to the point where the house was at risk.
35. Officer X telephoned Mr B to discuss the email. Mr B said he had discussed the matter with Mr C and tried to explain the finances to him but Mr C had not responded. He said Mr C wanted to remain at home and, although he wanted this too, paying for live-in care was becoming unsustainable. Officer X agreed to visit the following day to ascertain Mr C’s wishes and feelings about moving into a residential placement. Officer X followed up the telephone conversation with an email saying she would support Mr B with placing his father in a care home provided Mr C agreed.
36. The following day Officer X visited Mr B and Mr C. Officer X’s notes of the meeting state that Mr C had capacity at the time and was able to engage fully in conversation with her during the visit. The notes state they discussed Mr C trialling a respite placement with a view to permanent placement as his funds had reduced below the maximum financial threshold and he had 24/7 live-in care costing approximately £10,000 per month. Officer X and Mr B also explained to Mr C that, if he moved to a residential placement, this would provide some respite for Mr B. Mr C said he was not willing to move into a care home and wanted to remain at home.
37. Officer X said it was not certain if Mr C understood about the finances. She and Mr B agreed a mental capacity assessment would be completed to ascertain Mr C’s understanding of the decision that needed to be made and the family would discuss the advantages and disadvantages of a placement with him to ensure a decision was made in his best interest. Officer X explained to Mr B that the Council would contribute financially towards Mr C’s care and support needs but this would need to be in a 24/7 care establishment sourced by the Council at the agreed rate. The notes of the discussion state Mr B was made aware of the charging policy and financial assessment process.
38. On 15 January 2020 Officer X telephoned Mr B and suggested holding a best interests meeting to determine whether Mr C had insight into his financial situation. Officer X’s notes of the conversation state that Mr B said he would respect his father’s wishes and put on hold the option of residential care. Officer X suggested reducing the package of care to four calls a day plus waking night care. Mr B said he would prefer the package of care to remain as it was during weekdays but he was happy to look after his father during the daytime on Saturdays and Sundays. He said a buyer had been found for a flat jointly owned by him and Mr C which would release further funds but the sale was unlikely to complete until April 2020.
39. On 9 March 2020 Officer X completed a mental capacity assessment. She found Mr C did not have capacity to decide how his care and support needs should be met. A best interests meeting was then held to consider Mr C’s wishes regarding a move into a permanent placement or remaining at home with 24-hour live in care. Mr B and other family members attended the meeting. It was agreed that it was in Mr C’s best interests to move to a permanent residential dementia placement. Mr C moved into the placement at the end of March 2020.

Analysis

Allowed Mr C to decide on his living and care arrangements

40. Mr B says the Council should not have allowed Mr C to decide about his care and living arrangements because he was suffering from dementia. He says that, in July 2019, he expressed a desire for his father to move to a residential care home to stretch out his finances but was overruled by professionals who said it was Mr C’s choice. He says the Council should have taken account of his views as Mr C’s next of kin.
41. In June 2019 Officer X assessed Mr C as having capacity to decide where he wanted to live and the level of care he needed. She discussed the situation with him and he was clear he wanted to remain at home with 24/7 care. As Mr C had capacity and was self funding, the Council had to comply with his wishes. There are no grounds to criticise this. A person is presumed to have mental capacity and should not be treated as unable to make a decision because he makes an unwise decision.
42. Officer X remained of the view that Mr C had capacity until January 2020 when she and Mr B discussed the possibility of a residential placement with Mr C. They explained the financial situation and the pressure being placed on Mr B, but Mr C was adamant he wanted to remain at home. Officer X was uncertain whether Mr C understood and suggested a best interest meeting “to determine if [Mr C] had insight into his financial situation”.
43. I am satisfied that when Officer X became concerned that Mr C no longer had capacity, she suggested a best interests meeting. But Mr B said he would respect his father’s wishes and put the option of residential care on hold. By this time, Mr B had power of attorney in respect of Mr C’s finances.
44. When the Council decided in March 2020 that Mr C no longer had capacity to decide on his care and accommodation, it made a decision in his best interests.

Failure to give Mr C adequate information about the cost implications of remaining at home with 24/7 care

45. Mr B says that from July to November 2019 he and Mr C were unaware of the costs of Mr C’s care because the Council did not provide estimates upfront. As a result, they could not make informed choices about Mr C’s care. Mr B says if this information had been given sooner, Mr C could have moved into a care home sooner.
46. I am satisfied Officer X discussed finances with Mr B and Mr C and referred Mr C to a financial adviser. The assessment report dated 15 July 2019 shows Officer X gave Mr B a financial assessment form for completion. The report noted Mr C was a self funder and would be paying for the package of care which would be commissioned by the Council. However, the social worker should have discussed the increase in care costs with Mr C and Mr B when setting up the replacement care package in July 2019. The new package included night-time care and was considerably more expensive. The Care Act requires the Council to provide clear information about how service users’ finances will be affected by social care. But the Council has provided no evidence that it gave Mr C and Mr B an estimate of the costs. Mr B arranged the initial package of care in March 2019 and so should have had some idea of the likely costs of the replacement care package commissioned by the Council. But the additional costs should have been made clear to him and Mr C. Failure to do this was fault.
47. Mr B says that when he asked who would pick up the care bill when Mr C’s money ran out, he was advised the Council would do so. But in December 2019 Officer X told him the Council would not pay for 24/7 domiciliary care but only for a residential placement.
48. I find no grounds to criticise the Council for only agreeing to fund a residential placement. It has a duty to meet Mr C’s eligible care needs but must also obtain the best value for money when using public funds. Provided the Council was satisfied a residential home would meet Mr C’s assessed needs, there are no grounds to criticise its decision.

Failure to consult Mr B

49. Mr B says the Council failed to consult him even though he was managing his father’s finances.
50. I find the Council did consult Mr B even though it was not obliged to do so while Mr C had mental capacity. Although he was managing Mr C’s finances, Mr B did not have lasting power of attorney until November 2019. Officer X met with Mr B and Mr C in June 2019 to complete an assessment of Mr C’s care needs and how these would be met. Finances were discussed at that meeting. However, as Mr C had capacity, it was ultimately his decision as to how his care and support needs would be met.

Delay in issuing invoices

51. Mr B says the Council delayed in issuing invoices. For example, he says the invoice for the period 15-21 July 2019 was not issued until 12 November 2019.
52. The Council says it previously ran three months behind with billing to allow providers to submit the billing data to the relevant team and allow sufficient time for the team to verify and reconcile the data. This was standard billing practice for the period in question. The Council says it issued invoices for care received in July 2019 in October 2019 and so forth.
53. I find a three-month delay in issuing invoices is too long even if that was the Council’s established billing practice at the time. The Council is now moving to a new system which will allow it to bill for services four weeks after they have been delivered. This should prevent problems in future.

Delay in notifying Mr B of Mr C’s contribution towards the cost of his residential placement

54. Mr C’s residential placement began on 27 March 2020 but the Council did not send a letter confirming his contribution towards the cost of his care until 14 July 2020. Mr B says that, because of this, he was unaware of the amount Mr C had to pay for over three months.
55. The Council has explained that the completed financial assessment form was received in May 2020. It then requested further information which was received in June 2020. It was then able to issue the financial assessment letter in July.
56. I find no fault on the Council’s part. It could not complete the financial assessment and issue a decision letter until it had received all the necessary information from Mr B.

Conclusions

57. I find the Council was at fault in that it failed to provide Mr C and Mr B with an estimate of the care costs in July 2019 and delayed in issuing invoices.
58. However, I do not consider that, but for these failings, the outcome is likely to have been any different. In July 2019 Mr C was adamant he wanted to remain at home and could have decided to do so regardless of the cost. He had capacity to make this decision. Mr B received the first invoice in November 2019 but did not raise concerns about the amount until January 2020. Officer X proposed ways to reduce the costs including a reduction in the package of care or a residential placement. But her notes of the conversation with Mr B show he said he would respect his father’s wishes and put residential care on hold. He also said he would prefer the care package to remain as it was on weekdays although he would be happy to look after Mr C during the day at weekends. So, Mr B allowed Mr C to remain living at home in full knowledge of the costs.
59. Mr B will, however, always have the uncertainty of not knowing whether the outcome could have been different and this causes him a significant injustice.

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Agreed action

60. In recognition of the uncertainty caused by its failings, the Council has agreed that:
• within one month of this decision, it will apologise to Mr B and pay him £500; and
• within three months it will review its procedures to ensure that, in future, adequate information on costs is given to service users at the outset.

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Final decision

61. I find the Council was at fault in that it failed to provide an estimate of costs in July 2019 and delayed in issuing invoices.
62. I do not uphold the remainder of Mr B’s complaints.
63. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman