Summary: The Ombudsman will not investigate Mr B’s complaint about the care his late father, Mr C received or charging for the care. This is because Mr B’s complaint is late and there is no good reason for the Ombudsman to disapply the law to investigate it now.

The complaint

1. Mr B says his late father, Mr C, did not have the mental capacity to sign a financial assessment in November 2018 agreeing to pay for his care. Mr B says as Mr C’s attorney’s the Council should have included him or his brother in discussions about charging and believed Mr B was discharged from hospital to an intermediate or step-down care placement as he had done previously. Mr B says he wants access to Mr C’s care records. Mr B says Mr C had poor care whilst he was resident in the home and was discharged without proper medication or paperwork. Mr B says Mr C’s estate should not pay the £2256.00 the Council has invoiced for care it provided between 26 November and 24 December 2018 until a package of care was arranged for Mr C to return home.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered the information and documentation Mr B provided. I sent Mr B a copy of my draft decision and considered his comments on it.

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What I found

4. Mr B says the Council initially arranged a discharge from hospital meeting for Mr C without inviting family members or his attorneys. Mr B says it arranged a further meeting but neither he nor his brother could attend. Mr B says other family members attended and were advised at the end of the meeting Mr B would be discharged to an assessment bed awaiting a package of care to be arranged for his return home.
5. The Council says Mr B was discharged from hospital to a care home on 26 November 2018 as a short-term placement while a care package was being arranged. It explained previously the same year Mr C had been discharged either to an intermediate bed or assessment placement none of which required payment from the individual but on this occasion Mr C was discharged to a care home on a short term basis. The Council said this was discussed with Mr C who agreed and signed the financial form. The Council said the form was undated and will take this up with the worker in question, however, it confirmed case records show Mr C signed it on 26 November 2018. In addition, it says case records show it spoke to Mr B’s brother on 6 December 2018 when visiting Mr C and reminded him to return the financial assessment form. It says Mr B’s brother said he will speak to him.
6. Mr B says Mr C did not have capacity to sign the form and either he or his brother should have been included in discussions and arrangements for Mr C.
7. The Ombudsman will not investigate this late complaint. Mr B knew of the matters in 2018 and could have come to the Ombudsman sooner if he was concerned the Council were charging Mr C for care he believed should have been free.
8. Mr B says Mr C did not have capacity to decide he should pay for care and has not seen any capacity assessments. The Ombudsman could not say Mr C lacked capacity in 2018.
9. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that he lacks capacity. A person should not be treated as unable to make a decision:

• Because he makes an unwise decision.
• Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
• Before all practicable steps to help the person to do so have been taken without success.

10. Mr B says Mr C was returned home in a private ambulance on 24 December 2018 with a sore eye and feet, without paperwork and looking dishevelled. Mr B says he contacted the care home and asked for an explanation of what happened but did not receive a call back.
11. The Ombudsman will not investigate this late complaint. The matters complained of are more than 12 months old.
12. Mr B says he could not complain sooner because payment for Mr C’s care was deferred until after he died in February 2020 and his property was sold. It was only then the family were able to dispute the charges for care they believe should be free of charge. However, the Ombudsman could not say Mr C lacked capacity to make decisions in 2018 or that he should have had a capacity assessment to determine whether he could agree to pay for his care. I have not seen any evidence that Mr C was discharged from hospital in November 2018 to an intermediate or step-down placement.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because the concerns Mr B raises now are more than 12 months old and there is no good reason to disapply the law to investigate now.

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Investigator's decision on behalf of the Ombudsman