Summary: The Council failed to ensure the late Mrs X and her family were properly informed of the financial implications of her move into assisted accommodation and failed to reassess her needs once she moved. It failed to properly consider her mental capacity to make a decision about her finances. The Council will now apologise to Mrs X’s family for the distress and frustration caused by its faults, waive the care charges and offer a sum in recognition of the distress.

The complaint

1. Mr A (as I shall call the complainant) complains that the Council did not properly assess his late mother’s capacity to make a decision about her own finances. He says the Council failed to keep the family properly informed of the financial implications of Mrs X’s move into assisted accommodation after the existing care package broke down. It also failed to reassess her needs in a timely way. As a result the Council charged for care which was not needed.

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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. 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

3. I considered the information provided by the Council and by Mr A. We spoke to Mr A. Both Mr A and the Council had an opportunity to comment on a draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

4. 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) describes 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.
5. 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. 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?

6. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

There are two types of LPA:

Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.

Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

7. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The Council can take a person’s capital and savings into account subject to certain conditions. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

What happened

8. Mrs X was diagnosed with Alzheimer’s disease in 2017. From June 2018 she lived independently in a flat she owned in a managed block.
9. The Council undertook an assessment of Mrs X’s needs in September 2018. The assessment noted Mrs X had difficulties understanding and retaining information, and difficulties in making decisions and understanding their impact. Her short-term memory (and occasionally her medium- and long-term memory) was described as poor. She was described as being unable to manage her own finances or paperwork. The NHS funded a care package to assist with medication prompts and management of meal times.
10. Mrs X’s condition deteriorated over the next year. Mr A says “During the months of June and July 2019, the care providers were becoming increasingly alarmed at my mother’s deterioration as well as being put under increasing pressure by other residents who were concerned for her wellbeing.”
11. On 2 July 2019 the Council carried out an initial financial assessment of Mrs X. The officer met Mrs A on her own. She asked Mrs X to sign a basic financial assessment form agreeing that she understood social care was chargeable and that she could be invoiced retrospectively for any care provided.
12. On 21 July Ms X’s main carer emailed Mr A and Mrs X’s social worker and said, “I don't think we will be able to provide any further assistance for (Mrs X) ……I don't feel she is safe in the community without 24hrs supervised care in place.”
13. Mr A says the social worker tried to find alternative carers to support his mother but was struggling to find any. He says he discussed with the social worker the need to find his mother safe accommodation quickly. The social worker emailed him on 26 July with a summary of their conversation which included discission about a move to assisted accommodation. The social worker added” ( Didn’t discuss paying for social care but would need a financial assessment to see if (Mrs X) would need to contribute.”)
14. Mrs X’s social worker carried out an assessment of Mrs X’s needs on 29 July. She noted Mrs X’s difficulties in understanding and retaining information, and that Mr A held powers of attorney for her health and welfare and finances. She noted Mrs X had ‘some difficulty with making complex decisions’ and added ‘Due to your memory difficulties you are unable to retain information long enough to make a decision, you need the support of one other to remind you and provide information. You are unable to retain information.’
15. Mrs X moved to assisted accommodation. Mr A says “The assisted living facility …. offered the additional support that my mother required - two meals a day with other residents, (with in-house carers ensuring she ate and hydrated adequately) as well as twice-daily drop-in visits from the in-house carers and the opportunity for my mother to join in all activities and events organised on a daily basis, which addressed her loneliness and anxiety. (The Council) were fully aware of these arrangements.”
16. On the basis of the assessment of need conducted while Mrs X was living on her own at home without any support, the Council agreed a support package to be delivered to Mrs X at the assisted accommodation. The social worker emailed Mr A on 13 August “she (the social worker’s manager) has agreed to a 30-minute call in the morning and a 45 minute call in the evening. The visits will be funded by GCC rather than health as there is now a need for personal care rather than just supporting with medication”. The email makes it clear the manager had visited the assisted accommodation and knew the facilities in place.
17. Mr A says the Council did not suspend the care package and carry out a proper assessment of need based on the accommodation where Mrs X was now living, and although it confirmed the Council would fund the care package, it did not mention any contribution from Mrs X.
18. Mr A says at the start of September the social worker asked him whether Mrs X had had a financial assessment and said she needed to arrange one. Mr A says he asked why she would need one. He says this was the first time he was aware of any financial implications.
19. The Council arranged a financial assessment after Mrs X had received the additional care for some weeks. Mr A attended. He says the assessor made it clear Mrs X would have to contribute to the cost of her care as she was now classed as a ‘second home owner’. Mr A says he queried this at the time and several times later but the assessor did not reply except to write with the invoice which was due.
20. Mr A says he raised with the social worker the fact that his mother was essentially being charged for care which was no longer needed. As a result of the conversation the social worker cancelled the social care element of the care package and confirmed that the NHS would fund the medication aspect of the care.

The complaint

21. Mr A complained to the social work manager about the way in which the Council had charged for an additional care package which was not needed and then issued a retrospective invoice. He wrote, “we should not be made responsible for settling this bill on the basis that the assessment carried out did not consider the environment she would be receiving the care and also we were never kept informed of the fact that my mum would have to pay additional costs or what they would be.”
22. The manager responded that she was satisfied the social worker had given information on the possible care charges. She said the family had made the decision to move Mrs X without consulting the social worker who otherwise would have been able to explain the implications of the move for charging. She added, “I can confirm that (the social worker) spent a considerable amount of time with your mum to inform her of our processes including a financial assessment. We have no reason to doubt your mum had mental capacity to understand the information given to her. This included information regarding finances and your mum did sign a Basis [sic] Financial Assessment which agreed to a further assessment to establish client contribution.”
23. Mr A made a formal complaint to the Council. He said they were not informed of the costs before they were incurred, and if they had been informed they would not have agreed to the care package. He said his mother had been in no position to make any financial decision and the Council should not have proceeded to obtain her signature in the knowledge of her dementia.
24. The Council’s complaints manager replied. He said the Council did not carry out mental capacity assessments unless there was reason to doubt capacity and the social worker did not consider this to be needed at the time. He said the Council had written to Mrs X on 8 August explain that services would be chargeable, and a copy was sent to Mr A. He said as far as the Council was concerned, it had given the correct information about charges and the debt remained due.
25. Mr A complained to the Ombudsman.
26. The Council says “The assessment of capacity was not completed whilst (Mrs X) was living independently as we did not have reason to doubt capacity to make the decision in regards to where she lives… and this decision was based on the worker being confident in (Mrs X’s) ability to understand her financial situation enough”.
27. The Council goes on to say, “In hindsight perhaps a mental capacity assessment should have been completed in regards to the decision about where (Mrs X) would reside, however the FAB assessment has already been completed by the time the assessment was completed.

Analysis

28. In September 2018 the Council noted in its assessment that Mrs X could not retain or understand information and could not make decisions understanding their impact. It knew she could not manage her own finances or paperwork. Despite that knowledge it proceeded to obtain her signature on a financial information form agreeing that she understood her care would be chargeable.
29. By the time the social worker carried out a further needs assessment in July 2019, she already knew the intention was for Mrs X to move into assisted living as there was no longer a care package in place. She noted Mrs X could not retain information long enough to make a decision.
30. It is difficult therefore to see how the Council can now say the social worker was confident in Mrs X’s ability to understand her financial situation when the social worker clearly recorded she was not. That was fault which caused direct financial injustice to Mrs X.
31. The Council now recognizes that it should “perhaps” have completed a mental capacity assessment. It is not sufficient for it to imply that because by that time the basic financial assessment had been signed therefore the situation was irretrievable: it was not. The capacity assessment is time-specific but it was clear in the Council’s own records from September 2018 that Mrs X was unable to understand her finances or recognize the impact of her decisions. In the light of that knowledge the Council should have conducted a mental capacity assessment before it asked Mrs X to sign the basic financial agreement.
32. The Council then proceeded to put in place a care package which duplicated the assistance Mrs X was receiving in the assisted accommodation, as though she was still living independently. It terminated that package as soon as the duplication was drawn to its attention. Nevertheless it proceeded to charge Mrs X for the duplicate care it had unnecessarily arranged.

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Agreed action

33. Within one month of my final decision the Council will apologise to Mrs X;s family for the way in which it handled this matter;
34. Within one month of my final decision the Council will review the way in which departments liaise to ensure no one should be asked to sign financial agreements when there is doubt about their capacity to do so;
35. Within one month of my final decision the Council will review how its criteria for conducting capacity assessments accord with the principles of the Mental Capacity Act;
36. Within one month of my final decision the Council will waive any outstanding debt for the care charges incurred in the assisted accommodation and offer Mr A the sum of £500 in recognition of the time, trouble and distress caused to him in making this complaint.

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Final decision

37. I have completed this investigation and I find there was fault on the part of the Council which caused injustice to the late Mrs X and her family; completion of the recommendations at paragraphs 33 to 35 will remedy that injustice.

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Investigator's decision on behalf of the Ombudsman