Summary: Mr C complained in his own right but also on behalf of his late father, Mr X. He complained Mr X did not receive the amount of care he was assessed as needing and for which he was charged. He considered it was wrong the Council took court action against his father for unpaid care charges. He further complained about how the Council responded to him, both before his father died and subsequently when he was trying to sort out his father’s affairs. He said Mr X was caused distress by the court action and was overcharged. And he was put to time and trouble in pursuing the matter. There was some fault which caused injustice to Mr C but that has been remedied by the apology already made.

The complaint

1. I refer to the complainant as Mr C. He complained in his own right but also on behalf of his late father, Mr X. He complained Mr X did not receive the amount of care he was assessed as needing and for which he was charged. He considered it was wrong the Council took court action against his father for unpaid care charges. He further complained about how the Council responded to him, both before his father died and subsequently when he was trying to sort out his father’s affairs. He sayid Mr X was caused distress by the court action and was overcharged. And he was put to time and trouble in pursuing the matter.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. 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. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))

5. 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

6. I considered the complaint and documents provided by Mr C and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr C and the Council and considered their comments.

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What I found

Summary of relevant law and guidance

7. 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.
8. 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?
9. 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.
10. 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.

Summary of what happened

11. Mr X was living at home on his own. He started to receive care in late 2017. He wrote to the Council at that time saying he couldn’t afford it. He made no payments to the care charges until his death in June 2020.

Analysis

The care provided

12. The care hours varied. It started as two half an hour visits morning and evening but then increased to four visits a day. The morning and evening staying as half an hour and the lunch and tea-time being 15 minutes. In October 2019 the care provider suggested the evening one be reduced to 15 mins.
13. The issue here was that Mr X would not accept any assistance with personal care and so the carers would often only stay for 15 mins or less. The Council noted this in January 2019.
14. In February 2019 Mr C complained about the care his father was receiving. The Council started to look into it and asked Mr X whether he wanted the complaint pursuing but he said he did not. The Council did not tell Mr C of that. As Mr X decided he did not want the complaint investigated I agree the Council had no grounds to take it further. But it was wrong it did not explain to Mr C what had happened. The Council accepted that was a mistake and apologised.

Recovery of the sums due

15. The Council assessed Mr X as needing to make a contribution to the cost of his care. It was clear from Mr X’s early correspondence that he did not think he should have to pay anything. But there is nothing to suggest there was any fault in the Council’s assessment of Mr X’s contribution.
16. I understand Mr C considered Mr X should not have had to pay when some of the visits were shorter than the contracted time. There is no dispute that is the case but I consider it was for Mr X to say he if was unhappy about the care arrangements. I have seen nothing to suggest he was unhappy with the care itself, only that he felt he should not have to pay for it.
17. In May 2019 the Council specifically assessed whether Mr X had capacity to make decisions around his finances. The officer made detailed notes of how they assessed Mr X. The officer decided Mr X did at that point have capacity around his finances. There was no fault in how that decision was made.
18. In July 2019 an officer visited Mr X to try to reach an agreement with him about the repayment of the debt. He made notes of his visit. These show he was satisfied Mr X understood why he was there but he refused to pay. The officer went back a week later and Mr X recalled who he was and why he was there but did not change his position and asked him to leave. After both visits the officer spoke to Mr C. After these visits the matter was passed to legal who wrote to Mr X again inviting him to pay or to enter into an arrangement to pay. The letter said that if he did not then court action would be considered. Mr X did not respond so the Council proceeded with court action. Mr X did not respond to the claim so a judgement was made against him. No further action was taken to recover the money before Mr X died six months later.
19. The Council’s procedure is that court action is the last resort. The Council had taken appropriate steps to try to engage with Mr X before it embarked on court action. It had properly considered whether he had capacity to make the decisions he did.

Contact with Mr C

20. Mr C was concerned about the response he had when he contacted the Council after Mr X died. Mr C complained about the court action, the amount of the debt and that it was for care which Mr X had not received and the failure to deal with the complaint he had made about that.
21. The Council agreed to remove the court costs and apologised for the failure to tell Mr C of the decision not to pursue his complaint. But it would not provide more detail about the care provided to Mr X and his wishes as that was his personal information and it was not, therefore, appropriate to share more detail.
22. There was no fault in the Council’s view on the information that could be shared with Mr C about his father. Even though Mr X had died it would not be right to share the detail about Mr X’s care and wishes.

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Final decision

23. There was some fault which caused injustice to Mr C but that has been remedied by the apology already made.

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Investigator's decision on behalf of the Ombudsman