Summary: Mrs Y complains about the way the Council charged her mother when she moved to a care home, initially for respite. She complains about delay, an officer’s attitude and not giving her timely advice. The Ombudsman upholds the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs Y, complains (for herself, but also on behalf of her mother, Mrs Z):
• the Council gave her inaccurate information regarding the cost of a respite care stay for Mrs Z;
• the Council said it would contact her about respite care for Mrs Z. But this did not happen;
• another Council social worker contacted them and was ‘beyond aggressive’ in the way she communicated. She did not believe Mrs Z was in the care home on a respite stay;
• the Council did not give them timely advice about their options;
• about a social worker’s decision to remove Mrs Z from her list, once her stay at the care home became permanent. Mrs Y says this contributed to a delay in completing a Deprivation of Liberty Safeguard assessment. The lack of that assessment held up a Court of Protection application for almost a year, resulting in further unnecessary stress.
2. Mrs Y says the Council’s faults meant she:
• received a higher bill than expected for Mrs Z’s respite stay;
• suffered months and months of stress and worry, resulting in significant weight loss and sleepless nights;
• spent hours on telephone conversations, sending emails, completing forms, for them to be ignored or, worse, altered;
• was paying the care fees herself, as nobody could access Mrs Z’s account.
3. As a remedy Mrs Y said she would like:
• to be assured of welfare going forward and to resolve, as far as possible, the financial issues. Especially, she would like to see corrections to the bill and a full breakdown for the care at home, respite and property discount period costs;
• the Council to explain why it will only pay the care home at the capped costs and not the full rate. She says that seems unjust, as the Council was at fault for informing the home Mrs Z was self-funded;
• a permanent point of contact within Adult Social Care.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with an organisation’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. As part of the investigation, I have:

• considered the complaint and the documents provided by Mrs Y;
• made enquiries of the Council and considered its response;
• spoken to Mrs Y;
• sent my draft decision to Mrs Y and the Council and considered their responses.

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What I found

Legal and administrative background

7. The Care Act 2014 provides a legal framework for charging for care and support. The Act is supported by the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance (which I shall refer to as ‘the Guidance’). There are different charging rules for care provided in a person’s home and that provided in a care home. Councils have some discretion to set their own rules for the charging of residents in temporary or short-term residential care.

Charging for temporary residential care

8. 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 a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks.
9. The Council’s policy on temporary residential care says it:
• disregards the value of a property;
• treats income and earnings (except for some disability benefits) in the same way as for permanent residents (which is different to the rules for people receiving care at home).

Charging for permanent residential care

10. The charging rules for permanent residential care include:
• the financial limit, known as the ‘upper capital limit’. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees;
• that when a person’s home is included in the permanent care home means test, the council must ignore it for the first 12 weeks of the permanent stay at the care home;
• that a resident may delay having to sell their property by entering into a deferred payment agreement with the local authority.
11. Every council has a limit on what it will pay for care home fees (their banded rate). So if the cost of a chosen home is above this limit, then there may be an additional bill to cover the difference (top-up fees).

The Care and Support Statutory Guidance – Annex H

12. The Guidance has a section advising councils what to do when a person has the means to pay for their care home accommodation, but cannot enter an agreement. It gives the example of someone who does not have the mental capacity to do so and has no deputy to act on their behalf.
13. The Guidance says, in those circumstances, the local authority must meet the person’s needs. So, if the person has an assessment that said their needs are best met in a care home, the local authority must arrange for a care home provider to provide it. The Council can charge the person for that care.

Deputyship

14. If someone no longer has the mental capacity to make decisions for themselves, someone can apply to the Court of Protection to become their deputy. This gives them the legal authority to make certain decisions on the other person's behalf.

Deprivation of Liberty Safeguards (DoLS)

15. The Deprivation of Liberty 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. It is the responsibility of the care home or hospital to apply for authorisation.
16. On application, the supervisory body (in this case, the Council) must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. They should do so within 21 days.

What happened

Background

17. The Council had been arranging a package of care at home for Mrs Z since March 2020. Since September 2021 Mrs Z has been largely confined to her bed, following a hospital stay. Since then she needed an increased package of care.
18. Mrs Z was living with her husband, who passed away in the early part of December 2021. Later in December, the Council telephoned Mrs Y to check how they were coping with Mrs Z’s care. Its records say:
• Mrs Y advised she and her husband were making sure somebody was with Mrs Z 24 hours a day;
• Mrs Y said they would continue the arrangement until the new year, when they would review the situation;
• the social worker discussed possible care options. Mrs Y advised they had a lot going on, so did not feel it was the right time to discuss this. She asked to look at this in the new year. The social worker advised she was going onto long-term leave, but would pass the message on, requesting somebody follow it up in the new year.
19. In the first week of January 2022, Mrs Y contacted the Council to discuss the care options for Mrs Z. She advised they could not sustain the current arrangements. She was unhappy the Council had not been in contact with her. The Council’s records say Mrs Y asked about financing respite. And that it advised her about the “… banded rate, third-party top up, assessed charge for respite”.
20. In early January, the Council implemented a revised care and support plan, including a short respite stay at a care home – for four weeks. The cost was at the Council’s banded rate of £615 per week for the respite period. The care home confirmed it would accept the banded rate.
21. After Mrs Z went to the care home, the Council’s social worker (whom I shall describe as Officer 1) made her first telephone call to Mrs Y. The Council’s record of that call notes she:
• discussed with Mrs Y the 12 week property disregard, and gave examples;
• suggested contacting other family members about Mrs Z’s future care needs;
• explained the financial assessment and agreed to send information about this;
• advised the amount of the current banded rate;
• would contact Mrs Y in early February.
22. Mrs Y’s recollection of this conversation is Officer 1 was confrontational; saying it was not in Mrs Z’s best interests to put her in a care home. Mrs Y says Officer 1 was not aware the stay at that time was for respite.
23. Officer 1 completed her Care Act assessment in early February, after speaking again to Mrs Y. The assessment concluded Mrs Z had care and support needs that were eligible for care home support. Officer 1 and Mrs Y agreed Mrs Z should stay at the care home.
24. Officer 1’s record says, that at the time of the assessment, she:
• spoke again to Mrs Y about;
• 12 week property disregard;
• assessed charge;
• deferred payment scheme;
• that the care home would charge £615 for the first 12 weeks of Mrs Z’s stay. After that Mrs Z would be self-funding, so the charge would £875;
• attendance allowance, a non-means tested welfare benefit Mrs Y could claim on Mrs Z’s behalf.
• sent Mrs Y the Council’s care home funding booklet, information about deferred funding and a financial assessment form.
25. Shortly after, Mrs Y advised Officer 1 she could not access Mrs Z’s funds, and was applying for a deputyship. Mrs Y also advised she had not been able to pay the agency who had been providing care when Mrs Z was at home, as the bank had stopped the direct debit. During the same call Officer 1 advised Mrs Y:
• the assessed charge (the move from respite to permanent stay) would start on 9 February;
• she needed to contact the Council’s finance team to advise she was awaiting deputyship.
26. The Council’s next record of contact is Officer 1 telephoning Mrs Y at the end of March, to update her about the option of deferred payments. Mrs Y said they were not looking at this option, as they had access to some capital. Officer 1 advised the property disregard period was due to end on 4 May. She then closed the case, as Mrs Z was self-funding.
27. On 5 May, the care home sent Mrs Y a letter invoicing her for £8000 for Mrs Z’s fees, as she was self-funding.
28. At the end of May Mrs Y telephoned the Council’s Finance Operations Team to remind it they were awaiting the Court of Protection’s decision on her application for deputyship. She noted the difficulties she faced in contacting the Court and it had advised her the process could take many months. The finance team:
• acknowledged the Council’s records were contradictory over whether Mrs Y wanted it to put Mrs Z’s account on a deferred payment arrangement;
• accepted some error with the start date of the charging period (a recalculation after this led to the Council crediting back over £2000);
• agreed to try to contact the relevant team to ask it to finalise Mrs Z’s home care account as soon as possible.
29. In mid-June Mrs Y received a bill for the respite stay which she says was nearly £2000 more then they calculated.
30. In September 2022, a Council support worker carried out a review of Mrs Y’s care and support needs. He then closed the case, as Mrs Z was not receiving Council commissioned services.

The DoLS assessment and Mrs Y’s application for deputyship

31. In early February 2022, the care home referred Mrs Z to the Council for a DoLS assessment.
32. In early March, Officer 1 completed a mental capacity assessment. That assessment found Mrs Z lacked the capacity to make the decision whether to remain permanently at the care home.
33. The Council allocated the case at the end of August. An assessment was completed at the end of October and a DoLS authorisation was granted at the start of November 2022.
34. In response to my written enquiries, the Council advised that its view was Mrs Z not having a social worker did not contribute to its delay completing a DoLS assessment. This was because it had a separate waiting list for DoLS assessments, with a triage tool to prioritise assessments.

Mrs Y’s complaints and the Council’s responses

35. Mrs Y first complained in July 2022. The Council:
• advised there had been a ‘miscommunication’ between Council teams, which was why it had not contacted her in January 2022;
• acknowledged Mrs Y’s complaint about Officer 1’s tone and miscommunication. It advised Officer 1’s line manager was conducting an investigation.
• was “not able to substantiate your comments relating to your mother's assessed contribution towards her respite stay”;
• accepted some fault in the way the Council had supported Mrs Y. It apologised.
36. Mrs Y says, shortly after, she asked to escalate her complaint. She did not hear anything, after an automated acknowledgement. So after about a month she chased a response, after the Council sent her an account of Mrs Zs outstanding care charges. She advised these did not match her calculations.
37. Mrs Y was then in contact with a manager in the Council’s finance team. But she did not receive a formal response to her complaint until the end of 2022. When it did respond, the Council advised her:
• it should not have written to Mrs Y asking her to fund Mrs Z’s care, as she did not have deputyship;
• as Mrs Y was concerned about Mrs Z’s money running out and how they would then fund Mrs Z’s fees, the Council had agreed take over responsibility of paying the care provider on a temporary basis;
• it had asked its debt recovery team not to pursue recovery of the assessed charge;
• it would seek to recoup eligible charges once Mrs Z’s property had been sold;
• it had agreed costs of £654 per week with the care home;
• it offered her £200 as a recognition of the uncertainty and time and trouble the Council’s faults had caused her.
38. Mrs Y complained to the Ombudsman. I made written enquiries to the Council. Its response said it:
• accepted fault in not funding Mrs Z’s placement, when her family did not have access to funds. That was because it had wrongly thought Mrs Y had a deputyship. It had offered a remedy of £300;
• had acted to correct its fault by backdating its funding to 5 May 2022, which was at a lower cost than Mrs Z would otherwise have had to pay.
39. The Council also sent me some information about the balances owing on Mrs Z’s account. I sent these to Mrs Y. She advised she was satisfied with this information, except that it seemed that for one week the Council billed Mrs Z for both home care and respite care.

Was there fault by the Council?

Inaccurate information regarding the cost of a respite care

40. Mrs Y says she was told before Mrs Z went into respite that she would be charged the same as her domiciliary care fees. The Council record of the advice it gave Mrs Y (paragraph 19) only says it gave her advice about an assessment for respite fees, not what those would be.
41. But the Council’s written policy on respite charging (paragraphs 8 & 9) does not work in the way Mrs Y says she was told. So, while I do not doubt Mrs Y understood the advice as she explains, I do not have the evidence to uphold this part of the complaint.
42. In any case, whatever advice Mrs Y was given, the Council has charged Mrs Z in line with its policy. So the injustice to her would be limited.

The Council said it would contact Mrs Y in the new year

43. I uphold this part of Mrs Y’s complaint. The Council has accepted it did not contact her. It explained this was due to poor communications between two of its teams. This will have caused Mrs Y some avoidable frustration.

Officer 1’s first contact

44. The Council’s records and Mrs Y’s recollection differ about what happened during the telephone call. In the absence of documentary evidence, I cannot reconcile the conflicting accounts of what happened during this conversation. I do not consider that further investigation would resolve these conflicting accounts of the conversation. I cannot uphold this part of Mrs Y’s complaint.

The Council did not give Mrs Y timely advice

45. The Council has records of sending Mrs Y advice about some of the options for paying for Mrs Z’s care. But the Council should itself, temporarily, have taken responsibility to arrange Mrs Z’s care, while Mrs Y was waiting for the Court of Protection to consider her application for deputyship. My decision is to not do so was fault.
46. Another issue where I find fault is in the Council’s seeming delay in giving Mrs Y information that would have allowed her to settle Mrs Z’s home-care fees. In May 2022 an officer advised Mrs Y he would contact the relevant team and ask it to settle the account. Mrs Y says she did not hear anything further about this matter, which she should have done.

Closing the case and the delay in completing a DoLS assessment

47. My decision is the Council delayed by several months beyond the statutory timescales, completing Mrs Z’s DoLS assessment.
48. But I accept the Council’s submission that closing Mrs Z’s care file was not the cause of the delay, as the DoLS assessment is conducted by a separate team. It is more likely this team delayed completing the assessment due to workload. In forming that view I note that, since a landmark court case several years ago, many councils have struggled to carry out these assessments in a timely manner.

Complaint responses

49. Mrs Y first complained to the Council in July 2022, but did not receive its final response until the end of that year. My decision is that represents an avoidable delay and, so, was fault.

Did the fault cause an injustice?

50. I am pleased to see, in response to Mrs Y’s complaint, the Council did put in place arrangements for Mrs Z’s care and reconciled the accounts for the earlier period. However, Mrs Y remains concerned about the charges for one week.
51. The injustice to Mrs Y from these findings of fault are that she was left to deal with matters she should not have had to deal with. She tells me the worry about paying the feels caused her significant amounts of stress and anxiety. I accept her submission on this.
52. But the delay in the Council completing the DoLS assessment was not likely the e primary reason the Court of Protection delayed considering Mrs Y’s application for deputyship. The two processes are not linked and there is no reason why delay in one would hold up the other. I note Mrs Y herself noted the Court of Protection had a history of slow response times and delay (see paragraph 28).

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Agreed action

53. We can recommend a remedy when we find fault that has caused unremedied injustice. We call this a personal remedy. When there is no other way to remedy injustice, this may take the form of a payment. This is usually a modest amount whose value is intended to be largely symbolic, rather than purely financial.
54. So for the avoidable stress, frustration and worry caused by the faults I have found, the Council has agreed to make Mrs Y a symbolic payment.
55. It is unclear what remedy the Council has already offered. Its complaint response said it offered a payment of £200, while its response to the Ombudsman said it had offered £300. I am also unclear if it has made this payment. But my view is the higher amount is a more suitable figure, which it should now pay Mrs Y, if it has not already done so.
56. The Council also agreed to contact Mrs Y to:
• apologise;
• discuss with her the one remaining area of uncertainty she has about Mrs Z’s account.
57. The Council should provide us, within a month of my final decision, with evidence it has complied with the above actions.
58. Mrs Y also wanted the Council to provide her with a permanent point of contact. I cannot ask the Council to agree to that request, as I cannot says it is a remedy that flows from the injustice I have found.

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Final decision

59. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman