Summary: There was fault by the Council which failed to address Mr X’s complaint about the Deprivation of Liberty Safeguards for his mother Mrs Y. There was also delay in giving feedback on safeguarding enquiries. This caused avoidable distress, frustration and time and trouble. The Council will apologise, make Mr X a symbolic payment and review its procedures for requests for standard authorisations.

The complaint

1. Mr X complained City of York Council (the Council):
1. Was unclear about whether his mother Mrs Y needed nursing care or residential care, failed to consider concerns about Mrs Y returning to a care home where she had previously fallen and delayed in deciding whether a placement in a care home was suitable which led to the loss of the placement as an option for Mrs Y
2. Did not properly complete the DOLS process in relation to Mrs Y
3. Did not properly respond to safeguarding concerns about Mr and Mrs Y and delayed completing the safeguarding investigation process
4. Unreasonably accused him and his brother of failing to act appropriately in their role as attorneys and ignored his request to remove accusations from the records
5. Was responsible for a delay in inviting the family to complete paperwork for financial assessments and to apply for a deferred payment agreement (DPA)
6. Failed to fully respond to all his complaints.
7. Failed to query an NHS Continuing Healthcare assessment which included false and/or missing information.
2. Mr X said this caused avoidable distress, requiring him to contact the Office of the Public Guardian to correct misinformation. He also said it caused care costs to mount up and increased pressure on him to sell his parents’ property.

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The Ombudsman’s role and powers

3. We provide a free service, but we must use public money carefully. We may decide not to start or continue an investigation if there is another body better placed to consider this complaint or it would be reasonable for the person to ask for a review or appeal. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 significant injustice, or that could cause injustice to others in the future 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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What I have and have not investigated

6. I have investigated complaints (a) to (f). I stopped investigating complaint (g) because Mr X is currently appealing the Integrated Care Board’s decision on Continuing Healthcare (CHC) funding and it is reasonable for him to use the formal CHC appeal process to deal with any matters arising from false or misleading information.

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How I considered this complaint

7. I considered the complaint to us, the Council’s responses to the complaint and documents in this statement.
8. Mr X 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

Complaint a: The Council was unclear about whether Mrs Y needed nursing care or residential care. It failed to consider concerns about Mrs Y returning to a care home where she had previously fallen. It delayed deciding whether a placement in a care home was suitable which led to the loss of the placement as an option for Mrs Y.

Relevant law and guidance

9. Discharge to Assess placements (D2A) are short term beds in care homes which are free for up to four weeks. D2A beds are intended to free up acute hospital beds for patients who no longer require them. There is no choice for a person about where to go, but once in the placement, a social worker will assess a person’s long-term care and support needs and where best these will be met.
10. Decisions taken for a person lacking mental capacity must be in their best interests. The Mental Capacity Act and the Code provide a checklist of factors decision-makers must work through when deciding what is in a person’s best interests:
• Take into account all relevant circumstances.
• If faced with a particularly difficult or contentious decision, practitioners should adopt a ‘balance sheet’ approach.
• Involve the individual as fully as possible.
• Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision.
• Consult as far and as widely as possible.
• Record the best interests’ decision. Not only is this good professional practice, but decision-makers will need an objective record should the decision or decision-making processes later be challenged.
11. A decision-maker should consider the least restrictive option. This means before a person acts or makes a decision for someone who lacks capacity, they should consider if the purpose can be achieved in a way that is less restrictive of the person’s rights and freedoms. (Mental Capacity Act 2005, section 1)

What happened

12. Mrs Y had been living with Mr Y in their own home with a council-arranged care package from an agency. They both had dementia. Mr X and a sibling had Power of Attorney for finances, but not for health and welfare. (A Power of Attorney or POA is a legal document giving the holder, or attorney, legal authority to deal with the donor’s financial affairs.)
13. In January 2022, Mrs Y went into to hospital. There were concerns about self-neglect. Records suggest she had not been eating and Mr Y was not able to look after her because of his own condition.
14. Managers from the Council’s social care team, Mr X, hospital staff and other NHS staff met twice to discuss discharge arrangements for Mr and Mrs Y. Long-term options were discussed including a return to home with a care package and a care home that could accommodate the couple together. (As background: Mr Y was also in hospital at the same time as his wife). The agreed plan was for both Mr Y and Mrs Y to go into short term residential care in D2A placements. Care Home A was identified as the D2A placement for both.
15. Mrs Y had injuries from several falls in hospital and was also a COVID-19 contact and so she could not be discharged. She was in Care Home A for one night in February, but she went back into hospital as she could not weight bear.
16. The Council held a best interests meeting for Mrs Y (and also for Mr Y) in the middle of March. Attending were Mr X, managers from the social care team, staff from the hospital and the manager of Care Home A. The minutes indicate:
• Mr X’s views were sought about the options including a return home with another home care provider as the previous one had given notice.
• Mr X was told D2A funding would stop when the CHC assessment meeting took place on 7 March. Mr X said he was concerned this would not allow enough time to consider all the options. The social care manager said if no alternative home care provider was found, she would ask senior management for funding to extend Mr Y’s placement in Care Home A.
• No final decision was made about either Mr or Mrs Y’s long-term care. The manager of Care Home A said they would make a place available if the Council liaised with her. Mr Y would remain at Care Home A while options were further considered and an alternative home care provider sourced for daily care calls.
17. There was a best interests meeting in May 2022 attended by council managers, hospital staff and a CHC nurse from the Integrated Care Board (ICB). The decision was it was in Mrs Y’s best interests to be discharged into a D2A placement (this is also known locally in York as “CHC pathway 3b”). There was a discussion about funding and the CHC nurse explained:
• The placement would be temporarily funded for 28 days during which time an assessment for CHC would take place.
• The Council would provide information to support the ICB. If Mrs Y was not eligible for CHC, the Council would be responsible for funding.

The social worker explained if the family decided they preferred another care home, then Mrs Y could go on the waiting list for that home.

18. The Council told me the ICB funded Mrs Y’s placement from her admission to Care Home C on 13 June to 5 July. (ICB funding stopped because the ICB decided she was not eligible for CHC funding). The Council told me from 6 July, Mrs Y was a self-funder.
19. A social worker visited Mrs Y at the start of July. The social worker’s recorded view was Mrs Y did not need to be in a nursing home. She was at high risk of falls, but Care Home C felt they could manage her on their dementia residential unit. The social worker noted the next steps were to hold a best interests meeting for both Mr and Mrs Y to see whether they should move to a care home that would accept them both (because Mr Y was in Care Home A). The social worker noted an assessment for CHC had been completed and Mrs Y did not meet the criteria for CHC funding.
20. At the start of September, Mrs Y was admitted to hospital following a fall in Care Home C. The social worker noted in October that she had searched for potential care homes and had contacted nine homes. Eight had no vacancies or refused to accept Mrs Y. The ninth home was Care Home A (where Mr Y was) and the manager of Care Home A agreed to assess Mrs Y.
21. On 13 October, there was a best interests meeting for Mrs Y. Mr X, council officers, staff from Care Home C and hospital staff attended. The minutes noted “it was felt Mrs Y did not require specific dementia nursing care at this juncture.” Hospital staff confirmed Mrs Y was fit for discharge. The two options were Care Home A or a return to Care Home C. Attendees discussed the benefits and risks of each option. Mr X and his brother were concerned the manager of Care Home A had previously declined to take Mrs Y due to her falls risk. The manager considered she now had better information and evidence of Mrs Y’s care needs and the previous decision not to accept her may have been when the home was caring for a lot of residents with high needs. The family were reluctant to make a decision on the day due to ongoing safeguarding enquiries. They did not want Mrs Y to return to Care Home C. The decision was for Mrs Y to return to Care Home C short term and then transfer to Care Home A.
22. The following day there was a further meeting about Mrs Y, with the same attendees and the manager of Care Home A. The manager offered Mrs Y a place. The minutes indicate:
• There was a lengthy discussion around Mrs Y’s needs and the risk of falls. The previous care plan from Care Home C should have said a carer needed to be present where possible and not all the time.
• Mr X felt Mrs Y needed one-to-one care. Mr X objected to Mrs Y moving into Care Home C and said a CHC assessment needed to be completed in hospital to determine Mrs Y’s level of need. Hospital staff said this was not possible and it could be done in the community.
• The manager of Care Home A withdrew the offer of a placement because the family were not confident with the service it could provide. The manager agreed to keep the placement vacant for a week to allow more time for Mr X and his sibling to consider. Ward staff emphasised staying in hospital was not an option.
23. On 18 and 20 October Care Home C and A withdrew their offers as both felt they could not meet the family’s expectations around mitigating the risk of falls.
24. In October and November, the social worker contacted five care homes. They either had no vacancies or assessed Mrs Y and declined to offer her a place.
25. On 19 December, the social worker met with the manager of Care Home A at the hospital. The spoke with the ward manager. The social worker discussed updating Mrs Y’s trusted assessor form with the ward manager. (The trusted assessor approach is an agreement between the NHS, the Council’s adult social care team and care home providers for hospital staff to carry out a care needs assessment and create a care plan on the care home’s behalf.) For example, the form said nothing about Mrs Y being in an observed bay or that she was a poor sleeper. The manager of Care Home A agreed to accept Mrs Y from 22 December and Mrs Y moved into Care Home A.
26. A review on 11 January 2023 noted Mrs Y had settled well into Care Home A. She had seen Mr Y who lived in a different unit. A further review in February said Mrs Y remained settled and had no falls.

Was there fault?

27. There was no fault by the Council in how it considered Mrs Y’s return to the care home. The records show a series of multi-disciplinary meetings and best interests meetings about Mrs Y’s discharge arrangements. This was in line with the principles in the Mental Capacity Act as I have set out in paragraph 10 and 11. The records show Mr X was involved in those meetings, his views were considered and concerns noted. There were limited placement options for Mrs Y with homes having no vacancies or refusing to take Mrs Y, which was outside the Council’s control.
28. The records in October 2022 indicate the manager of Care Home A offered Mrs Y place and then withdrew the offer a few days later because she was not confident she could meet the family’s expectations around risk. There is no evidence of any delay by the Council.
29. The available evidence indicates the Council has been consistent in its view that Mrs Y only required residential and not nursing care (see the social worker’s comments in paragraphs 19 and 21). There is no fault.

Complaint b: The Council did not properly complete DOLS assessments for Mrs Y

Relevant law and guidance

30. Schedule A1 to the Mental Capacity Act 2005 establishes the Deprivation of Liberty Safeguards (DOLS). It says the following:

• Where it appears a person in a hospital or care home is being deprived of their liberty and lacks capacity, the hospital or care home must request a standard authorisation. (paragraph 24)
• To obtain a standard authorisation, the care home or hospital (‘the managing authority’) makes a request to a team in the council (‘the supervisory body’). The supervisory body then carries out six assessments to decide whether to approve the authorisation: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’. (paragraph 33)
• A managing authority can grant itself an urgent authorisation for up to seven days to allow for completion of a standard authorisation. (paragraph 76)
• A managing authority can ask the supervisory body to extend an urgent authorisation for a maximum of seven further days if the supervisory body has not completed the assessments for a standard authorisation. The supervisory body may approve an extension if it appears there are exceptional reasons why it has not yet been possible to complete the assessments for a standard authorisation. (paragraph 84)
• A supervisory body can grant or refuse an authorisation and it can make conditions including changes to a care plan to ensure there are fewer restrictions. It also sets a time limit for the authorisation. (paragraphs 50 to 53)
• Once a supervisory body has approved a standard authorisation, it must appoint a relevant person’s representative (RPR) as soon as possible and practical to represent the person who has been deprived of their liberty. The RPR’s role is to represent and support the person in relation to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using the complaints procedure or making an application to the Court of Protection. RPRs must have regular contact with the person. (paragraphs 139-140)
• The supervisory body must, as soon as is practicable, give a copy of the standard authorisation to the person, their RPR, the managing authority and every interested person consulted by the best interests’ assessor. An interested person includes the partner of the detained person where the couple live together. (paragraphs 57 and 185)

31. Where a managing authority has granted itself an urgent authorisation, the process for a standard authorisation must be completed within the urgent authorisation period. (Regulation 13(2), the Mental Capacity (Deprivation of Liberty: Standard Authorisations Assessments and Ordinary Residence) Regulations 2008)
32. The Association of Directors of Social Services (ADASS) developed a screening tool to help councils prioritise DOLS requests. Many local authorities use this tool or a version of it. ADASS’s introduction to the tool cautions that “use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”. The tool suggests criteria for prioritising requests into ‘higher’, ‘medium’ and ‘lower’ priorities. It does not suggest that councils should not carry out assessments for people who are in hospital.
33. The Council uses an adapted version of the ADASS tool to screen and ‘triage’ all applications it receives for standard authorisations. The aim of the tool is to assist councils to respond in a timely manner to those requests it considers have the highest priority. The Council told me it did not process requests for standard authorisations where the person was in hospital.
34. The Human Rights Act 1998 brought the rights in the European Convention on Human Rights into UK law. Public bodies, including councils, must act in a way to respect and protect human rights. It is unlawful for a public body to act in a way which is incompatible with a human right. ‘Act’ includes a failure to act. (Human Rights Act 1998, section 6)
35. It is for the courts, and not for us, to decide whether a person’s human rights have been breached. We decide whether there has been fault causing injustice. Where relevant, we consider whether a council has acted in line with legal obligations in section 6 of the Human Rights Act 1998. We may find fault where a council cannot evidence it had regard to a person’s human rights or if it cannot justify an interference with a qualified right.
36. Article 5 of the European Convention on Human Rights says everyone has the right not to be deprived of their liberty except in limited cases specified in the article. It is permissible to detain someone who is of ‘unsound mind’. There should be a proper legal basis for any detention.

What happened

37. On 8 January, the hospital requested a standard authorisation for Mrs Y and granted itself a seven-day urgent authorisation to expire 15 January. The Council completed a DOLS screening tool on 8 January. Mrs Y was classed as high priority as wishing to leave. In line with its policy (see paragraph 33), the Council did not complete the standard authorisation because Mrs Y was in hospital.
38. On 3 March, the hospital requested a standard authorisation and granted itself an urgent authorisation for seven days. Case records indicate Mrs Y was on close supervision and on a ward where there was a card entry access system and so she could not leave. The Council screened the hospital’s request and decided it was high priority, but it did nothing further to progress with a standard authorisation, as Mrs Y was in hospital.
39. Mrs Y was discharged into Care Home C on 9 June 2022. Care Home C requested a standard authorisation on the same day. It didn’t grant itself an urgent authorisation. The Council completed the DOLS screening tool on 20 June. Mrs Y was classed as medium priority.
40. On 20 July, a best interests assessor completed a Form 3 which is the assessment form for the Deprivation of Liberty Safeguards. A doctor had already completed the relevant mental health assessments (these are on a Form 4). The assessor concluded Mrs Y was being deprived of her liberty and recommended a standard authorisation to come into force as soon as possible. There were no conditions attached.
41. The Council granted a standard authorisation which came into force on 3 August for 12 months. Mr X was Mrs Y’s RPR and was said to be content with the care arrangements.
42. On 10 August 2022, Mr X emailed the DOLS team having looked at the paperwork for his mother. He wanted the Council to correct and reissue the forms before he would sign them as his mother’s RPR. He said:
• The Council had spelled their surname wrong and had confused his father and brother’s first names.
• He had concerns about the Council using Care Home C’s care plans and risk assessments in the DOLS assessments because these documents were inaccurate.
• There were further inaccuracies in the description and sequence of events including: the admission to hospital, safeguarding concerns when Mrs Y was in hospital, falls, the CHC assessment form saying she did not need a wheelchair when the home had asked him to find one, the NHS rated her as at high risk of falls and the failure to mention the CHC assessment was under appeal.
• Care Home C’s administrator should not be relied on to decide Mrs Y’s care needs.
43. Also in August, the DOLS team leader emailed Mr X apologising for the errors on the papers. She arranged for the relevant staff to correct and amend the forms and sent these back to Mr X for signing.
44. Mrs Y went back into hospital in September. On 16 November, the hospital requested a standard authorisation as it had bed rails and enhanced supervision for Mrs Y. It granted itself an urgent authorisation for seven days to expire 23 November. The Council took no action apart from completing the screening tool and classifying Mrs Y as high priority.

Was there fault?

45. There is fault by the Council in the way it dealt with DOLS requests for Mrs Y. Regulation 13(2) of the Mental Capacity (Deprivation of Liberty: Standard Authorisations Assessments and Ordinary Residence) Regulations 2008 requires the supervisory body (the Council) to complete six assessments to approve a standard authorisation during the period of an urgent authorisation. On each occasion Mrs Y went into hospital, the hospital made urgent authorisations and requested standard authorisations The Council did not deal with any of the hospital’s requests because it was its policy not to. This meant there was no valid authorisation for Mrs Y’s detention after the seven-day urgent period expired. This was a failure to follow the DOLS framework in Schedule 1A to the Mental Capacity Act 2005 and is fault. On a balance of probabilities, Mrs Y was being deprived of her liberty on each occasion while on the ward because she was under close supervision and unable to leave because of the card entry.
46. There was a delay by the Council in completing the standard authorisation process following Care Home C’s request on 13 June. The standard authorisation did not come into force until the start of August. Care Home C did not issue itself an urgent authorisation, for reasons which are not documented. This means there was a period of about six weeks where Mrs Y’s deprivation of liberty was not regulated by the DOLS framework.
47. The DOLS require there to be either an urgent authorisation in force or a standard authorisation for a deprivation of liberty to be lawful. The Council’s failure to act engaged Mrs Y’s Article 5 rights. The hospital made the referral for standard authorisations which meant its view was Mrs Y was being cared for in conditions which amounted to a deprivation of their liberty. Once the urgent authorisations expired, the Council was at fault because there was no legal basis in place for Mrs Y’s detention in hospital and she did not get the protections afforded by the DOLS including the earlier support of an RPR.
48. I do not conclude on a balance of probabilities that had it not been for the fault, Mrs Y would have been able to leave hospital earlier because of the non-availability of placements for her. In practical terms, the failings I have identified above may not have made a difference to the outcome.

Complaint e: The Council did not properly respond to safeguarding concerns and delayed completing the safeguarding investigation process

Relevant law and guidance

A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Care Act 2014, section 42)

What happened

49. In January, Mr X reported a safeguarding concern about Mr Y who was in hospital. The pharmacist had said Mr Y did not have his regular medication while in hospital. The Council asked the hospital to conduct a safeguarding enquiry. It asked the hospital to give feedback to Mr X. The record of the enquiry said:
• Mr Y was not prescribed his regular medicine until at least 72 hours after admission
• In future, the allocated nurse would check this on admission and highlight to the ward doctor. The pharmacist would carry out regular audits
• Mr Y’s case was raised at the Trust’s quality meeting
• There was no further action as the Trust had completed enquiries and responded appropriately to the concern.
50. In January and February, Mrs Y fell in hospital. She fractured her arm in January after slipping in her own urine. She fell again while getting up in February. Mrs Y was then discharged to Care Home A which noted she was in pain. She was readmitted to hospital the following day where it was found she had fractured her hip. The hospital carried out a safeguarding enquiry and reported back to the Council’s safeguarding team. The hospital said it could not conclude that the fall had caused the fracture. Care Home A said Mrs Y had not fallen while in their care. The safeguarding enquiry concluded:
• It was unknown where the fracture had occurred.
• The hospital had taken steps to reduce the likelihood of falls happening again. The ward had removed all chairs without arms and had discussed the case at the Trust’s falls improvement group. The ward had implemented 15-minute checks to reduce the risk of falls following Mrs Y being identified as a high risk of falling (for example, to prompt her with toileting)
• Placing Mrs Y in a chair with no arms after identifying her as a high risk of falling appeared to be an inappropriate decision based on her care needs and previous fall on the ward. This decision would be seen as causing a serious outcome if the fall did result in the hip fracture. This had been neither substantiated nor disproved as having occurred while she was in hospital.
51. In March, Mrs Y fell again while in hospital. The records said she was trying to get to the toilet independently. The safeguarding team gathered information about what had happened and considered the ward had put in place a plan to reduce the risk of recurrence (15-minute observations and a crash mat and had repositioned the bed). There was no safeguarding enquiry.
52. In June Mr X raised a safeguarding concern about Mrs Y being discharged from hospital. He had concerns about a lack of pain relief and physiotherapy assessment and about her not having her walking frame. The Council’s safeguarding team asked the hospital to do a safeguarding enquiry. The safeguarding enquiry report said:
• The clinical judgement was a physiotherapy assessment was not required as there was no change in her condition. The physiotherapy team observed Mrs Y daily on the ward
• The ward made an error not sending the frame and sent it on to the Care Home after
• She had paracetamol as and when required. Opioids were not appropriate because of her cognitive decline and falls risk.
53. In July 2022, the manager of Care Home A reported a concern about Mr Y being pushed over by another resident in Care Home A. The Council’s adult safeguarding team ‘triaged’ the case. They did not consider the conditions for a section 42 enquiry were met. The resident was closely monitored after the incident and had a urine test (to check for infection.) Their specialist NHS team was involved. The Council took no further action. I cannot see Mr X received any feedback about this.
54. In August, the safeguarding officer emailed Mr X with a summary of the safeguarding enquiries above (apart from Mr Y being pushed and Mrs Y’s unsafe discharge.)
55. In September, the safeguarding officer emailed Mr X with a summary of the outstanding safeguarding enquiry in relation to Mrs Y’s alleged unsafe discharge from hospital. The email said Mrs Y should not have been discharged without her walking frame and it was unacceptable for the hospital to have taken a week to send it on.

Was there fault?

56. The Council acted in line with Section 42 of the Care Act 2014 and without fault by making enquiries or asking the hospital to make enquiries on the concerns raised. Those enquiries resulted in the hospital taking action to minimise the chance of recurrence. There was some delay in giving Mr X feedback on the outcome of each enquiry. I cannot see Mr X feedback about not pursuing the concern related to Mr Y being pushed by another resident. This was fault.

Complaint (f): The Council unreasonably accused him and his brother of failing to act appropriately in their role as attorneys and ignored his request to remove accusations from the records

What happened

57. At the end of October and start of November 2022, the Council and the local NHS Trust wrote to Mr X saying:
• Mrs Y no longer needed care in hospital.
• Despite preventative measures, the hospital could not guarantee Mrs Y would not fall or get an infection.
• Delay in transfer from hospital was not in Mrs Y’s best interests. He believed he was acting in her best interests by not spending her money on care provision which he believed left her at risk of falls. But, the risk of falls in hospital was no less than in care settings. In fact, she was at greater risk of falls because of deconditioning as she was less likely to get up and walk.
• The Council had found two suitable placements for Mrs Y, agreed at a best interests meeting. Concerns about historic matters could not delay a move and the Council and hospital would seek to move Mrs Y when a placement came up. If he wished to challenge this then, he would need to make an application to the Court. If he refused to pay, then the Council would temporarily fund Mrs Y’s care and would seek to recover the cost and make the Office of the Public Guardian aware it had concerns about his behaviour as her attorney.
• They would continue to work to find Mrs Y an alternative placement to enable her to transfer from hospital. The letter went on to say his expectations that a care provider eliminated all risk of falls for Mrs Y were unrealistic.

Was there fault?

58. There is no fault in either of the letters in the previous paragraph because:
• The letters set out the Council’s position and advised him of the possible consequences. I have no grounds to criticise the Council’s view that it was not in Mrs Y’s best interests to remain in hospital if this was not medically necessary. Mr X objects to the Council saying it would approach the Office of the Public Guardian, but this is an action the Council would be entitled to take if it had concerns about the way he was acting as his parents’ attorney.
• As I have not found the Council to be at fault, it follows there is no fault in its failure to amend the record.

Complaint (g): The Council was responsible for a delay in inviting the family to complete paperwork for a financial assessment and to apply for a deferred payment agreement (DPA)

Relevant law and guidance

59. When the council arranges a care home placement, it must follow charging regulations and complete a financial assessment to decide how much a person must pay towards the cost of their residential care.
60. The financial limit, known as the ‘upper capital limit’ is £23,250. People who have capital (savings and property) over the upper capital limit must pay the full cost of their care home fees and are known as self-funders. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital, but they do have to contribute most of their income.
61. A deferred payment agreement (DPA) is a long-term loan from a council. It enables a person to use the value of their home to pay for care home fees. The council secures the loan against the person’s property.

What happened

62. At the end of December 2021, an officer from the Council’s finance team emailed Mr X with information about financial assessments including the upper capital limit and deferred payment agreements. They offered to send Mr X a full information pack for financial assessments. Mr X spoke to a social worker. The finance officer emailed him saying he should get in touch again when Mr and Mrs Y’s capital fell to £26,000. Mr X emailed the finance officer. He said he felt unable to proceed with financial assessments for Mr and Mrs Y until a financial complaint about his parents’ care charges had been resolved.
63. A social worker spoke to Mr X in the middle of January 2022. They discussed a D2A placement for Mr Y. The social worker said this would be funded by the NHS for two weeks after which there would be a formal discharge planning meeting.
64. In the first week of December 2022, the manager of Care Home A and the social worker spoke. The manager said Mr X reported to her that Mr and Mrs Y’s finances had dropped below the upper capital limit.
65. Mr X confirmed on 20 December that Mrs Y would be able to self-fund her care in Care Home A for six weeks. The social worker noted she had requested an urgent financial assessment with the finance team and was exploring deferred payments with Mr X.
66. The finance team received the social worker’s referral for a financial assessment at the end of December 2022. The records indicate the team sent Mr X an information pack. A finance officer emailed Mr X to confirm Mr and Mrs Y’s finances would be assessed and calculated individually.
67. A finance officer and Mr X spoke at the start of January. The finance officer explained how the Council worked out eligibility for a DPA. They explained the value would be 50% each and any loan would need to sustain the placement for 139 weeks, the property would need to be registered with the land registry, there would need to be insurance. The finance officer advised Mr X about the application process. Mr X asked some questions about the DPA which the finance officer answered.
68. Mr X sent back the completed finance form and provided documents promptly.
69. At the end of January 2023, the finance team emailed the Council’s decision on the deferred payment application. The email said the Council was prepared to offer a deferred payment for Mr Y because it was affordable based on his weekly income contribution of £373 and a deferred figure of £1018. It would not offer a deferred payment for Mrs Y because her income contribution was £177 and when added to the deferred figure of £1018, this did not cover the weekly care home fee of £1385 for her. Unless there was someone who could afford to top-up the difference.
70. Mr X was unhappy with the decision and emailed the finance team to say if he accepted a DPA for his father, then the property could not be sold to pay for Mrs Y’s care. He said they should have been assessed for a DPA months ago,

Was there fault?

71. The records indicate Mr X declined financial assessments in December 2021 due to his concern about unresolved complaints. There is no fault because the Council could not financially assess Mr and Mrs Y without seeing relevant financial documents and a completed application form which Mr X needed to provide in his role as their attorney for finances.
72. The finance team then became involved again following a referral at the end of December 2022. The records indicate the application for DPAs for each parent was considered and assessed by the end of January and Mr X received a full breakdown of the calculation. This was within a month of the referral and so there is no fault.

Complaint f: The Council failed to fully respond to all his complaints.

What happened

73. Mr X complained to the Council in October and December 2022 about the matters he has raised with us. In October he complained about the Council’s handling of safeguarding concerns. The Council responded in November. It summarised the safeguarding concerns raised for his parents in 2022, explained each had been considered under safeguarding procedures and summarised the action taken in each case. The Council concluded that there was delay in one case by its safeguarding team in considering an enquiry report from the hospital. It apologised.
74. In November, Mr X emailed the Council’s complaints team to say he was not happy with its response to his complaint about the way the Council handled safeguarding concerns. The Council responded to say it had already provided a final response on those issues and he needed to contact the LGSCO.
75. Mr X sent a further email expressing his dissatisfaction with the safeguarding complaint response and about the DOLS team’s failure to contact him about the DOLS complaint.
76. Mr X complained to the Council about fresh matters at the start of December 2022. The complaints team emailed him a summary of his complaint. Mr X emailed to say the summary was not complete. He said the family had been wrongly accused of causing delays and the Council and NHS sent him an intimidating letter which he wanted retracted. He said he was only attorney for finances and so any concern or challenge to the discharge process was made as next of kin.
77. The Council responded to Mr X’s complaint in January 2023. I have summarised the response below:
• It did not uphold his complaint about the Council delaying securing a place in his mother’s preferred care home and accusing the family of causing delays. This was because the social worker carried out a needs assessment in September 2022 before the best interests meeting and the preferred home continued to hold a place for Mrs Y until 20 October until Mr X said in an email that he would not attend a further meeting. Searches for a placement continued until another vacancy came up in the preferred home in November and discussions resumed with the manager. A further needs assessment took place in December.
• It partially upheld the complaint about delays in the financial assessment. The finance team and him discussed the financial assessment for his father and he did not take up the offer in December 2021. Regarding his mother, in July 2022, the Council accepted the information it gave Mr X about her self-funding status may have caused confusion about the Council’s responsibility with regards to commissioning the placement. Normally, the Council doesn’t commission residential care if a person is a self-funder.
• It did not uphold his complaint about the application for a deferred payment. A deferred payment was not discussed until Mr X said his parents were reaching the capital threshold. The application for a deferred payment had been referred to the relevant team and he would receive feedback.
• It did not uphold his complaint about inaccuracies in the DOLS assessment. The matter had already been resolved by the DOLS team in August 2022 when he raised concerns.
• It was sorry for the delay in the financial assessment and for the confusion around funding responsibilities for his mother. It noted he wished to take up the offer of a meeting with a manager and would raise this with the relevant manager.
78. After receiving the January complaint response, Mr X sent further emails to the Council expressing his disagreement with the Council. He said it had not fully addressed all his concerns. The Council said he had not raised new points and referred Mr X to us. Mr X repeated his concerns. The Council offered a meeting with a senior manager. Mr X said he wanted to record the meeting. The senior manager said the Council would arrange a note taker, but she did not agree to recording. The meeting did not go ahead.

Was there fault?

79. The Council should have dealt with the complaint about the DOLs process. The Council said in correspondence that the matter had been resolved, but it had not been resolved to Mr X’s satisfaction and so he should have had a complaint response addressing the matter. This was poor complaint handling and was fault.
80. Other than the lack of a response to the DOLS complaint, the Council’s complaint handling met our expected standards. Mr X sent multiple emails with questions and queries and the Council then signposted him to the LGSCO as it had nothing to add. Drawing the complaints process to a close when a body has nothing further to add is not fault. We expect councils to respond to complaints in a proportionate way and to give sufficient detail about the matter. Apart from the DOLS complaint, the Council gave adequate responses.
81. Mr X wanted to record a meeting and the relevant senior manager agreed to a meeting with a note-taker, but the manager refused to agree to recording. I do not consider this to be fault as officers do not have to consent to members of the public recording them.

Did the fault cause injustice?

82. I have found the Council to be at fault in:
• Not addressing Mr X’s complaint about the DOLS process
• Delaying the standard authorisation process
• Not dealing with requests for standard authorisations for Mrs Y because she was in hospital
• Delay in giving feedback on some of the safeguarding enquiries.
83. The above fault caused avoidable frustration, distress and time and trouble complaining to us.

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Agreed action

84. Within one month of my final decision, the Council will:
1. Review and amend the policy of not completing DOLS standard authorisations while a person is in hospital
2. Apologise and make Mr X a symbolic payment of £250 for the avoidable distress and time and trouble.
85. The Council should provide us with evidence it has complied with the above actions.

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Final decision

86. There was fault by the Council which failed to address Mr X’s complaint about the Deprivation of Liberty Safeguards for his mother Mrs Y. There was also delay in giving feedback on safeguarding enquiries. This caused avoidable distress, frustration and time and trouble. The Council will apologise, make Mr X a symbolic payment and review its procedures for requests for standard authorisations.
87. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman