The Ombudsman's final decision:
Summary: The Council repeatedly missed opportunities to assess Mrs Z’s mental capacity regarding her ability to manage her finances when this was in doubt. As a result, its decision to charge her for the full cost of her care fees for several years before she died, based on incomplete information regarding her finances, was fault. This fault caused significant uncertainty and distress to her relative, Mr X, who is the executor of her will. The Council’s communication and complaint handling with Mr X has also been poor. In recognition of the uncertainty caused by the Council’s inadequate assessments of Mrs Z’s finances, the Council has agreed to write off the £21,987.06 debt it says she owes. The Council will also apologise to Mr X, pays him £350 to recognise his own frustration and time and trouble and carry out several service improvements to prevent this fault occurring in future.
- Mr X complains the Council is wrongly charging his deceased relative’s estate more than £21,000.
- He says the Council have incorrectly calculated what his relative was able to pay towards her care costs. Mr X said the Council’s actions have caused him frustration and distress.
The Ombudsman’s role and powers
- 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)
- 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- In this case, I have exercised discretion to look at events back to April 2020. This is because Mr X was unaware of the issues until after his relative died and he became executor of her will. Therefore he could not have brought the complaint to us before then. It is also because we could not understand the Council’s calculations for the sum it said Mrs Z owed without investigating these earlier events.
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
- 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)
How I considered this complaint
- I considered the information provided by Mr X and the Council.
- I considered the relevant law and guidance as set out below.
- I considered our Guidance on Remedies.
- I considered all comments made by Mr X and the Council on a draft decision before making a final decision.
What I found
Law and guidance
- 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. 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.
Charging for permanent residential care
- The Care Act 2014 (sections 14 and 17) provides the legal framework for charging for care and support.
- When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
- The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This amount is currently set at £23,250. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than this, they only have to pay an assessed contribution towards their fees. The Council decides this based on a financial assessment.
- Where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person.
- The only reason a council may not carry out a full financial assessment in these circumstances, is if a “light touch assessment” can be carried out instead. This means a council is satisfied, based on evidence provided by the person, that they will continue to be able to afford any charges due.
Financial assessments and mental capacity
- Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However councils must comply with mental capacity legislation when assessing what people should pay towards their care.
- Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.
- A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
- 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.
- When assessing somebody’s capacity, the assessor needs to find out the following:
- 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?
- 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.
- The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:
- decides whether a person has capacity to make a particular decision for themselves;
- makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions; and
- appoints deputies to make decisions for people lacking capacity to make those decisions.
- 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.
- If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
Independent Mental Capacity Advocate (IMCA)
- People who lack capacity may be allocated an IMCA. An IMCA is an advocate appointed to act on a person’s behalf where they lack capacity to make certain decisions.
- Several years ago, Mr X’s relative, Mrs Z, developed health problems affecting her mobility and independence.
- Mrs Z died in April 2022. Her remaining estate totalled £24,028.77 after her funeral expenses were deducted. Mr X is an executor of Mrs Z’s estate.
- On 20 April 2020 the Council began carrying out a financial assessment with Mrs Z over the phone to see how much she should be paying towards some non-residential care services she was receiving.
- The officer ended the call early and was unable to finish the assessment. They recorded that they did not think Mrs Z had mental capacity around her finances as she did not appear to understand who she was paying and for what. Around this time, staff supporting Mrs Z had also queried whether a DOLS assessment was needed in relation to the care she was receiving.
- A mental capacity assessment was not carried out.
- Following a review of her care needs, in July 2020 the Council carried out a light touch financial assessment. It charged Mrs Z the full cost of her care.
- On 6 August 2020, the Council asked Mrs Z to let the Council know if she wanted a full financial assessment and or advice regarding her benefits. On 20 August it is recorded that Mrs Z told the Council she was worried about money and the cost of her care but she did not respond to the Council’s offer of a full financial assessment and so one was not carried out.
- Mrs Z moved to an interim placement in a residential care home - Care Home A - on 25 August 2020. Care Home A cost £560 per week.
- In early October Mrs Z had conversations with the Council where she disputed that she needed any help with finances, but in other notes, professionals recorded that she was worried about money and would benefit from a financial assessment. Another urgent DOLS application was taking place during this time due to concerns regarding her capacity.
- On 21 October 2020 the Council said Mrs Z required a mental capacity assessment to be carried out regarding her finances. A mental capacity assessment was not carried out.
- Mrs Z was financially assessed again on 26 October 2020, on the same day she moved to a new care home – Care Home B. This was another light touch, rather than a full, financial assessment.
- Care Home B cost £1,167.25 per week. Mrs Z was financially assessed in October 2020 as being able to contribute £1,150.00 per week to these care home fees. Mrs Z lived there until she died on 21 April 2022.
- Between December 2020 and April 2021 the records show Mrs Z saying at times that she did not need help with her finances and at other times, that she did. She also showing a lot of misunderstanding about who she owed money to and what amount.
- Later in April, the Council asked Mrs Z to provide her past twelve months bank statements. She refused to provide them and so the Council continued to charge her the full cost of her care fees.
- The Council’s records show Mrs Z’s capacity regarding her finances being brought up again on 25 May 2021. The notes recorded further behaviour indicating she lacked capacity.
- The social care worker said they would carry out a mental capacity assessment, as Mrs Z was receiving bills for the full amount of her care but these were “too high”. However no mental capacity assessment was carried out and the Council continued to charge Mrs Z the full cost of her care.
- Two days later, on 27 May 2021, another professional supporting Mrs Z raised concern about Mrs Z’s capacity regarding her finances. However again, no mental capacity assessment was carried out.
- On 9 June 2021, the records show that Mrs Z’s disability benefits had ceased due to a confusion between her and the Department of Work and Pensions over what was being funded by the Council, so Mrs Z’s income reduced.
- In some accounts of visits with Mrs Z she said she had two savings accounts and at other times she said she had just one savings account.
- In October 2021 Mrs Z began getting direct contact from credit control regarding unpaid care fees as her cheques were failing.
- Mrs Z’s mental capacity is next mentioned in the Council’s case records on 20 January 2022. The same professional said again they thought Mrs Z may lack capacity to manage her financial affairs and the Council was missing documents needed to assess her financial situation.
- On 3 February 2022 Mrs Z was allocated an Independent Mental Capacity Advocate (IMCA). On 18 February the IMCA requested a DOLS review. However this review never took place and a mental capacity assessment was never carried out for Mrs Z before she died in April 2022.
- In July 2022 Mr X made contact with the Council to establish what Mrs Z owed in any outstanding care costs from her estate. The Council responded in the same month to say:
- “..when Mrs (Z) died she had approximately £21,500 left in a building society and around £3,000 in her current account. She also had a life policy which paid out after her death of approximately £1,900 and her funeral was approximately £3,000.”
- It said it did not yet have the total amount Mrs Z owed as it had not been able to obtain bank statements needed to calculate this. It asked Mr X to provide them.
- Mr X did this by August 2022. The Council then went back to its previous financial assessments of Mrs Z and recalculated them using the recently provided financial information.
- For several months Mr X chased the Council and it still could not provide the total figure owed. Emails between Council officers in this period show that it was unclear from Mrs Z’s records which invoices had been paid and which had not and therefore when her capital fell below the threshold.
- During this time, another relative of Mr X’s died and he became executor of their estate as well and expressed to the Council that he was experiencing stress and wanted the matter concluded.
- On 19 October 2022 the Council decided to revise the amount Mrs Z owed to reflect the Council beginning to fund the placement at Care Home B starting from 12 May 2021.
- The Council officer explained their rationale for this. They said questions were raised as early as April 2020 regarding Mrs Z’s capacity to manage her financial affairs and these continued into 2021 and 2022. However a mental capacity assessment was never carried out.
- They referred to the April 2020 financial assessment which had to be cut short due to capacity concerns, concerns regarding Mrs Z’s behaviour in the care home indicating she may lack capacity, and her not being willing or able to provide documents to have her financial assessments done and her not appearing to understand the implications of this.
- The Council’s records from this date show the officer saying that due to the above and in particular the capacity assessments not being carried out when they should have been, their “position would be difficult to defend” which is why they recommended that the Council begin funding from May 2021 onwards.
- However Mr X continued chasing the Council for a closing figure owed by Mrs Z and the Council could not provide this until more than a month later. On 24 November it asked Mr X to pay £11,017.94.
- Mr X disputed this figure was correct. The Council considered the amount again. Then on 22 December 2022, the Council said it had made an error and the outstanding balance was £21,987.06 to be paid from Mrs Z’s remaining estate.
- Mr X made a complaint to the Council. He said Mrs Z received £334.28 every four weeks in benefits and had no other income. He said her remaining estate after funeral costs came to only £23,250 and he therefore did not understand how her closing care bill could be £21,987.06 because her remaining savings were so close to the capital limit.
- The Council responded at the final stage of the complaints process on 7 February 2023. It explained the upper capital limit rules but did not provide an explanation of how this applied to his relative’s estate. It said if he was unhappy he could complain to the Ombudsman. Mr X did this in March.
Failure to carry out financial assessments and mental capacity assessments
- The Mental Capacity Act and Code of Practice is clear. Councils must carry out mental capacity assessments where a person’s capacity is in doubt. The Council failed to do this on multiple occasions regarding whether Mrs Z could manage her own finances. The Council was at fault.
- The records show that during this time, the Council used light touch financial assessments, without possession of key documents, and continued to charge Mrs Z the full cost of her care fees.
- The Council accepted that its decision to charge Mrs Z the full cost of her care fees while questions were repeatedly raised regarding her mental capacity - but no capacity assessments were carried out - was “difficult to defend”.
- It is not possible to determine with certainty when Mrs Z’s capital fell below the threshold as she routinely did not provide key information during this time. After Mrs Z’s death, there was confusion at the Council regarding which invoices had been paid and which accounts she had access to.
- The opportunity for Mrs Z to have a mental capacity assessment - and if she lacked capacity, for an advocate to be arranged to manage her financial affairs and challenge any of these decisions - has now been lost. Mr X is not able to do this on Mrs Z’s behalf, as he is only the executor of her will and not an appointed representative with access to all her personal information.
- Given this missed opportunity for there to be any certainty over what Mrs Z should have paid towards her care during this period and when, I do not consider the Council is able to make a safe decision using these records regarding when Mrs Z’s capital fell below the threshold.
- On the balance of probabilities, the Council’s records regarding Mrs Z’s finances are unreliable and it is not in a position to request the sum of £21,987.06 from Mrs Z’s estate.
Poor communication with Mr X
- The Council’s communication with Mr X has also been poor. He chased the Council repeatedly for four months before the Council could provide him with a figure of the total owed. One month later it then doubled this figure due to an error. This significant delay and poor communication by the Council was fault.
- Mr X then complained to the Council and the Council’s response was inadequate. It failed to explain how it applied the upper capital limit policy to his relative’s estate and instead just repeated the capital limit policy. The Council failed to respond to Mr X’s complaint properly and this was fault.
- The faults above have caused Mr X frustration and uncertainty regarding the reliability of the Council’s calculations. The Council’s faults also put him to avoidable time and trouble in coming to the Ombudsman. The Council established in October 2022 that it missed opportunities over three years to assess Mrs Z’s mental capacity, which made their position regarding her capital threshold hard to defend. Therefore it could have remedied this injustice much sooner than it did.
- Within one month of the date of the final decision, the Council has agreed to:
- Apologise to Mr X for the injustice caused to him by the faults identified in this decision;
- In recognition of the significant uncertainty caused by the Council’s failure to properly assess Mrs Z’s mental capacity and her finances in the years before she died, write off the £21,987.06 debt which it says is owed from Mrs Z’s estate; and
- In recognition of the frustration and time and trouble Mr X was put to by the Council’s poor communication and complaint handling, pay Mr X £350.
- Within three months of the date of the final decision, the Council should:
- Demonstrate that it has carried out a lessons learned review into this case to understand why mental capacity assessments in relation to Mrs Z’s finances were repeatedly requested but never arranged;
- Demonstrate that it has put in place measures to follow up on mental capacity assessment requests, to ensure these are carried out in a timely way, and ensure against the same mistakes occurring in future;
- Remind its adult social care staff that light touch assessments are only permitted when it is clear to the Council that the service user has above the capital limit threshold and are not to be used when that person’s mental capacity around their finances is under review.
- The Council should provide us with evidence it has complied with the above actions.
- I have completed my investigation. I have found fault leading to injustice and have recommended an apology, a financial remedy and several service improvements.
Investigator's decision on behalf of the Ombudsman