Summary: Mrs X complained about the way the Council arranged a home care package for her husband, Mr Y between May and July 2022 whilst she was in hospital. Mrs X said she was unaware of the care package arrangements. There was no fault in how the Council arranged the care package or around how it assessed Mr Y's mental capacity. However, the Council sent details about the financial assessment to an incorrect email address for Mrs X which was fault. On balance, Mrs X would have cancelled the care package sooner had that fault not occurred. The Council agreed to waive part of Mr Y’s outstanding fees to acknowledge the injustice this caused.

The complaint

1. Mrs X complained about how the Council arranged a home care package for her husband, Mr Y, between May and July 2022 when she spent time in hospital. Mrs X said the Council wrongly determined Mr Y had mental capacity to agree to the care package and it ignored her request not to speak with Mr Y. Mrs X said the Council then failed to inform her about the care package which she would have cancelled much sooner had she been aware.
2. Mrs X says the matter has caused her distress and she wants the Council to waive the outstanding care fees.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)

Back to top

How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

10. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
11. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
12. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
13. 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.
14. 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 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?
15. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

What happened

16. Mrs X lives with her husband Mr Y. Mrs X cares for Mr Y full time following a stroke and says he does not have full mental capacity to make or understand decisions around his care.
17. Following an accident in April 2022 Mrs X was admitted to hospital. A family member, Mr F came to stay with and look after Mr Y in the short term.
18. In the first week of May 2022 Mr F called the Council. He explained he had been looking after Mr Y but now needed to return home. Mr F asked the Council what support it could provide for Mr Y.
19. Following Mr F’s call the Council carried out a face to face visit, the same day, to assess Mr Y’s needs. The social worker who visited noted Mr Y could communicate, although he had some speech difficulties and could understand risks around his care needs. The social worker noted Mr Y could relay and consider the risks and recognised he required care and support. The social worker referred Mr Y for an urgent home care package which started on 2 May 2022 with a view to it ending on 4 May.
20. The following day a social worker called Mr Y to discuss finances. Mr F was also present during the telephone call. The social worker and Mr Y verbally agreed to the financial assessment. The social worker noted Mr Y could understand the questions and provided answers. The social worker approved a budget for an ongoing care package and sent the information to the care broker. They sent the financial assessment forms to Mr Y who replied by email and text message agreeing to the financial assessment.
21. The Council extended the temporary emergency care package until 8 May. Records show the Council called Mrs X on 5 May to keep her informed of Mr Y’s care. There are limited notes of the call however the Council said Mrs X did not mention that Mr Y had difficulties with his mental capacity.
22. The Council found a home care provider for Mr Y which began on 9 May. The social worker called Mr Y on 12 May who confirmed the care package was working well and he was happy.
23. Mr Y’s home care package continued throughout May and into June when Mrs X left hospital. Records show the Council sent Mrs X an email on 14 June to make an appointment to visit for the completion of the financial assessment. However, the Council sent the email to an incorrect email address which meant Mrs X did not receive it.
24. As the Council had not had a response it called Mrs X on 6 July to arrange an appointment. Mrs X told the Council she was unaware of the arrangements of Mr Y’s care as she was in hospital at the time. Mrs X thought the temporary care package was ongoing. The Council explained Mr X had received a care package since 9 May and was required to pay the full cost of the care which stood at nearly £3000 which included a £326 one-off admin fee. Mrs X asked the Council to stop the care package immediately.
25. The Council cancelled Mr Y’s care package the following day however it made it clear to Mrs X that the care fees stood. It sent Mrs X an email explaining the temporary care package initially put in place until 9 May was not chargeable. The Council said it fully explained the charges to Mr Y and Mr F who both indicated they understood them.
26. Mrs X complained to the Council. She said she told the Council not to make contact with Mr Y. She said Mr X did not have full mental capacity and she was unaware a chargeable care package had been put in place. She said she was unaware the social worker had contacted Mr Y directly about it. Mrs X said she presumed the temporary care package was still in place upon her release from hospital. Mrs X said she would have stopped the care package earlier had the Council sent the email to her correct address. Mrs X said she wanted all fees waived.
27. The Council responded at stage one of its complaints procedure. It said it had no record of Mrs X telling it not to make contact with Mr Y. The Council said it was the professional view of the social worker that Mr Y had mental capacity in the circumstances. It said Mr Y was not alone on any occasion where it spoke with him, having been supported by Mr F. The social worker said they were sure Mr Y fully understood everything. The Council apologised for sending the email about the financial assessment to the wrong address. It offered to waive the administration fee as a gesture of goodwill.
28. Mrs X remained unhappy and escalated much of her original concerns to stage two of the complaints procedure. The Council responded to Mrs X, reiterating much of what it said at stage one.
29. Mrs X remained unhappy and complained to us.

My findings

30. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at how an organisation made its decisions. If it considered all the relevant information and facts and made decisions in line with the law and guidance, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
31. The Council acted upon a call from Mr F while Mrs X was in hospital. Records show the Council and the social worker considered Mr Y’s circumstances appropriately in deciding he had mental capacity to make decisions around his care. Mr F was present at all times during the commissioning of Mr Y’s care and there is no evidence he raised any concerns. There was no fault in the way the Council arranged a care package for Mr Y.
32. The Council was entitled to charge Mr Y for the care he received. Mr Y’s circumstances meant he was liable to pay the full cost of his care. There is no fault in the Council charging Mr Y, who agreed to the care package and the associated costs and there is no evidence of poor care.
33. The Council chose to communicate with Mrs X to arrange the full financial assessment but in doing so sent the email to the wrong address. This was fault. This meant Mrs X was unaware of the full circumstances and implications of Mr Y’s care package until a few weeks later when the Council called her. Mrs X immediately cancelled the care package following that phone call. On balance, she would have done so upon receiving the email in mid-June, had the Council sent it to her correct address.

Back to top

Agreed action

34. Within one month of the final decision the Council agreed to waive Mr Y’s outstanding care fees from 15 June onwards.
35. The Council should provide us with evidence it has complied with the above action.

Back to top

Final decision

36. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice cause by the fault.

Back to top

Investigator's decision on behalf of the Ombudsman