Summary: There was no fault in how the Council dealt with the financial aspects of Mr B’s late mother’s care.

The complaint

1. Mr B complains on behalf of his late mother, Ms Y. He says the Council provided inadequate information about his mother’s adult social care costs so the family did not realise she needed to contribute. Mr B says it was a shock to receive an invoice for over £3,000 shortly after his mother’s death, and he questions whether his mother had capacity to agree to the charges. Mr B also says the Council had told the family his mother would get six weeks care, free of charge.
2. Mr B says the Council’s shortcomings have caused the family increased distress at a time when they had just lost their mother.

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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 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)
4. 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

5. I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account the comments received before issuing this final decision.

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What I found

The law and guidance

6. 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, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
7. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.
8. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:

• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.

9. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
10. 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.
11. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if the person can find someone else (a ‘third party’) to pay the top-up.
12. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
13. 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.
14. 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. An assessment of someone’s capacity is specific to the decision to be made at a particular time. 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

15. Mrs Y was elderly and lived alone. Her family had been caring for her on a daily basis. Mrs Y was admitted to hospital and after treatment, she and her family agreed she would need more care and equipment in the house. The Council met with Mrs Y’s daughter and after some discussion they agreed that Mrs Y would move to a care home to allow for her own home to be prepared and for a care package to be set up. The temporary stay at the care home would mean the family had to pay £30 per week top-up payment. The Council’s files say that at this time it also discussed with Mrs Y’s daughter how Mrs Y would be charged for her care. The Council emailed Mrs Y’s daughter a booklet explaining how care is paid for, and she forwarded this to her brother, Mr B.
16. In December, the Council visited Mrs Y at the care home to assess what help she would need when she returned home. Mrs Y’s daughter and Mr B, were at the meeting. The Council’s files say that it discussed the financial process at that meeting and again later with Mrs Y’s daughter over the phone. It says it explained that that Mrs Y would be assessed to see how much she would need to contribute to her care. The Council’s files show that it discussed her mother’s savings with the family and that she did not own her home.
17. The Council says that at the assessment visit, Mrs Y signed a declaration to say she had understood she would be charged for her care these details. Mr B has given me a detailed account of that visit. He tells me his mother did not sign a form. He was present throughout the assessment, met the Council’s social worker at the door of the home, and also walked her out after the assessment. He also says the finances were not discussed.
18. The Council agreed that Mrs B would need a package of home care visits when she returned home. It arranged for an occupational therapist to assess whether she would need equipment or adaptations at home. The therapist completed this assessment at the beginning of January.
19. At the end of January, the Council completed the financial assessment. A few days later it notified Mrs Y by letters sent to her home address and to the care home that she would need to pay a contribution of £272.88 per week for her care.
20. At the beginning of February, the care home told the Council that Mrs Y’s health was deteriorating and her capacity to understand some things fluctuated. It said it was no longer sure she could return home. The Council arranged for a provider to deliver the home care package. But Mrs Y’s daughter agreed that it now would not be enough. The following week, Mrs Y sadly died.
21. At the end of February, the Council sent the family an invoice of over £3,200 being her contribution to her care costs for her time at the care home.
22. Mr B complained to the Council and then to the Ombudsman. He said that his mother had not signed the form to say she understood the financial information, and he doubts she had capacity to understand this. Mr B said that the Council had not told them his mother would need to contribute to her care at the care home, and they had understood she was entitled to six weeks free care. Mr B said that he had kept asking the social worker what would happen if his mother had to stay longer than the six-week period because the care package was not in place. He says the Council told him that it would all be sorted out. Mr B also complained that the Council had taken too long to invoice his mother, the care fees had built up, and the timing of the invoice meant that they received this shocking bill when they had only just lost their mother.

Analysis

23. I can see that Mrs Y’s family has been left with an invoice to their mother’s estate that they genuinely did not expect. I can also see that this became more complicated because there was a question about how much Mrs Y would be charged for a home care package, how much for her time at the care home, and also another charge to the family to top up these care home fees. However, there is no fault in the Council’s decision to invoice for Mrs Y’s contribution to her care charges.
24. Mr B has questioned whether his mother had capacity to understand the financial aspects of her care. It is for the Council to decide whether to do a formal mental capacity assessment. Its case notes show the Council considered this and takes account of the family members’ views of Mrs Y’s capacity. The Council’s notes are clear that, at the time the financial decisions were made, there was no clear indication Mrs Y’s capacity was in question to the extent that she would not have understood that she would have to pay.
25. I can see there was a fundamental misunderstanding about the fact that Mrs Y would need to contribute not only to the home carers, once in place, but also to the residential care home charges. The Council’s notes say that this was discussed with the family more than once, but Mr B says this was not always the case. He says that neither he nor his sister understood that the financial assessment was also to decide how much his mother should pay towards the care home fees. However, I cannot say that this misunderstanding is due to fault by the Council.
26. Mr B says his mother did not sign the form at the assessment visit in December. Mr B has given me a detailed account of that meeting and I have no reason to disbelieve him. In addition, when the Council investigated Mr B’s complaint, it could not find the form on file and had to ask the social worker for it, meaning they had not followed the correct process. On the other hand, the Council has produced the signed declaration. I cannot say even on the balance of probabilities, whether it is more likely than not that Mrs Y signed this at the meeting or another time. I do not have enough evidence to make a finding.
27. However, although the declaration is an important document, even if it were not signed, it could still be the case that the Council gave sufficient information about finances and the opportunity to discuss this.
28. Mr B says that he had understood that his mother would receive six weeks care free of charge. The Council’s position is that intermediate care is for rehabilitation and will be delivered on behalf of the NHS. The written information the Council gave to Mr B and his sister talks about free care for ‘active recovery’. The hospital did not refer Mrs Y for intermediate care because its view was that although she needed a short term stay in a care home after being in hospital, Mrs Y did not need rehabilitation. Mrs Y had a chronic deteriorating condition and so rehabilitation treatment would not have been appropriate.
29. I am not certain how Mr B misunderstood that his mother would get some free care, and I note that he could not recall who had told him this. Charging rules can be complicated and it is possible that someone did give Mr B wrong information. However we cannot say that this was a Council officer.
30. I have looked at whether the Council took too long to assess Mrs Y, arrange her home care package, and complete a financial assessment, and whether any delay meant that Mrs Y incurred more care home fees. The Council took from December to the beginning of January to assess Mrs Y’s needs (including an occupational therapist’s assessment of her needs in her own home). It completed the financial assessment at the end of January and arranged care by the first week of February. Although this seems like a long time, and ideally the Council would have completed the financial assessment sooner, there is very little delay between the various steps of this process.
31. In addition, the Council’s case notes say that the care home contacted the Council with concerns that Mrs Y’s condition had deteriorated and she would not cope on the agreed care package if she returned home. It does seem likely that the needs assessments of December and January was already out of date and would need reviewing. As such, it seems to me that Mrs Y would not have returned home sooner (and therefore incurred less care home fees) had the Council arranged the home carers sooner or completed the financial assessment sooner.

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Final decision

32. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman