Summary: Mr X complained about the Council’s failure to keep under review the best interest decision it made about his mother’s care in 2022. The Council was at fault. It was also at fault for not giving him proper information about paying for the costs of care. It will apologise and pay him £1,000 to remedy the considerable stress and worry caused when it later said it may not fund his mother’s care package, and his avoidable time and trouble pursuing the matter. It will also give guidance to relevant staff.

The complaint

1. Mr X complained about the Council’s failure to keep under review its decision in 2022 that his mother, Mrs Y, should remain at home with an extensive care package, and its subsequent refusal to fund that package of care, without a further review, after his mother’s capital fell below the capital limit. He also said the Council’s communication with him was poor, and there were delays in responding to his emails.
2. Mr X said he was caused frustration and avoidable worry and uncertainty as a result of the Council’s failings.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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.
7. 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

8. We would usually investigate events up to 12 months before the complaint to us. Mr X complained in July 2023 about events from February 2022 when the Council made a “best interests” decision about his mother’s care. However, Mr X was not aware there was cause to complain until earlier this year, and he did not delay in complaining to us after the Council responded to his complaint. On that basis, I decided to investigate the whole period complained about.

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How I considered this complaint

9. I considered:
• the information Mr X provided and discussed the complaint with him;
• the information the Council provided in response to our enquiries;
• relevant law and background, as set out below; and
• our guidance on remedies, available on our website.
10. 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

Relevant law and guidance

Needs assessments

11. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. Where the person has eligible needs, the council will prepare a support plan, which sets out their needs and how the council will meet them.
12. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. This is the amount the council estimates will be needed to pay for the support to meet the person’s assessed needs. The personal budget may be paid as a direct payment. Direct payments are cash payments to individuals, which allow the individual to arrange and pay for care for themselves or a relative.
13. The Court of Appeal in R (Davey) v Oxfordshire [2017] EWCA Civ 1308 said that whilst a person’s preferences must be taken into account, this had to be distinguished from their need for care. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.
14. Statutory Guidance says a council may also take into reasonable consideration its own finances, including the importance of ensuring that the funding available to it is sufficient to meet the needs of the entire local population. It says the council ‘may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centered or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value’ (Care and Support Statutory Guidance, paragraph 10.27).

Charging for social care services: the power to charge

15. 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.
16. The council will need to carry out a financial assessment to decide whether the person is eligible for assistance and, if so, the amount they need to contribute towards the cost of their care. Where a person has more than the upper capital limit (currently £23,250), they are expected to pay for their care in full until such time as their capital falls below that limit.

NHS continuing health care (CHC)

17. NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
18. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

Best interest decision making

19. 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 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.
20. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
21. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Lasting Power of Attorney

22. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
23. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Complaints handling

24. The Council has a two stage complaints process.
• Stage 1: complaints are investigated by the service complained about, which aims to send a written response within 10 working days.
• Stage 2: complaints considered by the Customer Relations team, which may either carry out further investigation or ask the service to reconsider all, or specific parts, of the complaint. The Council aims to issue a written response within 20 working days at stage 2.

What happened

25. In early 2022, Mrs Y was living with Mr Z. She had mobility issues, was diagnosed with dementia and had a care package. Mr X is her son and he has an LPA for finance and property. The Council had assessed her needs in September 2021.
26. In early February 2022, following a deterioration in Mrs Y’s condition, the Council made a “best interests” decision that she should be cared for at home with an increased care package. When making that decision, the Council consulted Mr X, various health professionals involved with Mrs Y and her care provider.
27. Its record shows a consultant psychiatrist considered Mrs Y should move to a care home. Mr X agreed with this in view of concerns about her behaviour towards Mr Z. Some of those consulted agreed with this, and others thought she should stay at home. This was because Mrs Y had said she did not want to go into a care home when she had capacity. The record also shows the decision-maker considered the impact on Mrs Y of being separated from Mr Z as they had previously said they did not want to be separated. The record stated the decision ensured “the least restrictive option is at least trialled” and that the decision should be reviewed in six months.
28. The Council did not complete a fresh needs assessment or care and support plan, including a personal budget, following the best interests decision.
29. Shortly after the best interest decision was made, Mr Z died. Mr X said there were no discussions about reviewing the best interests decision in light of this change of circumstances. In its complaint response, the Council accepted it should have reviewed the best decision following Mr Z’s death. In response to my enquiries, the Council said an occupational therapist (OT) had been in touch with Mr X soon after Mr Z’s death and the record of their conversation stated the plan was still for the Council to arrange overnight care for her so she could stay at home.
30. At the time the best interests decision was made, an application had been made for NHS CHC funding to cover the costs of Mrs Y’s care and there appears to have been an assumption this would be agreed, although no decision had been made at that time. Mr X said that, following a visit in April 2022, an independent assessor agreed the criteria for NHS CHC funding was met, but the Council was told on 24 June 2022 that it was refused. Council records show it reviewed the evidence and decided this did not show Mrs Y needed care as a result of a primary health need, so there were no grounds for the Council to challenge the decision. However, it explained Mr X could appeal and gave him advice about doing so. Mr X appealed the decision but was not successful.
31. The Council did not consider reviewing the best interests decision when NHS CHC funding was refused. In response to my enquiries, it said Mrs Y wished to remain at home with a care package that she was funding, and this would not have changed if NHS CHC funding had been agreed.
32. In September 2022, an OT carried out a review of Mrs Y’s moving and handling needs. The assessment gave advice on how the care provider should move and handle Mrs Y when providing care. Council records show the OT told Mr X to ask for a financial assessment six weeks before Mrs Y’s capital reduced to the upper capital limit. It did not record any other advice about care costs. Mr X said his understanding was the Council would take over the funding of Mrs Y’s care package at that point. He said the Council did not give him any other information about care costs or council assistance with care costs.
33. In its complaint response, the Council apologised for not giving him “more information around funding and the guidance [it] must follow” to manage his expectations about what would happen when Mrs Y’s capital fell to the upper capital limit.
34. In response to my enquiries, the Council said it did not advise on care costs in advance of Mrs Y’s capital falling below the upper capital limit because it would have reassessed her care needs at that point to ensure any package of care was meeting her needs, and it would not have wanted to give estimates or misinform Mr X.
35. The Council did not review the best interests decision after six months. In response to my enquiries, the Council said the outcome would not have changed because the plan after Mr Z’s death was to arrange night-time care at home.
36. Mr X asked the Council to fund Mrs Y’s care package in April 2023 when her capital had fallen to the upper capital limit. The Council carried out a financial assessment, agreed Mrs Y was eligible for assistance from 26 April 2023, and calculated her assessed contribution at £105 per week from that point.
37. Following this, Mr X said the Council started querying the care package and there were long gaps with no communication. He said the Council queried whether Mrs Y needed five calls during the day, whether she needed two carers at some of these calls, whether she needed care at night-time and how many hours of night-time care were needed. The Council asked Mr X if he could contribute to the cost of her care package, which he said he was not able to do, and it considered again whether Mrs Y may be eligible for NHS CHC funding.
38. On 1 June the Council told him it could not pay more than £865 per week towards Mrs Y’s care, which was its weekly rate for nursing care in a nursing home. It said it had to ensure it met a person’s needs in a way that was cost effective and sustainable but said the cost of Mrs Y’s current package was “way above our guidelines and not sustainable”.
39. In early June, an OT contacted Mr X about a moving and handling review that was arranged for the following day. Mr X objected to the review, which did not go ahead. He made a formal complaint. He was unhappy the review had been arranged without consultation with him and was concerned the Council was using the review to reduce Mrs Y’s care package because it was too expensive. He said Mrs Y’s money was running out and he expected the Council to fund the current package, which it had decided to put in place against his wishes and the advice of medical professionals.
40. On 26 June, Mr X told the Council his mother only had funds to pay for care until the end of June.
41. In its complaint response dated 14 July 2023, the Council said, “as an interim arrangement a direct payment has been set up”, back-dated to the date it agreed Mrs Y became eligible for assistance “whilst your situation is looked into”. Its records show a direct payment account was set up and a payment of £10,404.42 was made on 18 July. Its record stated this was £865.10 per week from 26 April to 31 July 2023, which was the nursing home rate.
42. On 26 July Mr X asked to speak to a manager. He told them the direct payments agreed did not even cover the cost of Mrs Y’s day-time care and she only had funds to pay for night care for one more night. He told the Council and the care provider that he would need to cancel the night-time care. Mr X said the Council agreed to meet the costs of the night care in that call, but its record does not confirm this. Its record for 1 August stated it had agreed to pay for the night care for two weeks and a payment for £1512 was made on 2 August to cover this.
43. Also on 2 August the Council told Mr X it had agreed to set up a direct payment “at our current nursing rate of £865.00”, and that funding of £756 per week had been agreed to cover night-time care for two weeks. Mr X responded this was not what was agreed the previous week. He said had also not been told the extra funding would be restricted to £756 per week nor limited to two weeks.
44. There was a further discussion on 10 August. The Council wanted to arrange to reassess Mrs Y’s care needs and Mr X was seeking reassurance that it would fund the current care package before agreeing to an assessment visit. Also on 10 August the Council contacted the care provider providing the daytime care to explain that now the Council was funding the care the costs should be calculated using Council rates not private care rates. The care provider agreed to provide fresh costs information on that basis and confirmed the cost for day care was £949.20 per week. The night-time care was £1009 per week.
45. On 12 September, the Council carried out a reassessment of Mrs Y’s care needs. This recorded Mrs Y was unable to do anything for herself. It also stated she had used up all her funds, including her inheritance from Mr Z. The Council’s records stated it was again exploring the possibility of NHS CHC funding but it had agreed to fund the current care package to the end of September. On 11 October it agreed to fund the current care package in full.
46. Mrs Y died in October 2023. Ultimately, the Council fully funded her package of care from the point her capital fell below the upper capital limit.

Analysis and my findings

Best interest decision-making

47. Mr X did not have an LPA for health and welfare and therefore he was not able to make decisions about Mrs Y’s care when she lost capacity to do so herself. Therefore, the Council had to make a best interests decision.
48. Council records show it consulted Mr X and various professionals involved with Mrs Y and they expressed a range of views. It was for the Council to decide how much weight to give each of those views, when reaching its decision on what was in Mrs Y’s best interests.
49. The record shows an application for NHS CHC had been made, and there appears to have been an assumption this would cover the costs of the care package. There is no record to show any consideration of the different level of costs associated with either care in a care home or an extensive care package at home. There is also no record to show the Council considered the impact of NHS CHC funding being refused.
50. Council records indicate a key factor in deciding Mrs Y should remain at home was that she did not want to be separated from Mr Z. Shortly afterwards, Mr Z died. The Council did not review the best interests decision in light of this significant change, which was further fault.
51. The record of the best interest decision stated there should be a review after six months. The Council did not carry out a review, which is further fault.
52. The Council did not consider a review until Mrs Y’s money ran out and it was faced with funding a very expensive care package. I cannot say, even on balance, what the Council would have decided if it had reviewed the best interests decision at the points set out above. Mr X is left with uncertainty about whether the outcome would have been different, but for the faults, which is an injustice to him.

Costs information

53. The Council told Mr X that Mrs Y would need to pay the full cost of her care until her capital fell below the upper capital limit and advised him to contact it around six weeks before that point to request a financial assessment. That was appropriate.
54. However, there is no record to show it gave him any other information about paying care costs. It did not explain it would set a personal budget and that, if the cost of the care package or care home exceeded the personal budget and Mr X was not able to pay the difference, it may consider changing the care package. And it did not issue a care and support plan following the best interests decision, with a personal budget. Nor did it explain Mrs Y would need to contribute most of her income towards the care costs. Mr X was left under the impression that when Mrs Y’s capital fell below the upper capital limit, the Council would fund the care package it had decided upon in February 2022.
55. The lack of proper information about care costs was fault. This caused Mr X considerable stress and worry when Mrs Y’s funds were running low, and it became clear the Council would not automatically fund her care package. The Council did not make any direct payments until 2 August when most of Mrs Y’s money had been used up. After several emails without a substantive response, he thought he would have to cancel Mrs Y’s night-time care with all the risks that posed for her. It is clear from the emails he sent around that time, that this caused him significant stress and worry. The fault also meant he was put to avoidable time and trouble pursuing the matter, including seeking clarification of the Council’s position at various points when it was unclear.
56. Councils must meet a person’s assessed needs and can consider how to do so in a cost effective way but should not set arbitrary limits. Therefore, it was fault for the Council to say the maximum it would pay for Mrs Y’s care was the amount it would normally pay for nursing care in a nursing home. However, it was appropriate to review Mrs Y’s care needs, both to assess if they had changed and also to assess the impact on her wellbeing of any change to the way her care was provided, such as a move to a care home. It could not have moved her to a nursing home simply to reduce the cost of the package if that would have negatively impacted her wellbeing. Ultimately, the Council fully funded Mrs Y’s care package and her needs were met throughout. So Mrs Y was not caused a significant injustice.

Communication and complaints handling

57. Mr X said the Council’s communications were poor and it delayed in responding to his emails. From my review of the records, the communications about the payments made to the direct payment account were somewhat confusing and Mr X did have to ask for clarification on more than one occasion. In addition, in July/ August there was some confusion about what the Council had agreed to fund, but the record of the initial discussion is not sufficiently clear for me to establish what was agreed.
58. On balance, I do not consider the communication was sufficiently poor to warrant a formal finding of fault. The Council did not always respond to emails as quickly as Mr X hoped for, and I appreciate the urgency of the funding situation for him, but I do not consider the delays were sufficient to amount to fault. In any case, I have already considered the avoidable time and trouble Mr X was put to pursuing the Council as a result of the lack of costs information. I have also not found fault with the Council’s complaints handling.

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Agreed action

59. Within one month of the date of the final decision, the Council will apologise for the lack of information about paying care costs, for failings in the way it made the best interest decision in February 2022, and for its failure to review that decision. It will pay Mr X £1,000 to reflect the significant stress and worry he was caused and the avoidable time and trouble he spent pursuing the matter.
60. Also within one month of the date of the final decision, the Council will remind relevant staff of the importance of:
1. giving full information about paying for the costs of care, including information about how a person’s contribution to those costs will be calculated, and about personal budgets and what happens if a person chooses a care home or care package that exceeds this;
2. ensuring that keeping best interest decisions are kept under review;
3. not setting arbitrary limits on the amount it will pay for a person’s care and ensuring that in reaching decisions on any potential changes to their care, such as moving them to a care home or to a cheaper care home, it assesses the likely impact of the proposed change on the person’s wellbeing.
61. The Council will provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman